Petition for Writ of Certiorari — Bishop v. Oasis Oil Co.

Supreme Court, U.S,

FILED

DEC 11 108

JOSEPH F. SPANIOL, JR,

CLERK

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

Ted Bishop, Petitioner

Vv.

Oasis Oil Company, and David Fouracres,

Respondents

Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

Thomas J. Davis

DAVIS & EPPSTEIN, P.C

110 South Church Avenue,

Box 48

Tucson, Arizona 85701-1603

(602) 624-1774

Of Counsel:

William B. Blaser

WILLIAM B. BLASER, P.C.

7493 No. Oracle Rd., Ste. 105

Tucson, Arizona 85704

(602) 297-8386

II.

QUESTIONS PRESENTED

Whether the United States Court of

Appeals for the Ninth Circuit

erred in dismissing the

Petitioner's Complaint as against

all the Respondents herein for

failure to timely serve his

Summons and Complaint in this

matter pursuant to 28 USC 4(j) and

the extensions granted by the

United States District Court for

the District of Arizona.

Whether the United States Court of

Appeals for the Ninth Circuit

erred in dismissing Petitioner's

Complaint against Respondent,

David Fouracres, for failure to

timely serve his Summons and

Complaint in this matter, pursuant

to 28 USC 4(j) and the extensions

(i)

granted by the United States

District Court for the District of

Arizona absent a finding of bad

faith or contumacious conduct.

(ii)

II

TABLE OF CONTENTS

Questions Presented .........

ee ee ee ee ee

DP ee eee

Statutory Provisions Involved .....

EE ee ee

Reasons for Granting the Petition ..

Le

cs

The Court of Appeals erred in

dismissing the Petitioner's

Complaint as against all the

Respondents for failure to timely

serve his Summons and Complaint in

this matter pursuant to 28 USC

a i © |

The United States Court of Appeals

for the Ninth Circuit erred in

dismissing Petitioner's Complaint

against Respondent, David

Fouracres for failure to timely

(iii)

TABLE OF CONTENTS - Continued

serve his Summons and Complaint in

this matter pursuant to 28 USC

4(J) absent a finding of bad

faith, unnecessary delay or

contumacious conduct ..... .20

a ee a ee ee |

Appendix A:

(i) Order of the United States

District Court for the District of Arizona

(ii) Opinion of the United States Court

of Appeals For the Ninth Circuit

(iii) Order of the United States Court

of Appeals For the Ninth Circuit

(iv) Amended Complaint

(v) District Court Judgment dismissing

Complaint

(vi) United States Court of Appeals for

the Ninth Circuit Judgment affirming the

District Court

(iv)

a tcl

TABLE OF CONTENTS - Continued

(vii) Return of Service Documents on

David Fouracres 7

(viii) Civil Minutes -- District Court

hearing vacating default against Oasis

Oil

(ix) Second letter to Delaware

Department of State, Divison of

Corporations

(x) Return of Service on original

service of Summons and Complaint on Delaware

Secretary of State and Oasis Oil

Company -

(xi) Proof of service on David

Fouracres

(xii) Petitioner's Complaint against

Oasis Oil Company and David Fouracres filed

by attorney Marshall D. Tandy on July 25,

1986

(v)

III

Cases: Page

Vv - igita uipment

Corp., 843 F.2d. 613, (1st Cir.

PS eee ee |e

Bishop vs. Cross, 79C F.2d 39 (7th Cir.

SE ras fee eR gh a se

oa Vv ics ato ne. ,

537 F.2d. 210 (5th Cir. 1976). .22, 23

Dobson vs. U.S. Army Finance and Accounting

Center, 636 F.Supp. 894, (S.D. Ind.

1986) . e . o . 7 e . o . e o . . 15

Dyotherm Corp. vs. Turbo Machine Co., 392

F.2d. 146 (3rd Cir. 1968). .... 21

Ellingsworth vs. Chrysler, 665 F.2d. 180

a, Bo arr ee ee ee eee ee

Flaks j Lv j onst tio

389 F.2d 885 (5th Cir. 1968)...

“So ae oe ae ee ae ee ee ee ee ee ee | le

Garrison vs. U.S., 688 F. SUPP. 1459, (D.

Nev. 1988) ... . ° Se teae «0&3

Gonzales vs. Firesto ire & Rubber Co.,

610 F.2d. 241, (5th Cir., 1980).17, 22

Hawkins vs. Department of Mental Heaith,

89 F.R.D. 127, (W.D. Mich., S.D.

1981) . o _ . . - . . . . . . . 7 . i

Jackson vs. Washington Monthly as 569

F.aG@. 1139 (9.C. 2O77ee 2 6 2 > « 2

(vi)

TABLE OF AUTHORITIES - Continued

Johnson vs. Boyd Richardson Co., 650 F.2d.

367, €@em Gam. Ber « «ss Pas 21

Johnson vs. Hubbard, 698 F.2d 286, (6th

Cie. BOBS) «0 Sear fae er ae foe 22

Meeker vs. Rizley, 324 F.2d. 269 (10th

ee ae ae cw gt a a eck 21

Patterson vs. Township of Grand Blanc,

760 F.2d. 686, (6th Cir. 1985) . .17,18

Smith vs. Jostens Am. Yearbook Co., 78

F.R.D. 154 (1978)... . .

Tarbox vs. Walters, 192 F. — 861, (E.D.

Se re gr tet 14

Thomas vs. Gerber Productions, 703 F.2d 353,

CS a ee

Tolbert vs. Leighton, 623 F.2d 585 (9th

Cir. 1980) . ° . . . ~ _ . . . . . py

United States vs. Mazzone, 782 F.2d. 757

[Fae Gals BOs ct wt tt ck ee er) SS

United States vs. Mayer, 775 F.2d 1387

Te. a a 22

Statutes:

io) ee a) ne

Title 28, United States Code, 4(J). . 8, 9,

SU, Bae SU

(vii)

‘TABLE OF AUTHORITIES - Continued

Title 28, United States Code, 4(E) .. 2, 3

Title 28, United States Code 1254 .... 2

Arizona Revised Statutes §10-115(B) ... 3

Laws of Delaware, Title 28, §321(B) . 3, 13

Federal Rules of Civil Procedure Rule 4(J)

. . . . e . 7 . . . . . . . . . > . 15

(viii)

|

No.

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1989

Ted Bishop, Petitioner

vs.

Oasis Oil Company and David Fouracres,

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner, Ted Bishop,

respectfully requests that a Writ of

Certiorari issue to review the judgment of

the United States Court of Appeals for the

Ninth Circuit.

OPINIONS BELOW

The order of the United States

District Court for the District of Arizona

is unreported and is printed in Appendix A,

Page i. The judgment and opinion of the

United States Court of Appeals for the Ninth

Circuit are unreported and are printed in

Appendix A, Pages ii and vi.

JURISDICTION

The judgment of the United States

Court of Appeals for the Ninth Circuit was

entered on July 19, 1989. A timely

Petition for Rehearing was denied by that

Court on September 11, 1989. (Appendix A,

Page iii). The jurisdiction of the Court

is invoked pursuant to Title 28, United

States Code, §1254(I).

STATUTORY PROVISIONS INVOLVED

28 USC 4(j) provides: If a service of the

Summons and Complaint is not made upon a

defendant within 120 days after the filing

of the Complaint. . ., the action shall be

dismissed as to that defendant without

prejudice upon the court's own initiative

with notice to such party or upon motion.

28 USC 4(E) provides: Whenever a statute or

rule of court of the state in which the

District Court is held provides (1) for

service of a Summons, or of a notice, .. .

upon a party not an inhabitant of or found

within the state, . . ., service may in

either case be made under the circumstances

and in the manner, prescribed in the

statute or rule.

A.R.S. §10-115(B) provides: - + »« whenever

a foreign corporation authorized to transact

business in this state shall fail to appoint

or maintain a statutory agent at the

address shown on the records of the

commission, the commission shall be an

agent of such corporation upon whom any

such process, notice or demand may be

served.

Title 8, §321(B), Laws of Delaware provide:

- » »- it shall be lawful to serve the

—

process against the Secretary of State,

- » « the Secretary of State shall forthwith

notify the corporation, at its principle

place of business. .. or, . . . at its

last registered office.

STATEMENT

The Petitioner, Ted Bishop, is an

engineer and has spent his adult life

working for ana with multinational

corporations on building and development

projects all over the world. In his last

employment he was stationed in Libya before

diplomatic relations and all business

contacts between the United States and Libya

were severed by the then President of the

United States, Ronald Reagan. As part of

Petitioner's job, he had the occasion, and

need, to ride with one of the Respondents to

this action, David Fouracres, who was an

employee of a separate corporation,

Respondent, Oasis Oil Company. As a result

_

of his job requirements, the Petitioner was

injured while riding with Respondent

Fouracres and has been unable to work since

that time.

Between the time of the accident and

the filing of this lawsuit in the United

States District Court for the District of

Arizona, Ted Bishop returned to the United

States and Respondent Oasis Oil Company

disbanded in its state of incorporation,

Delaware, thereafter re-forming in England

as Waha Oil Company. Respondent Fouracres

continued in his employment, working on

development projects all over the world

while retaining his British citizenship.

Petitioner's Complaint against Oasis

Oil Company and David Fouracres was filed by

his then counsel, Marshall D. Tandy, on July

25, 1986 in the United States District Court

for the District of Arizona. (Appendix A,

Page xii). Jurisdiction was based upon

diversity of citizenship as Petitioner was,

and is, domiciled in Arizona while Oasis Oil

Company was, at that time, believed to be

organized pursuant to the laws of the State

of Delaware doing business in the State of

Texas and David Fouracres was, and is, a

citizen of the United Kingdom. The matter

in controversy exceeded, exclusive of

interest and costs, and does exceed, the sum

of Ten Thousand Dollars ($10,000.00). An

Amended Complaint was filed by Petitioner's

present counsel, William B. Blaser, by leave

of the United States District Court judge on

February 24, 1987. (Appendix A, Page iv).

The United States Court of Appeals for

the Ninth Circuit affirmed, on July 19,

1989, the judgment of the United States

District Court for the District of Arizona,

had on July 31, 1987, which dismissed the

Petitioner's Complaint as against all the

Respondents for failure to properly serve

the Respondents by July 16, 1987.

(Appendix A, Page v). The dismissal by the

District Court, and affirmation by the

Appellate Court, points to several

extensions, failure to act on the part of

Petitioner's counsel and extensive delay in

support of the dismissal.

The courts below are correct, that

service upon David Fouracres was not timely,

occurring some eight (8) days after the

deadline of July 16, 1987. Delays in

serving Mr. Fouracres had occurred in

diplomatic channels. (Appendix A, Page

vii).

Prior to the dismissal by the District

Court, Petitioner voluntarily agreed to have

a default judgment against Oasis Oil

Company set aside after it was discovered

that the Secretary of the State of Delaware

had failed to properly notice that entity.

(Appendix A, Page viii). On June 25, 1987,

six (6) weeks prior to the hearing at which

Petitioner's Complaint was dismissed and

approximately three (3) weeks before the

July 16, 1987 deadline set by the District

Court in which to effect service, Petitioner

re-contacted the Secretary of the State of

Delaware and requested that Oasis Oil

Company be re-noticed. This fact is

evidenced by copies of a letter to the

Secretary of the State of Delaware

requesting said re-notice, a check made

payable to the State of Delaware for its

services in that regard, a receipt for

certified mail and a return receipt from the

Secretary of the State of Delaware.

(Appendix A, Page ix).

Shortly after the judgment of the Court

of Appeals was entered, Petitioner's

Petition for a Rehearing before that court

was denied on September 11, 1989.

a

REASONS FOR GRANTING THE PETITION

In this case, the District Court and

Court of Appeals have incorrectly applied 28

USC 4(J). The dismissal of Petitioner's

Complaint against Respondent Oasis Oil

Company is an error in that that entity was,

in fact, properly served prior to the

deadline set by the District Court. This

error puts the courts below in conflict

with other federal courts regarding the

application of 28 USC 4(J).

Petitioner admits that its service

upon Respondent Fouracres was not timely.

There is, however, no question that

Respondent Oasis Oil Company was’ served

within the time extension granted by the

District Court. (Appendix A, Page x). The

record in this case is devoid of any

indicia of bad faith or contumacious conduct

on the part of Petitioner and demonstrates

absolutely no prejudice to the Respondent

10

Oasis Oil Company. In fact, Petitioner

voluntarily set aside a default judgment

against Oasis Oil Company in order to ensure

completely proper service of process upon

that entity.

It is essential that this court grant

further review of this matter. The

District and Court of Appeal's

interpretation of 28 USC 4(J) which

dismissed a case against all of the

Respondents for failure to properly serve

one is flatly inconsistent with the plain

meaning of 28 USC 4(J), is contrary to the

application of 28 USC 4(J) in other

District and Appellate Courts and ignores

the concept of justice. In the

alternative, should this court feel the

present issue is not worthy of certiorari,

Petitioner urges the court to summarily

reverse the holdings below so as to allow

11

the Petitioner his day in court based upon

the merits of his clain.

I.

\

THE COURT OF APPEALS FOR THE NINTH CIRCUIT

ERRED IN DISMISSING THE PETITIONER'S COMPLAINT

AS AGAINST ALL THE RESPONDENTS FOR FAILURE TO

TIMELY SERVE HIS SUMMONS AND COMPLAINT IN THIS

MATTER PURSUANT TO 28 USC 4(J)

Petitioner freely admits his failure to

serve Respondent Fouracres, said service

having come some eight (8) days after the

deadline of July 16, 1987, as set by the

District Court. Further, Respondent Ted

Bishop agrees that the District Court was

fair in granting extensions to effectuate

service in this matter. The fact is,

however, that Respondent Oasis Oil Company

Was properly served prior to the July 16,

1987 deadline, having been served on March

23, 1987, and renoticed on June 25, 1987,

Six (6) weeks prior to the hearing at which

Petitioner's Complaint was dismissed and

approximately three (3) weeks before the

Ve

12

deadline set by the District Court.

(Appendix A, Page ix). Admittedly, Mr.

Bishop's counsel's failure to immediately

notify the District Court that Oasis Oil

Company had been renoticed through the

Secretary of the State of Delaware is

regrettable but should not preclude Mr.

Bishop from having his day in court based

upon the merits of his claim.

The purpose of service of process is to

afford the Defendants notice of the

pendency of the action against then. In

determining whether process was sufficient,

courts must look to whether or not there has

been any material prejudice to the

substantive rights of the complaining

Defendant and whether any defects have been

subsequently amended. (Emphasis added).

Hawkins vs. Department of Mental Health, 89

F.R.D. 127, (W.D. Mich., S.D. 1981). While

the Hawkins decision, supra, dealt with

13

defects relating to the naming of proper

parties on the Complaint, as opposed to

timeliness as here, the general principles

derived therefrom are nevertheless

applicable. It cannot be contended that

Respondent Oasis Oil Company was unaware of

the pendency of this action against it as

David Anson, Esquire, specially appeared at

a hearing to show cause on May 29, 1987, on

behalf of Oasis Oil Company after Petitioner

had filed an Application for Default. At

that time it was discovered that the

Secretary of the State of Delaware had

failed to properly notice Oasis Oil Company

pursuant to the laws of Delaware, Title 8,

Section 321(B). Counsel for Petitioner

therefore voluntarily agreed to set aside

the default in order to correct the notice

problem. A copy of Petitioner's letter with

instructions, a check for the services of

the State of Delaware, receipt for

14

certified mail and return receipt from the

Secretary of the State of Delaware evidence

that Oasis Oil Company was renoticed on June

25, 1987. (Appendix A, Page ix). In

addition, Oasis Oil Company has not, to this

date, asserted the existence of any

material prejudice resulting from the first

insufficient notice by the Secretary of the

State of Delaware nor has the service made

on March 23, 1987, ever been attacked or set

aside.

The general principles set forth in

Hawkins, supra, are longstanding. The

failure of the Court of Appeals to follow

them in this instance is inconsistent with

other holdings espousing those same general

principles. Tarbox vs. Walters, 192 F.Supp.

861 (E.D. Pa. 1961); basic purpose of Rules

of Civil Procedure as to service is to

assure that Defendant will actually get

knowledge of the action against him and of

Pili ie

15

his duty to defend: Dobson vs. U.S. Army

Finance and Accounting Center, 636 F.Supp.

894 (S.D. Ind. 1986); even though service

was not technically correct, it was

sufficient as it provided notice and

Defendants did not seriously contend

material prejudice resulted: Garrison vs.

U.S., 688 F.Supp. 1469 (D. Nev. 1988); mere

technical deficiency when remedied by

amendment does not require dismissal of

action.

In a similar case (procedurally

speaking), wherein the Plaintiff failed to

serve the individual Defendants but did

properly serve the corporate Defendant,

Alvarado- es vs. igita uipment

Corp., 843 F.2d. 613 (list Cir. 1988), the

court dismissed the Complaint against the

individual Defendants.

"As a rudimentary, threshold, and

partially dispositive matter,

appellants admit that they failed

to serve Summonses and copies of

16

the Complaint on the three (3)

named individual Co-Defendants.

Only Digital Corporation was

served. Appellants offered no

good cause for this omission. The

claims against the three (3)

individuals are thus dismissible

under Federal Rules of Civil

Procedure 4(J)."

It is the Petitioner's position that the

procedural disposition of the Alvarado-

Morales decision, supra, would have been a

correct disposition of the situation in this

matter.

The record in the instant case

irrefutably indicates that Respondent Oasis

Oil Company was properly served within the

time limits set by the District Court

despite incredible logistical difficulties.

The purpose of the Federal Rules of Civil

Procedure regarding service of process,

notice to the Defendant of the pending

action in order to allow defense of said

action, was accomplished. Further, there is

no indication, nor has Oasis Oil Company

17

complained that such is the case, of any

material prejudice. The only possible

defect with regard to the service of process

on Oasis Oil Company is the Petitioner's

counsel's failure to notify the District

Court that that entity had been properly

noticed by the Secretary of the State of

Delaware prior to the hearing at which the

Petitioner's Complaint was dismissed as

against all the Respondents.

Courts have been reluctant to punish

parties for the inadvertent failures of

their counsel absent findings of

willfulness, bad faith or contumacious

conduct on the part of counsel, Bishop vs.

Cross, 790 F.2d. 39 (7th Cir. 1986);

Gonzalez vs. Firestone Tire & Rubber Co.,

supra; Tolbert vs. Leighton, 623 F.2d 585

(9th Cir. 1980), of which the record in

this matter is completely devoid. As stated

in Patterson vs. Township of Grand Blanc,

—

18

760 F.2d. 686, (6th Cir. 1985), quoting

Fla) Little Ri Mari ) bj

Co., 389 F.2d. 885, (5th Cir. 1968), wherein

a dismissal based upon the dilatory conduct

of the appellant's counsel (appearing, by

substitution, unprepared at a pre-trial

conference and failure to properly prepare

during an eleven (11) day grace period

granted by the court) was reversed:

"The appellant was in no way

connected with, or responsible

for, his proctor's dilatory

conduct. While we do not condone

that conduct [of the attorney], we

feel the circumstances of this

case are not such that the

appellant should lose his day in

court."

In Patterson, supra, as here, the failure to

properly notice the court was that of

counsel and not the litigant. The

Petitioner's counsel's failure to

immediately notify the court that

Respondent, Oasis Oil Company had been

renoticed did not invalidate the original

19

service upon Oasis Oil Company and should

not be the basis upon which to deny Ted

Bishop his day in court based upon the

merits of his clain. As stated in

Patterson, supra, at 688:

", . . such dismissal with

prejudice may be an abuse of

discretion."

Here, due to the tolling of the statute of

limitations, the dismissal without prejudice

handed down by the court below is, for all

practical purposes, a dismissal with

prejudice. In cases such as this one, a

dismissal serves only to overpromote

judicial expediency at the expense of the

basics of the legal system in this country,

justice.

20

babe ;

THE UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT ERRED IN DISMISSING THE

PETITIONER'S COMPLAINT AGAINST THE RESPONDENTS

ABSENT A FINDING OF BAD FAITH OR

CONTUMACIOUS CONDUCT :

The Petitioner admits his failure to

serve Respondent, David Fouracres within

the time limit set by the District Court,

said service having been effected some eight

(8) days after the deadline of July 16,

1987. (Appendix A, Page xi). Service was,

however, made upon Respondent Oasis Oil

Company on March 23, 1987, (Appendix A, Page

x) although through no fault of Petitioner

or his counsel, Oasis Oil Company had to be

renoticed which was done by letter on June

25, 1987. (Appendix A, Page ix). As a

result of Petitioner's failure with regard

to the service on David Fouracres, his

Complaint was dismissed without prejudice,

not only as against Fouracres but also Oasis

Oil Company, pursuant to 28 USC 4(J). It is

21

the Petitioner's contention that, because a

dismissal without prejudice has the same

effect as a dismissal with prejudice in this

instance, that said dismissal, absent a

finding of bad faith or contumacious

conduct, was an abuse of the court's

discretion.

There is considerable precedent

indicating that a dismissal, the harshest of

judicial sanctions, should be resorted to

only in extreme cases.

ms ° - the law favors’ the

disposition of cases on their

merits, and that dismissal is a

harsh sanction which should be

resorted to only in extreme

cases." Smith vs. Jostens Am.

, 78 F.R.D. 154 (1978)

citing to Meeker vs. Rizley, 324

F.2d. 269, (10th Cir. 1963).

"Dismissal is a harsh sanction which should

be resorted to only in extreme cases."

Dyotherm Corp. vs. Turbo Machine Co., 392

F.2d. 146, (3rd Cir. 1968), see also:

Johnson vs. Boyd Richardson Co., 650 F.2d.

22

147 (8th Cir. 1981); J son vs. ubbard,

698 F.2d. 286, (6th Cir. 1983);

Ellingsworth vs. Chrysler, 665 F.2d. 180,

(7th Cir. 1981); vs ire e Tire

& Rubber Co., 610 F.2d. 241, (5th Cir.

1980). In addition, courts have held that

where lesser sanctions would best serve the

interests of justice they should be pursued.

iv ari onst

Co., 389 F.2d. 885, (5th Cir. 1968); United

States vs. Mazzone, 782 F.2d. 757, (7th Cir.

1985); vs ayer, 775 F.2d.

1387 (9th Cir. 1985); Jackson vs. Washington

Monthly Co., 569 F.2d. 119 (D.C. 1977).

Finally, the ultimate sanction of dismissal

should be not imposed absent a finding of

bad faith, delay or contumacious conduct.

Thomas vs. Gerber Productions, 703 F.2d.

353, (9th Cir. 1983); Vv omics

Laboratory, Inc., 537 F.2d. 210, (5th Cir.

1976).

vb ted 8

23

In this case, because the applicable

statute of limitations has tolled, the

dismissal without prejudice is, for all

practical purposes, a dismissal with

prejudice. As stated in Boazman vs.

Economics Laboratory, Inc., supra, while a

less stringent standard of review is

ordinarily applied to a dismissal without

prejudice because the Plaintiff is able to

refile his suit, where, due to the tolling

of the applicable statute of limitations, a

aieniesel without prejudice is no less

severe than a dismissal with prejudice, it

should only be so dismissed where "there was

a clear record of bad faith or contumacious

conduct." The record in this case does not

demonstrate any indication of bad faith or

contumacious conduct. While it is

undeniable that there was delay in serving

Mr. Fouracres, that delay was due to

extremely unusual circumstances including:

24

difficulty in locating Mr. Fouracres due to

the problems associated with obtaining

information from sources in Libya during a

time period when United States contact with

Libya was at the least, tenuous, and at the

most, extremely limited; the identification

of a means by which to serve Mr. Fouracres

in England once he had finally been located;

and the problem of considerable delays in

processing the necessary documents through

diplomatic channels prior to their receipt

by the process servers in England.

(Appendix A, Page vii). Under such

circumstances it can hardly be contended

that Petitioner or his counsel acted in bad

faith, intentionally delayed the pursuit of

his claim or that any indicia of

contumacious conduct is present. By not

imposing available lesser sanctions than a

dismissal without prejudice when said

dismissal had the same effect as a dismissal

aceite at 4 a OE

¢

r

:

2

25

with prejudice, the United States Court of

Appeals for the Ninth Circuit erred in favor

of expediency and the trial calendar,

thereby denying Ted Bishop his day in court

based upon the merits of his’ claim

precluding justice in this matter.

CONCLUSION

This Petition for a Writ of Certiorari

should be granted based upon the foregoing

or, in the alternative, a summary reversal

should be granted the Petitioner in order

that his claim be adjudicated on the merits

rather than technical deficiencies with

regard to the service of process.

RESPECTFULLY SUBMITTED this WF FH aay

of December, 1989.

DAVIS & EPPSTEIN, P.C.

Attorney fo

Petitioner

26

Of Counsel:

William B. Blaser

WILLIAM B. BLASER, P.C.

7493 North Oracle Road,

Suite 105

Tucson, Arizona 85704

(602) 297-8386

FO Oe OT er ee ee eee

ee ee es me

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

No. CIV 86-423-TUC-WDB

TED BISHOP,

Plaintiff,

Versus

OASIS OIL CO. OF LIBYA, et al.,

Defendants.

ORDER

The complaint in this case was filed on

July 25, 1985. The complaint alleges that

defendant David Fouracres is a citizen of

the United Kingdom, and that Oasis Oil

Company was believed to be ae Delaware

corporation. On August 21, 1986,

plaintiff's counsel advised the Court that

Oasis Oil was believed to have dissolved its

Delaware charter the month before.

There have been numerous extensions and

several hearings to show cause why the case

should not be dismissed for failure to serve

the defendants in the year since this

complaint was originally filed. On each

such occasion, counsel for plaintiff

indicated that service was imminent.

Service was finally made upon the Secretary

of State for Delaware, apparently pursuant

to a Delaware law that authorizes the

Secretary to continue as statutory agent for

corporations for three years following their

dissolutions, a result which could have

obtained as early as August 21, 1986, when

plaintiff's counsel first advised the Court

that Oasis Oil was a defunct Delaware

corporation.

The last OSC was scheduled for

June 1, 1987, and continued to June 16,

1987. At that time, on plaintiff's motion

the Court set aside the default against

Oasis Oil for some defect in the service

that had been made by the Delaware

Secretary of State, and further ordered that

Claims against David Fouracres would be

dismissed if he were not served within

thirty days. Now the plaintiff's counsel

advises this Court that the defendant may

“have been served on July 25, 1987. The

Court's record shows no further action by

plaintiff to correct service as to the

defunct Delaware corporation. Dismissal

pursuant to Fed. R. Civ. P. 4(j) appears

well warranted on the record now before the

Court in this matter. See Edwards v.

Edwards, 754 F.2d 298 (9th Cir. 1985).

IT IS ORDERED that this case is

DISMISSED as to all defendants for failure

to serve the defendants within the limits of

|

Fed. R. Civ. P. 4(3) and of Court

authorized extensions to the time limits

thereof.

DATED this 31 day of July, 1987.

WILLIAM D. BROWNING

U.S. District Judge

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TED BISHOP,

Plaintiff-Appellant,

Vv.

OASIS OIL COMPANY, a Delaware corporation;

DAVID FOURACRES,

Defendants~-Appellees.

No. 87-2674

DC No. CV-86-0423-WDB

MEMORANDUM

Appeal from the United States District Court

for the Dist:ict of Arizona

William D. Browning, District Judge, Presiding

Argued and Submitted April 6, 1989

San Francisco, California

Before: POOLE, REINHARDT, and O'SCANNLAIN,

Circuit Judges

+ This disposition is not

appropriate for publication and may not be

cited to or by the courts of this circuit

except as provided by Ninth Circuit Rule 36-

Se

This personal injury case arises out of

an accident which occurred in North Africa

near Gialo, Libya, on or about July 28,

1984. Bishop was riding with Fouracres, a

British engineer employed by Oasis Oil

Company ("Oasis"), in an Oasis-owned jeep

when it hit a soft spot resulting in

injuries to Bishop, an Arizona resident.

Bishop's attorney, Tandy, filed this

complaint on July 25, 1986, three days

before the original statute of limitations

would have run under Arizona law. On August

29, 1986, Tandy's request for an extension

of time in which to locate and serve

defendants was granted in an order. which

required Tandy to cure the jurisdictional

defects in the complaint within sixty days

“or the case shall be dismissed." Bishop

was granted a further extension on October

31, 1986.

Thereafter, Tandy withdrew as counsel

and new counsel requested another time

extension to prepare an amended complaint

and to serve the defendants. On March 10,

1987, Judge Browning filed a minute order

setting a March 30 hearing (later reset to

June 1) for Bishop to "show cause why this

case should not be dismissed for failure to

serve any defendant within the extensions

granted by th(e) Court." On March 31,

Bishop filed with the district court Clerk

evidence of service against Oasis. On May

29th, Bishop moved for a default judgment

against Oasis pursuant to Fed. R. Civ. P.

55(a) which was granted by the Clerk on June

1. On the same date, Judge Browning vacated

the June 1 hearing and set June 8 as the

date for Bishop to show cause why the

complaint should not be dismissed as to

Fouracres and set July 1 as the date by

which Bishop "shall file a brief showing why

the service he has effected on the corporate

defendant is valid." On June 16, Judge

Browning granted Bishop another thirty days

to serve Fouracres and granted Oasis' motion

to vacate the default judgment. The record

discloses that the brief due by July 1 was

never filed.

On July 31, 1987, no proof of service

on Fouracres having been received, Judge

Browning dismissed Bishop's complaint for

"failure to serve the defendants within the

limits of Fed. R. Civ. P. 4(j) and of court

authorized extensions to the time limits

thereof." Bishop filed a motion for

reconsideration. Attached to that motion

was an exhibit purporting to show that

Fouracres was served on July 25, 1987. Also

attached to that motion was a "Receipt For

Certified Mail" signed by Robert Kreighbaum

of the Department of State of the State of

Delaware and dated June 25, 1987 suggesting

service on Oasis as of that date. The

5 to arab

motion for reconsideration was denied.

Bishop timely appeals. Appellees have made

no appearances in this court.

I

The district court's order dismissing

an action for lack of prosecution is

reviewed for an abuse of discretion.

Henderson v. Duncan, 779 F.2d 1421, 1423

(9th Cir. 1986); Ash v. Cvetkov, 739 F.2d

(9th Cir. 1986), cert. denied, 470 U.S. 1007

(1985).

The factors to be weighed in

determining whether or not the district

court has abused its discretion as (1) the

plaintiff's diligence; (2) the trial court's

needs to manage its docket; (3) the danger

of prejudice to the party suffering the

delay; (4) the availability of alternative

sanctions; and (5) the existence of warning

to the party occasioning the delay.

Hamilton v. Neptune Orient Lines, Ltd., 811

F.2d 498, 499 (9th Cir. 1987). Warnings by

a district court that dismissal will result

from failure to comply with its orders are a

sufficient consideration of alternative

sanctions to support dismissal. Greco v.

Stubenberg, 859 F.2d 1401, 1404 (9th Cir.

1988).

Judge Browning provided warnings on May

10 and June 1, 1987, that failure to serve

Fouracres would result in dismissal of

claims against him. Bishop failed to effect

service of process upon Fouracres within the

extensions provided by the district court.

Despite opportunities to do so, Bishop

failed to request further extensions. Since

Bishop cannot establish any factor under

Hamilton which weighs against the district

judge's dismissal of Fouracres, we hold that

dismissal of the complaint as to Fouracres

did not constitute an abuse of discretion.

sles 95 \

at Nth BRR

II

Bishop further claims that service upon

Oasis was proper and that dismissal was

inappropriate. At oral argument in this

court, Bishop's attorney claimed that the

evidence of service on oasis filed on March

31 constituted valid service of process.

Had such service been valid, Bishop

nevertheless failed to comply with the

court's request to brief the validity of

such service by July 1.

The record also contains the June 25

"Receipt for Certified Mail" signed by the

Department of State of the State of New

Jersey. Bishop claims that this evidences

valid service of process on Oasis. Even if

it were valid, it occurred beyond the time,

as extended, within which service was to be

made. Bishop failed to brief the validity

of the March service, contrary to court

order, and failed to ask for a further

extension.

In any event, the certified mail

receipt is, at best, dubious evidence of

service. There is simply no valid

explanation why the June 25 receipt was not

disclosed to the court before August 13, in

face of specific orders to justify validity

of service, especially since proof of the

March 25 purported service was filed within

six days.

Iit

In light of the record before us, we

cannot conclude that Judge Browning's

rulings constituted an abuse of discretion.

AFFIRMED.

Bishop v. Oasis Oil, No. 87-2674

Reinhardt, J., dissenting:

Ted Bishop was seriously injured in a

jeep accident in Libya. He was confronted

with the daunting task of trying to effect

service of process on a defunct Delaware

corporation that had abandoned its Delaware

corporate charter and reincorporated in

Great Britain and on an English resident

whose address was unknown. He sought to

serve process on the then-defunct Oasis Oil

entity through the Delaware Secretary of

State, as authorized by Delavare law, but

the Secretary of State apparently did not

comply, at least initially, with its

statutory mandate and Oasis Oil was not

properly served. However, on June 25,

+ After filing his complaint, Bishop

first attempted to serve process on Oasis

Oil and David Fouracres at the corporation's

Houston address. He then discovered that

Oasis Oil had changed its country of

incorporation.

1987, six weeks before the July 31, 1987

hearing at which Bishop's complaint as

dismissed, Bishop again filed with the

Delaware Secretary of State to have Oasis

served.

Meanwhile, Bishop had discovered the

whereabouts of David Fouracres and had hired

a company specializing in international

service of process to effect service on hin.

Apparently, Fouracres was served before the

July 31 hearing, but return of service from

England was delayed. The district court was

informed of this by letter before the

hearing.

Thus, Bishop had apparently served both

of the hard-to-locate defendants in this

case before the district court dismissed his

complaint for failure to effect service.

The court was indisputably informed that

service had been accomplished before it

denied Bishop's motion for reconsideration.

Accordingly, I cannot agree with the

majority that the district court did not

abuse its discretion in dismissing the

complaint.

It may be true, as the majority points

out, that Bishop's attorney should have been

more diligent in keeping the district court

informed of the status of the efforts being

made to complete service of process and,

indeed, of the ultimate success of the

venture. Perhaps some sort of sanction

against the attorney for his failure to do

so might have been appropriate. It is also

true that the district judge at times

exhibited considerable forbearance. But

this does not change the fact that service

was completed before the district court

adopted the ultimate sanction and dismissed

Bishop's complaint. Under the circumstances

of this case, I do not believe Bishop should

be compelled to forfeit his right to sue the

alleged tortfeasors. I would hold that the

district court abused its discretion in

dismissing Bishop's complaint. Accordingly,

I dissent.

iii

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TED BISHOP, Plaintiff-Appellant,

V e

OASIS OIL COMPANY, a Delaware corporation;

DAVID FOURACRES, Defendants~-Appellees.

No. 87-2674

DC No. CV-86-0423-WDB

ORDER

Before: POOLE, REINHARDT, and O'SCANNLAIN,

Circuit Judges.

The petition for re-hearing is DENIED.

Judge Reinhardt would grant the petition.

TED BISHOP, Plaintiff

vs.

OASIS OIL COMPANY OF LIBYA, a

Delaware corporation; and

DAVID FOURACRES, Defendants.

No. CIV 86-423-TUC-WDB

AMENDED COMPLAINT

COMES NOW the Plaintiff, TED BISHOP, by

and through his attorneys, BLASER, KELLY &

DON, P.C., and for his Complaint against the

Defendants, OASIS OIL COMPANY OF LIBYA, and

DAVID FOURACRES, alleges au follows:

I.

That the Plaintiff is a citizen of the

State of Arizona.

II.

That the Defendant, OASIS OIL COMPANY

OF LIBYA, is a Delaware corporation, with

its prinicple place of business in the

country of Libya, and a United States

office in Houston, Texas. Defendant Oasis

Oil Company of Libya is a legal citizen of

the State of Delaware.

IIt.

That the Defendant, DAVID FOURACRES, is

a citizen of the United Kingdon.

IV.

Federal jurisdiction is predicated upon

diversity of citizenships; the amount in

controversy exceeds Ten Thousand Dollars

($10,000.00) exclusive of interest and

costs.

V.

At all times material hereto,

Plaintiff, TED BISHOP, was employed -

Craddock Engineering, and was assigned to

perform his job in Libya.

VI.

That on or about July 28, 1984, DAVID

FOURACRES was an employee of OASIS OIL

COMPANY. At all relevant times, each

Defendant was the agent and employee of the

remaining Defendants, and was acting within

the purpose and scope of that agency and

employment, and each Defendant ratified and

approved the acts of his agent.

Vil.

On or about July 28, 1984, while the

Plaintiff and the Defendant DAVID FOURACRES

were working in Libya, the Plaintiff was a

passenger in a vehicle operated by DAVID

FOURACRES, and owned and supplied by OASIS

OIL COMPANY for DAVID FOURACRES.

VIIi.

That on or about July 28, 1984, DAVID

FOURACRES, while driving the vehicle

supplied to him by OASIS OIL COMPANY, did so

negligently, carelessly and recklessly

control the motor vehicle that he was then

and there driving, so as to cause the same

to be involved in a one vehicle accident,

injuring his passenger, the Plaintiff, TED

BISHOP.

Ix.

That as a direct and proximate result

of the negligence, carelessness and

recklessness of the Defendants, the

Plaintiff, TED BISHOP, sustained grievous

injuries to his person, all to his damage in

a presently unascertainable amount, but over

the jurisdictional limit of Ten Thousand

Dollars ($10,000.00).

X.

That solely by reason of the premises,

and as a consequence thereof, the Plaintiff,

TED BISHOP, has required and continues to

require the services of physicians,

radiologists, medical attendants and like

personnel, all to the Plaintiff's damage in

a presently unascertainable amount.

XI.

That solely by reason of the premises,

and as a consequence thereof, the

Plaintiff, TED BISHOP, has not been able to

perform his usual employment duties, and

will be unable to perform his usual

employment duties in the future, all to the

Plaintiff's damage in a presently

unascertainable amount, but in an amount

greater than Ten Thousand Dollars

($10,000.00).

XII.

That solely by reason of the premises,

and as a consequence thereof, the Plaintiff,

TED BISHOP, has been inflicted with pain,

suffering mental anguish, loss of enjoyment

of life, inability to perform employment

duties and other such damages, all to the

Plaintiff's damage in a presently

unascertainable-. amount, but over the

jurisdictional limit of Ten Thousand Dollars

($10,000.00).

4

Z qi

XIII.

The injuries suffered by the Plaintiff,

TED BISHOP, as a result of the negligence of

the Defendants, are permanent in nature, and

the Plaintiff will be permanently disabled,

and will endure pain and suffering and other

damages mentioned herein for the rest of his

natural life, all as a result of the

Defendant's negligence, all to the

Plaintiff's damage in a presently

unascertainable amount, but greater than the

Ten Thousand dollars ($10,000.00)

jurisdictional limit.

XIV.

The Defendant, DAVID FOURACRES, was at

all times material hereto, an employee of

OASIS OIL COMPANY, and was acting within the

scope and course of his employment, and with

the knowledge and consent of the Defendant,

OASIS OIL COMPANY, at the time of the

accident on July 28, 1984.

XV.

The Defendant, OASIS OIL COMPANY, knew

or should have known of the driving ability,

skills, and records of the Defendant, DAVID

FOURACRES, and that said Defendant, DAVID

FOURACRES, was on a mission or errand for

OASIS OIL COMPANY, for the benefit of OASIS

OIL COMPANY, and the Defendant OASIS OIL

COMPANY, was negligent in entrusting the

Defendant, DAVID FOURACRES, with the

automobile and sending him on the mission or

errand. ;

XVI.

The actions of the above-named

Defendants, and each of them, were willful,

wanton, and in complete disregard for the

safety and well-being of the Plaintiff, TED

BISHOP; that said conduct, has damaged the

Plaintiff is a presently unascertainable

amount, but more than the Ten Thousand

Dollars ($10,000.00) jurisdictional limit;

that punitive damages can and should be

assessed in an amount sufficient to punish

and deter the willful, wanton, and malicious

conduct of the Defendants as _ set forth

herein.

WHEREFORE, the Plaintiff demands

judgment as follows:

1. For judgment against the

Defendants, and each of them, for his

compensatory damages, in a sum to be proven

at the time of Trial, in excess of Ten

Thousand Dollars ($10,000.00);

2. For costs and expenses incurred in

prosecuting this action; and,

3. For such other and further relief

as the Court deems proper in the premises.

DATED this 24th day of February, 1987.

- By: William B. Blaser

Attorney for Plaintiff

Vv

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

TED BISHOP

Vv.

OASIS OIL CO. OF LIBYA, et al.

CIV 86-423-TUC-WDB

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to

consideration before the Court. The issues

have been considered and a devision has been

rendered.

IT IS ORDERED AND ADJUDGED that this

case is DISMISSED as to all defendants for

failure to serve the defendants within the

limits of Fed. R. Civ. P. 4(j) and of Court

authorized extensions to the time limits

thereof.

July 31, 1987

vi

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TED BISHOP, Plaintiff-Appellant,

vs.

OASIS OIL COMPANY, a Delaware

corporation; DAVID FOURACRES,

Defendants~-Appellees,

87-2674

CV~-86~-0423-WDB

JUDGMENT

APPEAL from the United States District

Court for the TUCSON District of ARIZONA.

THIS CAUSE came on to be heard on the

Transcript of the Record from the United

States District Court for the TUCSON

District of ARIZONA and was duly submitted.

ON CONSIDERATION WHEREOF, it is now

here ordered and adjudged by this Court,

that the judgment of the said District Court

in this Cause be, and hereby is AFFIRMED.

Filed and entered July 19, 1989.

vii

Attorney's Process Service, International

Franklin National Bank Building

100 West Franklin Avenue

Minneapolis, Minnesota 55404 - 612-871-0040

Date: August 6, 1987

RE: Bishop vs. Oasis Oil Company

Served On: David Fouracres

Date Served: July 25, 1987

ENCLOSED IS YOUR PROOF OF SERVICE IN THE

ABOVE-REFERENCED CASE. THANK YOU FOR USING

APS.

COMMENTS: Please note that date of service

does not indicate the date upon wich

documents are received by APS. There is

considerable delay in processing the

documents through diplomatic channels before

APS receives then.

Thank you for using APS!

July Bemis

International Dept.

viii

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Civil Case No. 86-423-TUC-WDB

Date: 6/16/87

Title: Ted Bishop vs. Oasis Oil Co.

Present:

Hon. William D. Browning, Judge

Patricia Moreno, Deputy Clerk

Toni Karaca, Court Reporter

Attorney for Plaintiff:

William Blaser

Attorney for Defendant:

PROCEEDINGS: _X. Open Court

Order to Show Cause:

Order default entered against

defendants Oasis Oil is vacated.

Further order the Order to Show Cause

is continued for a period of thirty days and

if at that time no service has been made on

Fouracres, this case will be dismissed as

to that defendant.

ix

June 25, 1987

Department of State

Division of Corporations

P. O. Box 989

Dover, Delaware 19903

RE: Bishop vs. Oasis

Oil Corporation

Dear Sir/Madam:

Pursuant to Section 321 of Title 8, please

notify the afore-named corporation by

Certified Mail, Return Receipt Requested, at

its principal place of business as appears

on the annual report dated February 28,

1986, that a lawsuit has been filed against

them. I am enclosing the Summons and a copy

thereof and a copy of the Complaint for you

to forward and a check for $25.00 as per

Section 321(b).

Thank you for your attention in this matter.

Respectfully,

BLASER, KELLY & DON, P.C.

William B. Blaser

Py 475 640 102

RECEJPT FOR CERTIFIED MAIL

NO INSURANCE COVERAGE PROV:CEL

NOT FOR INTERNATIONAL MAIL

(See Reverse)

7% 4

age , $

P.O

Post

met |

S| |

Certified Fee /. rig

Special Delivery Fee

* U.S.G.P.0. 1984-446-014

Restricted Delivery Fee

Return Receipt Showing

to whom and Date Delivered

Return receipt showing to whom,

Date, and Address of Delivery

TOTAL Postage and Fees ~~

-/:0/ «

Postmark or Date ™

6 -as- 87

PS Form 3800, Fob. 1982

“Qve-Ley C868 Ainr ‘Lise U4 S

1413934 NYUNL3Y DI1S3IWOG

@ SENDER: Complete items 1, 2, 3 and 4.

Put your eddress in the “RETURN TO” space on the

reverse side. Failure to do this will prevent this cerd from

being returned to you. returner t ill pr

you the neme of the person delivered to end the cate of

delivery. For additional tees the following services are

aveilebie. Consult postmaster for fees and check boxies)

for service(s) requested.

1. O show to whom, dete end eddress of delivery.

2. 0 Restricted Octivery.

4. Type of Service: | Articie Number

egistered ©) Insured p (7S C80 [0.2

Certified 0) coo

Express Mail

Adways obtain signature of addressee Dr agent and

DATE DELIVERED.

aos ~. -@

5. Signature —pAddrenes ~ - ** SERVICES

x ROSERT KEEIGHBAUM

6. Signature — Agent

x

7. Date of Delivery

TuNLS BOL

8. Adcdressee’s Adcress (ONLY (f requested and fee paid)

wy

BLASER, KELLY, & DON, P.C. NO 6208

ORACLE EXECUTIVE PLAZA 602-297-8386 i

74393 N. ORALCE RD. STE. 105

TUCSON, AZ 85704 7 : June 25, w87 ‘Seite

“G2» | DEPARIMENT OF STATE, DIVISION OF CORPORATIONS i$[ 25.00

~-------- -------- Twenty-Five and 00/100 he

paths

:

Bishop vs. Oasis Oil

Service of Process 5

wOOG 208" !beetOOO 2ks: e036" 2S 7hu

‘sowemnrer | 4

——

x

RETURN OF SERVICE

Service of the Summons and Complaint was

made by me: Kevin Dunn

Title: Process Server

Date: March 23, 1987

Served Oasis Oil Company of Libya, a

void Delaware Corporation by serving the

Delaware Secretary of State (per Mindy

Gardner) at the office of the Delaware

Secretary of State, Townsend Building,

Dover, Delaware 19901

STATEMENT OF SERVICE FEES

Travel -0- Services $40.00

Total $40.00

DECLARATION OF SERVER

I declare under penalty of perjury

under the laws of the United States of

America that the foregoing informat;}<a

contained in the Return of Service and

Statement of Service Fees is true and

correct. -

Executed on 3/22/87

Zs/__Kevin Dunn

Signature of Server

405 Brandywine Blvd., Wilmington, DE 19809

Address of Server

*Amended Complaint

xi

PROOF OF SERVICE

CASE: Bishop, et al., Plaintiff

vs.

Oasis Oil Company, et al.,

Defendants

Service of Process on: David Fouracres

NAME OF SERVER: Raymond Mark ~Parker,

undersigned, being duly sworn, deposes and

Says that he was at the time of service,

over the age of twenty-one, was not a party

to this action:

DATE OF SERVICE: that on the 25th day of

July, 1987 at Two o'clock p.m.

PLACE OF SERVICE: at 95 West Way in the

Borough of Bournemouth, County of Dorset.

DOCUMENT SERVED: the undersigned served the

annexed papers, to wit: Summons and

Complaint.

PERSON SERVED: a true and correct copy of

the aforesaid papers were served on the

above-named party or witness in the

following manner:

DESCRIPTION OF PERSON RECEIVING DOCUMENTS:

The person receiving documents is described

as follows: Sex: Male; Skin Color: White;

“WaiF color: Mid brown; Facial Hair: None;

Age (prox.) 48; Height (prox.) 5 ft. 8

inches; Weight (prox.) 210 pounds.

To the best of my knowledge I believe said

person was not engaged in the U.S. Military

at the time of service.

SIGNATURE OF SERVER: Undersigned declares

under penalty of perjury that the foregoing

is true and correct. /s/ R. M. Parker

Subscribed and Sworn to before me this 27th

day of July, 1987.

Notarization Not Required (International

Declaration)

ATTORNEY'S PROCESS SERVICE INTERNATIONAL,

INC. Seal.

xii

UNITED STATES DISTRICT COURT

STATE OF ARIZONA

TED BISHOP, Plaintiff,

vs.

OASIS OIL COMPANY, a Delaware corporation;

and DAVID FOURACRES, Defendants.

CIV 83-706 TUC

COMPLAINT FOR DAMAGES ARISING FROM

PERSONAL INJURIES

I

Jurisdiction is based upon diversity of

citizenship and the amount in controversy.

Plaintiffs, TED BISHOP, is a citizen of the

State of Arizona; Defendant, OASIS OIL

COMPANY, is a corporation believed to be

organized pursuant to the laws of the State

of Delaware and doing business in the State

of Texas; DAVID FOURACRES is a citizen of

the United Kingdon. The matter in

controversy, exclusive of interest and

costs, exceeds the sum of Ten Thousand

iia il

Dollars ($10,000.00).

II

At all times material hereto the

Plaintiff, TED BISHOP, was employed by

Craddock Engineering and was assigned to

perform his job in Libya.

Itt

On or about July 28, 1984, Plaintiff

was a passenger in a vehicle which was

operated by DAVID FOURACRES. DAVID

FOURACRES operated the vehicle in such a

negligent manner and failed to maintain

control of the vehicle, all of which

resulted in a one vehicle accident.

Plaintiff, as a direct and proximate result

of the Defendant's negligence, suffered

serious and permanent injuries requiring

Plaintiff to expend funds in the past and in

all likelihood to expend funds in the future

for medical and other related costs. As a

further direct and proximate result of the

—

6 Nt a te

:

|

é

accident, the Plaintiff has suffered

diminished earning capacity and loss of

income in amounts which are not presently

ascertained.

IV

The Defendant, DAVID FOURACRES, at all

times material hereto, was an employee of

OASIS OIL COMPANY and was acting within the

scope and course of his employment and with

the knowledge and consent of the Defendant

OASIS OIL COMPANY at the time of the

accident on July 28, 1984.

WHEREFORE, Plaintiff demands judgment

as follows:

1. For Judgment against the

Defendants in a sum to be proven at trial in

excess of $10,000.00, plus costs.

2- For such other and further relief

as the Court deems just and proper.