Opposition Brief — Talmidge International, Ltd. v. Dahiya

No. 04-567

Iu the

Supreme Court of the United States

TALMIDGE INTERNATIONAL, LTD., NEPTUNE

SHIPMANAGEMENT SERVICES (PTE) LTD..,

AMERICAN EAGLE TANKERS, INC., LTD., AND

THE BRITANNIA STEAMSHIP INSURANCE

ASSOCIATION, LTD.,

Petitioners,

w,

VINOD KUMAR DAHIYA

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION

Kevin O’Bryon

O’Bryon & Schnabel, PLC

1515 Poydras Street

Suite 830

New Orleans, LA 70112

(504) 799-4200

(504) 799-4211 fax

Attorney for Respondent

REASONS FOR DENYING THE WRIT

While petitioners ultimately seek review of the

enforceability of their claimed arbitration remedies, their

appeal below was dismissed for lack of appellate jurisdiction

after the district court remanded the suit to state court.

Where, as here, the remand order is based upon the lack of

subject matter jurisdiction, that order is statutorily immune

from review on appeal. 28 USC 1447(d), Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584,

46 L.Ed.2d 542 (1976). Respondent cannot improve upon

the concise explanation of the lack of appellate jurisdiction

set forth in the panel opinion of the circuit court of appeals.

That the district court’s remand order was based upon

the lack of subject matter jurisdiction is patent. The notice

of removal filed by petitioners in the U.S. district court

expressly recited the Convention on the Recognition and

Enforcement of Foreign Arbitral Awards, 9 USC 201, et seq.

as the basis for federal jurisdiction. In fact, because the

removal would have been untimely under any other basis of

jurisdiction, the Convention was the only possible grounds

for federal jurisdiction.’ Whether the district court was right

or wrong in finding that the purported arbitration agreement

was unenforceable under the Convention, and therefore

provided no grounds for removal under 9 USC 205, the

remand order necessarily was based on the lack of subject

Contrary to the representation of the petition for certiorari

(at p. 7), the district court’s remand order expressly noted

that the untimely removal waived bases for subject matter

jurisdiction other than the Convention (see, Appendix B to

petition for certiorari, at p. 45a).

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matter jurisdiction, and was thus unreviewable as a matter of

law.

“Without jurisdiction the court cannot proceed at all

in any case. Jurisdiction is the power to declare the law, and

when it ceases to exist, the only function remaining to the

court is that of announcing the fact and dismissing the

cause.” Ex parte McCardle, 74 U.S. (7 Wall) 506, 514, 19

L.Ed. 264 (1868).

Of course, petitioners’ characterization of the

underlying substantive issue as whether an Act of the

Louisiana Legislature can abrogate a treaty of the United

States is a quintessential strawman argument. The statute

enacted by the Louisiana Legislature merely evidences public

policy of the State of Louisiana. That the public policy of the

forum is a factor to be considered in assessing the

enforceability of an arbitration agreement has long been

established law.”

The relief sought by petitioners is particularly distant.

To reach the underlying substantive issue of the

enforceability of the purported arbitration agreement, the

Court would have to traverse a labyrinth of jurisdictional and

other obstacles. After the question of appellate jurisdiction,

next would come the equally-fatal bar of res judicata (the

circuit court of appeals initially dismissed the appeal as

barred by res judicata due to the rulings denying petitioners’

requested arbitration remedies in the state district, appellate

and supreme courts, before withdrawing that ruling to instead

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M/S BREMEN v. Zapata Off-Shore Co., 407 U.S. 1, 92

S.Ct. 1907, 32 L.Ed.2d 513 (1972).

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dismiss upon the threshold jurisdictional issue). After that

would come multiple other substantive and procedural

defenses to arbitration raised by respondent in the state and

federal district courts, but not reached by those courts due to

the either substantive (state) or jurisdictional (federal)

determinations.

Should the Court be of the opinion that the

underlying substantive issue is one which is of significance,

the dissent to the circuit court of appeal’s decision notes the

pendency of another case in that court which squarely

presents the identical substantive issue, but without the host

of complications afflicting the petitioners’ action.

Ultimately, what petitioners seek is the substantive

review of a district court decision which petitioners contend

amounts to a misapplication of a properly stated rule of law.

This case does not present any of the compelling reasons

which govern review on certiorari in this Court.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted:

Kevin O’Bryon

O’Bryon & Schnabel, PLC

1515 Poydras Street, Suite 830

New Orleans, LA 70112

(504) 799-4200

(504) 799-4211 fax

Attorney for Respondent

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