Petition for Writ of Certiorari — Steamship Mutual Underwriting Ass'n (Bermuda) v. Baris

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Court, U.S.

FILED

() 961348 FEB 241997

No.

(32:7 cee

In The

Supreme Court of the United States

October Term, 1996

THE STEAMSHIP MUTUAL UNDERWRITING

ASSOCIATION (BERMUDA) LIMITED,

Petitioner,

VS.

VICTOR C. BARIS, et al.,

Respondents.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

TED C. LITTON

Counsel of Record

ROYSTON, RAYZOR, VICKERY

& WILLIAMS, L.L.P.

Attorneys for Petitioner

2200 Texas Commerce Tower

600 Travis Street

Houston, Texas 77002-2913

(713) 224-8380

utz

aateiatins (800) 3 APPEAL + (800) 5 APPEAL - (800) BRIEF 21 L

QUESTION PRESENTED

Does a federal district judge, having dismissed a case filed

by and against foreign litigants “with prejudice” on forum non

conveniens grounds, have the jurisdiction and power to prevent

the litigants from prosecuting the identical action in a state court?

PARTIES TO THE PROCEEDINGS

Plaintiffs-Respondents:

Victor C. Baris

Sivirino Carreon

Bulig-Bulig Kita Kamaganak Association

Renato Asistorga

Pedro B. Sorima

Arnel N. Galang

Elsa Montiagodo

Erasto Maghacut

Isabel Magno

Lorita Acosta Acebedo

Violeta Sabulao Faiyaz

Julieta Benaso

Ecolastica Baldo

Jose Baguhin

individually and on behalf of a purported class of all other

persons similarly situated, including those persons identified

by plaintiffs in Exhibit A, Record Volume 5, pp. 792-928.

Caltex Defendants-Respondents:

Caltex Petroleum Corporation!

Caltex Oil Corporation

Caltex (Philippines) Inc.

1. Caltex Petroleum Corporation is fifty-percent owned by Chevron

Corporation, and fifty-percent owned by Texaco, Inc.

Caltex Services (Philippines), Inc.

Caltex Services Corporation

American Overseas Petroleum Ltd.

Caltex Oil Corporation (Delaware)

Caltex (Asia) Ltd.

California Texas Oil Corporation

Steamship Defendant-Petitioner:

The Steamship Mutual Underwriting Association (Bermuda)

Limited, a mutual insurance association of vessel owners.

Unserved Defendants Below:

Sulpicio Lines, Inc.

Caltex Philippines Petroleum Company, Inc.

Caltex International Limited

Caltex International Services Limited

Caltex Oceanic Limited

Caltex Oil Corp. (NY)

Caltex Oil Products

Caltex (Overseas) Limited

Caltex Trading and Transport Corporation

The Caltex Group

Caltraport (Far East) Company

Caltex Investment and Trading Limited

Caltex Services Corporation Limited

P T Caltex Pacific Indonesia

Vector Shipping Corporation

TABLE OF CONTENTS

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TABLE OF CITATIONS

Cases Cited:

American Dredging Co. v. Miller, 510 U.S. 443 (1994)

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Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)

cacadactnds Feneteeen thors ee 5, 6, 7, 9

Contents

Lauritzen v. Larsen, 345 U.S. 571 (1953) ..........

Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ....

Statutes Cited:

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APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Fifth Circuit Filed November 26, 1996

Appendix B — Order of the United States District Court

for the Southern District of Texas, Houston Division

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Appendix C —- Opinion of the United States Court of

Appeals for the Fifth Circuit Dated June 17, 1991 .

Appendix D — Order of the United States District Court

for the Southern District of Texas, Houston Division

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Appendix E — Order of the United States Court of

Appeals for the Fifth Circuit Filed December 9, 1992

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Appendix F — Order of the United States District Court

for the Southern District of Texas, Houston Division

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Appendix G — Opinion of the United States Court of

Appeals for the Fifth Circuit Filed January 23, 1996

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Appendix H — Order of the United States Court of

Appeals for the Fifth Circuit Filed March 14, 1996

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The Steamship Mutual Underwriting Association (Bermuda)

Limited petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth Circuit in

this case. Petitioner is aware the Caltex Defendants are also

petitioning for certiorari. Although this Petitioner agrees with

Caltex’s position, it files this separate Petition to raise additional

points as to why a Petition should be granted.

OPINIONS BELOW

1. The opinion of the equally-divided Court of Appeals for

the Fifth Circuit, sitting en banc, is annexed hereto as Appendix

A (“App. A”) and is reported at 101 F.3d 367 (Sth Cir. 1996).

2. The District Court’s first dismissal of Plaintiffs’ case on

the ground of forum non conveniens, without prejudice, is

annexed hereto as Appendix B (“App. B”) and is not reported

(S.D. Tex. 1990).

3. The opinion of the first panel of the Court of Appeals,

upholding federal jurisdiction but vacating and remanding

because the District Court had not imposed conditions

guaranteeing that Plaintiffs could fairly prosecute their case in

the Philippines, is annexed hereto as Appendix C (“App. C”)

and is reported at 932 F.2d 1540 (Sth Cir. 1991), cert. denied,

502 U.S. 963 (1991) (“Baris I’).

4. The final judgment and opinion of the District Court on

remand, again dismissing the case on the ground of forum non

conveniens but imposing conditions guaranteeing that Plaintiffs

could litigate in the Philippines and specifying that the dismissal

was “with prejudice,” is annexed hereto as Appendix D

(“App. D”) and is not reported (S.D. Tex. 1992).

5. The order of the Court of Appeals dismissing Plaintit fs’

attempted appeal as untimely is annexed hereto as Appendix E

(“App. E”) and is reported at 996 F.2d 308 (Sth Cir. 1992) (per

curiam).

6. The order and opinion of the District Court declining to

enjoin Plaintiffs from prosecuting their case in the state courts

of Louisiana is annexed hereto as Appendix F (“App. F’’) and is

not reported. (S.D. Tex. 1994).

7. The opinion of the second panel of the Court of Appeals,

affirming the District court’s denial of injunctive relief, is

annexed hereto as Appendix G (“App. G”) and is reported at 74

F.3d 567 (Sth Cir. 1996) (“Baris IT’).

8. The order of the Court of Appeals granting rehearing en

banc and vacating the second panel’s opinion in Baris II is

annexed hereto as Appendix H (“App. H”) and is not reported.

STATEMENT OF JURISDICTION

The judgment of the equally-divided Court of Appeals for

the Fifth Circuit, sitting en banc, was entered on November 26,

1996 (App. A). The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTE INVOLVED

This case involves the construction and application of the

Anti-Injunction Act, 28 U.S.C. § 2283, which provides:

A court of the United States may not grant

an injunction to stay proceedings in a State

court except as expressly authorized by Act

of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its

judgments.

STATEMENT OF THE CASE

This matter arises from a 1987 collision between two

vessels, both flagged in the Philippines and owned and operated

by Philippine corporations. This Petitioner is the mutual

insurance association in which one of those vessels, a Philippine

ferry boat, was entered.

Litigation was commenced in courts in the Philippines and,

subsequently, in a state court in Texas. The Caltex Defendants

removed that case pursuant to 28 U.S.C. § 1441(b) as one arising

under admiralty and maritime jurisdiction pursuant to 28 U.S.C.

§ 1333(1) and the Death on the High Seas Act, 46 U.S.C. § 761.

The United States District Court dismissed the case “with

prejudice” on forum non conveniens grounds as reflected in

App. B. The case was appealed, and the Fifth Circuit Court of

Appeals vacated the dismissal and remanded the case to the

district court for imposition of conditions to guarantee the

Plaintiffs the right to litigate the matter in the Philippines as

reflected in App. C.

The District Court adhered to the admonition, conditioning

its second forum non conveniens-based dismissal “with

prejudice” appropriately. Plaintiffs failed to take a timely appeal

from that order as reflected in App. E, and it became final in

December, 1992.

The Plaintiffs, meanwhile, had secretly commenced

virtually identical litigation in Louisiana. A comparison of the

Louisiana suit filed on December 19, 1988, in Orleans Parish,

with the suit filed on December 20, 1989, in Harris County,

Texas, which formed the basis for the removed Texas action,

reveals that they are identical for all practical purposes. A second

filed Texas state court suit, adding Philippine law as a basis for

recovery, was also removed and consolidated with the case while

the first case was on appeal. Well after the unsuccessful appeal

of the “with prejudice” dismissal issued by the District Court

below, the Plaintiffs commenced active prosecution of the

Louisiana state suit by serving the Caltex Defendants who, along

with this Petitioner, sought relief from the federal District Court

in Texas to prevent Plaintiffs from proceeding with prosecution

of the Louisiana action. While the District Court termed the

Plaintiffs’ actions manipulative and repugnant, it believed it was

without power to effect a different result and refused the relief

sought (App. F). An appeal of the District Court’s refusal was

effected, and the Fifth Circuit Court of Appeals also found the

procedural maneuvering to be “repugnant” and “deplorable,”

as reflected in App. G, but it upheld the iower court’s refusal to

act.

Thereafter, the Court of Appeals granted a petition for

rehearing en banc and vacated the panel’s opinion. Following

rehearing en banc, however, the sixteen-member Court was

equally divided, operating to affirm the District Court’s holding

that it was powerless to protect its prior “with prejudice”

dismissal, the holding which Petitioners now request this Court

to review.

REASONS FOR GRANTING THE WRIT

The opportunity for manipulation of the federal and state

court systems to reach a desired result, especially in the maritime

forum non conveniens arena, countenanced and encouraged by

allowing the result below to stand, will lead to an erosion of

confidence in our system of justice by foreign litigants. This

matter was dismissed “with prejudice” by a federal District

Court, yet the same case is now apparently going to proceed,

not only in the Philippines, but also in Louisiana, as if this

litigation had never occurred. How shall foreign litigants be

expected to understand such a result, especially when it has been

so strongly condemned by the very courts which have sat in

judgement on it?

It is apparent from the vacated opinion of the Fifth Circuit

Court of Appeals (App. G) that this Court’s opinions in Chick

Kam Choo v. Exxon Corp., 486 U.S. 140 (1988), and American

Dredging Co. v. Miller, 510 U.S. 443 (1994), are being read too

broadly, and the result is to allow the “repugnant” and

“manipulative” tactics used here to defeat the plain result initially

ordered by the District Court. While a cursory reading of those

cases could, and apparently did, lead to the present situation in

which Petitioner finds itself, there is nothing in either of those

cases which would render the District Court powerless to

effectuate its judgment in the circumstances of this case. The

Plaintiffs have had their say on the question of the proper forum

to decide the litigation which they have filed, litigation which

for all practical purposes was identical in Texas and Louisiana.

It should be made clear to the District Court, which has ordered

foreign litigants to pursue their remedies in their own home

country, that it has the power and means to protect and effectuate

its judgment, one ultimately rendered after briefing, decision,

appeal, re-briefing and further decision — all participated in

fully by Plaintiffs’ counsel and all directed toward determining

the appropriate forum for this case to proceed.

American Dredging did not speak to the issue of the power

of a district court to enforce its orders. Neither did it involve a

situation like this one. American Dredging involved a Jones Act

case brought by an American in an American state court. This

Court recognized that the Jones Act contained a “uniformity”

requirement which requires state courts to apply a uniform

federal law, 510 U.S. 443, 455-6. What American Dredging

simply held, therefore, was that a state court, bound by the law

to apply the federal statute in question in a manner uniform

with that in which every other state and federal court is required

to apply that law, does not violate the uniformity doctrine of

admiralty when its procedural law prevents transfer of such a

case to another state’s courts. That is manifestly not the situation

here, where foreign litigants seek to manipulate our state-federal

bifurcated judicial system to reach a decidedly non-uniform

result. Importantly, this Court limited its holding in American

Dredging to domestic situations, specifically stating so at 510

U.S. 457:

Amicus the Solicitor General has urged that

we limit our holding, that forum non

conveniens is not part of the uniform law of

admiralty, to cases involving domestic

entities. We think it unnecessary to do that.

Since the parties to this suit are domestic

entities it is impossible for our holding to be

any broader.

This distinction must be meaningful or the Court would not have

made it. It must also be made meaningful, for otherwise all such

similarly situated foreign citizen litigants will be faced with

results such as the one clearly in the path of these foreign citizen

litigants — a non-uniform result in an area where uniform results

are clearly expected and deserved.

Likewise, Choo does not preclude a district court’s granting

the injunctive relief sought here. In Choo, the initial action

dismissed by that federal District Court presented claims under

federal statutes, the general maritime law of the United States

and a Texas statute. That District Court initially dismissed the

federal statutory claims and then dismissed the case on a forum

non conveniens basis, concluding that both the statutory and

maritime law of the United States should not be applied to that

situation. Significantly, unlike the Plaintiffs here, Mrs. Choo

did not commence litigation at home. Instead, she commenced

litigation in a Texas state court, ultimately seeking relief on the

basis of Singapore law and a Texas state-law claim. Her newly

filed state case, therefore, involved claims which had not been

made in federal court. This is not our situation. The initial suits

filed in this case in Texas and Louisiana are for all practical

purposes identical, pleading for relief under “laws of the United

States, including the general maritime law, and, pursuant to the

savings to suitor’s clause, .. . as well as such other federal and

state laws as may be applicable. . . .” The Texas action added a

particular Texas civil statute, and the Louisiana petition added

only a procedural provision having to do with the class action

status of the Plaintiffs. The second filed Texas action, removed

and consolidated with the initia] Texas action, also sought relief

pursuant to the laws of the Philippines. It was all of these claims

which the District Court found should be litigated only in the

Philippines.

Unlike Choo, therefore, exactly the same claims, and then

some, were before the District Court when it made its forum

non conveniens determination as are before the Louisiana state

court. There is no new previously unconsidered claim as there

was in Choo. This, coupled with the important fact that the Choo

dismissal was not one entered on a “with prejudice” basis, makes

that case clearly distinguishable from the situation at hand.

Neither it nor American Dredging prevents the District Court’s

taking the action sought by Petitioners.

Moreover, it was clear to all the litigants what the District

Court’s “with prejudice” forum non conveniens dismissal meant.

In opposition to the Caltex Defendants’ Motion to Dismiss,

Plaintiffs vehemently argued at length to the District Court

against any dismissal “with prejudice” because of the impact

that it would have on the Louisiana suit. For example, prior to

the rendition of the Final Judgment on March 3, 1992 (App. D),

Plaintiffs represented to the District Court that “the Caltex

defendants’ effort to obtain a dismissal with prejudice is a veiled

attempt to prevent prosecution of the plaintiffs’ claims not only

in this forum, but also in the state courts.” [R. Vol. 6, p. 1127].

The Plaintiffs went to great lengths to point out to the District

Court the existence of their “protective suit in Louisiana,” and

vigorously protested a “dismissal of this case with prejudice

preventing a prosecution of this claim here in Texas, as well as

in Louisiana state court.” [R. Vol. 6, p. 1127; R. Vol. 7, pp. 19-

20). What changed in the interim? Only this Court’s issuance

of the American Dredging opinion which is clearly

distinguishable as previously noted.

Is the District Court powerless to give effect to its own order

which it-clearly believed should have put an end to the litigation

in the United States, just as the Plaintiffs themselves believed

that the dismissal would prevent pursuit of the matter in a

Louisiana state court? Doesn’t this provide a basis for allowing

the injunction sought by the Defendants herein to issue? Every

judge who has expressed an opinion on the case thus far has

found the situation repugnant and at least eight others, in all

likelihood, shared that view.

Our parallel system of federal and state courts should not

be abused and misused in this manner, especially when foreign

interests are involved. The forum non conveniens doctrine is

one which should not be susceptible to being so easily ignored

in a situation such as this which is pervasively foreign. Piper

Aircraft Co. v. Reyno, 454 U.S. 235 (1981), and Lauritzen v.

Larsen, 345 U.S. 571 (1953), are exemplary of the type of cases

which can be adversely impacted and repugnantly manipulated

if the present situation in this case is allowed to stand. Given

the fact that all concerned, even Plaintiffs’ counsel, clearly

contemplated that the matter would be terminated by the District

Judge’s “with prejudice” dismissal, and the fact that American

Dredging and Choo are clearly distinguishable, it is especially

difficult for foreign litigants to understand why the Court should

be powerless to give effect to its order. This case presents

important questions concerning a district court’s power to

effectuate its own judgment as well as with respect to the

viability of the doctrine of forum non conveniens in foreign-

based contexts and the confidence which foreign litigants will

have in our system of justice.

CONCLUSION

A writ of certiorari should be granted.

Respectfully submitted,

TED C. LITTON

Counsel of Record

ROYSTON, RAYZOR, VICKERY

& WILLIAMS, L.L.P.

Attorneys for Petitioner

2200 Texas Commerce Tower

600 Travis Street

Houston, Texas 77002-2913

(713) 224-8380

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED NOVEMBER 26, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20498

VICTOR C. BARIS, ET AL.,

Plaintiffs-Appellees,

versus

SULPICIO LINES, INC., ET AL.,

Defendants,

CALTEX PETROLEUM, INC., ET AL.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

Before POLITZ, Chief Judge, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE,

WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS,

BENAVIDES, STEWART, PARKER, and DENNIS.

* Judge Carolyn D. King is recused and did not participate in this

decision.

Appendix A

FOR THE COURT:

By virtue of an equally divided en banc court, the judgment

of the district court is AFFIRMED.

s/ Henry A. Politz

Chief Judge

TRUE COPY I CERTIFY

ATTEST: 1-10-97

MICHAEL N. MILBY, Clerk of Court

By s/ illegible

Deputy Clerk

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APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, HOUSTON DIVISION

ENTERED JUNE 15, 1990

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-90-607

VICTOR C. BARIS, ET AL.,

Plaintiffs,

VS.

SULPICIO LINES, INC., ET AL.,

Defendants.

ORDER

Pending before the Court is Plaintiffs’ Motion for New Trial,

for Reconsideration, and for Remand (instrument number 8).

Having considered the motion and response, as well as the

applicable law, the Court is of the opinion that the portion of

the motion seeking reconsideration should be granted in part

and those portions seeking new trial and remand should be

denied.

This cause was filed in state district court on December 20,

1989 allering wrongful death and survival causes of action as

a result of a collision between two ships at the Tablas Straits,

between Mindoro and Marinduque Islands in The Philippines.

The case was brought “pursuant to the laws of the United States,

including the general maritime law, and, pursuant to the saving

Appendix B

to suitors clause, 28 U.S.C. § 1333(1), as well as such other

federal and state laws as may be applicable including § 17.031

of the Texas Civil Practice & Remedies Code.” Plaintiffs’

Amended Petition, at 16.

Notice of removal to federal district court was filed on

February 21, 1990. On March 2, 1990, Defendants filed a

motion to dismiss. Plaintiffs did not respond to either the notice

of removal or the motion to dismiss. On April 10, 1990, this

Court entered an order dismissing this cause for improper venue

pursuant to F. R. Civ. P. 12(b)(3). Plaintiffs contend that this

dismissal order is void for lack of subject matter jurisdiction.

Plaintiffs argue that the facts herein do not give rise to a basis

for proper removal due to a lack of a federal question, and this

Court is therefore without subject matter jurisdiction; if the Court

is without subject matter jurisdiction, then all orders are void

and the case must be remanded.

Defendants contend that the case was properly removed due

to the presence of a federal question in the wrongful death cause

of action. Defendants correctly argue that the wrongful death

cause of action is governed by the Death on the High Seas by

Wrongful Act (“DOSHA”), 46 U.S.C. § 762 et seq. It is clear

that concurrent jurisdiction is preserved in DOSHA, but state

wrongful death statutes are preempted by DOSHA where an

accident occurs on the high seas. Offshore Logistics, Inc. v.

Tallentire, 477 U.S. 207, 232 (1986). Furthermore, the DOSHA

is the exclusive remedy for a wrongful death on the high seas.

Id. ADOHSA claim may properly be brought in state court even

though DOSHA is the exclusive remedy for a wrongful death

on the high seas. Filho v. Pozos Intern. Drilling Services, Inc.,

662 F. Supp. 94, 98 n.4 (S.D. Tex. 1987) (citing, Offshore

Logistics, 477 U.S. at 221). Where there is concurrent

Appendix B

jurisdiction, the claim may be removed where some basis for

federal jurisdiction, other than admiralty, exists. Poirrier v.

Nicklos Drilling Co., 648 F.2d 1063, 1066 (Sth Cir. 1981).

Once a wrongful death case has been brought in state court,

however, it is not removable because DOSHA grants only

admiralty jurisdiction. Filho, 662 F. Supp. at 98.

It is the conclusion of this Court that the DOSHA cause

was improperly removed. Improper removal, however, does

not necessarily mean that the case should be remanded. If a

case has been improperly removed, the federal court has subject

matter jurisdiction if the case could have originally been filed

in federal court. Lirette v. N. L. Sperry Sun, Inc., 820 F.2d 116

(Sth Cir. 1987).

A general maritime law survival action is permitted to

supplement a DOSHA claim. Graham v. Milky Way Barge, Inc.,

824 F.2d 376, 387 (Sth Cir. 1987) (citing Azzopardi v. Ocean

Drilling & Exploration Co., 742 F.2d 890, 894 (Sth Cir. 1984)).

Where a survival claim is brought under general maritime law,

then it is an in personam action and the saving to suitors clause

permits it to be brought in state court. Azzopardi, 742 F.2d at

894. Where a plaintiff has chosen to bring a maritime cause of

action in state court, removal is not proper and the federal court

must remand such cause, in the absence of any substantial

independent federal question or diversity of citizenship, in

accordance with the saving to suitors clause. See Holcomb v.

Era Helicopters, Inc., 618 F. Supp. 339, 344 (D.C. La. 1985).

Even though the general maritime claim in the instant case could

not be removed, it is removable under the doctrine of pendent

jurisdiction because it is joined with the DOSHA claim. See

Romero v. International Terminal Operating Co., 358 U.S. 351,

380-81 (1959).

Appendix B

Even though the DOSHA claim should not have been

removed, the dismissal order is not void for lack of subject matter

jurisdiction, because the claim pursuant to DOSHA could have

originally been brought in federal court. The current motion to

remand should therefore be denied.

Plaintiffs request that this Court set aside the dismissal order

because no serious misconduct or prejudice to the Defendants

exists. The Court concludes that the conduct of Plaintiffs’ counsel

did not reach the level of “mistake, inadvertence, surprise or

excusable neglect” as required by F. R. Civ. P. 60(b).

Furthermore, it was not this conduct that brought about the

dismissal of the cause.

Upon further reconsideration of the order of dismissal, this

Court concludes that the Motion to Dismiss should have been

granted based on forum non conveniens, and not based on F. R.

Civ. P. 12(b)(3). Even though improper venue cannot be attacked

on removal, defendant may still attack the federal court venue

as inconvenient under forum non conveniens. Hartford Fire Ins.

Co. v. Westinghouse Electric Corp., 725 F. Supp. 317, 320 (S.D.

Miss. 1989).

It is therefore ORDERED that the motion for new trial and

for remand be denied.

It is further ORDERED that the Court’s order entered on

April 10, 1990 be amended to reflect that dismissal of the cause

should be for forum non conveniens.

SIGNED this 13 day of June, 1990.

s/ Kenneth M. Hoyt

KENNETH M. HOYT

United States District Judge

APPENDIX C — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DATED JUNE 17, 1991

Victor C. BARIS, et al.,

Plaintiffs-Appellants,

Vv.

SULPICIO LINES, INC., et

al., Defendants,

Caltex Petroleum, Inc., Caltex Petroleum

Corporation, and Caltex Oil

Corporation, Defendants-Appellees.

No. 90-2646.

United States Court of Appeals,

Fifth Circuit.

June 17, 1991.

Appeal from the United States District Court for the

Southern District of Texas.

Before THORNBERRY, JOLLY, and SMITH, Circuit

Judges.

JERRY E. SMITH, Circuit Judge:

This appeal raises issues regarding federal court jurisdiction

over a removed case and the doctrine of forum non conveniens.

The district court concluded that it had jurisdiction, then

dismissed pursuant to the doctrine of forum non conveniens.

We conclude that, while the court had jurisdiction over this

Appendix C

removed action, its analysis of the forum non conveniens issue

was deficient. Accordingly, we vacate and remand.

On December 20, 1987, approximately 5,000 citizens of

the Philippines lost their lives in the collision of the M/V DONA

PAZ and the M/T VECTOR in the Tablas Strait between Mindoro

and Marinduque Islands in the Philippines. Defendants Caltex

Petroleum, Inc., Caltex Petroleum Corporation, and Caltex Oil

Corporation (the “defendants”), corporations with their principal

place of business in Texas, were the charterers of the M/T

VECTOR. The plaintiffs, representing four survivors and a large

number of decedents, brought suit individually and as a class

action (not yet certified) to recover compensation for the injuries

and deaths.

II.

The suit was filed in state district court “pursuant to the

laws of the United States, including the general maritime law,

and, pursuant to the savings [sic] to suitor’s [sic] clause, 28

U.S.C. § 1333(1), as well as such other federal and state laws as

may be applicable including § 17.031 of the Texas Civil Practice

and Remedies Code.” On February 21, 1990, the defendants

removed the matter to federal district court, asserting a right of

removal under 28 U.S.C. § 1441(b) and claiming that the suit

arises “under the admiralty and maritime jurisdiction of the

(federal) court pursuant to 28 U.S.C. § 1333(1) and the Death

on the High Seas Act [DOHSA], 46 U.S.C. § 761.”

The defendants then answered and moved to dismiss on the

basis of, among other grounds, forum non conveniens. For

Appendix C

various reasons that, according to the plaintiffs, are not relevant

to this appeal, the plaintiffs failed to respond to the motion to

dismiss. On April 10, 1990, the district court dismissed the case,

deeming the motion unopposed and basing dismissal upon

Fed.R.Civ.P. 12(b)(3) — improper venue.

On April 16, 1990, the plaintiffs moved for new trial,

reconsideration, and remand. They asserted that the district court

had no subject matter jurisdiction because the case had been

improperly removed, that dismissal cannot be based solely upon

a failure to respond, and that venue was proper. The plaintiffs

also asked the court to set aside its dismissal order as a matter

of law or equity and to remand to state court.

The defendants responded, not by supporting improper

venue as a ground of dismissal, but by requesting the court to

change the basis of its dismissal to forum non conveniens.

Without affording plaintiffs an opportunity to reply, the court

on June 15, 1990, entered its final order, declaring that the

DOHSA and general maritime claims had been improperly

removed; that the plaintiffs’ failure timely to respond to the

motion to dismiss was not the basis for the dismissal; that

improper venue is not a proper ground for dismissal in a removed

case; and that the court had subject matter jurisdiction, despite

the improper removal, since the case could have been filed

originally in federal court. The court amended its order of April

10 to reflect forum non conveniens, rather than improper venue,

as the reason for dismissal. The plaintiffs appeal from the order

of June 15.

10a

Appendix C

Il. ee

We must determine, initially, whether the federal district

court had jurisdiction over this removed action. If it did not have

jurisdiction at the time it ruled on the question of forum non

conveniens, we may not consider that issue and must direct the

district court to remand the entire proceeding to state court.

The plaintiffs assert, and the district court held in its order

of June 15, that the matter was improperly removed. There is

authority for that conclusion although, as we explain infra, we

need not decide that specific issue.

This action was filed in state court pursuant to the so-called

“saving to suitors” clause of section 1333(1).' That provision

has been construed to permit admiralty and maritime actions,

otherwise exclusively within the jurisdiction of the federal district

courts, to be brought in state court as well. 1 S. Friedell, Benedict

on Admiralty § 122 (6th ed. 1991).

In the instant case there is no diversity of citizenship. In

Alleman v. Bunge Corp., 756 F.2d 344, 345-46 (Sth Cir.1984),

we observed that where plaintiffs have exercised their “historic

option” (quoting Romero v. International Terminal Operating

Co., 358 U.S. 354, 371, 79 S.Ct. 468, 479, 3 L.Ed.2d 368 (1959)),

to bring an action in state court under the saving to suitors clause,

the matter cannot be removed in the absence of diversity.

Although there had been some doubt as to whether DOHSA

claims may be brought exclusively in the federal courts, the

1. Section 1333(1) provides that “[t}he district courts shall have original

jurisdiction, exclusive of the courts of the States, of ... [aJny civil case of

admiralty or maritime jurisdiction, saving to suitors in all cases all other

remedies to which they are otherwise entitled.”

lla

Appendix C

Supreme Court recently has stated that DOHSA jurisdiction is

concurrent, i.e., that a DOHSA action can be brought in either

state or federal court. See Offshore Logistics, Inc. v. Tallentire,

477 U.S. 207, 225, 106 S.Ct. 2485, 2495-96, 91 L.Ed.2d 174

(1986).?

Thus, we treat this action as one properly brought in state

court under DOHSA. If it is removable, the non-preempted

survival claims and any general maritime injury claims are

removable pursuant to the federal district court’s pendent

jurisdiction. Romero, 358 U.S. at 380-81, 79 S.Ct. at 484-85;

Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (Sth Cir. 1988).

As we have stated, however, we need not decide whether the

cause was removable, as the plaintiffs, in any event, have waived

their right to seek a remand.*

2. The Court held that DOHSA preempts state wrongful death statutes.

477 U.S. at 223, 106 S.Ct. at 2494. Subsequently, we have held that survival

actions under general maritime law are not preempted by DOHSA. See

Graham v. Milky Way Barge, Inc., 824 F.2d 376, 386-87 (Sth Cir.1987) (on

petition for rehearing).

3. In support of their assertion that absent diversity, a DOHSA claim

cannot be removed under the general federal question jurisdiction of 28

U.S.C. § 1331, the plaintiffs refer us to a scholarly opinion by Judge Hittner

in Filho v. Pozos Int'l Drilling Servs., Inc., 662 F.Supp. 94 (S.D. Tex.1987).

There, the court squarely held that “a claim pursuant to DOHSA fails to

invoke federal question jurisdiction.” Jd. at 100.

Resourcefully, the plaintiffs also refer us to a treatise by, inter alia,

one of defendants’ counsel asserting that “removal of a saving clause case

probably should not be permitted when there is no diversity of citizenship

between the litigants and removal is sought solely because jurisdiction would

have existed under Section 1333 if the case had been brought in the federal

courts originally as an admiralty matter....” 14 C. Wright, A. Miller & E.

(Cont'd)

12a

Appendix C

IV.

Even if this matter was improperly removed, the plaintiffs

waived the opportunity to challenge the removal. That is because

plaintiffs’ motion for remand was untimely under 28 U.S.C.

§ 1447(c).* The plaintiffs do not dispute that they failed, as

required by section 1447(c), to file a motion to remand within

thirty days after defendants filed their notice of removal. Hence,

after the expiration of the thirty-day period set forth in § 1447(c),

the district court properly retained jurisdiction, assuming that

this is an action that originally could have been brought in federal

court, an issue we examine in the next section.

In their opening and reply briefs on appeal, the plaintiffs

devote only one paragraph (in the reply brief) to the issue of

waiver. They point out that that section applies only to motions

to remand based upon “any defect in removal procedure.” They

aver that they never have contended that there were any

procedural defects in the removal in this case but that their

objection was based solely upon a claimed lack of subject matter

jurisdiction.

(Cont'd)

Cooper, Federal Practice & Procedure § 3674, at 466 (2d ed. 1985) (emphasis

in original). The defendants argue, however, that under Jallentire, 477 U.S.

at 222-29, 106 S.Ct. at 2494-98, DOHSA actions are not saving-to-suitors

cases at all but that, instead, it is § 7 of DOHSA, 46 U.S.C. § 767, that

confers concurrent state and federal jurisdiction over DOHSA cases.

4. Section 1447(c) provides in relevant part that “[a] motion to remand

the case on the basis of any defect in removal procedure must be made within

30 days after the filing of the notice of removal under [28 U.S.C.] § 1446(a).

If at any time before final judgment it appears that the district court lacks

subject matter jurisdiction, the case shall be remanded.”

13a

Appendix C

The plaintiffs have confused improper removal (i.e., lack

of removal jurisdiction) with lack of original subject matter

jurisdiction. The former is waivable, see Grubbs v. General Elec.

Credit Corp., 405 U.S. 699, 703, 92 S.Ct. 1344, 1348, 31 L.Ed.2d

612 (1972); Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117

(Sth Cir. 1987) (en banc); the latter is not, see Hensgens v. Deere

& Co., 833 F.2d 1179, 1180 (Sth Cir. 1987); Giannakos v. M/V

Bravo Trader, 762 F.2d 1295, 1297 (Sth Cir. 1985) (per curiam).

In this regard, section 1447(c) mentions original subject

matter jurisdiction, rather than removal jurisdiction, in providing

that “[i]f at any time before final judgment it appears that the

district court lacks subject matter jurisdiction, the case shall be

remanded.” That phrase “refers to want of federal subject matter

jurisdiction.” 1A J. Moore & B. Ringle, Moore's Federal Practice

{ 0.169[1] at 675 (2d ed. 1990). When Congress has intended to

refer to removal jurisdiction, it has distinguished that concept

from the doctrine of original subject matter jurisdiction. See,

e.g., 45 U.S.C. § 822(e) (“original and removal jurisdiction”).

Moreover, this court has had little difficulty in distinguishing

between removal jurisdiction, on the one hand, and original or

subject matter jurisdiction, on the other hand.°

More to the point, the plaintiffs misconstrue what is meant

in section 1447(c) by the term “procedural defect.” As used in

that section, a “procedural” defect is any defect that does not go

to the question of whether the case originally could have been

brought in federal district court:

5. See, e.g., Nolan v. Boeing Co., 919 F.2d 1058, 1061 (Sth Cir.1990);

Ziegler v. Champion Mortgage Co., 913 F.2d 228, 230 (Sth Cir.1990);

Carrollton-Farmers Branch Indep. School Dist. v. Johnson & Cravens, 13911,

Inc., 889 F.2d 571, 572 (Sth Cir. 1989) (per curiam) (on petition for rehearing).

Accord 1A J. Moore & B. Ringle, supra, { 0.157[11.—4] at 174 (“original

and removal jurisdiction”).

l4a

Appendix C

The motion to remand must be made within

30 days after removal, if the objections are

of a character that can be waived, such as

formal and modal matters pertaining to the

procedure for removal or the non-

removability of a proceeding otherwise within

federal jurisdiction.

1A J. Moore & B. Ringle { 0.168[4.—1] at 644 (footnotes

omitted, emphasis added). Professor Moore thus notes that

section 1447(c) concerns “the following situations that may arise

in a removed suit: the action is of a nonremovable character; or

although within removal jurisdiction, defendant has not pursued

the proper procedure in removing the suit.” Jd. ¢ 0.157[11.—1]

at 166 (emphasis added). The former type of defect is the one at

issue here, as we assume arguendo that the instant DOHSA claim

is non-removable.

There are at least three cognizable combinations of state/

federal jurisdictional defects in the context of a removed

proceeding: (1) where the state court has jurisdiction but the

federal court lacks original and removal jurisdiction; (2) where

both state and federal courts have original jurisdiction but there

is no federal removal jurisdiction; and (3) where both state and

federal courts lack jurisdiction. Jd. | 0.169[1] at 676. Assuming

improper removal, the instant case falls into the second category:

In the second category, where the state

court has jurisdiction of the action, the federal

court has original jurisdiction of such an

action, but removal! of the suit at bar is not

warranted, . . . the objection to the action

proceeding in the federal court is a modal

15a

Appendix C

and formal one. If timely taken, the action

should be remanded; otherwise, the objection

is waived, and the removed action may

proceed.

Id. at 678 (footnotes omitted, emphasis added).

Thus, in summary, “an irregularity in removal is waivable

and, if waived, a federal court has power to proceed with a

removed case that is within its original jurisdiction but is not

one subject to removal. . . .” Jd. {0.157 [11.—4] at 173. “[WJhere

the case is actually . . . within the scope of original jurisdiction

..., all matters concerning the removal of the case to the federal

court are capable of waiver. . . .” Id. at 175-76. Hence, the word

“procedural” in section 1447(c) refers to any defect that does

not involve the inability of the federal district court to entertain

the suit as a matter of its original subject matter jurisdiction.

“Removal proceedings are in the nature of process to bring

the parties before the United States court.” Mackay v. Uinta Dev.

Co., 229 U.S. 173, 176, 33 S.Ct. 638, 639, 57 L.Ed. 1138 (1913).

In Mackay, a matter was removed from state court, despite the

fact that while the counterclaim exceeded the jurisdictional

amount, the plaintiff’s claim did not; consequently, the matter

was not within the removal jurisdiction of the federal district

court and thus was “irregularly removed.” Jd. Nonetheless, the

Court held that as neither party had objected to removal, the

district court had subject matter jurisdiction and could entertain

the cause, as the counterclaim could have been brought as an

original action in federal court in satisfaction of the jurisdictional-

amount requirement. The “irregularity was waivable and neither

it nor the method of getting the parties before the court operated

to deprive it of the power to determine the cause.” Jd. at 177, 33

S.Ct. at 639.

16a

Appendix C

For present purposes, the absence of removal jurisdiction

in Mackay because of an insufficient amount in controversy is

no different from the assumed nonremovability of a DOHSA

claim. In both cases, the want of removal jurisdiction is for a

reason that normally would be considered “substantive”: in

Mackay, an insufficient amount in controversy®; here, the

nonremovability of a claim brought pursuant to a particular

substantive statute. Also in each, the federal district court would

have had original jurisdiction if the action had been filed there

in the first instance.

The result here is the same as in Mackay, that is, that

“removal proceedings are in the nature of process.” 1A J. Moore

& B. Ringle, supra, J 0.157[11.—3] (2d ed. Supp.1990). Since

‘removal proceedings are in the nature of process to bring the

parties before the [district] court,” Mackay, 229 U.S. at 176, 33

S.Ct. at 639, it is a waivable defect that a cause is brought to

that court by means of removal rather than by an original

complaint. In either event, all that is involved is the process by

which the court receives the action, not the subject matter of the

claim itself. Thus, when section 1447(c) speaks of “any defect

in removal procedure,” it includes within its reach the bringing

of an action not within the court’s removal jurisdiction but that

could have been brought originally in that court.

We so treated the issue of waiver in Petty v. Ideco, Div. of

Dresser Indus., Inc., 761 F.2d 1146 (Sth Cir.1985). There,

removal jurisdiction was wanting under 28 U.S.C. § 1441(b), as

the defendant was a citizen of the forum state. We held that, as

the plaintiff made no timely objection to removal and the cause

6. “[A] jurisdictional amount requirement goes to subject matter

jurisdiction and lack of it cannot be waived... .” 1A J. Moore & B. Ringle,

supra, ¥ 0.157 [11.—4] at 174.

17a

Appendix C

could have been brought originally in the federal district court,

the plaintiff waived any objection to removal. 761 F.2d at 1148

n. 1. In Petty, as arguably here, the matter came to the federal

district court by means of a flawed process (i.e., by removal

rather than by original petition). As in Petty, that procedural

deficiency was waived. The result in both cases is that the district

court had jurisdiction to entertain the action.’

In a very recent case construing section 1447(c), we have

defined “any defect in removal procedure” as “all non-

jurisdictional defects existing at the time of removal.” In re Shell

Oil Co. (“Shell I”), 932 F.2d 1518, 1521 (Sth Cir.1991). Thus,

we held in Shell J that by not moving to remand within thirty

days, the plaintiffs waived a removal defect existing under 28

U.S.C. § 1441(b), to-wit, that two of the defendants were

residents of the forum state. In a companion case, we now have

held that “[a]s amended, § 1447(c) requires that motions for

remand must be made within 30 days of removal, except in cases

in which the court lacks subject matter jurisdiction.” In re Shell

Oil Co. (“Shell II”), 932 F.2d 1523, 1527 n. 6 (Sth Cir.1991)

7. The plaintiffs argue, at length, the inapplicability of Grubbs v. Gen.

Elec. Credit Corp., which states that “where after removal a case is tried on

the merits without objection and the federal court enters judgment, the issue

... iS not whether the case was properly removed, but whether the federal

district court would have had original jurisdiction of the case had it been

filed in that court.” 405 U.S. at 702, 92 S.Ct. at 1347. We need not decide

whether the rationale of Grubbs applies to the instant case because, in any

event, the 30-day limit was added to § 1447(c) in 1988 and thus supersedes

Grubbs in any case in which the plaintiff has not sought remand within the

new time limit. See Judicial Improvements & Access to Justice Act, Pub.L.

No. 100-702, § 1016(c)(1), 1988 U.S.Code Cong. & Admin.News (100 Stat.)

4642, 4670. “Prior to the 1988 amendment to § 1447(c), there was no fixed

time limit within which the plaintiff was required to move for a remand.” 1A

J. Moore & B. Ringle, supra, | 0.157[11.—5] at 180.

18a

Appendix C

(emphasis added). Hence, in the instant case, as shown by the

reasoning of Shell J and Shell IJ, original subject matter

jurisdiction is not waivable, but all other defects, including

defects in removal jurisdiction, are fully subject to waiver under

section 1447(c).®

The foregoing discussion assumes that the instant cause

8. We note that the court in Shell J, at 1522 thoroughly examined the

legislative record regarding the 1988 amendments to § 1447(c) and observed

that the relevant congressional report explained that remand must be sought

within 30 days “on any ground other than lack of subject matter jurisdiction.”

H.R.Rep. No. 889, 100th Cong., 2d Sess. 72 (“House Report”), reprinted in

1988 U.S.Code Cong. & Admin.News 5982, 6033. The House Report also

explains,

So long as the defect in removal procedure does not

involve a lack of federal subject matter jurisdiction,

there is no reason why either State or Federa! courts,

or the parties should be subject to the burdens of

shuttling a case between two courts that each have

subject matter jurisdiction. There is aiso some risk

that a party who is aware of a defect in removal

procedure may hold the defect in reserve as a means

of forum shopping if the litigation should take an

unfavorable turn.... The amendment is written in

terms of a defect in ‘removal procedure’ in order to

avoid any implication that remand is unavailable after

disposition of all federal questions leaves only State

law questions that might be decided as a matter of

ancillary or pendant jurisdiction or that instead might

be remanded.

House Report at 72, 1988 U.S.Code Cong. & Admin.News at 6033.

19a

Appendix C

could have been brought originally in federal district court. We

now easily conclude that it could.

In their principal brief, the plaintiffs never assert that this

matter could not have been filed in federal court. They seem to

assume that it could have been, and they concentrate their

attention on the assertion that this DOHSA claim was not subject

to removal. Buried in a short footnote in the plaintiffs’ reply

brief there finally appears the contention that “[b]ased upon the

plaintiffs’ pleading, this was not a case which ‘could have’ been

filed in federal court.”

It is beyond doubt that although the parties can waive defects

in removal, they cannot waive the requirement of original subject

matter jurisdiction — in other words, they cannot confer

jurisdiction where Congress has not granted it. “Since the district

court had no original jurisdiction over this case .. . , a finding

that removal was improper deprives that court of subject matter

jurisdiction and obliges a remand under the terms of § 1447(c).”

International Primate Protection League v. Administrators of

Tulane Educ. Fund, 1991 WL 79118 at p. *9, 1991 U.S. LEXIS

2781 at *28 (U.S. May 20, 1991). Accord Hensgens, 833 F.2d at

1180; Giannakos, 762 F.2d at 1297. Thus, once the plaintiff has

waived the right to contest removal, “[t}he jurisdictional issue

on appeal becomes whether the federal district court would have

had jurisdiction over the case had it originally been filed in

federal court.” Kidd v. Southwest Airlines Co., 891 F.2d 540,

546 (Sth Cir. 1990).

9. Customarily we decline even to consider arguments raised for the

first time in a reply brief. E.g., Najarro v. First Fed. Sav. & Loan, 918 F.2d

513, 516 (Sth Cir.1990); United States v. Clinical Leasing Serv., Inc., 930

F.2d 394, 395 n. 1 (Sth Cir.1991) (on petition for rehearing); Peteet v. Dow

Chem. Co., 868 F.2d 1428, 1437 (Sth Cir. 1989) (citing cases); United States

v. Prince, 868 F.2d 1379, 1386 (Sth Cir.1989).

20a

Appendix C

There is no doubt that a DOHSA claim can be brought as

an original matter in federal district court. Tallentire settled this

question by holding that jurisdiction was concurrent but in no

way questioned the capacity of a federal district court to entertain

a DOHSA claim filed there originally. When brought as an

original suit in federal court, a DOHSA claim is, as the plaintiffs

note, “within the admiralty jurisdiction.” Accord T. Schoenbaum,

Admiralty & Maritime Law § 7-2, at 238 (1987). This is the

admiralty jurisdiction conferred by section 1333.

There are special procedures for invoking the admiralty

jurisdiction of a federal district court. They are explained

helpfully in two cases cited to us by the plaintiffs, Bodden v.

Osgood, 879 F.2d 184 (Sth Cir.1989), and Alleman. The specific

procedures are imposed by Fed.R.Civ.P. 9(h)."°

That rule requires that in order to invoke a federal court’s

admiralty jurisdiction where there exists an additional ground

for federal jurisdiction, the plaintiff must identify the claim as

one in admiralty to make it plain that he wishes to invoke that

jurisdictional basis rather than some other. Thus, in Bodden,

10. Rule 9(h) reads in relevant part as follows:

Admiralty and Maritime Claims. A pleading or

count setting forth a claim for relief within the

admiralty and maritime jurisdiction that is also within

the jurisdiction of the district court on some other

ground may contain a statement identifying the claim

as an admiralty or maritime claim for the purposes of

Rules 14(c), 38(e), 82, and the Supplemental Rules

for Certain Admiralty and Maritime Claims. If the

claim is cognizable only in admiralty, it is an

admiralty or maritime claim for those purposes

whether so identified or not.

21a

Appendix C

where there was diversity of citizenship and the plaintiff had

given conflicting signals as to whether he wished to proceed in

admiralty, we concluded that the cause must proceed as an action

at law in diversity. 879 F.2d at 186. In Alleman, as in Bodden,

the defendants removed on the basis of diversity. We held that

as the plaintiffs had done nothing affirmative to invoke admiralty

jurisdiction, the action was properly in federal court only on the

basis of diversity jurisdiction and not admiralty. 756 F.2d at

345-46.

The instant plaintiffs can take no comfort in Bodden or

Alleman, however, as these cases are readily distinguishable from

the matter before us. Citing only these two cases, the plaintiffs

argue that “[t]he only way that this case ‘could have’ been filed

in federal court, is if the plaintiffs had not invoked the ‘saving to

suitors’ clause and if the plaintiffs had invoked admiralty

jurisdiction under Fed.R.Civ.P. 9(h).” (Emphasis in original.)

What the plaintiffs overlook, however, is that by the plain

language of rule 9(h) they, having waived any objection to

removal, are deemed to have invoked the district court’s

admiralty jurisdiction. That is because here, unlike the

circumstance in Bodden or Alleman, there is no alternative basis

of original federal jurisdiction (such as diversity). Thus, there

can be no confusion as to whether the plaintiffs desired “to

prosecute their action in a common law court,” Alleman, id. at

345, i.e., on some jurisdictional basis other than admiralty.

We so conclude because in federal court (and absent

diversity of citizenship), a DOHSA claim can be brought only

on the admiralty “side” of the docket. See generally 2 S. Friedell,

J. Geraghty, D. Williams & E. Flynn, Benedict on Admiralty

§ 81b at 7-6 through 7-12 (6th ed. 1990). The plaintiffs observe

that “a DOHSA claim is within the admiralty jurisdiction of

22a

Appendix C

federal courts and does not fall within federal question

jurisdiction” and that “(t]he statute itself [46 U.S.C. § 761]

provides that DOHSA suits may be maintained ‘in the district

courts of the United States, in admiralty....’” (Plaintiffs’

emphasis.)

Rule 9(h) patently provides that “[i]f the claim is cognizable

only in admiralty, it is an admiralty or maritime claim for those

purposes whether so identified or not.” By its very terms, then,

the “identifying statement” requirement of rule 9(h) applies only

to a claim “that is also within the jurisdiction of the district court

on some other ground” than admiralty. “/UJnless the claim is

cognizable only in admiralty, the special practice features for

admiralty claims are not applicable.” Bodden, 879 F.2d at 186

(emphasis added).

As a consequence, these plaintiffs, having waived any

objection to removal, are relegated to the admiralty jurisdiction

of the federal district court, as that is the only jurisdictional basis

for a DOHSA claim in federal court, absent diversity or some

other jurisdictional basis. To be sure, that is not the forum that

these plaintiffs have chosen, but such is the grist of the waiver

mill.

In summary, this is an action that the plaintiffs could have

brought in federal court, in admiralty. No special averment under

rule 9(h) would have been required because, as a DOHSA claim,

the action could have been brought only in admiralty, there being

no diversity. The point is that had the plaintiffs so chosen, the

federal district court would have had original subject matter

jurisdiction over the claim. That is why, once any objection to

removal was waived, the district court was able to retain

jurisdiction.

23a

Appendix C

The plaintiffs answer that not only did they fail to invoke

admiralty jurisdiction under rule 9(h), but they also affirmatively

invoked state court jurisdiction by means of the saving to suitors

clause. It is certainly true that the plaintiffs had the option, which

they exercised, to file in state court. It is no different from the

option of many plaintiffs, in and out of the admiralty/maritime

context, to select a forum. But that selection, as always, is subject

to any right of a defendant to remove and to the possibility that

the plaintiff may waive his right to the forum of his choice. And

any such waiver carries with it the waiver of any rights or

procedures peculiar to state court, such as, inter alia, the right

to a jury or to special time limits or discovery procedures under

State law and state procedural rules."

11. In a post-argument brief filed by leave of court, the plaintiffs

contend for the first time that the defendants never raised the issue of waiver

in the district court and hence cannot urge waiver for the first time on appeal.

The defendants respond that they did raise waiver in their Opposition to

plaintiffs’ motion for new trial, reconsideration, and remand. They also note

that recently in Masinter v. Tenneco Oil Co., 867 F.2d 892 (Sth Cir.1989),

the defendant asserted a new defensive theory shortly before oral argument.

We held that “[wJhen the judgment of the district court is correct, it may be

affirmed on appeal for reasons other than those asserted or relied on below.”

Id. at 896 (citing Terrell v. University of Tex. Sys. Police, 792 F.2d 1360,

1362 n. 3 (Sth Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93

L.Ed.2d 997 (1987)).

We also observe that the plaintiffs appear to have waited too long to

assert that defendants cannot now raise the waiver issue. “In the absence of

manifest injustice, this court will not consider arguments belatedly raised

after appellees have filed their brief.” Najarro v. First Fed. Savs. & Loan,

918 F.2d at 516. In Najarro, the “belated” argument appeared for the first

time in appellants’ reply brief; here, it is raised for the first time after oral

argument. In a manner of speaking, plaintiffs have waived the right to argue

that defendants have waived their waiver argument. See supra note 9.

24a

Appendix C

In their final effort to establish that this claim could not

have been brought originally in federal district court, the

plaintiffs call our attention to Armstrong v. Alabama Power Co.,

667 F.2d 1385 (11th Cir. 1982) (Thornberry, J., sitting by

designation). In Armstrong, a maritime wrongful death action

was brought in state court under the saving to suitors clause. A

third party complaint against the United States was brought under

the Suits in Admiralty Act, 46 U.S.C. § 741 et seg. (1975), which

provided for exclusive jurisdiction in federal court. Instead of

moving to dismiss, the United States removed to federal court.

The Eleventh Circuit affirmed the district court’s remand to

state court, which was based upon the doctrine of derivative

removal jurisdiction. That doctrine, since abolished by the

addition of 28 U.S.C. § 1441(e) in 1986," provided that a federal

court cannot obtain, through removal, jurisdiction over a claim

as to which the state court had no jurisdiction. In Armstrong the

state court had no jurisdiction over the Suits in Admiralty Act

claim; thus, the federal court could not inherit that action by

removal.

Here, by way of contrast, the plaintiffs fervently and

accurately aver that the state court had jurisdiction over their

claim. Even if section 1441(e) had not been enacted, the rationale

of Armstrong would not apply to the instant case.

In summary, the district court properly had jurisdiction over

12. See Judicial Improvements Act of 1985, Pub.L. No. 99-336 § 3(a),

1986 U.S.Code Cong. & Admin.News (100 Stat.) 633, 637. Section 1441(e)

provides that “[t}he court to which such civil action is removed is not

precluded from hearing and determining any claim in such civil action

because the State court from which such civil action is removed did not

have jurisdiction over that claim.”

25a

Appendix C

the instant cause, once the right to contest removal was waived

by the failure to raise that issue within thirty days under section

1447(c). The district court thus had jurisdiction to consider the

question of forum non conveniens. We address that issue now.

VI.

Plaintiffs argue that the district court failed to apply the

required analytical rubric in reaching its forum non conveniens

determination. We have observed the need for such a

methodology: “While we recognize that the decision to grant or

deny a motion to dismiss for forum non conveniens is within the

discretion of the district court, it should be an exercise in

structured discretion founded on a procedural framework guiding

the district court’s decisionmaking process.” Jn re Air Crash

Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (Sth Cir.

1987) (en banc) (citations omitted), vacated on other grounds

sub nom. Pan Am. World Airways, Inc. v. Lopez, 490 U.S. 1032,

109 S.Ct. 1928, 104 L.Ed.2d 400 (mem.), opinion reinstated on

other grounds, 883 F.2d 17 (Sth Cir. 1989) (en banc). In this

case, plaintiffs specifically contend that the district court failed

(1) to determine whether a foreign forum was available and

adequate; (2) to balance public and private interest factors; (3)

to impose appropriate conditions on the dismissal; and (4) to

provide a meaningful framework for appellate review.

We agree with the plaintiffs’ contentions. The district court

incorrectly transformed its previous dismissal, based upon

“improper venue,” into a dismissal based upon forum non

conveniens, without further comment. The court, however, did

address in its previous “improper venue” dismissal order some

of the factors upon which it relied in its later forum non

conveniens determination.

26a

Appendix C

The court considered the defendants’ motion to dismiss to

be unopposed and apparently based its decision upon the factual

allegations contained in the complaint and the motion to dismiss.

Together these documents demonstrate (1) that the plaintiffs are

citizens of the Philippines; (2) that the collision occurred in the

Philippines; (3) that the vessels that collided operated in the

waters of the Philippines; (4) that the defendants are foreign

corporations with their principal place of business in Texas; and

(5) that there are similar suits arising out of the same accident

presently pending in the Philippines.”

Nevertheless, the plaintiffs coniplain that even though the

defendants had the burden of persuasion on this issue, see Air

Crash, id., they presented no affidavits and provided only

unsworn allegations. The plaintiffs also insist that while there

may have been other claims pending against the defendants in

the Philippines, this fact alone is not determinative of the

availability or adequacy of a foreign forum. The defendants argue

that this indeed was enough, and, citing Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 253-54, 102 S.Ct. 252, 264-65, 70 L.Ed.2d

419 (1981), maintain that it was not necessary to show that the

remedies available in the Philippines are similar to those in the

United States. Their argument, however, is unpersausive.

The plaintiffs are correct in their assertion that the

defendants have failed to show that a foreign forum was available

and adequate. Such “[a] foreign forum is available when the

entire case and all parties can come within the jurisdiction of

that forum.” Air Crash, 821 F.2d at 1165 (citing Syndicate 420

at Lloyd’s London v. Early Am. Ins. Co., 796 F.2d 821, 830 (Sth

13. Apparently, the federal district courts have entertained at least one

suit against Caltex regarding this collision. See Carreon v. Caltex Philippines,

No. 90-0931, 1990 WL 142029 (E.D.La. Sept. 25, 1990).

ee RRR ee em

27a

Appendix C

Cir.1986)). And “[a] foreign forum is adequate when the parties

will not be deprived of all remedies or treated unfairly, even

though they may not enjoy the same benefits as they might

receive in an American court.” Jd. (citing Syndicate 420, 796

F.2d at 829) (additional citation omitted). In Air Crash, we held

“that a moving defendant need not submit overly detailed

affidavits to carry its burden, but it ‘must provide enough

information to enable the district court to balance the parties

[sic] interests.’ ” Jd. at 1164-65 (quoting Piper, 454 U.S. at

258, 102 S.Ct. at 267).

By showing only that they were being sued in the Philippine

courts by the relatives of the survivors of this maritime disaster,

the defendants failed to provide sufficient information with which

to support the required “procedural framework.” In fact, the

defendants appear to have misread Piper, in which the Court

required that the defendant, at a minimum, demonstrate that he

is “amenable to process” in the other forum. 454 U.S. at 255 n.

22, 102 S.Ct. at 265 n. 22. Furthermore, the Court held that the

mere fact that a foreign court has jurisdiction over claims relating

to the same cause of action does not mean that that country’s

law relating to the subject of the suit cannot change in the interim

and thereby render the forum constructively unsuitable for

14. In Air Crash we further stated that “the necessary detail [required

by defendants] will depend upon the particular facts of each case.” 821 F.2d

at 1165 n. 28. We observed that “‘a motion to dismiss for forum non

conveniens does not call for a detailed development of the entire case.’ ” Jd.

(quoting Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 n. 3 (2d Cir.1975),

cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976)). It should

be noted, however, that we require a defendant to put forth unequivocal,

substantiated evidence presented by affidavit testimony in order for the

district court to satisfy the standard enunciated in Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 ( 1947). See Svendsen v.

Pozos Int’! Drilling Co., 928 F.2d 401 (Sth Cir.1991) (unpublished).

28a

Appendix C

presentation of the claim. Jd. at 254-55, 102 S.Ct. at 265. Hence,

as we have noted in Svendsen and in Nolan v. Boeing Co., 919

F.2d at 1068, in order to fulfill the requirements of Gulf Oil, a

more detailed presentation must be made by the defendants

concerning the private interest factors in order that the district

court can address the six-factor test."

The plaintiffs’ second argument is that the district court did

not adequately explicate the public or private interest factors.

Defendants state, to the contrary, that the public factors

mentioned in the record amply show that trying the case in Texas

would be quite inconvenient for all parties and that the private

interest factors discussed by the court demonstrate that the trial

also would be a logistical nightmare.

Indeed, defendants maintain that under similar facts, the

court in Jn re Union Carbide Corp. Gas Plant Disaster at Bhopal,

India, 809 F.2d 195 (2d Cir.), cert. denied, 484 U.S. 871, 108

S.Ct. 199, 98 L.Ed.2d 150 (1987), reached the same conclusion

15. In determining each forum’s convenience to the parties, the court

must weigh the following private interest factors:

relative ease of access to sources of proof; availability

of compulsory process for attendance of unwilling,

and the costs of obtaining attendance of willing,

witnesses; probability of view of premises, if view

would be appropriate to the action; and all other

practical problems that make trial of a case easy

expeditious and inexpensive. There may also be

questions as to the enforcibility [sic] of a judgment if

one is obtained.

Air Crash, 821 F.2d at 1162 (quoting Gulf Oil, 330 U.S. at 508, 67 S.Ct. at

843).

29a

Appendix C

after focusing upon the public and private interest factors. In

that case, since the accident occurred in India, all the plaintiffs

were citizens of India, and most of the witnesses lived in India,

id. at 200-01, the court agreed with the district court and held

that the best forum to hear the cause of action would be in that

country. Jd. at 206.

The plaintiffs’ contention has merit. Once an adequate and

available foreign forum is found to exist, the district court should

consider all of the relevant private interest factors to determine

each forum’s convenience to the parties. Air Crash, 821 F.2d at

1164. If the private factors weigh in favor of dismissal, no further

inquiry need be made. /d. at 1165. Indeed, only if the court cannot

determine whether such private factors weigh in favor of

dismissal is it required to examine the public interest factors at

all. Id.'°

In this instance, most of the factors that the court mentioned

as the basis for its forum non conveniens determination are public

interest factors that should not enter into its decision until after

it resolves the six private interest factors. While the court cited

in its order of dismissal that sources of proof and witnesses are

located in the Philippines, it did not consider any other public or

private interest factors, nor did it consider the benefits of having

the case heard in Texas. The court simply described the

16. The public interest factors, as enumerated in Gulf Oil, include “the

administrative difficulties flowing from court congestion; the local interest

in having localized controversies resolved at home; the intent in having the

trial of a diversity case in a forum that is familiar with the law that must

govern the action; the avoidance of unnecessary problems in conflicts of

law, or in application of foreign law; and the unfairness of burdening citizens

in an unrelated forum with jury duty.” Jd. at 1162-63 (citing Gulf Oil, 330

U.S. at 508-09, 67 S.Ct. at 843).

30a

Appendix C

nationalities of the parties, the place of the accident, the fact

that other suits are pending against a Caltex party from this cause

of action in the Philippines, and the fact that generally sources

of proof and witnesses are located there. Such formulation does

not provide us with an adequate opportunity to determine whether

the district court attempted to satisfy the Gulf Oil standard by

balancing the interests of the parties and by considering the

relative convenience of the two forums.

Next, the plaintiffs argue that the district court failed to

impose any conditions on the dismissal and that this is contrary

to Air Crash, in which we stated that a district court must “ensure

that a plaintiff can reinstate his suit in the alternative forum

without undue inconvenience or prejudice. . . .” 821 F.2d at 1166.

The defendants cite no contrary authority. Instead, they find a

certain irony in citizens of the Philippines complaining that the

dismissal failed to protect their right to sue in the courts of their

home country.

The defendants’ general argument overlooks many probiems

associated with “return jurisdiction” cases, such as statutes of

limitations, political influences in the home state in favor of the

opposing part, and obstruction of justice. While the district court

is given the discretion to determine the conditions of dismissal

or to determine that the dismissal should be unconditional under

the circumstances, see Zekic v. Reading & Bates Drilling Co.,

680 F.2d 1107, 1109 (Sth Cir.1982),'’ Air Crash requires the

courts to ensure that plaintiffs can reinstate suits in American

courts if the defendants obstruct jurisdiction in the alternative

forum. 821 F.2d at 1166.

Thus, courts must take measures, as part of their dismissals

17. Zekic was overruled on other grounds by Air Crash.

eae nae TRC ee Neen NENT nee men

3la

Appendix C

in forum non conveniens cases, to ensure that defendants will

not attempt to evade the jurisdiction of the foreign courts. Such

measures often include agreements between the parties to litigate

in another forum, to submit to service of process in that

jurisdiction, to waive the assertion of any limitations defenses,

to agree to discovery, and to agree to the enforceability of the

foreign judgment. See, e.g., Svendsen; Union Carbide, 809 F.2d

at 198.

The district court failed to include any return jurisdiction

clause in its order of dismissal. Although the defendants attempt

to play down the importance of such a clause Owing to the fact

that the plaintiffs are residents of the alternate forum, this

simplified analysis does not appear to satisfy the Air Crash test.

While we assume that Caltex companies are defending a number

of cases already in the Philippine courts, concerning this specific

accident, plaintiffs would have no guarantee that the defendants

will submit to the jurisdiction of the court in this instance or

will waive any limitations defenses. The defendants, however,

have mentioned in their briefs that they would be amenable to

having the case remanded to the district court to place such

conditions in the order of dismissal. While such conditions

probably would not solve the Gulf Oil problems, they would

enable the plaintiffs to secure the opportunity to litigate their

case in another forum.

Finally, the plaintiffs insist that the district court failed to

set out its findings and conclusions supporting the motion to

dismiss for forum non conveniens and that this deficiency

precludes meaningful appellate review. In Air Crash, we stated

that “[i]f we are not supplied with either a written or oral

explanation of the court’s decision we will not be reluctant to

vacate the lower court’s judgment and remand because we do

not perform a de novo resolution of forum non conveniens

32a

Appendix C

issues.” 821 F.2d at 1166 n. 32 (citing La Seguridad v. Transytur

Line, 707 F.2d 1304, 1308 (11th Cir.1983)).

Thus, the district court has failed to follow this circuit’s

analytical framework for dismissing a case on forum non

conveniens grounds. It appears to have generalized, from a

number of public interest factors, that these specific plaintiffs

should have no problem in bringing their suit against the

defendants in their home country, as some persons apparently

have done. In so concluding, the court has not observed the

procedural safeguards developed by the Supreme Court and by

this court to guarantee that such litigants have a fair opportunity

to litigate in the alternate forum and that if the defendants refuse

to submit to such jurisdiction, the plaintiffs can litigate their

claims in American courts.

Accordingly, we remand so that the district court can begin

afresh its forum non conveniens determination. In its discretion,

it may wish to permit the parties to make additional submissions

on this issue. We intimate no view as to what ultimate decision

the court should make on the forum non conveniens issue, as

this is a matter within the court’s discretion.

The judgment of dismissal is VACATED, and this matter is

REMANDED for further proceedings in accordance with this

opinion.

33a

APPENDIX D — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT

OF TEXAS, HOUSTON DIVISION ENTERED

MARCH 5, 1992

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-90-607

CONSOLIDATED WITH

CIVIL ACTION NO. H-91-208

VICTOR C. BARIS, ET AL.,

Plaintiffs,

VS.

SULPICIO LINES, INC., ET AL.,

Defendants.

ORDER

Pending before the Court is the defendants’, Caltex

Petroleum Corp., Caltex Oil Corp., Caltex (Philippines) Inc.,

Caltex Services (Philippines) Inc., Caitex Services Corp.,

American Overseas Petroleum Ltd., Caltex Oil (Delaware)

Corp., Caltex (Asia) Ltd., and California Texas Oil Corp.

(collectively “Caltex”), motion to dismiss pursuant to forum

non conveniens. After considering the motion, the response,

the record on file, and the applicable law, it is this Court’s opinion

that the motion should be granted.

34a

_ Appendix D

Facts

On December 20, 1981, approximately 5,000 persons were

killed when the M/V Dona Paz and the M/T Vector collided off

the coast of the Philippines. The plaintiffs, on behalf of four

survivors and numerous decedents, brought these consolidated

civil actions individually and as a class action (not yet certified)

against the defendant corporations. The defendants, Caltex

Petroleum, Inc., and Caltex Oil Corporation, are corporations

with their principal place of business in Texas and were charterers

cf the M/T Vector.

The plaintiffs initially filed the first suit in state district

court under the United States’ general maritime law, the “saving

to suitors” clause of 28 U.S.C. §1331(1), and §17.031 of the

Texas Civil Practice and Remedies Code. The defendants, Caltex

Oil Corporation and Caltex Petroleum Corporation removed

the action to this Court under 28 U.S.C. §1441(b) on February

21, 1990.

After removal to this Court, the plaintiffs failed to timely

move to remand. On June 15, 1990, this Court entered its final

order and dismissed the case for forum non conveniens. The

plaintiffs then appealed from the order of June 15 to the Court

of Appeals for the Fifth Circuit. The Fifth Circuit, however,

remanded the case to this Court for further proceedings

consistent with their opinion in Baris, et al. v. Sulpicio Lines,

Inc., et al., 932 F.2d 1540 (Sth Cir. 1991).

The plaintiffs subsequently filed a second suit in the state

district court based on the same transaction or occurrence as the

first suit. The Caltex defendants removed the second suit to

this Court and the two cases were consolidated. Caltex now

renews its motion for dismissal pursuant to forum non

conveniens.

35a

Appendix D

Forum Non Conveniens

In determining whether to grant or deny a motion to dismiss

for forum non conveniens, this Court must first decide whether

an available and adequate foreign forum exists. In re Air Crash

Disaster Near New Orleans, La., 821 F.2d 1147, 1165 (Sth Cir.

1987) (en banc) vacated on other grounds sub nom. Pan Am.

World Airways, Inc. v. Lopez, 490 U.S. 1032 (mem.), opinion

reinstated on other grounds, 883 F.2d 17 (Sth Cir. 1989) (en

banc). A foreign forum is available when the entire case and all

parties can come within the jurisdiction of that forum. Baris, et

al. v. Sulpicio Lines, Inc., et al, 932 F.2d 1540, (Sth Cir. 1991)

(citing Air Crash, 821 F.2d at 1 165). A foreign forum is adequate

when the parties will not be deprived of all remedies or treated

unfairly, even though they may not enjoy the same benefits as

they might receive in an American court. Jd.

Available Forum

It is clear that the defendants’ submission to the jurisdiction

of an alternative forum renders that forum available for purposes

of forum non conveniens analysis. Syndicate 420 at Lloyd's

London v. Early American Ins., 796 F.2d 821, 830 (Sth Cir. 1986)

(citing Voba-Chemie A. G. v. M/V Getafix, 711 F.2d 1243, 1245

(Sth Cir. 1983)). This Court can ensure that an available forum

exists by conditioning the dismissal of forum non conveniens

on Caltex’s waiver of jurisdictional defenses. See Syndicate 420,

794 F.2d at 830. Indeed, the evidence shows that Caltex is

amenable to service of process in the Philippines. The evidence

further shows that the defendants in this case were sued in the

Philippine court by representatives of the survivors of this

maritime disaster. Accordingly, the Philippines is an available

forum.

36a

Appendix D

Adequate Forum

After considering the plaintiffs’ contentions that Philippine

law would deprive them of various remedies, this Court

concludes that the available remedies in the Philippine courts

are not so “clearly inadequate or unsatisfactory” as to amount

to no remedy at all. See Air Crash, 821 F.2d at 1164, n.27. In

this case, the difference between the remedies available in Texas

and those available in the Philippines are insufficient to render

the Philippine forum inadequate.

Balancing the Public and Private Interests

Having found that the Philippine forum is both available

and adequate, this Court must now balance the public and

private interests factors outlined by the Supreme Court in Gulf

Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). If the private

interest factors weigh in favor of dismissal, no further inquiry

need be made. Baris, 932 F.2d at 1550. (citing Air Crash, 821

F.2d at 1164). This Court is required to examine the public

interest factors only if it cannot determine whether the private

interest factors weigh in favor of dismissal. See id.

The private interest factors considered by this Court relate

primarily to the litigants’ convenience. These factors include

“the relative ease of access to sources of proof; availability of

compulsory process for attendance of unwilling, and the cost

of obtaining attendance of willing, witnesses; possibility of

viewing the premises, if viewing the premises would be

appropriate to the action; and all other practical problems that

make trial of a case easy, expeditious and inexpensive. There

may also be questions as to the enforceability of the judgment

if one is obtained.” Gulf Oil, 330 U.S. at 508.

37a

Appendix D

The evidence shows that trial in the Philippines will best

serve the litigants’ convenience and the ends of justice. The

Philippine Coast Guard’s Board of Marine Inquiry conducted

an extensive investigation of the collision and those investigators

reside in the Philippines. The plaintiffs are primarily citizens or

residents of the Philippines and are closer to a Philippine forum

than an American forum. The collision occurred in the

Philippines and the witnesses of the collision are primarily

Filipino. These witnesses would not be subject to service of

process in this Court and would probably require an interpreter

to testify. The transportation of foreign witnesses would add

significant costs to this litigation.

Although the Caltex defendants’ parent corporation, Caltex

Petroleum Corporation, has its principal place of business in

Texas, the primary defendants are Philippine or foreign

corporations. Accordingly, it would be less difficult for the

plaintiffs to enforce a judgment against the defendants in the

Philippines than in America. Further, should a view of the

accident site be necessary, a Philippine forum would be more

convenient than a Texas forum.

Because the private interest factors Clearly weigh in favor

of dismissal, this Court need not consider whether the pubiic

interest factors similarly favor dismissal. See Baris, 9 F.2d at

1550-51. (citing Air Crash, 821 F.2d at 1164).

Conclusion

The Court concludes that the Philippines is an adequate

and available forum for adjudication of this dispute. The Court

further finds that the private interest factors weigh heavily in

favor of having this dispute adjudged in the Philippines.

38a

Appendix D

Accordingly, it is ORDERED that the defendants’, Caltex

Petroleum Corporation, Caltex Oil Corporation, Caltex

(Philippines) Inc., Caltex Services (Philippines) Inc., Caltex

Services Corporation, American Overseas Petroleum Ltd., Caltex

Oil (Delaware) Corporation, Caltex (Asia) Ltd., and California

Texas Oil Corporation, motion to dismiss for forum non

conveniens is GRANTED, dismissing the complaint with

prejudice, conditional upon the above named defendants

certifying in the record by March 30, 1992, that each defendant

will:

1. Submit to service of process and jurisdiction in the

appropriate forum in the Philippines;

2. Formally waive in the proceeding in the Philippines

any statute of limitations defense that has matured since the

commencement of this action in American courts;

3. Agree that any depositions, answers to interrogatories,

responses to requests for production of documents, and

admissions filed in these consolidated cases may be used in the

Philippine proceeding to the same extent as if they originated

there;

4. Make available in the Philippine proceeding all relevant

documents under their control and all relevant witnesses who

were their employees at the time of the accident and who remain

their employees at the time of the trial of the matter in the

Philippines; and

5. Formally agree in the Philippine proceeding to satisfy

any final judgment rendered by such court.

39a

Appendix D

Should the above named defendants fail to so certify by

March 30, 1992, this Court will then consider the defendants’

motion as denied and this Court shall resume jurisdiction over

these consolidated cases.

It is so ORDERED.

SIGNED this 3rd day of March, 1992.

—~

s/ Kenneth M. Hoyt

KENNETH M. HOYT

United States District Judge

40a

APPENDIX E — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED DECEMBER 9, 1992

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 92-2296

Summary Calendar

VICTOR C. BARIS, ET AL.,

Plaintiffs-Appeliants,

VERSUS

SULPICIO LINES, INC., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(H-90-607)

Before JONES, SMITH, and WIENER, Circuit Judges.

BY THE COURT:

IT IS ORDERED that appellees’ motions to dismiss the

above appeal are GRANTED.

IT IS FURTHER ORDERED that appellants’ motion to stay

further proceedings in this court is DENIED as moot, the district

court now having denied appellants’ motion to reconsider.

4la

APPENDIX F — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

TEXAS, HOUSTON DIVISION ENTERED JUNE 29, 1994

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-90-607

CONSOLIDATED

VICTOR BARIS, ET. AL.,

Plaintiffs,

VS.

SULPICIO LINES, ET. AL..

Defendants.

ORDER

Pending before this Court is the defendants’ motion to

enforce final judgment and for injunctive relief (instrument

# 83). The plaintiffs have responded and the Court, having

reviewed the pleadings and responses, is of the opinion that the

defendants’ motion shall be denied.

The sole question for determination by the Court is whether

the final judgment entered by this Court addressing the forum

non conveniens issue, bars litigation by the plaintiffs in a

previously filed Louisiana case brought pursuant to the “savings

to suitors clause.” Title 28 U.S.C. § 1333(1).

42a

Appendix F

Because federal and state courts enjoy concurrent

jurisdiction over causes of action brought under the Death on

the High Seas Act and because the laws of the state of Louisiana

do not recognize the forum non conveniens theory, no conduct

is exposed that violates this Court final judgment.

This move by the plaintiffs that manipulates several court’s

jurisdiction simultaneously is repugnant to both the rules of this

Court and the spirit behind the enactment of rules that dictate

order and efficiency among courts with concurrent jurisdiction.

While this Court does not condone forum shopping as a

procedural tool to avoid certain judges, courts, and the effect of

law, the Court, nevertheless, recognizes a party’s fundamental

right to do so.

Page Two of instrument number 89 which contains

“gibberish” is stricken.

It is ORDERED that the defendants’ motion is DENIED.

Signed this 29th day of June, 1994.

s/ Kenneth M. Hoyt

KENNETH M. HOYT

UNITED STATES DISTRICT JUDGE

43a

APPENDIX G — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILED JANUARY 23, 1996

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20498

VICTOR C. BARIS, et al.,

Plaintiffs-Appellees,

VERSUS

SULPICIO LINES, INC., et al.,

Defendants,

CALTEX PETROLEUM, INC.., et al.,

Defendants-Appellants.

Appeal from the United States District Court

for the Southern District of Texas

Before SMITH and EMILIO M. GARZA, Circuit Judges, and

Stagg,* District Judge.

JERRY E. SMITH, Circuit Judge:

Caltex Petroleum, Inc. (“Caltex”), and Steamship Mutual

* District Judge of the Western District of Louisiana, sitting by

designation.

44a

Appendix G

Underwriting Association (Bermuda), Ltd. (“Steamship

Mutual”), appeal the district court’s denial of an injunction to

bar plaintiffs’ suit in Louisiana state court. Concluding that the

district court did not reversibly err, we affirm.

In December 1987, the M/V DONA PAZ collided with the

M/T VECTOR in the Tablas Strait in the Philippines;

approximately 5,000 Filipino citizens lost their lives. The M/V

DONA PAZ was a ferry boat owned and operated by Sulpicio

Lines, Inc., a Philippines corporation; the M/T VECTOR was a

tanker owned and operated by Vector Shipping Corp., also a

Philippines corporation. At the time of the collision, the tanker

was Carrying petroleum products for Caltex Petroleum, Inc.,

Caltex Petroleum Corporation, and Caltex Oil Corporation,

corporations with their principal place of business in Texas.

Il.

Plaintiffs, family members of those who perished, filed suit

in Louisiana state court in December 1988 but withheld service

of process for five years. In December 1989, plaintiffs,

individually and on behalf of a class purported to number up to

5,000 Filipinos, sued in Texas state court, naming nine Caltex

defendants (collectively “Caltex”) and seventeen other

defendants. The class, however, has never been certified. Claims

were made pursuant to general maritime law, the Death on the

High Seas Act, and other provisions of state and federal law

pursuant to the saving to suitors clause, 28 U.S.C. § 1331(1).

Plaintiffs asserted that Caltex was negligent in entrusting its

cargo for shipment on the M/T VECTOR.

45a

Appendix G

The case was removed to federal court in February 1990.

The district court upheld its subject matter jurisdiction and

dismissed on forum non conveniens (“f.n.c.”) grounds in June

1990.

lacked subject matter jurisdiction and, in the alternative, had

failed to apply the correct analysis to the f.n.c. claim. In Baris

v. Sulpicio Lines, Inc., 932 F.2d 1540 (Sth Cir.), cert. denied,

112 S. Ct. 430 (1991) (“Baris I”), we upheld the district court’s

jurisdiction but vacated and remanded on the f.n.c. issue. We

expressed concern that the district court had not imposed

conditions that would guarantee the plaintiffs a fair Opportunity

to litigate in the Philippines. Jd. at 1552.

While the appeal was pending, plaintiffs filed another suit

in Texas state court against Caltex in August 1990; process was

served five months later. This suit was similar to the first Texas

State action and was removed in January 1991, then consolidated

with the first matter in July 1991.

Caltex again moved for a dismissal on f.n.c. grounds. On

March 3, 1992, the district court determined that the Philippines

was the proper situs for the litigation and that the Philippines

Provided an adequate and available forum. The motion to dismiss

was granted with prejudice.

The dismissal was conditioned on five things that would

ensure that the defendants would be amenable to suit in the

Philippines. Defendants had to certify that each would (1) submit

to service of process and jurisdiction in the Philippines; (2)

formally waive any statute of limitations defense; (3) agree that

discovery already taken could be used in the Philippines; (4)

46a

Appendix G

make available in the Philippines all relevant documents and

witnesses under its control; and (5) formally agree to satisfy

any final judgment rendered by the Philippine courts. Caltex

agreed to the conditions and has fully complied with the court

order. Moreover, the plaintiffs have initiated litigation in the

Philippines.

Plaintiffs failed timely to appeal the dismissal. As a result,

this court dismissed their appeal. See Baris v. Sulpicio Lines,

Inc., No. 92-2296 (Sth Cir. Dec. 9, 1992) (per curiam)

(unpublished).

The Louisiana state suit that had been filed in December

1988 was served on Caltex in late December 1993. Apparently,

the suit was a secret until two defendants, Sulpicio Lines, Inc.

(“Sulpicio”), and Steamship Mutual happened upon it in

February 1990. Those defendants attempted to remove, but in

September 1990 the Louisiana federal court remanded the matter”

to state court. Caltex had not yet been served and was not a

party to the removal and remand proceedings. The suit was

dormant until Caltex was served in December 1993.

In January 1994, Caltex attempted to remove the case to

Louisiana federal court. On May 13, 1994, the matter again was

remanded on the ground that the Caltex removal was untimely

because more than one year had passed since suit was filed.

The court did not address the argument that the Louisiana suit

had been revived merely in order to avoid the preclusive effect

of the Texas dismissal.

Caltex returned to Texas to seek relief from the federal

district court that had entered the f.n.c. dismissal with prejudice.

Caltex filed a motion for a hearing to force the plaintiffs to show

47a

Appendix G

why they should not be enjoined from pursuing their claims in

any American court. The court denied injunctive relief,

apparently thinking that it was powerless to grant it.

The court stated that it thought that the dismissal with

prejudice applied only to the relitigation of the f.n.c. issue.

Although the court found the plaintiffs’ tactics “repugnant,” it

held that it had no jurisdiction to enforce its prior decision

because it concluded that in dismissing on f.n.c. grounds, it had

not entered a final judgment on a substantive point of law. The

defendants now appeal the refusal to grant injunctive relief.

Il.

The Anti-Injunction Act states:

A court of the United States may not grant

an injunction to stay proceedings in a State

court except as expressly authorized by Act

of Congress, or where necessary in aid of its

jurisdiction, or to protect or effectuate its

judgments.

28 U.S.C. § 2283. The last exception, “to protect or effectuate

its judgments,” is commonly referred to as the “relitigation

exception.” District courts can enter injunctions as a means to

enforce prior judgments. Royal Ins. Co. of Am. y. Quinn-L

Capital Corp., 3 F.3d 877, 881 (Sth Cir. 1993), cert. denied,

114 S. Ci. 1541 (1994); Santopadre v. Pelican Homestead &

Sav. Ass'n, 937 F.2d 268, 273 (Sth Cir. 1991). Res judicata

operates as a bar — enforceable by federal injunction — to a

State proceeding in which a party seeks to relitigate claims that

have been decided by a federal court.

48a

Appendix G

As a general matter, federal courts have ancillary

jurisdiction’ to enjoin relitigation in state court; they do not need

a basis for jurisdiction that is independent of the jurisdiction

that supported the original judgment. Mooney Aircraft, Inc. v.

Foster, 730 F.2d 367, 374 (Sth Cir. 1984). Ancillary jurisdiction

enables a court “to manage its proceedings, vindicate its

authority, and effectuate its decrees.” Kokkonen v. Guardian Life

Ins. Co. of Am., 114 S. Ct. 1673, 1676 (1994).

In this case, the district court’s prior judgment, which Caltex

argues can support an injunction against the Louisiana

proceedings, dismissed the claims “with prejudice,” provided

certain conditions allowing litigation in the Philippines were

met. The Caltex defendants maintain that this dismissal

precludes the plaintiffs from litigating their claims in any court,

state or federal, in the United States.

A dismissal “with prejudice” has important consequences:

“It is clear that a stipulation of dismissal with prejudice, or, for

that matter, a dismissal with prejudice at any stage of a judicial

proceeding, normally constitutes a final judgment on the merits

which bars a later suit on the same cause of action.” Astron Indus.

Ass’n v. Chrysler Motors Corp., 405 F.2d 958, 960 (Sth Cir.

1968); see also 1B James W. Moore & Jo D. Lucas, Moore’s

FEDERAL Practice { 0.409 [1.—2], at III-140 (2d ed. 1995). We

conclude, however, that the dismissal on f.n.c. grounds in this

case, whether designated as “with prejudice” or “without

prejudice,” cannot serve as the res judicata foundation for a later

injunction against the Louisiana state proceedings.

1. For actions filed on or after December 1, 1990, “ancillary jurisdiction”

is included within what is now called “supplemental jurisdiction.” See Royal

Ins., 3 F.3d at 881 n.2.

49a

Appendix G

Generally, res judicata acts as a bar to a subsequent suit

when the resolution of the initial proceeding has been “on the

merits,” which suggests that the substantive claims have been

addressed by the court. See generally 18 CHaRLEs A. WRIGHT ET

AL., FEDERAL PRACTICE AND PROCEDURE § 4435 (1981). The

common law venue rule of f.n.c., by contrast, is a doctrine “of

procedure rather than substance.” American Dredging Co. v.

Miller, 114 S. Ct. 981, 988 ( 1994),

Our inquiry is not ended, however, as the use and application

of the phrase “on the merits” has been imprecise at best. See 18

WRIGHT ET AL., supra, at 329-30. This court has held that certain

dismissals that do not reach the substantive issues of the

litigation still may be regarded as “on the merits” for purposes

of res judicata and preclusion. See, e.g., Anthony v. Marion

County Gen. Hosp., 617 F.2d 1164, 1168-69 (Sth Cir. 1980).

Defendants cite several cases for this Proposition, including

Anthony. But all of these cases involve involuntary dismissals

of the type anticipated by Fen. R. Civ. P. 41(b), which states:

For failure of the plaintiff to prosecute

or to comply with these rules or any order of

court, a defendant may move for dismissal

of an action or of any claim against the

defendant. Unless the court in its order for

dismissal otherwise specifies, a dismissal

under this subdivision and any dismissal not

provided for in this rule, other than a

dismissal for lack of jurisdiction, for

improper venue, or for failure to join a party

under Rule 19, operates as an adjudication

upon the merits.

50a

Appendix G

The rule creates three distinct categories of involuntary

dismissals. The first category includes cases of the plaintiff's

failure to prosecute or to comply with the rules of procedure or

a court order. The rule states that these dismissals, unless

otherwise specified by the courts, operate as adjudications on

the merits. Courts in this circuit have given these types of

dismissals preclusive effect because the plaintiff has, in effect,

abused his opportunity for a full and fair litigation and, thus,

has forfeited the right to pursue his claim.”

These first-category dismissals “primarily involve situations

in which the defendant must incur the inconvenience of

preparing to meet the merits because there is no initial bar to

the Court’s reaching them.” Costello v. United States, 365 U.S.

265, 286 (1961). Thus, logic dictates that a subsequent action

should be barred following such a dismissal. /d.

The second category of dismissals includes dismissals for

lack of jurisdiction, for improper venue, or for failure to join a

party as specified by Fen. R. Civ. P. 19. These dismissals are not

considered adjudications on the merits and ordinarily do not,

and should not, preclude a party from later litigating the same

claim, provided that the specific defect has been corrected. See

18 WRIGHT ET AL., § 4436, at 338 (stating that “a dismissal for

2. See, e.g., Anthony, 617 F.2d at 1168-69 (dismissal for failure to

prosecute); In re Reed, 861 F.2d 1381, 1382-83 (Sth Cir. 1988) (holding that

dismissal for failure to comply with discovery orders is on the merits); Dillard

v. Security Pac. Brokers, Inc., 835 F.2d 607, 608 (Sth Cir. 1988), cert. denied,

113 S. Ct. 1046 (1993) (holding that dismissal for failure to appear at a

deposition is on the merits); Truck Treads, Inc. v. Armstrong Rubber Co., 129

F.R.D. 143, 147 (W.D. Tex. 1988), aff'd as modified, 868 F.2d 1472 (Sth Cir.

1989) (dismissal for failure to comply with discovery rules treated as on the

merits).

Sla

Appendix G

lack of jurisdiction or improper venue does not Operate as an

adjudication upon the merits”) (footnote Omitted). Such a

dismissal should, however, preclude relitigation of the specific

issue of jurisdiction, venue, or joinder already resolved. See id.

§ 4435, at 334.

The third category of dismissals encompasses dismissals

“not provided for in this rule.” This includes, for example,

dismissal for a plaintiff's failure to comply with a federal rule,

as provided for in the first sentence of rule 41(b), but on the

According to a leading treatise, this provision in rule 41(b) “has

Caused substantial difficulty,” as “[t]here are many grounds of

dismissal that do not seem to fall within the categories ‘provided

for in this rule’ and yet clearly should not — and do not —

Operate as an adjudication that precludes a second action on the

same claim.” See 18 Wricut ET AL., supra, § 4435, at 333-34.

dismissal was with prejudice. The defendant argued that the

dismissal was “on the merits” and, therefore, barred the

The Court held that the dismissal was for “lack of

jurisdiction” under rule 41(b). 365 U.S. at 285. As a result, the

- $§2a

Appendix G

government could pursue the second proceeding. The Court

expressly held that the “lack of jurisdiction” exception was not

limited to “the fundamental jurisdictional defects which render

a judgment void and subject to collateral attack, such as lack of

jurisdiction over the person or subject matter.” Jd. Instead, the

Court broadened the exception to cover “those dismissals which

are based upon a plaintiff’s failure to comply with a precondition

requisite to the Court’s going forward to determine the merits

of his substantive claim.” Jd. Thus, the failure to file the affidavit

was encompassed by the lack-of-jurisdiction exception.’

As noted above, the Court went on to say that the first-

category dismissals reflect a policy whereby defendants should

not be forced to suffer from a plaintiff’s misstep once they have

had to incur the inconvenience of preparing to meet the merits

of the case. Jd. at 286. Moreover, the Court found that situations

involving third-category dismissals “not provided for in this rule”

should operate as adjudications on the merits only where the

policy supporting first-category dismissals is “equally

applicable.” Jd. For example, if a court dismisses a case sua

sponte for the plaintiff’s failure to comply with an order, the

dismissal should be regarded as on the merits. Jd. at 287.

IV.

While Costello did not specifically address the issue of a

dismissal on f.n.c. grounds, we will not give the instant dismissal

preclusive effect, even in light of the “with prejudice”

designation, in this case. Using the principles announced in

Costello, and considering the basic nature of the f.n.c. doctrine,

3. For criticism of Costello, see 18 Wricut ET AL., supra, § 4435, at

334-336 (calling the Court’s interpretation “directly objectionable because it

involves so slippery a method of manipulating the concept of jurisdiction”).

53a

Appendix G

we cannot regard such an f.n.c. dismissal as “on the merits” for

res judicata purposes as to the entire claim.

Arguably, an f.n.c. dismissal falls under the Court’s

expansive definition of the “lack of jurisdiction” language in

rule 41(b). A convenient forum could be regarded as a

“precondition requisite to the Court's going forward to determine

the merits” of the claim. Jd. at 285.‘

Strictly speaking, however, f.n.c. is not a refusal to hear a

case for “lack of jurisdiction” as stated in rule 41(b); it is a

discretionary refusal to exercise jurisdiction that plainly does

exist. While f.n.c. is not a “jurisdictional” concept, an f.n.c.

dismissal follows “the same rules” as a dismissal for lack of

jurisdiction or improper venue. See 18 WRIGHT ET AL., supra,

§ 4436, at 339. Moreover, such an f.n.c. dismissal, like a

dismissal for lack of jurisdiction or improper venue, “does not

establish claim preclusion”; it can work to preclude the

relitigation only of the f.n.c. issue in that court. Id. at 346. Accord

Mizokami Bros. v. Mobay Chem. Corp., 660 F.2d 712, 715-17

(8th Cir. 1981).

An f.n.c. dismissal is a “deliberate refusal[] to decide the

substantive issues presented” becatse the court was mistakenly

4. The Court’s recent pronouncement in American Dredging suggests

that an f.n.c. dismissal might fall under the “improper venue” provision of

41(b). Although the Court was not interpreting 41(b), it stated that f.n.c. “is

nothing more or less than a supervening venue provision.” 114 S. Ct. at 988.

Because the Court was not interpreting 41(b), and because of the

longstanding distinction between a 28 U.S.C. § 1404(a) f.n.c. transfer and an

improper forum, see, e.g., Tel-Phonic Servs. v. TBS Int'l, Inc., 975 F.2d | 134,

1141 (Sth Cir. 1992), we treat an f.n.c. dismissal as distinct from an “improper

venue” dismissal.

54a

Appendix G

chosen. See 18 WRIGHT ET AL., supra, § 4436, at 347.

Furthermore, “[n]o apparent reason exists to justify forfeiture

of the underlying claims upon a mistaken choice of tribunal,”

id., as the f.n.c. determination generally is made well before a

court begins to address the merits of a claim.

For this latter reason, our decision is perfectly consistent

with Costello. An f.n.c. dismissal is more akin to an initial bar

to a court’s decision on the substance of a claim than to a

Situation in which the defendant has first incurred the

inconvenience of preparing to meet the merits of the case. See

Costello, 365 U.S. at 286. Thus, under Costello’s formulation,

an f.n.c ruling is the type of rule 41(b) dismissal that is “not

provided for’’ in the rule but nevertheless does not operate as an

adjudication “on the merits” of the entire claim.*

We reconcile our decision in this case with the language of

rule 41(b) by noting that the f.n.c. dismissal does carry some

preclusive effect and is, in fact, “on the merits” as provided for

in the rule: It is an adjudication “on the merits” of the f.n.c.

issue itself. The plaintiffs’ attempt to litigate their claims in a

federal court in Texas was dismissed “with prejudice” insofar

as they chose a federal court in Texas as their forum. It would

be unwarranted to hold further that this judgment constitutes

5. Weissinger v. United States, 423 F.2d 795 (Sth Cir. 1970) (en banc),

is not controlling here, as it involved an interpretation of three sentences in

rule 41(b) that since have been deleted. Those provisions allowed for a directed

verdict in non-jury cases. At that time, Fep. R. Civ. P. 50 covered only jury

trials. Thus, the rule 41(b) dismissal in Weissinger was made after a “full-

blown trial” and following “lengthy and careful findings of fact and

conclusions of law.” 423 F.2d at 798. Weissinger entailed, at that time, a

dismissal that, in effect, fell under what we earlier have referred to as the

first category of dismissals. Thus, both Weissinger and our holding today are

conzistent with Costello.

55a

Appendix G

the basis for an injunction against a separate, state court

proceeding.

The Supreme Court has held that a federal ruling on the

f.n.c. issue does not serve to bind a state court, even in the same

State. In the case at issue, a Texas federal court had dismissed

without prejudice on f.n.c. grounds. The plaintiff then attempted

to file suit in Texas state court. This court upheld an injunction

against the state proceeding. Exxon Corp. v. Chick Kam Choo,

817 F.2d 307 (Sth Cir. 1987), rev’d, 486 U.S. 140 (1988). In

reversing, the Court noted that “whether the Texas state courts

are an appropriate forum for petitioner’s Singapore law claims

has not yet been litigated, and an injunction to foreclose

consideration of that issue is not within the relitigation

exception.” 486 U.S. at 149. Thus, the only issue that the federal

district court had decided was whether the claims should be

dismissed under the federal f.n.c. doctrine. Id. at 148.

The instant case and Chick Kam Choo are similar, with the

exception that in the present case the dismissal was designated

as “with prejudice.”* Functionally, however, these two cases are

equivalent.’ The dismissal in both cases was made because the

6. We note that the words “with prejudice” and “without prejudice” are

not used in rule 41.

: The district court, which entered both the dismissal on f.n.c. grounds

and the order that is now appealed, indicated in that latter order that because

Louisiana does not recognize the principle of f.n.c., “no conduct [by plaintiffs)

is exposed that violates this court’s final judgment.” Moreover, the court

referred to the earlier final judgment as “addressing the forum non conveniens

issue.” Plainly, the court never contemplated that its dismissal “with prejudice”

was as to plaintiffs’ claims, as opposed to the f.n.c. issue only. Thus, plaintiffs’

attorneys here are saved from their failure timely to appeal the “with prejudice”

ruling.

56a

Appendix G

plaintiffs had chosen a forum that, while proper, was

“inconvenient.” As noted above, the limited nature of the f.n.c.

ruling cannot serve to bar the plaintiffs’ claims forever from

U.S. courts.*

Plaintiffs’ tactics in manipulating fora in this case are

“repugnant,” as the district court properly observed, but they

are permitted by the law that we must follow. Certainly,

defendants contemplated that they would be subject only to a

suit in the Philippines following the f.n.c. dismissal. The State

of Louisiana is free, however, to formulate its laws as it sees fit

within the bounds of the Constitution. Under Chick Kam Choo,

it is Louisiana’s prerogative to choose not to recognize the

doctrine of f.n.c. in its own courts. It would be improper for this

court to preclude plaintiffs from pursuing their claims in

Louisiana state court based solely upon a prior federal court

dismissal on f.n.c. grounds.

Accordingly, the judgment of the district court, refusing to

issue an injunction, is AFFIRMED.

8. Thus, contrary to defendants’ argument, the issue-preclusive and “law

of the case” effects of the f.n.c. ruling in this case cannot extend to state

court.

57a

Appendix G

EMILIO M. GARZA, Circuit Judge, with whom SMITH, Circuit

Judge, and STAGG,’ District Judge, join, specially concurring:

After a careful and searching review of both the record and

the relevant case law, I conclude that I must concur in the

majority opinion. I write separately to emphasize this Court’s

disdain for the tactics employed in this case. During this

litigation, the plaintiffs’ attorneys hid the ball, the defendants’

attorneys dropped the ball, and the courts were left holding the

bag.

One year prior to filing suit in Texas state court, plaintiffs

filed an essentially identical suit in Louisiana state court, with

instructions to “please withhold service at this time.” The

Louisiana suit was apparently a back-up suit, designed to ensure

that plaintiffs would have a forum for their claims in the United

States in the event they were unable to maintain their suit in

Texas. To protect the Louisiana suit from interference, the

plaintiffs made no statements concerning the lawsuit’s existence,

keeping the suit “secret” until 1991. Only after we remanded

the case in Baris v. Sulpicio Lines, Inc., 932 F.2d 1540 (Sth Cir.),

cert. denied, 502 U.S. 963, 112 S. Ct. 430, 116 L. Ed. 2d 449

(1991) (“Baris I”) did the plaintiffs raise the possibility of the

Louisiana suit being affected by the proceedings in Texas federal

court, and then only in passing. Had the district court been fully

aware of the contents of the Louisiana suit, it may have ruled

differently. Instead, the plaintiffs continued their charade,

imploring this Court and the district court to make sure they

had an adequate and available foreign forum before dismissing

their Texas action. The federal courts dutifully adjudicated this

issue, and the district court ultimately required the defendants

to be amenable to suit in the Philippines.

a Judge Stagg reluctantly joins the special concurrence. He is of the opinion

that the underlying case should be tried in the Philippines and nowhere else.

58a

Appendix G

Having successfully hidden the Louisiana suit, however,

plaintiffs are now allowed to pursue essentially the same claims

in both Louisiana and the Philippines, and the defendants have

no defense against being subjected to suit in both places. We

find plaintiffs’ manipulation of fora in this case deplorable. We

expect attorneys, as officers of the court, to be more forthright

in their actions before the courts. Instead, these attorneys chose

to manipulate the courts, wasting our valuable time and energy."°

The defendants, however, are not blameless here either.

According to the record, at least some of the defendants

discovered the Louisiana suit as early as 1990. In 1991, we,

without knowing the contents of the Louisiana suit, mentioned

it in a footnote in Baris I. Baris I, 932 F.2d at 1549 n.13. Further,

the plaintiffs gave the suit cursory treatment in their brief to the

district court before its second dismissal for forum non

conveniens. Yet at no time prior to seeking this injunction did

the defendants specifically raise the issue of the Louisiana suit

before the district court. It is truc that Caltex was not served

until 1993, but they were aware of the suit in 1991 at the latest,

prior to the district court’s second forum non conveniens

dismissal. The defendants should have brought the suit to the

attention of the district court. Whether their decision to remain

silent was an oversight or a miscalculated tactical decision we

do not know. The result however, is that the defendants are now

subject to suit in both Louisiana and the Philippines, and much

judicial time and energy have been wasted.

10. Further, we note that once the defendants filed their petition to

remove the Texas suit to federal court, the plaintiffs neglected to move to

remand within thirty days. As a consequence, we concluded that the district

court had jurisdiction, without having to decide whether a Death on the High

Seas Act claim is removable. See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540,

1543 & n.3 (Sth Cir.), cert. denied, 502 U.S. 963 (1991) (“Baris I”).

59a

Appendix G

The district court did not have sufficient information

necessary to make a proper ruling in the Texas litigation. It is

the lawyers’ responsibility to supply the courts with this

information. Without such forthrightness, justice suffers. It did

so here.

60a

APPENDIX H — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

FILFi’ MARCH 14, 1996

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-20498

VICTOR C. BARIS, ET AL.,

Plaintiffs-Appellees,

versus

SULPICIO LINES, INC., ET AL.,

Defendants,

CALTEX PETROLEUM, INC., ET AL.,

Defendants-Appellants.

Appeals from the United States District Court for the

Southern District of Texas

ON PETITION FOR REHEARING AND SUGGESTION

FOR REHEARING EN BANC

(Opinion January 23, 1996, 5 Cir., 1996, __ F.3d __)

(March 14, 1996)

Before POLITZ, Chief Judge, GARWOOD, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE,

WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS,

BENAVIDES, STEWART, PARKER and DENNIS, Circuit

Judges.*

* Judge King is recused and did not participate in this decision.

6la

Appendix H

BY THE COURT:

A member of the court in active service having requested a

poll on the suggestion for rehearing en banc and a majority of

the judges in active service having voted in favor of granting a

rehearing en banc,

IT IS ORDERED that this cause shall be reheard by the

court en banc with oral argument on a date hereafter to be fixed.

The Clerk will specify a briefing schedule for the filing of

supplemental briefs.

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