Opposition Brief — Saudi v. Marine Transport Lines, Inc.

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No. 03-1497

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IN THE

Supreme Court of the United States

CAPTAIN SHERIFF SAUDi,

Petitioner,

MARINE TRANSPORT LINES, INc., Owner/Manager of the

Vessel “Marine Atlantic,” MARINE TRANSPORT CorpP.,

Owner/Manager of Vessel “Marine Atlantic”,

Respondents.

CAPTAIN SHERIFF SAUDI,

Petitioner,

MariNnE ATLANTIC, Ltp., ACOMARIT SERVICES MARITIMES, S.A.;

OsprReY ACOMARIT SHIP MANAGEMENT, INC.; KOCH SHIPPING, INC.,

and Kocu Suppty AND TRADING Co.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CourT OF APPEALS FOR THE FiFTH CIRCUIT

ees

BRIEF IN OPPOSITION FOR RESPONDENTS

ACOMARIT SERVICES MARITIMES, S.A.

AND MARINE ATLANTIC, LTD.

THOMAS R. Nork*

KEITH B. LETOURNEAU

BELL, RYNIKER,

LETOURNEAU & NorK

5847 San Felipe, Suite 4600

Houston, TX 77057

(713) 871-8822

Attorneys for Respondents

Acomarit Services Maritimes, S.A.

* Counsel of Record and Marine Atlantic., Ltd.

ae BEST AVAILABLE COPY

— = ——— - oe Eee

QUESTIONS PRESENTED FOR REVIEW

QUESTION 1

DID THE DISTRICT COURT CORRECTLY DECIDE THAT

PFRSONAL JURISDICTION DOES NOT EXIST OVER

ACOMARIT SERVICES MARITIMES, S.A. AND MARINE

ATLANTIC, LiD. UNDER FED. R. CIV. P. 4(k)(2)?

QUESTION 2

DID THE DISTRICT COURT CORRECTLY DECIDE THAT

PERSONAL JURISDICTION DOES NOT EXIST OVER

ACOMARIT SERVICES MARITIMES, S.A?

QUESTION 3

DID THE DISTRICT COURT CORRECTLY DECIDE THAT

PERSONAL JURISDICTION DOES NOT EXIST OVER

MARINE ATLANTIC, LTD.?

QUESTION 4

DID THE DISTRICT COURT ACT WITHIN ITS BROAD

DISCRETION IN CONTROLLING ITS DOCKET AND

MANAGING DISCOVERY WITH RESPECT TO

ACOMARIT SERVICES MARITIMES, S.A., AND

MARINE ATLANTIC, LTD.?

QUESTION 5

DID THE DISTRICT COURT CORRECTLY EXCLUDE

SAUDI’S LIABILITY EXPERT’S OPINIONS WITH

RESPECT TO CORROSION?

ii ,

CORPORATE DISCLOSURE STATEMENT

Marine Atlantic Ltd.’s (“MAL’s”) parent company is

Monte Christo Shipholdings, Inc. (“Monte Christo”). Monte

Christo owns 100% of MAL and is not a publicly traded

company.

Acomarit Services Maritimes, S.A., now known as

V. Ships Switzerland, S.A. (“Acomarit”), is wholly owned

by the V. Ships Group. Close Brothers owns 45% of the parent

company.

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TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW .

CORPORATE DISCLOSURE STATEMENT .....

TABLE OF CONTENTS 2... ccs cccsecccencees

TABLE OF CITED AUTHORITIES ............

OPINIONS BELOW ...... 0... cc cccvsccecevrceces

yy gy 2. Ve Bs J) oo

STATEMENT OF THE CASE .........---+5+5:

REASONS FOR DENYING THE PETITION

PERCEIVED MISSTATEMENTS MADE IN THE

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vk a acca sass ees vee deen aeees

Page

TABLE OF CITEDAUTHORITIES

CASES

Adams vy. Unione Mediterranea di Sicurta,

364 F.3d 646 (5" Cir. 2004) .............005.

Bann vy. Ingram Micro, Inc.,

POR FS Gee 0 Oe FTE kk is ces aacnvaens

Base Metal Trading, Ltd. v. OJSC ‘“‘Novokuznetsky”

Aluminum Factory,

283 F.3d 208 (4" Cir.), cert. denied, 537 U.S. 822,

123 S. Ct. 101, 154 L. Ed. 2d 30 (2002) .......

Boudreaux v. United States,

280 F.3d 461 (5 Cir. 2002) .................

Chilean Nitrate Corp. v. M/V Hans Leonhardt,

810 F. Supp. 732 ¢E.D. La. 1992) ............

Consolidated Dev. Corp. v. Sherritt, Inc.,

ZUG F.36 1206 C12" Cie. SOUS) ngs cece c recess

Cross v. City of Grand Prairie,

No. 3-96-CV-0446-P, 1998 WL 133143, 1998 US.

Dist. LEXIS 3477 (N.D. Tex. March 17, 1998) ...

Dardana Ltd. v. A.O. Yuganskneftegaz,

SUF F.50 208 CHOC, BUGS) ccc cre incccness

Dow Chem. Co. v. MV Roberta Taylor,

feo we Bre i > Ae, ot rr

Page

Cited Authorities

Page

Glencore Grain Rotterdam B.V. v. Shivnath Rai

Harnarain Co.,

288 F.3d 1114 (9% Cir. ZOOZ) 2. cers vccesceses 5

Great Plains Trust Co. v. Morgan Stanley Dean Witter,

313 F.3d 305 (5 Cir. 2002) ......ceeececeess 21

Grigson v. Creative Artists Agency, L.L.C.,

210 F.3d 524 (5 Cir. 2000) .......- eee e eens 16

In re City of El Paso,

887 F.2d 1103 (D.C. Cir. 1989) (per curiam) ... 12

In re GHR Energy Corp. v. Crispin Co., Ltd.,

791 F.2d 1200 (5" Cir. 1986) ........-. ee eee, 21

In re San Joaquin Roast Beef v. Union Bank,

7 F.3d 1413 (9 Cir. 1993) ....- cece cece evens 12

ISI Int'l, Inc. v. Borden Ladner Gervais LLP,

256 F.3d 548 (7" Cir. 2001) «0.6.6... eee eee eee 5

Jackson v. OMI Corp.,

245 F.3d 525 (5™ Cir. 2001) ......- ee eee cece: 6

Loumar, Inc. v. Smith,

698 F.2d 759 (5" Cir. 1983) ....... eee eee eee 6

McAllister v. United States,

348 U.S. 19, 75 S. Ct. 6, 99 L. Ed. 20 (1954) ... 6

Montalbano v. Easco Hand Tools, Inc.,

766 F.2d 737 (2™ Cir. 1985) ...-.- cece ececees 26

Cited Authorities

Page

Next Level Communications LP v. DSC

Communications,

179 F.36@ 244: (5" Cin, 1998) cn cccccdncasccseces 9-10

Nutis v. Penn Merchandising Corp.,

610 F. Supp. 1573 (E.D. Pa. 1985), aff'd, 791 F.2d

949 CO Cle TO kien cc voeantasee ee 12

Rogers v. Hartford Life and Accident Ins. Co.,

167 F.36 SSS CS" Ce, FOOD aces cv vaaeeeenees 24

Saudi v. Acomarit Maritimes Services [sic], S.A.,

245 F. Supp.2d 662 (E.D. Pa. 2003) .......... a Sa

Saudi v. V. Ships Switzerland, S.A.,

No. 03-1307, 2004 WL 626811 (4" Cir. Mar. 31,

POOR gv inenndckeekeen eee 3

Stanga v. McCormick Shipping Corp.,

268 F.2d 544. (5 Cir, 1959) <.. 0. ccs ceecneves 24, 25

Thompson vy. Brown,

91 F.3d 20 (5* Giz, 1OG6) oo vce cccccnsuseesss 25

United States v. Swiss Am. Bank, Ltd.,

193 F.36 30 CF" Cok FOG nae hie ea eeek aan 5

United Steelworkers v. Warrior &

Gulf Navigation Co.,

363 U.S. 574, 80S. Ct. 1347 (1960) .......... 16

Wichita Falls Office Assoc. v. Banc One Corp.,

978 F.3d SiS CS Ce. 1098) sc 5icss i 13,14

Vil

Cited Authorities

Page

STATUTE

28 U.S.C.A. § 2072 (West 1994 & Supp. 2003) ... l

RULES

Rule 4(h)(1), Feo. R. Civ. P. ... ee ee eee eee ee 24

Rule 4(j), Feo. R. CIV. P. 6. eee eee eee 26

Rule 4(k)(2), Feo. R. Civ. P. wo... eee eee eee passim

Rule 4(m), Fep. R. Civ. P. ow. eee ee ee eee 25, 26

Rule 6(b), Feo. R. Civ. P. we eee eee eee eee ae

Rule 56(f), Feo. R. Civ. Po ww. eee eee ee eee ees 13

Rule 59(e), FED. R. Civ. P. ww. eee eee eee 8, 17, 20

Supreme Court Rule 10 ......... cee e sere eeees 3, 6

Supreme Court Rule 15.2 0... .... cess eee eens 7

——e> os So

OPINIONS BELOW

In addition to the opinions included as appendices to

Petitioner Sheriff Saudi’s (“Saudi”) Petition for Writ of

Certiorari (“Petition”), Saudi should have attached as

appendices to the Petition the following opinions:

Memorandum and Order dated May 17, 2000, denying

Saudi’s motion for rehearing of the Order dismissing

Acomarit Services Maritimes, S.A. (“Acomarit”) for lack of

personal jurisdiction. Record Document (“Doc”) 91, record

pages (“R.”) 1165-1145.

Appendix B is the Memorandum and Order dated

February 1, 2000, dismissing Acomarit for lack of personal

jurisdiction. Doc. 44, R. 399-373.

STATUTES INVOLVED

Contrary to Saudi’s assertion, no federal statutes are at

issue in this case. The First Question presented by Saudi in

his Petition is whether the district court erred in dismissing

Acemarit and Marine Atlantic, Ltd. (“MAL”) for lack

of personal jurisdiction pursuant to “28 U.S.C. § 4(k)(2).”

No such statute exists. The Supreme Court has authority,

pursuant to 28 U.S.C.A. § 2072 (West 1994 & Supp. 2003),

to prescribe rules of procedure and evidence. Saudi’s cite

is actually to a rule promulgated by the Supreme Court

pursuant to the above statute: Federal Rule of Civil Procedure

(“Fep. R. Civ. P.” or “Rule”’) 4(k)(2), and not a federal statute.

For the sake of brevity, Respondents incorporate this

paragraph by reference in the discussion below concerning

perceived misstatements of law or fact.

STATEMENT OF THE CASE

Saudi filed suit against numerous parties in the Southern

District of Texas, including the vessel’s operator, Acomarit,

and owner, MAL, for alleged injuries arising out of an

incident involving a shipboard crane aboard the vessel

MARINE ATLANTIC on or about May 17, 1999.

While Saudi was being lowered in a crane basket to a stand-

by vessel, the crane’s boom collapsed causing Saudi to fall

into the ocean and allegedly sustain attendant injuries. The

incident occurred some sixty miles off the southeast coast of

Texas.

On February 1, 2000, the district court dismissed

Acomarit for lack of personal jurisdiction. See Doc. 44,

R. 399-373. Saudi filed a motion for rehearing of the order

dismissing Acomarit, which the court denied on May 17,

2000. See Doc. 91, R. 1165-1145.

On December 20, 2000, the district court dismissed MAL

for lack of personal jurisdiction. See Appendix J to Saudi’s

Petition, p. 110a. Saudi filed a motion for rehearing of the

order dismissing MAL, which the court denied on July 24,

2001. See Appendix F to Saudi’s Petition, p. 70a.

On January 7-10, 2002, the district court held a bench

trial as to the remaining defendants, Marine Transport Lines,

Inc., and Marine Transport Corporation (collectively “MTL”).

On January 25, 2002, the district court entered a final

judgment in MTL’s favor as to all claims against MTL.

See Appendix C to Saudi’s Petition, p. 6a. On February 25,

2002, Saudi filed a notice of appeal of the district court’s

order. The Fifth Circuit assigned case number 02-20235 to

that appeal.

On April 11, 2002, the district court entered a final

judgment ddressing the remaining defendants save Jurong

Shipyard, Ltd. See Appendix B to Saudi’s Petition, pp. 3a-

4a.. In that final judgment the court noted that the dismissals

of Acomarit and MAL were final when entered on January

31, 2000, and December 21, 2000, respectively. /d., p. 4a.

Saudi timely filed a notice of appeal as to this order on May

9, 2002, but did not contest the district court’s findings

concerning the finality of the orders dismissing Acomarit and

MAL in his appellate brief.

After the Southern District of Texas dismissed Acomarit

and MAL, Saudi filed suit in Pennsylvania and Maryland

against Acomarit, and in New York against Acomarit and

MAL, among other parties, for the same injuries arising out

of the same event. The Fourth Circuit has now affirmed the

District Court of Maryland’s dismissal of Acomarit for lack

of personal jurisdiction. See Saudi v. V. Ships Switzerland,

S.A, No. 03-1307, 2004 WL 626811 (4" Cir. Mar. 31, 2004).

The Third Circuit has now heard oral argument concerning

the Eastern District of Pennsylvania’s decision, see Saudi v,

Acomarit Maritimes Services [sic], S.A., 245 F.Supp.2d 662,

681 (E.D.Pa. 2003), dismissing Acomarit for lack of personal

jurisdiction. Jurisdictional discovery is nearing completion

in the Eastern District of New York.

REASONS FOR DENYING THE PETITION

Supreme Court Rule (“Supreme Court Rule” or “Sup.

Cr. R.”) 10 provides, in pertinent part:

Review on a writ of certiorari is not a matter

of right, but of judicial discretion. A petition for a

writ of certiorari will be granted only for

compelling reasons. The following, although

neither controlling nor fully measuring the Court’s

discretion, indicate the character of the reasons

the Court considers:

(a) a United States court of appeals

has entered a decision in conflict with

the decision of another United States

court of appeals on the same important

matter; has decided an important federal

question in a way that conflicts with a

decision by a state court of last resort;

or has so far departed from the accepted

and usual course of judicial proceedings,

or sanctioned such a departure by a

lower court, as to call for an exercise of

this Court’s supervisory power.

* * *

court of appeals has decided an

important question of federal law that

has not been, but should be, settled by

this Court, or has decided an important

federal question in a way that conflicts

with relevant decisions of this Court.

A petition for a writ of certiorari is rarely granted

when the asserted error consists of erroneous

factual findings or the misapplication of a properly

stated rule of law.

Saudi presents no issues that warrant consideration by

this Honorable Court. As to Respondents Acomarit and MAL,

Saudi cites to no United States Supreme Court, United States

court of appeals or state court of last resort decisions that

conflict with the Fifth Circuit Court of Appeals’ decision in

Sieh all ts citi BALE tn ee

this case. Moreover, the circuit courts have consistently

interpreted how Rule 4(k)(2) applies in deciding whether

general personal jurisdiction exists under that rule. See, e. g.,

Adams v. Unione Mediterranea di Sicurta, 364 F.3d 646, 651

(S" Cir. 2004) (“We agree with the Seventh Circuit, thai a

piecemeal analysis of the existence vel non of jurisdiction in

all fifty states is not necessary. Rather, so long as a defendant

does not concede to jurisdiction in another state, a court may

use 4(k)(2) to confer jurisdiction.”), citing ISI Int'l, Inc. vy.

Borden Ladner Gervais LLP, 256 F.3d 548, 552 (7* Ciz,

2001); Dardana Ltd. v. A.O. Yuganskneftegaz, 317 F.3d 202,

207 (2d Cir. 2003) (when personal jurisdiction over foreign

corporation is based upon Rule 4(k)(2), the due process

analysis involves assessing contacts with United States as a

whole); United States v. Swiss Am. Bank, Ltd., 191 F.3d 30,

36 (1* Cir. 1999) (same); Glencore Grain Rotterdam B.V. y.

Shivnath Rai Harnarain Co., 284 F.3d 1114, 1126 (9" Cir,

2002) (Rule 4(k)(2)

operates when three conditions are met: (1) the

cause of action must arise under federal law; (2)

the defendant must not be subject to the personal

jurisdiction of any state court of general

jurisdiction; and (3) the federal court’s exercise

of personal jurisdiction must comport with due

process. Thus, the ruie provides for what amounts

to a federal long-arm statute in a narrow band of

cases in which the United States serves as the

relevant forum for a minimum contacts analysis.

citing Swiss Am. Bank, 191 F.3d at 36. (Emphasis in original);

Base Metal Trading, Ltd. v. OJSC “Novokuznetsky”

Aluminum Factory, 283 F.3d 208, 215 (4" Cir.), cert. denied,

537 U.S. 822, 123 S.Ct. 101, 154 L.Ed.2d 30 (2002), citing

Swiss Am. Bank, 191 F.3d at 41, 45; Consolidated Dey. Corp.

v. Sherritt, Inc., 216 F.3d 1286 (11" Cir. 2000) (same

analysis). Because no conflict exists between the circuit

courts in terms of how each has interpreted Rule 4(k)(2), no

need exists for this Court to “settle” the application of this

rule as discussed in Supreme Court Rule 10(c).

Because no conflict exists between any judicial decisions

in this case, Saudi is left with arguing that the Fifth Circuit’s

decision “so far departed from the accepted and usual course

of judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of this Court’s

supervisory power.” Sup. CT. R. 10. Nothing could be further

from the truth in this case. The Southern District of Texas

and the Fifth Circuit Court of Appeals correctly applied the

law to the facts. In the context of a personal jurisdiction

challenge, a district court’s factual findings are reviewed for

clear error, see Loumar, Inc. v. Smith, 698 F.2¢ 759, 76% {£"

Cir. 1983), as they are in admiralty cases. See Dow Chem.

Co. v. MV Roberta Taylor, 815 F.2d 1037, 1042 (5" Cir. 1987);

Boudreaux v. United States, 280 F.3d 461, 466 (5" Cir. 2002);

Jackson v. OMI Corp., 245 F.3d 525, 528 (5 Cir. 2001).

‘A finding 's clearly erroneous if a review of the record leaves

‘a definite and firm conviction that a mistake has been

committed.” /d., quoting McAllister v. United States, 348 U.S.

19, 20, 75 S. Ct. 6, 99 L. Ed. 20 (1954). Because the district

court’s findings of fact were not clearly erroneous and the

application of those facts to an analysis of generat jurisdiction

comports with appellate precedent, the district court correctly

dismissed the Respondents for lack of personal jurisdiction.

The record on appeal and the district court’s analysis of the

facts, as affirmed per curiam by the Fifth Circuit, demonstrate

that tne lower court’s findings were not clearly erroneous.

Respondents discuss Saudi’s various factual allegations

below.

PERCEIVED MISSTATEMENTS

MADE IN THE PETITION

Pursuant to ©*»reme Court Rulel5.2, which provides,

among other things, that “[c]ounsel are admonished that they

have an obligation to the Court to point out in the brief in

opposition, and not later, any perceived misstatement made

in the petition”, Respondents perceive that Saudi made the

following misstatements in his Petition, and address each

seriatim:

1. Saudi asserts in his Petition at page 8, paragraph 3:

“Garrett performed his work for Acomarit out 01 his house

in Bethlehem or Nazareth, Pennsylvania.”

Remarks: Saudi’s jurisdictional argument with respect

to Acomarit centers around the activities of Thomas Garrett

(“Garrett”), who inspected the port side crane aboard the

MARINE ATLANTIC in 1997, more than two years before

Saudi’s incident on May 17, 1999. Record document (“Doc.”)

248, record page (“R.”) 3802. During that visit, Garrett did

not observe the crane coupling at issue because it was not

susceptible to inspection. Doc. 248, R. 3814, 3801.

Garrett was not Acomarit’s employee. Saudi deposed

Garrett, and the district court “reviewed the record

particularly Saudi’s supplement and Garrett’s deposition

testimony, in detail, to determine what the evidence

demonstrates regarding Garrett’s factual and legal

relationship to Acomarit Services Maritimes, Osprey, and

Plaintiff.” Doc. 264, R. 4180. The district court was fully

apprised of Garrett’s role in this case before the court

entered a final judgment addressing Acomarit. Dec. 264,

R. 4189-4175.

Garrett testified that he was an employee of Osprey-

Acomarit, Doc. 243, R. 3760, p. 32, lines 15-16, who left

the company’s employ in February 1999, Doc. 243, R. 3684,

p. 119, lines 22-25, approximately three months before

Saudi’s May 17, 1999, accident, and only worked in the role

of an independent consultant on Acomarit’s behalf. Doc. 248,

R. 3798, p. 312, line 8 through p. 313, line 15. Garrett

attended various Acomarit-managed vessels, among others,

to address regulatory compliance issues. Doc. 243, R. 3690,

p. 88, lines 11-25; Doc. 248, R. 3803, p. 73, line 19 through

p. 74, tine 20, and p. 75, lines 4-11. Acomarit did no: control

his services as a consultant. Doc. 248, R. 3798, p. 313,

lines 2-10.

Moreover, Garrett was not Acomarit’s agent. Doc. 248,

R. 3798, p. 313, line 16 through p. 314, line 3. He “had no

responsibilities or duties” aboard the vessels he attended.

Id.; see also Doc. 243, R. 3684, p. 117, line 24 through p.

119, line 18. He could not sign contracts or enter any

agreements on behalf any of the vessels that he attended, or

any of the management groups for which he worked,

including Acomarit. Doc. 248, R. 3798, p. 313, line 16

through p. 314, lines 3, and 13-17. Saudi’s allegations that

he did not have an adequate opportunity to discover Garrett’s

role before the district court dismissed Acomarit are without

merit because (1) he had an opportunity to conduct discovery,

which he failed to do; (2) he failed to request an extension

of time to complete his jurisdictional discovery before the

district court ruled on Acomarit’s pending motion; (3) once

Saudi ceposed Garrett, the evidence adduced demonstrated

that Garrett’s activities do not change the jurisdictional

analysis; and (4) even if Garrett’s testimony did bear upon

jurisdictional contacts, Saudi jailed to file a Rule 59(e)

motion based upon newly discovered evidence.

Nevertheless, Saudi then attempted to bring before the

Fifth Circuit ostensible eviden:e, outside the record, allegedly

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obtained in the Pennsylvania action. To that end, Saudi makes

the allegation set forth in item number 1 above. In the

Pennsylvania action, the district court quoted Garrett’s

affidavit, which stated, with respect to work at Garrett’s home

in Pennsylvania: “In most cases, | prepared my reports while

still aboard the vessel. In a small number of cases, I completed

the preparation of my reports at home. I also occasionally

received an e-mail, fax and telephone call relating to ship

visits while at home.” Saudi, 245 F.Supp. at 672. There is no

evidence that such reports or communications related to

Acomarit-managed vessels.

2. Saudi asserts in his Petition at page 8, paragraph 6:

“Osprey agreed to take on Garrett as Acomarit’s clandestine

employee when the joint venture was formed on June l,

1994.”

Remarks: In the Pennsylvania action, Saudi liti gated the

issue as to whether a joint venture existed between Acomarit

and Osprey-Acomarit. See Saudi, 245 F.Supp.2d at 675. The

Eastern District of Pennsylvania held that:

Plaintiff asserts that Osprey-Acomarit and

Acomarit entered a joint venture to disguise

Acomarit’s business affairs carried out by Garrett,

its alleged Pennsylvania agent. (P1l.’s Second

Supp. Resp. Def.’s Mot. Dismiss at 8). However,

Plaintiff has not offered any proof of this alleged

joint venture, and indeed the only agreement

regarding Osprey-Acomarit’s formation is

between American Automar and Acomarit

Holdings Limited of Bermuda. . . .

Id. Given the Pennsylvania court’s holding, Saudi is barred

from re-litigating whether a joint venture existed between

Acomarit and Osprey-Acomarit. See e.g., Next Level

Communications LP v. DSC Communications, 179 F.3d 244,

250 (5" Cir. 1999) (settin’ forth elements of collateral

estoppel). The Pennsylvan) « court’s decision demonstrates

that jurisdictional allegations based upon the purported joint

venture status are without merit.

See also remarks in response to item numbers 1, supra,

and 10 infra. Garrett was not Acomarit’s “clandestine

employee.”

3. Saudi asserts in his Petition at page 9, paragraph 7,

third sub-paragraph:

Garrett, by his own admission, as Port Captain,

was responsible for insuring cargo safety aboard

the vessels he attended which included the Marine

Atlantic. ... Under these facts as admitted by

Garrett, Acomarit, as the manager of the vessel,

and MAL, as the owner of the vessc!, had

sufficient contacts with the United States to be

held for jurisdictional purposes pursuant to

28 U.S.C. 4(k)(2) [sic].

Remarks: Although Saudi asserts that “Garrett, by his

own admission, as Port Captain, was responsible for insuring

cargo safety aboard the vessels he attended which included

the Marine Atlantic’, Saudi cites to no record evidence in

support of this proposition. No evidence exists that any of

Garrett’s work aboard the Marine Atlantic occurred within

the United States. In fact, just the opposite was true.

The Marine Atlantic was an ultra large crude carrier that could

not enter U.S. waters because of its deep draft. R. 2455. Thus,

Garrett’s activities aboard the Marine Atlantic do not bear

upon Acomarit’s jurisdictional contacts with the United

States.

4. Saudi asserts in his Petition at page 10: “Saudi served

written interrogatories and requests for production seeking

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discovery from Acomarit months before the District Court’s

dismissal. Acomarit’s counsel strung Saudi’s counsel along

by exchanging letters agreeing to answer the discovery. . . .”

Remarks: Saudi failed to request an extension of the

discovery period before the district court ruled on Acomarit’s

motion to dismiss. As a result, Saudi cannot be heard to

complain about the district court’s ruling on the pending

motion, which both sides had fully briefed, because of

discovery requests made after the motion was ripe for

adjudication.

Acomarit provided its answers to Saudi’s first set of

interrogatories and requests for production of documents on

January 14, 2000, more than two weeks before the agreed

date to produce those responses, and more than two weeks

before the district court issued its order dismissing Acomarit.

Doc. 49, R. 450, 449-439, and 429-424.

Saudi issued his second set of requests for production

on November 30, 1999, Doc. 49, R. 434, despite the pendency

of Acomarit’s submitted motion to dismiss which had been

filed on August 27, 1999. Doc. 9, R. 66-56. Saudi filed a

response to that motion on September 20, 1999, and a

supplemental submission on September 22, 1999. Doc. 14,

R. 87-75; Doc. 15, R. 91-88. Acomarit filed a reply brief on

October 5, 1999. Doc. 16, R. 100-92. Saudi filed a Sur-reply

on October 14, 1999. Doc. 19, R. 154-139. These were the

only pre-decisional briefs filed in conjunction with this

motion. Thus, by October 14, 1999, Acomarit’s motion to

dismiss was ripe for adjudication. Saudi was not entitled to

file any further briefs on this motion without leave of court.

Again despite the pendency of the submitted motion,

Acomarit nevertheless agreed to use its best efforts to provide

responses to Saudi’s second requests for production by

January 31, 2000. Doc. 49, R. 451.

On January 31, 2000, the district court signed its order

dismissing Acomarit for lack of personal jurisdiction. Doc.

44, R. 373. The district court’s order granting Acomarit’s

motion to dismiss rendered moot all discovery issues as to

Acomarit. See Nutis v. Penn Merchandising Corp., 610

F. Supp. 1573, 1583 n.17 (E.D. Pa. 1985), aff'd, 791 F.2d

919 (3 Cir. 1986); In re City of El Paso, 887 F.2d 1103

(D.C. Cir. 1989) (per curiam); cf. In re San Joaquin Roast

Beef v. Union Bank, 7 F.3d 1413, 1416-1418 (9" Cir. 1993)

(effective date of bankruptcy court order is date signed by

judge, not date of entry by clerk).

The district court did not abuse its discretion in denying

Saudi’s motion to compel, which was filed for the first time

after the district court dismissed Acomarit. Saudi could have,

but did not, make a request to extend the discovery period

before the district court ruled on Acomarit’s motion to

dismiss. The motion to dismiss was fully briefed and ripe

for adjudication as of October 14, 1999. From the case’s

inception through the district court’s order of dismissal Saudi

neither noticed nor took a single deposition of an Acomarit

witness or representative. Saudi cannot ascribe his dilatory

actions to Acomarit. The district court’s order was completely

proper.

5. Saudi asserts in his Petition at page 10: “Acomarit’s

obstructionist behavior, and its failure to comply with

discovery requests, denied Saudi his right to obtain discovery

relevant and material to Acomarit’s jurisdictional motion

before the District Court’s dismissal.”

Remarks: Acomarit did not obstruct the discovery

process nor deny any right to obtain discovery. If a party

desires additional time to conduct discovery before a district

court rules on a summary judgment motion, or a motion to

dismiss converted to a summary judgment motion,

ead tS a. ee SD

“the general rule requires substantial compliance with Rule

56(f).” Wichita Falls Office Assoc. y. Banc One Corp., 978

F.2d 915, 920 (5" Cir. 1992). Rule 56(f) provides that:

When Affidavits Are Unavailable. Should it

appear from the affidavits of a party opposing the

motion that the party cannot for reasons stated

present by affidavit facts essential to justify the

party’s opposition, the court may refuse the

application for judgment or may order a

continuance to permit affidavits to be obtained or

depositions to be taken or discovery to be had or

may make such other order as is just.

A “very narrow exception” to the above rule exists.

Wichita Falls Office Assoc., 978 F.2d at 919. If the non-

movant fails to file a Rule 56(f) motion, in order to obtain a

continuance of discovery, the non-movant must establish that

he (1) requested extended discovery prior to the court’s ruling

on summary judgment; (2) put the trial court on notice that

further discovery pertaining to the summary judgment motion

was being sought; and (3) demonstrated to the trial court

specifically how the requested discovery pertained to the

pending motion. /d.

In this case, Saudi did not file a Rule 56(f) motion as to

Acomarit, although Saudi was generally aware of the

procedure, and filed similar motions during the same time

frame as to defendant Appleton. Doc. 12, R. 73 -71; and

Doc. 14, R. 189-178. Before the district court issued its order

of dismissal, Saudi filed three briefs, and no others, relating

to Acomarit’s motion to dismiss: an original response filed

September 21, 1999; a supplement filed September 23, 1999:

and a sur-reply filed October 14, 1999. Doc. 14, R. 87-75;

Doc. 15, R. 9-88; and Doc. 19, R. 154-139. None of those

briefs requested an extension of time to conduct discovery

before the district court ruled on the pending motion. /d. The

first two briefs made no reference to discovery at all, and the

third simply advised the court of Saudi’s desire for full and

complete discovery without demonstrating to the trial court

specifically how such discovery pertained to the pending

motion. /d. Thus, Saudi met neither the general rule, nor the

narrow exception set forth in Wichita Falls Office Associates.

For the foregoing reasons, the district court did not abuse its

discretion when it found that Saudi:

had facts and jurisdictional discovery at his

disposal, as he admits, and yet he still failed to

make a prima facie showing of personal

jurisdiction over Acomarit. Nor did he move

timely to propound discovery, to compel, or to

request an extension of time. The Court sees little

reason to exercise its discretion to allow additional

discovery now, when Saudi has still not shown

any specific need or expectation to support the

possible success of such. Doc. 91, R. 1160.

6. Saudi asserts in his Petition at page 10: “The evidence

concerning Garrett’s activities as an employee-agent, on

behalf of Acomarit in the United States, was not ‘available’

when the District Court granted Acomarit’s jurisdictional

motion on January 31, 2000.”

Remarks: Same as item numbers 1, supra, and 10 infra.

7. Saudi asserts in his Petition at page 10:

Acomarit made jurisdictional misrepresentations.

On P.2 of its original Motion to Dismiss for lack

of personal Jurisdiction filed in the District Court,

Acomarit’s [sic] through its counsel stated that

Acomarit does not have offices in the United

States or employees or officers who work or reside

in the United States. Neither Acomarit, nor its

counsel, ever retracted this statement from August

27, 1999, until January 31, 2000, when the District

Court granted its motion.

Remarks: Same as item numbers 1, supra, and 10 infra.

8. Saudi asserts in his Petition at page 11: “It is now

known that a joint venture existed in the past between

Acomarit and principals of Osprey Ship Management, Inc.

The joint venture, Osprey-Acomarit Ship Management, Inc.,

was terminated in [sic] December 31, 1998.”

Remarks: Same as item number 2 above

9. Saudi asserts in his Petition at page 11:

The obstructionist activities of Acomarit worked,

because the District Court Judge entered an order

to Saudi that any further efforts to continue

arguments that Acomarit should be included as a

named Defendant in his case, after Saudi had been

given extensive time to present a primary facie

case of personal jurisdiction over Acomarit, would

result in monetary sanctions.

Remarks: In response to Acomarit’s motion for entry of

final judgment, Saudi continued to argue that Acomarit was

subject to the district court’s personal jurisdiction. Doc. 132,

R. 1690. in that response, Saudi presented the district court

with an arbitration clause from a time charter agreement

between MAL and Koch, which identified New York as the

situs for arbitration concerning any disputes arising out of

that agreement. Doc. 132, R. 1684. Saudi argued that this

clause established a jurisdictional contact between Acomarit

and the United States, and that Acomarit had failed to produce

it duri;:g discovery. Doc. 132, R. 1690-1689.

Saudi’s arbitration clause argument was specious.

Acomarit was not a party to the charter party between MAL

and Koch, and, thus, was not bound by its terms. Doc. 140,

R. 1818-1795; see also United Steelworkers v. Warrior &

Gulf Navigation Co., 363 U.S. 574, 582, 80S. Ct. 1347, 1353

(1960) (“a party cannot be required to submit to arbitration

any dispute which he has not agreed so to submit.”). Areview

of the charter agreement shows that Acon.arit was not named

as a party thereto nor ts it referenced therein. Doc. 140,

R. 1818-1795. The arbitration clause to which Saudi cited in

his opposition to the motion for entry of final judgment made

no reference to third parties or to Acomarit specifically.

Doc. 140, R. !795. Acomarit was not bound to arbitrate any

dispute involving the MAL-Koch charter agreement in

New York.

Saudi’s argument was speculative at best. Neither MAL

nor Koch demanded arbitration in New York. The arbitration

clause was at ail times inchoate, and represented no more

than a contractual promise between MAL and Koch to

arbitrate in New York at some future time in the event of a

dispute between those parties. No dispute ever existed

between those parties, and Saudi lacked standing to compel

arbitration between those parties in New York. See Grigson

v. Creative Artists Agency, L.L.C., 210 F.3d 524, 527-528

(Sth Cir. 2000). No arbitration panel ever had jurisdiction to

hear any dispute between MAL and Koch in New York,

because no such panel was ever convened. In addition, even

if arbitration were demanded by one or the other of those

parties, such a post hoc proceeding could not create a

minimum contact of Acomarit at the time of the alleged

incident either in Texas or with the nation as a whole.

The mere existence of ar inchoate New York arbitration

clause in the MAL-Koch charter could not serve as a

legitimate basis for arguing that Acomarit was subject to

jurisdiction in Texas.

Even assuming, arguendo, that Acomarit was subject to

the New York arbitration clause and the clause constituted a

waiver of personal jurisdiction as Saudi’s counsel suggested,

Doc. 132, R. 1689-1688, that clause does not establish any

contact with Texas for purposes of establishing personal

| jurisdiction, and would have served to defeat Saudi’s

Rule 4(k)(2) argument because Acomarit, ostensibly, would

have submitted to New York jurisdiction under Saudi’s

reasoning. The availability of 4(k)(2) jurisdiction does not

exist when jurisdiction exists in the courts of general

jurisdiction in one or more of the states. See Fep. R. Civ. P.

. 4(k)(2). Thus, under Saudi’s own reasoning, the arbitration

clause could not serve as a basis to assert personal jurisdiction

over Acomarit in Texas or under Rule 4(k)(2). The inchoate

New York arbitration clause, even if it applied, did not

augment the minimum contacts necessary to establish

| personal jurisdiction over Acomarit.

The district court never ordered Saudi not to file a motion

based upon newly discovered evidence. The court’s

admonition :n its order of August 31, 2000, to Saudi and his

counsel was to not make any further extraneous “arguments”

and said nothing about motions based upon “evidence.”

Argument is not evidence. Saudi’s discussion of the

arbitration clause in response to Acomarit’s motion for entry

of final judgment lacked any evidentiary value for purposes

of a jurisdictional analysis. The district court did not abuse

its discretion in admonishing Saudi not make further

argument to include Acomarit as a defendant.

In any event, Saudi never perfected an appellate issue

; by filing a Rule 59(e) motion based upon newly discovered

evidence relating to Acomarit’s jurisdictional contacts in this

case.

10. Saudi asserts in his Petition at pages 11-12:

The jurisdictional misrepresentation, i.e. that

Acomarit had no employees or agents resident

[.1c} 1n the United States, made in the Motion to

Dismiss signed by Acomarit’s counsel, taints the

finding of personal jurisdiction, even if the

District Court Judge did not base her jurisdictional

dismissal on Rule 4(k)(2) F.R. Civ. P. [sic}

[citation omitted].

Remarks: Saudi alleges that Acomarit misrepresented

to the district court that it had no employees or officers who

work or reside in the United States. These allegations are

not true. In its original motion io dismiss, Acomarit

represented that it had no employees or officers who worked

or resided in Texas. Doc. 9, R. 65. Acomarit has consistently

maintained that Garrett was not its employee. See remarks

to item number 1, supra.

In any event, Saudi failed to depose any Acomarit

witnesses or corporate representatives between the time

Acomarit filed its motion to dismiss on August 27, 1999,

and the date that the district court issued its order dismissing

Acomarit for lack of personal jurisdiction on January 31,

2000. Additionally, Saudi failed to request an extension of

the discovery period during the pendency of Acomarit’s

motion to dismiss. Saudi can not be heard to complain when

he failed to actively pursue discovery.

Even if Garrett’s identity and activities had been known

to Saudi before Acomarit’s dismissal, that information would

not have affected the jurisdictional analysis. After dismissing

Acomarit for lack of personal jurisdiction but while Acomarit

awaited entry of final judgment, the district court addressed

the totality of Garrett’s involvement in this case. Doc. 264,

A ee eee

de Aparna

R. 4187-4175. In adjudicating Osprey’s motion for summary

judgment, the district court reviewed Garrett’s December 19,

2000 deposition transcript “in detail”, Doc. 264, R. 4180,

and could have, but did not, amend its order dismissing

Acomarit. Similarly, Saudi could have, but did not, file a

Rule 59(e) motion based upon newly discovered evidence.

The district court was fully apprised of Garrett’s role in this

case before the court entered a final judgment addressing

Acomarit. Doc. 264, R. 4189-4175. Garrett testified that he

was an employee of Osprey-Acomarit, Doc. 243, R. 3760,

p. 32, lines 15-16, who left the company’s employ in February

1999, Doc. 243, R. 3684, p. 119, lines 22-25, approximately

three months before Saudi’s May 17, 1999, accident, and

only worked in the role of an independent consultant on

Acomarit’s behalf. Doc. 248, R. 3798, p. 312, line 8 through

p. 313, line 15. Garrett attended various Acomarit-managed

vessels, among others, to address regulatory compliance

issues. Doc. 243, R. 3690, p. 88, lines 11-25; Doc. 248,

R. 3803, p. 73, line 19 through p. 74, line 20, and p. 75, lines

4-11. Acomarit did not control his services as a consultant.

Doc. 248, R. 3798, p. 313, lines 2-10.

Moreover, Garrett was not Acomarit’s agent. Doc. 248,

R. 3798, p. 313, line 16 through p. 314, line 3. He “had no

responsibilities or duties” aboard the vessels he attended.

Id.; see also Doc. 243, R. 3684, p. 117, line 24 through

p. 119, line 18. He could not sign contracts or enter any

agreements on behalf any of the vessels that he attended, or

any of the management groups for which he worked,

including Acomarit. Doc. 248, R. 3798, p. 313, line 16

through p. 314, lines 3, and 13-17. Saudi’s allegations that

he did not have an adequate opportunity to discover Garrett’s

role before the district court dismissed Acomarit are without

inerit because (1) he had an opportunity to conduct discovery,

which he failed to do; (2) he failed to request an extension

of time to complete his jurisdictional discovery before the

district court ruled on Acomarit’s pending motion; (3) once

Saudi deposed Garrett, the evidence adduced demonstrated

that Garrett’s activities do not change the jurisdictional

analysis; and (4) even if Garrett’s testimony did bear upon

jurisdictional contacts, Saudi failed to file a Rule 59(e)

motion based upon newly discovered evidence.

11. Saudi asserts in his Petition at page 12: “Acomarit,

through its Port Captain, Tom Gerrett, who resided in

Pennsylvania and officed [sic] in Bethesda, Maryland, had

numerous contacts with the U.S. as the result of Garrett’s

activities.”

Remarks: Same as item numbers | and 10, supra.

12. Saudi asserts in his Petition at page 12: “The actions

of a joint venturer or the agent of a joint venturer are imputed

to the joint venturer for jurisdictional purposes. [citation

omitted]. All of these decisions gave Acomarit ample

opportunity to mislead Saudi.”

Remarks: Same as item number 2 above.

13. Saudi asserts in his Petition at page 12:

In discovery in the Pennsylvania case Garrett

confessed that he had attended 15 vessels a year

in U.S. ports on Acomarit’s behalf, was

reimbursed for expenses by Acomarit indirectly

through payments to Osprey-Acomarit, and

received a salary from Osprey-Acomarit by

electronic transfer in his hometown of Nazareth,

Pennsylvania. When pressed for records refiecting

his financial dealings with Acomarit, Garrett

claimcd he was required to send Acomarit the

originals and did not retain copies.

eNpete Nere e a De tr ace eee

cg Oe 16 a Whi ae aha AEN

Remarks: None of this evidence is part of the Record in

this case, and amounts to impermissible argument by Saudi.

See Great Plains Trust Co. v. Morgan Stanley Dean Witter,

213 F.3d 305, 315 (5" Cir. 2002) (“this court is barred from

considering filings outside the record on appeal, and

attachments to briefs do not suffice.”), citing In re GHR

Energy Corp. v. Crispin Co., Ltd., 791 F.2d 1200, 1201-02

(5" Cir. 1986).

14. Saudi asserts in his Petition at pages 14-15:

MA. never denied Saudi’s Rule 4(k)(2)

jurisdictionul allegations but, instead, relied on

the fact that it had not been served with process,

so that it could defeat application of that rule.

* * *

MAL’s failure to deny Saudi’s Rule 4(k)(2)

jurisdictional pleadings is fatal to the District

Court’s dismissal. Uncontroverted assertions in

jurisdictional pleadings must be taken as true.

(citation omitted]. Since MAL never controverted

Saudi’s allegations of Rule 4(k)(2) against it, but,

instead, merely relied upon insufficiency of

service of process to defeat application of the rule,

Saudi’s allegations “must be taken as

true.”’[citation omitted].

* * *

MAL failed to deny, or to controvert Saudi’s

jurisdictional pleadings under Rule 4(k)(2)

F.R.Civ.P. [sic], so the allegations had to be taken

as true.

Remarks: Although Saudi argues that MAL failed to

raise the Rule 4(k)(2) issue in its jurisdictional pleadings,

and, thus, purportedly waived this issue, MAL contested the

existence of personal jurisdiction under Rule 4(k)(2) in its

Answer. Moreover, a predicate requirement for the assertion

of such jurisdiction is effective service of process, which

Saudi never made upon MAL. In pertinent part, Rule 4(k)(2)

provides that “serving a summons or filing a waiver of service

is also effective ... to establish personal jurisdiction. . .”

See also district court’s order of dismissal, Doc. 237, R. 3616,

n.6 (“The Court agrees that by its express terms Rule 4(k)(2)

providing for nationwide contacts where there is no personal

jurisdiction over a foreign defendant in any state, requiie

[sic] ‘serving a summons or filing a waiver of service’ to

establish jurisdiction.”).

The record is devoid of anv effort by Saudi to serve

process upon MAL, save for the defective service that formed

the basis of MAL’s motion to set aside entry of default,

Doc. 96, R. 1229 to 1202, which the district court granted

on August 31, 2000. Doc. 159, R. 2388 and 2370. Saudi’s

assertion that Hamshaw was served in New York is not

correct. Saudi attempted to serve Hamshaw via mail service,

but the district court set aside that attempted service as

improper. Doc. 159, R. 2391, 2388 and 2370. Between the

time Saudi filed his original complaint in June 1999 and the

district court’s entry of final judgment in March 2002, Saudi

never attempted to serve process upon MAL in a foreign

country. See Civil Docket for Case No. 99-CV-2367.

Although Saudi alleges the existence of Rule 4(k)(2)

jurisdiction over MAL, a predicate requirement for such

jurisdiction is service of process against the non-resident

defendant. See Rule 4(k)(2). Saudi never met that

requirement. Thus, no basis exists to assert Rule 4(k)(2)

jurisdiction over MAL.

15. Saudi asserts in his Petition at page 13: “When

compelled to produce records, Acomarit responded that it

had none, indicating they were destroyed. All of these

machinations deprived Saudi of a full and fair opportunity

to try the issue of jurisdiction against Acomarit.”

Remarks: In the Pennsylvania action, the district court

judge specifically addressed Saudi’s allegations with respect

to Acomarit’s alleged destruction of records:

{

}

Plaintiff’s bald assertion that Acomarit engaged

in a scheme to destroy all of its records reflecting

activities in the United States is not supported by

any evidence. [citation omitted]. Plaintiff has had

a full opportunity for discovery in which to

attempt to prove such an allegation, but he has

failed to present any evidence supporting this bare

claim.

Saudi, 245 F. Supp.2d at 675.

16. Saudi asserts in his Petition at page 15:

Dismissal of a Complaint on the ground that

process has not been properly served is

inappropriate when there exists the reasonable

prospect that such service may yet be obtained.

In such instances, the District Court should, at

most, quash service leaving Plaintiffs free to effect

proper service. [citation omitted]. Plaintiff had

served Robert Hamshaw, as an agent of Marine

Atlantic, Ltd. in New York.

Remarks: Saudi attempted service upon MAL by mail

to Hamshaw, MAL’s assistant secretary, who works in

New York for Alpha Export Services, Inc. Doc. 96, R. 1229

to 1202. Upon MAL’s motion, Doc. 96, R. 1229 to 1202, the

district court set aside the default judgment premised upon

that defective form of service, which the Federal Rules no

longer recognize as acceptable. Doc. 159, R. 2391 and 2388.

Saudi knew of Hamshaw’s employment status with MAL as

early as May 22, 2000, Doc. 96, R. 1211; Doc. 174, R. 2767,

and his location in New York as early as March 7, 2000.

Doc. 63, R. 576. Despite Saudi’s knowledge of this

information, he failed to properly serve Hamshaw with

process under Rule 4(h)(1) during the entire pendency of the

action in Texas. See Civil Docket for Case No. 99-CV-2367.

17. Saudi asserts in his Petition at page 15:

Nor should a Complaint be dismissed where the

Plaintiff is likely to be successful in attempts to

serve process where, as here, the 120 day time

limit does not apply to the ‘vagaries of foreign

service’ which prevent imposition of a 120 day

time limit. [citations omitted]. No 120 day time

limit for service applied.

Remarks: Rule 4(m) limits the time for serving process

to 120 days from the time a plaintiff files his original

complaint and requires dismissal of the case, unless the

plaintiff shows good cause. See Rogers v. Hartford Life and

Accident Ins. Co., 167 F.3d 933, 937 (5 Cir. 1999)

(Rule 4(m) requires “dismissal of a case in which the plaintiff

does not accomplish service within 120 days after filing the

complaint, unless the plaintiff can show good cause for not

doing so.”); see also Bann v. Ingram Micro, Inc., 108 F.3d

625, 626 (5" Cir. 1997); Cross v. City of Grand Prairie,

No. 3-96-CV-0446-P, 1998 WL 133143, at *7 1998 US.

Dist. LEXIS 3477, at *20 (N.D. Tex. March 17, 1998).!

1. But see Stanga v. McCormick Shipping Corp., 268 F.2d 544,

554 (5" Cir. 1959) (noting that dismissal is not appropriate unless

(Cont’d)

}

;

“Under rule 4(m), when a plaintiff fails to serve a defendant

within the 120-day period, the district court has two choices:

It may either ‘dismiss the action without prejudice ... or

direct that service be effected within a specified time.’”

Thompson v. Brown, 91 F.3d 20, 21 (5" Cir. 1996) (emphasis

in original). “If good cause exists, the district court must

extend the time for service. If good cause does not exist, the

court may, in its discretion, decide whether to dismiss the

case without prejudice or extend time for service.” Jd.

(emphasis in original). A party may seek additional time for

cause shown before the period elapses, or based upon

excusable neglect thereafter. See Fep. R. Civ. P. 6(b).

In this case, Saudi never made an application to extend

the 120-day period for serving process. See Civil Docket for

Case No. 99-CV-2367. After the district court on August 31,

2000, set aside Saudi’s first attempt to serve process upon

MAL as defective, Doc. 159, R. 2388, Saudi never made any

effort to serve process, properly or otherwise, upon MAL.

See Civil Docket for Case No. 99-C V-2367; see also Chilean

Nitrate Corp. v. M/V Hans Leonhardt, 810 F. Supp. 732, 735

(E.D. La. 1992) (“dismissal is appropriate only where the

plaintiff has made little or no effort to effect proper service.”).

Moreover, in none of his briefs did Saudi ever present the

district court with good cause for his failure to serve MAL

with process, nor did Saudi contest his failure to serve MAL

with process. Doc. 174, R. 2771 to 2761; Doc. 246, R. 3796

to 3763. Thus, Saudi has not preserved for appeal the issues

as to whether good cause existed, and whether the district

court correctly found that Saudi did not properly serve MAL

with process.

(Cont'd)

“there is no reasonably conceivable means of acquiring jurisdiction

over the person of a defendant.”). Stanga predates Rule 4(m)’s

adoption, and does not appear to reflect the Fifth Circuit’s current

view of service of process requirements under the Federal Rules.

Additionally, one of the cases cited by Saudi stands

for the proposition that the foreign country exception to the

120-day rule does not apply where the plaintiff never

attempted to serve process in a foreign country.’ Because

Saudi never attempted to serve MAL wit4 process in a foreign

country, the 120-day rule still pertains.

18. Saudi asserts in his Petition at pages 15-16, in his

discussion concerning MAL’s dismissal for lack of personal

jurisdiction: “Any order by this Court should make it clear

that the District Court’s improvident dismissal has no res

judicata, collateral estoppel, or issue preclusion effect,

because Saudi was denied a full and fair opportunity to

litigate the issue of jurisdiction.”

Remarks: The Record belies Saudi’s assertion that he did

not have a full and fair opportunity to conduct jurisdictional

discovery. Saudi filed suit in June 1999. The district court’s

docket control order set the discovery deadline as December

1, 2000. The district court set aside the default judgment

entered against MAL on August 31, 2000. MAL then filed

its motion to dismiss on September 12, 2000. The district

court issued its original order of dismissal on December 21,

2000, and denied Saudi’s motion for rehearing on July 24,

2001. Docs. 237 and 274. Ample time (approximately two

2. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740

(2 Cir. 1985)

Subdivision 4(j), with its foreign country exception to

the 120-day period for service, is simply inapplicable

here, because [plaintiff] never attempted to serve process

in a foreign country under subdivision (i); the 120-day

time limit imposed by Rule 4(j) seems therefore perfectly

proper, especially since [plaintiff] has not exactly bent

over backward to effect service.

Rule 4(m) serves to amend and replace the old Rule 4(j).

and a half months between the filing of the motion to dismiss

and the discovery deadline; three months between the time

the motion to set aside was granted and the discovery

deadline; and almost 18 months since the case’s inception)

existed to conduct jurisdictional discovery, and Saudi did so

as evidenced by his depositions of Robert Hamshaw and

Gregory Doyle, both of which the district court considered

in ruling as to whether personal jurisdiction existed over

MAL. Doc. 237, R. 3615 and 3614; Doc. 274, R. 4272-4266.

CONCLUSION

For the foregoing reasons, Respondents Acomarit and

MAL respectfully pray that this Court deny Saudi’s Petition

for Writ of Certiorari in this case, and for all such other and

further relief as may be just and proper.

Respectfully submitted,

THOMAS R. Nork*

KEITH B. LETOURNEAU

BELL, RYNIKER,

LETOURNEAU & NorkK

5847 San Felipe, Suite 4600

Houston, TX 77057

(713)-871-8822

Attorneys for Respondents

Acomarit Services Maritimes, S.A.

and Marine Atlantic., Ltd.

* Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.