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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 542 U.S. 938

## Text

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No. 03-1497

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IN THE

Supreme Court of the United States

CAPTAIN SHERIFF SAUDi,
Petitioner,
v,

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,
v,

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

i
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.

lil

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
Se ee ee ee

vk a acca sass ees vee deen aeees

Page

il

lv
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

24

25

24

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

vi

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

l
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.

2

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.

3

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

ee

4

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.

* * *

(c) a state court or a United States
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

5

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

6

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.

5

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.

8

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

ee ee eee batiet

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9

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,

10

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

ee ee

1]

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.

12

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

13

“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

14

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

15
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

16

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

17

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.

18
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

19

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

20

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.

22

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.

23

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

24

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)

4
>
:
}
;
i

22

“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.

26

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).

27

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_1625%3A3. Public record. Not legal advice.