Bassingthwaighte vs. McDermott Intl, Inc, (5th Cir. 2004)
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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-40385 ROBERT LEE BASSINGTHWAIGHTE, Plaintiff/Appellee, versus McDERMOTT INTERNATIONAL, INC. AND McDERMOTT INCORPORATED, Defendants/Appellants. Appeal from the United States District Court for the Eastern District of Texas (1:90-CV-263) October 17, 1996 Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
EDITH H. JONES, Circuit Judge: * This appeal arises from a dispute with which this court has become intimately familiar. Appellant Bassingthwaighte seeks damages from McDermott International, Inc. (“McDermott, Int’l”) and McDermott, Inc. (“McDermot t, Inc.”) for personal injuries he suffered nearly a decade ago while residing in Scotland and working as a diver off Great Yarmouth in the North Sea. At first glance, the fact that this straightforward claim for personal injuries has commanded the attention of this court in several previous occasions before ever going to trial is mysterious. Under more careful scrutiny, its longevity in the federal courts is the product of forum shopping by the plaintiff’s attorney and of an unfortunate series of orders by the district court that indulged the shopping.
Resolving to deter these tactics, this court affirms the district courtÂ’s dismissal of McDermott, IntÂ’l for want of personal jurisdiction rather than for foru m non conveniens. We must, however dismiss McDermott, Inc. as an appellant for lack of standing but note that this action deprives the district courtÂ’s choice of law ruling of any preclusive effect.
BACKGROUND A brief reiteration of the crucial procedural jockeying in this case will suffice. 1 McDermott, IntÂ’l and McDermott, Inc. are affiliated companies. McDermott, IntÂ’l is chartered in Panama, but has its executive o ffices in New Orleans, Louisiana. McDermott, IntÂ’l conducts no business in Texas, has no agent or employee conducting business in Texas, and owns no property in that state. McDermott, Inc., is a Delaware corporation whose principal place of business is New Orleans.
McDermott, IntÂ’l employed Bassingthwaighte, an American citizen, as a deep sea diver. After his 1987 employment-related injury, Bassingthwaighte first sought redress in Scottish courts, where he filed suit in 1989. When he moved back to the States, he ended up in Beaumont, Texas. Dismissing the action pending in Scotland, he then filed suit against McDermott, IntÂ’l in the United States District Court for the Eastern District of Texas. He later amended this suit to add McDermott, Inc. as a defendant. 2 He has filed two more law suits over the injury.
Much to its consternation, McDermott, Inc., has remained a defendant throughout this litigation, although it has no relation to the events sued upon. According to its affidavits, McDermott, Inc. has never offered employment to Bassingthwaighte, or executed any contract with him, or agreed to have Bassingthwaighte perform any services whatsoever on any vessels owned or operated by McDermott, Inc. But such seamy details are merely substantive, and hardly discouraged BassingthwaighteÂ’s pursuit of McDermott, Inc. Moving directly to the most recent orders issued by the district court, the McDermott parties challen ge the court's decision to dismiss them for forum non conveniens.
But the district court’s dismissal of McDermott, Int’l for forum non conveniens necessarily assumes th at the court exercises personal jurisdiction o ver McDermott, Int’l. As this court has explained, “[i]n the normal case, therefore, the District Court must first determ ine that it possesses both subject matter and in personam jurisdiction before it resolves a forum non conveniens motion. This is so because forum non conveniens is a doctrine which permits a court to decline to exercise jurisdiction C ooper concluded that “[w]hen considered as a whole, the limited contacts [McDermott] International had with Texas are less substantial than those enumerated in Helicopteros, which the Supreme Court held to be insufficient to satisfy due process.” I d. at 13 ( citing Helicopteros Nacio nales de Colombia, S.A. v. Hall,
Because the district court had in personam jurisdiction over McDermott, Inc., i t had the authority to dismiss McDermott, Inc. for forum non co nveniens. Further, read in context of our o pinion on the earlier appeal, the district courtÂ’s decision to rule on forum non conveniens rather than the summary judgment motion was a permissible interpretation of our mandate.
The quest ion then arises whether McDermott, Inc. is a “party aggrieved” b y the dismissal so as to permit it to appeal.
McDermott, Inc. cited no authority directly on point, and we have found none, suggesting that we should review on appeal an entirely diff erent issue, i .e. the summary judgment merits of the plaintiff’s case, than the issue which formed the basis of the trial court’s decision. By contrast, in two cases which did authorize appeal from “favorable” rulings by district courts, the appellate court was asked to decide simply whether dismissal should have been with prejudice rather than without. S ee Disher v. Information Resources, Inc. , 873 F.2d 136, 139 (7th Cir. 1989); La Buhn v. Bulkmatic Transport Co. , 865 F.2d 119, 121 (7th Cir. 1988).
Moreover, although it may regret the decision, McDermott, Inc. asked for dismissal for forum non c onveniens, so it is in a weak position now to complain of getting its motion granted. C ompare Disher, LaBuhn, supra .
Nevertheless, the company observes that it has been disadvantaged by the district courtÂ’s turnabout decisi o n that American law applied regarding the employment contr act and Jones Act, if that ruling has bindi ng effect in future litigation. We note that it does not. Because McDermott, Inc. lacked standing to appeal the favorable forum non conveniens ruling, the trial courtÂ’s choice of law determination has no possible collateral e stoppel effect against McDermott, Inc. See In re: DES Litigation ,
CONCLUSION For the foreg oing reasons, this court AFFIRMS the district court Â’s dismissal of McDermott, IntÂ’l on the alternate basis of a lack of personal jurisdiction in Texas. We DISMISS the appeal of McDermott, Inc. AFFIRMED in part as MODIFIED ; appeal DISMISSED in part.
1 See this courtÂ’s prior opinions on this matter for further details. See, e.g., Bassingthwaighte v. McDermott, Int'l , No. 92-4099 (5th Cir. 1992); In re McDermott, Int'l & McDermott, Inc. , No. 94-40369 (5th Cir. 1994).
2 Bassingthwaigh te has since filed v irtually identical suits in Texas state court in Beaumont against both McDermott defendants and, recently, in state court in Louisiana against, McDermott, IntÂ’l alone.
3 The initial complaint was filed in the district court on April 12, 1990 and the court granted the dismissal for forum non conveniens on April 12, 1995. Strangely, although the district court concluded that it was not a convenient forum for this litigation, the court simultaneously reversed its prior decision that Scottish law governed the dispute and held instead that American law applied to certain aspects of Bassingthwaighte’s injury in the North Sea. 4 Indeed, it is precisely this prospect of relitigation in Texas state court that aggrieves McDermott, Int’l. Accordingly, Bassingthwaighte’s argument that this appeal should be dismissed because McDermott, Int’l cannot appeal a “favorable” ruling is meritless
5 Bassing thwaighteÂ’s counsel conceded at oral argument that McDermott, IntÂ’l has had no additional contacts with Texas since this court decided Cooper
6 As he had to, BassingthwaighteÂ’s counsel conceded at oral argument that the only claims asserted against McDermott, Inc. seek recovery for its negligence as BassingthwaighteÂ’s employer. Counsel also conceded that McDermott, Inc. is not and ne ver has been BassingthwaighteÂ’s employer. Put bluntly, counsel openly acknowledged that Bassingthwaighte has no plausible theory under which McDermott, Inc. could be held liable for BassingthwaighteÂ’s injuries
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This document cites
- U.S. Court of Appeals for the Seventh Circuit - Joe Labuhn, Plaintiff-Appellee, v. Bulkmatic Transport Company, Defendant-Appellant., 865 F.2d 119 (7th Cir. 1988)
- U.S. Court of Appeals for the Seventh Circuit - David C. Disher, Plaintiff-Appellee, v. Information Resources, Inc., Et Al., Defendants-Appellants., 873 F.2d 136 (7th Cir. 1989)
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