Toogood v. Pangloss Ltd., 93-1061
| Decision Date | 20 December 1993 |
| Docket Number | No. 93-1061,93-1061 |
| Citation | 14 F.3d 597 |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. Colin TOOGOOD, Plaintiff-Appellant, v. PANGLOSS LIMITED; Linda M. Greenblatt, Defendants-Appellees, and M/V The Barlovento, Defendant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria.
Jesse Marden Suit, III, Rutter & Montagnag, for appellant.
Mary Lynn Reed, Jackson & Campbell, P.C., for appellees.
Before MURNAGHAN and NIEMEYER, Circuit Judges, and SPROUSE, Senior Circuit Judge.
The instant case is a civil action for damages filed by Colin Toogood, a subject of Great Britain, against Pangloss Limited, a Virginia corporation, and Linda M. Greenblatt, a Virginia resident, alleging a claim under 46 U.S.C. Sec. 688, et seq. (the Jones Act), and a claim for maintenance and cure under the general maritime laws of the United States.
Toogood's claims against Pangloss Virginia and Greenblatt arise out of an accident on May 17, 1989, while he was employed as a cook aboard a sailing vessel, The Barlovento. The accident occurred while Toogood was assisting in docking The Barlovento by taking mooring lines ashore in an inflatable dinghy. Toogood was thrown from the dinghy and suffered significant injury when his head and upper body were struck by the dinghy's propeller.
Having denied earlier summary judgment motions as to the ownership of The Barlovento, the district court eventually declined jurisdiction under the Jones Act, or, in the alternative, dismissed the case on the ground of forum non conveniens. Toogood charged in his appeal that the district court's decision constituted reversible error.
Colin Toogood is a resident of Great Britain, and currently lives there. Greenblatt is a resident of Marshall, Virginia. Pangloss Virginia is a Virginia Corporation that was established and is wholly owned by Greenblatt. Pangloss, Ltd. (hereinafter "Pangloss Cayman") is not a party to the litigation, but is a Cayman corporation established and wholly owned by Greenblatt. Both corporations were managed out of a basement office in Greenblatt's house. The Barlovento is a 73 foot sailboat, which flies the Cayman flag. It primarily was used as a pleasure boat by Greenblatt. The vessel's ownership, during the time of the accident, remains in stark dispute. Toogood has claimed that Greenblatt owned the vessel, while Greenblatt and Pangloss Virginia have claimed that it was owned by Pangloss Cayman.
In May of 1989, Toogood was employed as a member of the crew of The Barlovento. His claims have arisen out of an accident that occurred on May 17, 1989, in Martinique, while he was engaged as a crewman. As the vessel was docking, Toogood attempted to take ashore several mooring lines in The Barlovento's inflatable dinghy. Toogood has alleged that a defect in the dinghy or its engine, caused him to be thrown from the dinghy, at which point he was struck and cut by its propeller.
Toogood filed suit on May 13, 1992 in the United States District Court for the Eastern District of Virginia, Richmond Division. Pangloss Virginia and Greenblatt filed a Motion to Dismiss Toogood's complaint on the basis of improper venue. Toogood filed an opposition to the Motion to Dismiss and the parties agreed by stipulation to a transfer to the Alexandria Division of the Eastern District of Virginia.
On October 27, 1992, Greenblatt filed a Motion for Summary judgment on the issues of Toogood's employment status and vessel ownership. Toogood opposed. By order of the Trial Court dated November 20, 1992, the Motion for Summary Judgment was denied. On December 4, 1992 Greenblatt filed a Motion to Decline Jurisdiction or, in the Alternative, to Dismiss for Forum Non Conveniens. 1 Toogood again opposed. By Order of the district court dated December 18, 1992 the Motion to Decline Jurisdiction, or, in the Alternative, to Dismiss for Forum non Conveniens was granted. On December 23, 1992 Toogood filed a Motion for Reconsideration. By Order of the district court dated January 8, 1993, the Motion for Reconsideration was denied.
At the outset, we note that the jurisdictional question raised by the appeal ordinarily might require the Court of Appeals to remand the case for further development of the record. The ownership of The Barlovento, for example, was left unresolved in the district court. As the Fourth Circuit has held, the defendant shipowner's residence is one of the two most important factors announced in Lauritzen v. Larsen, 345 U.S. 571 (1952), for determining Jones Act jurisdiction. Dracos v. Hellenic Lines, Ltd., 762 F.2d 348, 351 (4th Cir.1985) (en banc), cert. denied, 474 U.S. 945 (1985).
Nevertheless, since the dismissal for forum non conveniens clearly was justified on the record before us, we assume, without deciding, that a more complete record might well yield Jones Act jurisdiction. Even if that were true, however, the result would still be a dismissal for forum non conveniens. That, at least, removes for Toogood problems of service and limitations.
On appeal, Toogood has asserted that because the district court failed to invoke explicitly the factors enunciated by the United States Supreme Court in Piper Aircraft v. Reyno, 454 U.S. 235 (1981), the Court abused its discretion in declining jurisdiction. 2 Assuming arguendo that there might have been Jones Act jurisdiction, we do not find that the decision to dismiss for forum non conveniens was an abuse of discretion.
In Piper Aircraft, the Supreme Court reiterated the now-familiar test for determining whether a case should be dismissed on the ground of forum non conveniens. Id. at 241 & n.6. The Court explained that the forum non conveniens determination depended on an exploration and a balancing of relevant public and private factors. Id. at 257.
The private factors include relative ease of access to sources of proof; availability of compulsory process for attendance of the unwilling, the cost of obtaining attendance of willing, witnesses; the possibility of view of the premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.
The public factors include the local interest in having localized controversies decided at home; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary...
To continue reading
Request your trial