379 F.3d 327 (5th Cir. 2004), 03-20226, Freudensprung v. Offshore Technical Services, Inc.

Docket Nº:03-20226.
Citation:379 F.3d 327
Party Name:Fred FREUDENSPRUNG, Plaintiff-Appellant, v. OFFSHORE TECHNICAL SERVICES, INC., Willbros Group, Inc., Willbros U.S.A., Inc., Willbros Engineers, Inc., Willbros International, Inc., Willbros West Africa, Inc., Defendants-Appellees.
Case Date:August 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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379 F.3d 327 (5th Cir. 2004)

Fred FREUDENSPRUNG, Plaintiff-Appellant,


OFFSHORE TECHNICAL SERVICES, INC., Willbros Group, Inc., Willbros U.S.A., Inc., Willbros Engineers, Inc., Willbros International, Inc., Willbros West Africa, Inc., Defendants-Appellees.

No. 03-20226.

United States Court of Appeals, Fifth Circuit

August 9, 2004

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Alan Clifton Gordon, Huseman & Pletcher, Corpus Christi, TX, for Plaintiff-Appellant.

Kenneth G. Engerrand, Michael Aaron Varner, Brown Sims, Houston, TX, for Offshore Technical Services Inc.

Michael David Murphy, Hays, McConn, Rice & Pickering, Houston, TX, for Willbros

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USA Inc., Willbros Engineers Inc., Willbros International Inc., Willbros Group Inc.

Susan C. Stevenson, Michael David Murphy, Hays, McConn, Rice & Pickering, Houston, TX, for Willbros West Africa Inc.

Appeal from the United States District Court for the Southern District of Texas.

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This maritime action stems from injuries sustained by Fred Freudensprung ("Freudensprung") while working as a barge leaderman on an offshore oil and gas project in Nigerian waters. Freudensprung appeals the district court's orders staying litigation of his Jones Act and U.S. general maritime law claims pending arbitration and denying his alternative motions for entry of a separate judgment or clarification of the court's orders. Freudensprung also appeals the district court's order dismissing defendant Willbros West Africa, Inc., for lack of personal jurisdiction. For the following reasons, we affirm.


Freudensprung's Jones Act and U.S. general maritime law action asserted tat he sustained permanently disabling injuries while working as a leaderman aboard a sea-going derrick barge off the coast of Lagos, Nigeria. Freudensprung had been assigned to work on the barge through the operation of two agreements pertinent to the instant dispute: a "Consultant's Agreement" between Freudensprung and Offshore Technical Services, Inc. ("OTSI"), a Texas-based corporation, and an "Offshore Personnel Supply Agreement" ("Personnel Supply Agreement") between OTSI and the barge's owner and operator, Willbros West Africa, Inc. ("WWAI"), a Panamanian corporation. OTSI is an independent contractor that supplies experienced personnel, or "consultants," to the offshore hydrocarbon industry to perform work on offshore platforms. To that end, on November 26, 1997, OTSI entered into the Consultant's Agreement with Freudensprung, the stated purpose of which was to "effect the purchase of professional services ... for hook-up, engineering, planning, inspection, ... [and] pipeline work" "in order to discharge OTSI's own contractual obligations" to entities seeking such services. Pursuant to the Consultant's Agreement, Freudensprung agreed that he was retained as an independent contractor, not an employee, and further stipulated that he was not a seaman and thus would not claim any benefit under the Jones Act. The Consultant's Agreement contained a Texas choice-of-law provision as well as an arbitration clause requiring the parties to submit "any dispute" arising from the agreement to binding arbitration in Houston, Texas. The agreement also expressly incorporated the terms of "any Work Order" issued to Freudensprung for a particular assignment.

On May 24, 2000, OTSI and WWAI entered into the Personnel Supply Agreement, pursuant to which OTSI agreed to supply technical, supervisory, and craft personnel to WWAI for the performance of WWAI's contracts in Africa relating to offshore marine operations, fabrication, inspection, installation, hook-up, and pipeline work. The Personnel Supply Agreement contained an English choice-of-law provision and an arbitration clause requiring OTSI and WWAI to submit any dispute related to the agreement to binding arbitration in Houston, Texas. Under the terms of the Personnel Supply Agreement, WWAI would pay OTSI certain stipulated daily rates for each worker provided, but

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all personnel supplied by OTSI would remain "employees of OTSI while ... assigned to [WWAI]." WWAI, however, "would be fully responsible for the management and organization of the work performed on the offshore vessels to which OTSI personnel are assigned."

Shortly after retaining OTSI, WWAI contacted the company with a request for consultants for a WWAI project in Nigeria. Ultimately, WWAI selected Freudensprung from among the candidates referred by OTSI. By Work Order No. 4, dated June 9, 2000, OTSI and Freudensprung agreed that Freudensprung would work for WWAI as a barge leaderman in West Africa. Like their Consultant's Agreement, Work Order No. 4 contained a clause requiring binding arbitration of any "contractual disagreements, claims or disputes of any nature" that might arise between OTSI and Freudensprung.

On July 1, 2000, Freudensprung departed for Africa to begin his assignment aboard WWAI's seagoing derrick barge, the W B 318. The project involved the installation of a single point mooring system ("SPM"), a marine structure that facilitates the loading and offloading of oil tankers from onshore tanks. On July 28, 2000, Freudensprung and other crew members were charged with securing the SPM to the ocean floor with twelve large chains. This task required laying the chains over the side of the WB 318 and gradually lowering them by winches and cables. The chains were several hundred feet in length and each chain link weighed in excess of two hundred pounds. As the crew lowered the second chain, the cable on the stern winch failed, releasing the heavy chain. The runaway chain struck Freudensprung from behind, causing him severe and permanently disabling mental and physical injuries that rendered him unable to work.

On October 4, 2001, Freudensprung filed this maritime action in federal district court against OTSI and several alleged subsidiaries of Willbros Group, Inc., including Willbros USA, Inc., Willbros Engineering, Inc., and foreign subsidiaries WWAI and Willbros International, Inc. In his complaint, Freudensprung asserted claims under the Jones Act, 46 U.S.C. app. § 688 (2000), and the U.S. general maritime law for negligence, vessel unseaworthiness, and maintenance and cure. On December 21, 2001, defendant WWAI filed a motion to dismiss the suit for lack of personal jurisdiction and insufficient service of process. In response, Freudensprung amended his complaint, adding Willbros Group, Inc., the alleged parent company of WWAI, and modifying the place where service could be properly effected upon WWAI. Nonetheless, on February 20, 2002, the district court granted without prejudice WWAI's motion to dismiss for lack of jurisdiction. OTSI then moved the district court to stay Freudensprung's claims pending arbitration, citing the arbitration clause in its Consultant's Agreement with Freudensprung. Freudensprung responded by arguing that the agreement was a seaman's contract of employment and thus exempt from arbitration, and furthermore that arbitration was inappropriate under both federal and state law. In its order of August 15, 2002, the district court granted OTSI's motion without assigning reasons and ordered the case administratively closed. The order further granted leave to move to reinstate the case on the district court's active docket "within ten (10) days from the date of a ruling by the Court of Appeals."

On August 26, 2002, Freudensprung filed a motion for reconsideration, which the district court also denied in an order entered on October 15, 2002. Finding the language in the district court's August 15

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order staying the case unclear, Freudensprung filed a motion for entry of judgment or, alternatively, a motion for clarification, on November 15, 2002. In his motion, Freudensprung requested that if the district court had intended to enter a final order from which he could appeal, that the district court enter a separate document setting forth the judgment as required under Federal Rule of Civil Procedure 58. If the court did not so intend, Freudensprung asked that the district court clarify that the stay would extend only until after arbitration of his claims and not until after a decision by this Court. In response, OTSI argued that Freudensprung's motion was simply a second motion for reconsideration and that it should be denied because the August 15, 2002 order was a "final appealable order." On January 13, 2003, the district court denied Freudensprung's motion for entry of judgment and refused to clarify its order staying Freudensprung's claims. On February 12, 2003, Freudensprung filed notice of appeal from the district court's orders staying his claims pending arbitration and administratively closing the case, denying entry of judgment or clarification of its stay, and dismissing WWAI for lack of personal jurisdiction.


On appeal, Freudensprung advances several points of error regarding the district court's order compelling arbitration and staying his claims and its dismissal of WWAI for lack of jurisdiction. Before addressing the merits of these assertions, however, we must first address the timeliness of Freudensprung's February 12, 2003, notice of appeal, which was filed more than five months after the district court's August 15, 2002 order staying his claims pending arbitration and administratively closing the case.1

I. Whether Freudensprung timely filed notice of appeal

"A timely filed notice of appeal is a jurisdictional prerequisite to [appellate review]." Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994). Federal Rules of...

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