693 F.2d 581 (5th Cir. 1982), 81-2039, Lapeyrouse v. Texaco, Inc.

Docket Nº81-2039.
Citation693 F.2d 581
Party NameJean LAPEYROUSE, Individually and as Temporary Administratrix of the Estate of Iry Joseph Lapeyrouse, Jr., etc., Plaintiff-Appellant, v. TEXACO, INC., et al., Defendants, J & K Rig Construction Co., Inc., Defendant-Appellee. Donald Ray STEWART, et ux., Plaintiff-Appellants, v. TEXACO, INC., et al., Defendants, J & K Rig Construction Co., Inc., Defe
Case DateDecember 17, 1982
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 581

693 F.2d 581 (5th Cir. 1982)

Jean LAPEYROUSE, Individually and as Temporary

Administratrix of the Estate of Iry Joseph

Lapeyrouse, Jr., etc., Plaintiff-Appellant,

v.

TEXACO, INC., et al., Defendants,

J & K Rig Construction Co., Inc., Defendant-Appellee.

Donald Ray STEWART, et ux., Plaintiff-Appellants,

v.

TEXACO, INC., et al., Defendants,

J & K Rig Construction Co., Inc., Defendant-Appellee.

Peter H. CUMMINGS, IV, et al., Plaintiffs-Appellants,

v.

TEXACO, INC., et al., Defendants,

J & K Rig Construction Co., Inc., Defendant-Appellee.

No. 81-2039.

United States Court of Appeals, Fifth Circuit

December 17, 1982

Page 582

Newton B. Schwartz, P.C., Houston, Tex., for plaintiffs-appellants.

Royston, Rayzor, Vickery & Williams, Ben L. Reynolds, John M. Elsley, Houston, Tex., for defendant-appellee.

Baker & Botts, Randy J. McClanahan, Houston, Tex., for Texaco, Inc.

Don Weitinger, L. Keith Slade, Weitinger, Steelhammer & Tucker, Houston, Tex., for International Hammer Services, Patterson Srvs., & Rollins, Inc.

James R. Sutterfield, New Orleans, La., for J & K Rig Construction Co.

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

Before GARZA, TATE and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

This case, previously before the Court, was remanded, 670 F.2d 503 (5th Cir.1982), when the issue of the timeliness of the appeal was noticed sua sponte. The district court now having made the necessary findings to establish the timeliness of the appeal, we review the merits.

Background Facts

This appeal arises from a suit brought in the Southern District of Texas by employees and decedents of employees of International Hammer Services Company (Hammer) against Hammer, Texaco, Circle Bar Drilling Company, J & K Rig Construction Company (J & K), and several peripheral defendants. 1 Appellants and deceased relatives of appellants worked off the Louisiana coast as members of the casing crew on a

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well owned by Texaco aboard a drilling barge owned by Circle Bar. On August 22, 1979, the well derrick on the barge collapsed, resulting in the death or injury of several members of the crew.

During the resultant litigation in federal court, J & K filed a motion pursuant to Fed.R.Civ.P. 12(b)(2) claiming that the court lacked in personam jurisdiction over it. The district court granted the motion and entered a judgment dismissing all claims against J & K. By contrast, in a concurrently pending Texas state court suit arising from the same accident, 2 the 164th District Court for Houston denied J & K's analogous motion for a special appearance or motion to dismiss for want of personal jurisdiction. 3

Appellants were Texas residents at the time of the accident. The injured or deceased appellants were hired in Houston, Texas and transported to Louisiana to work on the rig Circle Bar II. All defendants in appellants' suit are subject to Texas jurisdiction, except for the question of jurisdiction over J & K, 4 a small, closely-held corporation, incorporated under the laws of Louisiana. J & K's business involves the assembly and dismantling of drilling rigs. In the immediate case, the derrick assembled was a floating, moveable rig which was erected in 1979 in the coastal waters of Louisiana, where the accident occurred.

I. Timeliness of the Appeal

In our earlier decision in this case, we remanded to the district court for a determination of whether the motion for rehearing below was made pursuant to Fed.R.Civ.P. 59(e) or to Fed.R.Civ.P. 60(b). The necessity for remand arose because it was unclear whether appellant's motion for rehearing was filed, as it normally would be, under Rule 59. If so, and if it was timely filed, it would have effectively nullified the earlier notice of appeal, and, under Fed.R.App.P. 4(a)(4), we would have been without jurisdiction to hear the appeal, see Portis v. Harris County, 632 F.2d 486, 487 (5th Cir.1980). The district court found, however, that the motion for rehearing was filed under Fed.R.Civ.P. 60(b). Such a motion for rehearing does not nullify an earlier notice of appeal. We find, upon application of the appropriate standard of review, that the district court did not abuse its discretion in reaching its conclusions, and we affirm this holding.

Although this Court, in remanding this case, recognized that a motion for rehearing is normally filed under Rule 59, 5 we held that the motion at issue "could also be construed ... as one filed pursuant to

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Fed.R.Civ.P. 60(b)(6)." The district court determined that the motion had been made pursuant to Rule 60(b), 6 relying upon subsection (1) rather than the catch-all subsection (6).

The district court reasoned:

The first substantive statement in the motion for rehearing is a claim by the Plaintiffs that another argument was available to movants before judgment but was not made "because the Plaintiffs were satisfied that jurisdiction in this court was sustainable on the [grounds] heretofore urged...." This clearly is an argument that through "mistake, inadvertance ... or excusable neglect" of counsel all relevant legal issues were not presented to the Court so that justice might be done. Rule 60(b)(1). Conversely, the motion does not claim newly discovered evidence which could supply the basis for a motion within ten days of judgment under Rule 59. The evidence of general business contacts by J & K in Texas was known to all parties before the Court's order of dismissal was entered and therefore was not new evidence. The Court finds that the movants' remaining arguments relating to convenience and conservation of judicial resources can be as fairly characterized as an appeal to the Court's traditional equitable powers under Rule 60 as they can be characterized as an invocation of the Court's authority under Rule 59. See Notes of Advisory Committee, Rule 60.

We find the district court's characterization of the motion to be a reasonable one, and hence well within its broad discretion to act pursuant to Fed.R.Civ.P. 60. See, e.g., Hand v. United States, 441 F.2d 529, 531 (5th Cir.1971). Although this Court had suggested possible reliance on Rule 60(b)(6), we do not find any abuse of discretion in the district court's reasonable reliance upon the more specific Rule 60(b)(1). 7

II. Personal Jurisdiction

The district court dismissed appellee J & K from appellants' suit, upon J & K's timely objection pursuant to Fed.R.Civ.P. 12(b), finding a lack of personal jurisdiction under the Texas long-arm statute, Tex.Civ.Code Ann. art. 2031b (Vernon 1970), and finding also that due process would not permit the exercise of personal jurisdiction even if the state statute applied. 8 We reverse.

Personal jurisdiction is traditionally determined by the use of three tests: (1) assertion of jurisdiction by the law of the forum; (2) conformity of the law with the Constitution; and (3) authority for the means of service of process. The first two

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tests determine a defendant's amenability to jurisdiction while the third test, distinct though related, gauges whether that amenability was asserted through the proper means. "If the law of the forum does not authorize the means by which service on a party has been accomplished, the court lacks personal jurisdiction over the party even though the party is amenable to the court's jurisdiction." Terry v. Raymond International, Inc., 658 F.2d 398, 401 (5th Cir.1981), rehearing and rehearing en banc denied, 667 F.2d 92 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 1975, 72 L.Ed.2d 443 (1982).

It is well-established that amenability to jurisdiction in a federal court, sitting pursuant to diversity jurisdiction, exists to the extent permitted a state court within the state in which the federal court sits. See Terry v. Raymond International, Inc., supra (and cases cited therein); Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 377 (5th Cir.1980) (and cases cited therein). This amenability rule translates into the first two of the three tests outlined above. First, the forum state long-arm statute must assert jurisdiction over the nonresident defendant. This question is governed by state law. See, e.g., Terry v. Raymond International, Inc., supra. Second, the exercise of personal jurisdiction must be consonant with "traditional notions of fair play and substantial justice" and the nonresident defendant must have sufficient "minimum contacts" with the forum state so as not to offend the due process of law clause of the Fourteenth Amendment. International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945). See World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980); Kulko v. Superior Court of California, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974). This latter inquiry proceeds under federal law.

In a federal question case, however, such as the one sub judice, 9 the "contours of amenability ... are more fluid" since a federal standard alone governs amenability. Terry v. Raymond International, Inc., supra, 658 F.2d at 401. This Circuit has held, in the few cases in which this issue has been presented, that the otherwise-threshold inquiry of whether the state long-arm statute asserts jurisdiction over the defendant sought to be joined in suit, is irrelevant "where the power of the federal court ... can be independently sustained ... on the ground that the matter in controversy arises under the Constitution, laws or treaties of the United States." Lone Star Package Car Co. v. Baltimore & O.R. Co., 212 F.2d 147, 153-54 (5th Cir.1954). See Terry v. Raymond International, Inc., supra. 10

In undertaking, then, to apply the sole test of amenability to jurisdiction in a federal question case, the test of...

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