Newball v. Offshore Logistics Intern.

• Decision Date: 29 October 1986
• Docket Number: No. 85-4489,85-4489
• Citation: 803 F.2d 821
• Parties: Ricardo NEWBALL, Plaintiff-Appellee, v. OFFSHORE LOGISTICS INTERNATIONAL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 821

803 F.2d 821

Ricardo NEWBALL, Plaintiff-Appellee, v. OFFSHORE LOGISTICS INTERNATIONAL, Defendant-Appellant.

No. 85-4489.

United States Court of Appeals,

Fifth Circuit.

Oct. 29, 1986.

Deutsch, Kerrigan & Stiles, Ralph E. Smith, New Orleans, La., for defendant-appellant.

John R. Sutton, South Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before JOLLY, HILL, and JONES, Circuit Judges.

ROBERT MADDEN HILL, Circuit Judge:

This appeal involves whether the district court, following a prior appeal of this case and affirmance by this court of the district court's conditional dismissal order, erred when it modified the conditional dismissal. The court modified the dismissal by extending the time limit for the plaintiff to file suit in an alternative forum after more than one year had elapsed since the entry of the conditional order of dismissal. We find initially that we have jurisdiction over this appeal to review the district court's denial of the defendant's motion to recall the modification order and denial of the defendant's motion to dismiss this case. We further find that the district court reacquired jurisdiction over this case following our prior affirmance, but that the court at the time it entered its modification order lacked the authority to do so. Accordingly, we reverse the district court and remand for the entry of an order of dismissal.

I.

Ricardo Newball, a resident of Columbia, was a member of the crew of the M/V INTREPID, a vessel flying the Panamanian flag and owned by Offshore Logistics International, Inc., a Panamanian corporation which was in turn owned by the Louisiana corporation Offshore Logistics, Inc. (both corporations are collectively referred to as "Offshore"). While the INTREPID was under charter to a Brazilian company and operating in Brazilian waters, Newball suffered an injury to his leg when he became entangled in a dropping anchor chain. Newball filed suit in the Western District of Louisiana against Offshore and other parties, alleging claims for Jones Act negligence, unseaworthiness, and maintenance and cure.

On March 22, 1984, the district court issued a conditional order of dismissal on the ground of forum non conveniens, holding that United States law did not apply to Newball's case. The order stated that "dismissal of this action is conditioned as follows" and then listed several requirements. Among these were that the defendants in subsequent foreign proceedings submit to service of process and jurisdiction, ¹ waive any statute of limitations defense, agree to make available certain evidence, and agree to satisfy any final judgment. The order continued by listing additional conditions:

F. And that should defendants fail to promptly meet any of these conditions, the Western District of Louisiana will resume jurisdiction over the case.

G. This order of dismissal can be made final by defendants:

a. If plaintiffs do not file suit in ... the courts [of Panama, Columbia, or Brazil] within ninety (90) days after this order; or

b. If the case is timely filed, plaintiffs have complied with all of the conditions of this order and the foreign court where suit has been filed has not declined jurisdiction. [If the foreign courts decline jurisdiction] the case may be reopened by plaintiffs in the district court....

Newball appealed the March 22 order, arguing that American law did apply. Newball did not move for a stay of the order here, or in the district court, or otherwise request that the ninety-day period for filing a foreign action be tolled during the appeal, nor did he file suit in a foreign court. The ninety-day period, which began on March 22, 1984, expired on June 20, 1984. This court affirmed in an unpublished opinion dated April 4, 1985, but did not specifically address the conditional nature of the order or the running of the ninety-day period. The mandate issued from this court on April 26. On May 6 Newball filed a motion in district court requesting an additional ninety days for initiating the action in Panama. On May 7 the district court ordered that Newball be given until August 10 to institute foreign proceedings. Newball states that he filed an action in Panama on August 9 and that "Panamanian counsel is actively pursuing the action."

Offshore then moved to dismiss, contending that Newball did not comply with the original ninety-day period within which to institute his foreign suit. Offshore also moved to "recall" the May 7 order extending the period. The district court denied both motions in a ruling dated June 15, 1985. The court found that "plaintiff was negligent in failing to obtain an extension of time" prior to the original deadline, but that "it would have been illogical for the plaintiff to file an action in an alternative forum during the pendency of the appeal." The court reasoned that "neither the letter nor the spirit" of Fed.R.Civ.P. 62(d) precluded the grant of an extension of the original ninety-day period. Offshore now appeals the denial of its motions.

II.

Initially, there is a question of whether the June 15, 1985, order was appealable under 28 U.S.C. Sec. 1291. ² Section 1291 gives appellate courts jurisdiction of "appeals from all final decisions of the district courts." Offshore is appealing a decision which denied a motion to dismiss and denied a motion to recall a prior order granting Newball an extension of time in which to file suit in the Republic of Panama. Generally, the denial of a motion to dismiss is not a final decision under section 1291. Fluor Ocean Services, Inc. v. Hampton, 502 F.2d 1169, 1170 (5th Cir.1974). Also, typically, a motion to recall a prior order will lack the finality required for appeal. Cf. Jones & Guerro Co., Inc. v. Sealift Pacific, 650 F.2d 1072, 1073 (9th Cir.1981) ("Ordinarily, an order vacating a previous order of dismissal is not a 'final decision' appealable under 28 U.S.C. Sec. 1291 (1976)").

The finality requirement of section 1291, however, is a flexible one. "[A]n order, otherwise nonappealable, determining substantial rights of the parties which will be irreparably lost if review is delayed until final judgment may be appealed immediately under section 1291." United States v. Wood, 295 F.2d 772, 778 (5th Cir.), cert. denied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9 (1961). The Wood court took jurisdiction of an appeal from a denial of a temporary restraining order (TRO), ordinarily a non-final ruling, because the TRO would have been the only way to prevent state prosecution of a black voting rights activist for breach of the peace. Since the time between arrest and impending prosecution of the activist was only 15 days, the federal government's claim for injunctive relief would have been mooted without immediate appealability. Id. at 777. Similarly, once Offshore appears in the Panamanian court and complies with all of the conditions imposed by the district court, then its challenge to the extension of time given to Newball will be moot.

If this appeal were dismissed, and the proceedings with Offshore as a party were to continue to a conclusion in Panama, no further resort would be available in United States courts until the possible later enforcement of a judgment against Offshore. Notions of comity dictate that the validity of a Panamanian judgment would most likely not be affected by the extension of time given to Newball. Cf. Cunard S.S. Co. v. Salen Reefer Services AB, 773 F.2d 452, 456-58, 460 (2d Cir.1985); Lloyd v. American Export Lines, Inc., 580 F.2d 1179, 1189-90 (3d Cir.), cert. denied, 439 U.S. 969, 99 S.Ct. 461, 58 L.Ed.2d 428 (1978); Somportex Limited v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440-41 (3d Cir.1971), cert. denied, 405 U.S. 1017, 92 S.Ct. 1294, 31 L.Ed.2d 479 (1972). Thus, since the right to challenge the extension would effectively be lost, the June 15 order may be appealed under section 1291.

The "collateral order" doctrine also provides a basis upon which to appeal the June 15 order. This doctrine, established in Moses H. Cone Hospital v. Mercury Construction Corp., 460 U.S. 1, 10, 103 S.Ct. 927, 934, 74 L.Ed.2d 765, 776 (1983), provides:

To come within the "small class" of decisions excepted from the final-judgment rule by [Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) ], the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable from a final judgment.

Id. at 11, 103 S.Ct. at 934, 74 L.Ed.2d at 777 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). The order here met these criteria: (1) it conclusively determines Newball's ability to avoid dismissal by granting an extension of the original ninety-day period; (2) it resolves questions independently of Offshore's negligence or unseaworthiness; and (3), as discussed above, the issues will never be effectively appealable unless this court takes jurisdiction now. Therefore, we hold that the district court's June 15 order is appealable under section 1291.

III.

Offshore correctly asserts that when Newball filed a notice of appeal to challenge the March 22, 1984, conditional order of dismissal, the district court was divested of jurisdiction over matters involved in the appeal. See United States v. Hitchmon, 602 F.2d 689, 692 (5th Cir.1979) (en banc). Offshore further argues that because the conditional dismissal was affirmed on appeal without explicit remand the district court never reacquired jurisdiction over the case. The extension given to Newball came after the mandate of the appeal issued, and Offshore claims that it was thus void. Offshore's latter argument is incorrect.

When an appellate mandate is issued, a district court reacquires jurisdiction. United States v. Dozier, 707 F.2d 862, 864 n. 2 (5th Cir.1983). Thus, the...