885 F.2d 285 (5th Cir. 1989), 89-2356, Forsythe v. Saudi Arabian Airlines Corp.

Docket Nº:89-2356
Citation:885 F.2d 285
Party Name:John K. FORSYTHE, Plaintiff-Appellant, v. SAUDI ARABIAN AIRLINES CORP., Defendant-Appellee.
Case Date:October 10, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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885 F.2d 285 (5th Cir. 1989)

John K. FORSYTHE, Plaintiff-Appellant,



No. 89-2356

United States Court of Appeals, Fifth Circuit

October 10, 1989

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[Copyrighted Material Omitted]

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Karen A. Lerner, Houston, Tex., for plaintiff-appellant.

Farrell Bolz, Farrell Bolz & Associates, Houston, Tex., for defendant-appellee.

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

Before REAVLEY, KING and JOHNSON, Circuit Judges.


John Forsythe appeals the district court's order denying his motion to alter or amend the court's judgment that dismissed his case against Saudi Arabian Airlines Corporation. For the reasons set forth below, we VACATE and REMAND for further proceedings in conformance with this opinion.

Appellant John K. Forsythe (Forsythe), an American citizen, entered into an employment agreement with appellee Saudi Arabian Airlines Corporation (Saudi) to provide services as a commercial airline pilot. The contract specified that all disputes would be resolved by the Labor and Settlement of Disputes Committee in Saudi Arabia and that the laws of Saudi Arabia would apply. Forsythe undertook his flying duties in Saudi Arabia and for the duration of his employment performed entirely outside of the United States. Unhappily, after less than a year with the airline Forsythe was discharged, purportedly for failing proficiency and evaluation checks.

Forsythe did not contest his discharge in the Saudi Arabian forum contemplated in his employment agreement. Instead, he filed a petition in Texas state court, seeking damages for wrongful discharge. Forsythe alleged breach of contract, breach of the implied covenant of good faith and fair dealing, duress, and intentional infliction of emotional distress.

Saudi petitioned for removal to federal district court based on its status as a "foreign state." 28 U.S.C. Sec. 1441(d). 1 Promptly after the action was removed, Saudi filed a Rule 12(b) motion to dismiss, claiming failure to state a claim and lack of subject matter jurisdiction under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. Secs. 1602-1611. Saudi added an alternative ground of forum non conveniens in a supplemental motion.

Curiously, Forsythe failed to contest Saudi's FSIA immunity in his response to the motion to dismiss, 2 or at any other time

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prior to his motion for a new trial. 3 Forsythe did, however, file an amended complaint, in which he alleged that Saudi (1) solicited his services through an El Paso, Texas, newspaper advertisement, (2) initially contacted him in Texas, and (3) "made oral representations to [him] to induce him to enter into the contract the subject of this cause of action in El Paso, Texas, and in Kansas City, Missouri." 4

On December 8, 1988, the district court granted Saudi's motion and entered a final judgment dismissing Forsythe's case. The court found that Saudi was a "foreign state" and that none of the exceptions to immunity enumerated in the FSIA applied. Alternatively, the court concluded that forum non conveniens required that the suit be prosecuted in Saudi Arabia.

Forsythe promptly filed a "Motion for New Trial," which the district court denied. He now appeals the order denying his motion for new trial.

Our first task is to identify the character of Forsythe's postjudgment motion. This determination will then define our role in reviewing the district court's denial of the motion.

Forsythe styled his postjudgment motion a "Motion for New Trial," without designating one of the Federal Rules of Civil Procedure. Both Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b) may offer a party the relief that Forsythe sought: a change in the court's judgment. The rules differ in two important respects, however. First, a Rule 59(e) motion must be served no later than ten days after entry of the judgment. Rule 60(b) motions may be filed during a much longer period of time--up to one year after judgment for certain stated grounds, and "within a reasonable time" for all remaining grounds. Second, a Rule 59(e) motion to alter or amend a judgment tolls the time period for filing a notice of appeal from the judgment; a Rule 60(b) motion does not. Fed.R.App.P. 4(a)(4).

Our en banc decision in Harcon Barge Co. v. D & G Boat Rentals, Inc. established a bright-line test for characterizing a motion that questions the substantive correctness of a judgment. A motion served within ten days after judgment, which in effect requests the district court to alter or amend the judgment, will be treated as a Rule 59(e) motion. Harcon Barge, 784 F.2d 665, 667-69 (5th Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986).

The district court entered its order and final judgment on December 8, 1988. Forsythe served his motion within the ten-day time limit prescribed in Rule 59(e). 5 Consequently, his motion must be construed as a Rule 59(e) motion to alter or amend the order and concomitant judgment dismissing his case. We review the district court's denial of a Rule 59(e) motion under an abuse of discretion standard. Youmans v. Simon, 791 F.2d 341, 349 (5th Cir.1986).

The FSIA is the...

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