Forsythe v. Saudi Arabian Airlines Corp.

• Decision Date: 10 October 1989
• Docket Number: No. 89-2356,89-2356
• Citation: 885 F.2d 285
• Parties: John K. FORSYTHE, Plaintiff-Appellant, v. SAUDI ARABIAN AIRLINES CORP., Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

885 F.2d 285

15 Fed.R.Serv.3d 446

John K. FORSYTHE, Plaintiff-Appellant, v. SAUDI ARABIAN AIRLINES CORP., Defendant-Appellee.

No. 89-2356

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 10, 1989.

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.

PER CURIAM:

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 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 exclusive means by which a foreign state, as that term is defined in the Act, may be sued in a United States federal court. Under the FSIA, a foreign state is immune from suit--and the district court lacks jurisdiction--unless one of the specific exceptions contained in sections 1605-1607 is found to apply. 28 U.S.C. Sec. 1604.

Prior to the dismissal of his case, Forsythe did not attempt to persuade the court that any of the FSIA exceptions applied to divest Saudi of immunity in this case. He proffered neither legal arguments nor evidence outside the pleadings to bolster the jurisdictional facts that the court could consider in ruling on Saudi's motion to dismiss. ⁶ Moreover, he did not explain his failure to do so in his Rule 59(e) motion.

In his motion, Forsythe argued for the first time that the "commercial activity" exception of section 1605(a)(2) ⁷ should apply to Saudi's job advertising and interviewing activities in the United States, thereby depriving Saudi of immunity. The order of December 8, 1988, reflects that, on its own initiative, the district court specifically considered and rejected the merits of a section 1605(a)(2) exception.

Forsythe appended an affidavit to his motion that contained factual assertions relevant to a nexus between Saudi's commercial activities and the United States. However, this affidavit merely reiterated and expanded slightly on the claims contained in Forsythe's First Amended Complaint. It presented no pertinent facts that were not already before the district judge when he entered judgment. See Natural Resources Defense Council, Inc. v. EPA, 705 F.Supp. 698, 701-02 (D.D.C.), vacated on other grounds, 707 F.Supp. 3 (D.D.C.1989) (district court properly exercises its discretion in declining to relitigate arguments and evidence already considered, or to consider new evidence that was available earlier, but not presented).

Finally, Forsythe did not even address in his motion the district court's alternative ground for ordering dismissal, forum non conveniens. Under these circumstances, we find that the district court acted well within its discretion in denying Forsythe's Rule 59(e) motion.

Our inquiry does not end there, however. Although Forsythe's notice of appeal specifies that he is appealing the March 3, 1989 order, which denied his Rule 59(e) motion, it is apparent from his briefs that his actual intent is to appeal also from the judgment. ⁸ We proceed on that basis. The faulty notice of appeal has not misled or prejudiced Saudi, since its appellee's brief fully addresses the merits of both grounds for the district court's order of dismissal.

We turn, therefore, to a review of the district court's decision to dismiss Forsythe's claims. Because we can dispose of this case on the basis of forum non conveniens, we need not, and do not, review the district court's determination that it lacked subject matter jurisdiction under the Foreign Sovereign Immunities Act. ⁹

A dismissal under the doctrine of forum non conveniens may be reversed only for a clear abuse of discretion. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); In re Air Crash Disaster Near New Orleans, 821 F.2d 1147, 1166 (5th Cir.1987) (en banc), vacated and remanded on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, --- U.S. ----, 109 S.Ct. 1928, 104 L.Ed.2d 400 (1989). Under the procedural framework announced in In re Air Crash Disaster, a district court considering a motion to dismiss for forum non conveniens is required first to determine if an adequate alternative forum exists to entertain the case, and then to weigh the private and public interest factors to determine whether the balance favors dismissal. In re Air Crash Disaster, 821 F.2d at 1165-66. The district judge is also required to set out his findings and conclusions supporting a forum non conveniens determination, because we will not perform a de novo review of this issue.

In its order of dismissal, the district court determined that the Labor and Settlement of Disputes Committee in Saudi Arabia was an appropriate alternative forum for Forsythe to litigate his claim. Moreover, the parties had agreed in their contract to bring all disputes before this tribunal. There is no indication that a Saudi Arabian forum would treat Forsythe unfairly or deprive him of all remedies. Thus, the court's conclusion that an adequate alternative forum existed was reasonable.

In evaluating the private interests of the litigants, a court should be deferential to an American plaintiff's choice of his home forum. Reyno, 454 U.S. at 255, 102 S.Ct. at 265. However, this factor cannot be given dispositive weight. Id. at 256 n. 23, 102 S.Ct. at 266 n. 23. The district court considered the other relevant private...