Ikospentakis v. Thalassic S.S. Agency

• Decision Date: 25 October 1990
• Docket Number: No. 90-3019,90-3019
• Parties: , 17 Fed.R.Serv.3d 1172 Nicolaos IKOSPENTAKIS, Plaintiff-Appellee, v. THALASSIC STEAMSHIP AGENCY and Kyriakos Zervos, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 176

915 F.2d 176

1991 A.M.C. 659, 17 Fed.R.Serv.3d 1172

Nicolaos IKOSPENTAKIS, Plaintiff-Appellee, v. THALASSIC STEAMSHIP AGENCY and Kyriakos Zervos, Defendants-Appellants.

No. 90-3019.

United States Court of Appeals, Fifth Circuit.

Oct. 25, 1990.

E. Carroll Rogers, Robert H. Murphy, Kenneth J. Servay, and Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler &amp Robert H. Murphy, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, La., for intervenor, Tharros Shipping Co.

Sarpy, New Orleans, La., for defendants-appellants.

Darryl J. Tschirn and David R. Paddison, Metairie, La., for plaintiff-appellee.

Peter L. Hilbert, Jr., and Kathleen K. Charvet, New Orleans, La., for Universal Shipping.

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

Before GARZA, JOLLY, and JONES, Circuit Judges.

EDITH H. JONES, Circuit Judge:

A Greek seaman injured aboard a Greek vessel that happened to be anchored in the Mississippi River in Louisiana filed a Jones Act and maritime negligence suit in federal district court. He named ten defendants, including two alleged Louisiana corporations, an alleged U.S. citizen, a foreign citizen, the vessel, a foreign insurer and four foreign corporations allegedly doing business in Louisiana. Among those defendants were the appellants Thalassic Steamship Agency, a Panamanian corporation with its sole place of business in Greece, which managed the vessel and acted as the owner's agent, and Kyriakos Zervos, a Greek citizen who was president of Thalassic. Over the next few months, the plaintiff added more defendants, but then, in stages, dismissed all of the defendants except Thalassic and Zervos. At a pretrial conference in December 1989, plaintiff's counsel indicated his intention to voluntarily dismiss his federal court suit without prejudice and to proceed in state court against Zervos and Thalassic only. The defendants objected to any such dismissal and within hours filed a motion to dismiss for forum non conveniens. Plaintiff immediately filed his motion to dismiss, pursuant to Fed.R.Civ.P. 41(a)(2), without prejudice to his right to proceed in state court.

The district court granted plaintiff's motion and initially dismissed the defendants' motion as moot. Upon reconsideration, the court acknowledged defendants' argument that Louisiana courts do not enforce the maritime doctrine of forum non conveniens in Jones Act cases, but he denied the motion anyway. The court held that the forum non conveniens motion was untimely presented. Thalassic and Zervos, desirous of avoiding suit in Louisiana state court, have appealed.

DISCUSSION

Thalassic and Zervos argue that they will suffer clear "legal prejudice" from the district court's approval of a voluntary dismissal, because Louisiana state court does not recognize their forum non conveniens defense. They also contest the court's finding of untimeliness. The issues raised by appellants are so interrelated that they are difficult to discuss in a particular logical progression. We choose to address them in the following order: the standards for reviewing a district court's grant of voluntary dismissal without prejudice; whether clear legal prejudice was inflicted upon appellants by a dismissal that effectively deprived them of a forum non conveniens defense; and whether the district court correctly refused to recognize that defense as untimely asserted.

A district court's decision to grant a voluntary dismissal without prejudice may only be overturned for abuse of discretion. The primary purpose in entrusting dismissal to the supervision of the court under Rule 41(a)(2) is to protect the non-movant from unfair treatment. ¹ Generally, courts approve such dismissals unless the defendant will suffer some plain legal prejudice other than the mere prospect of a second lawsuit. See 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2364, at 165 (1971); see also Durham v. Florida East Coast Ry. Co., 385 F.2d 366, 368 (5th Cir.1967). A plaintiff's voluntary dismissal may substantially prejudice the defendant if it effectively strips him of a defense that would otherwise be available. That plaintiff may obtain some tactical advantage over the defendant in future litigation is not ordinarily a bar to dismissal. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir.1976). ²

The seminal case in this circuit discussing when clear legal prejudice to a defendant bars an involuntary dismissal without prejudice is Phillips v. Illinois Cent. Gulf R.R., 874 F.2d 984 (5th Cir.1989). In that case, the plaintiff's personal injury suit was transferred from Texas to Louisiana federal court, where a statute of limitations defense was available on the face of the complaint. Plaintiff vigorously objected to the trial court's grant of summary judgment for the defendants, arguing that the court should have permitted him to dismiss voluntarily without prejudice and re-file in Texas or Mississippi because of their longer limitations periods. The court held that a grant of involuntary dismissal would result in clear legal prejudice to the defendant because "in the second lawsuit ... the defendant would be stripped of an absolute defense to the suit--the difference between winning the case without a trial and abiding the unknown outcome of such a proceeding." Phillips, 874 F.2d at 987.

The parties here dispute whether forum non conveniens was a defense that was absolutely stripped from appellants. Ikospentakis asserts that the analogy to Phillips fails for two reasons: the grant or denial of the appellants' forum non conveniens motion was discretionary rather than a matter of right held by the appellants, and that motion was untimely asserted. Appellants have the better of this argument.

That the defense is available to Thalassic and Zervos and that it would be "stripped" from them in Louisiana state court, albeit in violation of the constitution's supremacy clause, are equally certain propositions. This court has recognized that forum non conveniens is a "characteristic feature" of maritime law, tracing its history back to the earliest decisions of the federal courts. See Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 320 (5th Cir.1987), rev'd on other grounds, 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988); Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374 (5th Cir.1988). The modern exposition of the doctrine appears in an admiralty case. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The doctrine contributes to comity among sovereign nations that confront trans-national maritime disputes. See Exxon Corp. v. Chick Kam Choo, 817 F.2d at 321-324. Notwithstanding the importance of this doctrine in federal maritime law, Louisiana's legislature and Supreme Court have unequivocally rejected it. A recently passed statute prohibits Louisiana courts from dismissing Jones Act or maritime cases on forum non conveniens grounds as follows:

Art. 123. Forum non conveniens

B. Except as provided in Paragraph C, upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated solely upon a federal statute and is based upon acts or omissions originating outside of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice; however, no suit in which the plaintiff is domiciled in this state, and which is brought in a court which is otherwise a court of competent jurisdiction and proper venue, shall be dismissed pursuant to this Article. In the interest of justice, and before the rendition of the judgment of dismissal, the court shall require the defendant or defendants to file with the court a waiver of any defense based upon prescription, provided that a suit on the same cause of action is commenced in a court of competent jurisdiction within sixty days from the rendition of the judgment of dismissal.

C. The provisions of Paragraph B shall not apply to claims brought pursuant to 46 U.S.C. Sec. 688 or federal maritime law.

La.Code Civ.Proc.Ann. art. 123(B) and (C) (West 1988) (emphasis added). The state Supreme Court has squarely rejected the application of federal forum non conveniens law in a maritime case pending in state court. Markzannes v. Bermuda Star Line, Inc., 545 So.2d 537 (La.1989), cert. denied, --- U.S. ----, 110 S.Ct. 837, 107 L.Ed.2d 832 (1990). On the face of it, then, there can be little doubt that these appellants have access to a forum non conveniens defense in federal court that is not presently recognized in Louisiana state courts. This result-changing effect of the district court's approval of a dismissal without prejudice appears to fall squarely within the Phillips rationale.

Ikospentakis musters only two challenges to this conclusion. First, he suggests that the mere availability of a forum non conveniens defense does not mean that appellants were entitled to such a dismissal, for the doctrine may rest upon contested facts and the district court's exercise of discretion in deciding whether to dismiss. See Gulf Oil Corp. v. Gilbert, 330 U.S. at 501, 67 S.Ct. at 839; Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (citing analytical factors); see also In re Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d 1147 (5th Cir.1987), vacated in part on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez, ---...