Carmichael v. United Technologies Corp., 86-2979

• Decision Date: 07 January 1988
• Docket Number: No. 86-2979,86-2979
• Citation: 835 F.2d 109
• Parties: Keith CARMICHAEL, et al., Plaintiffs-Appellants, v. UNITED TECHNOLOGIES CORP., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 109

835 F.2d 109

Keith CARMICHAEL, et al., Plaintiffs-Appellants, v. UNITED TECHNOLOGIES CORP., et al., Defendants-Appellees.

No. 86-2979.

United States Court of Appeals, Fifth Circuit.

Jan. 7, 1988.

Dana G. Kirk, Kirk & Carrigan, Houston, Tex., Anthony D'Amato, Chicago, Ill., for plaintiffs-appellants.

Travis C. Broesche, David C. Holmes, Houston, Tex., for United Technologies Corp., et al.

Joseph D. Cheavens, Baker & Botts, Houston, Tex., for Price Waterhouse.

Ralph Shain, Ronald E. Cook, Mayor, Day & Caldwell, Houston, Tex., for Daniel, et al.

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

Before BROWN, POLITZ and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

Keith Carmichael, a citizen of Great Britain, sued the defendants in the Southern District of Texas under the somewhat obscure Alien Tort Statute ¹ for his imprisonment and torture in Saudi Arabia. The district court dismissed. We affirm.

I

Carmichael is chairman and general manager of Sacem International, a Netherlands corporation with its principal place of business in Houston, Texas. In 1981, Sacem was hired to perform general contracting work in Saudi Arabia. Sacem was sponsored by Sigma Corporation, a Netherlands corporation owned and operated by the Saudi royal family. Apparently, under Saudi law, Sigma possessed the power and ability to revoke Carmichael's exit visa at any time during Sacem's operation in Saudi Arabia. ²

In the fall of 1981, commercial disputes arose between Carmichael and the defendant corporations over whether Sacem owed money to the defendants. Carmichael learned that Sigma planned to revoke his exit visa and, apparently on the advice of his attorneys, he attempted to flee the country without his passport. Irrespective of whether the advice was good or bad, the plan did not work. He was arrested in the neighboring country of Qatar and returned to Saudi Arabia.

After Carmichael's arrest, a straightforward legal announcement appeared in Saudi newspapers, requesting all businesses with claims against Sacem to file them. Several corporations, including the defendants named on appeal, filed claims. Carmichael initially maintained that these claims were unsubstantiated by evidence of the alleged debt. Nevertheless, he was told by Saudi officials that he must either pay up or obtain releases from the claims in order to get out of jail.

And stay in jail he did. Although he languished there for more than two years, he was never formally charged or tried for any offense. According to Carmichael, and substantiated by reports from humanitarian groups, he was mistreated and tortured during this time. Meanwhile, he wrote letters to his creditors, among them the defendants, seeking releases from their claims, and in October 1983, two years after his arrest, mutual release forms were finally signed. Still, it was not until March 1984 that Carmichael was finally released from jail.

In March 1986 Carmichael filed this suit in the Southern District Court of Texas (Houston Division) against the defendants for false imprisonment and assault and battery. Carmichael alleges that the defendant corporations conspired with the Saudi government to have him jailed. He further alleges that, knowing of his incarceration and the type of treatment he was receiving, the defendants purposefully delayed giving their unilateral release of their claims in order to force him to sign mutual releases and covenants not to sue. For jurisdiction, Carmichael relies upon the Alien Tort Statute, which gives the United States district court original jurisdiction over tort suits brought by aliens for violations of the law of nations or treaty law of the United States.

In district court, the defendants responded with a motion to dismiss for lack of jurisdiction. The defendants filed affidavits that allege insufficient service, lack of subject matter jurisdiction under the Alien Tort Statute, lack of personal jurisdiction under the Texas Long-Arm Statute and a failure to state a claim because the defendants had no control over Carmichael's incarceration. Oddly, Carmichael did not file any responding affidavit, and the district court dismissed for insufficient service lack of subject matter jurisdiction, and lack of personal jurisdiction. ³

On appeal, Carmichael has dropped all defendants except United Technology Saudi Arabia ("UTSA"), United Technologies Corporation ("UTC," as parent of UTSA), Price Waterhouse, TMSI Arabia, Ltd. ("TMSI"), and Daniel, Mann, Johnson & Mendenhall ("DMJM" as parent of TMSI).

We find no error in the district court's holding on the first two issues with respect to all defendants except Price Waterhouse. With respect to Price Waterhouse, however, we affirm the district court's dismissal for lack of subject matter jurisdiction.

II

A.

The district court's holding of insufficient service is correct for all defendant's except Price Waterhouse. Because the Alien Tort Statute is silent as to method of service, parties must rely upon local rules. In this instance, therefore, the Texas Long-Arm Statute, section 17.044 Tex.Civ.Prac. & Rem., applies.

Carmichael served the Texas secretary of state as agent for UTC, UTSA, DMJM and TMSI. Service for Price Waterhouse was made upon their resident partner in Houston. The district court held that service was insufficient for all defendants. ⁴

With the exception of Price Waterhouse, none of the businesses mentioned has agents or officers in Texas or does business in Texas, nor did the cause of action arise from business dealings in Texas. Service on the secretary of state was therefore ineffective under the Texas Long-Arm Statute. We find no error in the trial court's ruling based upon these facts as they apply to UTC, UTSA, DMJM and TMSI. Price Waterhouse is a partnership doing business in Texas, and service to its registered agent was sufficient against it under Tex.Civ.Prac. & Rem. Sec. 17.043. We hold that the court's ruling was erroneous as to Price Waterhouse. The suit against Price Waterhouse, however, was properly dismissed on other grounds, discussed below.

B.

The district court, in its dismissal, found that Price Waterhouse is the only defendant doing business in the State of Texas. Carmichael argues, however, that UTC and DMJM, both American corporations, are parent companies for UTSA and TMSI, respectively. Carmichael contends that the court does have personal jurisdiction, therefore, under the "parent/subsidiary rule." We find no merit in this argument. First, Carmichael has adduced no evidence to counter the defendants' affidavits that state that the Saudi Arabian corporations are unrelated to their American counterparts. Even assuming, however, that UTC and DMJM are alter egos of UTSA and TMSI, Carmichael makes no argument why these parent companies may be sued in Texas. There is no evidence in the record that these American corporations have sufficient contact with the State of Texas. We find no legal or factual basis upon which to overturn the district court's ruling here. Except for the complaint against Price Waterhouse, therefore, the district court lacked personal jurisdiction to hear this suit.

C.

The issue of subject matter jurisdiction is the most difficult one brought in this case. Carmichael bases his jurisdictional claim on the Alien Tort Statute, which states: "The district court shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U.S.C. Sec. 1350. Carmichael, an alien, maintains that the torts alleged here violate the law of nations because the defendants aided and abetted official torture.

The question of defining "the law of nations" is a confusing one which is hotly debated, chiefly among academics. "Official torture" has been recognized as an actionable tort under the Alien Tort Statute in some jurisdictions and not in others. Compare Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.1980), and Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir.1984), cert. denied, 470 U.S. 1003, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985). Assuming the Supreme Court and Congress continue to be silent on the issue, this circuit may be called upon at some point to join sides in this debate. This case, however, does not require that we stand up and be counted.

This circuit, in Cohen v. Hartman, 634 F.2d 318 (5th Cir.1981), adopted the definition of "law of nations" first articulated in Lopes v. Reederei Richard Schroder. ⁵ In Cohen we held that: "The standards by which nations regulate their dealings with one another inter se constitute the 'law of nations.' These standards include the rules of conduct which govern the affairs of this nation, acting in its national capacity, in relationships with any other nation." Cohen, 634 F.2d 318, 319 (5th Cir.1981) (quoting Valanga v. Metropolitan Life Ins. Co., 259 F.Supp. 324 (E.D.Pa.1966)).

In his complaint, Carmichael makes reference to at least ten separate declarations, treaties and conventions that prohibit torture. ⁶ Carmichael cites these documents for the proposition that torture is internationally abhorred, and, indeed, it is. We agree that one means of ascertaining the law of nations is "by consulting the work of jurists writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law." United States v. Smith, 18 U.S. (5 Wheat) 153, 160-61, 5 L.Ed. 57 (1820). The treaties cited by Carmichael lend support to the conclusion that a consensus has been reached, at least among the countries that purport to uphold those treaties, that official torture violates the standards by which nations regulate their dealings with one another.

We will assume, without deciding, that "official torture" by one country of the citizens of another country violates the law of nations. Clearly, among civilized...