Cuevas v. Reading & Bates Corp.

• Decision Date: 19 September 1985
• Docket Number: No. 84-2154,84-2154
• Citation: 770 F.2d 1371
• Parties: , 2 Fed.R.Serv.3d 1451 Rogelio J. CUEVAS, et al., Plaintiffs-Appellants, v. READING & BATES CORP., a/k/a Reading & Bates Offshore Drilling Co., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1371

770 F.2d 1371

1986 A.M.C. 2262, 2 Fed.R.Serv.3d 1451

Rogelio J. CUEVAS, et al., Plaintiffs-Appellants, v. READING & BATES CORP., a/k/a Reading & Bates Offshore Drilling Co., et al., Defendants-Appellees.

No. 84-2154.

United States Court of Appeals Fifth Circuit.

Sept. 19, 1985.

Due' Dodson, deGravelles, Robinson & Casey, Chester J. Caskey, Baton Rouge, La., for Cuevas, et al.

Royston, Rayzor, Vickery & Williams, Ted C. Litton, Houston, Tex., for defendants-appellees.

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

Before BROWN, WILLIAMS, and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

This appeal involves a suit brought by nonresident foreign nationals for unpaid wages, and for personal injuries and wrongful death suffered in an accident in foreign waters on a semi-stationary drilling rig owned and operated by United States corporations. The district court first determined that United States law did not apply, and then dismissed the suit on forum non conveniens grounds. We affirm.

FACTS

On October 2, 1980, while positioned about one hundred miles into the Persian Gulf in Saudi Arabian waters, the jack-up drilling ship R/V RON TAPPMEYER encountered a pocket of hydrogen sulfide gas during oil well drilling operations. Fumes killed a number of crewmen, including one United States citizen and several Philippine nationals, and injured others. Reading & Bates Exploration Company, owner of the vessel, had chartered it to Reading & Bates, Inc.--Saudi Arabia Branch ("RBSAB"), a wholly owned subsidiary of another United States corporation, Reading & Bates, Inc. RBSAB, with one exception, ¹ employed all the crew of the R/V RON TAPPMEYER. Day-to-day operations were controlled by the RBSAB office in Ras Tanura, Saudi Arabia. RBSAB had executed employment contracts with each crewmember that provided, inter alia, for resolution of any controversies, including disputes arising under the contracts and claims for compensation for injuries or death, by appropriate Philippine agencies, under Philippine law. ²

On May 19, 1982, the twelve appellants, each of whom is a Philippine domiciliary and citizen, brought this suit in the Southern District of Texas, Houston Division, alleging Jones Act, 46 U.S.C. Sec. 688, and general maritime claims for injury and/or wrongful death sustained while aboard the R/V RON TAPPMEYER, and seeking unpaid wages allegedly due them. ³ On October 18, 1982, appellees moved for dismissal on forum non conveniens grounds. On December 6, 1982, appellants filed a motion to transfer the action to a Louisiana federal district court, where the survivor of the lone United States citizen killed in the same accident had initiated suit. The district court conditionally dismissed appellants' suit by its "Memorandum and Order" on December 7, 1982. 577 F.Supp. 462 (S.D.Tex.1983). The court also refused to transfer appellants' suit to the Louisiana federal court entertaining the parallel United States citizen's suit. ⁴

Appellants' Baton Rouge, Louisiana, counsel received no copy of the court's Memorandum and Order, but were alerted to the dismissal by a copy of a letter from appellees' counsel to the court dated December 12, 1982, which acknowledged the court's decision. Appellant's counsel then repeatedly called the chambers of the court in Houston (rather than the clerk of court) in order to ascertain the status of the order. They were unable to make contact with the court in December; they did not, however, request their local counsel to obtain a copy of the order or to contact the court clerk. Houston counsel did finally receive a copy of the dismissal order, which they forwarded immediately by regular mail to Baton Rouge; appellants' counsel received it on January 9, 1983. On this same day, appellants filed simultaneously with the district court clerk a notice of appeal and a motion for an extension of time to file notice of appeal. The clerk did not then docket the notice of appeal. Appellants also contacted the clerk directly by telephone; he allegedly told them that the order would not become final for ninety days following the date of signing. ⁵ The district court, by order entered January 24, 1984, granted appellants' motion for extension of time to appeal, without opinion; the notice of appeal was thereafter docketed by the clerk on January 24, 1984.

On April 13, 1984, appellees filed with the Fifth Circuit a motion to dismiss the appeal as untimely; appellants responded that the delay had been occasioned by excusable neglect, and that the district court's granting of appellants' motion for extension was proper. This motion to dismiss was carried with the case.

APPEALABILITY

None of the parties to this suit has complained that the district court's order of dismissal was not final for purposes of appeal under 28 U.S.C. Sec. 1291. Because courts of appeal are courts of limited jurisdiction, we are obliged to resolve uncertainties of jurisdiction sua sponte when they arise. Koke v. Phillips Petroleum Co., 730 F.2d 211, 214 (5th Cir.1984); Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.1981).

Dismissals on forum non conveniens grounds have been considered final and appealable as of right. Koke, 730 F.2d at 214 (citing Menendez Rodriguez v. Pan American Life Insurance Co., 311 F.2d 429, 432 (5th Cir.1962)). As in Koke, the question of finality arises because of the presence of protective conditions contained in the dismissal order. The uncertainty here is whether such conditions operate to destroy finality. ⁶

In Koke, the order of dismissal on forum non conveniens grounds was conditioned upon three requisites: Defendants were to consent to jurisdiction in a single and appropriate foreign forum, waive any limitations defenses, and consent to abide by any judgment rendered by the court of that forum. 730 F.2d at 214. The district court there had in its dismissal order "further indicated that it would 'reassume jurisdiction and move the case towards its resolution' should any of the defendants fail to satisfy the conditions." Id. After reviewing the legal principles applicable to a forum non conveniens dismissal and the role of the final judgment rule in federal appellate practice, ⁷ and noting that, "[d]espite the apparent clarity of the general test, ... finality has proved to be an elusive concept," id. at 215, we recognized that there are some doctrinal exceptions to the finality rule that rest upon a " 'practical rather than a technical construction.' " Id. (quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974)). We characterized the finality problem in Koke as resulting from the semantics of the district court's dismissal orders, but we applied an analysis that sought to recognize the underlying effect of the orders, and not merely their language per se. We adopt the same approach here.

The dismissal order implicated here contains language which, if considered in isolation and construed literally, might be understood to impose conditions precedent upon the order's finality. ⁸ But the order recites, "[T]his action is hereby Dismissed" and "[I]f Defendants [appellees] should fail to promptly meet the foregoing conditions Plaintiffs may reopen this action." 577 F.Supp. at 477 (emphasis added). We think that, notwithstanding the other conditional language in the order, this statement indicates the district court's intention to have presently dismissed the case on forum non conveniens grounds, and merely to have held open the possibility that, should appellees have failed subsequently to submit to the jurisdiction of a foreign forum, appellants might refile their complaints in the district court.

The order of dismissal here, regardless of the semantics of its contents, does not purport to retain any even vestigial jurisdiction over the alleged causes of action: The order does not stay the actions pending fulfillment of its conditions; it does not provide for the court to reexamine at any future date the merits of the issues it had considered; nor does it contemplate the entry of any further orders regarding the merits of any such determinations, or provide for automatic reinstatement of the suit upon the failure of the appellees to conform to its conditions. See Koke, 730 F.2d at 218. Hence, as in Koke, the conditions imposed in the district court's order of dismissal act in practical manner as conditions subsequent to the dismissal, not as conditions precedent. Id. at 216-17.

We noted in Koke that, "[i]n the event the conditions are not fulfilled and suit is refiled, the [district] court will have to consider the merits of the case under the foreign law it has previously determined as applicable. Further, the court has no jurisdiction to simply reopen the case on any aspect; it has dismissed the actions." Id. at 216 n. 10 (emphasis in original). This conclusion is apt here also, despite the district court's use of the word "reopen." This wording does not purport to retain in the court the power sua sponte to reopen or otherwise reinstate the proceedings. Rather, any ability to bring this action again in a court of the United States lies expressly with the appellants. This disposition clearly has the practical effect of a dismissal without prejudice. Koke, 730 F.2d at 216. We conclude, therefore, that the order complained of is final for the purposes of 28 U.S.C. Sec. 1291, and that it is, consequently, appealable.

Although we hold this particular order appealable, we take occasion to express our strong opinion that such orders should be more precisely phrased so as to clearly indicate whether they are intended to bring about a presently effective dismissal. Where an order of dismissal is meant to be presently effective, and to contain only conditions subsequent, the language of the order should expressly and clearly so indicate. ⁹ Where, however, the court intends the...