CIVIL PROCEDURE
by Daisy Hurst Floyd·
I.
II.
III.
INTRODUCTION
APPELLATE JURISDICTION .••..•..••.........••...........•••....
V.
VI.
VII.
VIII.
483
483
SERVICE BY MAIL UNDER FEDERAL RULE OF CIVIL
PROCEDURE
IV.
..
4
.
REMOVAL JURISDICTION
.
SUMMARY JUDGMENT
.
RULE
11
SANCTIONS
.
FORUM NON CONVENIENS
RULE
.
54(b)
..
I.
492
495
499
504
505
506
INTRODUCTION
The cases discussed in this Article represent the most noteworthy
procedural cases decided by the Fifth Circuit from June 1, 1991,
through May 30, 1992. As is always the case in Survey Articles, the
cases discussed represent action by the court on a wide variety of
procedural issues. Unlike recent years, during this period the court
did not decide many significant cases dealing with sanctions. Instead,
the court struggled with jurisdictional issues, including removal jurisdiction and traps present in the interplay between the Federal Rules
of Appellate Procedure and the Federal Rules of Civil Procedure.
The court also clarified the application of existing precedent in other
areas.
II.
APPELLATE JURISDICTION
In two cases decided during the survey period, the Fifth Circuit
dealt with the intricacies of Federal Rule of Appellate Procedure 4
concerning whether appellate jurisdiction was proper. In doing so,
the court reaffirmed its 1986 decision in Harcon Barge Co. v. D &
G Boat Rentals, Inc. l and once again put litigants on notice that
• Assistant Professor of Law, Texas Tech University; B.A., Emory University, 1977;
M.A., 1977; J.D., University of Georgia, School of Law, 1980.
I. 784 F.2d 665 (5th Cir.) (en bane), cert. denied, 479 U.S. 930 (1986).
483
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they must understand the distinction between Federal Rules of Civil
Procedure 59 and 60 or run the risk of inadvertently nullifying a
notice of appeal filed before the disposition of certain motions.
In the first of these cases, United States v. One 1988 Dodge
Pickup, 2 the appellant filed a notice of appeal after the district court
denied a motion to set aside a default judgment, but before the
court denied a motion for rehearing. 3 The Fifth Circuit held that the
notice of appeal was not nullified by the court's order on the motion
for rehearing. Therefore, the Fifth Circuit had appellate jurisdiction. 4
In its decision, the court examined the interplay between Federal
Rule of Appellate Procedure 4(a)(4), Federal Rules of Civil Procedure
55, 59, and 60, and its own precedent. s
The case arose out of the seizure of a Dodge pickup truck
brought from Mexico into the United States. 6 The district court
entered a default decree of forfeiture. Five days later, on April 22,
1991, the appellant filed a motion to set aside the default judgment. 7
The court denied that motion on May 15. Thereafter, the appellant
filed and served a motion for rehearing on May 22, followed by a
notice of appeal on May 28. The court denied the motion for
rehearing on May 29. The issue on appeal was whether the court's
May 29 order nullified the May 28 notice of appeaLB
The starting point for the court's analysis in One 1988 Dodge
Pickup was its previous decision in Harcon Barge. 9 In that en bane
decision, the court discussed panel decisions in two cases to determine
whether a post judgment motion was a Rule 59(e) motion or a Rule
60 motion. to Under Federal Rule of Appellate Procedure 4(a)(4), a
2.
3.
4.
5.
6.
7.
959 F.2d 37 (5th Cir. Apr. 1992).
[d. at 39.
[d. at 41.
See id. at 39-41.
[d. at 38.
[d. at 39.
8. [d.
9. See id.
10. See Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 666-67 (5th Cir.)
(en banc), cert. denied, 479 U.S. 930 (1986). The court in this case was rehearing its earlier
decision in Harcon Barge Co. v. D & G Boat Rentals, Inc., 746 F.2d 278 (5th Cir. 1984),
reh'g granted, 760 F.2d 86 (5th Cir. 1985). The court also granted rehearing en banc to a
decision regarding the same issue in Willie v. Continental Oil Co., 746 F.2d 1041 (5th Cir.
1984), reh'g granted, 760 F.2d 87 (5th Cir. 1985). On rehearing, the court held that [i]n
accordance with [Harcon] , we hold that the motion to amend the judgment ... was a Rule
59(e) motion." Willie v. Continental Oil Co., 784 F.2d 706, 707 (5th Cir. 1986).
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previously filed notice of appeal is nullified by the disposition of a
Rule 59 motion but not by the disposition of a Rule 60 motion. ll
While Rule 59 provides for motions to alter or amend a judgment,12 Rule 60 provides for motions to seek relief from a judgment
based on such factors as mistake, inadvertence, excusable neglect,
newly discovered evidence, or fraud. 13 Federal Rule of Appellate
Procedure 4(a)(4) provides in pertinent part:
If a timely motion under the Federal Rules of Civil Procedure is
filed in the district court by any party. . . under Rule 59 to alter
or amend the judgment. .. , the time for appeal for all parties
shall run from the entry of the order denying a new trial or
II. See FED. R. App. P. 4(a)(4).
12. Federal Rule of Civil Procedure 59(e) states: "A motion to alter or amend the
judgment shall be served not later than 10 days after entry of the judgment." FED. R. Cry.
P. 59(e).
13. Federal Rule of Civil Procedure 60 reads:
(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission may be corrected by
the court at any time of its own initiative or on the motion of any party and after
such notice, if any, as the court orders. During the pendency of an appeal, such
mistakes may be so corrected before the appeal is docketed in the appellate court,
and thereafter while the appeal is pending may be so corrected with leave of the
appellate court
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud,
Etc. On motion and upon such terms as are just, the court may relieve a party or
a party's legal representative from a final judgment, order, or proceeding for the
following reasons: (I) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence which by due diligence could not have been discovered in time
to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated
intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;
(4) the judgment is void; (5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise vacated,
or it is no longer equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of the judgment. The
motion shall be made within a reasonable time, and for reasons (I), (2), and (3) not
more than one year after the judgment, order, or proceeding was entered or taken.
A motion under this subdivision (b) does not affect the finality of a judgment or
suspend its operation. This rule does not limit the power of a court to entertain an
independent action to relieve a party from a judgment, order, or proceeding, or to
grant relief to a defendant not actually personally notified as provided in Title 28,
U.S.C., § 1655, or to set aside a judgment for fraud upon the court. Writs of coram
nobis, coram vobis, audita querela, and bills of review and bills in the nature of a
bill of review, are abolished, and the procedure for obtaining any relief from a
judgment shall be by motion as prescribed in these rules or by an independent
action.
FED. R. Cry. P. 60.
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granting or denying any other such motion. A notice of appeal
filed before the disposition of any of the above motions shall
have no effect. A new notice of appeal must be filed within the
prescribed time measured from the entry of the order disposing
of the motion as provided above. '4
In Harcon Barge, the court held that a post judgment motion
intended to alter or amend a judgment, however characterized by
the party filing the motion, was a "Rule 59(e) motion. ls The court
found that the motions in both cases it considered were Rule 59(e)
motions, although neither motion indicated on its face which rule
applied; in fact, in one case the movants characterized their motion
as a Rule 60 motion. 16 Because it held that the motions were Rule
59(e) motions, the court nullified notices of appeal filed before the
disposition of the motions. 17
In One 1988 Dodge Pickup, the court applied the "bright-line
rule"18 from Harcon Barge to distinguish between motions filed under
Rule 59(e) and those filed under Rule 60: "a motion that 'calls into
question the correctness of [a] ... judgment ... should be treated
as a motion under Rule 59(e)."'19 The court noted that "[p]ost
judgment motions filed within 10 days. should where possible be
construed as Rule 59(e) motions to avoid otherwise endless hassles
over proper characterization. "20
One layer in the court's analysis in One 1988 Dodge Pickup was
not present in Harcon Barge. 21 The proper characterization of the
May 22 motion depended upon the nature of the April 22 motion
to set aside the default judgment. If the April 22 motion were a
Rule 59(c) motion under Harcon Barge, the May 22 motion for
rehearing would be treated as a Rule 59 motion directed to the
overruling of a previous Rule 59 motion. 22 In that situation, Rule
4(a)(4) would not operate to nullify the notice of appeal because it
14.
FED. R. APP. P. 4(a)(4).
See Hareon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir.) (en
bane), cert. denied, 479 U.S. 930 (1986).
16. See id. at 668.
15.
17.
See id.
18.
19.
20.
[d. at 670.
[d. at 669-70 (quoting Dove v. CODESCO, 569 F.2d 807,809 (4th Cir. 1978».
[d. at 670 (quoting Western Indus., Inc. v. Neweor Can. Ltd., 709 F.2d 16, 17 (7th
Cir. 1983».
21. 959 F.2d 37 (5th Cir. Apr. 1992).
22. [d. at 39.
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does not include within its scope a second Rule 59 motion that is
challenging the denial of an earlier Rule 59 motion. 23 If, however,
the April 22 motion were regarded as coming within Rule 60(b), the
motion for rehearing would be a Rule 59(e) motion requiring application of Federal Rule of Appellate Procedure 4(a)(4)Y In that
situation, the notice of appeal would be nullified because that motion
was disposed of after the notice of appeal was filed. 25
In reaching its decision that the April 22 motion was a 59(c)
motion, the court noted a split in other circuits regarding the proper
characterization of a motion to set aside a default judgment.26 The
First and Eleventh Circuits look to Rule 55(c) to find that a motion
to set aside a default judgment is not a Rule 59 motion but is a
Rule 55(c) motion, even when filed within ten days after judgment'!?
Rule 55(c) states that "[f]or good cause shown the court may set
aside an entry of default and, if a judgment by default has been
entered, may likewise set it aside in accordance with Rule 60(b)."28
The Fifth Circuit chose not to follow the reasoning of those
courts. Instead, the court adopted the reasoning of the Seventh
Circuit29 to find that "a motion to set aside default judgment, served
within ten days after entry of the judgment, invoked Rule 4(a)(4)."30
The court felt that any other decision would "undermine the central
rationale of Harcon Barge, which was to create a uniform 'brightline
rule." '31 The court held that because the motion to set aside a default
judgment questions the correctness of the original judgment, it is
"functionally a motion under Rule 59(e). "32 This is true, according
to the court, "even though the relief sought is available under Rule
60(b) and the motion specifically invokes Rule 60(b) alone. "33 The
court found that although Rule 55(c) refers to Rule 60(b) as a motion
23.
[d.
24.
25.
26.
[d.
[d.
[d. at 39-40.
27.. See Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24 (lst Cir. 1988); Gulf Coast
Fans, Inc. v. Midwest Elecs. Importers, Inc., 740 F.2d 1499 (11th Cir. 1984).
28. FED. R. Crv. P. 55(c).
29. See Anilina Fabrique de Colorants v. Aakash Chems. & Dyestuffs, Inc., 856 F.2d
873 (7th Cir. 1988).
30. 959 F.2d at 40.
31. [d.
32. [d.
33. [d.
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to set aside a default, Rule 55(c) did not intend to make Rule 60(b)
the exclusive vehicle for a motion to set aside a default judgment. 34
The court also entered "the murky waters of appellate jurisdiction" in Ellison v. Conoco, Inc. 35 Once again, the Fifth Circuit
addressed the question of whether a notice of appeal had been filed
at the proper time to provide appellate jurisdiction. 36 The appellant
in Ellison filed a notice of appeal after the district court filed a
written order disposing of a post-trial motion but before the court
filed its judgment on that motion. 37 The issue on appeal was whether
the notice of appeal should have been filed after entry of the
judgment to obtain appellate jurisdiction. 38
The Fifth Circuit again examined Federal Rules of Appellate
Procedure 4(a)(4) and (4)(a)(2), along with Federal Rule of Civil
Procedure 58. Federal Rule of Appellate Procedure 4(a)(2) provides
that when Rule 4(a)(4) is inapplicable, a notice of appeal that is filed
after the court announces a decision but before the judgment is
entered will be treated as if filed on the day the judgment is entered. 39
The appellee contended that the case came within Rule 4(a)(4) and
that therefore Rule 4(a)(2) did not operate to deem the notice of
appeal filed on the day the judgment was entered. According to the
appellee, Rule 4(a)(4) applied because the court's order was on a
motion for judgment notwithstanding the verdict (JNOV).40
In Ellison, the plaintiff filed suit against several defendants for
personal injuries. The defendants were successful on several summary
judgment motions, but there was a trial on a single issue. The jury
returned a verdict in favor of the plaintiff on that issue. Within the
34. [d.
35. 950 F.2d 1196, 1200 (5th Cir. Jan. 1992).
36. [d.
37. [d. at 1199.
38. [d.
39. FED. R. App. P. 4(a)(2) (stating that "[e)xcept as provided in (a)(4) of this Rule 4, a
notice of appeal filed after the announcement of a decision or order but before the entry of
the judgment or order shall be treated as filed after such entry and on the day thereof").
40. 950 F.2d at 1200. Federal Rule of Appellate Procedure 4(a)(4) applies to motions: for
judgment under Rule 50(b); to amend or make additional findings of fact under Rule 52(b);
to alter or amend a judgment under Rule 59; and for new trial under Rule 59. FED. R. App.
P. 4(a)(4). The motion was filed before the 1991 amendment to Rule 50, which provides for
judgment as a matter of law rather than for JNOV. 950 F.2d at 1199; see FED. R. CIV. P.
50.
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required time period, the defendant filed a motion for JNOV.41
The district court granted the JNOV motion by an order dated
May 3, 1990, entered in the civil docket on May 4. Following the
May 4 entry of the order, the plaintiffs appealed that order as well
as the earlier summary judgments. 42 A separate document granting.
judgment for the defendant, based on the court's grant of the motion
for JNOV, was entered in the docket on May 21. The plaintiff did
not file a new notice of appeal after May 21. 43
The appellee contended that Rule 4(a)(4) required that a new
notice of appeal be filed after disposition of the motion for JNOV.44
Therefore, the appellate court's jurisdiction in this case turned on
whether the court's May 3 order had disposed of the post-trial motion
for JNOV or whether the judgment, filed on May 21, disposed of
the motion. 45
The appellant's argument that no new notice of appeal was
required rested on Federal Rule of Civil Procedure 58. Rule 58
provides that "[e]very judgment shall be set forth on a separate
document. A judgment is effective only when so set forth and when
entered as provided in Rule 79(a) [requiring the maintenance of a
civil docket]."46 According to the appellant, the post-trial motion
was not disposed of until May 21, pursuant to Rule 58. Therefore,
under Federal Rule of Appellate Procedure 4(a)(4), the plaintiff was
required to file a notice of appeal after that date. 47
Although the United States Supreme Court has held that the
separate document requirement may be waived,48 that rule did not
help the appellant in Ellison because the appellee refused to waive
the requirement. 49 The Fifth Circuit noted, however, that the Supreme
Court's decision was indicative of an approach to Rule 58 that was
"mindful of [its] purpose of saving appeals. "50
41.
motion
42.
43.
950 F.2d at 1199. The motion was styled as a motion for JNOV, or alternatively, a
for new trial, or in the further alternative, for remittitur. [d.
Id. .
[d.
44. [d. at 1200.
45.
[d.
46.
FED.
47.
48.
49.
50.
See
See
See
[d.
R. Ctv. P. 58.
950 F.2d at 1200.
Bankers Trust Co. v. Mallis, 435 U.S. 381, 386 (1978).
950 F.2d at 1199.
at 1200.
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The Fifth Circuit found that appellate jurisdiction was proper
on these facts. 51 The court construed Rule 4(a)(4) as requiring only
entry of an order rather than entry of a separate judgment pursuant
to Rule 58,52 Therefore, the district court disposed of the motion by
entering the order. Because Ellison filed a notice of appeal after
entry of the order, the notice of appeal was not nullified by the later
entry of the judgment. 53
In reaching its decision, the court was careful to distinguish its
1988 decision in Jones v. Celotex Corp.54 In Jones, the court held
that a clerk's minute entry, noting the district court's oral grant of
a motion for JNOV, was not a final decision. 55 Therefore, a notice
of appeal filed after the clerk's minute entry but before entry of the
district court's written order or written judgment was not sufficient
to provide the court with appellate jurisdiction. 56 The court, in
Ellison, "decline[d] to extend Jones beyond the situation in which
no written order of the court has yet disposed of the pending posttrial motion. "57
The court similarly distinguished its decision in InterFirst Bank
Dal/as v. FDIC. 58 In that case, the court found that a district court's
order disposed of a post-trial motion because it was "succinct and
to the point, and expressly granted the relief requested."59 A separate
judgment was not necessary to finally dispose of the motion. 60 The
court noted that InterFirst Bank Dal/as did not resolve the issue
before it in Ellison because in the earlier case the question was
whether the disposition was final in the absence of a separate order. 61
The court held in InterFirst Bank Dallas that since that order was
final, the notice of appeal had been filed too late. 62 The court did
not address the question of a possibly premature (and nullified) filing
as in Ellison.
51.
52.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
Id. at 1203.
Id.
Id.
857 F.2d 273 (5th Cir. 1988), cert. denied, 493 U.S. 900 (1989).
/d. at 275.
Id.
950 F.2d at 1202.
808 F .2d II 05 (5th Cir. 1987).
Id. at 1109.
Id.
950 F.2d at 1201.
808 F.2d at 1109.
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These decisions point out the difficulty of maneuvering through
the provisions of Rule 4· as well as an inconsistency in the Fifth
Circuit's approach to. Rule 4. In re-affirming the Harcon Barge
"bright-line" test, the court takes a strict approach to construing
Rules 59 and 60. A litigant who thinks she is filing a Rule 60 motion
and even labels the motion as a Rule 60 motion can find a notice
of appeal nullified by the court's presumption in favor of Rule 59.
Yet, in Ellison, the court advocates a policy in' favor of saving
appeals.
Other Courts of Appeals have similarly faced the complex interplay of rules required for construction of Rule 4. Because of the
different approaches taken by the Courts of Appeals and the difficulty for practitioners attendant to Rule 4, the Standing Committee
of the Judicial Conference on Rules of Practice and Procedure has
recommended amending the rule. 63 The proposed amendments would
eliminate the need for the appellate courts to develop and apply a
test to determine whether a motion was a Rule 59 or Rule 60 motion
as the Fifth Circuit had to do in United States v. One 1988 Dodge
Pick-up.64 Similarly, it would clarify that in a situation such as that
in Ellison, any notice of appeal filed after a post-trial motion would
be deemed filed on the day the judgment was disposed of. 6S Therefore,
determining whether the motion was disposed of by the entry of the
order or the entry of the judgment would not be critical. 66
The proposed amendment would delete from Rule 4(a)(2) the
language "except as provided in (a)(4) of this Rule 4," thereby
including the specific motions listed in (a)(4) within Rule (a)(2)'s
provision allowing the notice Of appeal to be deemed filed on the
day the judgment is entered,61 In addition, the recommendation
includes an amendment to (a)(4) consistent with the amendment to
63. COMMITTEE ON RULES OF PRACTICE AND PROCEDURE OF THE JUDICIAL CONFERENCE OF
THE UNITED STATES, PROPOSED AMENDMENTS TO THE FEDERAL RULES OF ApPELLATE PROCEDURE
8-24 (Sept. 1992) (on file with Texas Tech Law Review) [hereinafter PROPOSED AMENDMENTS).
64. 959 F.2d 37 (5th Cir. Apr. 1992).
65. See id. at 39.
66. See id.
67. PROPOSED AMENDMENTS, supra note 63, at 9. The proposed amended Rule 4(a)(2)
would read:
A notice of appeal filed after the court announces a decision or order but before
the entry of the judgment or order is treated as filed on the date of and after the
entry.
PROPOSED AMENDMENTS, supra note 63, at 9-10.
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(a)(2) by adding the following language: "[a] notice of appeal filed
after announcement or entry of the judgment but before disposition
of any of the above motions is ineffective to appeal from the
judgment or order, or any part thereof, specified in the notice of
appeal, until the date of the entry of the order disposing of the last
such motion outstanding. "68
These proposed amendments were forwarded from the Judicial
Conference to the United States Supreme Court in September, 1992
for consideration by the court during the October, 1992 term. As of
February 1, 1993, the Supreme Court had not taken action on the
proposed amendments. If the amendments are approved, they will
take effect no earlier than December 1, 1993. 69
III.
SERVICE BY MAIL UNDER FEDERAL RULE
OF CIVIL PROCEDURE
4
During the survey period, the Fifth Circuit struggled with the
construction of Federal Rule of Civil Procedure 4, providing for
service by mail. The court held in Carimi v. Royal Caribbean Cruise
68.
The proposed amended Rule 4(a)(4) would read:
If any party makes a timely motion of a type specified immediately below, the time
for appeal for all parties runs from the entry of the order disposing of the last such
motion outstanding. This provision applies to a timely motion under the Federal
Rules of Civil Procedure:
(A) for judgment under Rule 50(b);
(B) to amend or make additional findings of fact under Rule 52(b), whether or
not granting the motion would alter the judgment;
(C) to alter or amend the judgment under Rule 59;
(D) for attorney's fees under Rule 54 if a district court under Rule 58 extends
the time for appeal;
(E) for a new trial under Rule 59; or
(F) for relief under Rule 60 if the motion is served within 10 days after the entry
of judgment.
A notice of appeal filed after announcement or entry of the judgment but before
disposition of any of the above motions is ineffective to appeal from the judgment
or order, or part thereof, specified in the notice of appeal, until the date of the
entry of the order disposing of the last such motion outstanding. Appellate review
of an order disposing of any of the above motions requires the party, in compliance
with Appellate Rule 3(c), to amend a previously filed notice of appeal. A party
intending to challenge an alteration or amendment of the judgment shall file an
amended notice of appeal within the time prescribed by this Rule 4 measured from
the entry of the order disposing of the last such motion outstanding. No additional
fees will be required for filing an amended notice.
PROPOSED AMENDMENTS, supra note 63, at 10-13.
69. See 28 U.S.C. § 2074 (1988).
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Line, Inc. 70 that compliance with state requirements for' service was
not sufficient to effect service under Rule 4(c)(2)(C). Rather, the
specific requirements of that rule must be met,11
Rule 4(c)(2)(C)(ii) permits service "by mailing a copy of the
summons and of the complaint (by first-class mail, postage prepaid)
to the person to be served, together with two copies of a notice and
acknowledgment conforming substantially to form 18-A and a return
envelope, postage prepaid, addressed to the sender."72 If the sender
does not receive the acknowledgment within twenty days after mailing, he or she is to effect service under another section of Rule 4. 73
In Carimi, the plaintiff mailed service to the defendant's agent
by certified mail, return receipt requested. The defendant admitted
receipt of the mailing but contended that the mailing did not contain
a complaint. 74 Rather, according to the defendant, it contained only
the acknowledgment and summons. The defendant's agent signed the
postal service return receipt but did not sign or return the acknowledgment. 75 The plaintiff submitted evidence that the mailing included
a copy of the complaint and obtained a default judgment. 76 Several
months after entry of the default, the defendant filed a motion to
set aside the default and to dismiss the plaintiff's suit based on lack
of jurisdiction due to insufficient service of process. 77
A panel of the Fifth Circuit had decided in a previous summary
calendar opinion 78 in this case that service was proper and that the
default judgment was therefore proper. 79 That opinion was withdrawn
upon the defendant's motion, and the court granted a rehearing with
oral argument. 80 Upon rehearing, this panel reversed the trial court's
failure to set aside the default judgment. 81
70.
959 F.2d 1344 (5th Cir. May 1992).
[d. at 1348.
72. FED. R. CIY. P. 4(c)(2)(c)(ii).
73. [d. The rule states: "If no acknowledgment of service under this subdivision of this
rule is received by the sender within 20 days after the date of mailing, service of such summons
and complaint shall be made under subparagraph (A) or (B) of this paragraph in the manner
prescribed by subdivision (d)(I) or (d)(3)." [d.
74. 959 F.2d at 1345.
75. [d.
71.
76.
77.
[d.
[d. The appellate court found that the district court must have found as a fact that
the mailing included a copy of the complaint. [d.
78. [d. at 1346.
79. [d.
80.
[d.
81.
[d.
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The summary calendar panel had concluded that although the
service did not comply with Rule 4(c)(2)(C)(ii) because a second
service should have been attempted when the acknowledgment was
not returned, it complied with the requirements of the Louisiana
long-arm statute. 82 Therefore, according to the original panel, the
service was effective under Rule 4(e).83 Rule 4(e) states in part:
Whenever a statute or rule of court of the state in which the
district court is held provides (1) for service of a summons, or of
a notice, or of an order in lieu of summons upon a party not an
inhabitant of or found within the state..., service may in either
case be made under the circumstances and in the manner prescribed in the statute or rule. 84
In coming to a different conclusion, this panel noted that "an
injustice would result"85 if it allowed the summary panel's decision
to stand. 86 The .court determined that service under state law and
service under Rule 4(c)(2), allowing service by mail, could not occur
in the same mailing. 87 In the case before it, the court felt that the
defendant was entitled to rely on the designation on the acknowledgment that service was being made pursuant to Rule 4(c)(2)(C)(ii).88
Because that rule does not indicate that failure to return the acknowledgment results in a default judgment, fairness would not allow
the default to stand. 89 Indeed, the acknowledgment sent under Rule
4(c)(2)(C)(ii) indicated that the only consequence for failure to return
the acknowledgment was the possibility of paying co'sts for a second
attempt at service. 90
The court succinctly stated its reasoning:
One simply cannot serve a prospective defendant under Rule
4(c)(2)(C)(ii) and under another rule at the same time if there is
a 20-day delay under the Rule. Mail service is clearly a two-step,
not 11 two-pronged, process. If mail service is attempted and the
82. [d. The Louisiana long-arm statute provides that "[a] certified copy of the citation
and of the petition ... shall be sent by counsel for the plaintiff to the defendant by registered
or certified mail." LA. REV. STAT. ANN. § 13.3204(A) (West 1991).
83. 959 F.2d at 1346.
84. FED. R. Ctv. P. 4(e).
85. 959 F.2d at 1346.
86.
[d.
87.
88.
89.
90.
[d. at 1347.
[d.
[d.
[d.
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acknowledgment form is not returned, there is no service. Then
and only then must a plaintiff effect service by any authorized
alternative; the plaintiff simply cannot unilaterally recharacterize
the first step of service under Rule 4(c)(2)(C)(ii) as service pursuant
to another rule or another statute. That the first step under the
Rule might otherwise meet the requirements of some other method
of service, such as service under Louisiana's Long-arm statute, is
pure serendipity. Such coincidence cannot by hindsight be converted to a valid service-and a 'gotcha' for the unsuspecting
defendant. 91
In reaching its decision in Carimi, the Fifth Circuit brought the law
regarding this aspect of service by mail in line with the law of several
other circuits. 92
IV.
REMOVAL JURISDICTION
In two cases decided during the survey period, the Fifth Circuit
dealt with removal jurisdiction. In FDIC v. LoycP3 and In re Administrators oj the Tulane Educational Fund,94 the Fifth Circuit
examined the reviewability of a district court's order to remand a
case removed from state court to federal court in light of recent
amendments to Title 28, Section 1447(c) of the United States Code95
and the Supreme Court's 1976 decision in Thermtron Products, Inc.
v. Hermansdorjer. 96 These decisions required the court to apply the
rule it had recently established in two companion cases, both entitled
In re Shell Oil CO.97 Pursuant to those cases, a remand order is
reviewable on appeal when it is premised on a procedural defect in
the removal and when remand is made after the thirty-day time
period for removal under 1447(c).98
91. Id.
92. Id. In its opinion, the court cited cases from other circuits that reached the same
conclusion: Media Duplication Servs., Ltd. v. HOG Software, Inc., 928 F.2d 1228 (1st Cir.
1991); S.J. Groves & Sons Co. v. J.A. Montgomery, Inc., 866 F.2d 101 (4th Cir. 1989);
Combs v. Nick Garin Trucking, 825 F.2d 437 (D.C. Cir. 1987).
93. 955 F.2d 316 (5th Cir. Feb. 1992).
94. 954 F.2d 266 (5th Cir. Feb. 1992).
95. See Act of Nov. 19, 1988, Pub. L. No. 100-702, Title X, § 1016(c), reprinted in 1988
U.S.C.C.A.N. 4642, 4670 (codified at 28 U.S.C. § 1447(c) (1988».
96. 423 U.S. 336 (1976).
97. 932 F.2d 1518 (5th Cir. July 1991) and 932 F.2d 1523 (5th Cir. July 1991); see 28
U.S.C. § 1447(c) (1988); see also Daisy Hurst Floyd, Civil Procedure, Survey of Fifth Circuit,
23 TEX. TECH L. REV. 141, 161-64 (1992) (discussing In re Shell Oil).
98. 955 F.2d at 320; 954 F.2d at 269.
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Loyd concerned the district court's authority to remand sua
sponte a case after the thirty-day time period had elapsed. 99 The case
arose out of an action originally filed in Texas state court by a bank
against a former officer. lOo The suit was based on the officer's alleged
stealing of funds from customer accounts. 101 During the litigation,
the holder of the bank's interest in the litigation was merged into
another bank. That bank became insolvent, and the FDIC was
appointed as Receiver of the bank. 102 The FDIC and its co-party,
NCNB, removed the action to federal district court. 103
Approximately twenty-one months after the action was removed,
the district court sua sponte remanded the case to state court. In
doing so, the district court acknowledged that 1447(c) required that
a motion for remand be filed within thirty days of removal. 104 The
district court held, however, that the thirty-day requirement did not
apply to a court's consideration of remand on its own motion. lOS
On appeal, the Fifth Circuit first dealt with the question of
whether the remand order was reviewable. I06 Applying . the Shell Oil
rule, the court found that the district court's remand order was based
on a defect in removal procedure. 107 The order was removable because
it occurred outside of the thirty-day limit. 108 This conclusion forced
the court to consider for the first time whether the removal statute
prohibited the district court, as well as the parties, from seeking to
remand after thirty days.l09
The Fifth Circuit was "unpersuaded" by the district court's
reasoning that it could remand outside of the thirty-day period. I1O
99.
955 F.2d at 317.
Id.
Id.
102. Id.
103. Id.
104. Id. at 318.
105. Id.
106. Id. at 319. The court noted that by statute, the FDIC was entitled to review of any
remand order. Id. However, the FDIC's co-party, NCNB, did not come within the applicable
statutory rule. See id.
107. Id. at 320-21. The case was remanded because of an untimely removal by the FDIC
and NCNB. Id.
108. Id. at 321. The court stated in a footnote: "We also leave for another day the
question of whether, in the light of the use of the word 'motion' in the new I447 (c), a sua
s·ponte remand by the district court within thirty days would be reviewable." Id. at 321 n.4.
109. Id. at 321-22.
llO. Id. at 321.
100.
101.
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Therefore, the court vacated and remanded the judgmenL ll1 According to the Fifth Circuit,
the district court offered four grounds to support its conclusion
that 1447(c) did not prevent a sua sponte remand of this case: (I)
the statute by its terms did not preclude a court from acting sua
sponte; (2) the word 'motion' did not apply to the court acting
on its own initiative; (3) the legislative history of the amendment
did not preclude a court from remanding a case sua sponte' and
(4) there was no policy reason for limiting the discretion of the
court. 112
The Fifth Circuit supported its decision by looking at the wording
of the removal statute. The court concluded that "motions" within
the meaning of the statute included actions taken by the district court
on its own. 113 Therefore, when 1447(c) prohibited motions to remand
outside of thirty days after removal, the statute included remands
on a court's own motion.
The court also looked to legislative history and found that the
recent amendment to 1447, in which the thirty-day requirement was
added, had as its purpose ensuring that any procedural defects with
the removal procedure be raised within thirty days.1l4 This purpose
included defects raised by either the parties or the courts. liS
Finally, the court noted its general rule that a court is rarely, if
ever, empowered to sua sponte remand a case on procedural grounds:
"[C]onsidering a motion to remand is both procedurally and substantively different from inquiring into the existence of subject matter
jurisdiction. Procedurally, a court may consider remand only if the
parties raise the issue; conversely, a court must consider the existence
of subject matter jurisdiction on its own motion. "116
111.
112.
[d. at 323.
[d. at 321. The district court relied on another district court case, Smith v. MBL Life
Assurance Corp., 727 F. Supp. 601 (N.D. Ala. 1989), in which the court indicated a case
could be remanded sua sponte at any time after thirty days from the removal. [d. at 322 n.5.
The Fifth Circuit noted in a footnote that it would not adopt "the dicta in Smith." [d. The
Fifth Circuit relied on the Third Circuit's opinion in Air-Shields, Inc. v. Fullam, 891 F.2d 63
(3d Cir. 1989), as it did in the Shell Oil cases. [d. at 322. It adopted the Fullam court
reasoning, holding that remand sua sponte outside of the thirty-day period was outside of the
district court's authority. [d.
113. 955 F.2d at 321.
114. [d. at 320-22.
115.
116.
[d.
[d. at 322-23 (quoting Zeigler v. Champion Mortgage Co., 913 F.2d 228, 230 (5th
Cir. 1990». In Loyd, the Fifth Circuit resolved for the first time two issues arising out of
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The second case in which the court provided a follow-up to its
Shell Oil cases of the previous year was In re the Administrators oj
the Tulane Educational Fund. 117 The court was called upon in that
case to decide whether the district court's remand order was based
on a perceived lack of jurisdiction. liS If so, the case was not reviewable on appeal under the Fifth Circuit's interpretation of the Supreme
Court's Thermtron decision as set out in Shell Oil}19
In re Administrators oj the Tulane Educational Fund had a long
procedural history. This case had been appealed once to the United
States Supreme Court and remanded to the district court with instructions to remand the case to state court. 120 After the case was
remanded to state court, the defendants again removed to federal
court. The second removal attempt was based on different statutory
grounds than the first, and ultimately unsuccessful, removal attempt. 121 The district court remanded the case to state court after
the second removal attempt because the removal decision turned on
whether a particular defendant was an indispensable party to the
action. According to the district court, only the state court could
resolve this issue. 122
application of the general removal statute to the FDIC. First, the court rejected the FDIC's
argument that the removal statute's thirty-day time period did not apply to them. [d. ·at 325.
Second, the court also settled the question of when that time period began to run for the
FDIC. [d. at 328. The court's decisions on those issues, however, have been nullified by
December amendments to FIRREA dealing with those questions. Title 12, Section 1819(b)(2)(B)
of the United States Code now reads:
Except as provided in subparagraph (D), the Corporation may, without bond or
security, remove any action, suit, or proceeding from a State court to the appropriate
United States district court before the end of the 9O-day period beginning on the
date the action, suit, or proceeding is filed against the Corporation or the Corporation
is substituted as a party.
12 U.S.C. § 1819(b)(2)(B) (1988 Supp. III 1991).
117. 954 F.2d 266 (5th Cir. Feb. 1992).
118. [d. at 269.
119. [d. at 268-69.
120. [d. at 267-68.
121. See id. The first removal attempt was basea on Title 28, Section 1442(a)(I) of the
United States Code, which allows removal to federal court by certain federal defendants. [d.
lit 267. One of the defendants was the National Institute of Health ("NIH"). [d. The Supreme
Court reversed the Fifth Circuit's affirmance of the removal, holding that NIH, as a federal
agency, did not have authority to remove under that statute. [d. at 268. In this effort, the
defendant again attempted to remove the case to federal court under the same statute,
contending that NIH was a "person acting under" an officer of the United States, namely,
the Director of NIH. [d. The defendant then sought to have the Director of NIH and the
Secretary of Health and Human Services as parties. [d.
122. [d. at 268.
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The Fifth Circuit held that the remand had not been based on
a perceived lack of jurisdiction and was, therefore, reviewable on
appeal. 123 The court went on to hold that the district court erred in
remanding the case to state court. 124 The court was skeptical of
whether the issue of a party's indispensability was a state court
decision. The court found, however, that even if it were a state court
decision, the district court should have resolved the issue by looking
to state law: "a district court does not enjoy the luxury of remanding
a case to a state court to interpret state law or to make a record.
The district court must decide for itself [whether the potential defendant was an indispensable party.]"125 Accordingly, the court granted
a petition for mandamus and vacated the district court's remand
order. 126
v.
SUMMARY JUDGMENT
During the survey period, the Fifth Circuit decided two cases in
which the court added to the body of case law construing the Supreme
Court's decisions in Celotex Corp. v. Catrett 127 and post-Celotex
summary judgment cases. In Celotex, the Supreme Court stated that
summary judgment should be entered "against a party who fails to
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial." 128
In International Shortstop, Inc. v. Rally's, Inc., 129 the court
applied the Celotex standard in the context of what it called a case
outside of "run-of-the-mill" civil litigation. 130 This characterization
123. [d. at 269.
124. [d. at 270.
125. [d.
126. [d.
127. 477 U.S. 317 (1986).
128. [d. at 322.
'129. 939 F .2d 1257 (5th Cir. Aug. 1991), cert. denied, 112 S. Ct. 936 (1992).
130. [d. at 1264. The court described "run-of-the-mill" civil litigation in this way:
[T]he defendant moves for summary judgment on the ground that the evidence in
the record demonstrates that he is entitled to a judgment as a matter of law - that
should the case proceed to trial, the plaintiff will not sustain its burden of proof
and the court will necessarily direct a verdict in his favor. The defendant's summary
judgment motion is typically dressed in one of two styles: the defendant may
affirmatively offer evidence which undermines one or more of the essential elements
of the plaintiff's case; or, the defendant may simply demonstrate that the evidence
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of the case arose from several factors: (1) the summary judgment
motion rested on the movant's successful assertion of an affirmative
. defense, which meant that the movant, rather than the non-movant,
bore the burden of proof on the dispositive issue at trial; (2) an
essential element of the movant's case involved state of mind, which
the court has frequently found inappropriate for summary judgment;
and (3) the summary judgment motion was granted by the district
court before the non-movant had completed discovery. 131
The litigation arose from a dispute between International Shortstop ("Shortstop") and Rally's over the sale of a chain of fast-food
restaurants. In addition to these parties, a third entity, A. Copeland
Enterprises ("Copeland"), was involved in the transaction. 132 Shortstop contended that Rally's had interfered with a potential deal
between Shortstop and Copeland. 133 According to the plaintiff, Rally's had tortiously interfered with that deal by bringing a trade-dress
infringement suit against Shortstop on the eve of the completion of
the sale from Shortstop to Copeland. 134 Because of the lawsuit,
Copeland refused to cpmplete the sale, fearing that the value of the
restaurants acquired would be lessened by the pending lawsuit. 135
Shortstop alleged that the trade-dress infringement suit by Rally's
was brought in bad faith. 136
Rally's moved for summary judgment, contending that as a
matter of law it was absolutely privileged to bring the trade-dress
infringement lawsuit and that, therefore, the lawsuit could not form
the basis for a tortious interference claim. 137 The district court granted
Rally's motion. 138 It did so while several discovery motions were
pending before it. Those motions involved information sought by
Shortstop regarding Rally's purpose in filing the trade-dress infringement lawsuit. 139
in the record falls short of establishing an essential element of the plaintiff's case.
[d. at 1264 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) and Lavespere v. Niagara
Mach. & Tool Works, Inc., 910 F.2d 167. 178 (5th Cir. 1990».
131. [d. at 1264-67.
132. [d. at 1260.
133. [d. at 1261.
134. [d. The action was originally brought in Texas state court but was removed to federal
court by the defendant. [d.
135. [d.
136. [d.
137. [d. at 1262.
138. [d. at 1263.
139. [d. at 1262. The parties were involved in a discovery dispute regarding information
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In vacating the district court's grant of the summary judgment
motion, the Fifth Circuit discussed the application of Supreme Court
precedent to a summary judgment motion in which the movant bore
the ultimate burden of proof on a dispositive issue. 14O In such a
situation, according to the court, the moving party must come
forward with evidence that, if uncontradicted, would entitle the
movant to a directed verdict at trial. 141 The non-moving party can
then defeat the summary judgment by "merely demonstrating the
existence of a genuine dispute of material fact. "142 However, in a
situation such as this, where the movant also bears the burden of
proof, the non-moving party may also defeat the summary judgment
by "showing that the moving party's evidence is so sheer that it may
not persuade the reasonable fact-finder to return a verdict in favor
of the moving party."143
The Fifth Circuit found that the district court erred in basing
the summary judgment on the plaintiff's failure to put forth evidence
that the defendant had filed the trade-dress infringement lawsuit in
bad faith. l44 The district court relied on the defendant's uncontroverted assertion that it had filed the trade-dress lawsuit in the good
faith belief that it stated a colorable claim" 45 The Fifth Circuit
decided that the district court erred in finding the evidence sufficient
to warrant summary judgment on the basis that it was uncontroverted. l46
Because the defendant's state of mind was the dispositive issue
in the summary judgment, the Rally decision is also interesting for
sought from the defendant and its lawyers regarding the trade-dress infringement lawsuit. [d.
The plaintiff sought this information in an effort to prove the defendant's bad faith in filing
the lawsuit. [d. The defendant refused to provide the information, relying on attorney-client
privilege and work product. [d. Motions by both parties arising out of this dispute were
referred by the district court judge to a magistrate for disposition. [d. Pursuant to this referral,
the magistrate ordered the defendant to produce the requested information; however, the
information was not forthcoming before the discovery cut-off date. [d. The plaintiff filed a
motion with the district court to extend discovery, while the defendant sought to appeal the
magistrate's discovery ruling. [d. The district court ruled on the defendant's summary judgment
motion without ruling on these discovery matters. [d.
140. [d. at 1264-65.
141. [d. (citing Golden Rule Ins. Co. v. Lease, 755 F. Supp. 948, 951 (D. Colo. 1991».
142. [d. at 1265.
143.
[d.
144.
See id.
See id.
See id. at 1268.
145.
146.
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the Fifth Circuit's discussion of the difficulty in deciding state of
mind issues in the context of a summary judgment. In Rally, the
court advised lower courts faced with such a situation to "recognize
that undermining the moving party's professed state of mind is not
a simple task."147 For that reason, the court advised caution to ensure
that the court draws "every reasonable inference from the evidence
in the record in a light most flattering to the nonmoving party." 148
The court noted also that Rally was further complicated because
summary judgment was deCided before discovery was complete. 149
Because there were pending discovery motions, the district court erred
by granting summary judgment prematurely. 150 Although the plaintiff
had not technically complied with the provisions of Federal Rule of
Civil Procedure 56(f),151 which allows the non-moving party to request
a continuance for additional discovery, the court found that it had
sufficiently alerted the district court to its need for additional discovery and to the relevance of the discovery to the summary judgment
issues .152 The court adopted language from the opinions of other
courts that "[w]here the party opposing the summary judgment
informs the court that its diligent efforts to obtain evidence from
the moving party have been unsuccessful, 'a continuance of a motion
for summary judgment for purposes of discovery should be granted
almost as a matter of course. "'153
The Fifth Circuit also dealt with summary judgment issues in
Russ v. International Paper CO. 154 In Russ, the court discussed what
147. [d. at 1266.
148. [d.
149. See id. at 1267.
150. See id. at 1268.
151. See id. at 1266. Federal Rule of Civil Procedure 56(f) provides:
Should it appear from the affidavits of a party opposing the motion that lhe party
cannot for reasons stated present by affidavit facts essential to justify the party's
opposition, the court may refuse the application for judgment or may order a
continuance to permil affidavits to be obtained or depositions to be taken or discovery
to be had or may make such olher order as is just.
FED. R. CIY. P. 56(f).
152. See 939 F.2d at 1267-68. The non-movant in this case twice filed a motion with the
district court to extend the discovery deadline. See id. at 1262. It also asked for permission
to file a supplemental brief in opposition to the summary judgment motion. [d. In these
motions, Shortstop "alerted the district court to the proceedings before the magistrate judge,
indicating that it expected to obtain, through the additional discovery, attorney-client evidence
undermining Rally's claimed privilege to file the [trade-dress infringement] lawsuit." [d.
153. [d. at 1267 (citing Sames v. Gable, 732 F.2d 49, 51 (3d Cir. 1984».
154. 943 F.2d 589 (5th Cir. Oct. 1991), cert. denied, 112 S. Ct. 1675 (1992).
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it termed a "common misinterpretation" of Celotex and post-Celotex
cases out of the Fifth Circuit. ISS
The plaintiff in Russ sued the defendant for personal injuries
sustained while the plaintiff was working as an independent contractor for the defendant. 1s6 The defendant moved for summary judgment, contending that the plaintiff had failed to show causation:1S7
In granting the summary judgment for defendant, the district court,
relying on Celotex and several Fifth Circuit decisions,ls8 held that
summary judgment is appropriate whenever a party fails to establish
the existence of an element essential to his case if he bears the burden
of proof on that issue at trial. 1s9
The Fifth Circuit disagreed with the district court's statement of
the Celotex rule. l60 Rather, according to the Fifth Circuit, "[s]imply
filing a summary judgment motion does not immediately compel the
party opposing the motion to come forward with evidence demonstrating material issues of fact as to every element of its case." 161
Before the non-moving party must produce evidence in opposition
to the motion, the moving party must first demonstrate the absence
of any factual issues requiring a trial. 162 This burden of the movant
remains consistent even when the non-movant bears the burden of
proof at trial. 163 Therefore, the district court in Russ applied the
wrong legal standard by compelling the plaintiff to come forward
with evidence to support its theory of causation. l64
In addition to discussing the application of the Celotex standard,
the Fifth Circuit also reviewed the district court's denial of the
plaintiff's motion for a rehearing on the grant of summary judg-
155.
156.
157.
158.
159.
160.
161.
162.
163.
[d. at 591.
[d. at 590.
See id. at 591.
See id.
[d.
[d.
[d.
[d. at 592.
[d.
164. See id. This error, however, did not require that the Fifth Circuit reverse the district
court's entry of summary judgment. The appellate court held that the evidence proffered by
the plaintiff in response to the motion for summary judgment did not satisfy the Rule 56(e)
requirements for affidavits opposing the summary judgment motion. [d. The plaintiff's evidence
was an affidavit by an individual that stated "in ambiguous terms" the cause of the accident
that injured the plaintiff. [d. The Fifth Circuit held that this evidence was insufficient. ld.
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ment. 16S With the motion, the plaintiff offered evidence that would
have been sufficient to prevent the entry of summary judgment. l66
The Fifth Circuit held that such evidence was not sufficient to warrant
reconsideration because the evidence was available at the time of the
original summary judgment decision and the plaintiffs gave no excuse
for not offering the evidence at that time. 167
VI.
RULE
11
SANCTIONS
During the survey period, the Fifth Circuit continued to flesh
out the due process standards applicable to imposing sanctions pursuant to Rule 11. In 1488, Inc. v. Phi/sec Investment Corp., 168 the
court dealt with the due process requirements of Rule 11. In that
case, the district court imposed $49,000 in sanctions against the
defendants for filing a frivolous claim against a third-party defendant. 169 The district court ruled on the Rule 11 motion immediately
after it was made. While the district court gave the defendants a
chance to make oral arguments at the hearing on the day the motion
was made, the defendants were denied an opportunity to prepare
any written response to the motion. 170 The Fifth Circuit found that
this denial failed to meet the due process standards required for the
imposition of sanctions under Rule 11. 171
The court noted that special care should be taken to observe
due process requirements of adequate notice and an opportunity to
respond in a case such as this in which the sanction was imposed on
the client rather than on the attorney.172 The court was careful to
note that a separate hearing is not required before the imposition of
Rule 11 sanctions, but that merely allowing the party to respond at
an oral hearing on the motion, without pre-hearing notice, was not
165. [d. at 593.
166. [d. Unlike the earlier evidence, this evidence satisfied the requirements of Rule 56(e).
167. [d. (relying on the Third Circuit's reasoning in a similar case, DeLong Corp. v.
Raymond Int'I, Inc., 622 F.2d 1135 (3d Cir. 1980».
168. 939 F.2d 1281 (5th Cir. Sept. 1991).
169. [d. at 1291.
170. [d. at 1292.
171. [d.
172. [d. (quoting the Eleventh Circuit's opinion in Donaldson v. Clark, 819 F.2d 1551.
1560 (llth Cir. 1987): "If sanctions are proposed to be imposed on the client. due process
will demand more specific notice because the client is likely unaware of the existence of Rule
11 and should be given the opportunity to prepare a defense. ").
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sufficient. 173 The court remanded the case to the district court to
reconsider the motion for sanctions after giving the defendants adequate time to respond. 174
VII.
FORUM NON CONVENIENS
In Empresa Lineas Maritimas Argentinas, S.A. v. SchichauUnterweser, A. G., I7S a forum non conveniens decision, the court
clarified its 1991 decision in Baris v. Sulpicio Lines, Inc. 176 In Baris,
the court required a defendant seeking a forum non conveniens
dismissal to bring "unequivocal, substantiated evidence presented by
affidavit testimony" to ~arry its burden of showing why the dismissal
should be granted. 177 The appellant in Empresa argued that the district
court had therefore erred in dismissing the case on forum non
conveniens grounds in the absence of affidavit evidence produced by
the defendant. 178
The Fifth Circuit made it clear in Empresa that affidavit evidence
is not required in every forum non conveniens case. 179 The court
indicated that the necessary amount of detail would vary with the
facts of each case. 180 The court distinguished Empresa from Baris in
part because the plaintiff in Baris was an American, while the plaintiff
·in Empresa was not. 181 The burden to show inconvenience is greater
on the defendant when the plaintiff is an American than when the
plaintiff is not an American. 182 The court also noted that the affidavit
was required in Baris to establish the "essential threshold requirements" of forum availability and adequacy.183 In Empresa, however,
173.
174.
175.
176.
See id.
Id.
955 F.2d 368 (5th Cir. Mar. 1992).
932 F.2d 1540 (5th Cir. June 1991), cert. denied, 112 S. Ct. 430 (1991).
177. Id. at 1550 n.14.
178. See 955 F.2d at 371. The appellant argued that the district court should have required
affidavit evidence concerning a number of matters in the lawsuit, including: the existence of
an indemnity claim against another entity; the existence of documents in a foreign party's
possession that were required by the defendant; whether the defendant's former and current
employees were unwilling to testify in the United States; whether the defendant had assets
only in the Netherlands; and whether suit in the Netherlands would administratively burden
the Dutch court or delay the trial. Id.
179. See id. at 371-72.
180. See id. at 372.
181. Id. at 371.
182. Id.
183. Id. at 372.
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the arguments concerning the lack of affidavit evidence did not go
to those issues. 184
The court made it clear that the Baris requirement of affidavit
evidence did not apply to every element required for a forum non
conveniens dismissal: "the imposition of a blanket rule requiring
affidavit evidence . . . would invite protracted discovery in every
case, and. would tend to inflict an impossible burden on defendants
who are seeking dismissal for the very reason that they cannot compel
evidence, including the evidence necessary to argue for dismissal." 185
VIII.
RULE 54(b)
In Samaad v. City of Dallas,186 the Fifth Circuit reaffirmed an
earlier construction of Federal Rule of Civil Procedure 54(b) and
considered the issue of what constitutes a "claim for relief" under
that Rule. 18? The litigation arose out of a series of automobile races
at a public park belonging to the City of Dallas. The plaintiffs were
homeowners who lived in neighborhoods near Fair Park. They alleged
that the noise impaired their us~ and enjoyment of their homes and
caused a variety of physical and psychological ailments. 188
The appeal was a consolidation of three cases. The plaintiffs in
the first case asserted several claims: violation of due process; violation of the takings clause of the United States Constitution; and
several state law claims .189 The plaintiffs in the other two cases also
alleged that the defendants violated the equal protection clause. These
plaintiffs alleged that the defendant practiced racial discrimination
because it would have acted differently had the neighborhoods surrounding the fairgrounds been white. l90
The district court granted summary judgment on all the federal
claims except the equal protection claim and dismissed the state law
claims without prejudice. 191 The plaintiffs in the second case sought
184.
185.
[d.
[d. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981».
186. 940 F.2d 925 (5th Cir. Aug. 1991). This case represents the consolidation of three
cases, all involving actions by homeowners alleging that noise from automobile racing at a
fairground close to their homes constituted a taking without just compensation. [d. at 928.
187. [d. at 929.
188. [d. at 928.
189. [d.
190. [d.
191. [d. at 937-39.
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and received a final judgment under Federal Rule of Civil Procedure
54(b)192 so that they could appeal the rulings on the takings and due
process claims while the equal protection claim remained pending.
The defendants in the first case argued before the Fifth Circuit that
it was without appellate jurisdiction because the district court improperly granted the Rule 54(b) judgment,, 93 Because the district
court found that the litigation involved multiple claims and because
the appellants had not alleged an abuse of discretion by the district
court, the Fifth Circuit found that it had appellate jurisdiction
pursuant to the district court's proper grant of a Rule 54(b) judgment. 194
In deciding whether the district court properly granted a Rule
54(b) judgment, the Fifth Circuit reviewed disagreement among courts
and commentators regarding the proper analysis of Rule 54(b).195
While noting that some courts and commentators disagreed with its
analysis, the court reaffirmed its two-pronged analysis set out in 1988
in H & W Industries v. Formosa Plastics Corp., USA.l96 The court
identified two separate challenges that could be brought on appeal
regarding a district court's grant of a Rule 54(b) motion. First, the
appellant could argue that the judgment is not available because the
case does not involve multiple claims; therefore, Rule 54(b) is inapplicable. Because this is a legal challenge, the appellate court could
raise this challenge sua sponte. 197 A district court decision that the
192. Rule 54(b) provides:
Judgment upon Multiple Claims or Involving Multiple Parties. When more than one
claim for relief is presented in an action, whether as a claim, counterclaim, crossclaim, or third-party claim, or when multiple parties are involved, the court may
direct the entry of a final judgment as to one or more but fewer than all of the
claims or parties only upon an express determination that there is no just reason
for delay and upon an express direction for the entry of judgment. In the absence
of such determination and direction, any order or other form of decision, however
designated, which adjudicates fewer than all the claims or the rights and liabilities
of fewer than all the parties shall not terminate the action as to any of the claims
or parties, and the order or other form of decision is subject to revision at any time
before the entry of judgment adjudicating all the claims and the rights and liabilities
of all the parties.
FED. R. ClY. P. 54(b).
193. 940 F.2d at 933.
194. Id. at 942.
195. Id. at 929-32.
196. Id. at 930 (reaffirming its two-pronged analysis set out in H & W Indus. v. Formosa
Plastics Corp., USA, 860 F.2d 172 (5th Cir. 1988».
197. Id.
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case involves multiple claims would be reviewable de novo. 198
The second basis for a challenge to a Rule 54(b) judgment is
that although a case involves multiple claims and therefore is potentially subject to a Rule 54(b) judgment, the district court abused its
discretion in granting the judgment. l99 A challenge to the district
court's exercise of discretion could not be raised sua sponte by the
appellate court since the challenge does not relate to the district
court's jurisdiction. 200
.Because the court could not discern that the appellants in Samaad
were alleging an abuse of discretion, the court dealt with the issue
of whether the cases involved multiple claims for relief. In doing so,
the court gave some insights into its definition· of a "claim for
relief." The court specifically declined, however, to establish a liniversal test for defining a claim for relief, finding that such a test
was not necessary to the disposition of the claims in Samaad. 201
The court noted disagreement among courts in defining a "claim
for relief" under Rule 54(b). Some courts look to the underlying
facts to determine whether claims are separate; others look to the
underlying legal theories in support of the claims. 202 The Fifth Circuit
resolved the issue before it in Samaad by finding that the equal
protection and takings claims qualified as separate claims because
"the two grounds of recovery are not mutually exclusive. "203 Although this reasoning suggests that the court was adopting a legal
rights test, the court explicitly rejected the idea that a fact-based test
would have led to a different result. 204 The court noted in a footnote
that it did not need to articulate a "universal test"20S in this case
because of "the relatively self-evident result. "206 The court admitted
that the two tests might lead to different results when applied to one
set of facts, but noted that "this certainly is not such a case."207
198.
199.
[d.
[d.
200. [d.
201. [d.
202. [d. at 931.
203. [d. at 932 (quoting H & W Indus. v. Formosa Plastics Corp., USA, 860 F.2d 172,
176 (5th Cir. 1988».
204. [d.
205. [d. at 932 n.13.
206.
[d.
207.
[d.
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Therefore, the court left for a later case its own formulation of a
test to identify separate claims for relief under Rule 54(b).
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