*1 judgment court’s in all other re- district
spects. McGEE, Surviving
Larraine as Mother Everett and on behalf Chris Everett;
Estate of Patrick Ever- Chris
ett, Surviving as Father of Ever- Chris
ett, Plaintiffs-Appellants, INTERNATIONAL, LLC,
ARKEL
Defendant-Appellee.
No. 10-30393. Appeals,
United States Court of
Fifth Circuit.
Feb. *2 Doyle, Jeffrey Lewis Patrick
Michael Raizner, L.L.P., Raizner, Alan Doyle Houston, TX, (argued), Daughtry Brandt Lewis, Sterbcow, Atty., Gen. Maury Paul Abramson, Kullman, New Or- Sterbcow & LA, leans, Plaintiffs-Appellants. (argued), Skelly Ann Krebs Patricia Quacken- McCay, Joseph Andrew Bruce P.L.L.C., bos, Jurgens, & King, Krebs Orleans, LA, Defendant-Appellee. New JONES, Judge, and Before Chief SOUTHWICK, HIGGINBOTHAM Judges. Circuit SOUTHWICK, H. Circuit LESLIE Judge: parents of a National Guardsman Iraq brought suit
killed in an accident contractor who against a civilian They argued responsible. claimed was peri- limitations governs to be which the suit needed od within The district court held both brought. sufficiently proven Iraqi law was by Louisiana’s that the claims were barred RE- period. We one-year prescriptive pro- for further and REMAND VERSE ceedings. OF FACTS
STATEMENT a Christopher Everett was Sergeant mobi- Army National Guardsman Texas duty active the United States lized onto Septem- On Army deployed 7, 2005, Camp Taqaddum at the while ber Iraq, he was electrocuted. military base Ev- Sergeant while The accident occurred a washer to clean using power was erett Army’s post-accident cessfully Humvee. The inves- removed that action to federal court. report stated that the cause was tigative ground- connected neutral improperly In September while the Texas ac
ing generator, supplied wire on the which pending, tion was the plaintiffs filed an *3 electricity power washer. The re- identical action Louisiana state court. further stated that the defect “creat- port again, Once the defendants removed the an short that when closed open ed court, action to federal but the action was [Sergeant] Everett resulted the current stayed a pending judgment in the Texas conducting through body.” his 2009, In proceedings. April the Texas fed granted eral court plaintiffs’ the motion to plaintiffs The are Larraine McGee and prejudice, dismiss without noting its belief Everett, parents Patrick and heirs of the plaintiffs’ claims arose under Iraqi They deceased. were told of their son’s any law and that court adjudicating them death soon after the accident. It was not apply Iraqi v. McGee Arkel 15, 2005, until though, December that the Int'l, LLC, 572, 716 F.Supp.2d Army packet delivered to them a of infor- (S.D.Tex.2009). later, Three months happened. mation about what had Al- Louisiana federal court granted the plain though plaintiffs contend tiffs’ motion to dismiss defendants KBR unaware of of the involvement Arkel Inter- Technical Services and Kellogg, Brown & national, 2008, April until L.L.C. Arkel was leaving Root Services Arkel as the sole packet. mentioned the documents in the remaining September, defendant. That accident, At the time of the Arkel’s con- the Louisiana federal court lifted the stay tract with the United it States made re- reopened the action. sponsible repair for the maintenance and summary Arkel moved for judgment, ar- generator equipment Sergeant of at Ever- guing plaintiffs’ claims were ett’s base. Arkel defends contending barred one-year Louisiana’s prescrip- generator product was not Arkel period. plaintiffs tive The argued that primary and Arkel was not the cause of under rules, Louisiana choice-of-law Instead, Sergeant Everett’s death. im- longer period under an statute of
proper grounding generator was the limitation applied. The district cause. granted summary judgment and dismissed prejudice. the action with judgment This plaintiffs brought The have suit in dif- today. is before us ferent liability venues. Arkel is a limited summary On company Rouge, judgment, domiciled in Baton Loui- Arkel did not present any plaintiffs statutory siana. The are of or doctrinal residents Tex- defenses 2008, beyond August as. In the ones we will plaintiffs brought address on this appeal. whether, suit Texas state court for We have decide damages, under claiming wrongful Louisiana choice-of-law principles, death under Civil governs Code Articles 202-203. this action and plaintiffs Iraq’s The al- three- Arkel, year leged prescriptive period applies. that defendants KBR Techni- Services, Inc., cal Kellogg, Brown & DISCUSSION Services, Root Inc. negligently by acted failing generator to maintain the and that grant “We review a of summary negligence novo, such proximately caused Ser- judgment applying de the same stan death, geant resulting Everett’s in the dard as the district court.” Brumfield Hollins, (5th plaintiffs’ damages. 322, Cir.2008). The defendants suc- 551 F.3d “if the for his death plaintiffs reasons Summary judgment appropriate begin the relevant statute genuine is no was sufficient shows that there movant period. plaintiffs and the limitations fact as to material dispute matter September as a action judgment is entitled to movant 56(a). “Questions that their claims law.” Fed.R.Civ.P. concede light one-year pres- most favor- under Louisiana’s fact are viewed barred Louisi- questions criptive period. They contend that to the nonmovant able provide v. River principles are reviewed de novo.” ana’s choice-of-law Deas Cir.1998). and, L.P., W., F.3d application timely brought. determination is reviewed their claims were We A choice-of-law *4 Co., Ins. Mayo must determine which law controls. de novo. Life Hartford (5th Cir.2004). 400, 403 F.3d 354 diversity sitting Federal courts Iraqi law The district court ruled the rules of the forum apply choice-of-law choice- inapplicable under Louisiana was identify law that state substantive principles, and that of-law Builders, Ellis v. applies. Trustmark barred prove Iraqi law and were failed (5th Cir.2010). Inc., 222, 625 F.3d 225 one-year by prescriptive Louisiana’s Therefore, Louisiana choice-of-law rules A death actions. wrongful for and survival controlling, agree. as parties preliminary and issue was re- separate favor, namely, that plaintiffs’ in the solved Principles Louisiana I. Choice-of-Law 17 Number issued Coalition Order require Louisiana’s choice-of-law rules (“CPA 17”) Authority Order Provisional point: us to make two at this decisions immunity Arkel. The provide did not or apply does Louisiana law Authority was estab- Coalition Provisional merits, which to the stat- applies as a government 2003 transitional lished ute of limitations Marchesani v. issue? the fall re- following of Saddam Hussein’s 481, Pellerin-Milnor 269 F.3d Corp., It 2004. gime. was dissolved on June Cir.2001). 17 is applicable Order to contractors Code Article sets forth Louisi- Civil Iraq De- working the United States rules for tort general ana’s choice-of-law of Defense. Not resolved was partment Tort “governed claims. Id. claims are parents prop- of a were deceased the state would policies the law of whose parties er seriously if impaired be most its law prescriptive period Louisiana’s for sur- to that La. applied issue.” Civ.Code wrongful is one vival and death actions policies 3542.1 state whose year from the date La. Civ.Code of death. seriously impaired be most “is determined 2315.2(B). 2315.1(A), prescrip- arts. by evaluating strength pertinence period under tive such policies of the relevant of the involved years day from the on which the is three pro- after factors considering states” injured person became aware of vided in that Article. Id. person of the caused it. who art. 232. Civ.Code argues language Arkel that this re Sergeant quires apply Everett electrocuted on Louisiana substantive law to was 7, 2005. no September Among questions Iraq because has interest would be posed by brought by the case when notification to affected the heirs is part foreign country. 1. "State” in this Code includes a La. art. 3516. American against pos- negligence a deceased soldier in maintaining and repairing sibly culpable American if company. Even generator, and the resulting injury of true, that characterization is Article 3542 Sergeant death, Everett’s both occurred in merely general choice-of-law rule applies. Article 3543 applicable to tort claims. Id. art. 3542 Accordingly, Iraq’s substantive ap- (a). introductory cmt. The Article’s lan- plies to Nevertheless, the merits. Arkel guage limits reach: “Except its as other- contends that apply law cannot be- ” provided wise in this Title.... Id. art. cause CPA Order 17 exempted contractors A comment states that Article 3542 regulations. laws or We now implemented by “is further specific rules turn to CPA Order 17. and, contained Articles 3543-3546” be- cause specific, Articles 3543-3546 are more II. CPA Order 17 should, applicable, “when prevail CPA Order 17 signed was into law the (b); over” Article 3542. Id. art. cmt. day before the CPA was dissolved. No generally see Wartelle v. Women’s & Chil- argues one that the order was rescinded or Inc., (La. Hosp., dren’s 704 So.2d *5 prior altered filing of this suit. See 1997) (“While the revision comments do Coalition Authority Provisional Order No. law, part not form of the pre- (CPA orders remain in force unless together sented with the proposed legisla- rescinded or amended by legislation). tion and illuminate the understanding and Arkel contends that the order makes it legislators.”).2 intent of the immune from laws and legal A specific more rule for purposes our is process: in Article 3543: 2) Contractors subject shall not be pertaining Issues to standards of con- Iraqi laws or regulations in matters re- duct safety governed by and the law lating to the terms and conditions of state which the conduct that their Contracts.... injury occurred, caused the if injury 3) Contractors shall be immune from in that occurred state or in another state Iraqi legal process respect with to acts provide whose law did not higher for a performed by pursuant them standard of conduct. terms and conditions of a Contract or La. Civ.Code art. 3543. In explaining this any sub-contract thereto. Article’s relationship to Article Coalition Authority Provisional Order No. comments make clear that Article 3543 will (Revised) (June § 27, 2004), 17 4 available “prevail” over Article 3542 when its rules at http://www.iraqcoalition.org/ specific” are “more to the issues. Id. art. regulations/. (b); 3543 cmt. see also Fietz v. Southland Co., Nat’l Ins. F.Supp.2d In ruling its on summary judgment, the (W.D.La.2007). The law of the state district court held that CPA pro- Order 17 which both the wrongful conduct immunity and re- vides to contractors being from sulting occurred will apply “regard- sued in Iraq and from such Iraqi laws as less of the parties domicile or relate to the terms and conditions of con- other factors.” La. 3543 tracts. No immunity from tort claims re- (d). Here, cmt. the conduct of alleged sulted from that provision. The court fur- provides impaired 2. Another article that ously Article 3542 applied, if its laws were not clearly will control when it is evident but no present such clear evidence is here. policies of another state would be more seri- La. Civ.Code art. 3547. laws, regulations Sending State’s not with the 17 did that CPA Order stated ther Included in that law plain- procedures.” Arkel for immunity to provide Con- principles. in federal the state’s choice-of-law brought tiffs’ tort Or- claim is “sub- Although plaintiffs’ CPA if the agree. sequently, Louisiana. We immunity from in a manner ... contractors mitted and dealt with provides der to their contractual relating with Louisiana laws consistent” le- from standards of conduct and conditions” law for the “terms uses immunity not create it does It in some circumstances gal process, safety. also to tort claims relating laws limitations. Section borrows in the United in federal court of the forum state what the law 18 restates Louisiana, suit, already States. for the current here. required. superfluous It is Order 17 of CPA provision A different provides claims. It tort addresses that Section 18 of might argued It be “dealt injury claims are to personal a choice-of-law rule Order 17 is not Sending consistently “the with with” do but is instead substantive. We laws, [here, regula- Louisiana’s] State’s speaks It of claims interpret way. it that procedures.” tions and and dealt with” consis- being “submitted immunity has been Except where country’s pro- laws and tent with another 5 of in accordance with Section waived alter the Order 17 does not cedures. CPA Order, including third-party Article of Louisiana Civil Code application injury, illness or personal ... those the Article that now turn to 3543. We arising ... from or attributed death prescriptive peri- governs choice of law *6 ... Contractors or or omissions of acts ods. for activ- employed them persons of their relating performance to ities 3519(B) Application III. Article Contracts, in normally resident whether pro- Article Louisiana Civil Code that do not arise in Iraq or not and ie., prescription, governing vides the rules military operations, connection with It provisions. of limitations the statute with submitted and dealt shall be law first states that when substantive ... Sending personnel whose State to the merits apply of Louisiana would the claimed dam- alleged to have caused state, brought in that Louisiana’s action in a manner consistent with age, 3549(A). Art. prescription applies. laws, regulations and Sending State’s procedures. When, here, as substantive merits, applicable another state is Authority Order No. Coalition Provisional 3549(B) set of provides Article different “Claims”). (entitled §17 18 rules: in the was not discussed provision This law of another barely mentioned When the substantive
appellate briefs and was court. to the merits arguments applicable before the district state would be state, brought from the district court was of an action this response argument peremption was circular. law of this prescription that Arkel’s specified below: applies, except as state provision. a choice-of-law Section 18 is (1) If action barred under the at the law is require All it is us to look does state, be dis- this the action shall “Sending State.” Sec- of Louisiana as the it would not be barred missed unless requires claims to be “submitted tion 18 applicable law would be consistent the state whose with ... a manner dealt merits maintenance of the due to CPA Order it is barred for all action in this state is warranted com- purposes including those under Article pelling jus- considerations of remedial It would fair say be that Iraqi tice. courts at the time of Sergeant Everett’s 3549(B) added). death would not entertain a suit (emphasis Id. art. against a company Louisiana-resident who only We are concerned with the excep- contracted with Coalition Provisional 3549(B)(1). tion under Article It applies Authority and alleged whose negligence (1) when the action is barred under Louisi- performing while contract (2) ana prescription law but not under the caused the death aof service member in prescription law of the state whose sub- Thus, perhaps there is no limita- applies stantive law to the merits of the period tions applicable (d). such a suit that action. Id. art. 3549 cmt. plain- can applied. Whether that is right argue satisfy tiffs excep- view, or so, (3) only whether we If need to tion. the action is barred know unless what the Iraqi period limitations maintenance of the action in would be Louisiana is personal injuries by compelling generally, “warranted considerations is a matter to be justice.” 3549(B)(1); of remedial decided under Id. Louisiana law 3549(B)(1) (d)-(f). inasmuch as it see also id. art. is that cmts. state’s choice-of-law rules Of these three we ai’e interpreting. conditions for maintenance Both Article suit, of the there no 3543 and 3549 are dispute that the relevant. one-year filing Louisiana was stated, As we have Article 3543 adopts analyze
not met. We thus must the “standards of conduct and safety ... Iraqi law would allow the proceed suit to state which the conduct that and, so, if whether “compelling consider- caused the occurred.” La. Civ.Code justice” ations of remedial warrant art. 3543. That Article has been authori- suit. tatively interpreted to be based on the sense that the conduct-regulating rules of
A. Iraqi Law *7 jurisdiction in which the conduct oc- There are two considerations in deter- curred usually apply. should “When act- mining whether the action would be barred ing domicile, outside the state of their under law. The first is whether neither the tortfeasor nor the victim 17, CPA effectively component Order a should be carry allowed to with them the purposes, law for our “bars” the suit conduct-regulating law” the state of in the manner relevant under the Louisi- origin. their La. Civ.Code art. 3543 cmt. 3549(B). ana Civil Code Article That Code (c). section is governing entitled “Law libera- prescription.” tive The potential bar of 3549(B) Article provides in certain cir- another only state becomes relevant when for applying cumstances a more forgiving “the prescription peremption law of period limitations from the foreign state state,” ie., Louisiana, would bar the “whose law applicable would be to the 3549(B)(1). suit. La. Civ.Code art. Con- merits” of the suit. La. Civ.Code art. sequently, the that bar is relevant is the 3549(B)(1). provides CPA Order 17 comparable limitations in the for- Arkel is “immune from legal pro- eign state. cess,” any but it in apparent way does not argued
It could be bar application because this law to the specific claim cannot Iraq be conduct if some other forum for the claim
546 that the hearing, a fo- the district court ruled potentially Louisiana is such exists. plaintiffs rum. to meet burden of failed proving Iraqi 3549(B) language of Article is that a it be unless not suit “shall dismissed plaintiffs the burden have other state barred” whose proving foreign law. Libanaise Banque The provision to the merits. does applies Khreich, F.2d Pour Le Commerce 915 examine whether suggest not we should Cir.1990). plaintiffs These reach the legal process could defendant “obligated present to the district 3549(B) The bar with which Article proof legal court clear ... relevant the time bring- is concerned is whether foreign To principles.” Id. determine ing expired foreign suit has state. law, may 44.1 court Rule states that “the effectively prevents an Ira- Order source, any consider relevant material or qi acquiring personal jurisdic- court testimony, tion over Arkel. That sort limitation is or not sub including 3549(B). relevant Article not by party mitted a or under the admissible Federal Rules of Evidence. The court’s issue, In conclusion on this we summa- ruling determination must be as a treated key provisions. rize the Louisiana choice- on a of law.” 44.1. question Fed.R.Civ.P. rules law of of-law borrow substantive a Accordingly, foreign-law district court’s Iraq safety. for standards of conduct and determination is reviewed novo. Access de argued No one has is with- Telecom, Corp., Inc. v. MCI Telecomms. and safety appli- out standards of conduct (5th Cir.1999). Though F.3d event that cable kind of killed Ser- proof foreign country’s geant purposes, Iraqi plain Everett. For our law is a burden, law also includes CPA Order 17. tiffs court may “engage Section in its 4(3) of the immunized Order Arkel from law,” own foreign research on issue of legal process. That means Arkel require and such research does formal could not be brought before parties. notice to the 44.1 Fed.R.Civ.P. on the Iraq claim. Section of CPA cmt. provides proce rule flexible “[T]he 17, claims Order as this such are to be presenting dures for and utilizing material consistently “submitted and dealt with” foreign issues of law which a sound applying with Louisiana law. We are Lou- result can be achieved with fairness to the law to isiana this claim. parties.” Id. next
We turn to whether the relevant prove Iraqi To Iraqi statute of limitation *8 would bar offered two affidavits of Amin Istra Feisal plaintiffs three-year suit. The claim a badi, Iraqi expert on In his first prescriptive period applies under affidavit, three- Iraq’s Istrabadi discussed law. Before we can even decide if that is acts, true, year prescriptive period we for delictual must first decide whether i.e., a act wrongful giving been or omission rise proven law has Rule Federal to a compensation. Civil Procedure 44.1. claim for Black’s See 2009). Dictionary Law In his ed. B. Law Determination affidavit, supplemental a full- provided he text of Article the plaintiffs Arkel that the translation 232 of contends failed Code, Civil prove Iraqi only Iraq’s prescription because the En- statute (torts), in glish translation of the Civil delictual acts addition to a web Code summary judgment from At the site where Article 232 could be found According Arabic. to Istrabadi’s transla- party. As Arkel did not put forth any tion, Article 232 states: alternative translation and has not sug gested how the might translation be inac compensation An action for upon based curate, hold that Iraqi we on peri law the a delictual act is not allowed after the prescription od of has been proven. See passage years of three from the date on Northrop Grumman Ship Sys., Inc. v. injured party which the knew of the Ministry Republic the Vene of Def. of injury per- occurrence the and of the zuela, (5th Cir.2009) 575 F.3d 498 n. 8 it, son who caused nor is an action al- (foreign sufficiently proven par where lowed all cases after passage the ty English submitted translations of rele years fifteen from the date on which the vant opposing statutes and party had not delictual act occurred. alleged that the translation was inaccurate Istrabadi also stated that Article 232 is a law). misrepresented or foreign discovery begins statute that once the Thus, Iraq has a three-year pres claimant things—the learns of two occur- criptive period for tort claims that starts injury rence of the person and the who on day the the victim became aware of the it. only caused He further stated that injury person and of the who caused it. when both conditions are satisfied “does summary judgment evidence reflects three-year prescription begin to run.” plaintiffs that the did not become aware of Although Arkel maintains that Istraba- Arkel’s alleged responsibility for inconclusive, di’s translation is it does not son’s death until December 2005. At the put forth alternative translation of the hearing summary on judgment, the district Iraqi Civil Code. Arkel cites to a website plaintiffs stated had failed to containing English a 1990 translation of prove what Iraqi law was or “that they Article 232. That provides translation complied with Iraqi might be understanding: same applicable.” The district court’s discussion A claim damages resulting from issue, however, focused on whether (kind) whatever act unlawful shall not plaintiffs had satisfied their burden to lapse years heard after the of three law; prove Iraqi had day from the injured on which the per- comply failed to with Iraq’s statute of limi son became aware of and of tations. The court explicitly did not ad person it; who caused in all cases whether, dress if Iraqi law adequate the claim will not be heard after the ly proven, plaintiffs could show that lapse years of 15 day of occur- they complied with that law. rence of the unlawful act. We decline to determine an issue on Iraqi Civ.Code art. http:// available at summary judgment not clearly addressed gjpi.org/library/primary/statutes.3 by the district court. There was evidence We also have examined sources for presented in the district court that authority provided by under the Rule earliest date which had 44.1. We discover nothing to draw into participation notice Arkel’s was in De- *9 question that prescriptive period the ends cember plaintiffs 2005. The brought suit years plaintiff three after a becomes aware in September 2008. Based on the informa- of the claim allegedly culpable us, and the tion now plaintiffs’ before the 3. This website contains a disclaimer: "Please the despite translation is relevant the dis- rely upon do not these laws as accurate and claimer as a confirmation of the translation 44.1, up to date.” Under Rule we conclude offered Istrabadi.
548 drilling rig while on a off the coast of to be barred under have been shown not determination, Spain. at 408. The defendants con- A final based Id. Iraqi law. aware tended Louisiana had no interest in plaintiffs became that findings of when role, can possible proper Arkel’s the case that was the injury of and and Scotland the jurisdiction all be on remand. in which to sue defendants made a resident plaintiff because the was Re- C. Considerations Compelling out of Kingdom, United worked the Scot- medial Justice office, in injuries land and his were treated The Spain Id. England. parties and is barred under Loui- Because the action agreed that substantive may not be barred under siana law but applied, plaintiff but the Kingdom United Iraqi law, remaining issue under Arti- 3549(B) explaining ju- why submitted an affidavit cle is whether “maintenance of in risdiction not lie Id. Scotland. in is warranted com- action [Louisiana] holding that agreed, The court Louisiana justice.” pelling considerations remedial personal jurisdic- the only was forum with La. 3549. tion over Id. at Ac- all defendants. to the Civil ac- The comments Code cordingly, “compelling consid- there justice” that the “remedial con- knowledge justice” warranting erations of remedial cept from the Revision was borrowed in the action maintenance of Louisiana. Restatement, Second, of Section 142 of the Id. (f). Id. art. cmt. Conflict of Laws. refers to where: Restatement cases what is in the We examine involved (1) the plaintiff no fault of an “through First, present suit. this action involves a as, not alternative forum is available where, through situation no fault of the jurisdiction not be example, where could is plaintiffs, an alternative forum not avail obtained over the defendant in state Although alleged injury- able. both the other than the forum or for some where causing in conduct and occurred judgment reason a obtained in the other Iraq, country provide that does not an jurisdiction state having would be unen- available of paragraph forum because 3 of (2) states”; in forceable in other “suit § 4. The Texas prescrip Order forum, although impos- alternative not and, tive as Arkel expired insisted extremely sible would be inconvenient in proceeding, Texas state’s courts parties.” (quoting Id. Restatement personal jurisdiction potentially lacked (Second) Laws, of Conflict 1986 Revi- plaintiffs over did not Arkel. have (f)). sions, § 142 cmt. This exception Louisiana. alternative forum to ... in only “intended to be used the most extraordinary of Brown circumstances.” Second, plaintiffs’ were the even (5th Cir.2000) Slenker, 411, 220 F.3d Iraq in under CPA it barred Order omitted). (quotation marks and citation extremely would be inconvenient for either party Louisiana Arkel is litigate
There is scant caselaw on the a limited justice principle liability company Article domiciled remedial Louisiana 3549(B), only one case the con- and the are residents of found Texas. compelling. Iraqi security to be v. For all progress siderations See Smith (UK) Inc., 410 the with purchased ODECO So.2d United States its blood Smith, treasure, country might In (La.Ct.App.1993). a resident reason- Kingdom brought ably a desirable United an action avoided as forum injuries litigate. state court for which Americans can Louisiana sustained *10 security litigat- The concerns related to factual regarding-when issue plaintiffs re- in ing Iraq, exemption and Arkel’s from ceived necessary notice will need to be there that 17 seemingly suit CPA Order resolved.
provides, make the considerations of avoid- in
ing Iraq compelling. suit IV. Other Issues Raised the Defen- dant plaintiffs’ pro- Arkel contends that automatically crastination should consti- Arkel presents arguments other alleg- it non-compelling Ark- tute consideration. require es dismissal. el also it relevant that the believes suit was First, Arkel argues this action is barred Texas, making filed earlier the current because plaintiffs are not proper par- than an attempt suit little more to forum ties under It argues that Iraqi Conflicts, shop. The Restatement of Civil Code Article permits wrongful concept
which the of compelling consider- death and survival actions to be brought borrowed, procrasti- ations was discusses only by dependants victim, not sur- nation in terms a plaintiff allowing viving parents: prescriptive period jurisdic- to run in other In case of murder case of death being tions and forced to file in the final resulting from wounds or inju- other longer state to borrow a prescriptive peri- rious act renders the perpetrator liable (Second) od. See Restatement of Conflict pay compensation dependants Laws, Revisions, § (g) cmt. of the victim who have been deprived of (noting egregious that most examples of sustenance on account of the murder or shopping forum occur where a forum en- death. tertains a claim not barred its own limitations,
statute of though even the' fo- Iraqi Civ.Code art. http:// available at case). rum no had other contact with the gjpi.org/library/primary/statutes.
Those are not our facts. plaintiffs The Arkel raised this issue in its summary sought Iraq’s prescriptive to borrow period judgment motion argues and also it on lapsed because their claims had appeal. plaintiffs The have never ad- Louisiana law. The Texas case was dis- it, dressed here, the district court or in part missed at least because of Arkel’s and the district court ruling. made no Al- compelling motion to dismiss for lack of though the definition “dependants” personal jurisdiction in Texas. plain- unclear from Article provi- other Code tiffs their action in Louisiana be- sions could provide standing. plain- cause of the challenges bringing it in tiffs asserted in their initial complaint that 3549(B)(1). See La. they had standing under Articles 5 and 89 of the Iraqi Civil Code. It appears that
Viewing summary judgment evi- relying on Article 5 of dence in the light most favorable to the the Iraqi Code of Civil Procedure and nonmovants, we conclude the district court Article 89 of the Personal Status erred in granting judgment. The suit is Law. According English to an translation barred prescription under Louisiana provided Arkel, website Article 5 has not been shown to be barred under the Code of Civil Procedure states: prescription law of Iraq, whose substantive applies action, to the merits of the Any may of the heirs act as a counter- maintenance of the action in part Louisiana is (litigant) any suit filed for or by compelling “warranted against However, considerations the [deceased]. justice.” remand, of remedial Id. On counterpart relation to a particular *11 550 (5th Juan, 910, 916 90 F.3d City San the heir shall be in the estate property of Cir.1996). property. such acquired has
who held that court has one At least that have determined summary, In we standing in a parents gives provision By op- sufficiently proven. Iraqi law was in federal action wrongful death Article Louisiana Civil Code eration of of their the death damages for seeking pe- 3549, three-year prescription Iraqi acci- an automobile son, killed in was who been on what has applies. Based riod Baragona v. Kuwait dent Gulf introduced, expire prior that did 1346, Co., F.Supp.2d Transp. 691 Link prevent 17 does not CPA Order to suit. (N.D.Ga.2007), ju- 1347, vacated 1349 this suit. F.Supp.2d 1351 691 grounds, risdictional parents proper parties, are Whether (N.D.Ga.2009). iden- beyond what we have any other issue rely on a different Further, tified, on re- for further consideration are by kin- inheritance discusses that provision mand. Iraqi parents as heirs. defines ship and for fur- REMANDED REVERSED and 89; Bar- Law art. see also Status Personal proceedings. ther F.Supp.2d at 1349. 691 agona, hold that determination We JONES, Judge, EDITH H. Chief parties prema- proper parents dissenting: never ad- the district court ture because con- pa- my colleagues’ to possible sources respect due it. With dressed law, I Iraqi under dissent standing that we found parsing scientious rental “Although we majority’s interpretation of viable. from the make the issue law La. authority grounds consider application law and have the 3549(B)(1) by the time- upon ruled to allow this otherwise to but not presented Iraq’s three- court, to do so because” proceed case to we decline barred district My concerns court will have of limitations. the benefit the district year statute evidentiary on can be succinctly presentation stated. any further Co., Motor 538 Bogy v. Ford this issue. matter, majority inter- an initial As Cir.2008). 352, 355 F.3d Authority 17 Coalition Provisional prets 17”) (“CPA majority narrowly. The very argues Arkel also only applies 17 that CPA all concludes Louisiana law control dictates the instant suit disputes and that contract Arkel refers questions procedure. Moreover, majority in tort. for its sounds Civil Code Article 28 of 18, §17 the section that Arti dismisses authority, explains and then how torts, “su- “procedural” as addresses Iraqi Civ.Code affects this case. See cle view, my In analysis. perfluous” to did not raise this Because Arkel art. 28. was, during its court, this is an error: CPA not consider we will issue district Iraqi law1 facially part of period, effective Supply Co. v. N. Alamo Water it. See 17, 2008.); Tort re XE Servs. Alien accepted by her In other has been 1. This conclusion 569, (E.D.Va. See, F.Supp.2d Litigation, 665 Kellogg, & e.g., Harris v. Brown courts. 2009) subsequently Servs., Inc., (finding that CPA 17 "was F.Supp.2d 652-53 Root Law”); v. Ti- incorporated Dalkilic (W.D.Pa.2011) into (Iraqi expert, Professor (S.D.Cal. Hamoudi, F.Supp.2d Corp., reported tan that CPA 17 Haider Ala 2007) (considering law in CPA 17 to be part law unless re- a “valid was analysis). a choice of repealed on Novem- pealed” and CPA 17 was *12 appropri- “regulations.” interpreted Sending scope to be State’s and deserves immunity liability, any, of Arkel’s from if ately. remains to be determined. law, Iraqi a part CPA 17 is of Because objections may Three this under La. raised to place of the of the law First, majority conclusion. the ex- endorses strong argument art. a the district court’s conclusion that law to whatev- applying only Louisiana this ists for immunity provided by er CPA 17 is controversy. majority opinion *13 by Iraq’s more prescription period liberal maintained by faulty pump water Iraq in a Iraqi courts “unavail Dalkilic, statute. That company); by an American litigation is the end of able” this not (applying California F.Supp.2d at I fault most the discussion. While cannot per- work to a contract for contract law majority’s authori of the discussion of the Iraq). in formed ties, Slenker, I note that in Brown v. majority claims that CPA Third, the Cir.2000), F.3d 420-21 this superfluous and merely procedural § is18 Odeco, described Smith on which and does not substitute analysis their to rely, that majority reflecting as the fact substantive Louisiana only in which Louisiana was the forum § of make reading a Such The plaintiffs suit could maintained. surplusage. last clause the section hand, plaintiff, on the other chose Brown that certain claims section states tort litigate in rather in the to Louisiana than by and with “shall be submitted dealt Id. Virginia. residence defendant’s ju- provision This takes Sending State.” stated, “In plain This court eases where certain tort claims out risdiction over have in Louisi litigated tiffs courts it with places the hands of choice, not necessity, ana clause of the sending state. last warranting ‘compelling circumstances’ be dealt section states that claims shall maintenance of the suit Louisiana have “in with the with a manner consistent rejected.” consistently been Id. So hold laws, pro- Sending regulations and State’s to to ing, apply court refused art. 3549 majority cedures.” If the is correct the plaintiff. avail bearing this last clause has no on what law case, In this Sergeant parents Everett’s Sending apply, State’s court should chose, convenience, aas matter of to sue then this last clause would never be used initially rather than Louisiana. Texas by any court. The would not courts They exposed thus to what the themselves this question reach the case is because majority “compelling describes as Arkel’s sending automatically submitted to the ju- lack personal motion dismiss for Sending state. The State’s court would they risdiction Texas.” Yet knew within not reach it is merely procedur- it because three or four months of the accident trumped by Sending al and State’s their son had been electrocuted and analysis. reading choice of law The better potential were informed of involvement gives meaning to all in the the words Arkel, a Rouge-headquartered Baton is that law fully displaced section is company. They timely could have a filed “laws, regulations procedure” suit Louisiana Louisiana sending state. This substitution against Arkel. I that this would conclude would mean that a Louisiana of law choice chronology give compelling rise did analysis pre- could not reach back to the justice. of remedial circumstances advantage substitution law to take longer statute of limitations. respectfully I dissent. if majority Even correct (not applies
substantive this case 17), I
withstanding cordially disagree that under La. interpretation
with their notes dealing limited to matters with terms and Iraqi is immune from laws and that Arkel the conditions of contracts. The legal process by the terms CPA 17 district Iraqi however, court, extends, immunity § overlooked CPA 17 §§ and 4.3. The 4.2 Moreover, tort necessarily this case will relating to “matters to the respectively, terms scope “relate to” the and of Arkel’s and conditions of Contracts” terms “Operation contract for and respect performed by “with to acts Maintenance Camp for Power Generation and conditions Aboard pursuant them terms Iraq.” Taqqadim, Whether re- also cites Arkel was majority of a Contract.” The the sponsible improper grounding § which states that: CPA generator depends, outset, the at the its Except immunity where has been contract. in accordance with 5 of waived Section Order, third-party including this claims Second, majority the asserts that personal injury, ... illness or those 17 “does not create an immunity from ... from arising death or attributed to relating to tort Iraqi laws or omissions of ... or acts Contractors federal court the United States.” person employed by for activi- them view, my But in the whole point §of 18 is relating performance of their ties the Sending substitute State’s substan- Contracts, normally resident in Iraq. tive laws for those of Read in the or not and that do arise connec- Iraq not fashion, majority’s “pro- the courts and military operations, with shall be tion Iraqi cesses” of law are excluded from Sending submitted and dealt with law, cases handling these but personnel alleged whose ... State to American are not. If courts this odd re- damage, caused the in a have claimed intentional, it sult was em- seem to Sending manner consistent with body high imperialism— form of cultural laws, regulations procedures. State’s distrusting Iraqi people’s legal institu- Though majority summarily favoring dismisses judges’ ap- tions while American I analysis, this with little under- plication reading section laws. This § all unnecessary. say stand section to mean that “mat- 18 is To tort that the relating to the ters terms and conditions of claims shall be handled with “consistent exempt from Contracts” are State’s laws” Sending [contractors’] need not include and are Sending to be dealt with State’s conflict of laws refer- (which, context, Sending Iraq. States in this interpretation ence back to Such an Iraq). preserves means countries other than These the evident intent to apply believe, I provisions, exempt Sending contractors domestic law States to their emphasize operating like Arkel from I has contractors As noted, exemption from does applied not been several courts have necessarily liability, immunity mean American substantive law to tort con- Harris, requirement governed because tort tract claims CPA 17. (concluding be resolved with the at 668 F.Supp.2d “consistent” law, 3549(B)(1), “com Crv.Code there were tort American state justice” of remedial pelling from a considerations resulting action a tort applied Louisiana’s showering requiring displacement electrocuted while being soldier