*1 filing accept any pleading shall Circuit KING, Before HIGGINBOTHAM by proffered other document or on be- or DeMOSS, Judges. Pickens, any PII as to half of TEC or such issue, including, without limita- matter or PER CURIAM: tion, rehearing rehearing motions for or en and last of a series This case is the latest herewith, in connection which we ex- banc Pickens brought by Richard W. cases file. pressly forbid them to (“Pickens”), Corp. Texas Extrusion Industries, (“PII”) (“TEC”) Inc. or Pickens judgment of the district court is part or all of the seeking to set aside AFFIRMED and the mandate shall issue ‘ reorganization joint plan of provisions of a forthwith. Pickens, PII TEC and applicable to Bankruptcy by the Court confirmed Texas in 1984 Northern District of for the in Texas Extru by affirmed this Court Corp., Corp. v. Lockheed
sion
(5th Cir.),
denied, 488 U.S.
cert.
Etc.,
al.,
VILLAR,
et
Nenita S.
(1988).
sis, alia, that all the claims inter by doctrine of res were barred lawsuit MARITIME CROWLEY and on the that the lawsuit judicata basis al., CORPORATION, et brought six months of the was not within Defendants-Appellees. plan approving joint entry of the order by 11 reorganization required as U.S.C. VILLAR, Etc., Nenita S. indisput 1144. The district court was al., Plaintiffs, § et dismissing case. All ably correct in this Riebschlager Gary and Benton Pickens, TEC and claims asserted Musslewhite, Appellants, brought in the PII either could have been they many previous proceedings or were brought ultimately rejected. MARITIME CROWLEY Although justified in assess- we would be CORPORATION, al., et Pickens, PII against TEC and ing sanctions Defendants-Appellees. elect- requested, has we have as Lockheed 92-7162, 93-7036. Nos. decision, however, is ed not to do so. Our right to re- prejudice to Lockheed’s without Appeals, United States Court sanctions should urge imposition Fifth Circuit. Pickens, attempt PII to act TEC or judgment ren- of the order and travention May dered herein. Rehearing En Banc Rehearing and Pickens, expressly forbid TEC We 30, 1993. Denied June PII, them, taking any from and each concerning filing any pleadings or action arising
any any or issue of nature matter litigation or
from or connected *3 forum, 780 inconvenient plaintiffs’ Finding that F.Supp. merit, affirm are without arguments court. of the
the decision I Saudi 1970’s, worked Villar tug- aboard the member as crewa Arabia defen- worked Villar BANNOCK. boat corporation, SATOL,' Arabian a Saudi dant executed *4 contract employment under employment Villar’s Philippines. the in the injured if was he provided tract could choose he employment, of his course Philippine’s the either under compensation law of the law or compensation worker’s reg- was BANNOCK the country in which BANNOCK the out that turns It istered. flag. Panama’s under registered overboard fell Villar of March time, defendant At that drowned. and Reibschlager, Musslewhite, Gary percent sixty Benton of owned Corporation GTO P.C., McAninch, Hous- Kerensky, O'Quinn, Defendant employer. SATOL, Villar’s TX, ton, plaintiffs-appellants. (“CMC”), for Corporation Maritime Crowley of GTO. turn, one-third Jaworski, owned Fulbright Allbritton, L. Jack Corp. Crowley Maritime TX, Houston, for Villar, Josephine Vil S. Nenita Villar, and Villar, Reynaldo lar, Geraldo Vil- (hereinafter “the Villar, Jr. Renerio CMC, other GTO, SATOL, lars”) sued States the United corporations related DAVIS, JOLLY, JOHNSON, Before of District the Northern Court District Judges. Circuit later, the California years Four California. suit on dismissed court Judge: JOLLY, Circuit E. GRADY The conveniens. non of grounds forum one successive third is the This suit dismissal on conditioned wrong- brought for the have plaintiffs the jur all to waive agreement the defendants’ Villar, citizen Z. of Renerio death ful limitations venue, and isdictional, statute suits, Cali- two In the first Philippines. the brought any action defenses to dismissed courts federal state fornia year. The in the next Philippines in the non on suit based plaintiffs’ forum in Feb dismissal affirmed Ninth Furthermore, Ninth Cir- conveniens. Mari Crowley Villar ruary of 1986. in the United forum no held cuit Corp., time Yet, ten over convenient. would be dismissal, Villars the first suit, plain- After first filing the years after defendants not to sue chose in Texas state suit brought the instant tiffs Instead, filed an Villars Philippines. the suit removed defendants court. court. state in California lawsuit identical dismissed The federal court. federal court, the Califor- like state The California foreign defendants against the claims Villars’ suit court, dismissed nia federal lacked the district because conve- non doctrine on based The district court them. over 1990the Califor- niens, in December re- against the claims dismissed then Appeals affirmed. nia Court maining defendant deny motion to CMC’s Philip- district court should sue in the attempted to have not still non conveniens dismiss based Arabia, Panama. or pines, Saudi because, sitting diver- as a federal court apply Texas court should sity, the district II law, recognize the does not state now sued persistent Villars conveniens. doctrine One state court. in Texas defendants same motions Deciding foreign defendants' CMC, defendants, removed weary Vil- first, found that the the district court based to federal proceeding case prima to make a had failed lars Dela- is a citizenship. CMC diversity of facie the district court’s to do registered corporation ware defendants. The those over principal has its in Texas and business not did that the defendants found Although in California. place of business with minimum contacts necessary for- corporations are the defendant some of Texas, they were not and that state of and, hence, diverse corporations eign Having dismissed egos alter of CMC. the Vil- Villars, alleged that CMC foreign corporations, against the claims foreign corpo- fraudulently joined lars complete found diver- diversity jurisdiction. to defeat rations *5 motion denied the Villars’ sity existed and court the district argued that CMC further Alternatively, court. remand to state to foreign the citizenship of ignore the should that, if it must held even court the district way the was no there corporations because first, complete the motion Villars’ consider constitutionally exercise could district court there was diversity existed because still defen- those jurisdiction over personam es- could that the Villars possibility” “no the dismiss to then moved dants. CMC jurisdic- personal court had that the tablish of non grounds against it on claims forum Thus, foreign defendants. over the corporations conveniens, foreign the deny Vil- the would still district court the them against action the moved to dismiss for- grant the remand and motion to lars’ personal lacked district court the because dismiss. motion to eign defendants’ over them. jurisdiction to CMC’s then turned court The district to remand moved response, the Villars In non conve- for motion to dismiss be- Texas state court proceeding to the district court granted. The niens, it diversity of incomplete cause there court district the California that held after urged the district citizenship. The Villars on based the Villars’ suit dismissed to remand motion to consider their court judi- res conveniens, the issue became non motions considering the defendants’ before held court Alternatively, the district cata. reject- In the district case to dismiss. Circuit’s law the Fifth that the Villars argument, primary ed their Cir- the Fifth and that applied, conveniens First, arguments. alternative made three the dismissal required law cuit’s fraud- they had not argued that Villars against CMC. action foreign corporations. ulently joined court, sua addition, the district In does Second, they argued from institut- enjoined foreign sponte, over the jurisdiction personal have underlying based on action ing another CMC, in Tex- which is because defendants federal or other state dispute any least some ego of at as, alter was the Finally, the district States. the United Thus, foreign defendants. attorneys un- sanctioned con- court CMC’s Texas attribute should Rules of Civil Federal 11 of the Rule defendants, giving der foreign tacts to the Procedure, making unreasonable defen- over those jurisdiction arguments.1 insupportable argued that the Finally, the Villars dants. appeal ion, portion we dismissed appeal, Villars’ original notice their 1. In pertaining to briefs portion of their struck appeal court's attorneys failed portion of we dismissed After sanctions. as re- own in their names Rule sanctions attorneys obtained appeal, opin- unpublished quired our rules. below, re- the motion to multiple should considered errors Complaining mand first.3 all of district court’s appeal orders. Villars, Unfortunately for the we already primary argu rejected
Ill Savell, ment. Walker Walker, held clearly we A power rule courts have the point appeal primary The Villars’ challenging personal jurisdic on motions court erred when chose that the district reaching tion before motions remand. motion to consider defendants’ noted, judicial economy As this favors jurisdiction personal for lack dismiss result if the district court remands considering their motion to remand before proceeding, will then the state court diversity. complete lack probably have to decide the same motion to court should have contend that the district personal dismiss for lack of first be- motion to remand considered the Further avoided. simpler and more it would have been cause more, necessarily the district court must re- resolve the motion to convenient address issue of mand. regardless of it addresses which motion Villars, According to the motion to argument first. The Villars’ that the stan because, appli- under the simpler remand is determining dard for review, the district court standard of cable depending vary will on which motion there is a need determine whether change does not district court decides first possibility jur- plaintiff could establish still the fact the district court will Green over the defendant. isdiction personam have to address the issue of *6 Corp., 707 F.2d Amerada Hess jurisdiction. (5th Cir.1983). court usual- The district can recently in holding We reaffirmed our a ly this decision full scale make without Walker, in which continues to be the law Id. hearing. at 204 n. 2. evidentiary Geophysi- v. Petty-Ray Jones this circuit. dismiss, hand, to on the other is motion Geosource, Inc., cal 954 F.2d complicated because the district court more Boeing v. Cir.1992); see also Nolan (5th evidentiary to hold an generally will Co., (E.D.La.1990). F.Supp. plaintiff prove, in hearing which the must Thus, argu- reject we must the Villars’ evidence, preponderance a of the that ment. CutCo personal jurisdiction. the has court Industries, Naughton, holding in Inc. 806 F.2d Even if we could overrule our Cir.1986).2 (2d Villars also Walker require the district to court first, comity motion principles contend that the of rule on the Villars’ to remand still suggest argument that the district court the Villars’ would fail be- federalism judgment position, support as to cite Rule 58 sanctions and filed a 3. their Villars attorneys timely appeal. (7th Ferguson, notice of Allen Cir. appeals, that, Allen, then moved us to consolidate two 1986). the Seventh held striking portions of rescind our order briefs, district is a mo when a court faced with both adopt presently the briefs file a to lack to remand and motion dismiss for appeal. granted We these motions. this personal jurisdiction, district can resolve the motion to dismiss first if argument misleading. is somewhat Even This plaintiff personal finds that could not obtain clearly recognize the cases the Villars cite that jurisdiction over the defendant. Seventh Circuit district courts often decide motions to dismiss cases, course, binding not are this circuit. personal jurisdiction an evi- for lack without Yet, Allen, applied even if we the district court dentiary hearing. Thompson Chrysler Motors power still had the to Cir.1985) would have resolve Corp., 755 F.2d (“When motion to dismiss first because the district court court decides the district defen- personal possibility lack dant’s motion dismiss for found that there was no the Villars [to jurisdiction] evidentiary hearing, without foreign could obtain over the defen plaintiffs by presenting prima is met burden dants. jurisdiction.”) personal facie case for Cham- Barbara Santa suit. See Wood as the Villars court did district cause Commerce, F.Supp. 1128 ber standard applied do: it to It asked Finding that the Villars (D.Nev.1980). held and, alternatively, suggested Villars they that had anything not discover would that the Vil- possibility was no that there years first ten already learned person- not had prove that lars could court concluded litigation, foreign defendants. jurisdiction over al only to serve would further the Villars’ then denied The district Indeed, in the defendants. and harass had vex the Villars to remand motion look- suits the were foreign California the non-diverse fraudulently joined might tie the defen- any facts ing for district court’s defeat the to corporations general United dants diversity jurisdiction. Thus, it is not particular. California inquired into the surprising that B during the earlier to Texas ties defendants’ also contend The Villars case, the of this the facts litigation.4 Given them it denied when court erred its dis- clearly not abuse did not The decision discovery. additional discovery. when it curtailed cretion discovery “on motion additional permit lack of dismiss C court’s discre one for trial specifically argu- dis not be discretion will turn to tion, We will now and ‘[s]uch when it are unusual court erred unless there that the district ordinarily ment turbed ” proceeding to showing clear abuse.’ to remand decided circumstances 276, 283 contend that Kaplan, state court. Wyatt v. prove evidence Cir.1982) Metals sufficient (quoting they presented Associated Howaldt, legitimately could Corp. v. S.S. Geert Minerals foreign defen- Cir.1965)). jurisdiction over exercise By proving dants. in addition- engage The Villars wanted over the had facts find they could discovery so that al they es- argue that defendants, the Villars foreign defen- that the show that would diversity did not complete tablished and, in Texas doing business dants were diversity, the dis- complete *7 Without exist. jurisdiction thus, personal subject to subject matter have court would trict they have argue that Texas. and, they argue, the over jurisdiction to do opportunity had an never had to re- court would the position, support of their this issue. Villars court. The state to the case mand in which we cases cite several Villars the could not court The district incorrect. are failing grant court for a district reversed over jurisdiction personal have exercised the issue of discovery on the plaintiff the foreign defendants. juris- amenability to the court’s defendants’ Syntex v. Labora- Skidmore diction. See case, a diversity In a (5th Inc., 1244 tories, jurisdiction over a personal may exercise long arm statute if defendant foreign addi- Villars denied the The district it sits allows in which the state had of discovery because tional the exercise and jurisdiction, exercise discovery during the extensive conducted Rittenhouse is constitutional. jurisdiction The district suits California. two 1380, Cir. 1382 F.2d Mabry, 832 v. discovery on the that the Villars’ reasoned long statute arm 1987). the Texas Because involved issues conveniens power to exercise Texas courts grants the Villars facts the same many of constitutional, whenever present in the discover attempting to were Thus, depositions in California. of the they discovery, learned several prior In the Villars’ 4. at- knowledge Villars' Texas, of the personal GTO has he office CMC had an to Texas. ties Mussle- defendants’ tempts Benton in Texas. to ascertain have an used to white, office attorney, conducted current the Villars’ 1496 continuing has the defendant dant because the district court before question sole the forum. contacts with systematic could constitu whether de Colombia Helicopteros Nacionales the for over tionally exercise 1868, 80 Kunkle, 408, Hall, S.Ct. 466 U.S. Aviles eign defendants. gen Thus, (1984). to establish v. L.Ed.2d 404 Cir.1992); Schlobohm 201, (Tex.1990).5 the defen jurisdiction over eral
Schapiro, S.W.2d prove that the de dant, must plaintiff the Con Clause of Due Process The with contacts more substantial fendant has power exercise court’s limits a stitution Jones, F.2d at the forum. de non-resident over a the defendant where to instances fendant however, even Villars, do not The with contacts minimum [the has “certain foreign defendants suggest maintenance such Instead, state] Texas. any contacts direct notions offend traditional does not the suit can attribute argue that we the Villars In justice.” substantial play and of fair foreign to the contacts with Texas CMC’s Washington, Shoe Co. ternational satisfy the minimum in order defendants 154, 158, L.Ed. 66 S.Ct. U.S. on the fact Relying requirement.6 contacts omitted). (internal (1945) cites are defendants that CMC should that we related, contend the consti minimum contacts Texas fiction.7 law corporate disregard on whether requires depend tution under theories provides three broad juris specific general asserting or corporate fiction may disregard the a court Specific juris defendant. diction over the may corporate veil. We pur and pierce has the defendant when diction exists 1) the veil “when: corporate pierce his activities toward directed posefully or ego of its owners the alter corporation is injury relates plaintiffs forum and the 2) is used for shareholders, corporation forum. with the contacts the defendant’s 3) corporation is Rudzewicz, purposes, and illegal Corp. v. Burger King perpetrate a fraud.” as a sham used L.Ed.2d Con Cas Dep. Co. Commercial not Fed. (1985). jurisdiction does Specific sultants, Cir. 274-275 inju case because apply in this omitted). purpose 1992) (internal cites con to the defendants’ ry does not relate prevent is to these theories of all of jurisdiction, on General tacts with Texas. using the “cor from corporation’s owners has hand, the forum applies when the other illegal or for fraud entity as a cloak dispute, porate underlying no direct interest Id.8 injustice.” ity or to work defen interest have an but it does subsidiary's parent corporation subsidiary if the long Texas statute allows arm 5. The Texas systematic the forum anyone contacts with had jurisdiction over courts to exercise subsidiary. agent parent acted as an & Rem. Texas. Tex.Civ.Prac. business in does *8 Villars, thus, 1986). grant imply (Vernon that CMC’s Texas contacts This § Code.Ann. 17.042 contacts re- satisfy as far the constitution’s minimum that it extends so broad agent an for the permits. quirement CMC was Schlobohm because as the constitution Schapiro, (Tex.1990). argument is without foreign corporations. 357 This 784 S.W.2d merit, even include in Villars not and the do an office in that GTOhad Villars note 6. The also establishing agen- an the standard for brief their cy Villars the accident. The at the Texas time Indeed, relationship there under law. Texas satis- suggest with Texas should that this contact suggest that CMC facts in the record are no require- fy minimum contacts the constitution’s foreign corpora- agent for the ever acted as argue that the defendants The ment. Villars addition, appear do not the Villars tions. Texas its that GTO discontinued have not shown argument below the raised this This legitimate business reasons. activities for argument this court did not address district its Texas argument GTO ended is frivolous. opinion. its long the Villars instituted activities before to believe there is no reason instant suit and veil, corporate disregard the effort to 8. In their illegitimate for an its contacts GTOended Texas Branscum, Castleberry rely 721 on the Villars reason. (Tex.1986), a case that was 272 S.W.2d years ago. See Tex. legislatively overruled four that a court could constitu- The Villars note (West Supp.1992); Fed. & Bus.Corp.Act.Ann. tionally personal over exercise
1497 Inc., Indus., 696 1983); v. Texas Lucas its decision court based The district (Tex.1984). Accord 374-376 fiction on corporate S.W.2d disregard the not it court did err when ingly, worked the district not following facts. Mr. Villar corporate At fiction. corporation. disregard the SATOL, Arabian refused to a Saudi accident, result, CMC’s GTO owned we cannot attribute As a time of SATOL, one- owned defendants. foreign and CMC contacts to percent of Texas owned, Thus, contacts, only foreign CMC Texas of GTO. CMC’s third Without did CMC minimum con indirectly, percent SATOL. have the did not defendants SATOL, and either GTO or re dominate that the not tacts with Texas constitution of SA- only two connected was the district court to exercise quires CMC contrary, eight On directors. defendants. foreign over the TOL’s pow had veto other shareholders Thus, SATOL’s court did not that the district hold each activities because foreign er over SATOL’s defen err when it dismissed one of SATOL’s at least controlled personal jurisdiction.10 owner lack of dants for directors, not act without could and SATOL its agreement of board unanimous D Moreover, sepa had SATOL directors. that the also contend its shareholders existence from rate remanded the should have district court The corporate formalities. its maintained of dis to state court instead fraud, proceeding found no evidence district court against claims CMC missing their injustice. We review illegality, or non conveniens. grounds of findings to ensure court’s factual cite argument, support this Fed. clearly erroneous. they are not might suggest that the supports cases 52(a).9 fully several record R.Civ.P. to remand and, thus, had discretion we must findings factual these dismissing it. See Carne instead of case them. affirm Cohill, 484 U.S. University v. gie-Mellon Villars, Unfortunately for the (1988); L.Ed.2d S.Ct. support in the record do facts Co., F.Supp. Ry. Pac. Murray Union corporate attempt disregard the (N.D.Ill.1948). recog Texas any theory that fiction discretion court had if the district Even Indeed, courts and the Texas nizes. case, in the record nothing disregard the to remand have refused Fifth Circuit abused the district court suggests that much entity on facts that were corporate Furthermore, in a similar rely on. discretion. stronger than those did not the district Marine, Inc., found 897 we v. R W Dalton See it dismissed its discretion when Cir.1990); Hargrave Fi abuse court. remanding to state it (5th Cir. case instead F.2d 1154 Corp., 710 berboard foreign had 275; assuming defendants 10. Even Sav. Dep., Farr v. Sun World 976 F.2d at argued the Vil- Ass’n., (Tex.App.1991). contacts as Texas S.W.2d sufficient lars, correctly dismissed complain that Villars also 9. jurisdic- for lack of defendants ¿union's disregarded affidavit. John general exercise of tion because found Runion's affidavit district tained blatant traditional "offend jurisdiction over them would misrepresentations and that justice.” play fair notions of substantial untrustworthy. The wholly improper and Shoe, S.Ct. at 326 U.S. at International found Runion court further *9 per- simply to exercise be unfair 158. It would legal unsupported was strewn affidavit foreign defendants over sonal is despite and Mr. Runion fact conclusions suit, 2) 1) in this has no interest when Texas misper- argument lawyer. Villars’ a not foreign parties, foreign law dispute involves up appellate It court. ceives our role as extremely 3) burdensome would be it weight to what determine to the district court to give the United 52(a). foreign defendants come Fed.R.Civ.P. Mr. Runion’s affidavit. Metal Ind. Asahi untrustworthy, this suit. See Finding to defend the affidavit district States Cal., City, U.S. weight Be- gave Superior no at all. Ct. Solano affidavit Co. v. (1986). 1026, 102, clear- district decision was not cause the ly court's 94 L.Ed.2d 107 S.Ct. erroneous, we will not disturb it. dismissal, not on the case is 1058, Co., 1070 conveniens Boeing Nolan plain- a already held that Nolan, point. We reasoned conve- relitigate a non may not tiff to conclude that to anomalous would forum “[i]t “ob- can show some he issue unless may properly invoke niens a district while materially alter the jective facts non conveniens law of federal forum previous resolu- underlying the properly re- siderations over a decline Choo, Corp. v. Kam Exxon Chick tion.” the case to be it must order moved Cir.1987) (rev’d on 307, 314 F.2d more incon- 817 equally if not in an reinstituted 140, 108 S.Ct. grounds 486 U.S. agree. The dis- other Id. We forum.” venient (1988)). In last ten 100 L.Ed.2d discretion when court did not abuse trict mate- facts have not underlying years, the claims the Villars’ chose to dismiss Thus, prior decisions changed. pro- rially remanding the instead against CMC issue. relitigating this from the Villars bar ceeding. examining the Furthermore, E argument, we believe of CMC’s merits argument to the Villars’ now turn We it grant err when did not the district court it dis- erred when the district court district court’s We review a the motion. ed against CMC on claims their missed based on a case to dismiss decision forum non conveniens. grounds of that the district ensure conveniens to forum non that, of the two held because unreasonably or arbitrari did not act non con- grounds on dismissals Nolan, at 1068. forum ly. California, barred judicata res veniens assertion, Villars’ Contrary to the arguing that from federal properly applied fo suit on not dismiss court should ad law when it non conveniens rum Alter- conveniens. grounds non forum Nolan, 919 F.2d at CMC’smotion. dressed court examined natively, the district 11; Disaster Near re Air Crash n. and determined of CMC’s motion merits La., Cir. Orleans, New claims that it should dismiss banc) (vacated grounds 1987) (en on other grounds of non CMC on against forum Lopez, Inc. v. Airways, Am Pan World conveniens. 104 L.Ed.2d 109 S.Ct. 490 U.S. the issue contend that part 883 F.2d affirmed relevant should not be non conveniens must (1989)). The a factors forum the two California judicata because dismissing res ease based on consider before non conve applied federal changed courts have not conveniens non forum forum law, circumstances because niens dismissed the Vil Ninth since dismissals. changed the first two since Villar, F.2d at 1482-1483. lars’ case. that a further contend correctly concluded The Ninth Circuit never be res can conveniens issue non dismissed be based the Villars' case should Supreme Court’s judicata The Ninth Cir non conveniens. Chesapeake & Ohio in Parsons v. opinion that no forum United cuit found Co., Ry. agree. any We If was convenient. Parsons, (1963). In L.Ed.2d 137 than thing, convenient Califor Texas is less prior state held that “a Supreme Court headquarters has its nia because CMC ground of therefore, on the We, court dismissal Texas. California to divest never can serve conveniens act court did not that the district conclude discretionary judge of federal district arbitrarily dis when it unreasonably or by Congress in him rule power vested against claims CMC missed 1404(a).” under motion to transfer upon a § non conveniens. grounds of forum Id. F interpretation of the law
The Villars’ *10 con address the Villars’ We now in- Because the Parsons case incorrect. erred en- court in tention that the district only prior court state volved
1499
Na-
v. United
of the court. Urban
in the
sion
suit
filing another
from
them
joining
(D.C.Cir.1985).
tions,
1500
F.2d
district
768
review the
We
States.
United
reached the similar
for
injunction
an
courts have
grant
to
Other
decision
court’s
States, 775
v.
v. United
clusions. See Castro
of discretion. United
abuse
an
(1st Cir.1985)
(plaintiff
408-409
Paradise,
F.2d
480 U.S.
filing
pleadings
(1987).
rely on
additional
enjoined
from
L.Ed.2d
forth
any
in
Kam
matter set
holding
relitigating
Chick
from
Supreme Court’s
and
States,
Anti-Injunction
that,
case);
to the
United
pursuant
Ruderer
in
Choo
ongoing state
Act,
enjoin
cannot
F.2d 897
2283.
28 U.S.C.
proceeding. See
§
court
us,
district
In the case before
point be-
is not on
Yet,
Kam Choo
Chick
in the
litigation
further
court found that
pro-
state court
ongoing
is no
there
cause
purpose other
serve no
States could
United
in this case.
ceeding
the defendants.
harass
to vex and
than
long as
contrary, as
theOn
found, like the
explicitly
The
plaintiff has
acts before
court
federal
it,
in the
court
no
Circuit before
Ninth
proceeding,
court
the state
commenced
be convenient.
States would
United
court. See
enjoin a state
court can
federal
findings. Fed
fully
these
supports
record
n.
Pfister,
Dombrowski
the Vil
repeatedly urged
eral courts
2, 14 L.Ed.2d
n.
2, 85 S.Ct.
Philippines. Nonethe
to sue
lars’
anti-injunction
(“This
(1965)
statute [the
bring these
less,
continue to
preclude
do not
predecessors
act]
States.
in the United
suits
frivolous
of state
against the institution
injunctions
this abu
pursue
to
seem determined
stays of
only
but
bar
proceedings,
court
until or-
in federal courts
litigation
sive
instituted.”); Hyde Park
already
suits
circumstances,
these
stop.
Under
dered
F.2d
Partners,
Connolly, 839
L.P. v.
court to
for the
appropriate
district
it
Cir.1988)'(“TheAnti-injunction
(1st
n. 6
any future
bringing
from
enjoin the Villars
event,
injunctive
not,
any
in
bar
does
Act
in
underlying facts
litigation based
against a state
run
that would
relief
litigation
case,
including future
this
or
effect,
relief
would the
court—as
courts.
state
in
court’s
the federal
here—when
dered
(i.é., requested)
power
invoked
junctive
is
G
ac
court
the state
plaintiff
by the
before
whether
Finally, we consider
commenced.”) (internal cited omit
when
sanctioned
court erred
ted).
making unreasonable
attorneys
Villars’
courts
Similarly, federal
a rea
failing to make
arguments
who abuse
plaintiffs
power
enjoin
review
We
the facts.11
inquiry into
sonable
oppo
harass their
system and
11 sanctions
Rule
district court’s
Indeed,
courts have broad
federal
nents.
whether
determine
judgments
protect
powers
Gell
Cooter
its discretion.
abused
In re
as a whole.
integrity of
courts
384, 110 S.Ct.
Corp., 496 U.S.
Hartmax
(2d
1254, 1262
Martin-Trigona,
(1990);
Thomas
2447, 110 L.Ed.2d
case,
we held that
Cir.1984). In one
Inc.,
Capital
Serv.
Sec.
“any
enjoin
power
court had
banc).
Cir.1988) (en
The district
action
any
cause
litigation
future
attorneys asserted
found
at issue
fact situation
arising from the
mis
arguments and
illogical, unreasonable
States,
v. United
case.” Harrelson
[the]
case law.
cited
Cir.1980). In
anoth
did
We hold
en
permanently
D.C. Circuit
er
when it sanctioned
its discretion
abuse
an action not
filing
from
litigant
joined a civil
attor-
attorneys.
Villars’
Villars’
permis-
prior
without
any federal
amount of
they
do not contest
attorneys
sanctions
devote
appeal,
On
the sanctions.
to the issue
their brief
paragraph of
one
*11
facts
inquiry into the
“a reasonable
arguments
duct
neys
numerous frivolous
made
document.”)
court; indeed,
support
they
before the
arguments
these
to assert several of
tinued
IV
ar-
they
appeal.
In the district
subject
defendants are
gued
the alien
reasons,
AF-
we
foregoing
For all of the
in Texas because
personal jurisdiction
district court.
decision of the
FIRM the
ego” of
the “alter
CMC.
they were
AFFIRMED.
remotely support
do not
facts in this case
ego
bolster
alter
this contention. To
concurring in
JOHNSON,
Judge,
Circuit
Castleberry,
argument, they relied
dissenting
part:
in
part,
270, despite
fact that this
S.W.2d at
part III-A of the
in
This writer concurs
four
legislatively overruled
case had been
However,
view,
my
opinion.
majority’s
supra.
years earlier. See footnote
this case for the
should remand
the Court
attorneys
argued that the dis-
also
discovery
on the
allowance of
holding
our
ignore
should
trict court
By
issues.
non conveniens
though
Walker,
F.2d at
even
remand,
majori-
failing to
reverse
decision. Sim-
recently had reaffirmed that
authority1
explanation or
ty
—re-
—without
they argued that the district
ilarly,
Fifth
and well-reasoned
verses well-settled
apply state
non conveniens
should
is therefore ten-
law. This dissent
notwithstanding
recent decisions
our
law
dered.
Di-
contrary in In re Crash
clearly to the
majority opinion states
“[t]he
Nolan,
saster,
F.2d at
also contend that the
F.2d at 1068.
dis-
them additional
erred when it denied
addition,
attorneys relied
at-(emphasis
Villar,
covery.”
supra
Runion affidavit even
heavily on the
briefs,
record,
added). However,
misrepresenta-
though it contained blatant
opinion and counsel
the district court’s
that:
tions. The district court concluded
themselves,
acknowledge
all
parties,
above,
affidavit,
the Runion
As noted
no discov-
absolutely
there has been
being wholly improper and unsat-
besides
it is true
judice. While
ery in the case sub
misrepresenta-
isfactory, contains blatant
engaged
with
parties
testimony.
deposition
At
tions of
issue
non conveniens
respect to a forum
best,
has relied
very
Plaintiffs’ counsel
case, it is
years ago in a California
ten
easily discoverable falsehood
on an
elementary
quite
should have been discovered
analy-
analysis and
non conveniens
diligence.
reasonable care and
exercise of
completely different.
sis are
worst,
counsel has con-
At
Plaintiffs’
jurisdiction in Texas
Evaluating personal
spired
Mr. Runion
a deliberate
relationship
to review the
requires courts
attempt mislead the court.
and the forum state
the defendant
between
purposeful
sufficient
clearly
to determine whether
finding is not
errone-
This factual
that traditional
thus,
exist and to ensure
and,
accept it. This
contacts
we must
ous
jus-
play and substantial
fully supports the dis- notions of “fair
finding alone
factual
because,
by haling the
pursuant
tice” would not be offended
trict court’s sanctions
court. Asahi Metal Indus-
make a reason-
defendant into
attorney
must
Rule
California,
Superior Court
try
the facts before submit-
Co. v.
inquiry into
able
102, 109,
Thomas,
ting a document to the court. See
(1987);
1030-31,
(We
attor-
94 L.Ed.2d
Com-
held that
1501 Gilbert, Corp. v. opinion, Oil F.2d niens Incorporated, 963 and Service Sales Gulf arise conveniens issues that non 90, 94 forum courts, actually jurisdic- when However, conveniens in non forum exercising parties, find that tion over be cases, at contacts do not look courts substantial cause that would state. and the tween defendant 507, at at S.Ct. U.S. 67 inconvenience. 330 non conveniens inquiry in ultimate forum imposition upon its (“a may resist 842 con minimum is cases convenience—not autho- jurisdiction is jurisdiction even when justice. and substantial play not fair tacts and rized”). Thus, discovery if even (American) Lumbermens ster Ko were recent—and by the Villars ducted 518, 527, Co., 67 Casualty 330 U.S. Mutual question that surely no but there can be (1947); 828, 833, 1067 Com 91 L.Ed. S.Ct. is, way, re- discovery in no ten-year-old 95; Air mand-Aire, at In re 963 F.2d discov- non conveniens cent—the forum Orleans, Loui Near New Disaster Crash wholly and is ery conducted in California 1147, 9, 1982, 1163 July siana properly deter- completely insufficient (en banc). respect to Cir.1987) With are mining the alien defendants whether issues, are courts non conveniens in Texas. personal jurisdiction subject conve more whether a first determine He Hence, emperor is found out. is If such a forum nient forum exists. de- then, were really has no then, clothes—the available, are and courts discovery. It is now be- jurisdictional nied intere public private interests with balance used discovery may be dispute that yond 454 Reyno, Piper Co. v. sts.2 Aircraft purposes.3 Oppenheimer 265, jurisdictional 252, L.Ed.2d for 235, 255, 102 70 S.Ct. U.S. Sanders, n. Fund, 437 U.S. 351 Command-Aire, F.2d at Inc. 963 (1981); 419 2380, 2389, 253 57 L.Ed.2d S.Ct. 98 95. (1978). per- in considered upon the factors Based jurisdic- has often dealt with This Court conve-
sonal
today, Fifth Cir-
discovery, and until
clear
tional
patently
be
analyses, it should
niens
when a dili-
cuit law was well-settled
is not tanta-
discovery
one issue
a non-frivolous
Indeed,
plaintiff presented
gent
the other.
discovery on
mount to
requested jurisdic-
of
claim
Supreme
acknowl-
Court
the United States
was re-
discovery, the
tional
non conve-
in
seminal
edged
its
whether
will arise and
of law issues
conflicts
analyzing
private
courts are
interests
In
2.
Disaster,
applies.
In re Air Crash
law
1)
parties’
to sources of
access
consider:
Corp.,
(quoting
Oil
330
process
F.2d at 1162-63
2)
availability
compulsory
821
proof,
of
Gulf
508-09,
843).
at
unwilling
S.Ct.
U.S. at
obtaining
wit-
the attendance of
nesses, 3)
obtaining
attendance
costs
Ireland,
Compag
Corp.
Ltd. v.
In Insurance
witnesses, 4)
ability
willing
to view
Guinee,
de
the United
des Bauxites
5)
nie
necessary,
the existence
premises, if
discovery into
Supreme Court determined
may
practical problems which
interfere
other
important
that a
is so
jurisdictional matters
judicial
inexpensive
review
expeditious and
with
comply
allows
therewith
failure to
defendant’s
should also determine
Courts
of the case.
defendant
entered,
court to sanction
the district
assuming
be en-
judgment, if
would
whether
Disaster,
personal jurisdiction exists. 456
F.2d at
re Air Crash
forceable.
(1982).
Gilbert,
tiff See determination. initial rially after Choo, Kam Corp. v. Chick Exxon on other rev'd. Cir.1987),
307, 314 grounds, INTERSTATE COMMERCE majority also (1988). The L.Ed.2d COMMISSION, Plaintiff- years, ten the last states “[i]n Appellant, materially not underlying facts Villar, supra at 1498. Howev- changed.” know actually does not er, this Court LINES, corporation; a TRANSCON materially. changed facts whether the Chapter Gumport, L. Leonard no such reveals the record true that It is Trustee, Defendants-Appellees. that, again, the true it is changes, but also No. 92-55036. making from prevented were plaintiffs the district showing Appeals, such Court United in this any and all precluded Ninth Circuit. Nevertheless, holds majority case. April Argued Submitted do failure plaintiffs’ 17, 1992. do- Decided June from prevented them pointing out ing finding Denial of — Amended on As conveniens facts —is Rehearing En Banc Rehearing and ultimate downfall. 5, 1993. April holding view, majority’s my contested the resolution countenances conjec upon based questions Holmes, writing for ture, not fact. Justice Court, when advised that Supreme jurisdic whether determine
courts be used exists, should “great caution that can play fair deny the fiction to let adhesion close only by pretty be secured Mabee, U.S. McDonald to fact.” (1917) 343-44, L.Ed. 91, 37 S.Ct. Nevertheless, ma added).
(emphasis “caution,” along with thrown
jority has law, to the wind. Fifth Circuit
well-settled