Ganpat v. Eastern Pacific Shipping ( 2023 )

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
April 28, 2023
No. 22-30168
Lyle W. Cayce
Clerk
Kholkar Vishveshwar Ganpat,
Plaintiff—Appellee,
versus
Eastern Pacific Shipping PTE, Limited, doing business
as EPS,
Defendant—Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC 2:18-CV-13556
Before Jones, Ho, and Wilson, Circuit Judges.
James C. Ho, Circuit Judge:
Litigating in a foreign country can be fraught with peril. The basic
procedural and substantive protections guaranteed litigants in American
courts are often taken for granted here—yet sharply limited or missing
entirely before tribunals in foreign lands.
This case provides a vivid illustration: An individual brings tort and
contract claims in federal court in Louisiana against a foreign corporation. In
response, the corporation evades service and brings a countersuit in India,
No. 22-30168
before a court where the individual lacks counsel and is instead forced to take
legal advice from the corporation’s own attorneys.
Predictably, the corporation’s attorneys act in direct conflict with the
individual’s interests. The corporation’s attorneys not only pressure him to
settle—they even manage to convince the foreign court to place him in
prison, based on a bizarre claim that the individual does not object to
imprisonment without bail while the case is pending.
In response to these alarming developments abroad, the federal
district court in Louisiana unsurprisingly enters an anti-suit injunction to
prevent the foreign corporation from litigating the same issues
simultaneously before the court in India.
Our circuit precedents have long authorized district courts to enter
anti-suit injunctions like the one entered here. See, e.g., Bethell v. Peace, 441
F.2d 495, 498 (5th Cir. 1971). And our review of such anti-suit injunctions is
limited to abuse of discretion. See Kaepa, Inc. v. Achilles Corp., 76 F.3d 624,
626 (5th Cir. 1996). Finding no abuse, we affirm.
I.
Kholkar Vishveshwar Ganpat, a citizen of India, worked as a crew
member on the Stargate, a merchant ship managed by the Singapore-based
shipping company Eastern Pacific. When the Stargate stopped at Savannah,
Georgia, in spring 2017, Eastern Pacific allegedly failed to stock up on anti-
malarial medicine, despite warnings that the supply was low. Ganpat then
contracted malaria in Gabon, the Stargate’s next stop—and a predictably
high-risk area for malaria. When the Stargate arrived at Rio de Janeiro, the
stop after Gabon, Ganpat went to the hospital, where his gangrenous toes—
a complication of malaria—were amputated.
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No. 22-30168
In December 2018, Ganpat brought suit against Eastern Pacific in the
Eastern District of Louisiana, alleging tort claims under the Jones Act and
general maritime law, as well as contract claims arising from a collective
bargaining agreement.
Eastern Pacific waived objections to personal jurisdiction and venue.
However, “[o]ver a period of approximately two and a half years, [Ganpat]
attempted multiple times to perfect service upon Eastern Pacific,” but the
corporation “did not accept service, and, instead, filed several motions to
dismiss [Ganpat’s] claims . . . for insufficient service of process.” Ganpat v.
E. Pac. Shipping, PTE. LTD, No. CV 18-13556, 2022 WL 1015027, at *1 (E.D.
La. Apr. 5, 2022). Ganpat thus did not perfect service on the company until
August 2021.
In March 2020—after Ganpat brought his complaint and Eastern
Pacific consented to federal court jurisdiction, but before Ganpat perfected
service—Eastern Pacific sued Ganpat in Goa, India. In the Indian suit,
Eastern Pacific sought an anti-suit injunction to prevent Ganpat from
litigating in American court. 1
The Indian court enjoined Ganpat from continuing his lawsuit in the
United States. The court then issued an arrest warrant against Ganpat when
he failed to comply. 2 Police officers, accompanied by the court bailiff and an
1
Strangely, the dissent characterizes Ganpat as evasive and inept. See post, at 16,
23. Yet it was Eastern Pacific that was evasive and coercive. Ganpat simply declined to
dismiss the pre-existing American suit when Eastern Pacific foisted papers on him that
would have had that effect. See Ganpat, 2022 WL 1015027, at *3. Eastern Pacific, by
contrast, sought to slow down the American suit by repeatedly refusing service. See id. at
*1. And Eastern Pacific aimed to thwart American jurisdiction by coercing Ganpat into
dropping his suit. See id. at *3. Eastern Pacific’s whole course of conduct thus “smacks of
cynicism, harassment, and delay.” Kaepa, 76 F.3d at 628.
2
The dissent claims that Ganpat was “jailed for his continued refusal to participate
in the legal proceedings.” Post, at 16. But Ganpat was actually jailed because he refused to
3
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Eastern Pacific attorney, subsequently arrested Ganpat and brought him
before the court.
As Ganpat’s uncontradicted testimony shows, the post-arrest hearing
was procedurally stacked against him. See id. at *3. Eastern Pacific had
multiple lawyers. He had none. See id. What’s worse, the judge instructed
one of the Eastern Pacific attorneys to advise Ganpat. See id. In response,
the Eastern Pacific lawyer took Ganpat aside and pressured him to settle.
The lawyer then lied to the judge, absurdly claiming that Ganpat opposed his
own release on bail. See id. Ganpat was then placed in a prison for violent
criminals, where he was strip searched and held in a cramped cell. See id. 3
In August 2021, back in the Eastern District of Louisiana, Ganpat
sought an anti-suit injunction to prohibit Eastern Pacific from prosecuting its
Indian suit against him. Finding the Indian litigation vexatious and
oppressive, and determining that it need not show comity to the Indian court
that had attempted to enjoin the American suit, the district court granted the
injunction in favor of Ganpat. Eastern Pacific now appeals the district court’s
grant of the anti-suit injunction.
II.
We review the district court for abuse of discretion. “Under this
deferential standard, findings of fact are upheld unless clearly erroneous,
be bullied into dropping the American suit. As the factual findings of the district court
indicate, Eastern Pacific and the Indian court demanded that Ganpat sign papers
acknowledging the American suit was “stopped.” Ganpat, 2022 WL 1015027, at *3. Had
Ganpat given in and signed these papers, he would not have gone to jail. See id.3
The dissent does not dispute that the Indian judge instructed the attorney of
Eastern Pacific, the opposing party, to advise Ganpat. Nor does the dissent dispute that
the Eastern Pacific attorney then claimed that Ganpat opposed his own release on bail. And
the dissent does not deny—how could it?—that this is a bizarre way for a court of law to
proceed.
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No. 22-30168
whereas legal conclusions are subject to broad review and will be reversed if
incorrect.” Kaepa, 76 F.3d at 626 (cleaned up).
Our standard for the grant of an anti-suit injunction weighs the
vexatiousness of the foreign litigation against considerations of comity. See
id. at 627; Karaha Bodas Co. v. Perusahaan Pertambangan Minyak Dan Gas
Bumi Negara, 335 F.3d 357, 366 (5th Cir. 2003). In this case, the
vexatiousness of the foreign suit is severe—the comity considerations are, by
contrast, weak. Accordingly, we see no basis to conclude that the district
court abused its discretion in granting the anti-suit injunction.
A.
Our circuit precedents authorize district courts to grant anti-suit
injunctions “to prevent vexatious or oppressive litigation.” Kaepa, 76 F.3d
at 627. Three factors help courts determine whether to enjoin foreign
litigation as vexatious: “(1) ‘inequitable hardship’ resulting from the foreign
suit; (2) the foreign suit’s ability to ‘frustrate and delay the speedy and
efficient determination of the cause’; and (3) the extent to which the foreign
suit is duplicitous of the litigation in the United States.” Karaha Bodas, 335
F.3d at 366 (footnotes omitted).
The district court here found that the Indian suit was vexatious and
oppressive under our precedents.
First, the district court correctly concluded that the Indian litigation
would result in inequitable hardship. As the district court noted, Ganpat
“has already been jailed once for violating the ex parte antisuit injunction,
and . . . faces a real possibility of being sent back to jail and having his property
seized, as Eastern Pacific . . . seeks to have the Indian court enforce sixteen
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No. 22-30168
counts of contempt against [Ganpat].” Ganpat, 2022 WL 1015027, at *8
n.104. 4
Indeed, this is as strong a case of inequitable hardship as the previous
cases where we have upheld injunctive relief. Under our caselaw,
“unwarranted inconvenience [and] expense” can suffice to constitute
hardship meriting an anti-suit injunction. Kaepa, 76 F.3d at 627. See also In
re Unterweser Reederei, Gmbh, 428 F.2d 888, 896 (5th Cir. 1970) (“[A]llowing
simultaneous prosecution of the same action in a foreign forum thousands of
miles away would result in ‘inequitable hardship.’”), rev’d on other grounds
by M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Bethell, 441 F.2d
at 498 (“[T]he court was within its discretion in relieving the plaintiff of
expense and vexation of having to litigate in a foreign court.”). If
unwarranted inconvenience and expense present sufficient hardship to
support an anti-suit injunction, surely jailtime and seizure of property also
suffice.
The second vexatiousness factor—“the foreign suit’s ability to
‘frustrate and delay the speedy and efficient determination’” of the
American suit, Karaha Bodas, 335 F.3d at 366—likewise favors the
injunction. The Indian court has sought to prevent Ganpat from litigating in
the United States, even though the American suit was filed first. This
“attempt to enjoin [Ganpat] effectively translates into an attempt to enjoin
the [American] court itself and to interfere with the sovereign actions of the
[United States].” Id. at 372.
4
The dissent claims that “any future threat of Ganpat’s being jailed is wholly
speculative.” Post, at 22. But the likelihood of Ganpat’s future arrest—not to mention the
prospective seizure of his property—is the kind of factual issue on which we defer to the
district court. See Kaepa, 76 F.3d 624 at 626.
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No. 22-30168
When a foreign court tries to keep an American court from hearing a
case, that frustrates the American litigation. We have reversed a district
court injunction where the foreign litigation was “ineffective in curtailing the
ability of . . . U.S. courts[] to enforce” the rights of the plaintiff. Id. at 369.
There, an American court could enforce the plaintiff’s rights regardless of
what the foreign court did, so there was no frustration of American litigation.
See id. Here, by contrast, the Indian court seeks to prevent the American
litigation from proceeding. The district court’s injunction is thus “necessary
to protect the court’s jurisdiction.” MacPhail v. Oceaneering Intern., Inc., 302
F.3d 274, 277 (5th Cir. 2002).
The Indian litigation imposes a hardship on Ganpat while frustrating
the American litigation, and that is ample justification to find the Indian
litigation vexatious and oppressive. Accordingly, we need not consider the
third vexatiousness factor, “the extent to which the foreign suit is duplicitous
of the litigation in the United States.” Karaha Bodas, 335 F.3d at 366. See
Bethell, 441 F.2d at 498 (upholding an anti-suit injunction on the basis of the
“expense and vexation of having to litigate in a foreign court” without
analyzing whether the foreign suit was duplicative).
In any event, we agree with the district court that the Indian suit is
indeed duplicative. The Indian suit rests on “the same or similar legal bases”
as the American suit. Karaha Bodas, 335 F.3d at 370. Eastern Pacific seeks
to establish in Indian court by declaratory judgment the very same legal
theory it raises as an affirmative defense in U.S. court—namely, that an
employment agreement limits its liability to Ganpat. 5
5
The dissent invokes MacPhail, where we vacated the injunction in part because
the foreign suit was not duplicative. See 302 F.3d at 277–78. There, however, the similarity
between the two suits was merely factual: the legal theories at issue in the two suits were
different. See id. Here, by contrast, the legal theories at issue in the two suits are the same.
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No. 22-30168
Accordingly, all three relevant factors indicate that the Indian
litigation is vexatious and oppressive.
B.
Although our anti-suit injunction test “focuses on the potentially vex-
atious nature of foreign litigation, it by no means excludes the consideration
of principles of comity.” Kaepa, 76 F.3d at 627. That said, the comity con-
siderations are not overly strict. “We decline . . . to require a district court
to genuflect before a vague and omnipotent notion of comity every time that
it must decide whether to enjoin a foreign action.” Id.Our precedents make clear that comity concerns are at a minimum
where—as here—“no public international issue is implicated by the case”
and “the dispute has been long and firmly ensconced within the confines of
the United States judicial system.” Id.To begin with, no public international issues are implicated in this
case. As in Kaepa, where we upheld the injunction, this case involves “a pri-
vate party engaged in a . . . dispute with another private party.” Id. In Karaha
Bodas, by contrast, substantial comity concerns militated against the injunc-
tion. See 335 F.3d at 371–74. That’s because the anti-suit injunction posed
significant ramifications for a treaty to which the United States was a signa-
tory, and one of the parties to the foreign case was a foreign state-owned en-
terprise. See id. at 373 (“[A]n injunction here is likely . . . to demonstrate an
assertion of authority not contemplated by the [treaty].”); see id. at 372;
(“[The defendant company] is wholly owned by the [foreign govern-
ment].”); id. at 374 (upholding the district court injunction could result in
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No. 22-30168
“diplomatic[]” problems). Here, no party is a government entity, and the
injunction has no obvious consequences for international relations. 6
In addition, Ganpat’s case has long been ensconced in the American
judicial system. Under our precedent, a case becomes ensconced in the
United States when a party consents to American jurisdiction and appears in
the case. See Kaepa, 76 F.3d at 627 (suit ensconced in the United States when
defendant “consented to jurisdiction in Texas” and “appeared in an action
brought in Texas”). In April 2019, Eastern Pacific appeared and waived ob-
jections to personal jurisdiction and venue. Only in March 2020, almost a
year after Ganpat’s suit had already become ensconced within the United
States, did Eastern Pacific file its Indian lawsuit against Ganpat.
Despite the fact that the American suit was well underway before the
Indian litigation began, the Indian court sought to enjoin the American
6
The dissent points to the fact that “India, Singapore, and Liberia are all
signatories of the 2006 Maritime Labour Convention.” Post, at 23. The dissent then
proceeds to argue that “any decision regarding Ganpat’s claims will . . . necessarily
implicate an international treaty.” Post, at 24. There are two fatal problems with this
argument.
First, as the dissent concedes, “the United States is not a signatory to the
[Maritime Labour Convention].” Post, at 24 n.19. In Karaha Bodas, we reversed an anti-
suit injunction that affected a United States treaty. See 335 F.3d at 373–74. The problem
there was that enjoining the foreign litigation would “demonstrate an assertion of authority
not contemplated by” a treaty to which the United States was party. Id. at 373. See also id.at 359–60 (“Given . . . the responsibilities of the United States under that treaty, we
conclude that the district court abused its discretion.”). Here, by contrast, there is no such
problem.
Second, no party has argued that granting Ganpat relief under American law would
cause India to violate its obligations under the 2006 Maritime Labour Convention. Eastern
Pacific merely points out that an Indian legal regime, enacted pursuant to a treaty, regulates
some of the relationships in this case. But the fact that India has its own “regulatory
regime,” post, at 23, does not mean that “public international issues” are in play. Karaha
Bodas, 335 F.3d at 371. All it means is that there is a run-of-the-mill choice-of-law
question—a question outside the scope of this appeal.
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No. 22-30168
litigation. It would be strange to “require a district court to genuflect,”
Kaepa, 76 F.3d at 627, before a foreign court that refuses to respect the Amer-
ican court. In light of the “not-insubstantial” vexatiousness of the Indian
litigation and the “scant” comity interests at stake, Karaha Bodas, 335 F.3d
at 371, the district court was well within its discretion to grant the injunction.
III.
The dissent points out that an anti-suit injunction is an “extraordinary
remedy.” Post, at 14. That is true enough. See Karaha Bodas, 335 F.3d at
363. Yet this extraordinary remedy was amply warranted by the
extraordinary conduct of Eastern Pacific and the Indian court toward Ganpat.
The dissent also makes several arguments that misconstrue our anti-suit
injunction precedents. And it is to these arguments that we now turn.
A.
The dissent first argues that this court errs by failing to employ the
traditional four-part preliminary injunction test—including the requirement
of irreparable injury. Post, at 17.
But the international anti-suit injunction precedents in our circuit do
not require a showing of irreparable injury. When affirming an international
anti-suit injunction, we have never discussed the traditional four-part test.
See Unterweser, 428 F.2d at 895–96; Bethell, 441 F.2d at 497–99; Kaepa, 76
F.3d at 626–29. Nor have we ever reversed an anti-suit injunction on the
basis that the district court failed to apply the traditional preliminary
injunction test, including the irreparable injury prong. See MacPhail 302 F.3d
10No. 22-30168
at 277–78; Karaha Bodas, 335 F.3d at 364 (“[T]he suitability of such relief
ultimately depends on considerations unique to antisuit injunctions.”). 7
We recognize that other federal courts are currently split on anti-suit
injunctions—some circuits such as ours take a more permissive approach,
while others take a more restrictive approach. See Kathryn E. Vertigan,
Foreign Antisuit Injunctions: Taking A Lesson from the Act of State Doctrine, 76
Geo. Wash. L. Rev. 155, 164–73 (2007). But even the more restrictive
circuits do not necessarily require analysis of the traditional four-part test for
injunctive relief. See Quaak v. Klynveld Peat Marwick Goerdeler
Bedrijfsrevisoren, 361 F.3d 11, 17–18 (1st Cir. 2004) (rejecting the Fifth
Circuit’s more permissive approach and adopting the more restrictive
approach); id. at 19 (“The lower court applied the traditional four-part test
for preliminary injunctions. Because this generic algorithm provides an
awkward fit in cases involving international antisuit injunctions, district
courts have no obligation to employ it in that context.”) (citation omitted).
B.
The dissent also argues that “[t]his case bears the hallmarks of those
[cases] in which we vacated antisuit injunctions.” Post, at 20. In particular,
the dissent emphasizes two issues: Ganpat is an alien, and the underlying
facts involve few contacts with the United States.
7
Of our circuit’s five published anti-suit injunction cases, four do not so much as
mention the four-part test. See Unterweser, 428 F.2d at 895–96; Bethell, 441 F.2d at 497–
99; Kaepa, 76 F.3d at 626–28; MacPhail 302 F.3d at 277–78. Karaha Bodas briefly alludes
to the “four prerequisites to the issuance of a traditional preliminary injunction”—but only
because the district court and the parties had discussed them. See 335 F.3d at 364. And
Karaha Bodas ultimately concludes that international anti-suit injunctions are “unique.”
Id.11
No. 22-30168
But only twice has this circuit vacated an international anti-suit
injunction in a published opinion. See MacPhail, 302 F.3d at 278; Karaha
Bodas, 335 F.3d at 375–76. And neither case makes the nationality of the party
seeking the injunction, or the contacts with the United States, part of its anti-
suit injunction analysis. See MacPhail, 302 F.3d at 277–78; Karaha Bodas, 335
F.3d at 366–74.
Our precedents do not ask whether the party seeking the injunction is
a foreigner—or whether the underlying facts were related to the American
forum. Rather, our precedents weigh the vexatiousness of the foreign
litigation against considerations of comity.
If we were undertaking an analysis of personal jurisdiction or venue,
contacts with the United States would surely be an appropriate
consideration. See, e.g., Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th
226, 235 (5th Cir. 2022) (en banc) (“[T]he Fifth Amendment due process
test for personal jurisdiction requires . . . ‘minimum contacts’ with the
United States.”); 28 U.S.C. § 1391(b) (establishing venue where “a
substantial part of the events or omissions giving rise to the claim occurred”
or where “defendant is subject to the court’s personal jurisdiction”).
But Eastern Pacific waived its objections to both personal jurisdiction
and venue. Only the merits of the anti-suit injunction are at issue in this
appeal.
C.
Finally, the dissent argues that the injunction is overbroad: “It
purports to bind [Eastern Pacific] India, which”—unlike Eastern Pacific—
“is not a party to the U.S. action.” Post, at 26. But the Federal Rules permit
issuance of an injunction against “persons who are in active concert or
participation” with parties, as well as against parties themselves. Fed. R.
Civ. P. 65(d)(2)(C). “[An] injunction not only binds the parties defendant
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No. 22-30168
but also those identified with them in interest . . . or subject to their control.
. . . [D]efendants may not nullify a decree by carrying out prohibited acts
through aiders and abettors, although they were not parties to the original
proceeding.” United States v. Jenkins, 974 F.2d 32, 36 (5th Cir. 1992)
(quoting Regal Knitwear Co. v. NLRB, 324 U.S. 9, 14 (1945)).
As the district court found, “[Eastern Pacific] India is a subsidiary of
Eastern Pacific . . . [and] is 99.99% owned by Eastern Pacific.” Ganpat, 2022
WL 1015027, at *12. The district court also found “complete identity of
interests and positions” between Eastern Pacific and Eastern Pacific India.
Id. “The district court did not err in finding that it was necessary to bind”
Eastern Pacific India. Jenkins, 974 F.2d at 36.
***
The district court was well within its discretion to conclude that the
vexatiousness of the Indian litigation outweighed any comity concerns. We
accordingly affirm the anti-suit injunction.
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No. 22-30168
Edith H. Jones, Circuit Judge, dissenting:
This circuit, to be sure, takes a more permissive approach to foreign
antisuit injunctions than many of our sister circuits. See Kaepa, Inc. v. Achilles
Corp., 76 F.3d 624, 626–27 (5th Cir. 1996). 1 Nonetheless, a foreign antisuit
injunction is “an extraordinary remedy” fraught with “unique” concerns
regarding international comity. Karaha Bodas Co. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357, 363, 364 (5th Cir.
2003). Yet the district court wheeled out this extraordinary remedy so that a
sailor from India can sue a Singaporean ship management company under the
Jones Act, claiming that he got malaria in Africa after his Liberian-flagged
vessel docked briefly in Savannah, Georgia and received insufficient anti-
1
This approach is probably wrong and should be reconsidered at an appropriate
time. See, e.g., Kaepa, 76 F.3d at 629–34 (Garza, J., dissenting); Goss Int’l Corp. v. Man
Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355, 359–60 (8th Cir. 2007) (“The
First, Second, Third, Sixth, and District of Columbia Circuits have adopted the
‘conservative approach,’ under which a foreign antisuit injunction will issue only if the
movant demonstrates (1) an action in a foreign jurisdiction would prevent United States
jurisdiction or threaten a vital United States policy, and (2) the domestic interests outweigh
concerns of international comity.”); id. at 360 (adopting the conservative approach because
it “(1) recognizes the rebuttable presumption against issuing international antisuit
injunctions, (2) is more respectful of principles of international comity, (3) compels an
inquiring court to balance competing policy considerations, and (4) acknowledges that
issuing an international antisuit injunction is a step that should be taken only with care and
great restraint and with the recognition that international comity is a fundamental principle
deserving of substantial deference.” (internal quotation marks and citation omitted)).
Our precedents commence with In re Unterweser Reederei, GmbH, 428 F.2d 888,
890 (5th Cir. 1970), which approved a federal district court’s antisuit injunction to prevent
litigation in London in an admiralty dispute, while disregarding, as against “public policy,”
the parties’ forum selection clause. Id. at 894. Holding that in the modern era, such clauses
are to be enforced between sophisticated parties, the Supreme Court overturned this
court’s decision. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S. Ct. 1907 (1972).
The Supreme Court’s ruling gravely undermined the basis for the injunction. See also
Kaepa, 76 F.3d at 633 n.13 (Garza, J., dissenting) (distinguishing Unterweser and Bethell v.
Peace, 441 F.2d 495 (5th Cir. 1971), from modern cases).
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No. 22-30168
malaria pills. The district court’s decision and the majority’s basis for
affirming deviate severely from our precedent. I respectfully dissent.
A. Background
It is just as inaccurate for the majority to assert that Ganpat’s being
sued in India, in a court located one hour from his home, is “fraught with
peril,” as it is to conclude that he is entitled to the potential windfall of a
Jones Act recovery. The majority’s criticisms of the Indian court
procedures, which derive from English law, may be required to sustain their
result but are unsupported by the facts.
Ganpat alleges he contracted malaria because the Liberian-flagged
vessel on which he sailed was insufficiently supplied with anti-malaria pills at
port in Savannah, Georgia. Falling ill at sea after docking in Africa, he was
treated in Brazil, some toes were removed, and he went back home to Goa,
India. Eastern Pacific Shipping India (EPS India), an Indian entity that
oversaw the execution of Ganpat’s seafarer employment agreement (SEA),
coordinated and furnished Ganpat’s medical care in Brazil and his continued
care in India. In December 2018, Ganpat sued Eastern Pacific Shipping
(EPS), the Singaporean ship manager for the vessel, in the New Orleans
federal district court, but he failed to make proper service of process for
twenty-seven months (until August 2021). The majority has no basis in the
record to assert that EPS “continually evaded service of process,” as EPS
had every right to rely on being served according to the letter of American
law and international protocol. 2
EPS and EPS India sued Ganpat in Goa fifteen months after the U.S.
suit was filed and was going nowhere. These entities sought a declaration
2
The majority erroneously imply that waiver of jurisdiction and venue require a
defendant also to waive correct service of process.
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No. 22-30168
enforcing his employment contract, which is based on Liberian and Indian
law. They obtained a temporary injunction order (in March 2020, on forum
non conveniens grounds) to prevent Ganpat from pursuing the American suit.
Ganpat admits that he repeatedly evaded service by the Indian court and was
ultimately held in contempt. At the court hearing in March 2021, the Indian
court offered Ganpat a court-appointed lawyer, but he rejected the offer
because he did not want to pay the expense. A lawyer for EPS then spoke
with Ganpat, who was accompanied by his father and brother-in-law, in an
apparent attempt to negotiate his acceptance of the contracted-for injury
payment. Upon reentering the courtroom, Ganpat admitted, he refused
“three or four additional times” the judge’s demand that he “sign the
papers, take a bond, or hire a lawyer.” Ganpat v. Eastern Pacific Shipping, Pte.
Ltd., 2022 WL 1015027, *3 (E.D. La. Apr. 5, 2022). He was thus jailed for
his continued refusal to participate in the legal proceedings, not, as the
majority contends, because he “refused to be bullied into dropping the
American suit.” The next day, he obtained counsel and bonded out. He has
been represented by counsel since and has not again been threatened with
jail. 3
Ganpat further ignored the Indian court’s order by pursuing the U.S.
litigation in his many fruitless attempts to serve EPS properly. His efforts
culminated in the U.S. district court’s April 2022 antisuit injunction against
both EPS and the non-party to that case, EPS India. 4
3
He admits as well that his American lawyer provided the money to hire the Indian
lawyer.
4
The district court speedily denied EPS’s forum non conveniens motion to dismiss
despite the lack of any substantial connection of this litigation to the United States. EPS
and EPS India, unlike Ganpat, have complied with the foreign antisuit injunction order,
and the Indian litigation is in limbo pending this dispute.
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No. 22-30168
The district court described EPS’s Indian suit as a “stratagem,” and
the majority imply without any record evidence that the Indian legal system
lacks legal protection for Ganpat. When this tortured procedural history is
considered in toto, it is more accurate to describe the district court’s rulings
as an attempt to compel domestic jurisdiction over a suit with highly tenuous
domestic connections.
B. Standard for Foreign Antisuit Injunctions
Antisuit injunctions in this circuit are described as a subspecies of
injunctions. Karaha Bodas, 335 F.3d at 364. The majority discounts that
Ganpat, like any movant for equitable relief, must ultimately satisfy a four-
part test and show a likelihood of success on the merits. 5 The fact that unique
considerations affect the propriety of foreign court antisuit injunctions
should not detract from the recognition that equitable relief requires an
extraordinary justification. Consequently, our cases explain the need to
weigh preventing “vexatious or oppressive litigation” and “protecting the
court’s jurisdiction” against deference to principles of international comity.
See, e.g., id. at 366; see also Kaepa, 76 F.3d at 627; MacPhail v. Oceaneering
Int’l, 302 F.3d 274, 277 (5th Cir. 2002). 6 Elaborating on what is vexatious,
we have identified: (1) inequitable hardship resulting from the foreign suit;
5
See Karaha Bodas, 335 F.3d at 364 & n.19 (asserting that the court’s anti-suit
injunction standard acts as a substitute for the traditional standard’s “likelihood of
success” prong but intimating that the remaining factors of the traditional standard may be
applicable); see also MWK Recruiting, Inc. v. Jowers, 833 F. App’x 560, 562 (5th Cir. 2020)
(per curiam).
6
The factors to be weighed seem to compress a four-factor test articulated by this
court in Unterweser, i.e., whether the foreign litigation would (1) frustrate a policy of the
U.S. forum; (2) be vexatious or oppressive; (3) threaten the issuing court’s in rem or quasi
in rem jurisdiction; or (4) cause prejudice or offend other equitable principles. See
428 F.2d at 890.
17
No. 22-30168
(2) the foreign suit’s ability to frustrate and delay the speedy and efficient
determination of the cause; and (3) the extent to which the foreign suit is
duplicitous of the U.S. litigation. Karaha Bodas, 335 F.3d at 366. And Karaha
Bodas clarified that this inquiry goes to the first traditional factor: likelihood
of success on the merits. Id. at 364 & n.19. Ultimately, the unique aspects of
foreign antisuit injunctions must relate to the challenging tests for equitable
relief.
The majority opinion, unfortunately, reduces this “extraordinary
remedy” essentially to a routine order under a routine multifactor test. The
majority’s analysis finds “inequitable hardship” if Ganpat must endure
litigating the Indian lawsuit; and it finds “frustration” of the American
litigation because the “Indian court has sought to prevent Ganpat from
litigating in the United States, even though the American suit was filed first.”
With these sole prerequisites, the majority declares it unnecessary to
consider “the extent to which the foreign suit is duplicitous of the litigation
in the United States.” Karaha Bodas, 335 F.3d at 366. But the majority then
endorses the district court’s statement that the Indian suit rests on “the same
or similar legal bases.” Each of these findings is incorrect, as is the majority’s
minimization of international comity concerns and its further refusal to apply
traditional equitable principles. A look at our previous case law concerning
foreign antisuit injunctions readily demonstrates the majority’s departure
from the underlying standards we have used.
1. “Vexatiousness”
First, contrary to the majority’s dismissive math, half of the antisuit
injunctions issued in this circuit have been vacated on appeal. Of this
18
No. 22-30168
circuit’s six opinions covering antisuit injunctions, three upheld and three
vacated district court orders. 7
Our cases share several common themes, and they uniformly point
toward rejecting the district court’s injunction in this case. Where we have
upheld antisuit injunctions, the defendant in the foreign proceeding was a
United States citizen or company 8; the facts giving rise to the dueling actions
bore a substantial relationship to the United States forum 9; and the dueling
actions involved identical parties and nearly identical, if not identical
claims. 10 In contrast, where this court vacated antisuit injunctions, the
7
Those cases in which we have upheld antisuit injunctions are Unterweser,
428 F.2d 888 (5th Cir. 1970), rev’d by M/S Bremen, 407 U.S. 1, 92 S. Ct. 1907 (1972);
Bethell, 441 F.2d 495 (5th Cir. 1971); and Kaepa, 76 F.3d 624 (5th Cir. 1996). Those cases
in which we have vacated antisuit injunctions are MacPhail, 302 F.3d 274 (5th Cir. 2002);
and Karaha Bodas, 335 F.3d 357 (5th Cir. 2003). The most recent such case vacating an
injunction is well reasoned but unpublished. MWK Recruiting, 833 F. App’x 560 (5th Cir.
2020) (per curiam).
8
Unterweser, 428 F.2d at 889; Bethell, 441 F.2d at 496; Kaepa, 76 F.3d at 625.
9
Unterweser, 428 F.2d at 889 (ship docked in Florida after accident in Gulf of
Mexico while transporting drilling barge from Louisiana to Italy); Bethell, 441 F.2d at 496(contract signed in Florida by Florida residents while defendant was acting in capacity as
Florida real estate broker, which gave rise to fiduciary duties under Florida law); Kaepa,
76 F.3d at 625–26 (Japanese company contracted with U.S. company and agreed to litigate
disputes in United States).
10
Unterweser, 428 F.2d at 889 (U.S. company sued German company in federal
district court for damages; German company then sued U.S. company in England for
moneys due under towage contract and for breach of contract); Kaepa, 76 F.3d at 625–26
(U.S. company sued Japanese company in federal district court for fraudulent and negligent
inducement as well as breach of contract; Japanese company sued U.S. company in Japan
on identical claims); see also Bethell, 441 F.2d at 496 (Florida real estate broker sued owners
in Bahamas to enforce contract to sell property and to quiet title; Texas co-owner sued real
estate broker in federal district court for fraud and declaratory judgment as to validity of
the contract); id. at 498–99 (narrowing scope of injunction because it “attempt[ed] to affect
rights between [real estate broker] and co-owners who were not parties to the [U.S.]
action”).
19
No. 22-30168
defendant in the foreign proceeding was a foreigner 11; the facts underlying
the actions were largely unrelated to the United States forum 12; the parties
were not identical 13; and, though the dueling cases arose out of the same
underlying facts, they involved different legal claims. 14
This case bears the hallmarks of those in which we vacated antisuit
injunctions. First, all parties are foreign to the United States. The only
connection this case has to the United States, besides Ganpat’s lawyer, is
Ganpat’s allegation that EPS, a Singaporean ship manager, failed to supply
the M/V Stargate, a Liberian-flagged vessel, with enough anti-malaria
medication while briefly in port at Savannah, Georgia. Ganpat has remained
in India since his repatriation. He couldn’t even be bothered to personally
attend the dispositive hearing on the district court’s antisuit injunction. The
court permitted him to appear by Zoom from India.
Even more significant, the parties to each action are not the same and
the cases involve different legal claims. In the New Orleans district court,
11
MacPhail, 302 F.3d at 276 & n.2; Karaha Bodas, 335 F.3d at 360.
12
MacPhail, 302 F.3d at 275–76 (injuries in South China Sea resulted in settlement
agreement between U.S. company and Australian that was signed in Australia and
confirmed by Australian court); Karaha Bodas, 335 F.3d at 360–61 (arbitration award from
Switzerland arising out of failed construction contract between Caymanian company and
state-owned Indonesian company).
13
Karaha Bodas, 335 F.3d at 362. But see MacPhail, 302 F.3d at 277 (identical
parties).
14
MacPhail, 302 F.3d at 277 (U.S. action sought damages from maritime tort claim,
whereas Australian action sought specific performance of settlement agreement); Karaha
Bodas, 335 F.3d at 361 (U.S. action sought confirmation of award, whereas Indonesian
action sought annulment of award); see also MWK Recruiting, 833 F. App’x at 564 (rejecting
use of the “logical relationship test” to determine duplicative claims).
20
No. 22-30168
Ganpat sued only EPS for damages under the Jones Act, the collective
bargaining agreement, and general maritime law. In India, EPS and EPS
India filed suit for a declaration that Ganpat’s damages are limited by the
SEA Ganpat executed with Ventnor Navigation, Inc. through Ventnor’s
authorized representative, EPS India. 15 But EPS India is not a party to the
U.S. litigation.
Although the majority assert that it is unnecessary to discuss whether
the parties’ claims in each case are “duplicitous,” they go on to endorse the
district court’s finding that the cases rest on the same or similar legal claims.
What the majority means is thus unclear. But the inquiry into legal overlap
between the domestic and foreign proceedings has been a basic and
indispensable feature of previous cases. Indubitably, the parties here are
proceeding on distinct legal claims. Ganpat has no recourse to the Jones
Act’s remedies in Indian courts. And although EPS in the district court
asserted as an affirmative defense that the SEA limited Ganpat’s damages,
these actions “share the same or similar legal bases” only to the extent that
the resolution of one case may serve “as the basis for a plea of res judicata”
in the other case. Ganpat, 2022 WL 1015027 at *10, *11. Res judicata is hard
to imagine, however, because any rejection of the SEA by the district court
(were that to occur) is unlikely to be enforced against EPS India, a nonparty
over which the district court lacked jurisdiction, via its judgment solely
against EPS.
The district court reasoned otherwise by asserting simply that the
SEA is at issue in both the U.S. and Indian fora. Such a superficial factual
analogy has been repeatedly rejected by this court because “the duplicative
factor [relating to vexatiousness] is about legal, not factual, similarity.”
15
That agreement is governed by Liberian and Indian law and covered work on the
M/V Stargate, which EPS managed.
21
No. 22-30168
MWK Recruiting, Inc. v. Jowers, 833 F. App’x 560, 564 (5th Cir. 2020) (per
curiam) (emphasis in original); see also Karaha Bodas, 335 F.3d at 370; Kaepa,
76 F.3d at 626 (“mirror-image” claims in foreign suit and U.S. suit).
MacPhail, in fact, rejected the exact argument made by the district court here,
holding the assertion of a defense in U.S. proceedings that serves as the basis
for a claim in foreign proceedings does not render the actions duplicitous.
302 F.3d at 277. And indeed, preventing these parties from proceeding on
different claims in the U.S. and India makes no sense. The district court is
powerless to compel a complete resolution of the three parties’ dispute
before its bench; and the parties are prevented from going forward in India’s
dispositive litigation with EPS India. The majority’s analysis thus evades
what should be a sine qua non to justify a foreign antisuit injunction. 16
Properly applying our precedents to the facts at hand, it seems plain
that Ganpat does not suffer “inequitable hardship” from being involved in
parallel litigation, a course his actions foreordained. Parallel proceedings,
alone, are insufficient to show vexation or oppression. Karaha Bodas,
335 F.3d at 372 & n.59; see also MWK Recruiting, 833 F. App’x at 564. The
Indian court is doubtlessly a forum conveniens. And any future threat of
Ganpat’s being jailed is wholly speculative, as he has obtained counsel in
India. Karaha Bodas, 335 F.3d at 368–69 (no inequitable hardship where
asserted harm was speculative). It is likewise speculative that the Indian suit
could have frustrated or delayed the district court’s proceedings. The
district court certainly had means to defend its jurisdiction that fell short of
requiring EPS and EPS India to abandon the Indian action entirely. See id. at
16
Contrary to the majority’s assertion, this court has never found that
“inconvenience [and] expense” alone can justify a foreign anti-suit injunction. By that
standard, any foreign suit could be enjoined. The inconvenience and expense of foreign
litigation is instead only “unwarranted” where the foreign action is duplicative of the
domestic action. Kaepa, 76 F.3d at 627–28.
22
No. 22-30168
361–62 (district court required the plaintiff in foreign case to withdraw
application for antisuit injunction and prohibited plaintiff from taking any
substantive action in foreign case, but it allowed plaintiff to “take any
ministerial steps necessary to maintain the cause of action.”). And it was
Ganpat, not EPS or the Indian court, who delayed his American case for over
two years with inept dithering about proper service of process. Finally, the
current posture of these cases prevents either court from fully resolving the
three parties’ differences, and this means the legal claims cannot be
substantially similar. It was error to deem the pendency of the Indian lawsuit
“vexatious and oppressive” to Ganpat.
2. Comity
On the other side of the equitable ledger, international comity
concerns here decidedly outweigh the need to “prevent vexatious or
oppressive litigation” and “to protect the court’s jurisdiction.” 17 To begin,
India, Singapore, and Liberia are all signatories of the 2006 Maritime Labour
Convention (MLC). 18 That treaty embodies “as far as possible all up-to-date
standards of existing international maritime labour Conventions and
Recommendations, as well as the fundamental principles to be found in other
international labour Conventions.” MLC, 2006, preamble. In accordance
with its duties under the treaty, India promulgated a complex regulatory
regime that governs the relationship among EPS, EPS India, and Ganpat. For
instance, EPS India exists because Indian law prevents a foreign company
from employing Indian nationals to work on a foreign flagged ship without
17
Karaha Bodas makes clear that while “notions of comity do not wholly dominate
our analysis,” the court must still weigh the “need to defer to principles of international
comity.” 335 F.3d at 366; see also Kaepa, 76 F.3d at 627.
18
Ratifications of MLC, 2006, International Labour Organization
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO::P11300_INS
TRUMENT_ID:312331 (last visited Apr. 13, 2023).
23
No. 22-30168
the involvement of a locally licensed placement service. Consequently, any
decision regarding Ganpat’s claims will, as in Karaha Bodas, necessarily
implicate an international treaty and foreign states’ rules promulgated
thereunder. 19
Comity concerns, however, do not only arise where public
international relations are at stake. Such a holding would place this court’s
precedent well outside the norm. Indeed, even circuits friendly to this
court’s approach to antisuit injunctions acknowledge there are
“international-comity concerns inherent in enjoining a party from pursuing
claims in a foreign court.” 1st Source Bank v. Neto, 861 F.3d 607, 613 (7th Cir.
2017). 20 Those inherent concerns are on full display here. In March 2020,
seventeen months before service was perfected in the district court, the Indian
court determined that it had jurisdiction over the dispute and the parties, was
a convenient forum, and should temporarily enjoin Ganpat from his U.S.
litigation. In April 2022, two years after the Indian court’s order, the district
court issued its foreign antisuit injunction in the face of Ganpat’s ongoing
disregard of the Indian court’s order. 21 Had Ganpat instead litigated on the
merits in the Indian court, this case might have been concluded already, albeit
19
Although the United States is not a signatory to the MLC, surely U.S. courts
ought to proceed carefully before ignoring treaties and foreign statutes, especially those
governing employment relationships. Yet the majority seem to deride this aspect of comity.
See, e.g., Goss Int’l, 491 F.3d at 366 (vacating injunction because “[i]nternational comity
requires us to give deference to the Japanese courts to interpret Japanese laws”).
20
As the Sixth Circuit observed, an antisuit injunction in and of itself “conveys the
message, intended or not, that the issuing court has so little confidence in the foreign
court’s ability to adjudicate a given dispute fairly and efficiently that it is unwilling even to
allow the possibility.” Gau Shan Co. v. Bankers Trust Co., 956 F.2d 1349, 1355 (6th Cir.
1992).
21
Indeed, the district court’s course of conduct greenlit Ganpat’s contempt by
allowing him to continue prosecuting the U.S. action in apparent defiance of the Indian
court’s order.
24
No. 22-30168
on terms he might not have found attractive. But as noted above, the district
court’s injunction forced EPS and EPS India to dismiss the Indian action. In
short, the district court’s actions not only clashed “with the general principle
that a sovereign country has the competence to determine its own jurisdiction
and grant the kinds of relief it deems appropriate,” but also “effectively
attempt[ed] to arrest the judicial proceedings of another foreign sovereign.”
Karaha Bodas, 335 F.3d at 371, 372–73. The fact that the Eastern District of
Louisiana maintains absolutely zero factual connection to the dispute only
exacerbates the violation of comity.
The MacPhail case provides an excellent parallel. There, an
Australian citizen suffered injuries while working in the South China Sea.
302 F.3d at 275. Three years later, he brought a general maritime tort claim
against an American company in federal district court. Id. at 276. The
company proffered a prior settlement agreement between the parties as a
defense. Id. When the district court rejected the agreement as
unenforceable, the company brought an action in Australia seeking specific
performance of the agreement. Id. at 277. The district court issued an
antisuit injunction, and the company appealed. Id. This court first held that
the actions were not duplicitous: Although both actions arose “out of facts
contemplated” by the agreement, the actions did not involve identical claims.
Id. It also held that the foreign action was not vexatious considering the
Australian citizen had previously resorted to Australia’s courts to confirm
the agreement. Id. And it rejected the contention that the antisuit injunction
was necessary to protect the district court’s jurisdiction because the
Australian court established “prima facie jurisdiction” before the federal
district court and nothing prevented the Australian citizen from opposing the
validity of the agreement in the Australian courts. Id. at 277–78. The court
consequently vacated the antisuit injunction. Id at 278.
25
No. 22-30168
Like MacPhail, the case at hand bears almost no relationship to the
United States. The claims at issue in the domestic and foreign litigation are
not identical. And though the district court here assumed jurisdiction over
the case earlier than the Indian court, the domestic case lay dormant for years
due to Ganpat’s dilatory conduct. In the meantime, the Indian court
established jurisdiction and preliminarily found itself to be a forum conveniens.
The significant international comity interests at issue here, which were not
present in McPhail, go well beyond those inherent in enjoining foreign
litigation and further weigh in favor of vacating the antisuit injunction.
3. Equitable Considerations
As a final instance of abuse, the district court failed to balance the
equities traditionally important to granting injunctive relief, as it should have
done after finding Ganpat had shown a likelihood of success on the merits.
Moreover, the district court failed to “narrowly tailor” the injunction “to
remedy the specific action” that gave rise to its order. John Doe #1 v.
Veneman, 380 F.3d 807, 818 (5th Cir. 2004). The injunction purports to bind
EPS India, which is not a party to the U.S. action. Though Rule 65 of the
Federal Rules of Civil Procedure permits a court to bind non-parties “who
are in active concert or participation with” a party against whom an
injunction is issued, the district court must first find that the non-party is “so
identified in interest with those named in the decree that it would be
reasonable to conclude that their rights and interests have been represented
and adjudicated in the original injunction proceeding.” Harris Cnty. v.
CarMax Auto Superstores, Inc., 177 F.3d 306, 314 (5th Cir. 1999) (citation
omitted). Despite the fact that EPS India is a wholly owned subsidiary of
EPS, EPS India may have different obligations to Ganpat and might have
claims EPS is unable to assert. For instance, Ganpat has argued the SEA does
not govern his relationship with EPS. Consequently, it was an abuse of
discretion to bind EPS India. See Bethell, 441 F.2d at 498 (scope of injunction
26
No. 22-30168
overbroad where it “attempts to affect rights between” defendant in U.S.
action and those “who were not parties to the” district court action). The
court also brazenly required EPS and EPS India to dismiss the Indian action,
as opposed to requiring them, for example, to ask the Indian court to abandon
its injunction. See Karaha Bodas, 335 F.3d at 361. The injunction’s terms are
abusive, especially if the Indian statute of limitations could prevent EPS and
EPS India from refiling their claim.
Returning to the theme that injunctive relief is to be sparingly granted,
and only when the balance of hardships clearly weighs in favor of the movant
and against the respondent, 22 I believe the foregoing discussion
demonstrates the legal and factual errors underpinning the district court’s
foreign antisuit injunction. I respectfully dissent.
22
See Karaha Bodas, 335 F.3d at 363–64 & n.19; see also MacPhail, 302 F.3d at 277–
78; MWK Recruiting, 833 F. App’x at 562, 564–65.
27