O'Keefe v. Noble Drilling Corp. , 347 F. App'x 27 ( 2009 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 15, 2009
No. 08-41305 Charles R. Fulbruge III
Summary Calendar Clerk
RENATA LUISA SILVA PISCETTA O’KEEFE; ISABELLA PISCETTA
O’KEEFE; BARRY O’KEEFE; JANICE O’KEEFE,
Plaintiffs–Appellants,
v.
NOBLE DRILLING CORPORATION, doing business as Noble Drilling
Services Inc.; NOBLE DRILLING U.S. INC.; NOBLE DRILLING
INTERNATIONAL INC.; NOBLE DRILLING EXPLORATION COMPANY;
NOBLE DO BRASIL LTD.; NOBLE DRILLING (PAUL WOLFF) LTD.;
NOBLE DRILLING SERVICES INC.; NOBLE INTERNATIONAL, LTD.,
Defendants–Third Party Plaintiffs–Appellees,
SCHLUMBERGER LIMITED,
Third Party Defendants–Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 3:05-CV-688
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
No. 08-41305
The O’Keefes, the family of an Australian national who died while working
as a directional driller off the coast of Brazil, appeal from a district court order
dismissing their wrongful death action for forum non conveniens. The O’Keefes
argue that the district court erred by (1) failing to defer to a previous denial of
a motion to dismiss for forum non conveniens issued by another district court
judge in the case; (2) granting the motion to dismiss for forum non conveniens;
and (3) failing to include sufficient conditions in its order dismissing the case.
For the reasons discussed below, we affirm the district court’s order dismissing
the case.
I
Peter John O’Keefe, an Australian national and resident of Brazil, died
while working as a directional driller off the coast of Brazil after allegedly
receiving inadequate medical care aboard the Noble Paul Wolff. The Noble Paul
Wolff is a semisubmersible drilling rig owned and operated by Paul Wolff, a
subsidiary of the Noble Corporation, and Noble and several of its affiliated
Brazilian corporations are defendants in this case. Noble has brought third-
party claims against Schlumberger Limited, the parent company of O’Keefe’s
employer, Schlumberger Servicos de Petroleo Ltda., a Brazilian company.
O’Keefe went to the infirmary aboard the rig with complaints of a sore
throat and was treated by Dr. Carla Bastos, a Brazilian doctor employed by
Noble. He received medical treatment and returned to his quarters. Later that
evening, he returned to the infirmary unable to breathe, and he went into
cardiac arrest and passed away.
The surviving members of O’Keefe’s family filed suit against Noble,
alleging that O’Keefe’s death was caused by inadequate emergency care. The
case was first assigned to Judge Samuel B. Kent. Judge Kent denied Noble’s
R. 47.5.4.
2
No. 08-41305
motion to dismiss for forum non conveniens, finding that the O’Keefes’ choice of
forum should not be upset because both parties had presented equally credible
expert testimony, and therefore the movants had not carried their burden of
proving the existence of an available forum. Noble proceeded with its defense
and filed a third-party complaint against Schlumberger based on its alleged role
in O’Keefe’s death.1 Thereafter, this case was transferred from Judge Kent’s
docket to Judge Melinda Harmon’s docket.
The parties experienced many difficulties in procuring and providing
discovery located in Brazil. Noble has commenced proceedings in Brazil to
obtain documents and the issuance of compulsory process on witnesses to secure
their deposition testimony, but the Brazilian tribunal has not yet ruled as to
whether it will grant Noble’s request. Noble also requested documents from the
O’Keefes through written discovery pursuant to the Federal Rules of Civil
Procedure. After waiting for almost two years, Noble filed a motion to compel.
The magistrate judge recommended that the district court grant the motion to
compel and also suggested that if discovery was not forthcoming, the district
court should reconsider the motion to dismiss for forum non conveniens.
Schlumberger then filed a motion to dismiss for forum non conveniens and
to reconsider the denial of Noble’s motion to dismiss for forum non conveniens.
Judge Harmon granted the motion to dismiss, and in doing so, Judge Harmon
recognized that Judge Kent had previously denied Noble’s motion to dismiss for
forum non conveniens and that Schlumberger’s current motion was very similar
to Noble’s previous motion. Judge Harmon concluded,
[G]iven the events in this lawsuit since it was
transferred to this court as well as information that was
either not presented to, not considered by, or otherwise
not available to the predecessor court, it is the opinion
1
Noble’s third-party complaint included other corporations affiliated with
Schlumberger; however, only Schlumberger Limited is involved in this appeal.
3
No. 08-41305
of this court that the case should now be dismissed in
favor of a more appropriate forum.
The O’Keefes appeal from this order.
II
The O’Keefes first argue that Judge Harmon erred in granting the motion
to dismiss for forum non conveniens in light of Judge Kent’s previous denial of
Noble’s motion to dismiss for forum non conveniens, and that Judge Harmon
should have reviewed Judge Kent’s previous denial for an abuse of discretion.
We review a district court’s decision to reconsider a prior judge’s interlocutory
ruling for abuse of discretion.2 Under the law of the case doctrine, “when a
district judge has rendered a decision in a case, and the case is later transferred
to another judge, the successor should not ordinarily overrule the earlier
decision.” 3 However, the law of the case doctrine “is a rule of convenience and
utility and yields to adequate reason, for the predecessor judge could always
have reconsidered his initial decision so long as the case remained in his court.” 4
A judge to whom a case has been transferred has the same power to reconsider
prior rulings as the predecessor judge.5
Judge Harmon did not abuse her discretion in reconsidering the motion to
dismiss for forum non conveniens. Judge Harmon noted that Schlumberger’s
motion was very similar to the motion previously submitted by Noble, but that
“given the events in this lawsuit since it was transferred to this court as well as
information that was either not presented to, not considered by, or otherwise not
available to the predecessor court,” the motion to dismiss for forum non
2
Loumar, Inc. v. Smith,

698 F.2d 759

, 763 (5th Cir. 1983); Gallimore v. Missouri Pac.
R.R. Co.,

635 F.2d 1165

, 1171 (5th Cir. 1981).
3
Loumar,

698 F.2d at 762

.
4

Id.

5
Abshire v. Seacoast Prods., Inc.,

668 F.2d 832

, 837-38 (5th Cir. 1982).
4
No. 08-41305
conveniens should now be granted. Since the time that Judge Kent denied
Noble’s motion to dismiss for forum non conveniens, Noble filed claims against
Schlumberger as a third-party defendant, the parties had been unable to procure
and provide discovery located in Brazil, and the district court learned that the
O’Keefes had filed a motion to toll the statute of limitations in a Brazilian court.
Judge Harmon had the same power to reconsider the motion to dismiss for forum
non conveniens as Judge Kent would have had, and she was not required to
defer to Judge Kent’s previous ruling.
III
The O’Keefes next argue that the district court erred in its decision to
grant the motion to dismiss for motion non conveniens. We review a district
court’s dismissal on the basis of forum non conveniens for clear abuse of
discretion.6 In reviewing forum non conveniens decisions, our duty is “to review
the lower court’s decisionmaking process and conclusion and determine if it is
reasonable; our duty is not to perform a de novo analysis and make the initial
determination for the district court.” 7
In deciding whether to dismiss a case for forum non conveniens, the
district court must first determine whether an adequate alternative forum is
available.8 If an alternative forum is both adequate and available, the district
court must then weigh various private and public interest factors to determine
whether dismissal is warranted.9 Ultimately, the “inquiry is where trial will
6
Gonzalez v. Chrysler Corp.,

301 F.3d 377

, 379 (5th Cir. 2002) (citing Baumgart v.
Fairchild Aircraft Corp.,

981 F.2d 824

, 835 (5th Cir. 1993)).
7
In re Air Crash Disaster Near New Orleans, La. on July 9, 1982,

821 F.2d 1147

, 1167
(5th Cir. 1987) (en banc) (citing Piper Aircraft Co. v. Reyno,

454 U.S. 235

, 257-58 (1981)),
vacated on other grounds sub nom. Pan Am. World Airways, Inc. v. Lopez,

490 U.S. 1032

(1989), opinion reinstated except as to damages,

883 F.2d 17

(5th Cir. 1989).
8
Id. at 1165.
9
Id.
5
No. 08-41305
best serve the convenience of the parties and the interests of justice.”10 A
plaintiff’s choice of forum is not conclusive, and “a foreign plaintiff’s selection of
an American forum deserves less deference than an American citizen’s selection
of his home forum.”11 The defendant has the burden of proof on all elements.12
The O’Keefes argue that the district court erred in finding Brazil to be an
available and adequate alternative forum. An alternative forum is available
when “the entire case and all parties can come within the jurisdiction of that
forum.” 13 An alternative forum “is adequate when the parties will not be
deprived of all remedies or treated unfairly, even though they may not enjoy the
same benefits as they might receive in an American court.” 14
The district court did not abuse its discretion in determining that Brazil
is an available forum for this litigation. The O’Keefes contend that Brazilian
courts will not accept this case because O’Keefe died on a Panamanian-flagged
vessel, which Brazilian courts recognize as foreign territory, and that a Brazilian
court would hold that suit would be proper in the domicile of the defendant.
However, the district court found that because the most directly involved parties
could definitely be brought before the Brazilian courts, and the parent
corporations could likely be brought before them, Brazil is an available forum.
This finding was bolstered by the fact that Noble and Schlumberger have agreed
to a lawsuit in Brazil.
10
DTEX, LLC v. BBVA Bancomer, S.A.,

508 F.3d 785

, 794 (5th Cir. 2007).
11
In re Air Crash Disaster,

821 F.2d at

1164 (citing Piper Aircraft Co., 454 U.S. at 255-
56).
12
DTEX,

508 F.3d at

794 (citing In re Air Crash Disaster,

821 F.2d at 1164

).
13
In re Air Crash Disaster,

821 F.2d at 1165

.
14

Id.

 (citing Piper Aircraft Co., 454 U.S. at 255; Syndicate 420 at Lloyd’s London v.
Early Am. Ins. Co.,

796 F.2d 821

, 829 (5th Cir. 1986)).
6
No. 08-41305
The district court also did not abuse its discretion in determining that
Brazil is an adequate forum. While the O’Keefes argued that the case would
take four years to resolve at the trial court level, the district court found that
this was not an unacceptable level of delay, particularly in light of the fact that
this case had already been pending for two-and-a-half years and was still not
ready for trial. The district court also found that the inability of Brazilian courts
to compel extraterritorial discovery was likely inconsequential because the
accident occurred in Brazil, the corporate entities with actual involvement in
this case are all Brazil-based corporations, and this litigation had repeatedly
been delayed because of the inability of the parties to procure and provide
discovery located in Brazil. Also, most of the witnesses located in the United
States are party witnesses whose compulsion will not be required. Thus, we
cannot say that the district court abused its discretion in finding that Brazil is
an available and adequate alternative forum.
The O’Keefes also contend that the district court improperly weighed the
public and private interest factors in its decision to dismiss the case for forum
non conveniens. The relevant private interest factors are: (1) “the relative ease
of access to sources of proof”; (2) the “availability of compulsory process for
attendance of unwilling . . . witnesses”; (3) “the cost of obtaining attendance of
willing[] witnesses”; (4) the “possibility of [a] view of [the] premises,” if
appropriate; and (5) any other practical factors that make trial “expeditious and
inexpensive.”15 The district court found that the private interest factors weighed
in favor of dismissal of the case. The parties had already experienced many
difficulties in obtaining access to sources of proof located in Brazil or held by
Brazilian domiciliaries. Most of the witnesses the O’Keefes listed who live in the
United States are Noble employees, and Noble has consented to jurisdiction in
15
DTEX,

508 F.3d at 794

 (quoting Gulf Oil Corp. v. Gilbert,

330 U.S. 501

, 508 (1947)).
7
No. 08-41305
Brazil. Also, most unwilling, non-party witnesses are likely to reside in Brazil
beyond the reach of the district court. While the O’Keefes have stipulated that
they will pay the costs of counsel for Noble and Schlumberger’s counsel to go to
Brazil to depose relevant witnesses located there, this stipulation does not
outweigh the difficulties in obtaining access to sources of proof or the
unavailability of compulsory process for unwilling witnesses. Therefore, the
district court did not abuse its discretion in finding that the private interest
factors weighed in favor of dismissal.
Although the district court found that the private interest factors weighed
in favor of dismissal, it also weighed the public interest factors and found that
they weighed strongly in favor of dismissal.16 The relevant public interest
factors are:
the administrative difficulties flowing from court
congestion; the local interest in having localized
controversies resolved at home; the interest in having
the trial . . . in a forum that is familiar with the law
that must govern the action; the avoidance of
unnecessary problems in conflicts of law, or in
application of foreign law; and the unfairness of
burdening citizens in an unrelated forum with jury
duty.17
The district court found that because this case was governed by Brazilian law
regarding the death of an Australian citizen while working in Brazil for a
Brazilian company, this case has no meaningful connection to this forum other
than the headquarters of the parent companies of two involved parties. The
district court did not abuse its discretion in finding that the public interest
16
See In re Air Crash Disaster,

821 F.2d at 1164

 (holding that a court is required to
examine the public interest factors only if it cannot determine whether the private interest
factors weigh in favor of dismissal).
17

Id. at 1162-63

.
8
No. 08-41305
factors weighed in favor of dismissal. Therefore, the district court did not abuse
its discretion in granting the motion to dismiss for forum non conveniens.
IV
Finally, the O’Keefes argue that the district court failed to impose
sufficient conditions on its dismissal, as required by Baris v. Sulpicio Lines,
Inc.18 In Baris, we recognized that “courts must take measures, as part of their
dismissals in forum non conveniens cases, to ensure that defendants will not
attempt to evade the jurisdiction of the foreign courts.” 19 Here, the district court
satisfied this requirement by conditioning the dismissal “on all defendants
submitting to the jurisdiction of the Brazilian court.”
*           *      *
Therefore, we hold that the district court did not abuse its discretion in
dismissing this case for forum non conveniens, and its judgment is AFFIRMED.
18

932 F.2d 1540