In Re Ministry of Defense of the Republic of Venezuela

Case: 11-60296 Document: 00511515856 Page: 1 Date Filed: 06/21/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 21, 2011
No. 11-60296 Lyle W. Cayce
Clerk
In Re: MINISTRY OF DEFENSE OF THE REPUBLIC OF VENEZUELA
Petitioner
Petition for a Writ of Mandamus to
the United States District Court for the Southern District of Mississippi
Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner Ministry of Defense of the Republic of Venezuela seeks a writ
of mandamus directing the district court to vacate its order, in which that court
refused to enforce an “unreasonable” forum-selection clause and, instead,
compelled arbitration in the United States. After Petitioner appealed the district
court’s order to us, we dismissed that appeal for lack of jurisdiction.1 We now
deny Petitioner’s petition for writ of mandamus.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of
Venezuela, No. 11-60001, slip op. (5th Cir. Mar. 23, 2011) (per curiam), reh’g denied, (5th Cir.
May 9, 2011) (per curiam).
Case: 11-60296 Document: 00511515856 Page: 2 Date Filed: 06/21/2011
No. 11-60296
Time and again, we have said that mandamus is not to be used as a
substitute for appeal.2 Petitioner has not demonstrated that the district court
has exceeded the lawful exercise of its prescribed jurisdiction.3 We repeat: “The
Supreme Court has held that courts may generally set aside forum-selection
clauses where enforcement would be ‘unreasonable.’” 4 We decided this matter
when we denied Petitioner’s appeal, so Petitioner must now await the district
court’s final, appealable judgment before it may appeal the merits of that court’s
forum determination.5
Petition for writ of mandamus is DENIED.
2
See, e.g., In re Am. Marine Holding Co., 14 F.3d 276, 277 (5th Cir. 1994) (per curiam)
(“[I]t is more than well-settled that a writ of mandamus is not to be used as a substitute for
appeal.” (citation omitted)).
3
See Aerospace Corp. v. Mayacamus Corp., 485 U.S. 271, 289 (1988).
4
Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of
Venezuela, 575 F.3d 491, 503 (5th Cir. 2009) (quoting M/S Bremen v. Zapata Off-Shore Co.,
407 U.S. 1, 10-11 (1972)).
5
See In re Am. Marine, 14 F.3d at 277 (“Whether the district court erred . . . may be
raised for appellate review after the arbitration is completed and a final judgment entered by
the district court confirming such arbitration.”).
2