* Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule

47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 95-40385

_______________________

ROBERT LEE BASSINGTHWAIGHTE,

Plaintiff/Appellee,

versus

McDERMOTT INTERNATIONAL, INC. AND

McDERMOTT INCORPORATED,

Defendants/Appellants.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(1:90-CV-263)

_________________________________________________________________

October 17, 1996

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

This appeal arises from a dispute with which this court

has become intimately familiar. Appellant Bassingthwaighte seeks

damages from McDermott International, Inc. (“McDermott, Int’l”) and

McDermott, Inc. (“McDermott, Inc.”) for personal injuries he

suffered nearly a decade ago while residing in Scotland and working
 

1 See this court’s prior opinions on this matter for further details.

See, e.g., Bassingthwaighte v. McDermott, Int'l, No. 92-4099 (5th Cir. 1992); In re

McDermott, Int'l & McDermott, Inc., No. 94-40369 (5th Cir. 1994). 

2

as a diver off Great Yarmouth in the North Sea. At first glance,

the fact that this straightforward claim for personal injuries has

commanded the attention of this court in several previous occasions

before ever going to trial is mysterious. Under more careful

scrutiny, its longevity in the federal courts is the product of

forum shopping by the plaintiff’s attorney and of an unfortunate

series of orders by the district court that indulged the shopping.

Resolving to deter these tactics, this court affirms the district

court’s dismissal of McDermott, Int’l for want of personal

jurisdiction rather than for forum non conveniens. We must,

however dismiss McDermott, Inc. as an appellant for lack of

standing but note that this action deprives the district court’s

choice of law ruling of any preclusive effect.

BACKGROUND

A brief reiteration of the crucial procedural jockeying

in this case will suffice.1

McDermott, Int’l and McDermott, Inc. are affiliated

companies. McDermott, Int’l is chartered in Panama, but has its

executive offices in New Orleans, Louisiana. McDermott, Int’l

conducts no business in Texas, has no agent or employee conducting

business in Texas, and owns no property in that state. McDermott,
 

2 Bassingthwaighte has since filed virtually identical suits in Texas

state court in Beaumont against both McDermott defendants and, recently, in state

court in Louisiana against, McDermott, Int’l alone. 

3

Inc., is a Delaware corporation whose principal place of business

is New Orleans. 

McDermott, Int’l employed Bassingthwaighte, an American

citizen, as a deep sea diver. After his 1987 employment-related

injury, Bassingthwaighte first sought redress in Scottish courts,

where he filed suit in 1989. When he moved back to the States, he

ended up in Beaumont, Texas. Dismissing the action pending in

Scotland, he then filed suit against McDermott, Int’l in the United

States District Court for the Eastern District of Texas. He later

amended this suit to add McDermott, Inc. as a defendant.2 He has

filed two more law suits over the injury.

Much to its consternation, McDermott, Inc., has remained

a defendant throughout this litigation, although it has no relation

to the events sued upon. According to its affidavits, McDermott,

Inc. has never offered employment to Bassingthwaighte, or executed

any contract with him, or agreed to have Bassingthwaighte perform

any services whatsoever on any vessels owned or operated by

McDermott, Inc. But such seamy details are merely substantive, and

hardly discouraged Bassingthwaighte’s pursuit of McDermott, Inc.

Moving directly to the most recent orders issued by the

district court, the McDermott parties challenge the court's

decision to dismiss them for forum non conveniens.
 

3 The initial complaint was filed in the district court on April 12,

1990 and the court granted the dismissal for forum non conveniens on April 12,

1995.

Strangely, although the district court concluded that it was not a

convenient forum for this litigation, the court simultaneously reversed its prior

decision that Scottish law governed the dispute and held instead that American

law applied to certain aspects of Bassingthwaighte’s injury in the North Sea.

 

4 Indeed, it is precisely this prospect of relitigation in Texas state

court that aggrieves McDermott, Int’l. Accordingly, Bassingthwaighte’s argument

that this appeal should be dismissed because McDermott, Int’l cannot appeal a

“favorable” ruling is meritless.

4

DISCUSSION

A. McDermott, Int’l

Exactly five years after the federal lawsuit was filed by

Bassingthwaighte against McDermott, Int’l in the Eastern District

of Texas, that court suddenly concluded, contrary to an earlier

ruling, that it was not a convenient forum for this litigation

after all, and on that basis dismissed McDermott Int’l.3 While one

might expect McDermott, Int’l to be pleased at this result, the

company is dismayed, confronted with the prospect that it will now

be forced to litigate in the pending Texas state court suit.4

But the district court’s dismissal of McDermott, Int’l

for forum non conveniens necessarily assumes that the court

exercises personal jurisdiction over McDermott, Int’l. As this

court has explained, “[i]n the normal case, therefore, the District

Court must first determine that it possesses both subject matter

and in personam jurisdiction before it resolves a forum non

conveniens motion. This is so because forum non conveniens is a

doctrine which permits a court to decline to exercise jurisdiction
 

5 Bassingthwaighte’s counsel conceded at oral argument that McDermott,

Int’l has had no additional contacts with Texas since this court decided Cooper.

5

already properly vested.” Syndicate 420 at Lloyd’s London v. Early

American Insurance Co., 796 F.2d 821, 826 n.8 (5th Cir. 1986).

Likewise, the Supreme Court has instructed that “the doctrine of

forum non conveniens can never apply if there is absence of

jurisdiction or mistake of venue.” Gulf Oil Corp. v. Gilbert, 330

U.S. 501, 504, 67 S. Ct. 839, 841 (1947).

In the instant case, the district court did not have

personal jurisdiction over McDermott, Int’l and, as a result, was

powerless to dismiss McDermott, Int’l for forum non conveniens.

This conclusion is inescapable, given our recent decision in Cooper

v. McDermott, Int’l, No. 93-2907 (5th Cir. 1995), that there is no

in personam jurisdiction over McDermott, Int’l in Texas.5 Cooper

concluded that “[w]hen considered as a whole, the limited contacts

[McDermott] International had with Texas are less substantial than

those enumerated in Helicopteros, which the Supreme Court held to

be insufficient to satisfy due process.” Id. at 13 (citing

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 409,

412-13, 104 S. Ct. 1868, 1874 (1984)). The ink has barely dried on

Cooper; as McDermott, Int’l has done nothing since Cooper to

subject it to personal jurisdiction in Texas courts, the district

court’s dismissal of McDermott, Int’l for forum non conveniens must
 

6 As he had to, Bassingthwaighte’s counsel conceded at oral argument that

the only claims asserted against McDermott, Inc. seek recovery for its negligence

as Bassingthwaighte’s employer. Counsel also conceded that McDermott, Inc. is not

and never has been Bassingthwaighte’s employer. Put bluntly, counsel openly

acknowledged that Bassingthwaighte has no plausible theory under which McDermott,

Inc. could be held liable for Bassingthwaighte’s injuries.

6

be reversed and dismissal rendered instead for want of personal

jurisdiction.

B. McDermott, Inc.

Since Bassingthwaighte amended his suit in May of 1990 to

add McDermott, Inc. as a defendant, McDermott, Inc. has had to

litigate a claim for personal injuries that does not implicate or

involve it in any way. Hence, like McDermott, Int’l, McDermott,

Inc. does not relish the district court’s order dismissing it for

forum non conveniens, as this order will allow Bassingthwaighte to

pursue identical suits now pending in other courts. If the history

of this litigation is instructive, McDermott, Inc. has reason to

fear that it will be sending lawyers to courts in Texas and

Louisiana to defend against the claim that it is somehow liable as

an "employer" for injuries sustained by someone it simply never

employed.6

McDermott, Inc.’s motion for summary judgment, filed in

the district court in January 1993, stressed the facts refuting any

possible theory of liability. After this summary judgment motion

was filed, this court ordered the district court in a previous

appeal “to rule upon all of the remaining motions now reinstated in
7

the remanded action.” In re McDermott Int’l & McDermott, Inc., No.

94-40369 (5th Cir. 1994) (emphasis added). The district court then

dismissed McDermott, Inc. for forum non conveniens without ruling

on McDermott, Inc.’s motion for summary judgment.

Because the district court had in personam jurisdiction

over McDermott, Inc., it had the authority to dismiss McDermott,

Inc. for forum non conveniens. Further, read in context of our

opinion on the earlier appeal, the district court’s decision to

rule on forum non conveniens rather than the summary judgment

motion was a permissible interpretation of our mandate.

The question then arises whether McDermott, Inc. is a

“party aggrieved” by the dismissal so as to permit it to appeal.

McDermott, Inc. cited no authority directly on point, and we have

found none, suggesting that we should review on appeal an entirely

different issue, i.e. the summary judgment merits of the

plaintiff’s case, than the issue which formed the basis of the

trial court’s decision. By contrast, in two cases which did

authorize appeal from “favorable” rulings by district courts, the

appellate court was asked to decide simply whether dismissal should

have been with prejudice rather than without. See Disher v.

Information Resources, Inc., 873 F.2d 136, 139 (7th Cir. 1989); La

Buhn v. Bulkmatic Transport Co., 865 F.2d 119, 121 (7th Cir. 1988).

Moreover, although it may regret the decision, McDermott, Inc.

asked for dismissal for forum non conveniens, so it is in a weak
8

position now to complain of getting its motion granted. Compare

Disher, LaBuhn, supra. 

Nevertheless, the company observes that it has been

disadvantaged by the district court’s turnabout decision that

American law applied regarding the employment contract and Jones

Act, if that ruling has binding effect in future litigation. We

note that it does not. Because McDermott, Inc. lacked standing to

appeal the favorable forum non conveniens ruling, the trial court’s

choice of law determination has no possible collateral estoppel

effect against McDermott, Inc. See In re: DES Litigation, 7 F.2d

20 (2d Cir. 1992). Thus, McDermott, Inc.’s appeal must be

dismissed, but plaintiff may not rely on the district court’s

curious choice of law ruling if he dares to continue litigating

this case.

CONCLUSION

For the foregoing reasons, this court AFFIRMS the

district court’s dismissal of McDermott, Int’l on the alternate

basis of a lack of personal jurisdiction in Texas. We DISMISS the

appeal of McDermott, Inc.

AFFIRMED in part as MODIFIED; appeal DISMISSED in part.