IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10744 & 14-10953

BLAKE BOX, doing business as Blake Box Company,

Plaintiff–Appellant,

v.

DALLAS MEXICAN CONSULATE GENERAL,

Defendant–Appellee.

Appeals from the United States District Court 

for the Northern District of Texas

USDC No. 3:08-CV-1010

Before KING, SMITH, and ELROD, Circuit Judges.

PER CURIAM:*

Following a dispute over a real estate venture, Blake Box sued the 

Dallas Mexican Consulate General (Consulate) for breach of contract and 

related claims. The district court entered a default judgment in favor of Box,

and the Consulate moved under Rule 60(b) to set aside the default judgment. 

The district court vacated the default judgment, concluding that it lacked 

subject matter jurisdiction under the Foreign Sovereign Immunities Act 

(FSIA). Box appealed and we remanded for limited discovery on fact issues 

 

* Pursuant to Fifth 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 Fifth 

Cir. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 19, 2015

Lyle W. Cayce

Clerk

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pertinent to subject matter jurisdiction under the FSIA. On remand, the 

district court concluded that it had subject matter jurisdiction and reinstated 

the default judgment. The Consulate then moved under Rule 59(e) for a new 

trial or to reconsider the judgment, which the district court granted in part. 

Because the relevant facts were established as the law of the case, and because 

those facts are not jurisdictional facts, we vacate the district court’s order

granting the Rule 59(e) motion and remand for reinstatement of the default 

judgment. Box also moved in the district court for additional attorney’s fees 

based on his status as a prevailing party. We affirm the district court’s denial 

of these additional attorney’s fees.

I.

Box, a real estate broker, worked with Ambassador Enrique Hubbard 

and Mr. Hugo Juarez-Carillo (Consulate Officials) to secure a new building for

the Mexican Consulate’s Dallas office.1 Box assisted the Consulate in locating 

a suitable building, and when the seller would sell the building only as part of 

a three-building package Box devised a transaction to purchase all three 

buildings and spin off one of the buildings to the Consulate. Box “identified 

prospective sites, enlisted contractors, met with city officials, and was involved 

in negotiations.” Throughout this process, the Consulate Officials were in 

contact with the Mexican government and working through the government’s

lengthy official procedures for purchasing real property. Whether the 

Consulate Officials ever obtained actual authority to enter a joint venture with 

Box, or to purchase the building, is disputed by the Consulate. 

 

1 The facts as recited here are those alleged in Box’s complaint and have all been 

admitted for merits purposes through the Consulate’s default. See Jackson v. FIE Corp., 302 

F.3d 515, 525 (5th Cir. 2002) (explaining that a defendant, by default, admits the plaintiff’s 

well-pleaded allegations of fact for purposes of the merits).

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After Box spent extensive time on the transaction, the Consulate 

partnered with a third party and purchased the same buildings in a 

transaction identical to the one that Box had designed. Box sued the Consulate 

for: (1) breach of contract; (2) fraud/fraudulent inducement; (3) breach of 

fiduciary duty; (4) unjust enrichment; (5) quantum meruit; (6) promissory 

estoppel; (7) constructive trust; (8) attorney’s fees; and (9) exemplary damages. 

The Consulate, despite being properly served, did not respond to Box’s 

complaint. Box moved for a default judgment. Before entering a default 

judgment, the district court assessed whether it had subject matter jurisdiction 

over the case under the FSIA. Under the FSIA, foreign governments are 

immune from suit subject to certain exceptions, including a “commercial 

activity exception.” The district court determined that because the Consulate 

Officials had apparent authority to purchase the building, the commercial 

activity exception applied, and the district court had subject matter 

jurisdiction over the case. The district court entered a default judgment in 

favor of Box for $87,500 in value of services rendered, $6,725 in costs expended 

on behalf of the Consulate, and $3,000,000 in compensation for Box’s “joint 

venture interest.” The district court also awarded Box attorney’s fees and costs 

in the amount of $31,464.83. 

Over five months after the entry of the default judgment, the Consulate

moved under Rule 60(b)(4) to set aside the default judgment. The district court 

reanalyzed the FSIA’s commercial activity exception to determine whether the 

Consulate Officials had actual authority to purchase the building. The actual 

authority requirement is not contested. The district court concluded that the 

Consulate Officials lacked actual authority to purchase the building and,

therefore, the commercial activity exception did not apply and the district court 

lacked subject matter jurisdiction over the case. The district court granted the 

Rule 60(b)(4) motion and vacated the default judgment in its entirety. 

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Box appealed. On appeal, we held that “[t]he district court abused its 

discretion in not allowing limited discovery on the issue of whether the 

Consulate’s officials lacked actual authority.” Box v. Dall. Mex. Consulate 

Gen., 487 F. App’x 880, 887 (5th Cir. 2012) (unpublished) (Box I). We vacated 

the district court’s order granting the 60(b)(4) motion and remanded for 

“limited discovery” on the issue of whether the Consulate Officials had actual 

authority to bind the Consulate to the transaction. Id. 

On remand, the parties conducted discovery to determine the extent of 

the Consulate Officials’ authority and the district court again addressed the 

Consulate’s 60(b)(4) motion. The district court analyzed the 60(b)(4) motion to 

determine whether it initially had an “arguable basis” for finding subject 

matter jurisdiction and entering the default judgment. The district court 

concluded that “[t]he sole issue before the [district court was] whether the 

Consulate Officials had actual authority to engage in a commercial activity—

not just whether the Consulate Officials had actual authority to purchase the 

Property from Box. This lawsuit is based upon the facilitation of real estate 

services and the formation of a joint venture.” 

The district court analyzed the Mexican government’s procedures for 

acquisition and/or leasing of real property assets abroad and concluded that 

“[t]he Mexican government indisputably authorized the Consulate to pursue 

the acquisition of a [sic] the property” because “the Consulate Officials were 

given full authority for all preliminary activities.”2 The district court 

distinguished between the authority to enter a joint venture and the authority 

to actually purchase real property, but determined that “[it] need not reach 

. . . whether [purchasing real property] falls within the scope of the Consulate 

 

2 The district court considered the Mexican government’s specific procedures, e-mails, 

and deposition testimony. 

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Officials’ actual authority, as [it] determined the general authorization given 

to the Consulate for all activities leading up to the acquisition of the Property 

would include the retention of Box as a real estate broker.” Because the district 

court found that there was actual authority for the Consulate Officials to agree 

to the transaction, the commercial activity exception applied, and the district 

court had subject matter jurisdiction. The district court denied the 60(b)(4) 

motion and left the default judgment in place. 

The Consulate then moved under Rule 59(e) for reconsideration, or in 

the alternative, a new trial. The Consulate argued that the district court

should have: (1) evaluated its subject matter jurisdiction under a de novo

standard of review, rather than the “arguable basis” standard of review; and 

(2) evaluated whether a joint venture actually existed between the parties. 

The district court agreed and concluded that it erred when it “assumed 

the existence of the joint venture.” It reasoned that the existence of a joint 

venture was a jurisdictional fact and that even though a defendant admits a 

plaintiff’s well-pleaded allegations as true by default—as the Consulate did

here—this does not apply to jurisdictional allegations when those allegations 

are disputed by admissible evidence. The district court then determined that 

under Texas law the joint venture did not exist, so jurisdiction was improper. 

The district court granted the Consulate’s motion in part, vacating the

default judgment in part and ordering that Box recover only $87,500 for 

services rendered and $6,725 for costs expended. The district court did not

award Box the $3,000,000 for his share of the joint venture interest or 

additional attorney’s fees. Box moved to alter or amend the judgment and the

district court declined. Box then moved for attorney’s fees in the amount of 

$265,315 based on his status as a prevailing party. While the motion for 

attorney’s fees was pending, Box appealed the district court’s partial grant of 

the Consulate’s Rule 59(e) motion. The district court subsequently denied the

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motion for attorney’s fees and Box appealed that judgment. Both appeals were 

consolidated before this court. The Consulate cross-appealed the district 

court’s judgment leaving intact the $94,225 award, but later withdrew the

cross-appeal in its response brief.

II.

The existence of subject-matter jurisdiction under the FSIA is a question 

of law, reviewed de novo. UNC Lear Servs., Inc. v. Kingdom of Saudi Arabia, 

581 F.3d 210, 214 (5th Cir. 2009). Whether the law-of-the-case doctrine or its 

related doctrines, including the waiver doctrine, foreclose any of the district 

court’s actions on remand is also a question of law that this court reviews de 

novo. Med. Ctr. Pharm. v. Holder, 634 F.3d 830, 834 (5th Cir. 2011).

III.

Box argues that the district court erred for three reasons: (1) a joint 

venture existed under the law of the case, thus the district court could not 

reexamine this fact; (2) on remand, the district court impermissibly went 

beyond the scope of our mandate; and (3) the existence of a joint venture is a

merits question, not a jurisdictional fact.

The law-of-the-case doctrine provides that ordinarily “an issue of fact or 

law decided on appeal may not be reexamined either by the district court on 

remand or by the appellate court on a subsequent appeal.” Demahy v. Schwarz 

Pharma, Inc., 702 F.3d 177, 184 (5th Cir. 2012) (internal quotation marks 

omitted). Box contends that the existence of the joint venture became the law 

of the case after Box I because the Consulate failed to raise or brief the nonexistence of a joint venture in Box I and our decision in Box I recognized the 

existence of the joint venture. The Consulate argues that it never conceded 

the existence of a joint venture and that we did not address the existence of a 

joint venture in Box I. The Consulate also argues that as the appellee in Box 

I, it had no obligation to challenge the joint venture’s existence because it was 

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only defending the ruling below, which Box only challenged on the issue of 

actual authority. 

In Box I, the Consulate’s briefing repeatedly refers to the joint venture 

as the “alleged” joint venture and maintains its non-existence. However, the 

Consulate’s arguments only addressed whether there was actual authority for 

the joint venture; they did not directly attack its existence. The Consulate 

never argued that the joint venture’s non-existence defeated subject matter 

jurisdiction. The only issue in Box I was whether the Consulate Officials had

actual authority to agree to the transaction. Whether subject matter 

jurisdiction existed turned only on the actual authority issue. 

As for the Consulate’s argument that as appellee it did not need to raise 

the issue in Box I, the Consulate raised numerous challenges to the district 

court’s jurisdiction in Box I, including a lack of personal jurisdiction based on 

flawed service and “multiple meritorious defenses” that we considered and 

rejected. Despite raising multiple arguments regarding subject matter 

jurisdiction during Box I, the Consulate chose not to raise this one. Moreover, 

the Consulate did not raise its lack-of-joint-venture-as-jurisdictional-fact 

argument in its initial 60(b)(4) motion before the district court. 

Our opinion in Box I treated actual authority as the only jurisdictional 

issue to be addressed on remand. Nothing in either the district court’s 60(b)(4) 

order or our opinion in Box I considered the existence of the joint venture as a 

contested jurisdictional fact. For these reasons, the existence of a joint venture

for jurisdictional purposes became the law of the case after Box I.3 

 

3 Even if the existence of a joint venture is a jurisdictional fact, subject matter 

jurisdiction does not create an exception to the law-of-the-case doctrine. See Free v. Abbott 

Labs., Inc., 164 F.3d 270, 272–73 (5th Cir. 1999) (citing Ferreira v. Borja, 93 F.3d 671, 674 

(9th Cir. 1996) cert. denied, 519 U.S. 1122 (1997) (“Surely a court that has decided that it has 

jurisdiction is not duty-bound to entertain thereafter a series of repetitive motions to dismiss 

for lack of jurisdiction.”)). 

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Box next asserts that the district court exceeded its authority under our

mandate in Box I when it reconsidered the joint venture’s existence. The 

mandate rule relates closely to the law-of-the-case doctrine. Under the 

“mandate rule,” on remand the district court “must implement both the letter 

and the spirit of the appellate court’s mandate and may not disregard the 

explicit directives of that court.” Demahy, 702 F.3d at 184 (internal quotation 

marks omitted). On remand, a district court may only “consider whatever this 

court directs—no more, no less. All other issues not arising out of this court’s 

ruling and not raised before the appeals court, which could have been brought 

in the original appeal, are not proper for reconsideration by the district court 

below.” United States v. Marmolejo, 139 F.3d 528, 531 (5th Cir. 1998). In 

Marmolejo, we cited “justice as well as judicial economy” as the reasons to 

“require a defendant to raise all relevant and appealable issues at the original 

[proceeding].” Id. 

In Box I, the “discrete issue [on remand was whether] Hubbard and 

Juarez were authorized to purchase the consulate building, which if true would 

establish FSIA jurisdiction.” 487 F. App’x at 885. The Consulate argues that 

“[a]bsent limitation in the remand, the district court [is] free to admit 

additional evidence and conduct all necessary review of the claims on any 

grounds before it.” See United States v. Wilson, 322 F.3d 353, 360 (5th Cir. 

2003). Wilson addressed whether the district court may consider additional 

evidence to decide a question on remand. Here, the district court considered 

an entirely new question. We remanded Box I “because actual authorization is 

a discrete issue conducive to limited discovery” and “[t]he district court abused 

its discretion in not allowing limited discovery on the issue of whether the 

Consulate’s officials lacked actual authority.” 487 F. App’x at 885, 887. While 

consideration of additional evidence was appropriate, nothing in Box I gave the 

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district court permission to extend its inquiry beyond the question of the 

Consulate Officials’ authority.4 

Even assuming arguendo that the district court was permitted to 

consider the existence of a joint venture on remand, the existence of a joint 

venture is not a jurisdictional fact.5 Federal claims litigation and admiralty 

law both provide useful analogies because in both areas a district court must 

often determine jurisdictional facts prior to addressing the merits of a claim. 

Box cites Pure Power!, Inc. v. United States, 70 Fed. Cl. 739, 742 (Fed. Cl. 2006) 

and S.C. State Ports Auth. v. Silver Anchor, S.A., 23 F.3d 842, 847 (4th Cir. 

1994) (Silver Anchor II) in support. In Pure Power!, the government defendant 

argued that the Court of Federal Claims, a court of limited jurisdiction, lacked

jurisdiction over the plaintiff’s contract claim because there was no contract. 

Pure Power! held that “if the existence of a contract is well-pleaded, the court 

has the jurisdiction to determine, on the merits, if a valid contract actually 

exists” and “a claim is not beyond the subject matter jurisdiction of the [court] 

merely because the [defendant] asserts that it never had a contract with the 

plaintiff.” 70 Fed. Cl. at 742. Put another way, the district court does not lack 

jurisdiction to determine whether a contract exists simply because the ultimate 

answer is that it does not.

 

4 S.C. State Ports Auth. v. Silver Anchor, S.A., 23 F.3d 842, 847 (4th Cir. 1994) (Silver 

Anchor II), discussed infra regarding the jurisdictional question, is also analogous on the 

scope-of-the-mandate issue. 23 F.3d at 847 (“[W]e note that our [previous opinion] was 

premised on the assumption that there was a contract between [the parties]. We instructed 

the district court to determine only whether that contract was maritime or non-maritime in 

nature. We did not instruct the lower court to engage in a freewheeling inquiry about 

whether any contract even existed.”).

5 The parties dispute whether the district court should have employed a de novo 

standard of review for assessing subject matter jurisdiction on a Rule 60(b)(4) motion or 

review for whether the court had “any arguable basis” for exercising subject matter 

jurisdiction. Because we hold that the district court properly had subject matter jurisdiction 

under either standard, we express no opinion as to the proper standard of review. 

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Silver Anchor II is also persuasive. In Silver Anchor II, the district court 

dismissed a maritime contract case on the basis that there was no contract 

because there was no personal guaranty of payment from the defendant, a 

required contract component. The Fourth Circuit held that the existence of “a 

personal guaranty [was] dispositive on the merits,” so “[t]o the extent that [the 

defendant] was challenging the court’s jurisdiction on the ground that he gave 

no personal guaranty, he was also challenging the very existence of the 

[plaintiff’s] cause of action.” 23 F.3d at 847. Similarly here, because the 

Consulate challenges subject matter jurisdiction on the ground that there was 

no joint venture, the Consulate is also challenging the very existence of Box’s 

cause of action. 

The Consulate attempts to distinguish Silver Anchor II because in Silver 

Anchor II “the existence of a contract went so much to the heart of the merits 

that it would be unfair to adjudicate it at the motion to dismiss stage,” whereas

here, the Consulate “is seeking to set aside a default judgment under Rule 

60(b)(4) after the underlying merits have been established.” If anything, this 

distinction weighs in favor of Box. In Silver Anchor, the court held that it was 

improper to dismiss the case for what was essentially a merits issue in “the 

guise of a jurisdictional dispute, much to [the] advantage” of the defendant, 

before reaching the motion to dismiss or summary judgment stage, where the 

facts would be viewed in the light most favorable to the plaintiff. Here, it is 

not just that the facts would be viewed in the light most favorable to Box in 

later proceedings, but they have been conclusively admitted through the 

Consulate’s default. 

The Consulate next argues that the district court may always determine 

the jurisdictional facts as necessary to determine if it has jurisdiction, even if

those facts have been admitted by a default for purposes of the merits inquiry. 

This is correct—the district court must decide whether it has jurisdiction and 

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must weigh evidence and assess the merits insofar as they weigh on 

jurisdiction—but that is not the issue here. That the district courts must 

answer jurisdictional questions does nothing to determine exactly which 

questions are jurisdictional. The Consulate relies heavily upon Jackson v. FIE 

Corp., 302 F.3d 515 (5th Cir. 2002) and Moran v. Kingdom of Saudi Arabia, 27 

F.3d 169 (5th Cir. 1994) to argue that “facts presumed for purposes of the 

merits of the default can be revisited in the context of subject matter 

jurisdiction,” and “at least in the context of the FSIA, those factual 

determinations can extend to the merits.” The Consulate seeks more from 

Jackson and Moran than they give. Both cases stand for the proposition that 

a district court is not barred from deciding a jurisdictional fact simply because 

that fact is intertwined with, or also is, a merits fact. But this does not support 

treating otherwise exclusively merits facts as part of the jurisdictional inquiry, 

nor does it have any relevance to the question of whether the joint venture’s 

existence is a jurisdictional fact under the FSIA. 

In Jackson, after a default judgment was entered against a foreign gun 

manufacturer, the manufacturer moved under Rule 60(b)(4) to vacate the 

judgment, arguing that the district court had lacked personal jurisdiction over 

the defendant manufacturer because under Louisiana’s long-arm statute the 

defendant must have placed the gun in the stream of commerce for personal 

jurisdiction to be proper. 302 F.3d at 520. We held that a fact’s admission by 

default for merits’ purposes does not automatically admit that fact for 

jurisdictional purposes and remanded for a determination of the jurisdictional 

question of whether the defendant put the gun into the stream of commerce. 

Id. at 531. Jackson merely says that a district court must assess jurisdictional 

facts to determine if jurisdiction is proper, even if those facts are admitted by 

default for merits’ purposes. Jackson sheds no light upon whether the 

existence of a joint venture is a jurisdictional fact here. 

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In Moran, a FSIA case, the plaintiff sued the Kingdom of Saudi Arabia 

following a Mississippi car accident with two Saudi government personnel. 

Under the relevant law, Saudi Arabia was only subject to jurisdiction under 

the FSIA if the officials were acting within the scope of their employment at 

the time of the accident. 27 F.3d at 173. Whether the officials were acting 

within the scope of their employment also bore on the merits of the case. The 

district court concluded that the officials were not acting within the scope of 

their employment and therefore dismissed the case because the court lacked 

jurisdiction under the FSIA. Id. We held that the district court acted properly 

by resolving Saudi Arabia’s 12(b)(1) motion “before other challenges since the 

court must find jurisdiction before determining the validity of a claim.” Id. at 

172 (internal quotation marks omitted). 

The Consulate argues that the question of whether a joint venture 

existed is analogous to the question of whether the officials in Moran were 

acting within the scope of their employment, but the Consulate overreads 

Moran. The question of whether the Saudi officials were acting within the 

scope of their employment, unlike the question of the existence of the joint 

venture here, was a required part of the jurisdictional analysis. Here, the FSIA 

exception applies to an “action [that] is based upon a commercial activity.” 28 

U.S.C. § 1605(a)(2). The analogous attack here would be that, for instance, the 

activity was not commercial, not that the activity did not occur. Moran

demonstrates that jurisdictional facts will sometimes overlap with merits 

inquiries, but cannot be stretched to redefine what is jurisdictional in the first 

instance.

The Consulate insists that the Consulate Officials logically could not 

have authority to enter a joint venture that did not exist, but this is incorrect. 

It is entirely plausible that, for example, a government could give officials 

actual authority to spend a certain dollar amount to acquire a building, with 

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no further oversight. In such a scenario, there would be no question that the 

officials had actual authority to enter into a contract within those particular

parameters. Whether the officials actually did enter a contract would be an 

entirely different question. As an alternative example, if the Consulate 

Officials had authority to purchase a building within Dallas city limits, or 

within a certain time frame, actual authority would exist—a separate question 

from whether the Consulate Officials exercised that authority. Because the 

authorization process here occurred contemporaneously with the creation of 

the joint venture, the Consulate attempts to conflate the two issues. But 

whether the Consulate Officials had authority from the Mexican government 

to form a joint venture is a separate question from whether they exercised that 

authority in their dealings with Box. Simply put, here, the first question was 

answered by the district court on remand in Box I and the second question was 

defaulted by the Consulate.

IV. 

In Box’s second appeal, he appeals the denial of his additional attorney’s 

fees in the amount of $265,315. We review the factual findings supporting the 

grant or denial of attorney’s fees for clear error and the conclusions of law 

underlying the award de novo. T.B. ex rel. Debbra B. v. Bryan Indep. Sch. Dist., 

628 F.3d 240, 243 (5th Cir. 2010). The district court’s interpretation of a 

statute is a question of law reviewed de novo. Id.

Box argued that he was entitled to additional attorney’s fees under 

Chapter 38 of the Texas Civil Practice and Remedies Code based on his status 

as a prevailing party. The Consulate responded that Box was not entitled to 

attorney’s fees because Chapter 38 does not provide for attorney’s fees against 

foreign governments. The district court agreed with the Consulate and denied 

the motion. 

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We agree with the Consulate and the district court that Chapter 38 does 

not entitle Box to the $265,315 in attorney’s fees. Chapter 38 specifically 

permits recovery of attorney’s fees from an “individual or corporation” on 

certain types of claims. Tex. Civ. Prac. & Rem. Codes § 38.001. A foreign 

government or a foreign government’s agent or instrumentality is not covered 

by the plain text of the statute. See id. Moreover, Texas courts have 

interpreted the provision to prohibit collection of attorney’s fees from 

municipal governments, specifically citing the statute’s word choice excluding 

government entities. See, e.g., City of Corinth v. NuRock Dev., Inc., 293 S.W.3d 

360, 370 (Tex. App.—Fort Worth 2009, no pet.); Dall. Area Rapid Transit v. 

Plummer, 841 S.W.2d 870, 875 (Tex. App.—Dallas 1992, writ denied). Neither 

the plain text of § 38.001 nor the Texas courts’ interpretation of it permits a 

party to recover attorney’s fees from a foreign governmental entity. Thus, the 

district court correctly denied Box’s motion for $265,315 in additional 

attorney’s fees. 

V.

For the foregoing reasons, the district court’s order granting the 

Consulate’s Rule 59(e) motion and revised judgment is VACATED. This case 

is REMANDED with instructions to the district court to REINSTATE the 

original default judgment in full. The district court’s order denying Box 

additional attorney’s fees is AFFIRMED. 

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