United States Court of Appeals,

Fifth Circuit.

Nos. 92-7162, 93-7036.

Nenita S. VILLAR, Etc., et al., Plaintiffs-Appellants,

v.

CROWLEY MARITIME CORPORATION, et al., Defendants-Appellees.

Nenita S. VILLAR, Etc., et al., Plaintiffs,

Gary Riebschlager and Benton Musslewhite, Appellants,

v.

CROWLEY MARITIME CORPORATION, et al., Defendants-Appellees.

May 25, 1993.

Appeals from the United States District Court for the Southern District of Texas.

Before JOHNSON, JOLLY, and DAVIS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This suit is the third successive one that the plaintiffs have brought for the wrongful death of

Renerio Z. Villar, a citizen ofthe Philippines. In the first two suits, California state and federal courts

dismissed the plaintiffs'suit based on forum non conveniens. Furthermore, the Ninth Circuit held that

no forum in the United States would be convenient. Yet, over ten years after filing the first suit, the

plaintiffs brought the instant suit in Texas state court. The defendants removed the suit to federal

court. The federal court dismissed the claims against the foreign defendants because the district court

lacked personal jurisdiction over them. The district court then dismissed the claims against the

remaining defendant because the district court was an inconvenient forum, 780 F.Supp. 1467.

Finding that the plaintiffs' arguments are without merit, we affirm the decision of the district court.

I

In the 1970's, Villar worked in Saudi Arabia as a crew member aboard the tugboat

BANNOCK. Villar worked for defendant SATOL, a Saudi Arabian corporation, under an

employment contract executed in the Philippines. Villar's employment contract provided that if he
was injured in the course of his employment, he could choose compensation under either the

Philippine's worker's compensation law or the law of country in which the BANNOCK was

registered. It turns out that the BANNOCK was registered under Panama's flag.

In March of 1977, Villar fell overboard and drowned. At that ti me, defendant GTO

Corporation owned sixty percent of SATOL, Villar's employer. Defendant Crowley Maritime

Corporation ("CMC"), in turn, owned one-third of GTO.

In 1980, Nenita S. Villar, Josephine Villar, Geraldo Villar, Reynaldo Villar, and Renerio

Villar, Jr. (hereinafter "the Villars") sued SATOL, GTO, CMC, and other related corporationsin the

United States District Court for the Northern District of California. Four years later, the California

district court dismissed the Villars' suit on grounds of forum non conveniens. The district court

conditioned its dismissal on the defendants' agreement to waive all jurisdictional, venue, and statute

of limitations defensesto any action the Villars brought in the Philippinesin the next year. The Ninth

Circuit affirmed the dismissal in February of 1986. Villar v. Crowley Maritime Corp., 782 F.2d 1478

(9th Cir.1986).

After the first dismissal, the Villars chose not to sue the defendantsin the Philippines. Instead,

the Villars filed an identical lawsuit in California state court. The California state court, like the

California federal court, dismissed the Villars' suit based on the doctrine of forum non conveniens,

and in December of 1990 the California Court of Appeals affirmed. The Villars still have not

attempted to sue in the Philippines, Saudi Arabia, or Panama.

II

The persistent Villars have now sued the same defendants in Texas state court. One of the

weary defendants, CMC, removed the proceeding to federal court based on diversity of citizenship.

CMC is a Delaware corporation that is registered to do business in Texas and has its principal place

of businessinCalifornia. Although some of the defendant corporations are foreign corporations and,

hence, not diverse with the Villars, CMC alleged that the Villars fraudulently joined the foreign

corporationsto defeat diversityjurisdiction. CMC further argued that the district court should ignore

the citizenship of the foreign corporations because there was no way the district court could
constitutionallyexercise in personamjurisdictionoverthose defendants. CMC then moved to dismiss

the claims against it on grounds of forum non conveniens, and the foreign corporations moved to

dismiss the action against them because the district court lacked personal jurisdiction over them.

In response, the Villars moved to remand the proceeding to Texas state court because there

was incomplete diversity of citizenship. The Villars urged the district court to consider their motion

to remand before considering the defendants' motions to dismiss. In case the district court rejected

their primary argument, the Villars made three alternative arguments. First, the Villars argued that

they had not fraudulently joined the foreign corporations. Second, they argued that the court does

have personal jurisdiction over the foreign defendants because CMC, which isin Texas, wasthe alter

ego of at least some of the foreign defendants. Thus, the district court should attribute CMC's Texas

contacts to the foreign defendants, giving the district court jurisdiction over those defendants.

Finally, the Villars argued that the district court should deny CMC's motion to dismiss based on

forum non conveniens because, as a federal court sitting in diversity, the district court should apply

Texas state law, which does not recognize the doctrine of forum non conveniens.

Deciding the foreign defendants' motions first, the district court found that the Villars had

failed to make a prima facie case for the district court's personal jurisdiction over those defendants.

The district court found that the foreign defendants did not have the necessaryminimumcontacts with

the state of Texas, and that they were not the alter egos of CMC. Having dismissed the claims

against the foreign corporations, the district court found that complete diversity existed and denied

the Villars' motion to remand to state court. Alternatively, the district court held that, even if it must

consider the Villars' motion first, complete diversity still existed because there was "no possibility"

that the Villars could establish that the court had personal jurisdiction over the foreign defendants.

Thus, the district court would still deny the Villars' motion to remand and grant the foreign

defendants' motion to dismiss.

The district court then turned to CMC's motion to dismiss for forum non conveniens, which

it granted. The district court held that after the California district court dismissed the Villars' suit

based on forum non conveniens, the issue became res judicata. Alternatively, the district court held
 

1

In their original notice of appeal, the Villars' attorneys failed to appeal the district court's Rule

11 sanctions in their own names as required by our rules. In an unpublished opinion, we

dismissed that portion of the appeal and struck the portion of their briefs pertaining to sanctions. 

After we dismissed that portion of the appeal, the Villars' attorneys obtained a Rule 58 judgment

as to sanctions and filed a timely notice of appeal. The Villars' attorneys then moved us to

consolidate the two appeals, rescind our order striking portions of their briefs, and adopt the

briefs presently on file in this appeal. We granted these motions. 

that the Fifth Circuit'slaw on forum non conveniens applied, and that the Fifth Circuit'slaw required

the dismissal of the action against CMC.

In addition, the district court, sua sponte, enjoined the Villarsfrom instituting another action

based on the underlying dispute in any other state or federal court in the United States. Finally, the

district court sanctioned the Villars' attorneys under Rule 11 of the FederalRules of Civil Procedure,

for making unreasonable and insupportable arguments.1

Complaining of multiple errors below, the Villars appeal all of the district court's orders.

III

A

The Villars' primary point on appeal is that the district court erred when it chose to consider

the foreign defendants' motion to dismiss for lack of personal jurisdiction before considering their

motion to remand for lack of complete diversity. The Villars contend that the district court should

have considered the motion to remand first because it would have been simpler and more convenient

to resolve the motion to remand.

According to the Villars, the motion to remand is simpler because, under the applicable

standard of review, the district court need only determine whether there is a possibility the plaintiff

could establish jurisdiction over the defendant. Green v. Amerada Hess Corp., 707 F.2d 201, 205

(5th Cir.1983). The district court can usually make this decision without a full scale evidentiary

hearing. Id. at 204 n. 2. The motion to dismiss, on the other hand, is more complicated because the

district court will generally have to hold an evidentiary hearing in which the plaintiff must prove, by

a preponderance of the evidence, that the court has personal jurisdiction. CutCo Industries, Inc. v.
 

2This argument is somewhat misleading. Even the cases the Villars cite clearly recognize that

district courts often decide motions to dismiss for lack of personal jurisdiction without an

evidentiary hearing. Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir.1985)

("When the district court decides the defendant's motion [to dismiss for lack of personal

jurisdiction] without an evidentiary hearing, the plaintiff's burden is met by presenting a prima

facie case for personal jurisdiction.") 

 

3

In support of their position, the Villars cite Allen v. Ferguson, 791 F.2d 611, 615 (7th

Cir.1986). In Allen, the Seventh Circuit held that, when a district court is faced with both a

motion to remand and a motion to dismiss for lack of personal jurisdiction, the district court can

only resolve the motion to dismiss first if it finds that the plaintiff could not obtain personal

jurisdiction over the defendant. Seventh Circuit cases, of course, are not binding in this circuit. 

Yet, even if we applied Allen, the district court still would have had the power to resolve the

motion to dismiss first because the district court found that there was no possibility the Villars

could obtain jurisdiction over the foreign defendants. 

Naughton, 806 F.2d 361, 364 (2d Cir.1986).2 The Villars also contend that the principles of comity

and federalism suggest that the district court should have considered the motion to remand first.3

Unfortunately for the Villars, we have already rejected their primary argument. Walker v.

Savell, 335 F.2d 536, 539 (5th Cir.1964). In Walker, we clearly held that district courts have the

power to rule on motions challenging personal jurisdiction before reaching motions to remand. As

we noted, judicial economy favors this result because if the district court remands the proceeding,

then the state court will probably have to decide the same motion to dismiss for lack of personal

jurisdiction that the district court avoided. Furthermore, the district court must necessarily address

the issue of personal jurisdiction regardless of which motion it addresses first. The Villars' argument

that the standard for det ermining personal jurisdiction will vary depending on which motion the

district court decidesfirst does not change the fact that the district court willstill have to addressthe

issue of in personam jurisdiction.

We recently reaffirmed our holding in Walker, which continues to be the law in this circuit.

Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061, 1066 (5th Cir.1992); see also

Nolan v. Boeing Co., 736 F.Supp. 120, 122 (E.D.La.) (affirmed 919 F.2d 1058 (5th Cir.1990)).

Thus, we must reject the Villars' argument.

Even if we could overrule our holding in Walker and require the district court to rule on the

Villars' motion to remand first, the Villars' argument would still fail because the district court did as

the Villars asked it to do: It applied the standard the Villars suggested and, alternatively, held that
there was no possibility that the Villars could prove that the court had personal jurisdiction over the

foreign defendants. The district court then denied the Villars' motion to remand because the Villars

had fraudulently joined the non-diverse foreign corporations to defeat the district court's diversity

jurisdiction.

B

The Villars also contend that the district court erred when it denied them additional

discovery. The decision not to permit additional discovery "on a motion to dismiss for lack of

personal jurisdiction is specifically one for the trial court's discretion, and "[s]uch discretion will not

be disturbed ordinarily unless there are unusual circumstances showing clear abuse.' " Wyatt v.

Kaplan, 686 F.2d 276, 283 (5th Cir.1982) (quoting Associated Metals & Minerals Corp. v. S.S.

Geert Howaldt, 348 F.2d 457, 459 (5th Cir.1965)).

The Villars wanted to engage in additional discovery so that they could find facts that would

show that the foreign defendants were doing business in Texas and, thus, subject to personal

jurisdiction in Texas. The Villars argue that they have never had an opportunity to do discovery on

this issue. In support of their position, the Villars cite several cases in which we reversed a district

court for failing to grant the plaintiff discovery on the issue of the defendants' amenability to the

court's jurisdiction. See Skidmore v. Syntex Laboratories, Inc., 529 F.2d 1244 (5th Cir.1976).

The district court denied the Villars additional discovery because the Villars had conducted

extensive discovery during the two suits in California. The district court reasoned that the Villars'

discovery on the forum non conveniens issues involved many of the same facts that the Villars were

attempting to discover in the present suit. See Wood v. Santa Barbara Chamber of Commerce, 507

F.Supp. 1128 (D.Nev.1980). Finding that the Villars would not discover anything that they had not

already learned in the first ten years of the litigation, the district court concluded that further

discovery would serve only to vex and harass the defendants. Indeed, in the California suits the

Villars were looking for any facts that might tie the defendants to the United States in general and

California in particular. Thus, it is not surprising that the Villars inquired into the defendants' ties to
 

4

In the Villars' prior discovery, they learned that CMC had an office in Texas, and that GTO

used to have an office in Texas. Benton Musslewhite, the Villars' current attorney, conducted

several of the depositions in California. Thus, he has personal knowledge of the Villars' attempts

to ascertain the defendants' ties to Texas. 

 

5The Texas long arm statute allows Texas courts to exercise jurisdiction over anyone that does

business in Texas. Tex.Civ.Prac. & Rem.Code.Ann. § 17.042 (Vernon 1986). This grant of

jurisdiction is so broad that it extends as far as the constitution permits. Schlobohm v. Schapiro,

784 S.W.2d 355, 357 (Tex.1990). 

Texas during the earlier litigation.4 Given the facts of this case, the district court clearly did not abuse

its discretion when it curtailed discovery.

C

We will now turn to the Villars' argument that the district court erred when it decided not to

remand the proceeding to the state court. The Villars contend that they presented sufficient evidence

to prove that the district court could legitimately exercise jurisdiction over the foreign defendants.

By proving that the district court had personal jurisdiction over the foreign defendants, the Villars

argue that they established that complete diversity did not exist. Without complete diversity, the

district court would not have subject matter jurisdiction over the case, and, they argue, the district

court would have had to remand the case to state court. The Villars are incorrect. The district court

could not have exercised personal jurisdiction over the foreign defendants.

In a diversity case, a district court may exercise personal jurisdiction over a foreign defendant

if the long arm statute of the state in which it sits allows the exercise of jurisdiction, and the exercise

ofjurisdiction is constitutional. Rittenhouse v. Mabry, 832 F.2d 1380, 1382 (5thCir.1987). Because

the Texas long arm statute grants Texas courts the power to exercise jurisdiction whenever

constitutional, the sole question before the district court was whether the district court could

constitutionallyexercise jurisdiction over the foreign defendants. Aviles v. Kunkle, 978 F.2d 201, 204

(5th Cir.1992); Schlobohm v. Schapiro, 784 S.W.2d 355, 357 (Tex.1990).5

 The Due Pro cess Clause of the Constitution limits a court's power to exercise personal

jurisdiction over a non-resident defendant to instances where the defendant has "certain minimum

contacts with [the forum state] such that the maintenance of the suit does not offend traditional

notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 312,
 

6The Villars also note that GTO had an office in Texas at the time of the accident. The Villars

suggest that this contact with Texas should satisfy the constitution's minimum contacts

requirement. The Villars argue that the defendants have not shown that GTO discontinued its

Texas activities for legitimate business reasons. This argument is frivolous. GTO ended its Texas

activities long before the Villars instituted the instant suit and there is no reason to believe GTO

ended its Texas contacts for an illegitimate reason. 

 

7The Villars note that a court could constitutionally exercise personal jurisdiction over a

subsidiary corporation if the subsidiary's parent had systematic contacts with the forum and the

parent acted as an agent for the subsidiary. The Villars, thus, imply that CMC's Texas contacts

satisfy the constitution's minimum contacts requirement because CMC was an agent for the

foreign corporations. This argument is without merit, and the Villars do not even include in their

brief the standard for establishing an agency relationship under Texas law. Indeed, there are no

facts in the record that suggest that CMC ever acted as an agent for the foreign corporations. In

addition, the Villars do not appear to have raised this argument below because the district court

did not address this argument in its opinion. 

316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (internal cites omitted).

The minimum contacts the constitution requires depend on whether the court is asserting

specific or general jurisdiction over the defendant. Specific jurisdiction exists when the defendant has

purposefullydirected his activitiestoward the forumand the plaintiff'sinjury relatesto the defendant's

contacts with the forum. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 2183,

85 L.Ed.2d 528 (1985). Specific jurisdiction does not apply in this case because the Villars' injury

does not relate to the defendants' contacts with Texas. General jurisdiction, on the other hand,

applies when the forum has no direct interest in the underlying dispute, but it does have an interest

in the defendant because the defendant has continuing and systematic contacts with the forum.

Helicopteros Nacionales de Colombia v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404

(1984). Thus, to establish general personal jurisdiction over the defendant, the plaintiff must prove

that the defendant has more substantial contacts with the forum. Jones, 954 F.2d at 1068.

The Villars, however, do not even suggest that the foreign defendants have any direct

contacts with Texas. Instead, the Villars argue that we can attribute CMC's contacts with Texas to

the foreign defendantsin order to satisfythe minimumcontactsrequirement.6 Relying on the fact that

CMC and the foreign defendants are related, the Villars contend that we should disregard the

corporate fiction.7 Texas law provides three broad theories under which a court may disregard the

corporate fiction and pierce the corporate veil. We may pierce the corporate veil "when: 1) the
 

8

In their effort to disregard the corporate veil, the Villars rely on Castleberry v. Branscum,

721 S.W.2d 270, 272 (Tex.1986), a case that was legislatively overruled four years ago. See

Tex.Bus.Corp.Act.Ann. (West Supp.1992); Fed. & Dep., 976 F.2d at 275; Farr v. Sun World

Sav. Ass'n., 810 S.W.2d 294 (Tex.App.1991). 

 

9The Villars also complain that the district court disregarded John Runion's affidavit. The

district court found that Runion's affidavit contained blatant misrepresentations and that it was

wholly improper and untrustworthy. The district court further found that the Runion affidavit was

strewn with unsupported legal conclusions despite the fact and Mr. Runion is not a lawyer. The

Villars' argument misperceives our role as an appellate court. It was up to the district court to

determine what weight to give Mr. Runion's affidavit. Fed.R.Civ.P. 52(a). Finding the affidavit

untrustworthy, the district court gave the affidavit no weight at all. Because the district court's

decision was not clearly erroneous, we will not disturb it. 

corporation is the alter ego of its owners or shareholders, 2) the corporation is used for illegal

purposes, and 3) the corporation is used as a sham to perpetrate a fraud." Fed. & Dep. Co. v.

Commercial Cas Consultants, 976 F.2d 272, 274-275 (5th Cir.1992) (internal cites omitted). The

purpose of all ofthese theoriesisto prevent the corporation's ownersfromusing the "corporate entity

as a cloak for fraud or illegality or to work an injustice." Id.8

 The district court based its decision not to disregard the corporate fiction on the following

facts. Mr. Villar worked for SATOL, a Saudi Arabian corporation. At the time of the accident, GTO

owned 60 percent of SATOL, and CMC owned one-third of GTO. Thus, CMC only owned,

indirectly, 20 percent of SATOL. CMC did not dominate either GTO or SATOL, and CMC was

connected with only two of SATOL's eight directors. On the contrary, SATOL's other shareholders

had veto power over SATOL's activities because each owner controlled at least one of SATOL's

directors, and SATOL could not act without the unanimous agreement of its board of directors.

Moreover, SATOL had a separate existence from its shareholders and maintained its corporate

formalities. The district court found no evidence of fraud, illegality, or injustice. We only review the

district court's factual findings to ensure that they are not clearly erroneous. Fed.R.Civ.P. 52(a).9

The record fully supports these factual findings and, thus, we must affirm them.

Unfortunately for the Villars, the facts in the record do not support the Villars' attempt to

disregard the corporate fiction on any theory that Texas recognizes. Indeed, the Texas courts and

the Fifth Circuit have refused to disregard the corporate entity on factsthat were much stronger than

those the Villars rely on. See Dalton v. R & W Marine, Inc., 897 F.2d 1359 (5th Cir.1990);
 

10Even assuming the foreign defendants had sufficient Texas contacts as argued by the Villars,

the district court correctly dismissed the foreign defendants for lack of personal jurisdiction

because the exercise of general personal jurisdiction over them would "offend traditional notions

of fair play and substantial justice." International Shoe, 326 U.S. at 316, 66 S.Ct. at 158. It

would simply be unfair to exercise personal jurisdiction over the foreign defendants when 1)

Texas has no interest in this suit, 2) the dispute involves foreign law and foreign parties, and 3) it

would be extremely burdensome for the foreign defendants to come to the United States to

defend this suit. See Asahi Metal Ind. Co. v. Superior Ct. of Cal., Solano City, 480 U.S. 102,

107 S.Ct. 1026, 94 L.Ed.2d 92 (1986). 

Hargrave v. Fiberboard Corp., 710 F.2d 1154 (5th Cir.1983); Lucas v. Texas Indus., Inc., 696

S.W.2d 372, 374-376 (Tex.1984). Accordingly, the district court did not err when it refused to

disregard the corporate fiction. As a result, we cannot attribute CMC's Texas contacts to the foreign

defendants. Without CMC's Texas contacts, the foreign defendants did not have the minimum

contacts with Texas that the constitution requires for the district court to exercise jurisdiction over

the foreign defendants. Thus, we hold that the district court did not err when it dismissed the foreign

defendants for lack of personal jurisdiction.10

D

The Villars also contend that the district court should have remanded the proceeding to state

court instead of dismissing their claims against CMC on grounds of forum non conveniens. In

support of this argument, the Villars cite several cases that might suggest that the district court had

discretion to remand the case instead of dismissing it. See Carnegie-Mellon University v. Cohill, 484

U.S. 343, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988); Murray v. Union Pac. Ry. Co., 77 F.Supp. 613

(N.D.Ill.1948).

Even ifthe district court had discretion to remand the case, nothing in the record suggeststhat

the district court abused its discretion. Furthermore, in a similar case, we found that the district court

did not abuse its discretion when it dismissed the case instead of remanding it to state court. Nolan

v. Boeing Co., 919 F.2d 1058, 1070 (5th Cir.1990). In Nolan, we reasoned that "[i]t would to

anomalous to conclude that while a district court may properly invoke the federal law of forum non

conveniens to decline jurisdiction over a properly removed case, it must order the case to be

reinstituted in an equally if not more inconvenient forum." Id. We agree. The district court did not

abuse its discretion when it chose to dismissthe Villars' claims against CMC instead of remanding the
proceeding.

E

We now turn to the Villars' argument that the district court erred when it dismissed their

claims against CMC on grounds of forum non conveniens. The district court held that, because of

the two dismissals on grounds of forum non conveniens in California, res judicata barred the Villars

fromarguing that the district court should not dismisstheirsuit on grounds offorum non conveniens.

Alternatively, the district court examined the merits of CMC's motion and determined that it should

dismiss the Villars' claims against CMC on grounds of forum non conveniens.

The Villars contend that the issue of forum non conveniens should not be res judicata

because the two California courts applied federal forum non conveniens law, and because

circumstances have changed since the first two dismissals. The Villars further contend that a forum

non conveniens issue can never be res judicata because of the Supreme Court's opinion in Parsons

v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 73, 84 S.Ct. 185, 187, 11 L.Ed.2d 137 (1963). In

Parsons, the Supreme Court held that "a prior state court dismissal on the ground of forum non

conveniens never can serve to divest a federal district judge of the discretionary power vested in him

by Congress to rule upon a motion to transfer under § 1404(a)." Id.

The Villars' interpretation of the law is incorrect. Because the Parsons case involved only a

prior state court forum non conveniens dismissal, the case is not on point. We have already held that

a plaintiff may not relitigate a forum non conveniens issue unless he can show some "objective facts

that materially alter the considerations underlying the previous resolution." Exxon Corp. v. Chick

Kam Choo, 817 F.2d 307, 314 (5thCir.1987) (rev'd on other grounds 486 U.S. 140, 108 S.Ct. 1684,

100 L.Ed.2d 127 (1988)). In the last ten years, the underlying facts have not materially changed.

Thus, the prior decisions bar the Villars from relitigating this issue.

Furthermore, examining the merits of CMC's argument, we believe that the district court did

not err when it granted the motion. We review a district court's decision to dismiss a case based on

forum non conveniensto ensure that the district court did not act unreasonably or arbitrarily. Nolan,

919 F.2d at 1068.
Contrary to the Villars' assertion, the district court properly applied federal forum non

conveniens law when it addressed CMC's motion. Nolan, 919 F.2d at 1068 n. 11; In re Air Crash

Disaster Near New Orleans, La., 821 F.2d 1147 (5th Cir.1987) (en banc) (vacated on other grounds

Pan Am World Airways, Inc. v. Lopez, 490 U.S. 1032, 109 S.Ct. 1928, 104 L.Ed.2d 400, affirmed

in relevant part 883 F.2d 17 (1989)). The factors a district court must consider before dismissing a

case based on forum non conveniens have not changed since the Ninth Circuit dismissed the Villars'

case. Villar, 782 F.2d at 1482-1483. The Ninth Circuit correctly concluded that the Villars' case

should be dismissed based on forum non conveniens. The Ninth Circuit found that no forum in the

United States was convenient. We agree. If anything, Texas is less convenient than California

because CMC has its headquarters in California and not Texas. We, therefore, conclude that the

district court did not act unreasonably or arbitrarilywhen it dismissed the Villars' claims against CMC

on grounds of forum non conveniens.

F

 We now address the Villars' contention that the district court erred in enjoining them from

filing another suit in the United States. We review the district court's decision to grant an injunction

for an abuse of discretion. United States v. Paradise, 480 U.S. 149, 107 S.Ct. 1053, 94 L.Ed.2d 203

(1987). The Villars rely on the Supreme Court's holding in Chick Kam Choo that, pursuant to the

Anti-Injunction Act, we cannot enjoin an ongoing state court proceeding. See 28 U.S.C. § 2283.

Yet, Chick Kam Choo is not on point because there is no ongoing state court proceeding in this case.

On the contrary, aslong asthe federal court acts before the plaintiffhas commenced the state

court proceeding, a federal court can enjoin a state court. See Dombrowski v. Pfister, 380 U.S. 479,

484 n. 2, 85 S.Ct. 1116, 1119 n. 2, 14 L.Ed.2d 22 (1965) ("This statute [the anti-injunction act] and

its predecessors do not preclude injunctions against the institutionofstate court proceedings, but only

bar stays of suits already instituted."); Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 842 n.

6 (1st Cir.1988) ("The Anti-injunction Act does not, in any event, bar injunctive reliefthat would run

against a state court—asin effect, would the relief ordered here—when the federal court'sinjunctive

power is invoked (i.e., requested) by the plaintiff before the state court action is commenced.")
 

11On appeal, the Villars' attorneys devote only one paragraph of their brief to the issue of

sanctions and they do not contest the amount of the sanctions. 

(internal cited omitted).

Similarly, federal courts have the power to enjoin plaintiffs who abuse the court system and

harasstheir opponents. Indeed, federal courts have broad powers to protect their judgments and the

integrity of the courts as a whole. In re Martin-Trigona, 737 F.2d 1254, 1262 (2d Cir.1984). In one

case, we held that the district court had the power to enjoin "any future litigation on any cause of

action arising from the fact situation at issue in [the] case." Harrelson v. United States, 613 F.2d

114, 116 (5th Cir.1980). In another case, the D.C. Circuit permanently enjoined a civil litigant from

filing an action in any federal court without prior permission of the court. Urban v. United Nations,

768 F.2d 1497, 1500 (D.C.Cir.1985). Other courts have reached the similar conclusions. SeeCastro

v. United States, 775 F.2d 399, 408-409 (1st Cir.1985) (plaintiff enjoined from filing additional

pleadings and from relitigating any matter set forth in the case); Ruderer v. United States, 462 F.2d

897 (8th Cir.1972).

In the case before us, the district court found that further litigation in the United States could

serve no purpose other than to vex and harassthe defendants. The district court explicitly found, like

the Ninth Circuit before it, that no court in the United States would be convenient. The record fully

supports these findings. Federal courts have repeatedly urged the Villars' to sue in the Philippines.

Nonetheless, the Villars continue to bring these frivoloussuitsin the United States. The Villars seem

determined to pursue this abusive litigation in federal courts until ordered to stop. Under these

circumstances, it was appropriate for the district court to enjoin the Villars from bringing any future

litigation based on the underlying facts in this case, including future litigation in state courts.

G

Finally, we consider whether the district court erred when it sanctioned the Villars' attorneys

for making unreasonable arguments and for failing to make a reasonable inquiry into the facts.11 We

review the district court's Rule 11 sanctions to determine whether the district court abused its

discretion. Cooter & Gell v. Hartmax Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359
(1990); Thomas v. Capital Sec. Serv. Inc., 836 F.2d 866 (5thCir.1988) (en banc). The district court

found that the Villars' attorneys asserted illogical, unreasonable arguments and miscited case law.

 We hold that the district court did not abuse its discretion when it sanctioned the Villars'

attorneys. The Villars' attorneys made numerous frivolous arguments before the district court;

indeed, they continued to assert several of these arguments on appeal. In the district court they

argued that the alien defendants are subject to personal jurisdiction in Texas because they were the

"alter ego" of CMC. The facts in this case do not remotely support this contention. To bolster their

alter ego argument, they relied on Castleberry, 721 S.W.2d at 270, despite the fact that this case had

been legislatively overruled four years earlier. See footnote 8, supra. The Villars' attorneys also

argued that the district court should ignore our holding in Walker, 335 F.2d at 536, even though we

recently had reaffirmed that decision. Similarly, they argued that the district court should apply state

forum non convenienslaw notwithstanding our recent decisions clearly to the contrary in In re Crash

Disaster, 821 F.2d at 1147, and Nolan, 919 F.2d at 1068.

In addition, the Villars' attorneys relied heavily on the Runion affidavit even though it

contained blatant misrepresentations. The district court concluded that:

As noted above, the Runion affidavit, besides being wholly improper and unsatisfactory,

contains blatant misrepresentations of deposition testimony. At the very best, Plaintiffs'

counsel has relied on an easily discoverable falsehood and that should have been discovered

in the exercise of reasonable care and diligence. At worst, Plaintiffs' counsel has conspired

with Mr. Runion in a deliberate attempt to mislead the court.

This factual finding is not clearly erroneous and, thus, we must accept it. This factual finding alone

fully supports the district court's sanctions because, pursuant to Rule 11, an attorney must make a

reasonable inquiry into the facts before submitting a document to the court. See Thomas, 836 F.2d

at 873-874 (We held that attorneys have an affirmative obligation to conduct "a reasonable inquiry

into the facts which support the document.")

IV

For all of the foregoing reasons, we AFFIRM the decision of the district court.

AFFIRMED.
 

1This Court has consistently adhered to the policy that a panel may not overrule a prior panel's

decision, unless an intervening en banc or Supreme Court decision specifically or practically

overruled the earlier opinion. Umphlet v. Connick, 815 F.2d 1061, 1063 (5th Cir.1987). Here,

the majority attempts to overrule, not only past Fifth Circuit panel decisions, but also a Fifth

Circuit en banc decision. 

JOHNSON, Circuit Judge, concurring in part, dissenting in part:

This writer concurs in part III-A of the majority's opinion. However, in my view, the Court

should remand this case for the allowance of discovery on the jurisdiction and forum non conveniens

issues. By failing to reverse and remand, the majority—without explanation or authority1—reverses

well-settled and well-reasoned Fifth Circuit law. This dissent is therefore tendered.

The majority opinion statesthat "[t]he Villars also contend that the district court erred when

it denied them additional discovery." Villar, supra at ---- (emphasis added). However, the record,

the briefs, the district court's opinion and counsel for the parties, themselves, all acknowledge that

there has been absolutely no discovery in the case sub judice. While it is true that the parties engaged

in discovery with respect to a forum non conveniens issue ten years ago in a California case, it is

quite elementary that personal jurisdiction analysis and forum non conveniens analysis are completely

different.

Evaluating personal jurisdiction in Texas requires courts to review the relationship between

the defendant and the forum state to determine whether sufficient purposeful contacts exist and to

ensure that traditional notions of "fair play and substantial justice" would not be offended by haling

the defendant into court. Asahi Metal Industry Co. v. Superior Court of California, 480 U.S. 102,

109, 113, 107 S.Ct. 1026, 1030-31, 1033, 94 L.Ed.2d 92 (1987); Command-Aire Corp. v. Ontario

Mechanical Sales and Service Incorporated, 963 F.2d 90, 94 (5th Cir.1992).

However, in forum non conveniens cases, courts do not look at contacts between the

defendant and the state. The ultimate inquiry in forum non conveniens cases is convenience—not

minimum contacts and not fair play and substantial justice. Koster v. (American) Lumbermens

Mutual Casualty Co., 330 U.S. 518, 527, 67 S.Ct. 828, 833, 91 L.Ed. 1067 (1947); Command-Aire,

963 F.2d at 95; In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d

1147, 1163 (5th Cir.1987) (en banc ). With respect to forum non conveniens issues, courts are to
 

2

In analyzing the private interests courts are to consider: 1) the parties' access to sources of

proof, 2) the availability of compulsory process for obtaining the attendance of unwilling

witnesses, 3) the costs of obtaining the attendance of willing witnesses, 4) the ability to view the

premises, if necessary, and 5) the existence of other practical problems which may interfere with

expeditious and inexpensive judicial review of the case. Courts should also determine whether a

judgment, if entered, would be enforceable. In re Air Crash Disaster, 821 F.2d at 1162 (quoting

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1957)).

In analyzing the public interests, courts are to consider 1) the administrative

problems which flow from court congestion, 2) the interest in having localized

controversies resolved at home, 3) the interest in having a court which is familiar with the

applicable law to handle the case, and 4) the unfairness in burdening citizens with jury duty

in a case which is unrelated to the forum. Courts should also consider whether conflicts of

law issues will arise and whether foreign law applies. In re Air Crash Disaster, 821 F.2d

at 1162-63 (quoting Gulf Oil Corp., 330 U.S. at 508-09, 67 S.Ct. at 843). 

 

3

In Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, the United States

Supreme Court determined that discovery into jurisdictional matters is so important that a

defendant's failure to comply therewith allows the district court to sanction the defendant by

assuming that personal jurisdiction exists. 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982). 

The Court explained:

first determine whether a more convenient forum exists. If such a forum is available, courts are then,

and only then, to balance private interests with public interests.2 Piper Aircraft Co. v. Reyno, 454

U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981); Command-Aire, 963 F.2d at 95.

Based upon the factors considered in personal jurisdiction and forumnon conveniens analyses,

it should be patently clear that discovery on one issue is not tantamount to discovery on the other.

Indeed, the United States SupremeCourt acknowledged initsseminalforum non conveniens opinion,

Gulf Oil Corp. v. Gilbert, that forum non conveniens issues arise when courts, which actually have

jurisdiction over the parties, find that exercising that jurisdiction would cause substantial

inconvenience. 330 U.S. at 507, 67 S.Ct. at 842 ("a court may resist imposition upon its jurisdiction

even when jurisdiction is authorized"). Thus, even if the discovery conducted by the Villars were

recent—and there surelycan be no question but that ten-year-old discovery is, in no way, recent—the

forum non conveniens discovery conducted in California is wholly and completely insufficient for

properly determining whether the alien defendants are subject to personal jurisdiction in Texas.

Hence, the emperor is found out. He really has no clothes—the Villars were denied

jurisdictional discovery. It is now beyond dispute that discovery may be used for jurisdictional

purposes.3 Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 n. 13, 98 S.Ct. 2380, 2389, 57
Having put the issue [of personal jurisdiction] in question, petitioners did not have

the option of blocking the reasonable attempt of CBG [the plaintiff] to meet its

burden of proof.... Because of petitioners' [the defendants'] failure to comply with

the discovery orders, CBG was unable to establish the full extent of the contacts

between petitioners and Pennsylvania, the critical issue in proving personal

jurisdiction.

Id. at 709, 102 S.Ct. at 2107. 

 

4This Court has upheld the dismissal of cases on jurisdictional grounds when there has been no

discovery only when the plaintiff had opportunities to engage in jurisdictional discovery but chose

not to fully avail himself of that opportunity, Singletary v. B.R.X., Inc., 828 F.2d 1135, 1137-38

(5th Cir.1987), or when the plaintiffs' jurisdictional claims were frivolous. Wyatt v. Kaplan, 686

F.2d 276, 284 (5th Cir.1982); Washington v. Norton Manufacturing, Inc., 588 F.2d 441, 445

(5th Cir.1979). 

L.Ed.2d 253 (1978).

This Court has often dealt with jurisdictional discovery, and until today, FifthCircuit law was

well-settled that when a diligent plaintiffpresented a non-frivolous claimofjurisdiction and requested

jurisdictional discovery, the district court was required to allow that discovery.4 Blanco v. Carigulf

Lines, 632 F.2d 656, 657 (5th Cir.1980) (asserting that "[t]his court has held that where the record

left in doubt questions upon which jurisdiction could be based plaintiff ... had the right to employ

interrogatories to develop fully the necessary facts"); Skidmore v. Syntex Laboratories, Inc., 529

F.2d 1244, 1248-49 (5th Cir.1976) (After the plaintiffs had propounded and received responses to

184 interrogatories and after the plaintiffs had had eight monthsin which to engage in discovery, this

Court still held "that the district court acted too drastically in entering its order of dismissal without

giving the plaintiff a further opportunity for discovery."); Littlejohn v. Shell Oil Co., 483 F.2d 1140,

1146 (5th Cir.) (en banc ), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973)

(reversing the denial of jurisdictional discovery even though the plaintiff had agreed in writing that

discovery would not take place until after the district court ruled on the defendants' motions to

dismiss); Davis v. Asano Bussan Co., 212 F.2d 558, 564-65 (5th Cir.1954) (holding that "[t]he

plaintiff was not required to rely exclusively on affidavits furnished by the defendants for answer to

that question [of personal jurisdiction], but had a right to employ interrogatories to develop [the

jurisdictional question] fully " and asserting that "the district court ... should have received the

complete information called for by the interrogatories before entering final judgment " (emphasis
 

5Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 681 (1st Cir.1992); Edmond v. U.S. Postal

Service General Counsel, 949 F.2d 415, 425 (D.C.Cir.1991); Crane v. Carr, 814 F.2d 758

(D.C.Cir.1987); Eaton v. Dorchester Development, Inc., 692 F.2d 727, 729 (11th Cir.1982); 

Wells Fargo and Co. v. Wells Fargo Express Co., 556 F.2d 406, 431 n. 24 (9th Cir.1977); 

Lekkas v. Liberian M/V Caledonia, 443 F.2d 10, 11 (4th Cir.1971); Fraley v. Chesapeake and

Ohio Ry Co., 397 F.2d 1, 3 (3d Cir.1968); Surpitski v. Hughes-Keenan Corp., 362 F.2d 254, 255

(1st Cir.1966); Gleneagle Ship Management Co. v. Leondakos, 602 So.2d 1282, 1284

(Fla.1992); Hart Holding Co. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 540

(Del.Ch.1991); Amigo Foods Corp. v. Marine Midland Bank-New York, 39 N.Y.2d 391, 384

N.Y.S.2d 124, 126-27, 348 N.E.2d 581, 583 (1976); Peterson v. Spartan Industries, Inc., 33

N.Y.2d 463, 354 N.Y.S.2d 905, 908 and n. 2, 310 N.E.2d 513, 515 and n. 2 (1974); see also 4

JAMES W. MOORE ET AL., MOORE'S FEDERAL PRACTICE ¶ 26.56[6] (2d ed. 1991) (relating that

"[i]n cases in which jurisdiction depends upon complicated facts, however, it has been held that it

is error to grant a motion to dismiss without affording the plaintiff an opportunity for discovery"). 

added)). See Williamson v. Tucker, 645 F.2d 404, 414 (5th Cir.), cert. denied, 454 U.S. 897, 102

S.Ct. 396, 70 L.Ed.2d 212 (1981) (deciding, "It is true that the factual determinations decisive of a

motion to dismiss for lack of jurisdiction are within the court's power.... But still the district court

must give the plaintiff an opportunity for discovery and for a hearing " (emphasis added)); Chatham

Condominium Associations v. Century Village, Inc., 597 F.2d 1002, 1012 (5th Cir.1979) (deciding

that "dismissal for lack of subject matter jurisdiction prior to trial, and certainly prior to giving the

plaintiff ample opportunity for discovery, should be granted sparingly"); see also Singletary, 828

F.2d at 1137 (stating that "[i]n an appropriate case, we will not hesitate to reverse a dismissalfor lack

of personal jurisdiction, on the ground that the plaintiff was improperly denied discovery" (quoting

Wyatt, 686 F.2d at 283)).

The FifthCircuit is not the onlycourt which has determined that diligent plaintiffswho present

non-frivolous claims ofjurisdiction have a right to engage in jurisdictionaldiscovery. Such is the rule,

not only in other federal circuit courts, but also in a number of state courts.5

In this case, the question of jurisdiction was altogether unclear. The district court

acknowledged that GTO, an alien defendant, once maintained an office in Texas and that vessels

owned by one or more of the alien defendants pass through Texas ports. However, the court went

on to determine that since the record showed nothing more, it would dismiss all of the claims against

the alien defendants for lack of personal jurisdiction. However, a patent flaw exists in the district

court's, and therefore the majority's, logic: The record showed no other jurisdictional facts because
the district court prohibited the Villars from engaging in jurisdictional discovery.

This flaw also exists in the district court's and the majority's forum non conveniens analysis.

The majoritycorrectlystatesthat a prior forum non conveniens determination precludes a laterforum

non conveniens determination unless the plaintiff can point to facts which changed materially after

the initial determination. See Exxon Corp. v. Chick Kam Choo, 817 F.2d 307, 314 (5th Cir.1987),

rev'd on other grounds, 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988). The majority also

states that "[i]n the last ten years, the underlying facts have not materially changed." Villar, supra

at ----. However, this Court actually does not know whether the facts have changed materially. It

is true that the record reveals no such changes, but it is also true that, again, the plaintiffs were

prevented from making such a showing because the district court precluded any and all discovery in

this case. Nevertheless, the majority holds that the plaintiffs' failure to do that which the district court

prevented themfromdoing—finding and pointing out jurisdictionand forumnon conveniensfacts—is

their ultimate downfall.

In my view, the majority's holding countenances the resolution of contested jurisdiction

questions based upon conjecture, not fact. Justice Holmes, writing for the Supreme Court, advised

that when courts determine whether personal jurisdiction exists, "great caution should be used not

to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact."

McDonald v. Mabee, 243 U.S. 90, 91, 37 S.Ct. 343, 343-44, 61 L.Ed. 608 (1917) (emphasis added).

Nevertheless, the majority has thrown "caution," along with well-settled Fifth Circuit law, to the

wind. As this Court properly announced almost forty years ago, "[t]he clearing of court dockets is

one of the desiderata in the judicial function. But it should not be allowed to become a fetish for it

does not rank with the raison d'être of courts[ ]—the administration of justice based upon a full and

fair disclosure of the facts." Slagle v. United States, 228 F.2d 673, 679 (5th Cir.1956) (emphasis

added).

Today, the majority ignores Slagle and a host of other Fifth Circuit precedent. I, therefore,

respectfully dissent.