United States Court of Appeals

Fifth Circuit

FILED

August 29, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 05-30734

JOSELITO MADRIAGA LIM, on behalf of himself and all other current

and former employees of Offshore Specialty Fabricators, Inc.

similarly situated; ADELITO M. AGANON; RICHARD AGCAOILI; LUIS

AGNABO; ANTONIO P. ALCANTARA; ET AL, 

Plaintiffs-Appellants,

versus

OFFSHORE Specialty FABRICATORS INC.,

Defendant-Appellee.

Cons./w

Case No. 05-30736

BIENVENIDO BALBIN; EDMUNDO BEBAYO; ROMEO COGOLLO; CEFERINO 

DURANA; REYNALDO FERNANDEZ; FRANSLIE GULLE; RENATO LATIZA;

REYNALDO SACDALAN; JOEL SORONIO; ARLIE TALADUCON, JR.; ROLANDO

TOLENTINO,

Plaintiffs-Appellants,

versus

OFFSHORE Specialty FABRICATORS INC.,

Defendant-Appellee.

Appeals from the United States District Court 

for the Eastern District of Louisiana

(2:03-CV-2231)

Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit

Judges.
* 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this opinion should not be published and is not precedent except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.

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PER CURIAM:*

In June 2005, our court vacated the district court’s denial of

Offshore Specialty Fabricators’ (OSFI) motions to dismiss and

“REMANDED to district court for further proceedings consistent with

[the] opinion”. Lim v. Offshore Specialty Fabricators, Inc. (Lim

I), 404 F.3d 898, 908 (5th Cir.), cert. denied, 126 S. Ct. 365

(2005). Plaintiffs–Appellants (Lim) challenge the district court’s

dismissing this action, on remand, for improper venue, pursuant to

Federal Rule of Civil Procedure 12(b)(3). AFFIRMED.

I.

In 2002, Lim filed an opt–in collective action against his

employer, OSFI, “claiming violations of the minimum wage and

maximum hour (overtime) requirements of the Fair Labor Standards

Act, 29 U.S.C. § 20 et seq. (FLSA)”. Id. at 900. Lim’s employment

contract included an arbitration clause, as mandated by the

Philippine Overseas Employment Administration, requiring all

employment claims be resolved through arbitration in the

Philippines. Id. Further, the contract was covered by the

Convention on the Recognition and Enforcement of Foreign Arbitral

Awards, 10 June 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330

U.N.T.S. 38, reprinted in 9 U.S.C.A. § 201 (Convention). Id. In

response, “OFSI moved to dismiss [the action], claiming: the
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[contract] require[s] arbitration in the Philippines; and the

Convention ... requires district court enforcement of the

arbitration clause”. Id.

The district court denied that motion, holding the arbitration

clause violated Louisiana public policy. Id. at 901. In Lim I,

however, our court reversed and remanded for further proceedings,

holding arbitration was required.

On remand, the district court in May 2005 dismissed the

action. That June, it denied Lim’s motion to reconsider.

II.

Lim claims the district court should have: retained

jurisdiction “pursuant to the provisions of the Convention[;] given

the plaintiffs an opportunity to test the sufficiency of ... the

Phillippines as a forum for the arbitration of their wage and hour

claims[;] and, if found sufficient, should have stayed the

proceedings and ordered the parties to arbitrate the claims”.

Accordingly, he claims the court failed to conduct the “further

proceedings” required by Lim I by dismissing the action instead of

retaining limited jurisdiction. OFSI responds that the court

properly dismissed the action in response to Lim I. We review de

novo. See Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 35

(5th Cir. 1997) (enforceability of forum-selection clause reviewed

de novo).
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Lim I held the district court was not the proper venue for Lim

to file his claims. Contrary to Lim’s contentions, the district

court on remand did not fail to conduct “further proceedings”; the

Rule 12(b)(3) dismissal was the type of proceeding Lim I

contemplated. Therefore, the district court did not err by

dismissing this action for improper venue without retaining

jurisdiction. See Mitsui, 111 F.3d 33 (affirming district court’s

dismissal based on forum-selection clause where court did not

retain jurisdiction); Assetworks, Inc. v. City of Cincinnati, 2003

U.S. Dist. LEXIS 23877, at *3 (W.D. Tex. 31 Mar. 2003) (adopting

magistrate’s recommendation to dismiss for improper venue, without

retaining jurisdiction).

III.

For the foregoing reasons, the judgment is

AFFIRMED.