(caption unavailable)

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 93-4351
Summary Calendar
_____________________
ROBERT LANDRY, JR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA,
Represented by the Secretary of
Transportation, acting by and
through the Maritime Administrator, Et Al.,
Defendant-Appellee.
********************************
_____________________
No. 93-4443
Summary Calendar
_____________________
ROBERT LANDRY, JR.,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants-Appellees.
********************************

-- 1 of 18 --

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
2
_____________________
No. 93-4971
Summary Calendar
_____________________
ROBERT LANDRY, JR.,
Plaintiff-Appellant,
versus
AMERICAN FOREIGN SHIPPING CO.,
INC.,
Defendant-Appellee.
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Texas
(1:92-CV-264, 1:92-CV-549 & 1:92-CV-0542)
_________________________________________________________________
(March 29, 1994)
Before KING, DUHÉ and BARKSDALE, Circuit Judges.
PER CURIAM:*
These consolidated appeals all relate to claims asserted by
Robert Landry, Jr., arising out of personal injuries he allegedly
suffered while working in the cargo hold of the M/V CAPE CATAWBA.
I. BACKGROUND
A. FACTS

-- 2 of 18 --

3
The following facts are derived from Landry's complaints
filed at various times in federal district court.
On or about December 19, 1990, the vessel M/V CAPE CATAWBA
was berthed in the port at Beaumont, Texas, where it was
receiving cargo intended for United States military forces.
Landry's complaints indicate that the vessel was owned by the
United States and that American Foreign Shipping Co., Inc. (AFS),
was under contract with the United States to provide the crew to
man and operate the vessel. Landry, a longshoreman, was working
in the hold of the CAPE CATAWBA while it was in Beaumont. While
climbing a ladder from the hold, Landry alleges, he was struck by
a light cord being moved by a crew member of the vessel, became
tangled in the cord, and was pulled off the ladder and fell to
the deck, sustaining injuries on impact.
B. PROCEDURAL HISTORY
The procedural history of this case is complex. Landry
first filed a complaint in federal court on June 25, 1992, naming
as defendants the United States and AFS (the first-filed action).
In his complaint, Landry asserted claims based on the negligence
of the vessel and its crew. The record reflects that service of
process was not executed on the United States until October 13,
1992. The United States moved for dismissal on behalf of AFS
under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and
for dismissal on its own behalf under Rule 12(b)(1) on December
17, 1992. The United States argued that Landry's exclusive
remedy was against the United States under the Public Vessels Act

-- 3 of 18 --

4
(PVA), 46 U.S.C. App. §§ 781-89, and the Suits in Admiralty Act
(SAA), 46 U.S.C. App. §§ 741-52, and that the United States was
itself entitled to dismissal because Landry had failed to effect
"forthwith service" on the United States as required by the SAA,
46 U.S.C. App. § 742.
In the meantime, Landry had filed a second complaint
grounded on the same facts in federal court in the same federal
district on December 15, 1992 (the second-filed complaint). AFS
was the only named defendant in this complaint. On December 18,
1992, Landry filed still a third complaint in federal court in
the same federal district (the third-filed action), this time
naming the United States, AFS, John Doe (the crew member who
caused Landry's accident), and Lykes Bros. Steamship Co. (Lykes
Bros.). The third-filed action was consolidated with the first-
filed action on December 21, 1992.
On January 14, 1993, the district court hearing the two
consolidated cases issued a notice that it could treat the United
States' motion to dismiss AFS as a motion for summary judgment
and that it had accepted and would continue to accept matters
outside the pleadings for consideration. On March 1, 1993, the
court granted the United States' motion to dismiss AFS "either as
a motion to dismiss or as a motion for summary judgment." The
court also dismissed the United States without prejudice because
of Landry's 110-day delay in serving the United States. Finally,
the court severed Landry's third-filed action, directing that the
action would proceed under its former docket number. The March

-- 4 of 18 --

5
1, 1993, memorandum opinion and order is reported as Landry v.
United States, 815 F. Supp. 1000 (E.D. Tex. 1993). The appeal
from this order has been logged as No. 93-4351.
On March 11, 1993, the United States moved to dismiss AFS,
John Doe, and Lykes Bros. from the third-filed action under
Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). The
United States urged dismissal of AFS based on the court's March 1
dismissal of AFS with prejudice. The United States also urged
dismissal of John Doe because of the United States' inability to
identify that defendant, and dismissal of Lykes Bros. because
Lykes Bros. was not the owner, charterer, or owner pro hac vice
of the CAPE CATAWBA, nor was it a vendor or supplier of the
vessel. On March 16, 1993, the United States filed a motion for
summary judgment in favor of AFS, John Doe, and Lykes Bros. for
the same reasons as previously urged in the motion to dismiss.
On April 2, 1993, the district judge hearing Landry's
second-filed action ordered that the case be transferred and
consolidated with the remaining pending action (the third-filed
action). That same day, the court hearing the third-filed action
granted in part the United States' motion for summary judgment,
dismissing AFS and Lykes Bros. with prejudice. The court allowed
Landry additional time to file an amended complaint and to serve
the John Doe referred to in his complaint. That same day the
court gave notice that it could grant summary judgment for AFS
sua sponte in the second-filed action for the same reasons as had
been relied upon in the first-filed action. Landry filed a

-- 5 of 18 --

6
notice of appeal from the April 2 judgment, and this appeal has
been logged as No. 93-4443.
On May 11, 1993, the district court granted summary judgment
sua sponte in favor of AFS in the second-filed action,
eliminating AFS from the proceedings altogether. The court
further dismissed John Doe with prejudice due to Landry's failure
to identify that defendant. The court also severed the
proceedings, directing that the case would proceed under the
docket number of the third-filed action. Landry filed a notice
of appeal from the May 11 order, and this appeal has been logged
as No. 93-4971.
II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. That is, we review the evidence and inferences to be
drawn therefrom in the light most favorable to the nonmoving
party. Federal Deposit Ins. Corp. v. Dawson, 4 F.3d 1303, 1306
(5th Cir. 1993); Fraire v. City of Arlington, 957 F.2d 1268, 1273
(5th Cir.), cert. denied, 113 S. Ct. 462 (1992). Summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." FED. R. CIV. P. 56(c).

-- 6 of 18 --

7
III. ANALYSIS
A. THE FIRST-FILED ACTION
1. Dismissal of AFS with Prejudice
Before addressing the substance of the district court's
order granting the United States' motion to dismiss AFS with
prejudice, or, in the alternative, granting summary judgment in
favor of AFS, we review the legal backdrop of this case.
Section 781 of the PVA provides that a libel in personam in
admiralty may be brought against the United States for damages
caused by a "public vessel of the United States." 46 U.S.C. App.
§ 781. The PVA thus provides for a limited waiver of the United
States' sovereign immunity. Favorite v. Marine Personnel and
Provisioning, Inc., 955 F.2d 382, 385 (5th Cir. 1992). The PVA
also incorporates the provisions of the SAA to the extent that
those provisions are not inconsistent with the PVA. 46 U.S.C.
App. § 782; Williams v. Central Gulf Lines, 874 F.2d 1058, 1059-
60 (5th Cir. 1989), cert. denied, 493 U.S. 1045 (1990). The SAA
provides as follows:
[W]here a remedy is provided by this chapter it shall
hereafter be exclusive of any other action by reason of
the same subject matter against the agent or employee
of the United States or of any incorporated or
unincorporated agency thereof whose act or omission
gave rise to the claim.
46 U.S.C. App. § 745. This exclusivity provision is thus
incorporated into the PVA by operation of § 782. Williams, 874
F.2d at 1059-60; Domantay v. United States Dep't of the Navy, 785
F. Supp. 974, 975 (M.D. Fla. 1992). Thus, if the CAPE CATAWBA
was a "public vessel" within the meaning of the PVA and AFS was

-- 7 of 18 --

8
the "agent or employee" of the United States within the meaning
of the SAA, then Landry's exclusive remedy for injuries caused by
the CAPE CATAWBA or its crew is against the United States.
Favorite, 955 F.2d at 385, 388.
Landry does not attack the conclusion that the CAPE CATAWBA
was a public vessel within the meaning of the PVA. He vigorously
contests, however, the district court's conclusions (1) that
Landry's complaint on its face establishes that AFS was the agent
of the United States within the meaning of the SAA, and (2) that
the summary judgment evidence entitled AFS to summary judgment on
the agency issue. We will address the propriety of the summary
judgment first.
The concept of agency as embodied in the SAA embraces "any
instrumentality through and by which public vessels are
operated." Id. at 388 (citing Petition of United States, 367
F.2d 505, 510 (3d Cir. 1966), cert. denied, 386 U.S. 932 (1967)).
In Favorite, the United States was the bareboat charterer of the
USNS SEALIFT CARIBBEAN and contracted with various subsidiaries
of Marine Tranport Lines, Inc. (MTL), to provide the maintenance,
operations, and crew of the vessel. Id. at 384. We held that
the vessel was a public vessel within the meaning of the PVA and
that MTL was the agent of the United States within the meaning of
the SAA. Significant to our decision were the facts that MTL was
acting on the behalf of the United States and that MTL was
subject to the United States' control and direction. Id. at 388.
We noted also that the vessel was operated for a government

-- 8 of 18 --

9
purpose: the movement of Department of Defense petroleum products
worldwide. Id. The question, then, is whether the United
States' summary judgment evidence showed that there was no
genuine issue of fact with respect to the relationship between
the United States and AFS.
In connection with its motion to dismiss AFS, the United
States filed an affidavit by Ann T. Danzi, records custodian for
the Division of Marine Acquisition of the Maritime
Administration, United States Department of Transportation, to
the effect that the United States had owned the CAPE CATAWBA
since November 19, 1990, and that AFS had been the United States'
agent in operating the CAPE CATAWBA under a service agreement,
Agreement No. DTMA91-90-A-10010, also effective November 19,
1990. Attached to the affidavit is a duplicate of that service
agreement between the United States and AFS. The United States
also filed the affidavit of AFS President Harry W. Marshall, in
which Marshall attested that he had personal knowledge of the
agreement whereby
[AFS] served as General Agent for [the United States]
concerning the M/V CAPE CATAWBA and that the General Agency
Agreement was in effect during the time of [sic] the
Plaintiff's injury is alleged to have occurred.
Attached to the affidavit are five pieces of correspondence
between AFS and the United States Maritime Administration. Two
of the letters indicate that the CAPE CATAWBA was assigned to AFS
during 1988. The third letter, however, purports to assign the
CAPE CATAWBA to AFS under the general agency agreement as of
March 1, 1991SQafter Landry's accident.

-- 9 of 18 --

10
The district court relied on one other source of evidence as
establishing AFS's status as agent for the United States in
operating the CAPE CATAWBA. Landry's complaint in the third-
filed action affirmatively alleged that, at all pertinent times,
"defendant [AFS] provided or was responsible to provide the crew
which operated the vessel M/V CAPE CATAWBA," and, more
significantly, that at all pertinent times "defendant [AFS] was
agent and/or operator of the vessel and was under contract to the
United States to provide the crew which operated the vessel M/V
CAPE CATAWBA." Because the third-filed action had been
consolidated with the first-filed action, the district court
considered Landry's allegations in the third-filed complaint as
judicial admissions effective in the first-filed action as well.
Landry, 815 F. Supp. at 1004.
Landry points out that the agreement, although designating
AFS as the "general agent" of the United States, did not
specifically assign the CAPE CATAWBA to the care of AFS. Landry
also directs our attention to the formalities required by the
agreement in order for an assignment of a vessel to AFS to occur:
b. The United States, after consultation with [AFS], will
assign or delete the Vessel by name and location. The
assignments and deletions shall be in writing, either by
letter or by cable or telegram confirmed by letter, and
addressed to [AFS] . . . . [AFS] will execute an acceptance
of the letter and return two original counterparts to the
United States. Each assignment and deletion shall
constitute a formal modification of this Agreement.
In Landry's view, the affidavits from Danzi and Marshall lose
their probative force because the United States never introduced

-- 10 of 18 --

11
a written assignment of the CAPE CATAWBA to the charge of AFS
effective prior to Landry's accident.
We agree that AFS was entitled to summary judgment based on
this summary judgment record, despite the lack of documentary
evidence proving that the CAPE CATAWBA had officially been
assigned to AFS's charge. The record is similar to the one we
reviewed in Doyle v. Bethlehem Steel Corp., 504 F.2d 911 (5th
Cir. 1974). Doyle was a shipyard worker who was injured on the
USNS YUKON, a vessel owned by the United States, and he brought
suit against Mathiasen's Tanker Industries, Inc. (Mathiasen's),
the contractual operator of the vessel. Id. at 912. Mathiasen's
moved for and received summary judgment based on the exclusivity
provision of the SAA. Id. Doyle argued before this court that
summary judgment was inappropriate because the contract between
the United States and Mathiasen's did not specifically name the
YUKON; this omission, he argued, created a genuine issue of fact
regarding Mathiasen's status as agent of the United States. Id.
at 913. We disagreed, however, giving credence to the
depositions of the YUKON's chief officer and Mathiasen's port
engineer, which established that Mathiasen's operated the YUKON
for the United States Navy. Id. at 913-14. Because Doyle
submitted no contrary evidence on this issue, we affirmed summary
judgment in favor of Mathiasen's. Id. at 914.
Landry's argument that the Best Evidence Rule should have
precluded the district court from considering the affidavit
evidence misses the mark. The Rule requires production of an

-- 11 of 18 --

12
original writing, recording, or photograph when the contents of
the writing, recording, or photograph are sought to be proved.
FED. R. EVID. 1002. As the district court observed, the issue in
the instant case is not the content of any writing or document
but rather the existence of an agency relationship between the
United States and AFS within the meaning of Doyle and Favorite.
Landry, 815 F. Supp. at 1005. To be sure, production of a
written assignment of the CAPE CATAWBA to the AFS's charge would
have been highly probative of the existence of such an agency
relationship. The issue to be proved, however, was not the
content of such a writing, but whether AFS was operating the CAPE
CATAWBA on behalf of the United States at the time of Landry's
accident. See Favorite, 955 F.2d at 388; Doyle, 504 F.2d at 914.
The affidavit evidence was admissible with respect to that issue.
Landry argues that we should draw a negative inference from
the United States' failure to produce a written assignment of the
CAPE CATAWBA to the care of AFS. Any such inference, however, is
more than offset by the other evidence considered by the district
court: Landry's affirmative assertions in his pleadings that AFS
was responsible for operating the CAPE CATAWBA at the time of his
accident, and that AFS was responsible specifically to the United
States to perform this function. We have repeatedly stated that
factual assertions made in a party's pleadings constitute
judicial admissions that are ordinarily binding on that party.
Campbell v. Sonat Offshore Drilling, Inc., 979 F.2d 1115, 1119
(5th Cir. 1992); White v. ARCO/Polymers, Inc., 720 F.2d 1391,

-- 12 of 18 --

13
1396 (5th Cir. 1983). In the instant case, Landry has pleaded
the very fact that we relied upon in Doyle as establishing agent
status: that AFS operated the CAPE CATAWBA for the United States.
Landry has not demonstrated to this court why this admission
should not constitute summary judgment evidence against him.
Taken as a whole, the evidence consisting of the two
affidavits and assertions from Landry's pleadings establishes
that AFS was the agent of the United States in operating the CAPE
CATAWBA. Because Landry did not raise a genuine issue of
material fact regarding AFS's status as agent, we affirm the
grant of summary judgment in favor of AFS in the first-filed
action. Accordingly, we do not reach the merits of the court's
Rule 12(b)(6) dismissal of AFS.
2. Dismissal of the United States
for Lack of "Forthwith" Service
The court below dismissed the United States from the first-
filed action without prejudice for lack of subject-matter
jurisdiction because Landry delayed in serving the United States
for 110 days. Landry, 815 F. Supp. at 1002-03. The court based
its decision on the SAA, 46 U.S.C. App. § 742, which provides
that a plaintiff who brings a libel in personam against the
United States "shall forthwith serve a copy of his libel on the
United States attorney" for the appropriate district. We have
stated that failure to comply with the forthwith service
requirement of § 742 is a jurisdictional defect that divests the
federal district court of subject-matter jurisdiction in the
controversy. Anh Thi Kieu v. United States, No. 91-4596, slip

-- 13 of 18 --

14
op. at 3 (5th Cir. Jan. 21, 1992) (unpublished opinion) (citing
Amella v. United States, 732 F.2d 711, 713 (9th Cir. 1984)).
The United States contends, and we agree, that we need not
review the district court's dismissal on the merits because the
issue of forthwith service has become moot. Landry's third-filed
complaint alleges the same cause of action against the United
States as does his first, and we note that the third-filed
complaint was filed and served on the United States attorney on
the same day, December 18, 1992, avoiding any "forthwith service"
problem. Consequently, the United States remains a defendant in
Landry's action. "If a dispute has been resolved or if it has
evanesced because of changed circumstances . . . it is considered
moot." American Medical Ass'n v. Bowen, 857 F.2d 267, 270 (5th
Cir. 1988). Landry does not show that any consequences, negative
or otherwise, have resulted or will result from the dismissal, or
that reversal of the dismissal will at all affect the status quo.
Because the dismissal of the United States from the first-filed
action does not now present an actual case or controversy, we may
not review its propriety on appeal.
B. THE THIRD-FILED ACTION
We turn next to Landry's third-filed action, which was the
next matter disposed of by the court below. The court first
granted summary judgment in favor of AFS and Lykes Bros. by order
entered April 2, 1993. Judgment was granted in favor of AFS for
the same reasons the court cited in its prior order; judgment was
granted in favor of Lykes Bros. on the basis of Landry's

-- 14 of 18 --

15
admission that Lykes Bros. had nothing whatsoever to do with the
CAPE CATAWBA. On May 11, 1993, the district court also dismissed
the John Doe defendant with prejudice because Landry had failed
to identify and serve John Doe within the time the court had
originally allotted at Landry's request.
With respect to the district court's disposal of the third-
filed action, Landry presses into service mostly the same
arguments that he relies upon in conjunction with the first-filed
action. He also relies upon the United States' responses to his
requests for admissions, responses that Landry himself admits
were not before the district court at the time it made its April
2, 1993, ruling. In these responses, the United States admitted
that "[i]n order for a general agent to be serving as general
agent with regard to a given vessel, the United States requires a
written assignment of that vessel to the general agent." Landry
neglects to point out that, in the same responses, the United
States denied that "[o]n December 19, 1990, a specific written
assignment of M/V CAPE CATAWBA to American Foreign Shipping Co.,
Inc. was not in force and effect."
Even if these admissions by the United States would have
sufficed to defeat summary judgment in favor of AFS (an
assumption that appears to us to be contrary to fact), these
responses are not a part of the record on appeal, nor were they a
part of the summary judgment record before the district court
when it entered its April 2, 1993, ruling. We have noted that
materials not presented to the district court for consideration

-- 15 of 18 --

16
in connection with a summary judgment motion are never properly
before this court on appeal. Fields v. City of South Houston,
922 F.2d 1183, 1188 (5th Cir. 1991); see also Skotak v. Tenneco
Resins, Inc., 953 F.2d 909, 915 (5th Cir.) ("[T]his court, for
obvious reasons, will not consider evidence or arguments that
were not presented to the district court for its consideration in
ruling on the motion [for summary judgment]."), cert. denied, 113
S. Ct. 98 (1992). Likewise, we are barred from considering on
appeal any filings that are outside the record on appeal; this
rule applies even to matters that are attached to briefs or
included in "record excerpts." GHR Energy Corp. v. Crispin Co.
Ltd. (In re GHR Energy Corp.), 791 F.2d 1200, 1201-02 & n.2 (5th
Cir. 1986).
The third-filed action thus comes to us indistinguishable in
form and substance from the first-filed action. For the same
reasons that summary judgment in favor of AFS was appropriate in
the first-filed action, we conclude that summary judgment in
favor of AFS was also appropriate in the third-filed action.
In connection with the third-filed action, Landry also
challenges the district court's dismissal of the John Doe
defendant with prejudice. He contends that his notice of appeal,
filed on April 21, 1993, divested the district court of
jurisdiction over the matter and so deprived the court of the
authority to dismiss John Doe with prejudice on May 11, 1993.
The United States responds that the district court's judgment was
a final judgment only as to AFS and Lykes Bros. and that this

-- 16 of 18 --

17
summary judgment was an appealable interlocutory order under 28
U.S.C. § 1292(a)(3) (conferring appellate jurisdiction over
"[i]nterlocutory decrees . . . determining the rights and
liabilities of the parties to admiralty cases in which appeals
from final decrees are allowed"). If an appeal is allowed from
an interlocutory order, the district court may proceed with
matters not involved in the appeal. Garcia v. Burlington N. R.R.
Co., 818 F.2d 713, 721 (10th Cir. 1987); Taylor v. Sterrett, 640
F.2d 663, 668 (5th Cir. Unit A March 1981).
Landry's contention that the district court lacked
jurisdiction to dismiss John Doe with prejudice is thus without
merit.
C. THE SECOND-FILED ACTION
Finally we come to the action that Landry filed solely
against AFS. The district court granted summary judgment sua
sponte in favor of AFS on May 11, 1993, based on the same reasons
that it cited in support of the two prior judgments in favor of
AFS. At the same time, the court severed the second-filed action
from the third-filed action, permitting the latter to proceed
with the United States as the only defendant. Landry filed his
notice of appeal from the summary judgment on June 17, 1993.
We raise matters concerning our own jurisdiction sua sponte.
See Stewart v. Lubbock County, 767 F.2d 153, 155 n.3 (5th Cir.
1985) ("[T]his Court could and should raise sua sponte any
questions concerning jurisdiction in matters properly before this
Court."), cert. denied, 475 U.S. 1066 (1986). A timely notice of

-- 17 of 18 --

18
appeal is a mandatory prerequisite to the exercise of appellate
jurisdiction. Resolution Trust Corp. v. Northpark Joint Venture,
958 F.2d 1313, 1316 (5th Cir. 1992), cert. denied, 113 S. Ct. 963
(1993). Unless the United States or an officer or agency thereof
is a party, a notice of appeal must be filed within thirty days
after the date of the order or judgment appealed from. FED. R.
APP. P. 4(a)(1). Landry did not file his notice of appeal within
thirty days of the judgment in favor of AFS in the second-filed
action. Although the second-filed action was consolidated with
the third-filed action, to which the United States was a party,
the district court severed the two actions simultaneously with
the judgment now complained of. The thirty-day time limit for
filing a notice of appeal thus applied to Landry in connection
with the disposition of the second-filed action. Because Landry
did not file a timely notice of appeal from the summary judgment
in favor of AFS in the second-filed action, we lack jurisdiction
and must dismiss. See Nelson v. Foti, 707 F.2d 170, 171 (5th
Cir. 1983) ("[A] timely notice of appeal is a mandatory
precondition to the exercise of our jurisdiction.").
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgments of the
district court in Nos. 93-4351 and 93-4443. We DISMISS Landry's
appeal in No. 93-4971.

-- 18 of 18 --