Swiber Marine Mexico, S.A. De C.V. v. Jensen et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SWIBER MARINE MEXICO, S.A. DE C.V., §
Plaintiff, §
§
v. § CIVIL ACTION NO. 4:25-CV-01800
§
JIM JENSEN AND DAN-BUNKERING §
(AMERICA) INC., §
Defendants. §
MEMORANUDM AND RECOMMENDATION
This maritime case is before the Court on Plaintiff’s Motion to Remand (ECF
16) and Defendants’ Motion to Dismiss (ECF 22). The Court recommends the
Motion to Remand be denied and addresses the Motion to Dismiss in a separate
Memorandum and Recommendation.1
I. Factual and Procedural Background
This dispute began when Ranger Offshore, a Houston-based offshore
construction company, did not pay for $405,999.01 of fuel purchased on September
11, 2018 from Defendant Dan-Bunkering (America) Inc. (D-B) for delivery to an
offshore support vessel, the M/V Swiber ADA (Vessel). Plaintiff, Swiber Marine
Mexico S.A. De C.V. (Swiber Marine), represents in this case that it owns the
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act,
and Federal Rule of Civil Procedure 72. ECF 19.
United States District Court
Southern District of Texas
ENTERED
December 09, 2025
Nathan Ochsner, Clerk
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Vessel. ECF 1-3 ¶ 5.1. On January 28, 2020, D-B filed a lawsuit in federal court to
recover payment from the entity it believed owned the Vessel at the time, Swiber
Offshore Mexico S.A. de C.V. (Swiber Offshore). See Dan Bunkering (America),
Inc. v. Swiber Offshore Mexico et al., Civil Action No. 4:20-cv-0321 (Case I).
Swiber Offshore moved to dismiss the federal action for lack of personal
jurisdiction. Id. (ECF 40; ECF 60). On September 2, 2020, prior to the court’s
jurisdictional ruling and before Swiber Offshore filed an answer, D-B filed a Notice
of Dismissal without prejudice pursuant to Federal Rule of Civil Procedure
41(a)(1)(A)(i). Id. (ECF 62).
D-B instituted proceedings in Mexico and caused the Vessel to be arrested in
Mexico on September 11, 2020 for the alleged non-payment for fuel (Case II). ECF
28-1 ¶¶ 5.4, 5.7. Swiber Offshore filed a counterclaim against D-B in the Mexican
proceeding for damages from the wrongful seizure, essentially the same claim for
damages that Swiber Marine makes in this case. On April 17, 2024, the Mexican
Court dismissed Swiber Offshore’s counterclaim for lack of prosecution. ECF 24 at
10.
Meanwhile, before the Mexican proceedings had finally concluded, Swiber
Offshore filed a lawsuit against D-B in Texas state court on November 2, 2022
seeking recovery for the allegedly wrongful arrest of the Vessel. See Swiber
Offshore Mexico S.A. de C.V. v. Dan-Bunkering (America) Inc., Cause No. 2022-
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72317 in the 270th District Court, Harris County (Case III). In January 2025, Swiber
Offshore voluntarily dismissed Case III without prejudice under a tolling agreement
with D-B that extended the statute of limitations on the parties’ claims to April 18,
2025. ECF 17-5. Neither Swiber Marine nor Jim Jenson, the former CEO of D-B,
are parties to the Tolling Agreement. Id.
Two days prior to expiration of the tolling agreement, on April 16, 2025,
Swiber Marine initiated a lawsuit against D-B, Swiber Marine Mexico, S.A. de C.V.
v. Dan-Bunkering (America), Inc., Cause No. 2025-26931 in the 55th District Court,
Harris County (Case IV). The same day, D-B removed Case IV to federal court,
where it was assigned to District Judge Charles Eskridge as Case No. 4:25-cv-1763.
The next day, on April 17, 2025, Swiber Marine voluntarily dismissed Case IV.
On April 18, 2025, the last day of the tolled limitations period, Swiber Marine
again filed a case in state court Harris County. D-B promptly removed the case to
federal court, where it was assigned to District Judge George Hanks as Case No.
4:25-cv-1800 (Case V). ECF 1. Although this case is based on events that occurred
over five years ago and is the fifth legal proceeding to arise from those events, it,
Case V, is the first to name D-B’s former employee, Jim Jenson, as a party.
Plaintiff’s Motion to Remand (ECF 16) and Defendant’s Motion to Dismiss
(ECF 22) have been fully briefed and are ripe for disposition. Each party argues its
Motion should be considered first.
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II. Order of Consideration
In general, “a federal court . . . may not rule on the merits of a case without
first determining that it has jurisdiction over the category of claim in suit (subject-
matter jurisdiction) and the parties (personal jurisdiction).” Sinochem Int'l Co. v.
Malaysia Int'l Shipping Corp., 549 U.S. 422, 430–31 (2007) (emphasis added).
However, a district court “may dispose of an action by a forum non conveniens
dismissal, bypassing questions of subject-matter and personal jurisdiction, when
considerations of convenience, fairness, and judicial economy so warrant.” Id. at
432. The Fifth Circuit recognizes that district courts have leeway to choose the least
burdensome of multiple threshold grounds for dismissal. Env't Conservation Org.
v. City of Dallas, 529 F.3d 519, 525 (5th Cir. 2008) (citing Sinochem, 549 U.S. at
432); Sangha v. Navig8 ShipManagement Priv. Ltd., 882 F.3d 96, 100 (5th Cir.
2018) (finding district court did not abuse its discretion by deciding personal
jurisdiction and forum non conveniens before subject matter jurisdiction).
Defendants’ Motion to Dismiss seeks dismissal with prejudice on the merits
based on res judicata. See ECF 22. Plaintiff’s Motion to Remand challenges the
Court’s subject matter jurisdiction. See ECF 16. Because the Court’s subject matter
jurisdiction in this case depends entirely on whether Plaintiff improperly joined
Jenson, the Court finds it prudent to consider Plaintiff’s Motion to Remand first.
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Defendants’ Motion to Dismiss will be addressed in a separate Memorandum and
Recommendation.
III. Plaintiff’s Motion to Remand
A. Legal Standards for Improper Joinder
When a plaintiff sues a defendant whose presence in the case destroys
complete diversity, removal is proper only if the removing party shows that the
plaintiff improperly joined the non-diverse defendant for the purpose of defeating
federal jurisdiction. Improper joinder can be established by showing (1) actual fraud
by the plaintiff in the pleading of jurisdictional facts, or (2) the inability of the
plaintiff to state a claim against the non-diverse party in state court. Alviar v. Lillard,
854 F.3d 286, 289 (5th Cir. 2017).
To establish improper joinder under the second prong, the defendant
must demonstrate ‘that there is no possibility of recovery’ against the
in-state or non-diverse defendant, ‘which stated differently means that
there is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state [or non-diverse]
defendant.’
Id. (citing Smallwood v. Illinois Cent. R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (en
banc)). District courts initially conduct a Rule 12(b)(6)-type analysis to determine
whether the plaintiff has stated a claim against the non-diverse party. However, even
if the plaintiff has stated a claim, if discrete facts outside the pleadings would
determine whether joinder is improper, the district court has discretion to pierce the
pleadings and conduct a summary inquiry. Id.
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B. Analysis of Joinder of Jenson
The Court finds under a Rule 12(b)(6) analysis that Jenson has been
improperly joined in this action because Plaintiff’s pleading fails to state a plausible
claim for relief against him. In addition, considering the Tolling Agreement attached
to Plaintiff’s Motion to Remand (ECF 17-5), the Court concludes the claims against
Jenson are time-barred. Finally, there is no reasonable basis to predict that Jenson
is subject to personal jurisdiction in Texas.
1. Lack of Plausible Factual Allegations
Plaintiff asserts a cause of action for wrongful seizure under general maritime
law against both D-B and Jenson. ECF 1-2 at 8; ECF 16 at 4. Jenson was the CEO,
President, and Managing Director of D-B at the time of the Vessel seizure in Mexico
in September 2020. ECF 1-2, ¶ 3.2; ECF 16 at 11. Plaintiff pleads that Jenson made
the decision to pursue seizure the vessel on behalf of D-B and submitted fraudulent
facts to the Mexican Court regarding D-B’s lien on the vessel. Id. ¶¶ 5.1, 5.8, 5.9;
ECF 16 at 12. Plaintiff also alleges the seizure of the Vessel “was ultimately
determined by the Mexican Court to have been improper,” “Defendants knew there
was no bona fide claim of a maritime lien” on the Vessel at any time, “Defendants
acted with bad faith, malice, negligence and gross negligence,” and the wrongful
seizure was the “proximate case of Plaintiff’s damages.” ECF 16 at 12 (citing ECF
1-2 ¶¶ 6.1, 6.3).
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Plaintiff’s allegation that Jenson made the decision on behalf of D-B to seize
the vessel does not state a claim for individual liability for D-B’s corporate act.
Plaintiff fails to allege that Jenson misused the corporate form to act in his own
interest. See Castleberry v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986) (explaining
that under Texas law, “[t]he corporate form normally insulates shareholders,
officers, and directors from liability for corporate obligations; but when these
individuals abuse the corporate privilege, courts will disregard the corporate fiction
and hold them individually liable.”). Plaintiff does not allege that Jenson breached
an independent duty of care owed to Plaintiff. Aubrey v. Wal-Mart Stores Texas,
LLC, No. CV H-23-4142, 2024 WL 83510, at *2 (S.D. Tex. Jan. 8, 2024)
(recognizing that under Texas law, a corporate officer can be liable for his own
negligence when the employee “owes an independent duty of reasonable care to the
injured party apart from the employer's duty”). Plaintiff alleges Jenson knew or
should have known that D-B did not have a valid lien on the Vessel. However,
Plaintiff fails to allege plausible facts that provide any basis for liability against
Jenson individually for the decision to seize the Vessel. In other words, there is no
reasonable basis to predict that Plaintiff would succeed in state court on its claim
against Jenson individually for wrongful seizure of the Vessel and he was improperly
joined in the suit.
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2. Untimeliness
Even if Plaintiff could plead sufficient facts to state claim against Jenson
individually, all potential claims against Jenson are time-barred. As noted above,
the Vessel seizure took place almost five years before this suit was filed. Neither
Swiber Marine nor Swiber Offshore sued Jenson in any prior case. Swiber Marine
argues that despite this delay its claim is timely pursuant to the parties Tolling
Agreement, or alternatively, that the claim is timely under the doctrine of laches.
Both arguments fail.
Swiber Offshore and D-B acknowledged the impending expiration of the
statute of limitations when they entered a Tolling Agreement on January 27, 2025,
tolling the limitations period on their claims from November 2, 2022 through April
18, 2025. ECF 17-5 ¶ 1. The Tolling Agreement expressly binds Swiber Offshore,
Dan-Bunkering, and “their parents, subsidiaries, affiliates, officers, employees,
agents, attorneys, successors, and assigns.” Id. ¶6. Swiber Marine, which is not a
party to the Tolling Agreement but is an affiliate of Swiber Offshore, filed this suit
on April 18, 2025. ECF 1-2. Jenson’s employment with Dan-Bunkering ended in
August 2024, several months before execution of the Tolling Agreement. ECF 17-
3 at 1.
As a general rule, a contract is not enforceable against a non-party under Texas
law. See Twin Vill. Mgmt., LLC v. Fed. Ins. Co., No. 1:22-CV-01111-ADA, 2023
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WL 4093404, at *4 (W.D. Tex. June 19, 2023) (citing Ibe v. Jones, 836 F.3d 516,
524 (5th Cir. 2016), report and recommendation adopted, No. 1:22-CV-01111-
ADA, 2023 WL 4842452 (W.D. Tex. July 28, 2023). The party seeking to enforce
the contract bears the burden to prove an exception to the general rule. Id. Some
exceptions to the general rule recognized in the Fifth Circuit include “(1)
incorporation by reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable
estoppel, and (6) third-party beneficiary.” Weatherford Int'l, LLC v. Binstock, 452
F. Supp. 3d 561, 570 (S.D. Tex. 2020) (quoting G.T. Leach Builders, LLC v.
Sapphire V.P., LP, 458 S.W.3d 502, 524 (Tex. 2015)).
Swiber Marine argues that Jenson, a one-time officer, employee, or agent of
the D-B, is subject to and bound by the express terms of the Tolling Agreement.
However, it is undisputed that Jenson was not an officer, employee, or agent of D-
B at the time the parties executed the Tolling Agreement. Swiber Marine provides
no authority to support a former employer’s ability to bind a former employee to a
contract entered into by the former employer. The Tolling Agreement did not toll
the statute of limitations on Swiber Marine’s claims against Jenson, and those claims
are time-barred.
Plaintiff argues its claim against Jenson is timely notwithstanding the Tolling
Agreement because no statute of limitations for wrongful seizure exists under
general maritime law and therefore, timeliness must be judged by the doctrine of
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laches. ECF 16 at 15-16 (citing The Key City, 81 U.S. (14 Wall.) 653, 660, 20 L.
Ed. 896 (1871)). Laches is an equitable doctrine which, under maritime law, “is a
complete defense to the action irrespective of whether the analogous state
[prescriptive period] has run.” Clovelly Oil Co., LLC v. BTB Ref., LLC, No. CV 17-
14435, 2022 WL 1062999, at *2 (E.D. La. Apr. 8, 2022) (citing Mecom v. Levingston
Shipbuilding Co., 622 F.2d 1209, 1215 (5th Cir. 1980)). If the analogous state
limitation period has expired, courts presume the passage of time has caused a
substantial detriment to the defendant. Barrois v. Nelda Faye, Inc., 597 F.2d 881,
885 (5th Cir. 1979) (citing McMahon v. Pan American World Airways, Inc., 297
F.2d 268, 270 (5th Cir. 1962) and Vega v. The Malula, 291 F.2d 415, 416 (5th Cir.
1961)). Therefore, the plaintiff must overcome the presumption that the action is
barred by laches by showing excusable delay or lack of prejudice. Barrois v. Nelda
Faye, Inc., 597 F.2d 881, 885 (5th Cir. 1979) (stating that, in order to invoke the
defense of laches, the Fifth Circuit has “consistently found that the plaintiff bears
the burden of showing excusable delay or lack of prejudice to the defendant.”).
“[I]nvocation of the [laches] doctrine is addressed to the sound discretion of the trial
court.” Goodwyn v. Dredge Ginger Ann, 342 F.2d 197, 197 (5th Cir. 1965).
Defendant contends that the most analogous limitations period is Texas’s one-
year period for malicious prosecution. TEX. BUS. & COM. CODE § 16.002.
Alternatively, Defendant proposes the Texas two-year period governing torts under
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TEX. BUS. & COM. CODE § 16.003, or the maximum two-year period under Mexican
law. ECF 27-28. Plaintiff does not suggest another analogous statute of limitations.
See generally ECF 16; ECF 26. Thus, under any proposed analogous statute, the
limitations period expired by 2023, well before this case was filed in April 2025.
Therefore, the claim is presumed to be untimely and Plaintiff bears the burden to
explain the delay and negate any assertion of prejudice. Barrois, 597 F.2d at 885.
Plaintiff fails to meet either burden.
Plaintiff premises its claim for Jenson’s individual liability on Jenson’s
signing of affidavits in 2020 to support the Vessel seizure. ECF 16 at 11-12; ECF
8. Therefore, Plaintiff has known of Jenson’s role in the case since at least 2020.
Plaintiff has had possession of the discovery responses it claims confirm Jenson’s
involvement since May 2023. ECF 26-1. Yet, Plaintiff offers no explanation for
waiting until April 18, 2025, coincidentally the day after D-B removed Case IV to
federal court, to join Jenson.
In addition to having no explanation for the delay, Plaintiff has not negated
the existence of prejudice. The events giving rise to this case occurred over seven
years ago and the Mexico litigation for which Jenson is targeted was filed
approximately five years ago. Jenson has not been employed by D-B since August
2024. Surely time and intervening events have resulted in fading memories and even
the destruction of evidence, both of which cause prejudice. See Clovelly Oil Co.,
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LLC, 2022 WL 1062999, at *3 (stating “‘loss of records, destruction of evidence,
fading memories, or unavailability of witnesses may constitute prejudice sufficient
to bar a claim under laches” (citation omitted)). The Court concludes that Plaintiff’s
claim against Jenson is barred by laches, eliminating any reasonable probability that
Plaintiff could succeed against Jenson in state court.
3. Lack of Personal Jurisdiction
Finally, a serious question exists as to whether any court in Texas can exercise
personal jurisdiction over Jenson, a resident of Denmark. Courts in Texas may
exercise personal jurisdiction over a nonresident when doing so is authorized by the
Texas long-arm statute and is consistent with federal due process guarantees.
Luciano v. SprayFoamPolymers.com, LLC, 625 S.W.3d 1, 8 (Tex. 2021); Pervasive
Software Inc. v. Lexware GmbH & Co. KG, 688 F.3d 214, 220 (5th Cir. 2012).
Personal jurisdiction may be specific or general. Luciano, 625 S.W.3d at 8. General
jurisdiction requires “continuous and systematic’ contacts with the forum state. Id.
Specific jurisdiction creates jurisdiction only where “the defendant purposefully
avails itself of the privilege of conducting activities in the forum state,” and the suit
“arise[s] out of or relate[s] to the defendant's contacts with the forum.” Id. at 8-9.
Specific jurisdiction in a tort case requires a substantial connection between the
defendant’s contacts with the forum and the operative facts of the litigation. Searcy
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v. Parex Res., Inc., 496 S.W.3d 58, 70 (Tex. 2016) (citing Walden v. Fiore, 571 U.S.
277, 284 (2014)).
Plaintiff alleges that this Court has personal jurisdiction over Jenson “because
the acts and omissions giving rise to the cause of action occurred in whole or in part
in Texas.” ECF 1-2 ¶ 4.1. Plaintiff’s jurisdictional allegation is belied its factual
allegations that the Vessel was seized in Mexico pursuant to an order from a Mexican
court in a legal proceeding filed in Mexico. Id. ¶5.7. Plaintiff argues that specific
personal jurisdiction exists because Jenson made phone calls from his office in
Houston to commence seizure proceedings in Mexico. ECF 26 at 10-11. Jenson’s
phone calls from Texas do not create a strong connection between Jenson’s conduct
in Texas and the operative facts of this case. The phone calls could have been made
from anywhere. See Old Republic Nat'l Title Ins. Co. v. Bell, 549 S.W.3d 550, 560
(Tex. 2018) (questioning whether phone calls, on their own, with people in Texas
are obsolete as proof of minimum contacts due to changes in technology). There is
no reasonable basis to predict that Plaintiff would be successful in establishing
personal jurisdiction over Jenson, who has yet to be served.
IV. Conclusion and Recommendation
For the above reasons, Defendant has met its burden to show there is no
reasonable basis to predict that Plaintiff would be successful on his claims against
Jenson in state court. Thus, Plaintiff improperly joined Jenson in this case for the
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purpose of defeating diversity jurisdiction. Plaintiff’s claims against Jenson should
be dismissed without prejudice. Kutchinski v. Costco Wholesale Corp., No. 4:22-
CV-00083, 2022 WL 1809308, at *4 (S.D. Tex. June 1, 2022) (dismissing claims
against improperly joined non-diverse defendant without prejudice).
The Court RECOMMENDS that Plaintiff’s Motion to Remand (ECF 16) be
DENIED and Plaintiff’s claims in this case against Jim Jenson be DISMISSED
WITHOUT PREJUDICE.
The Clerk of the Court shall send copies of the memorandum and
recommendation to the respective parties, who will then have fourteen days to file
written objections, pursuant to 28 U.S.C. § 636(b)(1)(C). Failure to file written
objections within the time period provided will bar an aggrieved party from attacking
the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on
other grounds.
Christina A. Bryan
United States Magistrate Judge
Signed on December 09, 2025, at Houston, Texas.
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