Jackson v. N Bank Towing Corp, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-30030
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WARREN ROY JACKSON,
Plaintiff-Appellant,
VERSUS
NORTH BANK TOWING CORPORATION; ET AL,
Defendants,
NORTH BANK TOWING CORPORATION AND J. RAY MCDERMOTT, INC.,
Defendants-Appellees.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________
June 2, 2000
ON PETITION FOR PANEL REHEARING
Before HIGGINBOTHAM and SMITH,
Circuit Judges, and FALLON, District
Judge.*
PER CURIAM:
The petition for panel rehearing is
GRANTED. The opinion, 201 F.3d 415 (5th
Cir. 2000) (per curiam), is VACATED, and
the following opinion is substituted:
Warren Jackson appeals the dismissal of his
foreign law tort claims for negligence and
maintenance and cure. Because Jackson’s
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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claims previously were dismissed in Louisiana
state court, res judicata bars relitigation of
them. We therefore affirm the dismissal, but
on grounds different from those relied on by
the district court.
I.
Jackson, a non-resident alien and citizen of
Honduras, was employed as a seaman by
North Bank Towing Corporation, a Louisiana
corporation, aboard M/V MARTHA EU-
GENIA, owned and operated by J. Ray Mc-
Dermott, Inc. (with North Bank, collectively
“defendants”). Jackson was injured when he
fell aboard the vessel while it was engaged in
offshore oil and gas exploration off the coast
of Mexico.
Jackson first sued in state court, alleging a
variety of state, federal, and foreign law
maritime and tort claims. Defendants
responded with a motion for summary
judgment on all claims, asserting that § 688(b)
of the Jones Act barred any action by Jackson,
absent a showing of no-available-remedy in the
courts of the country(ies) with jurisdiction. In
February 1998, the state court granted the
motion to dismiss all United States and inter-
national maritime claims under § 688(b), but
deferred, pending further argument, decision
on the motion to dismiss all other foreign law
claims. Then, on July 8, 1998, the court
granted the motion to dismiss all foreign law
claims as well, based on forum non con-
veniens, stating:
IT IS HEREBY ORDERED, AD-
JUDGED AND DECREED, that all
State law claims are hereby dismissed
with prejudice, at plaintiff’s sole cost, as
set forth in this Court’s written reasons
for judgment dated February 2, 1998;
IT IS FURTHER ORDERED,
ADJUDGED AND DECREED, that the
Motion for Reconsideration of the
Motion for Summary Judgment of
defendants as to any and all Mexican
law claims, Honduran law claims or any
and all foreign law claims is hereby
granted and those claims are dismissed
without prejudice, at plaintiff’s sole
cost, subject only to plaintiff’s right to
pursue such claims in an appropriate
jurisdiction in Mexico and/or
Honduras;
IT IS FURTHER ORDERED,
ADJUDGED AND DECREED, that the
Motion for Reconsideration of the
Motion for Summary Judgment of the
defendants as to any and all Mexican
law claims, Honduran law claims or any
foreign law claims which are not in
conflict with 46 U.S.C. §688(b) or gen-
eral maritime law is hereby granted and
those claims are dismissed without
prejudice, at plaintiff’s sole cost, pur-
suant to Louisiana Code of Civil
Procedure art. 123 (“foreign non
conveniens”) subject only to plaintiff’s
right to pursue such claims in an
appropriate jurisdiction in Mexico
and/or Honduras.
(Emphasis added.) Finally, in January 1999,
the court clarified that § 688(b), and not forum
non conveniens, was the basis of the July 8
dismissal of all foreign law claims.
Jackson appealed, arguing that the trial
court (1) had improperly invoked forum non
conveniens and (2) had erred in dismissing his
claims pursuant to § 688(b). In March 1999,
the court of appeal affirmed the dismissal, rea-
soning that § 688 barred both foreign and

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United States law claims and that Jackson had
“not shown any evidence of a lack of remedy
in foreign venues.” Jackson v. North Bank
Towing Corp., 742 So. 2d 1, 7 (La. App. 3d
Cir. 1999).
In the meantime, however, in January 1998,
Jackson had sued in federal court. Jackson
again asserted negligence claims pursuant to
the Jones Act and, alternatively, the tort laws
of Mexico and Honduras and the international
lex maritime, and unseaworthiness claims pur-
suant to the maritime law of the United States,
the laws of Mexico and Honduras, and the in-
ternational lex maritime; additionally, he as-
serted a claim for maintenance and cure under
the general maritime law of the United States.
Then, in October 1998, before the state trial
court was affirmed, the defendants moved for
summary judgment in federal district court,
seeking dismissal of all Jackson’s claims
pursuant to § 688(b). That motion was
granted and is the subject of the instant appeal.
II.
In our original opinion, we addressed the
underlying substantive issue, decided by the
district court, whether 46 U.S.C. § 688(b) bars
not only claims made pursuant to the Jones
Act or other maritime laws of the United
States, but also foreign law claims. Because
the plain text of § 688(b)(1) bars only actions
brought under the maritime laws of the United
States, and because it made no mention of
foreign law claims, we held that the district
court had improperly dismissed Jackson’s
claims brought under the laws of Mexico and
Honduras and the international lex maritime.
Jackson v. North Bank Towing Corp., 201
F.3d 415, 418 (5th Cir. 2000) (per curiam).
This was so notwithstanding the legislative
history of the Jones Act that supported
defendants’ argument that Congress intended
for foreign law claims to be foreclosed as well,
and notwithstanding the fact § 688(b)(2)
supported an inference that these claims
should be available only once the plaintiff
could establish that foreign fora would not be
available to him. We reasoned that this
subsection still could have meaning if we
applied it only to United States maritime
claims brought by foreign seamen, because
“for a foreign seaman to bring an action under
any maritime law of the United States, he must
first establish that foreign law remedies are not
available to him in other fora.” Id. at 417.
Thus, we left it to Congress to amend the
plain text of the statute if our result was
contrary to its intent. We now grant
defendants’ petition for rehearing, however,
because we need not have addressed the
admittedly difficult interpretation question that
was previously decided in Louisiana state
court.
III.
Although Jackson does not argue that the
claims that were the subject of the earlier state
court lawsuit and dismissal were different from
those he reasserted in federal district court, he
contends that res judicata does not apply, be-
cause the state court dismissed “without
prejudice,” indicating that there should be no
preclusive effect under Louisiana law. Al-
ternatively, Jackson argues that we should
consider this issue waived on appeal, because
defendants did not raise it as an affirmative
defense in the district court, and that we
should not exercise our discretion to consider
it sua sponte.
A.
Our first issue is whether the state court’s

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dismissal “without prejudice” should have any
preclusive effect for future claims in Louisiana
and federal court. Louisiana’s doctrine of res
judicata was substantially changed in 1990 by
new LA. R.S. 13:4231, which “provides a
broad application of res judicata; the purpose
is to foster judicial efficiency and protect the
defendants from multiple lawsuits.” Fine v.
Regional Transit Auth., 676 So. 2d 1134,
1136 (La. App. 4th Cir. 1996). “The statute
was amended in 1990 to make a substantive
change in the law: a judgment bar to all causes
of actions arising out of the same occurrence.”
Id. The statute’s broad principle of preclusion
is subject to exceptions, however, and LA.
R.S. 13:4232 provides:
A judgment does not bar another
action by the plaintiff:
(1) When exceptional circumstances jus-
tify relief from the res judicata effect of
the judgment;
(2) When the judgment dismissed the
first action without prejudice; or
(3) When the judgment reserved the
right of the plaintiff to bring another
action.
Jackson relies on the second of these
exceptions. But, because the Louisiana trial
court’s dismissal also provided that it would
be “subject only to plaintiff’s right to pursue
such claims in an appropriate jurisdiction in
Mexico and/or Honduras,” the third exception
is also relevant.
Apparently, no Louisiana or Fifth Circuit
cases interpret a similarly-worded dismissal, as
to whether it should operate as a preclusive
decision in state and federal (but not Mexican
or Honduran) courts. But notwithstanding the
trial court’s designation of the dismissal as
“without prejudice,” the “subject to” language
indicates that the dismissal would have
preclusive effects in all but the Mexican or
Honduran courts.
First, this is the natural interpretation of the
court’s language; it would be wholly
unnecessary to state that Jackson could refile
his claims in these foreign courts if the
dismissal was to have no preclusive effect.
Second, this reading is consistent with the
court’s finding that Jackson had not made a
showing that these foreign courts were
unavailable to him. Thus, it is logical that the
trial court would leave open to him this option
specifically contemplated by the Jones Act.
Finally, the Louisiana courts have
interpreted the res judicata rule broadly, while
narrowly constricting § 4232’s exceptions.
For example, in Centanni v. Ford Motor Co.,
636 So. 2d 1153, 1155 (La. App. 3d Cir.), writ
denied, 644 So. 2d 656 (La.1994), the court
noted that the exception for dismissals without
prejudice “is designed to protect those drawn
into error by an awkward factual or legal sce-
nario, not by those who can allude to no
circumstance to justify no action at all.” And
under facts slightly different from those
present here, another Louisiana court of
appeal held that a settlement and dismissal was
res judicata, even though the dismissal was
without prejudice. See Medicus v. Scott, 744
So. 2d 192, 196 (La. App. 2d Cir. 1999). The
court reasoned that “[p]ublic policy favors
compromises and the finality of settlements.”
Id. Likewise, the broad application of res jud-
icata serves the purpose of “foster[ing] judicial
efficiency and protect[ing] the defendants from
multiple lawsuits.” Fine, 676 So. 2d at 1136.

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The application of res judicata works no
undue hardship on Jackson. Instead, this is a
textbook case for claim preclusion, because
both parties had their day in court on these
very issues. Moreover, Jackson is not left
without a forum, because the Mexican and
Honduran courts are still available to him. As
a result, the Louisiana trial court’s dismissal
was “without prejudice” only with respect to
Jackson’s right to bring foreign law claims in
Mexican or Honduran courts. In contrast, the
“subject only to” language indicates that the
dismissal would be preclusive in state and
federal courts.
B.
The only remaining issue, then, is whether
defendants have waived this argument by not
raising it in federal district court. We conclude
they have not. First, the defendants correctly
point out that we can raise this issue sua
sponte, even where neither party mentions it.
For example, in Russell v. SunAmerica Sec.,
Inc., 962 F.2d 1169, 1172 (5th Cir. 1992), we
noted:
Under Federal Rule of Civil Procedure
8(c), the doctrine [of res judicata] must
be affirmatively pled. Failure to so
plead usually precludes the district court
and appellate courts from considering
the doctrine. We have held, however,
that we may raise the issue of res
judicata sua sponte “as a means to affirm
the district court decision below.” . . .
In the posture of this case, . . . where all
of the relevant facts are contained in the
record before us and all are uncontro-
verted, we may not ignore their legal ef-
fect, nor may we decline to consider the
application of controlling rules of law to
the dispositive facts, simply because nei-
ther part y has seen fit to invite our
attention to the issue by technically
correct and exact pleadings. We do so
sua sponte.
(Internal citations omitted.) Thus, it follows
that we can consider the issue when it
expressly was raised by the defendants, even
where they failed to argue it in the district
court.
Second, other considerations counsel in fa-
vor of our considering the res judicata issue.
The reason defendants did not raise this
argument in the district court is that Jackson’s
state case was not yet final at that time. The
state appeal was still pending when the federal
district court granted the motions for summary
judgment and dismissed. Consequently,
defendants cannot be blamed for addressing
the matter for the first time on appeal.
Also, principles of comity counsel that we
should respect the final decisions of the
Louisiana courts, and, as in Russell, we are
presented with all the facts necessary to make
the res judicata determination. Accordingly,
we vacate our earlier o pinion and affirm the
judgment dismissing Jackson’s claims.
AFFIRMED.

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