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No. 14-20717
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Case: 14-20717
I.
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reasons given by the district court in its Findings of Fact and Conclusions of Law
issued on September 17, 2014. Op. 1. But the district court never made findings
and conclusions about personal jurisdiction. ROA.975-1004. Nonexistent findings
and conclusions cannot warrant affirmance.
The lack of jurisdictional findings and conclusions makes the Courts
opinion meaningless. There are no reasons given by the district court for the
Court to essentially affirm. More importantly, and regardless of the opinions
form, the lack of findings and conclusions makes the Courts judgment erroneous.
This point is not new. The blue brief asserted it as ground for reversal: The
district court did not make findings or conclusions about personal jurisdiction,
which itself is error. Br. of Appellants 18. It explained that if the Court did not
order dismissal on the ground that no valid jurisdictional findings and conclusions
could be made on this record, the Court would still need to reverse because no such
jurisdictional findings and conclusions were actually made. Id. at 26 n.6.
In this respect, the appeal is like Hydrospace-Challenger, Inc. v.
Tracor/MAS, Inc., 520 F.2d 1030 (5th Cir. 1975), where the district court did not
clearly resolve a difficult rulings factual predicates. Id. at 1035. Perhaps the
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court here applied valid jurisdictional law, but perhaps not. We are not told. Id.
The decision states neither the ruling itself (jurisdiction exists) nor the rulings
predicate (jurisdictional facts). Yet without an explanation of this predicate, [the
Court] cannot determine whether the district court intended to apply some existing
theory or create a new one. Id. Where, as here, multiple legal interpretations of
undetermined or incompletely determined facts remain at the appellate stage, [the
Courts] review function cannot be performed. Id. The only recourse is to
remand it for the necessary refinement. Id. (quoted at Br. of Appellants 26 n.61).
The Court should also grant rehearing to resolve the jurisdictional issues
with a full opinion. The screening panel that deemed this case worthy of oral
argument probably expected a normal opinion to be issued. So did the parties, who
devoted more than fifty pages of their briefs to the issues of personal jurisdiction.
Appellants submitted that, even if every disputed fact had been found in
Plaintiffs favor, the law of personal jurisdiction did not allow its exercise here.
Fearing that the jurisdictional issue might get short shrift, undersigned counsel at
oral argument emphasized that the jurisdictional issue is preserved and the Court
needs to decide it before going to the merits. Counsel pointed to specific pages of
specific precedents that had been briefed in detailpage 313 of Moncrief Oil
1
In footnote 6, the undersigned mistakenly attributed the necessary refinement phrase to Kona
Technology Corp. v. Southern Pacific Transportation Co., 225 F.3d 595 (5th Cir. 2000).
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Intern. Inc. v. OAO Gazprom, 481 F.3d 309 (5th Cir. 2007), and page 1125 of
Walden v. Fiore, 134 S. Ct. 1115 (2014)as holdings requiring reversal. Plaintiffs
counsel argued its side similarly. When both parties engage a dispositive issue with
full-fledged, detailed arguments, so should the Court.
Conclusion
The Court should grant rehearing and decide the issue of personal
jurisdiction with a reasoned opinion. If it does not render a dismissal, the Court
should at least order the remand compelled by Hydrospace-Challenger, Inc. v.
Tracor/MAS, Inc., 520 F.2d 1030 (5th Cir. 1975). Appellants renew their original
prior prayers for relief regarding the merits.
Respectfully submitted,
Beck Redden LLP
By: /s/ Chad Flores
Chad Flores
Texas Bar No. 24059759
cflores@beckredden.com
1221 McKinney St., Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 Fax
Counsel for Appellants
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Certificate of Service
I certify that on February 5, 2016, a copy of the foregoing Petition for Panel
Rehearing was filed electronically with the Clerk of the Court using the Courts
ECF System. Notice of this filing will be sent electronically by operation of the
Courts electronic filing system to the following counsel of record.
George J. Fowler , III
fow@frfirm.com
Jon Wesley Wise
jwise@frvf-law.com
Lauren Alana Guichard
lguichard@frfirm.com
Fowler Rodriguez
400 Poydras Street, 30th Floor
New Orleans, LA 70130
Counsel for Appellee
/s/ Chad Flores
Chad R. Flores
Counsel for Appellants
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TAB A
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00513353469
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No. 14-20717
FORUM SUBSEA RENTALS, formerly known as DPS Offshore,
Incorporated,
FILED
January 22, 2016
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
TAREK A. ELSHARHAWY; SHELLY L. ELSHARHAWY, also known as
Shelly L. Chilman; GLOBALTECH OFFSHORE,
Defendants - Appellants
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AFFIRMED.
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