In re: Ministry of Defense, No. 11-60296 (5th Cir. 2011)

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Case: 11-60296 Document: 00511515856 Page: 1 Date Filed: 06/21/2011 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED June 21, 2011 No. 11-60296 Lyle W. Cayce Clerk In Re: MINISTRY OF DEFENSE OF THE REPUBLIC OF VENEZUELA Petitioner Petition for a Writ of Mandamus to the United States District Court for the Southern District of Mississippi Before WIENER, PRADO, and OWEN, Circuit Judges. PER CURIAM:* Petitioner Ministry of Defense of the Republic of Venezuela seeks a writ of mandamus directing the district court to vacate its order, in which that court refused to enforce an unreasonable forum-selection clause and, instead, compelled arbitration in the United States. After Petitioner appealed the district court s order to us, we dismissed that appeal for lack of jurisdiction.1 We now deny Petitioner s petition for writ of mandamus. * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 1 Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of Venezuela, No. 11-60001, slip op. (5th Cir. Mar. 23, 2011) (per curiam), reh g denied, (5th Cir. May 9, 2011) (per curiam). Case: 11-60296 Document: 00511515856 Page: 2 Date Filed: 06/21/2011 No. 11-60296 Time and again, we have said that mandamus is not to be used as a substitute for appeal.2 Petitioner has not demonstrated that the district court has exceeded the lawful exercise of its prescribed jurisdiction.3 We repeat: The Supreme Court has held that courts may generally set aside forum-selection clauses where enforcement would be unreasonable. 4 We decided this matter when we denied Petitioner s appeal, so Petitioner must now await the district court s final, appealable judgment before it may appeal the merits of that court s forum determination.5 Petition for writ of mandamus is DENIED. 2 See, e.g., In re Am. Marine Holding Co., 14 F.3d 276, 277 (5th Cir. 1994) (per curiam) ( [I]t is more than well-settled that a writ of mandamus is not to be used as a substitute for appeal. (citation omitted)). 3 See Aerospace Corp. v. Mayacamus Corp., 485 U.S. 271, 289 (1988). 4 Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of Venezuela, 575 F.3d 491, 503 (5th Cir. 2009) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-11 (1972)). 5 See In re Am. Marine, 14 F.3d at 277 ( Whether the district court erred . . . may be raised for appellate review after the arbitration is completed and a final judgment entered by the district court confirming such arbitration. ). 2

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