Unpublished Disposition, 867 F.2d 614 (9th Cir. 1988)

No. 86-2381.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN and FLETCHER, Circuit Judges, and SAMUEL P. KING, District Judge^* 

MEMORANDUM^** 

This is the second appeal arising from the 1977 death of Renerio Villar, a seaman who drowned off the coast of Saudia Arabia while working as a crew member on the defendant's tugboat Bannock. Villar was a citizen of the Phillipines. Members of Villar's family sued defendant for damages under the Jones Act, 46 U.S.C. § 688 (1982). The district court, after one remand, found that Philippine law applied to the action and dismissed on the ground of forum non conveniens. On appeal, we upheld that dismissal. Villar v. Crowley Maritime Corp., 782 F.2d 1478 (9th Cir. 1986).

Thereafter, the appellants filed in California State Superior Court a complaint that was identical in substance to the complaint dismissed by the district court. In June 1986, the district court issued a permanent injunction, pursuant to 28 U.S.C. § 2283 (1982), enjoining the appellants from prosecuting the action in any court in the United States. This appeal followed.

The Supreme Court addressed the issue presented by this appeal in Chick Kam Choo v. Exxon Corp., 108 S. Ct. 1684, 1689-91 (1988). Choo was an action brought by the widow of a resident of Singapore who was accidentally killed in Singapore while performing repair work on a ship owned by Exxon. See id. at 1687. The district court granted summary judgment to Exxon under the doctrine of forum non conveniens. See id. at 1687-88. After the petitioner filed an action in Texas state court, Exxon obtained a permanent injunction from the federal district court prohibiting her from relitigating the forum non conveniens issue. See id. at 1688.

The Supreme Court held that the Anti-Injunction Act, 28 U.S.C. § 2283 (1982),¹  prevented the district court from enjoining the state proceedings. See Choo, 108 S. Ct. at 1689-91. The Court noted that Congress "has permitted injunctions in certain, specific circumstances, namely when expressly authorized by statute, necessary in aid of the court's jurisdiction, or necessary to protect or effectuate the court's judgment." Id. at 1689. The Court said that only the last of these three circumstances, the relitigation exception, was arguably applicable to the case. Id.

The Court stated, however, that the relitigation exception did not provide a basis for the injunction because the federal district court had found only "that petitioner's claims should be dismissed under the federal forum non conveniens doctrine." Id. at 1690. The district court's ruling on federal law therefore had not "determine [d] whether Texas courts, which operate under a broad 'open courts' mandate, would consider themselves an appropriate forum for petitioner's lawsuit." Id.

This circuit has recently had occasion to apply the Choo Court's clarification of the effect of the Anti-Injunction Act. In reconsidering the case of Zipfel v. Halliburton Co., 832 F.2d 1477 (9th Cir. 1987), 108 S. Ct. 2819 (1988), mandate recalled and op. amended, Zipfel v. Halliburton Co., Nos. 86-1815, 1832, 1834, 1835, 1836, slip op. (9th Cir. Nov. 16, 1988) (available on WESTLAW at 1988 W.L. 121151 (9th Cir.)), the facts of which were similar to those in both Choo and the instant case, we held a decree enjoining the foreign seamen plaintiffs from prosecuting their claims in any court in the United States to be too broad. See Zipfel, slip op. at 14265. There, the district court had determined that foreign law applied to the claims of the foreign seamen, and dismissed on the basis of forum non conveniens. The analysis of Choo made it clear that although the issue of what law applied to the claims could not be relitigated, "the question whether ... state courts are an appropriate forum for the prosecution of the foreign seamen's claims [had] not yet been litigated and an injunction to foreclose consideration of this issue [was] not within the relitigation exception." Id., slip op. at 14266 (citing Choo, 108 S. Ct. at 1691). Likewise in the instant case, the California courts are free to determine for themselves whether they "would consider themselves an appropriate forum for [appellants'] lawsuit." Choo, 108 S. Ct. at 1690-91.

After the appellants filed a notice of appeal from the injunction, the district court issued an order awarding the appellees attorneys' fees of $4,625. Because the appellants did not file a separate notice of appeal from the order granting attorneys' fees, we do not have jurisdiction to review the propriety of this order.²  See Culinary and Serv. Employees Union v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982).

The case is REMANDED to the district court with instructions to dissolve the injunction. The appellants' request for an order reversing the award of attorneys' fees is DENIED. The appellants are entitled to costs on appeal.