Maria Dominguez v. Gulf Coast Marine & Associates, Inc. ( 2010 )

REVISED June 16, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 28, 2010
No. 09-40685
Lyle W. Cayce
Clerk
MARIA SANTOS LOPEZ DOMINGUEZ, individually and A.N.F. to K.L.,
M.L., I.L. and Estate of Omar Guajardo Andrade; SANDRA PATRICIA
PACHEO ROSADO, individually and as representative of the Estate of
Leonardo M. Hernandez Pozo; TAYDE M. POZO ROBLE, parent of Leonardo
M. Hernandez Pozo; JULISSA BOVIO CHAGOYA, individually and A.N.F. to
D.B., J.B. and M.B. on behalf of the Estate of Miguel Angel Solis Rodriguez;
CARLOS BLAS CORTAZAR; SERGIO ROSADO CORTES; EUDOCIA A.
JACOME GOMEZ; ALDO ANTONIO LOPEZ LORENZO; JORGE GUZMAN
MARTINEZ; JESUS I. SUAREZ MATIAS; JUAN ANTONIO PALAFOX
NAVARETTE; PASTOR GARCIA OCANA; OSCAR ROMERO ORTEGA;
SERGIO SOLIS PONCE; JOSE PEDRO COBO QUIROZ; FERNANDO A.
CERVERA RAMIREZ; JORGE A. JIMENEZ RANGEL; MARTIN ZUNIGA
SALAZAR; GABRIEL GONZALEZ TORA; TEODOSIO RUEDA DE LEON;
MIGUEL HERNANDEZ CHAN, parent of Leonardo M. Hernandez Pozo,
deceased; ANTONIO MONTERO HERNANDEZ; LEONEL FERNANDEZ
RIVERA; HERMILLO JIMENEZ CEPEDA; ALL PLAINTIFFS,
Plaintiffs-Appellants
v.
GULF COAST MARINE & ASSOCIATES, INC.; GLEN CARTER;
HALLIBURTON COMPANY; SCHLUMBERGER TECHNOLOGY
CORPORATION; MATTHEWS-DANIEL COMPANY,
Defendants-Appellees
Appeal from the United States District Court for the
Eastern District of Texas (Lufkin Division)
No. 09-40685
Before BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
In this case, we are asked to review the dismissal of an action seeking
redress for injuries suffered in a deadly maritime accident off the coast of
Mexico. However, at this time, we forego a ruling on the merits of the dismissal
of this case for forum non conveniens. After plaintiffs filed this appeal, the
district judge who presided over this case recused himself, calling into question
the continued validity of his dismissal. Given the incomplete information in the
record regarding the circumstances of the judge’s recusal, we remand this case
to the district court for the limited purpose of addressing whether the dismissal
of this case should be set aside.
I.
On October 23, 2007, an unusually strong storm blew across the Gulf of
Campeche, where the mobile drilling rig USUMACINTA was positioned over the
oil production platform KAB-101, approximately ten miles north of the Mexican
coast. As hurricane force winds battered the vessels, the USUMACINTA allided
with the KAB-101, damaging the platform and causing oil and gas to leak from
one of its wells. The workers onboard on the KAB-101 were unable to stop the
leak and had to evacuate the platform. They boarded two lifeboats called
mandarinas, both of which eventually capsized in the rough waters. Twenty-two
workers drowned, along with two rescuers called to the accident.
The plaintiffs in this case are relatives of the workers who perished in the
accident, representatives of their estates, and survivors of the accident. Each
plaintiff is a resident of Mexico, and all of the individuals whose deaths or
injuries are the subject of this lawsuit worked for Mexico’s state-owned oil
company Petróleos Mexicanos (“Pemex”) or Perforadora Central (“Perforadora”),
a Mexican company that assists Pemex in oil exploration. At the time of the
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No. 09-40685
accident, Pemex owned the KAB-101 platform and was leasing the
USUMACINTA rig from Perforadora.
In 2008, a year after the accident, plaintiffs initiated the present suit in
federal district court in Lufkin, Texas, asserting negligence, gross negligence,
and products liability claims. Neither Pemex nor Perforadora are defendants in
this suit.1 Instead, plaintiffs have filed suit against four U.S. companies, Gulf
Coast Marine & Associates, Inc. (“Gulf Coast”), Schlumberger Technology
Corporation, Halliburton Energy Services, Inc., and Matthews-Daniel Company.
They have also filed suit against Glen Carter, an alleged employee of Gulf Coast
and U.S. citizen resident in Louisiana. Plaintiffs allege that defendants are
collectively responsible for the accident that occurred on October 23, 2007.
After limited discovery, on May 29, 2009 the district court issued an order
dismissing this case for forum non conveniens, contingent on several conditions.
Specifically, the order provided that:
IT IS THEREFORE ORDERED that Defendants’ Motions to
Dismiss for Forum Non Conveniens . . . shall be CONDITIONALLY
GRANTED subject to a return jurisdiction clause under the
following conditions:
1) Defendants’ agreement to appear and submit themselves to
the jurisdiction of the Mexican courts, waiving any
jurisdictional defenses they might normally possess;
2) Defendants’ waiver of any statute of limitations or
laches-related defenses that they did not possess at the time
the Plaintiffs originally filed in this court; and
3) Defendants’ agreement to submit to discovery in the
Mexican forum in accordance with the procedural rules of the
Mexican court.
The dismissal of this case from this court’s docket shall
become effective once the Defendants have tendered a written
statement assenting to be bound by the foregoing conditions.
Should the Defendants fail to do so by June 26, 2009, their forum
1
Plaintiffs initially filed suit against Pemex, but later voluntarily dismissed these
claims. Since they filed this appeal, plaintiffs have also dismissed their claims against three
other defendants: Battelle Memorial Institute, Vetco Gray, Inc., and Baker Hughes, Inc.
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No. 09-40685
non conveniens motions will be considered waived, and this case will
proceed to trial in this court.
Should the courts of Mexico refuse to accept jurisdiction for
reasons other than Plaintiffs’ refusal to pursue an action or to
comply with the procedural requirements of Mexican courts, this
court may reassert jurisdiction upon timely notification of the same.
On June 26, 2009, defendants met the district court’s deadline for filing a
statement agreeing to return jurisdiction, submitting a stipulation with terms
very similar to those mandated by Judge Clark. Three days later, on June 29,
plaintiffs filed a notice appealing the court’s May 29 order, as plaintiffs were
concerned that the order could be construed as final and the thirty-day deadline
for appeal had arrived. See Fed. R. App. P. 4(a)(1)(A) (“In a civil case, . . . the
notice of appeal . . . must be filed . . . within 30 days after the judgment or order
appealed from is entered.”). Two days later, plaintiffs objected to defendants’
stipulation, as defendants had only agreed to submit to jurisdiction in Mexico
City. Shortly thereafter, defendants submitted a revised stipulation on July 6
and plaintiffs withdrew their objection, prompting the court to enter an order
formally dismissing this case on July 7.
A week later, on July 13, 2009, Judge Clark convened a teleconference
with counsel for all parties and informed them that he had just discovered that
he owned stock in the parent company of a defendant in this case. As a result,
he announced that he was recusing himself, explaining that:
This is something that I probably should have figured out before,
namely, at our last hearing when we went through the questions
about Schlumberger. But all of a sudden—in the middle of the night
a couple of days ago, I all of a sudden—it suddenly clicked, and I
started looking. . . . [R]ecently, due to the death of my mother, I had
acquired some Schlumberger Limited stock, not a great deal. But
under the Code of Judicial Ethics, just one share is enough to
disqualify me from any case involving Schlumberger Limited. And
under the rulings dealing with Federal judicial conduct and the
Committee on Codes of Conduct, it is something that cannot be
waived by the parties because it is just the appearance. So, I’m not
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No. 09-40685
even going to ask about that. And then there is the fact that since
Schlumberger Tech is owned by and its parent is Schlumberger
Limited, then Schlumberger Limited has an interest in what
happens to Schlumberger Tech. I wish I had thought of this before
I issued my first opinion, which evidently is now on appeal out of an
abundance of caution, I understand, by plaintiffs because—and I
agree it’s sometimes very difficult to tell exactly when the final
order comes and when you have to appeal. But I think the only
thing I can do is, in effect, withdraw this last order. And I still—it
is within ten days. I think I can do that. It’s what I considered the
final order to be; although, the first one where I conditionally
granted the transfer may have been the final one—and then notify
the circuit court as to what I’ve done so they can decide what they
want to do with it. I mean, I don’t know that another judge would
come up with a different decision; but I feel it’s just simply
inappropriate to let this stand or hope that nobody notices later on.
That just isn’t—I mean, that’s not how we do business.
Accordingly, later that day, Judge Clark entered separate orders vacating his
July 7 order dismissing this case and recusing himself. The chief judge of the
Eastern District of Texas then reassigned this case to Judge T. John Ward.
II.
Before addressing the effect of Judge Clark’s recusal on the merits of this
appeal, we must first assure ourselves of our jurisdiction. We may only exercise
jurisdiction over appeals from “final decisions.” 28 U.S.C. § 1291 (2006). One of
the oddities produced by the unusual procedural posture of this case is that
plaintiffs ask us to dismiss their own appeal for lack of jurisdiction,2 so that they
may return to the district court for Judge Ward to determine whether Judge
Clark’s dismissal is still valid. Specifically, plaintiffs contend that we lack
jurisdiction because (i) they appealed from Judge Clark’s May 29 order, (ii) that
order was not final, and (iii) as an interlocutory order, it merged with the final
dismissal order issued on July 7, which was later vacated by Judge Clark on
2
Plaintiffs also challenge the merits of the district court’s forum non conveniens
dismissal, but for the reasons explained below, we do not review this issue today.
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No. 09-40685
July 13. However, plaintiffs are mistaken; we have jurisdiction over this appeal.
Even if Judge Clark’s dismissal did not become final until July 7, plaintiffs’ June
29 notice of appeal relates forward to the date when the dismissal became final.
At that point, jurisdiction vested in this Court, meaning that Judge Clark’s July
13 vacatur of his July 7 final order is void.
This appeal is from Judge Clark’s May 29 order, and the parties primarily
focus their arguments on whether the May 29 order was final when entered,
suggesting that if it were not final when entered, we would lack jurisdiction.3
This is incorrect; even if plaintiffs’ June 29 notice of appeal were filed
prematurely, before the district court’s dismissal of this case became final, we
could still have jurisdiction, as premature notices of appeal may sometimes
relate forward to the date when dismissal of a case becomes final. Federal Rule
of Appellate Procedure 4(a)(2) establishes that “[a] notice of appeal filed after the
court announces a decision or order—but before the entry of the judgment or
order—is treated as filed on the date of and after the entry.”
3
Defendants point to several cases that they claim indicate that the May 29 order was
final and immediately appealable. In a number of cases, this Court has held that conditional
forum non conveniens dismissals are final, despite the fact that “the orders may literally
appear to have more typically nonfinal characteristics . . . [b]ecause they are conditional.” Koke
v. Phillips Petroleum Co., 730 F.2d 211, 216 (5th Cir. 1984), overruled on other grounds by
Trivelloni-Lorenzi v. Pan Am. World Airways, Inc. (In re Air Crash Disaster near New Orleans),
821 F.2d 1147, 1163 n.25 (5th Cir. 1987) (en banc); see also Newball v. Offshore Logistics Int’l,
803 F.2d 821, 826 (5th Cir. 1986). For example, in Koke, this Court held that a dismissal order
was final, even though it “was conditioned on three requisites: (1) that all defendants consent
to jurisdiction in a single appropriate foreign forum; (2) that all defendants waive any defense
regarding the statute of limitations; and (3) that all defendants consent to satisfying any
judgment rendered by such court.” 730 F.2d at 214. These cases seem to be animated at least
in part by a concern that interpreting conditional forum non conveniens dismissals to be
nonfinal would be unfair to plaintiffs—if such dismissals were not final, plaintiffs would not
be able to appeal an order directing them to litigate abroad without first commencing litigation
abroad.
We note that this case is distinguishable from cases like Koke—Judge Clark’s dismissal
was not solely conditioned on defendants submitting to jurisdiction abroad, but also on
defendants filing a stipulation in his court by June 26, less than a month after entry of his May
29 order. In these circumstances, Judge Clark’s May 29 order might reasonably be read as
being nonfinal when entered, but we do not reach this issue today.
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No. 09-40685
The leading case interpreting this rule is FirsTier Mortgage Co. v.
Investors Mortgage Insurance Co., 498 U.S. 269 (1991). In FirsTier, a district
court announced that it was granting a defendant’s motion for summary
judgment, but asked the defendant to submit proposed findings of fact and
conclusions of law. The court also stated that it would allow the plaintiff to file
objections to the proposed findings. Id. at 270-71. However, before the court
entered the final judgment, the plaintiff appealed. Id. at 272. The Supreme
Court concluded that although the judge “did not explicitly exclude the
possibility that he might change his mind” before entering a final order, the
plaintiff’s notice of appeal could “relate forward to judgment and serve as an
effective notice of appeal from the final judgment.” Id. at 273, 275. The Court
held that “Rule 4(a)(2) permits a notice of appeal from a nonfinal decision to
operate as a notice of appeal from the final judgment only when a district court
announces a decision that would be appealable if immediately followed by the
entry of judgment.” Id. at 276.
In this case, Judge Clark structured his May 29 order such that once
defendants filed their stipulation, he did not need to take any further action,
other than simply entering a short order formally dismissing the case. Indeed,
once defendants filed a satisfactory stipulation and plaintiffs withdrew their
objection, that is what he did. Thus, on May 29, Judge Clark announced “a
decision that would be appealable if immediately followed by the entry of
judgment,” FirsTier, 498 U.S. at 276, and therefore plaintiffs’ notice of appeal
from the May 29 order can relate forward to the date it became final.
In similar circumstances, other circuit courts have also found that notices
of appeal can relate forward. The Second and Seventh Circuits have held that
when “the district court states that if a certain event does not happen by a
particular date the court’s order will become a final judgment, and the event
does not happen, a notice of appeal filed after the court’s statement but before
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No. 09-40685
the specified date is covered by Rule 4(a)(2).” 16A Charles Allen Wright et al.,
Federal Practice and Procedure § 3950.5 (4th ed. 2008).4 This case is effectively
the same, except that finality was not triggered by the failure of a party to take
a certain action, but rather by defendants’ submission of their stipulation to the
court. Despite this distinction, since Judge Clark did not need to take any
further action after the satisfaction of his condition precedent to dismissal,
plaintiffs’ notice of appeal can relate forward. Thus, jurisdiction vested in this
Court at the latest on July 7, when Judge Clark entered an order formally
dismissing this case.
Finally, Judge Clark’s July 13 order vacating his dismissal of this case
does not disturb our jurisdiction, as we had already acquired jurisdiction by July
7 at the latest. We have previously held that when a notice of appeal transfers
jurisdiction to this Court, district courts lose the ability to vacate or amend their
orders that have been appealed. See, e.g., Winchester v. U.S. Attorney for S. Dist.
of Tex., 68 F.3d 947, 948-49 (5th Cir. 1995); Offshore Logistics Servs., Inc. v. Mut.
Marine Office, Inc., 639 F.2d 1168, 1170 (5th Cir. 1981). Therefore, plaintiffs’
contention that the district court’s July 13 vacatur order deprives this Court of
appellate jurisdiction is incorrect. Of course, this is not to say that the district
court was stripped of all jurisdiction once plaintiffs’ notice of appeal became
effective. “The district court maintains jurisdiction as to matters not involved
in the appeal, such as the merits of an action when appeal from a preliminary
injunction is taken, or in aid of the appeal, as by making clerical corrections.”
Farmhand, Inc. v. Anel Eng’g Indus., Inc., 693 F.2d 1140, 1145 (5th Cir. 1982).
Consequently, it was still appropriate for Judge Clark to recuse himself, insofar
4
See Slayton v. Am. Express Co., 460 F.3d 215, 224 (2d Cir. 2006) (“A dismissal with
leave to amend is a non-final order and not appealable. . . . However, an appellant can render
such a non-final order ‘final’ and appealable by disclaiming any intent to amend.”); Otis v. City
of Chicago, 29 F.3d 1159, 1168 (7th Cir. 1994) (en banc) (approving of “an appeal from a
conditional order of dismissal after the time to satisfy the condition has expired”).
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No. 09-40685
as he retained certain residual jurisdiction over this case. Also, his recusal could
be viewed as being in aid of this appeal, as it brings to our attention serious
questions concerning the propriety of the dismissal that is now on appeal.
III.
Having confirmed our jurisdiction, we now address the effect of Judge
Clark’s ownership of Schlumberger Limited stock on this appeal. Plaintiffs ask
us to grant them leave to file a motion with the district court pursuant to
Federal Rule of Civil Procedure 60(b), which has been used previously as a
means for vacating judgments issued by judges who should have recused
themselves. See Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 863
(1988). Specifically, the Rule provides that “[o]n motion and just terms, the
court may relieve a party or its legal representative from a final judgment, order,
or proceeding for . . . any . . . reason that justifies relief.” Fed. R. Civ. P. 60(b)(6).
Plaintiffs assert that they cannot file a Rule 60(b) motion in the district court
until this Court has granted them leave to do so, as their notice of appeal
stripped the district court of jurisdiction. Conversely, defendants contend that
plaintiffs’ request is not properly before this Court because plaintiffs never
sought Rule 60(b) relief in the district court. We find that plaintiffs have not
complied with the usual procedures for seeking relief from a judgment under
Rule 60(b) while an appeal is pending. Nevertheless, we also conclude that a
partial remand is appropriate under these unusual circumstances, so that Judge
Ward may assess in the first instance the continued validity of Judge Clark’s
dismissal of this case.
Defendants are correct that plaintiffs have not followed the usual
procedures for seeking relief under Rule 60(b). This Court has provided
extremely clear guidance to litigants on how to proceed with a Rule 60(b) motion
after a notice of appeal has been filed. Although an effective notice of appeal
strips district courts of jurisdiction to grant a Rule 60(b) motion, it does not
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No. 09-40685
prevent litigants from filing them in the district court while an appeal is
pending. Instead, “[t]he district court retains jurisdiction to consider and deny
[Rule 60(b)] motions, and if it indicates that it will grant the motion, the
appellant [may] then make a motion in the Court of Appeals for a remand of the
case in order that the district court may grant such motion.” Winchester, 68
F.3d at 949 (quoting Ferrell v. Trailmobile, Inc., 223 F.2d 697, 699 (5th Cir.
1955)) (internal brackets and ellipses omitted).5 Plaintiffs have not heeded this
guidance—they seek a remand but have not already filed a Rule 60(b) motion
with Judge Ward.
However, plaintiffs’ failure to file a Rule 60(b) motion with the district
court does not slip a blindfold over our eyes, letting us ignore that the judgment
we are reviewing was entered by a judge subject to recusal. The statute
governing the recusal of Judge Clark in this case is 28 U.S.C. § 455, and the
Supreme Court has explained that since § 455 “neither prescribes nor prohibits
any particular remedy” for recusal violations, “Congress has wisely delegated to
the judiciary the task of fashioning the remedies that will best serve the purpose
of the legislation.” Liljeberg, 486 U.S. at 862. Courts have previously exercised
this authority on appeal, even when remedies for recusal violations were not
5
Indeed, this procedure has become so widely accepted that it has now been codified
into the Federal Rules, in a provision that became effective on December 1, 2009, just weeks
after plaintiffs submitted their reply brief. Specifically, new Rule 62.1 provides that:
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals
remands for that purpose or that the motion raises a substantial issue.
(b) Notice to the Court of Appeals. The movant must promptly notify the circuit
clerk under Federal Rule of Appellate Procedure 12.1 if the district court states
that it would grant the motion or that the motion raises a substantial issue.
(c) Remand. The district court may decide the motion if the court of appeals
remands for that purpose.
Fed. R. Civ. P. 62.1.
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No. 09-40685
first sought in the district court. For example, in Davis v. Xerox, the Ninth
Circuit considered whether rulings made by a district judge subject to recusal
had to be vacated, despite the fact the issue was raised for the first time on
appeal. 811 F.2d 1293, 1296 (9th Cir. 1987) (“Only on appeal did [the plaintiff]
obtain copies of the first judge’s reports and bring them to the attention of a
court. [His] objection is still timely.”). Similarly, in Potashnick v. Port City
Construction Co., we remanded a case for determination of whether a judge
should have recused himself, after attorneys discovered grounds for the judge’s
recusal following the conclusion of a trial. 609 F.2d 1101, 1106, 1115 (5th Cir.
1980). We opted not to rule on the merits of the appeal in Potashnick until after
the recusal issue had first been heard by the district court. Id. at 1107; see also
Russell v. Lane, 890 F.2d 947, 948 (7th Cir. 1989) (remanding without
addressing merits to allow pro se litigant to file Rule 60(b) motion challenging
orders entered by judge who had recused himself). Therefore, the failure of
plaintiffs to file a Rule 60(b) motion below, while regrettable, does not deprive
us of authority to craft a remedy for Judge Clark’s possible violation of § 455.
That said, it is true that in some cases, when appellants have raised issues
properly considered under Rule 60(b) for the first time on appeal, we have
refused to consider these issues. For example, in Leasehold Expense Recovery,
Inc. v. Mothers Work, Inc., the appellant asked for the first time on appeal that
the summary judgment entered in favor of the appellee be vacated, as the
appellant claimed that the appellee had withheld certain documents during
discovery. 331 F.3d 452, 463 (5th Cir. 2003). We found that this request was
“properly styled” as a motion to set aside summary judgment for fraud,
misrepresentation, or misconduct under Rule 60(b)(3) and refused to consider
the issue, partially affirming the district court. Id. at 463-64.
However, the instant case arises under exceptional circumstances,
different from those before us in Leasehold Expense Recovery. Plaintiffs do not
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No. 09-40685
speculatively claim for the first time on appeal that Judge Clark should have
recused himself; instead, Judge Clark sua sponte recused himself after a notice
of appeal had already become effective. All parties agree his recusal was proper,
and no one disputes that he owned Schlumberger Limited stock while he
presided over this case. Furthermore, the situation below was complicated by
Judge Clark’s July 13 order vacating his July 7 dismissal order. On this appeal,
we have rejected plaintiffs’ argument that Judge Clark’s vacatur of his July 7
order was valid and had the effect of vacating his May 29 order. Before we
reached this conclusion, however, it would have been unusual for plaintiffs to
have asked Judge Ward to set aside the May 29 order, while simultaneously
arguing on appeal that Judge Clark had already effectively vacated it. Plaintiffs
should have filed a Rule 60(b) motion with Judge Ward out of an abundance of
caution, but we have previously explained that the procedures for filing post-
appeal Rule 60(b) motions are not “a judicial tightrope to be walked at peril.”
Lairsey v. Advance Abrasives Co., 542 F.2d 928, 932 (5th Cir. 1976). Instead,
“[w]here the litigant has timely initiated procedure for relief, he should not be
penalized for choice of the ‘wrong’ procedure.” Id. In these circumstances, we
cannot review the merits of Judge Clark’s forum non conveniens dismissal as if
we had no knowledge of his recusal.
IV.
Although we have the authority to address any violation of § 455 that
occurred in this case, we find that it would be inappropriate for us to do so at
this stage, given the limited information in the record concerning Judge Clark’s
acquisition of Schlumberger Limited stock. The Supreme Court has explained
that Ҥ 455(a) can be violated based on an appearance of partiality, even though
the judge was not conscious of the circumstances creating the appearance of
impropriety.” Liljeberg, 486 U.S. at 858. As a result, if Judge Clark’s ownership
of Schlumberger Limited stock creates an appearance of impartiality, then his
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No. 09-40685
dismissal of this case while owning the stock would have violated § 455(a), even
if he lacked knowledge of his ownership at the time. However, the record does
not reveal how much stock Judge Clark acquired, its value, or when he acquired
it. The record is also silent on whether Judge Clark reviewed what stock he had
inherited during the same period he was considering motions indicating
Schlumberger Limited’s interest in this case. Additionally, the parties have not
extensively discussed § 455 in their briefing, nor whether vacatur is the proper
remedy for any violation of the statute that occurred. See 486 U.S. at 862(explaining that vacatur of judgments does not automatically follow from every
violation of § 455).
Given these considerations, we remand this case in part to allow Judge
Ward to indicate to us whether he is inclined to grant a Rule 60(b) motion
vacating Judge Clark’s dismissal of this case. If he is so inclined, we will remand
this case in full so that Judge Clark’s dismissal can be vacated and his forum
non conveniens ruling relitigated. However, for the moment, we retain
jurisdiction so that if Judge Ward denies the motion and plaintiffs appeal his
denial, we will be able to review both the denial of the Rule 60(b) motion and the
merits of Judge Clark’s forum non conveniens dismissal. See Potashnick, 609
F.2d at 1106-07 (remanding for limited purpose of determining whether judge
should have recused himself and then consolidating appeal of recusal ruling with
initial merits appeal); 11 Wright et al., supra, § 2873 (2d ed. Supp. 2010)
(explaining that appellant may appeal “the denial of the [Rule 60(b)] motion and
often the appellate court can consider that appeal together with the appeal from
the original judgment”). The district court may issue orders and conduct and
regulate any proceedings necessary for the proper disposition of the limited
remand provided for herein.
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V.
Consequently, this case is REMANDED for further proceedings consistent
with this opinion.
14