Vivian Tankships v. Castro

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2001
• Docket: 99-30431
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 99-30431

VIVIAN TANKSHIPS CORPORATION,

Plaintiff-Appellant,

VERSUS

STATE OF LOUISIANA,

Intervenor-Appellee,

and

CANDIDO CASTRO; I.F. HINGLE, Sheriff of Plaquemines Parish,

Defendants-Appellees.

Appeal from the United States District Court For the Eastern District of Louisiana (No. 98-CV-1671-T) May 14, 2001 Before POLITZ, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge*:

Plaintiff-Appellant Vivian Tankships Corporation (“Vivian”)

appeals the judgment of the district court in favor of defendants

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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 Candido Castro and I.F. Hingle. In ruling against Vivian, the

district court found that Louisiana Code of Civil Procedure article

3541 does not violate the Commerce Clause, U.S. CONST. art. I, § 8,

cl. 2, or the Due Process Clause of the Fourteenth Amendment, U.S.

CONST. amend. XIV, § 2, and that article 3541 is not preempted by

the federal vessel documentation regulations at 46 C.F.R. Part 67.

Because we find that Vivian’s claims are moot, we vacate the

judgment of the district court without reaching the issues related

to the constitutionality of article 3541, and remand with

instructions to dismiss.

I.

Castro claims to have suffered a hernia in 1997 while working

on the M/V OVERSEAS VIVIAN (“the vessel”), a United States flagged

vessel owned by Vivian. In March 1998, Castro filed suit in the

25th Judicial District Court for Plaquemines Parish, Louisiana,

against Maritime Overseas Corporation (“Maritime”), believing

Maritime to be the owner of the vessel. The court issued a writ of

attachment against the vessel pursuant to Louisiana Code of Civil

Procedure article 3541. The vessel was attached by Hingle, the

Civil Sheriff of Plaquemines Parish, pursuant to the writ.

Maritime posted a bond for the amount in controversy to have the

vessel released and, upon proving that it was not the owner of the

vessel, successfully moved to have the writ dissolved and the

2 posted bond returned.

In June 1998, after the vessel was released and had sailed

out of Louisiana waters, Vivian filed suit against Castro and

Hingle in the Eastern District of Louisiana. Against Castro,

Vivian sought a declaratory judgment that article 3541 was

unconstitutional as a violation of the Commerce Clause and the Due

Process Clause, and that it was preempted by 46 C.F.R. Part 67. In

addition to declaratory relief, Vivian sought damages against

Castro under 42 U.S.C. § 1983 for wrongful attachment, alleging

that the court costs, cost of the bond posted in Plaquemines

Parish, attorneys’ fees, and associated expenses had been accrued

as the result of an unconstitutional attachment procedure. Against

Hingle, Vivian sought declaratory and injunctive relief based on

the alleged unconstitutionality of Louisiana’s non-resident

attachment provisions, and monetary damages for wrongful

attachment. Vivian amended its complaint to drop its claim for

monetary damages against Hingle. The State of Louisiana intervened

solely to defend the constitutionality of the article. Vivian

posted a $200,000 peace bond to prevent the reattachment of its

vessel.

Castro amended his state court complaint in July 1998 to name

Vivian as the defendant. Castro did not seek a new writ of

attachment against the vessel, but exercised jurisdiction against

Vivian through regular service of process. Prior to oral argument

of the instant appeal in Vivian’s federal action, Castro and Vivian

3 reached a settlement of Castro’s state court claims, reserving

Vivian’s right to pursue damages for wrongful attachment in its

federal action.

On motion for partial summary judgment, the district court

held that article 3541 was neither unconstitutional nor preempted

by federal registration requirements. On a subsequent motion for

dismissal of Vivian’s remaining claims, the district court

dismissed Vivian’s claim for damages arising from wrongful

attachment and rendered final judgment for the defendants,

concluding that the prior ruling on the constitutionality of the

attachment article settled the question of whether the vessel had

been wrongfully attached. Vivian timely filed a notice of appeal.

II.

We may exercise jurisdiction over this dispute only if it is

an actual case or controversy. U.S. CONST. art. III, § 2, cl. 1;

see also 28 U.S.C. § 2201(a) (explicitly incorporating Article

III’s case or controversy requirement into statute authorizing

declaratory judgment relief); Lawson v. Callahan, 111 F.3d 403, 405

(5th Cir. 1997) (recognizing that Section 2201's “actual

controversy” requirement is identical to Article III’s case or

controversy requirement). This requirement extends to all stages

of litigation; if the litigation loses its characteristic of

presenting a live controversy between two parties subsequent to its

4 commencement, then we have lost our power to preside over the

dispute because it has become moot. Powell v. McCormack, 395 U.S.

486, 496 (1969).

An exception to the mootness doctrine has been recognized for

cases that would otherwise be moot but are based on issues

“‘capable of repetition, yet evading review.’” Super Tire Eng’g

Co. v. McCorkle, 416 U.S. 115, 121-22 (1974) (quoting Southern Pac.

Terminal Co. v. ICC, 219 U.S. 498, 515 (1911)). The capable-of-

repetition-yet-evading-review doctrine operates if “(1) the

challenged action was in its duration too short to be fully

litigated prior to its cessation or expiration, and (2) there was

a reasonable expectation that the same complaining party would be

subject to the same action again.” Weinstein v. Bradford, 423 U.S.

147, 149 (1975); see also Seafarers Int’l Union of North America v.

Nat’l Marine Servs., Inc., 820 F.2d 148, 151 (5th Cir. 1987),

abrogated on other grounds by Litton Fin. Printing Div. v. NLRB,

501 U.S. 190, 197 n.1 (1991). “[T]he capable-of-repetition

doctrine applies only in exceptional situations, and generally only

where the named plaintiff can make a reasonable showing that he

will again be subjected to the alleged illegality.” City of Los

Angeles v. Lyons, 461 U.S. 95, 109 (1983).

That “reasonable showing” requires something more than a

speculative suggestion that the present-plaintiff may again be

subjected to the complained-of conduct. Murphy v. Hunt, 455 U.S.

478, 482 (1982) (recognizing that “[t]he Court has never held that

5 a mere physical or theoretical possibility was sufficient to

satisfy the test stated in Weinstein. If this were true, virtually

any matter of short duration would be reviewable. Rather, we have

said that there must be a ‘reasonable expectation’ or a

‘demonstrated probability’ that the same controversy will recur

involving the same complaining party.”) (quoting Weinstein, 423

U.S. at 149); see also Lyons, 461 U.S. at 107 n.8 (“It is the

reality of the threat of [impending] injury that is relevant to the

standing inquiry, not the plaintiff’s subjective apprehensions.”).

Where the threat of future allegedly unconstitutional government

action is two steps or more removed from a demonstrably definite

action of the plaintiff, this court and the Supreme Court have

found that government action too “remote and speculative” to defeat

mootness under the capable-of-repetition-yet-evading-review

doctrine. Super Tire, 416 U.S. at 123 (distinguishing the facts

before the Court from cases where governmental seizure of a utility

would only recur if, first, the utility’s workers went on strike,

and second, the governor exercised his discretion to seize the

utility); ITT Rayonier Inc. v. United States, 651 F.2d 343, 345 (5th

Cir. 1981) (refusing to apply the capable-of-repetition-yet-

evading-review doctrine where recurrence required, first, that the

plaintiff alter its pollution discharge policies, and second, that

the EPA choose to pursue action against the plaintiff); see also C.

& S. W. Servs., Inc. v. EPA, 220 F.3d 683, 700-01 (5th Cir. 2000)

(“Dr. Carman’s theory of injury is predicated upon the occurrence

6 of a string of future hypotheticals–that road construction will

occur in proximity to the Edwards aquifer, that the construction

crews will use PCB bulk product waste in the roadbed, that PCBs

will leach from the roadbed, and that those PCBs will leach and

contaminate aquifers or waterways. Nothing in the Carman and

Sinclair affidavits suggest that any of these predicate events are

likely to occur.”).

Here, Vivian’s claims based on the allegedly unconstitutional

attachment of the vessel, for declaratory relief against Castro and

injunctive relief against Hingle, are moot because (1) Castro’s

claim against Vivian has been settled, and no possibility of his

seeking attachment of the vessel for that claim remains; (2) Castro

had previously agreed to not seek reattachment of the vessel and,

in fact, sought to invoke personal jurisdiction over Vivian by

other means; (3) Vivian itself had previously posted bond to ensure

that the vessel would not be reattached; and (4) Vivian has not

alleged the existence of any other claims by Castro that could form

the basis for the issuance of a writ of attachment in Plaquemines

Parish against one of its vessels.

Any fear Vivian has that Hingle will again execute a writ of

attachment against one of its vessels, or that a writ of attachment

will even be sought against one of its vessels, is based on

precisely the type of hypothetical harm that has been rejected as

a means of establishing standing (or defeating mootness) both in

this court and in the Supreme Court. See Lyons, 461 U.S. at 107

7 n.8; C. & S. W. Servs., 220 F.3d at 700-01.

Vivian has not made a reasonable showing that the attachment

of the vessel in this case is part of a series of repeated short-

term exercises of the Louisiana attachment article against it, and

cannot show that its vessel will be reattached in this particular

case. Moreover, Vivian’s arguments that its vessels may be

attached in the future are too remote, relying on a series of

speculative conditions: (1) that Vivian will again be sued in a

Louisiana state court, (2) that the future-plaintiff will seek to

have the future-court exercise personal jurisdiction over Vivian

via the article 3541 writ of attachment, (3) that the future-court

will issue the writ of attachment, and (4) that the future-writ

will be executed by the future-sheriff. Without some “reasonable

showing,” this line of speculation is far too remote to trigger the

capable-of-repetition-yet-evading-review doctrine. Super Tire, 416

U.S. at 123; ITT Rayonier, 651 F.2d at 345.

Moreover, assuming arguendo that the execution of a writ of

attachment is a government action capable of repetition, it is not

an action that necessarily evades review. Vivian may raise its

argument that article 3541 is unconstitutional as a defense in the

state courts in any future proceeding. The argument ultimately

evades review here only because Vivian sought to have that argument

reviewed in an alternative, federal forum.1

1 Vivian contends that the Anti-Injunction statute would make federal court review impossible to obtain if its vessel is again 8 Vivian’s only other claim is its claim for damages for

wrongful attachment to recover court costs, costs of posting bond,

and attorneys’ fees related to the attachment of its vessel in the

state court action.2 Vivian contends that, because the resolution

of this damages claim necessarily requires us to determine if the

attachment procedure is constitutional, i.e., whether the

attachment was “wrongful,” the issue of article 3541's

constitutionality is not moot.

However, it is well-established that, when the only

controversy remaining that arises from the original case and

controversy is the recovery of “sunk costs,” such controversy is

not a legally cognizable dispute that will save an action from the

operation of the mootness doctrine. Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 480 (1990) (“[R]easonable caution is needed to be

sure that mooted litigation is not pressed forward . . . solely in

subject to a Louisiana writ of attachment. Vivian’s contention misses the thrust of Super Tire, however, which excepted from the mootness doctrine potentially repetitious actions that may evade any judicial review. Our traditions of federalism and comity command that we not exercise this exception to the mootness doctrine purely to avoid future review of an issue in the state courts. 2 Though Vivian intimates that it is possible that the arrest of a vessel may entail significant losses of profit and operating costs each day, it does so only by reference to losses in other situations. At no point, in its complaint or in any other pleadings and arguments, has Vivian alleged that it suffered lost profits or operating expenses as a result of the attachment in the instant controversy. The only “damages” that Vivian specifically seeks in its complaint regarding the allegedly unconstitutional attachment are the sunk costs in the litigation–attorneys’ fees, court costs, and the cost of posting bond. 9 order to obtain reimbursement of sunk costs.”); Bank of Marin v.

England, 385 U.S. 99, 111 n.1 (1966) (Fortas, J., dissenting)

(collecting cases that rule that a controversy solely regarding

costs cannot salvage an otherwise moot case); Washington Mkt. Co.

v. District of Columbia, 137 U.S. 62 (1890); 13A CHARLES ALAN WRIGHT,

ARTHUR R. MILLER, & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3533.3

at 268-69 & nn. 15, 16 (2d ed. 1984 & Supp. 2000) (“Claims for

costs . . . traditionally have not been thought sufficient to avoid

mootness, presumably on the theory that such incidental matters

should not compel continuation of an otherwise moribund action.”).3

Accordingly, this claim is also moot.

III.

Because we find that all of Vivian’s claims have become moot,

we do not have subject matter jurisdiction to review the merits of

this case. Therefore, we VACATE the judgment of the district

court, and REMAND with instructions to DISMISS Vivian’s complaint

as moot. See Arizonans for Official English v. Arizona, 520 U.S.

43, 71 (1997) (“When a civil case becomes moot pending appellate

adjudication, ‘[t]he established practice . . . in the federal

3 Vivian’s contention that the arrest of its vessel possibly may entail significant daily profit and operating cost losses amounts only to another in the series of hypothetical “could haves” and “maybes” upon which it seeks to hang the subject matter jurisdiction of this court. 10 system . . . is to reverse or vacate the judgment below and remand

with a direction to dismiss.’”) (quoting United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950)).