Zipfel v. Halliburton Co.

861 F.2d 565, 1989 A.M.C. 713, 1988 U.S. App. LEXIS 16760
CourtCourt of Appeals for the Ninth Circuit
DecidedNovember 16, 1988
DocketNos. 86-1815, 86-1832, 86-1834 to 86-1836
StatusPublished
Cited by74 cases

This text of 861 F.2d 565 (Zipfel v. Halliburton Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zipfel v. Halliburton Co., 861 F.2d 565, 1989 A.M.C. 713, 1988 U.S. App. LEXIS 16760 (9th Cir. 1988).

Opinion

DAVID R. THOMPSON, Circuit Judge:

Defendants-appellees Halliburton Company, et al. (“Halliburton”), move this court to recall the mandate, issued pursuant to our amended opinion in this case, Zipfel v. Halliburton Co., 832 F.2d 1477 (9th Cir.1987). Halliburton contends that our opinion conflicts with the subsequent decision of the Supreme Court of the United States in Chick Karri Choo v. Exxon Corp., — U.S.-, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988). We agree. We order the mandate recalled and we amend our opinion as set out below.

1. Authority to Recall Mandate

The authority of a Court of Appeals to recall its mandate is clear. Aerojet-General Corp. v. American Arbitration Association, 478 F.2d 248, 254 (9th Cir.1973). While the authority is not conferred by statute, id., it exists as part of the court’s power to protect the integrity of its own processes. Perkins v. Standard Oil, 487 F.2d 672, 674 (9th Cir.1973), citing Briggs v. Pennsylvania R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948); Samson Tire & Rubber Corp. v. Rogan, 140 F.2d 457 (9th Cir.1943); Huntley v. Southern Oregon Sales, Inc., 104 F.2d 153, 155 (9th Cir.1939); accord, Petersen v. Klos, 433 F.2d 911, 912 (5th Cir.1970). The authority may be exercised for “good cause” or to “prevent injustice.” Aerojet-General at 254; Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir.1977). This power, however, should be exercised only in exceptional circumstances. Johnson v. Bechtel Associates Professional Corp., 801 F.2d 412, 416 (D.C.Cir.1986). Whether the power is exercised at all falls within the discretion of the court, but such discretion should be employed to recall a mandate only when good cause or unusual circumstances exist sufficient to justify modification or recall of a prior judgment. American Iron and Steel Institute v. EPA, 560 F.2d 589, 594-95 (3d Cir.1977), cert. denied, 435 U.S. 914, 98 S.Ct. 1467, 55 L.Ed.2d 505 (1978).

When a decision of the Supreme Court “departs in some pivotal aspects” from a decision of a federal appeals court, recall of a mandate may be warranted to the extent necessary “ ‘to protect the integrity’ ” of the court of appeals’ prior judgment. American Iron and Steel, 560 F.2d at 596. Modification of a prior judgment also promotes uniformity in judicial decisionmaking and in the treatment of litigants. Id. at 597-98.

The recent Supreme Court decision in Chick Kam Choo departs in a pivotal aspect from our decision of the injunction issue in this case. The effect of this departure is to overrule our resolution of the injunction issue, at least in part. We, therefore, exercise our power to recall the mandate and amend the opinion “[bjecause of an overpowering sense of fairness and a firm belief that this is the exceptional case requiring recall of the mandate in order to [568]*568prevent an injustice_” Verrilli, 557 F.2d at 665.

2. Variance Between Chick Kam Choo and This Case

a. Supreme Court Analysis in Chick Kam Choo

As in the present case, Chick Kam Choo involved application of the third exception to the Anti-Injunction Act, 28 U.S.C. § 2283 (1982). Under this exception, a federal district court may grant an injunction staying relitigation in state court “to protect or effectuate its judgments.”1

The facts in Chick Kam Choo are similar to those presented in this case. In Chick Kam Choo, a Singapore resident was killed in Singapore while repairing a ship owned by the foreign subsidiary of a United States corporation. His widow brought suit in federal district court in Texas. She presented claims under the Jones Act, 46 U.S.C.App. § 688 (1982), the Death on the High Seas Act (“DOHSA”), 46 U.S.C.App. § 761 et seq. (1982), the general maritime law of the United States, and the Texas Wrongful Death Statutes, Tex.Civ.Prac. & Rem.Code Ann. §§ 71.001-71.031 (1986). Chick Kam Choo, 108 S.Ct. at 1687. The district court granted the defendants’ motion for summary judgment on the Jones Act and DOHSA claims, finding these statutes inapplicable. Id. at 1688. As to the general maritime law claim,

[T]he District Court applied factors identified in Lauritzen [v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254] and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), to the choice-of-law question and concluded that the “statutory and maritime law of the United States should not be applied.” App. 32. This conclusion led the court to grant summary judgment on [the widow’s] general maritime law claim, as well as to consider whether dismissal of the rest of the case was warranted under the doctrine of forum non conveniens. After reviewing the various factors set out in [Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)], the court concluded that dismissal was appropriate and accordingly granted [defendants’] motion to dismiss on forum non conve-niens grounds, provided [defendants] submit to the jurisdiction of the Singapore courts. The Court of Appeals for the Fifth Circuit affirmed. Chick Kam Choo v. Exxon Corp., 699 F.2d 693, cert. denied, 464 U.S. 826, 104 S.Ct. 98, 78 L.Ed.2d 103 (1983).

Chick Kam Choo, 108 S.Ct. at 1688.

Instead of filing suit in Singapore, the widow filed suit in Texas state court. She eschewed her federal law claims and proceeded in state court solely on her state law and Singapore law claims.2 The defendants responded by filing a new action in federal district court in which they sought an injunction to enjoin the Texas state court proceedings and any other proceedings which the widow might file in any court in the United States. The district court granted the injunction.3 The Fifth Circuit Court of Appeals affirmed. It re[569]*569jected the widow’s contention that the injunction violated the Anti-Injunction Act, and ruled “that the injunction ...

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Bluebook (online)
861 F.2d 565, 1989 A.M.C. 713, 1988 U.S. App. LEXIS 16760, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zipfel-v-halliburton-co-ca9-1988.