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Case: 14-20717

Document: 00513371640

Page: 1

Date Filed: 02/05/2016

No. 14-20717

In the United States Court of Appeals


for the Fifth Circuit

FORUM SUBSEA RENTALS,


formerly known as DPS Offshore, Incorporated,
Plaintiff Appellee,
v.
TAREK A. ELSHARHAWY; SHELLY L ELSHARHAWY,
also known as Shelly L. Chilman; GLOBALTECH OFFSHORE,
Defendants Appellants.

Appeal from the United States District Court for the


Southern District of Texas, Houston Division; No. 4:13-CV-885

Petition for Panel Rehearing

Beck Redden LLP


Chad Flores
Texas Bar No. 24059759
cflores@beckredden.com
1221 McKinney St., Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 Fax
Counsel for Appellants

Case: 14-20717

Document: 00513371640

Page: 2

Date Filed: 02/05/2016

Petition for Panel Rehearing


Sometimes, in deciding a case, the Court ought to put itself into the shoes
of the attorney before it. Williams v. Dallas Area Rapid Transit, 256 F.3d 260,
261 (5th Cir. 2001) (Smith, J., dissenting from denial of rehearing en banc).
Consider the conversation that naturally flows from the Courts opinion here:
Lawyer ....... I regret to inform you that the court of appeals affirmed.
Client .......... What reasons did they give?
Lawyer ...... They said that they were persuaded by the trial judges reasons.
Client .......... Hmm. What did they say about personal jurisdiction?
Lawyer ....... Well, I just told you that they adopted the trial judges reasons.
Client .......... But the judge didnt give any reasons. He made no findings or
conclusions on jurisdiction. Remember? You were the one
who told me that last year.
Lawyer ....... Oh, yes. Youre right. The Circuit affirms for the reasons
given below, but there werent any on jurisdiction.
Client ......... So what do we do?
Lawyer ...... We move for panel rehearing.
Client .......... But how will that change anything?
Lawyer ....... All institutions make mistakes. Panel rehearings purpose is for
overlooked matters like this. Trust the system.
Client ......... Thats a little challenging right now.
Lawyer ....... Have faith. The 5th Circuit has to tackle thousands of cases a
year, so mistakes will happen once in a while, but the Court is
conscientious about fixing them on rehearing.

Case: 14-20717

I.

Document: 00513371640

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Date Filed: 02/05/2016

The judgment should not be affirmed on the basis of nonexistent


jurisdictional findings and conclusions.
The opinion affirms an exercise of personal jurisdiction for essentially the

reasons given by the district court in its Findings of Fact and Conclusions of Law
issued on September 17, 2014. Op. 1. But the district court never made findings
and conclusions about personal jurisdiction. ROA.975-1004. Nonexistent findings
and conclusions cannot warrant affirmance.
The lack of jurisdictional findings and conclusions makes the Courts
opinion meaningless. There are no reasons given by the district court for the
Court to essentially affirm. More importantly, and regardless of the opinions
form, the lack of findings and conclusions makes the Courts judgment erroneous.
This point is not new. The blue brief asserted it as ground for reversal: The
district court did not make findings or conclusions about personal jurisdiction,
which itself is error. Br. of Appellants 18. It explained that if the Court did not
order dismissal on the ground that no valid jurisdictional findings and conclusions
could be made on this record, the Court would still need to reverse because no such
jurisdictional findings and conclusions were actually made. Id. at 26 n.6.
In this respect, the appeal is like Hydrospace-Challenger, Inc. v.
Tracor/MAS, Inc., 520 F.2d 1030 (5th Cir. 1975), where the district court did not
clearly resolve a difficult rulings factual predicates. Id. at 1035. Perhaps the

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court here applied valid jurisdictional law, but perhaps not. We are not told. Id.
The decision states neither the ruling itself (jurisdiction exists) nor the rulings
predicate (jurisdictional facts). Yet without an explanation of this predicate, [the
Court] cannot determine whether the district court intended to apply some existing
theory or create a new one. Id. Where, as here, multiple legal interpretations of
undetermined or incompletely determined facts remain at the appellate stage, [the
Courts] review function cannot be performed. Id. The only recourse is to
remand it for the necessary refinement. Id. (quoted at Br. of Appellants 26 n.61).
The Court should also grant rehearing to resolve the jurisdictional issues
with a full opinion. The screening panel that deemed this case worthy of oral
argument probably expected a normal opinion to be issued. So did the parties, who
devoted more than fifty pages of their briefs to the issues of personal jurisdiction.
Appellants submitted that, even if every disputed fact had been found in
Plaintiffs favor, the law of personal jurisdiction did not allow its exercise here.
Fearing that the jurisdictional issue might get short shrift, undersigned counsel at
oral argument emphasized that the jurisdictional issue is preserved and the Court
needs to decide it before going to the merits. Counsel pointed to specific pages of
specific precedents that had been briefed in detailpage 313 of Moncrief Oil
1

In footnote 6, the undersigned mistakenly attributed the necessary refinement phrase to Kona
Technology Corp. v. Southern Pacific Transportation Co., 225 F.3d 595 (5th Cir. 2000).

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Intern. Inc. v. OAO Gazprom, 481 F.3d 309 (5th Cir. 2007), and page 1125 of
Walden v. Fiore, 134 S. Ct. 1115 (2014)as holdings requiring reversal. Plaintiffs
counsel argued its side similarly. When both parties engage a dispositive issue with
full-fledged, detailed arguments, so should the Court.
Conclusion
The Court should grant rehearing and decide the issue of personal
jurisdiction with a reasoned opinion. If it does not render a dismissal, the Court
should at least order the remand compelled by Hydrospace-Challenger, Inc. v.
Tracor/MAS, Inc., 520 F.2d 1030 (5th Cir. 1975). Appellants renew their original
prior prayers for relief regarding the merits.
Respectfully submitted,
Beck Redden LLP
By: /s/ Chad Flores
Chad Flores
Texas Bar No. 24059759
cflores@beckredden.com
1221 McKinney St., Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 Fax
Counsel for Appellants

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Document: 00513371640

Page: 6

Date Filed: 02/05/2016

Certificate of Service
I certify that on February 5, 2016, a copy of the foregoing Petition for Panel
Rehearing was filed electronically with the Clerk of the Court using the Courts
ECF System. Notice of this filing will be sent electronically by operation of the
Courts electronic filing system to the following counsel of record.
George J. Fowler , III
fow@frfirm.com
Jon Wesley Wise
jwise@frvf-law.com
Lauren Alana Guichard
lguichard@frfirm.com
Fowler Rodriguez
400 Poydras Street, 30th Floor
New Orleans, LA 70130
Counsel for Appellee
/s/ Chad Flores
Chad R. Flores
Counsel for Appellants

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TAB A

Date Filed: 02/05/2016

Case: 14-20717

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00513353469

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Date Filed: 02/05/2016


01/22/2016

IN THE UNITED STATES COURT OF APPEALS


FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 14-20717
FORUM SUBSEA RENTALS, formerly known as DPS Offshore,
Incorporated,

FILED
January 22, 2016
Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
TAREK A. ELSHARHAWY; SHELLY L. ELSHARHAWY, also known as
Shelly L. Chilman; GLOBALTECH OFFSHORE,
Defendants - Appellants

Appeal from the United States District Court


for the Southern District of Texas
USDC No. 4:13-CV-885
Before PRADO, SOUTHWICK, and GRAVES, Circuit Judges.
PER CURIAM:*
This court has considered this appeal on the basis of the briefs, the oral
arguments of counsel, and pertinent portions of the record. The judgment of
the district court is affirmed for essentially the reasons given by the district
court in its Findings of Fact and Conclusions of Law issued on September 17,
2014, after the bench trial.
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.
*

Case: 14-20717

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00513353469

No. 14-20717
AFFIRMED.

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2

Date Filed: 02/05/2016


01/22/2016