     Case: 20-20035      Document: 00515471508   Page: 1   Date Filed: 06/30/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                        FILED
                                                                     June 30, 2020
                                 No. 20-20035
                               Summary Calendar                      Lyle W. Cayce
                                                                          Clerk


THE NATIONAL SHIPPING COMPANY OF SAUDI ARABIA,

             Plaintiff
v.

VALERO MARKETING AND SUPPLY COMPANY,

             Defendant-Third Party Plaintiff - Appellant
v.

TRAFIGURA TRADING LLC,

             Third Party Defendant - Appellee


                Appeals from the United States District Court
                     for the Southern District of Texas


Before STEWART, HIGGINSON, and COSTA, Circuit Judges.
CARL E. STEWART, Circuit Judge:
      Valero Marketing and Supply Company (“Valero”) files this appeal
pursuant to 28 U.S.C. § 1292(a)(3) after the district court denied its motion for
certification for interlocutory appeal under 28 U.S.C. § 1292(b). Because we
lack jurisdiction, we dismiss Valero’s appeal.
                         I. Facts & Procedural History
      In March 2019, two shipping companies—the National Shipping
Company of Saudi Arabia (“National Shipping”) and Indelpro S.A. DE C.V.
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(“Indelpro”)—sued Valero, in two separate actions, 1 alleging that it had
supplied them with contaminated fuel. Valero answered both complaints and
filed a third-party complaint against Trafigura Trading L.L.C. (“Trafigura”).
In its third-party complaint against Trafigura, Valero alleged claims for breach
of contract, negligence, express and implied warranty breach, products
liability, and violations of the Texas Civil Practice and Remedies Code. Valero
also invoked Rule 14(c) 2 to “tender” Trafigura as a direct defendant in the
National Shipping case on grounds that it was wholly liable for the damages
alleged therein.
       Trafigura, the third-party defendant, asserted that Valero’s claims fell
under three contracts (Nos. 1654384, 1659403, & 1669270) between Trafigura
and Valero—one with a mandatory arbitration clause and two with exclusive
forum selection clauses. On these grounds, Trafigura moved to sever and
transfer the claims subject to the forum selection clauses to the Southern
District of New York (the designated forum) and to dismiss the claims subject
to the arbitration clause in favor of arbitration.
       On December 26, 2019, the district court addressed Trafigura’s motions
in both shipping cases in a single opinion. It granted Trafigura’s motion to
sever and transfer the claims under the two contracts with the forum selection
clauses and to sever and dismiss the claims under the contract with the
arbitration clause. In its memorandum and opinion, the district court


       1The Nat’l Shipping Co. of Saudi Arabia v. Valero Mktg. & Supply Co., Civil Action
No. 19-1096; Indelpro S.A. DE C.V. v. Valero Mktg. & Supply Co., Civil Action No. 19-4115.

       2 See Fed. R. Civ. P. 14(c)(1)-(2) (“If a plaintiff asserts an admiralty or maritime claim
under Rule 9(h), the defendant . . . may, as a third-party plaintiff, bring in a third-party
defendant who may be wholly or partly liable—either to the plaintiff or to the third-party
plaintiff—for remedy over, contribution, or otherwise on account of the same transaction,
occurrence, or series of transactions or occurrences . . . . The third-party plaintiff may demand
judgment in the plaintiff's favor against the third-party defendant.”).

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explained that Contract No. 1654384 contained a valid agreement to arbitrate
and that several of Valero’s claims fell within the scope of that agreement so
severance and dismissal in favor of arbitration was warranted. As to Contract
Nos. 1659403 and 1669270, the district court noted that they contained
exclusive forum selection clauses identifying the Southern District of New
York as having exclusive jurisdiction. Upon analyzing the applicable private
and public-interest factors, the court determined that severance and transfer
was appropriate. See 28 U.S.C. § 1404(a). Finally, citing this court’s opinion in
Texaco Exploration & Production Company v. AmClyde Engineered Products
Company, 243 F.3d 906, 908, 910 (5th Cir. 2001), the district court held that
the Rule 14(c) tender did not overcome the contractually agreed upon
arbitration and forum selection clauses.
        After the district court’s December 2019 opinion issued, Valero filed a
notice of appeal pursuant to 28 U.S.C. § 1292(a)(3). Valero then filed a motion
for clarification as to what effect the transfer and dismissal of its third-party
claims against Trafigura had on its Rule 14(c) tender of Trafigura in the
National Shipping case. In its motion, Valero stated that if the district court
intended to “fully dismiss Trafigura,” it would seek certification of the issue for
interlocutory appeal to the Fifth Circuit under 28 U.S.C. § 1292(b).
        The district court granted Valero’s motion for clarification and explained
that there was “no Rule 14(c) tender that overcomes the arbitration and forum-
selection clauses at issue in this case [so] Trafigura is no longer a party to this
litigation.” The district court then denied Valero’s motion to conditionally
certify the issue for interlocutory appeal under 28 U.S.C. § 1292(b) observing
that:
              The December 2019, opinion did not determine the
              rights and obligations of Valero and Trafigura, but
              merely ruled on the forum for determining those rights
              and obligations. The issue does not involve a
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            “controlling issue of law” nor will it “materially
            advance the ultimate termination of the litigation.”

Valero then appealed the district court’s March 3, 2020 order pursuant to 28
U.S.C. § 1292(a)(3) noting that the order “merely makes clear that the prior
[December 2019] opinion did, in fact, have the effect of dismissing Valero’s Rule
14(c) tender of Trafigura as a direct-defendant to Plaintiff National Shipping
Company of Saudi Arabia.”
                           II. Standard of Review
      “[T]his court has a duty to analyze its own jurisdiction de novo.” See
Providence Behavioral Health v. Grant Rd. Pub. Util. Dist., 902 F.3d 448, 455
(5th Cir. 2018) (citing Smith v. Booth, 823 F.2d 94, 96 (5th Cir. 1987)).
                                III. Discussion
      On appeal, Valero argues that the district court erred in concluding that
the dismissal and transfer of its third-party claims against Trafigura
necessitated dismissal of its Rule 14(c) tender of Trafigura in the National
Shipping case. Trafigura counters that this court lacks jurisdiction to entertain
Valero’s appeal under 28 U.S.C. § 1292(a)(3) because the district court’s ruling
did not constitute a final determination of the rights and liabilities of the
parties. We agree.
      “This court’s appellate jurisdiction is ordinarily limited to ‘final decisions
of the district courts of the United States.’” SCF Waxler Marine, LLC v. Aris T
M/V, 902 F.3d 461, 464 (5th Cir. 2018) (citing 28 U.S.C. § 1291). However,
where permitted by statute, we may hear certain interlocutory appeals. Id.
Section 1292(a)(3) provides that appellate courts shall have jurisdiction over
appeals from interlocutory decrees of district courts “determining the rights
and liabilities of the parties to admiralty cases.” We have “construed [this]
grant narrowly, hewing closely to the statute’s ‘original purpose of permitting
appeals from orders finally determining one party’s liability to another and
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referring the action for a computation of damages.’” Waxler Marine, 902 F.3d
at 464 (citation omitted). We do not look at the “characterization of the ruling
at issue [but rather] to the substance of what the lower court decided.” Id. We
have acknowledged “that appellate jurisdiction is generally appropriate
‘whenever an order in an admiralty case dismisses a claim for relief on the
merits.’” Id. at 464–65.
       Valero contends that under Waxler Marine, the “district court’s dismissal
of the Rule 14(c) tender of Trafigura to [National Shipping] as a direct-
defendant has the effect of finally determining the liability of Trafigura as non-
existent with respect to those claims.” We disagree. As the district court stated
in its March 2020 order, “[t]he December 2019[] opinion did not determine the
rights and obligations of Valero and Trafigura, but merely ruled on the forum
for determining those rights and obligations.” 3 Moreover, Valero’s own liability
in the shipping cases has yet to be established in the underlying litigation and
consequently, as Trafigura concedes in its appellate brief, “Trafigura’s
potential liability to Valero remains a live issue” although it must be resolved
in a different forum. Because we conclude that the district court’s December
2019 order granting Trafigura’s motions to sever and transfer and to sever and
dismiss did not determine the rights and liabilities of the parties, we hold that
we do not have jurisdiction over Valero’s appeal taken pursuant to 28 U.S.C. §
1292(a)(3).
                                     IV. Conclusion
       Valero’s appeal is dismissed for lack of jurisdiction.



       3See In re Ingram Towing Co., 59 F.3d 513, 517 (5th Cir. 1995) (rejecting jurisdiction
under section 1292(a)(3) for decision staying state court action because “[t]he district court
did not determine the rights and liabilities of the parties, it ‘merely settled how and where
the rights and liabilities would be determined.’” (quoting State Establishment v. M/V
Wesermunde, 770 F.2d 987, 990 (11th Cir. 1985))); see also Psara Energy, Ltd. v. Advantage
Arrow Shipping, L.L.C., 946 F.3d 803, 809 (5th Cir. 2020).
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