     Case: 14-30424      Document: 00513061967   Page: 1   Date Filed: 06/01/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                  No. 14-30424                  United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
JAMES JOHNSON,                                                      June 1, 2015
                                                                  Lyle W. Cayce
             Plaintiff                                                 Clerk

v.

PPI TECHNOLOGY SERVICES, L.P.,

            Defendant
________________________________________________________

ROBERT CROKE,

             Plaintiff - Appellant

v.

PPI TECHNOLOGY SERVICES, L.P.; GLOBALSANTAFE OFFSHORE
SERVICES, INCORPORATED; TRANSOCEAN OFFSHORE DEEPWATER
DRILLING, INCORPORATED,

             Defendants - Appellees




                Appeals from the United States District Court
                    for the Eastern District of Louisiana
                      Nos. 2:11-CV-2773, 2:12-CV-1534
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                                         No. 14-30424


Before JOLLY and DENNIS, Circuit Judges, and RAMOS, District Judge. ∗
PER CURIAM:**
       Robert Croke alleges that, while working aboard an oil rig off the coast
of Nigeria, gunmen boarded the rig, kidnapped him, and held him hostage for
ten days. After his release, Croke sued PPI Technology Services, L.P., and
GlobalSantaFe Offshore Services, Inc. He claims that the former was his
employer and the latter employed other rig workers. 1 Both companies, he
contends, were negligent in failing to take protective measures that would have
avoided the incident. Because Croke is a citizen of Canada and the incident at
issue occurred in Nigerian waters, the district court dismissed the case under
the foreign seaman exclusion provisions of the Jones Act. For the reasons that
follow, we will affirm.
                                                I.
       We first address Croke’s argument that the district court erred in
applying the foreign seaman exclusion provisions of the Jones Act. 46 U.S.C.
§ 30105(b) provides:
                Except as provided in subsection (c), a civil action for
                maintenance and cure or for damages for personal



       ∗
           District Judge of the Southern District of Texas, sitting by designation.
       **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 PPI Technology Services disputes that it, rather than another company, employed
Croke, but that issue is not involved in the present appeal. See Johnson v. PPI Tech. Servs.,
L.P., No. 14-30423, ___ F. App’x ___, 2015 WL 1434928 (5th Cir. Mar. 31, 2015) (unpublished)
(addressing whether PPI Technology Services employed James Johnson, another rig worker
injured in the same incident).

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            injury or death may not be brought under a maritime
            law of the United States if—
            (1) the individual suffering the injury or death was not
            a citizen or permanent resident alien of the United
            States at the time of the incident giving rise to the
            action;
            (2) the incident occurred in the territorial waters or
            waters overlaying the continental shelf of a country
            other than the United States; and
            (3) the individual suffering the injury or death was
            employed at the time of the incident by a person
            engaged in the exploration, development, or
            production of offshore mineral or energy resources,
            including drilling, mapping, surveying, diving,
            pipelaying, maintaining, repairing, constructing, or
            transporting supplies, equipment, or personnel, but
            not including transporting those resources by a vessel
            constructed or adapted primarily to carry oil in bulk in
            the cargo spaces.
      The district court held that this exclusion applied because Croke is a
citizen of Canada and his claims involve an incident that occurred in Nigerian
waters. Because Croke does not challenge that determination, we will not
disturb it. The dispute is whether 46 U.S.C. § 30105(c)’s exception to the
exclusion is applicable. Section 30105(c) provides:
            Subsection (b) does not apply if the individual bringing
            the action establishes that a remedy is not available
            under the laws of—
            (1) the country asserting jurisdiction over the area in
            which the incident occurred; or
            (2) the country in which the individual suffering the
            injury or death maintained citizenship or residency at
            the time of the incident.


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       Specifically, the issue is whether Croke satisfied his burden on summary
judgment of showing, pursuant to § 30105(c), that “a remedy is not available
under the laws of [Nigeria] or [Canada].” The district court treated the issue
of foreign remedy availability as, essentially, an inquiry into whether either of
the foreign countries has remedial law on the books governing the
circumstances of the incident. Croke now contends that the district court’s
understanding of the § 30105(c) inquiry was too narrow. The district court’s
analysis, he charges, should not have considered only whether Nigeria and
Canada have applicable remedial law but also whether such remedies were
actually “available” (the statute’s term) to him or were rather outside his reach
for extraneous reasons. 2 As for Nigeria, Croke says that he does not have
“available” remedies in courts there because Nigerian courts cannot assert
jurisdiction over the non-Nigerian corporate defendants in this case.                     For
reasons that will become clear, we need not address Croke’s arguments as to
the unavailability of remedies in Canada.



       2 To support his argument that § 30105(c)’s concept of remedy “availability” takes into
account barriers extraneous to the remedial law itself, Croke analogizes § 30105(c) to the
Prison Litigation Reform Act’s exhaustion provision, which has similar statutory language
as § 30105(c). Under 42 U.S.C. § 1997e(a), “No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such administrative remedies as are
available are exhausted.” Courts agree that § 1997e(a)’s exhaustion requirement does not
bar prison conditions suits merely because a correctional facility had “administrative
remedies” that were not utilized. Rather, § 1997e(a) bars such suits only when “available”
administrative remedies were not utilized, which generally implies an absence of preclusive
barriers extraneous to the administrative procedures themselves. For example, correctional
facility administrative remedies are not “available” and need not be exhausted under
§ 1997e(a) when the correctional facility’s staff have misled the inmate as to the existence or
procedures of the administrative remedy system. See, e.g., Dillon v. Rogers, 596 F.3d 260,
268 (5th Cir. 2010); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011); Brown v. Croak, 312
F.3d 109, 112 (3d Cir. 2002).
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       We need not, and do not, decide whether we agree with Croke’s
interpretation of § 30105(c)—viz., that remedies are not “available” under a
foreign country’s laws if that country’s courts cannot assert jurisdiction over
the named defendants—because, irrespective of whether we adopt Croke’s
interpretation of the statute, we are compelled, for the reasons that follow, to
conclude that he has failed to satisfy his burden of showing the unavailability
of Nigerian remedies.
       Before the district court, in attempting to show the unavailability of
Nigerian remedies, Croke pointed to a prior ruling of the district court in
another related case consolidated with this one. PPI Technology Services had
moved, prior to the consolidation, to dismiss that case in favor of resolving the
dispute in Nigerian courts pursuant to the forum non conveniens doctrine, and
the district court denied the motion, holding that the company had not satisfied
its burden of establishing Nigerian courts as an available forum for the
dispute. Croke contended that as a result of the court’s forum non conveniens
ruling, “it has already been established in this case that there is no available
remedy in Nigeria.” That was incorrect. 3
       Under the forum non conveniens doctrine, it is the defendant who has the
burden of proof, but under § 30105(c), the burden is with the plaintiff.
Compare, e.g., DTEX, LLC v. BBVA Bancomer, S.A., 508 F.3d 785, 794 (5th
Cir. 2007) (forum non conveniens), with 46 U.S.C. § 30105(c). PPI Technology
Services failed to prove under the forum non conveniens doctrine that Nigeria
was an available forum, true. But it is a fallacy of logic to conclude that the


       3  The district court did not conclude that Nigerian courts were unavailable. The
court’s conclusion was: “PPI has failed, however, to demonstrate that an alternative forum in
Nigeria is available to resolve this dispute.” (Emphasis omitted.)
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company’s failure to prove that Nigerian courts were available ipso facto
establishes the converse: that such courts were unavailable. A defendant’s
failure to prove that a forum is available for the prosecution of the plaintiff’s
claims does not necessarily demonstrate that the forum is unavailable; actual
evidence of unavailability is a different matter.                  As the saying goes, “the
absence of evidence does not equal evidence of absence.” See, e.g., In re Rail
Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 254 (D.C. Cir. 2013);
United States v. Acosta-Gallardo, 656 F.3d 1109, 1117 (10th Cir. 2011). Under
§ 30105(c), it was Croke who had the burden of showing the unavailability of
Nigerian remedies, and he attempted to satisfy his burden with nothing more
than faulty logic.        He did not put forth any evidence or cite to any law
whatsoever.       We must conclude, therefore, that Croke failed to show the
unavailability of Nigerian remedies. Cf. Soc’y of Roman Catholic Church of
Diocese of Lafayette, Inc. v. Interstate Fire & Cas. Co., 126 F.3d 727, 735-36
(5th Cir. 1997) (law of the case is inapplicable when the burden was on one
party in the first appeal and on the other party in the second appeal). 4



       4   Croke makes several other arguments as to the unavailability of Nigerian remedies
that warrant only brief response. First, Croke points to an affidavit in the district court
record that he says is supportive of his claim that Nigerian remedies are unavailable to him.
However, he did not submit the affidavit in connection with his opposition to summary
judgment, nor did he refer to it. Although we “may” consider the affidavit in these
circumstances, we elect here to exercise our discretion to disregard it. FED. R. CIV. P.
56(c)(1)(A) (“A party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of the materials in the record . . . .”), (c)(3) (“The court need
consider only the cited materials, but it may consider other materials in the record.”); see Am.
Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 896-97 (5th Cir. 2013) (rejecting
appellant’s argument that district court’s summary judgment should be reversed based on
an affidavit in the record that was not cited in opposition to summary judgment). Second,
Croke says, without citing anything, that “potentially the statute of limitations on any
Nigerian remedies may have run.” Even assuming arguendo that a lapsed statute of
limitations renders foreign remedies “unavailable” under § 30105(c), we have no basis to
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       Because Croke did not meet his burden as to the unavailability of
Nigerian remedies, we need not reach his arguments as to the unavailability
of Canadian remedies. The district court’s application of § 30105(b) to preclude
Croke’s claims under the maritime law of the United States is affirmed.
                                            II.
       Next, Croke complains that the district court did not indicate whether it
was retaining jurisdiction over his claims arising under Nigerian law. The
principal problem with this argument is that we disagree with the premise that
he actually asserted any claims arising under Nigerian law. It is true that
pleading standards are liberal as a general matter, and precise statements of
legal theories are not required. FED. R. CIV. P. 8(a)(2); Johnson v. City of
Shelby, 135 S. Ct. 346 (2014). When, however, the plaintiff’s claim arises under
a foreign country’s law, he must give notice that he is relying on such foreign
law. FED. R. CIV. P. 44.1 (“A party who intends to raise an issue about a foreign
country’s law must give notice by a pleading or other writing.”).                   Croke’s
complaint did not state that he was relying on Nigerian law; neither did his
opposition to summary judgment; and neither did any other written
submission of which we are aware. Whatever claims Croke could have asserted
under Nigerian law, we hold that his total lack of notice forfeited them. See
Frietsch v. Refco, Inc., 56 F.3d 825, 828 (7th Cir. 1995).




conclude that the limitations period has lapsed. Croke doesn’t even say that it has—only
that it “potentially” “may” have. This is obviously no basis for reversal. See, e.g., Simmons
v. Willcox, 911 F.2d 1077, 1082 (5th Cir. 1990) (unsupported speculative allegations are
insufficient to preclude summary judgment).
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                                           III.
       Last, Croke contends that the district court erred in not allowing him to
amend his complaint. Before the district court, in his opposition to summary
judgment, Croke requested that if the court dismissed his claims under the
maritime law of the United States, then he be allowed to amend the complaint
to assert claims under Canadian law instead. 5               He added, however, that
“candidly such claims are moot and unavailable” because the statute of
limitations had run. The court dismissed the claims under United States law
and denied the request to amend the complaint to assert claims under
Canadian law, explaining that such amendment would be futile given that the
claims were, as Croke conceded, “moot and unavailable.” Croke then filed a
motion for reconsideration under Federal Rule of Civil Procedure 59(e). He
explained for the first time, and in apparent contradiction with his prior
statement that the claims were “moot and unavailable,” that, if he amended
the complaint, the amendment would “relate back” and the claims would not
be barred under the statute of limitations.             He did not explain how his
“relation-back” argument squared with his previous “candid” statement that
the claims were “moot and unavailable.”
       We hold that Croke cannot challenge the district court’s denial of his
motion to amend the complaint because, to the extent that the district court
may have erred, Croke invited the error. It is not clear what, exactly, Croke
meant in “candidly” conceding that his Canadian law claims were “moot and



       5 When Croke requested leave to amend the complaint, the district court’s deadline
for such amendments had already passed. Therefore, the law required Croke to show “good
cause” for the untimely amendment. FED. R. CIV. P. 16(b)(4); Fahim v. Marriott Hotel Servs.,
Inc., 551 F.3d 344, 348 (5th Cir. 2008).
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unavailable.” The only apparent meaning we can perceive, though, is that he
intended to concede that the law did not allow him to assert the claims, at least
not in this case, at this time. Cf., e.g., Nat’l Rifle Ass’n of Am., Inc. v. McCraw,
719 F.3d 338, 344 (5th Cir. 2013) (“If a claim is moot, it presents no Article III
case or controversy, and a court has no constitutional jurisdiction to resolve
the issues it presents.”) (internal quotation marks and citation omitted).
Having represented to the district court that the law did not allow him to assert
his Canadian law claims (we see no alternative interpretation of his
statement), he cannot now challenge on appeal the district court’s adoption of
such conclusion. See Overhead Door Corp. v. Newcourt, Inc., 611 F.2d 989, 990
(5th Cir. 1980). The district court’s denial of leave to amend the complaint is
affirmed.
      The next question, then, is whether the district court abused its
discretion in denying Croke’s subsequent motion for reconsideration under
Rule 59(e). In the context presented here, we think not. See Simon v. United
States, 891 F.2d 1154, 1159 (5th Cir. 1990) (“These motions cannot be used to
raise arguments which could, and should, have been made before the judgment
issued.”); Frietsch, 56 F.3d at 828 (“But the only method by which the plaintiffs
tried to bring to the district court’s (or our) attention the German law on the
enforcement of forum selection clauses was by submitting to the district court
an affidavit of German law after that court had dismissed the suit, when the
plaintiffs moved for reconsideration. The judge was not obliged to consider this
belatedly submitted affidavit.”). The district court’s denial of the Rule 59(e)
motion is affirmed.
                                       ***
      The district court’s judgment is AFFIRMED.
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                                No. 14-30424


E. GRADY JOLLY, Circuit Judge, concurring:
      I agree with the majority that, because Croke presented no evidence of
the unavailability of Nigerian remedies, he failed to carry his burden under
the exception to the foreign-seaman exclusion, 46 U.S.C. § 31015(c). Footnote
2, however—which addresses an issue that is not reached in this appeal and is
not determinative to our outcome—is dicta, and I respectfully disagree with its
inclusion. Otherwise, I concur with the majority.




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