Fifth Circuit Panel Divides Over Issuance of a Foreign Anti-Suit Injunction in Jones Act Case, Noting the Circuit’s “Permissive” Approach Favoring Such Relief

In Ganpat v. Eastern Pacific Shipping PTE, No. 22-30168 (5th Cir. Apr. 28, 2023), the Fifth Circuit divides over whether the district court abused its discretion in issuing an anti-suit injunction to bar litigation of a sailor’s personal injury action in India.

“Kholkar Vishveshwar Ganpat, a citizen of India, worked as a crew member on the Stargate, a merchant ship managed by the Singapore-based shipping company Eastern Pacific. When the Stargate stopped at Savannah, Georgia, in spring 2017, Eastern Pacific allegedly failed to stock up on anti-malarial medicine, despite warnings that the supply was low. Ganpat then contracted malaria in Gabon, the Stargate’s next stop—and a predictably high-risk area for malaria. When the Stargate arrived at Rio de Janeiro, the stop after Gabon, Ganpat went to the hospital, where his gangrenous toes— a complication of malaria—were amputated.”

Plaintiff Ganpat sued Eastern Pacific under the Jones Act in the U.S. District Court for the Eastern District of Louisiana. Eastern Pacific countersued Ganpat in India.

The Indian court then “enjoined Ganpat from continuing his lawsuit in the United States. The court then issued an arrest warrant against Ganpat when he failed to comply.” It escalated from there: he was allegedly arrested, arraigned without counsel, and pressured to settle by the shipping company. “[T]he Indian judge instructed the attorney of Eastern Pacific, the opposing party, to advise Ganpat.” Finally, Ganpat was thrown into a lock-up “where he was strip searched and held in a cramped cell.”

“In August 2021, back in the Eastern District of Louisiana, Ganpat sought an anti-suit injunction to prohibit Eastern Pacific from prosecuting its Indian suit against him. Finding the Indian litigation vexatious and oppressive, and determining that it need not show comity to the Indian court that had attempted to enjoin the American suit, the district court granted the injunction in favor of Ganpat. Eastern Pacific now appeals the district court’s grant of the anti-suit injunction.”

The Fifth Circuit affirms. In weighing the equities, the panel majority observes that “this is as strong a case of inequitable hardship as the previous cases where we have upheld injunctive relief.” The plaintiff “has already been jailed once for violating the ex parte antisuit injunction, and . . . faces a real possibility of being sent back to jail and having his property seized, as Eastern Pacific . . . seeks to have the Indian court enforce sixteen counts of contempt against [plaintiff].” Moreover, “[t]he Indian court has sought to prevent Ganpat from litigating in the United States, even though the American suit was filed first.”

The panel majority also finds a lack of hardship for the defendant. “Eastern Pacific seeks to establish in Indian court by declaratory judgment the very same legal theory it raises as an affirmative defense in U.S. court—namely, that an employment agreement limits its liability to Ganpat.”

Finally, the panel majority holds that there are no grounds for international comity. “To begin with, no public international issues are implicated in this case . . . . In addition, Ganpat’s case has long been ensconced in the American judicial system . . . . In April 2019, Eastern Pacific appeared and waived objections to personal jurisdiction and venue. Only in March 2020, almost a year after Ganpat’s suit had already become ensconced within the United States, did Eastern Pacific file its Indian lawsuit against Ganpa.”

In dissent, Judge Edith Jones faults the panel majority’s failure to apply the traditional four-part test for injunctive relief, including irreparable injury. “The majority discounts that Ganpat, like any movant for equitable relief, must ultimately satisfy a four-part test and show a likelihood of success on the merit.” But the majority observes that Fifth Circuit authority takes a more permissive approach, not requiring rigid adherence to the conventional injunction standard. “We recognize that other federal courts are currently split on anti-suit injunctions—some circuits such as ours take a more permissive approach, while others take a more restrictive approach.”

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