Freudensprung v. Offshore Technical Services, Inc.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 9, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 03-20226

FRED FREUDENSPRUNG,

Plaintiff-Appellant,

versus

OFFSHORE TECHNICAL SERVICES, INC.,
WILLBROS GROUP, INC.,
WILLBROS U.S.A., INC.,
WILLBROS ENGINEERS, INC.,
WILLBROS INTERNATIONAL, INC.,
WILLBROS WEST AFRICA, INC,

Defendants-Appellees.

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

Before BENAVIDES, STEWART, and DENNIS, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This maritime action stems from injuries sustained by Fred Freudensprung (“Freudensprung”)

while working as a barge leaderman on an offshore oil and gas project in Nigerian waters.

Freudensprung appeals the district court’s orders staying litigation of his Jones Act and U.S. general

maritime law claims pending arbitration and denying his alternative motions for entry of a separate
judgment or clarification of the court’s orders. Freudensprung also appeals the district court’s order

dismissing defendant Willbros West Africa, Inc., for lack of personal jurisdiction. For the following

reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Freudensprung’s Jones Act and U.S. general maritime law action asserted that he sustained

permanently disabling injuries while working as a leaderman aboard a sea-going derrick barge off the

coast of Lagos, Nigeria. Freudensprung had been assigned to work on the barge through the

operation of two agreements pertinent to the instant dispute: a “Consultant’s Agreement” between

Freudensprung and Offshore Technical Services, Inc. (“OTSI”), a Texas-based corporation, and an

“Offshore Personnel Supply Agreement” ( “Personnel Supply Agreement”) between OTSI and the

barge’s owner and operator, Willsbro West Africa, Inc. (“WWAI”), a Panamanian corporation. OTSI

is an independent contractor that supplies experienced personnel, or “consultants,” to the offshore

hydrocarbon industry to perform work on offshore platforms. To that end, on November 26, 1997,

OTSI entered into the Consultant’s Agreement with Freudensprung, the stated purpose of which was

to “effect the purchase of professional services . . . for hook-up, engineering, planning, inspection,

. . . [and] pipeline work” “in order to discharge OTSI's own contractual obligations” to entities

seeking such services. Pursuant to the Consultant’s Agreement, Freudensprung agreed that he was

retained as an independent contractor, not an employee, and further stipulated that he was not a

seaman and thus wo uld not claim any benefit under the Jones Act. The Consultant’s Agreement

contained a Texas choice-of-law provision as well as an arbitration clause requiring the parties to

submit “any dispute” arising from the agreement to binding arbitration in Houston, Texas. The

2
agreement also expressly incorporated the terms of “any Work Order” issued to Freudensprung for

a particular assignment.

On May 24, 2000, OTSI and WWAI entered into the Personnel Supply Agreement, pursuant

to which OTSI agreed to supply technical, supervisory, and craft personnel to WWAI for the

performance of WWAI’s contracts in Africa relating to offshore marine operations, fabrication,

inspection, installation, hook-up, and pipeline work. The Personnel Supply Agreement contained an

English choice-of-law provision and an arbitration clause requiring OTSI and WWAI to submit any

dispute related to the agreement to binding arbitration in Houston, Texas. Under the terms of the

Personnel Supply Agreement, WWAI would pay OTSI certain stipulated daily rates for each worker

provided, but all personnel supplied by OTSI would remain “employees of OTSI while . . . assigned

to [WWAI].” WWAI, however, “would be fully responsible for the management and organization

of the work performed on the offshore vessels to which OTSI personnel are assigned.”

Shortly after retaining OTSI, WWAI contacted the company with a request for consultants

for a WWAI project in Nigeria. Ultimately, WWAI selected Freudensprung from among the

candidates referred by OTSI. By Work Order No. 4, dated June 9, 2000, OTSI and Freudensprung

agreed that Freudensprung would work for WWAI as a barge leaderman in West Africa. Like their

Consultant’s Agreement, Work Order No. 4 contained a clause requiring binding arbitration of any

“contractual disagreements, claims or disputes of any nature” that might arise between OTSI and

Freudensprung.

On July 1, 2000, Freudensprung departed for Africa to begin his assignment aboard WWAI’s

seagoing derrick barge, the W B 318. The project involved the installation of a single point mooring

system (“SPM”), a marine structure that facilitates the loading and offloading of oil tankers from

3
onshore tanks. On July 28, 2000, Freudensprung and other crew members were charged with

securing the SPM to the ocean floor with twelve large chains. This task required laying the chains

over the side of the WB 318 and gradually lowering them by winches and cables. The chains were

several hundred feet in length and each chain link weighed in excess of two hundred pounds. As the

crew lowered the second chain, the cable on the stern winch failed, releasing the heavy chain. The

runaway chain struck Freudensprung from behind, causing him severe and permanently disabling

mental and physical injuries that rendered him unable to work.

On October 4, 2001, Freudensprung filed this maritime action in federal district court against

OTSI and several alleged subsidiaries of Willbros Group, Inc., including Willbros USA, Inc., Willbros

Engineering, Inc., and foreign subsidiaries WWAI and Willbros International, Inc. In his complaint,

Freudensprung asserted claims under the Jones Act, 46 U.S.C. app. § 688 (2000), and the U.S.

general maritime law for negligence, vessel unseaworthiness, and maintenance and cure. On

December 21, 2001, defendant WWAI filed a motion to dismiss the suit for lack of personal

jurisdiction and insufficient service of process. In response, Freudensprung amended his complaint,

adding Willbros Group, Inc., the alleged parent company of WWAI, and modifying the place where

service could be properly effected upon WWAI. Nonetheless, on February 20, 2002, the district

court granted without prejudice WWAI’s motion to dismiss for lack of jurisdiction. OTSI then

moved the district court to stay Freudensprung’s claims pending arbitration, citing the arbitration

clause in its Consultant’s Agreement with Freudensprung. Freudensprung responded by arguing that

the agreement was a seaman’s contract of employment and thus exempt from arbitration, and

furthermore that arbitration was inappropriate under both federal and state law. In its order of

August 15, 2002, the district court granted OTSI’s motion without assigning reasons and ordered

4
the case administratively closed. The order further granted leave to move to reinstate the case on the

district court’s active docket “within ten (10) days from the date of a ruling by the Court of Appeals.”

On August 26, 2002, Freudensprung filed a motion for reconsideration, which the district

court also denied in an order entered on October 15, 2002. Finding the language in the district

court’s August 15 order staying the case unclear, Freudensprung filed a motion for entry of judgment

or, alternatively, a motion for clarification, on November 15, 2002. In his motion, Freudensprung

requested that if the district court had intended to enter a final order from which he could appeal, that

the district court enter a separate document setting forth the judgment as required under Federal Rule

of Civil Procedure 58. If the court did not so intend, Freudensprung asked that the district court

clarify that the stay would extend only until after arbitration of his claims and not until after a decision

by this Court. In response, OTSI argued that Freudensprung’s motion was simply a second motion

for reconsideration and that it should be denied because t he August 15, 2002 order was a “final

appealable order.” On January 13, 2003, the district court denied Freudensprung’s motion for entry

of judgment and refused to clarify its order staying Freudensprung’s claims. On February 12, 2003,

Freudensprung filed notice of appeal from the district court’s orders st aying his claims pending

arbitration and administratively closing the case, denying entry of judgment or clarification of its stay,

and dismissing WWAI for lack of personal jurisdiction.

DISCUSSION

On appeal, Freudensprung advances several points of error regarding the district court’s order

compelling arbitration and staying his claims and its dismissal of WWAI for lack of jurisdiction.

Before addressing the merits of these assertions, however, we must first address the timeliness of

Freudensprung’s February 12, 2003, notice of appeal, which was filed more than five months after

5
the district court’s August 15, 2002 order staying his claims pending arbitration and administratively

closing the case.1

I. Whether Freudensprung timely filed notice of appeal

“A timely filed notice of appeal is a jurisdictional prerequisite to [appellate review].” Dison

v. Whitely, 20 F.3d 185, 186 (5th Cir. 1994). Federal Rules of Appellate Procedure 4 (a) (1) (A)

provides in pertinent part that “except as provi ded in Rules 4 (a) (1) (B), 4 (a) (4), and 4 (c), the

notice of appeal . . . must be filed with the district clerk within 30 days after the judgment or order

appealed from is entered.” (emphasis added). Rule 4 (a) (7) further provides that a judgment or

order is deemed “ent ered” within the meaning of Rule 4 (a) when it is set forth on a separate

document in compliance with Federal Rules of Civil Procedure 58 (a) (1) and entered on the district

court’s civil docket as required by Federal Rules of Civil Procedure 79 (a).

In this case, the timeliness of Freudensprung’s February 12, 2003, notice of appeal depends

on the effect of the district court’s refusal to enter a separate document labeled a judgment for its

August 15, 2002, order staying his claims pending arbitration and administratively closing the case.

Certain amendments, effective December 1, 2002, were made to Federal Rule of Civil Procedure 58

and Federal Rule of Appellate Procedure 4 (a) (7) to resolve uncertainties concerning how Rule 4 (a)

(7)’s “definition of when a judgment or order is deemed ‘entered’ interacts with the requirement in

[Rule] 58 that, to be ‘effective,’ a judgment must be set forth on a separate document.” Notes of

Advisory Committee on Rules, 2002 Amendments, following Rule 4.2 Amended Rule 58 (a) (1)

1
The parties briefed this threshold jurisdictional question pursuant to this Court’s order.
2
These amendments became effective after entry of the district court’s August 15, 2002,
order staying Freudensprung’s claims and its October 15, 2002, order denying reconsideration of
its stay, but before Freudensprung filed notice of appeal, raising the question whether these

6
requires, in pertinent part, that “[e]very judgment and amended judgment be set forth on a separate

document,” but does not require a separate document “for an order disposing of a motion: . . . (D)

for a new trial, or to alter or amend the judgment, under Rule 59.”3 Fed. R. Civ. P. 58 (a) (1) (2002).

A separate document “provides the basis for the entry of judgment” and must be “distinct from any

opinion or memorandum.” Notes of Advisory Committee on Rules, 1963 Amendments, following

Rule 58. For cases in which Rule 58 requires that a judgment or order be set forth in a separate

document but there was none, both Rule 4 (a) (7) and Rule 58 have been amended to provide that

such judgment or order is deemed entered -- and the 30-day time period to file notice of appeal starts

to run -- upo n expiration of 150 days from the date of entry of the judgment or order on the civil

docket.4 See Fed. R. App. P. 4 (a) (7) (A) (ii) (2002); Fed. R. Civ. P. 58 (b) (1)-(2) (2002).

changes apply retroactively in the instant case. Our jurisprudence requires that the “‘amended
Rules [and, specifically, amendments to Rule 4] , . . . be given retroactive application to the
maximum extent possible . . . unless their application [in the case at hand] would work injustice.’”
Burt v. Ware, 14 F.3d 256-60 (5th Cir. 1994) (quoting Skoczylas v. Federal Bureau of Prisons,
961 F.2d 543, 546 (5th Cir.1992)). On the peculiar facts of this case, we would reach the same
conclusion concerning the timeliness of Freudensprung’s notice of appeal under the former or
amended versions of Rule 58 and Rule 4 (a) (7). Accordingly, it cannot be said that the
retroactive application of the amended rules would “work injustice,” and we therefore find that
the newly amended appellate and civil procedure rules do indeed apply retroactively in this case.
See Skoczylas, 961 F.2d at 545.
3
Former Rule 58 simply required that “[e]very judgment and amended judgment be set
forth on a separate document,” without exception.
4
Previously, no such cap existed, meaning that as construed in this Circuit, where a
required separate document was lacking, the time limit to file notice of appeal never began to run;
thus parties were “given forever to appeal (or to bring a postjudgment motion).” Notes of
Advisory Committee on Rules, 2002 Amendment, following Rule 4; Hammack v. Baroid Corp.,
142 F.3d 266, 269-70 (5th Cir. 1998); see Townsend v. Lucas, 745 F.2d 933, 934 (5th Cir.
1984) (remanding the case to allow appellant to move for entry of a separate judgment document
from which he could appeal within 30 days of entry of that document even though appellant did
not file his initial notice of appeal until more than eight months after entry on the docket of the
contested judgment that should have been set forth on a separate document but was not).

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 OTSI and WWAI concede that the district court never entered a separate judgment document

for its August 15, 2002, order staying Freudensprung’s claims. The ruling itself is entitled “ORDER,”

and nowhere even mentions the words “judgment” or “final judgment.” OTSI and WWAI

nonetheless argue that no such separate document was required in this case because the order became

final and appealable, and thus immediately subject to the 30-day time limit for filing notice of appeal,

on the August 15, 2002, docket entry date of that order. Specifically, OTSI asserts that the order

constituted a final appealable order for which no separate document was required because the order

“administratively closed” the case, authorized an immediate appeal to this Court, and neither recited

lengthy factual and legal conclusions nor indicated that a separate document would be issued. In

support of its contention that the August 15, 2002, order was final and appealable, and thus not

subject to the separate document requirement, WWAI relies primarily on American Heritage Life Ins.

Co. v. Orr, 294 F.3d 702, 707-08 (5th Cir. 2003), in which this Court held that an order compelling

arbitration, staying the underlying litigation, and administratively closing the case, constituted a final

appealable decision. According to OTSI and WWAI, therefore, Freudensprung’s notice of appeal

was not timely because he failed to file it within 30 days of the district court’s August 15, 2002 order

staying his claims and administratively closing the case. We disagree.

That the August 15, 2002, order was final and otherwise appealable does not in itself excuse

the district court from Rule 58's separate document requirement. As we have previously stated,

“[f]inality of a judgment, appealability of a judgment, and the separate document requirement are

different concepts, but are often confused.” Theriot v. ASW Well Serv. Inc., 951 F.2d 84, 87-88

(5th Cir 1992). It is true that in American Heritage, we held that an order “administratively closing”

the case was tantamount to an order dismissing the case, and thus satisfied the Federal Arbitration

8
Act’s requirement that the order compelling arbitration be final to be appealable. American Heritage,

294 F.3d at 708; see 9 U.S.C. § 16(a) (3) (providing for “immediate appeal of any ‘final decision’”

with respect to arbitration, regardless of whether such decision is favorable or hostile to arbitration).

American Heritage, however, concerned only whether the ruling at issue was interlocutory or final

in nature, as the Federal Arbitration Act does not permit interlocutory appeals from orders compelling

arbitration. See American Heritage, 294 F.3d at 708. The separate document rule was not at issue

in American Heritage, presumably Rule 58 had been satisfied in that case.

Moreover, our opinion in Theriot forecloses extending American Heritage to the proposition

advanced by the appellees -- namely, that the finality of an order administratively closing a case

obviates Rule 58's separate document requirement. See Theriot, 951 F.2d at 87-88. In Theriot, we

held that a minute entry on the district court’s docket recording the grant of summary judgment

“cannot constitute a ‘separate document’ for the purpo ses of meeting the Rule 58 requirement,”

regardless of whether that judgment was “otherwise appealable as a final order or as an interlocutory

order.” Theriot, 951 F.2d at 87-88; accord, Transit Mgmt of Southeast LA., Inc. v. Group Ins.

Admin., Inc., 226 F.3d 376, 382 (5th Cir. 2000). Applying former Rule 58 in Theriot, we observed

that the rule applied to “‘[e]very judgment,’ with ‘judgment’ defined as ‘a decree or any order from

which an appeal lies,’” and thus concluded that even otherwise final and appealable orders “still [had

to] comply with Rules 58 and 79 (a) before an appeal [could] be taken.” Theriot, 951 F.2d at 88.

The rules of appellate and civil procedure applicable in this case similarly contain no

exemption of orders staying litigation of claims from the separate document requirement, even if such

order is final. See Theriot, 951 F.2d at 87-88. To the contrary, amended Rule 58 requires that

“[e]very judgment and amended judgment [except orders disposing of certain enumerated post-

9
judgment motions, including Rule 59 motions to alter or amend the judgment] be set forth on a

separate document.” While we construe Freudensprung’s August 26, 2002, motion for clarification

of the district court’s August 15, 2002, order staying his claims as a Rule 59 motion, see Burt, 14

F.3d at 259-60, amended Rule 58’s exemption from the separate document requirement of the district

court’s October 15, 2002, order denying this motion does not excuse the district court’s failure to

enter a required separate document for its August 15, 2002 order. As the Notes of the Advisory

Committee on the 2002 amendments to Rule 58 instruct,

Many of the enumerated motions [in Rule 58 (a) (1) (A)-(E)] are frequently made
before judgment is entered. The exemption of the order disposing of the [enumerated]
motion [from the separate document requirement] does not excuse the obligation to
set forth the judgment itself on a separate document. And if disposition of the motion
results in an amended judgment, the amended judgment must be set forth on a
separate document.

Accordingly, because the August 15, 2002, order lacked a required separate document, under

amended Rules 4 and 58 (b), the order was not deemed “entered” -- and the time to file notice of

appeal did not begin to run -- until expiration of the 150-day period following the August 15 docket

entry date of that order. As noted above, Rule 4 (a) (1) (A) provides that in civil cases such as this

one, a notice of appeal is timely if filed within 30 days fro m such “entry of judgment.”

Freudensprung’s February 12, 2003, notice of appeal, which was filed on the 30th day after a

judgment was deemed entered, was therefore timely filed. In sum, we have repeatedly recognized

that Rule 58 “should be interpreted to prevent loss of the right to appeal, not to facilitate loss,” and

see no reason to depart from this principle in this case. Hammack v. Barroid Corp., 142 F.3d 266,

269 (5th Cir. 1998) (quoting Bankers Trust Co., 435 U.S, at 385); accord, Theriot, 951 F.2d at 88

(citing In re Seiscom Delta, Inc., 857 F.2d 279, 283 (5th Cir.1988)).

10
II. The propriety of the district court’s order compelling arbitration of the Jones Act and U.S.
general maritime law claims against OTSI

Having determined that Freudensprung’s notice of appeal was timely, we now turn to

Fruedensprung’s assertion that the district court erred by compelling arbitration of his Jones Act and

U.S. general maritime law claims against OTSI. We affirm.

A. Standard of review

We review a district court’s ruling on a motion to compel arbitration and to stay litigation de

novo. Hadnot v. Bay, Ltd., 344 F.3d 474, 476 (5th Cir. 2003) (citing Webb v. Investacorp, Inc. 89

F.3d 252, 257 (5th Cir.1996)); Complaint of Hornbeck Offshore (1984) Corp. v. Coastal Carriers

Corp., 981 F.2d 752, 754 (5th Cir. 1993). A district court’s interpretation of the scope of an

arbitration agreement is also subject to this Court’s plenary review. See Pennzoil Exploration &

Prod. Co. v. Ramco Energy Ltd., 139 F.3d 1061, 1065 (5th Cir. 1998).

B. Scope and enforceability of the arbitration agreement

Freudensprung primarily contends that he is exempt from arbitrating his Jones Act and

maritime law claims because his Consultant’s Agreement with OTSI constitutes a seaman’s

employment contract and, as such, is expressly excluded from coverage under the Federal Arbitration

Act (“FAA” or “Arbitration Act”) by virtue of Section 1 of that statute. OTSI counters that this

statutory exemption does not apply to Freudensprung, arguing that Freudensprung is not a seaman

for t he purposes of the Jones Act or the FAA, that he is an independent contractor, and that,

consequently, the parties’ agreement is not a seaman’s “contract of employment.” Both

Freudensprung and OTSI advance strong arguments in support of their respective positions on this

point. However, our thorough review of the parties’ oral and written arguments and the record in

this case reveals that it is unnecessary to decide today whether their Consultant’s Agreement may be

11
properly deemed a seaman’s employment contract in order to determine the arbitrability of

Freudensprung’s claims. As OTSI correctly points out in its most recent submission to this Court,5

on the peculiar facts of this case, even assuming arguendo that the Consultant’s Agreement is a

seaman’s employment contract, the arbitration agreement contained therein is nonetheless enforceable

pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards

(“Convention”),6 as implemented by the United States through 9 U.S.C. §§ 201-208 (“Convention

Act”), which we conclude governs concurrently with the FAA in this case.7

5
By letter of October 7, 2003, submitted pursuant to Federal Rule of Appellate Procedure
28 (j) after Freudensprung filed his reply brief but prior to oral argument, OTSI argues for the
first time on appeal that the Convention and its implementing legislation compel enforcement of
the arbitration agreement at issue in this case, directing this Court’s attention to our opinion in
Francisco v. Stolt Achievement MT, 293 F.3d 270, 274 (5th Cir.), cert. denied 537 U.S. 1030
(2002). Although we may, in our discretion, decline to entertain an issue not raised in the trial
court, we choose to address this purely legal question here. See Bridges v. City of Bossier, 92
F.3d 329, 335 (5th Cir. 1996). We note that OTSI did argue, both before the trial court and in its
brief on appeal, that Section 1 of the FAA does not exempt Freudensprung from arbitrating his
claims. See Bridges, 92 F.3d at 335 (electing to liberally construe argument which appellant
raised only indirectly in the trial court and in its initial brief to hold that the variation on the
original argument was not waived to the extent it presented purely a legal question). Moreover,
we may affirm the district court on any ground supported by the record, see Okoye v. Univ. of
Tex. Houston Health Sci. Ctr., 245 F.3d 507, 511 (5th Cir.2001), and it is our duty to enunciate
the correct law on the record facts. See Empire Life Ins. Co. of America v. Valdak Corp., 468
F.2d 330, 334 (5th Cir.1972) (stating that “[n]either the parties nor the trial judge, by agreement
or passivity, can force us to abdicate our appellate responsibility”).
6
Done June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38, reprinted in 9
U.S.C.A. § 201 note.
7
The Consultant’s Agreement contains a choice-of-law clause providing that “the Laws of
the State of Texas” shall govern “[t]he construction, validity, and performance of this Agreement
and all matters pertaining thereto.” Citing this clause, Freudensprung asserts that he is also
exempt from arbitration because the Texas General Arbitration Act (“TGAA”) prohibits
arbitration of personal injury claims except under circumstances not presented here. TEX. CIV.
PRAC. & REM.CODE ANN. §§ 171.002 (a) (3) and (c) (Vernon Supp. 2000). The parties
dispute whether Freudensprung’s broader assertion before the trial court that Texas law
prohibited arbitration properly preserved his more precise argument raised for the first time on

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 Title 9 of the United States Code contains both the FAA and the U.S. implementing legislation

for the Convention. The FAA generally declares valid and enforceable written provisions for

arbitration in any maritime transaction and in any contract evidencing a transaction involving

interstate or foreign commerce. See 9 U.S.C. § 2. Section 1 of the FAA, upon which Freudensprung

relies, excludes “contracts of employment of seamen, railroad employees, or any other class of

workers engaged in foreign or interstate commerce” from the scope of the Arbitration Act. When

the Convention Act governs the recognition and enforcement of an arbitration agreement or award,

however, the FAA applies only “to the extent that [the FAA] is not in conflict with [the Convention

Act] or the Convention as rat ified by the United States.” See 9 U.S.C. § 208; Francisco v. Stolt

Achievement MT, 293 F.3d 270, 274 (5th Cir.), cert. denied 537 U.S. 1030 (2002). As we have

recently recognized, unlike the FAA, neither the Convention, the ratifying language of the

Convention, nor the Convention Act “recognize[s] an exception for seaman employment contracts.”

appeal. We need not address whether this argument is waived, however, because the argument is
without merit. Where, as here, an agreement contains a clause designating Texas law but does
not exclude the FAA, the FAA and Texas law, including that state’s arbitration law, apply
concurrently because Texas law incorporates the FAA as part of the substantive law of that state.
See Pedcor Mgmt. Co., Inc. Welfare Benefit Plan v. Nations Personnel of Texas, Inc., 343 F.3d
355, 361 (5th Cir. 2003) (citing L & L Kempwood Associates v. Omega Builders, Inc., 9 S.W.3d
125, 127-28 & n. 15 (Tex.1999)). The FAA, in turn, preempts state laws which, like the
provision of the TGAA relied upon by Freudensprung, “contradict the purpose of the FAA by
‘requir[ing] a judicial forum for the resolution of claims which the contracting parties agreed to
resolve by arbitration.’” See id. at 362 & n. 35 (citing Southland Corp. v. Keating, 465 U.S. 1,
10 (1984)); Miller v. Public Storage Mgmt., Inc., 121 F.3d 215, 217-19 (5th Cir.1997) (rejecting
assertion that Texas law disfavoring arbitration of personal injury claims precluded compelling
arbitration because the FAA preempts contrary state law).

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Francisco, 293 F.3d at 274. “On the contrary, they recognize that the only limitation on the type of

legal relationship falling under the Convention is that it must be considered ‘commercial,’ and . . . an

employment contract is ‘commercial.’” Id.

In determining whether the Convention requires compelling arbitration in a given case, courts

conduct only a very limited inquiry. See id. at 273 (citing Sedco, Inc. v. Petroleos Mexicanos

Mexican Nat'l Oil Co., 767 F.2d 1140, 1144-45 (5th Cir.1985)). Accordingly, a court should compel

arbitration if (1) there is a written agreement to arbitrate the matter; (2) the agreement provides for

arbitration in a Convention signatory nation; “(3) the agreement arises out of a commercial legal

relationship; and (4) a party to the agreement is not an American citizen.” Id. (citing Sedco, 767

F.2d at 1146 (citing Ledee v. Ceramiche Ragno, 684 F.2d 184, 185-86 (1st Cir.1982))). Once “these

requirements are met, the Convention requires the district court[] to order arbitration,” id., “unless

it finds that the said agreement is null and void, inoperative or incapable of being performed.” Sedco,

767 F.2d at 1146 (quoting Convention, Article II (3)).

In this case, the first three requirements are readily met. As noted above, Freudensprung

signed a written Consultant’s Agreement which contained an arbitration clause requiring the parties

to submit “any dispute” arising from the agreement to binding arbitration in Houston, Texas; the

United States is a signatory to the Convention; and the agreement, which retained Freudensprung to

perform “hook-up, engineering, planning, inspection, . . . [and] pipeline work,” arises out of a

“commercial legal relationship.” See Francisco, 293 F.3d at 273; 9 U.S.C. § 202 (defining a

commercial legal relationship as “including a transaction, contract, or agreement described in section

2 of [Title 9]”--that is, either a maritime transaction or a contract involving commerce). However,

14
because both Freudensprung and Texas-based OTSI are U.S. citizens,8 we must further examine

whether the lack of a foreign citizen as a party to the agreement renders the Convention inapplicable.

We conclude that it does not.

This Court has yet to address whether the Convention applies to an arbitration agreement

between two U.S. Citizens. We note at the outset that this Court’s four-prong test, therefore, was

articulated previously in the context of cases involving at least one foreign party to the agreement

and derives from this Court’s opinion in Sedco, which in turn paraphrases the four criteria set forth

by the First Circuit in Ledee. See Sedco, 767 F.2d at 1146 (citing Ledee, 684 F.2d at185-86). The

First Circuit, however, closely tracking the language of 9 U.S.C. § 202, did not require the presence

of a non-U.S. party in all circumstances, instructing that the fourth criterion requires that courts ask:

“Is a party to the agreement not an American citizen, or does the commercial relationship have some

reasonable relation with one or more foreign states?” See Ledee, 684 F.2d at 185-86 (emphasis

added). Consistent with this approach, the only federal appellate courts to have addressed the

applicability of the Convention to an arbitration agreement between two U.S. citizens, the Second

Circuit and the Seventh Circuit, agree that the Convention may apply in such cases provided that

there is a “reasonable relation” between the parties’ commercial relationship and some “important

foreign element.” Jones v. Sea Tow Servs., Inc, 30 F.3d 360, 366 (2d Cir. 1994); Lander Co. v.

MMP Investments, Inc., 107 F.3d 476, 481 (7th Cir. 1997). This principle stems from the language

of 9 U.S.C. § 202 of the U.S. implementing legislation for the Convention, entitled “Agreement or

award falling under the Convention,” which provides:

8
Section 202 of the Convention Act provides that “[f]or the purpose of this section a
corporation is a citizen of the United States if it is incorporated or has its principal place of
business in the United States.” 9 U.S.C. § 202.

15
 An arbitration agreement or arbitral award arising out of a [commercial] legal relationship,
whether contractual or not, . . . including a transaction, contract, or agreement described in
section 2 of [the FAA], . . . which is entirely between citizens of the United States shall be
deemed not to fall under the Convention unless the relationship involves property located
abroad, envisages performance or enforcement abroad, or has some other reasonable relation
with one or more foreign states.

9 U.S.C. § 202. In Jones, the Second Circuit found on the facts before it that the commercial

relationship between the U.S. citizen disputants lacked the requisite “foreign element” and thus the

arbitration agreement arising from that relationship was not governed by the Convention. 30 F.3d

at 366. In that case, U.S. citizens hired a U.S. salvor pursuant to a Lloyd’s standard form salvage

agreement (“LOF”) to rescue their yacht, which had grounded in U.S. waters off Long Island, New

York. Id. at 361-62. The relationship between the parties “did not involve property abroad nor did

it envisage performance abroad.” Id. at 365. The only purportedly foreign element in this otherwise

wholly domestic matter was found in the LOF itself, which contained an arbitral clause providing for

arbitration in England under English law. Id. at 362. The Second Ci rcuit found that “[t]he

reasonable relation requirement necessary to make the arbitration provision in the LOF cognizable

under the Convention” could not be fulfilled by the terms of the LOF itself -- that is, the LOF’s

arbitration provision and its English choice-of-law clause. Id. at 366. Rather, the Jones Court

reasoned, there had to be some reasonable connection to a foreign country independent of these

provisions in the LOF.

The present case, however, is distinguishable from Jones, 30 F.3d at 362, because the

agreement at issue, albeit between two U.S. Citizens, Freudensprung and OTSI, “envisage[d]

performance abroad” -- the performance of pipefitting services on WWAI’s barges in West Africa.

Lander, however, involved circumst ances similar to those before us. See 107 F.3d at 481. The

16
Seventh Circuit found in Lander that 9 U.S.C. § 202, though phrased in the negative, applied

(concurrently with the FAA) to an arbitration agreement in a contract between two U.S. corporations

where the only link between their relationship and a foreign nation was that their contract was to be

performed in Poland. Id. at 478, 481. In that case, the two U.S. corporations, MMP and Lander,

entered into a contract for the distribution by MMP in Poland of products manufactured by Lander

in the United States. Id. at 478. The contract contained an arbitration clause providing that disputes

would be subject to binding arbitration to be conducted in New York. Id. Athough both parties were

U.S. citizens, the arbitration was to take place in the United States, and the only foreign connection

to the parties’ legal relationship was that the distribution contract “envisage[d] performance . .

.abroad,” the Seventh Circuit concluded that the parties’ agreement fell squarely within the

Convention Act’s scope and squarely outside its exclusion for agreements that have no foreign tie.

Id. at 482 (noting that 9 U.S.C. § 202 “adopts the provisions of the Convention for any arbitration

agreement . . . arising out of a [commercial] legal relationship, . . . provided only that if the

relationship is entirely between U.S. citizens, it must involve performance abroad or have some other

reasonable relation with a foreign country”).

In this case, both Jones and Lander compel the conclusion that the Convention Act governs

the arbitral clause at issue concurrently with the FAA because there is a reasonable connection

between the parties’ commercial relationship and a foreign state that is independent of the arbitral

clause itself. See Lander, 107 F.3d at 482; Jones, 30 F.3d at 364-65. As noted above, the

Consultant’s Agreement between Freudensprung and OTSI “envisage[d] performance . . . abroad.”

Accordingly, even assuming that the Consultant’s Agreement is a seaman’s employment contract, we

conclude that its arbitral clause is enforceable under the Convention as implemented by Congress.

17
 Finally, we reject Freudensprung’s assertion that the arbitration agreement is unenforceable

because OTSI failed to demonstrate that it was fair. Under the FAA, a written arbitration agreement

is prima facie valid and must be enforced unless the opposing party -- here, Freudensprung, --

“allege[s] and prove[s] that the arbitration clause itself was a product of fraud, coercion, or ‘such

grounds as exist at law or in equity for the revocation of the contract.’” National Iranian Oil Co. v.

Ashland Oil, Inc., 817 F.2d 326, 332 (5th Ci r. 1987) (citation omitted); see 9 U.S.C. § 2. As

indicated above, in this case the FAA applies “to the extent that it is not in conflict with the

[Convention Act] or the Convention as ratified by the United States.” See 9 U.S.C. § 208;

Francisco, 293 F.3d at 274. The Convention imposes a mandatory obligation upon federal courts to

enforce an arbitration agreement falling within its scope unless the agreement is “‘null and void,

inoperative, or incapable of being performed.’” See Sedco, 767 F.2d at 1146 (quoting Convention,

Article II (3)). We need not address whether the FAA’s contractual defenses conflict with those of

the Convention, or whether they are any more inimical to the Convention’s objective -- “to encourage

the recognition and enforcement of commercial arbitration agreements in international contracts,”

Francisco, 293 F.3d at 275 -- t han they are to the longstanding federal policy favoring the

enforcement of agreements to arbitrate disputes. See E.A.S.T., Inc. of Stamford, Conn. v. M/V

Alaia, 876 F.2d 1168, 1173 (5th Cir. 1989) (citation omitted). In this case, Freudensprung has not

alleged, let alone proffered any evidence, that would permit him to avoid arbitration under either

standard. Indeed, Freudensprung has failed to point to any particular aspect of the agreement or

circumstances surrounding its making that would render it unenforceable. Freudensprung instead

merely rests on the vague assertion that a “pre-injury” agreement to arbitrate rather than litigate his

personal injury claims is “inherently unfair” because he could not have made an informed decision

18
concerning his post-injury remedies before his injury had occurred and before any medical advice was

available to him. The difficulty with this argument is that the same could be said of any advance

agreement to arbitrate personal injury claims, and it is by now beyond cavil that such agreements are

presumptively enforceable. As noted above, Freudensprung and OTSI agreed to arbitrate “any

dispute” arising out of the Consultant’s Agreement. It is “[o]nly by rigorously enforcing arbitration

agreements according to their terms, do we ‘give effect to the contractual rights and expectations of

the parties, without doing violence to the policies behind the FAA.’” Ford v. NYLCare Health Plans

of Gulf Coast, Inc., 141 F.3d 243, 248-49 (5th Cir. 1998) (quoting Volt Information Sci., Inc. v. Bd.

of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989)). Accordingly, we find that

Freudensprung failed to demonstrate that the arbitration agreement was unfair.

III. The propriety of the district court’s order dismissing WWAI for lack of personal jurisdiction

Freudensprung next asserts that the district court erred by dismissing WWAI for lack of

personal jurisdiction, arguing that WWAI had sufficient minimum contacts with Texas to support the

district court’s exercise of specific or general jurisdiction over WWAI. Alternatively, Freudensprung

argues that WWAI impliedly consented to the district court’s exercise of perso nal jurisdiction by

agreeing pursuant to its Offshore Personnel Supply Agreement with OTSI to arbitrate any dispute

with OTSI in Houston, Texas.9 WWAI counters that it is a Panamanian corporation with its

principal place of business in Panama, that it is a wholly-owned subsidiary of Willbros International,

9
Freudensprung also argues that WWAI waived any objection to the exercise of personal
jurisdiction by entering a general appearance and that this Court should equitably toll
Freudensprung’s claims against WWAI in the event that the district court’s dismissal of WWAI
for lack of personal jurisdiction is upheld. Freudensprung failed to raise either of these claims
before the district court and we therefore decline to consider them on appeal. See Leverette
Search Term End v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999).

19
Inc., also a Panamanian corporation, and that it does not have the necessary minimum contacts with

Texas to be subject to the specific or general jurisdiction of that state’s courts. Finding

Freudensprung’s arguments unavailing, we affirm.

A. Standard of review and governing principles of law

This Court reviews de novo the district court’s determination that its exercise of personal

jurisdiction over a non-resident defendant is proper. Nuovo Pignone, SpA v. STORMAN ASIA

M/V, 310 F.3d 374, 378 (5th Cir. 2002) (citing Wilson v. Belin, 20 F.3d 644, 647-48 (5th

Cir.1994)). When, as in the instant case, “the district court decides the motion to dismiss without

holding an evidentiary hearing, [the plaintiff] must make only a prima facie showing of the facts on

which jurisdiction is predicated.” Id. (citing Alpine View Co. v. Atlas Copco AB, 205 F.3d 208, 215

(5th Cir.2000)). In determining whether a prima facie case exists, this Court “must accept as true

[the Plaintiff’s] ‘uncontroverted allegations, and resolve in [its] favo r all conflicts between the

[jurisdictional] facts contained in the parties’ affidavits and other documentation.’” Id. (quoting Kelly

v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir.2000) (internal citation omitted).

In an admiralty case, the propriety of the exercise of personal jurisdiction over a nonresident

defendant, such as WWAI, is determined first by the law of the forum state. A federal district court

may exercise personal jurisdiction over a nonresident defendant if (1) the forum state’s long-arm

statute confers personal jurisdiction over that defendant; and (2) the exercise of personal jurisdiction

comports with the Due Process Clause of the Fourteenth Amendment. See STORMAN ASIA M/V,

310 F.3d at 378 (citing Adams v. Unione Mediterranea di Scurta, 220 F.3d 659, 667 (5th Cir. 2000);

Ruston Gas Turbines, Inc. v. Donaldson Co., 9 F.3d 415, 417 (5th Cir.1993)). In this case, these two

inquiries merge into one because the Texas long-arm statute permits the exercise of jurisdiction over

20
a nonresident defendant to the fullest extent allowed by the United States Constitution. See TEX.

CIV. PRAC. & REM. CODE ANN. § 17.042 (West 2000); Ruston Gas Turbines, 9 F.3d at 417-18.

As interpreted by the Supreme Court, the Fourteenth Amendment Due Process clause requires

satisfaction of a two-prong test in order for a federal court to properly exercise jurisdiction: (1) the

nonresident must have minimum contacts with the forum state, and (2) subjecting the nonresident to

jurisdiction must be consistent with “traditional notions of fair play and substantial justice.” Asarco,

Inc. v. Glenara, Ltd., 912 F.2d 784 (5th Cir.1990); International Shoe Co. v. Washington, 326 U.S.

310 (1945). The “minimum contacts” prong is further subdivided into contacts that give rise to

specific jurisdiction and those that give rise to general jurisdiction. A court may exercise specific

jurisdiction when (1) the defendant purposely directed its activities toward the forum state or

purposely availed itself of the privileges of conducting activities there; and (2) the controversy arises

out of or is related to the defendants contacts with the forum state. Helicopteros Nacionales de

Columbia, S.A. v. Hall, 466 U.S. 408 (1984); Asarco, Inc. v. Glenara, Ltd., 912 F.2d 784 (5th

Cir.1990). In short, “[t]he focus [of this inquiry] is on the relationship between the defendant, the

forum, and the litigation.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985). When a cause

of action does not arise out of a foreign defendant’s purposeful contacts with the forum, however,

a court may exercise general jurisdiction when the defendant has engaged in “continuous and

systematic contacts” in the forum. STORMAN ASIA M/V, 310 F.3d at 378. Once the plaintiff has

made out a prima facie showing under the first prong, the burden shifts to the defendant to show,

under the second prong of the constitutional due process inquiry, that the exercise of jurisdiction

would not comply with “fair play” and “substantial justice.” See id.

B. The sufficiency of WWAI’s minimum contacts with Texas

21
 Freudensprung first contends that WWAI has sufficient minimum contacts with Texas to

sustain the exercise of specific jurisdiction over that defendant, pointing primarily to WWAI’s

business dealings with OTSI. Specifically, Freudensprung argues that WWAI has purposely availed

itself of the benefits and protections of the state of Texas by (1) contracting with OTSI, a Texas-

based corporation, pursuant to the Offshore Personnel Supply Agreement; (2) contemplating

arbitration of any disputes with OTSI arising under that contract in Houston, Texas; (3) initiating and

contemplating a long-term business relationship with OTSI; (4) engaging in communications with

OTSI in developing and carrying out that contract; and (5) wiring payments to OTSI in Texas.

Our thorough review of the record and pertinent authorities convinces us that these limited

contacts with the forum state were insufficient to support the exercise of specific jurisdiction over

WWAI. At the outset, we note that Freudensprung is not a party to the contract between OTSI and

WWAI -- the Offshore Personnel Supply Agreement -- which Freudensprung cites as evidence of

WWAI’s minimum contacts with the forum state. The Offshore Personnel Agreement provides that

WWAI agrees to purchase professional services from OTSI for the performance of WWAI’s projects

in West Africa, that all personnel supplied by OTSI remained employees of OTSI while assigned to

WWAI, and that WWAI was absolved of the ordinary liabilities flowing to an employer. Thus,

strictly speaking, the instant litigation does not “arise out of or relate to” WWAI’s contacts with

Texas. See Coats v. Penrod Drilling Corp, 5 F.3d 877, 884 (5th Cir. 1993).

Even assuming that the instant controversy could be deemed to arise out of the Offshore

Personnel Supply Agreement, the minimum contacts resulting from this agreement, viewed in

conjunction with the other contacts alleged by Freudensprung, do not constitute the minimum

contacts necessary to comport with constitutional due process. It is well established that “merely

22
contracting with a resident of the forum state is insufficient to subject the nonresident to the forum’s

jurisdiction.” Holt Oil & Gas Corp. v. Harvey, 801 F.2d 773, 778 (5th Cir. 1986) (citing Colwell

Realty Investments v. Triple T Inns, 785 F.2d 1330, 1334 (5th Cir.1986); Stuart v. Spademan, 772

F.2d 1185, 1192-93 (5th Cir.1985)); see also Burger King, 471 U.S. at 478. Moreover, this Court

has repeatedly held t hat the combination of mailing payments to the forum state, engaging in

communications related to the execution and performance of the contract, and the existence of a

contract between the nonresident defendant and a resident of the forum are insufficient to establish

the minimum contacts necessary to support the exercise of specific personal jurisdiction over the

nonresident defendant. See, e.g., Holt, 801 F.2d at 778 (finding no specific jurisdiction over

nonresident defendant where nonresident defendant entered into a contract with a Texas resident, sent

an agreement and checks to Texas, and engaged in extensive telephonic and written communication

with the plaintiff in Texas); Stuart, 772 F.2d at 1192-94 (finding no indication that the nonresident

defendant intended to avail himself of the privilege of doing business in Texas and hence no specific

jurisdiction where nonresident defendant contracted with Texas residents, directed letters and phone

calls to Texas, shipped prototypes and products to Texas, negotiated a contract with plaintiffs that

was to be governed by Texas law, and marketed his product in Texas).

Applying these principles here, it is apparent that Freudensprung has not alleged sufficient

minimum contacts to warrant the exercise of specific jurisdiction over OTSI. As in Holt and Stuart,

we find that in this case the fact that WWAI contracted with Texas-based OTSI, initiated and

contemplated a long-term business relationship with OTSI, communicated with OTSI concerning the

development and execution of the contract, and wired money to OTSI in Texas do not indicate that

WWAI intended to avail itself of the privilege of doing business in Texas. See Holt, 801 F.2d at 778;

23
Stuart, 772 F.2d at 1194. The significance of these alleged minimum contacts is severely diminished

by the fact that the contract at issue specified that it was to be governed by English law and that the

material portions of the contract, which contemplated the supply of personnel to WWAI for its

projects in West Africa, were to be performed in West Africa, not Texas. See Holt, 801 F.2d at 778

(discussing relevance of contract’s choice-of-law provision and place of performance to minimum

contacts analysis (citing Hydrokinetics, Inc. v. Alaska Mechanical, Inc., 700 F.2d 1026, 1029 (5th

Cir.1983); Patterson v. Dietze, Inc., 764 F.2d 1145, 1147 (5th Cir.1985))).

The only other contact asserted by Freudensprung -- WWAI’s contemplation of arbitrating

disputes arising under the contract in Texas -- similarly does not weigh in favor of finding specific

jurisdiction. Although in certain circumstances, an arbitration agreement may alter an otherwise

decisive jurisdictional analysis by evidencing a nonresident’s implied consent to personal jurisdiction,

see Painewebber Inc. v. Chase Manhattan Private Bank, 260 F.3d 453 (5th Cir. 2001), this principle

is inapplicable in the instant case where the arbitration agreement at issue only contemplates

arbitration between WWAI and OTSI, not Freudensprung. Thus, even if WWAI may have expected

to arbitrate disputes between itself and OTSI in Texas, it does not concomitantly follow that WWAI

reasonably anticipated being haled into a Texas Court to defend a lawsuit brought by Freudensprung

or any other nonparty to the Offshore Personnel Supply Agreement. Accordingly, we conclude that

WWAI did not impliedly consent to being subject to the jurisdiction of the Texas courts for the

adjudicat ion of this particular dispute, and the arbitration provision at issue does not impact our

jurisdictional analysis.

Freudensprung similarly has failed to demonstrate that WWAI had sufficient minimum

contacts with Texas to justify the exercise of general jurisdiction over WWAI. As noted above, the

24
general jurisdictional inquiry focuses exclusively on whether the nonresident defendant’s contacts

with the forum unrelated to the cause of action are sufficiently “continuous and systemic” to satisfy

due process requirements. Helicopteros, 466 U.S. at 414, 417. In this case, Freudensprung has

asserted no contacts with Texas made by WWAI itself as evidence that the exercise of general

jurisdiction is warranted. Rather, Freudensprung points to contacts made by Willbros Group, Inc.

(“Willbros Group”), the alleged parent company of WWAI, as well as other Willbros companies, in

support of his assertion that WWAI is subject to general jurisdiction in Texas courts. Citing Willbros

Group’s Form 10-K SEC filing, which defines “The Company” as “Willbros Group Inc., and all of

its majority-owned subsidiaries,” Freudensprung asserts that The Company, and hence, WWAI, is

administered in Texas, leases offices in Texas, and has constructed a 45-mile gas pipeline in Texas

and Mexico. Freudensprung also asserts that WWAI’s general contacts with Texas include the

following: (1) Willbros Group’s principal place of business is in Houston, Texas, (2) Wi llbros

Group’s press releases are issued from Houston, Texas; (3) Willbros Group’s conference calls

originate from Houston, Texas; (4) Willbros Group’s corporate officers reside in Houston, Texas;

and (5) Willbros Group’s corporate board meetings occur in Houston, Texas.

As a general rule, however, the proper exercise of personal jurisdiction over a nonresident

corporation may not be based solely upon the contacts with the forum state of another corporate

entity with which the defendant may be affiliated. See Cannon Mfg. Co. v. Cudahy Packing Co., 267

U.S. 333, 335 (1925) (declining to attribute, for jurisdictional purposes, the presence of a subsidiary

in the forum state to a nonresident parent corporation where the parent and subsidiary maintained

distinct and separate corporate entities); Hargrave v. Fibreboard Corp., 710 F.2d 1154, 1159 (5th Cir.

1983) (observing that “[g]enerally, a foreign parent corporation is not subject to the jurisdiction of

25
a forum state merely because its subsidiary is present or doing business in the forum state”); see also

Access Telecom, Inc. v. MCI Telecomm., Inc., 197 F.3d 694, 717 (5th Cir. 1999) (noting that

“typically, the corporate independence of companies defeats the assertion of jurisdiction over one by

using contacts with the other”). This principle, however, is not inviolate. Rather, the presumption

of institutional independence of related corporate entities may be rebutted by “clear evidence,” which

requires a showing of “something beyond” the mere existence of a corporate relationship between

a resident and nonresident entity to warrant the exercise of jurisdiction over the nonresident. Dickson

Marine, Inc. v. Panalpina, Inc., 179 F.3d 331, 338 (5th Cir. 1999). Accordingly, our cases

“[g]enerally . . . demand proof of control by [one corporation] over the internal business operations

and affairs” of another corporation to make the other its agent or alter ego, and hence “fuse the two

together for jurisdictional purposes.” See Hargrave, 710 F.2d at 116 (collecting cases); accord,

Dickson, 179 F.3d at 338. In determining whether a plaintiff asserting personal jurisdiction has

overcome the presumption of corporate separateness, this Court considers the following

nonexhaustive factors: (1) the amount of stock owned by the parent of the subsidiary; (2) whether

the entities have separate headquarters, directors, and officers; (3) whether corporate formalities are

observed; (4) whether the entities maintain separate accounting systems; and (5) whether the parent

exercises complete control over the subsidiary’s general policies or daily activities. Hargrave, 710

F.2d at 1160.

Although Freudensprung protests that WWAI is indistinguishable from its parent and other

Willbros companies, he has not asserted any facts, let alone adduced any evidence, demonstrating that

any of the Hargrave factors compel the conclusion that Willros Group or the other Willbros entities

controlled WWAI. Specifically, Freudensprung has made no showing that Willbros Group owned

26
stock in WWAI, shares any officers and directors with WWAI, disregards corporate formalities with

WWAI, shares the same accounting system as WWAI, or that Willbros Group exercises any degree

of control over the general policies or daily operations of WWAI. Further, Freudensprung concedes

that WWAI’s principle place of business is in Panama, while that of Willbros Group is in Texas.

Although Freudensprung insists that WWAI is indistinguishable from Willbros Group, he only offers

as evidence various printouts from websites -- primarily SEC filings related to all the Willbros entities,

which are collectively referred to in these documents as “The Company.” While such documents

might arguably establish the existence of some corporate relationship between WWAI and the other

Willbros entities, they are insufficient to overcome the presumption of corporate separateness.

Accordingly, the contacts of Willbros Group and the other Willbros entities with Texas may not be

attributed to WWAI in order to subject WWAI to service of process in Texas. We therefore

conclude that the district court did not err in determining that WWAI lacked sufficient minimum

contacts with Texas to support the exercise of personal jurisdiction.

C. Jurisdictional discovery

Freudensprung argues that the district court erred in denying him an adequate opportunity to

conduct jurisdictional discovery in order to ascertain the extent of WWAI’s contacts with Texas.

Matters relating to discovery are committed to the discretion of the trial court, and we therefore

review a district court’s decision to deny a discovery request for abuse of discretion. Brown v. Arlen

Management Corp. 663 F.2d 575, 580 (5th Cir. 1981). In this case, Freudensprung filed suit against

WWAI and several other defendants on October 4, 2001. WWAI filed both its Rule 12 (b) motion

to dismiss for lack of personal jurisdiction and its answer subject to that motion on December 21,

2002. Freudensprung did not file his response to WWAI’s motion until January 11, 2002. In his

27
response, Freudensprung “expressly denie[d] the necessity of [additional time in which to conduct

discovery],” but requested that such additional time be granted should the district court find “that its

exercise of jurisdiction is any way questionable.” In support of his response, Freudensprung attached

only a copy of the Offshore Supply Agreement between WWAI and OTSI, and the various printouts

from the internet described above. Nearly six weeks later, on February 20, 2002, the district court

granted WWAI’s motion to dismiss without prejudice. On appeal, Freudensprung states in his

original brief that at the time the district court entered its order staying the case, on August 15, 2002,

he “was attempting discovery into WWAI’s contacts with Texas for the purpose of revisiting the

district court’s dismissal order.” Freudensprung, however, has not asserted that he sought,

scheduled, or took any depositions with respect to WWAI at any time prior to or after the district

court’s dismissal. Nor does the record reveal that he conducted any formal discovery as to WWAI

during this nearly one-year period. Under these circumstances, we find that any inability of

Freudensprung to conduct the extent of discovery he now requests was of his own making.

Accordingly, we find that the district court did not abuse its discretion in declining to grant

Freudensprung additional time within which to pursue formal discovery.

CONCLUSION

For the foregoing reasons, we find that the district court did not err in compelling arbitration

of Freudensprung’s Jones Act and U.S. general maritime claims. We further find that the district

court did not err in dismissing WWAI from the instant lawsuit for lack of personal jurisdiction, nor

did the district court abuse its discretion in declining to permit Freudensprung additional time within

which to conduct further jurisdictional discovery. The district court’s judgment compelling

28
arbitration and staying litigation and its order dismissing WWAI for lack of personal jurisdiction are

therefore AFFIRMED.

AFFIRMED.

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