In re Ministry of Def. of Venezuela

Full title: In re MINISTRY OF DEFENSE OF THE REPUBLIC OF VENEZUELA, Petitioner

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 21, 2011

430 F. App'x 271 (5th Cir. 2011)

Opinion

No. 11-60296.

June 21, 2011.

Mark J. Goldberg, Attorney, James L. Robertson, Esq., Wise Carter Child Caraway, P.A., Jackson, MS, for Petitioner.

Joseph F. Coyne, Jr., Esq., Kenneth A. O'Brien, Jr., Esq., Sheppard, Mullin, Richter Hampton, L.L.P., Los Angeles, CA, for Respondent.

Petition for a Writ of Mandamus to the United States District Court for the Southern District of Mississippi.

Before WIENER, PRADO, and OWEN, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Petitioner Ministry of Defense of the Republic of Venezuela seeks a writ of mandamus directing the district court to vacate its order, in which that court refused to enforce an "unreasonable" forum-selection clause and, instead, compelled arbitration in the United States. After Petitioner appealed the district court's order to us, we dismissed that appeal for lack of jurisdiction.¹ We now deny Petitioner's petition for writ of mandamus.

1 Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of Venezuela, No. 11-60001, slip op. (5th Cir. Mar.23, 2011) (per curiam), rch'g denied, (5th Cir. May 9, 2011) (per curiam).

Time and again, we have said that mandamus is not to be used as a substitute for appeal.² Petitioner has not demonstrated that the district court has exceeded the lawful exercise of its prescribed jurisdiction.³ We repeat: "The Supreme Court has held that courts may generally set aside forum-selection clauses where enforcement would be `unreasonable.'"⁴ We decided this matter when we denied Petitioner's appeal, so Petitioner must now await the district court's final, appealable judgment before it may appeal the merits of that court's forum determination.⁵

2 See, e.g., In re Am. Marine Holding Co., 14 F.3d 276, 277 (5th Cir. 1994) (per curiam) ("[I]t is more than well-settled that a writ of mandamus is not to be used as a substitute for appeal." (citation omitted)).

3 See Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988).

4 Northrop Grumman Ship Sys., Inc. v. The Ministry of Defense of the Republic of Venezuela, 575 F.3d 491, 503 (5th Cir. 2009) (quoting MIS Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10-11, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

5 See In re Am. Marine, 14 F.3d at 277 ("Whether the district court erred . . . may be raised for appellate review after the arbitration is completed and a final judgment entered by the district court confirming such arbitration.").

Petition for writ of mandamus is DENIED.