Balbin, et al v. Offshore Spctl Fab

United States Court of Appeals
Fifth Circuit
F I L E D
August 29, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
No. 05-30734
JOSELITO MADRIAGA LIM, on behalf of himself and all other current
and former employees of Offshore Specialty Fabricators, Inc.
similarly situated; ADELITO M. AGANON; RICHARD AGCAOILI; LUIS
AGNABO; ANTONIO P. ALCANTARA; ET AL,
Plaintiffs-Appellants,
versus
OFFSHORE Specialty FABRICATORS INC.,
Defendant-Appellee.
Cons./w
Case No. 05-30736
BIENVENIDO BALBIN; EDMUNDO BEBAYO; ROMEO COGOLLO; CEFERINO
DURANA; REYNALDO FERNANDEZ; FRANSLIE GULLE; RENATO LATIZA;
REYNALDO SACDALAN; JOEL SORONIO; ARLIE TALADUCON, JR.; ROLANDO
TOLENTINO,
Plaintiffs-Appellants,
versus
OFFSHORE Specialty FABRICATORS INC.,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of Louisiana
(2:03-CV-2231)
Before JONES, Chief Judge, and BARKSDALE and BENAVIDES, Circuit
Judges.

-- 1 of 4 --

* 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this opinion should not be published and is not precedent except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.
2
PER CURIAM:*
In June 2005, our court vacated the district court’s denial of
Offshore Specialty Fabricators’ (OSFI) motions to dismiss and
“REMANDED to district court for further proceedings consistent with
[the] opinion”. Lim v. Offshore Specialty Fabricators, Inc. (Lim
I), 404 F.3d 898, 908 (5th Cir.), cert. denied, 126 S. Ct. 365
(2005). Plaintiffs–Appellants (Lim) challenge the district court’s
dismissing this action, on remand, for improper venue, pursuant to
Federal Rule of Civil Procedure 12(b)(3). AFFIRMED.
I.
In 2002, Lim filed an opt–in collective action against his
employer, OSFI, “claiming violations of the minimum wage and
maximum hour (overtime) requirements of the Fair Labor Standards
Act, 29 U.S.C. § 20 et seq. (FLSA)”. Id. at 900. Lim’s employment
contract included an arbitration clause, as mandated by the
Philippine Overseas Employment Administration, requiring all
employment claims be resolved through arbitration in the
Philippines. Id. Further, the contract was covered by the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, 10 June 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 (Convention). Id. In
response, “OFSI moved to dismiss [the action], claiming: the

-- 2 of 4 --

3
[contract] require[s] arbitration in the Philippines; and the
Convention ... requires district court enforcement of the
arbitration clause”. Id.
The district court denied that motion, holding the arbitration
clause violated Louisiana public policy. Id. at 901. In Lim I,
however, our court reversed and remanded for further proceedings,
holding arbitration was required.
On remand, the district court in May 2005 dismissed the
action. That June, it denied Lim’s motion to reconsider.
II.
Lim claims the district court should have: retained
jurisdiction “pursuant to the provisions of the Convention[;] given
the plaintiffs an opportunity to test the sufficiency of ... the
Phillippines as a forum for the arbitration of their wage and hour
claims[;] and, if found sufficient, should have stayed the
proceedings and ordered the parties to arbitrate the claims”.
Accordingly, he claims the court failed to conduct the “further
proceedings” required by Lim I by dismissing the action instead of
retaining limited jurisdiction. OFSI responds that the court
properly dismissed the action in response to Lim I. We review de
novo. See Mitsui & Co. (USA), Inc. v. Mira M/V, 111 F.3d 33, 35
(5th Cir. 1997) (enforceability of forum-selection clause reviewed
de novo).

-- 3 of 4 --

4
Lim I held the district court was not the proper venue for Lim
to file his claims. Contrary to Lim’s contentions, the district
court on remand did not fail to conduct “further proceedings”; the
Rule 12(b)(3) dismissal was the type of proceeding Lim I
contemplated. Therefore, the district court did not err by
dismissing this action for improper venue without retaining
jurisdiction. See Mitsui, 111 F.3d 33 (affirming district court’s
dismissal based on forum-selection clause where court did not
retain jurisdiction); Assetworks, Inc. v. City of Cincinnati, 2003
U.S. Dist. LEXIS 23877, at *3 (W.D. Tex. 31 Mar. 2003) (adopting
magistrate’s recommendation to dismiss for improper venue, without
retaining jurisdiction).
III.
For the foregoing reasons, the judgment is
AFFIRMED.

-- 4 of 4 --