United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff/Counterdefendant MWK Recruiting, Inc.
(“MWK”) and Counterdefendants Robert E. Kinney
(“Kinney”), Michelle W. Kinney, Recruiting
Partners GP, Inc., Kinney Recruiting LLC, Counsel Unlimited
LLC, and Kinney Recruiting Limited's (collectively, the
“MWK entities”) Opposed Expedited Motion for
Issuance of a Preliminary and a Permanent Injunction, (Dkt.
102), and associated briefing, (Resp., Dkt. 107; Reply, Dkt.
111; Suppl. Decl., Dkt. 112). The Court held a hearing on
this motion on October 30, 2019. (See Dkt. 115).
After considering the parties' written and oral
arguments, the facts in the record, and the relevant law, the
Court grants the MWK entities' motion. (Dkt. 102).
case involves Defendant/Counterplaintiff Evan P. Jowers's
(“Jowers”) departure from MWK, a legal recruiting
firm. (Mot., Dkt. 102, at 6; see also 2d Am. Compl.,
Dkt. 80). Jowers worked for MWK for several years; now, MWK
and its component entities accuse Jowers of appropriating
MWK's confidential information and breaching contracts.
(2d Am. Compl., Dkt. 80, at 31-45).
injunction at issue here concerns a defamation suit Jowers
and his business partner Alejandro Vargas
(“Vargas”) filed in Hong Kong. (Mot., Dkt. 102,
at 7-8). The MWK entities were first served with the papers
beginning the Hong Kong suit on May 9, 2019, and June 21,
2019, and filed their request for a preliminary and permanent
injunction barring Jowers from continuing the Hong Kong suit
on October 9, 2019. (Id. at 7).
entities request that a “preliminary and a permanent
injunction be issued against Jowers ordering him to dismiss
his new Hong Kong litigation and to take no further action
with respect to that litigation or any other litigation
against MWK in Hong Kong or any other forum that would
undermine or attack this Court's jurisdiction in this
matter.” (Id. at 6). They argue that allowing
Jowers to continue his Hong Kong suit would frustrate a forum
selection clause already in place, (id. at 11), be
“vexatious and oppressive, ” (id. at
11-13), and be generally prejudicial to the MWK entities,
(id. at 13-14). They also stress that concerns of
international comity are not at issue in this case.
(Id. at 14).
antisuit injunctions, like the one at issue here, are
“a particular subspecies of preliminary
injunction.” Karaha Bodas Co. v. Perusahaan
Pertambangan Minyak Dan Gas Bumi Negara, 335 F.3d 357,
364 (5th Cir. 2003). The overarching concern is
“whether the foreign proceeding threatens the U.S.
proceeding” or “challenges the U.S. court's
jurisdiction or fundamental U.S. policies, ” as opposed
to a foreign proceeding that is “merely interposed as a
tactic and poses no real threat beyond inefficiency and
additional cost.” 3 Ved P. Nanda, et al.,
Litigation of International Disputes in U.S. Courts
§ 16.15 (2d ed. 2008, updated 2019).
typical preliminary injunctions, though, foreign antisuit
injunctions are “extraordinary remed[ies], ” and
the party seeking one must “clearly carr[y] the burden
of persuasion.” Karaha Bodas, 335 F.3d at 364
(quoting Mississippi Power & Light Co. v. United Gas
Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985)). But
the decision whether to issue a foreign antisuit injunction
“ultimately depends on considerations unique to
antisuit injunctions, ” rather than the traditional
four-factor preliminary injunction test: “[t]o the
extent the traditional preliminary injunction test is
appropriate, ” the Court “only need address
whether [the injunction-seeking party] shows a significant
likelihood of success on the merits.” Id.;
id at 364 n.19. Specifically, “the
merits” of the injunction request in this context
“are not about whether [the foreign country] is an
appropriate forum . . . but instead whether [the
injunction-seeking party] has demonstrated that the factors
specific to an antisuit injunction weigh in favor of granting
that injunction.” Id. at 364 n.19.
Fifth Circuit, those factors have historically involved
whether the foreign suit would “(1) frustrate a policy
of the forum issuing the injunction; (2) be vexatious or
oppressive; (3) threaten the issuing court's in rem or
quasi in rem jurisdiction; or (4) prejudice other equitable
considerations.” Kaepa, Inc. v. Achilles
Corp., 76 F.3d 624, 627 n.9 (5th Cir. 1996) (quoting
In re Unterweser Reederei, Gmbh, 428 F.2d 888, 890
(5th Cir. 1970) (subsequent history omitted)). In their
briefing and oral arguments, the parties dispute whether the
factors may be considered disjunctively or whether, instead,
the Court must balance each of them in a holistic analysis.
(See, e.g., Reply, Dkt. 111, at 5).
Fifth Circuit has not clearly answered this question. In
Unterweser, it stated the multifactor test using the
word “or.” 428 F.3d at 896. The Ninth Circuit
characterized this diction as suggesting that “if any
of the four elements is present, an anti-suit injunction may
be proper.” E. & J. Gallo Winery v. Andina
Licores S.A., 446 F.3d 984, 990 (9th Cir. 2006).
Thirty-three years after Unterweser, in Karaha
Bodas, the Fifth Circuit reframed the considerations
specific to foreign antisuit injunctions: “[i]n
assessing whether an injunction is necessary, we weigh the
need to ‘prevent vexatious or oppressive
litigation' and to ‘protect the court's
jurisdiction' against the need to defer to principles of
international comity.” 335 F.3d at 366 (quoting
Kaepa, 76 F.3d at 627; MacPhail v. Oceaneering
Int'l, Inc., 302 F.3d 274, 277 (5th Cir. 2002)). In
this analysis, the factors are assessed together, not
disjunctively. The Court's evaluation of the factors
in this case will therefore proceed holistically, weighing
the considerations against each other in the manner the Fifth
Circuit has most recently specified. See id.
or oppressive litigation” generally involves “(1)
‘inequitable hardship' resulting from the foreign
suit; (2) the foreign suit's ability to ‘frustrate
and delay the speedy and efficient determination of the
cause'; and (3) the extent to which the foreign suit is
duplicitous [sic] of the litigation in the United
States.” Karaha Bodas, 335 F.3d at 364
(quoting Kaepa, 76 F.3d at 627) (citing
MacPhail, 302 F.3d at 277). Traditionally, the Fifth
Circuit has often relied “primarily upon considerations
of vexatiousness or oppressiveness in a race to judgment in
the foreign forum as sufficient grounds for an [antisuit]
injunction.” Kaepa, 76 F.3d at 627 n.9
(quoting Gau Shan Co. v. Bankers Tr. Co., 956 F.2d
1349, 1353 (6th Cir. 1992)). Again, however, the precise
weight of this factor in the analysis is indefinite, though
Karaha Bodas indicates it is crucial to (albeit not
dispositive of) the injunction determination. 335 F.3d at
there is a circuit split concerning how much weight to give
to the value of international comity in this context. The
Fifth Circuit has adopted the “liberal approach,
” which deemphasizes concerns of comity. It often
discusses comity when determining whether foreign litigation
is vexatious and oppressive-and considers it a
“not-insubstantial interest”-but comity is not
the crux of the analysis. Id. at 371. Compare
Id. at 366 (“[N]otions of comity do not wholly
dominate our analysis to the exclusion of these other
concerns.”), with Goss Int'l Corp. v. Man
Roland Druckmaschinen Aktiengesellschaft, 491 F.3d 355,
359 (8th Cir. 2007) (explaining the “conservative
approach, ” for which “a foreign antisuit
injunction will issue only if the movant demonstrates (1) an
action in a foreign jurisdiction would prevent United States
jurisdiction or threaten a vital United States policy, and
(2) the domestic interests outweigh concerns of international