## Facts

- James N. Kirby, Pty Ltd., an Australian engineering firm doing business as Kirby Engineering (“Kirby”), owned equipment shipped from Australia to the General Motors plant in Huntsville, Alabama.
- Kirby’s insurer, MMI General Insurance Ltd. (“MMI”), insured the equipment.
- Kirby contracted in Australia with International Cargo Control Pty Ltd. (“ICC”), a cargo broker, to ship eight containers of equipment to Alabama.
- ICC contracted with ocean carrier Hamburg Süd to transport the cargo by sea to Savannah, Georgia.
- Hamburg Süd, through a subsidiary, arranged the inland rail leg by contracting with Norfolk Southern Railway Company (“Norfolk Southern”) to carry the cargo from Savannah to Alabama.
- A Norfolk Southern train derailed in Alabama, damaging Kirby’s equipment and allegedly causing close to $2 million in losses.
- After the derailment, Kirby sued ICC and Hamburg Süd in an Australian court, consistent with forum-selection clauses in Kirby’s contracts with those entities; defendants in that action asserted related claims against Norfolk Southern.
- Kirby and MMI separately sued Norfolk Southern in the United States District Court for the Northern District of Georgia, seeking recovery in tort, bailment, and for breach of a shipping contract based on the same derailment and cargo damage.
- Norfolk Southern moved in the U.S. action to enjoin Kirby and MMI from continuing the Australian proceedings, arguing the foreign litigation was duplicative and would impose procedural disadvantages on Norfolk Southern.

## Issues

1. Should a federal district court enjoin a party from prosecuting parallel in personam litigation in a foreign court when the moving party claims duplication and procedural disadvantages, but the foreign suit does not threaten the U.S. court’s jurisdiction or contravene an important public policy?

## Decision

- The court denied Norfolk Southern’s motion to enjoin Kirby and MMI from pursuing the parallel Australian proceedings.
- The court applied a restrictive standard grounded in respect for foreign tribunals, treating a foreign antisuit injunction as an exceptional remedy.
- The court held that parallel in personam actions in different countries can proceed at the same time; the possibility of inconsistent outcomes or added expense is not enough to justify an injunction.
- The court found no threat to the federal court’s jurisdiction because neither the U.S. case nor the Australian case was an in rem proceeding requiring exclusive control over property, and each court could proceed independently.
- The court found no showing that the Australian litigation was filed or maintained to avoid an important U.S. public policy; Kirby’s choice of Australia matched forum-selection clauses in the underlying shipping arrangements.
- The court also noted the Australian case involved additional parties and contractual relationships formed in Australia, reinforcing the impropriety of restraining that proceeding.

## Legal Principles

- A foreign antisuit injunction directly interferes with another nation’s courts and therefore is disfavored and granted only in limited circumstances.
- Courts have described two general approaches to foreign antisuit injunctions: a more permissive approach focused on sameness of parties/issues and vexation, and a restrictive approach focused on jurisdictional and public-policy concerns.
- Under the restrictive approach adopted here, a U.S. court may enjoin a foreign suit only when (1) the foreign action threatens the domestic court’s jurisdiction, or (2) the foreign action is pursued to avoid an important public policy of the forum.
- Parallel in personam proceedings generally may continue in separate sovereigns; inconsistent judgments, duplication, inconvenience, or different procedural rules typically do not justify an antisuit injunction.
- A judgment reached in one forum may later have preclusive effect in the other (for example, through res judicata), but that possibility does not itself create a jurisdictional conflict warranting injunctive relief.
- Where the foreign action is consistent with contractual forum-selection clauses and involves additional foreign parties and contracts, interference is especially difficult to justify.

## Conclusion

The Northern District of Georgia refused to bar Kirby and MMI from continuing related litigation in Australia because Norfolk Southern did not show that the Australian proceedings would impair the U.S. court’s jurisdiction or were being used to avoid an important U.S. public policy, and the claimed duplication and procedural disadvantages were insufficient to overcome the strong restraint exercised when asked to restrict proceedings in a foreign court.


Kirby Engineering v. Norfolk Southern Railway Co., 71 F. Supp. 2d 1363 (1999)