by Dave Gerard
Remington nodded to a clerk, who stood ready. On his signal, the clerk flipped a switch. We all felt a humming glow as the big screen behind us lit up in full color. Judge Merryweather looked up incredulously toward the back of the room, as did everyone else.
There, on the gigantic screen in the back of the courtroom, in full color and about three times life size, was Judge Nathaniel Graves, staring down at the courtroom occupants from his high bench in Galveston, Texas.
His voice boomed out, amplified by the excellent speakers at full volume. “Good afternoon, Judge Merryweather. Judge Nathaniel Graves, Southern District of Texas, Galveston Division. How do you do?”
Judge Merryweather was taken aback, but recovered her poise quickly. “How do you do, Judge Graves?”
“Very well, thank you. I hope you don’t mind the intrusion. I was informed that we had a case of conflicting jurisdiction, and I thought the question might be best settled with my participation.” He smiled slightly and cast his eye across the crowd, all of whom were staring up at him in awe.
Although I had helped engineer this, I still couldn’t believe it. I had never seen, or even heard of, a judge attending a hearing in another judge’s case, by video or in person. It was highly irregular. The older lawyers were speechless. The journalists were scribbling away gleefully, eating it up. I heard one of the young clerks whisper “awesome.” Since the pandemic, videoconferencing technology had become more common in courtrooms. But this was something else. I looked over at Remington and saw that he was trying to suppress a grin.
“Not at all,” said Judge Merryweather diplomatically. “The Middle District of Florida has great respect for its sister federal courts in Texas, and welcomes you to the hearing, in any capacity in which you choose to participate. Can I offer you anything?” she added with a faint smile. “Coffee? Tea?”
Graves’ laughter boomed over the speakers, shaking the room with its heavy bass. “No, thank you,” he said. “But I appreciate the offer, and the warm welcome. Now, would you mind if I addressed the attorneys?”
“By all means.”
Graves took off his large reading glasses and peered at the attorneys through the camera. “Is Mr. Zachary Bock here?” asked Graves.
Bock looked around the room for some reason, as if looking for himself. “Yes, Your Honor. Hello. I am here.”
“Hello, Mr. Bock. Do you remember me?”
“Yes, Your Honor,” said Bock. I saw him swallow hard.
“Good. You filed this lawsuit, correct?”
“Yes, Your Honor. Although I will note that the lawsuit was joined by the Republic of Portugal, and—”
“Thank you for that note, Mr. Bock,” said Graves, cutting him off. “I also thank you for your comments during this hearing, which I found edifying.” Apparently, he had been listening in.
“Thank you, Your Honor, although some of the credit must go to my fine associates—”
“I particularly appreciated your argument regarding the ‘superior expertise’ of the Florida courts.” Smiles began to slip off of faces at Bock’s table.
“Your Honor, we didn’t say that the courts here are superior, really—”
“You did not?” queried Graves. He put on his glasses again and eyed something in front of him. “A few moments ago, I believe you referred to the ‘superior expertise of the Florida courts in these matters. Do you recall saying that, Mr. Bock? Am I reading that incorrectly?” He must have a transcript.
“No, Your Honor,” said Bock, backtracking.
Graves’ eyes bored into him. “Do you know where the Galveston courthouse is located, Mr. Bock?” he asked.
“Uh, yes, Your Honor. I recall from our hearing there.”
“Mmhm. And did you know, Mr. Bock, that if you walk ten blocks in that direction,” he pointed offscreen with a big finger, “you will reach the Port of Galveston?”
“I did not,” said Bock.
“I assure you that it is so. Did you know that the Port of Galveston abuts the Atlantic Ocean? It is the very same ocean, in fact, that abuts the Southern District of Florida. And the very same one that, approximately four thousand and eight hundred miles away, abuts the Republic of Portugal as well.”
“Of course, Your Honor. What I meant, is that this is a sensitive international matter with many implications beyond the United States’ shores…”
“Do you not consider the Southern District of Texas, Galveston Division, politic enough to navigate a sensitive international matter, Mr. Bock?”
We were all wincing visibly at this point for Bock.
“Of course I do, Your Honor. But also, there’s the matter of the location of the res, the availability of the parties and witnesses, and the greater ease of traveling to Middle District of Florida, as opposed to flying into Houston and driving forty miles to Galveston, Texas…”
Graves whipped off his reading glasses and glared down Bock. “Mr. Bock,” he said, “as one of my predecessors in this very courthouse once said, you should be assured that you are not embarking on a three-week-long trip via covered wagons when you travel to Galveston. Rather, you will be pleased to discover that the highway is paved and lighted all the way there, and the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind.4 You may be surprised to learn, in fact, that there are two major airports within approximately one hour’s drive of Galveston, and I am told that one can book flights at either location easily. Even online.” This drew a smile from Judge Merryweather, and some guffaws from the gallery.
“Further,” continued Graves, “although we may not have the same day-to-day dealings with great foreign powers as our exalted brethren in the Southern District of Florida, you can be sure that we are more than capable of applying the law in an exact and even-handed fashion. Is that clear?”
“Yes it is, Your Honor. However, in the alternative, we also have a forum non conveniens argument—”
“I have read your briefs in full, Mr. Bock, including your alternative arguments. I am not persuaded. Unless the Fifth Circuit Court of Appeals, the United States Supreme Court, or the Lord our God—in that order—says differently, the case stays here. Are we clear?”
“We are clear, your Honor. Thank you.” He wisely sat down.
Graves then turned back to Judge Merryweather. “Judge Merryweather,” he said politely, “having reviewed the legal arguments in favor of each position, it is my considered opinion that this case belongs in Galveston, Texas. However, I am sensitive to the issue of jurisdiction between the federal courts. If you read the arguments and think differently than I do, I will of course consider your position.”
Judge Merryweather nodded and thanked him for his opinion and said that she would consider it as well. Then Judge Graves bid us good day and signed off. The courtroom filled with the sound of excited whispering and chatting as Judge Graves disappeared from the screen. Bock stood there looking shell shocked.
“Other than the jurisdictional issue,” Judge Merryweather said at last, after the hubbub had died down, “are there any other pressing issues that need to be resolved at this time?”
“Just one more thing, Your Honor,” said Remington.
My stomach tensed up. I looked over at Remington. He hadn’t told me about any one more thing.
Judge Merryweather smiled wryly at him. “And what is that, Mr. Remington?”
“Tonight, I intend to file a motion to join the nation of Malaysia as a required party to this action pursuant to Federal Rule of Civil Procedure Nineteen. Malaysia has an interest in the Flor de la Mar, and the Court cannot resolve this case without it. I don’t know whether you or Judge Graves will be presiding over the case going forward. But I wanted to give you a heads up.”
Bock made a choking sound that was lost amid the roar of lawyers, clerks, and reporters as everyone started yelling at each other at the same tim
e trying to figure out what the hell was going on. Judge Merryweather banged her gavel, calling for order, as people rushed in and out of the courtroom, desperate to report this development to the outside world.
In the midst of all this, Remington quietly asked the Judge for permission to leave, which was granted. He walked out of a side door. I tried to follow him, but got caught up in the crowd of people, pressing in on me from all sides. By the time I reached the exit, he was already gone.
One week later, Judge Merryweather issued a brief opinion. She wrote that, having considered the arguments and the applicable law, she had determined that the Texas court had dominant jurisdiction. Accordingly, in the interests of justice, she would transfer the entire Flor de la Mar action to the Southern District of Texas, Galveston Division.
* * *
4 Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782 (S.D. Tex. 1996).
TWENTY-THREE
Since Remington had dragged Rockweiller, Portugal, and Malaysia kicking and screaming down to Texas, suddenly everyone wanted to talk to us. We were famous. I was getting half a dozen calls a day from news outlets, asking about the Flor de la Mar and David Marcum’s death. Remington’s response to all media inquiries was a brusque “no comment,” so that’s what we went with.
The legal gossip blogs had picked up the case too. One of them ran the headline “Big-Dick Federal Judge Reels Shipwreck Case Back To Texas.” The article hit the high notes of the Florida hearing and chronicled some of the more colorful episodes in Judge Graves’ career. My name was mentioned, and my lawyer friends texted me with such laudatory remarks as “dude, ur in the newz!” or “brah u famous!”
The press also ran segments about David Marcum, including some colorful vignettes from those who knew him. To my amusement, one of these segments featured none other than Trevor Thompson from the Aqua Ray dive resort in Key West, who appeared on MNN for an interview.
Rufus Rockaway, the anchor on MNN, was teasing an upcoming segment about piracy in Somalia. He planned to travel there, go undercover, and interview some pirates firsthand, thereby providing a glimpse to his viewers of life on the high seas. Co-anchor Katie Tyler was listening skeptically as he boasted about the dangers of the operation, and how journalists had been captured there before, when Rockaway interrupted the teaser to announce a special guest.
Rufus Rockaway and Trevor Thompson hit it off immediately. Rockaway spent the first five minutes of the interview lavishing praise on Thompson’s moustache, his tattoos, and his “air of savvy seamanship.”
Katie Tyler seemed jealous of this blossoming on-screen bromance. She flirted with Thompson aggressively, batting her eyelashes to get his attention.
“Eh?” he said in response to one of her questions about David Marcum’s death.
“I said, surely a strong, savvy seaman such as yourself wouldn’t have had any trouble excavating the Flor de la Mar. Am I right?”
“Are you daft, woman? Marcum was one of the best divers I knew. If he got caught down there somehow, I would have too. That’s a fact.”
“A fact,” echoed Rockaway.
Tyler narrowed her eyes. “I see. I guess I assumed you were better than that.”
“She assumed,” said Rockaway, rolling his eyes theatrically. “You know what they say about assuming, right, Trev? It makes an ass out of you and me.”
Thompson snorted with laughter. “You’re damn right, Rufus. You know your stuff. A true journalist.” Tyler huffed and gave it up as a lost cause.
“You know your stuff, my man,” said Rockaway. “Before we sign off, is there anything you would say to David Marcum if you knew he was listening right now?”
“Just this. I hope you’re resting in peace, son. If there was any foul play, and I find out about it, there’s going to be a reckoning. I hope anyone who did it goes straight to hell.”
“Amen, brother,” said Rockaway. He and Thompson fist-bumped and signed off.
On a more sobering note, the case had made the international news as well. Malaysia was sharply critical of the Flor de la Mar lawsuit. Its bellicose Prime Minister denounced it, and the Minister of Foreign Affairs went even further, calling the Flor de la Mar a renegade ship that had sacked and raped the city of Malacca, and Alfonso de Albuquerque a pirate who should have got the hangman’s noose.
Malaysia’s state-owned media accused Portugal and Rockweiller of engaging in modern-day colonialism with the lawsuit. They said they were no better than the West of five centuries ago, which had killed and plundered and enslaved without regard for the lives of those they called heathens. It was hard to argue with this, and the narrative spread like wildfire across social media. There was a backlash against Rockweiller and Portugal as people learned more about what befell Malacca. A campaign began trending online in support of Malaysia. Whether it was organic or influenced by the government, I couldn’t say.
As far as the lawsuit, Malaysia refused to participate in what it called a “sham proceeding” in Texas. It filed a parallel case in its own courts to adjudicate the rights to the Flor de la Mar. I had no doubt how that would turn out. There was also a case pending in the International Court of Justice at the Hague. But the Hague had no jurisdiction over the U.S., and little clout in international affairs. It was sort of like a court version of the U.N.
Judge Graves took heat as well. He was denounced as a rogue American judge who had no business interfering with nations thousands of miles away. Some of Graves’ more controversial rulings percolated to the fore of the media’s attention. I expect he paid about as much attention to this as a bull pays to Snapchat.
It was against this backdrop that Remington called a rare strategy conference in the case. Kruckemeyer, Cindy, Harder, Vijay, and I all gathered in his office. Ashley and Schnizzel had driven in for the occasion as well.
Once we were assembled, Remington wasted no time. “Well gang, we’ve grabbed the bear by the balls,” he said in that colloquial way he had. “And we’ve stepped into a hot button geopolitical conflict. I called you all here to tell you where I see the case going from here.” We waited expectantly as he began.
“We’ve put Malaysia in a tricky legal position,” he explained, folding his arms across his chest. “On the one hand, they want nothing to do with this lawsuit. They will boycott it as a ‘sham proceeding,’ yada, yada. On the other hand, like it or not, this case is going to adjudicate the rights to the Flor de la Mar. And they don’t want to be left out in the cold when that happens. So they’re going to have to do a delicate little dance for the Court here.”
“I have a question,” said Cindy, raising her hand as if we were in class. “Why did we bring Malaysia into the case? It may hurt Rockweiller, but how does it help us?” I nodded. I had been wondering the same thing.
Federal Rule of Civil Procedure 19 governed the joinder of required parties in a lawsuit. Basically, there are some cases where you need to have everyone at the table to go the full monte. For example, if your uncle leaves a house to both you and your cousin, you might have to join both you and your cousin in a lawsuit about the house. That’s where Rule 19 came in. It allowed you to join parties who were required for a full adjudication of the issue.
That’s what Remington had done with Malaysia. Since the cargo of the Flor de la Mar had belonged to Malacca, that meant Malaysia needed to be part of the suit. Otherwise, there couldn’t be a full adjudication of the rights to the wreck. We understood how Remington did it. Just not why.
Remington looked away for a while and thought about how to answer Cindy’s question. “Because we needed a way to reframe the case,” he said finally. “Let me see if I can explain.
“We were not in a good legal position in this case,” he said. “Rockweiller and Portugal have a strong case for the Flor de la Mar. Stronger than us, no matter what some contract may or may not say. And even though we’re out of Florida, sovereig
n immunity remains a tough hurdle to clear.
“By bringing Malaysia into the suit, we’ve changed the conversation. Now, you have two rival sovereigns seeking title to the Flor de la Mar. And Malaysia arguably has a better moral claim to it than Portugal. The two sovereigns’ immunity cancels each other out, so to speak. That’s a crude way to put it, but that’s the practical effect. So now, it’s anybody’s ballgame.
“Besides giving us a shot at the Flor de la Mar, the joinder will also stop any deal-making that is going on behind the scenes. I suspect that Rockweiller, Portugal, and Malaysia are all talking. If they make a deal, I guarantee that Judge Graves will rubber-stamp it. And no one is going to care about David Marcum then. By dragging Malaysia into this, we’ve forced them to become adverse. You’ve seen the news out of Malaysia. The people are angry. It’s going to be that much harder for them to make a deal.” My jaw dropped at this master-level geopolitical strategy.
“The final reason,” Remington concluded, “is to inflict pain. Like it or not, this is an ugly business. The more trouble we are, the more likely Rockweiller will give us what we want. As an added bonus, this will keep Badden & Bock off our backs. We’ve dragged all of these eight-hundred pound gorillas into the ring, and now they’re going to go at each other instead of us. That takes some of the pressure off.”
Remington surveyed the room. “Any questions?” he asked. We all just sat there and gaped at him.
“I don’t know if this will play out the way I’ve said, mind you,” he added. “But sometimes, when you’ve got a bad hand, it pays to shake the box. Create a little chaos. You never know what it might bring. Now. With that, let’s talk about where this case is going. Jack, I’ll turn it over to you for a legal analysis.”
I nodded. This was my moment. Over the last week, I had been absorbed in research, trying to figure out what the law said about ownership of the Flor de la Mar. Unfortunately, there was no clear answer. One old treatise said it best: