28 F.3d 104 (9th Cir. 1994), 93-55486, Bellavance v. Starlite Cruises (USA), Inc.

Docket Nº:93-55486.
Citation:28 F.3d 104
Party Name:Carol J. BELLAVANCE, Plaintiff-Appellant, v. STARLITE CRUISES (USA), INC., Starlite Cruises, Inc., et al., Defendants-Appellees.
Case Date:June 10, 1994
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 104

28 F.3d 104 (9th Cir. 1994)

Carol J. BELLAVANCE, Plaintiff-Appellant,

v.

STARLITE CRUISES (USA), INC., Starlite Cruises, Inc., et al., Defendants-Appellees.

No. 93-55486.

United States Court of Appeals, Ninth Circuit

June 10, 1994

Submitted May 24, 1994. [*]

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the Central District of California, No. CV-92-00834-LHM(R); Linda H. McLaughlin, District Judge, Presiding.

C.D.Cal.

VACATED AND REMANDED.

Before: HUG, D.W. NELSON, and FERNANDEZ, Circuit Judges.

MEMORANDUM [**]

Carol J. Bellavance appeals the district court's denial of her Fed.R.Civ.P. 60(b) motion in which she sought (1) relief from the district court's order dismissing the action for lack of jurisdiction and (2) permission to amend her complaint to invoke admiralty jurisdiction in her action against the defendants for injuries sustained while a passenger on board the defendants' cruise ships. We have jurisdiction pursuant to U.S.C. § 1291, and we vacate and remand.

I

Background

On November 30, 1992, Bellavance, represented by counsel, filed a complaint against the defendants, alleging that as a passenger on board one of the defendants' cruise ships, she was injured while ascending a stairway. In the jurisdictional statement of the complaint, Bellavance alleged diversity jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). In addition, on page 3, paragraph 7 of the complaint, Bellavance states "[t]his action is also asserted within admiralty jurisdiction of this honorable court as that term is defined by § 9(h), Federal Rules of Civil Procedure and this cause of action is brought pursuant to Title 46 Section 740 and under general maritime law."

On December 30, 1992, before any answer was filed, the district court dismissed the action without prejudice for lack of diversity jurisdiction.

On January 8, 1993, Bellavance sought to file a motion for relief from the order dismissing the action and permission to amend the complaint to state a cause of action under admiralty jurisdiction pursuant to 28 U.S.C. § 1333. 1 The motion was apparently rejected by the court and returned to Bellavance because the motion noticed a hearing for 8:30 a.m. instead of 1:30 p.m. Bellavance corrected the time and set a...

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