409 F.2d 804 (5th Cir. 1969), 26902. Summary Calendar, Murphy v. Houma Well Service

Docket Nº26902.
Citation409 F.2d 804
Party NamePatricia LeBouef MURPHY, as Administratrix of the Estate of Edward Fontenot, Deceased, etc., Plaintiff-Appellee, v. HOUMA WELL SERVICE et al., Defendants, and Eva C. Fontenot, Intervenor-Appellant.
Case DateMarch 11, 1969
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

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409 F.2d 804 (5th Cir. 1969)

Patricia LeBouef MURPHY, as Administratrix of the Estate of Edward Fontenot, Deceased, etc., Plaintiff-Appellee,


HOUMA WELL SERVICE et al., Defendants, and Eva C. Fontenot, Intervenor-Appellant.

No. 26902.

United States Court of Appeals, Fifth Circuit.

March 11, 1969

Rehearing Denied June 18, 1969.

Daniel J. McGee, Mamou, La., Preston N. Aucoin, Ville Platte, La., for appellant.

Patrick A. Juneau, Jr., Lafayette, La., Isom J. Guillory, Jr., Aaron Frank McGee, Guillory, Guillory & Guillory, Eunice, La., for appellee.

Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit judges.

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JOHN R. BROWN, Chief Judge:

In this Jones Act death case the decedent's mother, Mrs. Eva Fontenot, sought to intervene in the District Court claiming that she, not an alleged daughter, was the exclusive beneficiary. Mrs. Fontenot now seeks review of that Court's judgment denying intervention on the ground that the daughter, not the mother, was the sole claimant. 1 The contest here is limited to determining which of these is the statutory claimant.

Since status as beneficiary depends on whether the alleged daughter is a child of decedent, the precise questions presented are (1) whether the meaning of the term 'children' in 45 U.S.C.A. § 51, which is incorporated into the Jones Act by 46 U.S.C.A. § 688, 2 is to be determined by state law (as the District Court held), and (2) if the answer to the first question is in the affirmative, whether the plaintiff here is a 'child' of the decedent Louisiana principles. We hold that state law is determinative and that plaintiff is a 'child' of decedent under Louisiana law. Consequently, the dismissal of the intervention must be affirmed.


Before passing on the substantive merits it is appropriate to discuss in some detail the procedure employed by this Court in disposing of this case. Acting under our recently promulgated Rule 18, 3 the Court has judicially determined that oral argument is not required and accordingly has placed this case on the Summary Calendar. As this procedure is being used more and more, we feel that the bench and bar are entitled to a fuller exposition of it than might be discernible from the empowering Rules (see note 3, supra).

The Summary Calendar procedure is part of a program ordained by the Fifth Circuit Judicial Council, 4 in an effort to meet the constantly increasing demands on the Court as dockets explode beyond even the increased capacity of expanding Judge power. This is by no means a problem of the Fifth Circuit alone. Across the nation Courts of Appeals share with the Fifth the need for exercising judicial inventiveness to increase productivity and expedite disposition without sacrificing the quality demanded both by statute and fundamental concepts of due process. 5

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The project in essence is a presubmission consideration for preliminary classification of each case for calendaring purposes. Empowered by Fifth Circuit Rule 17, the Court has established four main classifications. The first covers cases so lacking in merit as to be frivolous and subject to dismissal or affirmance without more. The second comprises cases in which oral argument is not required and which then go on the Summary Calendar for disposition on briefs and record without oral argument. 6 This leaves those cases in which oral argument is deemed required or helpful, the third group covering those in which limited (15 min.) argument is thought adequate, and the fourth, those meriting up to the full time (30 min.) allowed by FRAP 34 or fixed by the presiding Judge of the panel hearing oral argument.

The important thing is that this screening is a judicial one preformed by Judges, not the Clerk or other non-judicial staff. It is done through a series of standing panels of three Judges, made up of Active Fifth Circuit Judges only. Cases are not submitted to a screening panel until all briefs are in or the allowable FRAP time has expired. When cases are ripe for screening they are submitted to the screening panels at random, without reference to subject matter, state of origin, or any other criteria.

As an added safeguard against even the remote possibility of oral argument being denied by a single Judge, the procedure calls for unanimous panel action to put the case on the Summary Calendar. Carrying it a step further, if after placing it on the Summary Calendar, any member of the panel has doubts or unresolved differences with the proposed opinion, the case is automatically removed and reclassified for full or limited argument. In other words, the classification of the case and its disposition must be unanimous. This demands informed, individual action by each panel member which will always equal, if it does not exceed, that required for an orally argued case. It bears emphasis also that prior to the release of the Court's decision a written notice under Rule 18 (not 3, supra) is given to counsel or the parties that the case is placed on the Summary Calendar. Also, in every Summary Calendar case an opinion, per curiam or signed, is published and given the same distribution and handling as cases orally argued. Consequently, both for orally argued 7 and Summary Calendar cases advance notice is given.

The extent to which this procedure has been an effective administrative tool,

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and more important, how even-handed has been its use is revealed by the statistics covering the initial period of some 80 days 8 (Dec. 15, 1968-March 5, 1969). Evenhandedness is especially significant since our actual experience refutes the apprehension which may be held in some quarters that it would be the indigent and those without counsel 9 whose cases would be put on the Summary Calendar. The obverse was that litigants with counsel and elaborate expensive briefs would receive oral argument. But it has not worked that way at all. In the first place pro se habeas and § 2255 cases comprised but a small number (21) out of the total screened (313). Next, disposed of without oral argument as ordinarily in the past (note 9, supra), they account for less than 23% of the Summary Calendar classification in contrast to over 50% of civil cases running the gamut of diversity, private civil, Labor Board, civil rights, admiralty, etc. 10 And in the context of the total number of cases screened (313) the Summary Calendar--with only one of the 93 classed as frivolous-- represents a substantial part. 11 Finally, the increase in productivity, especially in terms of time under submission, is reflected by the more than 46 printed, published opinions out of the 93 cases placed

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on the Summary Calendar 12 in this brief period.


This is one of those cases in which the facts present an unusual variation on a familiar melody. Edward Fontenot, the decedent, and Patricia LeBouef were married on October 13, 1959, but they only remained together for about one month. After they separated in November 1959, they never again lived together. At some time in late 1960 or early 1961, Patricia Fontenot began living with Allen Murphy. On December 29, 1961, while still married to Fontenot, Patricia gave birth to a daugther, Romona Gail. Not until May 15, 1962, did Patricia obtain a divorce from Edward Fontenot.

Subsequently, in November 1966, Edward Fontenot was killed in an explosion at sea. In July 1967, Patricia Murphy, as administratrix of Fontenot's estate, filed suit for wrongful death, alleging that Edward Fontenot was the father of her daughter Romona Gail. About one year later, Eva C. Fontenot, the surviving dependent mother of the decedent, sought to intervene in this proceeding or to be designated as the real party in interest on the ground that the decedent had left no widow or children and that she was the sole surviving and dependent parent and therefore the only beneficiary under the Jones Act. 13

In the areas of wrongful death and federal insurance, there are many federal cases dealing with the rights of children deemed illegitimate under state law. The factual twist in the instant case is that although long separation of the mother from Fontenot at least allows inferences about the child's parentage, she is considered to be his legitimate child under state law 14 and now seeks to assert a federal right afforded to the decedent's

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'children' by the Jones Act. 15 If she is determined to be his child for purposes of the Jones Act, she will recover to the exclusion of the decedent's sole surviving parent. 16

As stated above, the first question is whether state or federal law should be applied to determine the meaning of the term 'children' in 45 U.S.C.A. § 51. In a leading case pertinent to this question, Seaboard Airline Ry. v. Kenney, 1916, 240 U.S. 489, 36 S.Ct. 458, 60 L.Ed. 762, the Supreme Court considered particularly the definition of the term 'next of kin' as used in § 51. The Court there stated:

'There can be now no question that the act of Congress in so far as it deals with the subjects to which it relates is paramount and exclusive. It is therefore not disputable that recovery under the act can be had alone in the mode and by and for the persons or class of persons in whose favor the law creates and bestows a right of action. * * * But this is irrelevant, since the controversy concerns only the meaning of the act, which it is conceded, when rightly interpreted, is entitled to exclusive operation.

'Plainly the statute contains no definition of who are to constitute the next of kin to whom a right of recovery is granted. But, as speaking generally under our dual system of government, who are next of kin is determined by the legislation of the various states to whose authority that subject is normally committed, it would seem to be clear that the absence of a definition in the act of Congress plainly indicates the purpose of Congress to leave the determination...

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