Fontenot v. Global Marine, Inc.

• Decision Date: 25 April 1983
• Docket Number: No. 82-4415,82-4415
• Citation: 703 F.2d 867
• Parties: Yves J. FONTENOT, Plaintiff-Appellant, v. GLOBAL MARINE, INC., et al., Defendants-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 867

703 F.2d 867

1984 A.M.C. 906

Yves J. FONTENOT, Plaintiff-Appellant, v. GLOBAL MARINE, INC., et al., Defendants-Appellees.

No. 82-4415

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 25, 1983.

Morrow & Morrow, J. Michael Morrow, James P. Ryan, Opelousas, La., for plaintiff-appellant.

Lewis & Lewis, James T. Guglielmo, Opelousas, La., for Global Marine.

Dubuisson, Brinkhaus, Dauzat, Dubuisson & Falgoust, Edward B. Dubuisson, Opelousas, La., for Union Mut.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, JOHNSON and WILLIAMS, Circuit Judges.

JERRE S. WILLIAMS, Circuit Judge.

Appellant, Yves J. Fontenot, originally brought suit in Louisiana state court against his employer, Global Marine, Inc. ("Global"), for an injury aboard ship. Subsequently, on February 4, 1980, appellant amended his state petition to include Unionmutual Stock Life Insurance Company of America ("Unionmutual") as a defendant. On February 28, 1980, Unionmutual removed the lawsuit from state court to the United States District Court on the basis of diversity jurisdiction; appellant was a resident of Louisiana, Global was a Delaware corporation with its principal place of business in California, and Unionmutual was a Maine corporation with its principal place of business in that state.

Appellant began working for Global on February 9, 1979 as a seaman. He was injured five days later, on February 14, 1979 when he fell while working aboard Global's vessel. As a result of his injury, he suffered a herniated disc which he alleges rendered him totally and permanently disabled. At the time of his employment, eligible employees of Global were covered by a disability insurance policy issued by Unionmutual. Appellant claimed under that policy, but Unionmutual denied coverage on the ground that he had not been an employee long enough for policy coverage. Both appellant and Unionmutual moved for summary judgment in the district court. The court granted Unionmutual's motion, and denied that of appellant, finding that pursuant to the terms of the insurance policy appellant did not become eligible for coverage until March 1, 1979, and hence his injury of February 14 was not insured. ¹

Subsequent to the decision of the district court, appellant moved in that court to remand the case to state court, alleging that removal had been granted improperly. He claimed: (1) the amount in controversy prerequisite to diversity jurisdiction was not met; (2) Global had failed to join in the petition for removal as required by 28 U.S.C. Sec. 1441(a); and (3) the removal petition filed by Unionmutual was defective in failing to allege Global's principal place of business, for purposes of determining the existence of complete diversity.

The district court, by written opinion dated June 15, 1981, denied appellant's motion to remand. It found: (1) the requisite jurisdictional amount was at issue since Global's exposure to liability exceeded $10,000; (2) Global's failure to join timely in the petition for removal ² could not be relied upon by appellant at this stage of the litigation, as his conduct amounted to a waiver of his objection; and (3) any deficiency in alleging the citizenship necessary for determination of diversity jurisdiction was cured by Global's motion to join in the removal petition.

Trial before the court on the merits of the case against appellant's employer, Global, was then held. Appellant's claim against his employer was that the Global representative who interviewed him made affirmative verbal representations that he would be covered under the Unionmutual policy as soon as he began his employment. At trial, the court became aware for the first time that a certificate or abstract of insurance furnished by Unionmutual to Global was provided appellant at the time of his pre-employment interview. The court then vacated its initial ruling in favor of Unionmutual, "[b]ecause of the possibility that liability under the policy could be visited on Unionmutual under the terms of the certificate of insurance (and irrespective of the terms of the policy)." The case against Unionmutual was then submitted on the record made in the previous hearing On September 8, 1982, the district court rendered judgment for defendants. As to the liability of Global, the court concluded that appellant failed to carry his burden of establishing that verbal representations of coverage were in fact made to him. As to the liability of Unionmutual, the court considered the language in the abstract of coverage, in the light of Louisiana jurisprudence, and held that the abstract was neither misleading nor insufficient.

on Global's liability, as supplemented by exhibits and briefs filed following that hearing.

Appellant now appeals the district court's denial of his motion to remand to the state court, and the district court's judgment rendered in favor of both defendants.

I. Removal

Appellant argues that the district court erred in denying his motion to remand since both defendants had not joined in the original petition to remove, as required by 28 U.S.C. Sec. 1446(a). ³ Appellant advances three contentions: (1) Global never moved to join the petition for removal; (2) even if such a motion had been made, its tardy submission could not cure the original jurisdictional defect; and (3) even if the thirty-day limitations period in the removal statute does not affect the jurisdiction of the district court, appellant's conduct could not be deemed a waiver of his right to object. We find no merit in appellant's contentions.

First, we reject out of hand appellant's allegation that Global failed to file a motion to join in the removal petition, however tardy. Such a petition, as characterized by the district court, appears in the record on appeal.

Second, this Court's recent decision in Harris v. Edward Hyman Co., 664 F.2d 943 (5th Cir.1981), establishes that the thirty-day limitations period in 28 U.S.C. Sec. 1446(b), ⁴ in which a state court defendant can file a petition to remove, "does not affect the jurisdiction of the district court and that 'failure to file the petition within the alloted time may be waived.' " Id. at 945 (quoting Weeks v. Fidelity & Casualty Co., 218 F.2d 503, 504 (5th Cir.1955)). ⁵ In Harris we concluded that "a party who delays in seeking a remand, or otherwise participates in the proceedings in the district court, also may be precluded from objecting to a defendant's untimely consent to a defective removal petition." Ibid.

The facts of the immediate case, as recited by the court below, fall squarely within Jurisdiction is based on diversity of citizenship and the fact that the amount in dispute, exclusive of interest and costs, exceeds $10,000.00. Jurisdiction is not disputed.

                the Harris decision. 6   As well observed by the district court, this action was allowed to remain on the court's docket, without objection, for thirteen months.  Counsel for plaintiff-appellant, as well as counsel for defendant-appellees, attended a status conference before a United States Magistrate on January 20, 1981.  In anticipation of this conference, on December 23, 1980, appellant's counsel represented to the magistrate, in writing, that "jurisdiction is established."    Further, a pretrial conference was held on February 13, 1981, which all parties attended.  In the memorandum of the pretrial conference filed by the Deputy Clerk of Court there is no indication of any jurisdictional dispute.  On the contrary, pursuant to the clerk's memorandum, appellant was permitted seven days in which to file a motion for summary judgment.  When, on February 25, 1981, appellant did file his motion for summary judgment addressing the issue of Unionmutual's liability, appellant's memorandum specifically noted
                

Further, on April 3, 1981, counsel for Global filed a pretrial stipulation arising out of the pretrial conference of February 13, 1981, which was signed by all parties and which acknowledged jurisdiction. It was not until after the court granted Unionmutual's motion for summary judgment and denied appellant's summary judgment motion, that appellant voiced objection to jurisdiction.

The above recitation of facts, relied upon by the court below, clearly demonstrates appellant's full participation in the lawsuit in federal court. We find, therefore, that appellant waived his right to object to Global's tardy joinder in the removal petition. Appellant, both by his conduct and by his explicit statements, unequivocally recognized jurisdiction in the federal court at all times prior to the unfavorable district court ruling on his motion for summary judgment and the favorable ruling on defendant Unionmutual's motion. It would be manifestly unjust to permit appellant to maintain his objections to removal at the stage of the proceedings at which they were raised. Since we find that Global's tardy joinder in the removal petition did not affect the jurisdiction of the court and that appellant clearly waived his right to object to this originally defective removal petition which was subsequently cured, we conclude that the district court properly denied appellant's motion to remand. ⁷

II. Liability

Appellant argues that the district court erred in its findings that neither Global nor Unionmutual were liable for his disability claim. Appellant contends that the district court erred in freeing Global of liability by concluding that Global's representative did not represent that appellant was covered by the disability policy on the day he began work. As to Unionmutual, appellant argues that the district court erred in concluding that the abstract of coverage, prepared by Unionmutual and provided appellant at the time of his pre-employment interview, was not deficient in its failure to set out the waiting period provision contained in the disability policy. We uphold the decision of the district court freeing...