813 F.2d 1553 (9th Cir. 1987), 85-5829, Trentacosta v. Frontier Pacific Aircraft Industries, Inc.

Docket Nº:85-5829.
Citation:813 F.2d 1553
Party Name:Jeffrey Lynn TRENTACOSTA, Plaintiff-Appellant, v. FRONTIER PACIFIC AIRCRAFT INDUSTRIES, INC.; Luke Williams; Lynn Carlson; Norman Lindsey; Castle & Cooke, Inc., dba Bumble Bee Seafoods; Anthony Sabella; Sea Queen Management Company, Ltd.; Fishery Development Corporation, Ltd.; Fleet Management, N.V.; Marine Resources, N.V.; Western Fishing Corporat
Case Date:April 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1553

813 F.2d 1553 (9th Cir. 1987)

Jeffrey Lynn TRENTACOSTA, Plaintiff-Appellant,

v.

FRONTIER PACIFIC AIRCRAFT INDUSTRIES, INC.; Luke Williams;

Lynn Carlson; Norman Lindsey; Castle & Cooke, Inc., dba

Bumble Bee Seafoods; Anthony Sabella; Sea Queen Management

Company, Ltd.; Fishery Development Corporation, Ltd.;

Fleet Management, N.V.; Marine Resources, N.V.; Western

Fishing Corporation; M/V Sea Queen, her engines, boats,

tackle, apparel, furniture, furnishings, equipment and

appurtenances, Defendants-Appellees.

No. 85-5829.

United States Court of Appeals, Ninth Circuit

April 8, 1987

Argued and Submitted July 8, 1986.

Page 1554

Edward F. Blum, Jr., Anaheim Hills, Cal., Thomas M. Crehan, Torrance, Cal., for plaintiff-appellant.

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Roxanne L. Holmes, San Francisco, Cal., Terry W. Backus, Victoria A. Cloninger, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON, POOLE and THOMPSON, Circuit Judges.

DAVID R. THOMPSON, Circuit Judge:

Appellant Jeffrey Lynn Trentacosta appeals from the district court's dismissal of his claims against all defendants except Aero Dinamico ("Aero"). In his first amended complaint, Trentacosta invoked jurisdiction solely on the basis of a Jones Act claim under 46 U.S.C. Sec. 688. He also alleged federal question jurisdiction under 28 U.S.C. Sec. 1331. Trentacosta did not allege admiralty jurisdiction under 28 U.S.C. Sec. 1333, nor did he state his claim was an admiralty or maritime claim under Rule 9(h) of the Federal Rules of Civil Procedure. 1

The district court, in ruling on a motion to dismiss the complaint for lack of subject matter jurisdiction, determined that Trentacosta had not been an employee of any defendant other than Aero at the time he was injured. Absent any employer/employee relationship between Trentacosta and any defendant except Aero, Trentacosta's Jones Act claim against all defendants except Aero was dismissed. Jurisdiction over the remaining claims was pendent to the Jones Act claim, and when the Jones Act claim was dismissed, the district court dismissed the remaining pendent claims against all defendants except Aero. Trentacosta was left with only his Jones Act and other pendent claims against Aero. In a motion for reconsideration, Trentacosta requested leave to amend his complaint to allege subject matter jurisdiction over the dismissed non-Jones Act claims. The district court denied, without comment, the motion for reconsideration, including Trentacosta's request for leave to amend.

The district court entered its order under Fed.R.Civ.P. 54(b) certifying this case for appellate review. We have jurisdiction pursuant to that order and 28 U.S.C. Sec. 1291. We affirm the district court's dismissal of Trentacosta's Jones Act claim against all defendants except Aero. We reverse the district court's denial of Trentacosta's request for leave to amend his complaint to allege subject matter jurisdiction. In the event Trentacosta amends his complaint to set forth subject matter jurisdiction over the dismissed claims (other than the dismissed Jones Act claims), the district court's order dismissing those claims for lack of subject matter jurisdiction shall be set aside.

I

FACTS

Aero entered into a written contract with the tuna fishing vessel M/V Sea Queen to provide a helicopter, pilot, and helicopter mechanic to assist the Sea Queen in locating schools of tuna during a fishing trip. Aero's contract with the Sea Queen contained the following clause:

[Sea Queen] shall have no obligation to pay or advance compensation or other sums to [Aero's] employee pilots or mechanics. Compensation of the pilot and mechanic shall be solely the responsibility of [Aero]. In addition, [Aero] warrants that all withholding of taxes, FICA and other such obligations of an employer with respect to its employees required by state, federal or other law will be performed by [Aero]....

As part of this contract, Aero agreed to indemnify the Sea Queen against any liability for personal injuries connected in any

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way with the helicopter, the pilot, or the mechanic, including claims under the Jones Act and claims for unseaworthiness and maintenance and cure.

Aero hired Trentacosta to work as a helicopter mechanic. His written employment contract with Aero described him as an independent contractor employed by Aero "as a mechanic aboard the M/V Sea Queen." The term of his employment was for the duration of the fishing trip. He was to be paid by Aero $9.00 per ton of processed fish caught during the trip in excess of the first fifty tons.

While at sea aboard the Sea Queen, Trentacosta was injured. He caught his hand in a helicopter engine fan blade while working on the helicopter. He brought suit in the United States district court against the helicopter operator, its owners, and others having a connection with it ("the helicopter defendants"), and against the vessel, its captain and its owners ("the vessel defendants"). Trentacosta's claims against the helicopter and vessel defendants were based on negligence, liability under the Jones Act, unseaworthiness, and maintenance and cure. Trentacosta also alleged claims against the helicopter defendants based on negligence and strict products liability. In his statement of jurisdiction, Trentacosta did not invoke admiralty jurisdiction under 28 U.S.C. Sec. 1333. He used the words "Jones Act and General Maritime Law" in the title of what he designated as his first cause of action, but this was not sufficient to invoke the court's admiralty jurisdiction when he expressly claimed jurisdiction in his complaint exclusively under the Jones Act and 28 U.S.C. Sec. 1331. See Alleman v. Bunge Corp., 756 F.2d 344, 345 (5th Cir.1984).

The defendants moved to dismiss Trentacosta's claims for lack of subject matter jurisdiction. They contended he was not a seaman within the meaning of the Jones Act and was not an employee of any defendant. 2 In support of this motion, the defendants submitted copies of Trentacosta's employment contract with Aero and the helicopter contract between Aero and the Sea Queen, and an affidavit stating that Trentacosta was not carried as an employee on records of the vessel defendants.

Trentacosta did not file a timely response to the motion to dismiss. When he did respond, he presented no affidavit or other evidentiary matter in opposition to the motion to dismiss but instead argued that the issue of whether he was an employee of the defendants within the meaning of the Jones Act was a factual one for the jury. The district court granted the motion to dismiss as to all defendants and as to all claims, except for Trentacosta's Jones Act and pendent claims against Aero. Trentacosta and Aero filed motions to alter or amend the order, or in the alternative for reconsideration. Both motions were denied. 3

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Trentacosta filed a timely notice of appeal from the district court's order dismissing his claims against all defendants except Aero, and from the district court's denial of his motion for reconsideration. On appeal, Trentacosta abandoned his appeal from the order denying his motion for reconsideration, except insofar as that order also denied his request for leave to amend his complaint to allege subject matter jurisdiction over the claims which had been dismissed.

II

STANDARD OF REVIEW

The district court's determination of subject matter jurisdiction under the Jones Act is a question of law and is reviewed de novo. Rodriguez v. Flota Mercante Grancolombiana, S.A., 703 F.2d 1069, 1071 n. 2 (9th Cir.), cert. denied, 464 U.S. 820, 104 S.Ct. 84, 78 L.Ed.2d 94 (1983). The interpretation of a contract is a mixed question of law and fact subject to de novo review. Hahn v. Oregon Physicians' Service, 786 F.2d 1353, 1355 (9th Cir.1985). Factual findings are reviewed under the clearly erroneous standard. United States v. Lembke Constr. Co., 786 F.2d 1386, 1387-88 (9th Cir.1986). The denial of a motion to amend is reviewed for abuse of discretion. M/V American Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th Cir.1983).

III

MOTION TO DISMISS

  1. Dismissal of Jones Act Claims

    In its dismissal order the district court stated:

    The Jones Act allows, in short, "seamen" to recover only from their "employers." Cosmopolitan Shipping v. McAllister, [337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692 (1949); Allen v. United States, 338 F.2d 160 (9th Cir.1964) cert. denied, 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 182 (1965) ]. To be liable, defendants must be plaintiff's employer(s). Based on the facts of this case, this court finds the requisite employment relationship lacking as to all defendants except Aero Dinamico. Only Aero Dinamico had a contract with plaintiff, hired plaintiff, paid his wages, and could exercise any real control over his actions. While it is true that all of Trentacosta's work took place on board the ship, such work was contractually limited to the helicopter. Indeed, the Helicopter Fish Spotting Agreement specifically stated that the plaintiff was not an employee of the vessel M/V Sea Queen, but rather an independent contractor working for Aero Dinamico. There is simply nothing in the Agreement, in plaintiff's contract with Aero Dinamico, or in plaintiff's actions on board the ship which indicates that any movant but Aero Dinamico was plaintiff's employer.

    Trentacosta contends the helicopter agreement between Aero and the Sea Queen, and Trentacosta's employment contract with Aero, are "void insofar as they purport to deny Trentacosta his status as an employee and his rights under the Jones Act." He argues the vessel defendants and the helicopter defendants manipulated the two contracts in an attempt to avoid Trentacosta being anyone's employee in order to defeat his rights under the Jones Act....

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