Guidry v. Durkin, 86-2200

• Decision Date: 22 December 1987
• Docket Number: No. 86-2200,86-2200
• Citation: 834 F.2d 1465
• Parties: Paul GUIDRY, Plaintiff-Appellant, v. John DURKIN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1465

834 F.2d 1465

1988 A.M.C. 1979

Paul GUIDRY, Plaintiff-Appellant, v. John DURKIN, Defendant-Appellee.

No. 86-2200.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 11, 1987.

Decided Dec. 22, 1987.

Frederick John James, Oakland, Cal., for plaintiff-appellant.

Jeanne M. Franken, U.S. Dept. of Justice, San Francisco, Cal., for defendant-appellee.

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

Before NOONAN and O'SCANNLAIN, Circuit Judges, and TASHIMA, ^* District Judge.

O'SCANNLAIN, Circuit Judge:

We set sail on a voyage over the waters of the ancient law of admiralty, swept along by our need to deal with one seaman's claim that he was defamed by another in a telex message signaled from a Navy ship on the high seas. Following removal of this state court action to federal district court, the trial judge entered summary judgment against seaman Guidry on the ground of seaman Durkin's absolute immunity as a federal official. After weathering the storms of conflicting jurisdictional arguments, we conclude that safe harbor cannot be found to hear this complaint in either court.

FACTS

Durkin was a civilian employed by the Department of the Navy ("Navy") as Chief Engineer on the United States Naval Ship Passumpsic, a public vessel of the United States. On October 1, 1984 the ship was at sea when Durkin received a telex message stating that Guidry, also a civilian employee of the Navy, would be assigned to the Passumpsic as Engine Utilityman.

In response to this news, Durkin drafted the following message and handed it to the telex operator on board the Passumpsic for transmission to shore:

1. Due to past previous working experiences Chf. Engr. requests reconsideration of placement of Mr. Paul Guidry vice Mr. Robert Warren as per ref (A).

2. ORIG, in need of a [sic] engine utility man who can handle their [sic] share of workload without constant directions and supervision as per MSCPACINST. 125123.3 CH-1.

Durkin's message was sent to and received by the Navy's Military Sealift Command, Pacific in Oakland, California. ¹ Thereafter, the Master of the Passumpsic requested that Guidry not be assigned to his ship.

Guidry filed suit against Durkin in California state court on August 21, 1985, claiming the intentional tort of libel and general negligence. ² Durkin, represented by attorneys for the United States, removed the state court action to federal district court pursuant to 28 U.S.C. Sec. 1442(a)(1). Durkin then filed an answer to Guidry's complaint, raising the affirmative defenses of lack of subject matter jurisdiction and immunity from state and common law tort liability. Durkin subsequently filed motions to dismiss and for summary judgment under Fed.R.Civ.P. 12(b)(1) and 56(b).

The district court granted Durkin's motion for summary judgment and dismissed

the complaint, finding that Durkin's actions fell within the outer perimeter of his duties and holding that, as a federal official, he was absolutely immune from tort liability for those actions. The question of the court's subject matter jurisdiction, however, does not appear to have been considered.

STANDARD OF REVIEW

We review de novo a district court's entry of summary judgment, see National Basketball Ass'n v. SDC Basketball Club, Inc., 815 F.2d 562, 565 (9th Cir.1987), cert. pending, but our initial inquiry here is with respect to jurisdiction. Questions of subject matter jurisdiction are also reviewed de novo. Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1515 (9th Cir.1987).

DISCUSSION

We are confronted with the somewhat anomalous situation in which two conflicting and potentially mutually exclusive grounds for jurisdiction have been asserted by the parties. Neither side alleges diversity jurisdiction. Guidry argues that, despite his filing originally in state court, the district court acquired jurisdiction under 28 U.S.C. Sec. 1442(a)(1) and properly kept the case. Durkin urges instead that, because Guidry's claims sound in admiralty under 28 U.S.C. Sec. 1333(1), the state court lacked subject matter jurisdiction over this action and the district court acquired none upon removal. ³ We turn now to an examination of the merits of these arguments.

I

Title 28 of the United States Code, section 1442(a), reads in relevant part:

A civil action ... commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office....

The purpose of this statute is to provide a federal forum, presumably free of whatever local prejudice might exist in a state court, in which federal officers may defend claims arising out of the performance of their duties. Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 1664-65, 68 L.Ed.2d 58 (1981); Willingham v. Morgan, 395 U.S. 402, 406-07, 89 S.Ct. 1813, 1815-16, 23 L.Ed.2d 396 (1969); Nationwide Investors v. Miller, 793 F.2d 1044, 1046 (9th Cir.1986) (per curiam). "[I]t is a purely derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties." Manypenny, 451 U.S. at 242, 101 S.Ct. at 1664 (footnote omitted). Thus, the net effect of section 1442(a)(1) is to provide a federal officer with a federal forum in which the federal rules of procedure will be applied without changing the substantive law relevant to the plaintiff's claims. See id. at 241-42, 101 S.Ct. at 1664-65.

However, because of the derivative nature of the jurisdiction conferred on the district court by this statute, ⁴ the federal court may not exercise jurisdiction over the removed action unless the state court initially had subject matter jurisdiction. Id. at 242 n. 17, 101 S.Ct. at 1665 n. 17. Accord Miller, 793 F.2d at 1048 (citing Aminoil U.S.A., Inc. v. California Water Resources Control Bd., 674 F.2d 1227, 1232, 1237 (9th Cir.1982)). We turn, therefore, to

an examination of Guidry's claims ⁵ to see whether, as argued by Durkin, they sound in admiralty, beyond state court subject matter jurisdiction.

II

The scope and extent of the admiralty jurisdiction of the United States district courts is set forth at 28 U.S.C. Sec. 1333(1), which reads as follows:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of[ ] [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

The above language has been construed to mean that a plaintiff pursuing an in personam claim with a maritime flavor may generally elect to proceed in a state court capable of exercising personal jurisdiction over the parties under the "saving to suitors" clause above (i.e., the state and federal courts exercise concurrent jurisdiction over such claims), whereas in rem actions involving maritime liens fall within the exclusive admiralty jurisdiction of the federal district courts. See Madruga v. Superior Court, 346 U.S. 556, 560, 74 S.Ct. 298, 300, 98 L.Ed. 290 (1954) ("Admiralty's jurisdiction is 'exclusive' only as to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien"); 1 E. Jhirad, A. Sann, B. Chase & M. Chynsky, Benedict on Admiralty Secs. 123 & 124 (7th ed. 1985) ("Benedict"); 14 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure Sec. 3672 (2d ed. 1985); G. Gilmore & C. Black, The Law of Admiralty Sec. 1-13 (2d ed. 1975); D. Robertson, Admiralty and Federalism 135 (1970); Comment, "State Jurisdiction in the Maritime Realm," 16 Mercer L.Rev. 450, 456-57 (1965). But see 2 Benedict Sec. 2 at 1-16 ("Where the tort occurs on the high seas, admiralty will have sole jurisdiction...."), and LaMontagne v. Craig, 817 F.2d 556, 557 (9th Cir.1987) (per curiam ) (admiralty jurisdiction would exist where tort of defamation occurred on high seas).

Before we can determine whether Guidry's claim falls within the original and exclusive admiralty jurisdiction of the federal district courts or concurrent state court jurisdiction by virtue of the "saving to suitors" clause, we must first answer the question whether Guidry's specific claim for tortious libel may be heard in admiralty at all.

Traditionally, admiralty jurisdiction extended only to torts that occurred on navigable waters, as distinguished from those occurring on land. See generally 2 Am.Jur.2d, Admiralty Sec. 81 at 765; 2 Benedict Sec. 2. However, the Supreme Court stated in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 268, 93 S.Ct. 493, 504, 34 L.Ed.2d 454 (1972), that "the mere fact that the alleged wrong 'occurs' or 'is located' on or over navigable waters" is not sufficient to create a maritime tort; it is also required that "the wrong bear a significant relationship to traditional maritime activity." In this circuit, following Executive Jet, a claim falls within the federal court's admiralty jurisdiction if the actions complained of have (1) a maritime "situs"--a tort on or over navigable waters, and (2) a maritime "nexus"--a significant relationship to traditional maritime activity. Solano v. Beilby, 761 F.2d 1369, 1370 (9th Cir.1985).

A. MARITIME SITUS

Under maritime common law, "[C]ourts have traditionally defined the locus of the tort as the place where the injury occurs." Solano, 761 F.2d at 1371. However, situs of a tortious injury depends, inter alia, on the type of tort alleged. Where it is clear that tortious injury occurs solely ashore, the federal courts are generally without admiralty jurisdiction. See, e.g., Lamontagne v. Craig, 632 For the tort of defamation to be cognizable in admiralty, its prima facie requirements must be...