932 F.2d 1540 (5th Cir. 1991), 90-2646, Baris v. Sulpicio Lines, Inc.

Docket Nº:90-2646.
Citation:932 F.2d 1540
Party Name:Victor C. BARIS, et al., Plaintiffs-Appellants, v. SULPICIO LINES, INC., et al., Defendants, Caltex Petroleum, Inc., Caltex Petroleum Corporation, and Caltex Oil Corporation, Defendants-Appellees.
Case Date:June 17, 1991
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1540

932 F.2d 1540 (5th Cir. 1991)

Victor C. BARIS, et al., Plaintiffs-Appellants,

v.

SULPICIO LINES, INC., et al., Defendants,

Caltex Petroleum, Inc., Caltex Petroleum Corporation, and

Caltex Oil Corporation, Defendants-Appellees.

No. 90-2646.

United States Court of Appeals, Fifth Circuit

June 17, 1991

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Wayne Fisher, David W. Holman, Michael J. Maloney, Fisher, Gallagher, Perrin & Lewis, David M. Gunn, Law Office of W. James Kronzer, Houston, Tex., for plaintiffs-appellants.

Charles Alan Wright, Austin, Tex., Dixie Smith, John A. Barrett, Fulbright & Jaworski, Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before THORNBERRY, JOLLY, and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

This appeal raises issues regarding federal court jurisdiction over a removed case and the doctrine of forum non conveniens. The district court concluded that it had jurisdiction, then dismissed pursuant to the doctrine of forum non conveniens. We conclude that, while the court had jurisdiction over this removed action, its analysis of the forum non conveniens issue was deficient. Accordingly, we vacate and remand.

I.

On December 20, 1987, approximately 5,000 citizens of the Philippines lost their lives in the collision of the M/V DONA PAZ and the M/T VECTOR in the Tablas

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Strait between Mindoro and Marinduque Islands in the Philippines. Defendants Caltex Petroleum, Inc., Caltex Petroleum Corporation, and Caltex Oil Corporation (the "defendants"), corporations with their principal place of business in Texas, were the charterers of the M/T VECTOR. The plaintiffs, representing four survivors and a large number of decedents, brought suit individually and as a class action (not yet certified) to recover compensation for the injuries and deaths.

II.

The suit was filed in state district court "pursuant to the laws of the United States, including the general maritime law, and, pursuant to the savings [sic] to suitor's [sic] clause, 28 U.S.C. Sec. 1333(1), as well as such other federal and state laws as may be applicable including Sec. 17.031 of the Texas Civil Practice and Remedies Code." On February 21, 1990, the defendants removed the matter to federal district court, asserting a right of removal under 28 U.S.C. Sec. 1441(b) and claiming that the suit arises "under the admiralty and maritime jurisdiction of the [federal] court pursuant to 28 U.S.C. Sec. 1333(1) and the Death on the High Seas Act [DOHSA], 46 U.S.C. Sec. 761."

The defendants then answered and moved to dismiss on the basis of, among other grounds, forum non conveniens. For various reasons that, according to the plaintiffs, are not relevant to this appeal, the plaintiffs failed to respond to the motion to dismiss. On April 10, 1990, the district court dismissed the case, deeming the motion unopposed and basing dismissal upon Fed.R.Civ.P. 12(b)(3)--improper venue.

On April 16, 1990, the plaintiffs moved for new trial, reconsideration, and remand. They asserted that the district court had no subject matter jurisdiction because the case had been improperly removed, that dismissal cannot be based solely upon a failure to respond, and that venue was proper. The plaintiffs also asked the court to set aside its dismissal order as a matter of law or equity and to remand to state court.

The defendants responded, not by supporting improper venue as a ground of dismissal, but by requesting the court to change the basis of its dismissal to forum non conveniens. Without affording plaintiffs an opportunity to reply, the court on June 15, 1990, entered its final order, declaring that the DOHSA and general maritime claims had been improperly removed; that the plaintiffs' failure timely to respond to the motion to dismiss was not the basis for the dismissal; that improper venue is not a proper ground for dismissal in a removed case; and that the court had subject matter jurisdiction, despite the improper removal, since the case could have been filed originally in federal court. The court amended its order of April 10 to reflect forum non conveniens, rather than improper venue, as the reason for dismissal. The plaintiffs appeal from the order of June 15.

III.

We must determine, initially, whether the federal district court had jurisdiction over this removed action. If it did not have jurisdiction at the time it ruled on the question of forum non conveniens, we may not consider that issue and must direct the district court to remand the entire proceeding to state court.

The plaintiffs assert, and the district court held in its order of June 15, that the matter was improperly removed. There is authority for that conclusion although, as we explain infra, we need not decide that specific issue.

This action was filed in state court pursuant to the so-called "saving to suitors" clause of section 1333(1). 1 That provision has been construed to permit admiralty and maritime actions, otherwise exclusively within the jurisdiction of the federal district courts, to be brought in state court as well. 1 S. Friedell, Benedict on Admiralty Sec. 122 (6th ed. 1991).

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In the instant case there is no diversity of citizenship. In Alleman v. Bunge Corp., 756 F.2d 344, 345-46 (5th Cir.1984), we observed that where plaintiffs have exercised their "historic option" (quoting Romero v. International Terminal Operating Co., 358 U.S. 354, 371, 79 S.Ct. 468, 479, 3 L.Ed.2d 368 (1959)), to bring an action in state court under the saving to suitors clause, the matter cannot be removed in the absence of diversity. Although there had been some doubt as to whether DOHSA claims may be brought exclusively in the federal courts, the Supreme Court recently has stated that DOHSA jurisdiction is concurrent, i.e., that a DOHSA action can be brought in either state or federal court. See Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 225, 106 S.Ct. 2485, 2495-96, 91 L.Ed.2d 174 (1986). 2

Thus, we treat this action as one properly brought in state court under DOHSA. If it is removable, the non-preempted survival claims and any general maritime injury claims are removable pursuant to the federal district court's pendent jurisdiction. Romero, 358 U.S. at 380-81, 79 S.Ct. at 484-85; Snyder v. Whittaker Corp., 839 F.2d 1085, 1092 (5th Cir.1988). As we have stated, however, we need not decide whether the cause was removable, as the plaintiffs, in any event, have waived their right to seek a remand. 3

IV.

Even if this matter was improperly removed, the plaintiffs waived the opportunity to challenge the removal. That is because plaintiffs' motion for remand was untimely under 28 U.S.C. Sec. 1447(c). 4 The plaintiffs do not dispute that they failed, as required by section 1447(c), to file a motion to remand within thirty days after defendants filed their notice of removal. Hence, after the expiration of the thirty-day period set forth in section 1447(c), the district court properly retained jurisdiction, assuming that this is an action that originally could have been brought in federal court, an issue we examine in the next section.

In their opening and reply briefs on appeal, the plaintiffs devote only one paragraph (in the reply brief) to the issue of waiver. They point out that that section applies only to motions to remand based upon "any defect in removal procedure." They aver that they never have contended that there were any procedural defects in the removal in this case but that their objection was based solely upon a claimed lack of subject matter jurisdiction.

The plaintiffs have confused improper removal (i.e., lack of removal jurisdiction) with lack of original subject matter jurisdiction. The former is waivable, see Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 703, 92 S.Ct. 1344, 1348, 31

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L.Ed.2d 612 (1972); Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc); the latter is not, see Hensgens v. Deere & Co., 833 F.2d 1179, 1180 (5th Cir.1987); Giannakos v. M/V Bravo Trader, 762 F.2d 1295, 1297 (5th Cir.1985) (per curiam).

In this regard, section 1447(c) mentions original subject matter jurisdiction, rather than removal jurisdiction, in providing that "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." That phrase "refers to want of federal subject matter jurisdiction." 1A J. Moore & B. Ringle, Moore's Federal Practice p 0.169 at 675 (2d ed. 1990). When Congress has intended to refer to removal jurisdiction, it has distinguished that concept from the doctrine of original subject matter jurisdiction. See, e.g., 45 U.S.C. Sec. 822(e) ("original and removal jurisdiction"). Moreover, this court has had little difficulty in distinguishing between removal jurisdiction, on the one hand, and original or subject matter jurisdiction, on the other hand. 5

More to the point, the plaintiffs misconstrue what is meant in section 1447(c) by the term "procedural defect." As used in that section, a "procedural" defect is any defect that does not go to the question of whether the case originally could have been brought in federal district court:

The motion to remand must be made within 30 days after removal, if the objections are of a character that can be waived, such as formal and modal matters pertaining to the procedure for removal or the non-removability of a proceeding otherwise within federal jurisdiction.

1A J. Moore & B. Ringle p 0.168[4.--1] at 644 (footnotes omitted, emphasis added). Professor Moore thus notes that section 1447(c) concerns "the following situations that may arise in a removed suit: the action is of a nonremovable character; or although within removal jurisdiction, defendant has not pursued the proper procedure in removing the suit." Id. p 0.157[11.--1] at 166 (emphasis added). The former...

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