954 F.2d 1061 (5th Cir. 1992), 90-2093, Jones v. Petty-Ray Geophysical Geosource, Inc.

Docket Nº:90-2093.
Citation:954 F.2d 1061
Party Name:Brenda JONES, Individually and as Administratrix of the Estate of Evan A.M. Jones, Deceased, Plaintiff-Appellant, v. PETTY-RAY GEOPHYSICAL, GEOSOURCE, INC., et al., Defendants. Total Exploration, Total Soudan, and Total Compagnie Francais Des Petroles, Defendants-Appellees.
Case Date:February 28, 1992
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 1061

954 F.2d 1061 (5th Cir. 1992)

Brenda JONES, Individually and as Administratrix of the

Estate of Evan A.M. Jones, Deceased, Plaintiff-Appellant,



Total Exploration, Total Soudan, and Total Compagnie

Francais Des Petroles, Defendants-Appellees.

No. 90-2093.

United States Court of Appeals, Fifth Circuit

February 28, 1992

Rehearing Denied April 15, 1992.

Page 1062

Charles L. Roberts, James F. Scherr, El Paso, Tex., for plaintiff-appellant.

Richard Munzinger, Joseph L. Hood, Jr., Scott, Hulse, Marshall, Feuille, Finger & Thurmond, El Paso, Tex., for Total Exploration, Total Soudan, Intl. Energy & Kuwait et al.

Edward J. Hennessy, Houston, Tex., for Petty-Ray and Geosource.

Jon David Ivey, Dotson, Babcock & Scofield, Houston, Tex., for Marathon.

John H. Boswell, Lauren S. Mattiuzzi, Boswell & Hallmark, Houston, Tex., for Democratic Rep.

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

Page 1063

Before GOLDBERG and GARWOOD, Circuit Judges. 1

GARWOOD, Circuit Judge:

Plaintiff-appellant Brenda Jones (Plaintiff) originally filed this suit in a Texas state court against defendant-appellee Petty-Ray Geophysical Geosource (Geosource) seeking recovery for the death of Evan Jones (Jones). Geosource brought a third-party complaint against defendant-appellee Total Exploration, a French corporation, which then successfully removed the case to the federal district court below and subsequently moved for dismissal based on lack of personal jurisdiction. The district court initially denied the motion to dismiss, but ultimately granted it after reconsideration. We affirm.

Facts and Proceedings Below

On January 21, 1986, Plaintiff, a Texas resident, brought this suit in Texas state court against Geosource, claiming that her husband, Jones, was murdered by anti-government rebels while he was employed by Geosource in the Democratic Republic of the Sudan in April 1984. 2 Plaintiff's cause of action was based on Geosource's negligent failure to warn of danger of which it was aware or should have been aware. Geosource filed a third-party complaint against Total Exploration, seeking contractual contribution and indemnity from Total Exploration, for whom Geosource was performing subcontracting work in the Sudan. On May 23, 1986, Total Exploration successfully removed the case to federal district court pursuant to 28 U.S.C. § 1441, alleging jurisdiction under 28 U.S.C. §§ 1330, 1332. Following removal, Plaintiff added as defendants to the suit Total Compagnie Francais des Petroles (Total CFP) and Total Soudan, also French corporations, and the Republic of Sudan and two corporate instrumentalities of Kuwait. Total Exploration and Total Soudan are wholly-owned subsidiaries of Total CFP, the majority of whose stock is in turn owned by the government of France. All of the foreign defendants moved for dismissal based on lack of personal jurisdiction. On October 3, 1989, the district court entered separate orders dismissing the Republic of Sudan and the Kuwait corporate instrumentalities, but denied the motions to dismiss of Total Exploration, Total Soudan, and Total CFP (collectively, the Total entities). Upon reconsideration on October 27, 1989, however, the Total entities' motions were granted and all the Total entities were dismissed. The district court certified its order dismissing the Total entities as a final order pursuant to Fed.R.Civ.P. 54(b), and we review that dismissal order in the instant appeal.


I. Subject Matter Jurisdiction

Plaintiff first seeks to have the dismissal below vacated and the case remanded to a Texas state court, parties intact, on the ground that federal subject matter jurisdiction is absent.

Initially, we note that Plaintiff failed to object below to Total Exploration's removal of the case from Texas state court to federal court, and never moved below to remand. Any defect in removal was therefore waived. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1546 (5th Cir.1991). However, a waiver of defects in removal does not waive the fundamental requirement of original subject matter jurisdiction. Id. Rather, once the plaintiff has waived the right to contest removal, "[t]he jurisdictional issue on appeal becomes whether the federal district court would have had jurisdiction over the case had it originally been filed in federal court." Kidd v. Southwest Airlines Co., 891 F.2d 540, 546 (5th Cir.1990); see also Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972). Three possible

Page 1064

bases for subject matter jurisdiction have been advanced by the Total entities.

A. Diversity of citizenship

Total Exploration removed the case in part based on 28 U.S.C. § 1332, which authorizes original jurisdiction between, inter alia, "citizens of a State, and foreign states or citizens or subjects thereof." 28 U.S.C. § 1332(a)(2). Plaintiff (administratrix of Jones' estate) challenges removal on this ground, pointing to 28 U.S.C. § 1332(c)(2), which provides that "the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same state as the decedent." Both parties agree that Jones was a British national; therefore, Plaintiff argues that she is an alien for diversity purposes, and thus diversity jurisdiction was destroyed by the presence of alien parties on both sides of the controversy. See Ed & Fred, Inc. v. Puritan Marine Ins. Underwriters Corp., 506 F.2d 757, 758 (5th Cir.1975); see also Field v. Volkswagenwerk AG, 626 F.2d 293, 296 (3d Cir.1980). However, the provision on which Plaintiff relies was not effective until May 18, 1989, some three years after the suit was removed. Prior to the amendment, the rule in this Circuit was that "an administratrix's citizenship will govern the diversity inquiry" unless the administratrix was selected to manufacture diversity. Bianca v. Parke-Davis Pharmaceutical Div., 723 F.2d 392, 394 (5th Cir.1984). There are no grounds for concluding that Plaintiff, a citizen of Texas, is trying to manufacture diversity; in fact, she argues against it.

Although Plaintiff may have relied on the wrong provision (a matter we do not ultimately decide) in asserting that diversity is incomplete, her assertion is nevertheless correct for another reason. In their diversity argument, the Total entities overlooked the fact that co-defendant Geosource, a Delaware corporation with its principal place of business in Texas, is a Texas citizen for diversity purposes 28 U.S.C. § 1332(c)(1). Because section 1332 grants federal subject matter jurisdiction only where diversity of the parties is complete, 3 Getty Oil, Div. of Texaco v. Insurance Co. of North America, 841 F.2d 1254, 1258 (5th Cir.1988), the presence of a Texas party on each side of the litigation removes diversity of citizenship as a possible basis of subject matter jurisdiction in this case. See also Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 2221, 104 L.Ed.2d 893 (1989) (recognizing that 28 U.S.C. § 1332(a)(3) confers jurisdiction in federal district court when a citizen of one state sues both aliens and citizens of a state (or states) different from the plaintiff's state ).

B. Foreign Sovereign Immunities Act

The Total entities also argue that jurisdiction was proper under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1602 et seq. and under 28 U.S.C. § 1330, which authorizes an exercise of subject matter jurisdiction over actions against foreign states. The Supreme Court has held that the FSIA grants jurisdiction to the federal courts over claims of foreign states to sovereign immunity, and, furthermore, provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country. Argentine Republic v. Amerada Hess Shipping Co., 488 U.S. 428, 109 S.Ct. 683, 692, 102 L.Ed.2d 818 (1989). Thus, the purpose of the FSIA is dual: "to provide when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and to provide when a foreign state is entitled to sovereign immunity." H.R.Rep. No. 94-1487, 94th Cong., 2d Sess. 6, reprinted in 1976 U.S.Code Cong. & Admin.News 6604 (1976).

None of the Total entities claims to be an arm or agency or instrumentality of the French government. See 28 U.S.C. § 1603(b). Accordingly, at the time of removal, when only Geosource and Total...

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