Bodden v. Osgood
| Decision Date | 09 August 1989 |
| Docket Number | No. 89-3049,89-3049 |
| Citation | 879 F.2d 184 |
| Parties | , 14 Fed.R.Serv.3d 1083 Joycelynn Genevese BODDEN and Dale Lamar Bodden, Plaintiffs-Appellants, v. Sandy OSGOOD, et al., Defendants-Appellees. Fifth Circuit |
| Court | U.S. Court of Appeals — Fifth Circuit |
Samuel Richard Exnicios, Liska, Exnicios & Nungesser, New Orleans, La., for plaintiffs-appellants.
Vance E. Ellefson, C. Theodore Alpaugh, III, Larzelere, Ellefson & Pulver, Metairie, La., for defendants-appellees.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GEE, WILLIAMS, and HIGGINBOTHAM, Circuit Judges.
Facts
In 1984, plaintiff-appellant Samuel Bodden filed suit against fellow employee Sandy Osgood and his employer, defendant-appellant McDermott, after Bodden allegedly suffered injuries aboard vessels owned by McDermott. Osgood was subsequently dismissed from the action. Bodden filed his original complaint in state court. The complaint alleged claims "pursuant to Admiralty and General Maritime Laws of the United States ...," the Jones Act, 46 U.S.C. App. Section 688, and "all other applicable State and Federal Statutes." The complaint alleged that while acting within the course and scope of his seaman's employment with McDermott he suffered two separate injuries, one in December 1983, and another in June 1984. Bodden claimed McDermott's vessels were unseaworthy, that defendants were negligent, and that plaintiff was entitled to appropriate damages including maintenance and cure.
McDermott removed the case to the federal district court based on diversity of citizenship. Joycelynn Bodden was subsequently joined as a party plaintiff to recover damages for her alleged loss of consortium resulting from her husband's injuries. In 1987, Bodden died of a heart attack. The district court allowed Bodden's co-administrators to amend their complaint to add claims for wrongful death "under General Maritime Law, the Jones Act ... and Louisiana Death and Survival Laws."
After further discovery, McDermott filed a summary judgment motion which the district judge partially granted. The district judge determined that Bodden's state law claims were pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA). The judge further found that Bodden's co-administrators had no death claims under either the Jones Act or General Maritime Law and that Panamanian law governed any personal injury claims. The district judge's opinion did not resolve whether McDermott was liable for injuries Bodden allegedly suffered in December 1983.
Bodden then filed a request for the district court to certify the appeal under Sec. 1292(b). The district court denied the request. Bodden subsequently filed a notice of appeal to contest the judge's partial grant of summary judgment in favor of McDermott.
Bodden asserts appellate jurisdiction under 28 U.S.C. Sec. 1292(a)(3). That statute allows appeals from interlocutory orders in admiralty actions. Thus, we must determine whether Bodden has properly invoked the admiralty jurisdiction of the federal court. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.1987) ().
A plaintiff with a claim cognizable in the district court's admiralty/maritime jurisdiction and also cognizable in another basis of jurisdiction may invoke whichever jurisdiction he desires. Fed.R.Civ.P. 9(h). To invoke the admiralty jurisdiction, a plaintiff must insert a statement in his pleading identifying the claim "as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), 82 and the Supplemental Rules for Certain Admiralty and Maritime Claims." Rule 9(h). Otherwise, unless the claim is cognizable only in admiralty, the special practice features for admiralty claims are not applicable. 2A Moore's Federal Practice 9.09 (2d ed.1987). A plaintiff may, however, amend his complaint to invoke the court's admiralty jurisdiction. See Rule 9(h); see, also, Moser v. Texas Trailer Corp., 623 F.2d 1006, 1010 (5th Cir.1980).
Bodden's original complaint alleged that his suit was brought We have held, however, that such language, while preferable, is unnecessary if the complaint contains "a simple statement asserting admiralty or maritime claims under the first sentence of Rule 9(h)." T.N.T. Marine Services v. Weaver Shipyards, 702 F.2d 585, 588 (5th Cir.1983). Nonetheless, the totality of the circumstances in this case leads us to conclude that Bodden's complaint did not properly invoke the district court's admiralty jurisdiction.
In reaching this conclusion we first note that admiralty actions are within the exclusive jurisdiction of the federal courts. 28 U.S.C. Sec. 1333....
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