Buccina v. Grimsby

• Citation: 889 F.3d 256
• Decision Date: 27 April 2018
• Docket Number: Nos. 17-3679/3721,s. 17-3679/3721
• Parties: Nancy BUCCINA; Scot A. Buccina, Plaintiffs–Appellees/Cross–Appellants, v. Linda Ann GRIMSBY, Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

889 F.3d 256

Nancy BUCCINA; Scot A. Buccina, Plaintiffs–Appellees/Cross–Appellants,

v.Linda Ann GRIMSBY, Defendant–Appellant/Cross–Appellee.

Nos. 17-3679/3721

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 27, 2018

ON BRIEF: Brian T. Winchester, Jesse M. Schmidt, MCNEAL SCHICK, ARCHIBALD & BIRO, CO., LPA, Cleveland, Ohio, for Appellant/Cross–Appellee. Christopher D. Kuebler, RAY ROBINSON LAW CO., LPA, Cleveland, Ohio, for Appellees/Cross–Appellants.

Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

OPINION

SUTTON, Circuit Judge.

Linda Ann Grimsby invited her friend Nancy Buccina to take a boat trip on Lake Erie. Toward the end of the voyage, the boat hit a wave, jarring the passengers and injuring Nancy. Nancy and her husband Scot sued. A jury found that Grimsby was not negligent. But the district court granted Nancy and Scot's motion for a new trial on the ground that the evidence did not support the verdict. Grimsby filed an interlocutory appeal, and the Buccinas cross-appealed. Both sides think we may entertain their appeals thanks to an interlocutory exception to the final judgment rule that applies to admiralty cases. But the exception does not apply because the Buccinas chose to pursue their claims under ordinary civil procedures, as the relevant rule and case law permits. We dismiss the appeals for lack of jurisdiction.

I.

In June 2012, Linda Ann Grimsby invited Nancy Buccina and one other friend to join her on a 17–foot motor boat to waterski on Lake Erie. After skiing, the group decided to take a trip down the Maumee River, which runs into the lake at Toledo. Grimsby navigated the vessel while Nancy sat in the front. The vessel hit an unexpected wave, likely caused by the wake of other boats. Nancy bounced up from her seat and came down hard on it. Grimsby steered the boat to a local Coast Guard station where Nancy received medical attention.

Nancy and her husband Scot Buccina sued Grimsby in the United States District Court for the Northern District of Ohio for personal injury and loss of consortium, invoking the court's diversity and admiralty jurisdiction. At the same time, they pleaded that "this action is not to be deemed an ‘admiralty and maritime claim’ within the meaning of" Rule 9 of the Federal Rules of Civil Procedure, a choice that guaranteed them a jury trial as opposed to the bench trial that defendants may force plaintiffs to undergo in admiralty cases. R.1 at 1–2.

The trip through federal court has taken much longer than their voyage. It has prompted nearly a half-dozen district court opinions, a jury trial, and (to date) two opinions from our court. In 2015, the district court held that the incident fell within the court's admiralty jurisdiction, meaning that federal maritime law controlled the duty of care. In 2016, the court held that a boat hitting a wave did not count as a "collision" under the Coast Guard Navigation Rules. The district court certified the question for interlocutory appeal under 28 U.S.C. § 1292(b). But there was no "substantial ground for a difference of opinion" about the answer that would justify an interlocutory appeal, we determined, and thus we opted not to accept the appeal. In re Buccina , 657 Fed.Appx. 350, 351 (6th Cir. 2016).

On remand, a jury ruled for Grimsby, finding that she was not negligent. The Buccinas moved for a new trial under Civil Rule 59(a) or judgment notwithstanding the verdict under Civil Rule 50(b). The district court granted the motion for a new trial.

Grimsby appealed, and the Buccinas cross-appealed.

II.

Appellate jurisdiction typically extends only to final judgments. 28 U.S.C. § 1291. The district court's new-trial decision is the epitome of a non-final order. The case will not end until after the new trial. See Allied Chem. Corp. v. Daiflon, Inc. , 449 U.S. 33, 34, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980) (per curiam).

That leaves the possibility that an exception to the final judgment rule applies. The parties might have asked the district court to certify the appeal for immediate review. 28 U.S.C. § 1292(b). But they did not, perhaps due to their last experience with that option.

The parties instead claim that we may review the appeal and cross appeal under an admiralty exception to the final judgment rule provided by statute. It permits litigants to appeal "[i]nterlocutory decrees ... determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed." Id. § 1292(a)(3).

But is this an "admiralty case" under this law? Yes and no.

Yes, the complaint permissibly invokes the court's diversity and admiralty jurisdiction. Diversity jurisdiction exists because the Buccinas live in Florida, Grimsby lives in Michigan, and the Buccinas have plausibly alleged that their damages exceed $75,000. Id. § 1332(a)–(b). Admiralty jurisdiction exists as well. Article III extends federal jurisdiction to admiralty and maritime cases, U.S. Const. art. III, § 2, cl. 1, and Congress granted federal courts jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1).

An incident falls within our admiralty jurisdiction if it (1) occurs on a navigable waterway, (2) could potentially disrupt maritime commerce, and (3) bears a "substantial relationship to traditional maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co. , 513 U.S. 527, 533–34, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) (quotations omitted). This incident satisfies the test. The Maumee River is a navigable waterway. The incident risked disrupting maritime commerce by clogging up a commercial waterway and diverting Coast Guard personnel from other duties. And a tort stemming from the negligent operation of a boat on navigable waters "has a sufficient nexus to traditional maritime activity to sustain admiralty jurisdiction." Foremost Ins. Co. v. Richardson , 457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982).

The "no" side of the answer is more complicated, as our diversity and admiralty jurisdiction over the case have substantive and procedural implications for the case. As a matter of substance, the Constitution "prescribe[s] uniformity" in admiralty and maritime law. Am. Dredging Co. v. Miller , 510 U.S. 443, 451, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). We treat admiralty and maritime law as "a uniform body of substantive federal law, applicable not only in federal admiralty courts but also binding upon the state courts" and federal courts exercising their civil law powers. Richard H. Fallon, Jr. et al., Hart and Wechsler's the Federal Courts and the Federal System 690 (7th ed. 2015). Once a claim comes within our admiralty jurisdiction, substantive federal maritime law thus applies. See Kermarec v. Compagnie Generale Transatlantique , 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959) ; Jerome B. Grubart, Inc. , 513 U.S. at 545–46, 115 S.Ct. 1043.

While uniformity of substance is required in an admiralty case, "[u]niformity of process ... is assuredly not what the law of admiralty seeks to achieve." Am. Dredging Co. , 510 U.S. at 453, 114 S.Ct. 981. That leaves open two routes in a federal court case like this one.

Route A is to invoke federal admiralty procedures, which differ from ordinary civil procedures in several ways. The Supplemental Rules for Admiralty and Maritime Claims, for example, preserve the traditional maritime remedy of attachment and garnishment and create special procedures for actions brought against vessels or property. Fed. R. Civ. P. Supp. AMC Rules B, C.

(As a side note, the Admiralty Rules used to be separate from the Civil Rules. In 1966, the rules makers merged the Admiralty Rules with the Civil Rules, not unlike the earlier merger of law and equity. Comm. on the Rules of Practice & Procedure, Report to the Judicial Conference of the United States at 4–5 (Sept. 1966); Fed. R. Civ. P. 9, 1966 cmt. Today, unless otherwise noted, the Civil Rules apply to admiralty actions, but there are several provisions in the Civil Rules that spell out special admiralty procedures. See, e.g. , Fed. R. Civ. P. 14(c) (third-party impleader), 38(e) (no jury trial by right), 82 (venue); Fed. R. Civ. P. Supp. AMC Rules B (special attachment and garnishment rules), C (admiralty claims in rem), D (warrant of arrest of vessel, cargo, or other property in possessory, petitory, and partition actions), E (procedures for in rem and quasi in rem proceedings), F (liability limitation rules for owners of vessels and freight), G (forfeiture actions in rem).)

Route B is to invoke the traditional federal civil procedures for the case. Section 1333(1)"sav[es] to suitors in all cases all other remedies to which they are otherwise entitled." That gives plaintiffs the option of bringing an action sounding in admiralty under the general rules of civil procedure, including with the guarantee of a jury trial, as long as they can show that the matter arises under the court's diversity jurisdiction as well. Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd. , 369 U.S. 355, 359–60, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962) ; 14A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3672 (4th ed. 2018).

Plaintiffs like the Buccinas thus have two options. They may use admiralty procedures to govern a substantive admiralty claim. Or they may pursue a hybrid action in which customary civil procedures govern their substantive admiralty law action. See Atl. & Gulf Stevedores, Inc. , 369 U.S. at 359–64, 82 S.Ct. 780 (permitting a plaintiff to bring an unseaworthiness claim before a jury after asserting diversity jurisdiction); Kermarec , 358 U.S. at 628–29, 79 S.Ct. 406 (same); Carey v. Bahama Cruise Lines , 864 F.2d 201, 206–08 (1st Cir. 1988).

How do we know which route the plaintiffs have taken? Before the unification of admiralty and law in 1966, it was easy. The plaintiff would...