Courville v. Texaco, Inc., Civ. A. No. 88-3084
| Decision Date | 19 June 1990 |
| Docket Number | 89-3865.,Civ. A. No. 88-3084 |
| Citation | 741 F. Supp. 108 |
| Parties | George Jaubert COURVILLE, et al. v. TEXACO, INC., Insurance Company of North America and Pacific Employer Insurance Company. |
| Court | U.S. District Court — Eastern District of Louisiana |
Louis J. St. Martin, Houma, La., for plaintiffs.
Allen J. Krouse, III, New Orleans, La., for defendants, Texaco, Inc. and Ins. Co. of North America.
Arden Jay Lea, New Orleans, La., for defendants, John Plaisance Sons, Inc. and Plaisance Dragline & Dredging Co., Inc.
Plaintiff, George J. Courville, moves the Court to remand case number 89-3865 to the 23rd Judicial District Court in Matagorda County, Texas. Case number 89-3865 is identical to case number 88-3084. The cases have been consolidated on the Court's docket. For the reasons given below, the Court DENIES the Motion to Remand.
(1) George J. Courville originally filed this civil action against Texaco, Inc. on July 19, 1988 (Civil Action No. 88-3084, Section "C" (2)) ("Courville I").
(2) On January 13, 1989, plaintiff filed a First Amended Seaman's Complaint adding his wife as a party plaintiff to the litigation.
(3) On May 22, 1989, after nearly a year of discovery under federal court auspices, including the retention of liability experts, medical experts and economists, a Pre-trial Conference was held in anticipation of a trial in U.S. District Court on June 5, 1989.
(4) Shortly thereafter, the trial was continued on plaintiffs' motion. Plaintiffs' original attorney, Joshua A. Tilton, was discharged, and Louis St. Martin was retained as plaintiffs' counsel.
(5) Plaintiffs then filed a Second Amended Complaint in Courville I naming Plaisance Drag Line and Dredging Company, Inc. ("Plaisance") as a co-defendant in the matter. Plaisance filed an Answer in these proceedings and noticed the depositions of Mr. and Mrs. Courville for November 3, 1989 at the offices of Louis St. Martin in Houma, Louisiana.
(6) On June 20, 1989, George and Corrine Courville then filed suit against Texaco, Inc. in the District Court of Matagorda County, Texas through yet a third attorney, Don Weitinger of the law firm of Ernest Cannon & Associates in Houston, Texas.
(7) On August 7, 1989, Texaco filed its Notice of Removal of the case at bar in the United States District Court, Southern District of Texas, Galveston Division. Texaco received a copy of the Petition less than 30 days prior to the filing of the notice. Contemporaneous with that filing, Texaco filed a Motion to Transfer the case to the Eastern District of Louisiana, since the identical causes of action were pending and set for trial in the Louisiana federal forum.
(8) Pursuant to Rule 6(D), Local Rules of the United States District Court for the Southern District of Texas, the Motion to Transfer was to be submitted to the Court for reconsideration on August 28, 1989. Rule 6(E) of the Local Rules requires a response by the date of submission. Significantly, a "failure to respond will be taken as a representation of no opposition." No response was filed, and the Court, on August 29, 1989, ordered the lawsuit transferred to the United States District Court for the Eastern District of Louisiana.
(9) Thereafter, the case was designated as Civil Action No. 89-3865, Section "L" (4) ("Courville II"). Courville II was then transferred to this Section where it was consolidated with Civil Action No. 88-3084 on September 14, 1989.
(10) Subsequent to the transfer to this District, plaintiffs filed a Motion to Remand in the Southern District of Texas. The petitioners filed their "first" Motion for Reconsideration in the Southern District of Texas of the Court's Order of August 29, 1989, transferring the case to the Eastern District of Louisiana. Texaco, Inc. timely filed an Opposition Memorandum, and the motion was denied on September 27, 1989 by U.S. District Judge Hugh Gibson.
(11) Plaintiffs filed a Second Motion for Reconsideration in the Eastern District of Louisiana, challenging Judge Gibson's Order of August 29, 1989, transferring Courville II to the U.S. District Court for the Eastern District of Louisiana. Texaco, Inc. again timely filed an Opposition Memorandum. The Court denied the Motion on October 18, 1989.
(12) On October 24, 1989, plaintiffs filed a Petition for a Writ of Mandamus to the Honorable Hugh Gibson, United States District Judge of the Southern District of Texas.
(13) On November 7, 1989, plaintiffs filed a Motion and Order to Dismiss Plaisance, without prejudice, from the federal litigation.
(14) On November 13, 1989, the United States Court of Appeals for the Fifth Circuit denied the Writ of Mandamus.
(15) Although the Fifth Circuit indicated that the Courvilles were entitled to have their Motion to Remand properly considered, plaintiffs failed to take any action with this Court in addressing the issue and proceeded to prosecute this case through a considerable amount of discovery and other pre-trial matters. For example, plaintiffs noticed the deposition of Claude Becnel and Charles Thomas on December 4, 1989 and issued 18 trial subpoenas in anticipation of the trial on May 7, 1990.
The Court finds that Civil Action No. 89-3865 has absolutely no relation to Matagorda County, Texas. The alleged action occurred on a dock in Louisiana territorial waters. Plaintiff is a resident of Golden Meadow, Louisiana. The defendant is a Delaware corporation with its principal place of business in New York. The witnesses who will be called to testify at trial, including fact witnesses, physicians, liability experts and economists, are all residents of the State of Louisiana.
The Court shall consider and weigh the values of judicial economy, convenience, fairness and comity in order to decide whether to retain jurisdiction over a case that was originally filed in federal district court in New Orleans. The balance of these factors clearly indicates that the plaintiff has chosen his forum and should be compelled to litigate those issues that are presently before the Court.
This Court was faced with a similar scenario in In re Ocean Ranger, 617 F.Supp. 435 (E.D. La.1985). In that case, defendant, ODECO, sought to enjoin the Canadian claimants from filing and/or prosecuting their suits in Texas state courts or any other court in the United States. In that case, the Court determined that Canadian law governed the controversy and granted the Motion to Dismiss the Canadian claimants on the ground of forum non conveniens. As in this case, the Canadian claimants filed an action in Matagorda County, Texas. This Court granted the motion of defendants and issued an injunction prohibiting plaintiffs from prosecuting their suits in Matagorda County.
Although the Court in the instant case has not issued a judgment nor have the defendants sought an injunction against plaintiffs, the factual scenario remains the same. Plaintiffs in Courville are attempting to circumvent the jurisdiction of this Court by filing an identical lawsuit in Matagorda County, Texas. It is clear that Courville II will prejudice the defendant by forcing it to defend the same cause of action in two different forums.
As a general rule, Jones Act cases are not removable. Preston v. Grant Advertising, Inc., 375 F.2d 439 (5th Cir.1967); 28 U.S.C. § 1445(a). However, in certain circumstances, a party may waive his right to have a case remanded even after a wrongful removal. Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702, 92 S.Ct. 1344, 1347, 31 L.Ed.2d 612 (1972).
It is also well settled that when a party undertakes affirmative action in the federal district court, they have acquiesced in the federal court's jurisdiction and waived objection to the removal. See In re Moore, 209 U.S. 490, 496, 28 S.Ct. 585, 586-87, 52 L.Ed. 904 (1908) (), overruled in part on other grounds, Ex parte Harding, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252 (1911). See also, Harris v. Edward Hyman & Co., 664 F.2d 943, 944-46 (5th Cir.1981).
It is likewise settled that the district court has broad discretion in deciding whether a plaintiff has waived a right to object to procedural irregularities in removal proceedings. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 118 (5th Cir.1987) (en banc); Johnson v. ODECO Oil & Gas Company, 864 F.2d 40 (5th Cir.1989); Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 6 (1st Cir.), cert. denied, 464 U.S. 936, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983).
The Fifth Circuit, sitting en banc, recently held that where a plaintiff in a Jones Act case fails to object promptly to removal and "participates in the conduct of that action," then it is within the district court's discretion to determine whether the plaintiff's conduct amounts to a waiver of the right to remand. Lirette, 820 F.2d at 118. Thus, under Lirette, the extent of a plaintiff's conduct in the federal proceedings determines whether he has "waived his statutory right to object to the exercise of subject matter jurisdiction by the United States District Court." Id. In the instant case, before filing an identical lawsuit in Texas state court, plaintiffs engaged in extensive discovery including the deposition testimony of several Texaco employees. The plaintiffs also filed a motion to sever the maintenance and cure cause of action from the main demand in the federal forum. Motion practice in the federal forum has been extensive as evidenced by the record. Two pre-trial conferences have been held in this case. Both parties have retained liability experts, medical experts and economists in anticipation of a trial by jury in the U.S. District Court for the Eastern...
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Carrillo v. CSX Transp., Inc.
...Defendants cite for the waiver principle, is factually and legally distinguishable from the instant action. See Courville v. Texaco, Inc., 741 F. Supp. 108 (E.D. La. 1990) (finding that the plaintiffs waived their right to seek remand when they originally filed and prosecuted an action in L......