Foulk v. Donjon Marine Co., Inc.

Citation1998 WL 231084,144 F.3d 252
Decision Date11 May 1998
Docket NumberNos. 97-5235,97-5269,s. 97-5235
PartiesLayne B. FOULK; Marjorie E. Foulk, h/w v. DONJON MARINE COMPANY, INC., Defendant/Third-Party Plaintiff v. BREAKWATERS INTERNATIONAL, INC., Third-Party Defendant Donjon Marine Company, Inc., Appellant in 97-5235. Layne B. Foulk; Marjorie E. Foulk, Appellants in 97-5269.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Raymond R. Wiss (Argued), Thomas K. Bouregy, Jr., Wiss & Cooke, Hackensack, NJ, for Donjon Marine Company, Inc.

Edward R. Murphy, Elizabeth A. Dalberth, Murphy & O'Connor, Haddonfield, NJ, Gary S. Lee (Argued), Thomas R. Beer, Barger & Wolen, New York City, for Breakwaters International, Inc.

Before: GREENBERG, ROTH and SEITZ, Circuit Judges.

OPINION OF THE COURT

ROTH, Circuit Judge:

This interlocutory appeal involves two questions: (1) whether we have jurisdiction of it, and (2) whether an individual is precluded from being a "seaman" for purposes of the Jones Act, 46 U.S.C.App. § 688, if his relationship with a barge/diving station in question is only 10 days in duration. On the first issue, we will deny appellee/third-party defendant, Breakwaters International, Inc.'s, motion to dismiss the appeal. We find that the pleadings and actions of the parties were sufficient to invoke admiralty jurisdiction for purposes of Fed.R.Civ.P. 9(h). We, therefore, have jurisdiction of this appeal of a non-final order under 28 U.S.C. § 1292(a)(3). On the second issue, the district court held that Layne Foulk, a freelance commercial diver, had insufficient durational connections to the barge to be considered a "seaman" covered by the Jones Act. Foulk v. Donjon Marine Co., Inc., 961 F.Supp. 692, 698 (D.N.J.1997). We do not agree and will reverse.

I. Facts

In April 1993, the Borough of Avalon, New Jersey, contracted with Breakwaters to erect an artificial reef off Avalon's coast. Breakwaters contracted with Donjon to provide material, barges, tugs, and a floating crane barge. Breakwaters hired freelance divers, including Foulk, to perform some of the work. Construction began on July 10, 1993, under Breakwaters' direction. Donjon's crane barge, the Farrell 256, anchored 150 feet offshore, was used both to install the reef and as a dive station for the dive crew, consisting of Foulk and three other commercial divers who were to assist in the placement of the reef. As dive station, the barge held air compressors, a communications box, and other diving equipment. The dive crew were to sleep ashore and to report to the barge by motor launch each morning. Foulk was hired to work for 10 days, the duration of the project. On his first day of work, Foulk was injured when, while in the water, he was caught between a jetty and the clamshell bucket operated by the barge crane. He suffered various fractures, a collapsed lung and an injured right shoulder.

On January 6, 1995, while on disability, Foulk and his wife, Marjorie, filed suit against Donjon and Breakwaters, sounding in negligence and general maritime law. The Foulks alleged both diversity and admiralty jurisdiction. On February 14, 1995, before any answer was filed, the Foulks amended their complaint to name only Donjon as defendant on claims of negligence and of the unseaworthiness of Donjon's vessel. Jurisdiction was once again grounded in both diversity and admiralty. On March 10, 1995, Donjon filed both an answer and a third-party claim against Breakwaters for indemnity and contribution. On June 1, 1995, the Magistrate Judge granted Donjon's oral motion to amend its third-party complaint to make a claim against Breakwaters in favor of the Foulks, pursuant to Fed.R.Civ.P. 14(c). Breakwaters did not object to this amendment. The parties subsequently submitted a joint pre-trial order which stated inter alia, that "jurisdiction of the Court arises under the Admiralty Law as modified by the Jones Act, 46 U.S.C.App. § 688." Breakwaters sought partial summary judgment on its contention that Foulk was not a "seaman" under the Jones Act, 46 U.S.C.App. § 688. Donjon and Foulk cross-moved for partial summary judgment that Foulk was a Jones Act "seaman." On April 9, 1997, the District Court granted Breakwaters' motion and denied Donjon and Foulk's motion to the contrary. Foulk v. Donjon Marine Co., Inc., 961 F.Supp. 692, 698 (D.N.J.1997). Donjon and the Foulks filed notices of interlocutory appeal on April 21, 1997, and April 30, 1997, respectively. 28 U.S.C. § 1292(a)(3). On May 9, 1997, Breakwaters filed a motion to dismiss the appeal. For the reasons set forth below, we will deny Breakwaters motion to dismiss, and, considering the merits of the appeal, we will reverse the district court grant of partial summary judgment in favor of Breakwaters.

II. Jurisdiction

Before we reach the merits of this appeal, we must first resolve Breakwaters' motion to dismiss it. Donjon asserts that the jurisdictional basis for its interlocutory appeal is 28 U.S.C. § 1292(a)(3) 1 which provides in part:

[T]he court of appeals shall have jurisdiction of appeals from:

(3) Interlocutory decrees of such district courts or the judges thereof determining the rights and liabilities of the parties to admiralty cases in which appeals from final decrees are allowed.

To use § 1292(a)(3) as a basis for appellate jurisdiction of an interlocutory order, such as a grant of partial summary judgment, a plaintiff must be asserting an admiralty or maritime claim within the meaning of Fed.R.Civ.P. 9(h). This Rule states as follows:

A pleading or count setting forth a claim for relief within the admiralty and maritime jurisdiction that is also within the jurisdiction of the district court on some other ground may contain a statement identifying the claim as an admiralty or maritime claim for the purposes of Rules 14(c), 38(e), 82 and the Supplemental Rules for Certain Admiralty and Maritime Claims. If the claim is cognizable only in admiralty, it is an admiralty or maritime claim for those purposes whether so identified or not.... The reference in [28 U.S.C. § 1292(a)(3) ] to admiralty cases shall be construed to mean admiralty and maritime cases within the meaning of this subdivision [Fed.R.Civ.P. 9](h).

(emphasis added).

In both its initial complaint against Breakwaters and Donjon and in its First Amended Complaint against only Donjon, Foulk asserted two bases for subject-matter jurisdiction: admiralty and diversity. 2 When a federal plaintiff makes a claim in admiralty or joins an admiralty claim with another claim, certain special procedures and rules apply: Rules 14(c), 38(e), 82, the Supplemental Rules for Certain Admiralty and Maritime Claims, and 28 U.S.C. § 1292(a)(3). Rule 9(h) helps clarify the applicability of these admiralty and maritime rules and procedures in a case where more than one basis for subject matter jurisdiction has been asserted. To assist the court and the parties in recognizing the presence of an admiralty claim in a multiclaim suit, Rule 9(h) provides that the complaint "may contain a statement identifying the claim as an admiralty or maritime claim...." See Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir.1996).

Breakwaters grounds its motion to dismiss the appeal on the fact that, in asserting admiralty jurisdiction in both the original and the amended complaints, the Foulks do not specifically cite to Rule 9(h) and, as a consequence, do not "identify the pleading as an admiralty claim." For this reason, Breakwaters contends that the Foulks did not invoke admiralty jurisdiction and cannot employ the procedures associated with it, including the use of 28 U.S.C. § 1292(a)(3), the jurisdictional basis for this appeal. As a result, Breakwaters asserts that section 1292(a)(3) is inapplicable and that this appeal must be dismissed for lack of jurisdiction.

The issue that we must resolve is how specific a party must be in identifying an admiralty claim in a complaint when that party is pleading alternative theories of subject matter jurisdiction. Generally, under the liberal notice pleading practices in federal civil cases, a claimant "does not have to set out in detail the facts upon which the claim for relief is based, but must merely provide a statement sufficient to put the opposing party on notice of the claim." 2 Moore's Federal Practice, § 8.04 (Matthew Bender 3d ed.1988); see Hishon v. King & Spalding, 467 U.S. 69, 78-79, 104 S.Ct. 2229, 2235-36, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 102-03, 2 L.Ed.2d 80 (1957) (pleading must contain only a short and plain statement sufficient to give notice); Fed.R.Civ.P. 8. Similarly, the claimant must include "a short and plain statement of the grounds upon which the court's jurisdiction depends." Fed.R.Civ.P. 8(a)(1). Plaintiff's complaints, see n. 2, both clearly stated two jurisdictional bases: diversity and admiralty.

There are, however, embellishments to the Rule 8 notice pleading provisions. One of these is Fed.R.Civ.P. 9(h) which explains that a party in Foulk's position, who has set forth two jurisdictional bases, "may" include a "statement identifying the claim as an admiralty or maritime claim." (emphasis added). By affirmatively including such a statement, a party clearly describes a claim as being one in admiralty. See Advisory Committee Notes, Fed.R.Civ.P. 9, 1966 Amendment ("the preferable solution [for designating a claim as an admiralty claim] is to allow the pleader who now has power to determine procedural consequences by filing a suit in admiralty to exercise that power under unification ... by a simple statement in his pleading to the effect that the claim is an admiralty or maritime claim."); cf. Fedorczyk, 82 F.3d at 73 (stating that "[t]o invoke admiralty jurisdiction ... a plaintiff must affirmatively insert a statement in the pleadings identifying the claim as an ...

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