Gutierrez v. F. Miller Constr., LLC
| Decision Date | 30 October 2012 |
| Docket Number | CIVIL ACTION H-11-2042,CIVIL ACTION H-11-1996 |
| Parties | MARIA GUTIERREZ, Individually and as Representative of the Estate of AGUSTIN GUTIERREZ, Deceased and as Next Friend of L.G. Plaintiff, v. F. MILLER CONSTRUCTION, LLC, ORION MARINE GROUP, INC., and JOHNSON BROS. LLC, Defendants. IN RE THE COMPLAINT OF ORION CONSTRUCTION, L.P., AND F. MILLER CONSTRUCTION, LLC, as OWNER(S) AND/OR OWNER(S) PRO HAC VICE OF THE BARGE STAR 303 (OFFICIAL NO. 1220316) AND ORION MARINE GROUP, INC. SEEKING EXONERATION FROM OR LIMITATION OF LIABILITY |
| Court | U.S. District Court — Southern District of Texas |
The above referenced wrongful death action (now H-11-1996) was removed from state court on diversity grounds and subsequently consolidated with the limitation of liability action (H-11-2042), both arising out of the death of Agustin Gutierrez while he was working on construction of a bridge between Grand Isle, Louisiana and mainland Louisiana across Caminada Pass. Pending before the Court is a motion to lift the limitation stay and remand the underlying negligence case back to state court (instrument #52), filed by Plaintiff/Claimant Maria Gutierrez ("Plaintiff"),Individually and as Representative of the Estate of Agustin Gutierrez, on the grounds that diversity jurisdiction has been destroyed by the addition of Defendants Orion Construction and Pileco, Inc.1 in the filing of Plaintiff's First Amended Complaint (#28) on October 18, 2011.
Conceding that Orion Construction is entitled to seek limitation of damages in this Court, Plaintiff asserts her right under the "saving to suitors" clause to have her negligence claims adjudicated in her chosen forum, the 11th Judicial District Court of Harris County, Texas. Insisting that she is the only claimant to the limitation fund, she argues that under the "single claimant" rule2 and Supplemental Admiralty Rule F of the Federal Rules ofCivil Procedure, she is entitled to relief from the stay order arising from the limitation of liability proceeding because she has filed an appropriate stipulation (#53). Texaco, Inc. v. Williams, 47 F.3d 765, 768 (5th Cir. 1995)("The case law is clear that if all claimants stipulate that the federal court has exclusive jurisdiction over the limitations issues and the claimants will not seek to enforce a greater damage award than the limitation fund, the claimants may proceed outside of the limitation action."),cert. denied, 516 U.S. 907 (1995); Complaint of Port Arthur Towing Co. on Behalf of M/V Miss Carolyn, 42 F.3d 312, 316 (1995); Odeco Oil & Gas Co. v. Bonnette, 4 F.3d 401, 404 (5th Cir. 1993)( that the federal limitation court "must accede" to claimants' choice of forum if they file an appropriate stipulation). Plaintiff maintains that her stipulation is undisputed and therefore the stay must be lifted. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454 (2001)(where a district court "satisfies itself that a vessel owner's right to seek limitation will be protected, the decision to dissolve the injunction is well within the court's discretion.").
Moreover, argues Plaintiff, since the Court no longer has diversity jurisdiction under 28 U.S.C. § 1332(a), remand is mandatory under 28 U.S.C. § 1447(c).3
Plaintiff observes that admiralty and maritime claims do not arise under federal law (the Constitution, treaties or laws of the United States) for purposes of federal question removal jurisdiction. Tennessee Gas Pipeline v. Houston Cas. Inc., 87 F.3d 150, 153 (5th Cir. 1996)(citing Romero v. Int'l Term. Oper. Co., 358U.S. 354 (1959)).4 Therefore admiralty claims are removable only where original jurisdiction is based upon something other than admiralty, e.g., diversity of citizenship, as here, and removal can only be perfected by non-forum defendants. Id.; In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991); Morris v. TE Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003); Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 348 n.4 (5th Cir. 1999).5
Plaintiff chose to file her claims in state court, and therefore, she insists, this Court's admiralty jurisdiction, by itself, could not provide this Court with subject matter jurisdiction over any part of this litigation. The only basis for removal was diversity jurisdiction,6 which has since been destroyed. Only Orion Marine Group, Inc.'s ("Orion Marine's") claim under the Limitation Act () is properly before this Court. Thus this Courtshould lift the limitation stay and remand her underlying negligence case back to state court for trial on the merits.
F. Miller Construction, LLC, Orion Marine Group, Inc., and Orion
Defendants/Complainants F. Miller Construction, LLC ("F. Miller") and Orion Marine and Orion Construction (collectively, "Orion") argue that remand is not available because none of the claims presently before the Court was ever filed in the state court action brought by Plaintiff.7 Instead that state court suit contained only state law claims of gross negligence against F. Miller and Orion Marine, specifically claims for damages under Article 16, Section 16 of the Texas Constitution and Section 408.001 of the Texas Labor Code and Section 41.001 of the Texas Civil Practices and Remedies Code; she asserted ordinary negligence against Johnson Brothers, LLC ("Johnson"). The Original Petition (#1-3) stated only that the Decedent was working as part of a construction crew on Caminada Bay Bridge Project near Grand Isle, Louisiana, as part of a joint venture involving Orion, F. Miller, and Johnson, when a support device hanging from a crane fell and fatally struck Agustin Gutierrez on the head.
Defendants maintain that Plaintiff joined invalid, wrongful, and inappropriate state-law claims against F. Miller and Orion Maritime in order to invoke a remedy similar to that allowed in Garcia v. Total Oilfield Services, Inc., 703 S.W. 2d 411 (Tex. App.--Amarillo 1986)(Texas wrongful death statute allowed survivors to bring action in Texas under Texas law when deceased's death occurred in foreign state [in that case, Oklahoma] regardless of the law of that foreign state; holding Texas defendants responsible for punitive damages under Texas law even though the claim should have been subject to Oklahoma employer immunity). Joined by Orion, Johnson then properly removed the suit, pursuant to diversity jurisdiction, on the grounds that the asserted state-law claims were barred by the Longshore and Harbor Workers' Compensation Act, which eliminated any state-law remedy for construction workers killed while building bridges on navigable waters. Anaya v. Traylor Bros., Inc, 478 F.3d 251 (5th Cir. 2007)( that claims for benefits made by the estate of a construction worker who, while constructing a bridge, died from injuries sustained on a barge in navigable waters, where he regularly worked, are covered by the Longshore and Harbor Workers' Compensation Act, which prohibits gross negligence claims for exemplary damages8 ), cert. denied, 552U.S. 814 (2007); 33 U.S.C. § 904, et seq. Furthermore there is currently no dispute that removal on diversity grounds was proper at the time the Notice of Removal was filed.9 Because under 28 U.S.C. § 1447(c), "a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within thirty days after the filing of the notice of removal under § 1446(a), Plaintiff had until June 24, 2011 to file a motion toremand on the grounds that Orion was not improperly joined, but she failed to do so.
Subsequently on September 23, 2011, after discovery, Plaintiff stipulated that there was no valid basis for the claims against Orion and F. Miller under state law, consented to dismissal of those claims (#19, 49), and with leave of Court on October 18, 2011 filed an amended complaint (#28) asserting her negligence claims under federal maritime law and 28 U.S.C. 1333(1). That election of a federal forum and maritime law was made more than six months before she filed her motion to remand and, as discussed below, after her original claim in limitation was filed in federal court in the amended complaint.
Under the doctrine of judicial estoppel, where a party takes a certain position in a legal proceeding and succeeds in maintaining that position, she may not assume a contrary position because her interests have changed, especially if doing so would prejudice the other party who acquiesced in the position she formerly took. New Hampshire v. Maine, 532 U.S. 742, 749 (2001), citing Davis v. Wakelee, 156 U.S. 680. 689 (1895); Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1543 (5th Cir. 1991)(where a plaintiff designated its claim was in admiralty under 9(h) and plaintiff's motion to remand was untimely, i.e., not filed within thirty days as required by section 1447(c), plaintiff waived the opportunity to challenge removal even when it was improper becausedefendant lacked authority to remove a maritime case, a procedural defect). Here, insist Defendants, Plaintiff's motion to remand is untimely, and only after the case was removed to federal court did she amend and assert the claims against Orion, Pilco and Johnson under maritime law, providing the Court with original jurisdiction over these claims. See also In re Digicon Marine, Inc. , 966 F.2d 158, 159 (5th Cir. 1992), in which the plaintiffs brought suit under the Jones Act and general maritime common law in a Texas state court. Defendant removed it, and plaintiffs filed an untimely motion to remand on the grounds that their claims arose under maritime law, which does not authorize removal jurisdiction. After the district court denied the motion to remand and a motion for reconsideration based on the untimeliness of the motion to remand, the Fifth Circuit held that "because the plaintiffs' motion...
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