Johnson v. Helmerich & Payne, Inc., 88-3823

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 892 F.2d 422
• Docket Number: No. 88-3823,88-3823
• Parties: James JOHNSON and Anne Johnson, Plaintiffs-Appellants, Dresser Industries, Intervenor-Appellant, v. HELMERICH & PAYNE, INC., et al., Defendants-Appellees.
• Decision Date: 24 January 1990

Page 422

892 F.2d 422 James JOHNSON and Anne Johnson, Plaintiffs-Appellants,
Dresser Industries, Intervenor-Appellant,
v.
HELMERICH & PAYNE, INC., et al., Defendants-Appellees. No. 88-3823. United States Court of Appeals,
Fifth Circuit. Jan. 24, 1990.

H. Edward Sherman, New Orleans, La., for plaintiffs-appellants.

Page 423

John E. Galloway, Galloway, Johnson, Tompkins & Burr, New Orleans, La., for Dresser Industries.

Edwin C. Laizer, Mark J. Spansel, Adams & Reese, New Orleans, La., for Helmerich & Payne.

Michael M. Christovich, Christovich & Kearney, New Orleans, La., for Atlantic/Richfield Co.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before THORNBERRY, GARWOOD, and DUHE, Circuit Judges.

DUHE, Circuit Judge.

I. Facts and Proceedings Below

James and Anne Johnson sued Helmerich & Payne International Drilling Co. (H & P) and Atlantic Richfield Company (Arco). The plaintiffs' suit was based on theories of strict liability and negligence. Johnson was injured on an offshore drilling rig when he slipped on wet casing (pipe). H & P owned the rig and one of their employees washed the rig and made the casing wet. Arco owned the casing and the fixed platform on which the rig was situated. Johnson's employer--Dresser Industries, Inc.--intervened to recover benefits it had paid Johnson.

Suit was filed in state court. H & P removed it to federal court on July 22, 1987 without joining Arco in the removal petition. The parties then attended a pretrial status conference and commenced discovery. The plaintiffs propounded interrogatories and requested the production of documents. Johnson filed a motion to remand on November 10, 1987 which the district court denied as untimely. A trial was held and the district court bifurcated the issue of damages from that of liability. The district court also refused to submit strict liability instructions to the jury. The jury rendered a verdict in favor of the defendants and the plaintiffs now appeal.

The Johnsons argue that the district court erred (1) by refusing to remand the case, (2) by bifurcating the trial, (3) by refusing to give the jury strict liability charges, and (4) by conducting an unfair trial. We conclude that the appellants waived their right to have the case remanded; that they waived the second and third points of error by failing to properly raise them during the trial; and that the trial was not unfair. Dresser asks that if we reverse the district court the dismissal of their intervention should also be reversed. Since we find that the district court correctly dismissed the Johnson's claims, it was also correct in dismissing Dresser's intervention. ¹

II. Remand

28 U.S.C. § 1446(b) requires that all defendants join in the removal petition. See Tri-Cities Newspapers, Inc. v. Tri-Cities P & P & A Local 349, 427 F.2d 325 (5th Cir.1970) and Harris v. Edward Hyman Co., 664 F.2d 943, 944 n. 3 (5th Cir.1981) (per curiam). The failure of all the defendants to join in the removal petition is not a jurisdictional defect. See Harris, 664 F.2d at 945 and Johnson v. Odeco Oil & Gas Co., 864 F.2d 40, 42 (5th Cir.1989). Johnson waived his right to complain by engaging in discovery. See Harris, 664 F.2d at 945-46. ²

Page 424

III. Bifurcation

The appellants also complain that the issues of liability and damages were improperly bifurcated. As a threshold issue, we must determine whether the appellants raised this issue below. The appellants contend that they made their objection known off the record. They also contend that the pre-trial order stipulated that liability would not be bifurcated from damages and that they were "ambushed" the morning of trial by the decision to do so. See Appellants' brief at 30. This contention is patently false. The record shows that the pre-trial order stipulated that liability and damages were to be bifurcated. R. vol. 7, p. 1944. We conclude that the appellants' counsel lacks credibility. We decline to accept his statement that he made an objection off the record.

Fed.R.Civ.P. 46 states "[f]ormal exceptions to rulings or orders of the court are unnecessary but ... it is sufficient that a party ... makes known to the court [the] objection ... and the grounds therefor." Failure to object precludes appellate review "unless the issue presents a pure question of law and to ignore it would result in a miscarriage of justice." Deshotels v. SHRM Catering Services, Inc., 842 F.2d 116, 120 (5th Cir.1988). See also Verdin v. C & B Boat Co., 860 F.2d 150, 155 (5th Cir.1988); C.F. Dahlberg & Co. v. Chevron U.S.A., Inc., 836 F.2d 915, 920 (5th Cir.1988); Volkswagen of America, Inc. v. Robertson, 713 F.2d 1151, 1161-62 (5th Cir.1983); Response of Carolina, Inc. v. Leasco Response, Inc., 537 F.2d 1307, 1324 (5th Cir.1976) and 9 C. Wright & A. Miller Federal Practice and Procedure, § 2472 (1971). Since the "[s]eparation of issues of liability from those relating to damages is an obvious use for Rule 42(b)" we decline to review the propriety of a decision to bifurcate these issues absent an objection on the record. ³ 9 Federal Practice and Procedure § 2390.

IV. Jury Instructions

The appellants complain that the district court erred by not charging the jury on the theory of strict liability. Fed.R.Civ.P. 51 states "No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict stating distinctly the matter objected to and the grounds of the objection." We have carved out an exception to Rule 51 when "the error is so fundamental as to result in a miscarriage of justice. Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 262 (5th Cir.1985). See also Nowell by and Through Nowell v. Universal Electric Co., 792 F.2d 1310, 1316-18 (5th...