Lackey v. Atlantic Richfield Co.
| Citation | 990 F.2d 202,1994 A.M.C. 1513 |
| Decision Date | 26 April 1993 |
| Docket Number | Nos. 92-2219,92-2511,s. 92-2219 |
| Parties | , 25 Fed.R.Serv.3d 1384 Sherry LACKEY, William Daughtry, Jr., and the Estate of William Daughtry, Sr., by and through the Administrator Thomas Henderson, Plaintiffs-Appellants, v. ATLANTIC RICHFIELD COMPANY, ARCO Oil & Gas Corporation, Atlantic Richfield Indonesia, Incorporated McDermott, Incorporated and P.T. Lekom Maras, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Appeals from the United States District Court for the Southern District of Texas.
ON PETITION FOR REHEARING
(Opinion Jan. 29, 5th Cir., 1993, 983 F.2d 620.)
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
We hereby deny petitioners' motion for rehearing. However, due to some concerns that have been expressed, we withdraw our prior opinion issued in this case, which was reported at Lackey v. Atlantic Richfield, 983 F.2d 620 (5th Cir.1993). We now substitute the following opinion in its place.
Plaintiffs-appellants brought suit in state court alleging violations of the Jones Act, maritime law, and Texas law. The defendants-appellees removed the case to federal court. Once in federal court, the plaintiffs moved for the case to be remanded back to state court on the ground that it was an unremovable Jones Act case. The district court denied the plaintiffs request and then granted summary judgment for the defendants on the merits. We find that the district court improperly retained jurisdiction over the case because Jones Act claims are non-removable. Therefore, we REVERSE and REMAND to the district court with directions that the entire case should in turn be remanded back to state court.
This case arises out of the death of William Daughtry, Sr. ("Daughtry"). Daughtry died of heart attack aboard a derrick barge in Indonesian waters. Allegedly, Daughtry had been working continuously for a period of thirty two hours prior to his death.
Daughtry was hired by Lekom Maras ("Lekom") to work as an inspector. At the time of his death, Daughtry was aboard the DB-26, which was owned by Hydro Marine Services. Hydro contracted the barge to another entity, who in turn chartered the barge to P.T. McDermott Indonesia. At the time of Daughtry's death the barge was operated by McDermott Indonesia.
The contractual agreement between Daughtry and Lekom was executed in Indonesia. It contemplated that Daughtry would work aboard the DB-26 on projects contracted by ARCO and ARII. 1 The substance of Daughtry's allegations are that he was forced to work excessive hours, which caused his heart attack. Further, Daughtry has named numerous corporate defendants in the action contending that he was a "borrowed servant."
In September of 1991, appellants brought suit against Lekom and four other corporations. The four corporations named in the original complaint were ARCO, ARII, AROG, 2 and McDermott Incorporated (the parent). 3 Subsequently, appellants named McDermott Indonesia in their amended complaint. 4 Two suits were originally commenced in state court alleging claims under the Jones Act, maritime law, and Texas law. The suits were brought by both of the decedent's children Sherry Lackey and William Daughtry, Jr. The two suits were then removed to federal court and consolidated.
On November 26, 1991, the district court notified the parties that a Rule 16 hearing would be held on December 9, 1991. The plaintiffs made a motion to remand the case back to state court at the December 9th hearing. The plaintiffs contended that the Jones Act precluded the original removal from state court. See 28 U.S.C. § 1445(a). Judge Hughes denied the plaintiffs' request for remand. 5 During the course of the hearing Judge Hughes took the plaintiffs to task for naming AROG, McDermott (the parent), and ARCO. The plaintiffs argued that they were going to pursue a "borrowed servant theory."
It was at the December 9th hearing that Judge Hughes told the plaintiffs that he would give them until December 20th to amend the complaint, which they failed to do. Further, he told them
The plaintiffs failed to circulate their amended complaint until January 13, 1992, the day of the second hearing. In their amended complaint, the plaintiffs dropped AROG and added McDermott Indonesia. At the hearing Judge Hughes reprimanded the plaintiffs because of their dilatory circulation of the amended complaint. The plaintiffs had said at the first hearing that they were going to contact the decedent's coworkers in order to ascertain information they needed to support their borrowed servant theory. The court then dismissed the claims against ARCO and McDermott because the plaintiffs had failed to adequately support their borrowed servant theory. The final order dismissing plaintiffs' motion to set aside the judgment was entered on March 2, 1992.
Subsequently, the plaintiffs filed this appeal. On March 5, 1992 they filed their original notice of appeal. The plaintiffs headed their appeal with the two styles from each of the cases that were consolidated. In the first style they named "Sherry Lackey et. al." as the plaintiff, and in the second they named "William Daughtery" [sic] as the plaintiff. In each style the plaintiffs named "Atlantic Richfield et. al." as the defendants. Further, in the body of the notice of appeal it stated that "plaintiffs" were appealing.
On April 8, 1992, The Fifth Circuit directed the parties to brief whether or not the plaintiffs had perfected an appeal. On April 14, 1992, the plaintiffs responded with a Fed.R.App.P. 4(a)(5) motion seeking to correct their original notice of appeal. The defendants objected, contending that the plaintiffs had failed to demonstrate excusable neglect. Eventually, on May 28, 1992, the district court granted the plaintiffs' 4(a)(5) motion.
On appeal, the plaintiffs-appellants contend that the case is a non-removable Jones Act case. Therefore, the removal from state court was improper, the district court's retention of the case was improper and, thus, all of the actions taken by the district court were a nullity. The defendants counter-argue that the notice of appeal did not properly invoke appellate jurisdiction because: (i) all of the parties were not named in the original notice of appeal; and (ii) the district court abused its discretion by allowing appellants to amend their notice of appeal without sufficiently showing excusable neglect. Although, there were other points of error raised on appeal, because each of these issues are dispositive we need not pursue those additional points. 6Whether the notice of appeal is sufficient to invoke appellate jurisdiction?
The defendants argue that the original notice of appeal did not sufficiently invoke appellate jurisdiction because: (i) it failed to list all of the appealing parties individually in the original notice of appeal; 7 and (ii) the district court abused its discretion when it allowed the appellants to file an amended notice of appeal. The plaintiffs counter, arguing that: (i) the original notice of appeal was sufficient to invoke appellate jurisdiction because both parties were named; and (ii) the district court properly granted the extension to file an amended notice of appeal. We find that the trial judge did not abuse his discretion in granting an extension to the appellants, allowing them to file an amended notice of appeal; therefore, we properly have jurisdiction over all of the parties herein.
The failure of the appellants to list the parties individually in their original notice of appeal was undeniably insufficient. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct. 2405, 2407, 101 L.Ed.2d 285 (1988). In Torres the plaintiffs named fifteen out of sixteen plaintiffs, but omitted the sixteenth party by clerical error. Id. at 317, 108 S.Ct. at 2409. The Supreme Court held that the failure to name the 16th party was insufficient to invoke appellate jurisdiction as to that party. Id.
The plaintiffs in Torres also attempted to argue that the designation of "et. al." remedied their omission. Id. at 317-18; 108 S.Ct. at 2409. The court flatly rejected this contention noting that the phrase "et. al." does not provide the requisite notice required by Fed.R.App.P.Rule 3(c). Id.; see also Delancey v. State Farm Mut. Auto. Ins., 918 F.2d 491, 493 (5th Cir.1990) (); Morales v. Pan Am. Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990) (same). Further, extensive authority exists for the proposition that naming "plaintiffs" in the body of a notice of appeal is insufficient. See, e.g., Samaad v. City of Dallas, 922 F.2d 216, 219 (5th Cir.1991).
The defendants seem to argue that failure to name the defendants individually also precludes appellate jurisdiction as to them. This argument is entirely incorrect because only appealing parties must be listed individually. See Fed.R.App.P. 3(c) ().
The defendants then contend that the Rule 4(a)(5) motion, which permitted the plaintiffs an extension to file an amended notice of appeal, was improvidently granted because the plaintiffs did not establish...
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