Linton v. Great Lakes Dredge & Dock Co.

• Decision Date: 22 June 1992
• Docket Number: No. 90-4908,90-4908
• Parties: Donald Gregory LINTON, Plaintiff-Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY and Steamship Mutual Underwriting Association (Bermuda) Ltd., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1480

964 F.2d 1480

1992 A.M.C. 2789

Donald Gregory LINTON, Plaintiff-Appellant, v. GREAT LAKES DREDGE & DOCK COMPANY and Steamship Mutual

Underwriting Association (Bermuda) Ltd.,

Defendants-Appellees.

No. 90-4908.

United States Court of Appeals, Fifth Circuit.

June 22, 1992.

Charles B. Plattsmier, Hunter & Plattsmier, Morgan City, La., for plaintiff-appellant.

Edward J. Koehl, Jr., Jefferson R. Tillery, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendants-appellees.

Thomas H. Kiggans, F. Scott Kaiser, Phelps Dunbar, Baton Rouge, La., Luther T. Munford, Jackson, Miss., James B. Kemp, Jr., Brian D. Wallace, Phelps Dunbar, New Orleans, La., for amicus curiae Maritime Overseas.

Appeals from the United States District Court for the Western District of Louisiana.

Before POLITZ, Chief Judge, REAVLEY, and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case is an interlocutory appeal of the district court's denial of Linton's motion to remand the case to state court. The district court based its denial of remand on grounds that the federal court had exclusive admiralty jurisdiction over Linton's Jones Act and general maritime claims because he had elected, pursuant to a Louisiana statute, to try those claims to a judge instead of a jury. For the reasons discussed below, the order of the district court is reversed and the district court is directed to remand the case to the state court.

I

On January 9, 1989, Donald Gregory Linton (Linton) and his wife, Telitha Linton, filed this suit in Louisiana state court against his employer, Great Lakes Dredge and Dock Company, seeking damages for personal injuries suffered while working as a seaman on the CONICAL, a dredge owned by Great Lakes. The suit was grounded on general maritime law and the Jones Act, 46 U.S.C.App. § 688. Linton's Fourth Supplemental and Amending Petition filed in state court designated his suit as "an admiralty or general maritime law claim" pursuant to LA.CODE CIV.PROC.ANN. art. 1732(6). ¹

The essence of this case is the effect of such a designation. According to Linton, the designation is purely procedural: it simply allows the plaintiff the option of having his case tried to a Louisiana judge instead of a jury. Great Lakes cites language in the legislative history that indicates its purpose is to allow Louisiana law to track federal law. ² It argues that an article 1732(6) designation is the same as a Rule 9(h) ³ designation under the Federal Rules of Civil Procedure: it withdraws Linton's claims "at law" under the "saving to suitors" clause and invokes the exclusive admiralty jurisdiction of the federal courts. On this basis, and pursuant to 28 U.S.C. § 1441, ⁴ Great Lakes removed the suit to federal district court. Linton promptly moved to remand pursuant to 28 U.S.C. 1447(c) contending that the case had been improvidently removed and that the district court lacked "the jurisdiction alleged by defendant." Following denial of Linton's motions to remand and for reconsideration, the district court again denied remand, holding that by virtue of Linton's designation of his claim as an "admiralty or general maritime claim," the federal court had exclusive jurisdiction in admiralty. Linton v. Great Lakes Dredge & Dock Co., No. 90-1780, Amended Ruling at 3, 1990 WL 300831 (W.D.La.1990). The court also certified the order in accordance with the provisions of 28 U.S.C. § 1292(b). Linton timely petitioned this court for permission to appeal, which was granted, and this appeal followed.

II

Our discretionary grant of an appeal in this case limits us to the sole question of the propriety of the district court's refusal to remand this case to the Louisiana court. See 16 CHARLES A. WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3929 at 143 (1977) (scope of issues open to court of appeals is closely limited to the order appealed from) (hereinafter Wright & Miller ). This refusal is subject to appellate review. See, e.g., In re Dutile, 935 F.2d 61, 62 (5th Cir.1991) (court granted application for writ of mandamus after district court refused to certify appeal of order denying motion to remand). Although it might appear that a plain reading of 28 U.S.C. § 1445(a) (Jones Act cases filed in state court are not removable) decides this case, we have nevertheless held that this statutory bar to removal may be waived by the plaintiff. Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987). If, as Great Lakes argues, Linton's article 1732(6) election amounted to election of an exclusive federal admiralty remedy, then that election was also a waiver of the bar to removal and we may not say that this case simply was not removable in the first instance. We, therefore, turn to examine the merits of the district court's refusal to remand this case. In examining the nature of these claims, we point out that Linton presents both general maritime and Jones Act claims. Each stems from different historical roots and, thus, we must consider them separately because these different origins bear directly upon the jurisdictional significance of a maritime plaintiff's election of a non-jury trial.

III

We turn first to consider whether the general maritime claims asserted by Linton fall within the exclusive admiralty jurisdiction of the federal court if tried to the bench rather than to a jury. We begin by observing that one of the grants of judicial power in the Constitution is of "all Cases of admiralty and maritime Jurisdiction." U.S. CONST. art. III, § 2. The 1st Congress implemented this grant in the following words:

[T]he district courts ... shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction ... saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.

Section 9 of the Judiciary Act of 1789 (cited in GRANT GILMORE & CHARLES L. BLACK, JR., THE LAW OF ADMIRALTY § 1-9 (2d ed. 1975) (hereinafter Gilmore & Black ); 14 Wright & Miller § 3671 at 408. ⁵ Putting aside the complex question of just what fell within the "admiralty and maritime jurisdiction," it became clear as the case law evolved that

a suitor who holds an in personam claim, which might be enforced by suit in personam in admiralty, may also bring suit, at his election, in the 'common law' court--that is, by ordinary civil action in state court, or in federal court without reference to 'admiralty,' given diversity of citizenship and the requisite jurisdictional amount.

Gilmore & Black § 1-13; see also THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW § 3-13 (1987) (hereinafter Schoenbaum ) ("Since the common law is competent in all cases where the suit is in personam, a plaintiff in such causes may elect either to proceed in admiralty or to bring an ordinary civil action, either at law in state court or in a federal district court under federal diversity jurisdiction (or some other basis of federal jurisdiction)."). ⁶

Shortly after the War Between the States, the Supreme Court held that the in rem remedy was within the exclusive jurisdiction of the federal courts and that the states were not permitted such proceedings. ⁷ This holding was based on the premise that the in rem suit was not a "common law remedy." The Moses Taylor, 71 U.S. (4 Wall.) 411, 431, 18 L.Ed. 397 (1867); The Hine v. Trevor, 71 U.S. (4 Wall.) 555, 571, 18 L.Ed. 451 (1867); Gilmore & Black § 1-13. There was, however, no perceived bar to in personam suits in state courts. Schoenbaum states that the policy basis for concurrent jurisdiction is that "the common law courts had the power to hear such cases prior to the adoption of the Constitution." Schoenbaum § 3-13 n. 2. He points out that "[c]oncurrent jurisdiction is statutory, not constitutional, based upon the saving to suitors clause." ⁸ Id. Although the common law courts were allowed by Congress (by means of the "saving to suitors" clause) to continue to provide common law remedies, the substantive law applied had to be the general maritime law, as modified by Congressional action. Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384, 38 S.Ct. 501, 504, 62 L.Ed. 1171 (1918); see, e.g., Pizani v. M/V Cotton Blossom, 669 F.2d 1084, 1087-89, 1088 n. 2 (5th Cir.1982) (in personam judgment of liability affirmed; damage award based on state and common law reversed and remanded for application of maritime rule). Remedies created by state statute could not be enforced by actions brought in state court under the "saving to suitors" clause if the

legislation ... contravenes the essential purpose expressed by an act of Congress or works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.

Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 529, 61 L.Ed. 1086 (1917). However, if state legislation passes this test, or a common law right is widely recognized, it may be enforced, even by invoking the admiralty jurisdiction of the federal courts. 14 Wright & Miller § 3672. ⁹

A

In its Amended Ruling, the district court refused to remand this case:

The defendants argue that once [the article 1732(6) ] designation was made, the plaintiffs effectively withdrew their request for a remedy under the saving to suitors clause and asserted an action within the exclusive federal admiralty jurisdiction, making the case removable pursuant to 28 U.S.C. § 1441. In view of the historical federal interest in creating a uniform body of maritime law, this court agrees. By making the Louisiana statutory counterpart of what is essentially a Rule 9(h) declaration ... the plaintiff essentially seeks a remedy in admiralty [which] the common law is not competent to give but which lies within the maritime jurisdiction reserved exclusively to the federal sovereign.

Linton v. Great Lakes Dredge & Dock Co., Amended...