Lirette v. N.L. Sperry Sun, Inc., No. 86-3373

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore CLARK, Chief Judge, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES; CLARK
Citation820 F.2d 116
Parties, 56 USLW 2039 Norris LIRETTE, Plaintiff-Appellant, v. N.L. SPERRY SUN, INC. and Quarles Drilling Company, Defendants-Appellees.
Docket NumberNo. 86-3373
Decision Date29 June 1987

Page 116

820 F.2d 116
1987 A.M.C. 2546, 56 USLW 2039
Norris LIRETTE, Plaintiff-Appellant,
v.
N.L. SPERRY SUN, INC. and Quarles Drilling Company,
Defendants-Appellees.
No. 86-3373.
United States Court of Appeals,
Fifth Circuit.
June 29, 1987.

Page 117

Gayle A. Reynolds, Gretna, La., for plaintiff-appellant.

Timothy F. Burr, New Orleans, La., for Sperry.

Elizabeth H. Ryan, Wood Brown, III, New Orleans, La., for Quales Drilling.

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

Before CLARK, Chief Judge, GOLDBERG, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL and JONES, Circuit Judges.

CLARK, Chief Judge:

Plaintiff Norris Lirette sued his employer N.L. Sperry Sun, Inc. (Sperry Sun) and the owner of the vessel Quarles Drilling Company (Quarles) in the district court of Plaquemines Parish, Louisiana, alleging Jones Act negligence, unseaworthiness, and vessel negligence claims. The defendants removed the case to the United States district court and moved separately for summary judgment. That court granted the motions in part, dismissing the Jones Act and unseaworthiness claims against Sperry Sun, but reserved any LHWCA claims against Quarles.

On appeal, an administrative panel of this court raised sua sponte the issue whether the district court lacked subject matter jurisdiction of a Jones Act claim removed from state court. The calendar panel held that 28 U.S.C. Sec. 1445(a) barred removal of a Jones Act action filed in a state court because in 46 U.S.C. Sec. 688 the Jones Act incorporates the general provisions of the Federal Employer's Liability Act including Sec. 1445(a). Lirette v. N.L. Sperry Sun, Inc., 810 F.2d 533 (5th Cir.1987). The panel also concluded that Gamble v. Central of Georgia Railway, 486 F.2d 781 (5th Cir.1973), construed Sec. 1445(a) in strict jurisdictional terms which prevented waiver by participation in the federal forum. See Lirette, 810 F.2d at 536-39 (parts B and C).

The en banc court now determines that Sec. 1445(a)'s bar to removal may be waived by a litigant's failure to object to such removal in district court. In Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972), the Supreme Court held that when an action is improperly removed to a federal district court, the case is tried on the merits without objection, and the court enters a final judgment, "the issue in subsequent proceedings...

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54 practice notes
  • Linton v. Great Lakes Dredge & Dock Co., No. 90-4908
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 22, 1992
    ...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, ......
  • Williams v. Brooks, No. 90-2406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 1991
    ...Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 1346-48, 31 L.Ed.2d 612 (1972); Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117-18 (5th Cir.1987) (en banc). 28 U.S.C. § 1442(a) provides in pertinent "A civil action ... commenced in a State court against any of the ......
  • Nolan v. Boeing Co., No. 89-3793
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 27, 1990
    ..."modal and formal and may be waived." Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983); see also Lirette v. N.L. Sperry Sun Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc) (statutory bar to removal of Jones Act claim may be waived by a litigant's failure to object to such removal i......
  • Rodas v. Seidlin, No. 09–3760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 31, 2011
    ...in New Orleans, 841 F.2d 126, 129 (5th Cir.1988) (discussing and applying the court's earlier holding in Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987) (en banc)); Sorosky, 826 F.2d at 800–01. We conclude that because the district court would have had jurisdiction over a hypo......
  • Request a trial to view additional results
54 cases
  • Linton v. Great Lakes Dredge & Dock Co., No. 90-4908
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • June 22, 1992
    ...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, ......
  • Williams v. Brooks, No. 90-2406
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 31, 1991
    ...Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 1346-48, 31 L.Ed.2d 612 (1972); Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117-18 (5th Cir.1987) (en banc). 28 U.S.C. § 1442(a) provides in pertinent "A civil action ... commenced in a State court against any of the ......
  • Nolan v. Boeing Co., No. 89-3793
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 27, 1990
    ..."modal and formal and may be waived." Leininger v. Leininger, 705 F.2d 727, 729 (5th Cir.1983); see also Lirette v. N.L. Sperry Sun Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc) (statutory bar to removal of Jones Act claim may be waived by a litigant's failure to object to such removal i......
  • Rodas v. Seidlin, No. 09–3760.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 31, 2011
    ...in New Orleans, 841 F.2d 126, 129 (5th Cir.1988) (discussing and applying the court's earlier holding in Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116 (5th Cir.1987) (en banc)); Sorosky, 826 F.2d at 800–01. We conclude that because the district court would have had jurisdiction over a hypo......
  • Request a trial to view additional results

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