Lirette v. N.L. Sperry Sun, Inc.

• Decision Date: 23 February 1987
• Docket Number: No. 86-3373,86-3373
• Citation: 810 F.2d 533
• Parties: Norris LIRETTE, Plaintiff-Appellant, v. N.L. SPERRY SUN, INC. and Quarles Drilling Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 533

810 F.2d 533

55 USLW 2476

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.

Feb. 23, 1987.

Rehearing Granted March 2, 1987. ^*

Gayle A. Reynolds, Gretna, La., for Lirette.

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

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

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

Before CLARK, Chief Judge, GOLDBERG, and GEE, Circuit Judges.

CLARK, Chief Judge:

The principal issue in this case is whether a plaintiff's federal court conduct can waive the provisions of 28 U.S.C. Sec. 1445(a) barring removal of the Jones Act action he filed in state court. Gamble v. Central of Georgia Railway, 486 F.2d 781 (5th Cir.1973), which construes Sec. 1445(a) in strict jurisdictional terms, binds us to hold that it cannot. Since the district court lacked subject matter jurisdiction, we vacate its judgment and direct that the action be remanded to state court.

I.

Plaintiff Norris Lirette was employed by defendant N.L. Sperry Sun, Inc. (Sperry Sun) as a wireline operator with responsibilities for surveying oil wells and operating wireline and steering tools at locations on land and over water. Lirette injured his right knee while attempting to change a defective hose connection aboard the QUARLES 18, a movable drilling rig owned by defendant Quarles Drilling Company (Quarles). Lirette sued Sperry Sun and Quarles in state court, alleging Jones Act negligence and unseaworthiness claims and claims for vessel negligence. The defendants removed the case to the district court.

Both defendants separately moved for summary judgment. The district court originally denied the motions, pending the outcome of this court's en banc consideration of Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir.1986) (en banc). Following our decision in Barrett, the court concluded that Lirette was not a Jones Act seaman. The court dismissed the Jones Act and unseaworthiness claims against Sperry Sun, but reserved any claims against Quarles under the Longshore and Harbor Workers' Compensation Act.

Lirette initially petitioned this court for leave to appeal the district court's order under 28 U.S.C. Sec. 1292(b). Although we dismissed Lirette's petition for jurisdictional reasons, we construed it as a notice of appeal. ¹ In so doing, we noted that the defendants had removed Lirette's Jones Act claim from state court and that Jones Act claims filed originally in state court are not removable. Therefore, we sua sponte raised the possibility that the district court may have lacked subject matter jurisdiction and asked the parties to submit memoranda on the issue.

II.

28 U.S.C. Sec. 1445(a) provides: "a civil action in any State court against a railroad or its receivers or trustees, arising under [the Federal Employer's Liability Act (FELA), 45 U.S.C. Secs. 51-60,] may not be removed to any district court of the United States." The Jones Act incorporates the general provisions of the FELA, including Sec. 1445(a). ² Accordingly, a Jones Act claim filed in state court may not be removed to federal court. Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir.1952).

Because Lirette initially filed his Jones Act claim in state court, removal to federal court was expressly prohibited by Sec. 1445(a). Defendants removed on the bases of federal question, diversity, and admiralty jurisdiction. Lirette made no objection to removal, however, until this court raised the issue for the first time on appeal. Lirette does not dispute that the district court would have had subject matter jurisdiction over his cause of action against Sperry Sun and Quarles if he had originally brought his claims in that court. The issue is whether a Jones Act plaintiff who brings an action in state court, which is then removed by defendants to federal court, can waive his initial selection of the state forum by his unqualified participation in the federal action to final decision. In other words, does Sec. 1445(a) constitute a jurisdictional bar or merely create a personal privilege in favor of FELA and Jones Act plaintiffs to select a federal or state forum?

A.

Before we address this issue, we must first determine whether Lirette's state court pleadings sufficiently alleged Jones Act seaman status. Quarles asserts that Lirette's state court pleadings demonstrate that Lirette never was a Jones Act seaman. Quarles contends that if Lirette was not a seaman, he could not have brought a Jones Act claim in state court, and Sec. 1445(a) would not bar removal of his cause of action to the district court. Quarles submits that the court's finding that Lirette was not a seaman in the context of a summary judgment ruling is tantamount to a finding that Lirette was not a seaman for purposes of defeating a motion to remand to state court.

While Quarles correctly asserts that a district court may pierce a plaintiff's pleadings to determine whether removal is proper, see, e.g., Keating v. Shell Chemical Co., 610 F.2d 328, 331-32 (5th Cir.1980) (district court pierced pleadings to determine that joinder of nondiverse defendants was fraudulent), it does not follow that a finding made on summary judgment serves the same purpose. On summary judgment, a court may consider not only the pleadings, but also depositions, affidavits, and admissions. To determine whether a Jones Act claim was alleged in state court, on the other hand, we are limited to a review of the plaintiff's pleadings. Addison v. Gulf Coast Contracting Services, 744 F.2d 494, 498 (5th Cir.1984) (citing Preston v. Grant Advertising, Inc., 375 F.2d 439 (5th Cir.1967)). We decline to treat the district court's finding that Lirette was not a seaman as the equivalent of a finding of fraudulent joinder.

Lirette's state court pleadings alleged an employee-employer relationship with Sperry Sun. He alleged that he was assigned to a vessel. He alleged facts establishing the cause of his injury. He alleged that Sperry Sun negligently failed to provide him with a safe place to work and with safe and adequate equipment. These allegations are sufficient to state a Jones Act claim.

B.

Lirette participated in every phase of the district court action without reservation or objection. Indeed, even on appeal, it was not until after this court had raised the issue sua sponte that he argued that the district court lacked subject matter jurisdiction over his cause of action. Both defendants contend that Lirette waived any objection to the district court's consideration of his claim by failing to protest removal until after final judgment on his claim.

The resolution of this dispute turns on the meaning of the declaration in Sec. 1445(a) that FELA claims cannot be removed. If this provision is construed merely to grant Jones Act plaintiffs a personal privilege to select the forum in which their claim may be brought, the mandate of Sec. 1445(a) that FELA claims not be removed should not be treated as a jurisdictional bar. On the other hand, if Sec. 1445(a) signifies a congressional intent to deny subject matter jurisdiction to district courts to entertain Jones Act and FELA claims originally brought in state court, such a denial of jurisdiction cannot be waived by plaintiff's failure to object. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18, 71 S.Ct. 534, 542, 95 L.Ed. 702 (1951).

Both defendants contend that improper removal under Sec. 1445(a) does not affect the district court's subject matter jurisdiction. Quarles argues that removal in contravention of Sec. 1445(a) is akin to a procedural defect, which may be waived by a plaintiff's failure to object to removal. See Mackay v. Uinta Development Co., 229 U.S. 173, 33 S.Ct. 638, 57 L.Ed. 1138 (1913). Sperry Sun asserts that Sec. 1445(a) merely confers a personal privilege on an FELA or Jones Act plaintiff to select a state forum and thus does not limit a district court's subject matter jurisdiction. See Carpenter v. Baltimore & O.R. Co., 109 F.2d 375, 379-80 (6th Cir.1940). ³ Both defendants stress that when an action is improperly removed, the case is tried on the merits without objection, and the court enters a final judgment, "the issue in subsequent proceedings is not whether the case was properly removed, but whether the federal district court would have had original jurisdiction of the case had it been filed in that court." Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972).

Grubbs instructs us that a case improperly removed to federal court not be remanded to state court after the entry of judgment if the district court would have had jurisdiction had the case originally been brought in that court. However, Lirette relies on Gamble v. Central of Georgia Railway, 486 F.2d 781 (5th Cir.1973), to support his argument that the provision of Sec. 1445(a) expressly prohibiting the removal of FELA actions divests a district court of subject matter jurisdiction over FELA and Jones Act claims filed initially in state court. In terms too plain to permit distinction, Gamble holds that federal courts are without jurisdiction over FELA suits filed in state court:

Congress patently intended that FELA suits be not removed once instituted in state courts. The intended result was to take FELA suits "out of the operation of the removal act" by the Paynter amendment, the forerunner of current Sec. 1445(a). The district court's conclusion that nonremovability may be disregarded in "individual cases in isolated incidents" was erroneous. It is mandated by the Constitution, Article III, Sec. 2, that Congress has the sole power to fix the jurisdiction of the federal courts and it follows that when Congress has deprived the federal courts of jurisdiction in certain cases, the courts cannot ad hoc reinvest themselves...