Morris v. T E Marine Corp.
| Decision Date | 26 August 2003 |
| Docket Number | No. 02-31188.,02-31188. |
| Citation | 344 F.3d 439 |
| Parties | Ralph MORRIS, et al., Plaintiffs, Ralph Morris, Plaintiff-Appellant, v. T E MARINE CORPORATION, et al., Defendants, SubSea International Inc., incorrectly sued as Sub Sea International, Inc.; Global Industries Ltd., incorrectly sued as Global Industries, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lloyd N. Frischhertz (argued), Frischhertz & Associates, New Orleans, LA, for Plaintiff-Appellant.
Michael John deBlanc, Jr., Kathleen Krail Charvet (argued), Margaret Diamond, McGlinchey Stafford, New Orleans, LA, for Defendants-Appellees.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
After a tortured procedural history, this case purports to present issues of tort and admiralty law. However, given the untimeliness of this appeal, we do not reach those issues. We hold that the district court's remand order of June 8, 2001, following its May 21, 2001, order granting summary judgment to SubSea International ("SubSea") was a final appealable order. The failure of Plaintiff-Appellant Ralph Morris ("Morris") to appeal that order to this Court within the prescribed time period constitutes a waiver by Morris of his right to appeal, hence we AFFIRM.
The procedural history of this case reads like a nightmarish civil procedure exam. In July 1994, Morris filed suit ("Original Petition") in the Civil District Court for the Parish of Orleans against T E Marine Corp. ("TE Marine"), alleging that TE Marine's negligence as the owner and/or operator of a ship contributed to an injury he sustained on a fixed platform located in the Gulf of Mexico. Morris did not plead any basis for the court's jurisdiction and did not assert that any particular law applied to his claims.
In early 1995, Morris supplemented his petition twice, first to add his then-employer, Murphy Exploration and Production Company ("Murphy"), as a defendant ("First Amendment") and second, to add a company that had participated in repairing hurricane damage to a fixed platform's boat landing deck and stairwell, Gulf Inland Contractors ("Gulf"), as a defendant ("Second Amendment"). Morris subsequently settled the claims against TE Marine and Murphy, leaving Gulf as the sole defendant.
In April 1998, four and one-half years after his alleged injury, Morris filed a Third Supplemental and Amending Petition ("Third Amendment") to add SubSea International, Inc. ("SubSea"), which had installed bumper tires to the platform's boat dock, as a defendant.1 Morris alleged the improper installation of the bumper system allowed the bumper to be propelled dangerously upwards into the handrail when struck by the boat. The Third Amendment also alleged a claim under the Jones Act, 46 U.S.C. App. § 688 (2003), against Murphy, but asserted that the case was properly in state court (and not removable to federal court) under the "savings to suitors" clause, 28 U.S.C. § 1333 (2003).2 The Third Amendment otherwise did not specify the laws under which the case was brought.
On June 18, 1999, SubSea filed a Peremptory Exception of Prescription in state court, seeking dismissal of Morris's claim. SubSea argued that general maritime law applied to Morris's suit against it, given the situs and the maritime nexus of Morris's alleged accident. Specifically, SubSea urged the court to apply the three-year statute of limitations under the Uniform Statute of Limitations for Maritime Torts ("USLMT"), 46 U.S.C. App. § 763a (2003), because Morris filed suit against SubSea more than four years after the accident.
Morris then filed an Opposition to Peremptory Exception of Prescription, asserting specifically (and for the first time) that his tort occurred on the outer continental shelf and that, as a result of the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331-56 (2003), the law of the adjacent state (Louisiana) applies. Morris argued that his suit against SubSea was not prescribed because, under Louisiana law, a suit against any party solidarily liable for injury interrupts prescription with respect to any other solidary obligor.
On May 22, 2000, the state court, apparently accepting Morris's arguments and without explanation, denied SubSea's Peremptory Exception of Prescription. Within two days, Morris filed a Fourth Supplemental and Amending Petition ("Fourth Amendment") asserting jurisdiction and claims under OCSLA, deleting all claims of seaman status, and attempting to withdraw his claim under the Jones Act (which presumably had precipitated the 1995 settlement with his then-employer).
Based on this Fourth Amendment, which specifically alleged OCSLA situs and applicability, and based on the state court's implicit finding that Morris's claims were founded on OCSLA, SubSea removed the action on June 9, 2000, pursuant to 28 U.S.C. § 1441 (2003). Morris moved to remand, alleging removal was untimely.
The district court denied remand, finding that the case became removable, at the earliest, on May 22, 2000 — the date of the state court's denial of SubSea's prescription exception which implicitly accepted Morris's argument that his claim was governed by OCSLA. The court concluded that SubSea's removal on June 9, 2000, came before the expiration of the 30-day time limit for removal. See 28 U.S.C. § 1446(b) (2003) ().
SubSea subsequently filed a motion for summary judgment, contending that because admiralty jurisdiction applied, Morris's claims against SubSea were barred by the three-year statute of limitations for maritime torts. The district court agreed and dismissed Morris's complaint against SubSea as time-barred. The court specifically rejected Morris's contention that the law of the case doctrine precluded the court's revisiting the statute of limitations issue previously decided by the state court.
After SubSea was dismissed from the case, Morris filed a motion to remand without providing notice to SubSea. The sole remaining defendant, Gulf, did not oppose remand, which was ordered on June 8, 2001. After remand, Morris ultimately settled with Gulf, and the state court entered a corresponding order of dismissal.
To summarize: Morris settled claims against TE Marine, Murphy, and Gulf. Morris's claim against SubSea was the only claim to have been adjudicated — the federal district court granted summary judgment in favor of SubSea because the claims were time-barred.
Without giving notice to SubSea, Morris appealed the adverse federal court summary judgment — to a state appellate court (the Louisiana Fourth Circuit Court of Appeal). SubSea learned of the case when someone in the clerk's office of the appellate court made a status inquiry over the telephone. SubSea immediately removed the case, for a second time ("Second Removal"), based on OCSLA and the All Writs Act, 28 U.S.C. § 1651(a) (2003). Morris moved for remand; a different district judge denied the remand and ultimately entered judgment in favor of SubSea, dismissing Morris's claims as time-barred. Morris appeals.
While this appeal has been pending, the state appellate court has in turn stayed the appeal, demanded updates from the parties on the proceedings in federal court, threatened to hold the attorneys in contempt for failing to provide updates, and lifted the stay.
This Court reviews decisions not to remand de novo. Miller v. Diamond Shamrock Co., 275 F.3d 414, 417 (5th Cir. 2001). We may address our jurisdiction to hear appeals sua sponte. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).
Morris challenges SubSea's Second Removal of the state court action to federal district court. When it learned — from the state appellate court itself — that Morris had appealed to the state appellate court, SubSea took the unusual step of removing to the federal district court.3 SubSea asserts the Second Removal was proper under two separate statutes, the All Writs Act, 28 U.S.C. § 1651, and OCSLA, 43 U.S.C. § 1349.
(1) Removability under the All Writs Act, 28 U.S.C. § 1651
The Supreme Court's Syngenta case, decided last term, forecloses the argument that the All Writs Act provides original jurisdiction, and hence a basis for removal. Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366, 369-70, 154 L.Ed.2d 368 (2002) (). Hence, removal under the All Writs Act is not available.
(2) Removability based on OCSLA, 43 U.S.C. § 1349
The general removal statute, 28 U.S.C. § 1441, has two relevant requirements for removal. First, only civil actions "of which the district courts ... have original jurisdiction, may be removed." 28 U.S.C. § 1441(a). Second, civil actions founded on a claim or right "arising under the Constitution, treaties or laws of the United States" are removable without regard to citizenship. 28 U.S.C. § 1441(b). The removal of all other actions turns on the citizenship of defendants. Id.
OCSLA provides:
[T]he district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with ... any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental...
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