Sanders v. Seal Fleet, Inc.

• Decision Date: 23 March 1998
• Docket Number: No. 1:97-CV-529.,1:97-CV-529.
• Citation: 998 F.Supp. 729
• Parties: Chester SANDERS, Plaintiff, v. SEAL FLEET, INC., Southern States Offshore, Inc., and Sealcraft Operators, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Texas

998 F.Supp. 729

Chester SANDERS, Plaintiff, v. SEAL FLEET, INC., Southern States Offshore, Inc., and Sealcraft Operators, Inc., Defendants.

No. 1:97-CV-529.

United States District Court, E.D. Texas, Beaumont Division.

March 23, 1998.

COPYRIGHT MATERIAL OMITTED

Steven Carl Barkley, Steven C. Barkley, Beaumont, TX, for plaintiff.

Christopher L. Evans, Meyer Orlando & Evans, Houston, TX, for Seal Fleet Inc., Sealcraft Operators Inc.

Michael B. Hughes, McLeod Alexander Powel & Apffel, Galveston, TX, for Southern States Offshore Inc.

MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S 12(b)(3) MOTION TO DISMISS AND ALTERNATIVE MOTION TO TRANSFER

SCHELL, Chief Judge.

Before the court is Defendant Southern States Offshore, Inc.'s ("Southern States") Motion to Dismiss for Improper Venue, or in the Alternative, to Transfer Venue, filed on October 27, 1997. Plaintiff Chester Sanders ("Sanders") filed a response on December 12, 1997. The court, having determined that a ruling on the motion was premature at that time, ordered the parties to file supplemental briefings with the court by January 30, 1998. See Order, signed December 23, 1997, at 3 (hereinafter "December Order"). Plaintiffs filed a supplemental response on January 30, 1998 ("January Supplement"), and another supplemental response on February 19, 1998 ("February Supplement"). Additionally, argument was heard on this motion in a case management conference held by the court on February 27, 1998.

Upon consideration of the motion, response, supplemental responses, argument, and applicable law, the court is of the opinion that Defendant's Motion to Dismiss should be DENIED, and the alternative Motion to Transfer should be DENIED.

I. BACKGROUND

Plaintiff Chester Sanders has filed suit against the defendants for injuries suffered while working as an AB seaman. He contends that, at various relevant times, he worked for one or all of the defendants. Sanders' Original Complaint alleges that Sanders suffered a stroke on August 1, 1996.¹ Pl.'s Compl. at 2. He argues that the stroke was proximately caused by Defendants' actions, specifically, not allowing Sanders his scheduled time off to see a doctor. Sanders contends that treatment by a doctor at the time of his original appointment would have prevented the stroke. Sanders claims that he is entitled to recovery for Defendants' failure to provide medical treatment and care. He brings his claims under the Jones Act and under general maritime law. Pl.'s Compl. at 3.

II. SOUTHERN STATES' CONTENTIONS

Defendant Southern States has moved for a dismissal of the case under FED. R. CIV. P. 12(b)(3), or in the alternative, for transfer of the case to the Southern District of Texas, Houston Division, under 28 U.S.C. § 1404(a). Southern States argues that venue is improper under 28 U.S.C. § 1391(b) since Southern States is a Houston corporation, the other two defendants are Florida corporations, and none of the defendants maintain principal places of business in the Eastern District of Texas. Southern States also argues that venue does not lay in this district because, at the time of his injuries, Sanders was working offshore, beyond the territorial jurisdiction of the United States. Therefore, according to Southern States, the events giving rise to the cause of action did not occur within the Eastern District of Texas. Since none of the defendants were residents of the Eastern District, and since the events leading to the cause of action did not take place in the Eastern District, Southern States maintains that venue is improper.

III. ANALYSIS OF THE 12(B)(3) MOTION TO DISMISS

Title 28, United States Code § 1406(a) instructs the district court to dismiss or transfer a case if venue is improper where filed. "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a).² A party may move for dismissal of a suit based on improper venue under FED. R. CIV. P. 12(b)(3). The burden to demonstrate why venue is improper and why the forum should be changed lies with the movant. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Myers v. American Dental Ass'n., 695 F.2d 716, 724-25 (3d Cir.), cert. denied, 462 U.S. 1106, 103 S.Ct. 2453, 77 L.Ed.2d 1333 (1983); Bounty-Full Entertainment, Inc. v. Forever Blue Entertainment Group, 923 F.Supp. 950, 957-958 (S.D.Tex.1996); cf. Richards v. Aramark Services, Inc., 108 F.3d 925, 928 (8th Cir. 1997) (plaintiff has the burden of proving jurisdiction, and dismissal for lack of venue is proper where jurisdiction does not exist); Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.1993) (plaintiff has to prove that defendant was unavailable for service).

A. Jones Act venue vs. Admiralty venue

In this case, Sanders bases his claims under both the Jones Act and general maritime law. Pl.'s Compl. at 3, paras. III, V. Before analyzing whether venue is proper or improper, the court must first determine which venue rules to apply to the different claims. There is a latent conflict between Jones Act venue and admiralty venue, since Pure Oil v. Suarez, 384 U.S. 202, 204, 86 S.Ct. 1394, 16 L.Ed.2d 474 (1966) specifically applies 28 U.S.C. § 1391(c) to Jones Act cases, while Federal Rule of Civil Procedure 82 specifically precludes the same type of extension to an admiralty case. FED. R. CIV. P. 82 ("An admiralty or maritime claim within the meaning of Rule 9(h) shall not be treated as a civil action for the purposes of Title 28, U.S.C., §§ 1391-93."). If the court were to exercise its admiralty and maritime jurisdiction under 28 U.S.C. § 1333, admiralty venue provisions must be used for admiralty or maritime claims; the court could not apply the same venue rules that it would for the Jones Act claims. "The venue provisions of the Jones Act apply only to suits at law in the federal courts; they have no application to a suit brought in admiralty[.]" STEVEN F. FRIEDELL, BENEDICT ON ADMIRALTY VOL. I § 127 at 8-29 n. 10 (1997) (citing McKola v. McCormick S.S. Co., 24 F.Supp. 378 (N.D.Cal.1938)).

When both the Jones Act and admiralty jurisdiction are invoked, a problem potentially exists if under one analysis venue is proper, but under another venue is improper. Cf. Bailiff v. Storm Drilling Company, 356 F.Supp. 309, 310 (E.D.Tex.1972). In Bailiff, for example, the plaintiff claimed damages for personal injury both under the Jones Act and under the court's admiralty jurisdiction. The court noted that there was no controlling authority on whether the venue provisions of the Jones Act or the venue provisions of admiralty jurisdiction should control, if each of the two suggest a different venue. Id. at 311. The court determined, however, that venue was proper in the Eastern District under both the Jones Act and admiralty jurisdiction, and therefore the conflict did not need to be resolved. Id.

In the instant case, Sanders is suing the various defendants under the Jones Act, 46 U.S.C.App. § 688 et. seq. Pl.'s Compl. at 3, Para. III. Second, Sanders claims damages under the general maritime law of the United States. Pl.'s Orig. Compl. at 3, para. V. This presents a problem since neither side has briefed the court on the issue of whether or not admiralty jurisdiction, and thus admiralty venue rules, are applicable in this case. The court must first determine whether Sanders has invoked the admiralty jurisdiction of the court; if the admiralty jurisdiction of the court is not implicated by Sanders' complaint, then admiralty venue rules will not be applicable. The court will focus attention on this issue first.

B. Admiralty jurisdiction is not invoked in this case, and admiralty venue rules do not apply

In this case, under the totality of the circumstances, the court finds that the admiralty jurisdiction of the court was not invoked.

There are special procedures for invoking the admiralty jurisdiction of a federal district court ... The specific procedures are imposed by Fed.R.Civ.P. 9(h) ... That rule requires that in order to invoke a federal court's admiralty jurisdiction where there exists an additional ground for federal jurisdiction, the plaintiff must identify the claim as one in admiralty to make it plain that he wishes to invoke that jurisdictional basis rather than some other.

Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1547 (5th Cir .) (emphasis in original), cert. denied, 502 U.S. 963, 112 S.Ct. 430, 116 L.Ed.2d 449 (1991). If the claim is one that is recognizable only in admiralty, then the claim is one brought in admiralty or maritime law, whether identified as such or not. Id. However, where an alternative ground for jurisdiction exists, such as federal question jurisdiction under 28 U.S.C. § 1331, then the plaintiff must be very clear that admiralty jurisdiction is being invoked. See Alleman v. Bunge Corp., 756 F.2d 344, 345-46 (5th Cir. 1984) (where plaintiff brought a claim in state court under the Jones Act, general maritime law, and under Louisiana state law, the plaintiff had not been specific enough under Rule 9(h) to invoke the admiralty jurisdiction of the federal court, especially since the suit was originally brought in state court). It is the preferred practice to plead Rule 9(h) with specificity in order to make it clear to the court that admiralty jurisdiction is being invoked. 5 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2d § 1313 at 717-19 (1990). But an explicit reference to Rule 9(h) is not necessary as long as the complaint contains a "simple statement asserting admiralty or maritime claims." Teal v. Eagle Fleet, Inc., 933 F.2d 341, 345 (5th Cir.1991); T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585, 587-88 (5th Cir.), cert. denied, 464 U.S. 847, 104 S.Ct. 151, 78 L.Ed.2d 141 (1983); Durden v. Exxon Corp., 803 F.2d 845,...