Foulk v. Donjon Marine Co Inc

rights listing private public and between exemplar public of a

immigration Pipeline Construc see also Northern

right); Pipe Line 458 U.S. Co. v. Marathon (1982); 73 L.Ed.2d 598 102 S.Ct. Trading v.

Commodity Commission Futures

Schor, S.Ct. (1986).

L.Ed.2d 675 conclude, Congress has divest-

To because falling review matters

ed us 440(a), we purview of AEDPA

within the matter, opinion in prior our

will vacate (3d Cir.1996), INS, v. 90 F.3d 833

see Morel deny petition for review.

and we will

Layne FOULK; Marjorie B.

E. h/w

v. COMPANY, INC., MARINE

DONJON

Defendant/Third-Party Plaintiff INTERNATIONAL,

BREAKWATERS Third-Party Donjon

INC., Defendant Inc., Appellant Company,

Marine in 97- Layne Foulk; Marjorie E. B.

5235.

Foulk, Appellants in 97-5269. 97-5235,

Nos. 97-5269. Appeals,

United States Court

Third Circuit.

Argued Dec. May

Decided issue, second the district court held diver,

Layne a freelance commercial insufficient connections to had durational barge to be considered “seaman” covered Donjon Foulk v. Marine the Jones Act. (D.N.J.1997). agree will do and reverse. We

I. Facts Avalon, Borough New April In Jersey, with to erect contracted Breakwaters Avalon’s Break- an artificial reef off coast. Donjon provide contracted with to waters material, barges, a tugs, floating and crane divers, barge. hired freelance Breakwaters perform including to some of 10, 1993, began July on work. Construction Donjon’s direction. under Breakwaters’ barge, the Farrell anchored 150 crane offshore, used both install the feet was crew, a for reef and as station the dive dive Winkler, Barish, Law B. Marvin I. David consisting of and three commer- Foulk other PA, Offices, Philadelphia, for Foulks. place- to assist in cial divers who were (Argued), K. Raymond R. Thomas Wiss station, barge of the As dive ment reef. Hackensack, Jr., Cooke, Bouregy, Wiss & box, compressors, held air a communications NJ, Donjon Company, Inc. for Marine equipment. crew diving and other The dive Murphy, R. A. Dal- Edward Elizabeth sleep report and to were ashore O’Connor, Haddonfield, berth, Murphy & barge by morning. motor each Foulk launch Beer, NJ, Gary (Argued), Thomas R. S. Lee days, hired to for 10 duration was work Wolen, City, York for Break- Barger & New work, project. day his first of the On International, Inc. waters when, water, injured Foulk was while in the caught jetty a he was between and the clam- GREENBERG, Before: ROTH and operated by barge crane. shell bucket SEITZ, Judges. Circuit fractures, collapsed He suffered various injured lung right and an shoulder. THE OPINION OF COURT January 6, disability, while On on ROTH, Judge: Circuit wife, Marjorie, Foulk and his filed suit appeal Donjon Breakwaters, interlocutory against sounding involves two This (1) jurisdiction questions: negligence general we have maritime law. The (2) it, preclud alleged and whether individual is Foulks both being February 14, purposes from a “seaman” for before ed On Act, filed, § U.S.C.App. any if his rela answer amended was Foulks complaint only Donjon tionship barge/diving ques station in their to name as de- negligence days in duration. the first fendant on claims of and of the tion On issue, deny appellee/third-party Donjon’s we will de unseaworthiness of vessel. Juris- fendant, International, Inc.’s, again grounded in Breakwaters diction was once both di- 10, 1995, appeal. versity admiralty. On motion to dismiss the We find March pleadings parties Donjon actions of were filed an answer and a third- both against claim Breakwaters for indemni- sufficient 9(h). 1, 1995, We, ty there and contribution. On purposes Fed.R.Civ.P. June fore, mo- Magistrate Judge granted Donjon’s have of this of a non- oral 1292(a)(3). third-party § On to amend its final order under 28 U.S.C. 1292(a)(3) § favor against Breakwaters in To appellate make a claim use as a basis for 14(c). Foulks, interlocutory order, of an pursuant Fed.R.Civ.P. such as object partial summary to this amend judgment, Breakwaters did parties subsequently submitted must asserting ment. The an admiralty or alia, joint pre-trial stated -inter claim meaning order which within the of Fed. 9(h). “jurisdiction of the Court arises under R.Civ.P. This states as follows: as modified the Jones Law pleading setting A or count forth a claim Act, U.S.C.App. 688.” Breakwaters within relief and mari- summary judgment its con sought partial time is also within the was not a “seaman” under tention that Foulk jurisdiction of the court on district some Act, Donjon U.S.C.App. ground may other contain statement partial summary Foulk for and cross-moved identifying admiralty the an claim as or Act “sea judgment that Foulk was purposes maritime claim the Rules for of 9, 1997, Court April man.” On the District H(c), 38(e), Supplemental 82 and the granted Breakwaters’ motion and denied Admiralty Rules Certain and Mari- Donjon contrary. and Foulk’s motion to the . time Claims. If cognizable the claim is Donjon. Foulk v. Marine only admiralty, in admiralty it is an or (D.N.J.1997). 692, Donjon and purposes maritime claim for those interlocutory ap the Foulks filed notices of not____ so identified The reference in , 21, 1997, peal April April and 1997 1292(a)(3) § admiralty [28 U.S.C. ] cases 1292(a)(3). § respectively. U.S.C. On admiralty shall be construed to mean and 9, 1997, May Breakwaters filed a motion to cases meaning within the of this For appeal. dismiss the the set reasons 9](h). [Fed.R.Civ.P. subdivision below, deny mo forth we will Breakwaters added). (emphasis and, dismiss, considering merits of tion to the appeal, the court the we will reverse district complaint against In both its initial Break in partial summary judgment of favor Donjon waters and and in its First Amended of Breakwaters. against Donjon, Complaint Foulk assert subject-matter jurisdiction: ed two bases II. Jurisdiction admiralty diversity.2 and When a federal appeal, Before we reach merits of this admiralty joins makes a claim in we must first motion to resolve Breakwaters’ admiralty claim, an claim with another cer Donjon jurisdic dismiss it. asserts that the procedures special apply: tain and rules tional interlocutory appeal basis for its is 28 14(c), 38(e), 82, Supplemental Rules 1292(a)(3)1 § in provides part: U.S.C. which Admiralty for Certain Rules Maritime appeals jurisdic- [T]he court of shall have 1292(a)(3). Claims, and 28 U.S.C. § Rule appeals tion of from: 9(h) helps clarify applicability of these (3) Interlocutory admiralty procedures district decrees such maritime rules and judges determining courts or the thereof in where one a case more than basis for rights parties subject and liabilities of the matter has been asserted. admiralty appeals parties in from in recog cases which To assist court and the presence admiralty final nizing decrees allowed. of an claim in a Donjon inap being Fifty § versy that 28 U.S.C. for is concedes excess of Thousand Dollars plicable ($50,000.00) as a basis because there interest and costs. exclusive judgment" was no court. "final of the district Demand, ¶ Jury Compl. and 5. The First Amend- Appellant Donjon's Opp. Appellee Br. in Break Complaint ed states: Dismiss, 11; water's Mot. to See States United The Court arises under the this (3d Contracting Corp., v. Brook Admiralty diversity jurisdiction law and the Cir.1985). Court, § U.S.C. amount in controversy being Fifty in excess Thousand Complaint 2. The First states: ($50,000.00) exclusive of interest and Dollars of this Court arises under costs. Act, by U.S.C.App. law the Jones Demand, ¶ Compl. Jury Am. § First diversity jurisdiction and the Court, 28 U.S.C. contro- amount in 9(h) are, however, suit, provides that the There embellishments multielaim identify pleading provisions. notice “may a statement Rule 8 One contain 9(h) explains or maritime which the claim as an these Fed.R.Civ.P. ing claim____” Fedorczyk position, forth party Caribbean Foulk’s who has set See (3d Lines, Ltd., bases, F.3d Cir. jurisdictional “may” include a two Cruise 1996). identifying the claim an admi “statement added). ralty (emphasis or maritime claim.” its to dismiss grounds motion Breakwaters statement, By affirmatively including such a that, asserting appeal on fact clearly being one describes claim as original in both the admiralty. Advisory Committee complaints, Foulks do the amended Notes, 1966 Amendment Fed.R.Civ.P. 9(h) and, as a specifically cite to (“the preferable designating [for solution “identify pleading as consequence, do not an to allow the claim] claim as reason, For this claim.” power pleader who now has to determine the Foulks did Breakwaters contends consequences filing a suit procedural cannot not invoke power unifi to exercise that it, procedures in- employ the associated with plead simple cation ... statement in his 1292(a)(3), cluding the use of 28 U.S.C. ing to the effect that the claim is an admiral jurisdictional appeal. As a basis for claim.”); Fedorczyk, ty 82 or maritime cf. result, asserts that section Breakwaters (stating at 73 that invoke admiral “[t]o F.3d 1292(a)(3) and inapplicable is that this ty ... a must affirma jurisdiction. for lack of must be dismissed tively pleadings insert a statement that we must resolve is how issue identifying ‘admiralty an mar the claim as or party specific identifying must be claim’.”). itime complaint admiralty claim in a when that 9(h) unambigu- A to Rule is direct citation of sub party pleading is alternative theories may ous and considered some to be ject Generally, matter Miller, Wright & preferable. See 5 Federal practices in pleading the liberal notice feder § 1211 cases, Practice Procedure: Civil 2d a claimant “does not have to set al civil 2(d).3 (West 1990); Fed.R.Civ.P. Forms upon claim in detail the facts which the out 9(h) However, nothing in Rule based, restricts merely provide is but must for relief spe- invocation put opposing par sufficient to statement 9(h)’s Indeed, cific citation to that rule. Rule 2 ty notice of claim.” Moore’s Feder “must,” (Matthew Practice, “may,” of the use word instead 3d al Bender 8.04[1] specific that ed.1988); suggests use of the words King Spalding, see v. & Hishon 9(h)” 2235-36, 69, 78-79, 2229, required. “Rule not U.S. 104 S.Ct. 467 (1984); Gibson, Conley L.Ed.2d 59 v. 355 81 41, 99, 102-03, 47, plaintiff, 78 2 L.Ed.2d 80 We conclude then that a S.Ct.

(1957) (pleading only admiralty jurisdiction, invoking must contain a short does 9(h). notice); plain give sufficient to need to make reference to Rule statement direct remains, however, Similarly, just 8. Fed.R.Civ.P. claimant must The how plain specific “a include short and statement reference upon be in to invoke it. grounds which court’s must order Our review 8(a)(1). depends.” present Plaintiffs facts of convinces us Fed.R.Civ.P. case 2, along complaints, clearly pleadings, parties’ see n. both stated two that with the actions, jurisdictional admiralty. bases: are sufficient to invoke it. contrary, explic In fact a number of district courts have so held. Fifth Circuit has held to the See, e.g., Corp. 9(h) necessary. Subaru Distributors v. General it reference to Fed.R.Civ.P. 342, (D.Mass.1996); Ship Corp., Fleet, Inc., 341, 167 343 (5th F.R.D. Eagle v. 933 F.2d 345 Teal Cir.1991); States, 620, F.Supp. Lewis v. United 628 Service, Marine Inc. v. Weaver T.N.T. (E.D.Va.1993); Siragusa Steamship v. Standard Docks, Inc., Shipyards Dry 702 F.2d Protection, (D.P.R. Owners denied, (5th Cir.), 464 U.S. 587-88 cert. 1989); Steamship Corp., Banks v. Hanover (1983). S.Ct. 78 L.Ed.2d 141 contrast, (D.Md.1967). By F.R.D. 376-7 jurisdiction)). Shortly defendant/third-party plain Having after concluded that third-party complaint Donjonffled its parties’ tiff pleadings and actions were sufficient indemnity and con against Breakwaters admiralty jurisdiction, jur we have tribution, magistrate judge granted Don isdiction Donjon’s to hear Foulks’ and inter third-party jon’s oral motion to amend its locutory appeal pursuant to 28 U.S.C. it was seeking to reflect 1292(a)(3). judgment against Breakwaters in claim for plaintiffs pursuant favor of Fed.R.Civ.P. III. Seaman Status 14(c). Amending Party- See Order Third 1, 1995. Complaint, party A claim June third Turning to appeal, the merits of the 14(c) only be made under Fed.R.Civ.P. can Donjon Foulk argue the District respect claims as contern Court in granting partial erred summary 9(h). plated under Rule See Fed.R.Civ.P. judgment Layne on the issue of Foulk’s sea 14(c) (“When plaintiff asserts an man status under the Jones Act. The Jones meaning or maritime claim within the of Rule provides a cause of action in negligence claimant, 9(h), the defendant or as a third “any injured seaman” “in the course.of party plaintiff, may bring in a third ” employment. his U.S.C.App. § may by way who be ... liable ... defendant components There are two to “seaman” sta over, remedy contribution or otherwise on Inc., Wilander, tus. See McDermott Int'l v. ”); of the same account Teal transaction.... 337, 346-48, 807, 813, 498 U.S. 111 S.Ct. Fleet, Inc., Eagle n. (1991); Chandris, Latsis, L.Ed.2d 866 Inc. v. (5th Cir.1991) (“Third party claims under 347, 115 2172, 132 515 U.S. S.Ct. L.Ed.2d 314 14(c) available in must, (1995). First, “employee’s duties” claims.”). 14(e) Donjon’s funetion[ing] to the “contribute] of the vessel that, claim, then, parties it made clear to all accomplishment of its mission.” least, proceed, part at case would Chandris, 368, 515 U.S. at 115 at S.Ct. 2190. an claim.4 Second, the worker’s “connection to the ves Furthermore, parties’ manifestation of navigation” sel in must be “substantial proceed admiralty jurisdic- intent to under terms of both its duration and its nature.” by pre-trial tion was confirmed the final or- Id. The district court found that while the der, entered the consent of Breakwa- met, requirement first was as a matter of ters, which stated alone was law, requirement the second could not be met the basis for See Joint Final granted partial summary and thus judgment (“The jurisdiction Pre-Trial Order Foulk, to F.Supp. Breakwaters. 961 at 698. Court arises under Law as modi- The district court reasoned that Foulk’s 10- Act, by U.S.C.App. fied the Jones 46 Section and, day assignment temporary was there 688.”); Fedorczyk, see also 82 F.3d at 73 fore, satisfy of sufficient to not duration (holding that the district court did have requirement. Chandris “substantial duration” noting (“Ten days (excluding nights), Id. with no order, pretrial district court had entered a permanent relationship, view towards a more stating “jurisdictional predicate” that the was simply satisfy too short a duration to citizenship, objection without any party (including appellant' requirement from Chandris durational Fedorc- seaman status.”). zyk arguing who was favor of review We the district court argues part, 4. The dissent that "actions a defendant as such. Moreover the fact question plaintiffs joined should not control in the Pretrial Order and are plaintiff admiralty jurisdiction.” appellants interlocutory meant to invoke now before us on this suggest they cogni Dissent at 264. We do not that defen- further demonstrates that are party plaintiff Donjon single- admiralty jurisdiction. dant-third was zant of the invocation of handedly admiralty procedure ensuing able to invoke The dissent’s cite makes clear that ac plaintiff; parties jurisdic behalf of rather that because no are relevant to tions of the what motion, objected Donjon’s it became clear that tion the has invoked. Dissent at 264 parties tacitly agreed pursue Bryan citing Transp., all v. Associated 837 Container claim, 633, (D.N.J.1993). proceed, F.Supp. and that this case would at least 641 258 perils regularly exposed to the of the sea. Sempi novo. judgment5 de See summary 724, Id. The made clear that the “total Higgins, 45 F.3d 727 Court

er v. Johnson Cir.1995). employment (3d circumstances of an individual’s he weighed must be to determine whether Act fails define the The Jones had a sufficient relation the ... vessels.” U.S.C.App. In 46 “seaman.” term Id. 1927, provided content to the Congress some Furthermore, of seaman issue passing requirement Act seaman question fact and law. status is a mixed Longshore Harbor Workers’ Com appropriate (LHWCA). Id. the court defines the Once §§ 33 U.S.C. 901- pensation standard, fact the trier of must decide wheth provides the exclusive LHWCA particular employee that standard er meets remedy maritime workers and for land-based Id.; and is a seaman. v. Wheel thus purview “a master or mem from its excludes Griffith 31, Corp., ing Pittsburgh F.2d 36- Steel any vessel.” a crew of 33 U.S.C. ber of (3d Cir.1975). “Nevertheless,’summary 902(3)(G). Act and LHWCA The Jones’ judgment facts ... is mandated where the mutually eligibility Because exclusive. reasonably support only one and the law will eligibility un precludes the LHWCA at-, Tug, Act, conclusion.” Harbor 520 U.S. of a the Jones “master member der grant The District S.Ct. at 1540. Court a refinement of the must be seen as crew” summary partial motion for Tug ed Breakwaters’ Act. Harbor term “seaman” in status, reasoning that 548,-, judgment on seaman Barge Papai, Co. v. 520 U.S. (1997); support only conclu the facts and the law L.Ed.2d 800 S.Ct. Wilander, sion that Foulk was not seaman. We do Int’l 498 U.S. McDermott agree. 346-48, 112 L.Ed.2d S.Ct. (1991). met There is no that Foulk recently, Supreme has Court More requirement—he the first contributed analyze provided a framework from which to vessel the accom functioning of the and to purposes status of the Jones “seaman” plishment its mission. As the district Act, requirements. providing essential two found, court the mission of the vessel Int’l, 346-48, at McDermott 498 U.S. question, Farrell installation was the 813; Chandris, Latsis, Inc. v. at S.Ct. of an artificial reef. 2172, 347, 115 132 314 U.S. S.Ct. L.Ed.2d employed whose Foulk was as diver (1995). First, duty must be to the worker’s duty it to aid the of the was installation vessel, functioning to of contribute the the Wilander, 355, 111 reef. 498 at U.S. second, the connection to the worker’s (“It necessary S.Ct. at is not that a 817 must be of both vessel “substantial terms navigation or seaman contribute to the aid Chandris, 515 its duration nature.” U.S. vessel, transportation of the but a seaman 368, The at 115 S.Ct. at 2190. Court ex work.”). ship’s doing must be the plained purpose of the the “seaman” question the is also no that Foulk requirement “separate is to sea-based There part require employees are entitled to met the 'first of second who protection those to the was sub from land-based ment—his connection vessel transitory only spo stantial in nature. As court workers who have the district found, in navigation,” connection a vessel Foulk and the dive crew were neces radic sary completion those reserving seaman status for who are for the successful of summary judgment ing carry party’s The standard is well evidence is insufficient to "Summary judgment appropriate is settled: nonmoving party genuine a' burden. The creates fails when admissible evidence to demon- provides he issue of material fact if sufficient fact, genuine strate a issue of material and the to find for evidence to allow reasonable moving party judgment is as a matter entitled nonmoving party give the him at We trial. When, ,of 56(c). here, Fed. R. law. Civ. P v. benefit all reasonable inferences.” Wetzel persuasion nonmoving bears the burden of Tucker, 380, (3d Cir.1998) 2 139 F.3d n. trial, moving party may meet its at burden (citations omitted). summary judgment by showing that the nonmov- project—the centerpiece by Farrell 256’s construction of the formulation used reef; Foulk, (the Appeals” at 697. Court of in that two-part artificial ease Furthermore, test), profession “important of commercial and did it find that a sea in nature as it cannot be man’s diving is maritime connection to a vessel ... be substan (duration Oceaneering respects nature),” tial in done on land. Wallace both Int'l (5th Cir.1984). 371, 115 2191, 427-36 Commercial id. at specif S.Ct. at the Court perils rejected regularly exposed ically temptation divers “the to create de the, sea, protection from which was the tailed tests to congressional effectuate purpose require purpose, Act seaman tests that tend to become ends Chandris, 368-70, at ment. themselves.” Id. at 115 S.Ct. at S.Ct. at 2190. 2190. To define substantial duration absolute number would to-create such however, question, There is a test. The inquiry ultimate is “whether the part Foulk met the second whether. question worker in is a member of the ves requirement—that Foulk’s second connection simply employee sel’s crew or a land-based to the Farrell 256 was substantial dura happens working who to be on the vessel at a alongside tion. Foulk had worked the Far time,” 370, 115 given id. at S.Ct. at project only rell 256 on the Avalon reef two-part merely is in making test an aid injured. day half a when he was Neverthe So while the Court did determination. less, doctrine, snapshot” under the “no artic explain that both the duration and the nature Chandris, ulated in a-court does not evaluate id., “substantial,” of the connections be a worker’s connection to a vessel or fleet at inquiry totality is one in the of circum Instead, injury. the court the moment 368-70, 115 stances. Id. at S.Ct. 2190. It relationship, must consider his intended as if inappropriate attempt to determine the uninjured. completed he had his mission minimum durational element an absolute 362-64, 370-74, U.S. at 115 S.Ct. at number, days. such as 10 contemplated arrangement 2191-92. The be Furthermore, reasoning is consistent tween Foulk and the Farrell 256 was for 10 with holding long this court’s that “lack of Thus, days’ snapshot” work. under the “no to a continued[durational] attachment vessel doctrine, hours, days, not a few is the cannot, law, deny as a matter of serve to appropriate durational measure. employee [Jones Act] seaman status to an The then is whether Foulk quali injured who assigned per while to and fies as a Jones Act “seaman” when his dura forming normal crew service.” Reeves v. tional connection to the Farrell 256 was Dredging Pumping Mobile & Co. i.e., days, days whether 10 is sufficient for (3d Cir.1994) citing F.3d “substantial duration.” district court Chandris, Inc., approval Latsis v. 20 F.3d 45 that, law, day found as a matter of a 10 (2d Cir.1994) 515 U.S. 115 S.Ct. aff'd relationship satisfy was too short Although pve-Chan 132 L.Ed.2d 314. requirement. Chandris durational dris, cognizant this court in Reeves was of F.Supp. 961 at 698.6 “permanence” requirement required the that assignment We conclude the durational worker’s to be substantial in duration, by holding eventually by element cannot be answered an absolute the reached temporal Supreme measure. It the is element and the the in Our Court Chandris. hold that, performed nature of the ing long activities taken in Reeves that the lack of attach together, deny determine seaman status. Chan ment to a vessel cannot seaman status dris, 368-72, post 515 U.S. at 115 at S.Ct. 2190- as a matter of law remains effective Here, Supreme adopt clearly perform- 91. While the Court did “the Chandris. Foulk was cited, slept nothing 6. The district court as relevant in ate or had to do Foulk with the ppints decision, arriving performance at its the fact that Foulk went of his duties. Nor did the location diving barge morning slept any way out to each ate affect the the and went where Foulk or reason, evening; home each he did not eat nature his duties. For that breakfast of supper sleep barge. job and he did not we ten on board’ the will look at the duration of the as Nevertheless, days, subtracting nights 961 at 698. where without for the on shore. 260 admiralty jurisdiction arising the claims under service” of Farrell

ing the “normal crew degree procedures the reef. The some involve different of artificial 256—installation law, only going to do it for 10 from at the least fact that he was claims of which itself, not, summary mandate days does of a trial. See denial Fed.R.Civ.P. “clearly days is inade judgment. 38(e); Ten In re Consolidation Coal 123*F.3d temporal (3d Cir.1997). to vessels navi quate connection determining In 132 question take from gation, sufficient admiralty jur- whether the made summary judgment.” jury by granting election, must look face isdiction courts See, Moving e.g. Fayard v. Palmer if it complaint of to see contains the (5th Corp., F.2d 437 Cir. Transportation 930 jurisdictional allegations. appropriate 1991). reasonably find an juryA could States, Heilman v. United F.2d vessel are employee’s to a sub connections Cir.1984). (3d if and nature even stantial both duration case, present complaint In the initial days. contemplated is 10 The the duration jurisdiction of “[t]he states that this Court status, ultimately analysis of seaman Admiralty law arises under as modified employee’s connections sub Act, § USCApp the Jones nature, may stantial duration include Court, diversity jurisdiction of the 28 USC See, multiplicity e.g., v. of factors. Bertrand 1332Complaint language § at 2. The Marine, Inc., Mooring & International parallels complaint in the this first amended (5th Cir.1983) denied, 464 F.2d 240 cert. allegation, but omits reference to (1984). S.Ct. L.Ed.2d Act, stating instead the court’s days employ contemplated The number “arises law these ment is one of factors. Court, diversity jurisdiction of and the will Consequently, we reverse trial § USC 1332....” First Amended Com summary judgment on court’s sea- plaint 1. The reason for this at omission case to man status and remand the the dis- allegation is that the Foulks proceedings court further consistent trict dropped against their Jones Act claim Break opinion.7 with this waters, Layne employer. B. Foulk’s complaint initial first and the amended com GREENBERG, Judge, dissenting: Circuit trial, plaint ¿'jury contain also a demand my respectfully colleagues’ I from dissent right preserved which the Foulks in the that this court has determination 7; Complaint final pretrial order. See at interlocutory appeal. I to hear Because 4; Complaint First at Final Amended Joint I jurisdictional grounds, on do not dissent Pretrial Order reach the issue raised on the substantive appeal. In asserting an action under the Jones Act, can interlocutory

An under 28 elect to sue either under U.S.C. 1292(a)(3) appropriate only in a at law invoking case fed jurisdiction. eral based When See Yates Dann, (3d Cir.1955); allegations potentially sets forth cognizable under both the and non- Alan Arthur R. Miller & Wright, Charles court, Cooper, it H. Federal -the district Edward Practice (Supp.1997). identifying must contain a statement 3677 at 492 Ac Procedure cordingly, original in order to com claim one invoke because the Foulks’ plaint alleged the district court’s un- under the Jones 9(h). Act, potentially § cognizable der 28 1333. See Fed.R.Civ.P. it stated claim U.S.C. designation jur- significant, admiralty non-admiralty This because under either date, implications up governed 7. The it would of course dissent comments on later opinion plaintiffs’ jury this vis-a-vis demand legal precedent Fitzgerald including relevant pass trial. at 264. We do not on this Dissent Co., 16, v. United States Lines 374 83 S.Ct. presently us as it is not before at this 1646, (1963) L.Ed.2d 10 720 Haskins partial interlocutory appeal aof sum- (3d Cir.1968). Towing Point 395 F.2d mary judgment. question were to If this come (5th However, 341, Cir.1991) complaint not isdiction. did (quoting T.N.T. Ma 9(h) rine, 588). specifically However, mention Rule or 28 U.S.C. 702 F.2d at every not 1333; therefore, complaint plainly allegations while the Foulks that contains relating diversity jurisdiction, invoked the court’s it is should be considered to have they admiralty jurisdiction. Instead, invoked unclear whether in addition intended to courts “totality must look to the invoke the court’s of the cir Bodden, cumstances” of the they rely case. chose to on the court’s 879 F.2d at 186. question jurisdiction. federal When the complaint Foulks amended their to eliminate Appeals The Court of for the First Circuit claim, the Jones this action also eliminat- 9(h) also has held that the mention of Rule any potential question jurisdiction; ed federal .required. Panek, not In Concordia Co. v. jurisdictional question

but the un- remained (1st 67, Cir.1997), 115 F.3d the court held clear, they rely because still could on two admiralty jurisdiction, to invoke “the i.e., possible jurisdiction, bases for preferred technique expressly is to invoke diversity 9(h),” Rule but the court require did not litigants Instead, so. do the court exam- In discussing language complaint in a pleadings, which stated that ined necessary to invoke claim Admiralty,” “In was and concluded that multiple possible juris- cases bases for language this was sufficient to invoke admi- diction, we have held that admi- “[t]o invoke ralty jurisdiction light of the fact that the jurisdiction ralty plaintiff ... a must affirma- litigant did not demand trial. Id. tively pleadings insert a statement in the identifying ‘admiralty the claim as an or mar- Appeals The Court of for the Ninth Circuit ” Fedorczyk itime claim.’ v. Caribbean Cruise rule, has adopted not such liberal but it (3d Lines, Ltd., Cir.1996); 82 F.3d see also required specific has not mention of Bryan Transp., also v. Associated Container 9(h). In Trentacosta v. Frontier Pac. (D.N.J.1993) (hold- 641-42 Indus., 813 F.2d Aircraft , ing was (9th claim based Cir.1987) the complaint amended con and not maritime seeking tained a claim relief under part specifically because the did “Jones Act and General Maritime Law.” invoke maritime' under Rule complaint amended did not invoke 9(h)). However, statement, beyond this we jurisdiction; instead, “was care provide any guidance Fedorczyk did ful jurisdiction only federal invoke under here; thus, appropriate instructive it is 1331. Id. The court held that U.S.C. ” examine decisions of other courts that have language such was insufficient to invoke ad problem confronted this to determine what miralty jurisdiction, because the our rule should be. elected to invoke “admiralty “law” rather than on side Appeals The Court of for the Fifth Circuit Id.; Owens-Illinois, generally side.” see regarding has crafted a liberal rule the lan Inc. v. United States Dist. Court Dist.W. guage necessary admiralty jurisdic to elect Wash., (9th 698 F.2d 972 n. Cir. 9(h). tion under Rule T.N.T. Marine 1983).(reasoning requiring a statement Serv., Shipyards Dry Inc. v. Weaver & 9(h) specifically mentioning Rule Docks, Inc., (5th 702 F.2d 587-88 Cir. admiralty jurisdiction seems to be correct 1983) (holding allegation that an that “[t]his rule, holding that but the court did not need is also a suit for of a breach maritime con Thus, question). though to reach the even tract and for maritime tort” was sufficient to require specific the court did not mention admiralty jurisdiction). invoke Under 9(h), Appeals of Rule the Court of for the rule, does not have to mention adopted Circuit seems to have a strict Ninth 9(h) specifically, Osgood, see Bodden v. Ap pleading er standard than the Courts of (5th Cir.1989); instead, peals for the Fifth First Circuits. complaint only simple need contain “a state asserting Although Appeals ment or maritime the Court of for the Fleet, Inc., issue, Eagle claims.” Teal v. Fourth has not ruled on this a Circuit Schoenbaum, Admiralty circuit Thomas J. within that of courts number district (2d ed.1994) Law 21-1 at 467 Maritime of Rule specific mention required the have (footnotes omitted). (emphasis original) 9(h) admiralty jurisdiction invoke order to jurisdiction. multiple bases for in cases with case, course, precise of involves the This States, Lewis v. United Ap- which describes. situation Schoenbaum (E.D.Va.1993) (requiring specific a men- plication of the rule as set forth Schoenb- 9(h)); Hanover also Banks v. tion of Rule see place other would the court and the aum 374, 376-77 Steamship Corp., 43 F.R.D. plaintiff intends to litigants on notice that the (D.Md.1967) specific statement (requiring of the dis- invoke Thus, rul- jurisdiction). these admiralty requiring rule the com- trict court. Such a 9(h) the strictest standard ings have established unduly is not plaint to mention Rule harsh, courts that have ad- among plaintiff the federal as the can control the situa- completely pleadings. or this issue. with his her dressed Rule the Foulks failed mention Because specif- reviewing After these eases and 9(h), they I would that did not make hold ease, I that we ic facts of this would hold that and there- required election under rule exacting in our view should be somewhat this for lack of fore would dismiss regards invoking admi- pleadings jurisdiction. ralty jurisdiction involving in cases more holding In that no such statement is re- potential jurisdictional base. While than one majority language relies on the quired, Rules of Procedure under .the Federal Civil added) 9(h) (emphasis provides: Rule which pleading or motions technical forms “[n]o pleading setting claim A or count forth a 8(e)(1), im- it is required,” Fed.R.Civ.P. admiralty relief and mari- within plaintiff the district portant alert is also the' time within invoke the court that he or she intends to jurisdiction of the district court on some admiralty jurisdiction. If court’s ground may other contain a statement admiralty jurisdiction and wishes identifying admiralty as an or the claim accompanying procedures in a ease involv- its purposes maritime claim for the of Rules potential jurisdictional ing more than one 14(c), 38(e), 82, Supplemental and the base, required should be to state Rules for Certain Maritime admiralty or specifically the claim “an Claims____ meaning in the of Rule maritime claim within 9(h).”5 Wright majority Alan & Arthur R. The contends that the use of the Charles “may” specific invo- Miller, word demonstrates Practice Procedure Federal 9(h) ed.1990). necessary; of Rule howev- (2d cation § 1313 at 719 As Professor er, my argument view this is unfounded. has Thomas J. Schoenbaum stated: 9(h) aspect of This Rule describes a case If, however, cognizable the claim is not where, here, may multiple as invoke also some other but on jurisdiction—admiralty potential bases for (such ground of as di- federal jurisdic- one or more other put versity), pleader is to an election bases, i.e., diversity tional federal or special whether to invoke jurisdiction. Specifically, filing after procedures plead remedies. To complaint, Foulks the first amended ease, or maritime claim in such rely as an al- could must, in pleading addition to the admi- to admiralty ternative In this ralty jurisdictional allegations, contain an multiple jurisdictional setting, Rule dual (or identifying equivalent) statement its 9(h) plaintiffs not require does to invoke ad- follows: This is an or maritime instead, miralty jurisdiction; provides it 9(h). If meaning claim within choice—they can rely them with either on made, identifying statement is not jurisdiction- another may “may” claim treated as non-maritime ground. al use of the word 9(h) to this choice. civil action. refers See, “may” admiralty jurisdic e.g., Plaintiffs invoke Continental Cas. Co. they may appropriate in an case chose tion or v. Canadian Ins. Universal diversity juris rely question on to federal (5th Cir.1979) (“A maritime issue latter, they merely do not diction. To do the may suit; in diversity raised this is one 9(h). Thus, contrary to the ma invoke Rule significance savings-to-suitors clause, of the specific jority’s reasoning, wording in permits 28 U.S.C. litigant which to 9(h), particularly “may,” the use of jurisdiction over, obtain federal jury res- plaintiff specifi conclusion that a leads to the of, olution an admiralty question by invoking cally admiralty juris must invoke the court’s independent federal on an ba- admiralty diction for the case to be in if it is sis.”). Thus, language in the first within the otherwise the dis interpreted amendéd could be as “May” simply trict court. means that when relying solely diversity jurisdiction on admiralty jurisdictional both and other bases intending not rely admiralty jurisdic- available, plaintiff option are has the emphasize tion at all. I that the Foulks did admiralty jurisdiction. select See Fed. specify not they bringing were the case (1966 advisory committee’s R.Civ.P. note under admiralty jurisdiction; the court’s Amendment) (noting that after the unifica therefore, majority wrong when it indi- procedure, pleader tion of the rules of “the cates that designating alleged must be afforded some means of the “Foulks diversity both counterpart present claim the his as admiralty jurisdiction.” Slip Opinion at admiralty, suit in where its character as such clear.”). “May” surely is not does not mean Furthermore, requested jury Foulks jurisdic plaintiff admiralty that a can select trial on issues in complaint. contained expressly covertly either and leave tion Such a request admiralty is inconsistent with parties guessing the court and the other as to jurisdiction, plaintiff’s and it intentions. lends credence to the plaintiff conclusion that the conceived using Even the more liberal standard' of claim being at law than rather under the majority, I would not hold that admiralty jurisdiction. district court’s Foulks, fact, admiralty jurisdic- did invoke (“One Concordia, important 115 F.3d at 72 totality view of the of the circum- Here, determining stances involved this case. as was factor in whether a claimant has Trentacosta, true of the proceed admiralty elected to is whether he Foulks were careful not to invoke trial.”); jury demanded a Sanders v. Seal 9(h).- Instead, jurisdiction under Rule the Fleet, 729, 734-35, original complaint referred to the Jones Act (E.D.Tex.1998) (holding that the action was diversity jurisdiction, specifi- and federal under the court’s federal rather cally admiralty jurisdiction. did mention jurisdiction, than because the all, Foulks, say, After as did the that the jury demanded a trial and his com- “jurisdiction of this Court arises under Admi- plaint invoked court’s ralty law as modified the Jones Act” is not general the Jones Act and law rath- because, as I 9(h)); specifically pleading er than see above, set forth a Jones Act case can be Coal, also In re Consolidation 123 F.3d at brought in invoking the district court without (noting right jury “[t]here is no admiralty jurisdiction. What the Foulks did ” (citation in actions instituted in say they bringing is that the case omitted)). Are we to believe that insofar as invoking of the dis- diversity jurisdiction they the Foulks invoked trict court. The Foulks’ first com- amended are entitled to a trial while at the same plaint clarify did not the situation for while they time for the same claim are entitled to a they allege did that the court’s admiralty? bench trial in As far Ias am law,” “arises they under the also concerned, the Foulks did not invoke admi- diversity jurisdiction; invoked the court’s ralty jurisdiction, and I therefore would dis- and eases under láw can be brought in jurisdiction.' a district under its lack court miss the 14(c) determination, majority the the is not sufficient to Rule motion support

To its Donjon’s they invoke the order and establish that meant to the admi- pretrial cites 14(c) ralty jurisdiction of the Foulks’ selec- as evidence of the court. motion district However, admiralty jurisdiction. this tion of admiralty In and involving a case both First, pretrial the unpersuasive. evidence is non-admiralty jurisdiction, plain- bases of if a jurisdiction court’s did not restrict the order jurisdiction, admiralty tiff wishes to invoke majority suggests. admiralty, to as the required should to make that she be he. jurisdiction court’s The that the order stated specifically in- election in a clear statement “Admiralty by Law as modified arose under 9(h) procedural to avoid voking Rule order spite USCApp 688.” In the Jones Act 46 later, problems that could otherwise arise assertion, language this majority’s of the dispute such as a over whether there should parties the not that wished does demonstrate or, here, a jury trial as over a whether admiralty as I to because invoke appeals has in- court of over an plaintiff bring can previously, a claims noted terlocutory appeal. it too Is much to ask Act or at under the either this plaintiff a be clear on fundamental below, Moreover, pre- I explain as the law. point? adoption my position The of would nothing about the trial order discloses disputes procedural mean that of the and Therefore, jurisdiction. of al- Foulks’ choice jurisdictional kind involved this pretrial in the though the statement order only. will of become historical interest by law as modified the mentions Moreover, in view of the rather limited size Act, my view this reference demon- bar, a the I am confident that nothing useful for the issue at hand. strates 9(h) specific rule to requiring reference is no reason to I that there assume reiterate widely would become known to interested “Admiralty Law as that a modi- case parties trap would not a for the and become is by Act” under the fied the Jones unwary particularly plain- plaintiff, because a 9(h) likely tiffs failure to invoke Rule to 14(c) Second, regard to the Rule mo- preserve a I right jury his or her to trial. tion, by should a defendant not con- actions however, repeat, applying that even the lib- question plaintiff a meant trol the case, majority eral utilized rule the this was, admiralty jurisdiction. It af- I in- would hold that the Foulks have not all, Donjon and ter not Foulks who voked the of the dis- to brought the Jones claim which the trict court. refers, pretrial the Foulks aban- order majority’s opinion, they Act claim when filed As a result of the doned their Jones problem they may complaint. their Foulks face a first amended recognize they have. complaints of what has invoked Both by examining pretrial preserved and final then- properly more is resolved order trial, jury pleadings plaintiff, presumably actions of not the for a demand Bryan, parties ready generally proceed were to on that basis. defendant. (“[T]he However, trial, prior Donjon application at 641 of mari- filed this joined, plaintiff’s appeal, time law claims is a matter in which Foulks in re- to a degree partial sponse about which a exercises district court’s control.”). defendant, by filing summary judgment. assuming jurisdic- In A third jurisdic- party complaint change interlocutory appeal, cannot the ma- over jority plaintiff’s complaint. tional that this case rests on the admi- basis for Con- finds result, ralty sidering of the court. As all of circumstances the case weight presumably any right have lost giving pleadings more Foulks Foulks, jury regarding actions of trial.1 Based on their consistent de- this evidence (1963) majority specifically 1. The L.Ed.2d 720 v. does reach this Haskins Co., (3d Cir.1968).” Towing question, stating this issue have Point 395 F.2d 737 instead will Opinion agree to be 260 n. I decided “at a later date” in reliance on the 7. While that such future, Fitzgerald legal precedent including "relevant will have to be made in the determination preordained Fitzgerald United and neither States Lines 83 S.Ct. result trial, Remick, Rinker, I believe that Santos, for a cannot David mands John Ste request. Schueller, Shallcross, intended to abandon that ven Gary the Foulks David Si circumstances, bel, joining George Spicer, the Foulks In the Umberger, Linda appeal may brought Waltman, have about a in this Duffy, Appel Thomas Ronald operation of classic the doctrine unintend- lants. consequences.

ed No. 97-1360. reasons, foregoing the interlocu- For tory should be for lack of dismissed States Appeals, United Court of Therefore, respectfully I dis- Third Circuit. sent.

Argued Dec. May Decided INGRAM; Reincke; John R. Gene Robert

Blanchard; Carlen; Lance D. Thomas J.

Cevasco; Cochran; James H. Ronald H.

Duffy; Gaittens; Gerald J. Salvatore

Gargiulo; Gorman; Michael R. Oliver Groman; Haverstock; R.

A. Charles Wi

ley Herring; Gary Killian; A. John A. MacKnik,

Kirkpatrick; Sr.; Theodore Milorey; Peak; Wayne T. Bernie

John

Posten; Barrington Ramsay; Mi G. Rinker; Remick; S.

chael David J. John Santos; Schueller; Stephen

P. R. David Shallcross; Gary Sibel; George

P. J. B. Tammy Swinesburg;

Spicer; Linda S.

Umberger; Waltman; Joseph Thomas J. White; Wilson,

A. Oliver Jr.

COUNTY OF BUCKS Blanchard, Cochran,

John James Salva Groman, Jr., Gargiulo, Gary

tore Oliver

Killian, Tammy Kirkpatrick, John

Swinesburg-Lall, MacKnik, Theodore

Sr., Milorey, Peak, Wayne John Bernie

Posten, Jr., Reinecke, Robert Michael preserve help Haskins we nor will the Foulks to their of the court. As jury Fitzgerald trial demand. Both Haskins pointed out in Haskins “the Jones Act has been brought involved Jones Act 'at law that claims permit negli- construed to claim for coupled been had with other claims. gence independent as an admi- be maintained Haskins, 395 F.2d at Because 739-41. ralty Id. at 741. Since action.” this case law, brought Act claim had been and not solely governed admiralty jurisdic- the court's admiralty, plaintiffs were entitled to re- non-admiralty an alternative ba- rather than issues, jury including ceive trial as to all Fitzgerald sis such as existed in However, pendent maritime 'this claims. case is Haskins, rely the Foulks cannot different, fundamentally majority because the has precedent demand a trial. determined that the Foulks’ arose under claims

Case Details

Case Name: Foulk v. Donjon Marine Co Inc

Court Name: Court of Appeals for the Third Circuit

Date Published: May 11, 1998

Citation: 144 F.3d 252

Docket Number: 97-5235, 97-5269

Court Abbreviation: 3rd Cir.