Melinda Luera, a longshore worker, was injured while performing her job duties in the Port of Houston. Luera brought claims against two vessels, in rem, asserting admiralty jurisdiction. In the same complaint, Luera also brought claims against the owners and managers of those vessels, in personam, asserting diversity jurisdiction and demanding a jury trial. The district court, over the defendants’ objection, ordered that all of Luera’s claims, including her in rem admiralty claims, be tried together before a jury. The defendants appeal, arguing that Luera is not entitled to a jury trial because she has elected to proceed under the admiralty rules by virtue of the in rem claims in her complaint. We affirm the order of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
Melinda Luera was injured while working for Cooper/T. Smith Stevedoring Co., Inc. (“Cooper/T. Smith”) in the Port of Houston. Acсording to her complaint, Lu-era was working as a cargo checker on City Dock No. 23 on December 26, 2006, and performing stevedoring activities for the M/V VOC ROSE, which was moored to the dock. Luera alleges that the M/V ALBERTA passed the VOC ROSE in close proximity and at an excessive rate of speed, causing the VOC ROSE to surge. The surge in turn caused one of the mooring lines to rupture. The ruptured line struck Luera, and she suffered severe leg injuries.
Luera and Cooper/T. Smith sought to pursue claims for her injuries against
Luera immediately sought to intervene in Suit 1. Her intervention complaint alleged no basis for subject matter jurisdiction for her claims against the defendants; Luera simply adopted Cooper/T. Smith’s allegations, including the assertion of admiralty jurisdiction, in full. No activity occurred in Suit 1 for several months, and on August 7, 2007, the parties filed a joint motion to transfer venue for Suit 1 to the Southern District of Texas.
On August 6, 2007, Luera filed a secоnd complaint in the District Court for the Southern District of Texas (“Suit 2”) against Samos Shipping, in personam, and Reese Development, Inc., the alleged owner of the VOC ROSE, in personam. Lu-era asserted diversity jurisdiction under 28 U.S.C. § 1332 as the sole basis of subject matter jurisdiction. She also demanded a jury trial. On November 2, 2007, Luera initiated a third action in the District Court for the Southern District of Texas against the VOC ROSE, in rem (“Suit 3”), and, although Luera alleged no basis for jurisdiction, the case necessarily rested in the district court’s admiralty jurisdiction because the only claim was against a vessel. Luera then filed a motion to consolidate the three pending cases, and on November 12, 2007, the district court granted the motion and consolidated the three suits into the first-filed case.
Thereafter, the parties discovered that the ALBERTA was ownеd by White Dolphin Enterprises, Inc. (‘White Dolphin”), and that Samos Shipping was merely the manager. They also discovered that while Reese Development owned the VOC ROSE, it was managed by J.P. Samartzis Marine Enterprises Co., S.A. (“J.P. Samartzis”). White Dolphin was added to Suit 1 as owner of the ALBERTA, and White Dolphin, Samos Shipping, and the ALBERTA then used Federal Rule of Civ
Luera then filed a motion to amend her complaint in Suit 2 to add White Dolphin and J.P. Samartzis as
in personam
defendants, which the district court granted. In response to Luera’s motion to amend, Reese Development suggested that the district court should simplify the three consolidated cases by realigning the parties and unifying the pleadings under the court’s admirаlty jurisdiction. In its motion Reese Development also requested that the district court strike Luera’s jury demand in Suit 2. The district court initially granted Reese Development’s motion in full. Relying on our prior decisions in
T.N.T. Marine Service, Inc. v. Weaver Shipyards & Dry Docks, Inc.,
Luera moved the district court for reconsideration of its order denying her a jury trial. Following a hearing on the matter, the district court issued a new opinion, in which it concluded that Luera had preserved her Seventh Amendment right to a jury trial by pleading diversity as the sole basis, rather than an alternate basis, for the court’s jurisdiction over her claims against the in personam defendants in Suit 2. The district court reasoned that Luera’s single allegation regarding subject matter jurisdiction for her in personam claims distinguished this case from our prior decisions in T.N.T. Marine and Durden. The court unified the pleadings in the three suits and granted Luera leave to amend her complaint to clarify that the sole asserted basis for the court’s subject matter jurisdiction over the claims against all the in personam defendants was diversity jurisdiction.
As a result of the district court’s order, the parties were realigned as follows: Lu-era as the sole plaintiff; Cooper/T. Smith and American Equity as intervenors with subrogation rights; Samos Shipping, in personam; White Dolphin, in personam; the MW ALBERTA, in rem with White Dolphin appearing as registered owner under Rule E(8) of the Supplemental Rules for Federal Admiralty or Maritime Claims; Reese Development, in personam; J.P. Samartzis, in personam; and the MW VOC ROSE, in rem with Reese Development appearing as registered owner under Rule E(8).
Luera then filed an amended complaint against all six defendants. In a separate “Jurisdiction” section, she asserted that the district court “has jurisdiction over the in personam Defendants based solely upon diversity of citizenship, 28 U.S.C. § 1332” and that the court “has jurisdiction over the in rem Defendants based solely upon admiralty jurisdiction, 28 U.S.C. § 1333.” 4 She claimed damages “due to the negligence of each of the Defendants.”
II. LEAVE TO AMEND
We first address whether the district court erred in permitting Luera to amend her complaint. Prior to the unification of the pleadings, Luera had pleaded claims against Samos Shipping in Suit 1 under admiralty jurisdiction by intervening in that suit. In addition, J.P. Samartzis was brought into Suit 1 under admiralty jurisdiction. But Luera’s claims against all of the
in personam
defendants in Suit 2 were premised on diversity jurisdiction. Therefore, following unification of the pleadings, but before she amended her complaint, Luera had asserted claims against some of the defendants based on both admiralty jurisdiction and diversity jurisdiction. As we explain below, the import of the dual bases for the district court’s jurisdiction over these claims was that Luera may have elected under Rule 9(h) of the Federal Rules of Civil Procedure to proceed with all of her claims in admiralty, waiving her right to a jury trial.
See T.N.T. Marine Serv., Inc. v. Weaver Shipyards & Dry Docks, Inc.,
As a preliminary matter, Luera argues that we cannot review the district court’s decision granting her leave to amend her complaint because the issue was not сertified for interlocutory review. Luera correctly observes that neither the Appellants’ request for appeal nor the district court’s order certifying the case for review addressed Luera’s request to amend her complaint. However, this case is before us under 28 U.S.C. § 1292(b), which provides that a district court may certify an “order” for interlocutory appeal and that we may permit “an appeal to be taken from such order.” “Because § 1292(b) provides for review of an
order
rather than review of a particular
question,
we are not restricted to the questions specified by the district court but ‘may address any issue fairly included within the certified order.’ ”
Brabham v. A.G. Edwards & Sons, Inc.,
Appellants argue that they were prejudiced by the amendment because Luera “exploited” admiralty procedures before the amendment.
See Brotherhood Shipping Co., Ltd. v. St. Paul Fire & Marine Ins. Co.,
For those claims, only one unique admiralty procedure had been invoked before Luera amended her complaint. Prior to the unification of the pleadings, Appellants used Rule 14(c) in Suit 1 to tender J.P. Samartzis to Luera as a third-party defendant. Appellants were able to use this procedural device in Suit 1 because that suit was originally premised solely on admiralty jurisdiction. However, soon after Appellants tendered J.P. Samartzis to Lu-era under Rule 14(c), Luera amended her complaint in Suit 2 to add J.P. Samartzis as a defendant, thereby asserting her claims directly against J.P. Samartzis. Appellants therefore suffered no prejudice by the loss of this procedural device available only in admiralty. Because Appellants were not prejudiced by the amendment, we hold that the district court did not abuse its discretion in permitting Lu-era to amend her complaint and withdraw any Rule 9(h) election she may have made.
III. JURY TRIAL
Having decided that the district court did not err in permitting Luera to amend her complaint, we now consider whether a jury trial is unavailable in this case because Luera asserted in rem admiralty claims against two vessels in the same complaint as her in personam claims premised on diversity jurisdiction.
A. Rule 9(h) and the Admiralty Designation
We first provide some background regarding admiralty jurisdiction and procedures. The Constitution provides that the judicial power of the federal courts “shall extend ... to all Cases of admiralty and maritime Jurisdiction.” U.S. Const, art. Ill, § 2, cl. 1. Congress implementеd this constitutional grant through 28 U.S.C.
Under the “saving to suitors” clause in § 1333, a plaintiff whose claim does not fall within the exclusive admiralty jurisdiction of the federal courts may bring her claim “at law” in state court. The saving to suitors clause also allows a plaintiff to bring her claim “at law” under the federal court’s diversity jurisdiction, provided the requirements for diversity and amount in controversy are met.
Atl. & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd.,
When a plaintiffs claim is cognizable under admiralty jurisdiction and some other basis of federal jurisdiction, the Federal Rules of Civil Procedure allow the plaintiff to expressly designate her claim as being in admiralty. Rule 9(h) of the Federal Rules of Civil Procedure provides:
If a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82, and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.
“Numerous and important consequences” flow from a plaintiffs decision to file her claim under the federal court’s admiralty jurisdiction or its diversity jurisdiction.
T.N.T. Marine,
By the plain terms of Rule 9(h), a claim cognizable only under admiralty jurisdiction does not require a Rule 9(h) election because admiralty procedures will automatically apply to that claim. Although Rule 9(h) appears to require an affirmative statement from the plaintiff to invoke the admiralty rules for claims cognizable under admiralty and some other basis of jurisdiction, we have held that the mere assertion of admiralty jurisdiction as a
Similarly, in
Durden v. Exxon Corp.,
the plaintiff, an injured seaman, filed an action against a vessel
in rem
and against its owners
in personam,
asserting that “the [cjourt is vested with jurisdiction of this matter pursuant to the provisions of Title 28 Section 1332 of the United States Code
and/or
the General Maritime Law of the United States.”
Following these cases, in this circuit a plaintiff who asserts admiralty jurisdiction as a bаsis for the court’s subject matter jurisdiction over a claim has automatically elected under Rule 9(h) to proceed under the admiralty rules, even if she states that her claim is also cognizable under diversity or some other basis of federal subject matter jurisdiction. However, we have not addressed the specific issue presented in this case, which is whether the plaintiff automatically makes a Rule 9(h) election to proceed under the admiralty rules when she specifically asserts only diversity jurisdiction for one claim in the same complaint as a separate claim cognizable only under admiralty jurisdiction.
B. Luera’s Rule 9(h) Election
After amendment, Luera’s complaint stated six distinct claims: She asserted negligence claims against both the VOC ROSE and the ALBERTA
in rem,
which are exclusively within the district court’s admiralty jurisdiction. Luera also asserted negligence claims against Reese Development, J.P. Samartzis, White Dolphin, and Samos Shipping,
in personam,
based on the court’s diversity jurisdiction. Because Luera may only proceed
in rem
against the vessels by invoking federal admiralty jurisdiction, she necessarily made a Rule 9(h) election to proceed under the admiralty rules for her
in rem
claims.
See
Fed.R.CivP. 9(h)(1) (“A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim for those purposes, whether or not so designated.”). Luera is clear, however, that she does not wish to make a Rule 9(h) election to proceed under the admiralty rules for her negligence claims against the
in personam
defendants. Therefore, we must determine whether Luera nevertheless
Appellants argue that this case is controlled by our prior decisions in
Durden
and
T.N.T. Marine.
According to Appellants, these cases establish that when a plaintiff asserts alternative or dual bases of subject matter jurisdiction in a complaint, and one of those bases is admiralty jurisdiction, the plaintiff automatically makes a Rule 9(h) election to proceed in admiralty for the entire case. However, this case is readily distinguishable from
Durden
and
T.N.T. Marine.
In those cases, the plaintiffs had asserted both admiralty and diversity subject matter jurisdiction for
the same claim. Durden,
Appellants urge that the mere presence of in rem claim amounts to a 9(h) electiоn for the remainder of her claims under Durden and T.N.T. Marine. However, by its plain language, Rule 9(h) applies to “claims” and not to entire cases. Fed. R.CrvP. 9(h)(1) (“If a claim for relief is within the admiralty or maritime jurisdiction ..., the pleading may designate the claim as an admiralty or maritime claim.” (emphases added)). Additionally, “[a] single case can include both admiralty or maritime claims and nonadmiralty claims or parties.” Id., Advisory Committee Note (1997 Amendment). Luera clearly expressed her intent that her claims against the in personam defendants are premised on the district court’s diversity jurisdiction, rather than its admiralty jurisdiction, and we therefore hold that Lu-era did not make a Rule 9(h) election to proceed under the admiralty rules for those claims.
C. Consolidation and the Right to a Jury Trial
Although Luera did not make a Rule 9(h) election to proceed under the admiralty rules for her claims against the in personam defendants, the question remains whether her assertion of in rem admiralty claims in the same complaint nevertheless precludes a jury trial on her in personam claims. We conclude that the mere presence of admiralty claims in the same complaint as claims premised on diversity jurisdiction does not preclude a jury trial.
Appellants argue that we are foreclosed by our prior decisions in
T.N.T. Marine
and
Durden
from allowing a jury trial in this case. Other courts and commentators have construed these decisions as creating
We agree with the district court in this case that such a reading of our prior cases is too broad. Although the court in Durden and T.N.T. Marine did rely on the existence of an in rem claim in the complaint as a reason for holding that a jury trial was unwarranted, the plaintiffs inclusion of an in rem claim was important only in the factual scenario presented in those cases. Because the plaintiffs in those cases had pleaded alternative bases of jurisdiction for their in personam claims, it was somewhat ambiguous whether the plaintiffs had made a Rule 9(h) election to pursue their in personam claims in admiralty, and we used the in rem claim as an indicator that the plaintiffs wanted to pursue all of their claims in admiralty. If the inclusion of the in rem claims was automatically fatal to a plaintiffs jury trial demand, there would have been no need for the court to consider the asserted bases for jurisdiction or the language used by the plaintiffs in their complaints. These cases are therefore best read as creating a rule regarding a plaintiffs Rule 9(h) election and not a complete prohibition on a jury trial where an in rem admiralty claim is asserted in the same complaint as a claim that would otherwise carry a right to a jury trial.
This case is instead controlled by the Supreme Court’s decision in
Fitzgerald v. United States Lines Co.,
The Supreme Court held that it was error for the district court to dismiss the jury because all of the claims ought to have been tried together to the same fact finder.
Id.
at 21,
The Court’s decision did not rest on any right of the plaintiff to have his admiralty claims tried by a jury:
While this Court has held that the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them. Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases.
Id.
at 20,
All of the circuits that have addressed the issue have concluded that, under
Fitzgerald,
admiralty claims may be tried to a jury when the parties are entitled to a jury trial on the non-admiralty claims. Most recently, in
Ghotra v. Bandila Shipping, Inc.,
the Ninth Circuit faced precisely the same issue we consider today.
Despite this compelling authority, Appellants contend
Fitzgerald
does not apply to this case for several reasons. First, Appellants claim that the Federal Rules of Civil Procedure, unified with the admiralty rules in 1966, prohibit jury trials for all admiralty claims, and that
Fitzgerald
did not survive the unification of the rules. We find dubious any contention that
Fitzgerald
is no longer good law because we, like many other courts, have continued to apply
Fitzgerald
after the unification of the rules.
Daniel v. Ergon, Inc.,
Appellants nonetheless argue that the unified federal rules essentially provide them a
right
to a bench trial for admiralty claims. Rule 38(e) explains that the unified rules “do not create a right to a jury trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).” The Advisory Committee Notes to the 1966 amendment of Rule 9 similarly state, “It is no part of the purpose of unification to inject a right to jury trial into those admiralty cases in which that right is not provided by statute.” Appellants are correct that the unification of the civil and admiralty rules “was intended to work no change in the general rule that admiralty
Indeed, the unified rules specifically contemplate hybrid proceedings such as the one in this case by providing that admiralty and non-admiralty claims can be brought together in the same action. Rule 20(a)(2) provides, “Persons — as well as a vessel, cargo, or other property subject to admiralty process in rem — may be joined in one action as defendants.” Appellants’ аrgument would require us to construe a plaintiffs joinder of admiralty and non-admiralty claims under Rule 20 as an implied waiver of her right to a jury trial. To be sure, Luera could have waived her Seventh Amendment right to a jury by pleading her
in personam
claims under the district court’s admiralty jurisdiction,
see T.N.T. Marine,
Moreover, where such claims are not joined under Rule 20 but brought in separate suits, Rule 42(a) provides district courts with broad authority to consolidate actions that “involve a common question of law or fact.” We find it persuasive that Luera could, and at the outset she did, bring her
in rem
and
in personam
claims in separate actions. With the claims pending in separate actions, there is no question that Luera was entitled to a jury trial on her
in personam
claims. We see no reason why consolidation of those claims with the
in rem
admiralty claims into a single action should change the result.
See Ghotra,
Second, Appellants attempt to distinguish
Fitzgerald
from this case on the basis that the Court permitted a jury trial for the unseaworthiness and maintenance and cure claims in
Fitzgerald
because those claims, though brought in admiralty, could have been brought at law. Unlike the admiralty claims in
Fitzgerald,
the
in rem
admiralty claims in this case are within the exclusive admiralty jurisdiction of the federal courts.
See T.N.T. Marine,
Finally, Appellants assert that the rule in
Fitzgerald
applies only in the context of Jones Act claims and should not be extended to cover the claims at issue in this case. This argument is premised on a supposed distinction between a statutory right to a jury trial and a constitutional right to a jury trial. Any distinction between a right to a jury in a Jones Act case and a right to a jury in a common law case is without a difference.
See Atl. & Gulf Stevedores,
Furthermore, claims against a vessel in rem fall exclusively under the federal court’s admiralty jurisdiction. Plaintiffs asserting in rem claims against vessels have no choice but to elect to proceed under the admiralty rules for those claims. Under Appellants’ theory, a plaintiff in Luera’s position would be left with a Hob-son’s choice: she could either plead her in personam claims together with her in rem claims but waive her right to a jury trial, or she could preserve her right to a jury trial by pleading her in personam claims only and forgo a legally cognizable in rem claim. Plaintiffs should not be required to make such a choice when a third option remains — upholding the constitutional guarantee of a jury trial for the in person-am claims.
The district court concluded that Lu-era’s
in personam
claims, premised on diversity jurisdiction and subject to a timely jury demand, must be tried to a jury. The court was left with two options: try the case partially to the jury and partially to the bench, or try the entire case to the jury. As the district court recognized,
Fitzgerald
counsels that when one of a plaintiffs claims carries with it the right to a jury trial, the remaining claims, though premised on admiralty jurisdiction, may also be tried to a jury “when both arise out of one set of facts.”
To be clear, we do not hold today that a plaintiff bringing an
in rem
admiralty claim, or any other claim brought under admiralty jurisdiction, has a
right
to a jury trial. No statute, rule, or constitutional provision confers such a right. But neither does any statute, rule, or constitutional provision provide Appellants with a
right
to a bench trial. The practice of trying admiralty claims to the bench is simply one of custom and tradition. That tradition cannot trump Luera’s constitutional right to a jury trial for her non-admiralty claims, and “the non-jury component of admiralty jurisdiction must give way to the [S]eventh [A]mendment.”
Ghotra,
IV. CONCLUSION
For the forgoing reasons, we AFFIRM the order of the district court.
Notes
. It is a “long-standing admiralty fiction that a vessel may be assumed to be a person for the purpose of filing a lawsuit and enforcing a judgment.”
Continental Grain Co. v. The Barge FBL-585,
. “A traditional letter of undertaking provides that, in consideration of the vessel not being seized and released on bond, the vessel owner will file a claim to the vessel and pay any judgment rendered against the vessel even if the vessel itself is subsequently lost.”
Panaconti Shipping Co.,
S.A. v.
M/V Ypapanti,
. The benefit of Rule 14(c), available only for admiralty claims, is that the original plaintiff is “forced to assert his clаims directly against the third-party defendant,” whereas third-party practice under Rule 14(a) "does not automatically establish a direct relationship between [the] plaintiff and the third-party defendant.” 6 Charles Alan Wright et al., Federal Practice and Procedure § 1465 (3d ed.2010).
. Because § 1332 and § 1333 involve subject matter jurisdiction, rather than personal jurisdiction, we construe Luera’s statements as asserting that the district court has jurisdiction over the claims against the defendants.
. Cooper/T. Smith and American Equity, who were originally parties to this appeal, also settled their claims with Luera and have been dismissed from the appeal.
. The Ninth Circuit contemplated that the right to a jury trial might be limited in certain circumstances. The court noted that the plaintiffs had not "changed their mind[s] as to the jurisdictional basis in thе midst of litigation.”
Ghotra,
. Part of the Fourth Circuit’s holding in
Vodusek
is directly contrary to our holding in
Powell v. Offshore Navigation, Inc.,
. Appellants insist that Luera is not constitutionally entitled to a jury trial because the "saving to suitors” clause in § 1333 is not triggered for her in rem claims. But the clause is triggered for Luera's in personam claims, and she exercised the clause by bringing her claims in diversity rather than in admiralty. We are not willing to turn a blind eye to Luera's right to a jury trial under the saving to suitors clause for her in personam claims simply because the joined in rem claims do not fall within the clause.