FRAUDULENT JOINDER OF DEFENDANT DOES NOT DESTROY DIVERSITY SO AS TO REQUIRE REMAND TO STATE COURT. FAILURE TO REQUEST REMAND AFTER JOINDER OF NON DIVERSE DEFENDANT WAIVES DEFECT IN REMOVAL JURISDICTION.
OTTILIE MORRIS, Individually and as Executrix of the Estate of Roy I. Morris, Plaintiff-Appellant, v. PRINCESS CRUISES, INC.; AMERICAN INTERNATIONAL ASSISTANCE SERVICE, INC.; NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; BERKELYCARE LIMITED; CRUISE CONSULTANTS, Defendants-Appellees.
No. 99-55092
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2001 U.S. App. LEXIS 318
OVERVIEW:
Plaintiff passenger sued defendants, cruise line and insurance companies, in state court, alleging various tort and contract claims arising out of events occurring during a cruise ship vacation. Defendants removed the action to federal court. The district court denied plaintiff’s motion to remand and granted summary judgment for defendants on all claims. On appeal the key issue was whether the district court properly acquired and retained removal jurisdiction over the action. The court held defendant cruise consultants’ joinder as a defendant was correctly ignored by the district court and removal was proper based on diversity of citizenship. The court concluded the district court’s removal jurisdiction was not destroyed by joinder of the non-diverse defendant insurers since plaintiff failed to seek remand of claims falling within the court’s admiralty jurisdiction. The district court properly granted defendants summary judgment on all claims because plaintiff failed to adduce any genuine dispute of material fact suggesting that defendants were liable for any legally cognizable injury she suffered.
OUTCOME:
Judgment affirmed because removal was initially proper based on diversity and plaintiff’s failure to move for remand upon joining the non-diverse defendants waived any possible objection to removal jurisdiction; additionally, summary judgment was proper because plaintiff failed to establish a legally cognizable claim against defendants.
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CARNIVAL CRUISE LINE FORUM SELECTION CLAUSE UPHELD.
MICHAEL GRIVESMAN, et al., Plaintiffs, vs. CARNIVAL CRUISE LINES, Defendants.
No. 00 C 2091
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
2001 U.S. Dist. LEXIS 661
January 24, 2001, Decided
January 25, 2001, Docketed
PROCEDURAL POSTURE:
Plaintiffs filed a pro se lawsuit against defendants, alleging breach of contract and negligence. Defendants moved to dismiss.
OVERVIEW:
Plaintiffs claimed that delays and poor service ruined the Caribbean vacation they took aboard a cruise ship operated by Defendants Corporation and president. Plaintiffs filed an admiralty action. Defendants argued that the complaint should be dismissed for improper venue. The court dismissed the action. The contracts attached to plaintiffs’ tickets contained a clear and conspicuous forum selection clause. The cover of the tickets included a statement in bold type and all capitals directing plaintiffs’ attention to the contract contained therein. Plaintiffs received the relevant information more than a month before the cruise was scheduled to begin, in time to cancel the trip with little penalty. Plaintiffs failed to show undue hardship. The expense and inconvenience of litigating the case in Florida were not enough to nullify the forum selection clause.
OUTCOME:
Motion to dismiss was granted, because the forum selection clause in plaintiffs’ cruise ticket contracts was valid and enforceable..
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SEAMAN’S RECEIPT OF DISABILITY UNDER COLLECTIVE BARGAINING AGREEMENT RATIFIES IT APPLICABILITY SO AS TO REQUIRE SUIT IN NORWAY OR POLAND.
ANDREZJ SAWICKI VERSUS K/S STAVANGER PRINCE AND ASSURANCEFORENINGEN SKULD
NO. 99-CA-1459
COURT OF APPEAL OF LOUISIANA, FOURTH CIRCUIT
99-1459 (La.App. 4 Cir, 12/27/00); 2000 La. App. LEXIS 3545
December 27, 2000, Decided
OVERVIEW:
Appellant was injured while working on a ship owned by defendant company. Following receipt of disability compensation pursuant to a collective bargaining agreement, appellant sued appellees, alleging Appellee Company committed an intentional or negligent tort in Louisiana. Appellant challenged the trial court’s decisions granting a continuance and partial summary to appellees and dismissing plaintiff’s suit. The court held the trial had not begun at the time appellees filed the motion for summary judgment, and the motion did not violate La. Code Civ. Proc. Ann. art. 966(D). Testimony by appellant was only for perpetuation purposes, and was not part of a formal trial. The court held the trial court properly enforced a forum selection clause in the collective bargaining agreement which specified either Norway or Poland as the forum for any suit. The collective bargaining agreement was incorporated into the employment contract signed by appellant. The court held that once appellant collected disability compensation under the collective bargaining agreement, he ratified the contract’s applicability.
OUTCOME:
The court affirmed the decision, because the trial had not begun when appellees filed the motion for summary judgment, and a forum selection clause contained in a collective bargaining agreement was valid, and stated the jurisdiction of any dispute was Norway or Poland.
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SHIPOWNERS DECISION TO PUT SEAMAN ASHORE FOR MEDICAL CARE COULD SUPPORT NEGLIGENCE CLAIM BUT NOT UNSEAWORTHINESS
WILLIAM T. WRIGHT, Plaintiff, -against- MAERSK LINE, LTD.,Defendant.
99 Civ. 11282 (LMM)(AJP)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 539
January 23, 2001, Decided; Nunc Pro Tunc, January 9, 2001
PROCEDURAL POSTURE:
Defendant moved for summary judgment of plaintiff seaman’s claims for negligence and seaworthiness.
OVERVIEW:
Plaintiff seaman sued defendant shipping line for negligence and unseaworthiness as a result of the decision to put plaintiff ashore on the island of St. Helena so that plaintiff could receive medical treatment. Plaintiff contended that that decision resulted in him receiving poor medical care, and being stranded on the island for a considerable amount of time. Defendant moved for summary judgment. The court granted the motion as to unseaworthiness, but denied it as to negligence. It held that there remained issues of material fact as to whether the decision to land plaintiff on the island was negligent, because of the paucity of the evidence, and the fact that the condition did not appear to be life threatening. The unseaworthiness claim failed because of the only complaint was over the decision to put plaintiff ashore and the decision could constitute negligence, but not seaworthiness.
OUTCOME:
Motion for summary judgment was granted in part and denied in part, where material issue of fact remained as to negligence, but acts of defendant clearly did not constitute unseaworthiness.
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SEAMAN’S SETTLEMENT MADE DURING 3 1/2 HOUR CONFERENCE WITH FEDERAL MAGISTRATE ENFORCED EVEN THOUGH SEAMAN BELIEVED HE HAD 48 HOURS TO REVOKE THE SETTLEMENT.
JOHN BLYTHE VERSUS TORCH, INC., ET AL
CIVIL ACTION NO. 00-498 SECTION “N”
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 595
January 12, 2001, Decided
January 12, 2001, Filed; January 16, 2001, Entered
PROCEDURAL POSTURE:
Defendant filed a motion to enforce a settlement agreement. Plaintiff seaman filed a motion to vacate the dismissal of his action.
OVERVIEW:
Plaintiff alleged that (1) he was pressured into signing the settlement agreement and (2) he believed the agreement was revocable within 48 hours. The settlement amount was reached during a conference before a federal magistrate judge. The court found that the negotiations were conducted at arms-length and in good faith. Plaintiff’s attorney did not advise him that the agreement was revocable, and at no time during the negotiations did plaintiff ask about the right to revoke or mention that he believed it existed. Accordingly, the court could not have found that plaintiff settled his claims with incompetent counsel or faulty legal advice. Because there was a three and a half hour settlement conference before a federal magistrate judge before the final agreement was prepared, the court could not have found that plaintiff was coerced into releasing his claims.
OUTCOME:
Defendant’s motion to enforce a settlement agreement was granted and plaintiff’s motion was denied; the negotiations were conducted at arms-length and in good faith, plaintiff did not settle his claims with incompetent counsel or faulty legal advice, and plaintiff was not coerced into releasing his claims.
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SUMMARY JUDGMENT GRANTED AS TO SEAMAN’S CLAIMS ARISING OUT OF CLAIMED HARASSMENT ON THE VESSEL.
VICTOR FRANCIS BARCLAY, Plaintiff, v. KEYSTONE SHIPPING COMPANY, Defendant.
CIVIL ACTION NO. 00-1572
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
2001 U.S. Dist. LEXIS 201
January 11, 2001, Decided
PROCEDURAL POSTURE:
After leaving a vessel before his marine contract expired, plaintiff seaman brought intentional tort claims, a claim for overtime pay under a marine contract, and defamation claims against defendant vessel operator. Defendant brought a counterclaim for breach of contract. Defendant moved for summary judgment on plaintiff’s claims.
OVERVIEW:
Plaintiff was not entitled to wages under 46 U.S.C.S. § 11106(a) as no investigation of his claims occurred and no consular officer ordered that he be paid additional wages or receive passage back to the United States. Summary judgment was granted on the intentional infliction of emotional distress claim because the alleged harassment by defendant’s employees did not amount to outrageousness conduct. Plaintiff was not falsely imprisoned as he was not prevented from leaving the vessel. Defendant was granted summary judgment on the invasion of privacy claims because the entry into plaintiff’s room by two ship officers was related to legitimate ship-board duties and the general derogatory statements that plaintiff identified were not directed at him. Since fact issues remained regarding unsafe vessel conditions, summary judgment was denied on the breach of contract claim. The defamation claims failed because defendant’s communications to the Coast Guard that plaintiff had deserted the vessel made in connection with an investigation were subject to conditional privilege, and plaintiff failed to produce any evidence that defendant abused the privilege.
OUTCOME:
Summary judgment was granted on claims of intentional infliction of emotional distress, false imprisonment, invasion of privacy, and defamation, as well as on claim for additional wages. Summary judgment was denied on breach of contract claim.
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JONES ACT AND FELA DO NOT ALLOW CLAIMS FOR FUTURE POSSIBLE BUT UNREALIZED INJURIES.
CEDRIC A. KENDRICK VERSUS ILLINOIS CENTRAL RAILROAD COMPANY
CIVIL ACTION NO: 99-3894 SECTION: “J”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 293
January 8, 2001, Decided
January 9, 2001, Filed; January 10, 2001, Entered
PROCEDURAL POSTURE:
Defendant moved for an order excluding any argument by the plaintiff or testimony by his physician that plaintiff might develop traumatic arthritis in the future in plaintiff’s Federal Employers’ Liability Act/ Jones Act case.
OVERVIEW:
In plaintiff’s Federal Employers’ Liability Act (FELA)/ Jones Act case, defendant sought to preclude an argument by the plaintiff or testimony from his physician that plaintiff might develop traumatic arthritis in the future. Plaintiff recognized that the general rule excluded such testimony, but argued that a different rule was applicable to FELA/ Jones Act cases and presented a case in support of that position. The court found plaintiff’s case law was distinguishable. In the case cited by plaintiff, the issue was not whether the plaintiff might have an injury in the future as a result of the trauma. Plaintiff’s physician said there was a possibility that the trauma to plaintiff would produce arthritis in the future, but that had not occurred. That statement was the only evidence that arthritis might develop. Standing alone it was insufficient to support a verdict that plaintiff would develop arthritis from the trauma. Plaintiff’s case did not change the general rule nor did it create a special rule in a FELA/ Jones Act case.
OUTCOME:
The court granted defendant’s motion, finding no special rule existed which would allow plaintiff to present evidence of future possible, but unrealized, injuries.
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WRONGFUL DEATH CASE DISMISSED SINCE VESSEL DID NOT COME TO THE UNITED STATES EVEN THOUGH VESSEL OWNERS BASE OF OPERATIONS WAS IN THE UNITED STATES AND VESSEL OWNER WAS A UNITED STATES CITIZEN.
ATMA SINGH, Plaintiff, -v- OMI CORPORATION et al.,Defendants.
00 Civ. 156 (JSR)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2001 U.S. Dist. LEXIS 86
January 8, 2001, Decided
January 10, 2001, Filed
PROCEDURAL POSTURE:
Plaintiff father of foreign citizen who was presumed drowned off the coast of a foreign country brought suit to recover damages on his claims of wrongful death, negligence, and unseaworthiness under the Jones Act, 46 U.S.C.S. § 688, and the Death on the High Seas Act, 46 U.S.C.S. § 761. Defendants vessel and owners moved to dismiss and for summary judgment.
OVERVIEW:
Defendants moved to dismiss plaintiff’s claims on the ground that plaintiff failed to show a sufficient nexus between his son’s death and the United States to give the court subject matter jurisdiction under with the Jones Act, 46 U.S.C.S. § 688, or the Death on the High Seas Act (DOHSA), 46 U.S.C.S. § 761. Applying the Lauritzen factors, the court concluded that only three factors supporting a connection to the United States, the United States supplied the law of the forum, and defendant vessel owner had its base of operations in the United States and was a United States citizen. However, the fact that the United States supplied the law of the forum was accorded little weight because defendants had involuntarily been made a party. The remaining factors were of no great moment given the unrefuted evidence that defendant vessel never called on ports in the United States during the period of plaintiff’s son’s employment. Accordingly, as there was no substantial contact between the transaction at issue and the United States, the court lacked subject matter jurisdiction under the Jones Act and the DOHSA.
OUTCOME:
Motion to dismiss was granted because there was no substantial contact between the transaction at issue and the United States.
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LAND BASED CONSTRUCTION WORK ON A DERRICK DID NOT SUPPORT JONES ACT SEAMAN STATUS. OTHER CLAIMS UNDER LONGSHORE HARBOR WORKERS ACT AND SIERACKI SEAMAN DOCTRINE REMAIN PENDING FURTHER BRIEFING.
WILLIAM CARRIER AND HIS WIFE, JENNIFER CARRIER VERSUS ENSCO INTERNATIONAL, INC., ENSCO OFFSHORE CORPORATION, ENSCO DRILLING CORPORATION,ENSCO MARINE CORPORATION AND JOHNSON BIG BUILDERS, INC.
CIVIL ACTION NO: 99-1030 SECTION: “R”(4)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 326
January 5, 2001, Decided
January 5, 2001, Filed; January 8, 2001, Entered
PROCEDURAL POSTURE:
Defendants moved the court to dismiss this Jones Act, 46 U.S.C.S. § 688, § 905(b) of the Longshore and Harbor’s Worker Act, 33 U.S.C.S. § 905(b), and Sieracki seaman doctrine case pursuant to Fed. R. Civ. P. 56 and to dismiss the case for lack of subject matter jurisdiction.overlapping federal statutes.
OVERVIEW:
Plaintiffs injured party and his wife began an action for injuries sustained while doing construction work on a derrick in Singapore. Plaintiffs sued defendants for negligence under the general maritime law, the Jones Act, 46 U.S.C.S. § 688, § 905(b) of the Longshore and Harbor’s Worker Act, 33 U.S.C.S. § 905(b), and the Sieracki seaman doctrine. Defendants moved to dismiss on summary judgment, arguing plaintiff injured party was not a seaman as defined under the acts. The court found plaintiffs did not submit any opposition to defendants’ contention that plaintiff injured party was not a seaman under the Jones Act. Further, defendants submitted evidence that plaintiff worked only sporadically over a period of eight months and that during this period he also worked for other rig builders. All of the work he performed in Singapore was on land. None of these facts supported a finding that plaintiff had the required attachment to a vessel or an identifiable fleet of vessels, to justify classifying him as a seaman. Thus, the court found plaintiff was not a “seaman” and dismissed plaintiffs’ Jones Act claim.
OUTCOME:
The court dismissed one claim, finding plaintiff injured failed to present evidence showing he was a seaman; the court deferred decision on the other claims pending further briefing.
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SEAMAN’S EMPLOYER ENTITLED TO COPY OF WITNESS STATEMENT OBTAINED BY SEAMAN’S ATTORNEY OF PLAINTIFF’S SUPERVISOR. PLAINTIFF PRECLUDED FROM TAKING FURTHER EXPARTE STATEMENTS.
ELISHA WOODARD VERSUS NABORS OFFSHORE CORPORATION
CIVIL ACTION NO. 00-2461 SECTION “N” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 177
January 4, 2001, Decided
January 4, 2001, Filed; January 5, 2001, Entered
PROCEDURAL POSTURE:
Plaintiff was allegedly employed by defendant on its offshore oil rig, was injured, and brought Jones Act claims. Plaintiff’s counsel hired a private investigator who contacted two of defendant’s employees, and took a statement from one. Defendant moved to compel production of the statement and for a protective order.
OVERVIEW:
Defendant first sought to compel plaintiff to produce the statement of an employee who gave an ex parte statement to plaintiff’s counsel. Second, relying on its counsel’s assertion that it would make its employees available to plaintiff for depositions, defendant sought a protective order prohibiting plaintiff’s counsel from any further ex parte contacts with its current employees. The court held that defendant’s motion to compel was governed by Fed. R. Civ. P. 26(b)(3). If the employee in question was defendant’s agent, then defendant, a party, was entitled to receive his statement. It appeared that defendant’s employee, who had supervisory authority over plaintiff, was defendant’s agent when the statement was taken. Addressing the motion for protective order, the court found that the employee who gave the statement was a “party” under La. State Bar art. XVI, R. 4.2, and thus plaintiff’s counsel could not contact him or employees like him without defendant’s consent or unless authorized by law. The court then concluded that 45 U.S.C.S. § 60 did not authorize an attorney to conduct ex parte interviews of an opponent’s employees under La. State Bar art. XVI, R. 4.2.
OUTCOME:
Defendant’s motion to compel production of its employee’s statement was granted. The employee’s statement was defendant’s statement and defendant was entitled to receive a copy of it upon request, with no further showing. Defendant’s motion for a protective order was granted as to employees who could be considered defendant’s agents.
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SHIPOWNERS ACTION FOR DECLARATORY DECREE IN FEDERAL COURT DISMISSED SO AS TO NOT DEPRIVE SEAMAN OF ABILITY TO PICK FORUM FOR JONES ACT, GENERAL MARITIME LAW, AND MAINTENANCE AND CURE CLAIMS.
IN THE MATTER OF THE COMPLAINT OF PRIDE OFFSHORE, INC. AS OWNER AND/OR OPERATOR OF THE PRIDE WYOMING FOR EXONERATION FROM OR LIMITATION OF LIABILITY AND DECLARATORY ACTION
CIVIL ACTION NO. 00-2489 SECTION “K”(3)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 150
January 3, 2001, Decided
January 5, 2001, Filed, Entered
PROCEDURAL POSTURE:
Plaintiff, owner of the vessel on which defendant was injured, sought a declaration exonerating it and denying defendant’s maintenance and cure claims. Before receiving summons, defendant filed a Jones Act, general maritime law, and maintenance and cure suit in state court. Defendant moved to dismiss plaintiff’s declaratory relief action.
OVERVIEW:
In seeking dismissal of plaintiff vessel owner’s declaratory judgment action, defendant injured employee argued that the action was being used as a tool to deprive him of the right to choose a forum, to litigate his Jones Act and maritime law claims, and to bring his action in state court. The court granted the motion. The pending state case provided an adequate forum for the fair adjudication of defendant’s injury claims against plaintiff. It appeared to the court that the declaratory judgment action was an attempt to obtain a federal forum for the claim, or forum shop. It was inequitable to allow plaintiff to control defendant’s litigation. Defendant had a right to litigate his maintenance and cure claim along with his Jones Act claim in front of a jury in the forum of his own choosing. Finally, judicial economy would be served by the dismissal of the declaratory judgment in that all but the exoneration/ limitation issues would be tried before one court.
OUTCOME:
Motion to dismiss granted because plaintiff’s declaratory judgment action was an attempt to forum shop, defendant had the right to litigate his maintenance and cure claim along with Jones Act claim before a jury in forum of his choosing, and judicial economy would be served.
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SEAMAN ENTITLED TO SEVER MAINTENANCE AND CURE CLAIM AND SEEK EXPEDITED TRIAL.
CARLOS MARTINEZ VERSUS EDISON CHOUEST OFFSHORE, INC.
CIVIL ACTION NO. 00-2930 SECTION “R” (2)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2001 U.S. Dist. LEXIS 126
January 2, 2001, Decided
January 2, 2001, Filed, Entered
PROCEDURAL POSTURE:
Plaintiff seaman moved to sever his maintenance and cure claims from his Jones Act claims and sought an expedited trial of those issues.
OVERVIEW:
Plaintiff seaman sought severance of his maintenance and cure claims from the rest of his complaint and for an expedited trial of those claims based on his doctor’s recommendation for surgery. Defendant opposed an expedited trial because it claimed that doubts existed whether plaintiff sustained a work-related injury and was entitled to maintenance and cure. While he could, plaintiff was not obligated to join his claim for maintenance and the other general maritime law claims with his Jones Act claim. Plaintiff was entitled to severance because he could either sue separately or, having filed one suit, ask for severance of the maintenance claim and an expedited trial by the court. Plaintiff had not asked for a jury trial, thus the entire matter would be heard by the court. The court also believed that hearing the claims separately might clarify the issues for the Jones Act trial, since if surgery were delayed, it would make the damages determination in the Jones Act case speculative.
OUTCOME:
Motion was granted to sever maintenance and cure claims from Jones Act claim, and to seek expedited trial on those claims because plaintiff was entitled to sue separately or, having filed one suit, to ask for severance of maintenance claims.
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VENUE IN JONES ACT SUIT IS PROPER WHEREVER COURT HAS JURISDICTION OVER THE DEFENDANT.
FRED T. RICHOUX, JR v. R & G SHRIMP CO. ET AL
CIVIL ACTION NO. G-00-299
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2000 U.S. Dist. LEXIS 18996
December 21, 2000, Decided
December 22, 2000, Entered
PROCEDURAL POSTURE:
In a Jones Act suit for injury to a deck hand while at sea, defendants moved to dismiss for improper venue or, in the alternative, to transfer venue.
OVERVIEW:
Plaintiff was injured while working as a deck hand off the coast. He brought suit under the Jones Act in that division closest to the accident. Defendants moved to dismiss for improper venue or, in the alternative, to transfer venue to another division within the same district. The motion to dismiss for improper venue was denied. The court rejected defendants’ argument that venue had to be the division in which plaintiff’s employer resided because it was based on a case decided under a repealed federal statute. Under admiralty law, venue was proper in any district where the court had jurisdiction over the defendant. In admiralty law, venue and personal jurisdiction analyses merged. The motion to transfer venue was denied. Defendants failed to demonstrate that transfer was necessary to serve the interests of justice or the convenience of the witnesses and parties. The court refused to disturb the forum selection made by the plaintiff.
OUTCOME:
The motion to dismiss was denied because under admiralty law, venue was in any district where the district court had jurisdiction over the defendants. The fact that defendants resided in another division of the district did not make the venue incorrect. The motion to transfer venue was denied because defendants failed to show that transfer was needed to serve the interests of justice or the convenience of the witnesses and parties.
