Russell v. Jack Jackson Inc

*Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
United States Court of Appeals
Fifth Circuit
F I L E D
July 18, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-31036
Summary Calendar
DANNY RUSSELL, individually and on behalf
of his minor children, Danny Russell, Jr. and
Tavia Danielle Russell,
Plaintiff-Appellant,
versus
JACK JACKSON, INC., ET AL.,
Defendants,
JACK JACKSON, INC.,
Defendant-Appellee.
Appeal from the United States District Court for
the Eastern District of Louisiana
(USDC No. 01-CV-2742)
_______________________________________________________
Before REAVLEY, SMITH and STEWART, Circuit Judges.
PER CURIAM:*

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set forth in 5TH CIR. R. 47.5.4.
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We dismiss this interlocutory appeal for want of jurisdiction.
1. In order for 28 U.S.C. § 1292(a)(3) to create appellate jurisdiction, the
plaintiff must have brought his claim in admiralty. See id. § 1292(a)(3)
(“Interlocutory decrees of such district courts or the judges thereof
determining the rights and liabilities of the parties to admiralty cases in which
appeals from final decrees are allowed.”). There are special procedures for
invoking the admiralty jurisdiction of a federal district court. See FED. R.
CIV. P. 9(h). In this case, Russell did not plead the admiralty statute, 28
U.S.C. § 1333, as a jurisdictional ground. He relied instead on the district
court’s federal question jurisdiction over Jones Act claims. See 28 U.S.C. §
1331; 46 U.S.C. § 688 et seq. (Jones Act). “Emphatically, claims in
admiralty, whether designated in rem or in personam, do not fall within this
category.” In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991) (citing Romero v.
Int’l Terminal Operating Co., 358 U.S. 354, 378 (1959) (finding it “clear that
the words of [the ‘arising under’] statute do not extend, and could not
reasonably be interpreted to extend, to cases of admiralty and maritime
jurisdiction”)). Moreover, Russell demanded a jury trial. Generally, merely

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requesting a jury trial does not change an admiralty claim, identified as such,
to a non-admiralty claim. In such cases the district court should simply deny
the request. See Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir. 1989)
(citing T.N.T. Marine Servs., Inc. v. Weaver Shipyards & Dry Docks, Inc.,
702 F.2d 585 (5th Cir. 1983)). However, as the complaint contains no
statement signaling Russell’s intent to bring his claims in admiralty under
Federal Rule of Civil Procedure 9(h), his request for a trial by jury suggests
that he did not intend to invoke the admiralty jurisdiction of the district court.
See Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133 (5th Cir.
1985) (dismissing claims under the Jones Act and general maritime law for
want of jurisdiction where the seaman’s complaint “prayed for trial by jury, []
did not invoke admiralty jurisdiction and made no reference to Fed.R.Civ.P.
9(h)”) (citing Moser v. Texas Trailer Corp., 623 F.2d 1006 (5th Cir. 1980)).
In fact, the pretrial order setting the initial trial date for the maintenance and
cure claim specifically stated the trial was to be “before the District Judge
with a jury.” Although the maintenance and cure claim was rescheduled and
was eventually heard by the district judge without a jury, the initial pretrial
order buttresses our conclusion that Russell did not intend to invoke the
admiralty jurisdiction of the district court.

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2. Russell’s proposed and contested findings of fact and conclusions of law and
his trial memorandum asserted jurisdiction pursuant to 28 U.S.C. § 1333.
However, he also referenced the court’s federal question jurisdiction and he
did not state that he intended to proceed in admiralty. This is insufficient to
invoke the court’s admiralty jurisdiction under Federal Rule of Civil
Procedure 9(h). An allegation that a claim is within admiralty and maritime
jurisdiction does not automatically make it an admiralty and maritime claim if
the claim is also within the jurisdiction of the district court on some other
ground. There must be a statement evincing the pleader’s intent to proceed in
admiralty. See FED. R. CIV. P. 9 Advisory Commitee’s Note (“After
unification [of suits at law and equity] has abolished the distinction between
civil actions and suits in admiralty, the complaint in such an action would be
almost completely ambiguous as to the pleader’s intentions regarding the
procedure invoked. . . . [T]he Advisory Committee concluded the preferable
solution is to allow the pleader who now has the power to determine
procedural consequences by filing a suit in admiralty to exercise that power
under unification . . . by a simple statement in his pleading to the effect that
the claim is an admiralty or maritime claim.”).
3. A plaintiff need not specifically invoke the admiralty jurisdiction of the

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district court if the claim is cognizable only in admiralty. See FED. R. CIV. P.
9(h). Russell’s claim for maintenance and cure is not only cognizable in
admiralty, as the district court has pendent jurisdiction under the Jones Act to
consider such claims. See Romero, 358 U.S. at 380-81(holding that the
district court had pendent jurisdiction to consider maintenance and cure
claims brought “by a complaint at law rather than by a libel in admiralty”
because the complaint also alleged a Jones Act violation, which was within
the district court's jurisdiction under 28 U.S.C. § 1331). Thus, we construe
Russell’s complaint as failing to invoke the admiralty jurisdiction of the
district court and therefore precluding review of this appeal pursuant to 28
U.S.C. § 1292(a)(3).
APPEAL DISMISSED.

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