UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-30175
Summary Calendar
GENE RAGAS, husband of/and LUCINDA RAGAS; JONATHAN RAGAS,
husband of/and DEONA RAGAS; GEORGE RAGAS,
Plaintiffs-Appellants,
VERSUS
TENNESSEE GAS PIPELINE COMPANY, ET AL.,
Defendants,
KOCH GATEWAY PIPELINE COMPANY, formerly know as United Gas
Pipeline Company,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
March 13, 1998
Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.
PARKER, Circuit Judge:
Gene, Lucinda, Jonathan, Deona, and George Ragas (hereinafter
“Ragas”) appeal from the district court’s order granting Koch
Gateway Pipeline Company (hereinafter “Koch”) summary judgment and
the district court’s order denying Ragas’ motion to remand.
Finding no error, we affirm.
I. Motion to Remand
Ragas filed this action in state court on August 19, 1994,
seeking damages for personal injuries allegedly sustained when a
boat carrying two of the plaintiffs through a canal struck an
unmarked piling owned by the defendant, Tennessee Gas Pipeline
Company(hereinafter “Tenneco”). The defendants timely removed on
September 8, 1994, on the basis of diversity and admiralty
jurisdiction. The Ragas plaintiffs filed a motion to remand on
October 21, 1994, claiming that diversity of citizenship did not
exist because Tenneco’s principle place of business is in Louisiana
and claiming that they were planning to amend their complaint to
add another defendant who would defeat complete diversity. The
district court denied Ragas’ motion to remand on the ground that
the motion was untimely pursuant to 28 U.S.C. § 1447(c). The
district court further held that assuming that diversity was
lacking, the plaintiffs’ claims lie in admiralty and would invest
the court with federal question jurisdiction.
After removal, a motion to remand “on the basis of any defect
other than lack of subject matter jurisdiction” must be filed
within 30 days in order to be timely. 28 U.S.C. § 1447(c)(emphasis
added). Although, Ragas filed the motion to remand more than 30
days after the notice of removal was filed, the district court was
incorrect in finding that the motion to remand was untimely.
Ragas’ remand motion was based upon a purported lack of diversity
jurisdiction. Because Ragas’ challenge was to the subject matter
jurisdiction of this court, the motion to remand need not have been
made within 30 days.
This does not end our inquiry, however, because the
2
defendants’ notice of removal listed an alternative, albeit
erroneous, ground for removal jurisdiction -- federal question via
admiralty law. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116
(5th Cir. 1987) (en banc) (holding that although Jones Act case was
improperly removed under 28 U.S.C. § 1445(a), such defect in
removal can be waived if motion to remand is not timely filed).
Ragas never challenged removal on the basis of admiralty
jurisdiction. Once a procedural defect in the removal process has
been waived, the only question for the district court is whether it
“would have had jurisdiction of the case had it been filed in that
court.” Id. at 117. In this case the district court correctly
determined that it would have had original federal question
jurisdiction under admiralty law. In re Digicon Marine, Inc., 966
F.2d 158 (5th Cir. 1992).
Although not cited by either party, our decision in Williams
v. AC Spark Plugs Division of General Motors Corp., 985 F.2d 783
(5th Cir. 1993) speaks directly to the issue before the court today
and provides the governing rule:
If a plaintiff initially could have filed his action in
federal court, yet chose to file in state court, even if
a statutory provision prohibits the defendant from
removing the action and the defendant removes despite a
statutory proscription against such removal, the
plaintiff must object to the improper removal within
thirty days after the removal, or he waives his
objection. Only in the case of a lack of subject matter
jurisdiction--such as no diversity of citizenship, or the
absence of a federal question if that were the sole
ground for removal--may the plaintiff object to removal
after the thirty-day limit. Any other objection is
procedural and waived after thirty days.
Id. at 787.
3
We conclude that the district court had subject matter
jurisdiction.
II. Summary Judgment
A party is entitled to summary judgment if it can demonstrate
that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once a movant who
does not have the burden of proof at trial makes a properly
supported motion, the burden shifts to the nonmovant to show that
a summary judgment should not be granted. Id. at 321-25. A party
opposing such a summary judgment motion may not rest upon mere
allegations contained in the pleadings, but must set forth and
support by summary judgment evidence specific facts showing the
existence of a genuine issue for trial. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255-57 (1986). Summary judgment is not a
"disfavored procedural shortcut, but rather an integral part of the
Federal Rules as a whole, which are designed `to secure the just,
speedy and inexpensive determination of every action.'" Celotex,
477 U.S. at 327. When ruling on a motion for summary judgment,
"the inferences to be drawn from the underlying facts . . . must be
viewed in the light most favorable to the party opposing the
motion." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 587 (1986) (quoting United States v. Diebold, 369 U.S. 654,
655 (1962)); Hansen v. Continental Insur. Co., 940 F.2d 971, 975
(5th Cir. 1991).
Needless to say, unsubstantiated assertions are not competent
4
summary judgment evidence. Celotex, 477 U.S. at 324. The party
opposing summary judgment is required to identify specific evidence
in the record and to articulate the precise manner in which that
evidence supports his or her claim. See Forsyth v. Barr, 19 F.3d
1527, 1537 (5th Cir.), cert. denied, 115 S. Ct. 195 (1994). "Rule
56 does not impose upon the district court a duty to sift through
the record in search of evidence to support a party's opposition to
summary judgment." Skotak v. Tenneco Resins, Inc., 953 F.2d 909,
915-16 & n.7 (5th Cir.), cert. denied, 113 S. Ct. 98 (1992).
Ragas argues on appeal that the district court erroneously
granted summary judgment to all the defendants in the case. Ragas
spends less than two pages of the Appellants’ Brief making this
argument and focuses most of the attention upon the summary
judgment with respect to defendant Tenneco. However, Ragas’ notice
of appeal only appears to list defendant Koch as an appellee. With
respect to Koch, Ragas devotes one sentence of the brief to argue
that summary judgment was improvidently granted.1 Ragas’ argument
fails to persuade. Accordingly, the court finds that the district
court did not err in granting Koch summary judgment.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
1
Appellants’ brief states: “Furthermore, United’s successor
Koch Gateway admitted its pipeline runs between the pilings
identified by plaintiffs.” Appellants’ Brief, p.10.
5