United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-41148
Summary Calendar
LAURA GONZALEZ,
Plaintiff-Appellee,
versus
WEEKS MARINE, INC. AND ATLANTIC SOUNDING CO. INC.,
Defendants-Appellants.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CV-434
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The plaintiff, Laura Gonzalez, sued the defendants in state
court under the Jones Act alleging that she was a seaman injured
while serving on a vessel. Generally, a proper Jones Act claim is
not removable to federal court. Lackey v. Atlantic Richfield Co.,
990 F.2d 202, 206-07 (5th Cir. 1993). The defendants removed,
alleging fraudulent pleading of the plaintiff’s Jones Act status.
The plaintiff filed a motion to remand, alleging that the boat on
which the plaintiff was working should be classified as a “vessel”
under the Jones Act, barring removal. The district court denied the
*
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this opinion should not be published and is not precedent except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 set forth in 5TH CIR. R. 47.5.4.
No. 05-41148
-2-
motion. Nearly one year later, the plaintiff filed a motion to
reconsider, making the same argument bolstered by intervening
Supreme Court case law. The district court reconsidered the motion
and granted it, remanding the case to state court.
The defendants raise two objections on appeal. First, they
contend that while the initial motion to remand was timely filed,
the motion to reconsider was a “second motion to remand” and fell
outside the thirty day filing requirement. See 28 U.S.C. § 1447
(c). This objection has no merit. The motion to reconsider alleged
the same basis for remand as the initial motion, and does not
constitute a “second motion.” In addition, the defendants have
waived this objection by failing to object below to the timeliness
of either the motion to remand or the motion to reconsider. See In
Re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992).
The second objection raised by the defendants is that the
plaintiff waived her objection to removal by actively participating
in the case after removal. See Johnson v. Odeco Oil & Gas Co., 864
F.2d 40 (5th Cir. 1989). However, the Johnson opinion makes clear
that this waiver can occur only when the plaintiff “fails to object
to the removal” of the action. Id. at 42. Because the plaintiff
timely objected here, this argument is unavailing. We therefore
AFFIRM.