United States Court of Appeals,
Fifth Circuit.
Nos. 92–2219, 92–2511.
Sherry LACKEY, William Daughtry, Jr., and the Estate of William Daughtry, Sr., By and
Through the Administrator Thomas Henderson, Plaintiffs–Appellants,
v.
ATLANTIC RICHFIELD COMPANY, Arco Oil & Gas Corporation, Atlantic Richfield
Indonesia, Incorporated McDermott, Incorporated and P.T. Lekom Maras, Defendants–Appellees.
Jan. 4, 1993.
Appeals from the United States District Court for the Southern District of Texas.
Before REYNALDO G. GARZA, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Plaintiffs-appellants brought suit in state court alleging violations of the Jones Act, maritime
law, and Texas law. The defendants-appellees removed the case to federal court. Once in federal
court, the plaintiffs moved for the case to be remanded back to state court on the ground that it was
an unremo vable Jones Act case. The district court denied the plaintiffs request and then granted
summary judgment for the defendants on the merits. We find that the district court improperly
retained jurisdiction over the case because Jones Act claims are non-removable. Therefore, we
REVERSE and REMAND to the district court with directions that the entire case should in turn be
remanded back to state court.
I. FACTS
This case arises out of the death of William Daughtry, Sr. ("Daughtry"). Daughtry died of
heart attack aboard a derrick barge in Indonesian waters. Allegedly, Daughtry had been working
continuously for a period of thirty two hours prior to his death.
Daughtry was hired by Lekom Maras ("Lekom") to work as an inspector. At the time of his
death, Daughtry was aboard the DB–26, which was owned by Hydro Marine Services. Hydro
contracted the barge to another entity, who in turn chartered the barge to P.T. McDermott Indonesia.
At the time of Daughtry's death the barge was operated by McDermott Indonesia.
The contractual agreement between Daughtry and Lekom was executed in Indonesia. It
contemplated that Daughtry would work aboard the DB–26 on projects contracted by ARCO and
ARII.1 The substance of Daughtry's allegations are that he was forced to work excessive hours,
which caused his heart attack. Further, Daughtry has named numerous corporate defendants in the
action contending that he was a "borrowed servant."
II. PROCEEDINGS
In September of 1991, appellants brought suit against Lekom and four other corporations.
The four corporations named in the original complaint were ARCO, ARII, AROG,2 and McDermott
Incorporated (the parent).3 Subsequently, appellants named McDermott Indonesia in their amended
complaint.4 Two suits were originally commenced in state court alleging claims under the Jones Act,
maritime law, and Texas law. The suits were bro ught by both of the decedent's children Sherry
Lackey and William Daughtry, Jr. The two suits were then removed to federal court and
consolidated.
On November 26, 1991, the district court notified the parties that a Rule 16 hearing would
be held on December 9, 1991. The plaintiffs made a motion to remand the case back to state court
at the December 9th hearing. The plaintiffs contended that the Jones Act precluded the original
removal from state court. See 28 U.S.C. § 1445(a). Judge Hughes denied the plaintiffs' request for
remand.5 During the course of the hearing Judge Hughes took the plaintiffs to task for naming
AROG, McDermott (the parent), and ARCO. The plaintiffs argued that they were going to pursue
1
ARII is Atlantic Richfield Indonesia, Inc.
2
AROG is Atlantic Richfield Oil & Gas.
3
In an amended complaint filed after consolidation the plaintiffs dropped AROG and named
McDermott Indonesia.
4
McDermott Indonesia and Lekom were never served and therefore they never entered
appearances.
5
Judge Hughes stated:
I am going to deny the motion to remand ... but at the moment we need to
perceive the substance of the claims against the people who are properly here.
a "borrowed servant theory."
It was at the December 9th hearing that Judge Hughes told the plaintiffs that he would give
them until December 20th to amend the complaint, which they failed to do. Further, he told them
"the hypothetical possibility that ARCO ... might have done something that showed they exercised
control over somebody that might have been an employer is not enough to keep them in the lawsuit.
But on January 10th I will take up that question of who to eliminate and who to keep in...."
The plaintiffs failed to circulate their amended complaint until January 13, 1992, the day of
the second hearing. In their amended complaint, the plaintiffs dropped AROG and added McDermott
Indonesia. At the hearing Judge Hughes reprimanded the plaintiffs because of their dilatory
circulation of the amended complaint. The plaintiffs had said at the first hearing that they were going
to contact the decedent's coworkers in order to ascertain information they needed to support their
borrowed servant theory. The court then dismissed the claims against ARCO and McDermott
because the plaintiffs had failed to adequately support their borrowed servant theory. The final order
dismissing plaintiffs' motion to set aside the judgment was entered on March 2, 1992.
Subsequently, the plaintiffs filed this appeal. On March 5, 1992 they filed their original notice
of appeal. The plaintiffs headed their appeal with the two styles from each of the cases that were
consolidated. In the first style they named "Sherry Lackey et. al." as the plaintiff, and in the second
they named "William Daughtery" [sic] as t he plaintiff. In each style the plaintiffs named "Atlantic
Richfield et. al." as the defendants. Further, in the body of the notice of appeal it stated that
"plaintiffs" were appealing.
On April 8, 1992, The Fifth Circuit directed the parties to brief whether or not the plaintiffs
had perfected an appeal. On April 14, 1992, the plaintiffs responded with a Fed.R.App.P. 4(a)(5)
motion seeking to correct their original notice of appeal. The defendants objected, contending that
the plaintiffs had failed to demonstrate excusable neglect. Eventually, on May 28, 1992, the district
court granted the plaintiffs' 4(a)(5) motion.
III. DISCUSSION
On appeal, the plaintiffs-appellants contend that the case is a non-removable Jones Act case.
Therefore, the removal from state court was improper, the district court's retention of the case was
improper and, thus, all of the actions taken by the district court were a nullity. The defendants
counter-argue that the notice of appeal did not properly invoke appellate jurisdiction because: (i) all
of the parties were not named in the original notice of appeal; and (ii) the district court abused its
discretion by allowing appellants to amend their notice of appeal without sufficiently showing
excusable neglect. Although, there were other points of error raised on appeal, because each of these
issues are dispositive we need not pursue those additional points.6
Whether the notice of appeal is sufficient to invoke appellate jurisdiction?
The defendants argue that the original notice of appeal did not sufficiently invoke appellate
jurisdiction because: (i) it failed to list all of the appealing parties individually in the original notice
of appeal;7 and (ii) the district court abused its discretion when it allowed the appellants to file an
amended notice of appeal. The plaintiffs counter, arguing that: (i) the original notice of appeal was
sufficient to invoke appellate jurisdiction because both parties were named; and (ii) the district court
properly granted the extension to file an amended notice of appeal. We find that the trial judge did
not abuse his discretion in granting an extension to the appellants, allowing them to file an amended
notice of appeal; therefore, we properly have jurisdiction over all of the parties herein.
The failure of the appellants to list the parties individually in their original notice of appeal
was undeniably insufficient. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 314, 108 S.Ct.
2405, 2407, 101 L.Ed.2d 285 (1988). In Torres the plaintiffs named fifteen out of sixteen plaintiffs,
but omitted the sixteenth party by clerical error. Id. at 317; 108 S.Ct. at 2409. The Supreme Court
held that the failure to name the 16th party was insufficient to invoke appellate jurisdiction as to that
party. Id.
6
The appellants raise substantive contentions that go to the merits of the summary judgment;
however, we need not address the merits of the summary judgment because we find that the
district court did not have jurisdiction to entertain these claims.
7
The defendants contend that Sherry Lackey is the only party entitled to appellate jurisdiction
because she is the only party named in the notice of appeal. While William Daughtery [sic] is
named on the notice of appeal his name is misspelled and it does not specify whether he is Jr. or
Sr.
The plaintiffs in Torres also attempted to argue that the designation of "et. al." remedied their
omission. Id. at 317–18; 108 S.Ct. at 2409. The court flatly rejected this contention noting that the
phrase "et. al." does not provide the requisite notice required by Fed.R.App.P. Rule 3(c). Id.; see
also Delancey v. State Farm Mut. Auto. Ins., 918 F.2d 491, 493 (5th Cir.1990) (use of "et. al."
insufficient); Morales v. Pan Am. Life Ins. Co., 914 F.2d 83, 85 (5th Cir.1990) (same). Further,
extensive authority exists for the proposition that naming "plaintiffs" in the body of a notice of appeal
is insufficient. See, e.g., Samaad v. City of Dallas, 922 F.2d 216, 219 (5th Cir.1991).
The defendants seem to argue that failure to name the defendants individually also precludes
appellate jurisdiction as to them. This argument is entirely incorrect because only appealing parties
must be listed individually. See Fed.R.App.P. 3(c) (the notice of appeal need only "specify the party
or parties taking appeal").
The defendants then contend that the Rule 4(a)(5) motion, which permitted the plaintiffs an
extension to file an amended notice of appeal, was improvidently granted because the plaintiffs did
not establish excusable neglect. We will not disturb the district court's decision to grant a Rule
4(a)(5) motion unless there has been an abuse of discretion. See, e.g., Matter of Missionary Baptist
Found. of Am., 792 F.2d 502, 507 (5th Cir.1986).
The defendants argue that the district court abused its discretion because the plaintiffs do not
point to any excusable neglect, other than inadvertence, and the case law requires something more.
The plaintiffs did file a timely notice of appeal in this case. Although, the original notice of appeal
was insufficient to invoke appellate jurisdiction they sought to remedy that defect via the Rule 4(a)(5)
motion. The district judge could have properly found that the defendants were not prejudiced by the
extension because they were already on notice, within the prescribed time period, that the plaintiffs
were waging an appeal. Furthermore, the Rule 4(a)(5) motion was not made long after the original
defective notice of appeal was filed. We cannot conclude that the district judge abused his discretion
and, thus, all of the plaintiffs are properly before us.
Did the district court err in retaining this case because it was improperly removed from state
court?
The appellants-plaintiffs contend that the case should not have been removed from state court
because it was a Jones Act case. It is axiomatic that Jones Act suits may not be removed from state
court because 46 U.S.C.App. § 688 (the Jones Act) incorporates the general provisions of the Federal
Employers' Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal. See, e.g.,
Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc) ("Lirette II"); Addison
v. Gulf Coast Contracting Servs., Inc., 744 F.2d 494, 498 n. 3 (5th Cir.1984). Further, the plaintiffs
correctly assert that in determining whether a Jones Act claim has been alleged our inquiry is limited
to a review of the plaintiffs' pleadings. See Addison, 744 F.2d at 498; Preston v. Grant Advertising,
Inc., 375 F.2d 439, 440 (1967) (per curiam).
The defendants launch a two pronged attack on the plaintiffs position in this regard: (i) the
district court may pierce the pleadings in order to weed out fraudulent assertions of Jones Act claims;
and (ii) the plaintiffs have not properly pleaded a Jones Act claim.8 In support of their argument, the
defendants rely principally on Preston, which they argue empowers the district court to look beyond
the pleadings to determine if a Jones Act claim is fraudulently pleaded in order to evade removal.
The defendants' reliance on Preston is misplaced. The Preston court did permit removal
despite the fact the plaintiff contended in its second motion to remand that its claim was predicated
on the Jones Act. See Preston, 375 F.2d at 440. However, the court based its decision on the fact
that the plaintiff's "complaint fail[ed] to allege sufficient facts to support a cause of action under the
Jones Act." Id. at 440–41. Further, the court noted that the plaintiff raised its Jones Act allegation
for the first time in the motion to remand. Id. at 440. Consequently, the court's statement that "Jones
Act [cases] are nonremovable ... in the absence of any issue of a fraudulent attempt to evade removal"
cannot be read without the court's explicit requirement that we are limited to a review of the
pleadings. Id. The Preston court's reference to fraud emanated from the plaintiff's baseless motion
to remand not the plaintiff's complaint. See id.
The defendants also assert that fraudulent joinder cases in this circuit require the district court
8
The defendants also contend that under a choice of law analysis foreign law applies and, thus,
necessarily precludes application of the Jones Act. We reject this contention because the facts of
this case require a choice of law analysis that would force us to inquire beyond the pleadings.
Under the authority of Addison and Preston we must limit our inquiry solely to the pleadings.
to pierce the pleadings and weed out fraudulent or baseless claims in a plaintiff's petition. See, e.g.,
LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992). These fraudulent joinder cases conflict
the with clearly established directive of Addison and Preston that the district court is limited to a
review of the pleadings.
Therefore, because our inquiry is limited to a review of the pleadings, we must determine
whether a Jones Act claim was properly pleaded. The appellant's pleadings set forth the following
allegations: (i) Daughtry Sr. was a seaman; (ii) Daughtry Sr. was injured in the course and scope
of his employment; and (iii) Daughtry Sr. was a borrowed servant of the defendants. These
allegations are sufficient to trigger non-removability because they allege a Jones Act claim on their
face. See Addison, 744 F.2d at 498–99. The district court should have pursued its inquiry only to
this point. Upon removal, once a federal court determines that a Jones Act claim is alleged it no
longer has jurisdiction, and it must remand the case back to state court.
IV. CONCLUSION
The district court did not abuse its discretion when it granted the plaintiffs an extension to
amend their original timely notice of appeal. Thus, we have appellate jurisdiction over all of the
plaintiffs. Moreover, when ascertaining the existence of a Jones Act claim for purposes of
non-removability the district court is limited to a review of the pleadings. Had the court below
properly scanned the pleadings, it would have determined that a Jones Act case was properly pleaded
and remanded the case back to state court. Therefore, we REVERSE the district court and
REMAND to the district court, which should in turn remand the case back to state court where it
belongs.