UNITED STATES COURT OF APPEALS
For the 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,
VERSUS
ATLANTIC RICHFIELD COMPANY, ARCO OIL & GAS CORPORATION, ATLANTIC
RICHFIELD INDONESIA, INCORPORATED McDERMOTT,
INCORPORATED AND P.T. LEKOM MARAS,
Defendants-Appellees.
Appeals from the United States District Court
for the Southern District of Texas
(ON PETITION FOR REHEARING)
(Opinion January 29, 1993, 5th Cir., ________F.2d_______)
(April 26, 1993)
Before REYNALDO G. GARZA, HIGGINBOTHAM, AND EMILIO M. GARZA,
Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
We hereby deny petitioners' motion for rehearing. However,
due to some concerns that have been expressed, we withdraw our
prior opinion issued in this case, which was reported at Lackey
v. Atlantic Richfield, Nos. 92-2219, 92-2511, slip. op. 2479 (5th
Cir. Jan. 29, 1993). We now substitute the following opinion in
its place.
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 unremovable
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
2
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 brought
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
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.
3
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 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
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.
4
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 the 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
5
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
6
The appellants raise subtantive 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.
6
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 (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.
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
7
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
8
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. § 688 (the Jones Act)
incorporates the general provisions of the Federal Employer's
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, in determining whether a Jones Act claim has
been alleged our inquiry is usually 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).
That limitation on the scope of the inquiry, however, exists
only "in the absence of any issue of a fraudulent attempt to
evade removal." Preston, 375 F.2d at 440. Long before Preston,
it was settled that district courts may look beyond plaintiffs'
pleadings in order to determine whether a FELA claim had been
fraudulently asserted. See e.g., Boyle v. Chicago, R.I. & P.
Ry., 42 F.2d 633, 634-35 (8th Cir. 1930); Farmers' Bank & Trust
Co. v. Atchison, T. & S.F. Ry., 25 F.2d 23, 27 (8th Cir. 1928).
Preston echoed the FELA rule that removability is determined from
the face of the complaint "in the absence of fraud." See Porter
9
v. St. Louis-San Francisco Ry., 354 F.2d 840, 843 (5th Cir.
1966); Chacon v. Atchison, T. & S.F. Ry., 320 F.2d 331, 332 (10th
Cir. 1963).
Thus, while federal courts ordinarily look only to the
plaintiffs' pleadings in determining whether a Jones Act claim
has been stated, defendants may pierce the pleadings to show that
the Jones Act claim has been fraudulently pleaded to prevent
removal. The fact that Jones Act claims are ordinarily not
removable does not prevent this inquiry. Lawsuits in which non-
diverse defendants have been joined are ordinarily non-removable
as well. Nonetheless defendants are permitted to demonstrate
that parties--or claims--are baseless in law and in fact and
"serve[] only to frustrate federal jurisdiction." Dodd v.
Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir. 1964).
This right, however, exists in tension with the Jones Act
plaintiff's right to choose a state court forum. Defendants may
abuse the assertion of fraud in the hope of achieving a federal
adjudication of the merits of a disputable Jones Act claim. For
that reason, "the mere assertion of fraud is not sufficient to
warrant removing the case to federal court." Yawn v. Southern
Ry., 591 F.2d 312, 316 (5th Cir. 1979)(FELA case). Defendants
must prove that the allegations of the complaint were
fraudulently made, and any doubts should be resolved in favor of
the plaintiff. Id. As in fraudulent joinder cases, defendants'
burden of persuasion is a heavy one. The district court must
resolve disputed questions of fact from the pleadings and
10
affidavits in favor of the plaintiff. See B., Inc. v. Miller
Brewing Co., 663 F.2d 545 (5th Cir. 1981). The removing party
must show that there is no possibility that plaintiff would be
able to establish a cause of action. Id.
The defendants here contended that plaintiffs fraudulently
asserted a Jones Act claim. Defendants came forward with
affidavits establishing that Daughtry Sr. was hired by Lekom and
was not on any of their payrolls. In their amended complaint,
plaintiffs' allege that Daughtry Sr. was a borrowed servant of
defendants, subjecting them to liability under the Jones Act.
As amended, plaintiffs' complaint sets forth that: (i) Daughtry
Sr. was a seaman; (ii) Daughtry Sr. was injured in the course and
scope of his employment in violation of the Jones Act; and (iii)
Daughtry Sr. was a borrowed servant of the defendants. These
allegations suffice to state a Jones Act claim. See Addison, 744
F.2d at 498-99; see also Porter, 354 F.2d at 843.
In Porter, the court remanded a FELA claim based upon a
borrowed servant theory. Defendant Frisco maintained that
because plaintiff's complaint admitted his employment by Union,
it failed to state a claim against Frisco.8 The court rejected
this contention. In this case, defendants similarly attack the
Jones Act claim by demonstrating that Daughtry Sr. was employed
by Lekom. We are not persuaded, however, that defendants'
affidavits establish beyond dispute that no borrowed servant
8
Frisco maintained that the complaint failed to state a FELA
claim and did not assert fraudulent pleading.
11
employment relationship existed. Their evidence did not disprove
plaintiffs' theory of liability.
The fraudulent pleading inquiry is capable of summary
determination. Carriere v. Sears, Roebuck & Co., 893 F.2d 98,
100 (5th Cir. 100). We established a procedure for doing so in
Miller Brewing, 663 F.2d at 549-551. Although plaintiffs "may
submit affidavits and deposition transcripts along with the
factual allegations in the verified complaint," id. at 549, there
is no requirement that they do so. Moreover, this court
disapproved attempts to resolve factual disputes "where the
disputed factual issues relate to matters of substance." Id. at
551 n.14. "[J]urisdictional inquiry must not subsume substantive
determination." Id. at 550. The court must resolve all disputed
questions of fact from the pleadings and affidavits in favor of
the plaintiff, and then determine whether there could possibly be
a valid claim against the defendant in question.
Plaintiffs alleged that Daughtry Sr. was a borrowed servant
in the employ of the defendants. Plaintiffs were not required to
produce evidence proving that claim at this stage of the
litigation. The defendants failed to meet their burden of
demonstrating that the allegations were undisputedly false.
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, defendants have failed to
12
demonstrate that plaintiffs fraudulently pleaded a Jones Act
claim. Plaintiffs have sufficiently pleaded a Jones Act claim,
therefore this case must be remanded 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.
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