Terry P. Murphy, Stephen A. Murphy v. Florida Keys Electric Cooperative Assn., Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR TH E ELEV ENTH C IRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 09, 2003
THOMAS K. KAHN
No. 02-11574
CLERK
________________________
D. C. Docket No. 01-10009-CV-SH

TER RY P . MU RPH Y,
STE VEN A. M URP HY, a s co-per sonal
representatives of the Estate of Brendan
M. M urphy, a nd as pa rents and natural
guardia ns of S teven A . Murp hy, Jr., a m inor,

Plaintiffs ,

versus

FLO RIDA KEY S EL ECT RIC C OOP ERA TIVE ASS OCIA TION ,
INC.,

Defendant-Third-Party-Plaintiff-
Coun ter-Def endant- Appe llant,

versus

RAY MOND A SHM AN, I II,
Individ ually and as paren t and natu ral guard ian,
of Raym ond A shman , IV, a m inor child ,

Third-Party-Defendant- Counter-
Claiman t-App ellee,

STE VEN A. M URP HY, S R., et al.,

Third- Party-D efendan ts.
 ________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(May 9, 2003)

Before BIRCH, CARNES and BRUNETTI*, Circuit Judges.

CARNE S, Circuit Judge:

The issue in this appeal is whether the defendant in an admiralty tort1 action

who settles with the plaintiff without obtaining a release from liability for other

potential defendants can then be entitled to contribution from them toward the

amoun t it paid to se ttle its own liability. Pu tting the S uprem e Cour t’s decision in

McDermott, Inc. v. AmClyde, 511 U .S. 202 , 114 S . Ct. 146 1 (199 4), togeth er with

our decision in Jovovich v. Desco Marine, Inc., 809 F.2d 1529 (11th Cir. 1987),

we con clude tha t a settling d efendan t cannot b ring a su it for con tribution against a

nonsettling defendant who was not released from liability to the plaintiff by the

settlemen t agreem ent.

*
Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
1
We use the term “admiralty tort” in the first part of this opinion to mean a tort asserted
under a federal court’s admiralty jurisdiction. Later in the opinion, we use the term “maritime
tort,” which is a species of tort which can be brought under a federal court’s admiralty
jurisdiction, although it need not be.

2
 That is the simple bottom line of our decision, and it is a result that makes

good sense, but how our circuit law has gotten to that point is anything but simple.

Instead o f follow ing a straig ht path o ur decisio ns on co ntributio n in adm iralty

cases having lurched back and forth like a drunken sailor. After we set out the

facts and proced ural histo ry, we w ill explain th e propo rtionate sh are appr oach to

apportio ning liab ility amon g joint tor tfeasors a nd wh y contrib ution is n ot availab le

from nonsettling tortfeasors under that approach, and then explain why we

conclude that our Jovovich decision is once again good law. There is also an issue

in this case about the district court’s dismissal of a counterclaim brought under the

supplemental jurisdiction of the court, which we will take care of at the end of the

opinion .

The facts leading up to these legal issues began shortly after midnight on

July 25, 2000, when Raymond Ashman IV and two of his friends went out in a

boat owned by his father, Raymond Ashman III, to enjoy the start of the annual

“Sports men’s L obster M ini-Seas on.” Ra ymond Ashm an IV w as piloting the boat.

His two friends along for the ride were Brendan and Steven Murphy who w ere

brothers. The trio’s trip ended in tragedy soon after it began when the boat

collided with an “electrical pole abutment support structure” owned by Florida

Keys Electric Co-op Association, Inc. Brendan Murphy was thrown from the boat

3
and killed , and his b rother S teven w as injured . Raymond A shman IV w as also

injured.

Brendan and Steven’s parents, the Murphys, sued Florida Keys in federal

district court for the wrongful death of B rendan and for Steven ’s injuries.2 Their

complaint invoked the court’s admiralty jurisdiction. The Murphys did not sue any

member of the Ashman family, and still have not done so. In response to the

Murp hy’s com plaint aga inst it, how ever, Flo rida Ke ys filed a th ird-party

complaint against the Ashmans3 which also invo ked the d istrict cour t’s admira lty

jurisdictio n. Florid a Keys c laimed th at, if it were found liable to the Murp hys, it

was entitled to contribution from the Ashmans. The Ashmans, for their part, filed

a counterclaim against Florida Keys to recover for Raymond IV’s injuries, but

they brought that as a civil action under the district court’s supplemental

jurisdictio n, not un der its adm iralty jurisd iction. Th ey later bro ught a se parate su it

against Florida Keys in state court to recover for R aymond IV’s injuries.

2
The Murphys sued as parents and natural guardians of Steven, a minor, and as co-
personal representatives of the estate of Brendan.
3
Florida Keys’ third-party complaint is against Raymond Ashman III, the father of
Raymond Ashman IV, individually, and also in his capacity as parent and natural guardian of his
son. Our references hereafter in this opinion to “the Ashmans” mean Raymond III, individually,
and Raymond IV through him as parent and natural guardian.

4
 While all of the actions were pending, Florida Keys settled with the

Murphys. The settlement agreement, however, did not release the Ashmans from

liability to the Murphys, should the Mu rphys ever bring suit against them. As a

result, the A shman s move d for su mmary judgm ent on F lorida K eys’ third p arty

contribution claim, taking the position that Florida Keys’ failure to obtain a release

for them as part of the settlement agreement barred it from seeking contribution

from them. The district court agreed and granted the Ashmans’ motion for

summary judgment. The court also exercised its discretionary powers under 28

U.S.C. § 1367(c)(3 ) and dismiss ed withou t prejudice the A shman’ counter claim

against Florida Keys. Florida Keys appeals both the grant of summary judgment

on its contribution claim against the Ashmans and the dismissal without prejudice

of their co unterclaim against it. 4

DISCUSSION

4
Of course, parties ordinarily do not complain about the dismissal of a claim or
counterclaim against them, but the dismissal without prejudice allowed the Ashmans to pursue
their claim against Florida Keys in state court. Florida Keys’ apparent motivation in appealing
the dismissal is its preference for a federal court forum.

5
 In 1994 the Supreme Court settled decades of debate over the proper method

of appo rtioning liability betw een settling and no nsettling to rtfeasors in admir alty

cases by h olding th at the “pro portion ate share a pproac h” applie s. See McD ermott,

511 U.S. at 217, 114 S. Ct. at 1470. Under the proportionate share approach

adopted in McD ermott, if at least one defendant does not settle with the plaintiff

and the c ase goes to trial, the am ount of damag es and th e percen tage of liab ility

attributable to each tortfeasor is determined at trial, and any nonsettling defendant

is responsible for only the proportion of the total damages attributed to it in the

verdict. Id. at 208-13, 114 S. Ct. at 1465-67. We must decide, under the

proportionate share approach, whether Florida Keys is now entitled to have

determined at trial the actual amount of the Mur phys’ damages and the parties’

relative degrees of fault, all for the purpose of Florida Keys recovering from the

Ashm ans any a moun t that it “over paid” fo r its share o f the dam ages in its

settlement with the Murphys.

Allowing Florida K eys to recover contribution from the A shmans in these

circumstances is incompatible with the proportionate share approach. An essential

tenet of this approach is that when a tortfeasor settles a claim against it, but does

not obta in a release for the o ther tortfe asors, it ha s settled on ly its prop ortionate

share of the total damages, no more and no less. It follows that what remains, and

6
all that remains, to be calculated is the compensation the nonsettling tortfeasors

owe the plaintiff. Once that amount is determined at trial, the nonsettling

tortfeasors are liable only to the plaintiff and only to the extent the trial verdict

determines. Their trial-determined liability is in no way affected by a settling

defend ant’s neg otiated liab ility. See id. at 220, 114 S. Ct. at 1471 (“[O]ne of the

virtues of the proportionate share rule is that, unlike the pro tanto rule, it does not

make a litigating defendant’s liability dependent on the amount of a settlement

negotiate d by oth ers with out rega rd to its inte rests.”).

Applying the propo rtionate share approach to this case, Florida Keys

resolved through the settlement only the amount of damages it owed to the

Murphys. The settlement determined between those two parties the amount of

damag es the M urphys suffered and Flo rida Ke ys’ percen tage of fa ult. Ther e is

nothing about the issue of how much Florida K eys should have paid the M urphys

that is to be litigated between Florida Keys and the Ashmans, because under the

proportionate share approach it does not matter to the Ashmans how much Florida

Keys sh ould ha ve paid th e Mur phys to d ischarge its liability to them. Th at is

Florida Keys’ b usiness, n ot a matter of conc ern for th e Ashm ans.

To come at the same thing an other way, when F lorida Keys and the M urphys

negotiated their settlement, they each assumed the risk of misjudging what a trial

7
would determine to be the amount of damage the Murphys had suffered and the

proportion of the liability for that damage that should be attributed to Florida K eys

instead of the Ashmans. 5 The Ashmans, who were not a party to the settlement

assumed no such risk, preferring instead to risk whatever verdict the Mu rphys

might obtain against them, perhaps discounted by the hope or expectation that the

Murphys would not sue them. If the Murphys got more from settling with Florida

Keys than they would have recovered from taking Florida Keys to trial, that does

not lessen the poten tial liability of th e Ashm ans. See McD ermott, at 219-20, 114 S.

Ct. at 147 1 (“[A]n y excess r ecovery is entirely attr ibutable to the fact tha t the . . .

defend ants may have made an u nwise s ettlement. . . . I t seems to us that a

plaintiff’s good fortune in striking a favorable bargain with one defendant gives

other defendants no claim to pay less than their proportionate share of the total

loss.”). Likewise, if the Murphys got less from Florida Keys than they would have

recover ed by trial, th at does n ot increas e the pote ntial liability o f the As hmans .

See id. at 221, 114 S. Ct. at 1472 (“Just as the other defendants are not entitled to a

5
Because of the multiple factors that must be taken into account when making settlement
decisions, and because predicting the result of trials is not an exact science by any means, the
settlement figure will rarely match what a trial would have determined to be actual damages
owed the plaintiff by the settling defendant. See McDermott, 511 U.S. at 219-20, 114 S. Ct. at
1471 (“Because settlement amounts are based on rough estimates of liability, anticipated savings
in litigation costs, and a host of other factors, they will rarely match exactly the amounts a trier
of fact would have set.”); Leger v. Drilling Well Control, Inc., 592 F.2d 1246, 1250 n.10 (5th
Cir. 1979) (“[S]ettlement dollars cannot be equated with dollars obtained in the trial process.”).

8
reduction in liability when the plaintiff negotiates a generous settlement . . . so they

are not required to shoulder disproportionate liability when the plaintiff negotiates

a meager one.”) No suit for contribution will lie against a nonsettling defendant

who is not releas ed from liability, beca use that d efendan t remains liable for its

proportionate share of damages regardless of the terms of the settlement the other

defend ant mad e. Id. at 209, 1 14 S. C t. at 1466 .

There a re two w ays to loo k at wh at Florid a Keys is seeking to do, an d both

are telling. O ne way is that Florida Keys is seeking to escape the bargain it struck

with the Murphys about the extent of its liability, trying to litigate with the

Ashmans the issue of how much it should have paid the Murphys and then recover

from the Ashmans any excess it did pay. That will not do, because the Ashmans

are not responsible for the bargain Florida Keys struck with the Murphys. The

other way to look at Florida Keys’ position is that it is seeking to recover from the

Ashmans the amount of the settlement it paid to the Murphys that is attributable to

the Ash mans’ liab ility. That w ill not do e ither, beca use non e of the se ttlement is

attributab le to the A shman s’ liability, w hich w as not rele ased in w hole or p art. We

hold Florida Keys to its bargain: it paid for a discharge of its liability to the

Murp hys, and that is all it go t.

9
 We ha ve reach ed the ide ntical con clusion o nce befo re. See Jovovich v.

Desco Marine, Inc., 809 F .2d 152 9, 1531 (11th C ir. 1987 ) (unde r the pro portion ate

share approach contribution actions are n ot available to settling parties because

“settling pa rties assum e the finality and po tential ben efit and ris k of their

settlement decision, and . . . we will respect the aleatory nature of the settlement

process” (internal quotation marks omitted)). We are bound to follow the Jovovich

decision , see, e.g., United States v. S mith, 201 F.3d 1317, 1322 (11th Cir. 2000)

(“It is the firmly established rule of this Circuit that each succeeding panel is bound

by the holding of the first panel to address an issue of law, unless and until that

holding is overruled en banc, or by the Supreme Court.” (internal quotation marks

omitted)), with which w e are in full agreement, anyway.

Florida Keys says that we should not adhere to Jovovich, but should instead

follow the later decision in Great L akes D redge & Dock Co. v. T anker R obert W att

Miller, 957 F.2d 1575 (11th Cir. 1992) (“Great Lakes III”).6 That de cision he ld

that settling defendants may sue nonsettling, unreleased defendants for

contribu tion, id. at 1584, which is exactly the opposite result from the one reached

6
The Great Lakes litigation has come before this Court four times: Ebanks v. Great Lakes
Dredge & Dock Co., 688 F.2d 716 (11th Cir. 1982) (“Great Lakes I”); Self v. Great Lakes
Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1987) (“Great Lakes II”); Great Lakes Dredge &
Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575 (11th Cir. 1992) (“Great Lakes III”);
Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 92 F.3d 1102 (11th Cir. 1996)
(“Great Lakes IV”).

10
five years earlier in Jovovich. A tour of the tor tured pa th of ou r decision s in this

area is necessary to understand wh y Great Lakes III did not follow Jovovich and

why w e do.

Our predecessor circuit first confronted the overarching issue of the proper

way to apportion liability between settling and nonsettling tortfeasors in adm iralty

cases in Loffland Brothers Co. v. Huckabee, 373 F.2d 528 (5th Cir. 1967), and

Billiot v. Stewart Seacraft, Inc., 382 F.2d 662 (5th Cir. 1967). In those two cases

the Fifth Circuit determined that a nonsettling defendant is liable for the entire

amount of the plaintiff’s damages, less a set-off for the amount of the other

tortfeasors’ settlement, regardless of the proportion of the plaintiff’s damages

attributab le to each to rtfeasor. Billiot, 382 F .2d at 66 4; Loffland, 373 F .2d at 52 8.

That m ethod, o f course , is the pro tanto app roach. McD ermott, 511 U.S. at 211-13,

212 n.14, 114 S. Ct. at 1467 & n.14.

Twelve years later, though, the Fifth Circuit overruled Loffland and Billiot

and held that the pr oportio nate shar e appro ach app lied to adm iralty tort cas es.

Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir. 1979). The

overruling was based on the intervening Supreme Court decision in United States

v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708 (1975). In Reliable Transfer

11
the Supreme Court had abandoned the “divided damages rule,” which mandated

that the parties at fault in admiralty cases each be liable for an equal portion of the

damages regardless of their degrees of fault. For example, if the plaintiff was 25%

at fault and the defen dant 75 % at fau lt, each w ould ne vertheles s be liable f or half

of the tota l damag es. Id. at 397, 95 S. Ct. at 1709. In place of the divided damages

approach, the Supreme Court in Reliable Transfer adopted the rule that each

tortfeaso r is respo nsible fo r the pro portion of dam ages attrib utable to it. Id. at 411,

95 S. C t. at 1715 -16.

The Suprem e Court’s Reliable Transfer decision did not in volve m ultiple

defend ants, one of wh om had settled w ith the plain tiff. Non etheless, the Fifth

Circuit concluded in Leger that the rule adopted in Reliable Transfer undermined

the pro tanto approach the circuit had been following to such a n extent th at it

overruled Loffland and Billiot and adopted the proportionate share approach

instead. Leger, 592 F.2d at 1249 (“[T]he [Supreme] Court seems to have

answered the question by holding that, where the plaintiff and the defendant in a

maritime collision case are both partly responsible for an accident, ‘liability for

such damage is to be allocated among the parties proportionately to the

comparative degree of their fault . . . .’”).

12
 The proportionate share approach from Leger became part of th e law of this

circuit with this Court’s decision in Bonner v. City of Prichard, 661 F.2d 1206,

1207 (11th Cir. 1981) (adopting as binding precedent Fifth Circuit decisions issued

prior to the close of business on September 30, 1981). In 1987 this Court decided

Jovovich, which confronted the precise issue we face in this case and held that

under the proportionate share approach adopted in Leger a settling defendant

cannot sue a nonsettling defendant whose liability to the plaintiff is not resolved by

the settlement under either an indemnification or contribution theory. The

Jovovich Court r easoned that Leger’s holding that “settling parties assume the

finality and potential benefit and risk of their settlement decision, and whether the

plaintiff o r any of th e defend ants are u ltimately fo und to h ave mad e a favor able

settlement, we will respect the aleatory nature of the settlement process” applies

with equal force in indemnity or con tribution actions. 809 F.2d at 1531. A s a

result, a settling defendant must live with its bargain and cannot sue a nonsettling

one for indemn ity or con tribution . Id.

Shortly after Jovovich was released, however, this Court swerved back the

other way, concluding in Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540

(11th Cir. 1987) (“Great Lakes II”), that the Supreme Court’s decision in

13
Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753

(1979), dictated a different result. The Great Lakes II Court held that, given the

Supreme Court’s guidance in Edmonds, the pro tanto approach was actually the

approach that the Supreme Court would apply to apportion liability between

settling and nonsettling defendants, and so that approach should once again be the

law of th is circuit. Great Lakes II, 832 F.2d at 1548 (“As we are bound by the

Supreme Court’s guidance and the rule in Edmonds, we ado pt the [pr o tanto

approa ch].”).

Then came Great Lakes III in 1992 , which held that under th e pro tan to

approach adopted in Great Lakes II, a suit for contribution against a nonsettling,

unreleased defendant is available to a settling defendant, even though under

Jovovich such a su it is not ava ilable und er the pro portion ate share a pproac h. Great

Lakes III, 957 F .2d at 15 83. In so holding , Great Lakes III departed from th e well-

settled law of most jurisdictions that settling defendants may not bring a

contribution action against nonsettling, unreleased defendants, regardless of which

liability-app ortionm ent schem e is in place . McD ermott, 511 U.S. at 211 n.13, 114

S. Ct. at 1467 n.13 (“[T]he law of most jurisdictions [is] that a settling defendant

ordinarily has no right of contribution against other defendants.” (citing Unif.

14
Contribution Among Tortfeasors Act § 1(d), 12 U.L.A. 63 (1975); Unif.

Comparative Fault Act § 4(b), 12 U.L.A. 54 (1993 Supp.); Restatement (Second)

of Torts § 886A(2) & cmt. f, pp. 337, 339 (1977))).

In 1994 the Supreme Court resolved the issue of how liability between

settling and nonsettling tortfeasors in admiralty cases should be apportioned,

rejecting th e pro tan to appro ach in fav or of the propo rtionate sh are appr oach. See

McD ermott, 511 U.S. at 209-21, 114 S. Ct. at 1466-72. The McD ermott decision

authoritatively settled the dispute between our Leger and Great Lakes II decisions

about w hich app roach th e Supr eme Co urt favo red. It estab lished tha t Great Lakes

II was w rong to conclud e that Leger had been o verruled by th e Suprem e Court’s

decision in Edmonds. We recognized this in our 1996 decision in Great Lakes

Dredge & Dock C o. v. Tanker Robert Watt Miller, 92 F.3d 1102 (11th Cir. 1996)

(“Great Lakes IV”), which announced our return to the proportionate share

approach in obedience to the S upreme Court’s McD ermott decision. Id. at 1106.

We also held in Great Lakes IV, again in obedience to McD ermott, that under the

proportionate share approach a nonsettling defendant cannot sue a settling

defend ant for co ntributio n, the con verse of the issue w e face in th is case. Id. at

1106-07

15
 Now this circuit (along with the rest of the country) is operating under the

propo rtionate sh are appr oach in a dmiralty to rt cases, see McD ermott, 511 U.S. at

217, 11 4 S. Ct. a t 1470; Great Lakes IV, 92 F.3d at 1106-07, and sixteen years ago

we decided in the Jovovich case that under the proportionate share approach a

settling de fendan t may no t sue a no nsettling, u nreleased defend ant for co ntributio n.

Jovovich, 809 F .2d at 15 30-32 . It follow s that Jovovich controls, and Florida Keys

may not bring a suit for contribution against the Ashmans. However winding the

path to the present state of the law, once we g et here the equation is as simple as:

McD ermott and Great Lakes IV plus Jovovich equals settling defendants cannot

sue non settling, un released d efendan ts for con tribution in admir alty tort case s.

Great Lakes III is no longer relevant, at least not in admiralty tort cases. It

address ed noth ing othe r than co ntributio n rights u nder a p ro tanto a pproac h to

apportioning liability. The pro tanto approach to apportioning liability is no longer

the law in admiralty tort cases. See Smith v. GTE Corp., 236 F.3d 1292, 1303 n.11

(11th Cir. 2001) (“Subsequent panels are not bound by prior decisions where there

has been a change in the controlling law as a result of a subsequent en banc or

Supreme Court decision or statutory change.”). The question Great Lakes III

answered is no longer the question that arises in admiralty tort cases since the

Supreme Co urt’s McD ermott decision .

16
 Florida Keys says that the conclusion we reach will present parties who

wish to settle with a Catch 22: either obtain a release for all parties and have

contribution precluded by McD ermott’s rule barring contribution from settling

parties, 511 U.S. at 209, 114 S. Ct. at 1466, or do not obtain a release and have

contribution precluded by our holding in Jovovich and this c ase. Tha t specter is

based on a misreading of McD ermott. That decision’s prohibition against

contribu tion from a settling p arty does no t preclud e a contrib ution su it against a

tortfeasor who is released by the settlement even thou gh not a party to it. A release

is not the s ame as a s ettlement, a nd a relea sed party is not a settlin g party w ithin

the meaning of McD ermott, which does not purport to eliminate altogether the

“well-established maritime rule allowing contribution between joint tortfeasors.”

Cooper Stevedoring Co. v. Frizt Kopke, Inc., 417 U.S. 106, 113, 94 S. Ct. 2174,

2178 (1974). Neither does our holding today. In any event, dilemma or no, we are

bound to follow the McD ermott/Great Lakes IV/Jovovich decision s.

One other issue remains to be decided. In addition to granting summary

judgment in favor of the Ashmans on Florida Keys’ contribution claim, the district

court dismissed without prejudice the A shmans’ counterclaim against Florida K eys

under 28 U.S .C. § 1367(c). That suited the A shmans fine, but Florida K eys,

apparently preferring to stay in federal court, argues that the Ashm ans’

17
counterclaim c ould only h ave been pr operly asserted u nder the district co urt’s

admiralty jurisdiction, not its supplemental jurisdiction, and therefore dismissal

under § 1367(c) w as an abuse of discretion. We d isagree with the initial premise

of that arg ument.

The Ashmans originally could have brought their maritime tort claim against

Florida Keys in one of two ways. They could have sued in state court, a right

guaranteed them by the “savings to suitors” clause of 28 U.S.C. § 1333, or they

could h ave sued in federa l court by invokin g the distr ict court’s a dmiralty

jurisdiction.7 See, e.g., Cont’l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d

1340, 1344 (5th Cir. 1979). Once Florida Keys filed a third-party complaint

against the Ashmans in federal court, however, their maritime tort claim became a

compu lsory cou nterclaim under F ederal R ule of C ivil Proc edure 1 3(a), bec ause it

arose from the same transaction or occurrence, the boating accident, as Florida

Keys’ third-party complaint against the Ashmans for contribution. A maritime tort

claim ma y be asser ted in fed eral cour t withou t invokin g the cou rt’s admir alty

jurisdictio n if the claim falls with in the cou rt’s supp lemental ju risdiction . See

7
There was no diversity of citizenship between the Ashmans and Florida Keys, so the
Ashmans could not have brought their maritime tort claim as a civil action in federal court under
the “savings to suitors” clause. See Cont’l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d
1340, 1344 (5th Cir. 1979).

18
Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 380-81, 79 S. Ct. 468, 484-

85 (1959) (holding that the district court had pendant 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). The Ashmans w ere

thus not required to b ring their maritim e tort claim und er the district court’s

admiralty jurisdiction because as a compulsory counterclaim their maritime tort

claim was within the district court’s supplemental jurisdiction, see 28 U.S .C. §

1367; Marine Trasp. Servs. Sea-Barge Group, Inc. v. Python High Performance

Marine Corp., 16 F.3d 1133, 1139 (11th Cir. 1994), and therefore could have been

asserted as a civil action under the “savings to suitors” clause instead of as an

admiralty claim, see Romero, 358 U.S. at 380-81, 79 S. Ct. at 484-85.

Florida Keys th ird-party compla int agains t the Ash mans th us left them with

two op tions for federal co urt jurisd iction ov er their claim against F lorida K eys.

They could invoke the district court’s admiralty jurisdiction, or they could bring

their maritime tort claim as a civil action under the district court’s supplemental

jurisdiction as a compulsory counterclaim. If a claim has multiple jurisdictional

bases, one of which is admiralty, Federal Rule of Civil Procedure 9(h) provides

that the pleading “may contain a statement identifying the claim as an admiralty or

19
maritime claim.” F ailure to id entify a claim as an adm iralty or m aritime claim in

these circu mstance s means that it is not o ne. See Fed. R. Civ. P. 9(h), advisory

committee notes (noting that the unification of admiralty and civil actions

necessitate d a proc edural m echanism to preser ve the “po wer of the plead er to

determin e wheth er these h istorically m aritime pr ocedur es shall be applicab le to his

claim or not; the pleader must be afforded some means of designating his claim”);

Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1254 (5th Cir. 1975) (noting

that the plaintiff “could have obtained a jury trial on all claims simply by omitting

or withdrawing the 9(h) designation in his complaint and bringing his entire suit as

a civil action ”); Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5th Cir. 1972)

(noting that “this action began at law, because it was filed without a statement

identifyin g the claim as an adm iralty claim, a s provid ed by R ule 9(h) ”). The

Ashma ns did not inc lude a statemen t in their pleading in voking the district court’s

admiralty jurisdiction. Therefore, their maritime tort claim was brought as a civil

action under the district court’s supplemental jurisdiction. Once the district court

granted summary judgment on Florida Keys’ contribution claim it had the

discretion to dism iss the Ashm ans’ counter claim. See 28 U.S.C. § 1367(c). There

was no abuse o f discretio n.

AFFIRMED.

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