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08 June 2011
In a recent procedural dispute, the US Court of Appeals for the Fifth Circuit dealt with a question of first impression and affirmed a district court order holding that in rem claims asserted under admiralty jurisdiction filed in the same complaint as in personam claims asserted in diversity must be tried together before a jury when the plaintiff clearly expresses its intent that the in personam claims be premised on diversity jurisdiction rather than in admiralty under Rule 9(h) of the Federal Rules of Civil Procedure. The mere presence of an admiralty claim in the complaint does not preclude a jury trial.(1)
A longshoreman injured while performing stevedoring activities(2) brought in rem claims against two vessels, asserting admiralty jurisdiction,(3) and in the same complaint brought in personam claims against the owners and managers of the two vessels, asserting diversity jurisdiction,(4) and demanded a jury trial. The plaintiff's amended complaint asserted that the court:
"has jurisdiction over the in personam defendants based solely upon diversity citizenship... and the court has jurisdiction over the in rem defendants based solely upon admiralty jurisdiction." (Emphasis added.)
The defendants requested the court to strike the plaintiff's jury demand on the in personam claims, alleging that under TNT Marine, Inc v Weaver Shipyards & Dry Docks, Inc(5) and Durden v Exxon Corp,(6) a plaintiff which asserts admiralty and some other basis of subject-matter jurisdiction (diversity) as dual or alternate bases for the court's subject-matter jurisdiction automatically makes a Rule 9(h) election to proceed in admiralty for the entire case.(7) The district court distinguished TNT Marine and Durden and denied the defendants' request, ordering that all of the plaintiff's claims, including the in rem claims, be tried together before a jury. The district court reasoned that the plaintiff preserved her Seventh Amendment right to a jury trial by pleading diversity over the in personam claims as the sole bases for the court's subject-matter jurisdiction, rather than as dual or alternate bases.
The defendant appealed and the Fifth Circuit affirmed the district court order.
The Fifth Circuit found that the plaintiff clearly expressed her intent to assert the in personam claims under diversity jurisdiction; thus, all claims in the complaint must be tried together before a jury. The court also distinguished the case from TNT Marine and Durden. In those cases the plaintiffs brought both in rem and in personam claims alleging both admiralty and diversity as dual or alternate bases for the courts' subject-matter jurisdiction. The courts held that the plaintiffs had waived their right to a jury trial because they elected to proceed with the entire case under admiralty rules by asserting both admiralty and diversity as bases for the courts' subject-matter jurisdiction in the same claim.
In this case the court described the rule flowing from TNT Marine and Durden as being:
"that a plaintiff who fails to choose between admiralty jurisdiction and some other basis of subject matter jurisdiction for a claim is presumed to have elected under Rule 9(h) to proceed under admiralty jurisdiction and the admiralty procedures for that claim."
However, the court found that such presumption was not applicable here because in TNT Marine and Durden the plaintiffs asserted both admiralty and diversity subject-matter jurisdiction for the same claim, while here the plaintiff clearly separated diversity jurisdiction from the admiralty claims by specifically choosing in her complaint to proceed under the district court's diversity jurisdiction for her in personam claims and not asserting diversity jurisdiction as a dual or alternate bases.(8) In other words, the plaintiff did not fail to choose between admiralty or diversity jurisdiction for her in personam claims − she clearly chose diversity. Thus, all claims, including the in rem claims, were ordered to be tried together before a jury.
The defendant further argued that under TNT Marine and Durden, the plaintiff's assertion of in rem admiralty claims in the same complaint nevertheless precluded a jury trial on the in personam claims.(9) However, the court held that the reading of those cases was too broad. Instead, the court concluded that the controlling case for that issue was the Supreme Court decision in Fitzgerald v United States Lines Co,(10) where the court held that admiralty claims may be tried to a jury when the parties are entitled to a jury trial on the non-admiralty claims, provided that the claims arise out of one set of facts.(11) Thus, since the plaintiff's claims arose out of the same factual circumstances, the court held that the mere presence of the plaintiff's admiralty claims in the same complaint as claims premised on diversity jurisdiction did not defeat her properly preserved right to a jury trial.
A plaintiff's failure to choose clearly diversity jurisdiction for the in personam claims may constitute a waiver of the Seventh Amendment right to a jury trial. In order to preserve that right for all claims, including in rem claims, the plaintiff must file a complaint clearly expressing the intent that the in personam claims be premised solely on diversity jurisdiction, rather than a dual or alternate basis. If the injury is based on one event causing one set of injuries to one victim, it is likely that the court will grant a jury trial for the entire case.
For further information please contact Antonio J Rodriguez, Christian Sauce or Michael Harowski at Fowler Rodriguez Valdes-Fauli by telephone (+1 504 523 2600), fax (+1 504 523 2705) or email (firstname.lastname@example.org, email@example.com or firstname.lastname@example.org).
(2) While performing activities on board a vessel moored at a dock in the Port of Houston, another vessel passed in close proximity at excessive speed, causing one mooring line to rupture and strike the worker's leg, causing severe leg injuries.
(7) Fed R Civ P Rule 9(h) allows a plaintiff expressly to designate its claim in admiralty when cognisable under admiralty jurisdiction. One of the historical procedures unique to admiralty is that a suit in admiralty does not carry with it the right to a jury trial.
(8) The issue presented ("whether a plaintiff automatically makes a Rule 9(h) election to proceed under admiralty rules when she only specifically asserts diversity jurisdiction for one claim [in personam] in the same complaint as a separate claim cognizable only under admiralty jurisdiction") had never been addressed by the court.
(9) Other courts and commentators have construed the TNT Marine and Durden decisions as creating a rule in the Fifth Circuit that the presence of an in rem admiralty claim in a complaint will preclude a jury trial. See, for example, Ghotra v Bandila Shipping, Inc, 113 F d 1050, 1057 (9th Cir 1997) ("in TNT Marine... the Fifth Circuit held that the plaintiff had no right to a jury where he alleged both in personam and in rem claims").
"While [the Supreme Court] has held that the Seventh Amendment does not require jury trials in admiralty cases, neither that Amendment nor any other provision of the Constitution forbids them. Nor does any statute of Congress or Rule of Procedure, Civil or Admiralty, forbid jury trials in maritime cases."
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