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In Rem and In Personam Claims May Be Tried Together

By Philip C. Brickman 12-17-2012 01:27:00

In rem and in personam claims may be tried together before a jury when the complaint clearly alleges diversity jurisdiction

 

By Philip C. Brickman
Partner, Fowler Rodriguez Valdes-Fauli


In a question of first impression, the United States Court of Appeals for the Fifth Circuit affirmed a district court order holding that in rem claims asserted under admiralty jurisdiction that are 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 are premised on diversity jurisdiction rather than in admiralty under Rule 9(h) of the Federal Rules of Civil Procedure. The mere allegation of an admiralty claim in the complaint does not preclude a jury trial. Luera v. M/V Alberta, 635 F.3d 181 (5th Cir. 2011).

While performing activities onboard a vessel moored at a dock in the Port of Houston, a mooring line ruptured and struck a worker’s leg causing severe leg injuries after another vessel passed in close proximity at an excessive rate of speed. The longshoreman brought in rem claims against two vessels asserting admiralty jurisdiction. In addition to the in personam claim, the plaintiff asserted claims against the owners and managers of the two vessels alleging diversity jurisdiction and demanding a jury trial.

An action against a vessel in rem falls within the exclusive admiralty jurisdiction, while the saving to suitors clause allows a plaintiff to bring a claim that does not fall within the exclusive admiralty jurisdiction “at law” under the federal court’s diversity jurisdiction. The Fifth Circuit noted that the plaintiff’s amended complaint alleged 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). Luera v. M/V Alberta, 635 F.3d 181 (5th Cir. 2011).

The defendants moved to strike the plaintiff’s jury demand on the in personam claims, alleging that under T.N.T Marine, Inc. v. Weaver Shipyards & Dry Docks, Inc., 702 F.2d 585 (5th Cir. 1983) and Durden v. Exxon Corp.,803 F.2d 845 (5th Cir. 1986), a plaintiff who asserts admiralty and some other basis of subject matter jurisdiction (such as 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. Rule 9(h) allows a plaintiff to expressly designate a claim in admiralty when cognizable under admiralty jurisdiction. The district court distinguished T.N.T. Marine and Durden and denied the defendants’ request, ordering that all of plaintiff’s claims, including the in rem claims, be tried together before a jury. The district court reasoned that the plaintiff preserved their 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 the intent to assert the in personam claims under diversity jurisdiction and thus, all claims in the complaint must be tried together before a jury. The court also distinguished the case from T.N.T. 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 subject matter jurisdiction.  The courts held that the plaintiffs 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 subject matter jurisdiction in the same claim.

In this case, the court described the rule flowing from T.N.T. 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.” Luera v. M/V Alberta, 635 F.3d 181 (5th Cir. 2011). The court found that such presumption is not applicable here, because in T.N.T. Marine and Durden the plaintiff asserted both admiralty and diversity subject matter jurisdiction for the same claim. In Luera, the plaintiff clearly separated diversity jurisdiction from the admiralty claims by specifically choosing to proceed under the district court’s diversity jurisdiction for the in personam claims. In other words, the plaintiff did not fail to choose between admiralty or diversity jurisdiction for their in personam claims. Rather, they 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 T.N.T Marine and Durden, the plaintiff’s assertion of in rem admiralty claims in the same complaint precludes a jury trial on the in personam claims. However, the court held that the reading of those cases was too broad. The court noted that the controlling case for that issue is the United States Supreme Court decision in Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963), where the Supreme 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 the claims arise out of one set of facts. The Supreme Court reasoned that neither the Seventh Amendment, nor any other provision of the Constitution, forbids jury trials in admiralty cases. Id. at 20. Further, the Supreme Court noted that there is no Statute of Congress or Rule of Procedure, Civil or Admiralty, that forbids jury trials in maritime cases. Id. Thus, since the plaintiff’s claims arose out of the same factual circumstances, the Fifth Circuit held that the mere presence of the plaintiff’s admiralty claims in the same complaint as claims premised on diversity jurisdiction did not defeat their properly preserved right to a jury trial.

A plaintiff’s failure to clearly choose diversity jurisdiction for 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.  

Please contact Phil Brickman at (504) 523-2600 or pbrickman@frvf-law.com for further information on these issues.

 

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The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.