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, marit ime

law, and Texas law. The defendants-appellees removed the case to federal court. Once in federal

court, the plaint iffs 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 dist rict court improperly

retained jurisdiction over the case because Jones Act claims are non-remov a ble. 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 t he 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.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. The contractual agreement between Daughtry and Lekom wa s 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 corporati ons.

The four corporati ons 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,

marit ime law, and Texas law. The suits were bro ught by both of the decedent's children Sherry

Lackey and Willi am 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 hear ing. The plaintiffs contended that the Jones Act precluded the original

removal from state court. S ee 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 fo r naming

AROG, McDermott (the parent), and ARCO. The plaint iffs argued that they were going to pursuea "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 plaint iffs 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 plaint iffs filed this appeal. On March 5, 1992 they filed their original notice

of appeal. The plaintiffs headed their appeal with the two st yles 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 plaint iffs

had perfected an app eal. 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 plaint iffs 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.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. 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 th e dist rict 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

di scretion 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. S ee Torres v. Oakland Scav enger Co., 487 U.S. 312, 314, 108 S.Ct.

2405, 2407, 101 L.Ed.2d 285 (1988). In T orres the plaint iffs named fifteen out of sixteen plaint iffs,

but omitted the sixteenth party by clerical error. I d. 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 plaint iffs in Torres also attempted to argue that the designation of "et. al." remedied their

omission. I

d. 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) (us e of "et. al ."

insufficient); M

orales v. Pan Am. Life Ins. Co., 914 F. 2d 83, 85 (5th Ci r.1990) (sam e). Further,

extensive authority exists for the proposition that naming "plaint iffs" 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. S ee 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 plaint iffs 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. S ee, 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 plaint iffs 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 court8 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. 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' Liabilit

y Act, including 28 U.S.C. § 1445(a), which in tu rn bars rem oval

. S ee, e.g.,

Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir.1987) (en banc) ("Lirette II"); A ddison

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 limit ed

to a review of the plaint iffs' pleadings. S ee Addison, 744 F.2d at 498; P reston v. Grant Advertising,

Inc., 375 F.2d 439, 440 (1967) (per curiam).

The defendants launch a two pronged attack on the plaint iffs 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 plaint iffs 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' relian ce on Preston is misplaced. The P reston 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. S ee Preston, 375 F.2d at 440. However, the court based its decision on the fact

that the plaint iff's "complaint fail[ed] to allege sufficient facts to support a cause of action under the

Jones Act." I

d. at 440–41. Further, the court noted that the plaintiff raised its Jones Act allegation

for the first time in the motion to remand. I d. 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"

cann o t be read without the court's explicit requirement that we are limited to a review of the

pleadings. I

d. The P reston court's reference to fraud emanated from the plaint iff'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 courtto pierce the pleadings and weed out fraudulent or baseless claims in a plaint iff's petition. S ee, e.g.,

LeJeune v. Shell Oil Co., 950 F.2d 267, 271 (5th Cir.1992). These fraudulent joinder cases conflict

the with clearly established directi ve of A ddison and Preston that the district court is limit ed to a

review of the pleadings.

Therefore, because our inquiry is limit ed 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 o f t he 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 t imely notice of appeal. Thus, we have appellate jurisdiction over all of the

plaint iffs. Moreover, when ascertaining the exist ence of a Jones Act claim for purposes of

non-r emo vability 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.