                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                                                                F I L E D
                                                                                  July 18, 2003
                  IN THE UNITED STATES COURT OF APPEALS
                                                                             Charles R. Fulbruge III
                                                                                     Clerk
                             FOR THE FIFTH CIRCUIT



                                   No. 02-31036
                                 Summary Calendar



      DANNY RUSSELL, individually and on behalf
      of his minor children, Danny Russell, Jr. and
      Tavia Danielle Russell,

                                                      Plaintiff-Appellant,

                                       versus

      JACK JACKSON, INC., ET AL.,

                                                      Defendants,

      JACK JACKSON, INC.,

                                                      Defendant-Appellee.


                  Appeal from the United States District Court for
                         the Eastern District of Louisiana
                             (USDC No. 01-CV-2742)
          _______________________________________________________


Before REAVLEY, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

      *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited circumstances
      We dismiss this interlocutory appeal for want of jurisdiction.

1.    In order for 28 U.S.C. § 1292(a)(3) to create appellate jurisdiction, the

      plaintiff must have brought his claim in admiralty. See id. § 1292(a)(3)

      (“Interlocutory decrees of such district courts or the judges thereof

      determining the rights and liabilities of the parties to admiralty cases in which

      appeals from final decrees are allowed.”). There are special procedures for

      invoking the admiralty jurisdiction of a federal district court. See FED. R.

      CIV. P. 9(h). In this case, Russell did not plead the admiralty statute, 28

      U.S.C. § 1333, as a jurisdictional ground. He relied instead on the district

      court’s federal question jurisdiction over Jones Act claims. See 28 U.S.C. §

      1331; 46 U.S.C. § 688 et seq. (Jones Act). “Emphatically, claims in

      admiralty, whether designated in rem or in personam, do not fall within this

      category.” In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991) (citing Romero v.

      Int’l Terminal Operating Co., 358 U.S. 354, 378 (1959) (finding it “clear that

      the words of [the ‘arising under’] statute do not extend, and could not

      reasonably be interpreted to extend, to cases of admiralty and maritime

      jurisdiction”)). Moreover, Russell demanded a jury trial. Generally, merely




set forth in 5TH CIR. R. 47.5.4.

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requesting a jury trial does not change an admiralty claim, identified as such,

to a non-admiralty claim. In such cases the district court should simply deny

the request. See Bodden v. Osgood, 879 F.2d 184, 186 (5th Cir. 1989)

(citing T.N.T. Marine Servs., Inc. v. Weaver Shipyards & Dry Docks, Inc.,

702 F.2d 585 (5th Cir. 1983)). However, as the complaint contains no

statement signaling Russell’s intent to bring his claims in admiralty under

Federal Rule of Civil Procedure 9(h), his request for a trial by jury suggests

that he did not intend to invoke the admiralty jurisdiction of the district court.

See Borne v. A & P Boat Rentals No. 4, Inc., 755 F.2d 1131, 1133 (5th Cir.

1985) (dismissing claims under the Jones Act and general maritime law for

want of jurisdiction where the seaman’s complaint “prayed for trial by jury, []

did not invoke admiralty jurisdiction and made no reference to Fed.R.Civ.P.

9(h)”) (citing Moser v. Texas Trailer Corp., 623 F.2d 1006 (5th Cir. 1980)).

In fact, the pretrial order setting the initial trial date for the maintenance and

cure claim specifically stated the trial was to be “before the District Judge

with a jury.” Although the maintenance and cure claim was rescheduled and

was eventually heard by the district judge without a jury, the initial pretrial

order buttresses our conclusion that Russell did not intend to invoke the

admiralty jurisdiction of the district court.

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2.   Russell’s proposed and contested findings of fact and conclusions of law and

     his trial memorandum asserted jurisdiction pursuant to 28 U.S.C. § 1333.

     However, he also referenced the court’s federal question jurisdiction and he

     did not state that he intended to proceed in admiralty. This is insufficient to

     invoke the court’s admiralty jurisdiction under Federal Rule of Civil

     Procedure 9(h). An allegation that a claim is within admiralty and maritime

     jurisdiction does not automatically make it an admiralty and maritime claim if

     the claim is also within the jurisdiction of the district court on some other

     ground. There must be a statement evincing the pleader’s intent to proceed in

     admiralty. See FED. R. CIV. P. 9 Advisory Commitee’s Note (“After

     unification [of suits at law and equity] has abolished the distinction between

     civil actions and suits in admiralty, the complaint in such an action would be

     almost completely ambiguous as to the pleader’s intentions regarding the

     procedure invoked. . . . [T]he Advisory Committee concluded the preferable

     solution is to allow the pleader who now has the power to determine

     procedural consequences by filing a suit in admiralty to exercise that power

     under unification . . . by a simple statement in his pleading to the effect that

     the claim is an admiralty or maritime claim.”).

3.   A plaintiff need not specifically invoke the admiralty jurisdiction of the

                                          4
district court if the claim is cognizable only in admiralty. See FED. R. CIV. P.

9(h). Russell’s claim for maintenance and cure is not only cognizable in

admiralty, as the district court has pendent jurisdiction under the Jones Act to

consider such claims. See Romero, 358 U.S. at 380-81(holding that the

district court had pendent 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). Thus, we construe

Russell’s complaint as failing to invoke the admiralty jurisdiction of the

district court and therefore precluding review of this appeal pursuant to 28

U.S.C. § 1292(a)(3).

APPEAL DISMISSED.




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