                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                          F I L E D
                                    Revised September 16, 2003
                                                                                          August 26, 2003
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                      Charles R. Fulbruge III
                                FOR THE FIFTH CIRCUIT                                         Clerk
                                   __________________________

                                          No. 02-31188
                                   __________________________


RALPH MORRIS, et al.,
                                                                                              Plaintiffs,

RALPH MORRIS,
                                                                                    Plaintiff-Appellant,

versus

T E MARINE CORPORATION, et al.,

                                                                                           Defendants,

SUBSEA INTERNATIONAL INC, incorrectly sued as Sub Sea International, Inc.; GLOBAL
INDUSTRIES LTD, incorrectly sued as Global Industries,

                                                                                Defendants-Appellees.

                  ___________________________________________________

                          Appeal from the United States District Court
                             For the Eastern District of Louisiana
                  ___________________________________________________


Before WIENER, CLEMENT, and PRADO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

         After a tortured procedural history, this case purports to present issues of tort and admiralty

law. However, given the untimeliness of this appeal, we do not reach those issues. We hold that the

district court’s remand order of June 8, 2001, following its May 21, 2001, order granting summary
judgment to SubSea International (“SubSea”) was a final appealable order. The failure of Plaintiff-

Appellant Ralph Morris (“Morris”) to appeal that order to this Court within the prescribed time

period constitutes a waiver by Morris of his right to appeal, hence we AFFIRM .

                                I. FACTS AND PROCEEDINGS

A. Procedural History

       The procedural history of this case reads like a nightmarish civil procedure exam. In July

1994, Morris filed suit (“Original Petition”) in the Civil District Court for the Pari sh of Orleans

against T E Marine Corp. (“TE Marine”), alleging that TE Marine’s negligence as the owner and/or

operator of a ship contributed to an injury he sustained on a fixed platform located in the Gulf of

Mexico. Morris did not plead any basis for the court’s jurisdiction and did no assert that any
                                                                              t

particular law applied to his claims.

       In early 1995, Morris supplemented his petition twice, first to add his then-employer, Murphy

Exploration and Production Company (“Murphy”), as a defendant (“First Amendment”) and second,

to add a company that had participated in repairing hurricane damage to a fixed platform’s boat

landing deck and stairwell, Gulf Inland Contractors (“Gulf”), as a defendant (“Second Amendment”).

Morris subsequently settled the claims against TE Marine and Murphy, leaving Gulf as the sole

defendant.

       In April 1998, four and o ne-half years after his alleged injury, Morris filed a Third

Supplemental and Amending Petition (“Third Amendment”) to add SubSea International, Inc.

(“SubSea”), which had installed bumper tires to the platform’s boat dock, as a defendant.1 Morris

alleged the improper installation of the bumper system allowed the bumper to be propelled


       1
           Morris also added SubSea’s successor, Global Industries Ltd, as a defendant.

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dangerously upwards into the handrail when struck by the boat. The Third Amendment also alleged

a claim under the Jones Act, 46 U.S.C. app. § 688 (2003), against Murphy, but asserted that the case

was properly in state court (and not removable to federal court) under the “savings to suitors” clause,

28 U.S.C. § 1333 (2003).2 The Third Amendment otherwise did not specify the laws under which

the case was brought.

        On June 18, 1999, SubSea filed a Peremptory Exception of Prescription in state court, seeking

dismissal of Morris’s claim. SubSea argued that general maritime law applied to Morris’s suit against

it, given the situs and the maritime nexus of Morris’s alleged accident. Specifically, SubSea urged

the court to apply the three-year statute of limitations under the Uniform Statute of Limitations for

Maritime Torts (“USLMT”), 46 U.S.C. app. § 763a (2003), because Morris filed suit against SubSea

more than four years after the accident.

        Morris then filed an Opposition to Peremptory Exception of Prescription, asserting specifically

(and for the first time) that his tort occurred on the outer continental shelf and that, as a result of the

Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331-56 (2003), the law of the

adjacent state (Louisiana) applies. Morris argued t hat his suit against SubSea was not prescribed

because, under Louisiana law, a suit against any party solidarily liable for injury interrupts prescription

with respect to any other solidary obligor.




        2
            “The district courts shall have original jurisdiction, exclusive of the courts of the States,
of:

        (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all
        cases all other remedies to which they are otherwise entitled.”

28 U.S.C. § 1333.

                                                     3
       On May 22, 2000, the state court, apparently accepting Morris’s arguments and without

explanation, denied SubSea’s Peremptory Exception of Prescription. Within two days, Morris filed

a Fourth Supplemental and Amending Petition (“Fourth Amendment”) assert ing jurisdiction and

claims under OCSLA, deleting all claims of seaman status, and attempting to withdraw his claim

under the Jones Act (which presumably had precipitated the 1995 settlement with his then-employer).

       Based on this Fourth Amendment, which specifically alleged OCSLA situs and applicability,

and based on the state court’s implicit finding that Morris’s claims were founded on OCSLA, SubSea

removed the action on June 9, 2000, pursuant to 28 U.S.C. § 1441 (2003). Morris moved to remand,

alleging removal was untimely.

       The district court denied remand, finding that the case became removable, at the earliest, on

May 22, 2000—the date of the state court’s denial of SubSea’s prescription exception which

implicitly accepted Morris’s argument that his claim was governed by OCSLA. The court concluded

that SubSea’s removal on June 9, 2000, came before the expiration of the 30-day time limit for

removal. See 28 U.S.C. § 1446(b) (2003) (“If the case stated by the initial pleading is not removable,

a notice of removal may be filed within thirty days after receipt by the defendant, through service or

otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first

be ascertained that the case is one which is or has become removable . . . .”).

       SubSea subsequently filed a motion for summary judgment, contending that because admiralty

jurisdiction applied, Morris’s claims against SubSea were barred by the three-year statute of

limitations for maritime torts. The district court agreed and dismissed Morris’s complaint against

SubSea as time-barred. The court specifically rejected Morris’s contention that the law of the case




                                                  4
doctrine precluded the court’s revisiting the statute of limitations issue previously decided by the state

court.

         After SubSea was dismissed from the case, Morris filed a motion to remand without providing

notice to SubSea. The sole remaining defendant, Gulf, did not oppose remand, which was ordered

on June 8, 2001. After remand, Morris ultimately settled with Gulf, and the state court entered a

corresponding order of dismissal.

         To summarize: Morris settled claims against TE Marine, Murphy, and Gulf. Morris’s claim

against SubSea was the only claim to have been adjudicated—the federal district court granted

summary judgment in favor of SubSea because the claims were time-barred.

         Without giving notice to SubSea, Morris appealed the adverse federal court summary

judgment—to a state appellate court (the Louisiana Fourth Circuit Court of Appeal). SubSea learned

of the case when someone in the clerk’s office of the appellate court made a status inquiry over the

telephone. SubSea immediately removed the case, for a second time (“Second Removal”), based on

OCSLA and the All Writs Act, 28 U.S.C. § 1651(a) (2003). Morris moved for remand; a different

district judge denied the remand and ultimately entered judgment in favor of SubSea, dismissing

Morris’s claims as time-barred. Morris appeals.

         While this appeal has been pending, the state appellate court has in turn stayed the appeal,

demanded updates from the parties on the proceedings in federal court, threatened to hold the

attorneys in contempt for failing to provide updates, and lifted the stay.

                                     II. STANDARD OF REVIEW

    This Court reviews decisions not to remand de novo. Miller v. Diamond Shamrock Co., 275 F.3d

414, 417 (5th Cir. 2002). We may address our jurisdiction to hear appeals sua sponte. Steel Co. v.


                                                    5
Citizens for a Better Env’t, 523 U.S. 83 (1998); Crone v. Cockrell, 324 F.3d 833, 836 (5th. Cir

2003).

                                            III. DISCUSSION

A. The denial of Morris’s motion to remand the Second Removal

         Morris challenges SubSea’s Second Removal of the state court action to federal district

court. When it learned—from the state appellate court itself—that Morris had appealed to the

state appellate court, SubSea took the unusual step of removing to the federal district court.3

SubSea asserts the Second Removal was proper under two separate statutes, the All Writs Act,

28 U.S.C. § 1651, and OCSLA, 43 U.S.C. § 1349.

(1) Removability under the All Writs Act, 28 U.S.C. § 1651

         The Supreme Court’s Syngenta case, decided last term, forecloses the argument that the

All Writs Act provides original jurisdiction, and hence a basis for removal. Syngenta Crop

Protection, Inc. v. Henson, 537 U.S. 28, __, 123 S. Ct. 366, 369-70 (2002) (holding that the All

Writs Act does not provide an independent jurisdictional basis for removal). Hence, removal

under the All Writs Act is not available.

(2) Removability based on OCSLA, 43 U.S.C. § 1349

         The general removal statute, 28 U.S.C. § 1441, has two relevant requirements for

removal. First, only civil actions “of which the district courts . . . have original jurisdiction, may


         3
          It is not clear why SubSea removed this case instead of simply seeking an injunction in
district court in order to “protect and effectuate” the district court’s earlier judgment. See Anti-
Injunction Act, 28 U.S.C. § 2283 (2003) (“A court of the United States may not grant an
injunction to stay proceedings in a State court except as expressly authorized by Act of Congress,
or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”(emphasis
added)); see also 17 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER,
FEDERAL PRACTICE & PROCEDURE § 4226 (2d ed. 1988).

                                                   6
be removed.” 28 U.S.C. § 1441(a). Second, civil actions founded on a claim or right “arising

under the Constitution, treaties or laws of the United States” are removable without regard to

citizenship. 28 U.S.C. § 1441(b). The removal of all other actions turns on the citizenship of

defendants. Id.

a. Removal requirement of § 1441(a)

       OCSLA provides:

       [T]he district courts of the United States shall have jurisdiction of cases and
       controversies arising out of, or in connection with . . . any operation conducted on
       the outer Continental Shelf which involves exploration, development, or
       production of the minerals, of the subsoil and seabed of the outer Continental Shelf
       ....


43 U.S.C. § 1349(b)(1).

   In light of Morris’s claims under OCSLA, SubSea argues OCSLA’s grant of jurisdiction

satisfies the first requirement of the removal statute—“Except as otherwise expressly provided by

Act of Congress, any civil action brought in a State court of which the district courts of the

United States have original jurisdiction, may be removed . . . .” 28 U.S.C. § 1441(a).

    Morris contends that an Act of Congress has “otherwise expressly provided” that his case is

not removable. The statute granting district courts original jurisdiction over admiralty and

maritime cases provides:

       The district courts shall have original jurisdiction, exclusive of the courts of the
       States, of:

       (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all
       cases all other remedies to which they are otherwise entitled.




                                                  7
28 U.S.C. § 1333. Morris asserts that the “savings to suitors” clause of the statute prohibits

removal of all cases brought in state court that contain claims under general maritime law. This is

not entirely correct.

        General maritime claims saved to suitors are, of themselves, not removable. See, e.g.,

Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 377-79 (1959) (discussing non-

removability of “savings to suitors” claims on the grounds that, because maritime claims do not

arise under the laws or Constitution of the United States, they do not present federal questions).

Nevertheless, the “savings to suitors” clause “does not guarantee [plaintiffs] a nonfederal forum,

or limit the right of defendants to remove such actions to federal court where there exists some

basis for federal jurisdiction other than admiralty.” Tenn. Gas Pipeline v. Houston Cas. Ins., 87

F.3d 152, 153 (5th Cir. 1996) (internal citations omitted, emphasis in original). As a result,

removal is appropriate if federal jurisdiction exists under a separate statute. Id. OCSLA

provides just such a “basis for federal jurisdiction other than admiralty.” See, e.g., Dahlen v. Gulf

Crews, Inc., 281 F.3d 487, 492 (5th Cir. 2002) (concluding § 1349(b) of OCSLA grants

jurisdiction).

b. Removal requirements of § 1441(b)

        The removal statute places an additional requirement for removal in § 1441(b). Paragraph

(b) provides:

        Any civil action of which the district courts have original jurisdiction founded on a
        claim or right arising under the Constitution, treaties or laws of the United States
        shall be removable without regard to the citizenship or residence of the parties.
        Any other such action shall be removable only if none of the parties in interest
        properly joined and served as defendants is a citizen of the State in which such
        action is brought.


                                                  8
28 U.S.C. § 1441(b) (emphasis added). SubSea is a foreign (i.e. non-Louisiana) corporation.

Thus, the requirement in the second sentence of § 1441(b) is satisfied, and removal was proper

under OCSLA. The denial of Morris’s remand motion is therefore AFFIRMED .

B. The June 8, 2001, order to remand

       Though not addressed by the parties until this Court requested additional letter briefing,

the finality of the June 8, 2001, order to remand is the dispositive issue in this appeal. The

parties’ failure to raise this issue is immaterial since, if necessary, we can examine sua sponte our

jurisdiction to hear appeals. Crone, 324 F.3d at 836.

       Neither party explains why this appeal is timely, or more critically, why the appeal of the

second removal succeeds in bringing to this Court issues beyond those directly related to the

propriety of the second removal. It is true that appeal of the district court’s grant of summary

judgment on May 21, 2001, was not immediately available; the judgment was not “final” because

one party, Gulf, remained in the suit after the summary judgment. See FED. R. CIV. P. 54(b). It is

equally true that the district court’s decision to remand was not subject to review. See 28 U.S.C.

1447(d) (“An order remanding a case to the State court from which it was removed is not

reviewable on appeal or otherwise . . . .”).

       However, we must consider whether the June 8, 2001, order to remand was a final

decision that allowed review of that part of the case which the district court decided (apart from

the remand order itself, which was unopposed). We hold that that order was final. Although as a

general rule an order of remand is not reviewable on appeal, this Court “may review any aspect of

a judgment containing a remand order that is distinct and separable from the remand proper.”

First Nat. Bank v. Genina Marine Servs., Inc., 136 F.3d 391, 394 (5th Cir. 1998) (internal


                                                  9
quotation and citation omitted). An order is “separable if it precludes the remand in logic and in

fact and is conclusive.” Id. A conclusive order is one that “will have the preclusive effect of

being functionally unreviewable in state court.” Id. See also John G. & Marie Stella Kenedy

Mem. Found. v. Mauro, 21 F.3d 667, 670 (5th Cir.), cert. denied, 513 U.S. 1016 (1994)

(upholding appellate review of district court’s dismissal of the plaintiff’s federal claims after the

district court remanded the case to state court); Mitchell v. Carlson, 896 F.2d 128, 133 (5th Cir.

1990) (upholding the availability of federal appellate review of the part of the decision the state

court would not be able to reconsider on remand); City of Waco, Tex. v. U.S. Fid. & Guar. Co.,

293 U.S. 140, 143-44 (1934) (allowing appeal of a district court order dismissing one party once

the district court ordered remanded to state court, and noting the difference between an appeal of

the decision to dismiss and the decision to remand). See generally FED. PRAC. & PROC. §

3914.11 (arguing that City of Waco provides a direct appeal of non-remand decisions that

otherwise would only be reviewable under an extraordinary writ).

        After Morris and Gulf settled in state court, Morris never filed a notice of appeal (much

less a timely notice) in federal district court—the only proper forum—seeking review of the

district court’s original summary judgment in favor of SubSea. Instead, Morris now appeals the

Second Removal, after he attempted to appeal the district court’s original summary judgment in

state court. While it is difficult to imagine that Morris’s ability to appeal the district court’s initial

grant of summary judgment to SubSea only arises on the fortuitous (and perhaps ill-conceived)

action of SubSea removing the case a second time, it is absurd to suppose that the proper forum

for Morris to appeal a federal district court’s summary judgment order is the Louisiana state

appellate court. In order to preserve the right to appeal the grant of summary judgment, Morris


                                                   10
had to have filed a timely notice of appeal in the district court after that court entered the remand

order. Since Morris’s filing of the notice of appeal on November 1, 2002, came well after the

thirty-day period prescribed in FED. R. APP. P. 4(a), this appeal is untimely and the order

dismissing Morris’s claim against Subsea is AFFIRMED.

C. The state court proceedings

       We see no need to issue an injunction at this time, as we trust that the state appellate court

will recognize that it has no jurisdiction to hear an appeal from a judgment of a federal district

court, and thus will not convene, nor continue proceedings, nor enter judgments, that contravene,

or are inconsistent with this opinion.

                                         IV. CONCLUSION

       The judgment of the district court is AFFIRMED.




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