                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 October 20, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-41148
                          Summary Calendar


                          LAURA GONZALEZ,

                        Plaintiff-Appellee,

                               versus

         WEEKS MARINE, INC. AND ATLANTIC SOUNDING CO. INC.,

                       Defendants-Appellants.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                        USDC No. 7:03-CV-434
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     The plaintiff, Laura Gonzalez, sued the defendants in state

court under the Jones Act alleging that she was a seaman injured

while serving on a vessel. Generally, a proper Jones Act claim is

not removable to federal court. Lackey v. Atlantic Richfield Co.,

990 F.2d 202, 206-07 (5th Cir. 1993). The defendants removed,

alleging fraudulent pleading of the plaintiff’s Jones Act status.

The plaintiff filed a motion to remand, alleging that the boat on

which the plaintiff was working should be classified as a “vessel”

under the Jones Act, barring removal. The district court denied the

     *
       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this opinion should not be published and is not precedent except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 set forth in 5TH CIR. R. 47.5.4.
                           No. 05-41148
                                -2-

motion. Nearly one year later, the plaintiff filed a motion to

reconsider, making the same argument bolstered by intervening

Supreme Court case law. The district court reconsidered the motion

and granted it, remanding the case to state court.

     The defendants raise two objections on appeal. First, they

contend that while the initial motion to remand was timely filed,

the motion to reconsider was a “second motion to remand” and fell

outside the thirty day filing requirement. See 28 U.S.C. § 1447

(c). This objection has no merit. The motion to reconsider alleged

the same basis for remand as the initial motion, and does not

constitute a “second motion.” In addition, the defendants have

waived this objection by failing to object below to the timeliness

of either the motion to remand or the motion to reconsider. See In

Re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992).

     The second objection raised by the defendants is that the

plaintiff waived her objection to removal by actively participating

in the case after removal. See Johnson v. Odeco Oil & Gas Co., 864

F.2d 40 (5th Cir. 1989). However, the Johnson opinion makes clear

that this waiver can occur only when the plaintiff “fails to object

to the removal” of the action. Id. at 42. Because the plaintiff

timely objected here, this argument is unavailing. We therefore

AFFIRM.
