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IN REM AND IN PERSONAM CLAIMS MAY BE TRIED TOGETHER

Philip C. Brickman, Partner


Fowler Rodriguez Valdes-Fauli
(504) 523-2600
pbrickman@frvf-law.com


June 21, 2011


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

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 workers 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 courts diversity jurisdiction.
The Fifth Circuit noted that the plaintiffs 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 plaintiffs 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 courts 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 plaintiffs 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 courts 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 courts 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 plaintiffs
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 plaintiffs claims
arose out of the same factual circumstances, the Fifth Circuit held that the mere presence
of the plaintiffs admiralty claims in the same complaint as claims premised on diversity
jurisdiction did not defeat their properly preserved right to a jury trial.

A plaintiffs 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.

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