Ragas v. Tennessee Gas Pipeline Co.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30175

Summary Calendar

GENE RAGAS, husband of/and LUCINDA RAGAS; JONATHAN RAGAS,

husband of/and DEONA RAGAS; GEORGE RAGAS,

Plaintiffs-Appellants,

VERSUS

TENNESSEE GAS PIPELINE COMPANY, ET AL.,

Defendants,

KOCH GATEWAY PIPELINE COMPANY, formerly know as United Gas

Pipeline Company,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

March 13, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PARKER, Circuit Judge:

Gene, Lucinda, Jonathan, Deona, and George Ragas (hereinafter

“Ragas”) appeal from the district court’s order granting Koch

Gateway Pipeline Company (hereinafter “Koch”) summary judgment and

the district court’s order denying Ragas’ motion to remand.

Finding no error, we affirm.

I. Motion to Remand

Ragas filed this action in state court on August 19, 1994,

seeking damages for personal injuries allegedly sustained when a

boat carrying two of the plaintiffs through a canal struck an

unmarked piling owned by the defendant, Tennessee Gas Pipeline

Company(hereinafter “Tenneco”). The defendants timely removed on

September 8, 1994, on the basis of diversity and admiralty

jurisdiction. The Ragas plaintiffs filed a motion to remand on

October 21, 1994, claiming that diversity of citizenship did not

exist because Tenneco’s principle place of business is in Louisiana

and claiming that they were planning to amend their complaint to

add another defendant who would defeat complete diversity. The

district court denied Ragas’ motion to remand on the ground that

the motion was untimely pursuant to 28 U.S.C. § 1447(c). The

district court further held that assuming that diversity was

lacking, the plaintiffs’ claims lie in admiralty and would invest

the court with federal question jurisdiction.

After removal, a motion to remand “on the basis of any defect

other than lack of subject matter jurisdiction” must be filed

within 30 days in order to be timely. 28 U.S.C. § 1447(c)(emphasis

added). Although, Ragas filed the motion to remand more than 30

days after the notice of removal was filed, the district court was

incorrect in finding that the motion to remand was untimely.

Ragas’ remand motion was based upon a purported lack of diversity

jurisdiction. Because Ragas’ challenge was to the subject matter

jurisdiction of this court, the motion to remand need not have been

made within 30 days.

This does not end our inquiry, however, because the

2

defendants’ notice of removal listed an alternative, albeit

erroneous, ground for removal jurisdiction -- federal question via

admiralty law. See Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116

(5th Cir. 1987) (en banc) (holding that although Jones Act case was

improperly removed under 28 U.S.C. § 1445(a), such defect in

removal can be waived if motion to remand is not timely filed).

Ragas never challenged removal on the basis of admiralty

jurisdiction. Once a procedural defect in the removal process has

been waived, the only question for the district court is whether it

“would have had jurisdiction of the case had it been filed in that

court.” Id. at 117. In this case the district court correctly

determined that it would have had original federal question

jurisdiction under admiralty law. In re Digicon Marine, Inc., 966

F.2d 158 (5th Cir. 1992).

Although not cited by either party, our decision in Williams

v. AC Spark Plugs Division of General Motors Corp., 985 F.2d 783

(5th Cir. 1993) speaks directly to the issue before the court today

and provides the governing rule:

If a plaintiff initially could have filed his action in

federal court, yet chose to file in state court, even if

a statutory provision prohibits the defendant from

removing the action and the defendant removes despite a

statutory proscription against such removal, the

plaintiff must object to the improper removal within

thirty days after the removal, or he waives his

objection. Only in the case of a lack of subject matter

jurisdiction--such as no diversity of citizenship, or the

absence of a federal question if that were the sole

ground for removal--may the plaintiff object to removal

after the thirty-day limit. Any other objection is

procedural and waived after thirty days.

Id. at 787.

3

We conclude that the district court had subject matter

jurisdiction.

II. Summary Judgment

A party is entitled to summary judgment if it can demonstrate

that there is no genuine issue of material fact and that it is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);

Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Once a movant who

does not have the burden of proof at trial makes a properly

supported motion, the burden shifts to the nonmovant to show that

a summary judgment should not be granted. Id. at 321-25. A party

opposing such a summary judgment motion may not rest upon mere

allegations contained in the pleadings, but must set forth and

support by summary judgment evidence specific facts showing the

existence of a genuine issue for trial. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255-57 (1986). Summary judgment is not a

"disfavored procedural shortcut, but rather an integral part of the

Federal Rules as a whole, which are designed `to secure the just,

speedy and inexpensive determination of every action.'" Celotex,

477 U.S. at 327. When ruling on a motion for summary judgment,

"the inferences to be drawn from the underlying facts . . . must be

viewed in the light most favorable to the party opposing the

motion." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

574, 587 (1986) (quoting United States v. Diebold, 369 U.S. 654,

655 (1962)); Hansen v. Continental Insur. Co., 940 F.2d 971, 975

(5th Cir. 1991).

Needless to say, unsubstantiated assertions are not competent

4

summary judgment evidence. Celotex, 477 U.S. at 324. The party

opposing summary judgment is required to identify specific evidence

in the record and to articulate the precise manner in which that

evidence supports his or her claim. See Forsyth v. Barr, 19 F.3d

1527, 1537 (5th Cir.), cert. denied, 115 S. Ct. 195 (1994). "Rule

56 does not impose upon the district court a duty to sift through

the record in search of evidence to support a party's opposition to

summary judgment." Skotak v. Tenneco Resins, Inc., 953 F.2d 909,

915-16 & n.7 (5th Cir.), cert. denied, 113 S. Ct. 98 (1992).

Ragas argues on appeal that the district court erroneously

granted summary judgment to all the defendants in the case. Ragas

spends less than two pages of the Appellants’ Brief making this

argument and focuses most of the attention upon the summary

judgment with respect to defendant Tenneco. However, Ragas’ notice

of appeal only appears to list defendant Koch as an appellee. With

respect to Koch, Ragas devotes one sentence of the brief to argue

that summary judgment was improvidently granted.1 Ragas’ argument

fails to persuade. Accordingly, the court finds that the district

court did not err in granting Koch summary judgment.

For the foregoing reasons, the judgment of the district court

is AFFIRMED.

1

Appellants’ brief states: “Furthermore, United’s successor

Koch Gateway admitted its pipeline runs between the pilings

identified by plaintiffs.” Appellants’ Brief, p.10.

5