# Petition for Writ of Mandamus — In re Rowan Cos., Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Mandamus
- **Published:** January 1, 1987
- **Citation:** 479 U.S. 1028

## Text

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N O. _ JOSEPH F. SPANIOL, JR,
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In the

Supreme Court of the United States

OCTOBER TERM, 1986

IN RE:
ROWAN COMPANIES, INC.,
Petitioner
AND
ROWAN COMPANIES, INC.
Petitioner

VERSUS
LOUIS W. STOREY

PETITION FOR WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
IN AND FOR THE WESTERN DISTRICT OF LOUISIANA,
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT, AND
PETITION FOR STATUTORY AND COMMON LAW
WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

DAVID A. HURLBURT
HURLBURT, PRIVAT & MONROSE
POST OFFICE DRAWER 4407
Lafayette, LA 70502

Telephone: 318/237-0261

ATTORNEY FOR ROWAN COMPANIES,
INC.

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555

i

QUESTIONS PRESENTED

*

Whether a defendant/employer has a statutory right
to a jury trial in a Jones Act (46 USCA § 688) suit by an
employee/seaman, when the seaman has elected to bring an
action at law, such that the seaman cannot unilaterally
amend his original complaint to strike the jury.

2.

If a defendant/employer has no statutory right to a
jury trial in a suit at law under the Jones Act (46 USCA §
688), does such employer have a right to one under the
Seventh Amendment to the United States Constitution
such that the seaman cannot unilaterally amend his
original complaint to strike the jury.

3.

If the Jones Act (46 USCA § 688) grants only seaman
the right to trial by jury, is that statute an unconstitu-
tional denial of the due process and equal protection rights
of the employer under the Fifth Amendment.

il

TABLE OF CONTENTS

QEFESTIONS PPR eit cesnsnccnsasscasicsncannncsarancscionnnsanis i
AR GO CI i tseictnctnnitiniticibininsnniceanntianreneaienia i
ene GE ATT ee 8 Re ccseiisninnniepienininiannaseaninitaaio’ ili
US Be UPI wscasiseccnoncinjeeniansanhnlinancansebahsadbeinaiiaiaemamanae medi 1
WHY RELIEF NOT AVAILABLE ELSEWHERE....... 2
SP AUT PC UNE SERNIT OY onceninsrsninrnicinsianaiendahaimimanlaainenoncaiaianid 4
POPE Eh GRIT cnt cccassicniccionsssennanedaadaaniiiaaiaiadimduimnntoahs 4
CONSTITUTION AND STATUTORY

POU ERUREEED BEST Ge WU ehentiteniinsnnicocanninnminnnetsirabsdeesasion 4
SE SRR REE GAC NUS ps ick a cinddshicicsrradadicdbonsvinnnsecens 7
REASONS FOR GRANTING

TEMES PMR EARS CR TIUIIRIN B Pacsscsnscccsscvcncncssasersoscssenes 8
EE INT 06. cinciscrentahtvscsicicebsinabiabanstcaniapaeinaaalcen 20

APPENDIX A:
District Court Order Allowing
PIE SOR sveesiictinininitatcendtiaaanbiaiienais A-l
APPENDIX B:
District Court Order Denying
I Gi I issn itis sestiscticcestpennonecnetapceeeicpeanloniatcaaniial A-2
APPENDIX C:
Fifth Circuit Denial

OE REI inisccesisnninsiinicsncccssitelainnaiaeciantaamaasiiotas A-3
APPENDIX D:

COREE SUR aa cinisasinnnstinhenisaumnbiinnitacashemmonaeias A-6
APPENDIX E:

Answer of Rowan Companies, Inc.....................:0065 A-15

APPENDIX F:
Notes of Advisory Committee
to 1966 Amendment to F.R.C.P. Rule 9................. A-22

lil

TABLE OF AUTHORITIES

CASES:
SUPREME COURT:

Buckley vs. Valeo, 424 US 1, 96 S.Ct. 612, 46 LE 2nd

i icc tcaianeciciniintceseinedanacumbeaioneninbeas 19
Curtis vs. Loether, 415 US 189, 94 S.Ct. 1005
SR TENITAtth cs ccincuaniecinsinailds dobed ukiiaanenivnihibaanddassnieenshbh 14,16,17
Dairy Queen, Inc. us. Wood, 369 US 469, 82 S.Ct. 894,
RITES SANE SAE Nes Oa FOOTE a ERE a 3
Dimick vs. Schiedt, 293 US 474, 486, 55 S.Ct. 296,
I aac dinneanceaiodsnnenstisesaoiaisorsvens 14
Ex parte Republic of Peru, 318 US 528, 63 S.Ct. 793,
asad uboaniemndhaeesonvetranrinanens 3
Fitzgerald vs. United States Line Company, 374 US
DO I, OE SRI a cgacedisesavsshnccnaceivasvacenetesesnccns 15,17
Panama R.R. vs. Johnson, 264 US 375, 44 S.Ct. 394,
aise claeces ick tadunninepmeenbinasunatennn 15
Romero vs. International Terminal Operating
Company, 358 US 354, 79 S.Ct. 468 (1959)............ 15,17
Ross vs. Bernhard, 396 US 531, 90 S.Ct. 733
tl tad dtc taich caichccadeiessahdsiniateniinchbiockomeescivesesnes 16,17,18
Shapiro vs. Thompson, 394 US 618, 89 S.Ct. 1332, 27
I CN i nsicicnsitbaphaibosoceainnitiusesetenilinnsnstiaseess 19
The Arizona vs. Anelich, 298 US 110, 56 S.Ct. 707
aaa i atleast ebhavnneedohenniniyiasvepnacubitnn 19

Weinberger vs. Wiesenfeld, 420 US 636, 95 S.Ct. 1225,
EY NEED BUNT IID ciccssstnkcsdivednisnsssonsacuvsvaesssondsscasinenten 19

ee re ne Sere

iv

TABLE OF AUTHORITIES (continued)

CASES: Page
CIRCUIT COURT:

Brown us. Mine Safety Appliances Company, 753 F.2d
Be SIs Ge, aiid estsicrestantiinciinns vines ncainaerigniediinneawine 16

Calnetics Corp. vs. Volkswagen of America, 532 F.2d.
674 (9th Cir. 1976), cert. denied, 429 US 940, 97

ie: ee sii iintee satis tat cicanticinsnscensnisiatonsanananinnsnensen 2
Cargill, Inc. vs. Offshore Logistics, Inc., 615 F.2d 212

OI GI: SO a cach cesctichica te ticea ent cncennde nicencssancdintontnn 3,7
Doucet vs. Wheless Drilling Company, 467 F.2d 336

(5th Cir., 1972), cert. denied, 410 US 956...............00 11
Emerson G.M. Diesel, Inc. vs. Alaskan Enterprise, 732

Fe Fe ee Ga Fenians cerittietsimerinsacincicnse 8

Fisher vs. Danos, 671 F.2d 904 (5th Cir., 1982), cert.
den., Gulf Oil Corp. vs. Fisher, 103 S.Ct. 89, 459 US

TT cn Ad oss otaebecasiplalansadeldannbbadeaioleasinaualalaisaviakeeceiiena: 12
In Re Incident Aboard D/B Ocean King, 758 F.2d 1063
SG Ss: IE cicitevahane:innsitissedessiseniLebauabaanadebammsdetanneieseen 16

Johnson vs. Penred Drilling Company, 469 F.2d 897
(5th Cir., 1972), on reh’g ex banc, 510 F.2d 234 (5th
Cir., 1975), cert. den., Starnes us. Penrod Drilling
Co., 423 US 839, 96 S.Ct. 68 (1975), overruled on
other grds in Culver us. Slater Boat Co., 688 F.2d
Se COE Ea, Sasaki 8,9,15

McCarthy vs. American Eastern Corporation, 175
F.2d 724 (8rd Cir., 1949), cert. den., American
Eastern Corp. vs. McCarthy, 338 US 868, 70 S.Ct.

STE LM TIRL TS LLP IS OD

Vv
TABLE OF AUTHORITIES (continued)

CASES: Page
CIRCUIT COURT:

McCrary vs. Seatrain Lines, Inc., 469 F.2d 666 (9th
Moore vs. Sun Oil Company of Pennsylvania, 636 F.2d
SIG BOR Stig: piste sa csccntaccsndsnsic natakbdanisatuitenkaces 16
Myers vs. U. S. District Court, etc., 620 F.2d 741 (9th
Rg! Te itciicstncs encinisininnchnemssdaiabinded ticle 17,18
Placid Oil Company vs. Federal Energy Regulatory

Commission, 666 F.2d 976 (5th Cir., 1982), reh’g
a BL RE TE emer “cat 3,8

Powell vs. Offshore Navigation, Inc., 644 F.2d 1063
(5th Cir., 1981), cert. denied, 454 US 972, 102 S.Ct.

OE: CP initia ostncctssstcheshecehadiatiadela natbechaaalaaaaeaaséouictliaie 15,16
Pradier vs. Elespuru, 641 F.2d 808 (9th Cir.,
RII pcs asincs sseiivadninceiiseeincaiasininaccbichasualinaaedaaasg a eee 19
Rachal vs. Ingram Corporation, 795 F.2d 1210 (5th
Chis: Pastore ccctennconnieiaiieieas 3,8,9,10,11,14,19
Robinson vs. Parsons, 560 F.2d 720 (5th Cir.,
RIT Ti icaoinicaseehinpissssaiinsnhascnsaniainsiasabam lags iain hdatianactiars Unban totless 3

Setser us Novak Inv. Company, 638 F.2d 1137 (8th
Cir., 1981), cert. denied, 454 US 1064, 102

AR, ais cuissisnessessaicniccnsipstenisssinhodeiea sper iatanianeraipicet daa aa 16,17
Sturgeon vs. Strachan Shipping Company, 698 F.2d
798 (5th Cir., 1983), on remand, 721 F.2d 144.............. 3

Texas Menhaden Company vs. Palermo, 329 F.2d 579
I Cr, CE siciasiknnkacchssxinccssnnstuns dabecioonentaenaniann 12

aa i i ia

vi

TABLE OF AUTHORITIES (continued)

CASES: Page
DISTRICT COURT:
Johnson vs. Venezuelan Line SS Company, 314
F.Supp. 1403, 1406 (ED LA 1970)................ccceseeteee 12,16
National Organization for the Reform of Marijuana
Law vs. Bell, 488 F.Supp. 123 (DC 1980)...........00000.. 19
Rachal vs. Ingram Corporation, 600 F.Supp. 406 (WD
LA ON. ci ae eee 3,11,12 |
Thomas vs. Peninsular and Oriental Steam
Navigation Company, 246 F.Supp. 592 (ED PA
NI ssccaniesninssvsmsssssitesinsacianpentiadisaseuienecemma em anR Sak. 2
Vassalos us. Hellenic Lines Limited, 482 F.Supp. 906
ERP FR Fy ieisticcinsivecin vinetenttctdinbctidpnataeamaddaess 12
Willis us. Woodson Construction Company, 593
F Set. OE CU Tah Fee tcctietsetareecai 15,16
CONSTITUTION, STATUTES AND REGULATIONS:
U. S. CONSTITUTION
Fifth Amendment to the United States
EAL ES RO Ne I TE TO 4,9,10 4
Seventh Amendment to the United States 5
CIO ooo. cccisscctinin ois 5,6,9,10,14,15,18
STATUTES
Be RE BE viccencsisnsnisorsesencnisiannielnancmaeonanemmmecntel 4
Be I BP BE i bvistesssivincistaveiencoiligisibiamitehiniuuniobaanl 4,9,15,16
I sts cosaninsiininivacosnnssiaiiahentiesaaianieiinill peiiebaaas 8,9
NN eB icnciniseckcsnnniniscrtniniisieibaseianidsspesipadiaietn ea aiaiatiaiaeaiaii 4
Se: PN TE I ieisnipastcsikesseisanesrsnbukplecalalie etiam icliceiag paeaal cl 4
ee ete Oe OO vniiinsi:ssianinsrsnseaietbialicailaleicantamensiibialaniiabienanbi 2

Vii

TABLE OF AUTHORITIES (continued)

CASES: Page
STATUTES

I Sa crnsinchaicenininesilanncemovsigniniingnceniien 2,5,7,9,10,11
Federal Rule of Civil Procedure 9(h).................... 2,5,7,9,16
Federal Rule of Civil Procedure 15......................00. 5,6,9,18
Federal Rule of Civil Procedure 38......................0... 6,7,9,18
Federal Rule of Civil Procedure 39.......................... 5,6,9,18
Rules of the Supreme Court Rule 17.0.0... 4
MISCELLANEOUS:

Law of Federal Courts, C. Wright (1976)...................00.. 18

1

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1986

NO.
IN RE:
ROWAN COMPANIES, INC.,
Petitioner
AND
ROWAN COMPANIES, INC.,
Petitioner

VERSUS
LOUIS W. STOREY

PETITION FOR WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT
IN AND FOR THE WESTERN DISTRICT OF LOUISIANA,
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT, AND
PETITION FOR STATUTORY AND COMMON LAW
WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROWAN COMPANIES, INC., by and through undersign-
ed counsel, respectfully petitions this Court to issue (1) a writ of
mandamus to the United States District Court for the Western
District of Louisiana, Alexandria Division, and, to the extent
necessary, to the United States Court of Appeals for the Fifth
Circuit, ordering the amending complaint of LOUIS W.
STOREY, stricken as impermissible under the Federal Rules of
Civil Procedure, and the Constitution of the United States, and
further affirmatively ordering that a jury trial take place; and/or
(2) issue a statutory and/or common law writ of certiorari to
review the judgment of the United States Court of Appeals for
the Fifth Circuit in this case. Since the petition in part questions

eC; i)

2

the constitutionality of an Act of Congress, 28 USCA §
2403(a) may be applicable. No United States court has
previously certified the fact or existence of such question
to the Attorney General.

The opinions below, the statutes involved, the ques-
tions presented, and the statement of the case with respect
to this petition will be set forth herein. The same considera-
tions that justify the assumption of jurisdiction by this
Court under writ of certiorari, a fortiori, warrant the is-
suance of a writ of mandamus and/or common law writ of
certiorari since the relief sought herein is essentially the
same.

WHY RELIEF NOT AVAILABLE ELSEWHERE

The issues presented by these alternative petitions
involve serious questions as to the denial of constitutional
rights as a result of statutory interpretation. ROWAN
COMPANIES, INC. (hereinafter ROWAN or petitioner), in
the District Court, demanded a jury trial in a Jones Act
case (46 USCA § 688, hereinafter Jones Act) brought ‘‘at |
law’’. (Note: ‘The demand was in the form of a motion to
strike the amended complaint of the seaman which sought
(1) to withdraw his jury demand and (2) to simultaneously
make a Rule 9(h) designation. F.R.C.P. Rule 9(h). Such
reliance is legally recognized as permissible. See, Calnetics
Corp. vs. Volkswagen of America, 532 F.2d. 674 (9th Cir.
1976), cert. denied, 429 US 90, 97 S.Ct. 355 (1976); and
Thomas vs. Peninsular and Oriental Steam Navigation
Company, 246 F.Supp. 592 (ED PA 1965)). The District
Court denied ROWAN’S demand. Rowan sought the same
relief in the Fifth Circuit Court of Appeals by way of writ
of mandamus. However, ROWAN’S position directly

3

conflicts with Fifth Circuit jurisprudence as well as that of
the specific District Court involved. Both Courts have held
that absent allegations of diversity of citizenship, only a
seaman has a right to a jury in a suit filed at law under the
Jones Act, and, therefore, the seaman could freely amend
to withdraw his demand. See Rachal vs. Ingram Corpora-
tion, 600 F.Supp. 406 (WD LA 1986), affirmed, at 795 F.2d
1210 (5th Cir., 1986). With ROWAN staring down the bar-
rel of such precedent, it is clear that adequate relief cannot
be had in any other form or forum. Fifth Circuit punels
must follow other panel decisions unless and until reversed
by the Circuit Court en banc, or by the United States
Supreme Court. Placid Oil Company vs. Federal Energy
Regulatory Commission, 666 F.2d 976 (5th Cir., 1982),
rehearing denied, 673 F.2d 1322; Cargill, Inc. vs. Offshore
Logistics, Inc., 615 F.2d 212 (5th Cir., 1980); and Robinson
us. Parsons, 560 F.2d 720 (5th Cir., 1977). Furthermore, the
District Court was obligated to follow the Fifth Circuit's
lead. Sturgeon vs. Strachan Shipping Company, 698 F.2d
798 (5th Cir., 1983), on remand, 721 F.2d 144.

Mar.damus is being sought pursuant to this
Honorable Court’s repeated statements that the right to a
trial by jury is so important that any denial thereof is pro-
perly reviewable by such a writ. Dairy Queen, Inc. vs.
Wood, 369 US 469, 82 S.Ct. 894, 8 LE 2nd 44 (1962); See,
also Ex parte Republic of Peru, 318 US 528, 63 S.Ct. 793,
87 LE 1014 (1943) (mandamus is appropriate from the
District Court to the Supreme Court where the case is of ex-
ceptional public importance). ROWAN has exhausted all
efforts at relief on distinguishing grounds. There remains
available to it only this forum in which the grave and
significant issues can be presented.

4
OPINIONS BELOW

There was no formal opinion of the District Court as
a result of any hearing nor argument. However, copies of
its involved orders are reproduced in Appendice A and B.
That Court denied petitioner’s motion to strike on August
22, 1986, finding ROWAN had no jury trial right. A writ
of mandamus was sought from the United States Court of
Appeals for the Fifth Circuit. Their opinion has not as yet
been reported, but is reproduced herein in Appendix C. On
September 17, 1986. It too denied a jury trial to ROWAN.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to
28 USCA § 1651 (the All Writs statute), and under writs of
certiorari pursuant to 28 USCA § 1254. (See, Rules of the
Supreme Court Rule 17).

Jurisdiction in the District Court existed by virtue of
a federal question under 28 USCA § 1331, and admiralty
and maritime jurisdiction, 28 USCA § 1333. As noted
above, the District Court denied relief to ROWAN by deci-
sion dated August 22, 1986. The Fifth Circuit’s denial was
by decision of September 17, 1986.

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

1.
The Fifth Amendment to the United States Con-
stitution provides in relevant part:

‘No person shall***be deprived of life, liberty, or
property, without due process of law***.”’

+)
2.

The Seventh Amendment to the United States Constitu-
tion provides in pertinent part:

“In Suits at common law, where the value in con-
troversy shall exceed twenty dollars, the right of
trial by jury shall be preserved***.’’

3.

Title 46 USCA § 688, commonly referred to as the
Jones Act, provides, in pertinent part:

“Any seaman who shall suffer personal injury in
the course of his employment may, at his election,
maintain an action for damages at law, with the
right of trial by jury, and in such action all
statutes of the United States modifying or exten-
ding the common—law right or remedy in cases of
personal injury to nnmay employees shall

apply:***.”’
4.

Rule 9(h) of the Federal Rules of Civil Procedure recites in
pertinent part:

“A pleading or count setting forth a claim for
relief within the admiralty and maritime jurisdic-
tion that is also within the jurisdiction of the
district court on some other ground may contain
a statement indentifying the claim as an admiral-
ty or maritime claim for the purposes of
Rules...38(e)....If the claim is cognizable only in
admiralty, it is an admiralty or maritime claim for
those purposes whether so identified or not. The
amendment of a pleading to add or withdraw an
identifying statement is governed by the prin-
ciples of Rule 15...:”

6
5.

Rule 15 of the Federal Rules of Civil Procedure states
in pertinent part:

‘(a) Amendments. A party may amend his
pleading once as a matter of course at any time
before a responsive pleading is served....Other-
wise a party may amend his pleading only by
leave of court or by written consent of the adverse
party: and leave shall be freely given when justice
so requires.”

6.

Federal Rule of Civil Procedure 38 recites in perti-
nent part:

‘‘(a) Right Preserved. The right of trial by jury as
declared by the Seventh Amendment to the Con-
stitution or as given by a statute of the United
States shall be preserved to the parties inviolate.

(d) Waiver....A demand for trial by jury made as
herein provided may not be withdrawn without
the consent of the parties.”’

A

Rule 39 of the Federal Rules of Civil Pro-
cedure states, in pertinent part:

‘“(a) By Jury. When trial by jury has been
demanded...the action shall be designated upon
the docket as a jury action. The trial of all issues
so demanded shall be by jury, unless (1) parties or
their attorneys of record, by written stipulation

7

filed with the court or by an oral stipulation made
in open court and entered in the record, consent to
trial by the court sitting without a jury or (2) the
court upon motion or of its own initiative finds
that a right of trial by jury of some or all of those
issues does not exist under the Constitution or
statutes of the United States.

9

STATEMENT OF THE CASE

Litigation was initiated by the plaintiff, LOUIS W.
STOREY (hereinafter STOREY) by filing suit in the
United States District Court for the Western District of
Louisiana, Alexandria Division, on October 15, 1985. (See
Appendix D). STOREY invoked admiralty and maritime
jurisdiction, as well as federal question jurisdiction at law
under the Jones Act (46 USCA § 688). STOREY made no
designation under Rule 9(h) of the Federal Rules of Civil
Procedure. To the contrary, he specifically demanded trial
by jury—a demand inconsistent with such designation.
ROWAN, relied upon plaintiff's initial jury demand, and
did not make an independent request in its answer. (See
Appendix E).

On July 24, 1986, STOREY filed an amended com-
plaint, to delete his jury demand and to make a F.R.C.P.
9(h) designation. An Order allowed the amended complaint
on July 25, 1986. (See Appendix A). ROWAN, without a
prior opportunity to oppose the filing of the amended com-
plaint, filed a motion to strike suggesting STOREY could
not withdraw his demand without ROWAN’S consent. See
F.R.C.P. 38. ROWAN claimed it was entitled to rely upon

8

the jury demand of plaintiff. Without a hearing or argu-
ment, the District Court summarily denied the motion to
strike citing Rachal vs. Ingram Corporation 795 F.2d 1210
(5th Cir., 1986). (See Appendix B).

Based on the then existing record, ROWAN filed for
a writ of mandamus with the Fifth Circuit. Cognizant of
the Fifth Circuit’s decision in Rachal, supra, 795 F.2d 1210
(5th Cir., 1986), and the Circuit rules requiring panels to
adhere to previously issued opinions Placid Oil Company,
supra, 666 F.2d 976 (5th Cir., 1982), reh’g denied, 673 F.2d
1322; and Cargill, Inc., supra, 615 F.2d 212 (5th Cir., 1980),
ROWAN utilized a suggestion of diversity to assert a con-
stitutional right to a jury trial under 28 USCA § 1332. (The
Fifth Circuit has recognized this previously in Johnson vs.
Penrod Drilling Company, 469 F.2d 897 (5th Cir., 1972), on
reh’g en banc, 510 F.2d 234 (5th Cir., 1975), cert. den.,
Starnes vs. Penrod Drilling Co., 423 US 839, 96 S.Ct. 68
(1975), overruled on other grds. in Culver vs. Slater Boat
Co., 688 F.2d 280 (5th Cir., 1982). But see, Emerson G.M.
Diesel, Inc. vs. Alaskan Enterprise, 732 F.2d 1468 (9th Cir.,
1984); and McCrary vs. Seatrain Lines, Inc., 469 F.2d 666
(9th Cir., 1972)). The Fifth Circuit, finding diversity was
not apparent on the face of the complaint (and therefore,
Johnson vs. Penrod Drilling Company, supra, did not app-
ly), denied the writ on the strength of Rachal. As a result,
this suit will proceed to Judge, and not jury trial, unless
the relief prayed for herein is granted.

REASONS FOR GRANTING RELIEF

A. OVERVIEW

This case presents extremely important questions

9

concerning the interplay between constitutional rights
under the Fifth and Seventh Amendments, the Jones Act
(46 USCA § 688), diversity and federal question jurisdic-
tion (28 USCA § 1332, and 28 USCA § 1331, respectively),
and the Federal Rules of Civil Procedure. In effect, the
Fifth Circuit holds that only Jones Act plaintiffs are entitl-
ed to a jury trial when suit is filed at law and where diversi-
ty has not been alleged as a jurisdictional base. Rachai,
supra, 795 F.2d 1210 (5th Cir., 1986), and Johnson us.
Penrod Drilling Company, supra. Therefore, the logic con-
tinues, an employer cannot be heard to complain when the
District Court allows the seaman to amend his prior com-
plaint to withdraw his jury request making a F.R.C.P. 9(h)
designation. Rachal vs. Ingram Corporation, supra. After
all, the presence or absence of a Rule 9(h) designation is not
necessarily binding. F.R.C.P. 9(h).

Yet, the liberality with which the amendment of
pleadings is generally viewed (F.R.C.P. Rule 15) is
tempered, for as the rule itself states, ‘‘...Leave shall be
freely given when justice so requires’’(emphasis supplied).
The only justification for the Rachal, supra, conclusion is
a finding that there is no statutory nor constitutional right
to trial by jury afforded the defendant and therefore the
procedural protections of F.R.C.P. 38 and 39 do not come
into play. Obviously, Rules 38 and 39 exist to assure pro-
tection of Seventh Amendment rights. Since no stipulation
or consent was obtained in the present case, only under
F.R.C.P. 39 (a)(2) can the denial of a jury trial be justified.
Absent a conclusion that the seaman has the exclusive jury
trial right, the theoretical underpinnings of Rachal, supra,
disappear. Because this proposition lies at the heart of the
dispute and has implications far beyond statutory inter-
pretation, it is significant to examine its origin and
development.

10

First, ROWAN contends the Fifth Circuit is wrong
in its interpretation of the Jones Act. ROWAN does have

a jury trial right and therefore the amended complaint
could not be allowed.

Second, if the Fifth Circuit’s interpretation is ac-
curate, ROWAN suggests that it has an independent right
to a jury trial under the Seventh Amendment such that the
amending complaint should not have been allowed.

Third, and finally, should this Court find that the
Fifth Circuit’s interpretation of the Jones Act (46 USCA §
688) proves accurate, and that there is no independent
right to a jury trial afforded ROWAN under the Seventh
Amendment of the Constitution, ROWAN suggests that
its Fifth Amendment rights of due process and equal pro-
tection have been violated by the election provision of the
Jones Act.

B. STATUTORY INTERPRETATION

The conclusion that only the seaman has a right to a
jury trial in an action ‘‘at law’ under the Jones Act springs
from the mutilation of the principle that the seaman, and
the seaman alone, has the right to elect between an action
“in admiralty’’, on the one hand, and one ‘“‘at law’’ on the
other. See 46 USCA § 688. It is not the purpose of this peti-
tion to call into question the seaman’s ability to make that
election. Rather, ROWAN contends that once such election
is made the same rules should apply to seaman and
employer alike. The Fifth Circuit does not, apparently,
believe in such equality. Rachal, supra holds that since the
seaman has this initial election, if he decides to file ‘‘at
law’’, he has a further exclusive election between a jury or

11

non-jury trial ROWAN contends there simply is no sup-
port for this latter proposition.

Initially it is noted that the statute itself belies any
such conclusion. Grammatically, the ‘‘at his election”
language precedes and thus modifies the maintenance of
‘“‘an action for damages at law’’. If the Congress wanted to
give the seaman the sole right to elect jury or non-jury
trial, the statute could very easily have been made to read:

‘‘Any seaman who shall suffer personal injury in
the course of his employment may maintain an ac-
tion for damages at law, with the right of trial by
jury at his election....”’

Tracing Rachal’s challenged conclusion also pro-
duces interesting results. Rachal states the proposition
matter-of-factly as,

‘In this case, however, when the initial complaint
was filed and the plaintiff chose a civil action, the
only right to a jury trial belonged to the plaintiff
under the Jones Act.”’ 795 F.2d at 1217.

Since such a cursory examination was made of the
arguments on appeal, looking at the District Court decision
is enlightening. In Rachal, supra, at 600 F.Supp. 406 (WD
LA 1984), the District Judge elaborated on the support for
his proposition:

‘‘However, under the Jones Act, a plaintiff
seaman may elect to have a jury trial. 46 USCA
§ 688. This election belongs to the seaman, not his
employer, and the employer may not require a

12

jury trial. Johnson us. Venezuelan Line SS Com-
pany, 314 F.Supp. 1403, 1406 (ED LA 1970);
Texas Menhaden Company, vs. Palermo, 329 F.2d
579 (5th Cir., 1964);’’ 600 F.Supp. at 407.

Admittedly, a brief perusal of the jurisprudence
seems to support the proposition stated. The decisions
cited and alluded to in this regard are Fisher vs. Danos, 671
F.2d, 904 (5th Cir., 1982), cert. den. Gulf Oil Corp. vs.
Fisher, 103 S.Ct. 89, 459 US 840; Doucet vs. Wheless Drill-
ing Company, 467 F.2d 336 (5th Cir., 1972), cert. denied,
410 US 956; Texas Menhaden Company vs. Palmermo, 329
F.2d 579 (5th Cir., 1964); McCarthy vs. American Eastern
Corp., 175 F.2d 724 (8rd Cir., 1949); Vassalos vs. Hellenic
Lines Limited, 482 F.Supp. 906 (ED PA 1979); and
Johnson vs. Venezuelan Line SS Company, 314 F.Supp.
1403 (ED LA 1970). However, on closer scrutiny, it is clear
that the terminology utilized in these decisions was meant
to describe the seaman’s exclusive right to elect between a
cause of action ‘‘in admiralty’’ and one “‘at law’. Taking
the language in these decisions out of context seems to
have collectively contributed to the Fifth Circuit’s er-
roneous equating of the choice of forum (‘‘at law”’ or “‘in ad-
miralty’’) with a choice between Judge or jury.

For example, in Johnson vs. Venezuelan Lines
Steamship Company, supra, the Court stated the defen-
dant could not elect between ‘‘admiralty’”’ and “‘law’’, and,
therefore, could not require a jury trial. This is partially
correct. If the seaman elects to file ‘‘in admiralty’’, the
employer cannot force any other election. However, the
case does not address whether the employer has a right to
a jury if the seaman files on the civil side. Additionally,
McCarthy vs. American Eastern Corp., 175 F.2d 724 (3rd

13

Cir., 1949), gives more ready support to the position as
asserted by ROWAN. It is therein stated:

‘“‘In our view the election to which the Jones Act
refers is an election of remedies as between a suit
in admiralty and a civil action. Prior to the
passage of the Jones Act, unless there was a
diversity of citizenship, a seaman was compelled
in the Federal Court to assert his cause of action
for injuries in a suit in admiralty in which there
was no Jury trial. It was the purpose of the elec-
tion clause of the Jones Act, we think, to make
certain that an injured seaman, instead of suing
in admiralty, could at his option assert his cause
of action for personal injuries in the Federal
Courts in an action at law regardless of diversity
of citizenship, thereby obtaining the right to a
jury trial...” 175 F.2d at 726-7. (emphasis
supplied)

It is significant to note that in most if not all of the
decisions cited above, there is no specific attention directed
to the Judge or jury election. Rather the basic issue was the
right of election as to civil or admiralty. The Fifth Circuit
has drawn the conclusion that the only reason a seaman
would want to bring a ‘‘civil’”’ action would be to avail
himself of the jury trial right. Therefore, since the plaintiff
has the choice of admiralty or ‘‘civil’’ action, he has the sole
choice on the jury decision. In so concluding the Court ig-
nores the possibility that a civil action may be desirable
without a jury. By filing on the civil side, the plaintiff ob-
tains ‘‘the right to a jury trial...”, McCarthy, supra, 175
F.2d at 726-7, and not the obligation to have a jury trial.

Clearly, the reference in the Jones Act to ‘“‘with the

14

right of trial by jury’”’ is nothing more than legislative
clarification that the cause of action statutorily created is
one ‘‘at law’’ with the full panoply of rights and obligations
to apply. The legal proposition set forth in Rachal with
such a cavalier air, simply cannot withstand logical
analysis. Moreover, the Fifth Circuit’s analysis subjects
the statute to a due process and equal protection attack.
(See Section C of this petition beginning at page 18).

This Court should reset the Fifth Circuit’s compass.
Without theoretical, logical, nor legislative support, a
Jones Act employer should not be deprived of a right which
‘occupies so firm a place in our history and jurisprudence
that any seeming curtailment...should be scrutinized with
the utmost care.’’ Dimick vs. Schiedt, 293 US 474, 486, 55
S.Ct. 296, 301, 79 LE 603 (1935).

C. INFRINGEMENT ON THE SEVENTH
AMENDMENT

Alternatively assuming that the statute is being pro-
perly interpreted by the Fifth Circuit, and that, therefore,
it grants only unto plaintiff the choice between Judge and
jury, the question becomes whether or not there exists an
independent basis for finding the employer entitled to a
jury under the Seventh Amendment. As even the Fifth Cir-
cuit recognizes, the right to a jury trial does not emanate
from the basis for jurisdiction alone, but rather derives
from the Seventh Amendment itself. Rachal, supra, 795
F.2d 1210, 1216, Ftnt. 8 (5th Cir., 1986). A determination
of whether a jury trial exists is a two-fold inquiry. First,
what is the basis for jurisdiction? Second, assuming
jurisdiction exists, does the claim at issue fall within the
traditional framework of jury trial propriety? Curtis vs.
Loether, 415 US 189. 94 S.Ct. 1005 (1974).

15

It goes without saying that there is no right to a jury
trial solely at admiralty. Yet, if an independent jurisdic-
tional basis exists consideration then becomes necessary
with regard to the nature of the cause of action. See Powell
vs. Offshore Navigation, Inc. 644 F.2d 1063 (5th Cir., 1981),
cert. denied. 454 US 972, 102 S.Ct. 521 (1981); and Willis
us. Woodson Construction Company, 593 F.Supp. 464 (WD
LA 1983). This is the conclusion the Fifth Circuit itself has
reached at least with respect to diversity of citizenship.
Johnson vs. Penrod Drilling Company, supra. In Johnson
the Court held the employer does have a jury trial right
under the Seventh Amendment, when there exists, in addi-
tion to admiralty, an independent basis of jurisdiction
through which that constitutional entitlement flows. The
Fifth Circuit’s decision in this case reflects that the
Johnson us. Penrod scenario only seemingly fits if diversity
is alleged on the face of the complaint. (See Appendix C,
Page 2). On closer analysis it is quite apparent that the
Fifth Circuit, in concentrating on the most prevalent basis
for alternative jurisdiction - diversity, has overlooked a
completely separate basis for jurisdiction - federal ques-
tion. 28 USCA S. 1331.

Of seminal importance to this analysis are this
Court’s decision in Fitzgerald us. United States Line Com-
pany, 374 US 16, 83 S.Ct. 1646 (1963); Romero vs Interna-
tional Terminal Operating Company, 358 US 354, 79 S.Ct.
468 (1959); and Panama R.R. vs. Johnson. 264 US 375, 44
S.Ct. 394, 68 LE 748 (1924). These decisions piggyback a
conclusion that the civil action the seaman may elect under
the Jones Act has a federal question jurisdictional base. 28
USCA § 1331. This is significant. Just because the basis of
jurisdiction is federal question, as opposed to diversity,
does not mean that a jury trial is not available absent a

16

specific statutory grant if all other requirements for jury
trial are met. See Curtis vs. Loether, 415 US 189, 94 S.Ct.
1005 (1974); Setser vs. Novak Inv. Company, 638 F.2d 1137
(8th Cir., 1981), cert. denied, 454 US 1064, 102 S.Ct. 615; Jn
Re Incident Aboard D/B Ocean King, 758 F.2d 1063 (5th
Cir., 1985); Brown vs. Mine Safety Appliances Company,
753 F.2d 393 (5th Cir., 1985); Powell vs. Offshore Naviga-
tion, Inc., supra; and Moore vs. Sun Oil Company of Penn-
sylvania, 636 F.2d 154 (6th Cir., 1980). In the instant case,
when the plaintiff filed suit under the Jones Act and
elected a trial by jury, federal question jurisdiction clearly
attached. Powell vs. Offshore Navigation, Inc., 644 F.2d
1063 (5th Cir., 1981), cert. denied, 454 US 972, 102 S.Ct.
521 (1981); Willis us. Woodson Construction Company,
supra; and Johnson vs. Venezuelan Lines SS Company,
supra. The Court in Powell stated:

“Since the Jones Act established a Federal
statutory basis of recovery...jurisdiction of a
Jones Act claim is founded on general Federal
question jurisdiction, 28 USCA § 1331, and not
on Federal admiralty jurisdiction....’’ 644 F.2d at
1067.

These conclusions are buttressed by the notes of the
Advisory Committee to the 1966 Amendment to F.R.C.P.
Rule 9. (See Appendix F).

Since there is nothing inherent in Federal question
jurisdiction to be destructive of a jury trial (and in fact
F.R.C.P. Rule 9(h) supports same), the second step makes
it necessary to look to the nature of the relief sought. See
Curtis vs. Loether, 415 US 189, 94 S.Ct. 1005 (1974). As
stated in Ross vs Bernhard, 396 US 531, 90 S.Ct. 733
(1970), in analyzing Curtis us. Loether, supra:

17

“Some Courts took the view that no jury trial
right attached to purely statutory causes of ac-
tion which had no direct common-law counter-
part. (Citations omitted). Whatever merit there
may have been to this expansive notion, it was
quickly deflated by Curtis vs. Loether (citations
omitted).... Curtis vs. Loether shifts the focus to
the second issue: the nature of the relief sought.”
396 US at 538, Note 10, 90 S.Ct. at 738, Footnote
10.

Therefore, to determine whether or not a jury trial
right exists an examination of the claim is necessary. Is it
legal or equitable? Personal injury claims are inherently
legal. Ross, supra, 396 US 531 at 538 (1970); Myers us. U.S.
District Court, etc., 620 F.2d 741 (9th Cir., 1980). In Setser
us. Novak Inv. Company, 638 F.2d 1137 (8th Cir., 1981),
cert. denied, 454 US 1064, 102 S.Ct. 615, the Court stated:

“The Supreme Court has definitely held that
‘[t]he Seventh Amendment does apply to actions
enforcing statutory rights, and requires a jury
trial upon demand, if the statute creates legal
rights and remedies enforceable in an action for
damages in ordinary courts of law.’ Curtis vs.
Loether, 415 US 189, 194, 94 S.Ct. 1005, 1008, 39
LE 2nd 260 (1974).”’

In summary, the Jones Act affords federal question
jurisdiction (Fitzgerald vs. United States Line Company,
supra, and Romero vs. International Terminal Operating
Company, supra) and that the nature of the relief sought
herein meets the second criteria (Curtis vs. Loether, supra).
Traditionally, suits for personal injury and monetary
damages are the stuff of which “‘legal’’ as opposed to

18

“equitable’’ proceedings are made. See also Ross vs. Bern-
hard, supra; Myers, supra, 620 F.2d 742 (9th Cir., 1980).
Finally, as noted by one of the country’s most eminent
scholars on the Federal judiciary,

“The Jones Act remedy is ‘legal’ and there is a
right of trial by jury.’’ C. Wright, Law of Federal
Courts, at Page 455 (1976).

It is submitted that ROWAN had a right to a jury
trial when the plaintiff invoked federal question jurisdic-
tion and made the demand himself. That demand could not
thereafter be withdrawn without complying with the
Federal Rules of Civil Procedure, F.R.C.P. 38, 39 and 15.
These provisions require the consent of ROWAN to the
withdrawal, or, at the very least, a finding by the Court
that ROWAN was not entitled to a jury trial under any
statute or the Constitution. Without meeting these re-
quirements the plaintiff should not have been permitted to
withdraw his jury trial demand. The amended complaint
should be therefore stricken and the case reassigned to the
jury docket.

C. DENIAL OF DUE PROCESS
AND EQUAL PROTECTION

Alternatively, should this Court conclude that the
Fifth Circuit's interpretation of the Jones Act is accurate
and that the Seventh Amendment affords no independent
jury trial right, ROWAN contends that the Jones Act
violates the due process and equal protection to which
ROWAN is entitled via the Fifth Amendment. The right to
a trial by jury is a fundamental right since its foundation

19

lay in the Constitution itself. See Buckley us. Valeo, 424
US 1, 96 S.Ct. 612, 46 LE 2nd 659 (1976); Weinberger vs.
Wiesenfeld, 420 US 636, 95 S.Ct. 1225, 43 LE 2nd 514
(1975). Any right is fundamental that is explicitly stated or
implicit in the constitutional grants. Pradier vs. Elespuru,
641 F.2d 808 (9th Cir., 1981); National Organization for the
Reform of Marijuana Law vs. Bell, 488 F.Supp. 123 (DC
1980). With the right being accorded ‘‘fundamental’”’
status, then any statute which seeks to discriminate in the
grant of such a right must withstand strict scrutiny.
Shapiro vs. Thompson, 394 US 618, 89 S.Ct. 1332, 27 LE
2nd 600 (1969).

Petitioner can fathom no basis whatsoever that
would justifiably aliow a seaman the sole and exclusive
choice of mode of trial in a “‘legal’’ action. In so stating,
ROWAN recognizes that seamen can elect between a civil
and admiralty action. Still, once that election is made both
plaintiff and defendant are bound by the same rules of pro-
cedure. If the seaman elects an action ‘in admiralty’’,
neither he nor the defendant has the right to a trial by jury.
However, the interpretation presently accorded the Jones
Act allows the plaintiff not only to make an election bet-
ween “at law”’ and “‘in admiralty’’, but when electing ‘‘at
law’’ he has the sole right to select judge or jury (see
Rachai, supra).

ROWAN is cognizant of the firmly embedded princi-
ple that seamen are typically treated as wards of the Court.
The Arizona vs. Anelich, 298 US 110, 56 S.Ct. 707 (1936).
However, there is nothing about such a protected status
that can justify the discrimination noted. Procedurally,
what justification can there be for affording the seaman the
opportunity to manipulate the system according to his own

20

predilections” If so, then why not afford the seaman a
‘“‘biased’”’ jury? Why not deny the employer the right of
cross-examination or the right to object? Why allow the
employer to participate in jury selections?

There are obviously policy considerations to evaluate
in connection with the remedies involved. However, there
are principles of fundamental fairness at work. Once the
framework has been laid, both parties are entitled to a fair
trial. Both parties are entitled to have a disinterested trier
of fact. To allow one party or the other the sole and ex-
clusive choice under the circumstances presented would
jeopardize the Constitutional principles of equality before
the law and call into question the fairness principles upon
which our system of justice is based. To allow such an ex-
clusive choice immediately calls into question the existence
of impartiality on the part of the trier of fact.

CONCLUSION

Given the significance of the issues presented herein,
it is respectfully submitted that a writ of mandamus
should issue requiring that the amended complaint of plain-
tiff be stricken, and the case replaced upon the jury dock-
ket. Alternatively, this Honorable Court is requested to
issue writs of certiorari to the Fifth Circuit Court of Ap-
peals. Neither statutory nor constitutional principles can
be satisfied or preserved without the grant of relief as re-
quested herein.

HURLBURT, PRIVAT & MONROSE
(A Professional Law Corporation)

BY:

DAVID A. HURLBURT
Post Office Drawer 4407
Lafayette, Louisiana 70502
Telephone: 318/237-0261

Attorney for ROWAN COMPANIES, INC.

21
CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-
ing brief has been served on all counsel by U. S. Mail on
this 10th day of November, 1986.

DAVID A. HURLBURT

A-1
APPENDIX A
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
Filed July 25 1986
LOUIS W. STOREY CIVIL ACTION

VERSUS NUMBER: CV85-2977

* © + *&

ROWAN COMPANIES, INC. SECTION: ‘‘A”’

ORDER
PREMISES CONSIDERED, it is

ORDERED that the complainant, LOUIS W.
STOREY, be allowed to file the First Amended Complaint.

THUS DONE AND SIGNED, this 25 day of July,
1986, Alexandria, LA.

[Si __F.A. Little, Jr.
UNITED STATES DISTRICT COURT JUDGE

A-2
APPENDIX B

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

Filed August 22 1986
LOUIS W. STOREY

VERSUS CIVIL ACTION NO:. 85-2977
SECTION “A”
ROWAN COMPANIES, INC.

ORDER
Considering the forgoing motion,

IT ISORDERED that plaintiff’s first amended com-
piaint seeking to make a Rule 9(h) designation which in
turn seeks to eliminate the jury trial, be and the same is
hereby strickened.

, Louisiana, this day of

, 1986.

UNITED STATES DISTRICT JUDGE

(Handwritten)
Denied - See Rachal v Ingram
5th Cir. opinion filed 4 Aug 86
Affirming this Court in a virtually identical matter.
Alexandria La.
22 Aug. 86
isi F.A. Little, Jr.

:

A-3
APPENDIX C

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 86-4625

Filed Sep. 17, 1986

IN RE: ROWAN COMPANIES, INC.,
Petitioner.

ON PETITION FOR WRIT OF MANDAMUS
TO THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF LOUISIANA

Before CLARK, Chief Judge, GARWOOD and HILL, Circuit
Judges.

BY FHS. SOUR:

IT IS ORDERED that the petition for writ of mandamus
is DENIED.

In Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir. 1986),
this Court held that the rule of Johnson v. Penrod Drilling Co.,
469 F.2d 897 (5th Cir., 1972), on rehearing en banc, 510 F.2d 234
(5th Cir. 1975), cert. denied, 423 U.S. 839 (1975), respecting the
defendant’s right to insist on a jury trial under Fed.R.Civ.P.
39(a) in a Jones Act and unseaworthiness case, did not apply
where federal jurisdiction was not also predicated on diversity of
citizenship, but rather rested solely on the Jones Act and ad-
miralty jurisdiction. The question in this case, then, is whether
or not plaintiff's original complaint alleged diversity jurisdic-
tion, in addition to jurisdiction under the Jones Act and

A-4

admiralty jurisdiction. We hold that diversity jurisdiction
was not alleged, and that accordingly Penrod does not app-
ly and under Rachal the defendant is not entitled to insist
on a jury trial under Rule 39(a). We first observe that the
caption of the complaint and its express jurisdictional
allegations invoke only admiralty and maritime jurisdic-
tion and the Jones Act; there is no express allegation that
jurisdiction is based on diversity of citizenship, nor any
reference to 28 U.S.C. § 1332. Further, the factual allega-
tions respecting the parties are insufficient to invoke diver-
sity jurisdiction. The original complaint alleges only that
the plaintiff is ‘‘a resident . . . of the State of Mississippi.”’
This is not a sufficient allegation for purposes of diversity
jurisdiction, since ‘‘a statement that the party is a ‘resi-
dent’ of a particular state or foreign country is not suffi-
cient since jurisdiction depends on citizenship and not mere
residence.’’ Wright & Miller, Federal Practice and Pro-
cedure: Civil § 1208 at p. 85. We have long followed that
rule. See Strain v. Harrelson Rubber Co., 742 F.2d 888, 889
(5th Cir. 1984); Neely v. Bankers Trust Co. of Texas, 757
F.2d 621, 634 n. 18 (5th Cir. 1985); Nadler v. American
Motors Sales Corp., 764 F.2d 409, 413 (5th Cir. 1985). With
respect to the defendant, the complaint alleges only that it
is ‘‘a foreign corporation domiciled in Wilmington,
Delaware authorized to do and doing business in the State
of Louisiana.”’ This allegation is also insufficient for diver-
sity purposes because ‘‘a complaint properly asserting
diversity jurisdiction must state both the state of incor-
poration and the principal place of business of each cor-
porate party.”’ Illinois Central Gulf R. Co. v. Pargas, Inc.,
706 F.2d 633, 637 (5th Cir. 1983) (emphasis in original);

A-5

Nadler, 764 F.2d at 413. The instant suit was filed in the
United States District Court for the Western District of
Louisiana, and the allegation that the defendant is ‘‘a
foreign corporation’’ does not clearly allege that it is not a
Mississippi corporation, but rather seems to allege that it
is not a Louisiana corporation; if it were a Mississippi cor-
poration, there would not be diversity, if we assume that
plaintiff is a citizen of Mississippi. Further, we do not
believe that the allegation that the defendant corporation
is ‘‘domiciled”’ in Delaware suffices to allege that its state
of incorporation and principal place of business are each
Delaware (or that neither is Mississippi).

Thus, the original complaint was not a sufficient
predicate for diversity jurisdiction. Accordingly, the rule of
Rachal applies. Therefore, the district court did not err in
refusing to strike plaintiff's first amended complaint on the
ground that it sought to make an admiralty designation
under Fed.R.Civ.P. 9(h) so as to eliminate a jury trial.

A-6
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

Filed Oct. 15 1986

LOUIS W. STOREY * CIVIL ACTION
ra

VERSUS * NUMBER: CV85-2977
*

ROWAN COMPANIES, INC. * SECTION:

COMPLAINT WITHIN THE ADMIRALTY AND
MARITIME
JURISDICTION PURSUANT TO THE PROVISIONS
OF THE
JONES ACT, 46 U.S.C.A. §688, AND
THE GENERAL MARITIME LAW

TO THE HONORABLE UNITED STATES
DISTRICT COURT IN AND FOR THE WESTERN
DISTRICT OF LOUISIANA:

The Complaint of LOUIS W. STOREY, a resident of
the full age of majority of the State of Mississippi, County
of Hancock, respectfully represents:

I.

That this case is cognizable under the Admiralty and
Maritime jurisdiction pursuant to an Act of Congress,
known as the Merchant Marine Act, commonly referred to
as the Jones Act (46 U.S.C.A., §688) and pursuant to the

A-7

General Maritime Law of the United States of America, as
hereinafter more fully appears.

Il.
Made defendant herein is:

ROWAN COMPANIES, INC., a foreign corpora-
tion domiciled in Wilmington, Delaware,
authorized to do and doing business in the State
of Louisiana, and which has appointed C.T. Cor-
poration System, 400 Poydras Street, New
Orleans, Louisiana 70130, as its agent for service
of process on causes of action arising in the State
of Louisiana.

FOR A FIRST CAUSE OF ACTION
III.

On or about August 23, 1984, complainant, LOUIS
W. STOREY, while in the course and scope of his employ-
ment with defendant, ROWAN COMPANIES, INC., as a
seaman and member of the crew of the ROWAN
HALIFAX, a vessel in navigation, upon information and
belief owned by defendant, ROWAN COMPANIES, INC.,
was caused to be greviously, painfully and disablingly
injured.

IV.

On information and belief, complainant alleges that
the sole and proximate cause of the above-described

i caecactcaatetleaieaaal ital

A-8

accident was the negligence of the defendant, ROWAN
COMPANIES, INC., or its servants or agents, either in-
dividually or concurrently, in the following non-exclusive

respects:

A) Breach of a legally imposed duty of reasonable care
owed by the defendants to the complainant;

B) Failure to provide a reasonably safe place to work;

C) Creation and maintenance of an unseaworthy
vessel;

D) Failure to promulgate and enforce safety regula-
tions adequate to have prevented the accident; and

E) Other acts of negligence which will be proven at the
trial of this cause.

V.

Prior to the above-described accident, complainant,
Louis W. Storey, was an able-bodied seaman, 33 years of

age.
VI.

That as a direct and proximate result of the aforesaid
negligence of the defendant herein, complainant has suf-
fered injuries and damages in the amount of ONE
MILLION, TWO HUNDRED THOUSAND AND NO/100
($1,200,000.00) DOLLARS.

A-9
FOR A SECOND CAUSE OF ACTION

Complainant repeats and re-alleges all of the forego-
ing paragraphs of his first Cause of Action with the same
force and effect as if herein set forth at length, and in addi-
tion thereto, alleges:

VII.

Pursuant to the General Maritime Law of the United
States of America, the defendant, ROWAN COMPANIES,
INC., had the absolute and non-delegable duty to provide
complaintant with a safe and seaworthy vessel and ap-
purtenances, a seaworthy crew, and to provide complainant
with a vessel reasonably fit for its intended purpose.

VILLI.

That the defendant’s vessel, was unseaworthy by
reason of the aforesaid facts alleged in Paragraph IV. and
that the injuries sustained by complainant were sustained
as the direct and proximate result of the unseaworthiness
of the vessel mentioned hereinabove.

IX.

As a direct and proximate result of the unseawor-
thiness of the vessel ROWAN HALIFAX, complainant,
LOUIS W. STOREY, suffered damages and injuries
aforesaid, all to his damage in the full sum of ONE
MILLION, TWO HUNDRED THOUSAND AND/100
($1,200,000.00) DOLLARS.

A-10
FOR A THIRD CAUSE OF ACTION

Complainant repeats and re-alleges all of the forego-
ing paragraphs of his First and Second Cause of Action
with the same force and effect as if herein set forth at
length, and in addition thereto, alleges:

X.

Pursuant to the General Maritime Law of the United
States of America, the defendant, ROWAN COMPANIES,
INC., had the absolute and non-delegable duty to provide
complainant with maintenance and cure benefits from the
date that he was rendered unfit for duty until maximum
cure is achieved.

XI.

As a result of the aforementioned accident, complai-
nant was rendered unfit for duty and presently remains un-
fit for and incapable of returning to duty as a seaman.

XII.

The defendant, ROWAN COMPANIES, INC., is in-
debted unto complainant for past and future maintenance
benefits in the amount of FORTY AND NO/100 ($40.00)
DOLLARS per day from August 23, 1984, until maximum
cure is achieved, and for the costs of all cure incurred by
complainant from that date until maximum cure is
achieved.

— ee ee tee

A-11
FOR A FOURTH CAUSE OF ACTION

Complainant repeats and re-alleges all of the forego-
ing paragraphs of his First, Second and Third Cause of Ac-
tion with the same force and effect as if herein set forth at
length, and in addition thereto alleges:

XIII.

Despite notice, defendant, ROWAN COMPANIES,
INC., has refused to meet its maintenance and cure obliga-
tion in a willful, callous, unreasonable and arbitrary
manner.

XIV.

Damages and Attorney’s fees for SIX HUNDRED
THOUSAND AND NO/100 ($600,000.00) DOLLARS
would be an adequate amount to compensate complainant,
LOUIS W. STOREY, for this willful, callous, unreasonable
and arbitrary refusal to pay maintenance and cure benefits
at the appropriate rate.

FOR A FIFTH CAUSE OF ACTION

Complainant repeats and re-alleges all of the forego-
ing paragraphs of his First, Second, Third and Fourth
Cause of Action with the same force and effect as if herein
set forth at length, and in addition thereto alleges:

XV.

Defendant, ROWAN COMPANIES, INC., through
their employees, were recklessly and grossly negligent and

A-12

acted in wanton disregard for the safety of LOUIS W.
STOREY in part, by conducting operations in an unsafe
and hazardous manner.

XVI.

Defendant’s, ROWAN COMPANIES, INC., gross
negligence was a proximate cause of the injuries and
damages suffered by complainant and entitles him to
recover from defendant, punitive or exemplary damages.

XVII.

Damages in the true and full sum of SIX HUN-
DRED THOUSAND AND _ NO/100_ ($600,000.00)
DOLLARS would be an adequate amount to prove a
disincentive to defendant to continue operations in such a
reckless manner.

XVIII.

Complainant is an American seaman within the
meaning and intent of 28 U.S.C. 1969 and is entitled to pro-
ceed and prosecute this litigation without prepayment of
costs.

XIX.

Complainant is entitled to and therefore prays for a
trial by jury on all issues raised herein.

WHEREFORE, complainant prays that after due
proceedings and the expiration of legal delays:

ae

ter

A-13

I) There be judgment herein in favor of complainant,
LOUIS W. STOREY, and against the defendant, ROWAN
COMPANIES, INC., in the full and true some of ONE
MILLION, TWO HUNDRED THOUSAND AND NO/100
($1,200,000.00) DOLLARS, together with legal interest
thereon from date of judicial demand, until paid, and for all
costs of these proceedings;

II) There be judgment herein in favor of complai-
nant, and against defendant, ROWAN COMPANIES,
INC., for maintenance and cure benefits from August 23,
1984, until maximum cure is achieved with maintenance
due at a rate of FORTY AND NO/100 ($40.00) DOLLARS

per day;

III) There be judgment rendered in favor of complai-
nant, LOUIS W. STOREY, and against defendant,
ROWAN COMPANIES, INC., in the full and true sum of
SIX HUNDRED THOUSAND AND _ NO/100
($600,000.00) DOLLARS as punitive or exemplary
damages, as well as for reasonable attorneys’ fees, due to
defendant’s, ROWAN COMPANIES, INC., willful and
callous failure to pay maintenance and cure at the ap-
propriate rate;

IV) There be judgment rendered herein in favor of
complainant, LOUIS W. STOREY, and against defendant,
ROWAN COMPANIES, INC., in the full and true sum of
SIX HUNDRED THOUSAND AND _ NO/100
($600,000.00) DOLLARS as punitive or exemplary
damages together with interest thereon from the date of
the accident;

A-14

V) Complainant, LOUIS W. STOREY, be allowed to
proceed in this matter without the prepayment of costs as
a seaman; and

VI) For a trial by jury on all issues raised herein.

Respectfully Submitted,

NEBLETT, BEARD AND ARSENAULT

Attorneys at Law

Post Office Box 1190

Alexandria, Louisiana 71309-1190
Telephone: (318) 487-9874

BY: /s/ Richard J. Arsenault
RICHARD J. ARSENAULT

0 ee eM ie Oana lh iter te BM

A-15
APPENDIX E

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION

LOUIS W. STOREY
VERSUS CIVIL ACTION NO:. 85-2977

ROWAN COMPANIES, INC.

DE He oie aie he ae ae aie aie aie 2h aie afc ae aie afc Dic aie aie aie aie aie aie aie ai aie aie aie 3k ie 2k 2k ok

ANSWER ON BEHALF OF
ROWAN COMPANIES, INC.
TO COMPLAINT OF LOUIS W. STOREY

NOW INTO COURT, through undersigned counsel,
comes ROWAN COMPANIES, INC., sought to be made
defendant in the above entitled and numbered cause, who
for answer to the complaint of LOUIS W. STOREY,
respectfully represents that:

FIRST DEFENSE

The complaint fails to set forth facts which would
support the jurisdiction of this Honorable Court and show
that this Court is one of proper venue.

SECOND DEFENSE

The allegations contained in plaintiff’s complaint fail
to state a claim against this defendant upon which relief
can be granted.

A-16
THIRD DEFENSE

Defendant denies all and singular the allegations
contained in the plaintiff's complaint, except as the same
may be hereinafter admitted and/or modified. Responding
now to the specific paragraphed allegations of plaintiff’s
complaint, defendant responds as follows:

A.

For lack of sufficient information to justify a belief
thereof, defendant denies the allegations contained in
Paragraph I of the plaintiff's complaint. |

2.

Defendant denies the allegations contained in
Paragraph II of plaintiff’s complaint, except insofar as to
admit that ROWAN COMPANIES, INC., is a foreign cor-
poration doing business in the State of Louisiana.

3.

For lack of sufficient information to justify a belief
thereof, defendant denies the allegations contained in
Paragraph III of the plaintiff’s complaint.

4.

Defendant denies the allegations contained in
Paragraph IV of the plaintiff’s complaint.

A-17
5.
For lack of sufficient information to justify a belief

thereof, defendant denies the allegations contained in
Paragraph V of the plaintiff's complaint.

6.

Defendant denies the allegations contained in
Paragraph VI of the plaintiff’s complaint.

vi

Defendant responds to the allegations contained
under the heading ‘‘For A Second Cause Of Action’’, and
specifically the introductory paragraph thereof, to the
same extent that it responded to the prior allegations, since
the allegations of this introductory paragraph seek to do
nothing more than repeat and reallege the foregoing
paragraphs.

8.

Defendant denies the allegations contained in
Paragraph VII of the plaintiff’s complaint.

9.

Defendant denies the allegations contained in
Paragraph VIII of the plaintiff’s complaint.

10.

Defendant denies the allegations contained in
Paragraph IX of the plaintiff's complaint.

Eds

Defendant responds to the allegations contained
under the heading ‘“‘For A Third Cause of Action’’, and
specifically the introductory paragraph thereof, to the
same extent that it responded to the prior allegations,

A-18

since the allegations of this introductory paragraph seek to
do nothing more than repeat and reallege the foregoing
paragraphs.

12.

Defendant denies the allegations contained in
Paragraph X of the plaintiff's complaint.

13.

Defendant denies the allegations contained in
Paragraph XI of the plaintiff’s complaint.

14.

Defendant denies the allegations contained in
Paragraph XII of the plaintiff’s complaint.

15.

Defendant responds. to the allegations contained
under the heading ‘“‘For A Fourth Cause Of Action’’, and
specifically the introductory paragraph thereof, to the
same extent that it responded to the prior allegations, since
the allegations of this introductory paragraph seek to do
nothing more than repeat and reallege the foregoing
paragraphs.

16.

Defendant denies the allegations contained in
Paragraph XIII of the plaintiff's complaint.

17.

Defendant denies the allegations contained in
Paragraph XIV of the plaintiff's complaint.

banat POBRANO

he Cea Penta Oe *

A-19
18.

Defendant responds to the allegations contained
under the heading “For A Fifth Cause Of Action’, and
specifically the introductory paragraph thereof, to the
same extent that it responded to the prior allegations, since
the allegations of this introductory paragraph seek to do
nothing more than repeat and reallege the foregoing
paragraphs.

19.

Defendant denies the allegations contained in
Paragraph XV of the plaintiff's complaint.

20.

Defendant denies the allegations contained in
Paragraph XVI of the plaintiff's complaint.

21.

Defendant denies the allegations contained in
Paragraph XVII of the plaintiff's complaint.

22.

Defendant denies the allegations in Paragraph
XVIII of the plaintiff's complaint.

23.

Defendant denies the allegations in Paragraph XIX
of the plaintiff's complaint.

A-20
FOURTH DEFENSE

Defendant avers further that the accident described
in plaintiff's complaint, if any, was the sole result of the
negligence of the plaintiff in particulars to be established
on the trial of this case, which negligence is pleaded in bar
of recovery herein.

FIFTH DEFENSE

Defendant avers further that all purported causes of
action upon which plaintiff has complained, are prescribed
under any and all applicable statute of limitations, and/or
under any and all doctrines of laches, whichever may be
applicable.

SIXTH DEFENSE

In the alternative, and solely in the event that liabili-
ty is found on the part of this defendant, which is at all
times specifically denied, then, in that event, defendant
avers that the plaintiff was contributorily at fault which
contributory fault is pleaded in bar and/or diminution of
recovery herein.

WHEREFORE, premises considered, defendant
prays that this answer be deemed good and sufficient, and
that after due proceedings had, there be judgment herein in
favor of the defendant, ROWAN COMPANIES, INC., and
against the plaintiff, LOUIS W. STOREY, dismissing
plaintiff's complaint with full prejudice and at his cost.

A-21

Defendant further prays for all general and equitable
relief.

HURLBURT, PRIVAT & MONROSE
(A Professional Law Corporation)

BY: /s/ David A. Hurlburt

DAVID A. HURLBURT

Post Office Drawer 4407

Lafayette, Louisiana 70502
Telephone: 318/237-0261

Attorney for ROWAN COMPANIES, INC.

CERTIFICATE

I HEREBY CERTIFY that a copy of the above and foregoing
pleading has this day been mailed, postage prepaid and correctly ad-
dressed, to all counsel of record.

Lafayette, Louisiana, this 18th day of November 1985.

/s) David A. Hurlburt

DAVID A. HURLBURT

A-22
APPENDIX F

NOTES OF ADVISORY COMMITTEE TO 1966
AMENDMENT
TO F.R.C.P. RULE 9

‘“‘Many claims, however, are cognizable by the
District Court whether asserted in admiralty or in civil ac-
tion, assuming the existence of a non-maritime ground of
jurisdiction. Thus at the present the pleader has the power
to determine procedural consequences by the way in which
the (sic) exercises the classic privilege given by the Saving-
to-Suitors Clause (28 USCA S. 1333) or by equivalent
statutory provisions. For example, a longshoreman’s claim
for personal injuries suffered by reason of the unseawor-
thiness of a vessel may be asserted in a suit in admiralty
or, if diversity of citizenship exists, in a civil action. One of
the important procedural consequences is that in the civil
action either party may demand a jury trial, while in the
suit in admiralty there is no right to jury trial except as
provided by statute.’’ (Emphasis supplied.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_2360%3A1. Public record. Not legal advice.