Opposition Brief — In re Rowan Cos., Inc.

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Supreme Court of the Hnited States

OCTOBER TERM, 1986

IN RE:

ROWAN COMPANIES, INC.,

Petitioner

AND

ROWAN COMPANIES, INC.

Petitioner

VERSUS

LOUIS W. STOREY

Respondent

OPPOSITION TO 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

RICHARD J. ARSENAULT

NEBLETT, BEARD & ARSENAULT

POST OFFICE BOX 1190

ALEXANDRIA, LOUISIANA 71309-1190

Telephone: (318) 487-9874

ATTORNEY FOR RESPONDENT, LOUIS W. STOREY

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TABLE OF CONTENTS

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RESPONSE TO PETITION FOR WRITS OF

MANDAMUS AND CERTIORARI ............

REASONS FOR DENYING PETITIONER WRITS ...

A. The historical development of admiralty jurisdiction

clearly shows that there is no right to a jury trial in

Terr reer rer ere TEP EPEPEETTe 2

B. The jury trial right guaranteed by the seventh

amendment to the United States Constitution is

inapplicable to admiralty cases......cccccccccscceccece 3

C. Petitioner has no statutory right to a jury

Pe ey Pe ere CEE TERE LELTTELITTe 5

D. The sole limitation to the withdrawal of a rule 9(h)

identifying statement are those contained in

of Ft BE. nar rae en ae er ee ee ee ee 6

E. The original complaint herein specifically does not

allege jurisdiction based on diversity of citizenship.......... 8

F. The federal rules of civil procedure do not deny

petitioner due process and equal protection of the laws ...... )

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TABLE OF AUTHORITIES

CASES:

SUPREME COURT:

Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58 S.Ct.

NT ee cas 7

Illinois v. City of Milwaukee, 92 S.Ct. 1385, 406 '

ik Laika ewan GN vee 0.0 eames 5

Joy v. City of St. Louis, 201 U.S. 332,26 S.Ct.

A ea ee ee 8

Romero v. International Terminal Operating Co.,

79 S.Ct. 468,358 U.S. 354 (1959) ............ 4,6

CIRCUIT COURT:

Doucet v. Wheless Drilling Co., 467 F.2d 336 (C.A.

RE TE ar ae a 7

Johnson v. Penrod Drilling Co., 469 F.2d 897 (C.A.

_ | RAGS Sash ho 40s 8

Mahramas v. American Export Isbrandtsen Lines, Inc.,

475 F.2d 165, pp. 172-173 (C.A. 2d Cir. 1973) .. 2

Rachal v. Ingram Corp., 795 F.2d 1210 (C.A. 5th

SLU GNacec este basses pedineseasccs 2,8

CONSTITUTION, STATUTES AND REGULATIONS:

U.S. CONSTITUTION:

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Seventh Amendment to the United States

ES Tr rere re ao

STATUES:

Federal Rule of Civil Procedure, Rule2.............. +

Federal Rule of Civil Procedure, Rule 9(h) ......... 5, 6,

| 7, 8, 10

Federal Rule of Civil Procedure, Rule 15......... 6, 7,9

Federal Rule of Civil Procedure, Rule 38........ 5,9, 10

Supplemental Admiralty Rules A-F ................. 4

Judiciary Act of 1789, Sec. 9, 1 Stat. 76-77 .......... 3

EE a SASK AS 5 nk sake Lae eek been eee es 4

i RE agen ae ae ary ne Seer 6, 8

TREATISES:

Gilmore and Black. The Law of Admiralty; 2nd Ed.

The Foundation Press, Inc.; Mineola, N.Y.,

ETE EET EET Ce PET eet Pree boc ty 2

Norris. The Law of Maritime Personal Injuries,

3rd Ed. The Lawyers Co-Operative Publishing

ee 8 ee | re 6

Wright & Miller. Federal Practice and Procedure,

oe ee Se}: a ne 9

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

No. 86-804

IN RE:

ROWAN COMPANIES, INC.,

Petitioner

AND

ROWAN COMPANIES, INC.,

Petitioner

VERSUS

LOUIS W. STOREY

Respondent

RESPONSE TO PETITION FOR WRITS OF

MANDAMUS AND CERTIORARI

NOW INTO COURT, through his undersigned

counsel, comes and appears respondent, LOUIS W.STOREY,

who respectfully responds to the petition for writs of

mandamus and certiorari filed in this Honorable Court by

petitioner, ROWAN COMPANIES, INC., as follows, to-wit:

1.

The Honorable Supreme Cort of the United States has

previously provided that there is no right to a jury trial ina

maritime case. There is no statutory nor Constitutional right

to a jury trial in a maritime case, nor is there any

jurisprudential precedent for such an erroneous contention.

For the following reasons, petitioner is due neither a writ of

mandamus nor a writ of certiorari.

REASONS FOR DENYING PETITIONER WRITS

A. THE HISTORICAL DEVELOPMENT OF AD-

MIRALTY JURISDICTION CLEARLY SHOWS

THAT THERE IS NO RIGHT TO A JURY TRIAL

IN MARITIME CASES:

Respondent has previously advanced the argument that,

like a stork hovering above a sorority house, the decision in

Rachal v. Ingram Corp., 795 F.2d 1210(C.A. 5th Cir. 1986)

was the bearer of bad news for petitioner, ROWAN

COMPANIES, INC. Likewise, before this Honorable Court,

that stork brings additional bad constitutional and statutory

news of every applicable sort to petitioner’s desperate

attempt to obtain a trial by jury. i

As Judge Anderson stated in Mahramas v. American

Export Isbrandtsen Lines, Inc., 475 F.2d 165, at pp. 172-173

(C.A. 2d Cir. 1973:

‘tthe time has still not come when one is entitled

to a jury trial in every admiralty suit.”

In fact, only recently has a party had any opportunity for a

jury trial in a maritime case in federal court.

‘Tne absence of any right to a trial by jury in admiralty

claims can be traced back to the very development and

nature of American admiralty law. Our use of the term

“admiralty”? comes from the judicial powers granted to the

Lord High Admiralty in England, to hear cases of a maritime

nature, dating back to 1377. Gilmore & Black. The Law of

Admiralty; 2nd Ed. The Foundation Press, Inc.; Mineola,

N.Y. (1975) p. 9. This practice of the Admiral adjudicating

alone and without a jury was carried over into the British

colonies in America through the establishment of separate

Vice-Admiralty courts. Gilmore & Black, p. 10.

Din tiiiiiiiacaiaciaiiliae

At the time of the adoption of the United States

Constitution, therefore, the United States had a long

tradition of Admiralty courts being separate from the courts

of common law, as well as adjudicating without a jury. In

addition to the absence of jury trials, admiralty practice was

distinguished from common law personal injury actions by

its terminology. For example, until the adoption of the

Federal Rules of Civil Procedure in 1966, one initiated his

common law action by filing a complaint, while the admiral-

ty case was brought by means of a libel. Clearly, although

combined into the same federal courts, admiralty jurisdic-

tion and procedure was as separate and distinct from a

common law action as was the federal courts’ equity powers.

B. THE JURY TRIAL RIGHT GUARANTEED BY

THE SEVENTH AMENDMENT TO THE UNITED

STATES CONSTITUTION IS INAPPLICABLE

TO ADMIRALTY CASES:

The Seventh Amendment to the United States Constitu-

tion, relied upon by petitioner in arguing that it has a

Constitutional right to a jury trial below, begins with the

phrase: ‘In suits at common law...”. The Redactors of the

Seventh Amendment were well aware that an admiralty case

was not a “‘suit at common law.” id. The distinct nature of

admiralty and maritime claims can be seen by their specific

mention in United States Constitution, Article III.

Another distinction between admiralty and common

law civil actions is found in Sec. 9 of the Judiciary Act of

1789, where Congress granted federal district courts ori-

ginal jurisdiction over admiralty and maritime claims. 1 Stat.

76-77. Furthermore, that same statute, in its “saving to

suitors”’ clause, evidences the distinction between maritime

and common law actions by providing: ‘‘saving to suitors, in

all cases, the right of a common law remedy, where the

common law is competent to give it;...’’ id. For the next

175 years, the admiralty jurisdiction of the federal courts

was kept separate from those courts’ common law juris-

dictions; ‘the admiralty docket was a thing apart, and the

admiralty suit was handled under an entirely separate set of

procedural rules.” Gilmore & Black. p. 19.

In 1949, Congress enacted 28 USC 1333, which, along

with its companion statutes, granted original maritime juris-

diction to federal district courts. 28 USC 1333 is, essentially,

the reenactment of sec. 9 of the Judiciary Act of 1789. In 28

USC 1333, Congress recognized admiralty and maritime as a

separate and distinct basis for federal jurisdiction. Pre-

viously, in 1937, this Court adopted Federal Rules of Civil

Procedure Rule 2, which combined the equity and law

powers of the federal courts, while the Notes of the

Advisory Committee clearly distinguishes equity and law

from admiralty.

In 1959, this Supreme Court, in Romero v. International

Terminal Operating Co., 79 S.Ct. 468, 358 U.S. 354,

rejected contentions that the law side of the federal courts

had jurisdiction over maritime claims, with the right to jury

trials, under the provisions of 28 USC 1331. By so holding,

this Supreme Court recognized the distinction between an

admiralty case and a federal question (‘‘...civil actions arising

under the Constitution, laws or treaties of the United States’). 28

USC 1331. Once again the distinction between admiralty

and common law actions was made.

By order of this Supreme Court, in 1966, much of

admiralty procedure was combined with the Federal Rules

of Civil Procedure. Nevertheless, portions of distinct ad-

miralty procedures were preserved. Supplemental Admiral-

ty Rules A through F were adopted, and admiralty distinc-

tions were carried over into Rules 14, 26, 38, 73 and 82.

Lastly, the distinction between admiralty and federal

common law is noted as currently being: “except in the

admiralty field, there is federal question jurisdiction of claims

based upon federal law.’’ Wright. Law of Federal Courts; 4th.

Ed. West Publishing Co.; St. Paul, Minn. (1983) p. 97,

citing Illinois v. City of Milwaukee, 92 S.Ct. 1385, 406 U.S.

91 (1972).

It is clear, therefore, that the Constitutional, statutory,

jurisprudential and historical distinctions made between

admiralty and common law actions show that the Seventh

Amendment guaranty of jury trials in suits at common law is

inapplicable to admiralty and maritime cases. Petitioner,

then, has no Constitutional right to a jury trial herein. See:

Gilmore & Black. p. 295. |

C, PETITIONER HAS NO STATUTORY RIGHT TO

A JURY TRIAL HEREIN:

In addition to having no Constitutional right to a jury

trial in this maritime case, petitioner, ROWAN COMPAN-

IES, INC., also has no statutory right to a jury trial.

Petitioner relies upon the provisions of Federal Rules of

Civil Procedure Rule 38 for its statutory right to a Seventh

Amendment right to a jury trial. Petitioner, however,

overlooks a pertinent provision of F.R.C.P. Rule 38, which

provides:

These rules shall not be construed to create a

right to trial by jury of the issues in an admiralty or

maritime claim within the meaning of Rule 9(h).

Federal Rules of Civil Procedure Rule 9(h) is simply a

procedural device whereby the pleader may claim the special

benefits of admiralty procedures and remedies, including a

non-jury trial, when the pleadings show that both admiralty

and some other jurisdiction exists.

Additionally, the ‘Jones Act’, 46 USC 688, cited at p.

Five (5) of the petition, gives the right to elect a jury trial to

the injured seaman and not to his Jones Act-employer. This

Supreme Court has so found the election to be with the

seaman, in Romero v. International Terminal Operating Co.,

supra.

It has been written that: "It was not the purpose of

unification of the Rules to inject a right to a jury trial into

those admiralty cases which do not provide for jury trial by

statute.” Norris. The Law of Maritime Personal Injuries.

3rd Ed. The Lawyers Co-Operative Publishing Co.; Roches-

ter, N.Y. (1975) p. 418.

For these reasons, petitioner, ROWAN COMPANIES,

INC., has no statutory right toa jury trial in the court below.

D. THE SOLE LIMITATION TO THE WITH-

DRAWAL OF A RULE o(h) IDENTIFYING

STATEMENT ARE THOSE CONTAINED IN

F.R.C.P. RULE is:

The pertinent provisions of F.R.C.P. Rule 9h), cited at

p. Five (5) of the petition, provides: ‘The amendment of a

pleading to add or withdraw un identifying statement is

governed by the principles of Rule 1s5..."". F.R.C.P. Rule 15,

reproduced in the petition at p. Six (6), allows amendment

with leave of the court. Respondent, LOUIS W. STOREY,

was granted leave to add a Yh) identifying statement, so as

to designate his claim as beiny niuaritime and to proceed to

trial without a jury. It is this yranting of leave to amend that

SO agrieves petitioner.

That a plaintiff can amend to identify a claim as being

on the admiralty side of federal court, was correctly upheld

in Doucet v. Whelees Drilling Co., 467 F.2d 336 (C.A. 5th

Cir. 1972), wherein that Court of Appeal wrote:

Plaintiff's choice of the law side was not an

irrevocable one...Under Rule 9(h) the amend-

ment of a pleading to add or withdraw an identify-

ing statement is governed by Rule 15, Federal

Rules of Civil Procedure, the Rule governing

amended and supplemental pleadings. The Advi-

sory Committee's Note to that Rule says: ‘The

preferable solution [for providing some device

for preserving the present power of the pleader

to determine whether historically maritime

procedures shall be applicable to his claim or

not] is to allow the pleader who now has

power to determine procedural consequences

by filing a suit in admiralty to exercise that

power under unification, for the limited

instances in which the procedural differences

will remain, by a simple statement in his

pleadings as to the effect that the claim is an

admiralty or maritime claim.” id. at 339 et seq.

It is perhaps due to the axiom that ‘‘a seaman is the ward of

the federal courts’’ that such perogatives are given to the

complainant. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 58

S.Ct. 651 (1938) (for the proposition that seamen are

likened to wards of the court).

Other than by asserting that it has a right to a jury trial

in the case sub judice, petitioner fails to show any prejudice it

sustained by the trial judge's granting LOUIS W. STOREY

leave to amend his complaint. No other attack is made upon

this discretionary act of the court below. Petitioner's

argument, then, is that it simply does not want to “play by

the rules”, as they exist in the Federal Rules of Civil

Procedure, and particularly under Rule 9(h).

E. THE ORIGINAL COMPLAINT HEREIN SPECI-

FICALLY DOES NOT ALLEGE JURISDICTION

BASED ON DIVERSITY OF CITIZENSHIP:

Since petitioner agrees that it has no right to a jury trial

under the district court's admiralty jurisdiction (Petition p.

15), and since, although the Jones Act presents federal

question jurisdiction, the plaintiff can elect to amend his

complaint by adding a Rule 9(h) identifying statement and

preclude jurisdiction on the law side of the court, petitioner

must show some other basis for the trial court's jurisdiction

if it is to receive a jury trial.

In Rachal v. Ingram Corp., 795 F.2d 1210(C.A. Sth Cir.

1986), the Court of Appeal, Fifth Circuit held that its rule in

Johnson v. Penrod Drilling Co., 469 F.2d 897 (C.A. 5th Cir.

1975), on rehearing en banc at 510 F.2d 234 (C.A. 5th Cir.

' 1975), and cert. denied at 423 U.S. 839( 1975), regarding the

right to a jury trial under F.R.C.P. 39(a) ina Jones Act claim

combined with an unseaworthiness claim, did not apply

where the complaint failed to assert diversity of citizenship

jurisdiction. As was fully noted within the opinion rendered

herein by the Court of Appeal, Fifth Circuit (copied in

Petition Appefidix A-3 through A-5), nothing in the original

complaint establishes diversity of citizenship.

It is axiomatic that a clear and concise statement of the

court's jurisdiction must be included within the complaint.

F.R.C.P. Rule 8(a) (1) and Joy v. City of St. Lowis, 201 U.S.

332, 26 S.Ct. 478 (1906). Such a rule is particularly crucial

9

in maritime cases, where several grounds of jurisdiction

might be present but where the plaintiff can elect for his case

to be tried on the admiralty side of the court. As stated in

Wright & Miller. Federal Practice and Procedure, Vol. 5,

sec. 1211, pp. 99-100:

If the nonmaritime ground for jurisdic-

tion is being relied upon, the jurisdictional

allegation should specify clearly the basis

relied upon and plead it in the appropriate

manner. For example, diversity jurisdiction should

be pleaded according to Form 2(a)...

..Thus, the requirements and consequences of

Rule 9(h) should be considered carefully when

both maritime and nonmaritime grounds for juris-

diction are available in the same suit.

F. THE FEDERAL RULES OF CIVIL PROCEDURE

DO NOT DENY PETITIONER DUE PROCESS

AND EQUAL PROTECTION OF THE LAWS:

For the reasons noted above, detailing why the petitioner

DOES NOT have a constitutional right to a trial by jury

herein, so also must its cry of denial of due process wither

and die. Once again petitioner, ROWAN COMPANIES,

INC., can be heard, at pp. 19-20 of its petition, to complain

of the rights granted to injured seamen by this Honorable

Supreme Court through its decisions and the Federal Rules

of Civil Procedure. Put simply, petitioner should seek

revision of the Rules and not seek the writs petitioned for

herein. The courts below did nothing more than correctly

apply F.R.C.P. Rules 9(h), 15, and 38. Yet petitioner does

not allege the unconstitutionality of those Rules.

10

The most peculiar argument of all, however, is peti-

tioner’s assertion, at page 20 of its petition, that the

impartiality of the entire federal bench is questioned merely

because of the clear reading of the Federal Rules of Civil

Procedure.

Petitioner’s arguments that it has been denied due

process and equal protection, therefore, lack any merit

whatsoever. The deck is not so strongly stacked in the

injured-seaman’s favor simply because he has the right to

elect between a judge versus a jury trial.

CONCLUSION

The notion of a jury trial in a maritime case is a creature

of recent origin. Since admiralty has historically, constitu-

tionally and statutorily been distinguished from the ordi-

nary action at common law for the past several hundred

years, the Seventh Amendment to the United States Constitution,

expounding the right to a trial by jury in all ‘common law”’

suits, is inapplicable to admiralty actions.

Furthermore, there is also no statutory right for the

admiralty defendant having a jury trial. General Maritime

cases do not fall under the district court’s federal question

jurisdiction, and the Jones Act, which is a federal question,

gives the plantiff the right to elect which procedures will

control the course of the claim.

Lastly, a maritime complaint, which may contain

several basis for jurisdiction, may contain a Rule 9(h)

indentifying statement and thereby be brought on the

admiralty side of the federal court without a jury trial. That

statement is not etched in stone, and may be added or

withdrawn whenever allowed by F.R.C.P. Rule 15. Since a

Jones Act defendant has no right to trial by jury, that

———VSVSVSVSaQMK.gg 2.2. gE

11

defendant is not prejudiced by such a subsequent amend-

ment to the seaman’s complaint.

Petitioner, ROWAN COMPANIES, INC., concedes

that it is ‘staring down the barrel” of Fifth Circuit precedent

(Petition p. 3), and, therefore, this Honorable Court should

“reset the Fifth Circuit’s compass”’ (Petition p. 14). The

fifth Circuit precedents complained of are constitutionally,

statutorily and jurisprudentially sound. The only compass

requiring resetting is Petitioner's; reset to a course consistent

with the well established and firmly entrenched principles

which have guided those Honorable Courts below.

In conclusion, it is respectfully submitted that the

petition for writs of mandamus and certiorari herein be

denied, and that the correct decisions below be allowed to

stand.

NEBLETT, BEARD & ARSENAULT

BY: ffl ——

RICHARD J. ARSENAULT

Post Office Box 1190

Alexandria, Louisiana 71309-1190

Telephone: (318) 487-9874

Attorney for LOUIS W. STOREY

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing

brief has been served upon all counsel of record by U.S. Mail

on this 12th day of December, 1986.

‘MARD J. ARSENAULT _