Lindel Nelson Watson v. Carnival Corporation , 436 F. App'x 954 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15411 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 5, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-21505-PAS
LINDEL NELSON WATSON,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
CARNIVAL CORPORATION,
d.b.a. Carnival Cruise Lines,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 5, 2011)
Before EDMONDSON, WILSON and KRAVITCH, Circuit Judges.
PER CURIAM:
Carnival Corporation (“Carnival”) appeals the district court’s attorneys’ fee
award of $5,595 to Lindel Nelson Watson that followed Carnival’s second attempt
to remove Watson’s lawsuit to federal court based on an arbitration provision in
the parties’ employment agreement (the “Seafarer’s Agreement”). Because the
district court did not abuse its discretion in granting Watson’s motion for
attorneys’ fees, we affirm.
Watson was injured while working aboard one of Carnival’s ships, and he
filed suit against Carnival in Florida state court. He alleged Jones Act negligence,
unseaworthiness, failure to provide maintenance and cure, failure to treat, and he
sought unpaid wages and penalties under 46 U.S.C. § 10313. Carnival removed
the case under the Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (“Convention”), and its codifying legislation, 9 U.S.C. § 201 et
seq. Carnival attached a copy of the Seafarer’s Agreement, which was signed by
Watson and written in Spanish. Carnival alleged that the Seafarer’s Agreement
was an employment contract containing an arbitration provision, but Carnival did
not provide a translation of it.
The district court ordered Carnival to file a certified translation of the
Seafarer’s Agreement, and it warned that failure to comply could result in remand.
Carnival then filed a blank-form Seafarer’s Agreement written in English, but it
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filed no certification indicating that the blank English form was the same as the
Spanish Seafarer’s Agreement actually signed by Watson. The district court
remanded, concluding that, after having months to comply with the court’s order,
Carnival failed to establish the existence of federal jurisdiction.
Carnival then filed a second notice of removal, again based on the
arbitration provision included in the Seafarer’s Agreement, and finally attached a
certified English translation of the agreement. The district court granted Watson’s
motion for remand, concluding that Carnival’s second notice of removal was
untimely1 and that Carnival should not have a second bite at the apple, particularly
because it offered no new evidence supporting removal. Additionally, because
Carnival had no basis for filing its second notice of removal, the district court
awarded Watson $5,595 in attorneys’ fees. Carnival appealed.2
1
The Convention’s removal provision provides, in pertinent part, “[w]here the subject
matter of an action or proceeding pending in a State court relates to an arbitration agreement . . .
the defendant . . . may, at any time before the trial thereof, remove such action or proceeding to
the district court of the United States . . . .” 9 U.S.C. § 205 (emphasis added). However, we
need not address this ground for the court’s decision because the district court did not abuse its
discretion in concluding that, without new supporting evidence, Carnival had no basis for filing
its second notice of removal. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 n.9
(11th Cir. 1998).
2
Carnival originally appealed both the district court’s order of remand and its order
awarding attorneys’ fees. Watson moved this Court to dismiss Carnival’s appeal, and we granted
that motion in part and denied in part, finding that Carnival’s notice of appeal was untimely as to
the order of remand but that Carnival could proceed as to the order awarding attorneys’ fees.
3
We review an award of attorneys’ fees following remand for abuse of
discretion. Bauknight v. Monroe Cnty., Fla., 446 F.3d 1327, 1329 (11th Cir.
2006). There is no presumption in favor of awarding fees; rather, courts may
award attorneys’ fees incurred as a result of a removal “‘only where the removing
party lacked an objectively reasonable basis for seeking removal.’” Id. (quoting
Martin v. Franklin Capital Corp., 546 U.S. 132, 141, 126 S. Ct. 704, 711 (2005)).
Once a case is remanded to state court, a defendant is precluded from
seeking a second removal on the same ground.3 See St. Paul & C. Ry. Co. v.
McLean, 108 U.S. 212, 217, 2 S. Ct. 498, 500 (1883) (“[A] party is not entitled,
under existing laws, to file a second petition for the removal upon the same
grounds, where, upon the first removal by the same party, the federal court
declined to proceed and remanded the suit, because of his failure to file the
required copy within the time fixed by the statute.”). “The prohibition against
removal ‘on the same ground’ does not concern the theory on which federal
jurisdiction exists (i.e., federal question or diversity jurisdiction), but rather the
3
Carnival’s assertion on appeal that general rules governing removal of non-Convention
cases do not apply here, could implicate this general rule. However, even assuming Carnival has
“plainly and prominently” made such an argument before this Court, see United States v.
Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“Under our caselaw, a party seeking to raise
a claim or issue on appeal must plainly and prominently so indicate. Otherwise, the issue . . .
will be considered abandoned.”), we will not consider the issue here because Carnival did not
raise it before the district court, see Walker v. Jones, 10 F.3d 1569, 1572 (11th Cir. 1994).
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pleading or event that made the case removable.” S.W.S. Erectors, Inc. v. Infax,
Inc., 72 F.3d 489, 492 (5th Cir. 1996); see also Fritzlen v. Boatmen’s Bank, 212
U.S. 364, 372–74, 29 S. Ct. 366, 369–70 (1909). In other words, “‘[a] defendant
who fails in an attempt to remove on the initial pleadings can file a second
removal petition when subsequent pleadings or events reveal a new and different
ground for removal . . . .’” S.W.S. Erectors, 72 F.3d at 493 (quoting One Sylvan
Road N. Assocs. v. Lark Int’l, Ltd., 889 F. Supp. 60, 62 (D. Conn. 1995)
(alteration in original)).
Carnival filed two notices of removal, and both of them were based on the
inclusion of an arbitration provision in the Seafarer’s Agreement. As proof of that
arbitration provision, Carnival offered, in its first notice of removal, the original
Seafarer’s Agreement—written in Spanish—but failed to comply with the district
court’s order to submit a certified English translation. In its second notice of
removal, Carnival finally offered a certified English translation of the Seafarer’s
Agreement as proof. But where Carnival’s proof changed, its basis for
removal—the arbitration provision—did not. There was no subsequent pleading
or event that revealed a new and different ground for removal; therefore, the
district court did not abuse its discretion in determining that Carnival had no
objectively reasonable basis for seeking removal.
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Accordingly, the district court’s award of attorneys’ fees is AFFIRMED.
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