Gonzalez v. Weeks Marine, Inc. ( 2006 )


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  •                                                        United States Court of Appeals
    Fifth Circuit
    F I L E D
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT                 October 20, 2006
    Charles R. Fulbruge III
    Clerk
    No. 05-41148
    Summary Calendar
    LAURA GONZALEZ,
    Plaintiff-Appellee,
    versus
    WEEKS MARINE, INC. AND ATLANTIC SOUNDING CO. INC.,
    Defendants-Appellants.
    --------------------
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:03-CV-434
    --------------------
    Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
    PER CURIAM:*
    The plaintiff, Laura Gonzalez, sued the defendants in state
    court under the Jones Act alleging that she was a seaman injured
    while serving on a vessel. Generally, a proper Jones Act claim is
    not removable to federal court. Lackey v. Atlantic Richfield Co.,
    
    990 F.2d 202
    , 206-07 (5th Cir. 1993). The defendants removed,
    alleging fraudulent pleading of the plaintiff’s Jones Act status.
    The plaintiff filed a motion to remand, alleging that the boat on
    which the plaintiff was working should be classified as a “vessel”
    under the Jones Act, barring removal. The district court denied the
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that
    this opinion should not be published and is not precedent except
    under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 05-41148
    -2-
    motion. Nearly one year later, the plaintiff filed a motion to
    reconsider, making the same argument bolstered by intervening
    Supreme Court case law. The district court reconsidered the motion
    and granted it, remanding the case to state court.
    The defendants raise two objections on appeal. First, they
    contend that while the initial motion to remand was timely filed,
    the motion to reconsider was a “second motion to remand” and fell
    outside the thirty day filing requirement. See 28 U.S.C. § 1447
    (c). This objection has no merit. The motion to reconsider alleged
    the same basis for remand as the initial motion, and does not
    constitute a “second motion.” In addition, the defendants have
    waived this objection by failing to object below to the timeliness
    of either the motion to remand or the motion to reconsider. See In
    Re Digicon Marine, Inc., 
    966 F.2d 158
    , 160 (5th Cir. 1992).
    The second objection raised by the defendants is that the
    plaintiff waived her objection to removal by actively participating
    in the case after removal. See Johnson v. Odeco Oil & Gas Co., 
    864 F.2d 40
    (5th Cir. 1989). However, the Johnson opinion makes clear
    that this waiver can occur only when the plaintiff “fails to object
    to the removal” of the action. 
    Id. at 42.
    Because the plaintiff
    timely objected here, this argument is unavailing. We therefore
    AFFIRM.
    

Document Info

Docket Number: 05-41148

Judges: Jolly, Dennis, Clement

Filed Date: 10/20/2006

Precedential Status: Non-Precedential

Modified Date: 11/5/2024