Arvie v. Diamond Offshore Drilling, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 10, 2009
No. 06-31304 Charles R. Fulbruge III
Summary Calendar Clerk
DAN ARVIE,
Plaintiff-Appellant
v.
DIAMOND OFFSHORE DRILLING, INC.,
Defendant-Appellee
Appeal from the United States District Court for the
Eastern District of Louisiana
USDC No. 2:05-CV-2664
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Dan Arvie allegedly sustained injuries while working a seaman for
Diamond Offshore Drilling, Inc. Arvie sued Diamond for negligence and
unseaworthiness under the Jones Act, 46 U.S.C. § 30104, and for maintenance
and cure. A jury returned a verdict in favor of Diamond on all counts, and Arvie
appealed without counsel. In a brief to this court, an appellant’s argument
section must contain the “appellant’s contentions and the reasons for them, with
*
Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
No. 06-31304
citations to the authorities and parts of the record on which the appellant relies.”
Fed. R. App. P. 28(a)(9)(A); see Moore v. FDIC, 993 F.2d 106, 107 (5th Cir. 1993).
The argument section of Arvie’s brief, in its entirety, reads as follows: “There
was enough evidence for the jury to find the Defendant Diamond at least 51%
responsible. When there is enough evidence the jury cannot decide there was no
negligence.” Without further citation to authorities or the record, Arvie then
requests a new trial. Such briefing fails to comply with Federal Rule of
Appellate Procedure 28, meriting dismissal. See Moore, 993 F.2d at 107. We
will, of course, consider a motion for rehearing if the motion is supported by
adequate briefing. See id.1
For the foregoing reasons, the appeal is DISMISSED.
1
Our preliminary review of the record fails to reveal any motion for a pre-submission
or post-verdict judgment as a matter of law. See Fed. R. Civ. P. 50(a)–(b). In the absence of
such a motion, an appellate court may not review a jury verdict in a civil action. See Unitherm
Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400–01 (2006); Downey v. Strain, 510 F.3d
534, 542–43 (5th Cir. 2007). Because we dismiss the appeal for failure to comply with our
briefing rules, we need not decide whether a party’s failure to properly move for a judgment
as a matter of law deprives us of jurisdiction. See Sinochem Int’l Co. v. Malay. Int’l Shipping
Corp., 549 U.S. 422, 430–31 (2007). Compare Allison v. City of E. Lansing, 484 F.3d 874, 876
(6th Cir. 2007) (“Given Unitherm Food’s holding, it is now clear that renewing the motion
post-verdict is jurisdictional and cannot be waived.”), with Kelley v. City of Albuquerque, 542
F.3d 802, 817 n.15 (10th Cir. 2008) (“The Sixth Circuit’s view is open to question because of
the Supreme Court’s subsequent decision in Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360,
2365, 168 L. Ed. 2d 96 (2007).”).
2