Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 23-1953

RUTH A. PRITT,

Plaintiff, Appellant,

v.

JOHN CRANE INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Barron, Chief Judge, Lynch and Kayatta, Circuit Judges.

Mark A. Alonzo, with whom Christopher P. Duffy, Duffy Law LLC, and Vinson Law, P.A., were on brief, for appellant. Robert M. Palumbos, with whom Leah A. Mintz, Duane Morris LLP, Brian J. Schneider, Schneider Law Group PLLC, Jonathan F. Tabasky, Ryan M. Murphy, Manning Gross + Massenburg LLP, Viiu Spangler Khare, Berks Crane Santana & Spangler, LLP, and Christopher O. Massenburg were on brief, for appellee.

May 10, 2024 PER CURIAM. This appeal is from an order dated October

12, 2023, of the Massachusetts U.S. District Court. The

dispositive issue presented by this appeal is whether this court

has interlocutory jurisdiction under

(a)(3). We

hold we do not.

The statute on which Pritt relies authorizing

interlocutory appeals is limited and provides, in relevant part,

that "the courts of appeals shall have jurisdiction of appeals

from . . . [i]nterlocutory decrees of such district courts or the

judges thereof determining the rights and liabilities of the

parties to admiralty cases in which appeals from final decrees are

allowed."

(a)(3). Where, as here, the plaintiff's

claims are cognizable either in admiralty or in a nonmaritime

ground of federal jurisdiction, Federal Rule of Civil Procedure

9(h) "sets forth the procedure by which a plaintiff indicates

[their] choice to proceed in admiralty" and thereby have admiralty

procedures, including § 1292(a)(3), govern the claims.1 Concordia

1 Fed. R. Civ. P. 9(h) states: (1) How Designated. If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim for purposes of Rules 14(c), 38(e), and 82 and the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions. A claim cognizable only in the admiralty or maritime jurisdiction is an admiralty or maritime claim

- 2 - Co. v. Panek,

(1st Cir. 1997). Although a plaintiff

need not expressly invoke Rule 9(h) to designate their action as

an admiralty case, a plaintiff must at the very least make a

"requisite 9(h) 'identifying statement.'"

at 72 (quoting Ins.

Co. of N. Am. v. Virgilio,

(S.D. Cal. 1983))

(holding that the plaintiff made a 9(h) election for admiralty

procedures where the complaint included the words "In Admiralty"

in the caption and it also did not assert a demand for a jury

trial). In the absence of such a statement, "the parties are not

entitled to invoke any of the special procedures or remedies of

admiralty, including the right of interlocutory appeal under

section 1292(a)(3)." Cont'l Cas. Co. v. Anderson Excavating &

Wrecking Co.,

(7th Cir. 1999). In this case,

removed to federal court pursuant to the Federal Officer Removal

Statute,

(a)(1), Pritt filed an amended complaint

in federal court which, like the prior state court complaint,

sought a jury trial on all claims and did not include any reference

to Rule 9(h).

The record shows that Pritt has not invoked admiralty

jurisdiction as required by the statute. The second amended

for those purposes, whether or not so designated. (2) Designation for Appeal. A case that includes an admiralty or maritime claim within this subdivision (h) is an admiralty case within

(a)(3).

- 3 - complaint continues to assert a right to a jury trial on all claims

and contains no reference to Rule 9(h). At most, the second

amended complaint includes a glancing reference that the case

"implicates the general maritime jurisdiction of the United

States":

This case was removed by Defendant, John Crane Inc., pursuant to the Federal Officer Removal statute,

[2](a)(1). Additionally, this Court has subject matter jurisdiction over this action pursuant to

, based on the complete diversity of the parties and the amount in controversy . . . . This case also implicates the general maritime jurisdiction of the United States under

(1) and

and, therefore the general maritime law of the United States applies in this case.

This language is insufficient. The complaint can

certainly read as alleging that this is a case in which the

plaintiff had the option of proceeding according to normal civil

procedures, or proceeding in admiralty, but there is nothing at

all suggesting that Pritt exercised that option to designate

admiralty procedures. Indeed, the original filing of the case in

state court actually points in the other direction, and a demand

for a jury trial certainly does not show otherwise.2 See Concordia

Co.,

(holding that, because "a demand for a trial

by jury 'is inconsistent with an intent to proceed in admiralty,'"

2 Pritt has not chosen to drop her jury trial demand even though the case has been calendared for trial in the district court.

- 4 - "[o]ne important factor in determining whether a claimant has

elected to proceed in admiralty is whether he demanded a jury

trial" (quoting Lewis v. United States,

(E.D.

Va. 1993))). Under our precedent, Pritt has not shown that we

have interlocutory jurisdiction.3 See Poincon v. Offshore Marine

Contractors, Inc.,

, 294-95 (5th Cir. 2021) (holding

that, where the original complaint stated that the jurisdiction of

the court "is based on the Jones Act . . . and [is] under the

general maritime law," "it is clear that [the plaintiff] did not

elect admiralty jurisdiction" because "[n]owhere in [the]

complaint is there an indication that [the plaintiff] wishes to

3 Pritt contends that in Doyle v. Huntress, Inc., this court asserted appellate jurisdiction under § 1292(a)(3) where the operative complaint also did not include a Rule 9(h) statement. See

(1st Cir. 2005). But in Doyle, the district court assumed subject-matter jurisdiction notwithstanding the plaintiffs' defective invocation of federal-question jurisdiction because the plaintiffs "ha[d] also alleged that th[e] [c]ourt ha[d] subject matter jurisdiction by virtue of th[e] case arising in admiralty." Doyle v. Huntress, Inc.,

, 140 n.3 (D.R.I. 2004). As such, the plaintiffs' mistaken citation to

rather than

was a "harmless" error.

This court therefore found interlocutory review proper under § 1292(a)(3) because the district court went forward with the case solely on admiralty jurisdiction grounds. See Doyle,

(observing that "[t]he district court specifically noted that plaintiffs alleged subject matter jurisdiction by virtue of this case arising in admiralty" and citing to footnote three of the district court's opinion). In this case, by contrast, the complaint expressly and effectively invoked diversity jurisdiction, only thereafter stated that maritime jurisdiction was "implicated," and then expressed no intent to elect the procedures applicable to the latter.

- 5 - proceed in admiralty," and "[h]er jury demand likewise signals a

desire to proceed on the civil side of the district court").

The appeal is dismissed for lack of jurisdiction.

- 6 -