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Matute v. Ltd.

resubmitted under rule 12(6): March 11, 1991.

OSCAR H. MATUTE, APPELLANT,
v.
PROCOAST NAVIGATION LTD., MARITIME SERVICES G.M.B.H., APPELLEES



Appeal from the United States District Court for the District of New Jersey; D.C. No. 88-02710.

Cowen, Alito, and Rosenn, Circuit Judges.

Author: Rosenn

Opinion OF THE COURT

ROSENN, Circuit Judge

This appeal presents two serious questions. The first is whether the district court had subject matter jurisdiction under the Jones Act, 46 U.S.C. App. ยง 688, of a suit brought for damages by Oscar H. Matute, a Honduran citizen, who was a crewmember of a vessel registered in the Republic of Cyprus. The ship was owned at the time of the alleged injury by a corporation whose officers, director, and stockholders were citizens and residents of West Germany. The alleged injury occurred outside the United States. The second question is whether the appellant's failure to follow the rules of this court constituted a jurisdictional bar to hear his appeal or, alternatively, whether this court in the exercise of its discretion should summarily dispose of the appeal by dismissal.

The district court granted the motion of the defendant, Procoast Navigation Ltd. (Procoast), to dismiss the suit for lack of subject matter jurisdiction because the points of contact of this dispute with the United States were minimal. We conclude that the district court did not err in dismissing the plaintiff's complaint for lack of subject matter jurisdiction and in denying the plaintiff's motion for reconsideration.

I.

At the time of plaintiff's injury the vessel LLOYD BERMUDA was on regular liner service between Bermuda and Newark, New Jersey. According to an affidavit of the vessel's chief mate, Walter Gonzalez, Matute developed an eye irritation while employed on the LLOYD BERMUDA in 1986 which, because he failed to receive prompt medical attention, developed into a serious condition. In July 1987, Matute brought this action under the Jones Act against Procoast and another West German corporation, Maritime Services G.m.b.h., for damages arising out of his eye injury.

At Procoast's request, and with the consent of Matute, the suit was transferred from the United States District Court for the Southern District of New York to the United States District Court for the District of New Jersey, where, on November 30, 1989, the court dismissed the action against Procoast for lack of subject matter jurisdiction. In its memorandum order, the district court analyzed the contacts of this dispute with the United States and held that they were insufficient to establish jurisdiction under the Jones Act. The court declared:

The points of contact of this dispute with the United States are minimal, in that the law of the ship's flag is Cyprus; the allegiance of the injured seaman is Honduras; the allegiance of the ship owner is West German; other forums are available to the injured seaman; and the shipowner's base of operations is outside the United States . . . .

The district court might also have mentioned another factor which argued against jurisdiction: the injury occurred outside the United States on the high seas.

Following the dismissal, Matute filed a timely motion for reconsideration based largely on the submission of a new affidavit by Gonzalez claiming that Procoast had an agent acting on its behalf in the United States. The district court considered this new information, but nevertheless reaffirmed its earlier holding that contacts with the United States were too minimal to establish subject matter jurisdiction.

Following denial of his motion to reconsider, Matute timely filed a notice of appeal which stated in part:

Please take notice that the plaintiff appeals from the Order of the Hon. Maryanne Trump Barry, U.S.D.J. denying plaintiff's Motion For Reconsideration filed on March 30, 1990 and docketed on April 4, 1990, which ...


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