Terry P. Murphy, Stephen A. Murphy v. Florida Keys Electric Cooperative Assn., Inc.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FILED FOR TH E ELEV ENTH C IRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 09, 2003 THOMAS K. KAHN No. 02-11574 CLERK ________________________ D. C. Docket No. 01-10009-CV-SH

TER RY P . MU RPH Y, STE VEN A. M URP HY, a s co-per sonal representatives of the Estate of Brendan M. M urphy, a nd as pa rents and natural guardia ns of S teven A . Murp hy, Jr., a m inor,

Plaintiffs ,

versus

FLO RIDA KEY S EL ECT RIC C OOP ERA TIVE ASS OCIA TION , INC.,

Defendant-Third-Party-Plaintiff- Coun ter-Def endant- Appe llant,

versus

RAY MOND A SHM AN, I II, Individ ually and as paren t and natu ral guard ian, of Raym ond A shman , IV, a m inor child ,

Third-Party-Defendant- Counter- Claiman t-App ellee,

STE VEN A. M URP HY, S R., et al.,

Third- Party-D efendan ts.

________________________

Appeal from the United States District Court for the Southern District of Florida _________________________

(May 9, 2003) Before BIRCH, CARNES and BRUNETTI*, Circuit Judges. CARNE S, Circuit Judge:

The issue in this appeal is whether the defendant in an admiralty tort1 action who settles with the plaintiff without obtaining a release from liability for other potential defendants can then be entitled to contribution from them toward the amoun t it paid to se ttle its own liability. Pu tting the S uprem e Cour t’s decision in McDermott, Inc. v. AmClyde, 511 U .S. 202 , 114 S . Ct. 146 1 (199 4), togeth er with our decision in Jovovich v. Desco Marine, Inc., 809 F.2d 1529 (11th Cir. 1987), we con clude tha t a settling d efendan t cannot b ring a su it for con tribution against a nonsettling defendant who was not released from liability to the plaintiff by the settlemen t agreem ent.

* Honorable Melvin Brunetti, United States Circuit Judge for the Ninth Circuit, sitting by designation. 1 We use the term “admiralty tort” in the first part of this opinion to mean a tort asserted under a federal court’s admiralty jurisdiction. Later in the opinion, we use the term “maritime tort,” which is a species of tort which can be brought under a federal court’s admiralty jurisdiction, although it need not be.

That is the simple bottom line of our decision, and it is a result that makes good sense, but how our circuit law has gotten to that point is anything but simple. Instead o f follow ing a straig ht path o ur decisio ns on co ntributio n in adm iralty cases having lurched back and forth like a drunken sailor. After we set out the facts and proced ural histo ry, we w ill explain th e propo rtionate sh are appr oach to apportio ning liab ility amon g joint tor tfeasors a nd wh y contrib ution is n ot availab le from nonsettling tortfeasors under that approach, and then explain why we conclude that our Jovovich decision is once again good law. There is also an issue in this case about the district court’s dismissal of a counterclaim brought under the supplemental jurisdiction of the court, which we will take care of at the end of the opinion .

The facts leading up to these legal issues began shortly after midnight on July 25, 2000, when Raymond Ashman IV and two of his friends went out in a boat owned by his father, Raymond Ashman III, to enjoy the start of the annual “Sports men’s L obster M ini-Seas on.” Ra ymond Ashm an IV w as piloting the boat. His two friends along for the ride were Brendan and Steven Murphy who w ere brothers. The trio’s trip ended in tragedy soon after it began when the boat collided with an “electrical pole abutment support structure” owned by Florida Keys Electric Co-op Association, Inc. Brendan Murphy was thrown from the boat *4 and killed , and his b rother S teven w as injured . Raymond A shman IV w as also injured.

Brendan and Steven’s parents, the Murphys, sued Florida Keys in federal district court for the wrongful death of B rendan and for Steven ’s injuries.2 Their complaint invoked the court’s admiralty jurisdiction. The Murphys did not sue any member of the Ashman family, and still have not done so. In response to the Murp hy’s com plaint aga inst it, how ever, Flo rida Ke ys filed a th ird-party complaint against the Ashmans3 which also invo ked the d istrict cour t’s admira lty jurisdictio n. Florid a Keys c laimed th at, if it were found liable to the Murp hys, it was entitled to contribution from the Ashmans. The Ashmans, for their part, filed a counterclaim against Florida Keys to recover for Raymond IV’s injuries, but they brought that as a civil action under the district court’s supplemental jurisdictio n, not un der its adm iralty jurisd iction. Th ey later bro ught a se parate su it against Florida Keys in state court to recover for R aymond IV’s injuries.

2 The Murphys sued as parents and natural guardians of Steven, a minor, and as co- personal representatives of the estate of Brendan. 3 Florida Keys’ third-party complaint is against Raymond Ashman III, the father of Raymond Ashman IV, individually, and also in his capacity as parent and natural guardian of his son. Our references hereafter in this opinion to “the Ashmans” mean Raymond III, individually, and Raymond IV through him as parent and natural guardian.

While all of the actions were pending, Florida Keys settled with the Murphys. The settlement agreement, however, did not release the Ashmans from liability to the Murphys, should the Mu rphys ever bring suit against them. As a result, the A shman s move d for su mmary judgm ent on F lorida K eys’ third p arty contribution claim, taking the position that Florida Keys’ failure to obtain a release for them as part of the settlement agreement barred it from seeking contribution from them. The district court agreed and granted the Ashmans’ motion for summary judgment. The court also exercised its discretionary powers under 28 U.S.C. § 1367(c)(3 ) and dismiss ed withou t prejudice the A shman’ counter claim against Florida Keys. Florida Keys appeals both the grant of summary judgment on its contribution claim against the Ashmans and the dismissal without prejudice of their co unterclaim against it. 4

DISCUSSION

4 Of course, parties ordinarily do not complain about the dismissal of a claim or counterclaim against them, but the dismissal without prejudice allowed the Ashmans to pursue their claim against Florida Keys in state court. Florida Keys’ apparent motivation in appealing the dismissal is its preference for a federal court forum.

In 1994 the Supreme Court settled decades of debate over the proper method of appo rtioning liability betw een settling and no nsettling to rtfeasors in admir alty cases by h olding th at the “pro portion ate share a pproac h” applie s. See McD ermott, 511 U.S. at 217, 114 S. Ct. at 1470. Under the proportionate share approach adopted in McD ermott, if at least one defendant does not settle with the plaintiff and the c ase goes to trial, the am ount of damag es and th e percen tage of liab ility attributable to each tortfeasor is determined at trial, and any nonsettling defendant is responsible for only the proportion of the total damages attributed to it in the verdict. Id. at 208-13, 114 S. Ct. at 1465-67. We must decide, under the proportionate share approach, whether Florida Keys is now entitled to have determined at trial the actual amount of the Mur phys’ damages and the parties’ relative degrees of fault, all for the purpose of Florida Keys recovering from the Ashm ans any a moun t that it “over paid” fo r its share o f the dam ages in its settlement with the Murphys.

Allowing Florida K eys to recover contribution from the A shmans in these circumstances is incompatible with the proportionate share approach. An essential tenet of this approach is that when a tortfeasor settles a claim against it, but does not obta in a release for the o ther tortfe asors, it ha s settled on ly its prop ortionate share of the total damages, no more and no less. It follows that what remains, and *7 all that remains, to be calculated is the compensation the nonsettling tortfeasors owe the plaintiff. Once that amount is determined at trial, the nonsettling tortfeasors are liable only to the plaintiff and only to the extent the trial verdict determines. Their trial-determined liability is in no way affected by a settling defend ant’s neg otiated liab ility. See id. at 220, 114 S. Ct. at 1471 (“[O]ne of the virtues of the proportionate share rule is that, unlike the pro tanto rule, it does not make a litigating defendant’s liability dependent on the amount of a settlement negotiate d by oth ers with out rega rd to its inte rests.”).

Applying the propo rtionate share approach to this case, Florida Keys resolved through the settlement only the amount of damages it owed to the Murphys. The settlement determined between those two parties the amount of damag es the M urphys suffered and Flo rida Ke ys’ percen tage of fa ult. Ther e is nothing about the issue of how much Florida K eys should have paid the M urphys that is to be litigated between Florida Keys and the Ashmans, because under the proportionate share approach it does not matter to the Ashmans how much Florida Keys sh ould ha ve paid th e Mur phys to d ischarge its liability to them. Th at is Florida Keys’ b usiness, n ot a matter of conc ern for th e Ashm ans.

To come at the same thing an other way, when F lorida Keys and the M urphys negotiated their settlement, they each assumed the risk of misjudging what a trial *8 would determine to be the amount of damage the Murphys had suffered and the proportion of the liability for that damage that should be attributed to Florida K eys instead of the Ashmans. 5 The Ashmans, who were not a party to the settlement assumed no such risk, preferring instead to risk whatever verdict the Mu rphys might obtain against them, perhaps discounted by the hope or expectation that the Murphys would not sue them. If the Murphys got more from settling with Florida Keys than they would have recovered from taking Florida Keys to trial, that does not lessen the poten tial liability of th e Ashm ans. See McD ermott, at 219-20, 114 S. Ct. at 147 1 (“[A]n y excess r ecovery is entirely attr ibutable to the fact tha t the . . . defend ants may have made an u nwise s ettlement. . . . I t seems to us that a plaintiff’s good fortune in striking a favorable bargain with one defendant gives other defendants no claim to pay less than their proportionate share of the total loss.”). Likewise, if the Murphys got less from Florida Keys than they would have recover ed by trial, th at does n ot increas e the pote ntial liability o f the As hmans . See id. at 221, 114 S. Ct. at 1472 (“Just as the other defendants are not entitled to a

5 Because of the multiple factors that must be taken into account when making settlement decisions, and because predicting the result of trials is not an exact science by any means, the settlement figure will rarely match what a trial would have determined to be actual damages owed the plaintiff by the settling defendant. See McDermott, 511 U.S. at 219-20, 114 S. Ct. at 1471 (“Because settlement amounts are based on rough estimates of liability, anticipated savings in litigation costs, and a host of other factors, they will rarely match exactly the amounts a trier of fact would have set.”); Leger v. Drilling Well Control, Inc., 592 F.2d 1246, 1250 n.10 (5th Cir. 1979) (“[S]ettlement dollars cannot be equated with dollars obtained in the trial process.”).

reduction in liability when the plaintiff negotiates a generous settlement . . . so they are not required to shoulder disproportionate liability when the plaintiff negotiates a meager one.”) No suit for contribution will lie against a nonsettling defendant who is not releas ed from liability, beca use that d efendan t remains liable for its proportionate share of damages regardless of the terms of the settlement the other defend ant mad e. Id. at 209, 1 14 S. C t. at 1466 .

There a re two w ays to loo k at wh at Florid a Keys is seeking to do, an d both are telling. O ne way is that Florida Keys is seeking to escape the bargain it struck with the Murphys about the extent of its liability, trying to litigate with the Ashmans the issue of how much it should have paid the Murphys and then recover from the Ashmans any excess it did pay. That will not do, because the Ashmans are not responsible for the bargain Florida Keys struck with the Murphys. The other way to look at Florida Keys’ position is that it is seeking to recover from the Ashmans the amount of the settlement it paid to the Murphys that is attributable to the Ash mans’ liab ility. That w ill not do e ither, beca use non e of the se ttlement is attributab le to the A shman s’ liability, w hich w as not rele ased in w hole or p art. We hold Florida Keys to its bargain: it paid for a discharge of its liability to the Murp hys, and that is all it go t.

We ha ve reach ed the ide ntical con clusion o nce befo re. See Jovovich v. Desco Marine, Inc., 809 F .2d 152 9, 1531 (11th C ir. 1987 ) (unde r the pro portion ate share approach contribution actions are n ot available to settling parties because “settling pa rties assum e the finality and po tential ben efit and ris k of their settlement decision, and . . . we will respect the aleatory nature of the settlement process” (internal quotation marks omitted)). We are bound to follow the Jovovich decision , see, e.g., United States v. S mith, 201 F.3d 1317, 1322 (11th Cir. 2000) (“It is the firmly established rule of this Circuit that each succeeding panel is bound by the holding of the first panel to address an issue of law, unless and until that holding is overruled en banc, or by the Supreme Court.” (internal quotation marks omitted)), with which w e are in full agreement, anyway.

Florida Keys says that we should not adhere to Jovovich, but should instead follow the later decision in Great L akes D redge & Dock Co. v. T anker R obert W att Miller, 957 F.2d 1575 (11th Cir. 1992) (“Great Lakes III”).6 That de cision he ld that settling defendants may sue nonsettling, unreleased defendants for contribu tion, id. at 1584, which is exactly the opposite result from the one reached

6 The Great Lakes litigation has come before this Court four times: Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716 (11th Cir. 1982) (“Great Lakes I”); Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1987) (“Great Lakes II”); Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575 (11th Cir. 1992) (“Great Lakes III”); Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 92 F.3d 1102 (11th Cir. 1996) (“Great Lakes IV”).

five years earlier in Jovovich. A tour of the tor tured pa th of ou r decision s in this area is necessary to understand wh y Great Lakes III did not follow Jovovich and why w e do.

Our predecessor circuit first confronted the overarching issue of the proper way to apportion liability between settling and nonsettling tortfeasors in adm iralty cases in Loffland Brothers Co. v. Huckabee, 373 F.2d 528 (5th Cir. 1967), and Billiot v. Stewart Seacraft, Inc., 382 F.2d 662 (5th Cir. 1967). In those two cases the Fifth Circuit determined that a nonsettling defendant is liable for the entire amount of the plaintiff’s damages, less a set-off for the amount of the other tortfeasors’ settlement, regardless of the proportion of the plaintiff’s damages attributab le to each to rtfeasor. Billiot, 382 F .2d at 66 4; Loffland, 373 F .2d at 52 8. That m ethod, o f course , is the pro tanto app roach. McD ermott, 511 U.S. at 211-13, 212 n.14, 114 S. Ct. at 1467 & n.14.

Twelve years later, though, the Fifth Circuit overruled Loffland and Billiot and held that the pr oportio nate shar e appro ach app lied to adm iralty tort cas es. Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir. 1979). The overruling was based on the intervening Supreme Court decision in United States v. Reliable Transfer Co., 421 U.S. 397, 95 S. Ct. 1708 (1975). In Reliable Transfer *12 the Supreme Court had abandoned the “divided damages rule,” which mandated that the parties at fault in admiralty cases each be liable for an equal portion of the damages regardless of their degrees of fault. For example, if the plaintiff was 25% at fault and the defen dant 75 % at fau lt, each w ould ne vertheles s be liable f or half of the tota l damag es. Id. at 397, 95 S. Ct. at 1709. In place of the divided damages approach, the Supreme Court in Reliable Transfer adopted the rule that each tortfeaso r is respo nsible fo r the pro portion of dam ages attrib utable to it. Id. at 411, 95 S. C t. at 1715 -16.

The Suprem e Court’s Reliable Transfer decision did not in volve m ultiple defend ants, one of wh om had settled w ith the plain tiff. Non etheless, the Fifth Circuit concluded in Leger that the rule adopted in Reliable Transfer undermined the pro tanto approach the circuit had been following to such a n extent th at it overruled Loffland and Billiot and adopted the proportionate share approach instead. Leger, 592 F.2d at 1249 (“[T]he [Supreme] Court seems to have answered the question by holding that, where the plaintiff and the defendant in a maritime collision case are both partly responsible for an accident, ‘liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault . . . .’”).

The proportionate share approach from Leger became part of th e law of this circuit with this Court’s decision in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding precedent Fifth Circuit decisions issued prior to the close of business on September 30, 1981). In 1987 this Court decided Jovovich, which confronted the precise issue we face in this case and held that under the proportionate share approach adopted in Leger a settling defendant cannot sue a nonsettling defendant whose liability to the plaintiff is not resolved by the settlement under either an indemnification or contribution theory. The Jovovich Court r easoned that Leger’s holding that “settling parties assume the finality and potential benefit and risk of their settlement decision, and whether the plaintiff o r any of th e defend ants are u ltimately fo und to h ave mad e a favor able settlement, we will respect the aleatory nature of the settlement process” applies with equal force in indemnity or con tribution actions. 809 F.2d at 1531. A s a result, a settling defendant must live with its bargain and cannot sue a nonsettling one for indemn ity or con tribution . Id.

Shortly after Jovovich was released, however, this Court swerved back the other way, concluding in Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540 (11th Cir. 1987) (“Great Lakes II”), that the Supreme Court’s decision in *14 Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S. Ct. 2753 (1979), dictated a different result. The Great Lakes II Court held that, given the Supreme Court’s guidance in Edmonds, the pro tanto approach was actually the approach that the Supreme Court would apply to apportion liability between settling and nonsettling defendants, and so that approach should once again be the law of th is circuit. Great Lakes II, 832 F.2d at 1548 (“As we are bound by the Supreme Court’s guidance and the rule in Edmonds, we ado pt the [pr o tanto approa ch].”).

Then came Great Lakes III in 1992 , which held that under th e pro tan to approach adopted in Great Lakes II, a suit for contribution against a nonsettling, unreleased defendant is available to a settling defendant, even though under Jovovich such a su it is not ava ilable und er the pro portion ate share a pproac h. Great Lakes III, 957 F .2d at 15 83. In so holding , Great Lakes III departed from th e well-settled law of most jurisdictions that settling defendants may not bring a contribution action against nonsettling, unreleased defendants, regardless of which liability-app ortionm ent schem e is in place . McD ermott, 511 U.S. at 211 n.13, 114 S. Ct. at 1467 n.13 (“[T]he law of most jurisdictions [is] that a settling defendant ordinarily has no right of contribution against other defendants.” (citing Unif. *15 Contribution Among Tortfeasors Act § 1(d), 12 U.L.A. 63 (1975); Unif. Comparative Fault Act § 4(b), 12 U.L.A. 54 (1993 Supp.); Restatement (Second) of Torts § 886A(2) & cmt. f, pp. 337, 339 (1977))).

In 1994 the Supreme Court resolved the issue of how liability between settling and nonsettling tortfeasors in admiralty cases should be apportioned, rejecting th e pro tan to appro ach in fav or of the propo rtionate sh are appr oach. See McD ermott, 511 U.S. at 209-21, 114 S. Ct. at 1466-72. The McD ermott decision authoritatively settled the dispute between our Leger and Great Lakes II decisions about w hich app roach th e Supr eme Co urt favo red. It estab lished tha t Great Lakes II was w rong to conclud e that Leger had been o verruled by th e Suprem e Court’s decision in Edmonds. We recognized this in our 1996 decision in Great Lakes Dredge & Dock C o. v. Tanker Robert Watt Miller, 92 F.3d 1102 (11th Cir. 1996) (“Great Lakes IV”), which announced our return to the proportionate share approach in obedience to the S upreme Court’s McD ermott decision. Id. at 1106. We also held in Great Lakes IV, again in obedience to McD ermott, that under the proportionate share approach a nonsettling defendant cannot sue a settling defend ant for co ntributio n, the con verse of the issue w e face in th is case. Id. at 1106-07

Now this circuit (along with the rest of the country) is operating under the propo rtionate sh are appr oach in a dmiralty to rt cases, see McD ermott, 511 U.S. at 217, 11 4 S. Ct. a t 1470; Great Lakes IV, 92 F.3d at 1106-07, and sixteen years ago we decided in the Jovovich case that under the proportionate share approach a settling de fendan t may no t sue a no nsettling, u nreleased defend ant for co ntributio n. Jovovich, 809 F .2d at 15 30-32 . It follow s that Jovovich controls, and Florida Keys may not bring a suit for contribution against the Ashmans. However winding the path to the present state of the law, once we g et here the equation is as simple as: McD ermott and Great Lakes IV plus Jovovich equals settling defendants cannot sue non settling, un released d efendan ts for con tribution in admir alty tort case s.

Great Lakes III is no longer relevant, at least not in admiralty tort cases. It address ed noth ing othe r than co ntributio n rights u nder a p ro tanto a pproac h to apportioning liability. The pro tanto approach to apportioning liability is no longer the law in admiralty tort cases. See Smith v. GTE Corp., 236 F.3d 1292, 1303 n.11 (11th Cir. 2001) (“Subsequent panels are not bound by prior decisions where there has been a change in the controlling law as a result of a subsequent en banc or Supreme Court decision or statutory change.”). The question Great Lakes III answered is no longer the question that arises in admiralty tort cases since the Supreme Co urt’s McD ermott decision .

Florida Keys says that the conclusion we reach will present parties who wish to settle with a Catch 22: either obtain a release for all parties and have contribution precluded by McD ermott’s rule barring contribution from settling parties, 511 U.S. at 209, 114 S. Ct. at 1466, or do not obtain a release and have contribution precluded by our holding in Jovovich and this c ase. Tha t specter is based on a misreading of McD ermott. That decision’s prohibition against contribu tion from a settling p arty does no t preclud e a contrib ution su it against a tortfeasor who is released by the settlement even thou gh not a party to it. A release is not the s ame as a s ettlement, a nd a relea sed party is not a settlin g party w ithin the meaning of McD ermott, which does not purport to eliminate altogether the “well-established maritime rule allowing contribution between joint tortfeasors.” Cooper Stevedoring Co. v. Frizt Kopke, Inc., 417 U.S. 106, 113, 94 S. Ct. 2174, 2178 (1974). Neither does our holding today. In any event, dilemma or no, we are bound to follow the McD ermott/Great Lakes IV/Jovovich decision s.

One other issue remains to be decided. In addition to granting summary judgment in favor of the Ashmans on Florida Keys’ contribution claim, the district court dismissed without prejudice the A shmans’ counterclaim against Florida K eys under 28 U.S .C. § 1367(c). That suited the A shmans fine, but Florida K eys, apparently preferring to stay in federal court, argues that the Ashm ans’ *18 counterclaim c ould only h ave been pr operly asserted u nder the district co urt’s admiralty jurisdiction, not its supplemental jurisdiction, and therefore dismissal under § 1367(c) w as an abuse of discretion. We d isagree with the initial premise of that arg ument.

The Ashmans originally could have brought their maritime tort claim against Florida Keys in one of two ways. They could have sued in state court, a right guaranteed them by the “savings to suitors” clause of 28 U.S.C. § 1333, or they could h ave sued in federa l court by invokin g the distr ict court’s a dmiralty jurisdiction.7 See, e.g., Cont’l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340, 1344 (5th Cir. 1979). Once Florida Keys filed a third-party complaint against the Ashmans in federal court, however, their maritime tort claim became a compu lsory cou nterclaim under F ederal R ule of C ivil Proc edure 1 3(a), bec ause it arose from the same transaction or occurrence, the boating accident, as Florida Keys’ third-party complaint against the Ashmans for contribution. A maritime tort claim ma y be asser ted in fed eral cour t withou t invokin g the cou rt’s admir alty jurisdictio n if the claim falls with in the cou rt’s supp lemental ju risdiction . See

7 There was no diversity of citizenship between the Ashmans and Florida Keys, so the Ashmans could not have brought their maritime tort claim as a civil action in federal court under the “savings to suitors” clause. See Cont’l Cas. Co. v. Canadian Universal Ins. Co., 605 F.2d 1340, 1344 (5th Cir. 1979).

Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 380-81, 79 S. Ct. 468, 484-85 (1959) (holding that the district court had pendant jurisdiction to consider maintenance and cure claims brought “by a complaint at law rather than by a libel in admiralty” because the complaint also alleged a Jones Act violation, which was within the district court’s jurisdiction under 28 U.S.C. § 1331). The Ashmans w ere thus not required to b ring their maritim e tort claim und er the district court’s admiralty jurisdiction because as a compulsory counterclaim their maritime tort claim was within the district court’s supplemental jurisdiction, see 28 U.S .C. § 1367; Marine Trasp. Servs. Sea-Barge Group, Inc. v. Python High Performance Marine Corp., 16 F.3d 1133, 1139 (11th Cir. 1994), and therefore could have been asserted as a civil action under the “savings to suitors” clause instead of as an admiralty claim, see Romero, 358 U.S. at 380-81, 79 S. Ct. at 484-85.

Florida Keys th ird-party compla int agains t the Ash mans th us left them with two op tions for federal co urt jurisd iction ov er their claim against F lorida K eys. They could invoke the district court’s admiralty jurisdiction, or they could bring their maritime tort claim as a civil action under the district court’s supplemental jurisdiction as a compulsory counterclaim. If a claim has multiple jurisdictional bases, one of which is admiralty, Federal Rule of Civil Procedure 9(h) provides that the pleading “may contain a statement identifying the claim as an admiralty or *20 maritime claim.” F ailure to id entify a claim as an adm iralty or m aritime claim in these circu mstance s means that it is not o ne. See Fed. R. Civ. P. 9(h), advisory committee notes (noting that the unification of admiralty and civil actions necessitate d a proc edural m echanism to preser ve the “po wer of the plead er to determin e wheth er these h istorically m aritime pr ocedur es shall be applicab le to his claim or not; the pleader must be afforded some means of designating his claim”); Romero v. Bethlehem Steel Corp., 515 F.2d 1249, 1254 (5th Cir. 1975) (noting that the plaintiff “could have obtained a jury trial on all claims simply by omitting or withdrawing the 9(h) designation in his complaint and bringing his entire suit as a civil action ”); Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5th Cir. 1972) (noting that “this action began at law, because it was filed without a statement identifyin g the claim as an adm iralty claim, a s provid ed by R ule 9(h) ”). The Ashma ns did not inc lude a statemen t in their pleading in voking the district court’s admiralty jurisdiction. Therefore, their maritime tort claim was brought as a civil action under the district court’s supplemental jurisdiction. Once the district court granted summary judgment on Florida Keys’ contribution claim it had the discretion to dism iss the Ashm ans’ counter claim. See 28 U.S.C. § 1367(c). There was no abuse o f discretio n.

AFFIRMED.