ROBERT G. DOUMAR, District Judge.
This matter is before the Court on Plaintiff A.E.A.'s negligence, product liability, and breach of warranty claims against Defendants Volvo Penta of the Americas ("Volvo Penta"), LLC, Grady-White Boats, Inc. ("Grady White"), Norfolk Marine Company ("Norfolk Marine"), Richard Harris, and John Does 1-50, arising from injuries Plaintiff sustained during a recreational boating accident off the coast of Virginia Beach, Virginia. Initially, Plaintiffs parent brought a suit on her behalf in the Circuit Court of the City of Norfolk, Virginia, in which Plaintiff alleged "maritime and state law causes of action." Am. Compl. ¶ 1. Plaintiff claimed that jurisdiction was valid "pursuant to the general maritime jurisdiction of the United States of America, the Savings to Suitors Clause (28 U.S.C. § 1333) and the laws of the Commonwealth of Virginia." Id. ¶ 2.
After Volvo Penta filed a Notice of Removal to remove the matter to federal court, Plaintiff filed a Motion to Remand. ECF No. 18. Subsequently, Volvo Penta filed a Motion for Leave to File Amended Notice of Removal ("Motion for Leave to Amend Notice"). ECF No. 28. On December 15, 2014, the parties appeared before the Court and argued their respective positions on both motions. At that hearing, the Court took the matter under advisement. For the reasons set forth below, the Court hereby
On about June 30, 2011, Plaintiff, who was about thirteen years old at the time, was tubing
Subsequently, Plaintiff's parent brought a suit on her behalf in the Circuit Court of the City of Norfolk, Virginia against Harris, Volvo Penta, Grady-White, Norfolk Marine, and John Does 1-50. On July 11, 2014, Plaintiff filed an Amended Complaint. On August 20, 2014, Volvo Penta filed a Notice of Removal in this Court. ECF No. 1. In its Notice, Volvo Penta relied on maritime jurisdiction, as well as the 2011 amendment to 28 U.S.C. § 1441, as grounds for removal.
On September 19, 2014, Plaintiff filed a Motion to Remand seeking to remand the case to state court. ECF No. 18. On October 28, 2014, Volvo Penta filed a Motion
Although filed after the Motion to Remand, the Court will first consider Volvo Penta's Motion for Leave to Amend Notice, as the Court's ruling on this Motion will directly affect what jurisdictional statements in the Notice of Removal it may consider when deciding Plaintiff's Motion to Remand.
In its Motion for Leave to Amend Notice, Volvo Penta seeks to leave to edit its Notice of Removal. Although many of these proposed edits are cosmetic, Volvo Penta requests certain substantive changes to legal statements in the Notice of Removal. Volvo Penta seeks to add jurisdictional statements asserting that federal question jurisdiction is a basis of removal for this action. Specifically, Volvo Penta seeks to add language claiming federal question jurisdiction exists under the Federal Boat Safety Act of 1971, 46 U.S.C. § 4301 et seq., a regulatory statute enacted to improve the safe operation of recreational vessels in navigable waters.
"Under 28 U.S.C. § 1446(b), a defendant sued in state court has thirty days from service of process in which to file a removal petition in the federal court." Muhlenbeck v. KI, LLC, 304 F.Supp.2d 797, 799 (E.D.Va.2004) (Smith, J.). "[D]uring that thirty-day removal period, a defendant seeking removal generally has the right to amend its removal petition to include either missing or imperfectly stated grounds for removal." Id. "After the thirty-day removal period, a defendant may amend its removal petition with leave of court, pursuant to 28 U.S.C. § 1653...." Id. Under this statute, "[d]efective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." 28 U.S.C. § 1653.
As Volvo Penta's request to amend its Notice of Removal occurs well outside
Despite the absence of a case directly addressing whether § 1653 permits a party to add statements asserting federal question jurisdiction when its Notice relied on other grounds for removal, this Court finds that the application of the Fourth Circuit's ruling in Wood v. Crane Co., 764 F.3d 316 (4th Cir.2014) appropriately resolves this issue. In Wood, the Fourth Circuit interpreted § 1653 to determine whether the statute permitted the defendant to amend his notice of removal to include federal officer jurisdiction. The court first identified "a split among our circuit's district courts" between the "strict constructionist school" and the "liberal approach" in interpreting § 1653. 764 F.3d at 323. However, the Fourth Circuit found that
Id. (emphasis added).
Volvo Penta argues that its proposed addition is not substantive but simply provides clarification to the grounds already raised in its Notice. Volvo Penta points out that it already raised original jurisdiction in its Notice, which encapsulates "both federal question and admiralty jurisdiction." However, applying the Wood test to the present case, Volvo Penta cannot claim that its proposed amendment "correct[s] allegations already present in the notice of removal." As noted earlier, in its Notice of Removal, Volvo Penta initially relied on maritime jurisdiction, as well as the 2011 amendment to 28 U.S.C. § 1441, as grounds for removal. Furthermore, as correctly pointed out by Plaintiff, Volvo's original Notice contains no mention of separate federal question jurisdiction, non-maritime federal common law, or the federal question jurisdictional statutes. Although the Notice does cite to 28 U.S.C. § 1441, which discusses the removability of cases that possess a federal question in subsection (c), the Notice specifically cites to subsection (a). This subsection merely restates the general law regarding removal: "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed." 28 U.S.C. § 1441(a). To allow defendants to amend their Notices of Removal to add any subcategories of original jurisdiction, such as federal
However, the Court's inquiry does not end here. Volvo Penta also argues that its reference to the saving to suitors clause (or "savings clause"), 28 U.S.C. § 1333, as well as maritime jurisdiction generally, in its original Notice allows Volvo to amend the Notice to add grounds for federal question jurisdiction. As no cases have directly considered this issue, the Court again must rely on the Wood rule. Applying this rule, this Court finds that Volvo's proposed amendment seeking to add grounds for federal question jurisdiction to a Notice of Removal that only specifically references maritime law and the saving to suitors clause constitutes "new allegations of a jurisdictional basis."
First, Supreme Court precedent indicates that federal question jurisdiction and maritime jurisdiction are separate and distinct grounds for jurisdiction. In Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Supreme Court considered whether the federal question statute should incorporate claims brought under maritime jurisdiction. However, the Supreme Court refused to equate maritime jurisdiction and federal question jurisdiction — exhibiting that both grounds are separate jurisdictional foundations. 358 U.S. at 371-72, 79 S.Ct. at 479-81. Clearly, the addition of another completely separate and distinct ground for jurisdiction constitutes "new allegations of a jurisdictional basis" under Wood. Therefore, based on the Supreme Court's ruling in Romero, the Court finds that the addition of federal question jurisdiction to Volvo Penta's Notice of Removal is not equivalent to a simple correction of "allegations already present in the notice of removal." Instead, as maritime and federal question jurisdiction are separate and distinct grounds for jurisdiction, the Court finds the addition of federal question jurisdiction to Volvo Penta's Notice of Removal constitutes "new allegations of a jurisdictional basis."
Second, Volvo Penta's reference to the saving to suitors clause in its Notice is not a sufficient basis as to invoke federal question jurisdiction. As discussed in more detail later, the saving to suitors clause grants concurrent jurisdiction of maritime cases to both state and federal courts. See Lewis v. Lewis Clark Marine, Inc., 531 U.S. 438, 445, 121 S.Ct. 993, 999, 148 L.Ed.2d 931 (2001). Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986); Romero, 358 U.S. at 372, 79 S.Ct. at 480. Thus, the mere reference of the saving to suitors clause in itself cannot invoke federal question jurisdiction when the clause preserves a plaintiffs right to pursue maritime claims in state court. Furthermore,
Therefore, the Court finds that Volvo Penta's proposed changes to its Notice of Removal would constitute "new allegations of a jurisdictional basis" under Wood and, consequently, are not permitted under § 1653. Accordingly, the Court
In addition to Volvo Penta's Motion for Leave to Amend Notice, Plaintiff also brings a Motion to Remand. Since the Court has denied Volvo Penta's Motion for Leave to Amend Notice, for the purpose of deciding Plaintiff's Motion, the Court considers Volvo Penta's Notice of Removal the form presently filed with the Court.
"Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants...." 28 U.S.C. § 1441(a). "The burden of establishing federal jurisdiction is placed upon the party seeking removal." Mulcahey v. Columbia Organic Chems. Co., Inc., 29 F.3d 148, 151 (4th Cir.1994). "Because removal jurisdiction raises significant federalism concerns, [courts] must strictly construe removal jurisdiction." Id.; Creekmore v. Food Lion, Inc., 797 F.Supp. 505, 507 (E.D.Va.1992) ("[C]ourts strictly construe the removal statute and resolve all doubts in favor of remanding the case to state court."). However, "[i]f federal jurisdiction is doubtful, a remand is necessary." Mulcahey, 29 F.3d at 151.
In its Notice of Removal, Volvo Penta relied on two major grounds for removal. First, it stated that federal courts have original jurisdiction over maritime claims. Second, it also maintained that the 2011 amendment to the general removal statute, 28 U.S.C. § 1441, rendered maritime claims removable to federal court. The Court disagrees with both contentions. Not only do both arguments clearly ignore the presence of the saving to suitors clause but, as discussed further below, the 2011 amendment to § 1441 did not permit maritime claims to be removed to federal court without an independent basis for jurisdiction.
Under the saving to suitors clause, 28 U.S.C. § 1333, "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1). The Supreme Court has interpreted the saving to suitors clause "as a grant to state courts of in personam jurisdiction, concurrent with admiralty courts." Lewis, 531 U.S. at 445, 121 S.Ct. at 999; Tallentire, 477 U.S. at 222, 106 S.Ct. at 2494 ("The `saving to
Volvo Penta seems to ignore the saving to suitors clause and primarily relies on Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex.2013), and its progeny in support of removal. In Ryan, the court found that the 2011 amendment to § 1441 removed language in the statute that had previously barred the removal of maritime claims. The Ryan court specifically relied on the Fifth Circuit case In re Dutile, 935 F.2d 61 (5th Cir.1991). In Dutile, the Fifth Circuit had concluded that
935 F.2d at 62-63 (emphasis in original).
Nevertheless, the Court refuses to follow the Ryan decision. To begin with, the Ryan court failed to sufficiently account for the saving to suitors clause. Although the Fourth Circuit has yet to weigh in on the issue, the Court finds a recent opinion from the District Court of Maryland, Cassidy v. Murray, 34 F.Supp.3d 579 (D.Md. 2014), to be make persuasive arguments on this point. In that case, the court rejected Ryan on the grounds that "the Dutile and Ryan courts' focus on section 1441 fail to apportion sufficient weight to the savings clause." Cassidy, 34 F.Supp.3d at 583. The Cassidy court pointed out that adopting the Ryan court's reasoning would contradict the Supreme Court's reasoning in Romero. As mentioned earlier, in Romero, the Supreme Court considered whether the federal question statute should encompass claims brought under maritime jurisdiction. In deciding against making such a finding, the Supreme Court specifically relied on the fact that such an expanded view of federal question would eviscerate "the historic option of a maritime suitor pursuing a common-law remedy to select his forum, state or federal," which the saving to suitors clause seeks to preserve. Romero, 358 U.S. at 371-72, 79 S.Ct. at 479-81. The Cassidy court relied on this language in reasoning that adopting the ruling in Ryan and Dutile would permit "the very occurrence the Supreme Court attempted to avoid in Romero — the evisceration of the savings clause." Cassidy, 34 F.Supp.3d at 583. This Court agrees
Furthermore, the basic tenets of statutory construction show that the Ryan court clearly ignored the saving to suitors clause when examining § 1441. That statute clearly states that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants...." 28 U.S.C.A. § 1441(a). When read in light of the saving to suitors clause, a plain meaning interpretation of § 1441 undermines the Ryan court's reasoning. The first clause of subsection (a) of § 1441 is prefaced with the statement "[e]xcept as otherwise expressly provided by Act of Congress." When considering this language, the saving to suitors clause, which establishes concurrent jurisdiction over maritime cases, is an Act of Congress in which Congress has expressly provided an exception to an otherwise removable action under § 1441.
Finally, despite Volvo Penta's arguments to the contrary, the legislative history of the 2011 amendment to § 1441 does not support such a jurisdictional change in maritime law.
In light of this legislative record, Romero, and the plain meaning statutory interpretation of § 1441, the Court must deviate from Ryan. Reinforcing this position is the fact that, as correctly pointed out by Plaintiff during oral argument, the weight of the relevant authority has slowly but gradually come to oppose Ryan. See Harrold v. Liberty Ins. Underwriters, Nos. 13-762, 13-831, 2014 WL 5801673, at *3 (M.D.La. Nov. 7, 2014) ("The Court believes that the correct view is also the majority view and that general maritime claims are not removable, despite the changes to 28 U.S.C. § 1441." (emphasis added)); see e.g., Perise v. Eni Petroleum,
In a last ditch effort to establish federal jurisdiction, Volvo Penta attempted to argue at the hearing that an alleged valid independent basis for federal jurisdiction existed under the Federal Boat and Safety Act of 1971. Although not mentioned in its Notice of Removal, Volvo Penta asserts that Plaintiff's Amended Complaint implicated the Federal Boat and Safety Act of 1971. For support, Volvo Penta cited Jackson v. Miss. Farm Bureau Mut. Ins. Co., 947 F.Supp. 252, 255 (S.D.Miss.1996), to establish that "plaintiffs may not avoid federal jurisdiction simply by failing to denominate as federal what is in substance a federal claim, i.e., by artful pleading." See also Discover Bank v. Vaden, 489 F.3d 594 (4th Cir.2007) ("[W]e are required to look beyond the plaintiffs' artful attempts to characterize their claims to avoid federal jurisdiction." (quoting Phipps v. FDIC, 417 F.3d 1006, 1011 (8th Cir.2005))).
However, the Federal Boat and Safety Act of 1971 does not apply to the present case. The Supreme Court has already held that the Federal Boat and Safety Act of 1971 did not preempt common law claims. Sprietsma v. Mercury Marine, a Div. of Brunswick Corp., 537 U.S. 51, 64, 123 S.Ct. 518, 527, 154 L.Ed.2d 466 (2002). Furthermore, the Court finds that Plaintiff's Amended Complaint does not implicate the Federal Boat and Safety Act of 1971. Plaintiff's Amended Complaint specifically brings "maritime and state law causes of action" under the jurisdiction of the saving to suitors clause and the laws of Virginia. Am. Compl. ¶¶ 1-2. The present action clearly centers around the potential negligence of Harris and the potentially defective design of the transmission
In light of the above analysis, Plaintiff was entitled under the saving to suitors clause to pick a forum for her maritime action and chose to bring her suit in the Circuit Court for the City of Norfolk, Virginia. As there is no valid independent basis for federal jurisdiction, the Court has no choice but to respect Plaintiff's right to choose a forum under the savings to suitor clause.
Accordingly, the Court
For the foregoing reasons, the Court hereby
The Clerk is
Notice of Removal, ¶¶ 7-9, ECF No. 1.
In addition, Volvo Penta also seeks to add the highlighted sentence below to paragraph 7 of its Notice:
Volvo Penta's Mot. for Leave, Ex. 1 ¶¶ 5, 9, ECF No. 28.
Ryan, 945 F.Supp.2d at 774-75 (quoting 28 U.S.C.A. § 1441(a) & (b) (2006)).
Ryan, 945 F.Supp.2d at 774 (quoting 28 U.S.C.A. § 1441(a) & (b) (2012)).