ORDER AND REASONS

JAY C. ZAINEY, District Judge.

Before the Court is a Motion to Remand (Rec. Doc. 5) filed by the plaintiffs Paul Perrier, Sr., et al. Defendants Weber Marine, LLC and Cooper/T. Smith Stevedoring Co. oppose the motion. The motion, noticed for submission on April 23, 2014, is before the Court on the briefs without oral argument. For the reasons that follow the motion is GRANTED.

I. Background

Plaintiffs filed this lawsuit in state court to recover for injuries that Paul Perrier, Sr. allegedly sustained when he fell from a crew boat owned by Weber Marine. (Rec. Doc. 1-1, Petition ¶ 6). That incident allegedly occurred on November 11, 2012. (Id.). In the same petition, Perrier joined a Jones Act claim against his employer, Cooper/T. Smith, for an unrelated incident that occurred on January 3, 2013. (Id. ¶¶ 6 & 9). Plaintiffs sought a trial by jury for all claims. (Id. ¶ 13).

The law has been well-settled in that maritime claims are not removable to federal court unless subject matter can be established on some basis other than admiralty jurisdiction. Weber Marine nonetheless removed the action to this Court on March 5, 2014, contending that the law has changed and that claims based on general maritime law are now removable to federal court. (Rec. Doc. 1 ¶ 4).

Plaintiffs now move to remand the case to state court arguing that under the law in this circuit none of the claims that they pleaded are removable.

II. Discussion

The Court begins its analysis with Perrier's Jones Act claim against Cooper/T. Smith. A properly pleaded Jones Act claim is not removable unless the defendant can successfully establish fraudulent joinder. See Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995) (citing Johnson v. ODECO Oil & Gas Co., 864 F.2d 40, 42 (5th Cir. 1989); 46 App. U.S.C. § 688; 28 U.S.C. § 1445(a)). Fraudulent joinder in any context imposes a heavy burden on the defendant claiming it. Smallwood v. Ill. Cent. R.R., 352 F.3d 220, 222 (5th Cir. 2003) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 701 (5th Cir. 1999)). While the court may employ a "summary judgment-like procedure" to dispose of the assertion that the Jones Act claim was fraudulently pleaded, the court should refrain from pre-trying the case in order to determine removal jurisdiction. Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999) (citing Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995)). The court must resolve all disputed facts and ambiguities in current substantive law in the plaintiff's favor, and the court can deny remand only if it determines that the plaintiff has no reasonable possibility of establishing a Jones Act claim on the merits. Id. at 345-46.

Although Cooper complains of the paucity of Perrier's factual allegations pertaining to the Jones Act claim, Cooper does not claim or cite any authority for the proposition that Perrier's state court pleading was deficient under Louisiana's fact pleading rules. See La. Code of Civ. Pro. art. 891. Nothing on the face of the pleading forecloses seaman status, and none of the facts alleged contradict the claim of seaman status. Cooper argues, however, that Perrier simply must be covered by the LHWCA. Cooper's arguments are unsupported by any affidavits or declarations of any kind. Thus, all Cooper has provided is argument by counsel, which does not constitute evidence, and which taken alone is not sufficient to pierce the pleadings.1 Cooper has not met its heavy burden of demonstrating that Perrier has no reasonable possibility of establishing a Jones Act claim on the merits. The Jones Act claim is therefore not removable.

The Court will assume without deciding that joining the completely unrelated Jones Act and general maritime law claims together in the same petition would constitute an improper cumulation of actions under state law, and therefore would not prejudice whatever removal rights that Weber Marine might have.

Plaintiffs' claims against Weber Marine are brought under general maritime law. The petition presents no claims arising under federal law and the parties are not of diverse citizenship. The law in this circuit has been unequivocally clear since at least 1991 when the Fifth Circuit issued its Dutile decision, that general maritime law claims brought in a state court are not removable under either 28 U.S.C. § 1331 (original federal question jurisdiction) or 28 U.S.C. § 13332 (original admiralty and maritime jurisdiction). In re Dutile, 935 F.2d 61 (5th Cir. 1991). As explained in Dutile, admiralty cases filed in state court are only removable if the case includes a jurisdictional basis independent of the Court's admiralty and maritime jurisdiction, i.e., diversity of citizenship. In 2011 Congress amended parts of 28 U.S.C. § 1441, and in particular changed the verbiage of the forum defendant prohibition that precludes removal when the case includes a forum or in-state defendant.3 Weber Marine takes the position that the 2011 amendment to the forum defendant rule in 28 U.S.C. § 1441 effected a change in the law such that admiralty cases are now removable to federal court in their own right even in the absence of an independent jurisdictional basis.

Prior to the amendments of 2011, the forum defendant rule read as follows:

28 U.S.C.A. § 1441(b) (West 2006) (emphasis added). Because admiralty claims do not arise under "the Constitution, treaties or laws of the United States," see Romero v. Int'l Term. Oper. Co., 358 U.S. 354 (1959), the reference to "any other such action" applied to admiralty and diversity cases.

The 2011 amended version of the forum defendant rule now specifically refers to diversity cases:

28 U.S.C.A. § 1441(b)(2) (West 2006 & Supp. 2013) (emphasis added).

Facially speaking, it is difficult to discern how the foregoing change in verbiage—which again pertains only to the forum defendant rule—altered the long-held understanding that admiralty claims brought at law in state court pursuant to the saving to suitors clause are not removable in the absence of an independent jurisdictional basis.4 Of course, Weber Marine's argument is not grounded directly on the text of 28 U.S.C. § 1441. Rather, Weber Marine contends that the reasoning in In re Dutile rested on the "[a]ny other such action" language from the pre-2011 forum defendant rule, and now that the language has been removed, Dutile has lost its underpinnings.

Weber Marine is of course correct. The holding in Dutile did rest on the pre-2011 forum defendant rule. The fallacy of Weber Marine's argument lies in the fact that Dutile is not the source of the diversity requirement for removing maritime cases, at least not those validly brought at law pursuant to the saving to suitors clause. The diversity requirement for savings clause cases long pre-dated Dutile as recognized by the panel in its discussion of the Supreme Court's Romero decision. Although Dutile does discuss the diversity requirement, the admiralty claim in Dutile was held to be non-removable because the removing defendant was a citizen of the forum state. 935 F.2d at 62-63. The result in Dutile was particularly important because Dutile involved an in rem claim against a vessel, which is a claim within the federal courts' exclusive admiralty jurisdiction. Because an in rem claim against a vessel cannot be brought at law, the saving to suitors clause of 28 U.S.C. § 1333(1) was not implicated in that case.5 The specific holding of Dutile then, and the one that did in fact hinge on the old language of § 1441(b), is that a case that falls within the exclusive admiralty jurisdiction of a federal court cannot be removed to federal court if the forum defendant rule would be violated. The evisceration of that holding, which again is the specific holding that did rest on the pre-2011 language of § 1441(b), does nothing to alter the pre-Dutile law regarding the diversity requirement for the removal of maritime cases that are validly brought in state court pursuant to the saving to suitors clause.6

In sum, this Court does not agree that the 2011 amendments to § 1441 eliminated the long-held requirement of diversity jurisdiction in saving cases filed in state court. This Court is certain that if Congress had intended to open the federal courts to an entirely new class of cases that had historically been excluded "we can hardly suppose that it would have failed to use some appropriate language to express that intention." Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 107 (1941). Until Congress passes legislation that alters the way the Fifth Circuit and the Supreme Court have previously interpreted the saving to suitors clause, or until those courts reverse direction, this Court remains persuaded that maritime claims brought in state court are not removable in the absence of diversity jurisdiction.7

Accordingly, and for the foregoing reasons;

IT IS ORDERED that the Motion to Remand (Rec. Doc. 5) filed by the plaintiffs Paul Perrier, Sr., et al. is GRANTED. This matter is REMANDED to the state court from which it was removed pursuant to 28 U.S.C. § 1447(c).