JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA
This Court sua sponte ordered Defendant Kirby Inland Marine, LP to show cause within fourteen days as to why this Court should not remand this action in light of Harrold v. Liberty Insurance Underwriters, Inc., CIV.A. 13-762, 2014 WL 5801673 (M.D.La.2014). (Doc. 4). Subsequently, Defendant filed its Memorandum in Opposition to Sua Sponte Motion to Remand. (Doc. 16).
For the reasons set forth below, the action Langlois, et al v. Kirby Inland Marine, LP, 3:15-cv-00608-JWD-SCR is hereby remanded to the 18th Judicial District Court for the Parish of Iberville, Louisiana.
Lynn and Rosemary Langlois ("Plaintiffs") alleged in their state court Petition that M/V Dixie Volunteer, a vessel owned and operated by Kirby Inland Marine, LP ("Defendant" or "Kirby"), was traveling southbound in the Intracoastal Waterway in the vicinity of Plaintiffs' house boat and flat boat. (Doc. 1-1, p. 1 ¶ 5). Plaintiffs alleged that at the same time, the M/V Governor Mike Huckabee, a vessel owned by Blessey Marine Services, Inc. was traveling northbound in the vicinity of Plaintiffs' houseboat and flat boat. (Doc. 1-1, p. 1-2 ¶ 6). Plaintiffs allege that Kirby's vessel was traveling too close to the middle of the Intracoastal Waterway and left the Blessey vessel with insufficient space to either change course or safely pass Plaintiffs' house boat and flat boat. (Doc. 1-1, p. 2 ¶¶ 7, 9). Plaintiffs assert that the Blessey vessel collided with their house boat and flat boat causing catastrophic structural damage to their house boat and motor, as well as the loss of considerable personal property. (Doc. 1-1, p. 2 ¶ 11). Additionally, Plaintiffs claim the collision caused considerable damage to the flat boat and motor. (Doc. 1-1, p. 2 ¶ 12.).
On September 10, 2015, Defendant filed a Notice of Removal with this Court to remove the state court suit brought by Plaintiffs. (Doc. 1). Defendant asserts in its Notice of Removal that "[t]his cause is specifically removable to this Honorable Court pursuant to law, particularly the provision of 28 U.S.C. § 1333." (Doc. 1, p. 2 ¶ VI). On September 15, 2015, the Court sua sponte ordered Defendant to show cause within fourteen days as to why this Court should not remand this action in light of Harrold. (Doc. 4). Plaintiffs were given seven days thereafter to respond.
The crux of Defendant's argument against remand is the apparent disagreement within this Court as to whether the 2011 amendments to 28 U.S.C. § 1441 allow for removal of general maritime claims. (Doc. 16, pp. 2-6). Defendant contends that this Court's previous ruling in Harrold is distinguishable because that case concerned Jones Act claims. (Doc. 16, p. 4). Defendant argues that because the case at bar does not concern Jones Act claims, this Court's ruling in Provost v. Offshore Service Vessels, LLC, CIV.A. 14-89-SDD-SCR, 2014 WL 2515412 (M.D.La. June 4, 2014), decided prior to Harrold, should control because Provost did not concern Jones Act claims. (Doc. 16, p. 4). Further, Defendant asserts that this judge's "overarching" consideration in Harrold concerning general maritime claims "arguably stands in contrast to the purpose of [its] Memorandum," but claims "that portion of the opinion is dicta, anomalous to the Provost decision, and not controlling ... in the instant case." (Doc. 16, p. 4).
Next, Defendant argues that another case in this Court, Bartel v. Alcoa Steamship Company, 64 F.Supp.3d 843 (M.D.La. 2014), decided one month subsequent to Harrold, "tacitly approved the Provost holding." (Doc. 16, p. 4). Defendant claims that Bartel distinguished itself from Provost because Bartel concerned claims under the Jones Act. (Doc. 16, p. 4). Defendant argues that Bartel's rationale implies that if Provost concerned a Jones Act claim it would not have been removable, and "as a logical extension of that holding," Bartel "stands for the proposition that because the Provost plaintiff did not seek a remedy under the Jones Act, removal of the plaintiff's claims under the general maritime law in Provost was warranted." (Doc. 15, pp. 4-5) (emphasis omitted).
Additionally, Defendant asserts that "[t]rial by jury was not requested by the Plaintiffs and no remedy has been requested which cannot be pursued in a federal forum, so the savings to suitors clause is not implicated." (Doc. 16, p. 5). Finally, Defendant contends that "Plaintiffs did not assert a claim under the Jones Act, so the holdings of Harrold and Bartel are distinguishable." (Doc. 16, p. 6).
"The federal removal statute ... is subject to strict construction because a defendant's use of that statute deprives a state court of a case properly before it and thereby implicates important federalism concerns." Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.1997). "[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir.2000).
Defendant's argument that general maritime claims can be removed to federal court places two decisions of this Court, Harrold and Provost, at odds with each other. In Provost, this Court agreed with the decision of Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex. May 13, 2013), that the 2011 "amendment to § 1441 allows removal of general maritime claims." Provost, 2014 WL 2515412, at *3. Conversely, in Harrold, the Court disagreed with Ryan and found 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." Harrold, 2014 WL 5801673, at *3. Thus, the Court begins its discussion with § 1441.
Prior to the 2011 amendment, 28 U.S.C. § 1441 provided, in pertinent part:
28 U.S.C. § 1441 (2011).
Under this previous version, "federal law was well-settled that maritime tort actions commenced in the state courts were non-removable in the absence of an independent jurisdictional basis by operation of the `saving to suitors clause' and 28 U.S.C. § 1441(b)." Mitev v. Resort Sports Ltd., 133 F.Supp.3d 1365, 2015 WL 5693678, at *3 (S.D.Fla. Sept. 23, 2015); see also Boudreaux v. Global Offshore Resources, LLC, CIV.A. 14-2507, 2015 WL 419002, at *2 (W.D.La. Jan. 30, 2015) ("Before the amendment, the general rule in the Fifth Circuit was that maritime claims were not removable absent a basis of jurisdiction outside of admiralty.") (citing Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir.1996) (maritime claim is not removable under the first sentence of § 1441(b) by falling within the admiralty jurisdiction of the federal courts, but is removable when original jurisdiction is based on something other than admiralty); In re Dutile, 935 F.2d 61, 63 (5th Cir.1991) (admiralty and maritime claims may be removed to federal court only by non-forum defendants and only where there is complete diversity of citizenship)).
The "saving to suitors" clause is contained in 28 U.S.C. § 1333, which provides, in pertinent part, that "[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."
This Court has recently explained the "saving to suitors" clause as thus:
Bourgeois v. Weber Marine, LLC, 80 F.Supp.3d 721, 724 (M.D.La.2015).
In a recent case decided under this previous version of § 1441, the Fifth Circuit recognized that:
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir.2013).
However, 28 U.S.C. § 1441 was amended pursuant to the Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, § 1441, 125 Stat. 758, 759 (2011) ("JCVA"), and now provides:
28 U.S.C. § 1441.
As recently recognized by the Fifth Circuit, "[t]here is disagreement among district courts in this circuit ... regarding whether general maritime claims are removable, even absent an independent basis for jurisdiction, in light of Congress's December 2011 amendment to 28 U.S.C. § 1441(b)." Riverside Const. Co., Inc. v. Entergy Mississippi, Inc., 15-60252, 626 Fed.Appx. 443, 447, 2015 WL 5451433, at *3 (5th Cir. Sept. 17, 2015) (unpublished). The Fifth Circuit acknowledged that they have "not yet spoken directly on this issue." Id. (citing by analogy Barker, 713 F.3d at 223 (5th Cir.2013) (describing the 2011 amendment to 28 U.S.C. § 1441(b) as a "recent clarification" and noting that "cases invoking admiralty jurisdiction under 28 U.S.C. § 1333 may require complete diversity prior to removal" (emphasis added)). In declining to decide the issue,
As this Court has previously discussed, Ryan was "based on [a] detailed statutory analysis" and "concluded that changes to the second sentence of 28 U.S.C. § 1441(b)... removed the statutory basis for the non-removability of admiralty claims in the absence of another basis for jurisdiction as stated by the Fifth Circuit." Perise v. Eni Petroleum, U.S. L.L.C., CIV.A. 14-99-SDD-RLB, 2014 WL 4929239, at *5 (M.D.La. Oct. 1, 2014) (citing Ryan, 945 at 775-77).
Some decisions, including several from this Court, followed the Ryan decision. See, e.g., Exxon Mobil Corp. v. Starr Indem. & Liab. Co., CIV.A. H-14-1147, 2014 WL 2739309, at *2 (S.D.Tex. June 17, 2014), remanded on other grounds on reconsideration, CIV.A. H-14-1147, 2014 WL 4167807 (S.D.Tex. Aug. 20, 2014); Provost v. Offshore Service Vessels, LLC, CIV.A. 14-89-SDD-SCR, 2014 WL 2515412, at *3 (M.D.La. June 4, 2014); Garza v. Phillips 66 Company, CIV.A. 13-742-SDD, 2014 WL 1330547, at *4 (M.D.La. April 1, 2014); Carrigan v. M/V AMC Ambassador, CIV.A. H-13-03208, 2014 WL 358353, at *2 (S.D.Tex. Jan. 31, 2014); Bridges v. Phillips 66 Co., CIV.A. 13-477-JJB, 2013 WL 6092803, at *5 (M.D.La. Nov. 19, 2013); Wells v. Abe's Boat Rentals Inc., 2013 WL 3110322, at *3 (S.D. Tex. June 18, 2013); but see Perise v. Eni Petroleum, U.S. L.L.C., CIV.A. 14-99-SDD-RLB, 2014 WL 4929239, at *5 (M.D.La. Oct. 1, 2014) (decided on other grounds, but noting that the district judge had not considered the argument that the "saving to suitors" clause bars removal of general maritime actions, in the absence of an independent ground for the court's original jurisdiction, where the plaintiff requested a jury trial in state court).
However, there is a "growing chorus of district courts that have concluded that the JVCA did not upset the long-established rule that general maritime law claims, saved to suitors, are not removable to federal court, absent some basis for original federal jurisdiction other than admiralty." Serigny v. Chevron U.S.A., Inc., CIV.A. 14-0598, 2014 WL 6982213, at *4 (W.D.La. Dec. 9, 2014). Indeed, the "chorus of district courts" continues to grow and add new voices. See, e.g., Mitev v. Resort Sports Ltd., 133 F.Supp.3d 1365, 2015 WL 5693678, at *3-4 (S.D.Fla. Sept. 23, 2015); Sanders v. Cambrian Consultants (CC) Am., Inc., 132 F.Supp.3d 853, 857-58, 2015 WL 5554639, at *4-5 (S.D.Tex. Sept. 21, 2015); Nassau County Bridge Authority v. Olsen, 130 F.Supp.3d 753, 763, 2015 WL 5474354, at *10-11 (E.D.N.Y. Sept. 19, 2015); Jimenez v. U.S. Envtl. Services, LLC, 3:14-CV-0246, 2015 WL 4692850, at *3-4 (S.D.Tex. Aug. 6, 2015); Ritchy v. Kirby Corp., CIV.A. 3:14-CV-0272, 2015 WL 4657548, at *4 (S.D.Tex. Aug. 5, 2015); Parish v. Exxon Mobile Corp., CIV.A. 13-6717, 2015 WL 4097111, at *16-20 (E.D.La. July 7, 2015); Parish v. BEPCO, L.P., CIV.A. 13-6704, 2015 WL 4097062, at *15-18 (E.D.La. July 7, 2015); Defelice Land Co., LLC v. Conocophillips Co., CIV.A. 15-614, 2015 WL 3773034, at *5 (E.D.La. June 17, 2015); Jefferson Parish v. Eq. Petroleum Corp., CIV.A. 13-6714,
Gregoire v. Enter. Marine Services, LLC, 38 F.Supp.3d 749, 759-60 (E.D.La. Aug. 6, 2014).
Judge Duval further explained:
Id. at 760 (citations omitted) (summarizing cases and commentary).
Importantly, Judge Duval's opinion recently persuaded Judge Miller to alter course and join the majority view. Judge Miller reconsidered his Ryan decision in Sanders v. Cambrian Consultants (CC) Am., Inc., 132 F.Supp.3d 853, 2015 WL 5554639 (S.D.Tex.2015). In that case, a Jones Act claim was fraudulently pleaded, in other words removal was not prohibited by the Jones Act, and, as such, removal turned on "whether the new removal statute permits removal of general maritime claims." Id. at 857, at *4.
Judge Miller first explained that "Ryan was properly decided on the facts and arguments presented in that case," and "given the dramatic change to admiralty law ... disagreement ... was not unexpected." Id. Judge Miller stated that "[d]isagreement alone does not cause the court to waiver in its confidence in its decision in the Ryan case." Id. However, Judge Miller further stated that "the court is charged with ensuring justice is done, and it is thus willing to reconsider previous decisions when new arguments or facts merit taking a second look." Id.
Judge Miller then reconsidered Ryan and explained:
Id. at 858, at *4.
After considering Gregorie, Judge Miller held that "pursuant to the reasoning set forth in Gregoire, [the Court] does not have jurisdiction over the claim Sanders filed in state court pursuant to the Savings to Suitors Clause." Id. at 858, at *5.
In the words of Judge Chappell, Judge Miller will find that he is "in good company"
Turning back to the case at bar, Defendant argues that this Court's previous holding in Provost, which agreed with Ryan, controls rather than Harrold. First, the Court notes that when Provost was decided, there were relatively few cases on this issue. Further, "[f]rom May 2013 to June 2014, decisions went both ways on the issue with district courts grappling with whether to follow the Ryan court's plain reading approach or to follow hundreds of years of precedent finding such claims to be non-removable under the `savings to suitors' clause." Jessica Link Martyn, Alistair Christian Deans, Mark DiCicco, Sarah Yantakosol et. al., Recent Developments in Admiralty and Maritime Law, 50 Tort Tr. & Ins. Prac. L.J. 155, 158 (2015). Since Provost was decided, the Middle District has changed its position and sided with the majority view "that general maritime claims are not removable, despite the changes to 28 U.S.C. § 1441." Harrold, 2014 WL 5801673, at *3. Additionally, "virtually all of the more recent [district court] decisions" have sided with the majority. See Sturley, supra, 46 J. Mar. L. & Com. 105, 119 (collecting cases); see also collected cases, supra. Thus, the Court rejects Defendant's argument that Provost controls here.
Next, Defendant argues that this judge's "overarching" consideration in Harrold concerning general maritime claims "is dicta, anomalous to the Provost decision, and not controlling ... in the instant case." (Doc. 16, p. 4). The Court finds this argument is without merit. It is true that the Court in Harrold began its discussion of general maritime claims by stating "even if this case had been brought solely as a general maritime law claim, it was not properly removed." Harrold, 2014 WL 5801673, at *2. However, the Court then explained that the defendant in that case "argue[d] that the 2011 amendments to 28 U.S.C. § 1441 ... changed the law with respect to removal of general maritime law claims." Id. at *3.
Further, Defendant's attempt to shroud Harrold's consideration of general maritime law claims in dicta fails to recognize that Harrold was decided on reconsideration. As this Court explained, "[the] Court initially agreed that the general maritime law claim was properly removed but severed the Jones Act claim and remanded it to state court." Id. at *1 (emphasis added). This Court's analysis of whether general maritime law claims were removable under the 2011 amendment to § 1441 was necessary to determine whether to remand the general maritime law claims or sever them as it had done previously.
Thus, the Court rejects Defendant's argument that its Harrold holding concerning general maritime law claims was dicta.
Next, Defendant argues that this Court in Bartel v. Alcoa Steamship Company, 64 F.Supp.3d 843 (M.D.La.2014), decided one month subsequent to Harrold, "tacitly approved the Provost holding." (Doc. 16, p. 4). Defendant argues that Bartel's rationale implies that if Provost concerned a Jones Act claim it would not have been removable, and "as a logical extension of that holding," Bartel "stands for the proposition that because the Provost plaintiff did not seek a remedy under the Jones Act, removal of the plaintiff's claims under the general maritime law in Provost was warranted." (Doc. 15, pp. 4-5) (emphasis omitted).
The Court rejects this argument. Bartel, pertinent to this case, concerned "a non-removable
The Defendants in Bartel argued that their general maritime law claims were removable pursuant to the 2011 amendment to § 1441. Further, the Plaintiff's "primary arguments focus on the non-removability of his Jones Act claims under the current version of § 1441(c)." Id. at 851. Thus, this Court found that the "decisions in this district allowing for the removal of general maritime claims are distinguishable." Id. Additionally, as Defendant acknowledges, this Court in Bartel distinguished itself from the first motion to remand in Harrold. Bartel did not address the reconsideration in Harrold.
Thus, because this Court in Bartel readily distinguished itself from Provost, the Court rejects Defendant's broad reading that Bartel tacitly accepted the holding in Provost.
Next, Defendant argues that because "Plaintiffs did not assert a claim under the Jones Act ... the holdings of Harrold and Bartel are distinguishable." (Doc. 16, p. 5). Defendant argues at length in its memorandum that Plaintiffs' claims were only brought as a general maritime law claims, and, as such, this Court should not remand this suit. (Doc. 16, p. 2-5). The Court is not persuaded.
The Court acknowledges that Harrold concerned Jones Act and general maritime law claims unlike the case at bar. However, as explained above, the defendant in Harrold made similar arguments on reconsideration that the 2011 amendment to § 1441 "changed the law with respect to removal of general maritime law claims." Harrold, at *3. As explained above, this Court rejected this argument and found 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." Id.
Moreover, of the cases that have remanded general maritime law claims since the 2011 amendment to § 1441 and the Ryan decision, many of those cases are analogous to the case at bar in that there was no claim under the Jones Act. See, e.g., Nassau County Bridge Authority v. Olsen, 130 F.Supp.3d 753, 763, 2015 WL 5474354, at *10-11 (E.D.N.Y.2015); Jimenez v. U.S. Envtl. Services, LLC, 3:14-CV-0246, 2015 WL 4692850, at *3-4 (S.D.Tex. Aug. 6, 2015); Ritchy v. Kirby Corp., CIV.A. 3:14-CV-0272, 2015 WL 4657548, at *4 (S.D.Tex. Aug. 5, 2015); Carnes v. Friede & Goldman, L.L.C., 103 F.Supp.3d 821, 825-26, 2015 WL 2185317, at *4 (E.D.Tex.2015); Clear Lake Marine Ctr., Inc. v. Leidolf, CIV.A. H-14-3567, 2015 WL 1876338, at *2 (S.D.Tex. Apr. 22, 2015); A.E.A. ex rel Angelopoulos v. Volvo Penta of the Americas, LLC, 77 F.Supp.3d 481 (E.D.Va. Jan. 9, 2015); Harbor Docking & Towing, LLC v. Rolls Royce Marine North America, Inc., 2:14-CV-2487, 2014 WL 6608354, at *3 (W.D.La. Nov. 19, 2014); Rutherford v. Breathwite Marine Contractors, Ltd., 59 F.Supp.3d 809, 813 (S.D.Tex.2014); Bisso Marine Co., Inc. v. Techcrane Int'l, LLC, 2014 A.M.C. 2695, 2014 WL 4489618, at *4 (E.D.La. Sep. 10, 2014); Riley v. Llog Exploration Co. LLC, 2014 A.M.C. 2504, 2014 WL 4345002, at *3 (E.D.La. Aug. 28, 2014); Bartman v. Burrece,
Accordingly, the Court rejects Defendant's argument that if there is no Jones Act claim, general maritime law claims are removable because, absent an independent basis for jurisdiction, general maritime claims are not removable. See Harrold, at *3.
Here, Defendant has not argued that any independent basis for jurisdiction exists, such as diversity. Rather, in its Notice of Removal, Defendant states that "[t]his cause is specifically removable to this Honorable Court pursuant to law, particularly the provision of 28 U.S.C. § 1333." (Doc. 1, p. 2 ¶ VI.). However, "Section 1333 does not give federal courts subject matter jurisdiction over maritime claims brought at law." Bisso Marine Co., Inc. v. Techcrane Int'l, LLC, 2014 A.M.C. 2695, 2014 WL 4489618, at *5 (citing Coronel v. AK Victory, 1 F.Supp.3d 1175, 1184 (W.D.Wash. Feb. 28, 2014) ("[I]nherent in both the majority and the dissent's analysis [in Romero] is the conception that 28 U.S.C. § 1333 did not convey subject matter jurisdiction to federal courts hearing maritime claims brought at law.")). While Defendant has not established that any independent basis for jurisdiction exists, Defendant makes one final contention in its undertaking to prevent remand.
Finally, Defendant argues that "[t]rial by jury was not requested by the Plaintiffs and no remedy has been requested which cannot be pursued in a federal forum, so the savings to suitors clause is not implicated." (Doc. 16, p. 5). Again, the Court is not persuaded.
As the Supreme Court has explained, "the saving to suitors clause protects all remedies, of which trial by jury is an obvious, but not exclusive, example." Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 439, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) (emphasis added). Indeed, as stated above, also "saved" to the suitor is "the right of the litigants to take advantage of the procedural differences between a federal court `in admiralty' and that of the non-maritime court." See Force and Norris; Schoenbaum, supra.
Further, as explained by Judge Feldman:
Bisso, 2014 WL 4489618, at *4.
Here, Plaintiffs elected to file suit at law in state court. Thus, contrary to Defendant's argument, the saving to suitors clause is implicated because Plaintiffs filed suit at law in state court. See Chauvin v. Laredo Offshore Services, Inc., CIV. A. 97-3840, 1998 WL 88070, at *1 (E.D.La. Feb. 23, 1998) ("By filing suit in state court, the plaintiffs have clearly expressed their intention to pursue any maritime law claims in state court pursuant to the saving to suitors clause ... an identifying statement in the complaint that it is brought pursuant to the saving to suitors clause is not a requirement to invoke the clause."); Shelton v. Tidewater, Inc., CIV. A. 90-1845, 1990 WL 103658, at *3 (E.D.La. July 16, 1990) ("The clear and simple fact that plaintiffs filed suit in state court documents plaintiffs' intention to proceed in state court as recognized by the savings to suitors clause."); cf. Luera v. M/V Alberta, 635 F.3d 181, 195 n. 8 (5th Cir.2011) (explaining that the saving to suitors clause is triggered when a plaintiff exercises the clause in federal court by bringing her in personam claims in diversity rather than in admiralty).
In sum, Defendant has failed to establish an independent basis for federal jurisdiction. Absent an independent basis for jurisdiction, general maritime claims are not removable, despite the changes to 28 U.S.C. § 1441. The suit must therefore be remanded.
Accordingly,
