MELINDA HARMON, District Judge.
The above referenced lawsuit seeks damages under general maritime law for severe hand injuries
"`Federal courts are courts of limited jurisdiction'"; they possess "`only that power authorized by Constitution and by statute.'" Gunn v. Minton, ___ U.S. ___, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013), quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under 28 U.S.C. § 1441(a) any state court action over which federal courts would have original jurisdiction may be removed from state to federal court. Gasch v. Hartford Accident & Indemnity Co., 491 F.3d 278, 282 (5th Cir.2007); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008) ("A district court has removal jurisdiction in any case where it has original jurisdiction."). The original jurisdiction for purposes of removal may be federal question jurisdiction under 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.") or diversity jurisdiction under 28 U.S.C. § 1332(a) (where there is complete diversity of citizenship between the sides and the amount in controversy exceeds
The right to remove depends upon the plaintiff's pleading at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537-38, 59 S.Ct. 347, 83 L.Ed. 334 (1939); Cavallini v. State Farm Mutual Auto Ins., 44 F.3d 256, 264 (5th Cir.1995); Ford v. Property & Cas. Ins. Co. of Hartford, No. Civ.A. H-09-1731, 2009 WL 4825222, *2 (S.D.Tex. Dec. 9, 2009).
The removing party bears the burden of showing that subject matter jurisdiction exists and that removal was proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Because removal deprives the state court of an action properly before it, removal raises significant federalism concerns and the statute is therefore to be strictly construed, with any doubt about the propriety of removal resolved in favor of remand. Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008).
Title 28 U.S.C. § 1333(1) provides, "The 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." "Federal admiralty jurisdiction exists giving a court jurisdiction over a dispute if the tort occurs on navigable waters
Traditionally a plaintiff had three possible options for bringing an admiralty or maritime claim: he could bring his suit in admiralty jurisdiction in federal court under the grant of original and exclusive subject matter jurisdiction under § 1333, typically with no right to trial by jury; he could bring a diversity of citizenship claim in a federal district court, with the right to a jury if one party demands it, and he could limit that jurisdiction with a binding forum-selection clause; or he could assert his claim at law (at common law), grounded in tort or contract, under the saving to suitors clause in a state court.
Also traditionally the saving to suitors clause referenced in § 1333(1) has been interpreted to allow a plaintiff to file admiralty and maritime actions with claims "at law," otherwise exclusively within the jurisdiction of the federal courts in state court. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1542 (5th Cir.1991), citing 1 S. Friedell, Benedict On Admiralty, § 122 (6th ed.1991). If a plaintiff elects to bring admiralty and maritime claims in state court, the claims cannot be removed in the absence of diversity of citizenship unless there was another basis for jurisdiction besides admiralty. In re Eckstein Marine Service, LLC, 672 F.3d 310, 315-16 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 96, 183 L.Ed.2d 735 (2012); see also Morris v. TE Marine Corp., 344 F.3d 439, 444 (5th Cir.2003) (General maritime law claims saved to suitors, by themselves, are not removable from state court.), citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 377-79, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (superseded by statute on other grounds, 45 U.S.C. § 59)("saving
"A Jones Act
Generally Jones Act cases are not removable. 28 U.S.C. § 1445(a). Preston v. Grant Advertising, Inc., 375 F.2d 439 (5th Cir.1967).
Unseaworthiness is a claim under general maritime law based on the vessel owner's duty to provide a seaworthy vessel, including appurtenances, gear and equipment, reasonably fit for its intended purpose of performing offshore operations.
Under the Jones Act and general maritime law, a seaman injured while working in service of his ship, regardless of any negligence on his own part, is entitled to recover from his employer or the ship owner maintenance and cure benefits from the date of his injury up until the time of maximum medical cure.
A seaman may recover punitive damages if his employer willfully and wantonly disregards its maintenance and cure obligations. Townsend, 557 U.S. at 424, 129 S.Ct. 2561. Where a seaman shows that the denial of his request of maintenance and cure is arbitrary and capricious, the employer can be liable for the seaman's attorney's fees. Manderson, 666 F.3d at 382, (citing Morales v. Garijak, Inc., 829 F.2d 1355, 1358 (5th Cir.1987), abrogated on other grounds, Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir.1995)).
The Federal Courts Jurisdiction and Venue Clarification Act of 2011 was enacted on December 7, 2011, effective as of January 6, 2012 and was amended 28 U.S.C. § 1441. The previous version of
While federal courts have original jurisdiction over maritime and admiralty claims, such claims do not present a federal question because they do not arise under the Constitution or laws of the United States. Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 367-68, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). See also In re Dutile, 935 F.2d 61, 62-63 (5th Cir. 1991) (citing Romero) (Based on the words in § 1441(a), "Except as otherwise expressly provided by Act of Congress," and in § 1441(b), "founded on a claim or right arising under the Constitution, treaties or laws of the United States," the Fifth Circuit held that (1) maritime claims filed in state court are not removable absent diversity jurisdiction because they do not arise under the Constitution, treaties or laws of the United States, i.e., no federal question jurisdiction; (2) the old version of § 1441 was an "Act of Congress" that barred removal of such claims, by themselves; and (3) maritime claims are governed by the phrase "any other such action" [one lacking federal question jurisdiction] in § 1441(b), are not removable unless none of the defendants is a citizen of the state in which the action is brought.). "In other words, the second sentence in subsection (b) establishes the familiar `forum-defendant rule' for cases removed on the basis of diversity jurisdiction while incidentally barring removal of admiralty case." Hamerly v. Tubal-Cain Marine Services, Inc., 62 F.Supp.3d 555, 558, Civ.A. No. 1:14-CV-130, 2014 WL 5149752, at *2 (E.D.Tex. June 12, 2014).
Thus before the enactment of the Federal Courts Jurisdiction and Venue Clarification Act, it was settled law that to remove a case filed in state court and arising under general maritime law to federal court, there had to be an independent basis for jurisdiction, e.g., a federal statute granting jurisdiction to federal courts or diversity jurisdiction (with no defendant from the forum state). See Dutile, 935 F.2d at 63 ("The practical effect" of § 1441(a) and (b) "is to prevent removal of admiralty claims pursuant to § 1441(a) unless there is complete diversity of citizenship (predicated upon out-of-state defendants.)").
In December 2011, § 1441, under a new title, "Removal of Civil Actions," was revised in relevant part to state as follows:
Thus in the new version the "arising under" language in the prior § 1441(a) has been removed and there is no distinction between claims arising under federal law and "[a]ny other such actions" in § 1441(b); rather, the latter provision relates only to removals based on diversity jurisdiction.
The amendment expressly applies only to actions commenced on or after expiration of the 30-day period beginning on the date of enactment (December 7, 2011), i.e., expired on January 6, 2012. Pub.L. 112-63, § 105, 125 Stat. 758 (2011). Moreover it is not retroactive: Congress stated that the amended § 1446 applies to "any action that is removed from a State court to a United States district court and that had been commenced, within the meaning of State law, on or after such effective date [January 6, 2012]." Pub.L. No. 112-63 § 205, 125 Stat. 758, 764-65 (2011). "An action or prosecution commenced in State court and removed to Federal court shall be deemed to commence the date the action or prosecution was commenced, within the meaning of State law, in State court." Id.; see also, e.g., Meeks v. Damillie, Civ. A. No. 2:11CV253-NBB-JMV, 2013 WL 5464639, at *2 (N.D.Miss. Sept. 30, 2013).
There is an ongoing, unresolved dispute among the district courts of the Fifth Circuit about the effect of the "clarification" (the Fifth Circuit's term, used deliberately, in contrast to "amendment") of the removal statute. Barker v. Hercules Offshore, Inc., 713 F.3d 208, 223 (5th Cir.2013) (opining that "the updated version is a clarification, as opposed to an amendment, of the original statute").
A key district court decision by the Honorable Gray H. Miller, Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex.2013), found the changes under the Clarification Act to be substantial and denied a motion to remand based on the new § 1441(b) on the grounds that the court now had original jurisdiction over Ryan's general maritime law claims. Id. at 776. Noting that § 1441(a), limiting removal to claims over which the court had original jurisdiction unless they are barred by an Act of Congress, remained (with both old and new section 1441(a)s referencing "original" jurisdiction), he reasoned that the unambiguous, amended version of § 1441(b) addresses only cases removed
A number of district courts, indeed the majority
Mims lists five reasons why the Court should remand this action: (1) Gulf removed this case one year after the deadline for removal expired; (2) the consents of Defendants Topcor Offshore, LLC ("Topcor"), Deepwater, and Chevron are nullities because each waived its right to consent by actively litigating this case in state court for the past year; (3) admiralty and maritime jurisdiction does not exist when plaintiffs file suits in state court pursuant to the saving to suitors clause because they are common law actions; (4) long established jurisprudence holds that state court cases governed by maritime law are not removable unless an independent basis for federal jurisdiction, such as diversity or federal question, exists; and (5) Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), holds that only a clear amendment to the jurisdictional statutes that expressly renders maritime claims removable would change the black letter legal premise that they are not removable, and so far such an amendment has not been made.
Mims summarizes the procedural history of this action, which is relevant to the removal issue. He initially filed suit against Chevron and Deepwater on August 10, 2011. Trial was set for June 13, 2012, but on May 31, 2012 Chevron supplemented its responses to Mims' interrogatories and named additional responsible parties. # 9, Ex. A to Interrogatory 16. Plaintiff was granted leave to amend and filed his first amended petition adding Defendants Global Offshore, LLC ("Global") and Topcor, and trial was reset for March 10, 2014. Deepwater subsequently supplemented its
Mims states that for cases filed before the amendment of § 1446(b) in the Federal Courts Jurisdiction and Venue Clarification Act of 2011, effective on January 6, 2012, the removal rules in place on September 29, 2011 govern and Fifth Circuit's first-served defendant rule applied.
Because of this waiver, Topcor, Deepwater, and Chevron's consents to remove are nullities, and unanimous consent of all defendants is lacking. Sourcecorp BPS, Inc., Civ.A. No. 3:08-CV-552-L, 2008 WL 4965857, at *3 (N.D.Tex. Nov. 20, 2008) (When a defendant waives his right to removal, but later tries to consent to a co-defendant's removal, "his purported consent is a nullity, and a unanimous consent of Defendants is lacking."). "[I]t [is] impossible for [defendants who failed to timely remove a case] to consent to the Notice of Removal filed by [the subsequently added defendants]." Callaway v. G.S.P., Inc., 793 F.Supp. 133, 134 (S.D.Tex.1992).
Mims further contends that Topcor, Deepwater, and Chevron cannot consent to the removal because they also waived their rights to remove this case by actively litigating this suit in state court. Brown, 792 F.2d at 481 ("Even a defendant who petitions timely may have waived its right to removal by proceeding to defendant
Defendants rely solely on 28 U.S.C. § 1441 for federal jurisdiction, but federal courts do not have "arising under" federal question jurisdiction over admiralty cases; they have exclusive original jurisdiction over them. 28 U.S.C. § 1331(1). Nevertheless the "saving to suitors" clause permits a plaintiff to file a common law case (as opposed to a maritime case) in state court. 28 U.S.C. § 1333(1). In such common law saving-to-suitors cases, the rule of decision is maritime even though maritime jurisdiction is not present. Barker v. Hercules Offshore, Inc., 713 F.3d 208, 223 (5th Cir.2013) ("admiralty jurisdiction is not present in this suit because [the plaintiff] filed in state court, thereby invoking the saving-to-suitors exception to original admiralty jurisdiction"); Thurman v. Harris County, No. 01-07-00235-CV, 2009 WL 1635430, at *3 (Tex.App.-Houston [1st Dist.] June 11, 2009, pet. denied)("As federal and state courts have recognized, maritime law does not affect a state court's subject matter jurisdiction over the action, but instead prescribes the substantive law governing the state court action."). Thus the maritime flavor of a case filed in state court under the saving to suitors clause does not transform the common law case into one that falls within the original (or exclusive) admiralty jurisdiction of federal courts. The Court should remand this case because admiralty jurisdiction was not present when Mims filed a common law case in state court.
The removal was also improper because even if admiralty jurisdiction existed here, the saving to suitors clause, which is an Act of Congress, prohibits removal unless diversity or federal question jurisdiction exists. 28 U.S.C. § 1441(a) ("Except as otherwise provided by an 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" to federal court. Such cases cannot be removed on the sole basis of maritime jurisdiction).
Deepwater and Chevron claim that because neither of them had a valid legal basis to remove this case in November 2011, there was no right of removal or consent to waive at that time. Waiver involves the intentional relinquishing of a known, existing right. Only after Congress passed the Federal Courts Jurisdiction and Venue Clarification Act of 2011,
Deepwater and Chevron argue that Mims' contention that the one-year bar against removal in 28 U.S.C. § 1446(b) applies only to cases filed after January 6, 2012 is incorrect. That language explicitly states that the one-year exception applies only to diversity cases. 28 U.S.C. § 1446(c)("A case may not be removed under subsection (b)(3) on the basis of jurisdiction conferred by section 1332 more than one year after commencement of the action, unless the district court finds that the plaintiff has acted in bad faith in order to prevent a defendant from removing the action.").
More significant, Gulf did not remove based on diversity jurisdiction, but on claims under general maritime law, noting that such claims are removable under the 2011 amendment. The amendment changed previous law by allowing a newly added Defendant to remove a case and permitted earlier served defendants the right to consent to that removal. The new version also distinguishes removal on diversity of citizenship under section 1332 and removal based on federal question jurisdiction under section 1331. Under previous law, a case asserting claims removable under section 1331 and claims that do not arise under federal law could be removed on the basis of diversity jurisdiction, and the federal court had the discretion either to keep all of the case or to remand the case entirely if it found that state law predominated. The amended section 1446(b)(2)(B) gives each defendant the opportunity to remove the case within 30 days after receipt by or service on that defendant and it allows any previously served defendant to consent to a later served defendant's removal even if the earlier-served defendant had not previously removed the case.
Defendants maintain that Mims erroneously claims the amended statute, section 1446(b)(2)(B) and (C), does not apply retroactively to Gulf's removal or to Deepwater and Chevron's consent to that removal. Deepwater and Chevron assert that the general law is that procedural amendments to civil rules apply retroactively unless expressly stated otherwise. Gulf was added to this action after the adoption of the new rules and had the right to remove and to seek consent from Deepwater and Chevron. See McConnell v. Thomson Newspapers, 802 F.Supp. 1484, 1495 (E.D.Tex.1992) ("`Statutory changes that are procedural or remedial in nature apply retroactively.'"), quoting Lussier v. Dugger, 904 F.2d 661, 665 (11th Cir.1990)
Deepwater and Chevron contend that Mims is not a Jones Act "seaman" so it would be improper and impractical to sever the Jones Act claim under 28 U.S.C. § 1441(c)(2), as they discussed in their no evidence motion for summary judgment. Mims did not spend more than 30% of his time working offshore, nor was he assigned to a specific vessel or fleet of vessels. Mims Dep., Ex. B to # 10.
The Court notes that unless it finds that it has jurisdiction here, it cannot make any rulings on these arguments about the merits of Mims' claims.
Topcor contends that it did not waive any right to consent to the removal because that right did not exist until Mims filed his second amended petition on January 14, 2014 and named and served Gulf as a defendant in this suit on February 10, 2014, because at that point Gulf was a later-served defendant under the amended 28 U.S.C. § 1446(b)(2)(C) and properly exercised its right to remove. Furthermore Topcor did not waive any rights by participating in discovery, which was delayed at Mims' request, until Gulf was served. Topcor, as an earlier-served Defendant, exercised its newly created right to consent to that removal when Gulf asked for it. Furthermore, the amended removal statute has no requirement to abstain from discovery in order to retain the right to consent to removal. Even if it did, Topcor did not participate in extensive discovery: it engaged only in initial written discovery, it did not participate in any depositions, it did not designate any expert witnesses, nor did it attend any mediation.
Gulf also contends that the amended removal statute applies to Mims' claim against it. The Federal Courts Jurisdiction and Venue Clarification Act of 2011, § 105, states that it applies to "any action ... commenced on or after [the Act's] effective date of January 6, 2012. Section 105 further states that actions "commence" on the date that the "action or prosecution was commenced, within the meaning of state law, in State Court." "Under Texas law the addition of a new party commences a new action against that party." Felder v. Countrywide Home
Mims claims his motion to remand should be granted for four reasons: (1) Jones Act cases filed in state court cannot be removed to federal court; (2) the pre-2011 version of § 1446 applies to Mims' motion to remand since this case was commenced on August 11, 2011 and because under Texas law a new civil action is not commenced by the adding of new defendants to an existing suit; (3) removal of a maritime case filed in state court under the saving to suitors clause is not removable unless an independent basis for federal jurisdiction, e.g., diversity or federal question, exists; and (4) even if the new version of the removal statute applied and even if the saving to suitors clause cases could be removed, the rule of unanimity makes the removal here improper because the alleged consent of multiple defendants is a nullity since they filed (and lost) four summary judgment motions in state court, where it was litigated for more than two years.
Mims concedes that there are disputed legal issues, i.e., which version of the removal statute applies and whether maritime claims can be removed in the absence of federal question or diversity jurisdiction, which the Fifth Circuit has not resolved and on which the district courts are split, but the Court does not have to resolve them since Jones Act cases are not removable to federal court. Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir.1993) ("It is axiomatic that Jones Act suits may not be removed from state court because [46 U.S.C. § 30104] incorporates the general provisions of the Federal Employers' Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal."). The sole exception is if the defendant proves that the Jones Act allegations were fraudulently pleaded. Id. Deepwater and Chevron have not shown there was fraudulent pleading by Mims.
Objecting to Deepwater and Chevron's argument that Mims is not a Jones Act seaman, Mims points out that the time a worker spends aboard an identifiable group of vessels under common ownership
Mims claims that Deepwater and Chevron made the same arguments that Mims has no Jones Act claims in their state court summary judgments that they make here in response to his motion to remand, and that the state court judge rejected them. It is established law that "`[a] defendant may lose or waive the right to removal by taking some substantial defensive action in state court before petitioning for removal.... And it is true that if a party has good ground to remove a case to federal court, he cannot experiment on his case in state court before removing to federal court.'" Garcia v. SSP Partners, No. Civ.A. C-06-385, 2006 WL 2850066, at *5 (S.D.Tex. Oct. 3, 2006), quoting Gore v. Stenson, 616 F.Supp. 895, 897 (S.D.Tex.1984).
In addition, Mims insists that removal was improper under the prior version of § 1446 because the amendment became effective five months after Mims filed this suit. Conceding that he added a new defendant after the effective date, Mims states that the Court must make an Erie guess whether under Texas law an action recommences when a new defendant is added to a previously filed case. Mims relies on Judge Costa's opinion in Noland v. Energy Resources Technology, Inc., Civ.A. No. 3:12-CV-00330, 2013 WL 177446, at *3-4 (S.D.Tex. Jan. 16, 2013), analyzing cases on the issue and the Texas Rules of Civil Procedure and holding that "an action commences under Texas law when the suit is first filed and adding another party at a later date does not commence another action." In accord, Boze Memorial, Inc. v. Travelers Lloyds Ins. Co., No. 3:12-cv-4363-M, 2013 WL 775362, at *3 n. 2 (N.D.Tex. Feb. 28, 2013) ("Texas Rule of Civil Procedure 22 provides that a civil suit commences once the petition is filed in the office of the clerk."); STF No. 1001, LP. v. Wright, Civ.A. No. H-12-2136, 2012 WL 5384178, at *2 n. 17 (S.D.Tex. Nov. 2, 2012) (Lake, J.)(prior version of removal statute applied even though the plaintiff filed suit before the effective date but added a new defendant after the commencement date). Mims focuses on various definitions of "commence" (i.e., "to begin, start," "initiate formally by performing the first act", "filing of the first pleading in a proceeding") and "action" ("a civil or criminal judicial proceeding"). He concludes that he commenced this action when he filed his Original Petition in August 2011, and that his later addition of Gulf did not commence a new action because if it did, he would have received a
Mims alternatively argues that even if the current version of the removal statute applied, the removal was improper because the new version still does not permit removal of maritime cases and because a defendant still waives its right to consent to the removal by a co-defendant when it files a motion for summary judgment in state court. For almost two centuries it has been black letter law that admiralty cases filed in state court pursuant to the saving to suitors clause cannot be removed to federal court without an independent basis for federal subject matter jurisdiction. Maritime law may provide the rule of decision and govern the saving to suitors cases, but maritime jurisdiction does not exist in such cases. Barker v. Hercules Offshore, Inc., 713 F.3d 208, 223 (5th Cir.2013).
Even under the 2011 amendments, a defendant still cannot consent to a co-defendant's removal where the defendant has filed a summary judgment motion in state court, as Deepwater and Chevron did four times between them. See, e.g., Air Starter Components, Inc. v. Molina, 442 F.Supp.2d 374, 379 (S.D.Tex.2006) (Rosenthal, J.)(A "waiver must `be clear and indicate a specific, positive intent to proceed in state court.... Because a motion for summary judgment seeks resolution of a case on its merits, a defendant who seeks summary judgment in state court affirmatively invokes the state court's jurisdiction and demonstrates a clear intent to have the state court proceed on the merits of the case" and thus "waive[s his] right to remove.").
Gulf points out that in stating that the Court must make an Erie guess as to when an action "commences" under Texas law, Mims ignores the Texas Supreme Court's decision in Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113, 121-22 (Tex. 2004) ("Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Moreover when the amended petition sets up a distinct and different claim from that asserted in the previous petitions, the new claim does not relate back." [citations omitted]). A number of courts have disagreed with Noland, 2013 WL 177446. See, e.g., Benavides, 2013 WL 2458625, at *4 ("this Court disagrees with the Noland court"), citing Werner v. KPMG LLP, 415 F.Supp.2d 688 (S.D.Tex.2006) (Rosenthal, J.); Felder v. Countrywide Home Loans, No. H-13-0292, 2013 WL 6805843, at *2 (S.D.Tex. Dec. 20, 2013) ("Under Texas law the addition of anew party commences a new action against the party.").
Mims has not and cannot allege that Gulf was his Jones Act employer; he asserts only general maritime claims of unseaworthiness and negligence against Gulf and they are removable under the revised removal statute. Gulf maintains that the Court determines that Mims' Jones Act claim is not removable, it should sever and remand that claim while maintaining jurisdiction over the general maritime law claims against Gulf. See, e.g., Wells v. Abe's Boat, 2013 WL 3110322, at *4.
Insisting the revised remand statute does not apply here since the case was
Agreeing that district court cases within the Fifth Circuit have disagreed on whether, after the 2011 amendment of the jurisdictional statute, 28 U.S.C. § 1333 provides a basis for removal if there is no federal question or diversity jurisdiction, Mims cites five cases that support his position that it does not: (1) Figueroa v. Marine Insp. Servs., LLC, 28 F.Supp.3d 677 (S.D.Tex.2014); (2) Alexander v. Seago Consulting, LLC, 4:14-cv-01292 (S.D.Tex. June 23, 2014); (3) Pierce v. Parker Towing, 25 F.Supp.3d 1372 (S.D.Ala.2014) (removal improper based solely on district court's admiralty and maritime jurisdiction); (4) Gabriles v. Chevron USA, Inc., No. 2:14-00669, 2014 WL 2567101 (W.D.La. June 5, 2014) (finding "plaintiff's general maritime claims are not removable under the reasoning of Freeman v. Phillips 66"); and (5) Perrier v. Shell Oil Co., No. 14-490, 2014 WL 2155258 (E.D.La. May 22, 2014) ("[M]aritime claims brought in state court are not removable in the absence of diversity jurisdiction.").
Deepwater and Chevron complain that Mims failed to disclose the following contrary authority, which denied remand on the same grounds claimed by Mims: (1) Exxon Mobil Corp. v. Starr Indem. & Liability Co., No. H-14-1147, 2014 WL 2739309 (S.D.Tex. June 17, 2014) (denying motion to remand)(relying on Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D.Tex.2013)),
As a threshold matter, the Court points out that there is no diversity jurisdiction here. Mims' Second Amended Petition (# 1-1 at p. 2) states, and Defendants have not objected, that he is a Texas resident, as are Deepwater ("a Texas company") and Topcor ("a company that has its principal place of business in Houston.").
The Court is of the opinion that the Federal Courts Jurisdiction and Venue Clarification Act of 2011 is not retroactive since it explicitly states that it applies "to any action that is removed from State court to a United States district court and has been commenced, within the meaning
It is also clear that Defendants took significant substantive steps while this case was pending in state court, including the four summary judgment motions, adjudicated on the merits by the state court judge's denials of the motions, including one regarding Mims' status as a Jones Act seaman. As noted, Jones Act claims cannot be successfully removed. At minimum there is conflict over whether Defendants waived their right to removal by this litigation in state court.
Moreover, as is apparent from this Court's summary, supra, the parties here and numerous court cases are in conflict about the key issues, i.e., if the 2011 amendment/revision of § 1441 by the Federal Courts Jurisdiction and Venue Clarification Act of 2011 does apply here, what effect it would have on the removal of the general maritime claims in this case.
This Court is mindful of the long established legal principle that "[b]ecause removal deprives the state court of an action properly before it, removal raises significant federalism concerns and the statute is therefore to be strictly construed, with any doubt about the propriety of removal resolved in favor of remand." Gutierrez v. Flores, 543 F.3d at 251. The unresolved conflicts among courts in this Circuit clearly raise such doubt as to whether removal in this action was proper. Therefore this Court, recognizing the traditional, long established rule that maritime claims brought by a plaintiff in state court under the saving to suitors clause are not removable absent diversity jurisdiction and the Fifth Circuit's opinion in Barker that the statute was a clarification rather than an amendment, combined with the fact that many district courts have found that the disagreement over removal of general maritime claims under the 2011 amendment/revision is sufficient to warrant remand,
Subsequently this test has been applied to "all bodies of water, not just rivers, natural as well as artificial." Sanders, 861 F.2d at 1377 (In short, then, navigable waters of the United States are those waters capable, in fact, of navigation in interstate travel or commerce, and distinctions between natural and manmade bodies of water are immaterial.").
The now controlling 2011 amendment to 28 U.S.C. § 1446(b), the Federal Courts Jurisdiction and Venue Clarification Act of 2011, PL 112-63, December 7, 2011, 125 Stat. 758, adopting the last-served defendant rule, provides that each defendant has "30 days after receipt by or service on that defendant of the initial pleading or summons ... to file the notice of removal." 28 U.S.C. § 1446(b)(2)(B). Title 28 U.S.C. § 1446(b)(2)(C) states, "If defendants are served at different times, and a later-served defendant files a notice of removal, any earlier-served defendant may consent to the removal even though that earlier served defendant did not previously initiate or consent to removal." The earlier served defendant must consent to removal within the thirty day period of the later-served defendant's deadline to remove the action. Therefore as long as the earlier-served defendant files its consent within the removing defendant's thirty day removal period, the consent is timely. See, e.g., Gibbs v. Ocwen Loan Servicing, LLC, No. 3:14-CV-1153-M-BN, 2014 WL 2767206, at *2 (N.D.Tex. June 18, 2014); Felder v. Countrywide Home Loans, No. Civ.A. H-13-0208, 2013 WL 6805843, at *2 (S.D.Tex. Dec. 20, 2013).
