Pierce et al v. Parker Towing Company, Inc.

Filing 27

ORDER ADOPTING 23 REPORT AND RECOMMENDATIONS with an amendment as further set out. Granting 8 MOTION to Remand by Geneva J. Clements, George W. Clements, Charles Cooley, Marisa Cooley, Deborah L. Dearmon, Joe McCoy, Frankie Pierce. This case is REMANDED to the Circuit Court of Choctaw County, Alabama, from whence it came. Signed by Judge Kristi K. DuBose on 6/9/2014. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANKIE PIERCE, et al.,
Plaintiffs,
v.
PARKER TOWING COMPANY, INC.,
et al.,
Defendants.

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Civil Action No. 14-00073-KD-N

ORDER
This case was filed in the Circuit Court of Choctaw County, Alabama, on January
17, 2014, and removed to this Court by Defendant Parker Towing Company, Inc.
(“Parker”), on February 19, 2014. (See generally Doc. 1.) On March 14, 2014, Plaintiffs
timely moved to remand. See (Doc. 8); 28 U.S.C. § 1447(c). United States Magistrate
Judge Katherine Nelson has entered a report and recommendation pursuant to 28
U.S.C. § 636(b)(1)(B) and Local Rule 72.2 (Doc. 23), which would remand the case.
Parker has filed an objection (Doc. 24) and Plaintiffs have filed a response (Doc. 26).
The Court adopts the recommendation of Judge Nelson with amendment as follows:
Parker’s removal presents what appears to be an issue of first impression in this
Circuit—whether the current version of 28 U.S.C. § 1441(b), amended in December
2011, allows removal of in personam maritime claims solely on the basis of this Court’s
original admiralty and maritime jurisdiction, see 28 U.S.C. § 1333. The undersigned
finds that, in this case, it does not.

I.

Applicable Background

Citizens of Alabama and Mississippi, the owners of real property facing on the
Tombigbee River, in Choctaw County, Alabama, filed this lawsuit in state court.
Plaintiffs allege that a crew employed by, and operating a tugboat owned by, Parker—a
corporate citizen of Alabama—“lost control of the tugboat and the barges it was
pushing, and allowed the tugboat and the barges to stray from the designated channel
for navigation[,]” which resulted in “the barges slamm[ing] into the bank of the [river] with
great force and violence, causing severe damage to the real property of each Plaintiff
facing on the Tombigbee River.” (Doc. 1-1, ¶¶ 20-24.) Plaintiffs’ complaint asserts
causes of action for negligence; wantonness; trespass; and private nuisance, and
demands a trial by jury as to all issues.
II.
A.

Analysis

All doubts as to removal militate in favor of remand.

The Court’s analysis begins where it must, with the burden of removing on
defendant shoulders: while “[a]ny civil case filed in state court may be removed by the
defendant to federal court if the case could have been brought originally in federal
court[,]” Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing
28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen v. Office Depot, Inc., 204
F.3d 1069 (11th Cir. 2000),1 “[b]ecause removal jurisdiction raises significant federalism
concerns, federal courts are directed to construe removal statutes strictly . . . . Indeed,
1

Accord City of Vestavia Hills v. General Fid. Ins. Co., 676 F.3d 1310, 1313 n.1
(11th Cir. 2012).

2

all doubts about jurisdiction should be resolved in favor of remand to state court[,]”
University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411.2
At issue here is the Court’s jurisdiction over certain maritime claims, which
jurisdiction is concurrent with “the courts of the States[.]” 28 U.S.C. § 1333. Thus, there
can be no doubt that, in this context, the Court’s “removal jurisdiction raises significant
federalism concerns[.]” Tapscott, 77 F.3d at 1356; see also Coronel v. AK Victory, --- F.
Supp. 2d ----, 2014 WL 820270, at *8 (W.D. Wash. Feb. 28, 2014) (“Emphasizing the
joint role that state and federal governments played in developing and administering
maritime law, the majority [in Romero v. International Terminal Operating Co., 358 U.S.
354 (1959), superseded by statute on other grounds, 45 U.S.C. § 59,] found that
unfettered removal of maritime claims would vitiate the principles of federalism
underlying the saving to suitors clause.” (citing Romero, 358 U.S. at 372-75 (“By making
maritime cases removable to the federal courts it would make considerable inroads into
the traditionally exercised concurrent jurisdiction of the state courts in admiralty
matters—a jurisdiction which it was the unquestioned aim of the saving clause of 1789
to preserve.”))).

2

Cf. D.M.C. Enters. Inc. v. Best McAllister, LLC, Civil Action No. 10-00153-CB-N,
2010 WL 3039477, at *2 (S.D. Ala. Aug. 4, 2010) (“Because it is conferred by statute, the right
of removal is strictly construed to limit federal jurisdiction.” (citing Diaz v. Sheppard, 85 F.3d
1502, 1505 (11th Cir. 1996))); White v. Wells Fargo Home Mortgage, Civil Action No. 1:11–cv–
408–MHT, 2011 WL 3666613, at *3 (M.D. Ala. Aug. 22, 2011) (a federal court is “obligat[ed] to
narrowly construe removal statutes”; this obligation necessarily “requires that uncertainties be
‘resolved in favor of remand’” (quoting Burns v. Windsor Ins. Co., 31 F.3d 1092, 1095 (11th Cir.
1994))).

3

B.

This Court has original, albeit concurrent, jurisdiction over admiralty
claims.

There is no dispute that Plaintiffs’ claims are maritime in nature. As such, this
Court would have, if Plaintiffs chose to file these claims under this Court’s admiralty
jurisdiction, original subject matter jurisdiction. 28 U.S.C. § 1333(1) provides 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.” See also 46 U.S.C. § 30101 (“The
admiralty and maritime jurisdiction of the United States extends to and includes cases of
injury or damage, to person or property, caused by a vessel on navigable waters, even
though the injury or damage is done or consummated on land[, and such a civil action]
may be brought in rem or in personam . . . .”).
The issue now before the Court is whether this case was properly removed under
this Court’s admiralty jurisdiction.3

While the undersigned will discuss Parker’s

argument that removal is proper in light of a relatively recent change to § 1441, proper
framing of the parties’ dispute requires additional discussion of the “saving to suitors”
clause upfront.
The “saving to suitors” clause is “a feature of the congressional grant of original
3

To be absolutely clear, with Alabama plaintiffs facing off against an Alabama
defendant, complete diversity is lacking. See 28 U.S.C. §§ 1332, 1441(b). Federal question
jurisdiction, pursuant to 28 U.S.C. § 1331, is also not at play because, as further discussed
herein, admiralty and maritime claims do not “arise under” the constitution, laws, or treaties of
the United States for purposes of § 1331.

4

admiralty jurisdiction to the federal district courts in 28 U.S.C. § 1333[,]” “preserves a
plaintiff’s right to a common law remedy, not[, necessarily,] to a nonfederal forum.”
Perio v. Titan Maritime, LLC, Civil Action No. H–13–1754, 2013 WL 5563711, at *12
(S.D. Tex. Oct. 8, 2013) (citing The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1867);
Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996)
(quoting Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1066 (5th Cir. Unit A June
1981)4)).

The saving clause—“[c]ontained as it is, in a jurisdictional statute”—“is

jurisdictional in nature” and preserves the historical “concurrent jurisdiction of the state
and federal courts regarding maritime claims where the common law [is] competent to
provide a remedy,” such as with Plaintiffs’ claims, but the clause “afford[s] exclusive
jurisdiction to federal courts where the common law [is] not so competent.” Perio, 2013
WL 5563711, at *12-13.5 See also Madruga v. Superior Court, 346 U.S. 556, 560
(1954) (“Admiralty’s jurisdiction is ‘exclusive’ only as to those maritime causes of action
begun and carried on as proceedings in rem, that is, where a vessel or thing is itself
treated as the offender and made the defendant by name or description in order to
4

All decisions of the former Fifth Circuit issued before October 1, 1981 are binding
precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc). See also Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514,
1522 n.3 (11th Cir. 1993) (“Fifth Circuit decisions rendered by Unit A of that court after
September 30, 1981, are not binding upon this court…” (citing Stein v. Reynolds Sec., Inc., 667
F.2d 33, 34 (11th Cir. 1982)) (emphasis added)).
The Supreme Court’s pronouncement in The Moses Taylor that “[i]t is not a
remedy in the common-law courts which is saved, but a common-law remedy[,]” 71 U.S. (4
Wall.) at 431, has been interpreted to distinguish “between remedies available at common law,
which were preserved under the clause, and remedies only available by statute, which are not.”
Perio, 2013 WL 5563711, at *14.
5

5

enforce a lien.” (citations omitted)).
Therefore, it has been made clear that common-law remedies are, “under the
saving clause, enforceable in the courts of the States and on the common-law side of
the lower federal courts when the diverse citizenship of the parties permitted.” Romero,
358 U.S. at 363.6 It is because of this Court’s ability to entertain maritime suits invoking
common law remedies pursuant to its diversity jurisdiction, that the plaintiffs are not
guaranteed a non-federal forum.
As explained by the Eleventh Circuit, “under the reasoning of Romero, a federal
district court should not accept the removal of a saving clause case solely because of its
general maritime nature: the maritime nature simply does not provide a ground for
federal jurisdiction.” Armstrong v. Ala. Power Co., 667 F.2d 1385, 1388 (11th Cir.
1982) (emphasis added); see also Poirrier, 648 F.2d at 1066 (The saving to suitors
clause does not “limit the right of defendants to remove [suits seeking non-maritime
remedies] to federal court where there exists some basis for federal jurisdiction other
than admiralty.”) In other words, this Court does not have original jurisdiction, based
solely on its §1333 admiralty jurisdiction, over general maritime claims requesting
common law remedies. In sum, the “saving to suitors clause allows a plaintiff to bring
suit as an in personam claim in state court or as a diversity claim in federal court, rather
than suing ‘in admiralty’ in federal court.” Baughan v. Royal Caribbean Cruises, Ltd.
The Romero Court, further, “reaffirmed that, under the first Judiciary Act of 1789,
admiralty jurisdiction was ‘exercised according to the historic precedent in admiralty, by a judge
without a jury.’” Coronel, 2014 WL 820270, at *3 (quoting 358 U.S. at 363).
6

6

944 F. Supp. 2d 1216, 1218 (S.D. Fla. 2013).
As was their right, Plaintiffs “brought this action in state court as a civil in
personam action[,]” and although they “did not denominate it as such, this case
‘commenced in state court as a case arising under the “saving to suitors clause” . . . .’”
Leonard v. Kern, 651 F. Supp. 263, 264 (S.D. Fla. 1986) (quoting Poirrier, 648 F.2d at
1064)) (footnote omitted). It was Plaintiffs’ prerogative where to file, and thus how to
pursue, their in personam maritime claims (e.g., whether to elect trial by jury).7 See
Vincent v. Regions Bank, No. 8:08-cv-1756-T-23EAJ, 2008 WL 5235114, at *1 (M.D.
Fla. Dec. 15, 2008) (Under the ‘saving to suitors’ clause, a plaintiff ‘with a common law
claim arising from a transaction over which a federal court would have admiralty
jurisdiction may either avail [himself] of federal admiralty jurisdiction or sue at law in
state court.’ [And t]he plaintiff’s election to sue at common law in state court[, some
courts have held,] ‘forever prevents the federal district courts from obtaining admiralty
jurisdiction.’” (quoting J. Aron & Co. v. Chown, 894 F. Supp. 697, 699 (S.D.N.Y. 1995))
(emphasis added)).

Indisputably, as noted above, “a broad range of undefined common-law
remedies[,]” including, but limited to, trial by jury, are what the clause saves. Perio, 2013 WL
5563711, at *13 (citing Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (rejecting
“arguments to limit and enumerate the saved remedies under the saving to suitors clause . . . in
view of the consistent recognition by Congress and this Court that both state and federal courts
may be proper forums for adjudicating [maritime] claims”)).
7

7

C.

Under settled case law prior to the most recent amendment of §
1441, in personam maritime claims, like Plaintiffs’, were clearly not
properly removed absent a separate basis for federal jurisdiction.

Prior to the 2012 amendment to 28 U.S.C. §1441(b),8 it was settled law even in
the Fifth Circuit that removal of an in personam maritime action—such as Plaintiffs’—
required a “separate basis for jurisdiction.” Freeman v. Phillips 66 Co., Civil Action Nos.
14–311, 14–624, 2014 WL 1379786, at *3 (E.D. La. Apr. 8, 2014); compare id. (“It is
undisputed that prior to 2012, general maritime claims were not removable on the basis
of admiralty jurisdiction and could be removed only if a separate basis for jurisdiction
existed, such as diversity.” (citing In re Dutile, 935 F.2d 61, 62-63 (5th Cir. 1991)))9, with

29 U.S.C. §1441 was amended as part of the Federal Courts Jurisdiction and
Venue Clarification Act of 2011, § 105, Pub. L. No. 112-63, 125 Stat. 758 (the “FCJVCA”).
Although signed into law in December 2011, the changes took effect on January 6, 2012.
8

9

Accord Leonard, 651 F. Supp. at 264 (at least under the prior version of § 1441,
“[i]n order to remove a case brought in state court under the [saving clause] some jurisdictional
basis, other than admiralty or general federal question jurisdiction under 28 U.S.C. § 1331, [was
required]” (citing Romero, 358 U.S. 354; Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d
252, 255 (5th Cir. 1961)) (footnote omitted)); Armstrong, 667 F.2d at 1388 (“[U]nder the
reasoning of Romero, a federal district court should not accept the removal of a saving clause
case solely because of its general maritime nature: the maritime nature simply does not provide
a ground for federal jurisdiction.”); Vincent, 2008 WL 5235114, at *1 (“[D]espite the broad
language in § 1441(a), a defendant may not remove a case based upon general maritime or
admiralty jurisdiction alone. To allow removal of [a saving to suitors clause case] would . . .
defeat the purpose of the clause.” (citations and internal quotation marks omitted; alteration in
original)); Barry v. Shell Oil Co., Civil Action No. 13–6133, 2014 WL 775662, at *3 (E.D. La. Feb.
25, 2014) (prior to the 2011 amendments to § 1441, “[t]he Fifth Circuit has stated that maritime
cases which are brought in state court ‘are exempt from removal by the “saving-to-suitors”
clause of the jurisdictional statute governing admiralty claims, and therefore may only be
removed when original jurisdiction is based on another jurisdictional grant, such as diversity of
citizenship’” (quoting Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir. 2013) (citing
Romero, 358 U.S. at 377-79; In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991)))). See also Poirrier,
648 F.2d at 1065-66 (“This circuit has already recognized the removability, on diversity grounds,
of maritime actions brought in state courts under the aegis of the “saving to suitors” clause[,
which] . . . does no more than preserve the right of maritime suitors to pursue nonmaritime

8

Butler v. RLB Contracting, Inc., Civil Action No. 3:14–CV–112, 2014 WL 1653078, at *1
(S.D. Tex. Apr. 24, 2014) (“Prior to . . . January 2012, the proposition that maritime
claims were not removable was universally accepted. That certainty is gone; in its place
is a hotly contested issue in maritime law.” (citations omitted)).
D.

Parker’s argument as to why Plaintiffs’ claims now fall under this
Court’s removal jurisdiction turns on Fifth Circuit cases interpreting
the former and amended versions of § 1441(b).

Parker’s argument for the removability of this case is based primarily on Ryan v.
Hercules Offshore, Inc., 945 F. Supp. 2d 772 (S.D. Tex. 2013), and other recent
decisions by district courts in the Fifth Circuit following “the course set by Ryan.”10

remedies. It does not guarantee them a nonfederal forum, or limit the right of defendants to
remove such actions to federal court where there exists some basis for federal jurisdiction
other than admiralty.” (citations omitted and emphasis added)).
Notably, one decision the former Fifth Circuit cited in support of its pronouncement in
Poirrier is J. J. Ryan & Sons, Inc. v. Continental Ins. Co., 369 F. Supp. 692 (D.S.C. 1974), in
which “Plaintiffs chose to bring the suit as a civil action in the state court under the [saving
clause,] Defendant effectively [sought] to negate plaintiffs’ choice through the device of
removal[,]” and the court rebuffed Defendant’s attempt to “emasculate” the saving clause:
The court finds that removal is improper and that the case should be remanded
to the state court. To allow removal, pursuant to 28 U.S.C. § 1441(b), of a civil
action in the state court to the admiralty side of the federal district court would
effectively emasculate the ‘saving to suitors’ clause of 28 U.S.C. § 1333(1) which
was enacted specifically to give the choice of forum to a plaintiff who has a claim
that could be processed either in a state civil action or in a federal admiralty
action.
369 F. Supp. at 695.
10

See generally Garza v. Phillips 66 Co., Civil Action No. 13–742–SDD–SCR, 2014
WL 1330547 (M.D. La. Apr. 1, 2014); Harrold v. Liberty Ins. Underwriters, Inc., Civil Action No.
13–762–JJB–SCR, 2014 WL 688984 (M.D. La. Feb. 20, 2014); Carrigan v. M/V AMC
AMBASSADOR, No. 13–3208, 2014 WL 358353 (S.D. Tex. Jan. 31, 2014); Bridges v. Phillips
66 Co., No. 13–477, 2013 WL 6092803 (M.D. La. Nov. 19, 2013); Wells v. Abe’s Boat Rentals
Inc., No. 13–1112, 2013 WL 3110322 (S.D. Tex. June 18, 2013).

9

Freeman, 2014 WL 1379786, at *4.
As to general maritime claims, Ryan’s analysis turns primarily on amended
§1441(b)’s apparent abrogation of In re Dutile, 935 F.2d 61 (5th Cir. 1991), a case no
court in this Circuit has ever cited, at least in a reported decision. In In re Dutile, the in
rem claims at issue did
constitute a “civil action . . . of which the district courts . . . have original
jurisdiction” by virtue of § 1333(1). Section 1441(a), [substantively
unchanged by the FCJVCA,11] however, is prefaced by the phrase,
“Except as expressly provided by Act of Congress. . . .” One of these
express provisions [was] found in § 1441(b). The first sentence of that
subsection [then] provide[d] that removal of actions “founded on a claim or
right arising under the Constitution, treaties or laws of the United States”
may proceed without regard to the citizenship of the parties. Emphatically,
claims in admiralty, whether designated in rem or in personam, do not fall
within this category.
935 F.2d at 63-64 (citing Romero, 358 U.S. at 378 (It is “clear that the words of [the
‘arising under’] statute do not extend, and could not reasonably be interpreted to extend,
to cases of admiralty and maritime jurisdiction.”)). The panel in Dutile thus concluded
“admiralty and general maritime claims fall within the category of ‘[a]ny other [civil]
action’ governed by the second sentence of § 1441(b). As such, they are ‘removable
only if none of the parties in interest properly joined and served as defendants is a
citizen of the State in which the action is brought.’” Id. at 64.
This conclusion, that admiralty claims are only removable if “there is complete

See Perio, 2013 WL 5563711, at *11 (After amendment “in December of 2011[,
t]he operative language of subsection (a) as it pertains to the removability of claims within the
original jurisdiction of the district courts is unchanged.” (citation omitted)).
11

10

diversity of citizenship (predicated upon out-of-state defendants)[,]” as the panel noted,
was “not new to [Fifth Circuit] jurisprudence[,]” and the cases the court in Dutile cited are
indeed also binding on this Court. Id. (citing Poirrier, 648 F.2d at 1065 (in turn citing
Gaitor v. Peninsular & Occidental S.S. Co., 287 F.2d 252, 255 (5th Cir. 1961)
(discussing Romero))). Poirrier and Gaitor, on which Poirrier relied, however, merely
recognized Romero’s holding that “saving to suitors” cases are removable only if
diversity exists.12 See Gaitor, 287 F.2d at 255 (Romero “made clear that except in
diversity cases, maritime litigation brought in state courts could not be removed to the
federal courts.”). This binding precedent, thus, has nothing to do with the so-called
“Dutile rule”—that pursuant to the prior version of § 1441(b), admiralty and general
maritime claims fell into the category of “any other” civil action and, thus, were not
removable by a forum defendant.
Some district courts in the Fifth Circuit have now abandoned the Dutile rule in

12

Dutile itself affirmed this, moreover, in its conclusion. After acknowledging that
its “construction of § 1441 creates somewhat of an anomaly—certain in rem admiralty claims, of
which the federal district courts have exclusive jurisdiction, may not be removed from state
court[,]” the court recognized the “anomaly” was the created
from the most basic of federal jurisdictional rules: as regards the inferior federal
courts, “two things are necessary to create jurisdiction, whether original or
appellate. The Constitution must have given to the court the capacity to take it,
and an act of Congress must have supplied it.” As we construe the plain
language of § 1441(b), read in conjunction with Romero, Congress simply has
not supplied the district courts with removal jurisdiction of admiralty claims absent
diversity. We have no power to create such jurisdiction where Congress has not
acted.
935 F.2d at 63 (quoting The Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868)) (initial
emphasis provided by Dutile and underlined emphasis added).

11

light of the most recent amendment to the removal statute. As explained by one recent
Fifth Circuit district court opinion,
[t]he Fifth Circuit’s holding in Dutile was grounded in the text of 28 U.S.C.
§ 1441(b), as it read prior to the [FCJVCA]:
(b) Any civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of the
parties. Any other such action shall be removable only if none of
the parties in interest properly joined and served as defendants is
a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b) (2006). Because maritime claims are not “founded on
a claim or right arising under the Constitution, treaties or laws of the
United States,” the Dutile court reasoned that such claims were subject to
the in-state-defendant bar to removal found in section 1441(b), as it was
worded at the time. Thus, admiralty and maritime claims could be
removed to federal court “only by non-forum defendants and only where
there [wa]s complete diversity of citizenship.” Dutile, 935 F.2d at 63[.13]
After the FCJVCA amendments, section 1441(b) now reads:
(b)(2) A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be removed
if any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.
28 U.S.C. § 1441(b)(2) (2013).
The FCJVCA amendments removed the language from section 1441(b)
upon which the Dutile opinion hinged. On this basis, the removing
defendants argue that the amendment renders the Dutile rule obsolete.
Freeman, 2014 WL 1379786, at *4 (original footnotes omitted and emphasis added).
13

Contra Coronel, 2014 WL 820270, at *3 (“Although, read strictly, the second
sentence of the previous version of § 1441(b) imposes only the forum defendant rule, the Fifth
Circuit extrapolated from this sentence that maritime claims could not be removed absent
diversity jurisdiction under 28 U.S.C. § 1332.” Nevertheless, “[o]ther courts[, including the Ninth,
but not the Eleventh, Circuit,] followed suit.” (citing Dutile, 935 F.2d at 63; Morris v. Princess
Cruises, Inc., 236 F.3d 1061, 1069 (9th Cir. 2001))).

12

Parker urges the same result in this case.
E.

Despite the amendment to § 1441(b), without a separate basis for
federal jurisdiction, in personam maritime law claims remain
excluded from this Court’s removal jurisdiction.
The amendment to § 1441(b)

disposed of certain language from the former version . . . that the Fifth
Circuit had historically relied on to limit the removal of maritime claims.
The current version of the statute no longer makes a distinction between
claims “arising under the Constitution, treaties or laws of the United
States” and “other such action[s].” Instead, § 1441(b) now explicitly
pertains only to removals based on diversity jurisdiction.
Barry v. Shell Oil Co., Civil Action No. 13–6133, 2014 WL 775662, at *2 (E.D. La. Feb.
25, 2014); see also Ryan, 945 F. Supp. 2d at 777 (“[T]he old version of section 1441(b)
was relied upon as the ‘Act of Congress’ that precluded federal courts from exercising
removal jurisdiction unless the requirements of section 1441(b) were met; and[, since]
admiralty cases do not arise under the Constitution, treaties or laws of the United
States, [ ] admiralty cases were considered ‘any other such actions’ under the prior
version of section 1441(b) and were thus removable only if none of the parties in
interest properly joined and served as defendants was a citizen of the State in which the
action was brought.”).
The 2012 change to the removal statute has erased language the Fifth Circuit
interpreted as the basis for denying removal of in personam maritime claims. However,
§ 1441 was not the basis for denying removal of in personam claims in the Eleventh
Circuit, or for that matter in Poirrier. The exception of § 1441 removal (i.e., “except as
otherwise expressly provided by Act of Congress”) never came into play, and was never

13

discussed in Poirrier or subsequent Eleventh Circuit cases. This is because it was
made clear that there is no jurisdiction in this court, based solely on §1333, of in
personam claims seeking common law remedies. Thus, where the common law is
competent to provide a remedy, as with in personam maritime claims filed in state court,
a plaintiff may elect to pursue his common law remedies and the case cannot be
removed based on §1333.14
Here, for example, Plaintiffs’ state court complaint asserts four common law
claims and requests the common law remedy of trial by jury. Had Plaintiffs filed the
same claims in this Court, pursuant to the only basis available to them, admiralty
jurisdiction pursuant to § 1333, the remedy of trial by jury would not be available. See,
e.g., Wilson v. Suzuki of Orange Park, Inc., No. 305CV469J32TEM, 2005 WL 3372839,
at *4 (M.D. Fla. Dec. 12, 2005) (“[I]f heard on the Court’s admiralty side, a trial by jury
would not be available.” (citing In re Graham, 747 F.2d 1383, 1387 (11th Cir. 1984)));

14

There are advantages to pursuing a claim in admiralty as opposed to at law.
“[B]ecause the Supreme Court has consistently distinguished between the concepts of rights
and remedies[,]” “the same substantive maritime law applies regardless of whether a maritime
cause of action is brought in admiralty or at law” Coronel, 2014 WL 820270, at *5 (citations
omitted). But “[a]dmiralty law ‘includes a host of special rights, duties, rules, and procedures,’
some of which are unique to suits in admiralty and some of which are applicable to suits at law.”
Id. (quoting Lewis, 531 U.S. at 446). “When a claim falls within federal subject matter
jurisdiction both on admiralty jurisdiction and on some other ground, a party must designate the
claim as an admiralty claim[, pursuant to Rule 9(h),] in order for the different procedural rules to
apply.” Id. at *6 (citation omitted); see also Southeastern Marine, LLC v. Motor Yacht OCEAN
CLUB, No. 3:09-cv-693-J-25TEM, 2010 WL 2540701, at *1 (M.D. Fla. June 21, 2010) (“By
designating a claim under Rule 9(h), the plaintiff is afforded certain procedural rights such as
vessel-arrest, garnishment, attachment, bond, and other equitable remedies, but forfeits the
right for either party to demand a jury trial without separate statutory authority.” (citing St. Paul
Fire & Marine Ins. Co. v. Lago Canyon, Inc., 561 F.3d 1181 (11th Cir. 2009); Miles v. M/V
Hansa Caledonia, 245 F. Supp. 2d 1261 (S.D. Ga. 2002))).

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Southeastern Marine, LLC v. Motor Yacht OCEAN CLUB, No. 3:09-cv-693-J-25TEM,
2010 WL 2540701, at *1 (M.D. Fla. June 21, 2010) (“[A]s a general matter, there is no
protected right to a jury trial in an admiralty dispute.” (citing Beiswenger Enters. Corp. v.
Carletta, 86 F.3d 1032, 1037 (11th Cir. 1996) (“[A]s in all admiralty cases, there is no
right to a jury trial.”); FED. R. CIV. P. 38(e) (“These rules do not create a right to a jury
trial on issues in a claim that is an admiralty or maritime claim under Rule 9(h).”)));
Barry, 2014 WL 775662, at *3 (“As Plaintiff’s claims here are solely based on general
maritime law and there is a lack of diversity among the parties, there is no way for
Plaintiff to have a trial by jury in this Court.”); Coronel, 2014 WL 820270, at *6 (“The
Seventh Amendment does not extend to cases falling within the admiralty jurisdiction;
therefore, in the absence of a statute providing otherwise, a district court whose subject
matter jurisdiction is premised solely upon admiralty decides the case without a jury.”
(citing Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 17 (1963); FED. R. CIV. P. 38(e); Ghotra
by Ghotra v. Bandila Shipping, Inc., 113 F.3d 1050, 1054–55 (9th Cir. 1997))).15

Parker argues that removal does “not foreclose” Plaintiffs’ “right to a jury trial.”
(See Doc. 12 at 5-6.) But the sole case Parker cites in support, Fitzgerald, a “hybrid-case,” in
which Jones Act claims were also present, does not support a right to trial by jury where the
only claims before the Court are in personam maritime claims commenced in state court as
arising under the saving clause and now before the federal court in admiralty. As explained by
Judge Edenfield, “Fitzgerald’s holding is [ ] properly limited to in personam admiralty claims
combined with a Jones Act claim or a similar, jury-right granting, statutory claim.” Miles v. M/V
Hansa Caledonia, 245 F. Supp. 2d 1261, 1267 (S.D. Ga. 2002) (citing 374 U.S. at 21 (expressly
noting that “Congress in the Jones Act has declared that the negligence part of the claim shall
be tried to a jury. . . .”) (emphasis supplied by Miles))); see also id. (“Jones Act claims[, also at
issue in Fitzgerald, but not here,] pack specific remedies/protection that many other common
and State-law claims do not. This underscores the exceptional treatment [that] Fitzgerald
granted, and further distinguishes it from “plain vanilla” common law claims such as that raised
here.” (citation omitted)).
15

15

However, where a separate basis for federal jurisdiction—such as diversity—
exists, a plaintiff who chooses to file his in personam maritime claims in state court does
not lose his common law remedy of trial by jury upon removal. See, e.g., Manrique v.
Fagan, No. 08-60501-CIV, 2009 WL 700999, at *2 (S.D. Fla. Mar. 16, 2009) (noting that
removal pursuant to § 1332 (or § 1331) “will place the maritime case in the federal
court’s ‘law side,’ thus preserving a plaintiff’s right to demand jury trials (secured by first
filing the action in state court)” (citing Lewis, 531 U.S. 438)); Barry, 2014 WL 775662, at
*3 (“When actions are removed pursuant to federal question jurisdiction and/or federal
diversity jurisdiction, the maritime plaintiff retains the right to demand a jury trial in
federal district court.”).16 And remand may not be appropriate.
In this case, remand is the only result that preserves Plaintiffs’ common law
remedy of trial by jury under existing law. And just as one district court in the Fifth
Circuit, post amendment to § 1441(b), has recently held, a timely motion to remand a
case commenced in state court pursuant to the saving clause should be granted to
preserve the nonmaritime remedy of a jury trial. See Barry, 2014 WL 775662, at *3

16

Even the court in Ryan at least implicitly recognized this aspect of savings clause

removal:
Traditionally, general maritime claims saved to suitors have not been removable.
This was not, however, because the saving to suitors clause prohibited removal,
as it “does no more than preserve the right of maritime suitors to pursue
nonmaritime remedies. It does not guarantee them a nonfederal forum, or limit
the right of defendants to remove such actions to federal court where there
exists some basis for federal jurisdiction other than admiralty.”
945 F. Supp. 2d at 774 (quoting Tennessee Gas Pipeline, 87 F.3d at 153 (citing Poirrier, 648
F.2d at 1066)) (initial emphasis in original; underlined emphasis added).

16

(“[S]ince the removal of Plaintiff's claim solely on the basis of admiralty jurisdiction would
deprive him of the right to pursue his nonmaritime remedy of a jury trial, the saving to
suitors clause under these circumstances prohibits the removal of this action.” (citations
omitted)).
Thus, remand honors the balance struck in the original Congressional grant of
admiralty and maritime jurisdiction to this Court. Were the Court to hold otherwise, by
adopting Parker’s argument that amended § 1441(b) removes all barriers to removal of
in personam maritime claims lacking a separate basis for federal jurisdiction, not only
would Plaintiffs be deprived of their forum of choice, but importantly, they would be
deprived of their right to pursue nonmaritime remedies, a right the savings clause
“protects.” See, e.g., Southeastern Marine, 2010 WL 2540701, at *1 (“[T]he savings to
suitors clause of 28 U.S.C. § 1333 protects ‘the right of a common law remedy where
the common law is competent to give it.’” (quoting Lewis, 531 U.S. at 443) (emphasis
added)).
III.

Conclusion

For the reasons explained herein, the motion to remand (Doc. 8) is GRANTED
and this case is REMANDED to the Circuit Court of Choctaw County, Alabama, from
whence it came.

DONE and ORDERED this the 9th day of June 2014.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

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