Unterberg v. Exxon Mobil Corporation et al

Filing 33

ORDER OVERRULING OBJECTIONS, AND ADOPTING MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT PLAINTIFF'S MOTION TO REMAND re: #22 #27 #28 . Signed by JUDGE J. MICHAEL SEABRIGHT on 7/10/2014. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). All participants are registered to receive electronic notifications.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

KELAN UNTERBERG, Individually
and as Personal Representative of the
Estate of JURGEN UNTERBERG,
Deceased,

)
)
)
)
)
Plaintiff,
)
)
vs.
)
)
EXXON MOBIL CORPORATION;
)
MOBIL SHIPPING AND
)
TRANSPORTATION COMPANY;
)
DOES 1 to 25,
)
)
Defendants.
)
_______________________________ )

Civ. No. 14-00181 JMS-RLP
ORDER OVERRULING
OBJECTIONS, AND ADOPTING
MAGISTRATE JUDGE’S FINDINGS
AND RECOMMENDATION TO
GRANT PLAINTIFF’S MOTION TO
REMAND

ORDER OVERRULING OBJECTIONS, AND ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION TO GRANT
PLAINTIFF’S MOTION TO REMAND
I. INTRODUCTION
Defendant Mobil Shipping and Transportation Company (“Mobil
Shipping”) objects pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 74.2 to
Magistrate Judge Richard Puglisi’s June 4, 2014 Findings and Recommendation to
Grant Plaintiff’s Motion to Remand (“June 4 F&R”). Based on the following, the
court OVERRULES the objections. Upon de novo review, the June 4 F&R is
ADOPTED. The action is REMANDED to the First Circuit Court of the State of

Hawaii (“State court”).
II. BACKGROUND
Plaintiff Kelan Unterberg, Individually and as Personal Representative
of the Estate of Jurgen Unterberg, Deceased (“Plaintiff”) filed this action in State
court on December 28, 2012. See Doc. No. 12-3, Compl. at 1. Plaintiff sought
damages against Defendant Exxon Mobil Corporation (“ExxonMobil”)1 and prior
Defendants (IMO Industries, Inc., TransAmerica Delaval Inc., and Delaval Steam
Turbine Company) based on negligence; loss of consortium; strict products
liability; the Jones Act, 46 U.S.C. § 30101; and general maritime law (alleged
under the savings to suitor’s clause of 28 U.S.C. § 1333(1)). See id. at 2-8.2 These
Defendants allegedly caused or contributed to Jurgen Unterberg’s malignant
mesothelioma and/or other asbestos-related diseases, which allegedly developed as
a result of exposure to asbestos while working on ships “floating on navigable
waters of the United States and other navigable waters[.]” Id. at 3.
On April 1, 2014, Plaintiff filed a Second Amended Complaint
(“SAC”) in State court that added Mobil Shipping as a co-Defendant with

1

“Exxon Mobil Corporation” is apparently properly known as “ExxonMobil Oil
Corporation.” See, e.g., Doc. No. 28, Def. ExxonMobil Oil Corp.’s Joinder.
2

A similar First Amended Complaint was filed in State court on January 15, 2013,
adding Yarway Corporation as a Defendant. See Doc. No. 21-9, Am. Compl. at 2.
2

ExxonMobil. See Doc. No. 1-1, SAC at 1. (According to Plaintiff, the other prior
Defendants -- IMO Industries, Transamerica Delaval Inc., Delaval Steam Turbine
Company, and Yarway Corporation -- settled with Plaintiff, and were not named in
the SAC. See Doc. No. 12-1 at 6, Pl.’s Mot. to Remand at 2.) Similar to previous
versions of the Complaint, the SAC alleges negligence, loss of
consortium/infliction of emotional distress, Jones Act, and general maritime claims
(again, alleged under the savings to suitor’s clause of 28 U.S.C. § 1333(1)). See
Doc. No. 1-1, SAC at 3-8.
On April 16, 2014, Mobil Shipping removed the action to this court.
See Doc. No. 1, Notice of Removal. It based its removal on (1) 28 U.S.C. § 1332
(diversity of citizenship),3 and (2) maritime jurisdiction under 28 U.S.C.
§ 1333(1).4 Shortly thereafter, on April 23, 2014, ExxonMobil and Mobil
Shipping both filed Motions to Dismiss for lack of personal jurisdiction.5 Doc.

3

The Notice asserts that (1) Plaintiff is a resident of Guam; (2) Defendant ExxonMobil
was incorporated in New Jersey, and has its principal place of business in Texas; (3) Defendant
Mobil Shipping was incorporated in the Marshall Islands, and has its principal place of business
in Bermuda; and (4) more than $75,000 is in controversy. See Doc. No. 1, Notice of Removal at
3-4.
4

Section 1333 provides, in pertinent part, that “[t]he district courts shall have original
jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime
jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”
5

A similar Motion to Dismiss by ExxonMobil was pending in State court when the
action was removed. See Doc. Nos. 21-53 (Motion); 24-1, 24-2 (Opposition); and 29-2 (Reply).
3

Nos. 8, 10. The court set the Motions to Dismiss for a June 2, 2014 hearing in the
ordinary course of business. Two days later, however, Plaintiff filed this Motion to
Remand arguing (among other points) that, under 28 U.S.C. § 1445(a), a state
action alleging a Jones Act claim is not removable -- regardless of the existence of
diversity of citizenship or the removability of a maritime claim under § 1333. See,
e.g., Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (“[A] Jones
Act claim . . . is not subject to removal to federal court even in the event of
diversity of the parties.”).
Accordingly, this court vacated the June 2, 2014 hearing date for the
Motions to Dismiss, referred the Motion to Remand to Magistrate Judge Puglisi,
and ordered that “[t]he court will address the Motions to Dismiss, if necessary,
after Plaintiff’s Motion to Remand.” Doc. No. 14.
On June 4, 2014, Magistrate Judge Puglisi found that this action was
improperly removed, and recommended granting Plaintiff’s Motion to Remand.
See Doc. No. 22, June 4 F&R at 2. He rejected Mobil Shipping’s argument that
Plaintiff’s Jones Act claim was fraudulently pled to prevent removal, finding
instead that Mobil Shipping has not met its burden to demonstrate at this stage that
there is “no possibility” that Plaintiff could not succeed on her Jones Act claim. Id.
at 10. He also declined to sever the Jones Act claim from the state law and general
4

maritime claims, and thus refused to recommend remanding only the Jones Act
claim while retaining other claims in federal court -- he concluded that § 1441(c)
(as revised in 2011) does not apply.6
On June 17, 2014, Mobil Shipping (joined by ExxonMobil) filed its
Objections to the June 4 F&R, Doc. Nos. 27, 28, and on June 30, 2014 Plaintiff
filed her Response. Doc. No. 31. The court decides the matter without a hearing.
See Local Rules 7.2(e) & 74.2.
III. STANDARD OF REVIEW
A motion to remand is considered to be a case-dispositive motion,
requiring the issuance of a findings and recommendation if initially reviewed by a

6

Section 1441(c) provides:
(1) If a civil action includes-(A) a claim arising under the Constitution, laws, or treaties
of the United States (within the meaning of section 1331 of this
title), and
(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has been made
nonremovable by statute, the entire action may be removed if the
action would be removable without the inclusion of the claim
described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the
district court shall sever from the action all claims described in
paragraph (1)(B) and shall remand the severed claims to the State
court from which the action was removed. Only defendants
against whom a claim described in paragraph (1)(A) has been
asserted are required to join in or consent to the removal under
paragraph (1).
5

magistrate judge. See Keown v. Tudor Ins. Co., 621 F. Supp. 2d 1025, 1029 (D.
Haw. 2008). When a party objects to a magistrate judge’s findings or
recommendations, the district court must review de novo those portions to which
the objections are made and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673 (1980); United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (“[T]he
district judge must review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.”).
Under a de novo standard, this court reviews “the matter anew, the
same as if it had not been heard before, and as if no decision previously had been
rendered.” Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006); United
States v. Silverman, 861 F.2d 571, 576 (9th Cir. 1988). The district court need not
hold a de novo hearing; however, it is the court’s obligation to arrive at its own
independent conclusion about those portions of the magistrate judge’s findings or
recommendation to which a party objects. United States v. Remsing, 874 F.2d 614,
616 (9th Cir. 1989).
///
///
6

IV. DISCUSSION
A.

The Court Declines to Resolve Personal Jurisdiction First
Initially, Mobil Shipping asserts that this court should decide the

Motions to Dismiss for lack of personal jurisdiction before addressing the Motion
to Remand to avoid reaching “a slew of complicated questions arising” out of the
Motion to Remand. Doc. No. 27, Obj. at 1. Indeed, Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574 (1999), held that -- because there is “no unyielding jurisdictional
hierarchy” -- a district court has discretion to dismiss an action for lack of personal
jurisdiction before addressing whether the court has subject matter jurisdiction. Id.
at 578. “Customarily, a federal court first resolves doubts about its jurisdiction
over the subject matter, but there are circumstances in which a district court
appropriately accords priority to a personal jurisdiction inquiry.” Id. Nevertheless,
although this court has such discretion, it declines in this instance to address
personal jurisdiction before deciding whether to remand.
Ruhrgas acknowledged that courts ordinarily reach subject matter
jurisdiction first, but reasoned that certain circumstances allow a court to dispose
of a case on personal jurisdiction grounds -- “[w]here . . . a district court has before
it a straightforward personal jurisdiction issue presenting no complex question of
state law, and the alleged defect in subject-matter jurisdiction raises a difficult and
7

novel question, the court does not abuse its discretion by turning directly to
personal jurisdiction.” Id. at 588. Rurhgas recognized that if subject matter
jurisdiction involves “no arduous inquiry,” then “both expedition and sensitivity to
state courts’ coequal stature should impel the federal court to dispose of that issue
first.” Id. at 587-88. That is, if a court reaches personal jurisdiction first, it
“should be convinced that the challenge to the court’s subject-matter jurisdiction is
not easily resolved.” Id. (quoting Cantor Fitzgerald, L.P. v. Peaslee, 88 F.3d 152,
155 (2d Cir. 1996)). As analyzed below, those circumstances are not present -and, in fact, the court faces the opposite posture. Here, the court plainly lacks
subject matter jurisdiction, and the personal jurisdiction issue appears (at least
upon initial review) to present complex factual questions.7
B.

28 U.S.C. § 1445 Prevents Removal of an Action alleging a Jones Act
Claim
Section 1445(a) provides: “A civil action in any State court against a

railroad or its receivers or trustees, arising under [the Federal Employees Liability
Act (“FELA”), 45 U.S.C. §§ 51-54, 55-60], may not be removed to any district
court of the United States.” Although § 1445(a) refers to actions arising under
7

For example, resolving the two Motions to Dismiss for lack of personal jurisdiction
appears to require unraveling the complex corporate structure and nature of various ExxonMobil
entities, and understanding the relationship between Mobil Shipping and ExxonMobil. It might
also require examining which vessels may be at issue, and where they may have operated (in a
case raising exposure to asbestos in the 1970s).
8

FELA, it also applies to state actions asserting claims under the Jones Act, and
(absent waiver) clearly bars removal of such actions. See, e.g., Lewis, 531 U.S. at
455 (concluding that “respondent raised a Jones Act claim, which is not subject to
removal to federal court even in the event of diversity of the parties,” and noting
that § 1445(a) is “incorporated by reference into the Jones Act”); 46 U.S.C.
§ 30104 (“Laws of the United States regulating recovery for personal injury to, or
death of, a railway employee apply to an action under [the Jones Act].”); Lackey v.
Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993) (“It is axiomatic that Jones
Act suits may not be removed from state court.”).
Mobil Shipping primarily responds in two ways -- (1) it properly
removed the action based upon Plaintiff’s invocation of general maritime law,
which implicates a district court’s original jurisdiction under 28 U.S.C. § 1333; and
(2) the Jones Act claim was fraudulently pled to bar removal. The court addresses
each argument in turn.
1.

Even Assuming There Is “Original Jurisdiction” under § 1333,
§ 1445(a) Still Bars Removal
Mobil Shipping argues that it properly removed the action because

this court has original jurisdiction by statute and the Constitution over Plaintiff’s
maritime claims. See 28 U.S.C. § 1333(1) (“The district courts shall have original
jurisdiction, exclusive of the courts of the States, of (1) Any civil case of admiralty
9

or maritime jurisdiction, saving to suitors in all cases all other remedies to which
they are otherwise entitled.”); U.S. Const., art. III, § 2 (“The judicial Power shall
extend . . . to all Cases of admiralty and maritime jurisdiction.”). It relies on 28
U.S.C. § 1441(a), which provides “[e]xcept as otherwise expressly provided by Act
of Congress, any civil action brought in a State court of which the district courts of
the United States have original jurisdiction, may be removed[.]”
Prior to January 6, 2012 -- the effective date of the Federal Courts
Jurisdiction and Venue Clarification Act of 2011, Pub. L. 112-63, which amended
certain provisions of the federal removal statutes (the “2011 Amendments”) -- it
was settled that state court actions alleging admiralty or maritime claims under the
savings to suitor’s clause of § 1333 were not removable (absent an independent
basis of federal jurisdiction). See, e.g., Morris v. Princess Cruises, Inc., 236 F.3d
1061, 1069 (9th Cir. 2001); In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991); In re
Chimenti, 79 F.3d 534, 537 (6th Cir. 1996). Such cases reasoned, among other
grounds, that 28 U.S.C. § 1441(b) (as it provided before the 2011 Amendments)
was an Act of Congress that “otherwise expressly provided” that admiralty or
maritime claims were not removable under § 1441(a) because such claims do not
“arise under the Constitution, treaties, or laws of the United States” for these

10

purposes.8 In this regard, § 1441(b) provided:
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 of
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) (emphasis added). See, e.g., In re Dutile, 935 F.2d at
63 (reasoning that “admiralty and general maritime claims fall within the category
of ‘[a]ny other [civil] action’ governed by the second sentence of § 1441(b)”).
The 2011 Amendments, however, changed § 1441(b) to read:
(1) In determining whether a civil action is removable on
the basis of the jurisdiction under section 1332(a) of this
title, the citizenship of defendants sued under fictitious
names shall be disregarded.
(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

8

In contrast to 28 U.S.C. § 1331, which provides for original jurisdiction “of all civil
actions arising under the Constitution, laws, or treaties of the United States,” it is settled that
claims of admiralty or maritime jurisdiction under § 1333 do not “arise under the Constitution,
treaties, or laws of the United States.” See Romero v. Int’l Terminal Operating Co., 358 U.S.
354, 378 (1959) (finding it “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
[under § 1333]”), superceded by statute on other grounds, 45 U.S.C. § 59; Sarei v. Rio Tinto,
PLC, 671 F.3d 736, 754 (9th Cir. 2011) (“Admiralty law does not ‘arise under’ federal law for
Article III purposes[.]”), vacated on other grounds, 133 S. Ct. 1995 (2013).
11

the State in which such action is brought.
Because the 2011 Amendments removed language distinguishing
claims “arising under the Constitution, treaties or laws of the United States” from
§ 1441(b), some district courts have concluded that defendants may now remove
admiralty or maritime claims (despite the savings to suitor’s clause) based on a
federal court’s “original jurisdiction.” See, e.g., Ryan v. Hercules Offshore, Inc.,
945 F. Supp. 2d 772, 778 (S.D. Tex. 2013); Bridges v. Phillips 66 Co., 2013 WL
6092803, at *4 (M.D. La. Nov. 19, 2013). Many other courts, however, disagree.
See, e.g., Coronel v. AK Victory, --- F. Supp. 2d ----, 2014 WL 820270, at *11
(W.D. Wash. Feb. 28, 2014); Gabriles v. Chevron USA, Inc., 2014 WL 2567101, at
*3 (W.D. La. Jun. 06, 2014) (citing cases); Pierce v. Parker Towing Co., 2014 WL
2569132, at *6 (S.D. Ala. Jun. 9, 2014); In re Foss Maritime Co., 2014 WL
2930860, at *3 (W.D. Ky. Jun 27, 2014).
But this court need not weigh in on this question. Regardless of
whether an admiralty or maritime claim is removable after the 2011 Amendments,
it remains clear -- given § 1445(a) -- that a state action alleging a Jones Act claim
is “not subject to removal to federal court even in the event of diversity of the
parties.” Lewis, 531 U.S. at 455. Nothing in the 2011 Amendments purported to
revise § 1445(a), which is also an “Act of Congress” that “otherwise expressly
12

provides” that an action may not be removed. See 28 U.S.C. § 1441(a) (“Except as
otherwise expressly provided by Act of Congress, any civil action brought in a
State court of which the district courts of the United States have original
jurisdiction, may be removed[.]”) (emphasis added). Even after the 2011
Amendments, § 1445(a) still precludes removal of actions with Jones Act claims,
such that the court need not decide whether general admiralty or maritime actions
are now removable -- a result reached by several other courts facing this same
question. See, e.g., Freeman v. Phillips 66 Co., 2014 WL 1379786, at *4-5 (E.D.
La. Apr. 8, 2014) (“The Court need not answer these questions today [regarding
§ 1333], however, for it finds the claims to be non-removable pursuant to the Jones
Act.”); Rawls v. Phillips 66 Co., 2014 WL 2003104, at *1 (E.D. La. May 15, 2014
(“The Court need not decide the issue because the Court finds that the presence of
a Jones Act claim in this case precludes removal.”).
2.

Mobil Shipping Has Not Met its Burden to Demonstrate That
Plaintiff’s Jones Act Claim Was Fraudulently Pled
a.

Principles of fraudulent pleading, or fraudulent joinder

Mobil Shipping also argues that it was entitled to remove this action
because Plaintiff’s Jones Act claim was fraudulently pled. See, e.g., Creps v.
Truco Marine, LLC, 2011 WL 5577083, at *2 (N.D. Cal. Nov. 8, 2011) (“Although
a party typically cannot remove a Jones Act claim to Federal court . . . courts have
13

provided an exception to this rule when the plaintiff has submitted a fraudulent
pleading to evade removal.”) (citations omitted); Hufnagel v. Omega Serv. Indus.,
182 F.3d 340, 345 (5th Cir. 1999) (“A fraudulently pleaded Jones Act claim does
not bar removal.”).
“A claim is fraudulently pleaded when there is no possibility that the
plaintiff would be able to establish a cause of action.” Carrigan v. M/V AMC
Ambassador, 2014 WL 358353, at *2 (S.D. Tex. Jan. 31, 2014) (citing Burchett, 48
F.3d at 176); cf. United Computer Sys., Inc. v. AT & T Corp., 298 F.3d 756, 761
(9th Cir. 2002) (“If a plaintiff fails to state a cause of action against a resident
defendant, and the failure is obvious according to the well-settled rules of the state,
the joinder is fraudulent and the defendant’s presence in the lawsuit is ignored for
purposes of determining diversity.”) (quotation marks and citations omitted). That
is, defendants sued under the Jones Act can remove an action if such claims “are
baseless in law and in fact and ‘serve[ ] only to frustrate federal jurisdiction.’”
Lackey, 990 F.2d at 207 (quoting Dodd v. Fawcett Publ’ns, Inc., 329 F.2d 82, 85
(10th Cir. 1964)). “The court may deny remand where, but only where, resolving
all disputed facts and ambiguities in current substantive law in the plaintiff’s favor,
the court determines that the plaintiff has no reasonable possibility of establishing
a Jones Act claim on the merits.” Hufnagel, 182 F.3d at 345-46. In making this
14

determination, courts may look beyond allegations of the pleadings and examine
any proffered evidence. See, e.g., Ritchey v. Upjohn Drug Co., 139 F.3d 1313,
1318 (9th Cir. 1998) (“Where fraudulent joinder is an issue . . . [t]he defendant
seeking removal to the federal court is entitled to present the facts showing the
joinder to be fraudulent.”) (quotation marks and citations omitted); Lackey, 990
F.2d at 207 (“[D]efendants may pierce the pleadings to show that the Jones Act
claim has been fraudulently pleaded to prevent removal.”).
Nevertheless, “[t]he removal statute is strictly construed, and any
doubt about the right of removal requires resolution in favor of remand.” MooreThomas v. Alaska Airlines, Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). There is a
presumption against removal, such that “the defendant always has the burden of
establishing that removal is proper.” Id. (quoting Gaus v. Miles, Inc., 980 F.2d
564, 566 (9th Cir. 1992)). “Fraudulent joinder must be proven by clear and
convincing evidence.” Hamilton Materials Inc. v. Dow Chem. Corp., 494 F.3d
1203, 1206 (9th Cir. 2007).
And although a court may look to evidence in determining fraudulent
joinder, it does so in a summary manner. Hunter v. Philip Morris USA, 582 F.3d
1039, 1045 (9th Cir. 2009) (explaining that “a summary inquiry is appropriate only
to identify the presence of discrete and undisputed facts that would preclude
15

plaintiff’s recovery against the in-state defendant”) (quoting Smallwood v. Ill.
Cent. R. Co., 385 F.3d 568, 573-74 (5th Cir. 2004) (en banc)). “Attempting to
proceed beyond this summary process carries a heavy risk of moving the court
beyond jurisdiction and into a resolution of the merits.” Smallwood, 385 F.3d at
574. “[A]ny piercing of the pleadings should not entail substantial hearings.” Id.;
see also, e.g., Lovell v. United Airlines, Inc., 2009 WL 3172729, at *3 & n.3 (D.
Haw. Oct. 2, 2009) (“[T]he district court may, in its discretion, pierce the pleadings
and conduct a summary inquiry[.]”) (quoting Smallwood, 385 F.3d at 573).9
b.

Application of fraudulent pleading principles

“A tort claim under the Jones Act is properly [pled] if it contains
allegations that the injured person is a seaman who was acting within the scope of
his employment when he was injured.” Rodriguez v. Flota Mercante
Grancolombiana, S.A., 703 F.2d 1069, 1072 (9th Cir. 1983); Green v. Ross Island
Sand & Gravel Co., 2014 WL 262133, at *3 (N.D. Cal. Jan. 23, 2014) (applying
Rodriguez, remanding a Jones Act action to state court, and refusing to look
beyond the pleadings on a motion to remand). Applying this Rodriguez standard,
9

Although some caselaw refers to a “summary judgment-like procedure for disposing of
fraudulent pleading claims,” Burchett, 48 F.3d at 176, it nevertheless remains accepted that “a
district court should not pre-try a case to determine removal jurisdiction.” Hufnagel, 182 F.3d at
345. And, as with a true summary judgment motion, “in determining whether a plaintiff’s claims
are baseless, the district court must resolve all disputed questions of fact and any ambiguities in
the current controlling substantive law in favor of the plaintiff.” Burchett, 48 F.3d at 176.
16

the SAC clearly alleges that Jurgen Unterberg was employed as “a chief engineer
and merchant seaman in boiler rooms and engine rooms and machinery spaces
from approximately 1973 through 1978 on board ships in Hawaii . . . working on
civilian vessels and commercial liners in private industry, including Mobil Comet,
Mobil Wapello, Mobil Vigilant, Mobil Exporter, [Mobil] Pride and Mobil
Conastoga.” Doc. No. 1-1, SAC ¶ 5; see also Doc. No. 20-11, Pl.’s Ex. P. The
SAC alleges that Mobil Shipping “was the nominal owner of the Mobil Vigilant
and the [Mobil] Pride,” and “is a wholly owned subsidiary of [ExxonMobil].”
Doc. No. 1-1, SAC ¶ 7; see also Doc. No. 20-10, Pl.’s Ex. O. It further alleges that
he “enjoyed an employment-related connection to the vessels which was
substantial in both nature and duration.” Doc. No. 1-1, SAC ¶ 8. And the record
contains evidence that Mobil Shipping was the employer of German officers (such
as Jurgen Unterberg) on all Mobil Tankers in the 1970s. See, e.g., Doc. No. 20-2,
Pl.’s Ex. G. Other evidence, however, indicates Jurgen Unterberg was “employed”
by “Mobil Oil G.m.b.H.” for the periods and vessels in question. See Doc. No.
20-7, Pl.’s Ex. L.
Mobil Shipping fails to meet its burden to demonstrate by clear and
convincing evidence that Plaintiff’s Jones Act claim is “baseless” or that there is
“no possibility” that Plaintiff can succeed. The SAC alleges, supported by
17

evidence construed in Plaintiff’s favor, that Jurgen Unterberg was (1) a “seaman”
acting within the scope of employment, and (2) was employed in some manner by
Mobil Shipping. There is a “possibility” of a valid Jones Act claim. The claim
was not “fraudulently” pled. And “any doubt about the right of removal requires
resolution in favor of remand.” Moore-Thomas, 553 F.3d at 1244.
Mobil Shipping stresses the factors set forth in Lauritzen v. Larsen,
345 U.S. 571 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970), and
argues that the interests of the United States are insufficient to warrant application
of the Jones Act. These choice-of-law factors set forth a framework to analyze
whether foreign law, rather than the Jones Act, applies to a party’s claims. See
Warn v. M/Y Maridome, 169 F.3d 625, 628 (9th Cir. 1999).
[T]he Lauritzen factors are (1) the place of the wrongful
act, (2) the law of the flag, (3) the allegiance or domicile
of the injured party, (4) the allegiance of the shipowner,
(5) the place of the seaman’s employment contract,
(6) the accessibility of a foreign forum, and (7) the law of
the forum. See Lauritzen, 345 U.S. at 583-592. In
Rhoditis, the Supreme Court stated that “the list of seven
factors in Lauritzen was not intended as exhaustive,” and
instructed courts to consider the “shipowner’s base of
operations” as an additional factor. Rhoditis, 398 U.S. at
309.
Warn, 169 F.3d at 628. Mobil Shipping points to factors (some of which are
disputed) which it claims indicate foreign law (not the Jones Act) should apply -- it
18

was a Liberian Company, Jurgen Unterberg was a German citizen, and the vessels
in question were not registered in the United States. Doc. No. 18, Opp’n at 18-24.
Magistrate Judge Puglisi examined these factors, but determined that
they were mixed. He reasoned that Plaintiff has produced evidence supporting her
arguments questioning the place of the wrongful acts (American ports), the
allegiance of Mobil Shipping (wholly-owned by ExxonMobil, a New York
Corporation), and Mobil Shipping’s base of operations (New York). See, e.g.,
Doc. No. 20, Pl.’s Opp’n at 17-20; Doc. No. 20-4, Pl.’s Ex. I; Doc. No. 20-6, Pl.’s
Ex. K; Doc. No. 20-10, Pl.’s Ex. O; Doc. No. 20-13, Pl.’s Ex. A. Thus, because
Mobil Shipping cannot demonstrate that there is “no possibility” of a Jones Act
claim, Magistrate Judge Puglisi found that the claim was not fraudulently pled.
Mobil Shipping contends that Magistrate Judge Puglisi “abdicated his
duty to make a necessary and definitive legal ruling that one side or the other had
prevailed on the Lauritzen factors.” Doc. No. 27, Obj. at 12. It argues that “[t]he
Lauritzen factors must be weighed and if [it] prevails in that balancing . . . then it
follows that Plaintiff’s claim cannot succeed and was fraudulently pleaded.” Id.
But this is a Motion to Remand, not a Motion to Dismiss or Motion
for Summary Judgment. At this stage, the inquiry is limited to determining
whether there is “no possibility that the plaintiff would be able to establish a cause
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of action.” Burchett, 48 F.3d at 176. Stated alternatively, the court looks to
whether it is “obvious” that the joinder is fraudulent. United Computer Sys., Inc.,
298 F.3d at 761, and whether the claim is clearly “baseless.” Lackey, 990 F.2d at
207. Although the court examines the available evidence, this is a “summary
inquiry,” Hunter, 582 F.3d at 1045, and not “a resolution of the merits.”
Smallwood, 385 F.3d at 574.10 The court “must resolve all disputed questions of
fact and any ambiguities in the current controlling substantive law in favor of the
plaintiff.” Burchett, 48 F.3d at 176. Applying these standards, the court agrees (on
de novo review) with Magistrate Judge Puglisi that Mobil Shipping has failed to
meet its burden to demonstrate that Plaintiff’s Jones Act claim was fraudulently
10

Rhoditis noted that the Lauritzen/Rhoditis analysis is factually-intensive and
involves the ascertainment of the facts or groups of facts which
constitute contacts between the transaction involved in the case
and the United States, and then deciding whether or not they are
substantial. Thus each factor is to be “weighed” and “evaluated”
only to the end that, after each factor has been given consideration,
a rational and satisfactory conclusion may be arrived at on the
question of whether all the factors present add up to the necessary
substantiality. Moreover, each factor, or contact, or group of facts
must be tested in the light of the underlying objective, which is to
effectuate the liberal purposes of the Jones Act.

398 U.S. at 309 n.4. And so, even if this is ultimately a question of law, it would be particularly
inappropriate to definitively weigh the Lauritzen/Rhoditis factors at this Motion to Remand
stage, given the record before the court. See, e.g., Nikitjuks v. Stolt-Nielsen, S.A., 2010 WL
4273328, at *2, 3 (E.D. Pa. Oct. 28, 2010) (concluding that “it would be inappropriate for the
Court to engage in a Lauritzen-Rhoditis analysis at this time,” reasoning that “the LauritzenRhoditis framework requires a fact-intensive analysis, [and] discovery is necessary before a
determination can be made as to whether this Jones Act claim should be dismissed”).
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pled to evade removal.
C.

The Jones Act Claim Is Not Severable under 28 U.S.C. § 1441(c)
Next, Mobil Shipping’s Motion to Remand argues that, if the court

finds a viable Jones Act claim, it should sever it from the remaining claims
(negligence, general maritime claims, loss of consortium) and remand only the
Jones Act claim. For this proposition it cites to § 1441(c) (as revised in the 2011
Amendments), which provides:
(1) If a civil action includes-(A) a claim arising under the Constitution, laws, or
treaties of the United States (within the meaning of
section 1331 of this title), and
(B) a claim not within the original or supplemental
jurisdiction of the district court or a claim that has been
made nonremovable by statute, the entire action may be
removed if the action would be removable without the
inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph
(1), the district court shall sever from the action all
claims described in paragraph (1)(B) and shall remand
the severed claims to the State court from which the
action was removed. Only defendants against whom a
claim described in paragraph (1)(A) has been asserted are
required to join in or consent to the removal under
paragraph (1).
Because, the argument goes, Mobil Shipping properly removed the
action based upon admiralty and maritime jurisdiction, it contends that
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§ 1441(c)(2) applies and “the district court shall sever from the action all claims
described in [§ 1441(c)(1)(B)] and shall remand the severed claims to the State
court from which the action was removed.”
But the prerequisites to this severance provision simply do not apply.
Under § 1441(c)(1)(A), an admiralty or maritime claim under § 1333 (let alone
claims for negligence or loss of consortium) is not “a claim arising under the
Constitution, laws, or treaties of the United States (within the meaning of section
1331 of this title).” See, e.g., Romero, 358 U.S. at 378; Sarei, 671 F.3d at 754.
Section 1441(c) requires both that a civil action arise under § 1331 and otherwise
include another “claim not within the original or supplemental jurisdiction of the
district court or a claim that has been made nonremovable by statute.” Here, there
is no claim within the meaning of § 1331, and removal was thus not proper under
§ 1441(c). The court cannot sever (and remand) the Jones Act claim from the
remainder of the action. See, e.g., Freeman, 2014 WL 1379786, at *5.
D.

The Court Refuses to Deny the Motion to Remand and Certify the
Order for Interlocutory Appeal
Lastly, Mobil Shipping points out that, if this court remands the

action, the order of remand would generally be non-appealable. See 28 U.S.C.
§ 1447(d) (“An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an order remanding
22

a case to the State court from which it was removed pursuant to section 1442 or
1443 of this title shall be reviewable by appeal or otherwise.”); Atl. Nat’l Trust
LLC v. Mt. Hawley Ins. Co., 621 F.3d 931, 934 (9th Cir. 2010) (explaining that
Ҥ 1447(d) prohibits review only of remand orders issued pursuant to a ground
enumerated in § 1447(c)”) (citing Thermtron Prods. Inc. v. Hermansdorfer, 423
U.S. 336, 343 (1976), superseded by statute on other grounds, 28 U.S.C.
§ 1447(c)). It thus suggests that, if the court finds that the removal and remand
issues are close questions, and are worthy of consideration by the Ninth Circuit, the
“better course” is to deny remand and certify the issues for immediate appeal.
Doc. No. 27, Objections at 12-13.
Even assuming this would be a viable option, the issues are not close
-- § 1445(a) plainly requires remand of an action brought under the Jones Act, and
the claim was not fraudulently pled.
///
///
///
///
///
///
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V. CONCLUSION
For the foregoing reasons, the June 4, 2014 Findings and
Recommendation to Grant Plaintiff’s Motion to Remand is ADOPTED. The
Motion to Remand is GRANTED. The action is REMANDED to the First Circuit
Court of the State of Hawaii.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 10, 2014.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Unterberg v. Exxon Mobil Corp. et al., Civ. No. 14-00181 JMS-RLP, Order Overruling
Objections, and Adopting Magistrate Judge’s Findings and Recommendation to Grant Plaintiff’s
Motion to Remand

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