Barglowski v. Nealco International LLC et al

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S 28 U.S.C. 1447(c) VERIFIED MOTION TO REMAND TO SECOND CIRCUIT COURT, STATE OF HAWAII re 14 Motion to Remand. Signed by JUDGE LESLIE E. KOBAYASHI on 09/20/2016. Plaintiff Jennifer Barglowskis 28 U.S.C. 1447(c) Verified Motion to Remand to Second Circuit Court, State of Hawaii, filed on May 31, 2016, is HEREBY GRANTED IN PART AND DENIED IN PART. The Court HEREBY REMANDS this action to the State o f Hawai`i Second Circuit Court. The Court DIRECTS the Clerk's Office to transmit a certified copy of this order to the clerk of the Second Circuit (eps )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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL 16-00209 LEK-KSC

JENNIFER BARGLOWSKI,

)
)
Plaintiff,
)
)
vs.
)
)
NEALCO INTERNATIONAL LLC, a
)
company dba SCUBA SHACK, ET
)
AL.,
)
)
)
Defendants.
_____________________________ )

ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S 28 U.S.C. 1447(C) VERIFIED MOTION
TO REMAND TO SECOND CIRCUIT COURT, STATE OF HAWAII
Before the Court is Plaintiff Jennifer Barglowski’s
(“Plaintiff”) 28 U.S.C. 1447(c) Verified Motion to Remand to
Second Circuit Court, State of Hawaii (“Motion”), filed on
May 31, 2016.

[Dkt. no. 14.]

Defendant Jeffery Bartunek

(“Bartunek”) filed a memorandum in opposition on July 7, 2016,
and Defendants Nealco International LLC doing business as Scuba
Shack (“Scuba Shack”), Charles C. Neal (“Neal”), and Molokini
Divers, Inc. (“Molokini”) filed a joinder to Bartunek’s (all
collectively “Defendants”) memorandum in opposition the same day
(“Joinder”).

[Dkt. nos. 22, 23.]

July 13, 2016.

[Dkt. no. 24.]

on August 1, 2016.

Plaintiff filed a reply on

This matter came on for hearing

After careful consideration of the Motion,

supporting and opposing memoranda, and the arguments of counsel,
Plaintiff’s Motion is HEREBY GRANTED IN PART AND DENIED IN PART

for the reasons set forth below.
BACKGROUND
Plaintiff filed her First Amended Complaint in the
Circuit Court of the Second Circuit, State of Hawai`i, on
April 12, 2016, and Bartunek removed the instant case to this
district court on May 2, 2016.

[Notice of Removal, filed 5/2/16

(dkt. no. 1), Exh. A (First Amended Complaint).]
The First Amended Complaint states that, on July 20,
2015, Defendants took Plaintiff and others on a snorkel and dive
tour to Molokini Island, off the coast of Maui.
Complaint at ¶¶ 16-17.]

[First Amended

Plaintiff alleges that Defendants

“failed to adequately monitor then foreseeable and/or existing
weather and ocean conditions” and exposed Plaintiff and the other
divers to an “unreasonable risk of harm.”

[Id. at ¶ 19.]

In

addition, Plaintiff states that Defendants “failed to adequately
monitor” the divers, and did not adhere to the “applicable
standards of care, training, custom and procedure, required by”:
the circumstances; the United States Coast Guard; the State of
Hawai`i, Department of Land and Natural Resources, Division of
Boating and Ocean Recreation; Hawai`i Administrative Rules, Title
13; and Plaintiff’s expectations.

[Id. at ¶¶ 20-21.]

Plaintiff

argues that Defendants acted with “reckless disregard” for her
rights, and that they were “grossly negligent.”

[Id. at ¶ 25.]

As a result of Defendants’ actions, Plaintiff alleges that she

2

“suffered severe and permanent physical injury and suffering,
mental distress and impairment, psychological damage, loss of
wage [sic], impairment of earning capacity, diminution of
enjoyment of life’s activities, expenses incurred for treatment
of injuries,” and other damages.
seeks:

[Id. at ¶ 26.]

Plaintiff

damages; attorneys’ fees and costs; prejudgment and post-

judgment interest; and any further relief to which she is
entitled.

[Id. at pg. 7.]
On May 5, 2016, Bartunek filed a Supplemental Statement

in Support of Notice of Removal Filed on May 2, 2016
(“Supplemental Statement”).

[Dkt. no. 6.]

On June 24, 2016,

Neal, Molokini, and Scuba Shack filed a Consent to Removal
(“Consent”), and joined in Bartunek’s Notice of Removal and the
Supplemental Statement.

[Dkt. no. 20.]

Plaintiff filed a

document titled “Opposition to Consent to Removal by Defendants
Charles C. Neal, Molokini Divers, Inc., and Nealco International,
LLC; Request to Strike Consent” on July 1, 2016.

[Dkt. no. 21.]

STANDARD
Federal district courts “have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.”

28 U.S.C. § 1331.

Federal

district courts also have jurisdiction:
(a) . . . where the matter in controversy exceeds
the sum or value of $75,000, exclusive of interest
and costs, and is between –

3

(1) citizens of different States;
(2) citizens of a State and citizens or
subjects of a foreign state, except that the
district courts shall not have original
jurisdiction under this subsection of an
action between citizens of a State and
citizens or subjects of a foreign state who
are lawfully admitted for permanent residence
in the United States and are domiciled in the
same State;
(3) citizens of different States and in which
citizens or subjects of a foreign state are
additional parties; and
(4) a foreign state, defined in section
1603(a) of this title, as plaintiff and
citizens of a State or of different States.
28 U.S.C. § 1332.
28 U.S.C. § 1441 provides a mechanism through which
defendants may remove a case filed in state court to federal
district court, if the court would otherwise have jurisdiction:
(a) Generally. – 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 by the defendant or
the defendants, to the district court of the
United States for the district and division
embracing the place where such action is pending.
(b) Removal based on diversity of citizenship. –
(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
4

as defendants is a citizen of the State in which
such action is brought.
28 U.S.C. § 1446(b)(2)(A) states that “[w]hen a civil action is
removed solely under section 1441(a), all defendants who have
been properly joined and served must join in or consent to the
removal of the action.”
Alternatively, 28 U.S.C. § 1447 provides a mechanism
for remanding a case back to state court if a party wrongfully or
improperly removes a case.

It states, in pertinent part:

(c) A motion to remand the case on the basis of
any defect other than lack of subject matter
jurisdiction must be made within 30 days after the
filing of the notice of removal under section
1446(a). If at any time before final judgment it
appears that the district court lacks subject
matter jurisdiction, the case shall be remanded.
An order remanding the case may require payment of
just costs and any actual expenses, including
attorney fees, incurred as a result of the
removal. A certified copy of the order of remand
shall be mailed by the clerk to the clerk of the
State court. The State court may thereupon
proceed with such case.
This district court has stated:
“Removal and subject matter jurisdiction
statutes are ‘strictly construed,’ and a
‘defendant seeking removal has the burden to
establish that removal is proper and any doubt is
resolved against removability.’” Hawaii ex rel.
Louie v. HSBC Bank Nev., N.A., 761 F.3d 1027, 1034
(9th Cir. 2014) (quoting Luther v. Countrywide
Home Loans Servicing LP, 533 F.3d 1031, 1034 (9th
Cir. 2008)). Thus, “‘[i]t is to be presumed that
a cause lies outside [the] limited jurisdiction
[of the federal courts] and the burden of
establishing the contrary rests upon the party
asserting jurisdiction.’” Hunter v. Philip Morris
USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (quoting
5

Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 684
(9th Cir. 2006)) (alterations in original). This
“‘strong presumption against removal jurisdiction
means that the defendant always has the burden of
establishing that removal is proper,’ and that the
court resolves all ambiguity in favor of remand to
state court.” Id. (quoting Gaus v. Miles, Inc.,
980 F.2d 564, 566 (9th Cir. 1992) (per curiam)).
U.S. Bank, Nat’l Ass’n v. Mizukami, CIVIL NO. 15-00523 JMS-BMK,
2016 WL 632195, at *2 (D. Hawai`i Feb. 17, 2016).
DISCUSSION
I.

Request for Joinder
Rule 7.9 of the Local Rules of Practice for the United

States District Court for the District of Hawai`i states, in
pertinent part:
Except with leave of court based on good cause,
any substantive joinder in a motion or opposition
must be filed and served within (7) days of the
filing of the motion or opposition joined in.
“Substantive joinder” means a joinder based on a
memorandum supplementing the motion or opposition
joined in. If a party seeks the same relief
sought by the movant for himself, herself, or
itself, the joinder shall clearly state that it
seeks such relief so that it is clear that the
joinder does not simply seek relief for the
original movant. A joinder of simple agreement
may be field at any time. A separate opposition
or reply complying with LR7.5 may be filed in
response to a substantive joinder in a motion or
opposition, respectively. No substantive joinder
in a reply may be filed; a party that has joined
in a motion may file its own reply (as opposed to
a joinder in the movant’s reply) by the reply
deadline only if the opposition has addressed
matters unique to that joining party. Joinders in
motions must specifically identify the pending
motion by docket number to which the joinder
applies.
6

The Joinder at issue does not include a memorandum.

The Joinder

is therefore CONSTRUED as a joinder of simple agreement, and is
GRANTED.
II.

Motion to Remand
A.

Forum Defendant Rule
Section 1441(b)(2) is often referred to as the forum

defendant rule.

See, e.g., Watanabe v. Lankford, 684 F. Supp. 2d

1210, 1215-16 (D. Hawai`i 2010) (discussing the origin and
application of the forum defendant rule).

The Ninth Circuit has

explained that, “[s]eparate and apart from the statute conferring
diversity jurisdiction, 28 U.S.C. § 1332, § 1441(b) confines
removal on the basis of diversity jurisdiction to instances where
no defendant is a citizen of the forum state.”

Lively v. Wild

Oats Markets, Inc., 456 F.3d 933, 939 (9th Cir. 2006).1

Here, it

is uncontested that Scuba Shack, Neal, and Molokini are all
citizens of Hawai`i.2

See First Amended Complaint at ¶¶ 2-4.

1

In Lively, the Ninth Circuit considered a district court’s
remand of a case for violation of the forum defendant rule after
the thirty-day deadline set forth in § 1447(c). 456 F.3d at 93637. The Ninth Circuit held that the forum defendant rule “is a
procedural, or non-jurisdictional rule. Our holding is compelled
by a close analysis of the legislative history of § 1447(c), the
policy rational of § 1441(b), the prevailing law of our sister
circuits, and Supreme Court precedent.” Id. at 939 (footnote
omitted). Here, the parties do not dispute that the Motion was
filed within thirty days of the Notice of Removal.
2

In Watanabe, this district court concluded that “[t]he
Court should interpret the ‘and served’ portion of § 1441(b) in a
consistent manner and rule that the service of an in-forum
(continued...)
7

The Court therefore CONCLUDES that, pursuant to the forum
defendant rule, the instant case was not removable based on
diversity jurisdiction.
B.

Unanimity Requirement
For the sake of completeness, the Court will address

the issues related to consent to removal in the instant matter.
Plaintiff states that Defendants failed to comply with
§ 1446(b)(2)(A), which requires all served defendants to consent
to removal.

[Mem. in Supp. of Motion at 2-3.]

The Court agrees.

The Ninth Circuit has stated:
The so-called “rule of unanimity,” announced
by the Supreme Court in Chicago, Rock Island, &
Pacific Railway Co. v. Martin, 178 U.S. 245, 248,
20 S. Ct. 854, 44 L. Ed. 1055 (1900), as an
interpretation of a predecessor removal statute,
merely says that “all the defendants must join in
the application” for removal. See also Lapides v.
Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,
620, 122 S. Ct. 1640, 152 L. Ed. 2d 806 (2002)
(citing Chicago only for the proposition that
“removal requires the consent of all defendants”).
Chicago does not specify how defendants must join
in removal. Nor does any federal rule or statute
specifically prescribe a particular manner in
which codefendants’ joinder must be expressed. In
the absence of any rule governing joinder in
removal, we turn to the general principles that
govern procedures for removal and for attorney
representations to district courts
generally. . . .

2

(...continued)
defendant after removal does not invoke the forum defendant
rule.” 684 F. Supp. 2d at 1219. The Defendants do not contend,
however, that Bartunek removed the instant case before the other
defendants were served.
8

Applying these general principles, we
conclude that the filing of a notice of removal
can be effective without individual consent
documents on behalf of each defendant. One
defendant’s timely removal notice containing an
averment of the other defendants’ consent and
signed by an attorney of record is sufficient.
Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1225 (9th
Cir. 2009) (emphasis in Proctor).

“The removing party has the

burden of affirmatively explaining the absence of any codefendants in the event that fewer than all co-defendants have
joined in a removal action.”

Hafiz v. Greenpoint Mortg. Funding,

Inc., 652 F. Supp. 2d 1050, 1052 (N.D. Cal. July 16, 2009).

The

district court in Hafiz also noted that, “all defendants must
either join or provide within thirty days consent to the removal
notice.”

Id. (citing 28 U.S.C. 1447(c)).

“Failure to comply

with the thirty-day time limitation or the unanimity requirement
renders the removal procedurally defective.”

Wilburn v. Bracher,

No. 2:15-cv-00699-TLN-GGH, 2015 WL 6163575, at *5 (E.D. Cal. Oct.
19, 2015) (citing Emrich v. Touche Ross & Co., 846 F.2d 1190,
1193 n.1 (9th Cir. 1988)).
Here, Bartunek filed the Notice of Removal on May 2,
2016, and Neal, Scuba Shack, and Molokini did not file the
Consent until June 24, 2016.

Bartunek did not provide any

explanation for his co-defendants’ absence in the Notice of
Removal, and Neal, Scuba Shack, and Molokini similarly failed to
explain the delay in their consent to removal in the Consent.

9

In

addition, the Consent was filed well over thirty days after the
Notice of Removal.

The Court FINDS that the Notice of Removal

was not unanimous, and, thus, even if Defendants had a legally
sound basis for removal aside from diversity of citizenship, the
Notice of Removal was procedurally defective.3

See, e.g.,

Walker v. Cal. Dep’t of Corr., No. 2:09-cv-0569-KJN P, 2010 WL
1006417, at *3 (E.D. Cal. Mar. 17, 2010), report and
recommendation adopted sub nom., No. 2:09-cv-0569 WBS KJN (PC),
2010 WL 2089351 (E.D. Cal. May 21, 2010) (“Untimely consent does
not cure a removal defective for lack of unanimity.” (citations
omitted)).
C.

Original Jurisdiction and Maritime Claims
The Supplemental Statement presents two additional

arguments for the Court’s jurisdiction over this case:

(1) there

are two other cases before this district court related to the
same series of events;4 and (2) the Court has original

3

It is well-established that “the district court may allow
the removing defendants to cure the defect by obtaining joinder
of all defendants prior to the entry of judgment.” Destfino v.
Reiswig, 630 F.3d 952, 957 (9th Cir. 2011) (citing Soliman v.
Philip Morris Inc., 311 F.3d 966, 970 (9th Cir. 2002)). However,
in both Destfino and Soliman, the petitioner was appealing a
final judgment. See Destfino, 630 F.3d at 954; Soliman, 311 F.3d
at 970.
4

The two cases are: Strickert v. Neal, CV 14-00513 DKWRLP; and Osaki v. Neal, CV 15-00409 DKW-RLP. These two cases
were consolidated for pretrial purposes. See CV 14-00513, dkt.
no. 96 (Order Consolidating Civil No. 14-00513 DKW-RLP and Civil
No. 15-00409 DKW-RLP for Pretrial Purposes).
10

jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C.
§ 1333.

[Suppl. Statement at 2.]

The Court will address each of

these arguments in turn, starting with the second one.
1.

The “Saving to Suitors” Clause

Other district courts in the Ninth Circuit have
explored the history of § 1333:
In order for a lower federal court to
exercise subject matter jurisdiction there must be
both a constitutional and a statutory basis of
jurisdiction. See The Mayor v. Cooper, 73 U.S. (6
Wall.) 247, 252, 18 L. Ed 851 (1868); Sheldon v.
Sill, 49 U.S. 441, 442, 8 How. 441, 12 L. Ed. 1147
(1850). Article III, Section 2 of the United
States Constitution vests federal courts with
jurisdiction over “all cases of admiralty and
maritime jurisdiction.” U.S. Const. art. III,
§ 2. Section 9 of the Judiciary Act of 1789
originally codified this grant of jurisdiction as
follows:
That the district courts shall have,
exclusively of the courts of the several
States . . . exclusive original cognizance of
all civil causes of admiralty and maritime
jurisdiction . . . within their respective
districts as well as upon the high seas;
saving to suitors, in all cases, the right of
a common law remedy, where the common law is
competent to give it.
Ch. 20, § 9, 1 Stat. 76-77 (emphasis added).
The highlighted portion is known as the
“saving to suitors” clause. Congress has revised
the language of this clause over the years, but
the substance has remained largely unchanged.
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438,
443-44, 121 S. Ct. 993, 148 L. Ed. 2d 931 (2001)
(citing various revisions of the statute). The
statute now states: “The district courts shall
have original jurisdiction, exclusive of the
courts of the States, of . . . any civil case of
11

admiralty or maritime jurisdiction, saving to
suitors in all cases all other remedies to which
they are otherwise entitled.” 28 U.S.C § 1333
(2012) (emphasis added).
The [United States] Supreme Court has
interpreted this clause as preserving to maritime
litigants “all means other than proceedings in
admiralty which may be employed to enforce the
right or to redress the injury involved.” Lewis,
531 U.S. at 455, 121 S. Ct. 993 (citing Red Cross
Line v. Atlantic Fruit Co., 264 U.S. 109, 44 S.
Ct. 274, 68 L. Ed. 582 (1924)). I[n] short, the
clause reserves to plaintiffs all remedies
traditionally available at common law via in
personam proceedings. Id. As a result, federal
courts’ admiralty 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 enforce a lien.” Madruga
v. Superior Court of State of Cal. in & for San
Diego Cnty., 346 U.S. 556, 560-61, 74 S. Ct. 298,
98 L. Ed. 290 (1954); see also Am. Dredging Co. v.
Miller, 510 U.S. 443, 446-47, 114 S. Ct. 981, 127
L. Ed. 2d 285 (1994) (“an in rem suit against a
vessel is . . . distinctively an admiralty
proceeding, and is hence within the exclusive
province of the federal courts.”). State courts
remain “competent to adjudicate maritime causes of
action in proceedings in personam, that is, where
the defendant is a person, not a ship or some
other instrument of navigation.” Madruga, 346
U.S. at 561, 74 S. Ct. 298 (internal punctuation
omitted).
Coronel v. AK Victory, 1 F. Supp. 3d 1175, 1181 (W.D. Wash. 2014)
(some alterations in Coronel).
2.

2011 Amendments to § 1441

Prior to 2011, § 1441 read, in relevant part:
Actions removable generally

12

(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 by the defendant or the defendants, to the
district court of the United States for the
district and division embracing the place where
such action is pending. For purposes of removal
under this chapter, the citizenship of defendants
sued under fictitious names shall be disregarded.
(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.
In December 2011, the United States Congress passed the Federal
Courts Jurisdiction and Venue Clarification Act of 2011, Publ. L.
No. 112-63, § 103, 125 Stat. 758, 759 (2011), which amended
§ 1441 such that (a) and (b) now read:
Removal of civil actions
(a) GENERALLY. – 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 by the defendant or
the defendants, to the district court of the
United States for the district and division
embracing the place where such action is pending.
(b) REMOVAL BASED ON DIVERSITY OF
CITIZENSHIP. – (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.

13

(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.
3.

The 2011 Amendments and the Fifth Circuit

In Ryan v. Hercules Offshore, Inc., the Southern
District of Texas concluded that the amendments to § 1441 allow
for the removal of all admiralty claims to federal district
courts.

945 F. Supp. 772, 778-79 (S.D. Tex. 2013).

Specifically, the district court in Ryan explained that in both
In re Dutile, 935 F.2d 61 (5th Cir. 1991), and Tennessee Gas
Pipeline v. Houston Casualty Insurance Co., 87 F.3d 150 (5th Cir.
1996), the Fifth Circuit relied upon specific language in the
former version of § 1441 to foreclose removal of admiralty claims
absent diversity jurisdiction.

Id. at 775-76.

In Dutile, the

Fifth Circuit cited Romero v. International Terminal Operating
Co., 358 U.S. 354, 378 (1959),5 in concluding that, while
§ 1441(a) allowed for removal of cases over which federal
district court’s had original jurisdiction “[e]xcept as otherwise
expressly provided by Act of Congress,” § 1441(b) allowed only

5

In Romero, the Supreme Court held that “the historic
option of a maritime suitor pursuing a common-law remedy to
select his forum, state or federal, would be taken away by an
expanded view of [§] 1331, since saving-clause actions would then
be freely removable under [§] 1441 of Title 28, 28 U.S.C.A.
[§] 1441.” 358 U.S. at 371-72. Romero was superseded by statute
on other grounds, as recognized in Miles v. Apex Marine Corp.,
498 U.S. 19 (1990).
14

for removal of actions “founded on a claim or right arising under
the Constitution, treaties or laws of the United States.”
F.2d at 62-63 (internal quotation marks omitted).

935

Because under

Romero, “claims in admiralty, whether designated in rem or in
personam, do not fall within this category,” admiralty cases
could only be removed if there was complete diversity.
(emphasis in Dutile) (citation omitted).

Id. at 63

Similarly, in Tennessee

Gas, the Fifth Circuit reiterated that federal courts did not
have jurisdiction over admiralty claims because they did “not
arise under the Constitution, treaties or laws of the United
States.”

87 F.3d at 153 (alterations, footnote, and internal

quotation marks omitted).

However, in Tennessee Gas, the Fifth

Circuit held that a separate federal statute, the Outer
Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq., provided
“alternative grounds for original jurisdiction.”

Id.

Because the amended version of § 1441(b) removed the
language relied upon in these cases, the district court in Ryan
concluded that “[s]ection 1441(b) . . . is no longer an ‘Act of
Congress’ prohibiting that exercise in admiralty cases involving
non-diverse parties.

Instead, Congress expects courts to look to

the new version of section 1441(b) only when ascertaining
removability of cases removed on the basis of diversity.”
945 F. Supp. 2d at 777-78.

The district court continued:

Plaintiffs argue that maritime claims cannot be
removed pursuant to section 1441(a) because they
15

Ryan,

do not arise under the Constitution, treaties, or
laws of the United States. However, neither the
prior version nor the new version of section
1441(a) refers to claims that arise under the
Constitution, treaties or laws of the United
States. This reference was found in the previous
version of section 1441(b). Both versions of
section 1441(a) refer to original jurisdiction,
and federal district courts have “original
jurisdiction” over “[a]ny civil case of admiralty
or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are
otherwise entitled.” 28 U.S.C. § 1331(1).
Id. at 778 (alteration and emphasis in original) (some citations
omitted).
Other district courts in the Fifth Circuit disagreed
with the district court’s conclusion in Ryan.

The Western

District of Louisiana noted, “[c]ourts in the Eastern and Western
Districts of Louisiana and in the Southern and Eastern district
of Texas have held that the 2011 amendments did not change the
Fifth Circuit’s longstanding rule that maritime claims are not
removable absent a basis of jurisdiction outside of admiralty,”
but that “the Middle District of Louisiana and other courts in
the same Texas district in which Ryan was decided have followed
Ryan, holding that the 2011 amendment makes these cases
removable.”6

Boudreaux v. Global Offshore Res., LLC, Civil

Action No. 14-2507, 2015 WL 419002, at *3-4 (W.D. La. Jan. 30,
2015) (collecting cases).

6

The Court was unable to find any district courts outside
of the Fifth Circuit that have agreed with the district court in
Ryan on this issue.
16

4.

The 2011 Amendments and the Ninth Circuit

To date, the Ninth Circuit has not addressed whether
the 2011 amendments to § 1441 allow for federal district courts
to assert original jurisdiction over all admiralty and maritime
claims.

Other district courts in the Ninth Circuit, however,

have closely considered and rejected the conclusions reached by
the district court in Ryan.7

In Coronel v. AK Victory, the

Western District of Washington stated:
. . . [T]hroughout the history of federal
admiralty jurisdiction – from the Judiciary Act of
1789 through Romero and up to the present – courts
have given no indication that maritime claims are
cognizable on the law side of federal courts
absent subject matter jurisdiction independent of
28 U.S.C. § 1333.
Turning to Plaintiff’s claims, Section
1441(a) only permits removal of civil actions of
which the district courts have “original
jurisdiction.” 28 U.S.C. § 1441(a). By
definition, a party cannot bring a claim in
admiralty in state court. See Barker [v. Hercules
Offshore, Inc.], 713 F.3d [208,] 222 [(5th Cir.
2013)] (“[A]dmiralty jurisdiction is not present
in this suit because Barker filed in state court,
therefore invoking the saving-to-suitors exception
to original admiralty jurisdiction.”); Linton v.

7

This district court has not squarely addressed this
matter. In Unterberg v. Exxon Mobil Corp., this district court
observed that, after the 2011 amendments to § 1441(b), “some
district courts have concluded that defendants may now remove
admiralty or maritime claims (despite the saving to suitor’s
clause) based on a federal court’s ‘original jurisdiction.’”
2014 A.M.C. 1950, 1957-58 (D. Hawai`i 2014) (citations omitted).
The district court in Unterberg concluded that it did not need to
address the issue because the case concerned 28 U.S.C. § 1445(a),
which was clearly not altered by the 2011 amendments. Id. at
1958.
17

Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1487
(5th Cir. 1992) (“Because admiralty jurisdiction
is exclusively federal, a true ‘admiralty’ claim
is never cognizable in state court.”)[.] As such,
Plaintiff’s claims for unseaworthiness,
maintenance, cure, and lost wages filed in
Washington state court are necessarily brought at
law, not in admiralty.
But this court would not have had original
jurisdiction over these claims at law had they
initially been filed in federal court. As
discussed above, 28 U.S.C. § 1333 alone does not
provide federal subject matter jurisdiction over
maritime claims on the law side of the court.
See Romero, 358 U.S. at 369, 79 S. Ct. 468; Ghotra
by Ghotra [v. Bandila Shipping, Inc.], 113 F.3d
[1050,] 1054-55 [(9th Cir. 1997)]; Queen Victoria
[Corp. v. Ins. Specialists of Haw., Inc.], 694 F.
Supp. [1480,] 1483 [(D. Haw. 1988)]. The mere
fact that these claims implicate general maritime
law does not establish federal question
jurisdiction under 28 U.S.C. § 1331. Romero, 358
U.S. at 386, 79 S. Ct. 468.
1 F. Supp. 3d at 1187 (some alterations in Coronel).

The

District of Alaska reached a similar conclusion:
This Court recognizes that the 2011
amendments to 28 U.S.C. § 1441 removed language
which required diversity for removal of claims not
based in federal law. However, while the amended
§ 1441 may have removed restrictive conditions,
removal based on admiralty jurisdiction is still
limited by the statutory grant of original
jurisdiction in 28 U.S.C. § 1333. “‘The threshold
requirement for removal under 28 U.S.C. § 1441 is
a finding that the complaint contains a cause of
action that is within the original jurisdiction of
the district court.’” [Hunter v. Philip Morris
USA, 582 F.3d 1039, 1043 (9th Cir. 2009) (quoting
Ansley v. Ameriquest Mortgage Co., 340 F.3d 858,
861 (9th Cir. 2003)).] The Court finds the
“saving to suitors” clause in the grant of
original jurisdiction under 28 U.S.C. § 1333 to be
dispositive in this matter.

18

Bartman v. Burrece, No. 3:14-CV-0080-RRB, 2014 WL 4096226, at *3
(D. Alaska Aug. 18, 2014) (footnote omitted).
In short, the “saving to suitors” clause reinforces the
tenet that the plaintiff has the right to choose the remedies
sought in the lawsuit.

The Court agrees with the other district

courts in the Ninth Circuit, and CONCLUDES that, even considering
the 2011 amendments to § 1441, common law maritime claims are not
removable to federal district court absent separate grounds for
jurisdiction.
5.

Related Cases in this District Court

Bartunek also argues that, “the very fact that 2 out of
the 3 cases arising out of the same diving excursion are before
this Court reconfirms that this Court has ‘original’ jurisdiction
of this case.”

[Mem. in Opp. at 3.]

The Court does not dispute

that Plaintiff could have filed her case in federal court based
on diversity jurisdiction.

Plaintiff, however, chose to file her

case in state court and take advantage of the forum defendant
rule.

While Bartunek repeatedly cites to two other cases before

this district court that arise from the same series of events as
somehow bestowing the Court with jurisdiction over this case, he
does not cite any authority to support his position, and the
Court does not know of any.

As the district court in Coronel

explained:
Of course, this court could have exercised
original jurisdiction over Plaintiff’s claims in
19

admiralty had they been so filed. See 28 U.S.C.
§ 1333 (2012). The argument can be made that
therefore Plaintiff’s claims are now removable to
the admiralty side of the court. However, such a
result would vitiate the saving to suitors clause,
which saves to plaintiffs the ability to proceed
on their claims at law, instead of in admiralty.
See Lewis, 531 U.S. at 445, 121 S. Ct. 993;
Wilmington Trust [v. U.S. Dist. Court for Dist. of
Hawaii], 934 F.2d [1026,] 1029 [(9th Cir. 1991)].
Not only would removal interfere with the balance
of judicial power between federal and state courts
upheld in Romero, but it would deprive the
plaintiff of his long-recognized choice of
remedies, including, potentially, his right to a
jury trial. See J.J. Ryan & Sons [Inc. v. Cont’l
Ins. Co.], 369 F. Supp. [692,] 696 [(D.S.C.
1974)]; Ghotra by Ghotra, 113 F.3d at 1055-56.
1 F. Supp. 3d at 1188 (footnote omitted).
The Court CONCLUDES that it does not have original
jurisdiction over the instant matter.

In addition, the Court has

already concluded that it does not have jurisdiction over this
matter based on diversity of citizenship.

Because Defendants

have not provided any sufficient basis for jurisdiction, the
Motion is HEREBY GRANTED.
D.

Payment of Costs and Expenses under § 1447(c)
Plaintiff argues that he is entitled to the costs of

filing the Motion because Bartunek “had no objectively proper
basis for removing in the first place.”8
Motion at 20.]

[Mem. in Supp. of

He argues that Bartunek improperly removed the

8

Bartunek argues that Plaintiff is not entitled to Fed. R.
Civ. P. 11 sanctions. See Mem. in Opp. at 9-12. Plaintiff,
however, seeks costs and expenses pursuant to § 1447(c), not Rule
11.
20

case without unanimous consent from all of the parties and in
violation of the forum defendant rule, and he filed the
Supplemental Statement stating his position that the Court had
original jurisdiction over Plaintiff’s common law maritime claim
even after a series of emails between Plaintiff’s counsel and
others informed him that this was not true.

[Id. at 16-20.]

This district court has considered when a court should
award attorneys’ fees if it remands a case back to a state court:
When a federal court remands a case, it “may
require payment of just costs and any actual
expenses, including attorney fees, incurred as a
result of the removal.” 28 U.S.C. § 1447(c). The
United States Supreme Court has stated that:
“Absent unusual circumstances, courts may award
attorney’s fees under § 1447(c) only where the
removing party lacked an objectively reasonable
basis for seeking removal. Conversely, when an
objectively reasonable basis exists, fees should
be denied.” Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005) (citations omitted). The
district court retains discretion to determine
whether a given case presents unusual
circumstances that warrant a departure from this
rule. Id. The Martin Court also instructed that
The appropriate test for awarding fees under
§ 1447(c) should recognize the desire to
deter removals sought for the purpose of
prolonging litigation and imposing costs on
the opposing party, while not undermining
Congress’ basic decision to afford defendants
a right to remove as a general matter, when
the statutory criteria are satisfied.
Id. at 140.
US Bank Nat’l Ass’n v. Taylor, No. CV 15-00018 DKW-KSC, 2015 WL
1057119, at *3-4 (D. Hawai`i Mar. 10, 2015); see also Martin v.

21

Hawaiian Airlines, Inc., No. CV 15-00044 SOM-RLP, 2015 WL
1823010, at *1 (D. Hawai`i Apr. 21, 2015) (“On remand, a court
‘may require payment of just costs and any actual expenses,
including attorney’s fees, incurred as a result of the removal,’
see 28 U.S.C. § 1447(c), if the removing party had no
‘objectively reasonable basis for removal.’” (citing Patel v. Del
Taco, Inc., 446 F.3d 996, 999 (9th Cir. 2006))).
Here, it cannot be said that Bartunek “lacked an
objectively reasonable basis for seeking removal.”

See U.S. Bank

Nat’l Ass’n, 2015 WL 1057119, at *3 (citation and internal
quotation marks omitted).

Bartunek sought removal based on

diversity, which, given the forum defendant rule, was not proper
in the instant matter.

However, Bartunek also sought to remove

the case based upon maritime jurisdiction and recent changes to
the removal statute itself.

While the Court has concluded that

these changes do not allow for removal of common law maritime
claims absent a separate basis for jurisdiction, other district
courts have found otherwise.

Further, neither the Ninth Circuit

nor the Supreme Court have addressed this issue.

The Court

cannot say that the Notice of Removal lacked any reasonable
basis.

Plaintiff’s request for costs and expenses sought

pursuant to § 1447(c) is therefore DENIED.

22

CONCLUSION
On the basis of the foregoing, Plaintiff Jennifer
Barglowski’s 28 U.S.C. 1447(c) Verified Motion to Remand to
Second Circuit Court, State of Hawaii, filed on May 31, 2016, is
HEREBY GRANTED IN PART AND DENIED IN PART.

The Court HEREBY

REMANDS this action to the State of Hawai`i Second Circuit Court.
The Court DIRECTS the Clerk’s Office to transmit a certified copy
of this order to the clerk of the Second Circuit.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 20, 2016.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JENNIFER BARGLOWSKI VS. NEALCO INTERNATIONAL LLC, ET AL.; CIVIL
16-00209 LEK-KSC; ORDER GRANTING IN PART AND DENYING IN PART
PLAINTIFF’S 28 U.S.C. 1447(C) VERIFIED MOTION TO REMAND TO SECOND
CIRCUIT COURT, STATE OF HAWAII

23