Lewis et al v. Foster et al

Filing 33

MEMORANDUM OPINION AND ORDER; 1)The 9 10 and 11 Motions to Remand to State Court are GRANTED; 2)Case is remanded to the Mason County Circuit Court and stricken from this Court's docket. Signed by Judge David L. Bunning on 9/5/2018. (LST)cc: COR, Mason County Circuit Court

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 18-60-DLB-CJS
ROGER LEWIS & CAROL MARTIN
v.

PLAINTIFFS

MEMORANDUM OPINION AND ORDER

JUSTIN FOSTER, ET AL.
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I.

DEFENDANTS
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INTRODUCTION
This matter is before the Court upon three Motions to Remand (Docs. # 9, 10, and

11), seeking to have this action remanded to the Mason County Circuit Court. The
motions are fully briefed (Docs. # 15, 17, 19, and 22) and ripe for review. For the reasons
stated herein, those Motions are granted and this action is remanded to the Mason
County Circuit Court.
Plaintiffs Roger Lewis and Carol Martin (“Plaintiffs”) and Defendants Justin Foster
(“Foster”) and the Estate of Ronald Parker (“the Estate”) seek remand of this action to the
Mason County Circuit Court. (Docs. # 9, 10, and 11). On April 13, 2018, Defendant
Eliminator Custom Boats, Inc. (“Eliminator”), with the consent of Brunswick Corporation
d/b/a Mercury Racing Inc. (“Brunswick”) and Fat Boy’s Dream LLC (“Fat Boy”), as well as
the alleged consent of Foster, filed a timely notice of removal on the basis of admiralty
jurisdiction. (Doc. # 1).

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II.

FACTUAL AND PROCEDURAL HISTORY
This case arises out of a boating accident that occurred on the Ohio River on

August 19, 2017. (Doc. # 15 at 2). On that day, Defendant Justin Foster was operating
an Eliminator Pleasure Craft (speed boat) on the Ohio River near Maysville, KY and the
William Harsha Bridge, with Foster’s stepfather (Ronald Parker) as a passenger. Id.;
(Doc. # 1-1 at 10). Based on the facts alleged, it is assumed that Foster was participating
in a speed boat race sponsored by Defendant Fat Boy at the time of the accident, but this
is not explicitly stated in the record. Id. at 10.
Plaintiffs Roger Lewis and Carol Martin were operating a Monark pontoon boat in
the same area of the Ohio River on that day. (Doc. # 15 at 2). Plaintiffs allege that while
operating his speed boat, Foster lost control of the vessel. (Doc. # 1-1 at 38). This loss
of control caused Foster, Parker, and the other occupants to be ejected from the speed
boat; Parker subsequently died as a result of the accident. Id. The speed boat then ran
over Lewis’s pontoon boat. Id. The collision caused Lewis to be ejected from the pontoon
boat, and the propeller of the speed boat severely injured Lewis’s right leg. Id. As a result
of the accident, Lewis had part of his right leg amputated; Lewis’s passenger, Martin, has
allegedly suffered from Post Traumatic Stress Disorder following the collision. Id. at 10,
12.
Plaintiffs Lewis and Martin initiated this action on February 7, 2018 in Mason
County Circuit Court. (Doc. # 9 at 3). Plaintiffs allege claims of negligence against Foster,
Eliminator, Brunswick, the Estate, and Fat Boy. Plaintiffs also brought products-liability
claims against Eliminator and Brunswick; Eliminator was the manufacturer of the speed
boat Foster was driving, and Brunswick manufactured the stern drive on the speed boat,

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both of which are alleged to have been defective. (Doc. # 1-1 at 15-21).

Additionally,

Plaintiffs seek punitive damages from Foster, Eliminator, and Brunswick. (Doc. # 1-1 at
13-15, 21-23). Multiple crossclaims and counterclaims have also been filed. (Doc. # 1-1
at 84-89, 142-44). The Estate brought product-liability crossclaims against Eliminator and
Brunswick, as well as negligence claims against Foster and Fat Boy.

(Doc. # 1-1, 84-

89). Brunswick brought a counterclaim against the Estate seeking contribution and
indemnity. (Doc. # 142-144). On April 13, 2018, Eliminator removed this case to the
Eastern District of Kentucky through filing a Notice of Removal. (Doc. # 1). Shortly
thereafter, the Plaintiffs, the Estate, and Foster filed the pending Motions to Remand,
arguing that the case was improperly removed, and the rule of unanimity was violated by
removal. (Docs. # 9, 10, and 11).
III.

ANALYSIS
A. Standard of Review
A defendant may, “[e]xcept as otherwise expressly provided by Act of Congress,”

seek to remove “any civil action brought in a State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C. § 1441(a). All defendants who have
been joined or served in the action must join in the removal or consent to removal, in
order for removal to be proper. Harper v. Autoalliance Int’l, Inc., 392 F.3d 195, 201 (6th
Cir. 2004).1 Parties contesting removal on the grounds of subject-matter jurisdiction may
file a motion to remand at any time following the notice of removal. 28 U.S.C. § 1447(c).

Given that the jurisdictional question is dispositive in this case, the parties’ arguments
regarding unanimity are irrelevant.
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“The party seeking removal bears the burden of establishing its right thereto.” Her
Majesty the Queen in Right of the Province of Ont. v. City of Detroit (Her Majesty), 874
F.2d 332, 339 (6th Cir. 1989). More specifically, the removing party bears the burden of
establishing federal jurisdiction. Eastman v. Marine Mech. Corp., 438 F.3d 544, 549 (6th
Cir. 2006). Thus, “the removal petition is to be strictly construed,” Her Majesty, 874 F.2d
at 339, and “all doubts as to the propriety of removal are resolved in favor of remand.”
Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).
B. Removability of Plaintiffs’ Claims
Federal district courts have jurisdiction over admiralty cases pursuant to 28 U.S.C.
§ 1333(1); specifically, district courts have original, exclusive 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.”2

28 U.S.C. § 1333(1).

This jurisdiction was

originally given to federal courts through Section 9 of the First Judiciary Act. Romero v.
Int’l Terminal Operating Co., 358 U.S. 354, 361 (1959).

Federal jurisdiction over

admiralty claims is only exclusive, however, with respect to in rem claims (“that is, [claims]
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 Cty., 346 U.S. 556, 560-61 (1954).
States also play a role in adjudicating admiralty issues. Romero, 358 U.S. at 361.
“Section 9…recognized that some remedies in matters maritime had been traditionally
administered by the common law courts of the original states. This role of the States in

While the meaning of the “saving to suitors” clause is “by no means an intuitive matter,”
its essential function is to maintain a role for states in the adjudication of some maritime matters.
In re Chimenti, 79 F.3d 534, 537 (6th Cir. 1996).
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the administration of maritime law was preserved in the famous ‘savings [to suitors]
clause.’” Id. This clause has been interpreted to mean that states are ‘“competent to
adjudicate maritime causes of action 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 560-61 (citing Rounds v. Cloverport Foundry & Mach. Co., 237 U.S. 303, 308
(1915)). It follows that state courts have been held to have concurrent jurisdiction with
federal courts over in personam admiralty claims. In re Chimenti, 79 F.3d at 537. Both
the Supreme Court and Sixth Circuit have reiterated that the interpretation of § 1333, and
specifically the “saving to suitors” clause, in this way preserves the important purpose of
allowing plaintiffs to choose a forum. Id. Therefore, the instant case—a suit arising from
a maritime accident and seeking relief from people and corporations—is in personam,
and a state court is competent to hear this case.
The issue before this court, however, is not whether this case was properly brought
in state court. Rather, the question posed is whether the properly filed in personam
admiralty suit is removable to federal court. Precedent from this Circuit and guidance
from the Supreme Court suggests that it is not, unless there are independent grounds for
federal jurisdiction, such as diversity of citizenship. See Romero, 358 U.S. at 362-372;
see also In re Chimenti, 79 F.3d at 537. Specifically, the Sixth Circuit has approvingly
noted that “[c]ourts have consistently interpreted the ‘savings clause’ to preclude removal
of maritime actions brought in state court and invoking a state law remedy, provided that
there is no independent federal basis for removal, such as diversity jurisdiction.” Id.
Eliminator suggests that a 2011 amendment to the removal statute, 28 U.S.C. §
1441, alters the steady course of case law finding in personam cases are not removable

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absent independent jurisdictional grounds.

(Doc. # 15 at 4-6).

The amendments

eliminated a distinction drawn in § 1441(b) between federal question cases and all other
cases; the current § 1441(b) only discusses diversity of citizenship cases. 28 U.S.C. §
1441(b) (2006) (amended 2011); 28 U.S.C. § 1441(b) (2018). Prior to the Federal Courts
Jurisdiction and Venue Clarification Act of 2011 (“FCJVCA”), which amended the removal
statute, it read:
(a) Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts 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) Any civil action of which the district courts have original
jurisdiction founded on a claim of 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 (2006) (emphasis added to indicate the distinction drawn between
federal question claims and all other claims).
The statute now reads:
(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.
(b) … (2) A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title [diversity of
citizenship jurisdiction] 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 (2018) (emphasis added to indicate that the current statute only

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references diversity of citizenship claims).
Enterprise and other litigants have argued that the previous language of § 1441(b),
and particularly the requirement that “any other such action” could be removed to federal
court only on the basis of diversity of citizenship jurisdiction, provided the limiting “Act of
Congress” (referenced in 1441(a)) which precluded removal of admiralty cases. See,
e.g., Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772, 776-78 (S.D. Tex. 2013).
More specifically, the previous version of the statute drew a distinction between cases
covered by federal-question jurisdiction, and all other cases. 28 U.S.C. § 1441(b) (2006).
Admiralty cases are not brought into federal court under federal-question jurisdiction, and
therefore admiralty claims fell under the “any other such action” language of 1441(b).
Romero, 359 U.S. at 378-79; 28 U.S.C. § 1441(b) (2006).

Based on this, it was

understood that § 1441(b) allowed for the removal of admiralty cases only when there
was complete diversity among the parties. See Ryan, 945 F.Supp.2d at 776.
The current version of § 1441(b) no longer draws a distinction between federalquestion jurisdiction cases and all other cases; instead, § 1441(b) now refers only to
cases relying on diversity of citizenship for federal jurisdiction. Id. at 776-78. Defendants
take this change to mean that all cases may be removed under § 1441(a), with diversity
cases’ removability limited by § 1441(b). Id. at 777-78. In other words, Defendants ask
this Court to find that all non-diversity admiralty cases are properly removable under §
1441(a), as there is no “Act of Congress” limiting removal of cases other than diversity
cases. Id.; see also Gregoire v. Enter. Marine Servs, LLC, 38 F. Supp. 3d 749, 763 (E.D.
La. 2014) (explaining Ryan and citing other cases following its approach).

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While this interpretation may be plausible on plain reading of the statutes, this
reading fails to consider the rich context and history of admiralty law, as well as the
purpose of the FCJVCA which amended § 1441(b). H.R. Rep. No. 112-10, at 1-2 (2011).
Examination of FCJVCA’s legislative history shows that its purpose was to clarify
jurisdictional issues so parties could more easily identify the appropriate court in which to
bring a claim. Id. Nothing in the explanation of the amendments, however, suggests an
intent to enact a significant change to removal proceedings or to expand federal
jurisdiction in the way Defendants suggested. In re Foss Maritime Co., 29 F. Supp. 3d.
955, 960 (W.D. Ky. 2014); see also, Gregoire, 38 F. Supp. 3d at 763. Although some
courts have been persuaded by arguments similar to Defendant’s, this Court is not
convinced. As the Western District of Kentucky has explained, “[d]efendants…contend[
] that the slight grammatical changes made by the FCJVCA abrogate the doctrine of
concurrent jurisdiction … No Sixth Circuit authority supports the sweeping reading of the
2011 Amendments articulated by Ryan and advanced by its progeny.” 3 Id. at 559-60.
Additionally, the aforementioned reading of the amended § 1441 ignores the
context of admiralty law, and in particular, the purpose of the “saving to suitors” clause
and the intent to ensure plaintiffs can choose the forum for their litigation. “This so-called

The Western District of Kentucky is not alone. Other district courts have similarly held that
“it is precisely ‘the statutory grant of admiralty jurisdiction, 28 U.S.C. § 1333, and more than 200
years of precedent interpreting this grant’ rather than the 2011 amendment to the removal statute
that determine … removability.” Gregoire, 38 F. Supp. 3d at 754 (collecting cases rejecting the
Southern District of Texas’s approach in Ryan). In fact, in a later case that raised the “saving to
suitors” clause, the Southern District of Texas stepped back from Ryan and held that “the
amendments to the removal statute do not impact the historical bar on removal of maritime claims
filed at law in state court … when a maritime claim is filed in state court under the Savings to
Suitors Clause, it is transformed into a case at law, as opposed to admiralty … thus [the federal
district courts] do not have original jurisdiction.” Sanders v. Cambrian Consultants (CC) Am., Inc.,
132 F. Supp. 3d 853, 858 (S.D. Tex. 2015).
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saving-to-suitors clause effectively provides a plaintiff who has an in personam claim the
choice of proceeding in an ordinary non-removable civil action in a state or federal court
[under diversity jurisdiction], rather than bringing a libel in admiralty in federal court.” 14A
Federal Practice and Procedure § 3672 (4th ed. 2018). As noted by the Sixth Circuit, the
purpose of the clause was to provide litigants with a choice of forum. In re Chimenti¸ 79
F.3d at 537.
This choice between bringing a common-law suit in state court or federal court, or
an admiralty suit in federal court is important because the “remedies available in suits
brought in admiralty versus those brought ‘at law’ differ.” Gregoire, 38 F. Supp. 3d at
756-57. One such difference is the opportunity for a jury trial at common law, “a remedy
generally unavailable to suits in admiralty.” Id. at 557. Moreover, different procedures
and rules govern admiralty cases. Id. Allowing all non-diversity admiralty cases to be
removed to federal court, as suggested by the Ryan Court’s interpretation of § 1441,
would deprive litigants of their choice of forum and strip litigants’ “right to pursue [their]
nonmaritime remedy—that is, a jury trial.” In re Foss Maritime Co., 29 F. Supp. 3d at 960.
Without a strong indication that Congress intended the 2011 amendments to effect such
drastic change, and recognizing the importance of choice of forum, coupled with the
history and purposes of admiralty law and the “saving to suitors” clause, the Court
declines to do so.
IV.

CONCLUSION
Accordingly, for the reasons articulated herein, IT IS HEREBY ORDERED as

follows:
(1) The Motions to Remand (Docs. # 9, 10, and 11) are GRANTED; and

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(2) This case is remanded to the Mason County Circuit Court, and stricken from
this Court’s docket.
This 5th day of September, 2018.

K:\DATA\ORDERS\Cov18\18-60 Remand MOO.docx

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