Barry v. Shell Oil Company et al
Filing
21
ORDER granting 12 Motion to Remand to State Court. Signed by Judge Jay C. Zainey on 2/24/14. (Attachments: # 1 Letter) (jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BLANE BARRY
CIVIL ACTION
VERSUS
NO: 13-6133
SHELL OIL COMPANY, ET AL.
SECTION: "A" (3)
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 12) filed by
Plaintiff Blane Barry.
Defendants Arctia Offshore, Ltd.; Shell Oil
Company; and Shell Offshore, Inc. oppose the motion.
The motion,
set for hearing on December 4, 2013, is before the Court on the
briefs without oral argument. For the reasons that follow, the
motion is GRANTED.
I. Background
This case arises from injuries that occurred while Plaintiff
was working on the M/V NORDICA, a vessel owned, operated, and/or
managed by Defendants.
Plaintiff filed suit in state court,
asserting claims against Defendants under the general maritime law
of the United States.
Plaintiff's state court complaint included
a request for a trial by jury on all claims.
After being served
with the lawsuit, Defendant Arctia Offshore, Ltd. removed the case
to federal district court.
Plaintiff now moves to have the case
remanded to state court, arguing that general maritime claims
1
against non-diverse defendants are not removable under the saving
to suitors clause.
II. Analysis
Under 28 U.S.C. § 1441(a), any civil action over which the
federal district court has original jurisdiction is removable,
unless otherwise specified by an Act of Congress.
The removing
party has the burden of establishing the existence of federal
jurisdiction.1 The removal statute is "to be strictly construed and
any doubt as to the propriety of removal should be resolved in favor
of remand."2
Pursuant to 28 U.S.C. § 1333, 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."3
Despite federal
district courts' original jurisdiction over these claims, the Fifth
Circuit has consistently held that maritime claims saved to suitors
are, of themselves, not removable due to § 1441(b), serving as an
1
Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th
Cir. 1992) (citing B., Inc. v. Miller Brewing Co., 63 F.2d 545
(5th Cir. 1981)).
2
In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007)
(citing Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 366 (5th Cir. 1995); Acuna v. Brown & Root Inc., 200 F.3d
335, 339 (5th Cir. 2000)).
3
28 U.S.C. § 1333 (2012).
2
Act of Congress that barred the removal of such claims.4
In
December 2011, § 1441 was amended, giving rise to the dispute of
whether the amendment made maritime claims removable.
The former version of § 1441, in pertinent part, stated the
following:
§ 1441. Actions removable generally
(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.5
Under the former version of the removal statute, the Fifth
Circuit viewed § 1441(b) as limiting the removal of maritime claims.
The Fifth Circuit routinely held that maritime claims did not
"aris[e] under the Constitution, treaties or laws of the United
States" and thus, fell within the category of "[a]ny other [civil]
4
In re Dutile, 935 F.2d 61, 62-3 (5th Cir. 1991).
5
28 U.S.C. § 1441 (2006) (amended 2012).
3
action."6
As such, these claims, in the absence of additional
claims providing a basis for federal jurisdiction, were removable
only if none of the defendants to the suit were citizens of the
state in which the action was brought.7
After the amendment to § 1441, the new and current version of
the removal statute, in pertinent part, states the following:
§ 1441. Actions removable generally
(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 as defendants is a
citizen of the State in which such action is brought.8
The 2011 amendment to § 1441 disposed of certain language from
the
former
version
of
§
1441(b)
that
the
Fifth
Circuit
had
historically relied on to limit the removal of maritime claims. The
6
Dutile, 935 F.2d at 63 (quoting 28 U.S.C. § 1441 (2006)
(amended 2012)).
7
Id.
8
28 U.S.C. § 1441 (2012).
4
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]."
explicitly
pertains
only
to
removals
Instead, § 1441(b) now
based
on
diversity
jurisdiction.
Since the amendment to § 1441, some district courts have held
that maritime claims are now removable solely on the basis of the
federal district courts' original jurisdiction over such matters.9
These courts recognize the Fifth Circuit's reliance on the former
language of § 1441(b) as the Act of Congress that precluded the
removal of maritime claims.
These courts reason that since this
language has been removed, "nothing in § 1441 or any other Act of
Congress prevents removal of general maritime claims."10
The Fifth Circuit has yet to directly rule on whether or to
what extent the amendment to § 1441 affects the removal of maritime
claims.
The issue now before the Court is whether the current
version of § 1441 allows the removal of Plaintiff's general maritime
claims in this case.
As previously mentioned, the admiralty jurisdictional statute
9
See Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772
(S.D. Tex. 2013); Wells v. Abe's Boat Rentals Inc., No. 13-1112,
2013 WL 3110322 (S.D. Tex. June 18, 2013); Bridges v. Phillips 66
Co., No. 13-477, 2013 WL 6092803 (M.D. La. Nov. 19, 2013);
Carrigan v. M/V AMC AMBASSADOR, No. 13-3208, 2014 WL 358353 (S.D.
Tex. Jan. 31, 2014).
10
Bridges, 2013 WL 6092803, at *4.
5
found in § 1333 gives district courts original jurisdiction over
civil cases of admiralty jurisdiction, but "sav[es] to suitors in
all
cases
all
entitled."11
other
remedies
to
which
they
are
otherwise
This has been referred to as maritime law's "saving to
suitors" clause.
The 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."12
While
the
second
part
of
that
statement has arguably been called into question by the amendment
to
§
1441,
the
Court
does
not
find
it
necessary
to
make
a
determination on that issue in ruling on the instant motion.
Plaintiff has requested a trial by jury in this matter.
The
Supreme Court has stated that "[t]rial by jury is an obvious, but
not exclusive, example of the remedies available to suitors" under
the saving to suitors clause.13
11
Defendants argue that this case
28 U.S.C. § 1333 (2012).
12
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th
Cir. 2013) (citing Romero v. Int'l Terminal Operating Co., 358
U.S. 354, 377-79 (1959); Dutile, 935 F.2d at 63).
13
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454-55
(2001) (citing Lake Tankers Corp. v. Henn, 354 U.S. 147, 153
(1957); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 12325 (1924)).
6
should
be
removed
based
on
this
Court's
original
admiralty
jurisdiction; however, "[o]ne of the historical procedures unique
to admiralty is that a suit in admiralty does not carry with it the
right to a jury trial."14
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.
The Fifth Circuit has stated that the saving to suitors clause
"does no more than preserve the right of maritime suitors to pursue
nonmaritime remedies."15
"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."16
When
actions
are
removed
pursuant
to
federal
question
jurisdiction17 and/or federal diversity jurisdiction,18 the maritime
plaintiff retains the right to demand a jury trial in federal
14
Luera v. M/V Alberta, 635 F.3d 181, 188 (5th Cir. 2011)
(citing Waring v. Clarke, 46 U.S. 441, 460 (1847)).
15
Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d
150, 153 (5th Cir. 1996).
16
Id. (citing Poirrier v. Nicklos Drilling Co., 648 F.2d
1063, 1066 (5th Cir. 1981)).
17
28 U.S.C. § 1331 (2012).
18
28 U.S.C. § 1332 (2012).
7
district court.19
But since 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.
In sum, the saving to suitors clause, found in § 1333, is an
Act of Congress that prohibits the removal of the general maritime
claims in this case, pursuant to § 1441(a).
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 12) filed
by Plaintiff Blane Barry is hereby GRANTED.
This 24th day of February, 2014.
______________________________
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
19
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438 (2001).
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?