Jefferson Parish v. Equitable Petroleum Corporation et al

Filing 63

ORDER REMANDING CASE TO STATE COURT as set forth in document. Signed by Chief Judge Sarah S. Vance on 5/18/2015.(mmm) (Additional attachment(s) added on 5/18/2015: # 1 Remand Letter) (mmm).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JEFFERSON PARISH

CIVIL ACTION

VERSUS

NO: 13-6714

EQUITABLE PETROLEUM CORP., ET AL.

SECTION: R

ORDER
Before the Court is a Motion to Remand filed by plaintiff,
Jefferson Parish, on its own behalf and on behalf of the State of
Louisiana.1

Because

the

Court

finds

that

subject-matter

jurisdiction is lacking, plaintiff's motion to remand is GRANTED
and the Court hereby remands this matter to the 24th Judicial
District Court for the Parish of Jefferson, State of Louisiana.

I.

Background
This case is one of several cases filed by the Parish of

Jefferson against various defendants for alleged violations of
permits

issued

under

the

State

and

Local

Coastal

Resources

Management Act of 1978, La. R.S. § 49:214.21, et seq., along with
the state and local regulations, guidelines, ordinances, and orders
promulgated thereunder ("CZM laws").

Jefferson Parish initiated

the instant suit in the 24th Judicial District Court for the Parish

1

R. Doc. 21.

of

Jefferson

against

defendants.2

thirteen

Three

of

these

defendants are Louisiana companies: Graham Exploration, Ltd.,
Equitable Petroleum Corp., and Baby Oil, Inc.3

Additionally, in

its state-court petition, plaintiff disavows any other type of
claim, cause of action, or legal theory potentially cognizable on
the facts alleged, including any claim that could form the basis
for jurisdiction in federal court.4
Defendants

nevertheless

removed

the

case

to

this

Court

alleging three bases for federal subject-matter jurisdiction: (1)
diversity jurisdiction; (2) the Outer Continental Shelf Lands Act
("OCSLA"); and (3) general maritime law.5
to remand.6
deferring

its

Plaintiff filed a motion

On February 26, 2014, the Court issued an order
ruling

on

the

motion

to

remand

and

staying

proceedings until another section of this Court resolved a motion

2

These defendants are: Equitable Petroleum Corp., Exxon
Mobil Corp., Graham Exploration Ltd., BEPCO, L.P., Chevron U.S.A
Holdings, Inc., Chevron U.S.A. Inc., Vintage Petroleum, LLC, Baby
Oil, Inc., Shell Oil Co., Union Oil Co. of California, Chevron
Pipe Line Co., Louisiana Land and Exploration Co., LLC, and Texas
Co.
3

R. Doc. 31 at 3.

4

R. Doc. 1-1

at 16-20.

5

In its notice of removal, defendants cited the Natural Gas
Act and the Class Action Fairness Act as additional bases for
federal jurisdiction. In their opposition to plaintiff's motion
to remand, however, defendants abandon these grounds for federal
jurisdiction. R. Doc. 31 at 2 n.1.
6

R. Doc. 21.
2

to remand presenting substantially identical issues.7
On December 1, 2014, Judge Zainey issued a decision remanding
Parish of Plaquemines v. Total Petrochemical & Refining USA, Inc.,
et al. ("Total") to state court.8

After a thorough analysis, Judge

Zainey determined that he lacked diversity jurisdiction, as well as
OCSLA,

admiralty,

and

federal

question

jurisdiction

over

substantially identical claims as those brought by plaintiff in
this case.

Shortly thereafter, the Court granted the parties'

joint motion to file supplemental memoranda and directed the
parties to brief the issue of the applicability of Judge Zainey's
order in Total to the specific facts of this case.9

In their

supplemental briefing, defendants do not distinguish the facts of
Total

from this case, but instead argue that Judge Zainey's

"analysis contradicts the governing authorities on the issues
presented."10

Defendants in several other sections of the Court

have taken a similar tack to no avail.

See Plaquemines Parish v.

Rozel Operating Co., et al., Civ. A. No. 13-6722 (E.D. La. Jan. 29,
2015) (Africk, J.); Jefferson Parish v. Anadarko E&P Onshore LLC,
et al., Civ. A. No. 13-6701 (E.D. La. Mar. 9, 2015) (Lemelle, J.);

7

R. Doc. 27.

8

Total, Civ. A. No. 13-6693, 2014 WL 6750649 (E.D. La. Dec.
1, 2014).
9

10

R. Doc. 58.
R. Doc. 59.
3

Plaquemines Parish v. Hilcorp Energy Co., et al., Civ. A. No. 136727 (E.D. La. Apr. 29, 2015) (Feldman, J.); Plaquemines Parish v.
Devon Energy Prod. Co., et al., Civ. A. No. 13-6716 (E.D. La. May
12, 2015) (Barbier, J.).
As noted above, the facts and issues presented in this case
are substantially identical to the foregoing cases.

Plaintiff

asserts that defendants' activities associated with the development
of the Little Lake and Little Temple Oil & Gas Fields in Jefferson
Parish violated the CZM laws and that these violations caused
damage to land and water bodies located in Jefferson Parish.11

For

the purposes of resolving the instant motion, it is enough to note
that (1) plaintiff and at least one defendant are citizens of
Louisiana, (2) the conduct that is alleged to have violated the
permits at issue occurred within Jefferson Parish and not on the
Outer Continental Shelf, and (3) plaintiff disclaims any and all
claims other than state-law permit violation claims.12

II.

Legal Standard
Unless a federal statute expressly provides otherwise, a

defendant may remove a civil action filed in state court to federal
court if the federal court would have had original jurisdiction

11

R. Doc. Doc. 21-1 at 11.

12

Defendants do not contest any of these facts.
Doc. 59.
4

See R.

over the case.

28 U.S.C. § 1441(a).

The removing party "bears the

burden of showing that federal jurisdiction exists and that removal
was proper."

Mumfrey v. CVS Pharmacy, Inc., 719 F.3d 392, 397 (5th

Cir. 2013) (citing Manguno v. Prudential Prop. & Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002)).

In assessing whether removal was

appropriate, the Court is guided by the principle, grounded in
notions of comity and the recognition that federal courts are
courts of limited jurisdiction, that "removal statute[s] should be
strictly construed in favor of remand."

Manguno, 276 F.3d at 723

(citing Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir.
2000)).

III. Discussion
Defendants allege three separate grounds for subject matter
jurisdiction: (1) diversity jurisdiction; (2) jurisdiction under
OCSLA; and (3) general maritime jurisdiction.

The Court will

address each of these potential bases for jurisdiction in turn.
A.

Diversity Jurisdiction

For diversity jurisdiction to exist, the amount in controversy
must exceed $75,000, and there must be complete diversity between
plaintiffs and defendants.
Erection

Co.

v.

Kroger,

See 28 U.S.C. § 1332(a); Owen Equip. &
437

U.S.

365,

373

(1978).

When

a

nondiverse party is properly joined as a defendant, no defendant
may remove the case under 28 U.S.C. § 1332.

5

But a defendant may

remove despite the presence of a nondiverse defendant by showing
that

the

nondiverse

party

was

joined

fraudulently

due

to

plaintiff's inability to establish a claim under state law against
the nondiverse defendant or due to fraud in the pleading of
jurisdictional facts.

See, e.g., Melder v. Allstate Corp., 404

F.3d 328, 329 (5th Cir. 2005).
As was the case in Total, complete diversity of citizenship is
lacking on the face of plaintiff's complaint because at least two
of the defendants are citizens of Louisiana,13 and Jefferson Parish,
as a subdivision of the State of Louisiana, is considered a citizen
of Louisiana for jurisdictional purposes.
Cnty., 411 U.S. 693, 717 (1973).

See Moor v. Alameda

Defendants acknowledge the

presence of nondiverse codefendants, but argue that plaintiff
fraudulently joined these nondiverse defendants to defeat diversity
jurisdiction.14

Defendants, however, do not argue that plaintiff

cannot establish a claim against the nondiverse defendants or that
plaintiff fraudulently pleaded jurisdictional facts.

Instead,

defendants premise their fraudulent joinder argument on a principle

13

Defendants contend that one of the in-state defendants,
Graham Explorations, Ltd. was dissolved before this suit was
filed and, therefore, the Court should not consider Graham
Exploration's citizenship when determining whether diversity
jurisdiction exists. R. Doc. 31 at 5 n.3. The Court need not
address the issue as defendants do not dispute that two of the
other defendants, Equitable Petroleum and Baby Oil, are citizens
of Louisiana. Id.

6

first established in Tapscott v. MS Dealer Serv. Corp., 77 F.3d
1353 (11th Cir. 1996), abrogated on other grounds by Cohen v.
Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000).

In Tapscott,

the Eleventh Circuit recognized the possibility of fraudulent
joinder when a diverse defendant is joined with a nondiverse
defendant and the claim against the diverse defendant has no
rational connection to the claim against the nondiverse defendant.
Id. Under Tapscott, only "egregious" misjoinder of parties with no
real

connection

to

each

other,

constitutes fraudulent joinder.

and

not

"mere"

misjoinder,

Id. at 1360.

Although the Fifth Circuit has never expressly adopted the
Tapscott doctrine, several cases indicate this circuit's approval
of the Tapscott notion of fraudulent joinder.

In In re Benjamin

Moore & Co., 309 F.3d 296 (5th Cir. 2002), the Fifth Circuit stated
that a district court in its jurisdictional determination should
consider whether misjoinder of a nondiverse party can defeat
diversity jurisdiction.
1360).

Id. at 298 (citing Tapscott, 77 F.3d at

In a later petition for a writ of mandamus in that case,

the Fifth Circuit held that it did not have jurisdiction to issue
a writ and stated that its decision did not "detract[] from the
force of the Tapscott principle that fraudulent misjoinder of
plaintiffs is no more permissible than fraudulent misjoinder of
defendants to circumvent diversity jurisdiction."
Moore & Co., 318 F.3d 626, 630-31 (5th Cir. 2002).

7

In re Benjamin

Four years later, the Fifth Circuit appeared to recognize the
Tapscott principle in Crockett v. R.J. Reynolds Tobacco Co., 436
F.3d 529 (5th Cir. 2006). There, the Fifth Circuit determined that
federal

jurisdiction

over

removed

claims

against

a

diverse

defendant was proper, even though removal was precipitated by the
state court's severance of these claims from plaintiff's claims
against a nondiverse defendant over plaintiff's objection.
533.

Id. at

Plaintiff argued that the removal was improper because the

severance of the nondiverse defendants was not a voluntary act of
the plaintiff. The Fifth Circuit rejected plaintiff's argument and
confirmed that dismissal of a fraudulently joined claim was an
exception to the voluntary-involuntary rule.

Id.

The court then

held that even if the scenario before it did not satisfy the
criteria for traditional fraudulent joinder (i.e. fraud in the
pleading of jurisdictional facts or inability to establish a cause
of action against the in-state defendant), a like exception to the
voluntary-involuntary rule applied to the fraudulently joined
claims.

The Court further stated that "[t]he fraudulent joinder

exception to the voluntary-involuntary rule is designed to prevent
plaintiffs from blocking removal by joining nondiverse and/or instate defendants who should not be parties.

That salutary purpose

is also served by recognizing an exception to the voluntaryinvoluntary rule where defendants are improperly . . . joined."
Id.

In so holding, the court cited Tapscott by analogy.

8

Id. at

533 n.5.
Thus, because the Fifth Circuit appears to have endorsed this
principle and courts in the Eastern District of Louisiana have
consistently applied Tapscott, the Court finds that defendants may
argue that plaintiff fraudulently, or egregiously, joined the
nondiverse defendants in this case.

See, e.g., Fine v. State Farm

Fire and Cas. Co., Civ. A. No. 15-80, 2015 WL 1810138, at *2 (E.D.
La. Apr. 21, 2015) (applying Tapscott); Kahn Swick & Foti, LLC v.
Spector Roseman Kodroff & Willis, PC, Civ. A. No. 14-1979, at *3
(E.D. La. Dec. 12, 2014) (same); J.O.B. Investments, LLC v. Gootee
Serv., LLC, 908 F. Supp. 2d 771, 775-76 (E.D. La. 2012) (same).
In determining whether plaintiff's joinder of the nondiverse
defendants was fraudulent under Tapscott, the Court will apply
Louisiana's joinder rules.

See Davis v. Cassidy, Civ. A. No. 11-

1563, 2011 WL 6180054, at *3 (E.D. La. Dec. 13, 2011) ("As
plaintiff here brought her action in state court and was required
to follow state joinder rules in so doing, these state rules remain
the relevant ones to determine the propriety of joinder in the
Court's

analysis

of

whether

removal

to

federal

court

was

warranted."). As defined by the Louisiana Code of Civil Procedure,
"[c]umulation of actions is the joinder of separate actions in the
same judicial demand, whether by a single plaintiff against a
single defendant, or by one or more plaintiffs against one or more
defendants."

La. Code Civ. P. art. 461.

9

Article 463 provides the

rule governing joinder.

It states that parties may be joined in

the same suit if (1) there is a community of interest between the
joined parties, (2) the cumulated actions are within the court's
jurisdiction and venue is properly laid, and (3) the actions are
mutually consistent and employ the same form of procedure.

La.

Code Civ. Proc. art. 463.
Of these factors, defendants contest only the existence of a
community of interest. The Louisiana Supreme Court has stated that
a "community of interest" exists when "the parties' causes of
actions (or defenses) 'aris[e] out of the same facts, or present[]
the same factual and legal issues.'"

Stevens v. Bd. of Trustees of

Police Pension Fund of City of Shreveport, 309 So. 2d 144, 147 (La.
1975). In other words, a "community of interest is present between
different actions or parties[] where enough factual overlap is
present between the cases to make it commonsensical to litigate
them together."

Mauberret-Lavie v. Lavie, 850 So. 2d 1, 2 (La.

App. Ct. 4th Cir. 2003), writ denied, 861 So. 2d 569 (La. 2003).
The

Louisiana

community

of

Supreme
interest

Court

has

standard

further
should

be

instructed
applied

that

the

liberally.

Stevens, 309 So. 2d at 147.
Here, the Court finds that there is sufficient factual and
legal overlap between plaintiff's claims against the individual
defendants for common sense to suggest that the claims be litigated
together.

Plaintiff cumulated its claims against the thirteen

10

defendants based on the geographical and historical similarities
between the disputed permits and activities, as well as the
cumulative impact of the alleged permit violations.15

In other

words, all of plaintiff's claims are governed by the same body of
law (Louisiana's CZM laws and the permits issued thereunder),
relate to a particular, well-defined geographic area, involve
alleged

injuries

caused

by

similar

types

of

activities

(development of the two oil fields at issue), and allegedly caused
a

common,

indivisible

injury.

That

individual

defendant's

liability will turn on different permits issued to different
defendants

does

not

render

plaintiff's

claims

defendants "wholly distinct" from one another.
at 1360.

See also Lundquist v. J & J

against

the

Tapscott, 77 F.3d

Exterminating, Inc., Civ. A.

No. 07-1994, 2008 WL 1968339, at *4 (W.D. La. May 2, 2008) ("While
the cause of the damage may stem from different sources . . . the
overall damage itself is a quantifiable singular sum which may be
apportioned among the defendants according to their individual
responsibility for those damages."); Terrebonne Parish Sch. Bd. v.
Texaco, Inc., Civ. A. No. 98-0115, 1998 WL 160919, at *3 (E.D. La.
Apr. 3, 1998) (joinder of two companies who "independently drilled

15

The Court notes that plaintiff's claims here are more
tightly circumscribed than the plaintiff's claims in Total.
Here, plaintiff's claims relate to permits issued for two
oilfields covering approximately 25 square miles. R. Doc. 31 at
3. In Total, the claims related to permits issued for seven
different oilfields covering approximately 200 square miles.
Total, 2014 WL 6750649, at *6.
11

separate wells in separate canals at different times" did not
constitute fraudulent misjoinder because "[t]he marshland is of
such a porous nature that there is a considerable probability that
activities or construction in one area could affect the water level
and subsequent land erosion elsewhere").
In sum, the Court finds that plaintiff's applied a commonsense approach to cumulating its claims against the defendants and
further finds that defendants have failed to show that this
approach was "so egregious" as to constitute fraudulent misjoinder
under the Tapscott doctrine.

See Bright v. No Cuts, Inc., Civ. A.

No. 03-640, 2003 WL 22434232, at *9 (E.D. La. Oct. 27, 2003)
(noting

that

even

if

claims

were

improperly

cumulated

under

Louisiana law, mere misjoinder, rather than fraudulent misjoinder,
is more properly addressed in state court). Because the nondiverse
defendants were not fraudulently joined, the Court finds that it
lacks diversity jurisdiction.16
B.

OCSLA Jurisdiction

Defendants next argue that the Court has jurisdiction under
OCSLA.

The pertinent provision, OCSLA § 23(b)(1), states:

[T]he district courts of the United States shall have
jurisdiction of cases and controversies arising out of,
or in connection with . . . any operation conducted on
the outer Continental Shelf which involves exploration,
development, or production of the minerals, of the

16

Because the Court finds that the nondiverse defendants
are properly before the Court, the Court need not reach whether
the State of Louisiana is a real party of interest.
12

subsoil and seabed of the outer Continental Shelf, or
which involves rights to such minerals . . . .
The Fifth Circuit has interpreted this language as straightforward
and broad.

See Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 F.3d

150, 154 (5th Cir. 1996).

Moreover, because jurisdiction is

invested in the district courts by this statute, "[a] plaintiff
need not expressly invoke OCSLA in order for it to apply."

Barker

v. Hercules Offshore, Inc., 713 F.3d 208, 213 (5th Cir. 2013).

In

accordance with these principles, the Fifth Circuit has held that
a district court has jurisdiction under the OCSLA if "(1) the
activities
conducted

that
on

caused

the

the

outer

injury

Continental

constituted
Shelf

an

that

'operation'

involved

the

exploration and production of minerals, and (2) the case 'arises
out of, or in connection with' the operation."
HORIZON, 745 F.3d 157, 163 (5th Cir. 2014).

In re DEEPWATER

See also Barker, 713

F.3d at 213 ("To determine whether a cause of action arises under
OCSLA, the Fifth Circuit applies a but-for test, asking whether:
(1) the facts underlying the complaint occurred on the proper
situs; (2) the plaintiff's employment furthered mineral development
on the OCS; and (3) the plaintiff's injury would not have occurred
but for his employment.").

Although not defined in the statute,

the Fifth Circuit defines "operation" as "the doing of some
physical act on the OCS."

E.P. Operating P'ship v. Placid Oil Co.,

26 F.3d 563, 567 (5th Cir. 1994).
In the present case, the "operations" that allegedly caused
13

the injuries--the defendants' alleged violations of CZM permits in
Jefferson

Parish--do

Circuit's

test,

as

not
the

meet

the

defendants'

first

prong

alleged

of

permit

the

Fifth

violations

occurred in Jefferson Parish, not the Outer Continental Shelf.

In

other words, the activities that allegedly caused the injuries in
this case do not constitute "physical acts on the OCS."
Operating, 26 F.3d at 567.

E.P.

See also Bd. of Com'rs of the S.E. La.

Flood Prot. Auth.-E. v. Tenn. Gas Pipeline Co., 29 F. Supp. 3d 808,
836 (E.D. La. 2014) ("Considering that all of the activities
causing Plaintiffs' injuries occurred on Louisiana's coastal lands
or

within

Louisiana's

territorial

waters,

they

cannot

be

characterized as 'an operation conducted on the Outer Continental
Shelf that involved the exploration or production of minerals.'");
Plains Gas Solutions, LLC v. Tennessee Gas Pipeline Co., 46 F.
Supp. 3d 701, 706 (S.D. Tex. 2014) ("The sole physical act . . .
occurred onshore and was not conducted on the OCS . . . and
therefore this Court lacks jurisdiction over the claim.").
Defendants concede that none of the alleged permit violations
occurred on the Outer Continental Shelf, but nevertheless argue
that jurisdiction is proper because "the complained-of activities
in

this

case

include

the

construction

and

maintenance

infrastructure that directly supports OCS operations."17

of

In other

words, defendants contend that but for oil and gas production

17

R. Doc. 59 at 14.
14

activities on the Outer Continental Shelf, defendants would not
have engaged in the activities at issue in Jefferson Parish.
The Court acknowledges that the Fifth Circuit has articulated
the OCSLA jurisdictional inquiry in a variety of ways.

Compare

DEEPWATER HORIZON, 745 F.3d at 163 (OCSLA jurisdiction exists if
"(1)

the

activities

that

caused

the

injury

constituted

an

'operation' conducted on the outer Continental Shelf that involved
the exploration and production of minerals, and (2) the case
'arises out of, or in connection with' the operation.") with Amoco
Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1210 (5th Cir.
1988) (Parties' exercise of contractual take-or-pay rights "has an
immediate bearing on the production of the particular well," and
dispute over those rights is a controversy arising out of, or in
connection

with

an

operation

that

"involves

exploration,

development, or production of the minerals . . . .").

The Court

finds that the context of DEEPWATER HORIZON is the closest to the
facts presented here and that the DEEPWATER HORIZON formulation of
the test applies in this case.

Assuming, as the Court must, that

the Fifth Circuit meant what it said, the DEEPWATER HORIZON test
requires a court to "determine the connection between a case and an
operation only after it has established that the activities that
caused the injury constituted an operation on the OCS." Plains Gas
Solutions, 46 F.3d at 705 (emphasis added). As stated above, it is
undisputed that the "activities that caused the injury" in this

15

case occurred in Jefferson Parish, not on the Outer Continental
Shelf. The Court's jurisdiction therefore fails at the first prong
of the DEEPWATER HORIZON inquiry.

Total, 2014 WL 6750649, at *16

("In sum, because Defendants cannot establish that the activities
that caused the injury constituted an operation 'conducted on the
outer continental shelf,' jurisdiction fails without consideration
of the Fifth Circuit's 'but for' test.").
Thus, for the foregoing reasons, the Court finds that it does
not have jurisdiction under the OCSLA.
C.

Maritime Jurisdiction

Finally, defendants argue that they properly removed this case
under federal maritime law.18

First, defendants contend that some

of plaintiff's claims meet the test for maritime jurisdiction and
that the claims that do not fall within the Court's supplemental
jurisdiction because they share a common nucleus of operative fact
with the maritime claims.19

Second, defendants argue that the 2011

amendment to 28 U.S.C. § 1441 allows for removal of maritime claims
without an independent basis for federal jurisdiction.

18

R. Doc. 59 at 14.

19

Id. The Court notes that, with regard to Tapscott
fraudulent joinder, defendants argued that plaintiff's claims
were "wholly separate" from one another, but now, with respect to
maritime jurisdiction, defendants argue that the claims share a
common nucleus of operative fact. Because the Court finds that
maritime claims are not removable absent an independent basis for
federal jurisdiction, the Court need not address this
inconsistency.
16

1.

Historical Underpinnings
Jurisdiction

of

Federal

Maritime

Article III, Section 2 of the United State Constitution
extends federal jurisdiction over all cases of admiralty and
maritime jurisdiction.

U.S. Const. art. III, § 2.

Congress

codified this jurisdictional grant in the Judiciary Act of 1789,
which provides:
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. 73.

The last sentence, commonly referred to

as the saving-to-suitors clause, has been reworded over the years,
but "its substance has remained largely unchanged." Lewis v. Lewis
& Clark Marine, Inc., 531 U.S. 438, 444 (2001).

See also 28 U.S.C.

§ 1333 ("The 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 . . . .").
Although the saving-to-suitors clause appears to conflict with
the exclusive grant of federal jurisdiction over all claims of
admiralty

and

maritime

jurisdiction,

courts

traditionally

interpreted the conflicting provisions of the Act to create two
alternate bases for federal maritime jurisdiction.

Romero v.

Intern. Terminal Operating Co., 358 U.S. 354, 362-63 (1959).
17

First, courts interpreted the Act to grant exclusive federal
jurisdiction to claims proceeding in admiralty alone, meaning
"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

description in order to enforce the lien."

by

name

or

Madruga v. Superior

Court of State of Cal. in & for San Diego Cnty., 346 U.S. 556, 560
(1954).

If a maritime plaintiff filed suit in state court seeking

common-law remedies, however, the case fell within the savings-tosuitors clause's "exception" to exclusive federal jurisdiction.
See Romero, 358 U.S. at 362 (maritime actions seeking common-law
remedies

fell

within

the

savings-to-suitors

clause

and

were

"traditionally administered by common-law courts of the original
States"); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 222 (5th
Cir. 2013) ("However, admiralty jurisdiction is not present in this
suit because Barker filed in state court, therefore invoking the
saving-to-suitors exception to original admiralty jurisdiction.").
Thus, up until the passage of the Judiciary Act of 1875, federal
courts could hear common-law maritime claims, or "saving clause
cases," only when another source of federal jurisdiction existed.
Romero, 358 U.S. at 362 ("Since the original Judiciary Act also
endowed the federal courts with diversity jurisdiction, common-law
remedies for maritime causes could be enforced by the then Circuit
Courts when the proper diversity of parties afforded access.").

18

Additionally, courts historically interpreted the savings clause to
require that "[e]xcept in diversity cases, maritime litigation
brought in state courts could not be removed to the federal
courts."

Id. at 363.

The Judiciary Act of 1875 extended federal jurisdiction to
"all suits of a civil nature at common law or in equity . . .
arising under the Constitution or laws of the United States,"
creating federal question jurisdiction now codified at 18 U.S.C. §
1331.

In Romero v. International Terminal Operating Company, the

Supreme Court rejected the argument that saving clause claims fell
within "the laws of the United States" for purposes of federal
question jurisdiction.

Id. at 360.

In reaching this conclusion,

the Supreme Court relied on the "long-established and deeply
rooted"

dichotomy

between

pure

admiralty

claims,

which

were

cognizable in federal court, and saving clause claims, which were
cognizable in federal court only if there was an independent basis
for exercising federal jurisdiction.

Id. at 372.

Moreover, after

considering the "language and construction" of the Judiciary Act of
1875, the Court "uncovered no basis . . . changing the method by
which federal courts had administered admiralty law from the
beginning."

Id. at 368.

In so holding, the Supreme Court

recognized that to hold otherwise would eliminate "the historic
option of a maritime suitor pursuing a common-law remedy to select
his forum, state or federal . . . since saving-clause actions would

19

then be freely removable under § 1441 of Title 28."

Id. at 371-72.

Absent any evidence of Congress' intent to "change[] the method by
which federal courts had administered admiralty law for almost a
century," the Court refused to find that such "a revolutionary
procedural change had undesignedly come to pass."

Id. at 369.

Since Romero, federal courts have continued to hold that saving
clause claims cannot be removed from state court unless there in an
independent basis for federal jurisdiction.

See, e.g., Gaitor v.

Peninsular & Occidental Steamship Co., 287 F.2d 252, 255 (5th Cir.
1961) (Romero "made clear that except in diversity cases, maritime
litigation brought in state courts could not be removed to the
federal courts."); Ghotra by Ghotra v. Bandila Shipping, Inc., 113
F.3d 1050, 1054 (9th Cir. 1997) ("The savings to suitors clause
also permits the plaintiff to bring an action 'at law' in the
federal district court, provided the requirements of diversity of
citizenship and amount in controversy are met."); Oklahoma ex rel.
Edmondson v. Magnolia Marine Transp. Co., 359 F.3d 1237, 1241 (10th
Cir. 2004) ("Courts have consistently interpreted the 'savings
clause' to preclude removal of maritime actions brought in state
court

and

invoking

a

state

law

remedy

provided

there

is

no

independent basis for removal such as the presence of a federal
question or diversity of citizenship."); Bisso Marine Co., Inc. v.
Techcrane Intern., LLC, Civ. A. No. 14-0375, 2014 WL 4489618, at *3
(E.D. La. Sept. 10, 2014) ("For more than 200 years," a common-law

20

maritime action brought in state court was not removable to federal
court "based on admiralty jurisdiction alone.").
2.

The 2011 Amendment to the Removal Statute

Defendants

contend

that

Congress'

2011

amendment

to

the

removal statute, 28 U.S.C. § 1441(b), eliminates the historical
prohibition on removing saving clause cases to federal court.20
Before the 2011 amendment, 28 U.S.C. § 1441(b) stated:
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).

Under this former version of the

statute, the Fifth Circuit in In re Dutile held that general
maritime claims did not "arise[] under the Constitution, treaties
or laws of the United States" and thus, fell within the category of
"[a]ny other [civil] action" under Section 1441(b).
63 (5th Cir. 1991).

935 F.2d 61,

Accordingly, the Fifth Circuit held that

saving clause claims were subject to the "forum-defendant" rule and
were removable only if none of the defendants to the suit was a
citizen of the state in which the action was brought.

Id.

("The

practical effect of these provisions is to prevent the removal of
admiralty claims pursuant to § 1441(a) unless there is complete

20

R. Doc. 31 at 35.
21

diversity

of

defendants).").

citizenship

(predicated

upon

out-of-state

The Fifth Circuit reached this conclusion by

"constru[ing] the plain language of § 1441(b), read in conjunction
with Romero," and reiterated the familiar maxim that "Congress
simply

has

not

supplied

the

district

courts

with

jurisdiction of admiralty claims absent diversity."

removal

Id.

In 2011, Congress amended the removal statute and Section 1441
now provides:
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts for 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)(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.
(b)(2) A civil action otherwise removable solely on the
basis of the jurisdiction under section 1332(a) of this
title may not be removed if any of the parties in
interest properly joined and served as defendants is a
citizen of the State in which the action is brought.
Notably, Congress removed the language "[a]ny other such action"
from

subsection

(b),

which

the

Fifth

Circuit

in

Dutile

had

partially relied on in reaching its conclusion that savings clause
claims were not removable if a defendant was a citizen of the forum
state.
The Fifth Circuit discussed the 2011 amendment in Barker v.
Hercules, 713 F.3d 208, (5th Cir. 2013), even though the case was
22

decided on the pre-amendment version of Section 1441.

In Barker,

the Fifth Circuit stated that "even though federal courts have
original jurisdiction over maritime cases under 28 U.S.C. § 1333,
they do not have removal jurisdiction over maritime cases which are
brought in state court."

Id. at 219.

Instead, the Fifth Circuit

held that "such lawsuits are exempt from removal by the 'saving to
suitors' clause . . . and therefore may only be removed when
original jurisdiction is based on another jurisdictional grant,
such as diversity of citizenship."

Id.

Thus, when discussing

Congress' "clarification" of Section 1444(b), the Fifth Circuit
stated that the Section 1444(b)'s "forum-defendant" rule applies
only in actions removed on the basis of diversity jurisdiction and
that "cases invoking admiralty jurisdiction under 28 U.S.C. § 1333
may [still] require complete diversity prior to removal."

Id. at

223 (citing Dutile, 935 F.2d at 63).
Notwithstanding the Fifth Circuit's discussion in Barker,
several district courts have been persuaded that the Congress' 2011
amendment rendered saving clause claims freely removable under 28
U.S.C. § 1441.

See, e.g., Ryan v. Hercules Offshore, Inc., 945 F.

Supp. 2d 772 (S.D. Tex. 2013).

In reaching this conclusion, the

Ryan court dismissed Barker's discussion as dicta, and found that
Section

1441(a)'s

reference

to

the

federal

court's

"original

jurisdiction" means that saving clause claims initially filed in
state court are now removable, as such cases fall within a federal

23

court's original jurisdiction under 18 U.S.C. § 1333.

Id. at 778.

Defendants ask the Court to adopt the Ryan court's reasoning or, in
the alternative, certify this question under 28 U.S.C. § 1292(b) to
allow the Fifth Circuit to resolve this issue.21
The Court disagrees with the Ryan reasoning and joins the
majority position, as well as every other section of this court, in
holding that the 2011 amendment to Section 1441(b) did not displace
the longstanding rule that common-law maritime claims initially
filed in state court are not removable absent an independent basis
for exercising federal jurisdiction.

See Yavorsky v. Felice

Navigation, Inc., Civ. A. No. 14-2007, 2014 WL 5816999, at *4 (E.D.
La. Nov. 7, 2014) (collecting cases); Wright and Miller, 14A Fed.
Prac. & Proc. § 3674 (4th ed.) ("Several district courts that have
considered the issue since have followed the reasoning of the Ryan
court,

but

a

majority

have

proffered

reasons

why

admiralty

jurisdiction does not independently support removal.").
As an initial matter, the prohibition on removing saving
clause cases absent an independent ground for federal jurisdiction
is a historic rule grounded in both tradition and principles of
federalism. See Romero, 358 U.S. at 372 ("By making maritime cases
removable to the federal courts it would make considerable inroads
into the traditionally exercised concurrent jurisdiction of the
state courts in admiralty matters--a jurisdiction which it was the

21

R. Doc. 59 at 15.
24

unquestioned aim of the saving clause of 1789 to preserve.").
Congress

has

given

no

indication

that

it

intended

to

make

substantive changes to the traditional rules of admiralty removal.22
If Congress intended to open the federal courts to a new class of
cases that had historically been excluded "we can hardly suppose
that it would have failed to use some appropriate language to
express that intention."
U.S. 100, 107 (1941).

Shamrock Oil & Gas Corp. v. Sheets, 313
Indeed, to hold otherwise "would disrupt

traditional maritime policies and quite gratuitously disturb a
complementary, historic interacting federal-state relationship."
Romero, 358 U.S. at 375.

Thus, absent clear indication that

Congress intended to make fundamental changes to the law governing
removal of admiralty matters, the Court will not disrupt the "longestablished and deeply rooted" prohibition on removing saving
clause cases from state court based on nothing more than Congress'
"clarification" of provisions in the removal statute.

Id. at 372.

Moreover, the prohibition on removing saving clause cases did
not derive from the "any other such action" language in former
Section 1441(b).

Instead, the rule emanates from the saving-to-

suitors clause itself, which provides an exception to the federal

22

H.R. REP. No. 112-10 ("Section 103(a)(3) places the
provisions that apply to diversity actions under one subsection.
This change is intended to make it easier for litigants to locate
the provisions that apply uniquely to diversity removal."). See
also Barker, 713 F.3d at 223 (Congress intended the "updated
version [to be] a clarification, as opposed to an amendment, of
the original statute").
25

court's original jurisdiction for common-law maritime claims filed
in state court.

Barker, 713 F.3d at 222 ("However, admiralty

jurisdiction is not present in this suit because Barker filed in
state court, thereby invoking the saving-to-suitors exception to
original admiralty jurisdiction.").

In other words, a common-law

maritime claim filed in state court is not removable because it is
not within a district court's original jurisdiction as that phrase
is used in 18 U.S.C. § 1441.

See Tenn. Gas Pipeline v. Houston

Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996) ("Tennessee Gas's
maritime claim is not removable under the first sentence of 28
U.S.C. § 1441(b) by falling within the admiralty jurisdiction of
the federal courts.");23 Bisso Marine Co., 2014 WL 4489618, at *4
(holding that the Ryan court's reasoning fails because "[i]t
overlooks the long history of maritime removal jurisdiction; it is
based

on

the

mistaken

premise

that

§

1333

confers

original

jurisdiction over maritime cases brought at law, as opposed to in
admiralty; and it gives defendants the power to convert the
plaintiff's suit at law to a suit in admiralty"); J. Aron & Co. v.
Chown, 894 F. Supp. 697, 699-700 (S.D.N.Y. 1995) ("Fundamentally,
the problem is that, once Aron elected to commence Chown as a

23

The first sentence of former Section 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."
26

common law action and not an admiralty action, there was no basis
for a federal court to assert admiralty jurisdiction over Chown .
. . . Section 1441(a) does not cure this problem, because it only
permits the removal of civil actions over which the federal
district courts have original jurisdiction. Thus, removal of Chown
was improper because Chown was never a civil action over which the
federal district courts have original jurisdiction."); Vincent v.
Regions Bank, Civ. A. No. 08-1756, 2008 WL 5235114, at *1 (M.D.
Fla. Dec. 15, 2008) ("The plaintiff's election to sue at common law
in state court forever prevents the federal district courts from
obtaining admiralty jurisdiction.") (internal citation omitted).
Simply

put,

the

historic

prohibition

on

removing

common-law

maritime claims is grounded in the saving-to-suitors clause, not
Section 1441.

Thus, Congress' 2011 amendment to Section 1441 has

no bearing on whether a party may remove a common-law maritime
claim absent an independent basis for federal jurisdiction.

See

Gregoire v. Enterprise Marine Servs., LLC, 38 F. Supp. 3d 749, 765
(E.D. La. 2014) ("[T]his Court finds that general maritime law
claims are not removable under Section 1333 as part of the original
jurisdiction of the court and require an independent basis of
jurisdiction.").
For the foregoing reasons, the Court finds that Congress' 2011
amendment to 18 U.S.C. § 1441 did not alter the long-standing rule
that

common-law

maritime

claims

27

are

not

removable

absent

an

independent basis for asserting federal jurisdiction.

Thus, the

Court finds that maritime law does not provide an independent basis
for exercising removal jurisdiction for the claims asserted here.
The Court further declines defendants' request to exercise its
discretion to certify this question for interlocutory appeal under
28 U.S.C. § 1292(b).

V.

Conclusion
For the foregoing reasons, the Court finds that it lacks

subject-matter jurisdiction over plaintiff's claims under diversity
jurisdiction, OCSLA, or maritime law.

Accordingly, plaintiff's

motion for remand is GRANTED. The Court hereby remands this matter
under 28 U.S.C. § 1447(c) to the 24th Judicial District Court for
the Parish of Jefferson, State of Louisiana.

New Orleans, Louisiana, this

18th

day of May, 2015.

SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

28