Bisso Marine Co., Inc. v. Techcrane International, LLC et al

Filing 40

ORDER & REASONS granting 11 Motion to Remand to State Court. Signed by Judge Martin L.C. Feldman on 9/10/2014. (Attachments: # 1 Transmittal Letter) (caa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BISSO MARINE CO., INC.

CIVIL ACTION

v.

NO. 14-0375

TECHCRANE INTERNATIONAL, LLC,
ET AL.

SECTION "F"

ORDER AND REASONS
Before the Court is plaintiff Bisso Marine, LLC's motion to
remand this case to Civil District Court, Orleans Parish.

Having

reviewed the pleadings, memoranda, and the relevant law, the Court,
for the reasons that follow, GRANTS the motion to remand.
Background
In summer 2011, plaintiff brought this suit in Civil District
Court, Parish of Orleans, against Elevating Boats, LLC (EBI), a
manufacturer

of

cranes

and

crane

parts,

and

Techcrane

International, LLC (Techcrane), its authorized dealer. Bisso seeks
reimbursement of the purchase price, damages, and attorney fees in
connection

with

Bisso's

purchase

of

two

hybrid

cranes

from

Techcrane.

Claims in Bisso's original petition include claims for

redhibition, misrepresentation, post-sale failure to warn, and
products liability.

Bisso requested a jury trial of all issues.

In 2013, EBI moved for summary judgment, arguing that the
claims Bisso asserted fell within the court's maritime jurisdiction
and that maritime law did not provide Bisso with a valid claim
against EBI.

The trial court judge denied EBI's motion, finding
1

that EBI had failed to establish maritime jurisdiction.

EBI filed

a writ application to the Louisiana appellate court.
On December 10, 2013, Bisso filed a First Supplemental and
Amending Petition adding as defendants Techcrane's insurer, Liberty
Surplus Insurance Company (Liberty), and EBI's insurer, ProCentury
Insurance Company (ProCentury).

Bisso served ProCentury with a

copy of its Amending Petition on January 17, 2014.
In the Amending Petition, Bisso also added two claims against
Techcrane arising out of Techcrane's post-sale crane certification
and installation services, which were separate and apart from the
sales of the cranes.

Because Techcrane performed its installation

and certification work on a vessel, Bisso alleged that the claims
arising out of those services were governed by maritime law. Bisso
also alleged entitlement to punitive damages to the extent that
maritime law applied to any of the claims asserted.
On February 18, 2014, ProCentury filed a Notice of Removal
with this Court under 28 U.S.C. §§ 1333(1), which grants federal
district courts original jurisdiction over admiralty and maritime
claims, 1441, and 1446.
On June 4, 2014, the case was stayed administratively and
closed, to be reopened if necessary on motion of counsel.

Counsel

for Bisso filed an ex parte motion to reopen the case and return
the proceeding to active docket, which was granted on August 15,
2014.

Bisso now moves for remand.

2

I.
Unless "otherwise expressly provided by Act of Congress," a
defendant may 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). It is well settled that, when
faced with a motion to remand, the removing party "bears the burden
of establishing that federal jurisdiction exists."
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995).

De Aguilar v.
In determining

whether jurisdiction exists, the court considers jurisdictional
facts as they exist at the time of removal.

Cavallini v. State

Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995).
Additionally, because removal jurisdiction implicates important
federalism concerns, the federal removal statute is subject to
strict construction.

Willy v. Coastal Corp., 855 F.2d 1160, 1164

(5th Cir. 1988); Frank v. Bear Stearns & Co., 128 F.3d 919, 922
(5th Cir. 1997).

Any ambiguities regarding the propriety of

removal jurisdiction should be resolved in favor of remand and
against federal jurisdiction.

See, e.g., Manguno v. Prudential

Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
II.
Bisso raises several preliminary matters. Bisso contends that
ProCentury's Notice of Removal is untimely, that EBI waived its
ability to consent to removal by participating in the state court
litigation, and that the post-2011 version of the removal statutes

3

does not apply to Bisso's cause of action because it was filed
before the effective date.
Under the current 28 U.S.C. § 1446(b)(2)(B), "[e]ach defendant
shall have 30 days after receipt by or service on that defendant of
the initial pleading or summons . . . to file the notice of
removal." ProCentury received Bisso's Amending Petition on January
17, 2014, and filed the Notice of Removal on February 18, 2014,
just over thirty days later.

The parties disagree about whether

the thirty-day clock began to run on January 17 or earlier,1 but
even under the later date argued by defendants, their Notice of
Removal was untimely. Failure to petition timely may render removal
improvident, but the Court will consider the other issues raised.
Brown v. Demco, Inc., 792 F.2d 478, 481 (5th Cir. 1986).
Bisso contends that EBI waived its right to consent to removal
by participating in the state court litigation.

In response, the

defendants argue that EBI did not waive its right to consent, that,
even if it did, this waiver would not prevent ProCentury from
removing, and that Bisso is estopped from raising the waiver issue
for the first time in its recent filings.

The current version of

28 U.S.C. § 1446(b)(2)(C) provides that "[i]f defendants are served

1

Bisso contends that ProCentury had thirty days in which to
file as of July 2013 when EBI received Bisso's written discovery
responses that revealed the maritime nature of its claims. The
Court finds, however, that under the last-served defendant rule in
28 U.S.C. § 1446(b)(2)(B), ProCentury had thirty days from the date
it was served.
4

at different times, and a later-served defendant files a notice of
removal, any earlier-served defendant may consent to the removal
even

though

that

earlier-served

initiate or consent to removal."

defendant

did

not

previously

The old version, with the so-

called first-served defendant rule, provided the opposite.

See

Felder v. Countrywide Home Loans, No. H-13-0282, 2013 WL 6805843,
at *2 (S.D. Tex. Dec. 20, 2013) (explaining the old first-served
defendant rule and the adoption of the new last-served defendant
rule).

Under the new rule, the Court does not find support for

Bisso's contention that EBI waived its right to consent to removal.
Bisso argues that the 2011 amendments to the removal statutes
do not apply to this proceeding because Bisso's claims were filed
before

the

amendments'

effective

date.

The

Federal

Courts

Jurisdiction and Venue Clarification Act of 2011 states that it
applies to any action commenced on or after January 6, 2012.
L. No. 112-63 § 105, 125 Stat. 758, 762 (2011).

Pub.

Removed actions

are "deemed to commence on the date the action was commenced,
within the meaning of State law, in State court."

Id.

Under

Louisiana law, "'amendments that add a defendant "commence" the
civil action as to the added party.'"

Freeman v. Phillips 66 Co.,

No. 14-311, 14-624, 2014 WL 1379786, at *1 n.1

(E.D. La. April 8,

2014) (quoting Braud v. Transport Serv. Co. of Ill., 445 F.3d 801,
804 (5th Cir. 2006)).

Because Bisso filed its Amending Petition

naming ProCentury as a defendant in December 2013, the current

5

version of the removal statutes applies.
III.
At issue is whether a maritime case brought in state court is
within

this

Court's

jurisdiction alone.
question has been no.

removal

jurisdiction

based

on

admiralty

For more than 200 years, the answer to this
Admiralty has been historically considered

as different from actions in law. The defendants argue that recent
amendments to the general removal statute, 28 U.S.C. § 1441, must
now lead courts to a different conclusion.

But this Court, in

agreement with other cases from this district,2 finds that the
prohibition on removal of admiralty cases does not lie in § 1441,
but rather in § 1333 and the saving to suitors clause.
The current removal statute provides:
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.
28 U.S.C. § 1441(a)(2012).
The statutory grant of admiralty jurisdiction provides:

2

Gregoire v. Enterprise Marine Servs., LLC, No. 14-810, 2014
WL 3866589 (E.D. La. Aug, 6. 2014); Grasshopper Oysters, Inc. v.
Great Lakes Dredge & Dock, LLC, No. 14-934, 2014 WL 3796150 (E.D.
La. July 29, 2014); Perrier v. Shell Oil Co., No. 14-490, 2014 WL
2155258 (E.D. La. May 22, 2014); Tilley v. American Tugs, Inc., No.
13-6104 (E.D. La. May 16, 2014); Barry v. Shell Oil Co., No. 136133, 2014 WL 775662 (E.D. La. Feb. 25, 2014).
6

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.
28 U.S.C. § 1333 (2012). The defendants read these two passages in
combination to mean that because the federal district courts have
original jurisdiction over admiralty claims under § 1333, such
claims are removable under § 1441.
Before the 2011 amendments, § 1441(b) read:
Any civil action of which the district courts
have original jurisdiction founded on a claim
or right arising under the Constitution,
treaties, or laws of the United States shall
be removable without regard to the citizenship
of residence of the parties. Any other such
action shall be removable only if none of the
parties in interest properly joined and served
as defendants is a citizen of the State in
which such action is brought.
28 U.S.C. § 1441(b) (2006) (emphasis added).

Maritime claims do

not arise under the Constitution, treaties, or laws of the United
States for purposes of federal question jurisdiction under § 1331.
See Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 367
(1959).

Thus, under the prior version, the Fifth Circuit reasoned

that maritime claims were addressed in the second sentence with the
"any other such action" language.

The court construed the "any

other such action" language as an "Act of Congress" that "expressly
provided" that maritime claims were not removable under § 1441(a).
In re Dutille, 935 F.2d 61, 63 (5th Cir. 1991).

7

Instead, such

actions required an independent, nonadmiralty ground for federal
jurisdiction, like diversity.
The 2011 amendments removed the "any other such action"
language, leading some courts to find that § 1441 no longer
prohibits the removal of maritime claims brought in state court.3
These courts have found that maritime claims are freely removable
because they are within the federal court's original jurisdiction.
But this analysis fails.

It overlooks the long history of

maritime removal jurisdiction; it is based on the mistaken premise
that § 1333 confers original federal jurisdiction over maritime
cases brought at law, as opposed to in admiralty; and it gives the
defendants the power to convert the plaintiff's suit at law to a
suit in admiralty.
A.
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.

The Judiciary

Act of 1789 codified this jurisdictional grant as follows:
That

the

district

courts

3

shall

have,

See Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772
(S.D. Tex. 2013). See also Provost v. Offshore Serv. Vessels, LLC,
CIV.A. 14–89–SDD–SCR, 2014 WL 2515412 (M.D. La. June 4, 2014);
Genusa v. Asbestos Corp. Ltd., CIV.A. 13–794–JJB-RLB, 2014 WL
1831190 (M.D. La. May 8, 2014); Carrigan v. M/V AMC AMBASSADOR, No.
H–13–03208, 2014 WL 358353 (S.D. Tex. Jan. 31, 2014); Bridges v.
Phillips 66 Co., CIV.A. 13–477-JJB-SCR, 2013 WL 6092803 (M.D. La.
Nov. 19, 2013); Wells v. Abe's Boat Rentals Inc., No. H–13–1112,
2013 WL 3110322 (S.D. Tex. June 18, 2013)(following Ryan).
8

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 (emphasis added).

The last passage,

commonly known as the saving to suitors clause, has remained
largely unchanged over the centuries.

Today it reads:

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.
28 U.S.C. § 1333 (2012) (emphasis added).

The clause reserves to

admiralty claimants all remedies that would be available at common
law.

Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454

(2001).

Thus, it has developed that 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 (1954).

State courts are "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."

Id. at 560-61 (internal punctuation

9

omitted).
The saving to suitors clause has always been understood to
preserve the remedy, not the forum.
important difference.
that

fall

within

A distinction not without an

Thus, admiralty cases filed in state court

the

federal

court's

jurisdiction

under

an

independent, nonadmiralty doctrine, such as diversity, have always
been removable.

For centuries the savings clause has provided a

maritime plaintiff with three options: (1) sue in admiralty in
federal court under admiralty jurisdiction, (2) sue at law in state
court, or (3) sue at law in federal court "if he can make proper
parties to give that court jurisdiction of his case." The Belfast,
74 U.S. 634, 644 (1868).

This long history remains unchanged by

the 2011 amendments to the removal statute.
B.
Section 1333 does not give federal courts subject matter
jurisdiction over maritime claims brought at law.

See Coronel v.

AK Victory, No. C13-2304JLR, 2014 WL 820270, at *7 (W.D. Wash. Feb.
28, 2014) ("[I]nherent in both the majority and the dissent's
analysis [in Romero] is the conception that 28 U.S.C. § 1333 did
not convey subject matter jurisdiction to federal courts hearing
maritime claims brought at law.").

In Romero, the Court explained

that under the Judiciary Act of 1789, admiralty jurisdiction was
"exercised according to the historic procedure in admiralty, by a
judge without a jury. In addition, common-law remedies were, under

10

the saving clause, enforceable in the courts of the States and on
the common-law side of the lower federal courts when the diverse
citizenship of the parties permitted." 358 U.S. at 363. The Court
remarked that "[t]o draw such an inference [that maritime claims at
law are within the jurisdiction of the federal courts] is to find
that a revolutionary procedural change had undesignedly come to
pass."

Id. at 369.

saving

clause

jurisdiction.

Since Romero, courts have maintained that

cases

cannot

be

removed

based

on

admiralty

See, e.g., Barker v. Hercules Offshore, Inc., 713

F.3d 208, 219 (5th Cir. 2013) ("[E]ven though federal courts have
original jurisdiction over maritime claims under 28 U.S.C. § 1333,
they do not have removal jurisdiction over maritime cases which are
brought in state court.").
C.
A plaintiff can bring a maritime suit in federal court either
in admiralty or at law.
procedural.
practice),

See,
38(e)

e.g.,
(no

The differences between the two are
Fed.

jury

R.

Civ.

trial),

P.

and

14(c)
82

(third

(lack

of

party
venue

restriction). The most notable distinction is the right to a trial
by jury.

The Seventh Amendment right to a jury trial does not

apply to cases brought in admiralty. Fitzgerald v. U.S. Lines Co.,
374 U.S. 16, 20 (1963).
Here, Bisso filed its petition in state court and requested a
jury trial in its petition.

It brought its suit at law.

11

See

Barker, 713 F.3d at 222 ("[A]dmiralty jurisdiction is not present
in this suit because Barker filed in state court, thereby invoking
the

saving-to-suitors

jurisdiction.").

exception

to

original

admiralty

Because § 1333 does not provide federal subject

matter jurisdiction over maritime claims on the law side of the
court, and because there is no other basis for federal jurisdiction
(i.e., diversity jurisdiction does not apply), Bisso could not have
filed the same lawsuit in federal court. This Court lacks original
jurisdiction, and thus removal is inappropriate.
Assuming arguendo that Bisso's claims could have been filed in
admiralty,4 removal to the admiralty side of the Court would ignore
the saving to suitors clause.
of its right to a jury trial.

Allowing removal would strip Bisso
ProCentury and EBI say that the

Court can easily resolve this problem by allowing Bisso to have a
jury trial.

They reason that because there is no prohibition

against jury trials for cases brought in admiralty, federal courts
can remain faithful to the saving to suitors clause by granting
jury trials in such cases.

Defendants, however, ignore the

historical distinction between suits brought in admiralty and at
law, as well as the careful balance of judicial power between
federal and state courts.

See Romero, 358 U.S. at 372 ("By making

maritime cases removable to the federal courts it would make

4

ProCentury contends that Bisso's claims fall under the
Court's admiralty jurisdiction.
For the sake of argument, the
Court will assume that they do. Removal is improper either way.
12

considerable inroads into the traditionally exercised concurrent
jurisdiction

of

the

state

courts

in

admiralty

matters–a

jurisdiction which it was the unquestioned aim of the saving clause
of 1789 to preserve.").

This Court will not depart from precedent

to fashion the new scheme that defendants propose.
The Court is mindful that removal jurisdiction is strictly
construed.
(1941).

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108

When subject matter jurisdiction is doubtful, remand is

appropriate.
Accordingly,
IT IS ORDERED that this matter is REMANDED to the Civil
District Court, Orleans Parish, State of Louisiana, for lack of
subject matter jurisdiction under 28 U.S.C. § 1447(c).

New Orleans, Louisiana, September 10, 2014

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

13