Arrington v. Seaonus Stevedoring-New Orleans, LLC

Filing 10

ORDER AND REASONS: IT IS ORDERED that Plaintiff's 7 Motion is GRANTED in part and DENIED in part and the action is REMANDED to Civil District Court for the Parish of Orleans, Louisiana. Plaintiffs Motion is DENIED in part, to the extent that it seeks the assessment of attorney fees, expenses, and costs against Defendant, as set forth in document. Signed by Judge Ivan L.R. Lemelle on 10/23/2017. (Attachments: # 1 Remand Letter) (jls)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERIC ARRINGTON

CIVIL ACTION

VERSUS

NO. 17-9383

SEAONUS STEVEDORING - NEW ORLEANS, LLC

SECTION “B”(5)

ORDER
Before the Court is Plaintiff Eric Arrington’s (“Plaintiff”)
“Motion to Remand” (Rec. Doc. 7) and Defendant Seaonus Stevedoring –
New Orleans’ (“Defendant”) “Opposition to Motion to Remand” (Rec. Doc.
9). For the foregoing reasons, IT IS ORDERED that Plaintiff’s Motion
is GRANTED in part and DENIED in part and the action is REMANDED to
Civil District Court for the Parish of Orleans, Louisiana.
Plaintiff requests this Court remand this case to Civil District
Court on the basis that it was improperly removed pursuant to 28 U.S.C.
§§ 1333 and 1441. Plaintiff also seeks to recover fees and costs
associated with the removal. Rec. Doc. 7.
Defendant submits that the case was properly removed as a result
of the 2011 amendment to § 1441(b). Alternatively, Defendant requests
this Court deny Plaintiff’s request for an award of attorney’s fees in
light of this issue being a “hotly” contested issue of law. Rec. Doc.
9.
Procedural and Factual Background
Plaintiff alleges an incident on January 3, 2017, while he was
employed as a maritime worker aboard a vessel owned and/or operated by
Defendant. Specifically, Plaintiff alleges that while he was assisting
to move stacks of plywood aboard the vessel, one of Defendant’s crane

operators dropped a load of materials directly on top of him. Rec.
Doc. 1-1. Plaintiff assets that he sustained severe injuries as a
result of the above incident. Id. He originally filed this action in
the Civil District Court for the Parish of Orleans in August 2017.
Rec. Doc. 1-1. Shortly thereafter, Defendant removed this case citing
this Court’s original jurisdiction under 28 U.S.C. § 1333 and removal
pursuant to 28 U.S.C. § 1446(a). Rec. Doc. 1.

Law and Analysis
“A party may remove an action from state court to federal court
if the action is one over which the federal court possesses subject
matter jurisdiction.” Manguno v. Prudential Prop. and Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002)(citing 28 U.S.C. § 1441(a)).
(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.
28 U.S.C.A. § 1441(a)(emphasis added). The burden of establishing
subject matter jurisdiction in federal court rests with the party
seeking to invoke it. Jefferson Par. v. Anadarko E&P Onshore LLC, No.
CV 13-6701, 2015 WL 13534014, at *2 (E.D. La. Mar. 11, 2015).
Remand
The present issue before us deals with the removability of an
admiralty and maritime action, filed in state court, absent any other
independent jurisdictional basis for removal to federal court. Prior
to the 2011 Congressional amendment to 28 U.S.C. § 1441, it was well-

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settled law that maritime claims were not removable under § 1441(b),
absent diversity jurisdiction or a separate federal question. See e.g.,
In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991) (Concluding that
admiralty and maritime claims may be removed to federal court only by
non-forum defendants and only where there is complete diversity of
citizenship.); Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d
150, 153 (5th Cir. 1996)(“ It is well-established that maritime claims
do not “aris[e] under the Constitution, treaties or laws of the United
States” for purposes of federal question and removal jurisdiction.
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.”).
Post the 2011 amendment, however, there is disagreement among
district courts in the Fifth Circuit regarding whether general maritime
claims are removable. Riverside Const. Co. v. Entergy Mississippi,
Inc., 626 F. App'x 443, 447 (5th Cir. 2015), as revised (Oct. 16,
2015). This Court has previously concluded that claims originally filed
in state court are not, and were not made, removable by the recent
amendments to the removal statute because there is no independent basis
for removal. Jefferson Par. v. Anadarko E&P Onshore LLC, No. CV 136701, 2015 WL 13534014, at *6 (E.D. La. Mar. 11, 2015). In comport
with our prior decision on this issue, as well as every other judge in
this district, we conclude that maritime law does not provide an
independent basis for exercising removal jurisdiction over the claims
asserted by the Plaintiff here. See generally, Id. (Lemelle J.);

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Yavorsky v. Felice Navig., Inc., No. 14-2007, 2014 WL 581699 (E.D. La.
Nov. 7, 2014)(Lemmon J.); Riley v. LLOG Explor. Co., No. 14-437, 2014
WL 4345002 (E.D. La. Aug. 28, 2014)(Milazzo, J.); Grasshopper Oysters,
Inc. v. Great Lakes Dredge & Dock, LLC, No. 14-934, 2014 WL 3796150
(E.D. La. July 29, 2014)(Berrigan, J.)).

Fees and Costs
Plaintiff additionally asserts that it should be awarded all just
costs, expenses, and attorney fees in accordance with 28 U.S.C. §
1447(c). (Rec. Doc. 7-1 at 3). Defendant opposes this assessment as
this is a “hotly contested” and “unresolved” issue, making their
removal “objectively reasonable.”(Rec. Doc. 9 at 3). An order remanding
a case “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). “There is no presumption in favor of awarding fees
following a remand, and the use of the term ‘may’ in Section 1447(c)
leaves the district court with discretion, with no heavy congressional
thumb on either side of the scales.” Glovier v. Barton Homes, LLC, 452
F. Supp. 2d 657, 661 (W.D. La. 2006) (citing Martin v. Franklin Capital
Corp., 546 U.S. 132 (2005)). District courts should generally adhere
to the rule that, “[a]bsent unusual circumstances, courts may award
attorney's fees under § 1447(c) only where the removing party lacked
an objectively reasonable basis for seeking removal.” Id. (quoting
Martin, 546 U.S. at 141). “Conversely, when an objectively reasonable
basis exists, fees should be denied.” Id. (quoting Martin, 546 U.S. at
141).
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This Court finds that fees should be denied because Defendant had
an objectively reasonable basis for seeking removal. “The mere fact
that a district court ultimately concludes that removal was improper
is not a sufficient ground for awarding attorneys' fees.”
Riverside Const. Co. v. Entergy Mississippi, Inc., 626 F. App'x 443,
445 (5th Cir. 2015), as revised (Oct. 16, 2015). As such, Plaintiff’s
Motion is DENIED in part, to the extent that it seeks the assessment
of attorney fees, expenses, and costs against Defendant.

New Orleans, Louisiana, this 23rd day of October, 2017.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

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