Harrold v Liberty Insurance Underwriters, Inc., et al

Filing 63

ORDER: Plaintiffs 50 First Amended Motion for Reconsideration of Order Remanding Claims to State Court is GRANTED. This action, Harrold v. Liberty Insurance Underwriters, No. 3:13-cv-00762-JWD-SCR, is DECONSOLIDATED from the action In the Matter o f Complaint of Weeks Marine, Inc., as owner and operator of the BT 229, for Exoneration from or Limitation of Liability, No. 3:13-cv-00831-JWD-RLB. The action Harrold v. Liberty Insurance Underwriters, No. 3:13-cv-00762-WD-SCR, is hereby REMANDED t o the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana; and the action In the Matter of Complaint of Weeks Marine, Inc., as owner and operator of the BT 229, for Exoneration from or Limitation of Liability, No. 3:13-cv-00831-JWD-RLB shall remain in this Court. Signed by Judge John W. deGravelles on 11/6/2014. (LLH) .

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
RANDALL HARROLD

CIV. ACTION NO. 13-762

VERSUS

JUDGE JOHN W. deGRAVELLES

LIBERTY INSURANCE
UNDERWRITERS, ET AL.

MAG. JUDGE STEPHEN C.
RIEDLINGER

CONSOLIDATED WITH
CIV. ACTION NO. 13-831

IN THE MATTER OF COMPLAINT OF
WEEKS MARINE INC., as owner and
operator of the BT 229, for Exoneration
from or Limitation of Liability

JUDGE JOHN W. deGRAVELLES
MAG. JUDGE RICHARD L.
BOURGEOIS, JR.

ORDER
This matter is before the Court on Plaintiff’s First Amended Motion for Reconsideration
of Order Remanding Claims to State Court (R.Doc. 50) (“Amended Motion to Remand”). The
Court previously denied this motion. (R.Doc. 57). However, the Court has the authority to
reopen sua sponte motions for remand.. See Perritt v. Westlake Vinyls Co., LP, 986 F.Supp.2d
726, 728 n. 3 (M.D.La. 2013); see also Simon v. Wal–Mart Stores, Inc., 193 F.3d 848, 850 (5th
Cir.1999) ( “Federal courts may examine the basis of jurisdiction sua sponte....”); Free v. Abbott
Labs., Inc., 164 F.3d 270, 272 (5th Cir.1999) (“[A] federal court must always be satisfied that
subject matter jurisdiction exists and must even raise the issue sua sponte....”). The Court
informed the parties at the October 20, 2014, status conference that it wished to reexamine
jurisdiction and remand here.

Subsequently, Plaintiff Randall Harrold filed his Second

Amended Motion for Reconsideration of Order Partially Remanding Claims to State Court

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19th JDC - certified

(“Second Amended Motion to Remand”). Petitioner-in-Limitation Weeks Marine, Inc. filed a
Brief Regarding Issues Raised in Minute Entry of October 20, 2014, urging that the case should
not be remanded.
For the reasons set forth below, the Court hereby grants Plaintiff’s Amended and Second
Amended Motion to Remand.
A. Factual Background
Plaintiff alleges that Weeks Marine, Inc. (“Weeks”) owned and/or operated the BT229
crane barge. (Petition for Damages, R.Doc. 1-2, p. 3). Plaintiff claims he was hired by Aerotek,
Inc. (“Aerotek”), who is Plaintiff’s employer, along with Weeks. Plaintiff claims that Weeks
and Aerotek employed him as a member of the crew of the vessel.
Plaintiff was a crane operator employed by Aerotek and/or Weeks on board the vessel.
(Id., p. 3-4). Plaintiff claims, on or about October 26, 2012, he was severely injured while
performing his duties as the vessel was operating at or near the west bank of the Mississippi
River at Mile 331. (Id., p. 4). Plaintiff claims that an assistant welder with Southern Crane &
Hydraulics, L.L.C. (“Southern Crane”), installed a boom on the right side of the crane.
Thereafter, the welder was trying to fit the boom stop in place when he, it is alleged, negligently
and unexpectedly twisted the rail, causing it to fall off the boom and onto Plaintiff. Plaintiff
alleges this caused him to fall about 5 feet to the deck below. (Id.). Plaintiff claims he struck his
head, shoulder, and body generally, thereby sustaining injuries. Plaintiff also claims the vessel
was operated negligently and was unseaworthy.
Plaintiff filed suit in state court against Aerotek and Weeks under the Jones Act and
general maritime law. Plaintiff also asserted a general maritime law claim against Southern
Crane for negligence. Plaintiff requested a trial by jury on all issues so triable. (Id., p. 3).

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Defendants removed this case to this Court based on their contention that recent changes
to the language of 28 U.S.C. § 1441 rendered general maritime law claims removable. (R.Doc. 1,
Notice of Removal, p. 1-2, and Memorandum in Opposition to Plaintiff’s Motion to Remand and
In Support of the Magistrate’s Report and Recommendations, R.Doc. 13, p. 2-6). This Court
initially agreed that the general maritime law claim was properly removed but severed the Jones
Act claim and remanded it to state court. (R.Doc. 16, Ruling Affirming and Adopting Magistrate
Judge’s Report and Recommendations).
B. Analysis
“The federal removal statute … is subject to strict construction because a defendant's use
of that statute deprives a state court of a case properly before it and thereby implicates important
federalism concerns.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997). “[D]oubts
regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction.”
Acuna v. Brown & Root, 200 F.3d 335, 339 (5th Cir. 2000).
On further consideration, the Court now remands this case for three reasons. First, the
Court must remand to preserve the plaintiff’s right to trial by jury.

In Milstead v. Total

Petrochemicals & Refining USA, Inc., No. 14-148, 2014 WL 4820610 (M.D. Sept. 29, 2014),
“the issue before the Court [was] whether a general maritime claim which falls under § 1333 is
removable under the current version of § 1441 when a jury trial is requested by the plaintiff in
his state court petition.” The Court found that such a claim was not removable because it would
deprive the plaintiff of the right to a trial by jury, which was prohibited by the savings to suitors
clause.

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The same reasoning applies here. Plaintiff has requested a trial by jury. As in Milstead,
keeping the case in federal court would deprive Plaintiff of his right to a jury trial, which is
prohibited by the savings to suitors clause. Accordingly, the suit must be remanded.
The second reason for remanding the case is that the Jones Act claim is not removable, so
the entire case should be remanded. The Jones Act incorporates the Federal Employees Liability
Act (“FELA”), 45 U.S.C. § 51, et seq. 46 U.S.C. § 3104. FELA actions cannot be removed. 28
U.S.C. § 1445(a). Further, Courts have consistently found that, if a Jones Act claim is joined
with another general maritime law claim, the Court should remand the entire suit to state court.
Marvin v. American Export Lines Inc., No. 14-316, 2014 WL 4924341, at *3-4 (M.D.La. Sept.
30, 2014) (answering “whether a general maritime claim under § 1333 is removable under
current version of § 1441 when joined with properly pled Jones Act claim” and finding that it
was not); Day v. Alcoa S.S. Co., Inc., No. 14-317, 2014 WL 4924363, *3-*4 (M.D.La. Sept. 30,
2014) (same).
Finally, even if this case had been brought solely as a general maritime law claim, it was
not properly removed. The Fifth Circuit has recognized that:
even 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. Romero v. Int'l Terminal Operating Co., 358
U.S. 354, 377–79, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Instead, such lawsuits are
exempt from removal by the “saving-to-suitors” clause of the jurisdictional
statute governing admiralty claims, see id., and therefore may only be removed
when original jurisdiction is based on another jurisdictional grant, such as
diversity of citizenship. In re Dutile, 935 F.2d 61, 63 (5th Cir.1991).
Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir. 2013). Defendants argue that the
2011 amendments to 28 U.S.C. § 1441 set forth in the Federal Courts Jurisdiction and Venue Clarification
Act of 2011, Pub. L. No. 112-63, § 1441, 125 Stat. 758, 759 (2011) changed the law with respect to
removal of general maritime law claims.

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There is disagreement among District Courts on this issue, and the Fifth Circuit has not resolved
this difference. As this Court discussed in Perise v. Eni Petroleum, U.S., L.L.C., No. 14-99, 2014 WL
4929239, at *5, (M.D.La. Oct. 1, 2014), some cases, such as Ryan v. Hercules Offshore, Inc., 945 F.
Supp. 2d 772, 775-77 (S.D. Tex. 2013), have held that “changes to the second sentence of 28 U.S.C. §
1441(b) … removed the statutory basis for the non-removability of admiralty claims in the absence of
another basis for jurisdiction as stated by the Fifth Circuit.” Perise, 2014 WL 4929239, at *5. A number
of other courts have disagreed with Ryan and have held that the “‘savings to suitors’ clause in the
admiralty jurisdiction statute is the historical basis for non-removability of general maritime claims[,] [so]
… the changes to 28 U.S.C. § 1441 [in 2011] … did not legislatively abolish the basis for non-removal of
general maritime claims.” Id. (citing Bartman v. Burrece, No. 14–80, 2014 WL 4096226 (D.Alaska
Aug.18, 2014); Gregoire v. Enter. Marine Servs., LLC, No. 14–840, ––– F.Supp.2d ––––, 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); Cassidy v. Murray, No. 14–1204, ––– F.Supp.2d
––––, 2014 WL 3723877 (D.Md. July 24, 2014); Porter v. Great Am. Ins. Co., No. 13–3069, 2014 WL
3385148 (W.D.La. July 9, 2014); Figueroa v. Marine Inspection Servs., ––– F.Supp.2d. ––––, No.
14–140, 2014 WL 2958597 (S.D.Tex. July 1, 2014); In re Foss Mar. Co., No. 12–00021, ––– F.Supp.2d
––––, 2014 WL 2930860, (W.D. Ky. June 27, 2014); Alexander v. Seago Consulting, LLC, No. 14–1292,
2014 WL 2960419 (S.D.Tex. June 23, 2014); Pierce v. Parker Towing Co., Inc., No. 14–73, 2014 WL
2569132 (S.D.Ala. June 9, 2014); Gabriles v. Chevron USA, Inc., No. 14–669, 2014 WL 2567101
(W.D.La. June 6, 2014); Perrier v. Shell Oil Co., No. 14–490, 2014 WL 2155258 (E.D.La. May 22,
2014); Rogers v. BBC Charting America, LLC, No. 13–3741, 2014 WL 819400 (S.D.Tex. Mar.3, 2014);
Coronel v. AK Victory, No. C13–cv–2304, 2014 WL 820270 (W.D.Wash. Feb.28, 2014)); see also David
W. Robertson & Michael F. Sturley, Recent Developments in Admiralty and Maritime Law at the
National Level and in the Fifth and Eleventh Circuits, 38 Tul. Mar. L.J. 419, 477–78 (2014) (“The
statutory-language exegesis in Ryan is thorough and careful, but we think the judge's conclusion that
Romero (probably through congressional inadvertence) has become a dead letter seems too radical to be

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acceptable. We do not believe the Fifth Circuit will agree with the Ryan court.”). The Court believes that
the correct view is also the majority view and that general maritime claims are not removable, despite the
changes to 28 U.S.C. § 1441. The suit must therefore be remanded.

C. Conclusion
Accordingly,
IT IS ORDERED that Plaintiff’s First Amended Motion for Reconsideration of Order
Remanding Claims to State Court (R.Doc. 50) is GRANTED;
IT IS FURTHER ORDERED that this action, Harrold v. Liberty Insurance
Underwriters, No. 3:13-cv-00762-JWD-SCR, is DECONSOLIDATED from the action In the
Matter of Complaint of Weeks Marine, Inc., as owner and operator of the BT 229, for
Exoneration from or Limitation of Liability, No. 3:13-cv-00831-JWD-RLB;
IT IS FURTHER ORDERED that the action Harrold v. Liberty Insurance
Underwriters,

No. 3:13-cv-00762-JWD-SCR, is hereby REMANDED to the 19th Judicial

District Court for the Parish of East Baton Rouge, Louisiana; and
IT IS FURTHER ORDERED that the action In the Matter of Complaint of Weeks
Marine, Inc., as owner and operator of the BT 229, for Exoneration from or Limitation of
Liability, No. 3:13-cv-00831-JWD-RLB shall remain in this Court.
Signed in Baton Rouge, Louisiana, on November 6, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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