Schaffer v. Air & Liquid Systems Corporation et al

Filing 151

MEMORANDUM AND ORDER OF REMAND - IT IS HEREBY ORDERED that the Motion to Remand, [Doc. No. 122 ] is granted. This matter is remanded to the Circuit Court of the Twenty Second Judicial Circuit for the City of St. Louis, Missouri. IT IS FURTHER ORDERED that Plaintiffs Request for Attorneys Fees is denied. Signed by District Judge Henry Edward Autrey on 4/10/15. (KJS)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANN SCHAFFER, Individually and as
Special Administrator of the Estate of
NICHOLAS SCHAFFER, Deceased,
Plaintiff,
v.
AIR & LIQUID SYSTEMS
CORPORATION, as successor in interest
to Buffalo Pumps, Inc., et al.,
Defendants.

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Case No. 4:14CV1789 HEA

ORDER, MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Motion to Remand, [Doc. No.
122]. Defendant Exxon Mobil Corporation filed a response in opposition.
Thereafter, Plaintiff filed a reply.
Facts and Background
Plaintiff is the surviving spouse of Nicholas Schaffer, deceased. Nicholas
and Ann Schaffer originally initiated a lawsuit against Defendants in the Circuit
Court of the 22nd Judicial Circuit in the City of St. Louis, Missouri. Subsequent to
the original filing, Nicholas died from asbestos-related mesothelioma. The Petition
alleges that Nicholas Schaffer injuries and ultimate death were the result of
inhaling asbestos-containing products during his work as a ship repairman at the

Newport News Shipbuilding and Drydock Company. Plaintiff claims Defendants’
negligence resulted in Nicholas Schaffer inhaling asbestos dust that caused him to
contract mesothelioma. Count I is a State law claim of strict liability. Count II is a
State law claim of negligence. Count III is a State law claim for willful and wanton
misconduct – aggravated circumstances. Counts IV and V are State law conspiracy
claims. Count VI is a State law claim of fraudulent misrepresentation. Count VII
is a State law claim of battery. Count VIII is a State law negligence claim. Count
IX is a State law claim of willful and wanton conduct. Count X is titled “common
law and/or maritime negligence under 33 U.S.C. § 905(b) for Exxon Mobil
Corporation,” the “Vessel Defendants.” Count XI is titled “loss of consortium
under 33 U.S.C. § 905(b) for Exxon Mobil Corporation. Plaintiff’s claims,
therefore, are brought pursuant to Missouri common law.
On October 22, 2014, Defendant Exxon Mobil Corporation filed a Notice of
Removal. Defendant asserted this case was removable under the federal
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905 and that
removal was based on federal question jurisdiction and admiralty jurisdiction,
citing 28 U.S.C. §§ 1331, 1333. (Doc. # 1, at ¶ 5).
Discussion
Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life
Ins. Co. of America, 511 U.S. 375, 377 (1994). Federal courts “possess only that

power authorized by Constitution and statute ... which is not to be expanded by
judicial decree.” Id. (citations omitted). The removing party bears the burden of
establishing the Court’s jurisdiction. Baker v. Martin Marietta Materials, 745 F.3d
919, 923 (8th Cir. 2014). If Defendant is able to establish the Court's jurisdiction,
then it is Plaintiff’s burden to prove there is an applicable exception.
Federal courts must construe removal statutes strictly because removal
jurisdiction raises significant federalism concerns. Any and all doubts about
jurisdiction should be resolved in favor of remand to state court. Id.
Federal question jurisdiction requires a complaint to arise from “the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. Federal
courts determine whether a complaint properly alleges a federal question by using
the well-pleaded rule. Id. That is, the federal law cited in the complaint must create
the cause of action or a plaintiff's right to relief must depend on the resolution of a
substantial question of federal law.
Defendants may not “inject a federal question into an otherwise state-law
claim and thereby transform the action into one arising under federal law.” Gore
v. Trans World Airlines, 210 F.3d 944, 948 (8th Cir.2000). Moreover, “[i]t is
firmly established that a federal defense, including a preemption defense, does
not provide a basis for removal, ‘even if the defense is anticipated in the
plaintiff's complaint, and even if both parties concede that the federal defense is
the only question truly at issue in the case.’ ” Cent. Iowa Power, 561 F.3d at 912
(quoting Caterpillar, 482 U.S. at 393, 107 S.Ct. 2425).
Baker v. Martin Marietta Materials, Inc. 745 F.3d 919, 924 (8th Cir 2014).

A review of the Petition reveals this is a Missouri common law action. There
is no law cited in the Petition that creates a federal cause of action. Moreover, a
case with a general maritime nature requesting common law remedies does not
provide a ground for federal jurisdiction. Pierce v. Parker Towing Co., Inc., 25
F.Supp.3d 1372, 1376 (S.D.Ala.2014) (citing Armstrong v. Ala. Power Co., 667
F.2d 1385, 1388 (11th Cir.1982)). In light of the narrowly construed construction
of federal question jurisdiction, the Court finds general federal question
jurisdiction does not exist in this case.
Pursuant to 28 U.S.C. § 1333(1), federal 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.” The savings clause,
however, does not require that a tort maritime case be litigated in federal court. See
Pierce, 25 F.Supp.3d at 1375–76; see also Madruga v. Superior Court, 346 U.S.
556, 560 (1954) (“Admiralty's jurisdiction is ‘exclusive’ only as to those maritime
causes of action begun and carried on as a 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 .”); Armstrong v. Ala. Power Co., 667 F.2d
1385, 1388 (11th Cir.1982) (“a federal district court should not accept the removal
of a saving clause case solely because of its general maritime nature: the maritime
nature simply does not provide a ground for federal jurisdiction.”); Coronel v. AK

Victory, 1 F.Supp.3d 1175, 1183 (W.D.Wash.2014) (“the ‘general rules of
maritime law apply whether the proceeding be instituted in an admiralty or
common-law court.’ ”) (quoting Carlisle Packing, Co. v. Sandanger, 259 U.S. 225,
259 (1922).
In 2011, Congress passed the Federal Courts Jurisdiction and Venue
Clarification Act of 2011 which provides in relevant part:
(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 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 the
title, the citizenship of defendants sued under fictitious names shall be disregard.
(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.
28 U.S.C. § 1441 (2012).
Prior to the 2011 amendment to 28 U.S.C. § 1441(b), it was settled law that
removal of an in personam maritime action, such as Plaintiff’s, required a
“separate basis of jurisdiction” such as diversity jurisdiction. Id. at 1377. After the
2011 amendment to 28 U.S.C. § 1441(b), several courts have found the
amendment has not changed the rule. See, e.g., Pierce v. Parker Towing Co., Inc.,
25 F.Supp.3d 1372, 1376 (S.D. Ala. 2014) (“The 2012 change to the removal

statute has erased language the Fifth Circuit interpreted as the basis for denying
removal of in personam maritime claims. Where the common law is competent to
provide a remedy, as with in personam maritime claims filed in state court, a
plaintiff may elect to pursue his common law remedies and the case cannot be
removed based on § 1333.”); Progressive Mountain Ins. Co. v. Dana C. McLendon
Co. Inc., No. 2:14–cv–04413–DCN, 2015 WL 925932 (D.S.C. Mar. 4, 2015)
(finding a defendant may only remove a case in which an in personam maritime
claim is brought when the case includes an independent ground for federal
question jurisdiction). There are some courts, however, that have found otherwise.
See, e.g., Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772, 778 (S.D.Tx.2013)
(finding case brought pursuant to Death on the High Sea Act and Longshore and
Harbor Workers' Compensation Act were removable to federal court pursuant to
admiralty jurisdiction).
The parties disagree as to whether Section 1441(b) now gives the Court
jurisdiction to facilitate this case. Defendant argues Section 1441(b) allows general
admiralty cases, such as this common law in personam case, to be removed to
federal court without another basis. Defendant heavily relies on a case called Ryan
and its progeny. See Ryan, 945 F.Supp.2d 772. Whereas Plaintiff. argues the
contrary and rely on cases that have rejected Ryan. See, e.g., Progressive
Mountain, 2015 WL 925932.

After having considered the arguments and case law presented to the Court,
the Court finds the 2011 amendment to Section 1441 does not permit maritime
claims to be removed to federal court without an independent basis for jurisdiction.
A plain reading and interpretation of Section 1441 when read in light of the
savings to suitors clause undermines the reasoning in Ryan. Federal courts have
long supported a plaintiff's right to choose a forum, state or federal, in commonlaw maritime actions. See generally Romero v. Int'l Terminal Operating Co., 358
U.S. 354, 371–72 (1959) (“Thus the historic option of a maritime suitor pursuing a
common-law remedy to select his forum, state or federal, would be taken away by
an expended view of s 1331, since saving-clause actions would be freely
removable under s 1441”). Here, Plaintiff's in personam action, initially brought in
state court, seeks common law remedies. The Court cannot disturb Plaintiff’s
prerogative to pursue her action in state court. Vincent v. Regions Bank, No. 8:08–
cv–1756–T–23EAJ, 2008 WL 5235114, at *1 (M.D.Fla. Dec. 15, 2008)). See also,
Pierce, 25 F.Supp.3d 1372; Progressive Mountain, 2015 WL 925932, at *4
(finding general maritime law claims are not removable); A.E.A. ex rel.
Angelopoulous v. Volvo Penta of the Americas, No. 2:14–cv–425, 2015 WL
128055, at *7 (E.D.Va. Jan. 9, 2015) (“When read in light of the saving to suitors
clause, a plain meaning interpretation of § 1441 undermines the Ryan court's
reasoning.”); Harrold v. Liberty Ins. Underwriters, Civ. Actions Nos. 13–762, 13–

831, 2014 WL 5801673, at *3 (M.D.La. Nov. 7, 2014) (“The Court believes that
the correct view is also the majority view and that general maritime claims are not
removal, despite the changes to 28 U.S.C. § 1441.”); see also, Progressive
Mountain Ins. Co. v. Dana McLendon Co., Inc., No. 2:14–cv–04413–DCN, 2015
WL 925932 (D.S.C. Mar. 4, 2015); Aarons v. Phillips 66 Co., Civil Action No. 14–
601, 2015 WL 575358 (E.D.La. Feb. 11, 2015).
Pursuant to 28 U.S.C. § 1447(c), a court may award attorney's fees to a nonremoving party “only where the removing party lacked an objectively reasonable
basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). “[W]hen an objectively reasonable basis exists, fees should be denied.”
Id. (citations omitted). Nonetheless, a district court has discretion in determining
whether a case has unusual circumstances that warrant a departure from the general
rule. Id.
Here, Plaintiff seeks attorney's fees. Defendant opposes this request. In light of
the circumstances of this case, the Court finds Defendant’s removal to federal court
was objectively reasonable. See generally Butler v. RLB Contracting, Inc., No.
3:14–cv–112, 2014 WL 1653078, at *4 (S.D.Tex. Apr. 24, 2014) (denying request
for attorney's fees because the law was unsettled, among other things). There are
no unusual circumstances to find otherwise. Therefore, the Court will not award
attorney's fees.

Conclusion
Based upon the foregoing, the Motion to Remand is well taken.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Remand, [Doc. No. 122] is
granted. This matter is remanded to the Circuit Court of the Twenty Second
Judicial Circuit for the City of St. Louis, Missouri.
IT IS FURTHER ORDERED that Plaintiff’s Request for Attorney’s Fees
is denied.
Dated this 10th day of April, 2015.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE