Figueroa v. Marine Inspection Services, LLC et al
Filing
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ORDER granting 6 Motion to Remand.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
OLIVER FIGUEROA,
§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:14-CV-140
§
MARINE INSPECTION SERVICES, LLC, §
et al,
§
§
Defendants.
§
ORDER
Plaintiff, Oliver Figueroa (Figueroa) sustained injuries and burns when performing
hot work on the vessel, MOC 10, while it was in dry dock on March 18, 2013. He has
sued Defendant Marine Inspection Services, LLC (Marine Inspection) based on its
responsibility for permitting and monitoring hot work on the vessel. He has also sued
Defendant Third Coast Towing, LLC (Third Coast), the owner of the vessel, alleging that
the vessel was unseaworthy.
He charges both Defendants with negligence and
negligence per se under the general maritime law and/or Longshore and Harbor Workers
Compensation Act, 33 U.S.C. § 905(b) and/or Texas common law. D.E. 1-5. Figueroa
filed his case in state court, reciting jurisdiction under the saving to suitors clause of 28
U.S.C. § 1333(1) and requesting a jury trial. Id.
Defendants timely removed the case to this Court arguing that, under 28 U.S.C.
§ 1441(a), removal is permitted on the sole basis of this Court’s original jurisdiction over
maritime claims. Pending before this Court is Figueroa’s Motion to Remand (D.E. 6),
urging that: (1) original maritime jurisdiction does not attach because the incident took
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place when the vessel was dry docked on land, not in navigable waters; and (2) removal
may not be based solely on federal court maritime or admiralty jurisdiction. For the
reasons set out below, the Motion to Remand is GRANTED.
A. This Court Has Maritime Jurisdiction:
The Dry Dock Was In Navigable Waters.
Maritime jurisdiction exists when: (1) the tort involves a vessel on navigable
water; (2) the incident has “a potentially disruptive impact on maritime commerce;” and
(3) the general character of the incident bears a “substantial relationship to traditional
maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513
U.S. 527, 534 (1995); Scarborough v. Clemco Industries, 391 F.3d 660, 663 (5th Cir.
2004).
Defendants have briefed all three factors, relying in part on the historical
treatment of the type of claims made in Plaintiff’s Original Petition (D.E. 1-5). See
generally, Taylor v. Kennedy Engine, Inc., 861 F.2d 127, 129 (5th Cir. 1988) (repair of a
vessel in dry dock is a maritime function); Warner v. Travelers Ins. Co., 332 S.W.2d 789,
792 (Tex. Civ. App.—Houston [1st Dist.] 1960, writ ref’d n.r.e.) (repair of a vessel in
navigable waters is a maritime function).
Figueroa challenges only the first factor: whether the vessel was on navigable
water at the time of the incident. Figueroa correctly observes that the burden of proof is
on Defendants, the removing parties. E.g, Aguilar v. Boeing Co., 47 F.3d 1404, 1408
(5th Cir. 1995) (the removing party bears the burden of demonstrating federal
jurisdiction). Figueroa offers only an unauthenticated, unexplained internet picture of the
John Bludworth Shipyard as raising the issue that “The dry dock appears to be on land,
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not water.” D.E. 6, p. 4. Yet he concedes that if the dry dock on which the incident
occurred were determined to be a floating dry dock, it would be in navigable waters
sufficient to trigger general admiralty jurisdiction. D.E. 6, p. 2, n.1. See also, Avondale
Marine Ways, Inc. v. Henderson, 201 F.2d 437 (5th Cir.), aff’d, 346 U.S. 366, 367 (1953)
(per curiam; Burton, J., concurring) (floating dry docks, graving docks, and marine
railways are all considered to be in navigable waters); Flowers v. Travelers Ins. Co., 258
F.2d 220 (5th Cir. 1958) (injury on floating dry dock occurs in navigable waters).
Defendants have responded with the Declaration of James Bell. D.E. 7-1, 8-1.
Bell testifies that he has personal knowledge of the John Bludworth Shipyard dry dock
and that it is “a floating dock located in [the] Corpus Christi ship channel and is not
situated on land.” Id. As there is no controverting evidence, the Court FINDS that the
incident occurred on a floating dry dock on navigable waters and that this incident
satisfies the requirements of maritime jurisdiction under 28 U.S.C. § 1333(1) and
Grubart.
The Court rejects Figueroa’s first argument and concludes that the claims fall
within this Court’s maritime jurisdiction. However, the case does not fall within this
Court’s “original” maritime jurisdiction, a distinction that is crucial to the determination
of removability, discussed below.
B. The Law Requires An Independent Jurisdictional Basis
When Claims Fall Within the Saving to Suitors Clause.
While this Court’s maritime or admiralty jurisdiction would permit adjudication of
Figueroa’s claims had he filed them here, it is a different question whether Defendants
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have the right to remove those claims to this Court in disregard of Figueroa’s chosen state
forum. Historically, such claims have not been subject to removal absent an independent
basis for federal jurisdiction. This was the result whether the court relied on the language
of the removal statute (28 U.S.C. § 1441) or the saving to suitors clause of the
jurisdictional statute (28 U.S.C. § 1333).
Defendants rely on Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex.
2013) (addressing FEDERAL COURTS JURISDICTION AND VENUE CLARIFICATION ACT OF
2011, § 105, Pub. L. No. 112–63, 125 Stat. 758). The Ryan opinion concluded that the
amendment of § 1441(b) of the removal statute on December 7, 2011, eliminated the
requirement of a separate jurisdictional trigger for maritime cases. Under Ryan, saving to
suitors claims are removable simply by virtue of arising out of admiralty or maritime fact
scenarios. This Court disagrees with the holding in Ryan. See Rogers v. BBC Chartering
America, LLC, 2014 WL819400 at *1 (S.D. Tex. March 3, 2014) (“maritime cases filed
in state court cannot be removed to federal court unless an independent basis for federal
jurisdiction exists”; “Nothing in the 2011 amendments to the removal statutes altered this
traditional understanding”).
The key to the treatment of maritime cases involving saving to suitors claims lies
in 28 U.S.C. § 1441(a)—predicate eligibility. To be eligible for removal, a case must fall
within the “original jurisdiction” of the federal courts:
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
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court of the United States for the district and division
embracing the place where such action is pending.
28 U.S.C. § 1441(a) (emphasis added).
While the district courts generally have “original jurisdiction” over admiralty or
maritime cases, the saving to suitors clause exempts from that “original jurisdiction” “all
other remedies to which [suitors] are otherwise entitled.” 28 U.S.C. § 1333(1). Any
remedy, such as a right to a jury trial,1 that does not fall within the traditional admiralty
or maritime jurisdiction thus is not subject to “original jurisdiction” as defined by § 1333.
If it is not subject to “original jurisdiction,” it is not removable under § 1441. The
amendment to § 1441(b) did not address the “original jurisdiction” requirement.
The Ryan opinion has been followed by several trial courts within the Fifth
Circuit.2 These courts did not address the fact that removal of saving to suitors clause
claims could allow defendants—unilaterally—to eliminate a plaintiff’s right to a jury
trial. This is a deprivation ostensibly preserved by the saving to suitors clause.3 The only
1
Admiralty jurisdiction does not extend to claims at law made against defendants in personam. E.g., Luera v. M/V
Alberta, 635 F.3d 181, 194 (5th Cir. 2011).
2
See, Provost v. Offshore Service Vessels, LLC, No. 14-89-SDD-SCR, 2014 WL 2515412 (M.D. La. June 4,
2014); Garza v. Phillips 66 Co., No. 13-742-SDD, 2014 WL 1330547 (M.D. La. Apr. 1, 2014); Harrold v. Liberty
Insurance Underwriters, Inc., No. 13-762-JJB-SC, 2014 WL 688984 (M.D. La. Feb. 20, 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., No. 13477-JJB, 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).
3
Figueroa’s in personam claims brought at law in state court entitle him to a jury trial. E.g., Luera v. M/V Alberta,
635 F.3d 181, 188 (5th Cir. 2011). Had Figueroa originally filed his claim in this Court pursuant to its maritime
jurisdiction alone, he would not be entitled to a jury trial. Id.
If a claim is pleaded under diversity jurisdiction, the rules of civil procedure will
apply, and the parties will be guaranteed, under the Seventh Amendment, a right
to have the claim tried by a jury. Atl. & Gulf Stevedores, 369 U.S. at 360, 82
S.Ct. 780. If the claim is pleaded under admiralty jurisdiction, however, the
plaintiff will invoke “those historical procedures traditionally attached to actions
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decision that recognized the jury trial issue did so only indirectly, acknowledging that the
plaintiff had not made a jury demand. Provost v. Offshore Service Vessels, LLC, No. 1489-SDD-SCR, 2014 WL 2515412 (M.D. La. June 4, 2014). In Perio v. Titan Maritime,
LLC, No. H-13-1754, 2013 WL 5563711 (S.D. Tex. Oct. 8, 2013), the jury trial issue was
identified and the parties were ordered to provide additional briefing. However, the
subsequent removal decision was based on unrelated grounds. Perio v. Titan Maritime,
LLC, No. H-13-1754, 2013 WL 6654239 (S.D. Tex. Dec. 17, 2013).
Figueroa has invoked the saving to suitors clause and has made a jury demand.
D.E. 1-5. Three of the four cases4 that reject the Ryan holding do so on the argument that
the saving to suitors clause preserves the plaintiff’s right to a jury trial in state court by
“prohibiting” removal. Pierce v. Parker Towing Co., Inc., No. 14-00073-KD-N, 2014
WL 2569132 (S.D. Ala. June 9, 2014); Barry v. Shell Oil Co., No. 13-6133, 2014 WL
775662 (E.D. La. Feb. 25, 2014); Coronel v. AK Victory, No. C13-2304JLR, 2014 WL
820270 (W.D. Wash. Feb. 28, 2014).
While this Court agrees with the result of these cases, this Court finds that the
saving to suitors clause does not “prohibit” removal. The saving to suitors clause has
never prevented removal of such claims based on federal question or diversity
in admiralty.” Durden v. Exxon Corp., 803 F.2d 845, 849 n.10 (5th Cir. 1986).
One of the historical procedures unique to admiralty is that a suit in admiralty
does not carry with it the right to a jury trial. Waring v. Clarke, 46 U.S. 441,
460, 5 How. 441, 12 L.Ed. 226 (1847); see also Becker v. Tidewater, Inc., 405
F.3d 257, 259 (5th Cir. 2005).
4
The fourth case, Gabriles v. Chevron USA, Inc., No. 2:14-00669, 2014 WL 2567101 (W.D. La. June 6, 2014),
relies on the saving to suitors clause without express reference to the right to a jury trial.
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jurisdiction. Rather, it is the requirement of “original jurisdiction” that makes these cases
ineligible for removal.
The Fifth Circuit has stated that the saving to suitors clause “exempts” a case from
removal, yet does not guarantee a plaintiff a state forum if there is an independent basis
for federal jurisdiction:
[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. 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-tosuitors” 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).
As a primary matter, this court has emphasized that “the
saving to suitors” clause under general maritime law “does
not guarantee [plaintiffs] a nonfederal forum, or limit the right
of defendants to remove such actions to federal court where
there exists some basis for federal jurisdiction other than
admiralty.” Tenn. Gas [Pipeline v. Houston Cas. Ins.], 87
F.3d [150], 153 [(5th Cir.1996)] (emphasis in original).
Instead, removal of maritime cases is permissible as long as
there is an independent basis for federal jurisdiction. See id.
Barker, at 220. It is the necessity of “original jurisdiction” that reconciles the concept of
the saving to suitors clause “exempting” a case from removal, yet not guaranteeing a
plaintiff a state forum.
While this Court would have “original jurisdiction” pursuant to 28 U.S.C. § 1333
over Figueroa’s claims had he filed them here (waiving his right to a jury trial), “original
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jurisdiction” evaporated when he filed his action in state court, making the claims nonremovable on the basis of admiralty jurisdiction. There is no separate basis for federal
jurisdiction in this case so removal is improper. This Court finds that requiring an
independent jurisdictional basis for removal operates to preserve the right to a jury trial in
what would otherwise be an admiralty claim entitled only to a bench trial, see generally,
Luera, supra at 193-96.
CONCLUSION
For the reasons set out above, the Court GRANTS Plaintiff’s Motion to Remand
(D.E. 6) and remands this action to the County Court at Law No. 1, Nueces County,
Texas, the court from which it was removed.
ORDERED this 1st day of July, 2014.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE
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