Waddell v. Chevron USA, Inc.

Filing 34

OPINION AND ORDER OF REMAND granting 8 Motion to Remand. Case is remanded to the 56th District Court of Galveston County, Texas.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
TYRELL WADDELL,
Plaintiff,
VS.
EDISON CHOUEST OFFSHORE and
CHEVRON USA, INC.,
Defendants.

§
§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. G-14-170

OPINION AND ORDER OF REMAND
The above referenced cause, alleging negligence and gross
negligence and seeking damages under the Jones Act, 46 U.S.C. §
30104, general maritime law, and the “saving to suitors clause,” 28
U.S.C. § 1333, for injuries Plaintiff Tyrell Waddell (“Waddell”)
allegedly

suffered

when

he

was

electrocuted

by

a

defective

electrical relay while working in navigable waters on board a
vessel owned by Defendant Edison Chouest Offshore (“ESO”)1 and
operated by Chevron USA, Inc. (“Chevron”), was filed on April 6,
2014, served on Chevron on April 24, 2014, and removed from the 56th
District Court of Galveston County, Texas by Chevron on May 22,
2014.

Pending before the Court is Waddell’s motion to remand

(instrument #8).
It is undisputed that this action was timely removed within
thirty days after the suit was commenced in Texas state court and
that the Federal Courts Jurisdiction and Venue Clarification Act of
2011 was then in effect.
1

In their response, #13 at p.1, Defendant Island Ventures
II, LLC (“Island Ventures”) states that it was incorrectly sued
as Edison Chouest Offshore.
-1-

Standard of Review
“‘Federal courts are courts of limited jurisdiction’”; they
possess

“‘only

statute.’”

that

power

authorized

by

Constitution

and

by

Gunn v. Minton, 133 S. Ct. 1099, 1064 (2013), quoting

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
(1994).

Under 28 U.S.C. § 1441(a) any state court action over

which federal courts would have original jurisdiction may be
removed from state to federal court.

Gasch v. Hartford Accident &

Indemnity Co., 491 F.3d 278, 282 (5th Cir. 2007; Guttierrez v.
Flores, 543 F.3d 248, 251 (5th Cir. 2008)(“A district court has
removal

jurisdiction

in

any

case

where

it

has

original

jurisdiction.”). The original jurisdiction for purposes of removal
may be federal question jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.”) or diversity jurisdiction under 28 U.S.C. §
1332(a) (where there is complete diversity of citizenship between
the

sides

and

the

amount

in

controversy

exceeds

the

$75,000.00, excluding interest and costs).2

2

Section 1332(a) and (c) provide in relevant part,

(a) The district courts shall have original
jurisdiction of all civil actions where the matter in
controversy exceeds the sum or value of $75,000,
exclusive of interest and costs, and is between
(1) citizens of different States;
(2) citizens of a State and citizens or subjects
-2-

sum

of

The right to remove depends upon the plaintiff’s pleading at
the time of the petition for removal.

Pullman Co. v. Jenkins, 305

U.S. 534, 537-38 (1939); Cavallini v. State Farm Mutual Auto Ins.,
44 F.3d 256, 264 (5th Cir. 1995); Ford v. Property & Cas. Ins. Co.
of Hartford, No. Civ. A. H-09-1731, 2009 WL 4825222, *2 (S.D. Tex.
Dec. 9, 2009).
The removing party bears the burden of showing that subject
matter jurisdiction exists and that removal was proper. Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
Because removal deprives the state court of an action properly
before it, removal raises significant federalism concerns and the
statute is therefore to be strictly construed, with any doubt about

of a foreign state, except that the district
courts shall not have original jurisdiction under
this subsection of an action between citizens of a
State and citizens or subjects of a foreign state
who are lawfully admitted for permanent residence
in the United States and are domiciled in the same
State;
(3) citizens of different States and in which
citizens or subjects of a foreign state are
additional parties; and
(4) a foreign state, defined in section 1603(a) of
this title, as plaintiff and citizens of a State
or of different States. . . .
(c) For purposes of this section and section 1441 of
this title-–
(1) a corporation shall be deemed to be a citizen
of every State and foreign state by which it has
been incorporated and of the State or foreign
state where it has its principal place of business
. . . .
-3-

the propriety of removal resolved in favor of remand. Gutierrez v.
Flores, 543 F.3d 258, 251 (5th Cir. 2008).
Applicable Law
Up Until January 6, 2012
Title 28 U.S.C. § 1333(1) provides, “The district courts shall
have original jurisdiction, exclusive of the courts of the States,
of . . . [a]ny civil case of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which they are
otherwise entitled.” “Federal admiralty jurisdiction exists giving
a court jurisdiction over a dispute if the tort occurs on navigable
waters3

and

the

tort

bears

a

significant

relationship

to

3

For purposes of admiralty jurisdiction, the Supreme Court
defined “navigable waters” in The Daniel Ball, 77 U.S. 557, 563
(1870):
Those rivers must be regarded as public navigable
rivers in law which are navigable in fact. And they
are navigable in fact when they are used, or are
susceptible of being used, in their ordinary condition,
as highways for commerce, over which trade and travel
are or may be conducted in the customary modes of trade
and travel on water. And they constitute navigable
waters of the United States within the meaning of the
acts of Congress, in contradistinction from the
navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with
other waters, a continued highway over which commerce
is or may be carried on with other States or foreign
countries in the customary modes in which such commerce
is conducted by water.
Subsequently this test has been applied to “all bodies of water,
not just rivers, natural as well as artificial.” Sanders, 861
F.2d at 1377 (In short, then, navigable waters of the United
States are those waters capable, in fact, of navigation in
interstate travel or commerce, and distinctions between natural
and manmade bodies of water are immaterial.”).
-4-

traditional maritime activity.”

Sanders v. Placid Oil Co., 861

F.2d 1374, 1376-77 (5th Cir. 1988), citing Foremost Ins. Co. v.
Richardson, 457 U.S. 668, 674 (1982). “[A] party seeking to invoke
federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over
a

tort

claim

must

satisfy

conditions

connection with maritime activity.”

both

of

location

and

Jerome B. Grubart, Inc. v.

Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995), cited by
Venable v. Louisiana Workers’ Compensation Corp., 740 F.3d 937, 944
(5th Cir. 2013).4

For the first prong, the court asks whether the

tort occurred on navigable waters or whether injury suffered on
land was caused by a vessel on navigable water.

Id., id.

For the

connection prong, the court examines “‘the general features of the
type of incident involved,’ to determine whether the incident has
‘a

potentially

disruptive

impact

on

maritime

commerce’”

and

determines “whether the general character of the activity giving
rise to the incident shows a substantial relationship to maritime
activity.”

Id. [citations omitted]; id.

4

To determine if there is a connection to traditional
maritime activity, the court must examine whether the general
features of the kind of accident involved has a potentially
disruptive impact on maritime commerce and whether the general
character of the activity giving rise to the incident shows a
“substantial relationship to traditional maritime activity.”
Grubart, 513 U.S. at 534. Traditionally admiralty has provided
protection of seamen injured in the service to their vessel.
Taylor v. Kennedy Engine, Inc., 861 F.2d 127, 130 (5th Cir.
1988). See also Coats v. Penrod Drilling Corp., 61 F.3d 1113,
1119 (5th Cir. 1995)(“Providing compensation for shipboard
injuries is a traditional function of the admiralty laws.”),
citing Sisson v. Ruby, 497 U.S. 358, 368-75 (1990).
-5-

Traditionally a plaintiff had three possible options for
bringing an admiralty or maritime claim:

he could bring his suit

in admiralty jurisdiction in federal court under the grant of
original and exclusive subject matter jurisdiction under § 1333,
typically with no right to trial by jury; he could bring a
diversity of citizenship claim in a federal district court, with
the right to a jury if one party demands it, and he could limit
that jurisdiction with a binding forum-selection clause; or he
could assert his claim at law (at common law), grounded in tort or
contract, under the saving to suitors clause in a state court.5
See 14A Charles Alan Wright, et al., Federal Practice and Procedure
§ 3672 (3d ed. 1998).
Also traditionally, the saving to suitors clause referenced in
§ 1333(1) was interpreted to allow a plaintiff to file admiralty
and maritime actions with claims “at law,” otherwise exclusively
within the jurisdiction of the federal courts in state court.
Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1542 (5th Cir. 1991),
citing 1 S. Friedell, Benedict On Admiralty, § 122 (6th ed. 1991).
If a plaintiff elected to bring admiralty and maritime claims in
state court, the claims could not be removed in the absence of
diversity

of

citizenship

unless

5

there

was

another

basis

for

Only in personam actions may be brought on the common law
alternative under the saving to suitors clause (non-admiralty
jurisdiction); in rem actions against the vessel must be brought
exclusively in federal court. 14A Charles Alan Wright, et al.,
Federal Practice and Procedure § 3672 (3d ed. 1998).
-6-

jurisdiction besides admiralty.

In re Eckstein Marine Service,

LLC, 672 F.3d 310, 315-16 (5th Cir. 2012), cert. denied, 133 S. Ct.
96 (2012); see also

Morris v. TE Marine Corp., 344 F.3d 439, 444

(5th Cir. 2003)(General maritime law claims saved to suitors, by
themselves, are not removable from state court.), citing Romero
Int’l

Terminal

(1959)(superseded

Operating

Co.,

by

on

statute

358
other

U.S.
grounds,

354,
45

377-79
U.S.C.

§

59)(“saving to suitors” claims are not removable because maritime
claims do not arise under the laws or Constitution or the United
States and therefore do not present federal questions.); Barker v.
Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir. 2013)(Although
federal courts have original jurisdiction over maritime claims
under 28 U.S.C. § 1331, when a plaintiff files suit with general
maritime law claims in state court under the saving to suitors
clause, there is no removal jurisdiction unless removal is based on
another jurisdictional grant such as diversity of citizenship or an
applicable federal statute, such as the Outer Continental Shelf
Lands Act (“OCSLA”), 43 U.S.C. § 1349, which grants original
jurisdiction.), citing In re Dutile, 935 F.2d 61, 63 (5th Cir.
1991).

Nevertheless, where there was some other basis for federal

jurisdiction than admiralty in a suit initiated in state court,
e.g., diversity or federal jurisdiction granted under a separate
statute,6 the case is removable.

Id., citing Tenn. Gas Pipeline v.

6

Such as the Outer Continental Shelf Lands Act (“OCSLA”) in
federal court.
-7-

Houston Cas. Ins., 87 F.3d 150, 153 (5th Cir. 1996)(emphasis in
original)(the

“savings

to

suitor

clause

“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,” such as under
a separate statute or diversity jurisdiction).
2011 Revision of the Removal Statute, 28 U.S.C. § 1441
The Federal Courts Jurisdiction and Venue Clarification Act of
2011, enacted on December 7, 2011, effective as of January 6, 2012,
amended 28 U.S.C. § 1441.

The previous version of § 1441 provided

that general maritime claims were not removable absent federal
question or diversity jurisdiction and stated in relevant part
[emphasis on key portions for the instant dispute added by this
Court],
(a) 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.
(b) 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 or 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.
While federal courts have original jurisdiction over maritime and
admiralty claims, such claims do not present a federal question

-8-

because they do not “arise under” the Constitution or laws of the
United States.

Romero v. Int’l Terminal Operation Co., 358 U.S.

354, 367-68 (1959).

See also In re Dutile, 935 F.2d 61, 62-63 (5th

Cir. 1991)(citing Romero)(Based on the words in § 1441(a), “Except
as otherwise expressly provided by Act of Congress,” and in §
1441(b),

“founded

on

a

claim

or

right

arising

under

the

Constitution, treaties or laws of the United States,” the Fifth
Circuit held that (1) maritime claims filed in state court are not
removable absent diversity jurisdiction because they do not arise
under the Constitution, treaties or laws of the United States,
i.e., no federal question jurisdiction]; (2) the old version of §
1441 was an “Act of Congress” that barred removal of such claims,
by themselves; and (3) maritime claims are governed by the phrase
“any other such action” [one lacking federal question jurisdiction]
in § 1441(b), are not removable unless none of the defendants is a
citizen of the state in which the action is brought.).

“In other

words, the second sentence in subsection (b) established the
familiar ‘forum-defendant rule’ for cases removed on the basis of
diversity

jurisdiction

admiralty cases.”
F. Supp. 2d

while

incidentally

barring

removal

of

Hamerly v. Tubal-Cain Maine Services, Inc.,

, Civ. A. No. 1:14-CV-130, 2014 WL 5149752, at *2

(E.D. Tex. June 12, 2014).
Thus before the enactment of the Federal Courts Jurisdiction
and Venue Clarification Act, it was settled law that to remove a
case filed in state court and arising under general maritime law to
-9-

federal

court,

there

had

to

be

an

independent

basis

for

jurisdiction, e.g., a federal statute granting jurisdiction to
federal courts or diversity jurisdiction (with no defendant from
the forum state).

See Dutile, 935 F.2d at 63 (“The practical

effect” of § 1441(a) and (b) “is to prevent removal of admiralty
claims pursuant to § 1441(a) unless there is complete diversity of
citizenship (predicated upon out-of-state defendants.)”).
In December 2011, § 1441, under a new title, “Removal of Civil
Actions,” was revised in relevant part to state as follows:
(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.
(b) Removal based on diversity of citizenship-. . . .
(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.
Thus in the new version the “arising under” language in the prior
§ 1441(a) has been removed and there is no distinction between
claims arising under federal law and “[a]ny other such actions” in
§1441(b); rather, the latter provision relates only to removals
based on diversity jurisdiction.
The amendment expressly applies only to actions commenced on
or after expiration of the 30-day period beginning on the date of
-10-

enactment (December 7, 2011), i.e., it expired on January 6, 2012.
Pub. L. 112-63, § 105, 125 Stat. 758 (2011).
retroactive:

Moreover it is not

Congress stated that the amended § 1446 applies to

“any action that is removed from a State court to a United States
district court and that had been commenced, within the meaning of
State law, on or after such effective date [January 6, 2012].” Pub.
L. No. 112-63 § 205, 125 Stat. 758, 764-65 (2011).

“An action or

prosecution commenced in State court and removed to Federal court
shall be deemed to commence the date the action or prosecution was
commenced, within the meaning of State law, in State court.”

Id.;

see also, e.g., Meeks v. Damillie, Civ. A. No. 2:11CV253-NBB-JMV,
2013 WL 5464639, at *2 (N.D. Miss. Sept. 30, 2013).
There is an ongoing dispute among the district courts of this
Circuit

about

the

effect

of

the

“clarification”

(the

Fifth

Circuit’s term, used deliberately, in contrast to “amendment”) of
the removal statute, which has not still not been resolved by the
Fifth Circuit Court of Appeals. Barker v. Hercules Offshore, Inc.,
713 F.3d 208, 223 (5th Cir. 2013)(opining that “the updated version
is a clarification, as opposed to an amendment, of the original
statute”).7

As discussed below, some courts now permit removal of

7

Barker, although issued in 2013, applied the language of
and was decided under the old § 1441(b). Barker held that
maritime cases “are exempt from removal by the ‘saving to
suitors’ clause of the jurisdictional statute governing admiralty
claims [a] and therefore may only be removed when original
jurisdiction is based on another jurisdictional grant such as
diversity of citizenship.” 713 F.3d at 219. The panel observed
that the legislative history demonstrates that “the update
-11-

a maritime claim filed in state court even where there is no
independent basis for jurisdiction such as diversity, while others
conclude that the seaman’s choice to file in state court under the
saving to suitors clause bars removal, in deference to the original
Judiciary Act of 1789, which must be respected.

There is also

conflict about when an action is “commenced” under Texas law when
a new defendant is added to an existing suit.
A key district court decision by the Honorable Gray H. Miller,
Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772 (S.D. Tex.
2013),

found

the

changes

under

the

Clarification

Act

to

be

substantial and denied a motion to remand based on the new §
1441(b) on the grounds that the court now had original jurisdiction
over Ryan’s general maritime law claims.

Id. at 776.

Noting that

the previous § 1441(a), limiting removal to claims over which the
court had original jurisdiction unless they are barred by an Act of
Congress,

remained

referencing

(with

“original”

both

old

and

jurisdiction),

new
he

section

reasoned

1441(a)s
that

the

unambiguous, amended version of § 1441(b) addresses only cases
removed on diversity of citizenship.

He emphasized that the two

phrases that the Fifth Circuit cited as constituting an Act of
Congress limiting removal of general maritime claims, “arising
under the Constitution” and “[a]ny other such action,” were deleted
by the revision.

The “clear and unambiguous” language of Section

version is a clarification, as opposed to an amendment, of the
original statute.” Id. at 223.
-12-

1441(b)

now

bars

only

removal

of

claims

based

on

diversity

jurisdiction where a defendant is a citizen of the forum state;
according to Judge Miller, the revision therefore allowed removal
of all claims over which federal district courts have original
jurisdiction, including their original jurisdiction over personal
injury claims brought under general maritime law pursuant to §
1331(1).

Ryan, 945 F. Supp. 2d at 778.

He concluded that the

savings to suitors clause preserves the right of maritime suitors
to pursue nonmaritime remedies, but it does not guarantee them a
nonfederal forum.

Id. at 774.

In accord, see, e.g., Perio v.

Titan Maritime, LLC, No. Civ. A. H-13-1754, 2013 WL 5563711, at “10
(S.D. Tex. Oct. 8, 2013); Wells v. Abe’s Boat Rental, Inc., Civ. A.
No. H-13-1112, 2013 WL 3110322, at *2-4 (S.D. Tex. June 18, 2013);
Provost v. Offshore Service Vessels, LLC, Civ. A. No. 14-89-SDDSCR, 2014 WL 2515412, at *3 (M.D. La. June 4, 2014); Bridges v.
Phillips 66 Co., Civ. A. 13-477, 2013 WL 6092803, at *4 (M.D. La.
Nov. 19, 2012); Carrigan v. M/V AMC Ambassador, No. H-13-3208, 2014
WL 358353, at *2 (S.D. Tex. Jan. 31, 2014).
A number of district courts, indeed the majority8 in the Fifth
Circuit, have disagreed with and rejected Ryan. See, e.g., Serigny

8

Boudreaux v. Global Offshore Resources, LLC, No. Civ. A.
14-2507, 2015 WL 419002, at *4-5 (W.D. La. Jan. 30, 2015)(“Until
the Fifth Circuit definitively decides this issue, I am
disinclined to hold that Congress intended to make such a major
substantive change to § 1441, which would, in effect, upset
centuries of well-established precedent by denying plaintiffs
their right to a jury trial.”).
-13-

v. Chevron U.S.A., Inc., Civ. A. No. 14-0598, 2014 WL 6982213, at
*4(W.D. La. Dec. 9, 2014)(“In sum, the undersigned is compelled to
join the growing chorus of district courts that have concluded that
the [Federal Courts Jurisdiction and Venue Clarification Act] did
not upset the long-established rule that general maritime law
claims, saved to suitors, are not removable to federal court,
absent some basis for original federal jurisdiction other than
admiralty. While the undersigned appreciates the argument in favor
of

revisiting

this

enduring

principle,

any

course

correction

remains within the exclusive domain of the higher court(s) or
Congress, via explicit legislation.”);
Marine Services, LLC,

F. Supp. 2d

Gregoire v. Enterprise
,

No. Civ. A. 14-840,

2014 WL 3866589, at *2-9 (E.D. La. Aug. 6, 2014)(concluding “that
general maritime law claims are not removable under Section 1333 as
part of the original jurisdiction of this court and require an
independent basis of jurisdiction”)(“28 U.S.C. § 1333 and more than
200 years of precedent” interpreting this statutory grant of
admiralty jurisdiction, “rather than the 2011 amendment to the
removal

statute

.

.

.

determine

the

removability”

of

the

plaintiff’s claims; “If state court maritime cases were removable
under Section 1333, the effect would be tantamount to considering
all maritime law claims as part of federal question jurisdiction
under Section 1331, eviscerating the saving to suitors clause and
undermining the holding and policies discussed at length in Romero.
As already established, maritime law claims brought under the
-14-

saving to suitors clause in state court have traditionally required
some other basis of jurisdiction independent of Section 1333 to be
removable, supported by practical reasons and sound policy. . . .
Congress has not given any indication that it intended to make
substantive changes to removal of admiralty matters, and the Fifth
Circuit has not indicated otherwise.”); Figueroa, 28 F. Supp. 3d
677 (“‘[Original jurisdiction’ evaporated when [the plaintiff’
filed his action in state court, making the claims unremovable on
the basis of admiralty jurisdiction . . . . 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.”); Rogers v. BBC
Chartering America, LLC, Civ. A. No. 4:13-CV-3741, 2014 WL 819400,
at *1 (S.D. Tex. 2014)(holding the 2011 amendment of § 1441 did not
change

the

removability

of

admiralty

Breathwite Marine Contractors, Ltd.,

claims);

Rutherford

F. Supp. 3d

v.

, Civ. A.

No. 3:13-0312, 2014 WL 6388786, at *4 (S.D. Tex. 2014)(“Ryan
focused on the justification for nonremovability offered in In re
Dutile, while ignoring precedent suggesting that the ‘saving to
suitors’ clause itself renders such actions non-removable.”).

See

Romero, 358 U.S. at 371072 . . . (‘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 expanded view of §
1331,

since

the

saving-clause

actions

would

then

be

freely

removable under § 1441' . . . . Furthermore . . . [t]he Fifth
-15-

Circuit has held that the tradition of bench trials on admiralty
issues in federal court cannot trump a plaintiff’s constitutional
right to a jury trial for non-admiralty claims. [citing Leura v.
M/V Alberta, 635 F.3d 181, 196 (5th Cir. 2011)]"); Parker v. US
Environmental Services, LLC, Civ. A. No. 3:14-CV-292, 2014 WL
7338850,

at

*2-6

(S.D.

Tex.

Dec.

22.

2014)(agreeing

Rutherford, Gregoire, Figueroa, Alexander, and Rogers).
David W. Robertson and Michael F. Sturley,

with

See also

Recent Developments in

Admiralty and Maritime Law at the National Level and in the Fifth
and Eleventh Circuits, 38 Tulane Maritime L.J. 419, 476-78 (Summer
2014)(“We do not believe the Fifth Circuit will agree with the Ryan
court.”)
Jones Act, 46 U.S.C. § 30104
“A Jones Act9 claim is an in personam action for a seaman who
suffers injury in the course of employment due to negligence of his
employer, the vessel owner, or crew members.
Clark Marine, Inc., 531 U.S. 438, 441 (2001).

Lewis v. Lewis &
The Jones Act

provides a remedy to personally injured seamen and their survivors

9

Originally designated as 46 U.S.C. app. § 688, on October
6, 2006 the Jones Act was repealed and re-codified by Congress by
Public Law 109-304, § 6(c), 120 1510. It is now codified as
amended at 46 U.S.C. § 30104, which provides,
A seaman injured in the course of employment or, if the
seaman dies from the injury, the personal
representative of the seaman may elect to bring a civil
action at law with the right of trial by jury, against
the employer. Laws of the United States regulating
recovery for personal injury to, or death of, a railway
employee apply to an action under this section.
-16-

of compensation for personal injury and/or wrongful death caused by
the negligence of the seaman’s employer, vessel owner, or crew
members.
Generally Jones Act cases are not removable.

28 U.S.C. §

1445(a). Preston v. Grant Advertising, Inc., 375 F.2d 439 (5th Cir.
1967).10 The Jones Act incorporates the Federal Employees Liability
Act (“FELA”), 45 U.S.C. § 51 et seq., 46 U.S.C. § 30104.

Pursuant

to 45 U.S.C. § 1445, FELA actions are not removable and its
incorporation into the Jones Act results in Jones Act claims not
being subject to removal even if the parties are diverse.

See

Aarons v. Phillips 66 Co., 2015 WL 575358, at *(E.D. La. Feb. 11,
2015)(not considering argument whether the amendments of § 1441
allow removal of general maritime claim on basis of admiralty
jurisdiction

alone

because

the

presence

of

Jones

Act

claim

precludes removal under § 1441(c)).
Many district courts, mindful of the established principle
that all doubts about the propriety of removal should be resolved
in

favor

of

remand,

have

found

the

conflicts

amendment/revision sufficient to warrant remand.

over

the

2011

See, e.g., cases

remanded until controversy is resolved by Congressional or judicial
action: Parker, 2014 WL 7338850 at *6; Hamerly, 2014 WL 5149752 at

10

As noted, when there is some other basis for original
federal jurisdiction other than admiralty, such as diversity of
citizenship or a statute, removal is permissible. Fields v. Pool
Offshore, Inc., 182 F.3d 353, & n.1 (5th Cir. 1999), citing inter
alia Tennessee Gas, 87 F.3d at 153-56 & nn. 5&6.
-17-

*4-5; Harbor Docking & Towing Co. LLC v. Rolls Royce Marine North
America, No. 2:14-CV-2487, 2014 WL 6608354, at *3 (“Until the Fifth
Circuit, Congress or the Supreme Court determine otherwise, this
court will adopt the reasoning previously espoused in this district
which exempts from removal maritime claims filed pursuant to the
savings to suitors clause absent a separate basis for federal court
jurisdiction, i.e., diversity of citizenship.”); Rutherford, 2014
WL 6388786 at *4-5; Harold v. Liberty Ins. Underwriters, Civ. A.
No. 14-762, 2014 WL 5801673, at *3-4 (M.D. La. Nov. 7, 2014);
Dyche, 2014 WL 5473238. at *4-5; Figueroa, 2014 WL 2958597, at *4;
Porter v. Great American Ins. Co., No. 13-3069, 2014 WL 3385148, at
*1 (W.D. La. July 9, 2014).
Waddell’s Motion to Remand (#8)
Noting that this case was removed by Chevron solely on general
maritime law, Waddell argues that it provides no basis for removal
because (1) the interpretation of the saving to suitors clause in
Romero and Barker, inter alia, requires concurrent federal-state
jurisdiction in maritime matters; and (2) any interpretation of the
saving to suitors clause permitting removal would be contrary to
longstanding jurisprudence establishing the right to a common law
remedy, including the right to a jury trial.

Rogers, 2014 WL

819400, at *1, and progeny.
Waddell reasons that if a party is able to remove under
maritime jurisdiction, the only way a party could proceed on a
general maritime claim in state court is if the defendant chooses

-18-

not to remove; indeed a claimant would only be allowed a jury trial
if the defendant chose not to remove.

He also claims that the

legislative history of the amendment of § 1441(b) demonstrates that
Ryan was wrongly decided.

The House Report11 makes clear that the

last sentence of § 1441(b) applies to diversity cases, as it always
did before.

There is appropriately no mention of maritime cases

since previously the only application § 1441(b) had to maritime
cases was if an alternate basis for jurisdiction first existed.
Waddell challenges Defendants’ reliance on Ryan, 2013 WL
1967315, by arguing that Ryan errs in the following ways: (1) Ryan
did not reach the issue of whether the “saving to suitors” clause
is an “Act of Congress” prohibiting removal because it guarantees
the common law right of jury and concurrent jurisdiction of state
and federal courts; and (2) it cannot be squared” with Romero,
Madruga v. Superior Court , 346 U.S. 556, 560 (1954)(holding that
the “saving to suitors” clause preserved a claimaint’s right “to
sue on maritime claims in common law courts.”), and Barker, all
still good law.

11

The House Report states about § 1441(b),

Proposed paragraph 1441(b) takes the substance of the
last sentence in current subsection 141(a) and places
it within the diversity subsection, as the sentence
moved pertains only to diversity cases. Proposed
paragraph 1441(b)(2) restates the substance fo the last
sentence of the current subsection 1441(b), which
relates only to diversity. (The first sentence
currently in subsection 1441(b) is deleted because its
reference to Federal question jurisdiction is addressed
in the first sentence of subsection 1441(a).
-19-

In his notice of additional authority (#17), Waddell cites
seven new federal cases, including some the Court discussed supra,
that have held remand is proper because cases cannot be removed
based solely on maritime jurisdiction based on the same reasoning
as those which the Court summarized supra.
Defendants’ Response in Opposition (#13)
As noted, Defendants rely on Ryan, 945 F. Supp. 772, which
noted that the Fifth Circuit’s Barker opinion interpreted the
previous version of § 1441 and which held that Barker did not bar
removal of maritime claims under the clear language of the revised
statute.

Defendants assert that Waddell relies on “outdated

procedure and authorities.”
To Waddell’s argument that removal here would be “absurd”
because he would not be allowed a jury trial, Defendants respond
that if Waddell properly preserves this remedy, he may be entitled
to a jury trial on his maritime claims in federal court.

See

Kenneth G. Engerrand, Admiralty Jury Trials Reconsidered, 12 Loy.
Mar. L.J. 73, 123 (2013).

While the Supreme Court “has held that

the Seventh Amendment does not require jury trials in admiralty
cases, neither that Amendment nor any other provision of the
Constitution forbids them.

Nor does any statute of Congress or

Rule of Procedure, Civil or Admiralty, for bid jury trials in
maritime cases.”

Fitzgerald v. U.S. Lines Co., 374 U.S. 16, 20

(1963)(holding that when Jones Act claims are joined with closely
related admiralty claims, the district court may try all the claims
to

the

jury

in

the

interests

of

judicial

efficiency.).

An

admiralty claim may be subject to a jury trial when the importance
-20-

of assuring a jury trial overrides historical considerations. See,
e.g., Luera v. M/V Alberta, 635 F.3d 181, 183-85 (5th Cir. 2011).12
Defendants argue that the 2011 revision of the removal statute
presents an overriding concern.

In sum, (1) Waddell’s preservation

of a jury-trial remedy does not entitle him to a nonfederal forum
nor to the right to interfere with Defendants’ right to removal,
and (3) Defendants have a right to remove general maritime claims
to this Court.
This Court notes that Leura was issued before the enactment of
the 2011 revisions to § 1441.

Moreover, the rule in Luera applies

where a claim that has a jury by right is joined with an in rem
admiralty claim, both arise from the same set of facts.

The court

in Leura allowed both to be tried to a jury for judicial efficiency
and

for

fair

administration

of

justice,

“which

override

historic traditions of trying admiralty claims the bench.”
192.

the

Id. at

This Court observes that Leura does not guarantee, but only

creates a possibility of a jury trial. More important here is that
12

Defendants observe that in Luera, after the district court
tried to a jury both a longshore worker’s in personam claims
filed under diversity jurisdiction and an in rem claim against a
vessel under admiralty jurisdiction after the two were
consolidated into a single case, defendants appealed. Defendants
then argued that the in rem claims were not subject to a jury
trial because they existed only within admiralty jurisdiction and
the plaintiff originally filed those claims in a separate suit.
The Fifth Circuit affirmed the district court, id. at p. 94,
opining,
Without an express prohibition on jury trials in
admiralty cases, we agree with the Court in Fitzgerald
that concerns of judicial economy and fair
administration of justice override the historic
tradition of trying admiralty claims to the bench when
the claims are closely related.
-21-

the Fifth Circuit explicitly limited its holding:

“To be clear, we

do not hold today that a plaintiff bringing an in rem admiralty
claim, or any other claim brought under admiralty jurisdiction, has
a right to a jury trial.

No statute, rule, or constitutional

provision confers such a right,”
by this Court).

635 F.3d at 196 (emphasis added

635 F.3d at 196.

In the alternative, if the Court determines that the removal
was improper under the 2011 amendments, Defendants argue that
Waddell may also be entitled to a jury trial under the Court’s
diversity jurisdiction.
Alabama,

that

Chevron

Plaintiff alleges that he is a citizen of
is

a

Pennsylvania

company

that

does

a

substantial amount of business in Texas, and that Island Ventures
is organized under the laws of Louisiana, and that he is seeking
damages in excess of $75,000.

Notice of Removal, #1, Ex. 1 at pp.

1-2.
Waddell objects that the Notice of Removal does not mention
diversity jurisdiction.

Hasbun v. Pan American Life Ins. Co.,

Cause No. H-13-830, Order Granting Remand (Doc. No. 18, March 28,
2014)(Hittner, J.)(Ex. A to #17)(holding that a failure to mention
a basis for removal requires the court to ignore that ground in
determining remand); Barron v. Miraglia, No. 4:04-CV-376-A, 2004 WL
1933225, at *3 (N.D. Tex. Aug. 30, 2004), quoting Hinojosa v.
Perez, 214 F. Supp. 2d 703, 707 (S.D. Tex. 2002)(Kazan,
J.)(“Defendants

clearly

may

not

remove

on

grounds

not

even

obliquely referred to in the Notice of Removal. . . . It would be
substantial injustice to allow Defendants to remove a case on one
ground and then, when faced with a serious challenge to that
-22-

ground,

attempt

to

justify

removal

on

an

entirely

different

ground.”).
The Court agrees.
LLC,

F. Supp. 3d

See Cormier v. Chet Morrison Contractors,
, No. 3:14-CV-208, 2015 WL 507513, (S.D.

Tex. Feb. 06, 2015)(Ellison, K.), citing Hinojosa and New Bethlehem
Missionary Baptist Church v. Church Mut. Ins. Co., No. Civ. A. H09-3901, 2010 WL 936477, at *3 (S.D. Tex. March 11, 2010)(Werlein,
J.).

Furthermore, a removing defendant is required to “distinctly

and affirmatively allege[] each party’s citizenship.
Mobil Oil Corp. , 945 F.2d 802, 804-05 (5

th

Stafford v.

Cir. 1991); Getty Oil

Corp. v. Ins. Co. of N. Am., 841 F.2d 1254, 1259 (5th Cir. 1988).
“[W]hen

jurisdiction

depends

upon

diverse

citizenship[,]

the

absence of sufficient averments or of facts in the record showing
such required diversity of citizenship is fatal and cannot be
overlooked by the court, even if the parties fail to call attention
to the defect, or consent that it may be waived.”

Thomas v. Bd of

Trustees of Ohio State Univ., 195 U.S. 207, 211 (1904).

For a

corporation a party invoking jurisdiction must allege both the
state of incorporation and the principal place of business.
U.S.C. § 1332(c).

28

Neither side has alleged a principal place of

business for the defendant corporations, and it is the removing
parties’ burden to do so here.
Furthermore, the black letter rule that

because

removal

deprives the state court of an action properly before it, removal
raises significant federalism concerns and the statute is therefore
to be strictly construed, with any doubt about the propriety of

-23-

removal resolved in favor of remand. Gutierrez v. Flores, 543 F.3d
258, 251 (5th Cir. 2008).

The Court has demonstrated the conflict

among courts in this Circuit has to the effect of the 2011
amendments to § 1441, as well as both sides’ failure to plead
properly

the

citizenship

of

the

Defendant

corporations

and

Defendants’ failure to assert diversity jurisdiction in their
Notice of Removal.

Accordingly, the Court

ORDERS that Waddell’s motion to remand this case to 56th
District Court of Galveston County, Texas.
SIGNED at Houston, Texas, this

20th

day of

March , 2015.

___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

-24-