Perio v. Titan Maritime, LLC et al
Filing
16
MEMORANDUM OPINION AND ORDER denying 9 MOTION to Remand. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSH PERIO,
Plaintiff,
v.
TITAN MARITIME, LLC and
T&T MARINE SALVAGE, INC.,
Defendants.
§
§
§
§
§
§
§
§
§
§
CIVIL ACTION NO. H-13-1754
MEMORANDUM OPINION AND ORDER
Defendant Titan Maritime, LLC ("Titan")
removed this action
from the 129th Judicial District Court of Harris County,
where it was filed under Cause No. 2013-17258.
court
is
Plaintiff's
(Docket Entry No.9) .
Motion
for
Remand
Texas,
Pending before the
("Motion
for
For the reasons discussed below,
Remand")
Perio's
Motion for Remand will be denied.
I.
Factual and Procedural Background
On March 22, 2013, Perio filed his Original Petition and Jury
Demand in the
Texas,
129th Judicial District Court of Harris County,
in which he named his employer,
("T&T"), and Titan as defendants.l
T&T Marine Salvage,
Inc.
Titan asserts that it was never
IPlaintiff's Original Petition & Jury Demand ("Original
Petition
Exhibit H to Titan Maritime's Brief in Opposition to
Plaintiff's Motion for Remand ("Titan's Brief in Opposi tion u ) ,
Docket Entry No. 12-8.
U
),
served with this pleading. 2
On April 5,
2013,
Perio filed his
First Amended Original Petition & Jury Demand, naming only Titan as
defendant. 3 Perio served the Texas Secretary of State as agent for
service
of
process
for
Titan on April
18,
2013. 4
The
Texas
Secretary of State forwarded a
copy of the Citation and First
Amended
certified
Petition
to
Titan
by
requested, on April 23, 2013. 5
mail,
return
receipt
Titan received service of process
on April 26, 2013. 6
On April 25,
2013,
Perio filed his Second Amended Original
Petition & Jury Demand,
in which he named both T&T and Titan as
defendants. 7
petitions,
Perio's Second Amended Petition,
asserts
causes
of
action
for
like his previous
negligence
and
gross
negligence arising out of an injury sustained "in the course and
scope of his employment on or about March 6,
San
Antonio,
Chile."8
According
to
2013,
Perio's
near Puerto
Second
Amended
2Titan's Brief in Opposition, Docket Entry No. 12, p. 10.
3Plaintiff's First Amended Original Pet it ion & Jury Demand
("First Amended Petition"), Exhibit I to Titan's Brief In
Opposition, Docket Entry No. 12-9.
4Copies of Executed Process, Exhibit A to Defendant's Notice
of Removal ("Notice of Removal"), Docket Entry No.1-I.
SId.
at 4.
6Id.
7Plaintiff's Second Amended Original Petition & Jury Demand
("Second Amended Petition"), Exhibit A to Titan's Brief In
Opposition, Docket Entry No. 12-1.
BId. at 3; see also Original Petition, Exhibit H to Titan's
Brief in Opposition, Docket Entry No. 12-8, p. 3; First Amended
(continued ... )
-2-
Petition, his injuries were caused by the "enwrapping of a cable
from the vessel onto
into
the
air.
119
[his]
Perio
leg and body," which "launched
"land led]
on his
back and
[him]
side
injuring his back, side, and body."1o
On May 28, 2013, T&T filed its Original Answer and Affirmative
Defenses in response to Perio's Second Amended Petition. l l
Answer,
T&T
argued
that
it
was
immune
from
suit
In its
under
sections 406.034 and 408.001 of the Texas Workers' Compensation Act
("TWCA")
because
insurance,
it was
a
subscriber to workers'
compensation
and Perio was injured in the course and scope of his
employment. 12
On June 11, 2013, Titan filed its Special Appearance
and Answer objecting to personal jurisdiction because Titan had not
been served with Perio's Second Amended Petition and generally
denying liability.13
continued)
Petition, Exhibit I to Titan's Brief in Opposition, Docket Entry
No. 12-9, p. 2.
8 ( •••
9S econd Amended Petition, Exhibit A to
Opposition, Docket Entry No. 12-1, p. 3.
Titan's
Brief
in
laId.
llT&T Marine Salvage, Inc.'s Original Answer and Affirmative
Defenses
("T&T's Answer"),
Exhibit K to Titan's Brief in
Opposition, Docket Entry No. 12-11.
12Id. at 2-4; see also Second Amended Petition, Exhibit A to
Titan's Brief in Opposition, Docket Entry No. 12-1, p. 3.
13Defendant Titan Maritime LLC's Special Appearance and Answer
to Plaintiff's Second Amended Original Petition and Jury Demand,
Exhibit B to Notice of Removal, Docket Entry No. 1-2, p. 16.
-3-
On June 17, 2013, Titan filed its Notice of Removal in this
court.14
Titan argues that complete diversity exists between the
parties because T&T was improperly joined because T&T asserts in
its Answer that it is immune from suit under the Texas Labor Code. 1s
On July 16, 2013, Perio filed his Motion for Remand. 16
advances two arguments supporting remand.
First, Perio argues that
Titan's Notice of Removal was untimely. 17
that,
as
currently pled,
diversity is lacking.1s
T&T
is
Perio
properly
Second,
Perio argues
joined and
complete
Perio also argues that he can establish a
cause of action against T&T under the Longshore and Harbor Workers'
Compensation Act ("LHWCA"). 19
who was
He asserts that he is a longshoreman
injured on navigable waters
while engaged
in maritime
employment, thus bringing his injuries within the coverage of the
LHWCA.2o
Perio asserts that T&T does not provide LHWCA coverage,
and, accordingly, he argues that he can bring a claim against T&T
under 33 U.S.C.
§
905(b),
which allows an employee to bring an
14Notice of Removal, Docket Entry NO.1.
15Id. at 3.
16Mot ion for Remand, Docket Entry NO.9.
17Id. at 1, 3-5.
lsId. at 2, 5-9.
19Id.
2°Id.
at 5-7.
-4 -
action for damages against his employer if his employer fails to
secure payment of LHWCA compensation. 21
Perio also argues that the
TWCA does not bar his claim against T&T because the LHWCA preempts
the TWCA as applied to his causes of action. 22
On August 8, 2013, T&T filed its Response to Perio's Motion
for Remand. 23
T&T argues that Perio's causes of action are not
covered by the
LHWCA because his
inj uries occurred on foreign
waters rather than the navigable waters of the United States. 24
T&T
argues that it is a subscriber to workers' compensation insurance
under
the
TWCA,
that
compensation under
the
Perio
is
relevant
currently
pol icy,
receiving
and
that
workers'
Perio' s
suit
against T&T is barred by sections 406.034 and 408.001 of the Texas
Labor Code. 25
T&T also argues that even if Perio's injuries do fall
within the coverage of the LHWCA,
coverage,
and
Perio's
exclusive
T&T is a subscriber to LHWCA
remedy
is
to
seek
LHWCA
compensation. 26
21Id. at 2, 5-7.
22Id.
at 8-9.
23T&T Marine Salvage, Inc.' s Response to Plaintiff's Motion for
Remand (UT&T's Response"), Docket Entry No. 10
24Id.
at I, 5-7.
25Id.
at 3-5.
26Id.
at 6.
-5-
Also on August 8, 2013, Titan filed its Supplemental Notice of
Remova1 27 and Brief in Opposition to Plaintiff's Motion to Remand. 28
In its Supplemental Notice of Removal, Titan argues that Perio's
Motion for Remand is the first paper filed in the case from which
it
could
be
ascertained
that
Perio' s
claims
admiralty jurisdiction of the federal courts. 29
fall
wi thin
the
Thus, Titan asserts
that it is entitled to assert federal admiralty jurisdiction as a
basis for removal under 28 U.S.C.
§
1441(a)-(b) .30
In its Brief in Opposition, Titan argues that the LHWCA does
not apply because Perio's injuries occurred on foreign waters. 31
Titan also argues that even if the LHWCA applies to Perio's claims
his
only
remedy
is
to
seek LHWCA compensation,
against T&T for damages is barred by 33 U. S. C.
addition,
and any
§
claim
905 (a) .32
In
Titan argues that Perio's Motion for Remand indicates
that he is asserting a maritime tort and that removal is therefore
proper on the basis of federal
u.S.C.
§
1441(a)-(b) .33
admiralty jurisdiction under 28
Titan argues that asserting a supplemental
27Ti tan
Mari time's
Supplemental
Notice
of
("Supplemental Notice of Removal"), Docket Entry No. 11.
Removal
28Titan's Brief in Opposition, Docket Entry No. 12.
29Supplemental Notice of Removal, Docket Entry No. 11.
30Id. at 2-3.
31Titan's Brief in Opposition,
Docket Entry No.
9-12.
32Id. at 12-13.
33Id. at 13-15.
-6-
----------
-------
12,
pp.
7,
basis for removal
is proper because the basis asserted was not
ascertainable when its Notice of Removal was filed.
II.
Generally,
34
Applicable Law
under 28 U.S.C.
1441(a)
§
any state court civil
action over which a federal court would have original jurisdiction
may be removed from state to federal court.
Acc.
&
Indem.
Co.,
491 F.3d 278,
courts have original
281
See Gasch v. Hartford
(5th Cir.
2007).
Federal
jurisdiction over civil actions where the
parties are diverse and the matter in controversy exceeds the sum
or value of $75,000, exclusive of interests and costs.
§
1332(a).
28 U.S.C.
Diversity jurisdiction requires complete diversity --
that is, the citizenship of each plaintiff must be diverse from the
citizenship of each defendant.
Caterpillar Inc.
v.
Lewis,
117
S. Ct. 467, 472 (1996).
Removal jurisdiction depends on the plaintiff's state court
pleadings at the time of removal.
S. Ct. 347, 349 (1939)
44 F.3d 256,
264
i
Pullman Co.
v.
Jenkins,
59
Cavallini v. State Farm Mutual Auto Ins.,
(5th Cir. 1995).
The removing party bears the
burden of showing that subject matter jurisdiction exists and that
the removal procedure was properly followed.
Prop.
&
Cas.
Ins.
Co.,
276
F.3d
720,
Manguno v. Prudential
723
(5th
Cir.
2002)
Ambiguities or doubts are to be construed against removal and In
favor of remand.
Id.
34Id.
-7-
III.
Perio
§
1446
Titan's Notice of Removal was Timely
argues
that
removal
was
untimely
28
U.S.C.
(b) (1) because Titan did not remove the case within thirty
days of service of his First Amended Petition. 35
a
under
notice of
removal
"shall be
Under
filed within 30
§ 1446
days
(b) (1)
after the
receipt by the defendant, through service or otherwise, of a copy
of the initial pleading setting forth the claim for relief upon
which such action or proceeding is based."
Perio argues that his
First Amended Petition constitutes the initial pleading in this
case and that it was removable on its face because it named only
Titan, a diverse party, as defendant. 36
Perio argues that Titan was
served with the First Amended Petition on April 18,
when Perio
served the Texas Secretary of State as agent for service of process
for Titan.37
Thus, Perio argues that the deadline for removal was
May 17, 2013. 38
Accordingly, Perio argues that Titan's Notice of
Removal, filed on June 17, 2013, was untimely.39
Perio
removable,
also
argues
that
because
T&T's Answer asserting
its
the
case
was
immunity under
initially
the
TWCA
cannot serve to create a new thirty-day window for removability
35Motion for Remand, Docket Entry No.9, pp. 1-5.
36rd.
37rd.
38rd.
39rd.
-8-
under 28 U.S.C.
§
1446(b) (3) .40
Section 1446(b) (3)
provides that
"if the case stated by the initial pleading is not removable" a
defendant may file a notice of removal within thirty days after
receipt of "a copy of an amended pleading, motion, order or other
paper from which it may first be ascertained that the case is one
which is or has become removable."
Perio argues that
§
1446(b) (3)
is inapplicable because his First Amended Pleading constitutes an
initial pleading that was removable on its face. 41
Perio argues
that T&T's Answer cannot give rise to a second thirty-day period of
removability
on
the
basis
of
diversity
of
citizenship
when
diversity of citizenship was obvious in the initial pleading.42
Titan argues that
consti tute
his
initial
Perio's First Amended Petition does not
pleading. 43
Ti tan
argues
that
Perio' s
Original Petition, filed on March 22, 2013, which named both Titan
and T&T, Perio's non-diverse employer, as defendants, constitutes
the initial pleading in this case. 44
it
§
is
not
foreclosed
from
filing
Accordingly, Titan argues that
a
notice
of
removal
under
1446(b) (3) within thirty days of learning from T&T's Answer that
T&T was immune from suit under the TWCA. 45
40Id.
41Id.
42Id.
43Titan's Brief in Opposition, Docket Entry No. 12, pp. 7-8.
44Id.
45Id.
-9-
Perio fails to explain why his First Amended Petition, filed
two
weeks
after
his
Original
initial pleading in this case.
Petition,
should
constitute
the
The court can only assume that
Perio takes this position because his First Amended Petition was
the first pleading served on Titan. 46
argument
§
why
the
thirty-day
Similarly, Titan provides no
period
for
removability
under
1446(b) (3) was not triggered by receipt of Perio's First Amended
Petition even if it did not constitute the initial pleading in this
case.
Nonetheless, it is clear that Titan was entitled to file its
Notice of Removal within thirty days of learning through T&T's
Answer that T&T was immune from suit under the TWCA.
Contrary to Perio's assertion that the thirty-day period for
removal began when Perio served the Texas Secretary of State as
agent for service of process for Titan,
" [w] hen service
lS
effected on a
case law is clear that
statutory agent,
the
removal
period begins when the defendant actually receives the process, not
when the statutory agent receives process."
Inc. v.
Hall,
14 F.
Supp.
2d 988,
991
Monterey Mushrooms,
(S. D. Tex.
1998)
i
accord
Gordon v. Hartford Fire Ins. Co., 105 Fed. Appx. 476, 480-81 (4th
Cir. 2004)
defendant
(holding that "[tJhe time for removal begins when 'the
actually has
received a
copy of
the
complaint'"
and
noting that "the overwhelming maj ority of district courts
have held that '[w]hen service is effected on a statutory agent,
46Copies of Executed Process, Exhibit A to Notice of Removal,
Docket Entry No. 1-1.
-10-
rather than on an agent appointed by the defendant,
the time to
remove the action to federal court does not start to run until the
defendant
actually
has
received
a
copy
of
the
complaint.'"
(quoting Lilly v. CSX Transp., Inc., 186 F. Supp. 2d 672, 673 (S.D.
w.
Va. 2002)))
i
McCrary v. Kan. City S. RR., 121 F. Supp. 2d 566,
570 (E.D. Tex. 2000)
("[T]he removal period does not begin to run
until the out of state defendant actually is served and not when
the Secretary of State receives the process.")
Bros.,
1325
Inc. v. Michetti Pipe Stringing,
(holding
that
the
time
to
i
see also Murphy
Inc., 119 Sup. Ct. 1322,
remove
is
triggered by
formal
service of the summons and complaint, or receipt of the complaint
after formal
service of the summons,
individual or entity named as a
and explaining that
defendant
is not obligated to
engage in litigation unless notified of the action,
under
a
court's
authority,
by
formal
"[a] n
and brought
process.")
Thus,
the
earliest that the thirty-day removal period could have begun in
this case is April 26, 2013, when Titan received service of Perio's
First Amended Complaint and the Citation. 47
By
the
time
that
Titan had
received
service
of
process,
however, Perio had already amended his petition to add T&T, a nondiverse party,
as a
defendant. 48
Thus,
although Perio' s
Amended Petition may have been removable on its face,
First
it was not
47Id.
48Second Amended Petition, Exhibit
Opposition, Docket Entry No. 12-1.
-11-
A to
Titan's
Brief
in
Titan could not have
the live pleading when Titan was served.
removed the case when it was served with Perio' s
First Amended
Petition because the case, at that time, was not removable.
at
no
time prior to the
filing
Thus,
of T&T's Answer asserting its
immunity under the TWCA was Titan a party to a case where it might
"be
ascertained
removable.
II
that
28 U.S.C.
the
§
case
is
one which
1446(b) (3)
is
or has
become
Accordingly, the thirty-day
period for removal was not triggered by Titan's receipt of the
First Amended Petition, but rather upon the filing of T&T's Answer
on May 28, 2013. 49
Titan filed its Notice of Removal on June 17,
2013, within thirty days of the filing of T&T's Answer. 50
Thus,
Titan's Notice of Removal was timely.
IV.
Improper Joinder
The doctrine of improper joinder ensures that the presence of
an improperly j oined, non-diverse defendant does not defeat federal
removal jurisdiction premised on diversity.
589
F.3d 168,
171
improperly joined,
(5th Cir.
2009).
non-diverse defendant
matter jurisdiction.
Smallwood v.
568,
(en banc) ,
572
The
(5th Cir.)
Borden v. Allstate,
court may
ignore
an
in determining subject
Ill. Cent. R.R. Co., 385 F.3d
cert.
denied,
125
S.
Ct.
1825
(2005) .
49T&T's Answer, Exhibit
Docket Entry No. 12-11.
K to Titan's Brief
50Notice of Removal, Docket Entry No.1.
-12-
in Opposition,
A removing party attempting to prove improper joinder carries
a heavy burden.
Witter,
Great Plains Trust Co.
313 F.3d 305, 312
v. Morgan Stanley Dean
(5th Cir. 2002).
To establish that a
non-diverse defendant has been improperly joined in order to defeat
diversity
'"
jurisdiction
actual
(1)
fraud
the
removing
party
in the pleading of
must
prove
jurisdictional
either
facts
or
(2) an inability of the plaintiff to establish a cause of action
Smallwood,
against the non-diverse party in state court.'ff
385
F.3d at 573 (quoting Travis v. Irby, 326 F.3d 644, 646-47 (5th Cir.
2003)).
Only the second method is at issue in this case.
Under this second type of improper joinder the court must
determine "whether the defendant has demonstrated that there is no
possibility of recovery by the plaintiff against an in-state [or
non-diverse] defendant, which stated differently means that there
is no reasonable basis for the district court to predict that the
plaintiff might be able to recover against an in-state
diverse] defendant. ff
Smallwood, 385 F.3d at 573.
[or non-
A "reasonable
basis ff requires more than a theoretical possibility of recovery.
Ross v. Citifinancial, Inc., 344 F.3d 458, 462
(5th Cir. 2003).
Whether the plaintiff has alleged a valid cause of action
"depends
upon
plaintiff [' s]
and
is
tied
to
the
factual
defeat
between
the
allegations and the pleaded theory of recovery.
Griggs v. State Farm Lloyds, 181 F.3d 694, 701
Accordingly,
fit
ff
(5th Cir. 1999).
a defendant can establish diversity -- and thereby
remand
by
showing
that
-13-
the
plaintiff's
state
court
petition fails to allege "specific actionable conduct" sufficient
to support a cause of action against a non-diverse defendant.
Id.
A mere formulaic recitation of the elements of a cause of action
asserted against a non-diverse defendant is not sufficient under
this standard.
In
deciding
whether
unchallenged factual
a
party
was
improperly
joined
allegations are taken into account
light most favorable to the plaintiff
l
Smallwood
l
all
in the
385 F.3d at 575j
and all contested factual issues and ambiguities of state law are
resolved in favor of the plaintiff.
491 F.3d at 281.
Gaschl
The
existence of a single valid cause of action against a non-diverse
defendant requires remand of the entire case to state court.
Gray
v. Beverly Enterprises-Mississippi,
(5th
Inc.
1
390 F.3d 400
1
412
Cir. 2004).
In its Notice of Removal Titan argues that complete diversity
exists between the parties because T&T was improperly joined. 51
Titan argues that Perio has no possibility of recovery against T&T
because T&T is immune from suit under sections 406.034 and 408.001
of the Texas Labor Code. 52
Apparently conceding that if his injury
is covered by the TWCA then he cannot establish a cause of action
against
T&T 1
Perio argues in his Motion for Remand that his injury
is instead covered by the LHWCA.53
Perio/s complaint alleges only
51Id. at 3.
52Id.
53Motion for Remand
1
Docket Entry No. 9
-14-
1
pp.
21
5-7.
negligence and gross negligence without reference to whether his
claim is cognizable under the general maritime law. 54
A.
Perio's Claims Against T&T are Barred to the Extent That They
are Cognizable Solely Under State Law
Perio's
Second Amended
Complaint
alleges
that
Perio
"was
inj ured in the course and scope of his employment on or about
March 6,
2013,
near
Puerto San Antonio,
Chile." 55
He
alleges
negligence and gross negligence and asserts that "T&T SALVAGE was
not a subscriber under the Texas Workers' Compensation Act, and it
is accordingly fully liable to Mr. Perio for its common-law tort
liability to him, with no defenses of contributory negligence or
the like permitted by law." 56
Perio's Second Amended Complaint never mentions whether the
injury occurred upon navigable waters or otherwise falls within the
cognizance of the general maritime law. 57
He does assert that he
was "sent in February 2013 to work on the salvage of a grounded
vessel offshore Puerto San Antonio, Chile" and that his injuries
were caused by "the enwrapping of a cable from the vessel onto
[his] leg." sB
In the absence of any allegations in Perio's Second
54Second Amended Petition, Exhibit A to
Opposition, Docket Entry No. 12-1, pp. 3-5.
55Id.
at 3.
56Id.
at 4.
57See id. at 2-5.
58Id. at 3.
-15-
Titan's
Brief
in
Amended
Complaint
that
his
injuries
actually
occurred
upon
navigable waters, Titan removed the case to this court on the basis
of diversity jurisdiction upon learning that T&T was immune to suit
as a subscriber to workers' compensation insurance under the TWCA. 59
T&T asserts that it subscribes to a workers'
compensation
policy in compliance with the TWCA,60 and T&T has produced a copy
of the policy issued by Texas Mutual
Insurance Company. 61
asserts that Perio is currently receiving workers'
T&T
compensation
benefits under the policy and has produced a Notification of First
Temporary
May 22,
Income Benefit
2013,
Payment
addressed
to
Perio
that explains the amount of workers'
and dated
compensation
benefits that Perio is entitled to under the policy.62
Under the TWCA "[r]ecovery of workers' compensation benefits
is
the
exclusive
remedy
of
an
compensation insurance coverage .
for
the
employee.
death
II
of
or
a
employee
§
by
workers'
. against the employer .
work-related
Tex. Lab. Code
covered
408.001(a)
injury
sustained
by
the
"The only exception to
the exclusive remedy provision is when an employee's death 'was
caused by an intentional act or omission of the employer or by the
59Notice of Removal, Docket Entry No. I, pp. 2-4.
6°T&T's Response, Docket Entry No. 10, p. 3-4.
61Workers' Compensation and Employers Liability Insurance
Policy, Exhibit B to T&T's Response, Docket Entry No. 10-2.
62T&T's Response, Docket Entry No. 10, p. 4; Notification of
First Temporary Income Benefit Payment, Exhibit C to T&T's
Response, Docket Entry No. 10-3.
-16-
employerls
gross
negligence.
Casados l 358 S.W.3d 238
§
241
1
Port
III
Elevator-Brownsville
(Tex. 2012)
v.
(quoting Tex. Lab. Code
408.001(b)).
The Texas Supreme Court has held that an employer is entitled
to assert the TWCAls exclusive remedy provision upon a showing that
it
subscribed
to
workers
plaintiff was an employee
related injury.
I
compensation
I
insurance
that
I
the
and that the plaintiff suffered a work-
Id. at 239-40
244.
1
In Casados the parents of an
employee who "suffered a fatal l work-related injury while working
for two employers that both had workers
I
compensation coverage l
ll
brought an action for negligence and gross negligence against the
employer whose workers
compensation carrier denied coverage.
I
Id.
The Texas Supreme Court held that because the employer subscribed
to workers
I
compensation insurance and the employee suffered a
work-related injurYI the plaintiffs were "only entitled to .
recover workers
I
compensation benefits and the exclusive-remedy
provision in the TWCA bars their negligence claim against
[the
employer] .
this
II
Id.
at
244.
" [A] n
employee
cannot
avoid
statutory bar by arguing that he was not covered under the specific
terms of his employerls workers
City of Bellaire v. Johnson
Perio
admits
that
he
l
I
compensation insurance policy.1I
400 S.W.3d 922
is
an
suffered a work-related injury.63
employee
1
922
of
(Tex. 2013).
T&T
and
that
he
He asserts in his Second Amended
63Second Amended Petition l Exhibit
Opposition l Docket Entry No. 12-11 p. 3.
A to
Titan l s
Brief
in
-17-
-----------_._--_
-_..
.........
_--------------
Peti tion that T&T is not a subscriber to workers'
insurance. 64
does
However, T&T has produced conclusive evidence that it
subscribe
currently
compensation
to
such
receiving
relevant pol icy. 65
coverage,
workers'
and
asserts
compensation
that
benefits
Perio
under
is
the
Perio essentially concedes this point in his
Motion for Remand, arguing, for the first time in this litigation,
that T&T's provision of workers'
compensation coverage under the
TWCA is irrelevant because his injuries fall within the coverage of
the LHWCA.66
Accordingly, to the extent that Perio has asserted a
common law cause of action that is subject to the exclusive remedy
provision of the TWCA, his claims against T&T are barred by statute
and T&T is improperly joined.
989 F.2d 812,
814
See Jernigan v. Ashland Oil Inc.,
(5th Cir. 1993); Carriere v.
Sears, Roebuck &
Co., 893 F.2d 98, 101 (5th Cir. 1990).
B.
Perio's Injuries Occurred Outside of the Territorial Reach
of the LHWCA
In
his
Motion
for
Remand
Perio
argues
that
T&T
was
not
fraudulently joined because he has a valid clam against T&T under
the LHWCA,
64Id.
rather than the TWCA.67
Based on the allegations in
at 4.
65T&T's Response, Docket Entry No.
10, p. 4; Workers'
Compensation and Employers Liabil i ty Insurance Pol icy, Exhibit B to
T&T's Response, Docket Entry No. 10-2; Notification of First
Temporary Income Benefit Payment, Exhibit C to T&T's Response,
Docket Entry No. 10-3.
66Motion for Remand, Docket Entry No.9, pp. 2, 5-9.
-18-
paragraph 4.1 of his Second Amended Petition that he was "injured
in the course and scope of his employment on or about March 6, 2013
[while]
offshore
work [ing]
Puerto
on
San Antonio,
the
salvage
Chile, 68
he
of
a
grounded vessel
asserts
that
he
is
a
longshoreman and that he was injured on the navigable waters of the
United States while engaged in maritime employment. 1/69
that
the LHWCA preempts the TWCA and that
covered by the LHWCA,
he
if his
Perio argues
injuries are
is entitled to bring this negligence
action against T&T as a nonsubscriber to LHWCA coverage under 33
U.S.C.
§
905(b) .70
T&T asserts
that
it
subscribes
to LHWCA coverage and has
produced a policy endorsement to that effect.71
Titan argues that
if the LHWCA applies to Perio's claims, Perio's negligence claims
asserted
in
this
action
provision of 33 U.S.C.
§
are
barred
905(a) 72
by
the
exclusive
remedy
Both Titan and T&T argue that
Perio's injuries, which he incurred within the territorial waters
of Chile, are outside of the territorial limits of LHWCA coverage. 73
68Second Amended Petition, Exhibit A to
Opposition, Docket Entry No. 12-1, p. 3 ~ 4.1.
Titan's
Brief
in
69Motion for Remand, Docket Entry No.9, pp. 2, 5-6.
7°Id. at 7-9.
71T&T's Response, Docket Entry No. 10, p. 6; Longshore and
Harbor Workers' Compensation Act Coverage Endorsement, Exhibit B to
T&T's Response, Docket Entry No. 10-2, p. 10.
72Titan's Brief in Opposition, Docket Entry No. 12, pp. 12-13.
73T&T's Response, Docket Entry No. 10, pp. 5-6; Titan's Brief
in Opposition, Docket Entry No. 12, pp. 11-12.
-19-
"To receive benefits under the LHWCA, a worker must satisfy
both a situs and status test.n
Anaya v. Traylor Bros., Inc., 478
F.3d 251, 254 (5th Cir. 2007)
"The situs test concerns geographic
areas covered by the LHWCA,
whereas the status test concerns an
In order to meet the
employee's type of work activities."
situs test, an injury must occur "upon the navigable waters of the
United States."
Id.
"The status test defines an employee as 'any
person engaged in maritime employment, including any longshoreman
or
other
person
engaged
in
longshoring
harborworker including a ship repairman,
breaker.
'II
Id.
operations,
shipbuilder,
(quoting Bienvenu v. Texaco,
and
any
and ship-
Inc., 164 F.3d 901,
904 (5th Cir. 1999)).
Perio argues that he meets both the situs test and the status
test for LHWCA coverage. 74
He asserts that he is a longshoreman and
that he was injured while engaged in the salvage of a grounded
vessel offshore of Puerto San Antonio,
Chile. 75
alleges
navigable
that
he
was
inj ured
on
the
He specifically
waters
of
the
Uni ted States. 76
Perio bases his argument that the situs of his injury, in the
surf zone off the coast of Chile, is within the navigable waters of
the United States, on the Fifth Circuit's holding in Reynolds v.
Ingalls Shipbuilding Division, Litton Systems, Inc., 788 F.2d 264
74Motion for Remand, Docket Entry No.9, pp. 5-7.
75Id.
at 2, 5-6.
76rd.
at 6-7.
-20-
(5th Cir.
1986),
that the LHWCA extends to injuries suffered by
longshoremen on the high seas. 77
Id. at 268-72.
However, the Fifth
Circuit has consistently interpreted the LHWCA to exclude coverage
for longshoremen injured within the territorial limits of a foreign
See,
state.
~,
Prestenbach v.
Global Int'l Marine Inc.,
Fed. App'x 557, 561 n.3 (5th Cir. 2007)
244
(construing the holding in
Aparicio v. Swan Lake, 643 F.2d 1109 (5th Cir. Unit A Apr. 1981),
to have "established that Sieracki remedies were still available to
longshoremen not covered by the LHWCA (because, for example, their
injuries occurred in foreign waters)" (discussing Seas Shipping Co.
v.
Sieracki,
66 S.
Ct.
872
(1946)));
Smith v.
Harbor Towing
Fleeting, Inc., 910 F.2d 312, 314-15 (5th Cir. 1990)
extend
to
Jones Act
seamen
the
holding
&
(declining to
in Cormier v.
Oceanic
Contractors, Inc., 696 F.2d 1112 (5th Cir. 1983), that an employee
"working aboard a vessel in a foreign country, and thus beyond the
reach of
the
LHWCA,
was
entitled to Sieracki
seaman status");
Cormier, 696 F.2d at 1113 (holding that a welder "injured when he
fell while working aboard a barge moored for loading"
United Arab Emirates,
was
outside of
the
LHWCA's
in Dubai,
coverage
and
noting that "the employee, although a harborworker, was not under
the reach of the LHWCA because he worked in a foreign country");
Burks v. Am. River Transp. Co., 679 F.2d 69, 74-75 (5th Cir. Unit A
1982)
(noting that the plaintiff in Aparicio was not covered by the
77Id.; BIMCO Wreckstage Agreement, Exhibit C to Titan's Brief
in Opposition, Docket Entry No. 12-3, p. 2.
-21-
LHWCA for two independent reasons,
one of which was because the
situs of his injuries was "outside the territorial reach of the
LHWCA"), abrogated on other grounds by Lozman v. City of Riviera
Beach, Fla., 133 S. Ct. 735 (2013)
Aparicio, 643 F.2d at 1118 n.17
i
("[W]e note that the pockets of Sieracki seamen remaining after the
1972 amendments may include those longshoremen and harbor workers
who, though privately employed, are injured in a foreign country
and thus are not within the territorial coverage of the LHWCA.") .
The only reasonable interpretation of Perio's assertion in his
Second Amended Petition that he was injured "in the course and
scope of his employment on or about March 6,
San Antonio,
where
he
occurred
while
is
that
he
his
"was
that
he
contested,
means
"injury,
engaged
was
territorial waters of Chile.
not
near Puerto
Chile,,,7s as supplemented by his Motion for Remand,
asserts
offshore,"so
2013,
that
in
injured
off
the
the
salvage
while
coast
of
of
working
Chile,,79
a
vessel
within
the
This interpretation, which Perio has
he
requirement for an LHWCA claim.
has
not
satisfied
the
situs
Therefore, whether T&T subscribed
to LHWCA coverage is irrelevant and Perio cannot establish a claim
against T&T as a nonsubscriber to LHWCA coverage under 33 U.S.C.
§
905 (b) .
78Second Amended Petition, Exhibit
Opposition, Docket Entry No. 12-1, p. 3.
A to
Titan's
79Motion for Remand, Docket Entry No.9, p. 6.
sOrd. at 5.
-22-
Brief
in
Because Perio cannot establish a claim against T&T under state
law or the LHWCA, removal would normally be proper on the basis of
diversity jurisdiction as alleged in Titan's Notice of Removal. 81
However, the court has serious concerns whether Perio's claims are
preempted by the general maritime law.
Perio's Motion for Remand alleges that the injuries complained
of
in his Second Amended Petition occurred on navigable waters
off the
while he was "engaged in the salvage of a vessel
coast of Chile.
uB2
Neither party has briefed the court on how the
applicability of maritime law to this case would affect Perio's
ability to recover against T&T in state court.
law applies
Whether maritime
could therefore bear on whether T&T
is
improperly
joined.
In addition, Perio has consistently requested a jury trial. 83
If complete diversity exists,
trial
in this court.
187-96 (5th Cir. 2011)
Perio would be entitled to a jury
See Luera v.
M/V Alberta,
635 F.3d 181,
However, Titan argues that this case is
removable based on the courts' original admiralty jurisdiction. 84
There is no right to a jury trial in the federal admiralty court.
81Notice of Removal, Docket Entry No.1, p. 3.
82Motion for Remand, Docket Entry No.9, pp. 5-6.
83Second Amended Petition, Exhibit A to Titan's Brief in
Opposition, Docket Entry No. 12-1, p. 8i Plaintiff's Jury Demand,
Docket Entry No.3.
84Supplemental Notice of Removal, Docket Entry No. 11.
-23-
See id. at 188-89.
preclude
removal
Therefore, the saving to suitors clause might
under
§
1444
as
an
"Act
of
Congress"
that
preserves the right to a jury trial.
V.
Titan's Supplemental Notice of Removal
Titan filed its Supplemental Notice of Removal on August 6,
2013. 85
Titan argues that its Supplemental Notice of Removal was
timely and properly filed because the alleged basis for removal,
the
federal
courts'
original
admiralty
jurisdiction,
was
not
ascertainable until after the case had already been removed. 86
The Fifth Circuit has stated that "to ascertain" is "'to make
certain,
exact,
certainty.'"
Cir. 2002)
(1990)).
or precise'"
or
"' to
Bosky v. Kroger Texas, LP,
find
out
or
learn with
288 F.3d 208,
211
(5th
(quoting Webster's Ninth New Collegiate Dictionary 107
Therefore,
the information supporting removal must be
"unequivocally clear and certain" to trigger the thirty-day removal
period.
Id.; see also Cole ex reI. Ellis v. Knowledge Learning
Corp., 416 F. App'x 437,
440
(5th Cir. 2011).
This bright-line
rule protects defendants faced with an "equivocal record"
being forced to engage in "protective" removal.
from
Bosky, 288 F. 3d at
211.
Although a party generally may not amend its removal notice
more than thirty days after removal to assert a new basis for
removal, an amendment is permissible when the newly alleged basis
85Id.
at 3.
86Id.
at 3.
-24-
for removal did not exist or was not ascertainable when the notice
of removal was filed.
No. 3:11-CV-0944-G,
2011)
See Wilson v.
Int' 1 Bus.
2011 WL 4572019, at *2-3
Machs.
Corp.,
(N.D. Tex. Oct.
3,
(noting that "courts have been willing to permit amendments
to a notice of removal when the new basis did not exist until after
the relevant thirty day period" and listing cases allowing such
amendments)
i
Davis v. Life Investors Ins.
F. Supp. 2d 691, 693 (S.D. Miss. 2002)
Co. of Am.,
Inc.,
214
(holding that an amendment
to a notice of removal is proper when the basis for removal did not
exist when the notice of removal was filed and noting that "it
would be senseless" not to allow such an amendment "given that if
the case were remanded on the sole ground asserted in the removal
petition,
[the defendant] would then be allowed to remove the case
a second time on th[e] new basis"
(citing Green v. R.J. Reynolds
Tobacco
(5th
Co.,
274
F.3d
263,
266
Cir.
2001))).
"When
a
defendant has the right to amend a notice of removal after the
initial
thirty day period because of
a
new basis
for
federal
subject matter jurisdiction, it has thirty days under the second
paragraph of Section 1446(b) to make that amendment."
Wilson, 2011
WL 4572019, at *3.
Perio first
indicated that his claims might be cognizable
under the general maritime law in his Motion for Remand, filed on
July 16, 2013. 87
In arguing that the LHWCA applied to his claims,
87Motion for Remand, Docket Entry No.9, pp. 2, 5-7.
-25-
Perio alleged that his injuries occurred on the "navigable waters
of the United States. ,,88
He also alleged that he is a longshoreman
whose injuries occurred while he was "engaged in the salvage of a
vessel offshore. ,,89
Perio's
Second Amended
Petition
alleged
only
that
he
was
inj ured "in the course and scope of his employment on or about
March 6, 2013, near Puerto San Antonio, Chile" when "a cable from
the vessel" wrapped around his leg. 90
"unequi vocally
clear
and
certain"
Such language does not make
that
governed by the general maritime law.
Perio' s
claims
may
be
See Bosky, 288 F.3d at 211.
Accordingly, Titan's Supplemental Notice of Removal,
filed within
thirty days of Perio's Motion for Remand, was timely and properly
filed.
VI.
On
the
Applicability of the General Maritime Law
facts
presented,
the
court
is
unable
to
determine
whether and to what extent Perio's cause of action is governed by
the
general
Management
damages
maritime
against
inj uries
The
parties'
Rule
26 (f)
states
Defendants
under
Texas
Plan Under
to
his
back
88Id.
and
side.
,,91
Joint
that
"Plaintiff
state
However,
Discovery/Case
seeks
law
for
alleged
given
the
current
at 6.
89Id.
law.
at 2, 5-6.
90Second Amended Petition, Exhibit
Opposition, Docket Entry No. 12-1, p. 3.
A
to
Titan's
Brief
in
9lJoint Discovery/Case Management Plan Under Rule 26 (f) , Docket
Entry No. 13.
-26-
posture of this case,
it is unclear whether and to what extent
Perio's claims may be preempted by the general maritime law.
Accordingly, the court has serious concerns about it's jurisdiction
In this case.
Traditionally, maritime claims brought in state court were not
removable.
468,
See Romero v. Int'l Terminal Operating Co., 79 S. Ct.
475 n.16
(1959)
("The removal provisions of
the original
Judiciary Act of 1789 conferred a limited removal jurisdiction, not
including cases of admiralty and maritime jurisdiction.
In none of
the statutes enacted since that time have saving-clause cases been
made
removable. "),
U.S.C.
No.
§
59.
H-12-3510,
superseded by statute on other grounds,
As explained in Ryan v.
2013
nonremovability of
WL 1967315
maritime
the
claims has been attributed to
the
Ti tan argues
that
removal
§
Tex.
May 13,
Inc.,
2013),
particular language of 28 U.S.C.
(S.D.
Hercules Offshore,
45
1441(a)-(b)
based on
the
Id. at *2-*5.
court's
admiralty
jurisdiction is permissible under the revised language of 28 U.S.C.
§
1441.92
The court is concerned, however, whether the saving to
suitors clause contained in 28 U.S.C.
§
1333 is a bar to removal
jurisdiction in cases such as this one where complete diversity is
lacking.
92Supplemental Notice of Removal, Docket Entry No. 11, p. 2i
Titan's Brief in Opposition, Docket Entry No. 12, pp. 13-15.
-27-
A.
The Language of § 1441
Section 1441(a) provides that " [e]xcept 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."
December of 2011 subsection
(b)
Before
contained language limiting the
scope of subsection (a):
(b)
Any civil action of which the district courts have
original jurisdiction founded on a claim or right 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.
28 U.S.C.A.
§
1441 (b)
1441 (b)
(West 2006).
only cases
"founded on
§
Under the prior version of
a
claim or
right
under
the
Constitution, treaties or laws of the United States" were removable
without regard to the parties' citizenship.
Id.
Subsection (b) 's
specific requirement that "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" was construed as the "Act of Congress" within the meaning
of
subsection
(a)
that
prevented
actions
falling
within
the
district
courts'
removed.
Ryan, 2013 WL 1967315, at *4-*5; see also In re Dutile,
935 F. 2d 61, 62
original
admiralty
(5th Cir. 1991)
[preventing removal]
jurisdiction
from
being
("One of these express provisions
is found in
§
1441(b) .")
-28-
--------===---,====:
The statute was amended in December of 2011.
WL 1967315 r at *4-*5.
it pertains
to the
jurisdiction
subsection
of
(b)
See Ryanr 2013
The operative language of subsection (a) as
removability of
the
district
claims within the original
courts
is
However r
unchanged.
no longer contains the language prohibiting the
removal of claims falling within the original jurisdiction of the
district courts unless "none of the .
of
the
State
. defendants is a citizen
ln which such action is brought.
Id.
II
at
*2.
Instead r the current version of subsection (b) reads as follows:
(b) Removal based on diversity of citizenship.--(l) In
determining whether a civil action is removable on the
basis of the jurisdiction under section 1332(a) of this
title r
the
citizenship of
defendants
sued under
fictitious names shall be disregarded.
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.
(2)
28 U.S.C.
§
1441(b).
As recognized in Ryan, the plain language of
the current version of
§
1441 allows for the removal of "any civil
action brought in a State court of which the district courts of the
United States have original jurisdiction.
at *2, *5.
courts
have
1441(b)
Ryanr 2013 WL 1967315 r
The court in Ryan concluded that because the district
original
claims under 28 U.S.C.
§
1I
no
longer
jurisdiction over
§
1333 r
admiralty
and maritime
and because the amended version of
prohibits
removal r
removable under the revised language of
-29-
§
admiralty
1441(a).
claims
Id. at *5.
are
B.
The Saving to Suitors Clause
The saving to suitors clause is a feature of the congressional
grant of original admiralty jurisdiction to the federal district
courts in 28 U.S.C.
§
Section 1333(1)
1333.
states that "[t]he
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."
The saving to suitors clause
preserves a plaintiff's right to a common law remedy,
not to a
nonfederal forum.
411,
The Moses Taylor,
71 U.S.
(4 Wall.)
431
(1867) i Tenn. Gas Pipeline v. Hous. Cas. Ins. Co., 87 F.3d 150, 153
(5th Cir. 1996)
(quoting Poirrier v. Nicklos Drilling Co., 648 F.2d
1063, 1066 (5th Cir. Unit A June 1981).
The original language of
the saving to suitors clause made this distinction more explicitly
by "saving to suitors,
in all cases,
the right of a common law
remedy, where the common law is competent to give it."
Superior Court,
language
of
the
74 S.
Ct.
saving to
298,
300
suitors
(1954)
clause
Madruga v.
(quoting the original
and noting
that
the
revised language "in no way narrowed the jurisdiction of the state
courts under the original 1789 Act")
i
see also Lewis v. Lewis &
Clark Marine, Inc., 121 S. Ct. 993, 998-99 (2001)
(describing the
revisions Congress has made to the language in each iteration of
the saving to suitors clause and noting that "its substance has
remained largely unchanged") .
-30-
---,--------------- -----------------------
1.
The Saving to Sui tors Clause Preserves the Historic
Concurrent Jurisdiction of the State and Federal Courts
With Respect to Common Law Maritime Claims
The Supreme Court has interpreted the saving to suitors clause
to
"permit []
persons
Madruga,
courts."
jurisdictional
to
sue
on maritime
74 S. Ct. at 300.
statute,
jurisdictional in nature.
the
saving
claims
ln
Contained, as it is,
to
suitors
clause
Romero,
79 S.
law
in a
is
It has been interpreted specifically to
allow plaintiffs to pursue a common law remedy in a
court.
common
Ct.
at 475
common law
("[C]ommon-law remedies were,
under the saving clause, enforceable in the courts of the States
and on the common-law side of the lower federal courts when the
diverse citizenship of the parties permitted."); Madruga, 74 S. Ct.
at
301
("[T]he
jurisdictional
act
does
leave
state
courts
'competent' to adjudicate maritime causes of action in proceedings
'in personam,' that is, where the defendant is a person, not a ship
or some other instrument of navigation.") .
In reviewing the history of the clause,
the Court in Lewis
noted that "the saving to suitors clause was 'inserted, probably,
from abundant caution, lest the exclusive terms in which the power
is conferred on the District Courts might be deemed to have taken
away the concurrent remedy which had before existed.'"
Lewis, 121
S. Ct. at 999 (quoting New Jersey Steam Nav. Co. v. Merchants' Bank
of Boston,
47 U.S.
(1
How.)
344,
390
(1848)).
Accordingly,
the
saving to suitors clause "'leaves the concurrent power where it
-31-
stood at common law.'"
U. S .
(1
Id.
(quoting New Jersey Steam Nav. Co., 47
How.) at 390).
The saving to suitors clause has thus been held to preserve
the
concurrent
jurisdiction
of
the
state
and
federal
courts
regarding maritime claims where the common law was competent to
provide a
remedy,
and to afford exclusive
jurisdiction to the
federal courts where the common law was not so competent.
~,
Madruga,
74
S.
Ct.
at
301
("Admiralty's
jurisdiction is
'exclusive' only as to those maritime causes of action begun and
carried on as 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.") .
2.
The Saving to Suitors Clause Preserves a Broad Range of
Unenumerated Remedies Under the General Maritime Law
The Supreme Court has recognized that the saving to suitors
clause preserves a broad range of undefined common-law remedies.
See Lewis, 121 S. Ct. at 1005 (rejecting "arguments to limit and
enumerate the saved remedies under the saving to suitors clause
in view of the consistent recognition by Congress and this
Court that both state and federal courts may be proper forums for
adjudicating [maritime] claims").
'right
of
a
common
law
remedy,'
The Court has noted that "[t]he
so
saved
to
sui tors,
include[s] all means other than proceedings in admiralty which may
be
employed
involved."
to
enforce
Id. at 999
the
right
or
to
redress
the
injury
(quoting Red Cross Line v. Atlantic Fruit
-32-
~It
Co., 44 S. Ct. 2741 277 (1924).
well
as
statute
equitYI
l
proceedings
in
court i
includes remedies in pais
judicial
remedies
l
as
conferred by
as well as those existing at the common lawi remedies In
as well as those enforceable in a court of law.
(quoting Red Cross Line
II
Id.
44 S. Ct. at 277)
l
In Lewis the Supreme Court reversed a decision of the Eighth
Circuit that because the plaintiff did not request a jury trial in
the state courtl
he had not sought a saved remedy in his state
Id. at 998,
court action.
In holding that the plaintiff
1005.
could pursue his claims in state court
that the saving to suitors clause
the Supreme Court explained
1
~extends
to 'all means other than
proceedings in admiralty which may be employed to enforce the right
or to redress the injury involved
jury is an obvious
1
Ct.
"Thus
at 277).
and observed that "[t]rial by
but not exclusive
Id. at 1004
available to suitors."
S.
lll
1
example of the remedies
l
(quoting Red Cross Line,
44
the saving to sui tors clause preserves
remedies and the concurrent jurisdiction of state courts over some
admiralty and maritime claims."
3.
Id.
It is Unclear Whether the Savino to Suitors Clause is
an Act of Congress that Would Prevent Removal Solely on
the Basis of the Federal Courts Original Admiralty
Jurisdiction
1
Courts
have
consistently held that
the
saving
to
sui tors
clause does not guarantee a plaintiff the right to a nonfederal
forum.
See, e.g.
1
Tenn. Gas Pipeline
-33-
l
87 F.3d at 153.
However,
very few statutes carry such a guarantee and even a cause of action
under
state
jurisdiction.
law
may
be
removed
See 28 U.S.C.
§§
on
the
basis
of
diversity
1332(a), 1441(b).
In The Moses Taylor the Supreme Court stated that the saving
to suitors clause "only saves to suitors the right of a common-law
remedy, where the common law is competent to give it.
It is not a
remedy in the common-law courts which is saved, but a common-law
remedy.
The Moses Taylor,
II
quotation marks omitted).
71 U.S.
(4 Wall.)
at 431
(internal
The Court employed this language in
order to draw a distinction between remedies available at common
law,
which were preserved under the clause,
and remedies only
available by statute, which were not.
In Romero the Supreme Court discussed the historic role of
state courts in adjudicating maritime claims and stated that the
saving to suitors clause was meant to ensure that plaintiffs could
continue to pursue their common law claims in common law courts.
See id. at 479-80 ("Parties in maritime cases are not compelled to
proceed in admiralty at all, as they may resort to their common-law
remedy in the State Courts, or in the Circuit Court, if the party
seeking redress
states. II)
•
and the other party are citizens of different
The Court stated that free removability of saving-
clause actions would "have a disruptive effect on the traditional
allocation of power over maritime affairs in our federal system
and that
ll
"the historic option of a maritime sui tor pursuing a
-34-
common-law remedy to select his forum, state or federal, would be
taken away."
Id.
Although the Court in Romero did not have to reach the issue
of whether the saving clause itself barred removal of maritime
claims against non-diverse defendants,
it identified the goal of
the clause as preservation of the concurrent jurisdiction of state
and federal courts over admiralty matters as it existed prior to
the Judiciary Act of 1789.
at 999
Id. at 480i see also Lewis, 121 S. Ct.
(observing that the saving to suitors clause "leaves the
concurrent power where it stood at common law"
Steam
Nav.
Co. ,
U.S.
47
(1
How.)
at
(quoting New Jersey
390)).
Given
such
pronouncements, it would not be unreasonable to conclude that the
congressional
grant
prohibition of
Indeed,
the
of
removal
Supreme
jurisdiction
through the
Court
has
In
§
1333
contains
saving to suitors
been
careful
in
its
a
clause.
admiralty
jurisprudence to ensure that statutory interpretation did not lead
to a finding that "revolutionary procedural change had undesignedly
come to pass."
Id. at 478.
Mindful of the long-recognized goal of preserving an ancient
body of maritime remedies, both substantive and procedural, and of
the Supreme Court's reluctance to define the scope of the remedies
preserved by the savings to suitors clause, it is unclear to the
court whether the saving to suitors clause contained in 28 U.S.C.
§ 1333 is an Act of Congress that would proscribe removal on the
-35-
--------------------------------------------------------------------
basis of the federal
courts'
original admiralty jurisdiction.
Given the nature and stage of this action, resolution of this issue
may be necessary to a determination of the propriety of remand.
Because the current state of the record does not lend itself to the
resolution
of
this
issue,
the
court
will
require
additional
briefing by the parties.
If Perio believes that remand is appropriate on this basis, he
may
file
a
motion,
within
twenty
Memorandum Opinion and Order,
(1)
days
(2)
the
entry
of
this
addressing the following issues:
whether he has adequately alleged a
Second Amended Petition;
of
maritime claim in his
whether his claims are governed or
preempted by the general maritime law; (3) whether he would be able
to
recover
applicable,
against
in
T&T
state
under
court;
the
(4)
general
whether
maritime
and
to
law,
what
if
extent
preemption by the general maritime law would affect the court's
removal analysis;
and
(5)
whether the federal courts'
original
admiralty jurisdiction provides an independent basis for removal as
argued in Titan's Supplemental Notice of Removal.
Defendants Titan
and T&T will have twenty days to respond, and Perio will have ten
days to reply.
VII.
Conclusions and Order
The court concludes that to the extent that Perio's claims are
cognizable
solely
under
state
law,
complete
because defendant T&T is improperly joined.
diversity
exists
The court further
-36-
------------------
concludes that Titan's Notice of Removal was timely filed because
it was not ascertainable that complete diversity might exit until
T&T filed its Answer on May 28, 2013.
Perio's Motion for Remand
(Docket Entry No.9) is therefore DENIED.
The court also concludes that Titan's Supplemental Notice of
Removal was timely filed because it was not ascertainable that
Perio's claims might be preempted by the general maritime law until
Perio filed his Motion for Remand.
If Perio believes that remand
is appropriate on this basis, he can file a motion in accordance
with the court's instructions as outlined in § VI.B.3, above.
SIGNED at Houston, Texas, on this 8th day of October, 2013.
J'
SIM LAKE
UNITED STATES DISTRICT JUDGE
-37-
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