A.E.A., an infant, by Konstantinos N. Angelopoulos, her natural parent and next friend v. Volvo Penta Of The Americas, LLC et al
Filing
43
OPINION AND ORDER that the Court DENIES 28 Volvo Penta's Motion for Leave toFile Amended Notice of Removal; GRANTS 18 Plaintiff's Motion to Remand, and REMANDS this action to the Circuit Court for the City of Norfolk, Virginia, for furt her proceedings in the case styled there as [REDACT] an infant, by Konstantinos N. Angelopoulos, her natural parent and nextfriend v. Volvo Penta of the Americas, LLC, et al, Civil No. CL14-4909. Signed by District Judge Robert G. Doumar and filed on 1/9/2015. (rsim, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
FILED
A.E.A., an infant, by Konstantinos N.
Angelopoulos, her natural parent and
JAM - 9 2015
next friend,
CLERK, U S. DISTRICT COURT
NORFOLK. VA
Plaintiff,
CIVIL NO. 2:14-cv-425
v.
VOLVO PENTA OF THE AMERICAS,
LLC, GRADY-WHITE BOATS, INC.,
NORFOLK MARINE COMPANY,
RICHARD S. HARRIS, AND JOHN
DOES 1-50,
Defendants.
OPINION AND ORDER
This matter is before the Court on Plaintiff A.E.A's negligence, product liability, and
breach of warranty claims against Defendants Volvo Penta of the Americas ("Volvo Penta"),
LLC, Grady-White Boats, Inc. ("Grady White"), Norfolk Marine Company ("Norfolk Marine"),
Richard Harris, and John Does 1-50, arising from injuries Plaintiff sustained during a
recreational boating accident off the coast of Virginia Beach, Virginia. Initially, Plaintiffs parent
brought a suit on her behalf in the Circuit Court of the City of Norfolk, Virginia, in which
Plaintiff alleged "maritime and state law causes of action." Am. Compl. f 1. Plaintiff claimed
that jurisdiction was valid "pursuant to the general maritime jurisdiction of the United States of
America, the Savings to Suitors Clause (28 U.S.C. § 1333) and the laws of the Commonwealth
ofVirginia."Io\1I2.
After Volvo Penta filed a Notice of Removal to remove the matter to federal court,
1
Plaintiff filed a Motion to Remand. ECF No. 18. Subsequently, Volvo Penta filed a Motion for
Leave to File Amended Notice of Removal ("Motion for Leave to Amend Notice"). ECF No. 28.
On December 15, 2014, the parties appeared before the Court and argued their respective
positions on both motions. At that hearing, the Court took the matter under advisement. For the
reasons set forth below, the Court hereby DENIES Volvo Penta's Motion for Leave to File
Amended Notice of Removal, ECF No. 28; GRANTS Plaintiffs Motion to Remand, ECF No.
18; and REMANDS this action to the Circuit Court for the City of Norfolk, Virginia, for further
proceedings in the case styled there as [REDACT] an infant, by Konstantinos N. Angelopoulos,
her natural parent and nextfriend v. Volvo Penta of the Americas, LLC, et al., Civil No. CL144909.
I.
FACTUAL AND PROCEDURAL HISTORY
On about June 30, 2011, Plaintiff, who was about thirteen years old at the time, was
tubing1 with her friends inthe Chesapeake Bay offof Virginia Beach. Am. Compl. If 13. Plaintiff
and her friends were being towed by a motor boat owned and operated by Richard Harris. Id. ffl[
10-13. During tubing, as is prone to occur, Plaintiff and her friends fell off of the tube. Id. \ 14.
Upon noticing, Harris circled his boat around to pick up the children. Id ^ 14. When Harris
approached Plaintiff and her friends, Harris shifted the boat into neutral to assure the children
would be safe from the propellers while boarding the boat. Id Although Plaintiffs friends
boarded the boat without incident, when Plaintiff was boarding the boat the propeller activated
and ensnared Plaintiffs leg. Id 1ffl 17-18. As a result, Plaintiff was pulled into the water and
suffered serious and permanent injuries.
Subsequently, Plaintiffs parent brought a suit on her behalf in the Circuit Court of the
1"Tubing," in regard to this incident, is the recreational activity in which a person sits on an inflatable tube
as the tube is towed behind a boat. See Compl. ^f 13.
City of Norfolk, Virginia against Harris, Volvo Penta, Grady-White, Norfolk Marine, and John
Does 1-50. On July 11, 2014, Plaintiff filed an Amended Complaint. On August 20, 2014, Volvo
Penta filed a Notice of Removal in this Court. ECF No. 1. In its Notice, Volvo Penta relied on
maritime jurisdiction, as well as the 2011 amendment to 28 U.S.C. § 1441, as grounds for
removal.
On September 19, 2014, Plaintiff filed a Motion to Remand seeking to remand the case to
state court. ECF No. 18. On October 28, 2014, Volvo Penta filed a Motion for Leave to Amend
Notice. ECF No. 28. Both motions are presently before the Court.
Although filed after the Motion to Remand, the Court will first consider Volvo Penta's
2The following paragraphs in Volvo Penta's Notice of Removal stated thebasis for removal:
5.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §
1333, which states that 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.'
6.
As amended in 2011,28 U.S.C. § 1441(a) states:
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.
7.
In this action, Plaintiff has asserted maritime claims over which this
Court has jurisdiction. As alleged by Plaintiff, the vessel was used to traverse
the navigable waters of the United States of America (Am. Compl. at 1f 12) and
the subject incident occurred on the navigable waters of the Chesapeake Bay off
the coast of Virginia Beach. (Am. Compl. at ^ 13.) In addition, the subject
incident which forms the basis of the claims in Plaintiffs Amended Complaint
had the potential of disrupting traditional maritime activity. See, e.g.. In re Bird.
794 F. Supp. 575 (D.S.C. 1992); see ajso Wright v. U.S.. 883 F. Supp. 60
(D.S.C. 1994).
8.
Accordingly, as a result of the 2011 amendment to § 1441, this action is
removable to this Court. See Rvan v. Hercules Offshore. Inc.. 945 F. Supp. 2d
771 (S.D. Tex. 2013); see ajso Bridges v. Phillips 66 Co.. 2013 WL 6092803
(M.D. La. 2013); Wells v. ABC Boat Rentals Inc.. 2013 WL 3110322 (S.D. Tex.
2013).
Notice of Removal, ffif 7-9, ECF No. 1.
Motion for Leave to Amend Notice, as the Court's ruling on this Motion will directly affect what
jurisdictional statements in the Notice of Removal it may consider when deciding Plaintiffs
Motion to Remand.
II.
MOTION FOR LEAVE TO AMEND NOTICE
In its Motion for Leave to Amend Notice, Volvo Penta seeks to leave to edit its Notice of
Removal. Although many of these proposed edits are cosmetic, Volvo Penta requests certain
substantive changes to legal statements in the Notice of Removal. Volvo Penta seeks to add
jurisdictional statements asserting that federal question jurisdiction is a basis of removal for this
action. Specifically, Volvo Penta seeks to add language claiming federal question jurisdiction
exists under the Federal Boat Safety Act of 1971, 46 U.S.C. § 4301, et seq., a regulatory statute
enacted to improve the safe operation of recreational vessels in navigable waters. The present
inquiry before the Court is whether Volvo Penta is permitted to make such a substantive addition
3Volvo Penta seeks to addthe following paragraph to itsNotice of Removal:
This Court has federal question jurisdiction over this action pursuant to 28
U.S.C. § 1331 under the Federal common law; as well as under the Federal Boat
Safety Act of 1971, 46 U.S.C. § 4301, et seq., to include the Coast Guard
regulations issued thereunder at 33 CFR § 173 (recreational vessels), § 175
(equipment requirements), as well as the preemptive regulations set forth in §
181 (manufacturer requirements) and § 183 (boats, associated equipment and
boating safety); 28 U.S.C. § 1441; and 28 U.S.C. § 1446.
In addition, Volvo Penta also seeks to add the highlighted sentence below to paragraph 7 of its Notice:
In this action, Plaintiff has asserted maritime claims over which this Court has
jurisdiction. As alleged by Plaintiff, the vessel was used to traverse the
navigable waters of the United States of America (Am. Compl. at ^f 12) and the
subject incident occurred on the navigable waters of the Chesapeake Bay off the
coast of Virginia Beach. (Am. Compl. at ^| 13.) As a result, Plaintiff has
asserted both maritime and federal question negligence claims (federal
common law and Federal Boat Safety Act of 1971, 46 U.S.C. §§ 4301, et
seq.) and product liability claims (46 U.S.C. §§ 4301, et seq., Federal Boat
Safety Act of 1971). In addition, the subject incident which forms the basis of
the claims in Plaintiffs Amended Complaint had the potential of disrupting
traditional maritime activity. See, e.g.. In re Bird. 794 F. Supp. 575 (D.S.C.
1992); see ajso Wright v. U.S.. 883 F. Supp. 60 (D.S.C. 1994).
Volvo Penta's Mot. for Leave, Ex. 1 ffl| 5, 9, ECF No. 28.
to its Notice of Removal.
A.
Standard of Review
"Under 28 U.S.C. § 1446(b), a defendant sued in state court has thirty days from service
of process in which to file a removal petition in the federal court." Muhlenbeck v. KL LLC. 304
F. Supp. 2d 797, 799 (E.D. Va. 2004) (Smith, J.). "[D]uring that thirty-day removal period, a
defendant seeking removal generally has the right to amend its removal petition to include either
missing or imperfectly stated grounds for removal." Id. "After the thirty-day removal period, a
defendant may amend its removal petition with leave of court, pursuant to 28 U.S.C. § 1653
"Id. Under this statute, "[defective allegations ofjurisdiction may be amended, upon terms,
in the trial or appellate courts." 28 U.S.C. § 1653.
B.
Analysis
As Volvo Penta's request to amend its Notice of Removal occurs well outside the thirtyday period following service in which a defendant has a right to amend, Volvo Penta relies on §
1653 to amend its Notice. Whether § 1653 permits a party to add statements asserting federal
question jurisdiction as a basis for removal when its original Notice of Removal relied on other
grounds is a novel issue.4 The Court has not found, and the parties do not identify, a case in
which a court has explicitly considered if § 1653 permits such an addition. Instead, both parties
have cited to cases that decided the propriety of amendments under § 1653 to Notices of
Removal that involved diversity jurisdiction. However, these cases have no bearing on the
Court's present inquiry.
Despite the absence of a case directly addressing whether § 1653 permits a party to add
4Inresponding to Volvo Penta's Motion for Leave to Amend Notice, Plaintiffs opposition briefincludes a
request for just costs and expenses, including attorney's fees. Plaintiff argues that Volvo Penta's attempt to add new
jurisdictional allegations was made in spite of clear precedent to the contrary. However, as the issue is novel, Volvo
Penta's Motion for Leave to Amend Notice did not rise to the level of sanctionable conduct under Federal Rule of
Civil Procedure 11. Consequently, the Court denies Plaintiffs request for costs and fees.
statements asserting federal question jurisdiction when its Notice relied on other grounds for
removal, this Court finds that the application of the Fourth Circuit's ruling in Wood v. Crane
Co.. 764 F.3d 316 (4th Cir. 2014) appropriately resolves this issue. In Wood, the Fourth Circuit
interpreted § 1653 to determine whether the statute permitted the defendant to amend his notice
of removal to include federal officer jurisdiction. The court first identified "a split among our
circuit's district courts" between the "strict constructionist school" and the "liberal approach" in
interpreting § 1653. 764 F.3d at 323. However, the Fourth Circuit found that
these two schools differ only in verbiage. The upshot is the same:
after thirty days, district courts have discretion to permit
amendments that correct allegations already present in the notice
of removal. Courts have no discretion to permit amendments
furnishing new allegations of a jurisdictional basis. The trick lies
in placing a case within one of those two categories.
Id. (emphasis added).
Volvo Penta argues that its proposed addition is not substantive but simply provides
clarification to the grounds already raised in its Notice. Volvo Penta points out that it already
raised original jurisdiction in its Notice, which encapsulates "both federal question and admiralty
jurisdiction." However, applying the Wood test to the present case, Volvo Penta cannot claim
that its proposed amendment "correct[s] allegations already present in the notice of removal." As
noted earlier, in its Notice of Removal, Volvo Penta initially relied on maritime jurisdiction, as
well as the 2011 amendment to 28 U.S.C. § 1441, as grounds for removal. Furthermore, as
correctly pointed out by Plaintiff, Volvo's original Notice contains no mention of separate
federal question jurisdiction, non-maritime federal common law, or the federal question
jurisdictional statutes. Although the Notice does cite to 28 U.S.C. § 1441, which discusses the
removability of cases that possess a federal question in subsection (c), the Notice specifically
cites to subsection (a). This subsection merely restates the general law regarding removal: "any
civil action brought in a State court of which the district courts of the United States have original
jurisdiction, may be removed." 28 U.S.C. § 1441(a). To allow defendants to amend their Notices
of Removal to add any subcategories of original jurisdiction, such as federal question or diversity
jurisdiction, anytime their Notice cited the general removal statute would broaden permissible
amendments under § 1653 to an extent that would render the statute meaningless.5 After all, a
defendant who simply cited to the general removal statute in its Notice of Removal could then
subsequently amend his or her Notice at any time afterward—effectively removing any purpose
for §1653.
However, the Court's inquiry does not end here. Volvo Penta also argues that its
reference to the saving to suitors clause (or "savings clause"), 28 U.S.C. § 1333, as well as
maritime jurisdiction generally, in its original Notice allows Volvo to amend the Notice to add
grounds for federal question jurisdiction. As no cases have directly considered this issue, the
Court again must rely on the Wood rule. Applying this rule, this Court finds that Volvo's
proposed amendment seeking to add grounds for federal question jurisdiction to a Notice of
Removal that only specifically references maritime law and the saving to suitors clause
constitutes "new allegations of a jurisdictional basis."
First, Supreme Court precedent indicates that federal question jurisdiction and maritime
jurisdiction are separate and distinct grounds for jurisdiction. In Romero v. International
Terminal Operating Co.. 358 U.S. 354, 79 S. Ct. 468 (1959), the Supreme Court considered
whether the federal question statute should incorporate claims brought under maritime
5In support of itsargument, Volvo Penta alsopoints out thatthe civil cover sheet for its Notice of Removal
marked the case as brought under federal question jurisdiction. However, the docket sheet lists only two options for
jurisdiction, federal question jurisdiction and diversity jurisdiction, and includes no entry for maritime jurisdiction or
any other separate and distinct grounds for jurisdiction. Therefore, finding this mark to be persuasive would largely
broaden § 1653 beyond its intended scope, as under Volvo Penta's reasoning, every case not marked as diversity
jurisdiction would be considered a federal question case. Accordingly, the Court refuses to consider the mark on the
docket sheet to have any persuasive value.
jurisdiction. However, the Supreme Court refused to equate maritime jurisdiction and federal
question jurisdiction—exhibiting that both grounds are separate jurisdictional foundations. 358
U.S. at 371-72, 79 S. Ct. at 479-81. Clearly, the addition of another completely separate and
distinct ground for jurisdiction constitutes "new allegations of a jurisdictional basis" under
Wood. Therefore, based on the Supreme Court's ruling in Romero, the Court finds that the
addition of federal question jurisdiction to Volvo Penta's Notice of Removal is not equivalent to
a simple correction of "allegations already present in the notice of removal." Instead, as maritime
and federal question jurisdiction are separate and distinct grounds for jurisdiction, the Court finds
the addition of federal question jurisdiction to Volvo Penta's Notice of Removal constitutes
"new allegations of a jurisdictional basis."
Second, Volvo Penta's reference to the saving to suitors clause in its Notice is not a
sufficient basis as to invoke federal question jurisdiction. As discussed in more detail later, the
saving to suitors clause grants concurrent jurisdiction of maritime cases to both state and federal
courts. See Lewis v. Lewis Clark Marine. Inc.. 531 U.S. 438, 445, 121 S. Ct. 993, 999 (2001).
Offshore Logistics. Inc. v. Tallentire. 477 U.S. 207, 222, 106 S. Ct. 2485, 2494 (1986); Romero.
358 U.S. at 480, 79 S. Ct. at 372. Thus, the mere reference of the saving to suitors clause in itself
cannot invoke federal question jurisdiction when the clause preserves a plaintiffs right to pursue
maritime claims in state court. Furthermore, despite Volvo Penta's claims to the contrary, the
mere fact that it cited a statute in its Notice of Removal does not allow it to subsequently add
another statute to its Notice. Volvo Penta has presented no case law to support this proposition.
Therefore, in light of the fact that the statute Volvo Penta seeks to add is regulatory, while the
statute it cited in its Notice is jurisdictional, Volvo Penta's proposed addition is clearly a new
allegation of jurisdiction. Again, allowing such an amendment on these grounds would surely
broaden § 1653 beyond its intended scope.6
Therefore, the Court finds that Volvo Penta's proposed changes to its Notice of Removal
would constitute "new allegations of a jurisdictional basis" under Wood and, consequently, are
not permitted under § 1653. Accordingly, the Court DENIES Volvo Penta's Motion for Leave to
Amend Notice.
III.
MOTION TO REMAND
In addition to Volvo Penta's Motion for Leave to Amend Notice, Plaintiff also brings a
Motion to Remand. Since the Court has denied Volvo Penta's Motion for Leave to Amend
Notice, for the purpose of deciding Plainitffs Motion, the Court considers Volvo Penta's Notice
of Removal the form presently filed with the Court.
A.
Standard of Review
"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 . . . ." 28 U.S.C. § 1441(a). "The burden of
establishing federal jurisdiction is placed upon the party seeking removal." Mulcahev v.
Columbia Organic Chems. Co.. Inc.. 29 F.3d 148, 151 (4th Cir. 1994). "Because removal
jurisdiction raises significant federalism concerns, [courts] must strictly construe removal
jurisdiction." Id; Creekmore v. Food Lion, Inc.. 797 F. Supp. 505, 507 (E.D. Va. 1992)
("[C]ourts strictly construe the removal statute and resolve all doubts in favor of remanding the
case to state court."). However, "[i]f federal jurisdiction is doubtful, a remand is necessary."
Mulcahev. 29 F.3d at 151.
6 The Court's ruling today does not decide, nor intends to decide, whether citing a substantive, nonjurisdictional statute in a Notice of Removal would allow a defendant to supplant or add another substantive statute
to its Notice under § 1653.
B.
Analysis
In its Notice of Removal, Volvo Penta relied on two major grounds for removal. First, it
stated that federal courts have original jurisdiction over maritime claims. Second, it also
maintained that the 2011 amendment to the general removal statute, 28 U.S.C. § 1441, rendered
maritime claims removable to federal court. The Court disagrees with both contentions. Not only
do both arguments clearly ignore the presence of the saving to suitors clause but, as discussed
further below, the 2011 amendment to § 1441 did not permit maritime claims to be removed to
federal court without an independent basis for jurisdiction.
Under the saving to suitors clause, 28 U.S.C. § 1333, "[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." 28 U.S.C. § 1333(1). The Supreme Court has interpreted the saving to suitors clause
"as a grant to state courts of in personam jurisdiction, concurrent with admiralty courts." Lewis,
531 U.S. at 445, 121 S. Ct. at 999; Tallentire, 477 U.S. at 222, 106 S. Ct at 2494 ("The 'saving
to suitors' clause leaves state courts competent to adjudicate maritime causes of action in
proceedings inpersonam and means that 'a state, having concurrent jurisdiction, is free to adopt
such remedies, and to attach to them such incidents, as it sees fit so long as it does not attempt to
[give in rem remedies or] make changes in the 'substantive maritime law.'"); Romero. 358 U.S.
at 480, 79 S. Ct. at 372 ("By making maritime cases removable to the federal courts it would
make considerable inroads into the traditionally exercised concurrent jurisdiction of the state
courts in admiralty matters—a jurisdiction which it was the unquestioned aim of the saving
clause of 1789 to preserve."); see also Norton v. Switzer. 93 U.S. 355, 356 (1876) ("Parties in
maritime cases are not . . . compelled to proceed in the admiralty at all, as they may resort to
10
their common-law remedy in the State courts ...."). Under this interpretation, plaintiffs have the
choice of bringing in personam maritime claims in either a state or federal forum. Furthermore,
a defendant may only remove a case in which an in personam maritime claim is brought when
the case includes an independent ground for federal jurisdiction.
Volvo Penta seems to ignore the saving to suitors clause and primarily relies on Ryan v.
Hercules Offshore. Inc.. 945 F. Supp. 2d 772 (S.D. Tex. 2013), and its progeny in support of
removal. In Ryan, the court found that the 2011 amendment to § 1441 removed language in the
statute that had previously barred the removal of maritime claims. The Ryan court specifically
relied on the Fifth Circuit case In re Dutile. 935 F.2d 61 (5th Cir. 1991). In Dutile. the Fifth
Circuit had concluded that
The first sentence of [the 2006 version of § 1441(b)] provides that
removal of actions 'founded on a claim or right arising under the
Constitution, treaties or laws of the United States' may proceed
without regard to the citizenship of the parties. Emphatically,
claims in admiralty, whether designated in rem or in personam, do
not fall within this category. . . . Thus, admiralty and general
maritime claims fall within the category of '[a]ny other [civil]
action' governed by the second sentence of § 1441(b). As such,
they are 'removable only if none of the parties in interest properly
joined and served as defendants is a citizen of the State in which
the action is brought.' The practical effect of these provisions is to
prevent the removal of admiralty claims pursuant to § 1441(a)
unless there is complete diversity of citizenship (predicated upon
out-of-state defendants).
935 F.2d at 62-63 (emphasis in original). However, as the Ryan court pointed out, a 2011
7 Volvo Penta contests this interpretation and argues that the saving to suitors clause only applies to
preserve maritime remedies in state court, not state court jurisdiction. However, in light of the weight of the
Supreme Court precedent to the contrary, the Court refuses to adopt Volvo Penta's position.
8Prior to the 2011 amendment, 28 U.S.C.A. § 1441 readas follows:
(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
11
amendment had removed the "any other civil action" language in § 1441 upon which the Dutile
court found had previously prohibited the removal of maritime and admiralty claims.9 Id. at 777.
As a result, the Ryan court concluded that the 2011 amendment to § 1441 altered traditional
removal jurisdiction in a manner that now permitted the removal of maritime claims to federal
court, without needing any independent basis for federal jurisdiction. Id at 778. Although the
Fifth Circuit has yet to weigh in on the issue, several federal courts have since followed this
rationale to side with the Ryan court. See e.g.. Provost v. Offshore Serv. Vessels. LLC. No. 14—
cv-89, 2014 WL 2515412 (M.D. La. June 4, 2014); Garza v. Phillips 66 Co.. No. 13-cv-742,
2014 WL 1330547 (M.D. La. Apr.l, 2014); Harrold v. Liberty Ins. Underwriters. Inc.. No. 13cv-762, 2014 WL 688984 (M.D. La. Feb. 20, 2014); Carrigan v. M/V AMC AMBASSADOR.
place where such action is pending. For purposes of removal under this chapter,
the citizenship of defendants sued under fictitious names shall be disregarded.
(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.
Rvan. 945 F. Supp. 2d at 774-75 (quoting 28 U.S.C.A. § 1441(a) & (b) (2006)).
9After § 1441 wasamended in 2011,the statute readas 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.—(1) In determining whether a
civil action is removal on the basis of the jurisdiction under section 1332(a) of
this title, the citizenship of defendants sued under fictitious names shall be
disregarded.
(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 defendant is a citizen of the State in which
such action is brought.
Rvan. 945 F. Supp. 2d at 774 (quoting 28 U.S.C.A. § 1441(a) & (b) (2012)).
12
No. 13-3208, 2014 WL 358353 (S.D. Tex. Jan. 31, 2014); Wells v. Abe's Boat Rentals. Inc..
Civ. A. No. H-13-1112, 2013 WL 3110322, at *4 (S.D.Tex. June 18, 2013); Bridges v. Phillips
66 Co.. No. 13^77, 2013 WL 6092803, at *4-5 (M.D. La. Nov. 19, 2013).
Nevertheless, the Court refuses to follow the Ryan decision. To begin with, the Ryan
court failed to sufficiently account for the saving to suitors clause. Although the Fourth Circuit
has yet to weigh in on the issue, the Court finds a recent opinion from the District Court of
Maryland, Cassidv v. Murray. — F. Supp. 2d —, 2014 WL 3723877 (D. Md. Jul 24, 2014), to
be make persuasive arguments on this point. In that case, the court rejected Rvan on the grounds
that "the Dutile and Rvan courts' focus on section 1441 fail to apportion sufficient weight to the
savings clause." Cassidv. 2014 WL 3723877, at *2. The Cassidv court pointed out that adopting
the Rvan court's reasoning would contradict the Supreme Court's reasoning in Romero. As
mentioned earlier, in Romero, the Supreme Court considered whether the federal question statute
should encompass claims brought under maritime jurisdiction. In deciding against making such a
finding, the Supreme Court specifically relied on the fact that such an expanded view of federal
question would eviscerate "the historic option of a maritime suitor pursuing a common-law
remedy to select his forum, state or federal," which the saving to suitors clause seeks to preserve.
Romero. 358 U.S. at 371-72, 79 S. Ct. at 479-81. The Cassidv court relied on this language in
reasoning that adopting the ruling in Rvan and Dutile would permit "the very occurrence the
Supreme Court attempted to avoid in Romero—the evisceration of the savings clause." Cassidv.
2014 WL 3723877, at *4. This Court agrees with the Cassidv's courts analysis of Romero and
the saving to suitors clause.
Furthermore, the basic tenets of statutory construction show that the Rvan court clearly
ignored the saving to suitors clause when examining § 1441. That statute clearly states that
13
"[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 or the defendants
" 28 U.S.C.A. § 1441(a). When read in light of the saving
to suitors clause, a plain meaning interpretation of § 1441 undermines the Rvan court's
reasoning. The first clause of subsection (a) of § 1441 is prefaced with the statement "[e]xcept as
otherwise expressly provided by Act of Congress." When considering this language, the saving
to suitors clause, which establishes concurrent jurisdiction over maritime cases, is an Act of
Congress in which Congress has expressly provided an exception to an otherwise removable
action under § 1441.
Finally, despite Volvo Penta's arguments to the contrary, the legislative history of the
2011 amendment to §1441 does not support such a jurisdictional change in maritime law.10
"Under established canons of statutory construction, 'it will not be inferred that Congress, in
revising and consolidating the laws, intended to change their effect unless such intention is
clearly expressed:" Ngiraineas v. Sanchez. 495 U.S. 182, 200, 110 S. Ct. 1737, 1747 (1990)
(quoting Finlev v. United States. 490 U.S. 545, 554, 109 S. Ct. 2003, 2009 (1989) (emphasis
added)). The applicable legislative record does not express any intention to rework the
removability of maritime claims. In fact, the record fails to mention maritime claims at all. See
H.R. Rep. No. 112-10, at 11-12 (2011), as reprinted in 2011 U.S.C.C.A.N. 576, 580.
Furthermore, the legislative record indicates that the change to § 1441 was made for an entirely
different, unrelated reason—to increase clarity. The record states that the "[p]roposed paragraph
1441(b)(2) restates the substance of the last sentence of current subsection 1441(b), which relates
10 It is important to note that the Rvan court never reviewed the statutory record of the 2011 amendment to
§ 1441. The Rvan court refused to examine the statutory record on the grounds that "[i]n the Fifth Circuit, the 'law is
crystal clear that when ... the language of a statute is unambiguous, [the court] has no need to and will not defer to
extrinsic aids or legislative history.... Clear statutory language is dispositive." Rvan. 945 F. Supp. 2d at 778.
14
only to diversity."11 Id at *12. From this language the Court can reasonably infer that the
substance of § 1441 was never meant to change, as subsection (b)(2) of the new amended statute
simply restates the deleted material.
In light of this legislative record, Romero, and the plain meaning statutory interpretation
of § 1441, the Court must deviate from Rvan. Reinforcing this position is the fact that, as
correctly pointed out by Plaintiff during oral argument, the weight of the relevant authority has
slowly but gradually come to oppose Rvan. See Harrold v. Liberty Ins. Underwriters. Nos. 13762, 13-831, 2014 WL 5801673, at *3 (M.D. La. Nov. 7, 2014) ("The Court believes that the
correct view is also the majority view and that general maritime claims are not removable,
despite the changes to 28 U.S.C. § 1441." (emphasis added)); see e.g.. Perise v. Eni Petroleum.
U.S., L.L.C., No. 14-99, 2014 WL 4929239, (M.D. La. Oct. 1, 2014); Bartman v. Burrece. No.
14-80, 2014 WL 4096226 (D. Alaska Aug. 18, 2014); Gregoire v. Enter. Marine Servs.. LLC. —
- F.Supp.2d
, 2014 WL 3866589 (E.D. La. Aug. 6, 2014); Grasshopper Oysters. Inc. v.
Great Lakes Dredge & Dock. LLC. No. 14-934, 2014 WL 3796150 (E.D. La. July 29, 2014);
Cassidv. 2014 WL 3723877 at 4; Porter v. Great Am. Ins. Co.. No. 13-3069, 2014 WL 3385148
(W.D. La. July 9, 2014); Figueroa v. Marine Inspection Servs..
2958597 (S.D. Tex. July 1, 2014); In re Foss Mar. Co..
F.Supp.2d.
F.Supp.2d
, 2014 WL
, 2014 WL 2930860
(W.D. Ky. June 27, 2014); Alexander v. Seaeo Consulting. LLC. No. 14-1292, 2014 WL
2960419 (S.D. Tex. June 23, 2014); Pierce v. Parker Towing Co.. Inc.. No. 14-73, 2014 WL
2569132 (S.D. Ala. June 9, 2014); Gabriles v. Chevron USA. Inc.. No. 14-669, 2014 WL
2567101 (W.D. La. June 6, 2014); Perrier v. Shell Oil Co.. No. 14-490, 2014 WL 2155258 (E.D.
La. May 22, 2014); Rogers v. BBC Charting Am.. LLC. No. 13-3741, 2014 WL 819400 (S.D.
11 Volvo Penta relied on the legislative record to support its argument. However, it, seemingly
disingenuously, cited to a section that explained the changes to subsection (c) of § 1441, which references the
joinder of federal and start claims, rather than relevant section, subsection (b), of § 1441.
15
Tex. Mar. 3, 2014); Coronel v. AK Victory. No. 13-2304, 2014 WL 820270 (W.D. Wash. Feb.
28, 2014); see also David W. Robertson & Michael F. Sturley, Recent Developments in
Admiralty and Maritime Law at the National Level and in the Fifth and Eleventh Circuits, 38
Tul. Mar. L.J. 419, 477-78 (2014) ("The statutory-language exegesis in Ryan is thorough and
careful, but we think the judge's conclusion that Romero (probably through congressional
inadvertence) has become a dead letter seems too radical to be acceptable. We do not believe the
Fifth Circuit will agree with the Ryan court."). One recent district court case within Ryan's own
district has gone as far as to specifically reject the Rvan court's analysis. See Figueroa. — F.
Supp. 2d —, 2014 WL 2958597, at *2 ("This Court disagrees with the holding in Ryan.").
Accordingly, the Court finds that the 2011 amendment to § 1441 did not impact the removability
of maritime claims. As a result, the saving to suitors clause guarantees that unless a valid
independent basis for federal jurisdiction exists, a plaintiff can bring a maritime action in
whichever court she chooses.
In a last ditch effort to establish federal jurisdiction, Volvo Penta attempted to argue at
the hearing that an alleged valid independent basis for federal jurisdiction existed under the
Federal Boat and Safety Act of 1971. Although not mentioned in its Notice of Removal, Volvo
Penta asserts that Plaintiffs Amended Complaint implicated the Federal Boat and Safety Act of
1971. For support, Volvo Penta cited Jackson v. Miss. Farm Bureau Mut. Ins. Co.. 947 F. Supp.
252, 255 (S.D. Miss. 1996), to establish that "plaintiffs may not avoid federal jurisdiction simply
by failing to denominate as federal what is in substance a federal claim, i.e., by artful pleading."
See also Discover Bank v. Vaden. 489 F.3d 594 (4th Cir. 2007) ("[W]e are required to look
beyond the plaintiffs' artful attempts to characterize their claims to avoid federal jurisdiction."
(quoting Phipps v. FDIC. 417 F.3d 1006, 1011 (8th Cir. 2005)).
16
However, the Federal Boat and Safety Act of 1971 does not apply to the present case.
The Supreme Court has already held that the Federal Boat and Safety Act of 1971 did not
preempt common law claims. Sprietsma v. Mercury Marine, a Div. of Brunswick Corp.. 537
U.S. 51, 64, 123 S. Ct 518, 527 (2002). Furthermore, the Court finds that Plaintiffs Amended
Complaint does not implicate the Federal Boat and Safety Act of 1971. Plaintiffs Amended
Complaint specifically brings "maritime and state law causes of action" under the jurisdiction of
the saving to suitors clause and the laws of Virginia. Am. Compl. fl[ 1-2. The present action
clearly centers around the potential negligence of Harris and the potentially defective design of
the transmission and shift actuator in his vessel. These issues can be easily resolved without
referencing any provisions of the Federal Boat and Safety Act of 1971. The statute and
regulations, after all, contain no provisions establishing, or even mentioning, any safety
requirements regarding a vessel's transmissions or gears—beyond a single, unrelated regulation
regarding a start-in-gear protection. See 33 C.F.R. § 183.710. Therefore, as the Federal Boat and
Safety Act of 1971 is not implicated in the present action, and Volvo Penta's Notice of Removal
does not reference any specific ground for jurisdiction, the Court finds there is no valid
independent basis for federal jurisdiction.
In light of the above analysis, Plaintiff was entitled under the saving to suitors clause to
pick a forum for her maritime action and chose to bring her suit in the Circuit Court for the City
ofNorfolk, Virginia. As there is no valid independent basis for federal jurisdiction, the Court has
no choice but to respect Plaintiffs right to choose a forum under the savings to suitor clause.
Accordingly, the Court GRANTS Plaintiffs Motion to Remand and REMANDS this
action to the Circuit Court for the City of Norfolk, Virginia, for further proceedings in the case
styled there as [REDACT] an infant, by Konstantinos N. Angelopoulos, her naturalparent and
17
nextfriend v. Volvo Penta oftheAmericas, LLC, et al, Civil No. CL14-4909.
IV.
CONCLUSION
For the foregoing reasons, the Court hereby DENIES Volvo Penta's Motion for Leave to
File Amended Notice of Removal, ECF No. 28; GRANTS Plaintiffs Motion to Remand, ECF
No. 18; and REMANDS this action to the Circuit Court for the City of Norfolk, Virginia, for
further proceedings in the case styled there as [REDACT] an infant, by Konstantinos N.
Angelopoulos, her natural parent and nextfriend v. Volvo Penta of the Americas, LLC, et al,
Civil No. CL14-4909.
The Clerk is DIRECTED to forward a copy of this Order to all Counsel of Record.
IT IS SO ORDERED.
%mw&***&
UN
Norfolk, N(k
January ___, 2015
18
S DISTRICT JUDGE
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