United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON, Magistrate Judge.
This case was filed in the Circuit Court of Choctaw County, Alabama on January 17, 2014, and removed to this Court by Defendant Parker Towing Company, Inc., on February 19, 2014. ( See generally Doc. 1.) On March 14, 2014, Plaintiffs timely moved to remand ( see Doc. 8), see 28 U.S.C. § 1447(c), and their motion has been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2. Parker has filed an opposition to the motion ( see Doc. 12), and Plaintiffs have filed a reply in support of remand ( see Doc. 15).
Parker's removal presents what appears to be an issue of first impression in this Circuit-whether the current version of 28 U.S.C. § 1441(b), amended in December 2011, allows removal of in personam maritime claims solely on the basis of this Court's original admiralty and maritime jurisdiction, see 28 U.S.C. § 1333. The undersigned finds that, in this case, it does not. Although § 1441(b) now clearly applies only to diversity cases, § 1333(1) remains an Act of Congress that limits the Court's removal jurisdiction by "saving to suitors" common law remedies; if removal of in personam maritime claims results in the loss of those remedies, removal jurisdiction is lacking. Thus, after consideration of the pleadings, and for the reasons explained herein, it is RECOMMENDED that the motion to remand (Doc. 8) be GRANTED and this case be REMANDED to the Circuit Court of Choctaw County, from whence it came.
I. Applicable Background
Citizens of Alabama and Mississippi, the owners of real property facing on the Tombigbee River, in Choctaw County, Alabama, filed this lawsuit in state court. Plaintiffs allege that a crew employed by, and operating a tugboat owned by, Parker-a corporate citizen of Alabama-"lost control of the tugboat and the barges it was pushing, and allowed the tugboat and the barges to stray from the designated channel for navigation[, ]" which resulted in "the barges slamm[ing] into the bank of the [river] with great force and violence, causing severe damage to the real property of each Plaintiff facing on the Tombigbee River." (Doc. 1-1, ¶¶ 20-24.) Plaintiffs' complaint asserts causes of action for negligence; wantonness; trespass; and private nuisance, and demands a trial by jury as to all issues.
A. Although any civil action filed in state court that could have been filed here originally may be removed, all doubts as to removal militate in favor of remand.
The Court's analysis begins where it must, with the burden a removing defendant shoulders: while "[a]ny civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court[, ]" Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir. 1996) (citing 28 U.S.C. § 1441(a)), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir. 2000),  "[b]ecause removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statutes strictly.... Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court[, ]" University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411.
At issue here is the Court's jurisdiction over certain maritime claims, which jurisdiction is concurrent with "the courts of the States[.]" 28 U.S.C. § 1333. Thus, there can be no doubt that, in this context, the Court's "removal jurisdiction raises significant federalism concerns[.]" Tapscott, 77 F.3d at 1356; see also Coronel v. AK Victory, ___ F.Supp.2d ___, 2014 WL 820270, at *8 (W.D. Wash. Feb. 28, 2014) ("Emphasizing the joint role that state and federal governments played in developing and administering maritime law, the majority [in Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)] found that unfettered removal of maritime claims would vitiate the principles of federalism underlying the saving to suitors clause." (citing id. at 372-75 ("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."))).
B. This Court has original, albeit concurrent, jurisdiction over Plaintiffs' undeniably maritime claims, which-as is their right-Plaintiffs chose to file in state court.
There is no dispute that Plaintiffs' claims are maritime in nature. As such, this Court has original subject matter jurisdiction over them pursuant to 28 U.S.C. § 1333(1), which provides 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." See also 46 U.S.C. § 30101 ("The admiralty and maritime jurisdiction of the United States extends to and includes cases of injury or damage, to person or property, caused by a vessel on navigable waters, even though the injury or damage is done or consummated on land[, and such a civil action] may be brought in rem or in personam...."). But the issue now before the Court is not its subject matter jurisdiction, but rather, its removal jurisdiction; specifically, whether this case was properly removed pursuant to the current version of the removal statute or should be remanded pursuant to the "saving to suitors" clause (also referred to as the "saving clause").
While the undersigned will discuss Parker's argument that removal is proper in light of a relatively recent change to § 1441 in depth below, proper framing of the parties' dispute requires additional discussion of the saving clause upfront. That clause, "a feature of the congressional grant of original admiralty jurisdiction to the federal district courts in 28 U.S.C. § 1333[, ]" "preserves a plaintiff's right to a common law remedy, not[, necessarily, ] to a nonfederal forum." Perio v. Titan Maritime, LLC, Civil Action No. H-13-1754, 2013 WL 5563711, at *12 (S.D. Tex. Oct. 8, 2013) (citing The Moses Taylor, 71 U.S. (4 Wall.) 411, 431 (1867); Tennessee Gas Pipeline v. Houston 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))). Importantly, however, the saving clause-"[c]ontained as it is, in a jurisdictional statute"-"is jurisdictional in nature" and preserves the historical "concurrent jurisdiction of the state and federal courts regarding maritime claims where the common law [is] competent to provide a remedy, " such as with Plaintiffs' claims, but the clause "afford[s] exclusive jurisdiction to federal courts where the common law [is] not so competent." Id. at *12-13; compare Romero, 358 U.S. at 363 ("[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.") and Madruga v. Superior Court, 346 U.S. 556, 560-61 (1954) ("[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."), with Madruga, 346 U.S. at 560 ("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." (citations omitted)).
As was their right, because their claims are against a corporate person, not a vessel, Plaintiffs "brought this action in state court as a civil in personam action[, ]" and although they "did not denominate it as such, this case commenced in state court as a case arising under the "saving to suitors clause"....'" Leonard v. Kern, 651 F.Supp. 263, 264 (S.D. Fla. 1986) (quoting Poirrier, 648 F.2d at 1064) (footnote omitted). As provided above, it was, of course, Plaintiffs' prerogative where to file, and thus how to pursue, their in personam maritime claims ( e.g., whether to elect trial by jury). See, e.g., Manrique v. Fagan, No. 08-60501-CIV, 2009 WL 700999, at *2 (S.D. Fla. Mar. 16, 2009) ("Under the saving to suitors' clause, a plaintiff may choose its preferred forum to bring an in personam maritime claim, in either state court or as a civil action in federal court under that court's original federal admiralty jurisdiction. Because of the saving to suitors' clause, these courts share concurrent jurisdiction over these maritime matters. A plaintiff's choice is important[, however, ] because it will affect various procedural aspects and remedies available to the parties, especially the right to a jury trial." (internal citations and footnote omitted)); Vincent v. Regions Bank, No. 8:08-cv-1756-T-23EAJ, 2008 WL 5235114, at *1 (M.D. Fla. Dec. 15, 2008) ("Pursuant to 28 U.S.C. § 1333(1), a federal district court enjoys 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.' Under the saving to suitors' clause, a plaintiff with a common law claim arising from a transaction over which a federal court would have admiralty jurisdiction may either avail [himself] of federal admiralty jurisdiction or sue at law in state court.' [And t]he plaintiff's election to sue at common law in state court[, some courts have held, ] forever prevents the federal district courts from obtaining admiralty jurisdiction.'" (quoting J. Aron & Co. v. Chown, 894 F.Supp. 697, 699 (S.D.N.Y. 1995)) (emphasis added)).
C. Under settled case law prior to the most recent amendment of § 1441, in personam maritime claims, like Plaintiffs', were clearly not properly removed absent ...