United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION Dated on May 14, 2014
For Frankie Pierce, Pat Pierce, Joe McCoy, Charles Cooley, Marisa Cooley, Geneva J. Clements, George W. Clements, Deborah L. Dearmon, Plaintiffs: Joseph C. McCorquodale, III, LEAD ATTORNEY, Jackson, AL.
For Parker Towing Company, Inc., Defendant: Patrick J. Ward, Mobile, AL; Norman Matt Stockman, Hand Arendall, L.L.C., Mobile, AL.
KRISTI K. DuBOSE, UNITED STATES DISTRICT 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. (" Parker" ), on February 19, 2014. ( See generally Doc. 1.) On March 14, 2014, Plaintiffs timely moved to remand. See (Doc. 8); 28 U.S.C. § 1447(c). United States Magistrate Judge Katherine Nelson has entered a report and recommendation
pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 (Doc. 23), which would remand the case. Parker has filed an objection (Doc. 24) and Plaintiffs have filed a response (Doc. 26). The Court adopts the recommendation of Judge Nelson with amendment as follows:
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.
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. All doubts as to removal militate in favor of remand.
The Court's analysis begins where it must, with the burden of removing on 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 __, 1 F.Supp.3d 1175, 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, 79 S.Ct. 468,
3 L.Ed.2d 368 (1959), superseded by statute on other grounds, 45 U.S.C. § 59,] found that unfettered removal of maritime claims would vitiate the principles of federalism underlying the saving to suitors clause." (citing Romero, 358 U.S. 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 admiralty claims.
There is no dispute that Plaintiffs' claims are maritime in nature. As such, this Court would have, if Plaintiffs chose to file these claims under this Court's admiralty jurisdiction, original subject matter jurisdiction. 28 U.S.C. § 1333(1) 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 . . . ." ).
The issue now before the Court is whether this case was properly removed under this Court's admiralty jurisdiction. While the undersigned will discuss Parker's argument that removal is proper in light of a relatively recent change to § 1441, proper framing of the parties' dispute requires additional discussion of the " saving to suitors" clause upfront.
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. § 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, 18 L.Ed. 397, 32 How. Pr. 460 (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))). The saving clause--" [contained 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." Perio,
2013 WL 5563711, at *12-13. See also Madruga v. Superior Court, 346 U.S. 556, 560, 74 S.Ct. 298, 98 L.Ed. 290 (1954) (" 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)).
Therefore, it has been made clear that common-law remedies are, " 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." Romero, 358 U.S. at 363. It is because of this Court's ability to entertain maritime suits invoking common law remedies pursuant to its diversity jurisdiction, that the plaintiffs are not guaranteed a non-federal forum.
As explained by the Eleventh Circuit, " under the reasoning of Romero, a federal district court should not accept the removal of a saving clause case solely because of its general maritime nature: the maritime nature simply does not provide a ground for federal jurisdiction." Armstrong v. Ala. Power Co., 667 F.2d 1385, 1388 (11th Cir. 1982) (emphasis added); see also Poirrier, 648 F.2d at 1066 (The saving to suitors clause does not " limit the right of defendants to remove [suits seeking non-maritime remedies] to federal court where there exists some basis for federal jurisdiction other than admiralty." ) In other words, this Court does not have original jurisdiction, based solely on its § 1333 admiralty jurisdiction, over general maritime claims requesting common law remedies. In sum, the " saving to suitors clause allows a plaintiff to bring suit as an in personam claim in state court or as a diversity claim in federal court, rather than suing 'in admiralty' in federal court." Baughan v. Royal Caribbean Cruises, Ltd. 944 F.Supp.2d 1216, 1218 (S.D. Fla. 2013).
As was their right, 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). It was Plaintiffs' prerogative where to file, and thus how to pursue, their in personam maritime claims ( e.g., whether to elect trial by jury). See Vincent v. Regions Bank, No. 8:08-cv-1756-T-23EAJ, 2008 WL 5235114, at *1 (M.D. Fla. Dec. 15, 2008) ( 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 a separate basis for federal jurisdiction.
Prior to the 2012 amendment to 28 U.S.C. § 1441(b), it was settled law even in the Fifth Circuit that removal of an in personam maritime action--such as Plaintiffs'-- required a " separate basis for jurisdiction." Freeman v. Phillips 66 Co., Civil Action Nos. 14-311, 14-624, 2014 WL 1379786, at *3 (E.D. La. Apr. 8, 2014); compare id. (" It is undisputed that prior to 2012, general maritime claims were not removable on the basis of admiralty jurisdiction and could be removed only if a separate basis for jurisdiction existed, such as diversity." (citing In re Dutile, 935 F.2d 61, 62-63 (5th Cir. 1991 ))), with Butler v. RLB Contracting, Inc., Civil Action No. 3:14-CV-112, 2014 WL 1653078, at *1 (S.D. Tex. Apr. 24, 2014) (" Prior to . . . January 2012, the proposition that maritime claims were not removable was universally accepted. That certainty is gone;
in its place is a hotly contested issue in maritime law." (citations omitted)).
D. Parker's argument as to why Plaintiffs' claims now fall under this Court's removal jurisdiction turns on Fifth Circuit cases interpreting the former and amended versions of § 1441(b).
Parker's argument for the removability of this case is based primarily on Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex. 2013), and other recent decisions by district courts in the Fifth Circuit following " the course set by Ryan. "  Freeman, 2014 WL 1379786, at *4.
As to general maritime claims, Ryan's analysis turns primarily on amended § 1441(b)'s apparent abrogation of In re Dutile, 935 F.2d 61 (5th Cir. 1991), a case no court in this Circuit has ever cited, at least in a reported decision. In In re Dutile, the in rem claims at issue did
constitute a " civil action . . . of which the district courts . . . have original jurisdiction" by virtue of § 1333(1). Section 1441(a), [substantively unchanged by the FCJVCA,] however, is prefaced by the phrase, " Except as expressly provided by Act of Congress. . . ." One of these express provisions [was] found in § 1441(b). The first sentence of that subsection [then] provide[d] 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.
935 F.2d at 63-64 (citing Romero, 358 U.S. at 378 (It is " clear that the words of [the 'arising under'] statute do not extend, and could not reasonably be interpreted to extend, to cases of admiralty and maritime jurisdiction." )). The panel in Dutile thus concluded " 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.'" Id. at 64.
This conclusion, that admiralty claims are only removable if " there is complete diversity of citizenship (predicated upon out-of-state ...