Removal, Not Remand: General Maritime Claims under 28 U.S.C. § 1441 as amended

Removal, Not Remand: General Maritime Claims under 28 U.S.C. § 1441 as amended

By: René Tierney

Edited by: Tiffany Morales

In Provost v. Offshore Serv. Vessels, LLC, the District Court for the Middle District of Louisiana addressed the issue whether the current version of 28 U.S.C. § 1441 permits removal of the plaintiff’s general maritime claim to federal court by defendants. The issue was presented before a magistrate judge, who provided a legal recommendation to the district court judge on whether the case should be remanded to state court.Larry Provost (hereinafter “Plaintiff”) filed suit in state court against Offshore Service Vessels, L.L.C. and its insurer Assuranceforeningen SKULD (hereinafter “Defendants”). Plaintiff alleged negligence under the Longshore Harbor Workers’ Compensation Act after being injured in a trip and fall accident aboard defendant OSV’s vessel. Defendant SKULD, with the consent of defendant OSV, removed the case to federal court on the basis that the court had original subject matter jurisdiction over plaintiff’s claims pursuant to 28 U.S.C. § 1333 and § 1441. Plaintiff then moved to remand, arguing that Fifth Circuit precedent holds that maritime cases brought in state court are non-removable under the savings to suitors clause of § 1333(1) absent another basis for jurisdiction, which defendants did not assert.Federal courts have original jurisdiction over admiralty cases pursuant to 28 U.S.C. § 1333. Moreover, 28 U.S.C. § 1441 permits a defendant to remove an admiralty case to federal court because it is one in which the federal court has original jurisdiction. Thus, it would appear that an admiralty case is removable under these statutes. However, § 1333 contains a “savings to suitors” clause, which grants concurrent jurisdiction to state courts to hear general maritime law claims. This gives a plaintiff the choice between state or federal court.Until December 2011, 28 U.S.C. § 1441 was interpreted to require the defendant to assert a separate basis for federal jurisdiction to remove a general maritime law claim from state court to federal court. This is because the language of subsection (b) only allowed removal of claims “arising under the Constitution, treaties, or laws of the United States” without satisfying the additional jurisdiction requirement contained in subsection (b). As general maritime claims do not “arise under” the Constitution or laws of the United States, some other basis (commonly diversity) for removal jurisdiction was required.In December 2011, Congress amended the removal statute and deleted the requirement that a case must “arise under” the Constitution or laws of the United States. Under the current version, a general maritime law claim can be removed from state court without an independent source of federal jurisdiction because federal courts have original jurisdiction over such claims pursuant to 28 U.S.C. § 1333. This is the issue whether a defendant can remove a maritime case from federal to state court absent an independent basis for federal jurisdiction.The district court recommended that the current version of § 1441 permit removal of general maritime law claims without requiring a separate basis for federal jurisdiction. The court looked to two non-controlling but persuasive cases in Wells v. Abe’s Boat Rentals, Inc. and Ryan v. Hercules Offshore, Inc. In Ryan, the court summed up the principles which made general maritime claims non-removable under the old version of § 1441. First, § 1333 gives federal courts original jurisdiction over admiralty claims, and the savings to suitors clause itself does not preclude a federal court from hearing such a claim. Second, the prior version of § 1441(b) was the “Act of Congress” that prevented removal without another basis of federal jurisdiction such as diversity or the Outer Continental Shelf Lands Act, for example.Removal of cases in which the district court has original jurisdiction is permitted unless expressly prohibited by an “Act of Congress” under both the old and current versions of § 1441. However, in the 2011 amendment of § 1441 Congress erased the language contained in § 1441(b) which required § 1333 actions – those that fall within federal original jurisdiction – to “arise under” the Constitution or laws of the United States. The Fifth Circuit had relied on the old version of § 1441(b) as the “Act of Congress” which precluded federal courts from exercising removal jurisdiction. As such, the judge found that any prior Fifth Circuit case that treated § 1441(b) as the “Act of Congress” preventing removal of original jurisdiction maritime cases pursuant to § 1441(a) lost its statutory basis with the December 2011 amendments to § 1441.Moreover, the magistrate judge rejected Plaintiff’s argument that the saving to suitors clause barred removal of a maritime claim because Plaintiff did not request a non-maritime remedy, such as a jury trial. Plaintiff cited Barry v. Shell Oil Company in support, which held that removal was improper where the plaintiff requests a jury trial in state court on a maritime action. Jury trials are not available in federal court where admiralty is the sole basis for jurisdiction, so the Barry court reasoned that the saving to suitors clause protects a plaintiff’s choice to pursue his non-maritime remedy of a jury trial in state court. As the Plaintiff in Provost did not request a jury trial, the magistrate judge found Barry in applicable and rejected Plaintiff’s argument. Thus, it appears removal is proper where a jury trial is not requested by a plaintiff in state court. In juxtaposition, removal should be denied when a plaintiff does request a jury trial in state court, and admiralty is the sole basis for the federal court’s jurisdiction.After reviewing the applicable statutes and cases, the magistrate judge recommended that the current version of § 1441 permits removal of general maritime claims and to deny remand.