Southern District of Alabama Judge Remands Maritime Suit: Amendment to 28 U.S.C. 1441(b) No basis for removal

Southern District of Alabama Judge Remands Maritime Suit:

Amendment to 28 U.S.C. 1441(b) No basis for removal

By: Andrea Jones

Edited by: Tiffany Morales

Pierce v. Parker Towing Co., Inc., No. 14-00073-KD-N, 2014 WL 2569132 (S.D. Ala. 2014).

Plaintiffs, owners of real property facing the Tombigbee River in Alabama, filed a lawsuit in state court alleging that the crew and operators of a tugboat owned by defendant, Parker Towing Company, Inc. (“Parker”), lost control of the tugboat and the barges that it was pushing, causing severe damage to the real property of each plaintiff. The plaintiffs’ complaint asserts negligence, wantonness, trespass, and private nuisance and requests a jury trial for all issues. The case was originally filed in the Circuit Court of Choctaw County, Alabama, but defendants removed it to the Southern District of Alabama. The plaintiffs timely moved for remand and defendant objected, resulting in an issue of first impression for the Southern District of Alabama; whether the current version of 28 U.S.C. § 1441(b), as amended in 2011, allows for the removal of in personam maritime claims based solely on the court’s original admiralty and maritime jurisdiction.In addressing the issue, the Southern District reasoned that the burden of removal rests on the defendants under 28 U.S.C. §1441(a) and, due to federalism concerns, federal courts must construe removal statutes strictly. The district judge focused on the jurisdiction of federal courts over maritime claims, which is concurrent with state courts. Allowing removal of certain maritime claims could potentially undermine the traditional concurrent admiralty jurisdiction shared by state and federal courts.The court found that there was no dispute as to the fact that the plaintiffs’ claims were maritime in nature and, therefore, if Plaintiffs chose to file the claims under the Southern District’s admiralty jurisdiction, the court would have original subject matter jurisdiction over the claims. The Court then went on to address whether or not the case was properly removed by the Defendants under original admiralty jurisdiction and addressed Parker’s argument that removal was proper in light of a recent amendment to 28 U.S.C. §1441.The district judge found it necessary to discuss the “saving to suitors” clause (hereinafter referred to as “savings clause”) in greater detail in order to properly frame the argument. The savings clause is encompassed in 28 U.S.C. §1333 and grants original admiralty jurisdiction to federal courts. In effect, it retains a plaintiff’s common law remedies for resolution in a non-federal forum. The savings clause is considered jurisdictional in nature as it is in a jurisdictional statute. Because courts, sitting in diversity jurisdiction, are able to hear maritime suits that invoke common law remedies, plaintiffs are not guaranteed a non-federal forum. The court looked to Armstrong v. Ala. Power. Co., 667 F.2d 1385 (11th Cir. 1982) to support its finding that the maritime nature of a claim does not, in and of itself, provide federal jurisdiction. The court concluded that it did not have original admiralty jurisdiction over general maritime claims that seek common law remedies. The savings clause allows for a plaintiff to bring an in personam claim in state court, or under diversity jurisdiction in federal court. Because of the savings to suitors clause, the plaintiffs were well within their rights to bring their suit in state court, as they originally did.Prior to the amendment of 28 U.S.C. §1441, the case law consistently held that a general maritime in personam claim (such as plaintiffs’) brought in a state court was not properly removed absent a separate basis for federal jurisdiction (in other words, excluding admiralty jurisdiction). The court called attention to some interpretations of the 2011 amendment to §1441 that have taken the well-settled principle that general maritime claims are not removable to federal courtand muddied the jurisprudential waters.

Parker based its argument in favor of removal primarily on Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772 (S.D. Tex. 2013) and other recent district court (this issue has not been decided by any federal court of appeals) decisions, focusing on the amendments to 28 U.S.C. §1441(b) which appeared to abrogate In re Dutile, 935 F.2d 61 (5th Cir. 1991). In response, the court reasoned that the Dutile rule, which disallowed the removal of general maritime claims and admiralty claims because they fell under the enumerated exclusion in §1441 of “any other” civil action, has nothing to do with the binding circuit precedent of Poirrier v. Nicklos Drilling Co., 645 F.2d 1063 (5th Cir. 1981) and similar cases. The court noted that some Circuits have abandoned the Dutile rule in light of the amendments to §1441. The amendments removed the language upon which the Dutile rule was based, rendering the rule arguably obsolete. The language that was the basis of the Fifth Circuit’s rule disallowing the removal of in personam maritime claims was removed in the amendments to §1441. However, some courts did not rely on this language as the basis for the removal bar. As such, the removal of the specific language alone did not control. In light of the conflicting case law, the Southern District held that remand was the only result that would preserve the plaintiffs’ maritime in personam claims and provide a remedy of trial by jury under existing law. Thus, the case was remanded to the Circuit Court of Choctaw County, preserving the plaintiffs’ forum of choice and their right to preserve the non-maritime remedies that the savings clause protects.