Another One Bites the Dust: Amended 28 U.S.C. 1441 (b) Does Not Permit Removal

Another One Bites the Dust: Amended 28 U.S.C. 1441 (b) Does Not Permit Removal 

By: Rebecca Bartlett

Edited by: Tiffany Morales

Riley v. LLOG Exploration Co. LLC, 2014 WL 4345002 2014 U.S. Dist. LEXIS 120163 (E.D. La. Aug. 28, 2014, Milazzo, J.)

A commercial fisherman, Riley, filed a maritime negligence action in Louisiana state court under the saving to suitors clause of 28 U.S.C. Sec. 1333 against the owners of an unmarked, underwater pipe in the open waters of Plaquemines Parish. Riley was thrown backward, causing injury, when his shrimping net caught on the submerged pipe and his boat suddenly changed direction and abruptly stopped. The defendants removed the case to United States District Court for the Eastern District of Louisiana asserting that the amendment to 28 U.S.C. 1441(b) permits removal of admiralty suits filed in state court. Riley moved to remand to state court, which was granted.The court held removal of admiralty claims brought in state court is prohibited by the savings-to-suitors clause, absent an independent basis of jurisdiction other than admiralty. The recent amendments to the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (“the Act”) do not alter this. Numerous federal district courts have addressed this issue but no federal court of appeals has addressed the question of removal of admiralty claims post-amendment of the Act. The court noted the Fifth Circuit has generally decided claims cannot be removed from state court on admiralty jurisdiction alone. In reaching its conclusion the court relied on the manner in which federal courts have treated pure admiralty claims throughout history. The court reasoned that, “three things are clear: (1) the instant case must proceed either at law or in admiralty, (2) the case may only proceed at law if there is a jurisdictional basis outside of section 1333, and (3) the only possible jurisdictional basis for this suit is section 1333.”The defendant maintained that the court could allow the plaintiff to pursue common law remedies in federal court to preserve the right to trial by jury relying on Fitzgerald v. U.S. Lines Company and Luera v. M/V Alberta.  The court stated these are clearly distinguishable because the plaintiffs in both cases joined admiralty claims with common law claims which afforded a right to a jury. The defendant, according to the court, conflated the right to a jury trial with a rule to permit one. There is no right to a jury trial in admiralty. Because the federal courts exercise exclusive admiralty jurisdiction and could not allow Riley a jury trial under admiralty law, the savings clause of section 1333 prohibited the court from granting removal of the case once the plaintiff had elected to proceed at law in state court.

A matrix on all the cases which have been decided thus far on this issue is being prepared and will be published in the very near future here.