Removal Based on 2011 Amendments to 28 U.S.C. Sec. 1441(b) Denied: Two More Cases in the Litany of Remands

Removal Based on 2011 Amendments to 28 U.S.C. Sec. 1441(b) Denied: Two More Cases in the Litany of Remands

By: Jamie Johnson

Bartel v. Cent. Gulf Lines, Inc., 2014 WL 5431511, 2014 U.S.Dist. LEXIS 152401 (M.D. La. Oct. 1, 2014. Bourgeois, Mag.)Bartel v. Alcoa S.S. Co., 2014 WL 5431544, 2014 U.S.Dist. LEXIS 152369 (M.D. La. Oct. 2, 2014, Bourgeois, Mag.)This suit by the personal representative of the decedent was filed under the Jones Act and General Maritime Law alleging the decedent died as a result of exposure to asbestos while employed by various defendants from 1950 through 1983. The suit was filed in state district court without a jury. The defendants filed a removal, alleging that the federal court had admiralty jurisdiction and that removal was proper as the suit is a civil action under 28 U.S.C. Sec. 1441. A Motion to Remand was filed asserting the action could not be removed due to the savings to suitors clause.As the plaintiff alleged a valid Jones Act claim and as there was no allegation that the federal court has original federal question jurisdiction, Magistrate Richard Bourgeois, Jr. granted the Motion to Remand. The defendants did not raise any specific statutory arguments in support of removal and only relied on the decisions of other judges in the Middle District allowing removal of certain claims in light of the amendment to 28 U.S.C. Sec. 1441(b), which were distinguishable. In those other cases, the defendant argued fraud in pleading status under the Jones Act, there was no Jones Act allegation and in others, jurisdiction was also based on the Outer Continental Shelf Lands Act.