Attempted Removal under 28 U.S.C. Sec. 1441 Not Sanctionable

Attempted Removal under 28 U.S.C. Sec. 1441 Not Sanctionable

By: Bryan O’Neill

Riverside Constr. Co. v. Entergy Miss., 2015 U.S. App. LEXIS 16667 (5th Cir., Sep. 17. 2015)

In a contract dispute over repairs to a dolphin system on its fuel dock in the Mississippi River, Entergy Mississippi attempted to remove the case from state to federal court based on admiralty jurisdiction. The trial court remanded the case ultimately finding that the contract was not a maritime contract and further denied the plaintiff’s motion for sanctions maintaining that removal was improper because the savings to suitor’s clause prohibited it. The trial court disagreed and refused to award costs.Though this matter arose prior to the 2011 Amendments which have been the subject of much debate, the Fifth Circuit noted the issue of the effect of the amendments is “hotly contested” amongst the district courts. The Court also noted that it has not yet ruled on the issue yet cited to its decision in Barker v. Hercules Offshore Inc., 713 F.3d 208, 223 (5th Cir. 2013) in which it stated that complete diversity may continue to be necessary to remove a maritime suit from state to federal court.The court affirmed the trial court’s denial of costs. A case improperly removed is a procedural defect and not a jurisdictional defect. An objection to removal may be waived. Here, Entergy “could not have known at the time of removal whether Riverside would object to the removal of the case, or would waive its objection.”