Auerbach v. Tow Boat U.S.

• Decision Date: 14 January 2004
• Docket Number: Civil Action No. 03-2222 (MLC).
• Citation: 303 F.Supp.2d 538
• Parties: Richard T. AUERBACH, Plaintiff, v. TOW BOAT U.S., et al., Defendants.
• Court: U.S. District Court — District of New Jersey

303 F.Supp.2d 538

Richard T. AUERBACH, Plaintiff, v. TOW BOAT U.S., et al., Defendants.

Civil Action No. 03-2222 (MLC).

United States District Court, D. New Jersey.

January 14, 2004.

COPYRIGHT MATERIAL OMITTED

F. Kevin Lynch, East Brunswick, NJ, for plaintiff.

Picillo Caruso & O'Toole (Richard D. Picini of counsel), Nutley, NJ, and Rubin, Fiorella & Friedman, LLP (James E. Mercante of counsel), New York City, for defendants.

MEMORANDUM OPINION

COOPER, District Judge.

This is an action to recover damages for breach of contract and negligent provision of towing services. The defendants are Tow Boat U.S., d/b/a Miller's Towing & Salvage, t/n Miller's Towing & Salvage ("MT'S"), and Boat U.S. ("BUS"). MTS and BUS removed this action from state court to this Court based on the jurisdiction of the federal courts in admiralty cases. See 28 U.S.C. § 1333. The plaintiff, Richard T. Auerbach, moves to remand the action under the saving-to-suitors clause contained in 28 U.S.C. § ("Section") 1333(1) and for an award of costs and expenses incurred due to the removal. See 28 U.S.C. § 1447. The Court will grant only the part of the motion seeking remand.¹

BACKGROUND

BUS, a Virginia "resident," is an organization for boating enthusiasts. (Notice of Removal at 2; Mercante Decl., Ex. 2, Towing-Service Contract ("Contr.").) BUS provided Auerbach — a New Jersey resident, BUS member, and twenty-foot-motor-boat owner — with "Tow Boat U.S. Service," which entitled him to

on-the-water assistance; commercial towing of your disabled boat from the point of breakdown at sea to your port of choice; battery jump starts or fuel delivery at sea; [and] ungrounding assistance for a soft grounding.

(Id.; Compl. at 1.) This service, however, did not apply to "salvage, including hard groundings." (Contr.) BUS licensed private towing companies — including MTS, a New Jersey resident — to serve its members. (Id.; Mercante Decl., Ex. 1, Schneider Decl.; Notice of Removal at 2.)

Auerbach brought this action to recover damages for breach of contract and negligent provision of towing services against MTS and BUS in New Jersey Superior Court, Monmouth County. (Pl. Br. at 2; Compl.) He alleges that (1) on August 2, 2002, he requested a tow for his disabled boat in Sandy Hook Bay, but MTS refused to tow it unless he paid a salvage fee; (2) on August 3, he again requested a tow, MTS sent an inadequate boat, and MTS did not return with a different boat; (3) on August 4, he again requested a tow "to no avail;" and (4) soon thereafter, the boat "was destroyed and became a `total loss.'" (Id. at 2.) He seeks to recover damages in the amount of $9,500. (Id. at 3.)

MTS and BUS removed the action to this Court under Sections 1441(a) and 1333. They alleged that jurisdiction

is conferred on this Court by [Section] 1333, which provides that the district courts shall have original jurisdiction of any civil case of admiralty or maritime jurisdiction. [Auerbach's] allegations comprise a maritime claim within the admiralty jurisdiction of this Court. Further Defendants are entitled to exoneration from or limitation of liability pursuant to [the Limitation of Vessel Owner's Liability Act ("LOVOLA"),] 46 U.S.C. § 181 et seq. with regard to [his] claims.

(Notice of Removal at 2.)

Auerbach moves to remand the action. He argues that (1) MTS and BUS fail to specify the applicable section of LOVOLA, (2) in any event, LOVOLA applies to shipping and carriage of goods by sea, which is not involved here, and (3) he is entitled to bring and keep an admiralty action in state court under the saving-to-suitors clause contained in Section 1333(1). (Pl. Br. at 1-3.) He also moves to recover costs and expenses, arguing that MTS and BUS "sought removal as an unfair litigation tactic in a small case." (Id. at 4.)

MTS and BUS oppose the motion, arguing that (1) the boat required salvage service, (2) salvage matters are within the exclusive jurisdiction of federal courts and, thus, not subject to the saving-to-suitors clause, and (3) Auerbach is not entitled to recover costs and expenses. (Def. Br. at 2-4.) MTS and BUS fail to address the applicability of LOVOLA in their brief.

DISCUSSION

I. Section 1333(1)

The motion to remand, as it involves the removal of an admiralty action, "presents several thorny procedural and jurisdictional questions." Dao v. Knightsbridge Int'l Reins. Corp., 15 F.Supp.2d 567, 568 (D.N.J.1998). Here, MTS and BUS seek removal under Section 1441(a):

Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the ... defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

But this must be read in conjunction with Section 1441(b):

Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

The relevant statute providing jurisdiction over admiralty actions states:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.

28 U.S.C. § 1333(1) (emphasis added). The "plain meaning of this language is by no means an intuitive matter." In re Chimenti, 79 F.3d 534, 537 (6th Cir.1996) (discussing Section 1333(1)). The emphasized language, known as the saving-to-suitors clause, has the following effect on the removability of an admiralty action:

Admiralty excepts a class of cases from the general rule that cases which could originally have been filed in federal court are removable to federal court at the option of the defendant. Common law maritime cases filed in state court are not removable to federal court, due to [the] "saving to suitors" clause. Dating back to the Judiciary Act of 1789, this clause preserves a plaintiffs right to a state court forum in cases arising under the common law of the sea.

Pierpoint v. Barnes, 94 F.3d 813, 816 (2d Cir.1996); accord Super. Fish Co. v. Royal Globe Ins. Co., 521 F.Supp. 437, 441 (E.D.Pa.1981). Thus, an admiralty claim does not arise under the federal constitution, treaties, or laws, and cannot be removed freely to federal court under Section 1441. Romero v. Int'l Term. Operating Co., 358 U.S. 354, 371-72, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959); U.S. Express Lines v. Higgins, 281 F.3d 383, 390 (3d Cir.2002). It is "the unquestioned aim" of the saving-to-suitors clause to preserve the concurrent jurisdiction of state courts in admiralty actions. Romero, 358 U.S. at 372, 79 S.Ct. 468.

A state court's concurrent jurisdiction over an admiralty action, however, is limited. A state-court plaintiff — the "suitor" — can be "saved" from removal only in an in personam admiralty action. An in personam action lists a person or an association as the defendant and seeks to adjudicate the interests of specific parties only. Lewis v. Lewis & Clark Marine, 531 U.S. 438, 445-46, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001); Madruga v. Super. Ct., 346 U.S. 556, 560-61, 74 S.Ct. 298, 98 L.Ed. 290 (1954); Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1484 n. 6 (5th Cir.1992). In contrast, an in rem proceeding is within the exclusive jurisdiction of the federal courts. An in rem proceeding treats a vessel as being the offender, names the vessel as a defendant, and seeks to adjudicate the interests of the world at large because the defendant is a res. Madruga, 346 U.S. at 560, 74 S.Ct. 298; Wehr v. Pheley, No. 99-4574, 2000 WL 236438, at *2 (N.D.Cal. Feb. 16, 2000).

A plaintiff also can be saved only if the action is not otherwise removable. Means v. G & C Towing, 623 F.Supp. 1244, 1245 (S.D.W.Va.1986) (concerning two-vessel collision); see U.S. Express Lines, 281 F.3d at 390 (stating admiralty action removable if independent basis for federal jurisdiction exists). For example, the saving-to-suitors clause does not bar removal if an action meets the requirements of Section 1332 and names no citizen of the state where the action is brought as a defendant. Id.; 28 U.S.C. § 1441(b).

The plaintiff may also be required to object to removal because the protection afforded by the saving-to-suitors clause may be waivable. Compare Dao, 15 F.Supp.2d at 571-74 (stating plaintiff waived protection by not opposing removal), and Morris v. Princess Cruises, 236 F.3d 1061, 1069 (9th Cir.2001) (stating jurisdiction exists where plaintiff seeks no remand, as original jurisdiction exists in first instance), with Chimenti, 79 F.3d at 538 (stating state-court choice "could not be disturbed"), J. Aron & Co. v. Chown, 894 F.Supp. 697, 699-700 (S.D.N.Y.1995) (stating state-court commencement is "irrevocable election" that "forever prevents" removal), and Jenkins v. Moshulu Rest., No. 86-6211, 1986 WL 12945, at *1 (E.D.Pa. Nov. 17, 1986) (remanding action even though plaintiff did not oppose removal). This is not at issue here because Auerbach has moved to remand.

II. Remand

The Court, for the following reasons, will grant the part of the motion seeking remand.

A. In Personam

This is an in personam action because it is against two associations — MTS and BUS — and not against a vessel. See Madruga, 346 U.S. at 561, 74 S.Ct. 298 (affirming judgment declaring state court had jurisdiction in admiralty action; "plaintiffs' quarrel was with their co-owner, not with the ship"); Bower v. S.S. Mut. Underwriting Ass'n, No. 02-0669, 2003 WL 1873095, at *2 (E.D.La. Apr. 10, 2003) (granting motion to...