Bartman v. Burrece
| Decision Date | 18 August 2014 |
| Docket Number | Case No. 3:14-cv-0080-RRB |
| Court | U.S. District Court — District of Alaska |
| Parties | BILLY BARTMAN; MASSA SPUD; WASSILLIE CHOCKNOK; MARILYN ETUCKMELRA; ALVIN EVON; IRENE GAMECHUK-OLES; NELLIE GAMECHUK; CHRISTIAN GLOKO; VERA GLOKO; ALBERT ITUMULRIA; LESTER MOORE; MARVIN NICKETA; VINCENT NICKETA; STEVEN PAUL; WASSILLISIA PAUL; RAYMOND SHANGIN; PETER NANALOOK; TIMOTHY JENKINS; PETE OLSON; MIRIAM OLSON; NORMAN GLOKO, SR., Individually and on Behalf of NORMAN GLOKO, JR., a Minor Child, , Plaintiffs, v. CHARLES BURRECE; JOHN DOES 1-5; TRIDENT SEAFOODS CORPORATION; MAGONE MARINE SERVICES, INC.; DANIEL MAGONE; RESOLVE MARINE GROUP, INC.; and ALASKA CHADUX CORPORATION, Defendants. |
Before the Court is Plaintiffs' Motion for Remand to State Court pursuant to 28 U.S.C. § 1447(c) at Docket 21. Plaintiff originally filed this suit in the Superior Court for the State of Alaska, Third Judicial District at Dillingham, alleging claims for loss of past and future commercial fishing income, subsistence foods, subsistence and cultural activities, and damage to real and personal property under Alaskan law.1 Defendant Trident Seafoods Corporation removed the action to this Court, citing 28 U.S.C. § 1333 and, alternatively, 28 U.S.C. § 1332 as the basis for federal subject matter jurisdiction. Also before the Court is Defendant Alaska Chadux's Motion to Dismiss at Docket 10 and Plaintiffs' Motion for Leave to Conduct Discovery as to Jurisdictional Facts at Docket 34.
The Court concludes that because the parties have submitted memoranda thoroughly discussing the law and evidence in support of their positions, oral argument is neither necessary nor warranted with regard to the instant matter.2 After consideration of the submissions of the parties and the relevant law, the Court GRANTS Plaintiffs' Motion for Remand to State Court.
Plaintiffs allege that they operate commercial salmon set nets at the Igushik River or engage in subsistence fishing in the Bristol Bay salmon fishery. Plaintiffs allege that Defendant Charles Burrece, a resident of the State of Alaska, owned and operated the F/V Lone Star as a tender vessel for Defendant Trident Seafoods Corporation ("Trident"), a Washington corporation.3 Plaintiffs further alleged that on or about June 30, 2013, F/V Lone Star capsized and sank in Bristol Bay, Alaska, due to actions by Defendant Burrece and five other currently unidentified defendants.4
According to Plaintiffs' pleadings, F/V Lone Star had 13,750 gallons of diesel fuel, 300 gallons of other petroleum products, and about 35,000 pounds of salmon in its hold and began to leak fuel after sinking.5 Plaintiffs allege that Defendant Alaska Chadux, an Alaska corporation, was hired as the spill response contractor to address the fuel leaking and negligently placed absorbent booms around F/V Lone Star which led to contamination and closure of the salmon fishery.6
Plaintiffs also allege that Defendant Magone Marine Services, Inc. ("MMS"), an Alaska corporation, and Defendant Resolve Marine Group, Inc. ("RMG"), a Florida corporation, werehired to remove the fuel from the sunken F/V Lone Star and raise it from the seabed.7 During the course of the salvage operation, Plaintiffs allege that MMS and RMG caused or allowed a substantial amount of salmon and other waste to be spilled from F/V Lone Star's hold into the ocean and nearby Igushik River.8 Plaintiffs allege that the discharge of salmon waste attracted bears and led to destruction of Plaintiffs' nearby set nets and cabins.
After Plaintiffs originally filed suit in Alaska state court, Defendant Trident removed the action to this Court.9 Trident alleges that Burrece is, in fact, a Washington resident, the joinder of Alaska Chadux is fraudulent because of protections afforded while acting under the direction of the US Coast Guard ("USCG") and the Alaska Department of Environmental Conservation ("ADEC"), and that MMS was fraudulently joined as a defendant because Plaintiffs cannot establish a claim against MMS. Plaintiffs now move to remand.
Removal of a suit from state court to the federal court is based on the specific language of 28 U.S.C. § 1441. The general removal statute provides that "[e]xcept 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 defendant or thedefendants, to the district court of the United States for the district and division embracing the place where such action is pending."10 Under 28 U.S.C. § 1447(c), after a case is removed from state court, if at any time before final judgment it appears that the district court lacks subject-matter jurisdiction, the case shall be remanded.
The Court has original jurisdiction in matters arising from admiralty or that are maritime in nature. Specifically, the statutory grant of admiralty jurisdiction provides that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled."11 The later clause is often referred to as the "savings to suitors" clause.
The Court also has original jurisdiction where there is diversity of citizenship and the amount in controversy exceeds $75,000.12 Where the basis of jurisdiction is diversity of citizenship, that diversity must be complete where each of the plaintiffs must be a citizen of a different state than each of the defendants.13 However, an exception to the requirement ofcomplete diversity is where a non-diverse defendant has been "fraudulently joined."14 The joinder of a non-diverse defendant is considered fraudulent and "defendant's presence in the lawsuit is ignored for purposes of determining diversity, '[i]f the plaintiff fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state.'"15 Further, the defendant "is entitled to present the facts showing the joinder to be fraudulent."16
When removal is made to the Court, "the burden on removal rests with the removing defendant."17 Additionally, the Court will "strictly construe the removal statute against removal jurisdiction" and "resolves all ambiguity in favor of remand to state court."18 Trident has asserted two bases supporting removal to this Court. First, Trident asserts that because Plaintiffs' claims are all maritime in nature, this Court has admiralty jurisdiction.19 In the alternative, Tridentasserts that there is diversity of citizenship between all properly joined parties.20 This Court will address both bases for jurisdiction and removal.
Notwithstanding recent amendments to the statue governing removal, the reservation of remedies at common law preserved in the statute granting the Court's original jurisdiction support remand of this matter back to state court.
Maritime claims are not removable absent an independent ground of federal subject matter jurisdiction, such as diversity jurisdiction.21 However, Trident argues that the 2011 amendments to 28 U.S.C. § 1441 now allow for the removal of all maritime claims without regard to any other basis for jurisdiction.22 In particular, the amendments removed the language stating that "[a]ny 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."23 Thus Trident argues that this removed language was the basis for barring the removal of general maritime claims in the absence of diversity jurisdiction.24 In support of this assertion,Trident relies on several recent decisions from district courts in the Fifth Circuit, which have held that the removal of language requiring diversity in "other such actions" in effect allows all maritime claims to be freely removable to federal court based on admiralty or maritime jurisdiction alone.25
Plaintiffs argue that the amendments to 28 U.S.C. § 1441 do not change the established rule that admiralty and maritime claims require an independent ground for federal subject matter jurisdiction to support removal. Plaintiffs rely on the recent opinion in Coronel v. AK Victory, from the Western District of Washington, which delineated between maritime claims in admiralty and at law and that court ultimately adhered to the body of precedent within our Ninth Circuit finding admiralty jurisdiction alone is insufficient to support removal. C13-2304JLR, 2014 WL 820270 (W.D. Wash. Feb. 28, 2014)
This Court recognizes that the 2011 amendments to 28 U.S.C. § 1441 removed language which required diversity for removal of claims not based in federal law. However, while the amended § 1441 may have removed restrictive conditions, removal based on admiralty jurisdiction is still limited by the statutory grant of original jurisdiction in 28 U.S.C. § 1333."'The threshold requirement for removal under 28 U.S.C. § 1441 is a finding that the complaint contains a cause of action that is within the original jurisdiction of the district court.'"26 The Court finds the "saving to suitors" clause in the grant of original jurisdiction under 28 U.S.C. § 1333 to be dispositive in this matter.
The "savings to suitors" clause of 28 U.S.C. § 1333, "leave[s] state courts 'competent' to adjudicate maritime causes of action in proceedings 'in personam,' that is, where the defendant is a person, not a ship or some other instrument of navigation."27 Additionally, the "saving to suitors" clause has been held by the...
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