Canino v. Londres, Civ. A. No. 94-370-JD

Decision Date31 August 1994
Docket Number94-371-JD.,Civ. A. No. 94-370-JD
Citation1995 AMC 675,862 F. Supp. 685
PartiesMichael A. CANINO, v. F. Jeffrey LONDRES, Lisa CANINO, et al. v. F. Jeffrey LONDRES.
CourtU.S. District Court — District of New Hampshire

David L. Nixon, Nixon, Raiche, Brown, Manning & Branch, PA, Manchester, NH, for plaintiff.

Kevin C. Devine, Devine & Nyquist, Manchester, NH, Robert D. Keefe, Hale & Dorr, Boston, MA, Richard V. Wiebusch, Hale & Dorr, Manchester, NH, for defendant.

ORDER

DiCLERICO, Chief Judge.

On June 9, 1994, the plaintiff, Lisa Canino individually and as executrix of the estate of Thomas Canino, filed a two count writ of summons for wrongful death and loss of consortium in the Rockingham County Superior Court against the defendant, F. Jeffrey Londres. The plaintiff, Michael A. Canino, also filed a writ of summons on the same date against the defendant seeking damages for personal injuries suffered after a boating accident.1 On July 13, 1994, the defendant removed both actions asserting as a jurisdictional basis 28 U.S.C. §§ 1332, 1333, 1441, and 1446.2 Currently before the court are Lisa Canino's and Michael Canino's timely motions to remand pursuant to 28 U.S.C.A. 1447(c) (West 1994) (document nos. 5 and 6 respectively).3 For the following reasons, the court grants the motions to remand.

Background

On May 29, 1994, Thomas Canino operated a motor boat in the Piscataqua River in New Hampshire and his brother, Michael Canino, was a passenger. The defendant operated his cabin cruiser on the same river. In the early afternoon, the boats collided, killing Thomas Canino and injuring Michael Canino.

Lisa Canino, the executrix of Thomas Canino's estate, brought an action seeking damages for wrongful death and loss of consortium arising out of the boating accident. She alleged that the defendant owed a duty to operate and control his boat in a careful manner and he breached this duty by failing to maintain a proper lookout and to obey the rules in operating a boat in waterways. She further alleged that as a result of the defendant's negligent conduct which caused the collision, the estate suffered damages which included "property damage, funeral expense, medical bills, lost wages, lost earning capacity, loss of enjoyment of life, property loss and pain and suffering." Writ of Summons, ¶ 7. In her loss of consortium claim, she alleged as a result of the defendant's negligent conduct, she suffered damages for emotional pain and suffering, pain and suffering, and loss of enjoyment, benefit, and services" of her husband. Writ of Summons, ¶ 12.

Michael Canino alleged the defendant owed him the same duty and the defendant breached that duty. He sought damages for medical expenses, lost wages, and pain and suffering.

Discussion
I. Removal of Lisa Canino's Action
A. Claims

Lisa Canino asserts the defendant "ignored well-established, fundamental federal law stating that an action is not removable to a federal court where the sole basis of removal is the court's admiralty jurisdiction pursuant to 28 U.S.C. § 1333." Motion to Remand with Incorporated Memorandum of Law, ¶ 3. According to Lisa Canino, the defendant has failed to establish that a basis for federal jurisdiction exists other than admiralty under § 1333. In addition, she claims that she has the right to pursue her action in state court pursuant to the "saving to suitors" clause contained in § 1333 without invoking federal jurisdiction.

In response to Lisa Canino's motion, the defendant contends that removal of the action to federal court is proper because he has the right to remove a case in which the district court has original jurisdiction under § 1441(a). He states that Lisa Canino's claims arise under admiralty law and the court has original jurisdiction over admiralty claims under § 1333. While agreeing that courts have previously prevented removal absent an independent basis of jurisdiction, the defendant observes that the Judicial Improvements Act of 1985, Pub.L. No. 99-336, § 3, 100 Stat. 633, 637 (1986) altered that requirement. He further asserts that the "saving to suitors" clause does not apply because it is directed at claims arising out of common law. According to the defendant, Lisa Canino's claims do not exist at common law and are "creatures of New Hampshire statute." Defendant F. Jeffrey Londres' Objection to Motion to Remand at 6.

B. Admiralty Jurisdiction and 28 U.S.C. § 1333

The United States Constitution provides in relevant part that "the judicial Power shall extend ... to all Cases of admiralty and maritime Jurisdiction...." U.S. Const. art. III, § 2, cl. 1; Romero v. International Terminal Operating Co., 358 U.S. 354, 360-61, 79 S.Ct. 468, 473-74, 3 L.Ed.2d 368 (1959); Madruga v. Superior Court, 346 U.S. 556, 557, 74 S.Ct. 298, 299, 98 L.Ed. 290 (1954). Pursuant to 28 U.S.C.A. § 1333 (West 1993), federal district courts have original and exclusive jurisdiction over admiralty claims.4 However, this "exclusive" jurisdiction is not exclusive at all. Yangming Marine Transp. Corp. v. Electri-Flex Co., 682 F.Supp. 368, 371 (N.D.Ill.1987). It is well-established that admiralty jurisdiction is exclusive

only as to those maritime causes of action begun and carried on as proceedings in rem, that is, where a vessel or thing is itself treated as the offender and made the defendant by name or description in order to enforce a lien. It is this kind of in rem proceeding which state courts cannot entertain. But this jurisdictional act does leave 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.

Madruga, 346 U.S. at 560-61, 74 S.Ct. at 300-01 (citations omitted). Section 1333 thus provides concurrent jurisdiction in the state courts for cases in which the plaintiff invokes the "saving to suitors" clause.

The Judiciary Act of 1789, the predecessor of § 1333, granted federal district courts "`original exclusive cognizance of all civil cases of admiralty and maritime jurisdiction,'" but reserved to "`suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.'" 14 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3672 (2d ed. 1985) (quoting Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 76-77); see 28 U.S.C. § 1333 (originally enacted as Act of September 24, 1789, ch. 20, § 9, 1 Stat. 76-77, revised by the Act of June 25, 1948, ch. 646, 62 Stat. 931, amended May 24, 1949, ch. 139, § 79, 63 Stat. 101). The 1948 and 1949 amendments to the Judiciary Act of 1789 did not effect a substantive change in the scope of the law by narrowing state courts' jurisdiction. Madruga, 346 U.S. at 560 n. 12, 74 S.Ct. at 301 n. 12; see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 222, 106 S.Ct. 2485, 2494, 91 L.Ed.2d 174 (1986). The "saving to suitors" clause in § 1333 permits the plaintiff in an in personam action to seek common law remedies in state courts. See 1 Steven F. Friedell, Benedict on Admiralty § 123, at 8-10 (6th ed. 1993); see also Yangming Marine Transp. Corp., 682 F.Supp. at 371. It also embodies the sharing of jurisdiction between state and federal courts to hear general maritime claims and to provide relief under state law as long as the remedy does not alter substantive maritime law. Romero, 358 U.S. at 374, 79 S.Ct. at 481;5 see also Offshore Logistics, Inc. 477 U.S. at 222, 106 S.Ct. at 2494.

C. Removal under 28 U.S.C. § 1441

Actions brought in state court which meet the requirements of 28 U.S.C.A. § 1441 (West 1994) may be removed to federal court. Section 1441(a) provides that

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 defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

Section 1441(b) qualifies the first clause of section § 1441(a) in that it provides

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.

Prior to 1985, in personam admiralty actions could not be removed to federal court absent diversity or a federal question. Queen Victoria Corp. v. Insurance Specialists of Hawaii, Inc., 694 F.Supp. 1480, 1482 (D.Hawaii 1988). Admiralty jurisdiction alone did not present a federal question as admiralty cases do not arise under the Constitution, laws or treaties of the United States. McAllister Bros., Inc. v. Ocean Marine Indem. Co., 742 F.Supp. 70, 75 (S.D.N.Y.1989) (citing Romero, 358 U.S. at 363, 367-68, 79 S.Ct. at 475, 477-78); Queen Victoria Corp., 694 F.Supp. at 1482 (same). In rem actions could not be removed from state to federal court because the jurisdiction for these actions rested exclusively in the federal district court. See Estate of Morales v. New Orleans Gulf Harbor Servs., Inc., 703 F.Supp. 501, 502 (M.D.La.1989); Yangming Marine Transp. Corp., 682 F.Supp. at 372 (observing removal was "inappropriate because removal jurisdiction is derivative—the state court lacks subject matter jurisdiction over a matter exclusively within the federal maritime jurisdiction, and the federal court therefore cannot acquire any by removal."); 14 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3674. Congress eliminated this jurisdictional limitation of requiring the state court to have jurisdiction prior to removal. See Judicial Improvements Act...

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