Cox v. Lippus
| Decision Date | 03 November 2021 |
| Docket Number | 3:21 CV 1332 |
| Parties | ZETTIE COX as administrator of the Estate of BRANDON STEGALL, decedent Plaintiff, v. SPENCER LIPPUS, et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
This case began with Zettie Cox (“Plaintiff”), as administrator of Brandon Stegall's (“Decedent”) estate, filing a Complaint in the Court of Common Pleas for Erie County. (Doc. 1-1). Shortly thereafter, Spencer Lippus and Steven Lippus (“Defendants”) removed the case to this Court. See Doc. 1. The next day, Plaintiff moved to remand the case, and also sought attorneys' fees from Defendants for removing the case without an objectively reasonable basis for doing so. (Docs. 4, 5). Defendants opposed the motion. (Doc. 8), and Plaintiff replied (Doc. 9). For the following reasons, the Court agrees with Plaintiff, orders the case remanded, and orders Defendant to pay just costs and any actual expenses incurred by Plaintiff.
Plaintiff brings a wrongful death claim and a survival claim of conscious pain and suffering against Defendants. See generally Doc. 1-1. Steven Lippus owns a boat; his son Spencer, had unlimited access to the boat. Id. at ¶12. Decedent was on that boat with Spencer Lippus, who was piloting the boat in Sandusky Bay, when Decedent fell from the boat and drowned. Id. at ¶¶14-22.
Plaintiff as administrator of Decedent's estate, brought claims against Defendants. Id. at ¶4. All parties in this case are Ohio residents. Id. at ¶¶5-7.
Defendants removed the case to this Court. See Doc. 1. They assert admiralty or maritime jurisdiction give this Court original jurisdiction over the claim, thereby making the case removable. Id. at ¶5. They do not assert any other basis for removal jurisdiction.
“The party seeking removal bears the burden of establishing its right thereto.” Her Majesty The Queen In Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97-98 (1921)). Removal jurisdiction derives from the allegations in Plaintiff's “well-pleaded complaint”. Eastman v. Marine Mech. Corp., 438 F.3d 544, 550 (6th Cir. 2006). “[B]ecause they implicate federalism concerns, removal statutes are to be narrowly construed.” Long v Bando Mfg. of America, Inc., 201 F.3d 754, 757 (6th Cir. 2000).
Plaintiff argues, while her claims are within the Court's original jurisdiction, that alone does not permit Defendants to remove the case to this Court. (Doc. 5, at 4-8). She contends this is so abundantly clear as to make Defendants' attempt to remove the case not objectively reasonable, entitling her to attorneys' fees. Id. at 8-9.
Defendants rely upon relatively recent amendments to the removal statute to argue this case is indeed removable, even as past courts interpreting prior versions of the removal statute held otherwise. (Doc. 8, at 3-7).
For the following reasons, the Court holds this case is not removable and finds the attempt objectively unreasonable, entitling Plaintiff to her attorneys' fees and other costs.
Plaintiff's claim falls within this Court's maritime jurisdiction. Federal courts have original jurisdiction over “[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). A party invoking federal admiralty jurisdiction must “satisfy conditions both of location and of connection with maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995). Location is easily satisfied in the present case, as the tort alleged by Plaintiff occurred on navigable water. Id. (citing 46 U.S.C. § 30101). The connection condition itself has two prongs: the Court must consider whether the incident has “a potentially disruptive impact on maritime commerce”, and whether “the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.” Id. at 534 (citing Sisson v Ruby, 497 U.S. 358, 364-65 (1990)). Defendant persuasively argues these elements are satisfied (Doc. 8, at 1-3), and Plaintiff readily agrees her claims fall within the Court's original jurisdiction (Doc. 9, at 1). Thus, the Court will assume, arguendo, Plaintiffs claims do fall within the Court's maritime jurisdiction.
But falling within federal maritime jurisdiction does not necessarily make a case removable. “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.” 28 U.S.C. § 1441(a) (emphasis added). Here, the same statute giving the Court jurisdiction over maritime claims saves to suitors “all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1). The so-called “saving to suitors” clause has generally barred removal of maritime actions brought in state courts. In re Chimenti, 79 F.3d 534, 538 (6th Cir. 1996) (“In short, it is settled that actions brought in state court under the ‘saving to suitors' clause are not generally removable.”). If this case proceeded in this Court, to take one example, Plaintiff would lose her right to a jury trial. Fed.R.Civ.P. 38(e). And case law makes clear that this remedy is saved by § 1333. Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 454-55 (2001) (“Trial by jury is an obvious, but not exclusive, example of the remedies available to suitors.”).
Defendants cite two cases, neither of which are binding, for the proposition that an amendment to the removal statute supersedes much of the case law cited by Plaintiff, rendering maritime cases removable much like most original jurisdiction cases. (Doc. 8, at 5-7 (). These cases held an amendment to the removal statute brought admiralty cases within the removal jurisdiction of this Court. See Lu Junhong, 792 F.3d at 817-818. Prior to 2011, the relevant section of the removal statute read:
28 U.S.C. § 1441(a)-(b) (prior version).
The current version eliminates the distinction between a “claim or right arising under the Constitution, treaties or laws of the United States” and “[a]ny other such action”:
(a) Generally.--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.
28 U.S.C. § 1441(a).
The Supreme Court previously held the prior version of 28 U.S.C. § 1441(b) would permit removal of maritime actions, except that it considered them “other such action[s]”, leaving them only removable under diversity jurisdiction. Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 372 (1959). Because that distinction is not present in the new statute, Defendants argue, they are freely removable now under federal question jurisdiction. See Doc. 8, at 5-7.
But these cases lack legal reasoning applicable to this case because they explicitly did not address the argument presented here - that the “saving to suitors” clause blocks removal. Judge Gray H. Miller, who wrote the Ryan opinion cited by Defendants, noted in a subsequent opinion:
Sanders v. Cambrian Consultants (CC) Am., Inc., 132 F.Supp.3d 853, 858 (S.D. Tex. 2015) (internal quotation omitted). Similarly, the Seventh Circuit noted: Lu Junhong, 792 F.3d at 818.
Here the Court has such an argument before it. (Doc. 5, at 5-6). And the Court finds that argument persuasive, similar to other courts...
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