Dao v. Knightsbridge Intern. Reinsurance Corp.

• Decision Date: 05 August 1998
• Docket Number: No. CIV.A. 97-1396.,CIV.A. 97-1396.
• Parties: Thao DAO, Plaintiff, v. KNIGHTSBRIDGE INTERNATIONAL REINSURANCE CORPORATION, Shaw International, Eton Management Corporation, Graham Haywood, Financial Solutions, Inc., Jim Haynie, The Marine Surveyors, Inc., and Kevin R. Grumt, Defendants.
• Court: U.S. District Court — District of New Jersey

15 F.Supp.2d 567

Thao DAO, Plaintiff, v. KNIGHTSBRIDGE INTERNATIONAL REINSURANCE CORPORATION, Shaw International, Eton Management Corporation, Graham Haywood, Financial Solutions, Inc., Jim Haynie, The Marine Surveyors, Inc., and Kevin R. Grumt, Defendants.

No. CIV.A. 97-1396.

United States District Court, D. New Jersey.

August 5, 1998.

Thomas Rossi, Rossi, Barry, Corrado, Grassi & Radell, P.C., Wildwood, NJ, for Plaintiff, Thao Dao.

Scott A. Lazar, James E. Mercante, Kroll & Tract, L.L.P., Newark, NJ, for Defendants, Knightsbridge International Reinsurance Corporation, Shaw International, Eton Management Corporation, and Graham Haywood.

Gerard H. Hanson, Hill Wallack, Princeton, NJ, for Defendant, The Marine Surveyors, Inc.

OPINION

ORLOFSKY, District Judge.

This admiralty case presents several thorny procedural and jurisdictional questions which are far more complicated than the parties originally realized. The Court is now required to sort through the complexities of the law governing removal of admiralty cases, and the jurisdictional consequences of a waiver of improper removal in order to decide the Plaintiff's motion to transfer this action to the Eastern District of Virginia or, in the alternative, for the entry of final judgment as to those Defendants against whom the Amended Complaint has been dismissed for lack of personal jurisdiction, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, I conclude that the Court may exercise admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over most of the claims in this action and supplemental jurisdiction over the remaining claims, notwithstanding any procedural defects in the removal of this action from state to federal court.

With respect to the motion to transfer, the Court will, pursuant to Rule 21, sever the Counts of the Amended Complaint alleging causes of action against Defendants, Knightsbridge International Reinsurance Corporation, Shaw International, Eton Management Corporation, Graham Haywood, Financial Solutions, Inc., and Jim Haynie, i.e., Counts One, Two, Three, and Six, and transfer those Counts as a separate action to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). I shall retain jurisdiction over Counts Four and Five which allege causes of action against Defendants, Marine Surveyors, Inc. and Kevin R. Grumt. Finally, the motion for the entry of final judgment pursuant to Rule 54(b) will be dismissed as moot.

I. Facts and Procedural Background

Sometime prior to November 7, 1995, Plaintiff, Thao Dao ("Dao"), arranged for adequate insurance coverage for his steel fishing vessel, the Lady Luck, which at that point was being refurbished. See Amended Complaint ¶¶ 9-10 (dated Apr. 21, 1997) (hereinafter Amended Compl.). Plaintiff arranged this insurance through Defendants, Financial Solutions ("Financial Solutions") and Jim Haynie ("Haynie"). Id. at ¶¶ 8-9. Dao was informed by Financial Solutions and Haynie that they had arranged for adequate hull and other insurance for the Lady Luck. Id. Apparently, Financial Solutions and Haynie arranged for Defendant, Knightsbridge International Reinsurance Corporation ("Knightsbridge"), to issue Policy No. OCMT16.00175 (the "Policy") for the Lady Luck. Id. at ¶¶ 3, 12, 17. The Policy covered the period from November 7, 1995, to November 7, 1996. Id. at ¶ 3.

At the instruction of Financial Solutions and Haynie, Plaintiff arranged for a survey of the Lady Luck to be conducted by Defendant, the Marine Surveyors, Inc. ("Marine Surveyors") before engaging in fishing operations. Id. at ¶¶ 10-12. The survey was conducted by an agent and employee of Marine Surveyors, Defendant, Kevin R. Grumt ("Grumt"), in approximately May, 1996. Id. at ¶ 22.

On or about May 13, 1996, Grumt advised Haynie that the vessel's condition was consistent with industry standards, but never produced a final copy of the survey to Haynie or Financial Solutions, despite his indication that he would provide such a written report. Id. at ¶¶ 22-24. On or about May 14, 1996, Haynie advised Dao that, inter alia, Haynie and/or Financial Solutions had received a notice that the required survey had been completed. Consequently, Haynie advised Dao that the Lady Luck could now be used to conduct fishing operations. Id. at ¶ 12. Sometime after May 14, 1996, the ship began to be employed in those operations. Id.

On or about August 11, 1996, the Lady Luck sank and was destroyed approximately seventy miles off the coast of New Jersey. Id. at ¶ 4. The claimed value of the vessel is $175,000. Id. Although Plaintiff submitted a proof of loss for the full value of the vessel, id. at ¶ 5, no part of the loss has been paid by Knightsbridge or Defendants, Shaw International ("Shaw"), Eton Management Corporation ("Eton"), and Graham Haywood ("Haywood"), allegedly managers, subsidiaries, successors in interest, or the alter egos of Knightsbridge. See id. at ¶¶ 2, 30-31. But see Affidavit of Nam Ngoc Huynh ¶ 5 (dated Sept. 24, 1997) (hereinafter Huynh Aff.) (averring that Shaw and Haywood are underwriters of the insurance policy issued by Knightsbridge).

On or about February 5, 1997, Dao filed a Complaint in the Superior Court of New Jersey, Law Division, Cape May County, alleging five causes of action against Defendants. See Dao v. Knightsbridge Int'l Reins. Corp., et al., Complaint, Docket No. CPM-L-71-97 (dated Feb. 3, 1997) (hereinafter Compl.). In particular, Dao alleged a cause of action against Knightsbridge, Shaw, Eton, and Haywood for breach of a marine insurance contract. See Compl. at ¶¶ 2-3. Second, Dao alleged a cause of action against Financial Solutions and Haynie for breach of a contract to procure marine insurance for the Lady Luck. Id. at ¶¶ 17-18. Third, Dao alleged a cause of action against Financial Solutions and Haynie for negligence in failing to procure adequate marine insurance for the Lady Luck. Id. at ¶¶ 14-15. Fourth, Dao alleged a cause of action against Marine Surveyors and Grumt for breach of a contract to survey the Lady Luck and report the results of that survey. Id. at ¶¶ 23-25. Finally, Dao alleged a cause of action against Marine Surveyors and Grumt for negligence in failing to properly report the results of their survey of the Lady Luck. See id. at ¶¶ 27. In the initial Complaint, Dao demanded a jury trial. See id. at p. 9.

On March 18, 1997, pursuant to 28 U.S.C. § 1446(a), Knightsbridge, Shaw, Eton, and Haywood filed a Notice of Removal in this Court alleging that this Court could exercise jurisdiction over this action pursuant to 28 U.S.C. § 1333(1), which provides for original, exclusive jurisdiction "of any 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. § 1331(1); see Notice of Removal ¶¶ 4-5 (dated March 18, 1997). The Notice of Removal explained why Financial Solutions, Haynie, Marine Surveyors, and Grumt had not joined in the motion, noting that "no other party defendant [had] been served with the ... Complaint." See Notice of Removal ¶ 10 (dated Mar. 18, 1997); see generally Balazik v. County of Dauphin, 44 F.3d 209 (3d Cir.1995) (discussing need for unanimity among removing defendants); 16 James Wm. Moore, et al., Moore's Federal Practice § 107.11[c-d] at 107-31 to 107-34 (3d ed.1998). No party opposed removal.¹

On April 22, 1997, Dao filed an Amended Complaint and, as he did in his Complaint, demanded a jury trial "as to all issues in [this] matter." Amended Compl. at p. 9. The Amended Complaint essentially realleges the five causes of action originally alleged in the Complaint, except that it adds a cause of action against Knightsbridge, Shaw, Eton, and Haywood for breach of the marine insurance contract. See id. at ¶¶ 30-31. This cause of action is to a large extent duplicative of the first cause of action. Compare id. at ¶¶ 3-6 with id. at ¶¶ 30-31. On May 19, 1997, Marine Surveyors answered the Amended Complaint, and asserted cross-claims against all co-Defendants for indemnity and contribution. See Answer of Marine Surveyors, Inc. 5 (dated May 19, 1997). Marine Surveyors demanded a jury trial "as to all issues." Id.

On the motion of Knightsbridge, Shaw, Eton, and Haywood, the Court dismissed the Amended Complaint as against Knightsbridge, Shaw, Eton, and Haywood for lack of personal jurisdiction over those Defendants. See Dao v. Knightsbridge Int'l Reins. Co., et al., Civil Action No. 97-1396, Opinion at 2, 12 (dated July 3, 1997) (hereinafter 7/3/97 Opinion); see generally Silva v. City of Madison, 69 F.3d 1368, 1376 (7th Cir.1995) (holding that filing of removal petition does not constitute waiver of objection to personal jurisdiction), cert. denied, 517 U.S. 1121, 116 S.Ct. 1354, 134 L.Ed.2d 522 (1996). The Court also denied Dao's cross motion to transfer the action "to some other District Court which may be found to be the appropriate Court for locating" the action. 7/3/97 Opinion at 12 n. 2. Dao has now moved to transfer this action to the Eastern District of Virginia, or, in the alternative, for the entry of final judgment as to the Defendants against whom the Amended Complaint had been dismissed, pursuant to Rule 54(b) of the Federal Rules of Civil Procedure.

After the motion was initially filed, on January 6, 1998, I requested in a letter that the parties submit additional briefs on various issues of removal, jurisdiction, and transfer. See Letter (dated Jan. 6, 1998). The letter was extremely detailed in the questions to which the Court wanted answers. In order to facilitate and focus the legal research of counsel, the letter cited numerous cases and several treatises.² I turn to the removal and jurisdiction issues raised by my letter, before resolving the motion to transfer this case to the Eastern District of Virginia.

II. Discussion

A. Removal and Waiver of Improper Removal

In my letter to the parties, I asked...