Eriksen v. Moore Mill & Lumber Co., Civ. No. 9248.

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: SOLOMON
• Citation: 157 F. Supp. 888
• Parties: Rosella Grace ERIKSEN and Hilda Marie Eriksen, Libelants, v. MOORE MILL & LUMBER CO., a corporation, Respondent.
• Decision Date: 13 January 1958
• Docket Number: Civ. No. 9248.

157 F. Supp. 888

Rosella Grace ERIKSEN and Hilda Marie Eriksen, Libelants,
v.
MOORE MILL & LUMBER CO., a corporation, Respondent.

Civ. No. 9248.

United States District Court D. Oregon.

January 13, 1958.

157 F. Supp. 889

Peterson, Pozzi & Lent, Portland, Or., for libelants.

Mautz, Souther, Spaulding, Denecke & Kinsey, Portland, Or., for respondent.

SOLOMON, District Judge.

Plaintiffs, the widow and minor daughter of a longshoreman who was killed while loading lumber on a barge at Bandon, Oregon, filed an action for damages for his death against the owner of the lumber. The action was filed under the provisions of the Oregon Employers' Liability Act, ORS 654.305 et seq. Plaintiffs and defendant are all citizens of Oregon.

The defendant removed this case to the admiralty side of this court, claiming that the case is removable under the provisions of 28 U.S.C. § 1441(a) as an admiralty case in which the federal district courts have original jurisdiction by virtue of 28 U.S.C. § 1333. It relies primarily on Davis v. Matson Navigation Co., D.C.Cal.1956, 143 F.Supp. 537.

Plaintiffs have moved to remand. They contend that the case is not removable under § 1441(a) because the "saving-to-suitors" clause of § 1333 is an express congressional prohibition against removal. For this contention, they rely primarily on Hill v. United Fruit Co., D.C.Cal.1957, 149 F.Supp. 470. They also contend that the case fails to meet the tests of § 1441(b) in that it does not arise under the Constitution, treaties or laws of the United States and has a defendant who is a citizen of Oregon.

28 U.S.C. § 1441 provides, in pertinent part:

"(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 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.

"(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."

Some courts have held that a case is removable if it qualifies for original federal jurisdiction. These courts rely on § 1441(a) and usually do not consider the effect of § 1441(b). E. g. Davis v. Matson Navigation Co., D.C.Cal.1956, 143 F.Supp. 537; Crispin v. Lykes Bros. Steamship Co., D.C.Tex.1955, 134 F. Supp. 704; Nyberg v. Montgomery Ward & Co., D.C.Mich.1954, 123 F.Supp. 599.

Other courts have held that §§ 1441(a) and 1441(b) must be read together, and that a case must qualify for removal under both paragraphs or be remanded. Irvin Jacobs & Co. v. Levin, D.C.Ohio 1949, 86 F.Supp. 850, affirmed on opinion below 6 Cir., 1950, 180 F.2d 356; Monroe v. United Carbon Co., 5 Cir., 1952, 196 F.2d 455; Chevrier v. Metropolitan Opera Ass'n, D.C.N.Y.1953, 113 F.Supp. 109.

I agree with the latter cases. The revisor's notes accompanying § 1441 state

157 F. Supp. 890

that the "section consolidates removal provisions of sections 71...