Ficarra v. Germain

• Decision Date: 09 February 2015
• Docket Number: Nos. 5:14–CV–00869 BSK/ATB,5:14–CV–01013 BSK/ATB.,s. 5:14–CV–00869 BSK/ATB
• Citation: 91 F.Supp.3d 309
• Parties: Matthew F. FICARRA, Plaintiff, v. Bruce K. GERMAIN, Defendant. In the Matter of the Complaint, v. Bruce Germain, as owner of the motor vessel Game Day, a 1990, 38 foot recreational vessel, for Exoneration from or Limitation of Liability, Petitioner.
• Court: U.S. District Court — Northern District of New York

91 F.Supp.3d 309

Matthew F. FICARRA, Plaintiff

v.Bruce K. GERMAIN, Defendant.

In the Matter of the Complaint

v.Bruce Germain, as owner of the motor vessel Game Day, a 1990, 38 foot recreational vessel, for Exoneration from or Limitation of Liability, Petitioner.

Nos. 5:14–CV–00869 BSK/ATB

5:14–CV–01013 BSK/ATB.

United States District Court, N.D. New York.

Signed Feb. 9, 2015.

Anthony R. Martoccia, McMahon, Kublick Law Firm, Syracuse, NY, for Plaintiff Matthew F. Ficarra.

James E. Mercante, Richard Gonzalez, Rubin, Fiorella Law Firm, New York, NY, for Defendant/Petitioner Bruce K. Germain.

MEMORANDUM–DECISION AND ORDER

BRENDA K. SANNES, District Judge.

I. INTRODUCTION

Matthew F. Ficarra (“Ficarra”) commenced an action on June 16, 2014 in New York State Supreme Court, Onondaga County, against Bruce K. Germain (“Germain”) for negligence under New York state common law in connection with an accident on Oneida Lake. (Ficarra v. Germain, No. 5:14–cv–00869 (“Ficarra”), Dkt. No. 1, Exh. A, pp. 5–9). On July 17, 2014, Germain filed a Notice of Removal, arguing that the case falls under admiralty jurisdiction, over which federal courts have original, exclusive jurisdiction pursuant to 28 U.S.C. § 1333(1). (Ficarra Dkt. No. 1).

On August 14, 2014, Germain filed a complaint (the “petition”) in the Northern District of New York for exoneration or limitation of liability pursuant to 46 U.S.C. §§ 30501 –30511, seeking to limit his losses for the accident to the value of the vessel involved. (In the Matter of the Complaint of Germain, No. 5:14–cv–1013 (“Germain”) Dkt. No. 1). Germain's petition was assigned to Senior District Court Judge Lawrence E. Kahn as a related case to Ficarra's case. (Germain Dkt. No. 6).

On August 18, 2014, Ficarra moved to remand his case back to state court, arguing that the accident which gave rise to his lawsuit does not fall within admiralty jurisdiction. See Memorandum of Law In Support of Motion Seeking Remand Back To State Court, Ficarra Dkt. No. 7–2 (“Ficarra Br.”). On August 20, 2014, Judge Kahn issued an order in Germain's case directing Germain to file a memorandum explaining why his petition should not be dismissed for lack of subject matter jurisdiction.

(Germain Dkt. No. 7). Germain has filed a memorandum in both actions, opposing remand, and now arguing that diversity jurisdiction exists pursuant to 28 U.S.C. § 1332(a)(1), in addition to admiralty jurisdiction. See Memorandum of Law In Opposition to Plaintiff's Motion Seeking to Remand Back to State Court, Ficarra Dkt. No. 11, Germain Dkt. No. 10 (“Germain Br.”). For the reasons below, the Court does not have subject matter jurisdiction over Ficarra's case or the related petition by Germain.¹

II. FACTS²

On July 30, 2011, Germain took Ficarra and three other guests on Germain's 38–foot motor boat to Three Mile Bay on Oneida Lake. (Ficarra Dkt. No. 1, Exh. A, ¶ 4; Germain Aff., ¶¶ 1–2.) Oneida Lake is connected to the New York State Erie Canal System. (Germain Br., Exh. D, Ficarra Dkt. No. 11–4). Germain and his guests left from Brewerton, New York and drove through a federal ship channel to Three Mile Bay. (Germain Aff., ¶¶ 2, 5).

According to Germain, Three Mile Bay is a “popular anchoring spot for vessels,” which is “heavily patrolled by marine police vessels” and is located “less than a nautical mile from the charted federal ship channel.” (Germain Aff., ¶¶ 2, 4). According to Ficarra, Three Mile Bay is “used primarily for recreational swimming.” (Ficarra Aff., ¶ 4).³ A Nautical Chart of Oneida Lake shows the waters of Three Mile Bay have a depth ranging from three to seven feet. (Germain Br., Exh. D, Ficarra Dkt. No. 11–4).

Germain has provided the following account of the incident. Germain and his guests arrived at Three Mile Bay at approximately 12:30 p.m., and Germain anchored the vessel in three to six feet of water. (Germain Aff., ¶ 6). The bay was crowded with other boats. (Id. ). At approximately 6:00 p.m., they began to prepare to get the vessel underway for the return trip to Brewerton, and passengers started to return to the vessel. (Id., ¶ 7). Ficarra returned to the vessel and, after first diving off of the port side into the water, he went to the rear boarding platform, and then he suddenly did a “back flip” into the water. (Id., ¶ 9). Germain went into the water with others to help Ficarra until local marine rescue and police boats arrived. (Id., ¶¶ 1011). A rescue boat took Ficarra back to Brewerton, via the same federal ship channel used by Germain on the way to Three Mile Bay. (Id., ¶¶ 2, 11).

Ficarra has provided a consistent account of the accident. Ficarra states that while the boat was anchored in shallow water, approximately 50–75 yards from the shoreline, he dove off Germain's boat, struck his head on the lake bottom, and was severely injured. (Ficarra Aff., ¶¶ 2, 3). Ficarra suffered “serious spinal cord injury,” with “paralysis and quadraplegia from the nipple level downward.” (Ficarra Dkt. No. 1, Exh. A, ¶ 7). The complaint alleges, inter alia, that Germain was negligent in failing to adequately warn Ficarra that the shallow water where Germain had anchored his boat was unsafe for diving. (Id., ¶ 9).

III. DISCUSSION

A. Legal Standard

“[A]ny 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). After a case is removed to district court, “[if] at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”28 U.S.C. § 1447(c). When a plaintiff files a motion to remand challenging the removal of an action from state court, “the defendant bears the burden of demonstrating the propriety of removal.” Cal. Pub. Emples. Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 100 (2d Cir.2004) (citing Grimo v. Blue Cross/Blue Shield of Vermont, 34 F.3d 148, 151 (2d Cir.1994) ). “The party asserting subject matter jurisdiction ‘has the burden of proving by a preponderance of the evidence that it exists.’ ” Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014) (citation omitted).

B. Removal Based On Admiralty Jurisdiction

The federal judicial power extends “to all Cases of admiralty and maritime Jurisdiction.” U.S. Const. art. III, § 2, cl. 1 ; see 28 U.S.C. § 1333(1) (giving federal district courts original jurisdiction over “[a]ny civil case of admiralty or maritime jurisdiction”).

In order to invoke admiralty jurisdiction over plaintiff Ficarra's tort claim, defendant Germain bears the burden of satisfying both the (1) “location” test; and (2) “connection” test. Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995) ; Tandon, 752 F.3d 239, 247 ; LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir.1999). Here, the parties agree the location test has been met since the alleged tort occurred on a navigable body of water, Oneida Lake. (Ficarra Br., p. 6; Germain Br., p. 8). The question before the Court is whether the connection test has been satisfied. This connection test consists of two parts:

A court, first, must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce. Second, a court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity.

Grubart, 513 U.S. at 534, 115 S.Ct. 1043 (internal citations and quotations omitted); Tandon, 752 F.3d at 248.

For the first part of the test, the Court must describe the “general features” of the incident to assess whether this type of incident has the potential to disrupt maritime commerce. This description should be “general enough to capture the possible effects of similar incidents on maritime commerce, but specific enough to exclude irrelevant cases.” Tandon, 752 F.3d at 249. The description should focus on “the direct and immediate cause of the injuries suffered, rather than the alleged negligence underlying the suit.” Id. (describing incident as “physical altercation among recreational visitors on and around a permanent dock surrounded by navigable water”); see also Grubart, 513 U.S. at 538–39, 115 S.Ct. 1043 (“damage by a vessel in navigable water to an underwater structure”); Sisson v. Ruby, 497 U.S. 358, 362–363, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990) (“fire on a vessel docked at a marina on navigable waters”). In describing the incident, both “the general location of the incident and the roles of the persons involved ... can be relevant to the potential effect on maritime commerce.” Tandon, 752 F.3d at 249.

Ficarra proposes the following general description of the incident: “an injury to person as a result of recreational swimming and diving in shallow water of a bay of a lake used primarily for recreational swimming” (Ficarra Br., p. 7); whereas Germain suggests: “a passenger aboard a vessel who enters navigable waters to assist the vessel in preparing to get underway and is thereby injured.” (Germain Br., p. 10). The Court finds that the incident is best described as an injury to a recreational passenger who jumped from a recreational vessel in a shallow recreational bay of navigable waters. This description focuses on the “direct and immediate cause of the injuries” suffered by Ficarra and takes into account the general location of the incident and the roles of the persons involved.

The Court must then determine whether this type of incident is “likely to disrupt” maritime commerce, regardless of whether the case under consideration had any such effect. Grubart, 513 U.S. at 538, 115 S.Ct. 1043. In other words, the question is “whether the incident could be seen within a class of incidents that...