Iwag v. Geisel Compania Maritima, SA

• Decision Date: 29 March 1995
• Docket Number: Civ. A. No. H-94-0541.
• Parties: Robert P. IWAG, et al., Plaintiffs, v. GEISEL COMPANIA MARITIMA, S.A., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

882 F. Supp. 597

Robert P. IWAG, et al., Plaintiffs, v. GEISEL COMPANIA MARITIMA, S.A., et al., Defendants.

Civ. A. No. H-94-0541.

United States District Court, S.D. Texas, Houston Division.

March 29, 1995.

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William Raymond Neal, Houston, TX, for plaintiffs.

Mark Cohen, Royston, Rayzor, Vickery & Williams, Houston, TX, for defendants.

ORDER

GILMORE, District Judge.

Pending before the Court are numerous motions filed by both parties, including Plaintiffs' Motion to Remand and Defendants' Motion for Early Consideration of Defendants' Motion to Dismiss Forum Non Conveniens and Motion to Dismiss for Want of Personal Jurisdiction. For the reasons set forth below, the Court concludes that it lacks removal jurisdiction over the subject matter of this action and therefore orders that it be remanded to state court.

I.

Robert Iwag and seven other seamen bring this action alleging inter alia that they suffered injuries following exposure to a hazardous cargo of liquid benzene located on board the vessel M/T Panam Querida ("the vessel"), in Montreal, Canada on December 14, 1993. The following persons and entities are named as defendants in this action: Eisenberg Maritime, S.A., a Panamanian corporation based in Japan and owner of the Panamanian-flagged vessel; Geisel Compania Maritima, S.A., the Panamanian manning agent of the vessel; and Kim Su-Un, the captain of the vessel and a Korean citizen. Following the alleged exposure, the plaintiffs continued to work aboard the vessel as it sailed from Canada to New York and Philadelphia, where the cargo was unloaded in January 1994. The vessel then sailed to Houston, where the plaintiffs left the vessel and demanded repatriation to the Republic of the Philippines.

Plaintiffs filed this action on January 26, 1994, in Texas state court, seeking relief under the Jones Act, 46 U.S.C.App. §§ 688 et seq., and the General Maritime Law Doctrines of Unseaworthiness and Maintenance and Cure pursuant to the Saving to Suitors Clause, 28 U.S.C. § 1333. The petition also includes numerous state law claims. Plaintiffs seek compensatory damages, including the remainder of contract wages, pain and suffering, as well as punitive damages.

Defendants filed a notice of removal, claiming that the plaintiffs' petition stated a civil claim under the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-68 (1982 & Supp. IV 1986), and thereby presented grounds for federal jurisdiction. Defendants also filed a Supplementary Notice of Removal six months later. Defendants have also filed motions to dismiss for forum non conveniens and for want of personal jurisdiction, which they request that this Court decide before ruling on the motion to remand.¹

II.

The Court first addresses the timeliness of the Supplementary Notice of Removal. Defendants were served on or about January 26, 1994. The original removal notice was filed on February 21, 1994. The Supplementary Notice of Removal was filed on October 5, 1994. Plaintiffs have not objected to the filing of the second notice.

A petition for removal of a civil action must be filed within thirty days after the defendant has received a copy of the initial pleading setting forth the claim for relief upon which the action is based. 28 U.S.C. § 1446(b). A defendant may freely amend the notice of removal within the thirty day period dictated by § 1446(b). Holt v. Lockheed Support Systems, Inc., 835 F.Supp. 325, 327 (W.D.La.1993); Moody v. Commercial Insurance Co., 753 F.Supp. 198, 201 (N.D.Tex.1990). The power to amend pleadings to show jurisdiction is controlled by 28 U.S.C. § 1653. Section 1653 does not allow the removing party to assert additional grounds of jurisdiction not included in the original pleading. See Stafford v. Mobil Oil Corp., 945 F.2d 803 (5th Cir.1991); Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (citing Aetna Casualty and Sur. Co. v. Hillman, 796 F.2d 770, 775-76 (5th Cir. 1986)). See also 14A Wright, Miller & Cooper, Federal Practice and Procedure § 3733 at 537-38 (2d ed. 1985) ("The petition may be amended only to set out more specifically grounds for removal that already have been stated, albeit imperfectly, in the original petition; new grounds may not be added and missing allegations may not be furnished." (footnote omitted)). The court will disallow amendments to notices of removal that present grounds for removal not included in the original notice.

In the Supplementary Notice of Removal, the defendants suggest that the plaintiffs' petition includes a separate and independent penalty wage claim under 46 U.S.C. § 10313. The original notice of removal contains no such reference. The Court finds that the second notice of removal does not fall within the scope of amendments allowed under § 1653. The Supplementary Notice of Removal is untimely and, accordingly, will not be considered.

III.

Defendants request that the Court decide the issues presented by the motions to dismiss prior to considering the motion to remand filed by the plaintiffs, citing concerns of judicial economy. Defendants rely upon Villar v. Crowley Maritime Corp., 990 F.2d 1489 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 690, 126 L.Ed.2d 658 (1994). Villar concerned a wrongful death action originally brought in Texas state court by the family of a Philippine crew member who drowned while employed by a Saudi Arabian corporation on a Panamanian vessel. The Fifth Circuit upheld the district court's decision to rule on the motion to dismiss numerous foreign defendants for lack of personal jurisdiction before ruling on the motion to remand the suit to Texas state court. Id. at 1494.

The defendants in this case, relying on the holding in Villar, argue that early consideration is mandated by concerns of judicial economy and rely upon the holding in Villar. In affirming the actions of the district court in Villar, the Fifth Circuit stated:

Judicial economy favors this result because if the district court remands the proceeding, then the state court will probably have to decide the same motion to dismiss for lack of personal jurisdiction that the district court avoided. Furthermore, the district court must necessarily address the issue of personal jurisdiction regardless of which motion it addresses first. The appellants' argument that the standard for determining personal jurisdiction will vary depending on which motion the district court decides first does not change the fact that the district court will still have to address the issue of in personam jurisdiction.

Id. As in Villar, this case presents a motion to dismiss for lack of personal jurisdiction which would remain for the state court to decide were this Court to determine that remand is proper. The issue of personal jurisdiction must be decided regardless of the disposition of the motion to remand. The Court interprets the holding in Villar as allowing the district court to rule on either a motion to remand or a motion to dismiss for want of personal jurisdiction first according to its preference and concerns of judicial economy.

Villar is nevertheless distinguishable from the case at bar in that the cases cited in and consistent with its holding involve federal diversity jurisdiction. See, e.g., Jones v. Petty-Ray Geophysical Geosource, Inc., 954 F.2d 1061 (5th Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 193, 121 L.Ed.2d 136 (1992); Wilson v. Belin, 20 F.3d 644 (5th Cir.), cert. denied, ___ U.S. ___, 115 S.Ct. 322, 130 L.Ed.2d 282 (1994). By contrast, removal jurisdiction in this case is premised on the alleged inclusion of federal causes of action in the plaintiffs' petition.² The difference in the bases for federal subject matter jurisdiction is significant in light of the court's reasoning in Villar.

Although Villar allows a district court the discretion to grant early consideration of the motion to dismiss for want of personal jurisdiction, the Court declines to do so in this case because the concerns of judicial economy are less compelling. Unlike this case, Villar was removed to federal court on allegations of fraudulent joinder. The disposition of a motion asserting fraudulent joinder has direct ramifications on federal subject matter jurisdiction and the issue of remand.³ The defendants in this case cite concerns of delay in support of the motion for early consideration. The Court finds that the facts in this case differ significantly from those in Villar do not warrant early consideration in this case.

In addition, early consideration of the motion to dismiss for forum non conveniens is not warranted. Defendants note that the Southern District of Texas has extended the reasoning in Villar to allow a district court sitting in diversity jurisdiction to decide a motion to dismiss for forum non conveniens before a motion to remand. Hopper v. Ford Motor Co., Ltd., 837 F.Supp. 840 (S.D.Tex. 1993). As in Villar, the motion to remand in Hopper attacked federal jurisdiction on the assertion that diversity jurisdiction was lacking. Federal jurisdiction in this case is premised upon the alleged assertion of claims arising under federal statutes. The holdings in both Hopper and Villar are distinguishable from this case and the motion for early consideration is denied.

IV.

Plaintiffs maintain that this case was improperly removed and request that it be remanded pursuant to 28 U.S.C. § 1445. The defendants claim that the plaintiffs asserted removable federal causes of action. For the reasons set forth below, the Court disagrees with the defendants and concludes that the action should be remanded to state court.

A.

Plaintiffs seek relief under the Jones Act, the general maritime law and Texas state law. In Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), the Supreme Court ruled that maritime actions arising under the general...