Nesti v. Rose Barge Lines, Inc.
Decision Date | 31 March 1971 |
Docket Number | No. 70 C 2518.,70 C 2518. |
Citation | 326 F. Supp. 170 |
Court | U.S. District Court — Northern District of Illinois |
Parties | Ned J. NESTI, Plaintiff, v. ROSE BARGE LINES, INC., Defendant and Third-Party Plaintiff, v. ARCHER-DANIELS MIDLAND COMPANY, a corporation, Third-Party Defendant and Third-Party Plaintiff, v. JOLIET MARINE SUPPLY & REPAIR SERVICE, INC., a corporation, and Columbian Rope Company, a corporation, Third-Party Defendant. |
John J. Kennelly, Chicago, Ill., James D. Hurley, Jr., LaSalle, for plaintiff.
John W. Hough, Robert A. Creamer, Bradley, Eaton, Jackman & McGovern, Price, Cushman, Keck & Mahin, Kralovec, Sweeney, Marquard & Scoby, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for defendant.
This civil action was removed to this court from the Circuit Court of Cook County, Illinois, where it has been pending since 1966, by the third-party defendant Archer-Daniels Midland Company ("Midland"). Plaintiff, Nesti, has moved to remand this case to the state court. The original defendant and the other third-party defendants who were impleaded by Midland did not join the removal petition nor have they participated in consideration of this motion. After careful and diligent examination of the motion and memoranda in support thereof and in opposition thereto, the authorities cited therein and the court's own research, the court has reached the conclusion that plaintiff's motion must be granted.
Plaintiff is a longshoreman who suffered personal injuries in the course of his employment and complained in his state court case of the unseaworthiness of the vessel in question and of the maritime tort of negligence. It is Midland's contention that this court has exclusive jurisdiction over the subject matter of this cause due to its admiralty nature and 28 U.S.C. § 1333 which reads in pertinent part as follows:
The pertinent portion of the removal statute, 28 U.S.C. § 1441 reads:
While it was once argued that § 1333(1) constituted the express exception to § 1441 (a) and barred removal, this claim has been soundly disposed of in Crawford v. East Asiatic Co., 156 F. Supp. 571 (N.D.Calif.1957). Midland's claim that this court has exclusive jurisdiction is also no longer accepted as a correct statement of the law. In Chambers-Liberty Counties Nav. Dist. v. Parker Bros. & Co., 263 F.Supp. 602 (S.D. Tex.1967) the court held that with the exception of those cases which were inherently maritime such as an in rem proceeding, the federal courts enjoyed only concurrent jurisdiction with state courts under the "saving to suitors clause" of Sec. 1333(1). See also Kemp v. City of Los Angeles, 172 F.Supp. 66 (S.D.Calif.1959). This is due to the fact that a common law action, separate and apart from the admiralty action, exists and is saved to the suitor by this clause. Romero v. International Terminal Operating Co., 358 U.S. 354, 363, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).
For removal to be proper, the requirements of both subsections (a) and (b) of § 1441 must have been fulfilled. Crawford, supra. Under subsection (b) if the case does not arise under the Constitution, treaties or laws of the United States, then independent federal jurisdiction must exist. Crawford, supra, and Hill v. United Fruit Co., 149 F. Supp. 470 (S.D.Calif.1957). An admiralty or maritime action springs from the maritime law which developed prior to and independent of our Constitution and is, therefore, not a case "arising under the Constitution, treaties or laws of the United States." Romero, supra, 358 U.S. at 368, 79 S.Ct. at 468 and Scurlock v. American President Lines, 162 F. Supp. 78 (N.D.Calif.1958). Thus, under subsection (b) of § 1441, this action is not removable if one of the parties in interest properly joined and served as defendants is a citizen of Illinois. Midland has failed to carry its burden of establishing that such is not the case....
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