Pierce v. Parker Towing Co.
Decision Date | 09 June 2014 |
Docket Number | Civil Action No. 14–00073–KD–N. |
Citation | 25 F.Supp.3d 1372 |
Parties | Frankie PIERCE, et al., Plaintiffs, v. PARKER TOWING COMPANY, INC., et al., Defendants. |
Court | U.S. District Court — Southern District of Alabama |
Joseph C. McCorquodale, III, Jackson, AL, for Plaintiffs.
Patrick J. Ward, Norman Matt Stockman, Hand Arendall, L.L.C., Mobile, AL, for Defendants.
This case was filed in the Circuit Court of Choctaw County, Alabama, on January 17, 2014, and removed to this Court by Defendant Parker Towing Company, Inc. (“Parker”), on February 19, 2014. (See generally Doc. 1.) On March 14, 2014, Plaintiffs timely moved to remand. See (Doc. 8); 28 U.S.C. § 1447(c). United States Magistrate Judge Katherine Nelson has entered a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.2 (Doc. 23), which would remand the case. Parker has filed an objection (Doc. 24) and Plaintiffs have filed a response (Doc. 26). The Court adopts the recommendation of Judge Nelson with amendment as follows:
Parker's removal presents what appears to be an issue of first impression in this Circuit—whether the current version of 28 U.S.C. § 1441(b), amended in December 2011, allows removal of in personam maritime claims solely on the basis of this Court's original admiralty and maritime jurisdiction, see 28 U.S.C. § 1333. The undersigned finds that, in this case, it does not.
Citizens of Alabama and Mississippi, the owners of real property facing on the Tombigbee River, in Choctaw County, Alabama, filed this lawsuit in state court. Plaintiffs allege that a crew employed by, and operating a tugboat owned by, Parker—a corporate citizen of Alabama—“lost control of the tugboat and the barges it was pushing, and allowed the tugboat and the barges to stray from the designated channel for navigation[,]” which resulted in “the barges slamm[ing] into the bank of the [river] with great force and violence, causing severe damage to the real property of each Plaintiff facing on the Tombigbee River.” (Doc. 1–1, ¶¶ 20–24.) Plaintiffs' complaint asserts causes of action for negligence; wantonness; trespass; and private nuisance, and demands a trial by jury as to all issues.
The Court's analysis begins where it must, with the burden of removing on defendant shoulders: while “[a]ny civil case filed in state court may be removed by the defendant to federal court if the case could have been brought originally in federal court[,]” Tapscott v. MS Dealer Serv. Corp., 77 F.3d 1353, 1356 (11th Cir.1996) (citing 28 U.S.C. § 1441(a) ), abrogated on other grounds by Cohen v. Office Depot, Inc., 204 F.3d 1069 (11th Cir.2000),1 University of S. Ala. v. American Tobacco Co., 168 F.3d 405, 411 (11th Cir.1999).2
At issue here is the Court's jurisdiction over certain maritime claims, which jurisdiction is concurrent with “the courts of the States[.]” 28 U.S.C. § 1333. Thus, there can be no doubt that, in this context, the Court's “removal jurisdiction raises significant federalism concerns[.]” Tapscott, 77 F.3d at 1356 ; see also Coronel v. AK Victory, 1 F.Supp.3d 1175, 1185, 2014 WL 820270, at *8 (W.D.Wash. Feb. 28, 2014) .
There is no dispute that Plaintiffs' claims are maritime in nature. As such, this Court would have, if Plaintiffs chose to file these claims under this Court's admiralty jurisdiction, original subject matter jurisdiction. 28 U.S.C. § 1333(1) provides that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” See also 46 U.S.C. § 30101 ().
The issue now before the Court is whether this case was properly removed under this Court's admiralty jurisdiction.3 While the undersigned will discuss Parker's argument that removal is proper in light of a relatively recent change to § 1441, proper framing of the parties' dispute requires additional discussion of the “saving to suitors” clause upfront.
The “saving to suitors” clause is “a feature of the congressional grant of original admiralty jurisdiction to the federal district courts in 28 U.S.C. § 1333 [,]” “preserves a plaintiff's right to a common law remedy, not[, necessarily,] to a nonfederal forum.” Perio v. Titan Maritime, LLC, Civil Action No. H–13–1754, 2013 WL 5563711, at *12 (S.D.Tex. Oct. 8, 2013) . The saving clause—“[c]ontained as it is, in a jurisdictional statute”—“is jurisdictional in nature” and preserves the historical “concurrent jurisdiction of the state and federal courts regarding maritime claims where the common law [is] competent to provide a remedy,” such as with Plaintiffs' claims, but the clause “afford[s] exclusive jurisdiction to federal courts where the common law [is] not so competent.”
Perio, 2013 WL 5563711, at *12–13.5 See also Madruga v. Superior Court, 346 U.S. 556, 560, 74 S.Ct. 298, 98 L.Ed. 290 (1954) .
Therefore, it has been made clear that common-law remedies are, “under the saving clause, enforceable in the courts of the States and on the common-law side of the lower federal courts when the diverse citizenship of the parties permitted.” Romero, 358 U.S. at 363, 79 S.Ct. 468.6 It is because of this Court's ability to entertain maritime suits invoking common law remedies pursuant to its diversity jurisdiction, that the plaintiffs are not guaranteed a non-federal forum.
As explained by the Eleventh Circuit, “under the reasoning of Romero, a federal district court should not accept the removal of a saving clause case solely because of its general maritime nature: the maritime nature simply does not provide a ground for federal jurisdiction. ” Armstrong v. Ala. Power Co., 667 F.2d 1385, 1388 (11th Cir.1982) (emphasis added); see also Poirrier, 648 F.2d at 1066 ( ) In other words, this Court does not have original jurisdiction, based solely on its § 1333 admiralty jurisdiction, over general maritime claims requesting common law remedies. In sum, the “saving to suitors clause allows a plaintiff to bring suit as an in personam claim in state court or as a diversity claim in federal court, rather than suing ‘in admiralty’ in federal court.” Baughan v. Royal Caribbean Cruises, Ltd., 944 F.Supp.2d 1216, 1218 (S.D.Fla.2013).
As was their right, Plaintiffs “brought this action in state court as a civil in personam action[,]” and although they “did not denominate it as such, this case ‘commenced in state court as a case arising under the “saving to suitors clause”....’ ” Leonard v. Kern, 651 F.Supp. 263, 264 (S.D.Fla.1986) (quoting Poirrier, 648 F.2d at 1064 )) (footnote omitted). It was Plaintiffs' prerogative where to file, and thus how to pursue, their in personam maritime claims (e.g., whether to elect trial by jury).7 See Vincent v. Regions Bank, No. 8:08–cv–1756–T–23EAJ, 2008 WL 5235114, at *1 (M.D.Fla. Dec. 15, 2008) (he plaintiff's election to sue at common law in state court[, some courts have held,] ‘forever prevents the federal district courts from obtaining admiralty jurisdiction.’ ” .
Prior to the 2012 amendment to 28 U.S.C. § 1441(b),8 it was settled law even in the Fifth Circuit that removal of an in...
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