Rafter v. Stevenson, Civil No. 09-579-P-H.

• Citation: 680 F.Supp.2d 275
• Decision Date: 28 January 2010
• Docket Number: Civil No. 09-579-P-H.
• Parties: John RAFTER, Plaintiff v. William STEVENSON, Defendant.
• Court: U.S. District Court — District of Maine

680 F.Supp.2d 275

John RAFTER, Plaintiff

v.William STEVENSON, Defendant.

Civil No. 09-579-P-H.

United States District Court,

D. Maine.

Decided: Jan. 28, 2010.

Jonathan C. Hull, Damariscotta, ME Michael Kaplan, Preti, Flaherty, Beliveau Pachios & Haley, LLP, Portland, ME, for Plaintiff.

Michael X. Savasuk, Law Office Of Michael X. Savasuk, Portland, ME, for Defendant.

DECISION AND ORDER ON DEFENDANT'S MOTION TO AMEND PLAINTIFF'S MOTION TO REMAND AND PLAINTIFF'S MOTION FOR ATTORNEY FEES

D. BROCK HORNBY, District Judge.

The issue here is whether a defendant the owner of a maritime towing and salvage business, has properly removed from state to federal court his former employee's claim for unpaid wages and unreim- bursed expenses. The defendant's Notice of Removal asserted federal admiralty and maritime jurisdiction. Now, by Motion to Amend, the defendant seeks to add federal question jurisdiction based upon federal law regulating seamen's wages. The plaintiff objects to the Motion to Amend and seeks a remand of the case back to state court, along with attorney fees and costs.

Since the Motion to Amend is untimely under 28 U.S.C. § 1446(b), I Deny the defendant's Motion to Amend. I Grant the plaintiffs Motion to Remand since admiralty and maritime jurisdiction alone does not permit removal because of the savings-to-suitors clause of 28 U.S.C § 1333(1). I Grant the plaintiffs Motion for Attorney Fees because, given the wellestablished law involved here, the defendant lacked an objectively reasonable legal basis for seeking removal.

Factual and Procedural Background

According to the Complaint, the plaintiff, John Rafter, worked for the defendant, William Stevenson, as a captain, "assisting, rescuing and salvaging vessels in distress along mid-coast Maine" from 2005 until 2007. Compl. ¶¶ 1, 5 (Ex. 1 to Notice of Removal (Docket Item 1)) (Docket Item 1-1). Both Rafter and Stevenson are Maine residents. Id. ¶¶ 1-2. Stevenson fired Rafter in September 2007 shortly after Rafter was involved in a vessel collision during a distress call. Id. ¶¶ 6-7. Rafter claims that when he was fired, Stevenson owed him $9,076.09 in unpaid wages and $414.05 for fuel purchases. Id. ¶¶8-9. Rafter filed a complaint against Stevenson in state District Court on October 15, 2009. Id. at 5. The Complaint sought to recover Rafter's wages and expenses through common law claims for debt and unjust enrichment, as well as through a statutory claim for unpaid wages under 26 M.R.S.A. § 626-A. Id. ¶¶ 14-27. On November 16, 2009, Stevenson filed a Notice of Removal. The Notice stated as the basis for removal that: (1) Rafter was seeking unpaid wages for "operating a vessel upon the navigable waters of the United States, among other things"; (2) Stevenson would file a counterclaim based on Rafter's operation of the vessel; and (3) "such actions come within the admiralty and maritime jurisdiction of this Court pursuant to Rule 9(h) and 28 U.S.C. § 1333." Notice of Removal at 1. Rafter filed motions to remand and for attorney fees. In responding to the motions, Stevenson also moved to amend his Notice of Removal to state that Rafter's case implicates this Court's federal question jurisdiction over "federal Seamen's wage statutes." Am. Notice of Removal (Ex. 1 to Mot. to Am. Notice of Removal (Docket Item 11)) (Docket Item 11-1).

Analysis

(1) Defendant's Motion to Amend

The defendant Stevenson's Motion to Amend his Notice of Removal is untimely. A defendant can remove a lawsuit from state court by filing a notice of removal containing "a short and plain statement of the grounds for removal" within thirty days of being served with a complaint. Esposito v. Home Depot U.S.A. 590 F.3d 72, 76 (1st Cir.R.1.2009) (citing 28 U.S.C. § 1441 and quoting 28 U.S.C. § 1446(a)); see also id. at 76 (noting that "removal statutes are to be narrowly construed") (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)). Within that same thirty-day period, a defendant may amend the notice of removal freely. After the thirty days, a defendant can amend "defective allegations of jurisdiction," 28 U.S.C. § 1653 (2009), but cannot add a "new avenue of jurisdiction." Arancio v. Prudential Ins. Co., 247 F.Supp.2d 333, 337 (S.D.N.Y.2002) (Lynch, J.) (denying untimely amendment where a "removal petition was irremediably defective as to federal question jurisdiction and silent as to diversity"); see also Ripoll v. White, 2007 WL 1017576, at *2, 2009 U.S. Dist. LEXIS 65951, at *6 (E.D.La. Mar. 29, 2007) (denying untimely amendment where a defendant "did not raise, or even hint at, diversity of citizenship as a grounds for removal in its notice of removal, [but sought] to do so in opposing [a] motion to remand").

Here, the defendant Stevenson filed his Motion to Amend well beyond the thirtyday time limit imposed by 28 U.S.C. § 1446(b).¹ As a result, he cannot use his motion to assert a "new avenue of jurisdiction." His Amended Notice of Removal would assert federal question jurisdiction.²His original Notice of Removal asserted only admiralty and maritime jurisdiction and was totally silent on federal question jurisdiction. Admiralty and maritime law alone does not create a federal question for the purposes of 28 U.S.C. §§ 1331 and 1441. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001) ("We have previously refused to hold that admiralty claims... fall within the scope of federal question jurisdiction.") (citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 371-72, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959)). The proposed amendment, therefore, is untimely because it attempts to assert a "new avenue of jurisdiction" and does not merely clarify imperfectly made allegations in the original Notice of Removal.

Even if I allowed the motion, it is doubtful that Stevenson could establish federal question jurisdiction to support the removal. A plaintiff is free to sue in state court rather than federal court, even if he could (but did not) seek a remedy under federal law. Danca v. Private Health Care Sys., 185 F.3d 1, 4 (1st Cir.1999) (citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)). That is what Rafter did here, asserting three state-law claims and no federal claim. Stevenson could remove Rafter's suit from Maine court only if Rafter pleaded a federal question, a claim "arising under the Constitution, laws, or treaties of the United States."³ 28 U.S.C. § 1331; Vaden v. Discover Bank, — U.S.—, 129 S.Ct. 1262, 1272, 173 L.Ed.2d 206 (2009) (noting that the "longstanding wellpleaded complaint rule" allows removal based on federal question only if "the plaintiffs statement of his own cause of action shows that it is based upon [federal law].") (quoting Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908)); see also R.I. Fishermen's Alliance, Inc. v. R.I. Dep't of Envtl. Mgmt, 585 F.3d 42, 48 (1st Cir. 2009) ("[A] plaintiffs well-pleaded complaint must exhibit, within its four corners, either an explicit federal cause of action or a state-law cause of action that contains an embedded question of federal law that is both substantial and disputed.") (citing W. 14th St. Comm'l Corp. v. 5 W. 14-th Owners Corp., 815 F.2d 188, 193 (2d Cir.1987)). An actual or anticipated counterclaim sounding in federal law (Stevenson announced one in his Notice of Removal and then pleaded one in his Answer) cannot create federal jurisdiction. Vaden, 129 S.Ct. at 1272. Neither can an actual or anticipated defense sounding in federal law. Id. (Stevenson pleaded such defenses in his Answer.) This principle includes a federal preemption defense, R.I. Fishermen's Alliance, 585 F.3d at 49-50, unless a defendant shows that "the state cause of action falls within the scope" of a federal law and is therefore completely preempted. Danca, 185 F.3d at 5; see also Vaden, 129 S.Ct. at 1273 ("A complaint purporting to rest on state law... [arises under] federal law if the law governing the complaint is exclusively federal." (citation omitted)).

Stevenson argues that Rafter's Complaint does assert a federal claim (at least implicitly).⁴ He says that Rafter seeks to recover wages that he earned while "operating a vessel upon the navigable waters of the United States," Notice of Removal at 1 (citing 28 U.S.C. § 1333 (2009)), and that such wage claims sound in federal law governing seamen's wages, Def.'s Mem. in Support of Obj. to Pl's Mot. to Remand at 1 (Docket Item 12). Unfortunately for Stevenson's argument, nowhere does Rafter's Complaint make such a claim. Alternatively, Stevenson argues that Rafter's right to relief necessarily depends on "the resolution o[f][a] substantial question of federal law." Def.'s Obj. at 1. This appears to be a "complete preemption" argument. Where a federal cause of action completely preempts state law claims, a case can be removed. Danca, 185 F.3d at 4-5. But that principle does not apply here.⁵ Stevenson is unable to point to any federal statute or case that says that Rafter's state wage and reimbursement claims are completely preempted. Perhaps Stevenson will have a federal defense to one or more of Rafter's claims, but such a defense does not create federal jurisdiction, Vaden, 129 S.Ct. at 1272, and does not support removal, Ben. Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003) ("[A] defense that relies on... the pre-emptive effect of a federal statute will not provide a basis for removal") (citing Franchise Tax Bd. of Col. v. Constr. Laborers Vacation Trust for S. Cat., 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)). Therefore, even if the Motion to Amend were timely, it could not support removal.

Accordingly, the Motion to Amend is Denied.

(2) Plaintiff's Motion to Remand

Rafter argues that the existence of federal admiralty and maritime jurisdiction, the only basis for removal given my...