Ryan v. Hercules Offshore, Inc.

• Citation: 945 F.Supp.2d 772
• Decision Date: 13 May 2013
• Docket Number: Civil Action No. H–12–3510.
• Parties: Jonnie RYAN, et al., Plaintiffs, v. HERCULES OFFSHORE, INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

945 F.Supp.2d 772

Jonnie RYAN, et al., Plaintiffs,

v.HERCULES OFFSHORE, INC., et al., Defendants.

Civil Action No. H–12–3510.

United States District Court,

S.D. Texas,

Houston Division.

May 13, 2013.

Jeffrey Ragan Seely, Gordon Elias, et al., Houston, TX, for Plaintiffs.

Allen Dwayne Hemphill, Brown Sims, PC, Houston, TX, for Defendants.

Order

GRAY H. MILLER, District Judge.

Pending before the court is a motion to remand filed by plaintiff Jonnie Ryan, as personal representative of Mark Ryan and the Estate of Mark Ryan (“Plaintiffs”). Dkts. 3, 4. Having considered the motion, response, petition, and applicable law, the court is of the opinion that the motion should be DENIED.

I. Background

Decedent Mark Ryan worked for defendant Wild Well Control, Inc. (“Wild Well”). Dkt. 4. On November 19, 2010, he was working off the coast of Port Harcourt, Nigeria on the Noble Percy Johns, a Leg Cantilever Jack–Up vessel, which was drilling a deviated relief well to control a damaged well that was blowing gas. Id. Ryan began to experience cardiac symptoms and went into cardiac arrest. Id. According to plaintiffs, the crew on the vessel, who worked for defendant Noble Drilling, Inc. (“Noble”), failed to properly administer CPR and failed to use a defibrillator that was on the vessel. Id. They also did not have a helicopter available to take Ryan to shore. Id. Plaintiffs allege that by the time shore personnel arrived, Ryan had passed away. Id.

On October 16, 2012, Ryan's widow, Jonnie Ryan, filed suit in the 80th Judicial District Court of Harris County, Texas, as personal representative of Ryan and his estate. Dkt. 1–5. She asserted claims against Wild Well, Noble, Hercules Offshore, Inc., and Hercules Liftboat, Inc., for negligence and unseaworthiness, pursuant to the Death on the High Seas Act, general maritime law, and the Sieracki seaman doctrine.¹Id. Wild Well was served on November 1, 2012, and it removed the case to this court on December 3, 2012. ² Dkt. 1. The other defendants consented to removal. Id. In the notice of removal, Wild Well contends that the case was removable pursuant to 28 U.S.C. § 1441 because Plaintiffs' claims fall within the federal districtcourt's original jurisdiction. Id. Plaintiffs filed a motion to remand on January 2, 2013, arguing that their claims are general maritime claims that historically cannot be removed. Dkts. 3, 4.³ In response, Wild Well argues that a plain reading of recent amendments to section 1441 make previously unremovable claims removable and that Plaintiffs' claims meet the requirements for removal under the amended statute. Dkt. 6. Plaintiffs did not file a reply.

II. Legal Standard and Analysis

Under 28 U.S.C. § 1333, district courts “have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil action of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are entitled.” Traditionally, general maritime claims saved to suitors have not been removable. Morris v. T E Marine Corp., 344 F.3d 439, 444 (5th Cir.2003) (citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 377–79, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), superseded by statute on other grounds,45 U.S.C. § 59, for the proposition that “saving to suitors” claims are not removable because maritime claims do not present a federal question). This was not, however, because the saving to suitors clause prohibited removal, as it “does no more than preserve the right of maritime suitors to pursue nonmaritime remedies. It does not guarantee them a nonfederal forum, or limit the right of defendants to remove such actions to federal court where there exists some basis for federal jurisdiction other than admiralty.” Tenn. Gas Pipeline v. Hous. Cas. Ins., 87 F.3d 150, 153 (5th Cir.1996) (citing Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1066 (5th Cir. Unit A 1981)). It was “well-established that maritime claims do no ‘aris [e] under the Constitution, treaties or laws of the United States' for purposes of federal question and removal jurisdiction.” Id. (citing Romero and In re Dutile, 935 F.2d 61, 63 (5th Cir.1991)). Thus, the claims could not be removed as federal questions, and federal courts could only assert removal jurisdiction over admiralty claims that met the diversity jurisdiction requirements stated in the prior version of 28 U.S.C. § 1441(b). Ryan moves to remand based on these principles, as the parties in this case are not diverse.

Under the removal statute, the removing party bears the burden of demonstrating that removal was proper. Tenn. Gas Pipeline, 87 F.3d at 152. Wild Well agrees that prior to January 2012, a general maritime claim could be removed only when there was a separate basis for federal jurisdiction. Dkt. 6. Wild Well points out, however, that the removal statute was amended on December 7, 2011,⁴ and argues that the plain language of the amended statute allows removal if there is original jurisdiction and there is otherwise no statutory bar to removal, notwithstanding the “saving to suitors” clause. Id.

A. The Statute

The previous version of section 1441 stated:

(a) Except as otherwise expressly provided by Act of Congress, any civil actionbrought 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. For purposes of removal under this chapter, the citizenship of defendants sued under fictitious names shall be disregarded.

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

28 U.S.C.A. § 1441(a) & (b) (West 2006). The statute was amended in 2011. The current version states:

(a) Generally.—Except as otherwise expressly provided by Act of Congress, any 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.

(b) Removal based on diversity of citizenship.—(1) In determining whether a civil action is removal on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought.

28 U.S.C.A. § 1441(a) & (b) (West Supp.2012).

B. The Caselaw

In determining the meaning of the amendment to section 1441, the court must presume that Congress was aware of the caselaw interpreting the prior version. See Bowen v. Massachusetts, 487 U.S. 879, 896, 108 S.Ct. 2722, 101 L.Ed.2d 749 (1988) (stating that there is a “well-settled presumption that Congress understands the state of existing law when it legislates”). The court will thus begin with a discussion of the major cases that courts in the Fifth Circuit have relied on when determining whether removal of maritime cases is appropriate when the parties lack diversity.

The U.S. Supreme Court, in Romero v. International Terminal Operating Co., determined that general maritime claims do not present a federal question under 28 U.S.C. § 1331 and noted that, if it held otherwise, such claims would be freely removable under the former version of 28 U.S.C. § 1441(b), which stated that any “civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” The Court stated that this consequence “would make considerable inroads into the traditionally exercised concurrent jurisdiction of the state courts in admiralty matters—a jurisdiction which it was the unquestioned aim of the saving clause of 1789 to preserve.” Romero, 358 U.S. at 372, 79 S.Ct. 468.

In In re Dutile, the Fifth Circuit considered a petition for a writ of mandamus requiring the district court to remand a case filed under the Jones Act, general maritime law, and Louisiana law, to the Louisiana state court in which it was originally filed. In re Dutile, 935 F.2d at 62. One of the issues in Dutile involved whether the case could be removed because there were in rem claims asserted against a vessel in addition to in personam claims against individuals. Id. It noted that the in rem maritime claims clearly fell within the district court's original jurisdiction, and thus met the requirement of section 1441(a) that cases over which district courts have original jurisdiction may be removed. Id. The court found, however, that the claim could not be removed because section 1441(a) was prefaced with the term “Except as expressly provided by Act of Congress,” and section 1441(b) was an Act of Congress that precluded removal. Id. The first part of section 1441(b) stated that claims “arising under the Constitution, treaties or laws of the United States”—federal questions—could be removed without regard to the citizenship of the parties. Id. Since admiralty claims are not federal questions under Romero, the Dutile Court went on to the second part of the previous version of section 1441(b), noting that “admiralty and general maritime claims fall within the category of “[a]ny other such action,” and that they were...