Wallace v. Ryan-Walsh Stevedoring Co., Inc.

Decision Date09 March 1989
Docket NumberNo. B-88-678-CA.,B-88-678-CA.
Citation708 F. Supp. 144
PartiesCarroll WALLACE, Plaintiff, v. RYAN-WALSH STEVEDORING CO., INC., Defendant.
CourtU.S. District Court — Eastern District of Texas

Mike Jacobellis, Tonahill, Hile, Leister & Jacobellis, Beaumont, Tex., for plaintiff.

Gray H. Miller, Fulbright & Jaworski, Houston, Tex., for defendant.


SCHELL, District Judge.

The plaintiff moves to remand the above captioned and numbered cause to state court. For the reasons set forth below, the motion is hereby GRANTED and the case is REMANDED to the 60th Judicial District Court of Jefferson County, Texas.


The motion at bar involves a jurisdictional challenge in the context of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA). The plaintiff, Carroll Wallace, was employed as a gearman1 by Ryan-Walsh Stevedoring Co., Inc. (Ryan-Walsh) at the Port of Beaumont in Beaumont, Texas, at the time of his injury. Wallace is a member of the local longshoremen's union, the International Longshoremen's Association (ILA). He suffered an initial lower back injury in December, 1985, in an auto-truck collision during the course of his duties, which resulted in a ruptured disc. At that time, he filed a claim for compensation benefits under the Texas Workmen's Compensation Act (TWCA) and the LHWCA concurrently and received benefits.2

After his initial injury, Wallace apparently worked off and on until the severity of his injury forced him to cease in March, 1987. In April, 1987, he underwent a laminectomy and a foraminectomy and did not work again until October, 1987, following his physician's release. On October 23, 1987, after only three weeks back at work, Wallace re-injured his back. The Court's file contains Wallace's handwritten statement, in which he claims that he had been washing down loading trays used in the stevedoring process and that handling the hose began to bother him. He then drove his superintendent's truck to a nearby gas station for refueling and slipped, but did not fall, on an oil spot on the pavement, which caused him to experience back pain. Upon returning to the dock, he resumed washing down loading trays and felt a "catch" in his back, resulting in an inability to fully straighten his posture. Wallace then underwent further medical care and was released to return to work by his physician on May 4, 1988, with a fifty pound lifting restriction.

From October 24, 1987, until May 8, 1988, Wallace received LHWCA benefits at the rate of $616.96 per week. In November, 1987, Wallace notified Ryan-Walsh that he would file a claim for benefits under the TWCA. Plaintiff's counsel also communicated the filing of the state law claim to Ryan-Walsh in April, 1988.

Wallace presented himself for re-employment on May 8, 1988. Ryan-Walsh immediately refused to rehire him on the basis that he was unfit to return to his duties under the provisions of the collective bargaining agreement between Ryan-Walsh and the ILA. Defendant's position induced Wallace to file his Original Petition in state court on June 16, 1988. Wallace's state court Petition is grounded solely under article 8307c of the TWCA3 and raises no issue of federal law. Article 8307c proscribes discrimination against employees who file claims for benefits under the TWCA, commonly known as retaliatory discharge.

Wallace also instigated grievance procedures through the ILA. In its original hearing on June 15, 1988,4 the Appeals Committee ordered Wallace to report and submit to a physical examination. Wallace failed to comply. At the "Step II" hearing held on June 23, 1988, the Appeals Committee refused to refer Wallace to Ryan-Walsh for re-employment. On July 25, 1988, the Texas Industrial Accident Board issued an order awarding Wallace $9,471 in accrued benefits at the rate of $231.00 per week from October 23, 1987 until August 7, 1988, and $18,830.35 in benefits for future disability.

Ryan-Walsh removed the case from state court on July 15, 1988, and shortly thereafter filed its Motion to Dismiss. Ryan-Walsh's removal pursuant to 28 U.S. C. § 1441 is based on both diversity5 and federal question jurisdiction. On July 26, 1988, plaintiff filed the motion at bar.


Plaintiff's Motion to Remand is grounded on 28 U.S.C. § 1445(c): "A civil action in any State court arising under the workmen's compensation laws of such State may not be removed to any district court of the United States." Defendant's removal on diversity grounds, therefore, cannot be sustained if an action brought under article 8307c is viewed as "arising under" Texas workmen's compensation laws within the meaning of § 1445(c). Congress enacted § 1445(c) in order to restrict diversity jurisdiction. Thomas v. Kroger Co., 583 F.Supp. 1031, 1036 (S.D.W.Va.1984); Fernandez v. Reynolds Metals Co., 384 F.Supp. 1281, 1283 (S.D.Tex.1974); National Sur. Corp. v. Chamberlain, 171 F.Supp. 591, 594-95 (N.D.Tex.1959); S.Rep. No. 1830, 85th Cong., 2nd Sess., reprinted in 1958 U.S.Code Cong. & Admin. News 3099, 3103-06.

District courts sitting in other jurisdictions have considered whether various state law retaliatory discharge claims ran afoul of § 1445(c), and the overwhelming majority of those courts have ordered remand. Orsini v. Echlin, Inc., 637 F.Supp. 38 (N.D.Ill.1986); Alexander v. Westinghouse Hittman Nuclear Inc., 612 F.Supp. 1118 (N.D.Ill.1985); Roberts v. Citicorp Diners Club, Inc., 597 F.Supp. 311 (D.Md. 1984); Thomas, 583 F.Supp. 1031; Kemp v. Dayton Tire & Rubber Co., 435 F.Supp. 1062 (W.D.Okla.1977). The few cases denying motions to remand on § 1445(c) grounds are distinguishable in that the retaliatory discharge cause of action at issue was not part of the statutory workmen's compensation scheme. See Smith v. Union Carbide Corp., 664 F.Supp. 290, 292 (E.D.Tenn.1987) (judicially created tort); Waycaster v. AT & T Technologies, Inc., 636 F.Supp. 1052, 1055 (N.D.Ill.1986) (retaliatory discharge action not created by statute and therefore considered common law).

Several district courts in Texas have considered the disposition of article 8307c claims in light of § 1445(c). Fernandez, apparently the first of these cases and often cited, held that § 1445(c) barred removal of an article 8307c claim. 384 F.Supp. at 1283. In an unreported decision, De Santos v. P*I*E Nationwide, Inc., No. EP-86-CA-49 (W.D.Tex. April 14, 1986) (WESTLAW 1986 WL 15587/LEXIS), another court reached the identical conclusion, finding that article 8307c was a "vital part" of the TWCA.

Rather recently, however, a district court in the Western District of Texas denied its plaintiff's motion to remand an article 8307c case that had been removed. That court held that removal of an 8307c claim on diversity grounds — the identical issue facing this Court — did not offend § 1445(c). Richardson v. Owens-Illinois Glass Container, Inc., 698 F.Supp. 673 (W.D.Tex. 1988). The rationale of Richardson derived from recent decisions of Texas appellate courts which found that article 8307c claims are "separable from the compensation resulting from accidental injuries." Id.; see Fidelity & Casualty Co. of New York v. Gaedcke Equipment Co., 716 S.W. 2d 542 (Tex.App. — Houston 1st Dist. 1986, writ ref'd n.r.e.); Artco-Bell Corp. v. Liberty-Mutual Ins. Co., 649 S.W.2d 722 (Tex. App. — Texarkana 1983, no writ). The issue before the Texas courts in Gaedcke and Artco-Bell, however, was whether an employer's liability insurance policy covering workmen's compensation benefits should be construed as including coverage for liability for retaliatory discharge claims as well. Ryan-Walsh supplemented its response to plaintiff's motion after the issuance of Richardson, urging this Court to follow that case.

This Court respectfully disagrees with Richardson. The state law conclusion that retaliatory discharge claims are separable from compensation for accidental injuries for insurance purposes does not control the question of whether the claim arises under the TWCA for purposes of § 1445(c). The United States Supreme Court and the Fifth Circuit have forcefully ruled that the construction of the removal statutes is governed by federal law:

The removal statutes and decisions of this Court are intended to have uniform nationwide application. `Hence the removal statutes must be construed as setting up their own criteria, irrespective of local law, for determining in what instances suits are to be removed from the state to the federal courts.'

Grubbs v. General Electric Credit Corp., 405 U.S. 699, 705, 92 S.Ct. 1344, 1349, 31 L.Ed.2d 612 (1971) (quoting Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 104, 61 S.Ct. 868, 870, 85 L.Ed. 1214 (1941)); Paxton v. Weaver, 553 F.2d 936, 940-41 (5th Cir. 1977); Crier v. Zimmer, Inc., 565 F.Supp. 1000, 1002 (E.D.La.1983). In Paxton the Fifth Circuit discussed the construction of another removal statute, 28 U.S.C. § 1441(c), which allows removal of an entire case in which a "separate and independent," yet removable, claim is joined with one or more non-removable claims. The court considered whether a state law contract claim for damages and rescission was "separate and independent" of a tort claim:

Appellants suggest here that in fact tort and contract claims could be joined in one action in a Mississippi court of equity, where this suit was brought, the nonjoinder rule being applicable only in courts of law. But we need not decide niceties of Mississippi procedure, since although state substantive law determines the nature of rights and liabilities asserted, construction of the removal statute is a question of federal law (citation omitted). Federal courts must apply the separate and independent test so as to carry out the intent to restrict removal.

553 F.2d at 940-41. The Fifth Circuit has also held that federal law determined the status of an intervenor for purposes of determining whether the intervenor alone, without the plaintiff, had standing...

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