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Maritime Removals Under § 1441(b)

July 2, 2015

The Eastern District of Missouri has added itself to the wave of federal district courts finding that a 2011 amendment to the removal statute, 28 U.S.C. § 1441(b), does not permit removal of general maritime cases to federal court.

Ordinarily, claims brought under general maritime (or admiralty) law can’t be removed to federal court when the removal is solely based on their being admiralty or maritime claims. The removing party must show some other basis for removal, such as diversity of citizenship. Unless you are familiar with maritime law, that may be somewhat surprising. After all, the plain language of the statutes governing federal jurisdiction clearly state that U.S. district courts have original jurisdiction over “[a]ny civil case” involving “admiralty or maritime jurisdiction,” 28 U.S.C. § 1333(1), and the current removal statute states that “any civil action” brought in state court of which the district courts have “original jurisdiction, may be removed,” § 1441(a).

Historically, however, maritime cases have not been removable. To partly explain that, before the Federal Courts Jurisdiction and Venue Clarification Act of 2011, the removal statute read as follows:

(a) 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 defendants, to the district court of the United States for the district and division embracing the place where such action is pending.

(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. § 1441(a), (b) (West 2006). In paragraph (a), note that it says any civil action of which the district courts have original jurisdiction may be removed “[e]xcept as otherwise expressly provided by Act of Congress.” Courts have held that maritime cases could be removed were it not for that exception and how it reads with paragraph (b), which is an “Act of Congress.” Paragraph (b) divides removable cases into two classes, namely, (1) those of which district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States, and (2) [a]ny other such action. Maritime actions do not fall into the first class because they do not arise “under the Constitution, treaties or laws of the United States.” See Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 377–79 (1959). They must then fall into the second class of “[a]ny other such action.” And they are not alone; diversity-of-citizenship actions do not arise under the Constitution, treaties or laws of the United States either, and also fall into the second class. Under paragraph (b), this class “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” (emphasis added). Consequently, paragraph (b) has prevented removal of any maritime case unless there was complete diversity of citizenship and all defendants were citizens of other states. See In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991). With those requirements, it is easy for plaintiffs to prevent removal by filing their cases states where any defendant is a citizen.

Section (b), however, was significantly amended by the Federal Courts Jurisdiction and Venue Clarification Act of 2011. It now reads as follows:

(b)  Removal Based on Diversity of Citizenship.— 

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

1441(b). Section (b) refers only to diversity of citizenship, even in the new heading. And it does not divide removable cases into classes. In other words, section (b) no longer contains an exception to qualify paragraph (a), and we return to the plain language discussed above. Thus it would seem that a maritime claim brought in state court would now be removable to federal court.

Not so. U.S. District Judge Henry E. Autrey was not persuaded by the statutory argument outlined above. In Schaffer v. Air & Liquid Systems Corp., No. 4:14CV1789 HEA, 2015 WL 1611352 (E.D. Mo. April 10, 2015). Defendant Exxon Mobil Corporation had removed the case under the federal Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 905, invoking federal-question jurisdiction and admiralty jurisdiction under 28 U.S.C. §§ 1331, 1333. The court cited numerous cases showing that district courts disagree whether § 1441(b) allows the removal of general admiralty claims. Compare Ryan v. Hercules Offshore, Inc., 945 F.Supp.2d 772, 778 (S.D. Tx. 2013) (finding case brought pursuant to Death on the High Sea Act and Longshore and Harbor Workers’ Compensation Act were removable to federal court pursuant to admiralty jurisdiction) with Progressive Mountain Ins. Co. v. Dana C. McLendon Co. Inc., No. 2:14–cv–04413–DCN, 2015 WL 925932 (D.S.C. Mar. 4, 2015) (finding a defendant may only remove a case in which an in personam maritime claim is brought when the case includes an independent ground for federal question jurisdiction).

Siding with those that favor remand, the court found that § 1441(b) should also be read with the so-called “saving to suitors” clause in 28 U.S.C. § 1331(1). Specifically, § 1331(1) provides that district courts have original jurisdiction, exclusive of the states, of any civil case of admiralty or maritime jurisdiction “saving to suitors in all cases all other remedies to which they are otherwise entitled.” The court explained that “[f]ederal courts have long supported a plaintiff’s right to choose a forum, state or federal, in common-law maritime actions.” And because this was an in personam action brought originally in state court, seeking common-law remedies, the court “cannot disturb Plaintiff’s prerogative to pursue her action in state court.”

The court did deny the plaintiff’s request for attorney’s fees. Exxon’s removal was objectively reasonable, the court said, indicating that the law is unsettled in this area.

It is difficult to find guidance from the federal circuit courts in this area because, by statute, most orders of remand are not reviewable on appeal. No circuit court has ruled yet on whether maritime cases may be removed in light of the amendment to § 1441(b). Curiously, though, the Boeing Co. has appealed an order of remand to the Seventh Circuit in a case involving the crash of an Asiana Airlines jet. One of Boeing’s arguments on appeal is that the case was properly removed to federal court under admiralty law—the jet’s crash allegedly became inevitable while it was passing over water. Whether that argument holds water may be decided soon. Oral arguments were heard last year. Stay tuned. We will update this article as soon as a decision is announced.

For excellent coverage of this issue, visit The Loyal Current maritime law blog.