Langlois v. Kirby Inland Marine, LP

139 F.Supp.3d 804

Lynn S. Langlois, et al

v.Kirby Inland Marine, LP

CIVIL ACTION NO. 15-608-JWD-SCR

United States District Court, M.D. Louisiana.

Signed October 15, 2015

Keith P. Richards, Baton Rouge, LA, for Lynn S. Langlois, et al.

Chad N. Evans, Janice B. Unland, John Joseph Rabalais, Rabalais, Unland, & Lorio, Covington, LA, for Kirby Inland Marine, LP.

RULING AND ORDER

JUDGE JOHN W. deGRAVELLES, UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

This Court sua sponte ordered Defendant Kirby Inland Marine, LP to show cause within fourteen days as to why this Court should not remand this action in light of Harrold v. Liberty Insurance Underwriters, Inc. , CIV.A. 13–762, 2014 WL 5801673 (M.D.La.2014). (Doc. 4). Subsequently, Defendant filed its Memorandum in Opposition to Sua Sponte Motion to Remand. (Doc. 16).

For the reasons set forth below, the action Langlois, et al v. Kirby Inland Marine, LP , 3:15-cv-00608-JWD-SCR is hereby remanded to the 18th Judicial District Court for the Parish of Iberville, Louisiana.

I. Relevant Factual and Procedural Background

a. Plaintiffs' Allegations

Lynn and Rosemary Langlois ("Plaintiffs") alleged in their state court Petition that M/V Dixie Volunteer , a vessel owned and operated by Kirby Inland Marine, LP ("Defendant" or "Kirby"), was traveling southbound in the Intracoastal Waterway in the vicinity of Plaintiffs' house boat and flat boat. (Doc. 1-1, p. 1 ¶ 5). Plaintiffs alleged that at the same time, the M/V Governor Mike Huckabee , a vessel owned by Blessey Marine Services, Inc. was traveling northbound in the vicinity of Plaintiffs' houseboat and flat boat. (Doc. 1-1, p. 1-2 ¶ 6). Plaintiffs allege that Kirby's vessel was traveling too close to the middle of the Intracoastal Waterway and left the Blessey vessel with insufficient space to either change course or safely pass Plaintiffs' house boat and flat boat. (Doc. 1-1, p. 2 ¶¶ 7, 9). Plaintiffs assert that the Blessey vessel collided with their house boat and flat boat causing catastrophic structural damage to their house boat and motor, as well as the loss of considerable personal property. (Doc. 1-1, p. 2 ¶ 11). Additionally, Plaintiffs claim the collision caused considerable damage to the flat boat and motor. (Doc. 1-1, p. 2 ¶ 12.).

b. Procedural Background

On September 10, 2015, Defendant filed a Notice of Removal with this Court to remove the state court suit brought by Plaintiffs. (Doc. 1). Defendant asserts in its Notice of Removal that "[t]his cause is specifically removable to this Honorable Court pursuant to law, particularly the provision of 28 U.S.C. § 1333." (Doc. 1, p. 2 ¶ VI). On September 15, 2015, the Court sua sponte ordered Defendant to show cause within fourteen days as to why this Court should not remand this action in light of Harrold. (Doc. 4). Plaintiffs were given seven days thereafter to respond.

(Doc. 4). Defendant filed a memorandum opposing remand on September 28, 2015. (Doc. 16). Plaintiffs have not filed a response.

c. Defendant's Memorandum

The crux of Defendant's argument against remand is the apparent disagreement within this Court as to whether the 2011 amendments to 28 U.S.C. § 1441 allow for removal of general maritime claims. (Doc. 16, pp. 2-6). Defendant contends that this Court's previous ruling in Harrold is distinguishable because that case concerned Jones Act claims. (Doc. 16, p. 4). Defendant argues that because the case at bar does not concern Jones Act claims, this Court's ruling in Provost v. Offshore Service Vessels, LLC , CIV.A. 14-89–SDD–SCR, 2014 WL 2515412 (M.D.La. June 4, 2014), decided prior to Harrold, should control because Provost did not concern Jones Act claims. (Doc. 16, p. 4). Further, Defendant asserts that this judge's "overarching" consideration in Harrold concerning general maritime claims "arguably stands in contrast to the purpose of [its] Memorandum," but claims "that portion of the opinion is dicta, anomalous to the Provost decision, and not controlling ... in the instant case." (Doc. 16, p. 4).

Next, Defendant argues that another case in this Court, Bartel v. Alcoa Steamship Company , 64 F.Supp.3d 843 (M.D.La.2014), decided one month subsequent to Harrold, "tacitly approved the Provost holding." (Doc. 16, p. 4). Defendant claims that Bartel distinguished itself from Provost because Bartel concerned claims under the Jones Act. (Doc. 16, p. 4). Defendant argues that Bartel's rationale implies that if Provost concerned a Jones Act claim it would not have been removable, and "as a logical extension of that holding," Bartel"stands for the proposition that because the Provost plaintiff did not seek a remedy under the Jones Act, removal of the plaintiff's claims under the general maritime law in Provost was warranted." (Doc. 15, pp. 4-5) (emphasis omitted).

Additionally, Defendant asserts that "[t]rial by jury was not requested by the Plaintiffs and no remedy has been requested which cannot be pursued in a federal forum, so the savings to suitors clause is not implicated." (Doc. 16, p. 5). Finally, Defendant contends that "Plaintiffs did not assert a claim under the Jones Act, so the holdings of Harrold and Bartel are distinguishable." (Doc. 16, p. 6).

II. Discussion

"The federal removal statute ... is subject to strict construction because a defendant's use of that statute deprives a state court of a case properly before it and thereby implicates important federalism concerns." Frank v. Bear Stearns & Co. , 128 F.3d 919, 922 (5th Cir.1997). "[D]oubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction." Acuna v. Brown & Root , 200 F.3d 335, 339 (5th Cir.2000).

Defendant's argument that general maritime claims can be removed to federal court places two decisions of this Court, Harrold and Provost, at odds with each other. In Provost, this Court agreed with the decision of Ryan v. Hercules Offshore, Inc ., 945 F.Supp.2d 772 (S.D.Tex. May 13, 2013), that the 2011 "amendment to § 1441 allows removal of general maritime claims." Provost , 2014 WL 2515412, at *3. Conversely, in Harrold, the Court disagreed with Ryan and found that "the correct view is also the majority view and that general maritime claims are not removable, despite the changes to 28 U.S.C. § 1441." Harrold , 2014 WL 5801673, at *3. Thus, the Court begins its discussion with § 1441.

a. Removability of General Maritime Claims

Prior to the 2011 amendment, 28 U.S.C. § 1441 provided, in pertinent part:

(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 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 arising 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 (2011).

Under this previous version, "federal law was well-settled that maritime tort actions commenced in the state courts were non-removable in the absence of an independent jurisdictional basis by operation of the 'saving to suitors clause' and 28 U.S.C. § 1441(b)." Mitev v. Resort Sports Ltd. , 133 F.Supp.3d 1365, 2015 WL 5693678, at *3 (S.D.Fla. Sept. 23, 2015) ; see also Boudreaux v. Global Offshore Resources, LLC , CIV.A. 14–2507, 2015 WL 419002, at *2 (W.D.La. Jan. 30, 2015) ("Before the amendment, the general rule in the Fifth Circuit was that maritime claims were not removable absent a basis of jurisdiction outside of admiralty.") (citing Tennessee Gas Pipeline v. Houston Cas. Ins. Co. , 87 F.3d 150, 153 (5th Cir.1996) (maritime claim is not removable under the first sentence of § 1441(b) by falling within the admiralty jurisdiction of the federal courts, but is removable when original jurisdiction is based on something other than admiralty); In re Dutile , 935 F.2d 61, 63 (5th Cir.1991) (admiralty and maritime claims may be removed to federal court only by non-forum defendants and only where there is complete diversity of citizenship)).

The "saving to suitors" clause is contained in 28 U.S.C. § 1333, which provides, in pertinent part, 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."

This Court has recently explained the "saving to suitors" clause as thus:

[U]nder § 1333's "saving to suitors" clause, the case may be brought in state or federal court. Victory Carriers, Inc. v. Law, 404 U.S. 202, 204, 92 S.Ct. 418, 420–421, 30 L.Ed.2d 383 (1971). What is "saved" to the suitor in § 1333 is not only the right to bring a maritime case in a non-maritime court (state court or federal court at law, assuming an alternative basis for federal jurisdiction), but the right of the litigants to take advantage of the procedural differences between a federal court "in admiralty" and that of the non-maritime court. See 1 Robert Force and Martin J. Norris, The Law of Maritime Personal Injuries, § 1:6 (5th ed.2013); 1 Thomas J. Schoenbaum, Admiralty and Maritime Law §§ 4–4, 21–1 (5th ed.2014). However, regardless of the court in which the case is brought, maritime substantive law is applicable.

East River S.S. Corp. v. Transamerica Delaval, 476 U.S. 858, 864, 106 S.Ct. 2295, 2298–2299, 90 L.Ed.2d 865 (1986) ; Victory Carriers, 404 U.S. at 204, 92 S.Ct. at

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