Recent amendments to the federal removal statute, 28 U.S.C. § 1441, may have far-reaching implications for the practice of maritime law, nationally. Specifically, in a significant departure from precedent, two recent decisions in the U.S. District Court for the Southern District of Texas have interpreted the amended statute to permit general maritime law claims to be removed from state to federal court regardless of whether requirements for diversity jurisdiction, or some other basis of federal question jurisdiction, are met. While it remains to be seen how this issue may develop over time, these opinions potentially represent an important new avenue for maritime practitioners to consider when assessing whether to remove a case to federal court.
Historically, general maritime law claims saved to suitors did not constitute federal questions for removal purposes, and federal courts could only assert removal jurisdiction over such claims when diversity or some other basis existed for federal jurisdiction. [See, e.g., Morris v. T E Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003) (recognizing the Outer Continental Shelf Lands Act, 43 U.S.C.A. §§ 1331, et seq., as one such basis).]
However, on December 7, 2011, Congress revised the language of Section 1441. The full version of the amended statute reads as follows:
- 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.
Removal based on diversity of citizenship.
- In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
- 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.
Approximately five months after the new statute became effective, U.S. District Court Judge Gray Miller of the Southern District of Texas denied a plaintiff’s motion to remand on the basis that under the amended version of Section 1441, general maritime law claims are removable regardless of whether diversity jurisdiction is present. [See Ryan v. Hercules Offshore, Inc, No. H-12-3510, 2013 WL 1967315 (S.D. Tex. May 13, 2013).]
In Ryan, the plaintiff was the estate of a worker who died during drilling operations offshore Nigeria. The estate filed suit in Texas state court, asserting claims against several defendants for negligence and unseaworthiness pursuant to the Death on the High Seas Act, general maritime law, and the Sieracki seaman doctrine. The defendants removed the case to federal court, asserting that the estate’s claims fell within the federal district court’s original jurisdiction, and “a plain reading” of the amended version of 28 U.S.C. 1441 made those claims removable, even though they had been unremovable under the prior version of the statute. Ryan, 2013 WL 1967315 at *1.
In the course of deciding against the estate’s motion to remand, Judge Miller conducted a thorough evaluation of the case law interpreting the prior version of the statute and the language of the amended statute and found:
When Congress amended section 1441, it left the reference in section 1441(a) to cases in which courts have “original” jurisdiction being removable unless prohibited by an act of Congress… However, it deleted the text in section 1441(b) upon which courts in the Fifth Circuit relied as being an “Act of Congress” that precluded removal of cases that did not meet the other requirements of section 1441(b). The new version of section 1441(b) speaks solely to cases that are removed on the basis of diversity of citizenship...
Plaintiffs argue that maritime claims cannot be removed pursuant to section 1441(a) because they do not arise under the Constitution, treaties, or laws of the United States. However, neither the prior version nor the new version of section 1441(a) refers to claims that arise under the Constitution, treaties, or laws of the United States. This reference was found in the previous version of section 1441(b). Both versions of section 1441(a) refer to original jurisdiction, and federal district courts have “original jurisdiction” over “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled [pursuant to 28 U.S.C. § 1333(1)].”
Based on this evaluation of the case law and statutory language, Judge Miller denied the motion to remand because all of the plaintiffs’ claims were “admiralty claims over which a federal district court has original jurisdiction and the revised removal statute does not limit the removal of these claims.” Ryan, 2013 WL 1967315 at *6.
Shortly after Judge Miller issued his ruling in Ryan, U.S. District Court Judge Lee Rosenthal reached a similar conclusion in Wells v. Abe’s Boat Rentals Inc., No. H-13-1112, 2013 WL 3110322 (S.D. Tex. June 18, 2013). The plaintiff in Wells alleged he was injured while working as a crewman on a sup- ply vessel and participating in a cargo transfer from the vessel to a fixed platform located offshore Louisiana. The plaintiff filed suit in Texas state court, asserting Jones Act claims against his employer and negligence claims under general maritime law against the owner and operator of the platform. The defendants removed, and the plaintiff sought remand, arguing that Jones Act and general maritime claims are not removable. Wells, 2013 WL 3110322 at *1.
In response to the plaintiff’s motion to remand, the defendants asserted that 28 U.S.C. § 1441 as amended allowed removal if there was original jurisdiction and no other statutory bar to removal. The defendants argued that there was original jurisdiction under the Outer Continental Shelf Lands Act (“OSCLA”), and that “even if the claims [were] general maritime claims, they are removable under the amended version of the removal statute.” Wells, 2013 WL 3110322 at *1.
Judge Rosenthal denied the motion to remand as to the platform’s owner and operator, holding that because “the Ryan court’s analysis of the effect of the amended version of the removal statute is consistent with the case law analyzed,” the plaintiff’s claims against the platform’s owner and opera- tor were removable whether they fell under OSCLA or were general maritime law claims. Wells, 2013 WL 3110322 at *3. However, Judge Rosenthal severed and remanded the plaintiff’s Jones Act claims against his employer based on the statutory bar to removal of Jones Act claims under 46 U.S.C.App. § 30104 and 28 U.S.C. § 1445(a). Id.
It is important to recognize that these opinions are still new and have not been subjected to appellate review. However, Judge Miller and Judge Rosenthal are very well-respected jurists with extensive experience handling maritime cases, and the reasoning in their decisions appears sound. Ryan and Wells mark a potential sea change in venue for admiralty and maritime cases and provide maritime practitioners with a new argument for removing cases involving general maritime law claims.