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Bartel v. American Export Isbrandtsen

United States District Court, M.D. Louisiana

November 6, 2014

WILLIAM E. BARTEL, as personal representative of the ESTATE OF JOSEPH L. DENNIS,
v.
AMERICAN EXPORT ISBRANDTSEN, ET AL No. 14-261-JJB-RLB

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

RICHARD L. BOURGEOIS, Jr., Magistrate Judge.

Before the Court is a consolidated action in which two separate defendants have removed the same action filed in state court pursuant to two different removal statutes: 28 U.S.C. § 1441 and 28 U.S.C. § 1442. The Court has consolidated these actions for adjudication. Plaintiff has filed two Motions to Remand respectively addressing each basis for removal. (R. Docs. 18, 19).[1] Both of these motions are opposed. (R. Docs. 29, 30, 31, 32). Based on the record and the applicable law as set forth below, Plaintiff's motions should be granted and the action should be remanded to state court.

I. BACKGROUND

William E. Bartel (Plaintiff), personal representative of the Estate of Joseph L. Dennis (Decedent), filed the underlying state court action on March 12, 2014 in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana. (Petition, R. Doc. 1-1). Plaintiff alleges that between 1951 and 1993, Decedent was employed by the following Defendants: American Export Isbrandtsen; Farrell Lines Incorporated f/k/a American South African Lines, on its own behalf and as successor in interest to American Export Lines, Inc. f/k/a American Export Isbrandtsen Lines, Inc. incorrectly named American Export Isbrandtsen; American Export Lines, Inc.; American President Lines Ltd.; American Trading & Production Corporation; American Trading Transp. Co.; Central Gulf Lines, Inc.; Chas. Kurz & Company; Eastern Gas & Fuel; Farrell Lines Inc.; Hess Oil & Chem Corp.; Mathiasen Tanker Ind. Inc.; and Trinidad Corporation. (Petition, ¶¶ 2, 7-19). Plaintiff alleges that Decedent contracted and died of lung cancer as a result of asbestos exposure while working on vessels owned or operated by Defendants. (Petition, ¶¶ 20-33). Plaintiff brings causes of action for recovery against Defendants under both the Jones Act, 46 U.S.C. § 30104 (Petition, ¶¶ 34-35), and general maritime law (Petition, ¶¶ 36-40). Plaintiff alleges that Defendants failed to warn Decedent of the presence of, and dangers associated with, asbestos on those vessels, failed to provide him with a safe workplace, and failed to provide adequate training, supervision, and protective equipment to Decedent and the other crewmembers for the handling of asbestos and asbestos-containing products. (Petition, ¶¶ 34, 38, 39). Plaintiff did not demand a jury trial.

Mathiasen's Tanker Industries, Inc. (Mathiasen)[2] filed a Notice of Removal on April 28, 2014. (R. Doc. 1). Mathiasen alleges that the Court has jurisdiction over the Plaintiff's action pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1).[3] Mathiasen alleges that while he was its employee between August 31, 1971 and October 7, 1971, Decedent worked on one vessel that Mathiasen operated for the U.S. Navy, Military Sealift Command ("MSC"): the USNS MILLICOMA. (R. Doc. 1 at 3). Mathiasen attached a copy of the U.S. Maritime Administration's Vessel Status Card for this vessel providing that title to the vessel was transferred to the U.S. Navy on February 12, 1948. (R. Doc. 1-2).

Hess Corporation as successor in interest to Hess Oil & Chemical Corporation (Hess) filed a Notice of Removal on April 30, 2014.[4] The remaining served Defendants consented to the removal. ( Bartel II, R. Doc. 2).[5] Hess alleges that the Court has subject matter jurisdiction over Plaintiff's claims under the admiralty jurisdiction statute, 28 U.S.C. § 1333(1) (saving to suitors clause), and that removal is proper pursuant to 28 U.S.C. § 1441 (removal of civil actions).

On May 28, 2014, Plaintiff filed both of his motions to remand this action to state court. (R. Doc. 18, 19). Plaintiff asserts that removal is improper because (1) his Jones Act claims are non-removable pursuant to 28 U.S.C. § 1445(a), (2) his general maritime law claims are non-removable pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333(1), and (3) Mathiasen cannot establish the "causal nexus" requirement for removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442.

II. ARGUMENTS OF THE PARTIES

A. Removal Pursuant to 28 U.S.C. § 1441

Plaintiff's primary argument for remand of the removal made pursuant to 28 U.S.C. § 1441 is that his Jones Act claims are made non-removable pursuant to 28 U.S.C. § 1445(a). (R. Doc. 19-1 at 2). Plaintiff argues that because his general maritime claims arise out of the same operative facts as his Jones Act claims, the entire action is non-removable. (R. Doc. 19-1 at 3-4). Plaintiff further argues that nothing in the 2011 amendments to 28 U.S.C. § 1441 permits the court to exercise removal jurisdiction under his general maritime claims, while severing and remanding his Jones Act claims. (R. Doc. 19-1 at 4-5).

Plaintiff also argues that his general maritime claims are not removable to federal court. (R. Doc. 19-1 at 5-9). Plaintiff argues that the "saving to suitors" clause in the admiralty jurisdiction statute is the historical basis for non-removability of general maritime claims. (R. Doc. 19-1 at 5-9). Accordingly, despite decisions holding otherwise by this court, the 2011 amendments to 28 U.S.C. § 1441 did not make general maritime claims removable. (R. Doc. 19-1 at 5-9).

Several Defendants filed an Opposition arguing that in light of the 2011 amendments to 28 U.S.C. § 1441, this Court has held that general maritime claims are removable and the assertion of Jones Act claims does not prevent the removal of actions in which general maritime claims are alleged. (R. Doc. 30 at 3-6). These same arguments are raised, in more detail, in the Opposition separately filed by Hess. (R. Doc. 31). Hess further argues that if the Jones Act claims cannot be removed, then they should be severed and remanded pursuant to either 28 U.S.C. § 1441(c) or Rule 21 of the Federal Rules of Civil Procedure. (R. Doc. 31 at 10). Defendants do not argue, however, that the Plaintiff has fraudulently pled the Jones Act claims or has otherwise waived any challenges to the removal of the Jones Act claims.

B. Removal Pursuant to 28 U.S.C. § 1442

Plaintiff argues that because his Jones Act claims are made non-removable pursuant to 28 U.S.C. § 1445(a), removal is improper pursuant to the federal officer removal statute, 28 U.S.C. § 1442. (R. Doc. 18-1 at 3-4). Plaintiff further argues that removal is also improper pursuant to 28 U.S.C. § 1442 because the Defendants cannot demonstrate that they have acted under the direction of a federal officer acting under "color of office" or that there is a "causal nexus" between acts committed under federal direction and the substance of the plaintiff's claims. (R. Doc. 18-1 at 2, 5).

Mathiasen filed an Opposition[6] acknowledging the "Plaintiff's argument as to Jones Act non-removability does bring into focus a tension between 28 U.S.C. § 1442 and 28 U.S.C. § 1445(a)." (R. Doc. 29 at 2). Mathiasen nevertheless asserts that removal is proper pursuant to 28 U.S.C. § 1442(a)(1). Mathiasen argues that all of the requirements for federal officer removal are satisfied, namely that (1) it is a "person" for purposes of removal; (2) it was acting "under color of federal authority" at the time of the alleged tort; (3) it has a colorable federal defense; and (4) there is a "causal nexus" between the alleged tort and the governmental responsibilities assumed by the officer or agent at issue. (R. Doc. 29 at 3-9). Mathiasen does not argue, however, that Plaintiff has fraudulently pled the Jones Act claims or has otherwise waived any challenges to the removal of the Jones Act claims.

In a separately filed Opposition, Hess further argues that that there is case law suggesting that an action may be removed pursuant to § 1442 despite the presence of non-removable claims. (R. Doc. 32 at 4). Hess also argues that if the Jones Act claims cannot be removed, then they should be severed and remanded pursuant to either 28 U.S.C. § 1441(c) or Rule 21 of the Federal Rules of Civil Procedure. (R. Doc. 32 at 4).

III. LAW AND ANALYSIS

A. Removal Jurisdiction Pursuant to 28 U.S.C. §§ 1441 and 1333

It is well settled that when faced with a motion to remand the removing party bears the burden of establishing the facts necessary to show that federal jurisdiction exists. Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995). 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). Any doubts regarding whether removal jurisdiction is proper should be resolved against federal jurisdiction. Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000).

The Jones Act, 46 U.S.C. § 30104, provides a cause of action in negligence for a seaman who is injured in the course of his employment.[7] See Pate v. Standard Dredging Corp., 193 F.2d 498, 501 (5th Cir. 1952) (The Jones Act "modified the prior maritime law of the United States by giving to seamen injured through negligence a right of action in personam against the employer."). The Act incorporates the federal laws regulating recovery for personal injury to railway employees - the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. See 46 U.S.C. § 30104. Therefore, Jones Act claims are non-removable pursuant to 28 U.S.C. § 1445(a).[8] See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001) (28 U.S.C. § 1445(a) prevents removal of claims under the Jones Act even in the presence of diversity jurisdiction); Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993) ("It is axiomatic that Jones Act suits may not be removed from state court" because the Jones Act "incorporates the general provisions of [FELA], including 28 U.S.C. § 1445(a).").

Because Plaintiff alleges causes of action under both the Jones Act and general maritime law, the Court must determine whether his general maritime claim under § 1333(1) is removable under the current version of § 1441(c) when joined with his properly pled Jones Act claim. Section 1441(c) provides that actions involving both federal question claims and claims made non-removable by ...


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