United States District Court, W.D. Louisiana, Lake Charles Division
REPORT AND RECOMMENDATION
KAREN L. HAYES, Magistrate Judge.
Before the undersigned magistrate judge, on reference from the District Court, is a motion to remand [doc. # 36] filed by plaintiff Richard Serigny. The motion is opposed. For reasons stated below, it is recommended that the motion be GRANTED.
On December 20, 2013, Louisiana domiciliary, Richard Serigny, filed the instant "Seaman's Petition for Damages" against eleven defendants in the 14th Judicial District Court for the Parish of Calcasieu, State of Louisiana. Plaintiff grouped the parties into two categories: 1) the Jones Act employer-defendants comprised of Eymard Real Estate Corporation and United Tugs, Inc. (both Louisiana corporations); and 2) the Product/Premises defendants, consisting of some nine oil companies, Chevron Chemical Company, L.L.C.; Chevron U.S.A., Inc.; ConocoPhillips Company; ExxonMobil Oil Corporation; Huntsman Petrochemical L.L.C.; Murphy Oil USA, Inc.; Shell Chemical LP; Shell Oil Company; and Union Oil Company of California.
Plaintiff alleges that defendants, collectively, exposed him to benzene and benzenecontaining products while he was employed as a seaman aboard various vessels thirty-plus years ago, between 1962 and 1976. As a result, he developed multiple myeloma. Plaintiff seeks recovery via the Jones Act, 46 U.S.C. § 30104, and general maritime law pursuant to the "saving to suitors" clause of 28 U.S.C. § 1333. He did not demand a jury trial.
On March 20, 2014, ConocoPhillips Company ("ConocoPhillips") and ExxonMobil Oil Corporation ("ExxonMobil") removed the matter to federal court on the twin grounds of federal question and admiralty/maritime jurisdiction. 28 U.S.C. §§ 1331 & 1333. On April 17, 2014, plaintiff timely filed the instant motion to remand the case to state court on the basis of improper removal, i.e., the absence of removal jurisdiction. Defendants filed opposition memoranda on May 7 and 8. [doc. #s 39-44]. Plaintiff filed multiple replies and supplemental replies from May 12 through August 1, 2014. [doc. #s 45-46, 49, 52, 57]. Briefing is now complete; the matter long since ripe.
Law and Analysis
It is axiomatic that federal courts are courts of limited jurisdiction, and possess solely that authority conferred by the Constitution and statute, which cannot be expanded by judicial decree. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 1675 (1994) (citation omitted). Thus, a case is presumed to lie outside the federal courts' limited jurisdiction, until the party invoking the federal forum is able to demonstrate the contrary. Id. Further, "[t]he right to remove a case from state to federal court derives solely from the statutory grant of jurisdiction in 28 U.S.C. § 1441..." Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citation omitted). "[B]ecause the effect of removal is to deprive the state court of an action properly before it, removal raises significant federalism concerns, which mandate strict construction of the removal statute." Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d 362, 365-66 (5th Cir. 1995) (citations omitted).
Here, it is manifest that plaintiff's claims under the general maritime law and the Jones Act confer original subject matter jurisdiction,  and thus, plaintiff could have filed suit initially in federal court had he so elected. Instead, plaintiff exercised his option to prosecute his claims in state court. Therein lies the difficulty for defendants, however, because, generally, neither Jones Act cases,  nor "[g]eneral maritime claims saved to suitors" are removable to federal court. In other words, federal courts generally cannot exercise removal jurisdiction over Jones Act cases and/or maritime claims subject to the savings to suitors clause. Williams, 985 F.2d at n.7 (maritime claims saved to suitors); see Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116, 117 (5th Cir. 1987) (en banc) (Jones Act). The cognizable exceptions are limited.
a) General Maritime Law
A general maritime law claim, brought in state court under the savings to suitors clause, may be removed where there is some basis for original federal jurisdiction other than admiralty, such as diversity of citizenship or a statute. Fields, 182 F.3d at n.1. (citations omitted). Indeed,
[t]he "saving to suitors" clause does no more than preserve the right of maritime suitors to pursue nonmaritime remedies. It does not guarantee them a nonfederal forum, or limit the right of defendants to remove such actions to federal court where there exists some basis for federal jurisdiction other than admiralty.
Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996) (citing Poirrier v. Nicklos Drilling Co., 648 F.2d 1063, 1066 (5th Cir.1981) (emphasis in bold added).
Citing such district court decisions as Harrold v. Liberty Insurance Underwriters, Inc.,  and Ryan v. Hercules Offshore, Inc.,  removing defendants argue that, via the recent passage of the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("JVCA"), Congress altered the removal statute to foster liberal removal of general maritime law claims to federal court. This argument is premised upon language from In Re Dutile in which the Fifth Circuit cited Romero v. International Terminal Operating Co., supra, and the second sentence of former § 1441(b) to conclude that "admiralty and maritime claims may be ...