United States District Court, E.D. Louisiana
NOEL FLEMING, ET AL.
NEW ORLEANS COLD STORAGE AND WAREHOUSE COMPANY, LTD., AND SEAONUS STEVEDORING - NEW ORLEANS, L.L.C
ORDER AND REASONS
ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.
IS HEREBY ORDERED that Plaintiff's Motion to
Remand (Doc. #7) is GRANTED, and this matter
is REMANDED to the Civil District Court,
Parish of Orleans, State of Louisiana.
IS FURTHER ORDERED that Plaintiff's request for
attorneys' fees and costs is DENIED.
matter is before the court on a motion to remand filed by
plaintiff, Noel Fleming, individually and on behalf of her
deceased husband, Darel Fleming, and her minor children:
Dai'ja Williams; Dajon'te Lowe; Darel Fleming, Jr.;
Dijon Williams, Jr.; Jas'lynn Fleming; Juelz Lowe; and,
Ju'liyah Fleming. Fleming argues that defendant, Seaonus
Stevedoring - New Orleans, LLC, improperly removed this
action to the United States District Court for the Eastern
District of Louisiana, and that it should be remanded to the
Civil District Court, Parish of Orleans, State of Louisiana,
where it was originally filed.
who is a citizen of Louisiana, filed this actions seeking
damages for her husband's death. Fleming alleges that on
August 18, 2017, her husband, Darel Fleming was employed by
EmployUS as a laborer and working at a dock owned and/or
operated by defendant New Orleans Cold Storage and Warehouse
Company, Ltd. While Darel was working alongside employees of
Seaonus, he was crushed when cargo fell from a crane. Darel
died as a result of his injuries.
filed this suit against defendants in the Civil District
Court, Parish of Orleans, State of Louisiana alleging
negligence claims and requesting a jury trial. Seaonus
removed this action to the United States District Court for
the Eastern District of Louisiana alleging subject matter
jurisdiction under 28 U.S.C. § 1333. Seaonus contends
that this case arises under the court's admiralty
jurisdiction because the crane that allegedly dropped the
cargo was part of a vessel's permanently affixed gear.
Seaonus argues that claims arising under § 1333 are now
removable due to the 2011 Amendments to 28 U.S.C. §
1441. Fleming filed the instant motion to remand arguing
that, although the United States Court of Appeals for the
Fifth Circuit has not ruled on this issue, this court and
others in this district have consistently held that the 2011
Amendments to § 1441 did not make claims arising under
§ 1333 removable.
Legal Standard for Remand
to remand to state court are governed by 28 U.S.C. §
1447(c), which provides that “[i]f at any time before
the final judgment it appears that the district court lacks
subject matter jurisdiction, the case shall be
remanded.” The removing defendant bears the burden of
demonstrating that federal jurisdiction exists and therefore
that removal was proper. Jernigan v. Ashland Oil,
Inc., 989 F.2d 812, 815 (5th Cir. 1993).
assessing whether removal is appropriate, the court is guided
by the principle, grounded in notions of comity and the
recognition that federal courts are courts of limited
jurisdiction, that removal statutes should be strictly
construed. See Manguno v. Prudential Prop. & Cas.
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Doubts
regarding whether federal jurisdiction is proper should be
resolved against federal jurisdiction. Acuna v. Brown
& Root, 200 F.3d 335, 339 (5th Cir. 2000).
Removability of General Maritime Law Claims
argues that general maritime law claims, over which the
federal court has original jurisdiction under 28 U.S.C.
§ 1333, but are traditionally non-removable, are now
removable due to ...