Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fleming v. New Orleans Cold Storage and Warehouse Co., Ltd.

United States District Court, E.D. Louisiana

June 13, 2018

NOEL FLEMING, ET AL.
v.
NEW ORLEANS COLD STORAGE AND WAREHOUSE COMPANY, LTD., AND SEAONUS STEVEDORING - NEW ORLEANS, L.L.C

         SECTION: "S" (1)

          ORDER AND REASONS

          MARY ANN VIAL LEMMON UNITED STATES DISTRICT JUDGE.

         IT 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.

         IT IS FURTHER ORDERED that Plaintiff's request for attorneys' fees and costs is DENIED.

         BACKGROUND

         This 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.

         Fleming, 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.

         Fleming 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.[1]

         ANALYSIS

         I. Legal Standard for Remand

         Motions 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).

         In 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).

         II. Removability of General Maritime Law Claims

         Seaonus 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.