28 U.S.C. §1333 - The Shirt of Nessus that May Bring Down Hercules?

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28 U.S.C. §1333 - THE SHIRT OF NESSUS THAT MAY BRING DOWN HERCULES?

As detailed in numerous prior posts (most recently regarding the Coronel decision), a series of decisions allowing removal of general maritime law (GML) claims by seamen, even when combined with otherwise statutorily non-removable Jones Act claims, has been developing among the district courts within the Fifth Circuit. While Coronel provided the first backlash against this historic, albeit nascent, shift in admiralty practice, the Coronel analysis was rather complex and esoteric. 

Interestingly, however, three days before Coronel was issued, a judge within the Eastern District of Louisiana likewise rejected the groundswell of decisions from sister district courts that have allowed removal of GML claims under the amended provisions of 28 U.S.C. §1441 under the analysis in Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013).

Specifically, the court in Barry v. Shell Oil Co., 2014 WL 775662 (E.D. La. Feb. 25, 2014) (Zainey, J.), granted a maritime plaintiff's motion for remand after the non-diverse defendant removed the plaintiff's state court suit - which demanded a jury - to federal court under the Hercules line of cases. The plaintiff argued in support of remand that such removal was prohibited under the "saving to suitors" clause of 28 U.S.C. §1333.

The Barry court recognized the Hercules line of cases, but then reconsidered on its own the plain language of the amended version of §1441 and the "savings to suitors" clause of §1333.  Specifically, §1441(a) provides as follows:

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.

In turn, §1333 provides in pertinent part that "[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of. . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 

Based on these two provisions, the Barry court granted the plaintiff's motion to remand based on the following incremental analysis:

  • §1441(a) (as it did in its previous iteration) cross-references other "Act[s] of Congress";
  • §1333 is another "Act of Congress" that saves to suitors all common law remedies;
  • the maritime plaintiff in Barry demanded a jury in his state court petition, thus invoking the "saving to suitors" clause of §1333 insofar as the right to a jury trial only exists in claims at law, not in admiralty;
  • thus, "since the removal of [the p]laintiff's claim solely on the basis of admiralty jurisdiction would deprive him of the right to pursue his nonmaritime remedy of a jury trial, the saving to suitors clause under these circumstances prohibit[ed] the removal of th[e] action. Barry, 2014 WL 775662 at *3.

"In sum," the Barry court held that "the saving to suitors clause, found in § 1333, is an Act of Congress that prohibits the removal of the general maritime claims in this case, pursuant to § 1441(a)" - thus presenting an arguably independent statutory basis for nullifying the result of the Hercules line of cases.

To be sure, the Hercules decision squarely considered the "saving to suitors" clause in its analysis, and rejected any relevance of the clause to the issue presented by the newly amended version of §1441(a). Indeed, Hercules noted that the "saving to suitors" clause had never been the basis for non-removability of maritime claims under the old Romero/Dutile rule: "[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." Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772, 774 (S.D. Tex. 2013). Moreover, the Barry court did not address whether the result would have been different if the plaintiff had not demanded a jury in his state court lawsuit.

Nonetheless, the argument/analysis by Barry court was apparently not put squarely before the court in Hercules or any of its progeny. In any event, Barry, along with Coronel, have provided dissenting voices on the issue of removability of GML claims, as this line of jurisprudence makes its way steadily toward an inevitable trip to the Fifth Circuit or perhaps even the Supreme Court.

 

Topics:  Jones Act, Shipyard Industry

Published In: Civil Procedure Updates, Maritime Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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