Opinion
CIVIL ACTION NO: 01-1726; SECTION: "D"(5).
July 11, 2001
Before the court is the "Motion to Remand" filed by Plaintiff, David Rideau. Defendant, Hendry Corporation, filed a memorandum in opposition. The motion, set for hearing on Wednesday, July 11, 2001, is before the court on briefs, without oral argument.
Having reviewed the memoranda of counsel and the applicable law, the court finds that the motion should be granted. In this matter, Plaintiff (a Louisiana citizen) initially filed suit in state court against Hendry Corporation (a Florida corporation), under the "saving to suitors" clause of 28 U.S.C. § 1333, alleging claims under the Jones Act and general maritime law. Defendant removed the matter to this court on the basis of diversity jurisdiction.
In his Motion to Remand, Plaintiff argues that diversity does not render his Jones Act claim removable. Defendant agrees, but argues that diversity does render Plaintiff's claim asserted under general maritime law removable. Defendant further submits that the court should exercise its discretion to hear all of the claims asserted by Plaintiff under 28 U.S.C. § 1441(c) which provides:
See also 46 U.S.C. § 688 incorporating 28 U.S.C. § 1445(a).
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.
Alternatively, Defendant suggests that the "inherent conflict" between 28 U.S.C. § 1441(c) and 28 U.S.C. § 1445(a) (which provides in this context that a Jones Act claim filed in state court may not be removed to federal court) should first be resolved by the Fifth Circuit. (Defendant's Memo. at 3). In Re Dutile, 935 F.2d 61 (5thCir. 1991), the Fifth Circuit remanded the Plaintiff's general maritime claim, which had been joined with a Jones Act claim. While the Dutile court recognized the "potential conflict" between § 1445(a) and § 1441(c), it did not need to resolve such a conflict because the court found that Plaintiff's general maritime claim could not be removed if sued upon alone since the case was removed by non-forum defendants and there was lack of diversity. Id. at 63.
Here, the matter was removed by a non-forum defendant and there is complete diversity between Plaintiff and Defendant. Thus, the question before this court is whether the case was properly removed to this court under § 1441(c) — in other words, is the entire case removable even though Plaintiff's general maritime claim (which would be removable if sued upon alone) is joined with a non-removable Jones Act claim? The answer is "no" because Plaintiff's general maritime claim is not a "separate and independent claim" from Plaintiff's Jones Act claim within the meaning of 28 U.S.C. § 1441(c). Both claims involve "substantially the same facts" and "arise from an interlocking series of transactions". Addison v. Gulf Coast Contracting Services, Inc., 744 F.2d 494, 500 (5th Cir. 1984), American Fire Cas. Co. v. Finn, 341 U.S. 6, 14, 16, 71 S.Ct. 534, 540, 541, 95 L.Ed. 702 (1951). Thus, "there is but a single wrongful invasion of a single primary right." Pate v. Standard Dredging Corp., 193 F.2d 498, 501 (5th Cir. 1952).
In holding that a maintenance and cure claim is not separate and independent from a Jones Act claim, the Fifth Circuit was bolstered by four considerations, three of which are relevant here. Addison, 744 F.2d at 500-01. First, the court noted that in 1948, Congress added the word "independent" to § 1441(c), giving emphasis to its intention to require fairly complete disassociation between the claims. Second, Congress intended that seamen have the choice of a state court or federal court forum in Jones Act cases and removal by virtue of another claim would seriously limit a seaman's right to elect his forum. Third, unlike a typical § 1441(c) case in which a removable claim is joined with a claim that lacks federal jurisdiction, "the removable claim is joined with a federal claim that Congress prefers to leave in state court if that is where a plaintiff has filed it." Id.
See also, Thibodeaux v. Southern Natural Gas Co., 1993 139520 (E.D.La. 1993)(Livaudais, J.) (remanding case in which Plaintiff asserted claims under the Jones Act, general maritime law and the Outer Continental Shelf Lands Act, and which Defendant removed to federal court based on diversity); In Re Waterman Steamship Corp., 1992 WL 124819 (E.D.La. 1992) (Sear, J.) (remanding case because Plaintiff's claims asserted under the Death of the High Seas Act were not "separate and independent" claims from Plaintiff's Jones Act claims).
Accordingly;
IT IS ORDERED that Plaintiff's "Motion to Remand" be and is hereby GRANTED, as Plaintiff's claim brought under the general maritime law is not a "separate and independent" claim from the his Jones Act claim within the meaning of § 1441(c).