Opinion
Civil Action No. 02-2729
June 12, 2002
ORDER-MEMORANDUM
AND NOW, this 12th day of June, 2002, the motion to remand this action to the Philadelphia Court of Common Pleas is granted. The motion for costs and expenses is denied.
This case arises out of a boating accident in the Delaware River in which plaintiff's foot was injured. Cmplt. ¶ 9-13. On April 10, 2002, plaintiff commenced the action in the Philadelphia Court of Common Pleas. On May 7, 2002 defendants filed a notice of removal. On May 30, 2002, plaintiff moved to remand on the ground that the state court is competent to adjudicate this in personam action.[2]
[2] " "
Admiralty jurisdiction is exclusive only as to proceedings in rem. In addition, the "saving to suitors" clause has been held to inhibit "removal of maritime actions brought in the state court and invoking a state law remedy, provided there is no independent basis for removal." Inasmuch as there is no diversity of citizenship, or other basis for jurisdiction, removal is improper here. To allow this action to be removed would be to deprive plaintiff of "the historical option of a maritime suitor pursuing a common-law remedy to select his forum, state or federal."8 Accordingly, the motion to remand must be granted.
Madruga v. Superior Ct. of CA, 346 U.S. 556, 560 (1954); Sipe v. Amerada Hess Corp., 689 F.2d 396, 405 (3d Cir. 1982) (relying on Madruga to find that New Jersey state court could properly assert concurrent jurisdiction over in personam claims arising in admiralty because of "saving to suitors" clause); Crowley American Transport, Inc. v. Bryan, 143 F. Supp.2d 530, 531 (D.V.I. 2001).
28 U.S.C. § 1333(1): "[D]istrict 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 there are otherwise entitled."
See In re Chimenti 79 F.3d 534, 537 (6th Cir. 1996); Servis v. Hiller Sys., Inc., 54 F.3d 203, 206-07 (4th Cir. 1995); Linton v. Great Lakes Dredge Dock Co., 964 F.2d 1480, 1488 (5th Cir. 1992); Thomas J. Shoenbaum, Admiralty and Maritime Law, § 4-5 at 163 (3d ed., 2001) (stating that saving clause cases properly filed in state court cannot be removed unless admiralty jurisdiction is exclusive).
Defendants object on the ground that our court of appeals has not applied the Madruga rule. They also cite Calhoun v. Yamaha Motor Corp., 216 F.3d 338 (3d Cir. 2000)[7]
[7] 216 F.3d 338, 344 (3d Cir. 2000).
Plaintiff also moves for costs and expenses under 28 U.S.C. § 1447(c). However, defendants' motion for removal was not frivolous or insubstantial.9 For this reason, the request for costs and expenses will be denied.