A recent amendment to the widely-utilized removal statute, 28 U.S.C § 1441, now allows for removal of a general maritime law claim to federal court absent diversity of citizenship between the parties. And, the amendment doesn’t stop there- even with the inclusion of a Jones Act claim [statutorily non-removable thanks to 46 U.S.C. § 30104 and 28 U.S.C. § 1445(a)], a general maritime claim can now proceed to be heard in a federal court.
Prior to January 1, 2012, the removal statute only allowed for removal of a general maritime claim if diversity of citizenship was present between the parties. As it was written, the statute permitted removal of claims over which the district court had original jurisdiction,1 except as otherwise expressly provided by Act of Congress.” Such an Act was found in Section (b) of the statute, which limited removal to claims “founded on a claim or right under the Constitution, treaties or laws of the United States.” 28 U.S.C. § 1441(b) (West 2006). Though district courts historically have had original jurisdiction over general maritime law claims, such claims were not founded on a claim or right under the Constitution, treaties, or laws of the United States. They were, therefore, ineligible for removal pursuant to the statute, unless there was an independent basis for removal, such as diversity of citizenship.
Cue the amendment to 28 U.S.C § 1441. Congress removed the limitation provision which permitted removal only for claims “founded on a claim or right under the Constitution, treaties or laws of the United States. The only remaining limitation placed on removal was the criterion in Section (a) requiring the removed claim to be one which the district court had original jurisdiction, which according to 28 U.S.C. § 1333, includes any civil action of admiralty or maritime jurisdiction. So whether it was intentional or not, the amendment eliminated the statutory barrier to removal of general maritime law claims that didn’t have parties with diverse citizenship.
Courts within the purview of the 5th Circuit have already embraced the possibilities associated with the amendment. For instance, in the leading case of Ryan v. Hercules Offshore, Inc., 2013 WL 1967315 (S.D. Tex. May 13, 2013), Judge Miller allowed for, and agreed with, removal of the plaintiff’s general maritime law negligence claims based specifically on the amendment’s unambiguous language. His ruling has been followed by a growing line of cases, including Wells v. Abe’s Boat Rentals, Inc., 2013 U.S. Dist. LEXIS 85534 (S.D. Tex. June 18, 2013), which permitted removal of a general maritime law claim despite the inclusion of a non-removable Jones Act claim. The District Court for the Southern District of Texas was careful to instruct, however, that after removal, the district court “shall sever [the non-removable claims] and shall remand the severed claims to the State court from which the action was removed.” See also Bridges v. Phillips 66 Co., 2013 U.S. Dist. LEXIS 164146 (M.D. La. Nov. 18, 2013).
Despite the recent cases and decisions stemming from Texas and Louisiana courts, the amendment still stands vulnerable to interpretation. For now, however, one can safely and confidently pursue removal of general maritime claims, even in the presence of non-removable Jones Act claims.
1 Under 28 U.S.C. § 1333, district courts “have original jurisdiction, exclusive of the courts of the States, of . . . any civil action of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are entitled.”