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AUERBACH v. TOW BOAT U.S.

January 14, 2004.

RICHARD T. AUERBACH, Plaintiff,
v.
TOW BOAT U.S., et al., Defendants



The opinion of the court was delivered by: MARY COOPER, District Judge

MEMORANDUM OPINION

This is an action to recover damages for breach of contract and negligent provision of towing services. The defendants are Tow Boat U.S., d/b/a Miller's Towing & Salvage, t/n Miller's Towing & Salvage ("MTS"), and Boat U.S. ("BUS"). MTS and BUS removed this action from state court to this Court based on the jurisdiction of the federal courts in admiralty cases. See 28 U.S.C. § 1333. The plaintiff, Richard T. Auerbach, moves to remand the action under the saving-to-suitors clause contained in 28 U.S.C. § ("Section") 1333(1) and for an award of costs and expenses incurred due to the removal. See 28 U.S.C. § 1447. The Page 2 Court will grant only the part of the motion seeking remand.*fn1

BACKGROUND

  BUS, a Virginia "resident," is an organization for boating enthusiasts. (Notice of Removal at 2; Mercante Decl., Ex. 2, Towing-Service Contract ("Contr.").) BUS provided Auerbach — a New Jersey resident, BUS member, and twenty-foot-motor-boat owner — with "Tow Boat U.S. Service," which entitled him to

 
on-the-water assistance; commercial towing of your disabled boat from the point of breakdown at sea to your port of choice; battery jump starts or fuel delivery at sea; [and] ungrounding assistance for a soft grounding.
(Id.; Compl. at 1.) This service, however, did not apply to "salvage, including hard groundings." (Contr.) BUS licensed private towing companies — including MTS, a New Jersey resident — to serve its members. (Id.; Mercante Decl., Ex. 1, Schneider Decl.; Notice of Removal at 2.)

  Auerbach brought this action to recover damages for breach of contract and negligent provision of towing services against MTS and BUS in New Jersey Superior Court, Monmouth County. (Pl. Br. at 2; Compl.) He alleges that (1) on August 2, 2002, he requested a tow for his disabled boat in Sandy Hook Bay, but MTS refused to tow it unless he paid a salvage fee; (2) on August 3, Page 3 he again requested a tow, MTS sent an inadequate boat, and MTS did not return with a different boat; (3) on August 4, he again requested a tow "to no avail;" and (4) soon thereafter, the boat "was destroyed and became a `total loss.'" (Id. at 2.) He seeks to recover damages in the amount of $9,500. (Id. at 3.)

  MTS and BUS removed the action to this Court under Sections 1441(a) and 1333. They alleged that jurisdiction

 
is conferred on this Court by [Section] 1333, which provides that the district courts shall have original jurisdiction of any civil case of admiralty or maritime jurisdiction. [Auerbach's] allegations comprise a maritime claim within the admiralty jurisdiction of this Court. Further Defendants are entitled to exoneration from or limitation of liability pursuant to [the Limitation of Vessel Owner's Liability Act ("LOVOLA"),] 46 U.S.C. § 181 et seq. with regard to [his] claims.
(Notice of Removal at 2.)

  Auerbach moves to remand the action. He argues that (1) MTS and BUS fail to specify the applicable section of LOVOLA, (2) in any event, LOVOLA applies to shipping and carriage of goods by sea, which is not involved here, and (3) he is entitled to bring and keep an admiralty action in state court under the saving-to-suitors clause contained in Section 1333(1). (Pl. Br. at 1-3.) He also moves to recover costs and expenses, arguing that MTS and BUS "sought removal as an unfair litigation tactic in a small case." (Id. at 4.)

  MTS and BUS oppose the motion, arguing that (1) the boat required salvage service, (2) salvage matters are within the Page 4 exclusive jurisdiction of federal courts and, thus, not subject to the saving-to-suitors clause, and (3) Auerbach is not entitled to recover costs and expenses. (Def. Br. at 2-4.) MTS and BUS fail to address the applicability of LOVOLA in their brief.

  DISCUSSION

 I. Section 1333(1)

  The motion to remand, as it involves the removal of an admiralty action, "presents several thorny procedural and jurisdictional questions." Dao v. Knightsbridge Int'l Reins. Corp., 15 F. Supp.2d 567, 568 (D.N.J. 1998). Here, MTS and BUS seek removal under Section 1441(a):
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 . . . defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
But this must be read in conjunction with Section 1441(b):
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
The relevant statute providing jurisdiction over admiralty actions states:

  The district courts shall have original jurisdiction, Page 5 exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases ...


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