United States District Court, D. New Jersey
January 14, 2004.
RICHARD T. AUERBACH, Plaintiff,
TOW BOAT U.S., et al., Defendants
The opinion of the court was delivered by: MARY COOPER, District Judge
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
Court will grant only the part of the motion seeking remand.*fn1
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,
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
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.
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
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
The district courts shall have original
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
28 U.S.C. § 1333(1) (emphasis added). The "plain meaning of
this language is by no means an intuitive matter." In re
Chimenti, 79 F.3d 534, 537 (6th Cir. 1996) (discussing Section
1333(1)). The emphasized language, known as the saving-to-suitors clause,
has the following effect on the removability of an admiralty action:
Admiralty excepts a class of cases from the
general rule that cases which could originally
have been filed in federal court are removable to
federal court at the option of the defendant.
Common law maritime cases filed in state court are
not removable to federal court, due to [the]
"saving to suitors" clause. Dating back to the
Judiciary Act of 1789, this clause preserves a
plaintiff's right to a state court forum in cases
arising under the common law of the sea.
Pierpoint v. Barnes, 94 F.3d 813, 816 (2d Cir. 1996);
accord Super. Fish Co. v. Royal Globe Ins. Co., 521 F. Supp. 437,
441 (E.D. Pa. 1981). Thus, an admiralty claim does not arise under
the federal constitution, treaties, or laws, and cannot be removed freely
to federal court under Section 1441. Romero v. Int'l Term. Operating
Co., 358 U.S. 354
, 371-72 (1959); U.S. Express Lines v.
Higgins, 281 F.3d 383
, 390 (3d Cir. 2002). It is "the unquestioned
aim" of the saving-to-suitors clause to preserve the concurrent
jurisdiction of state courts in admiralty actions. Romero, 358
U.S. at 372.
A state court's concurrent jurisdiction over an admiralty
action, however, is limited. A state-court plaintiff-the "suitor" can be
"saved" from removal only in an in personam admiralty action. An in
personam action lists a person or an association as the defendant and
seeks to adjudicate the interests of specific parties only. Lewis
v. Lewis & Clark Marine, 531 U.S. 438, 445-46 (2001);
Madruga v. Super. Ct., 346 U.S. 556, 560-61 (1954);
Linton v. Great Lakes Dredge & Dock Co.,
964 F.2d 1480, 1484 n.6 (5th Cir. 1992). In contrast, an in rem proceeding
is within the exclusive jurisdiction of the federal courts. An in
rem proceeding treats a vessel as being the offender, names the vessel
as a defendant, and seeks to adjudicate the interests of the world at
large because the defendant is a res. Madruga, 346 U.S. at
560; Wehr v. Pheley, No. 99-4574, 2000 WL 236438, at *2
(N.D. Cal. Feb. 16, 2000).
A plaintiff also can be saved only if the action is not otherwise
removable. Means v. G&C Towing, 623 F. Supp. 1244, 1245
(S.D. W. Va. 1986) (concerning two-vessel collision); see U.S.
Express Lines, 281 F.3d at 390 (stating admiralty action removable
if independent basis for federal jurisdiction exists). For example, the
saving-to-suitors clause does not bar removal if an action meets the
requirements of Section 1332 and names no citizen of the state where the
action is brought as a defendant. Id.; 28 U.S.C. § 1441(b).
The plaintiff may also be required to object to removal
because the protection afforded by the saving-to-suitors clause may
be waivable. Compare Dao, 15 F. Supp.2d at 571-74 (stating
plaintiff waived protection by not opposing removal), and Morris v.
Princess Cruises, 236 F.3d 1061, 1069 (9th Cir. 2001) (stating
jurisdiction exists where plaintiff seeks no remand, as original
jurisdiction exists in first instance), with Chimenti, 79 F.3d
at 538 (stating state-court choice "could not be disturbed"), J.
Aron & Co. v. Chown, 894 F. Supp. 697, 699-700 (S.D.N.Y. 1995)
(stating state-court commencement is "irrevocable election" that "forever
prevents" removal), and Jenkins v. Moshulu Rest., No. 86-6211,
1986 WL 12945, at *1 (E.D. Pa. Nov. 17, 1986) (remanding action even
though plaintiff did not oppose removal). This is not at issue here
because Auerbach has moved to remand.
The Court, for the following reasons, will grant the part of the motion
A. In Personam
This is an in personam action because it is against two associations
MTS and BUS and not against a vessel. See
Madruga, 346 U.S. at 561 (affirming judgment declaring state court
had jurisdiction in admiralty action; "plaintiffs' quarrel was with their
co-owner, not with the ship"); Bower v. S.S. Mut. Underwriting
Ass'n, No. 02-0669, 2003 WL 1873095, at *2 (E.D. La. Apr. 10, 2003)
(granting motion to remand); O.F. Shearer & Sons
v. Decker, 349 F. Supp. 1214, 1219 (S.D. W. Va. 1972)
(same). Contrary to the contentions of MTS and BUS, this action is an in
personam action subject to the saving-to-suitors clause, even though it
concerns the provision of towing or salvage services. See Sebastian
Tow Boat & Salvage v. Slavens, No. 02-759, 2002 WL 32063121, at
*1-2 (M.D. Fla. Oct. 15, 2002) (granting motion to remand action to
recover payment for salvage of sunken vessel); Carr v. Jetter,
103 F. Supp.2d 1122, 1123-24 (E.D. Wis. 2000) (granting motion to remand
action to recover payment for salvage of grounded boat); GW Contrs.
v. Conticarriers & Terms., Nos. 92-697, 92-224, & 91-2678,
1992 WL 167046, at *1 (E.D. La. June 25, 1992) (noting previous remand of
action for salvage bounty); Harbor Boating Club v. Red Star Towing
& Transp. Co., 179 F. Supp. 755, 756-57 (E.D.N.Y. 1960)
(granting motion to remand action to recover for pier damage caused by
Phillips v. Sea Tow/Sea Spill, 276 Ga. 352 (2003)
relied on by MTS and BUS (see Def. Br. at 3-4) is
inapposite factually. The plaintiff therein sought a marine-salvage
bounty in Georgia state court for the voluntary rescue of a boat. The
Phillips court held that "marine salvage is a remedy that is
within the federal admiralty courts' exclusive subject matter
jurisdiction." Id. at 352. Here, there is neither a claim for a
marine-salvage bounty nor a voluntary rescue. The Court also declines to
follow Phillips to the extent that it may be read to hold that
salvage matters are within the Court's exclusive jurisdiction.
B. Not Otherwise Removable
MTS and BUS, as discussed supra, cannot remove this action
based on the Court's original jurisdiction under Section 1333(1). They
can attempt to rely on other removal grounds only. See U.S. Express
Lines, 281 F.3d at 390. They have not done so in a successful
1. Sections 1332 and 1441(a)-(b)
Section 1441(a) and the second sentence of Section 1441(b) allow the
removal of an action that (1) meets the requirements of Section 1332 and
(2) lists no citizen of the state where the action is brought as a
defendant. See 28 U.S.C. § 1332(a)(1) & 1441(a)-(b).
MTS and BUS do not allege that there is such jurisdiction, and it appears
that they could not do so. First, assuming that Auerbach and MTS are New
Jersey citizens as opposed to mere residents there is no
diversity of citizenship. Second, Auerbach seeks to recover $9,500, which
is less than the threshold amount. Third, MTS appears to be a citizen of
the state where the action was brought, i.e., New Jersey.*fn2
2. Section 1331
Section 1441(a) and the first sentence of Section 1441(b) allow the
free removal of actions that meet the requirements of Section 1331.
See 28 U.S.C. § 1331 & 1441(a)-(b). MTS and BUS rely on
LOVOLA in the notice of removal. See 46 U.S.C. § 181-195.
However, they do not specify in the notice if they rely on LOVOLA as a
basis for the Court's jurisdiction under Section 1331. They also fail to
discuss LOVOLA in the brief opposing the motion. (See Def. Br.)
Due to this silence, the Court will deem their reliance on LOVOLA as a
basis for removal to be abandoned.
Auerbach's argument that LOVOLA applies only to shipping and carriage
of goods, in any event, is incorrect. See, e.g., Gorman v.
Cerasia, 2 F.3d 519, 523 n.3 (3d Cir. 1993) (noting LOVOLA applies
to pleasure craft). But it appears that LOVOLA would not apply here
because its application requires the presence of (1) an offending vessel
and (2) "damage arising from a maritime accident" caused by that vessel.
Id. at 522; see Vatican Shrimp Co. v. Solis,
820 F.2d 674, 677 (5th Cir. 1987); Cody v. Phil's Towing Co.,
247 F. Supp.2d 688, 692 (W.D. Pa. 2002). Auerbach does not assert that a
specific offending vessel owned by either MTS or BUS caused an accident
or damage to the boat while in the midst of a tow or salvage. Rather, he
alleges that two individual defendants, MTS and BUS, failed to provide a
service; there is no offending vessel. Thus, LOVOLA does not apply.
LOVOLA, even if applicable, would not allow removal of the action
because its jurisdictional reach extends to that of admiralty
jurisdiction under Section 1333(1) only, not Section 1331. Three
Buoys Houseboat Vacations v. Morts, 921 F.2d 775, 779-80 (8th Cir.
1990); In re Fields, 967 F. Supp. 969, 971 & 975 (M.D.
Tenn. 1997); see Super. Fish Co., 521 F. Supp. at 439 n.2 &
441 n.6 (remanding action to recover damages for shipment value; stating
rule that admiralty claims do not arise under federal laws applies to
statutory maritime claims); E. Steel & Metal Co. v. Hartford
Fire Ins. Co., 376 F. Supp. 763, 767 (D. Conn. 1974) (granting
motion to remand, as "maritime claims, though rooted in federal law, are
not within § 1331 (or § 1441), whether the pertinent federal law
is statutory or . . . judge-made").*fn3
III. Costs and Expenses
Section 1447(c) provides that an "order remanding the case may require
payment of just costs and any actual expenses, including attorney fees,
incurred as a result of the removal." The Court has broad discretion over
whether to require the payment of costs and expenses. See Mints v.
Educ. Testing Serv., 99 F.3d 1253, 1260 (3d Cir. 1996).
MTS and BUS, although not successful, provided a good-faith argument
for removal. See Wehr, 2000 WL 236438, at *5 (granting part of
motion seeking remand under savings clause, but denying part seeking
costs); GW Contrs., 1992 WL 167046, at *1-2 (denying motion for
costs; granted previous motion to remand under savings clause). As this
extended discussion suggests, these issues are replete with uncertainty
and concern statutes that are complex in application. See Schwartz
v. Liberty Mut. Ins. Co., No. 01-2049, 2001 WL 1622209, at *7 (E.D.
Pa. Dec. 18, 2001) (granting part of motion seeking remand of action
removed under Section 1332, but denying part seeking costs); Penn v.
Wal-Mart Stores, 116 F. Supp.2d 557, 570 (D.N.J. 2000) (same);
Gul v. Pamrapo Sav. Bank, 64 F. Supp.2d 370, 373 (D.N.J. 1999)
(same in action removed under National Labor Relations Act). Also, an
award of expenses to Auerbach cannot be justified by his motion papers,
which are "rather terse [and] basic," and contain an incorrect argument
concerning LOVOLA's application. Spigonardo v. K Mart Corp.,
No. 00-1067, 2000 WL 554985, at *3 (E.D. Pa. May 4, 2000) (granting part
of motion seeking remand, but denying part seeking costs).
Auerbach's contention that he is entitled to an award of costs and
expenses because removal was an unfair tactic in a small case is also
without merit. See Murray v. Gemplus Int'l, No. 02-6265, 2002
WL 32107942, at *5 (E.D. Pa. Oct. 29, 2002) (denying part of motion
seeking costs, even though court was
"cognizant of the disparity in litigation resources between the
parties"). Therefore, the Court will deny the part of the motion seeking
an award of costs and expenses.
The saving-to-suitors clause bars the removal of this admiralty action
to this Court. In addition, MTS and BUS have failed to demonstrate any
other basis for removal. However, Auerbach is not entitled to an award of
costs and expenses under these circumstances. Thus, the Court will grant
only the part of the motion seeking remand of the action to state court.
An appropriate order accompanies this memorandum opinion.