STOKES v. VICTORY CARRIERS, INC., (E.D.Pa. 1983)

Citation Codes

Equivalent Citations

citation codes

Docket Number

Civ. A. No. 83-4478.

Attorney(S)

Martin Greitzer, Greitzer Locks, Philadelphia, Pa., for Victory. Dante Mattioni, Mattioni, Mattioni Mattioni, Ltd., Philadelphia, Pa., for OSG Bulk Ships.

Judges

Raymond Joseph Broderick

Acts

Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Admiralty, Maritime And Prize Cases
Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Diversity Of Citizenship; Amount In Controversy; Costs
Judiciary And Judicial Procedure — District Courts; Removal Of Cases From State Courts — Jurisdiction And Venue — Procedure After Removal Generally
Judiciary And Judicial Procedure — District Courts; Removal Of Cases From State Courts — Jurisdiction And Venue — Procedure For Removal Of Civil Actions
Railroads — Liability For Injuries To Employees — Liability Of Common Carriers By Railroad, In Interstate Or Foreign Commerce, For Injuries To Employees From Negligence; Employee Defined
Judiciary And Judicial Procedure — District Courts; Removal Of Cases From State Courts — Jurisdiction And Venue — Removal Of Civil Actions

See more information ...

Smart Summary

Factual and Procedural Background

The plaintiff, Philip Stokes, filed a complaint on August 18, 1983, in the Court of Common Pleas of Philadelphia County alleging injuries sustained while employed by defendants Victory Carriers, Inc. and the predecessor to OSG Bulk Ships, Inc. The complaint asserted claims under the Jones Act (46 U.S.C. § 688) and general admiralty and maritime law, including negligence, unseaworthiness, gross negligence, willful misconduct, fraudulent concealment, willful omissions, misrepresentations, and a claim for maintenance and cure. On September 14, 1983, defendant OSG removed the action to federal court, asserting federal jurisdiction based on admiralty claims and diversity of citizenship. The plaintiff moved to remand the case, arguing that removal was improper because Victory failed to timely join the removal petition within thirty days of service as required by 28 U.S.C. § 1446(b). The Court considered these procedural facts and the parties’ submissions before deciding on the motion to remand.

Legal Issues Presented

Whether the removal of the case to federal court was proper given that Victory Carriers, Inc. did not join the removal petition within the thirty-day period prescribed by 28 U.S.C. § 1446(b).
Whether the failure of the plaintiff to allege the citizenship of OSG in the initial complaint delays the start of the thirty-day removal period for Victory.
Whether a Jones Act claim filed in state court is removable to federal court, especially when joined with claims for maintenance and cure and unseaworthiness.

Arguments of the Parties

Defendants' Arguments

The thirty-day removal period under 28 U.S.C. § 1446(b) begins only when a defendant receives adequate notice that the case is removable.
Since the plaintiff’s complaint did not allege OSG’s citizenship, the removability of the case was not "unambiguously plain" until OSG filed its removal petition on September 14, 1983.
Therefore, Victory’s joinder in the removal petition on September 29, 1983, was timely because the thirty-day clock started on the date of OSG’s removal petition, not on the date Victory received the complaint.

Plaintiff's Arguments

Victory failed to join the removal petition within the thirty-day period following service of the complaint, as required by 28 U.S.C. § 1446(b).
The case was improperly removed and should be remanded to state court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528 (E.D. Pa. 1982)	Requirement that all served defendants must join removal petition within thirty days of receipt of initial pleading.	Supported the interpretation that Victory’s late joinder was untimely under § 1446(b).
Crompton v. Park Ward Motors, Inc., 477 F. Supp. 699 (E.D. Pa. 1977)	Strict construction of removal statutes and timing requirements for joinder in removal petitions.	Reinforced the court’s strict interpretation against removal and in favor of remand.
Sun Oil Co. of Pennsylvania v. Department of Labor and Industry, 365 F. Supp. 1403 (E.D. Pa. 1973)	Interpretation of procedural requirements for removal petitions.	Supported the view that all defendants must timely join removal petitions.
Blow v. Liberty Travel, 550 F. Supp. 375 (E.D. Pa. 1982)	Failure to allege citizenship does not prevent commencement of thirty-day removal period.	Supported the court’s rejection of defendants’ argument that the removal period started only after the removal petition was filed.
DiMeglio v. Italia Crociere Internazionale, 502 F. Supp. 316 (S.D.N.Y. 1980)	Same as above regarding citizenship allegations and removal timing.	Bolstered the court’s analysis on the start of the removal period.
Kaneshiro v. North American Company for Life and Health Insurance, 496 F. Supp. 452 (D. Hawaii 1980)	Burden on defendant to timely remove when initial pleading is indeterminate as to citizenship.	Used to emphasize defendant’s responsibility to act promptly despite lack of citizenship allegation.
Wong v. General Motors Corp., 359 F. Supp. 223 (N.D. Cal. 1973)	Failure to allege citizenship does not create an appearance of non-removability.	Provided a foundational rationale for the court’s rejection of defendants’ timing argument.
Pate v. Standard Dredging Corp., 193 F.2d 498 (5th Cir. 1952)	Jones Act cases brought in state court are not removable to federal court.	Supported the court’s conclusion that the Jones Act claim rendered the case nonremovable.
Symoenides v. Cosmar Compania Naviera, S.A., 494 F. Supp. 240 (M.D. La. 1980)	Same principle regarding non-removability of Jones Act claims.	Reinforced the court’s holding on non-removability despite diversity jurisdiction.
Demarac v. American Dredging Co., 486 F. Supp. 853 (S.D.N.Y. 1980)	Jones Act cases are not removable even if diversity present.	Further supported the court’s remand decision.
Giacona v. Capricorn Shipping Co., 394 F. Supp. 1189 (S.D. Tex. 1975)	Jones Act cases are nonremovable.	Used to affirm the principle that Jones Act claims bar removal.
U.S. Industries v. Gregg, 348 F. Supp. 1004 (D. Del. 1972)	Jones Act and FELA prohibit removal of cases brought in state court.	Supported the court’s strict construction against removal.
Shamrock Oil Corp. v. Sheets, 313 U.S. 100 (1941)	Removal statutes are strictly construed against removal and in favor of remand.	Fundamental principle guiding the court’s disposition.

Court's Reasoning and Analysis

The Court analyzed the timing requirements under 28 U.S.C. § 1446(b), which mandates that all served defendants must join in a removal petition within thirty days of receiving the initial pleading. Victory was served on August 26, 1983, but did not join the removal petition until September 29, 1983, exceeding the thirty-day limit. The defendants argued that the thirty-day period should start only upon receipt of notice that the case is removable, which they claimed was the filing of the removal petition by OSG on September 14, 1983, because the initial complaint failed to allege OSG’s citizenship. The Court rejected this argument, citing a strong body of precedent holding that failure to allege citizenship does not delay the start of the removal period. The Court emphasized that defendants bear the burden of scrutinizing the case and acting timely even if the initial pleading is indeterminate regarding citizenship.

Additionally, the Court noted that Jones Act claims filed in state court are generally not removable to federal court, even when joined with claims for maintenance and cure or diversity jurisdiction exists. This principle derives from the Jones Act’s incorporation of FELA provisions prohibiting removal of such cases. The Court acknowledged some debate about removal under 28 U.S.C. § 1441(c) for separate and independent claims but found that prevailing authority holds that the presence of a Jones Act claim renders the entire case nonremovable. Thus, even if removal were otherwise proper, Victory’s late joinder was untimely. The Court applied these principles strictly, consistent with the well-established rule that removal statutes are to be construed narrowly against removal and in favor of remand.

Holding and Implications

The Court granted the plaintiff's motion to remand and ordered the case to be remanded to the Court of Common Pleas of Philadelphia County.

The direct effect of this decision is to return the case to the state court for further proceedings. The ruling underscores the strict procedural requirements for removal, including the necessity for all defendants to join removal petitions timely. It also reaffirms the nonremovability of Jones Act claims brought in state court, even when accompanied by other maritime claims or diversity jurisdiction. No new legal precedent was established; rather, the Court applied and reinforced existing principles governing removal jurisdiction and maritime claims.

Show full summary ...

Philip STOKES v. VICTORY CARRIERS, INC. and OSG Bulk Ships, Inc.

MEMORANDUM

RAYMOND J. BRODERICK, District Judge.

In this action the plaintiff claims injuries and damages allegedly incurred while in the employ of defendants Victory Carriers, Inc. (Victory) and the predecessor to OSG Bulk Ships, Inc. (OSG). The plaintiff's complaint was filed on August 18, 1983 in the Court of Common Pleas of Philadelphia County. In his complaint the plaintiff alleges that he is proceeding pursuant to the Jones Act, 46 U.S.C. § 688, and "the General Admiralty and Maritime Law of the United States." He alleges that he suffered injuries as a result of the defendants' negligence, the unseaworthiness of defendants' vessels, and the defendants' violations of the general admiralty and maritime laws of the United States. He also alleges gross negligence, willful misconduct, fraudulent concealment, willful omissions, and misrepresentations on the part of the defendants. The plaintiff further claims maintenance and cure.

On September 14, 1983, the defendant OSG removed this action to this Court. In its removal petition OSG alleged that federal jurisdiction exists pursuant to 28 U.S.C. § 1333 on the basis of plaintiff's claim of unseaworthiness and his claim for maintenance and cure. OSG also alleged that federal jurisdiction exists pursuant to 28 U.S.C. § 1332 on the basis of diversity of citizenship between the partyies. The plaintiff has filed a motion to remand this action to the Court of Common Pleas in accordance with 28 U.S.C. § 1447(c) alleging that the case was improvidently removed because the defendant Victory filed to join in the petition for removal within thirty days following receipt of plaintiff's complaint, as required by 28 U.S.C. § 1446(b). For the reasons that follow, the Court will grant the plaintiff's motion and remand this action to the Court of Common Pleas.

Subsection (b) of 28 U.S.C. § 1446 states as follows:

The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

The defendant Victory was served with a copy of the complaint and notice to defend on August 26, 1983. Victory filed a concurrence to OSG's petition for removal on September 29, 1983. 28 U.S.C. § 1446(b) has consistently been interpreted to require all served defendants to join in the removal petition within thirty days of their receipt of the initial pleading. Balestrieri v. Bell Asbestos Mines, Ltd., 544 F. Supp. 528, 529 (E.D.Pa. 1982) (collecting cases); Crompton v. Park Ward Motors, Inc., 477 F. Supp. 699, 701 (E.D.Pa. 1977); Sun Oil Co. of Pennsylvania v. Department of Labor and Industry, 365 F. Supp. 1403 (E.D.Pa. 1973). Victory concedes that it did not join in OSG's removal petition within the thirty day period, but argues that there was "good cause" for the delay.

Specifically, Victory and OSG argue that the thirty day limitation period begins to run only after a defendant has received adequate notice that the case is properly removable. They rely upon the second paragraph of 28 U.S.C. § 1446(b), which states:

If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable.

The defendants argue that since the complaint did not allege the citizenship of OSG, the earliest date on which the removability of the action could have become "unambiguously plain" to Victory was on September 14, 1983, when OSG's petition for removal was filed. The defendants' position is that since the parties' diversity of citizenship was not apparent from the complaint, the petition for removal constitutes "an amended pleading, motion, order, or other paper from which it may first be ascertained that the case is one which is or has become removable." Thus, according to the defendants, Victory's thirty day time limit did not begin to run until September 14, 1983, and the filing of Victory's concurrence on September 26, 1983, was not untimely.

The great majority of the courts that have considered the matter have concluded that a failure of the plaintiff to allege a party's citizenship in the initial pleading does not prevent the thirty day removal period from commencing. Blow, et al. v. Liberty Travel, 550 F. Supp. 375, 377 (E.D.Pa. 1982); DiMeglio v. Italia Crociere Internazionale, 502 F. Supp. 316, 319 (S.D.N Y 1980); Kaneshiro v. North American Company for Life and Health Insurance, 496 F. Supp. 452, 462 (D.Hawaii 1980); Nicholas v. Macneille, 492 F. Supp. 1046, 1047 (D.S.C., C.D. 1980); Lee v. Volkswagon of America, Inc., 429 F. Supp. 5, 7 (W.D.Okla. 1976). This line of authority can be traced to the decision in Wong v. General Motors Corp., et al., 359 F. Supp. 223, 224-25 (N.D.Cal. 1973), where the court held that the plaintiff's failure to allege the citizenship of one of the defendants in the state court complaint did not establish the appearance of "non-removability" on the face of the complaint for the purposes of 28 U.S.C. § 1446(b). Several courts have noted that as a matter of general practice, state court plaintiffs do not routinely allege the citizenship of the parties in their complaints, and that where the initial pleading is "indeterminate" as to the parties' citizenship, "the burden is on the defendant seeking removal to scrutinize the case and remove it in a timely fashion." Kaneshiro v. North American Company for Life and Health Insurance, 496 F. Supp. at 455-56, 462.

Furthermore, there is an additional reason for remanding this case to the state court. Suits brought pursuant to the Jones Act in a state court are not removable to the federal court. Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir. 1952); Symoenides v. Cosmar Compania Naviera, S.A., 494 F. Supp. 240, 241 (M.D.La. 1980); Demarac v. American Dredging Co., 486 F. Supp. 853, 854 (S.D.N.Y. 1980); Giacona v. Capricorn Shipping Co., 394 F. Supp. 1189, 1191 n. 5 (S.D.Tex., H.D. 1975); U.S. Industries v. Gregg, 348 F. Supp. 1004, 1113 n. 8 (D.Del. 1972). The Jones Act incorporates the general provisions of the Federal Employers' Liability Act (F.E.L.A.), 45 U.S.C. § 51 et seq., which act prohibits removal of cases brought in the state court. See Pate v. Standard Dredging Corp., 193 F.2d at 500; Symoenides v. Cosmar Compania Naviera, S.A., 494 F. Supp. at 241. See also 1-A J. Moore, B. Ringle and J. Wicker, Moore's Federal Practice ¶ 0.167[3.-2] pp. 466-68 (2d Edition 1983). This is so even where diversity of citizenship is present. Demarac v. American Dredging Co., 486 F. Supp. at 854; see Symoenides v. Cosmar Compania Naviera, S.A., 494 F. Supp. at 241 (collecting cases). Although there is some basis for contending that Jones Act cases should be removable under 28 U.S.C. § 1441(c) if the state court complaint contains a "separate and independent claim" for maintenance and cure, the decisions do not appear to support this contention. As stated by G. Gilmore and C. Black in The Law of Admiralty, § 6-28, pp. 357-58 (2nd Edition 1975), "the cases to date have assumed that a Jones Act count makes the entire case irremovable, whether or not joined with unseaworthiness and maintenance and cure counts." Thus this case was not removable and must be remanded. However, assuming for the purpose of argument that the maintenance and cure claim in the state court complaint rendered the entire case removable under 28 U.S.C. § 1441(c), it is clear that Victory's joinder in the removal petition was untimely in that it was not done within the required thirty day period. Victory had notice of the maintenance and cure claim on the date it received the complaint, and it did not file a petition for removal or join in OSG's petition within the thirty days required by 28 U.S.C. § 1446(b). Removal statutes are to be construed strictly against removal and in favor of remand. Crompton v. Park Ward Motors, Inc., 477 F. Supp. at 702 n. 3, citing Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941).

Thus, for all of the reasons set forth above, this Court will enter an order remanding this case to the state court.