ORDER
Plaintiff, Oliver Figueroa (Figueroa) sustained injuries and burns when performing hot work on the vessel, MOC 10, while it was in dry dock on March 18, 2013. He has sued Defendant Marine Inspection Services, LLC (Marine Inspection) based on its responsibility for permitting and monitoring hot work on the vessel. He has also sued Defendant Third Coast Towing, LLC (Third Coast), the owner of the vessel, alleging that the vessel was unsea-worthy. He charges both Defendants with negligence and negligence per se under the general maritime law and/or Long-shore and Harbor Workers Compensation Act, 33 U.S.C. § 905(b) and/or Texas common law. D.E. 1-5. Figueroa filed his case in state court, reciting jurisdiction under the saving to suitors clause of 28 U.S.C. § 1333(1) and requesting a jury trial. Id.
Defendants timely removed the case to this Court arguing that, under 28 U.S.C. § 1441(a), removal is permitted on the sole basis of this Court’s original jurisdiction over maritime claims. Pending before this Court is Figueroa’s Motion to Remand (D.E. 6), urging that: (1) original maritime jurisdiction does not attach because the
A. This Court Has Maritime Jurisdiction: The Dry Dock Was In Navigable Waters.
Maritime jurisdiction exists when: (1) the tort involves a vessel on navigable water; (2) the incident has “a potentially disruptive impact on maritime commerce;” and (3) the general character of the incident bears a “substantial relationship to traditional maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
Figueroa challenges only the first factor: whether the vessel was on navigable water at the time of the incident. Figueroa correctly observes that the burden of proof is on Defendants, the removing parties. E.g, Aguilar v. Boeing Co.,
Defendants have responded with the Declaration of James Bell. D.E. 7-1, 8-1. Bell testifies that he has personal knowledge of the John Bludworth Shipyard dry dock and that it is “a floating dock located in [the] Corpus Christi ship channel and is not situated on land.” Id. As there is no controverting evidence, the Court FINDS that the incident occurred on a floating dry dock on navigable waters and that this incident satisfies the requirements of maritime jurisdiction under 28 U.S.C. § 1333(1) and Grubart.
The Court rejects Figueroa’s first argument and concludes that the claims fall within this Court’s maritime jurisdiction. However, the case does not fall within this Court’s “original” maritime jurisdiction, a distinction that is crucial to the determination of removability, discussed below.
B. The Law Requires An Independent Jurisdictional Basis When Claims Fall Within the Saving to Suitors Clause.
While this Court’s maritime or admiralty jurisdiction would permit adjudication of Figueroa’s claims had he filed them here, it is a different question whether Defendants have the right to remove those
Defendants rely on Ryan v. Hercules Offshore, Inc.,
The key to the treatment of maritime cases involving saving to suitors claims lies in 28 U.S.C. § 1441(a) — predicate eligibility. To be eligible for removal, a case must fall within the “original jurisdiction” of the federal courts:
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 defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
28 U.S.C. § 1441(a) (emphasis added).
While the district courts generally have “original jurisdiction” over admiralty or maritime cases, the saving to suitors clause exempts from that “original jurisdiction” “all other remedies to which [suitors] are otherwise entitled.” 28 U.S.C. § 1333(1). Any remedy, such as a right to a jury trial,
The Ryan opinion has been followed by several trial courts within the Fifth Circuit.
Figueroa has invoked the saving to suitors clause and has made a jury demand. D.E. 1-5. Three of the four cases
While this’ Court agrees with the result of these cases, this Court finds that the saving to suitors clause does not “prohibit” removal. The saving to suitors clause has never prevented removal of such claims based on federal question or diversity jurisdiction. Rather, it is the requirement of “original jurisdiction” that makes these cases ineligible for removal.
The Fifth Circuit has stated that the saving to suitors clause “exempts” a case from removal, yet does not guarantee a plaintiff a state forum if there is an independent basis for federal jurisdiction:
[E]ven though federal courts have original jurisdiction over maritime claims under 28 U.S.C. § 1333, they do not have removal jurisdiction over maritime cases which are brought in state court. Romero v. Int’l Terminal Operating Co.,358 U.S. 354 , 377-79,79 S.Ct. 468 ,3 L.Ed.2d 368 (1959). Instead, such lawsuits are exempt from removal by the “saving-to-suitors” clause of the jurisdictional statute governing admiralty claims, see id., and therefore may only be removed when original jurisdiction is based on another jurisdictional grant, such as diversity of citizenship. In re Dutile,935 F.2d 61 , 63 (5th Cir.1991).
Barker v. Hercules Offshore, Inc.,
As a primary matter, this court has emphasized that “the saving to suitors” clause under general maritime law “does not guarantee [plaintiffs] a nonfederal forum, or limit the right of defendants to remove such actions to federal courtwhere there exists some basis for federal jurisdiction other than admiralty.” Tenn. Gas [Pipeline v. Houston Cas. Ins.], 87 F.3d [150], 153 [(5th Cir.1996)] (emphasis in original). Instead, removal of maritime cases is permissible as long as there is an independent basis for federal jurisdiction. See id.
Barker, at 220. It is the necessity of “original jurisdiction” that reconciles the concept of the saving to suitors clause “exempting” a case from removal, yet not guaranteeing a plaintiff a state forum.
While this Court would have “original jurisdiction” pursuant to 28 U.S.C. § 1333 over Figueroa’s claims had he filed them here (waiving his right to a jury trial), “original jurisdiction” evaporated when he filed his action in state court, making the claims nonremovable on the basis of admiralty jurisdiction. There is no separate basis for federal jurisdiction in this case so removal is improper. This Court finds that requiring an independent jurisdictional basis for removal operates to preserve the right to a jury trial in what would otherwise be an admiralty claim entitled only to a bench trial, see generally, Luera, supra at 193-96.
CONCLUSION
For the reasons set out above, the Court GRANTS Plaintiffs Motion to Remand (D.E. 6) and remands this action to the County Court at Law No. 1, Nuecés County, Texas, the court from which it was removed.
Notes
. Admiralty jurisdiction does not extend to claims at law made against defendants in personam. E.g., Luera v. M/V Alberta,
. See, Provost v. Offshore Service Vessels, LLC, No. 14-89-SDD-SCR,
.Figueroa’s in personam claims brought at law in state court entitle him to a jury trial. E.g., Luera v. M/V Alberta,
If a claim is pleaded under diversity jurisdiction, the rules of civil procedure will apply, and the parties will be guaranteed, under the Seventh Amendment, a right to have the claim tried by a jury. Atl. & Gulf Stevedores [v. Ellerman Lines, Ltd.], 369 U.S. [355] at 360,82 S.Ct. 780 [7 L.Ed.2d 798 (1962)]. If the claim is pleaded under admiralty jurisdiction, however, the plaintiff will invoke "those historical procedures traditionally attached to actions in admiralty.” Durden v. Exxon Corp.,803 F.2d 845 , 849 n. 10 (5th Cir.1986). One of the historical procedures unique to admiralty is that a suit in admiralty does not carry with it the right to a jury trial. Waring v. Clarke,46 U.S. 441 , 460,5 How. 441 ,12 L.Ed. 226 (1847); see also Becker v. Tidewater, Inc.,405 F.3d 257 , 259 (5th Cir.2005).
. The fourth case, Gabriles v. Chevron USA, Inc., No. 2:14-00669,