Court of Appeals's Short But Definitive Ruling: Successive Removal Petitions Fail Notwithstanding Silent Statute

In a short and unpublished opinion, the Eleventh Circuit, per curiam, decided Watson v. Carnival Corp., No. 10-15411 (Aug. 2011). The important international practice lesson to be learned from the decision relates to a federal common law limitation placed on the otherwise clear statutory right to remove cases from state to federal court granted by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, a/k/a the New York Convention (a link to the Convention can be found in the Documents library on this blog).

The federal statute provides that

"[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement . . . the defendant . . . may, at any time before the trial thereof, remove such action or proceeding to the district court of the United States" 9 U.S.C. § 205.

Earlier the proceedings, which involve a claim by an injured worker on one of Carnival's ships, Carnival removed the case from state to federal court, but the District Court remanded the case for procedural irregularities in the petition. Thereafter, Carnival again removed the case. The District Court found the removal timely (as noted, under the statute removal is appropriate any time before trial) but refused to permit "a second bite at the apple". The Eleventh Circuit...