New Developments In Removal Practice In Maritime Cases

Recent amendments to the federal removal statute, 28 U.S.C. § 1441, may have far-reaching implications for the practice of maritime law, nationally. Specifically, in a significant departure from precedent, two recent decisions in the U.S. District Court for the Southern District of Texas have interpreted the amended statute to permit general maritime law claims to be removed from state to federal court regardless of whether requirements for diversity jurisdiction, or some other basis of federal question jurisdiction, are met. While it remains to be seen how this issue may develop over time, these opinions potentially represent an important new avenue for maritime practitioners to consider when assessing whether to remove a case to federal court.

Historically, general maritime law claims saved to suitors did not constitute federal questions for removal purposes, and federal courts could only assert removal jurisdiction over such claims when diversity or some other basis existed for federal jurisdiction. [See, e.g., Morris v. T E Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003) (recognizing the Outer Continental Shelf Lands Act, 43 U.S.C.A. §§ 1331, et seq., as one such basis).]

However, on December 7, 2011, Congress revised the language of Section 1441. The full version of the amended statute reads as follows:

(a) Generally. 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.

(b) Removal based on diversity of citizenship.

(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.

(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendant is a citizen of the State in which such action is brought.

28 U.S.C.A. § 1441(a) & (b) (2012

Approximately five months after the new statute became effective, U.S. District Court Judge Gray Miller of the Southern District of Texas denied a plaintiff's motion to remand on the basis that under the amended version of Section...