United States District Court, Northern District of Illinois, E. D
March 31, 1971
NED J. NESTI, PLAINTIFF,
ROSE BARGE LINES, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF, V. ARCHER-DANIELS MIDLAND COMPANY, A CORPORATION, THIRD-PARTY DEFENDANT AND THIRD-PARTY PLAINTIFF, V. JOLIET MARINE SUPPLY & REPAIR SERVICE, INC., A CORPORATION, AND COLUMBIAN ROPE COMPANY, A CORPORATION, THIRD-PARTY DEFENDANT.
The opinion of the court was delivered by: Napoli, District Judge.
MEMORANDUM OPINION AND ORDER
This civil action was removed to this court from the Circuit
Court of Cook County, Illinois, where it has been pending since
1966, by the third-party defendant Archer-Daniels Midland
Company ("Midland"). Plaintiff, Nesti, has moved to remand this
case to the state court. The original defendant and the other
third-party defendants who were impleaded by Midland did not
join the removal petition nor have they participated in
consideration of this motion. After careful and diligent
examination of the motion and memoranda in support thereof and
in opposition thereto, the authorities cited therein and the
court's own research, the court has reached the conclusion that
plaintiff's motion must be granted.
Plaintiff is a longshoreman who suffered personal injuries in
the course of his employment and complained in his state court
case of the unseaworthiness of the vessel in question and of
the maritime tort of negligence. It is Midland's contention
that this court has exclusive jurisdiction over the subject
matter of this cause due to its admiralty nature and
28 U.S.C. § 1333 which reads in pertinent part as follows:
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime jurisdiction,
saving to suitors in all cases all other remedies to which
they are otherwise entitled.
The pertinent portion of the removal statute, 28 U.S.C. § 1441
(a) 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) 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.
While it was once argued that § 1333(1) constituted the express
exception to § 1441(a) and barred removal, this claim has been
soundly disposed of in Crawford v. East Asiatic Co.,
156 F. Supp. 571 (N.D.Calif. 1957). Midland's claim that this court
has exclusive jurisdiction is also no longer accepted as a
correct statement of the law. In Chambers-Liberty Counties Nav.
Dist. v. Parker Bros. & Co., 263 F. Supp. 602 (S.D.Tex. 1967)
the court held that with the
exception of those cases which were inherently maritime such as
an in rem proceeding, the federal courts enjoyed only
concurrent jurisdiction with state courts under the "saving to
suitors clause" of Sec. 1333(1). See also Kemp v. City of Los
Angeles, 172 F. Supp. 66 (S.D.Calif. 1959). This is due to the
fact that a common law action, separate and apart from the
admiralty action, exists and is saved to the suitor by this
clause. Romero v. International Terminal Operating Co.,
358 U.S. 354, 363, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959).
For removal to be proper, the requirements of both subsections
(a) and (b) of § 1441 must have been fulfilled. Crawford,
supra. Under subsection (b) if the case does not arise under
the Constitution, treaties or laws of the United States, then
independent federal jurisdiction must exist. Crawford, supra,
and Hill v. United Fruit Co., 149 F. Supp. 470 (S.D.Calif.
1957). An admiralty or maritime action springs from the
maritime law which developed prior to and independent of our
Constitution and is, therefore, not a case "arising under the
Constitution, treaties or laws of the United States." Romero,
supra, 358 U.S. at 368, 79 S.Ct. at 468 and Scurlock v.
American President Lines, 162 F. Supp. 78 (N.D.Calif. 1958).
Thus, under subsection (b) of § 1441, this action is not
removable if one of the parties in interest properly joined and
served as defendants is a citizen of Illinois. Midland has
failed to carry its burden of establishing that such is not the
case. Also, since this action is primarily one seeking damages
for personal injuries, which has been saved by the saving to
suitors clause of 1333(1) diversity of jurisdiction would be
necessary for this court to have jurisdiction. Crawford,
supra; Hill, supra; Victorias Milling Co. v. Hugo Neu Corp.,
196 F. Supp. 64 (S.D.N.Y. 1961); and Walls v. City of New York,
156 F. Supp. 3 (E.D.N.Y. 1957). See generally Paduano v.
Yamashita Kisen Kabushiki Kaisha, 120 F. Supp. 304 (E.D.N Y
1954) aff'd 221F.2d 615 (2nd Cir. 1955). It must be remembered
the 1948 revision of 1441(a) indicated an "important purpose"
of Congress "to limit removal from state courts", American Fire
& Cas. Co. v. Finn, 341 U.S. 6, 9-10, 71 S.Ct. 534, 538, 95
L.Ed. 702 (1951) and that the Supreme Court has emphasized that
the removal statutes are to be strictly construed, stating that
"the policy of the successive acts of Congress regulating the
jurisdiction of federal courts is one calling for the strict
construction of such legislation. * * * Due regard for the
rightful independence of state governments, which should
actuate federal courts, requires that they scrupulously confine
their own jurisdiction to the precise limits which the statute
has defined." Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,
61 S.Ct. 868, 85 L. Ed. 1214 (1941).
The court is of the further opinion that removal is not proper
by Midland under 1441(c) by virtue of its decision in Holloway
v. Gamble-Skogmo, Inc., 274 F. Supp. 321 (N.D.Ill. 1967).
In accordance with the foregoing, plaintiff's motion is granted
and the cause is hereby ordered remanded to the Circuit Court
of Cook County, Illinois, County Department, Law Division.
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