Appeal from a judgment of the District Court for the Southern District of New York (Charles E. Stewart, Jr., Judge) entered upon a jury verdict in favor of defendant after denial of plaintiff's motion to remand to state court a removed suit joining claims under Jones Act and for maintenance and cure.
Meskill, Newman, and Pratt, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal presents a close question as to whether a seaman's state court lawsuit arising out of his personal injuries is removable to a federal district court. The appeal reveals the tension between Congress' preference to permit a plaintiff to maintain a Jones Act suit in state court, without risk of removal, 28 U.S.C. § 1445(a) (1982), and its permission to a defendant to remove an entire lawsuit when a removable claim that is "separate and independent" from a non-removable claim is joined in one lawsuit with the non-removable claim, 28 U.S.C. § 1441(c) (1982). Plaintiff-appellant Charles Gonsalves appeals from a judgment of the District Court for the Southern District of New York (Charles E. Stewart, Jr., Judge) entered in favor of the defendant-appellee Amoco Shipping Company ("Amoco") after a jury trial. Because we conclude that the District Court erred in denying plaintiff's motion to remand the suit to state court, we reverse.
Gonsalves sued in the Supreme Court of the State of New York, County of New York, to recover for back injuries allegedly suffered while he was serving as Chief Officer aboard Amoco's vessel, the S/S Amoco Connecticut. The complaint alleged negligence under the Jones Act, 46 U.S.C. § 688 (1976), and unseaworthiness under general maritime law, and sought maintenance and cure. All three claims arose from personal injuries allegedly sustained when plaintiff fell as his foot was entangled in a heaving line during undocking procedures.
Amoco removed the action to the District Court pursuant to 28 U.S.C. § 1441(a) and (c) (1982).Gonsalves made a timely motion to remand, which the District Court denied. Following a trial on the merits, the jury returned a special verdict in favor of Amoco on the Jones Act and unseaworthiness claims. The maintenance and cure claim was not submitted to the jury for lack of evidence of a prima facie case. On appeal Gonsalves contends that this action was improperly removed from state court. For reasons that follow, we agree and conclude that Jones Act and maintenance and cure claims arising out of the same set of operative facts are not separate and independent for purposes of section 1441(c) removal.
Section 1441(c) permits removal of an entire case "whenever a separate and independent claim or cause of aciton, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action." 28 U.S.C. § 1441(c). In this case, the maintenance and cure claim is removable, as the District Judge ruled, since the complaint alleged the requisite diversity of citizenship and jurisdictional amount. 28 U.S.C. § 1441(a). The Jones Act claim, however, is not removable, Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir. 1952); Demarac v. American Dredging Co., 486 F. Supp. 853, 854 (S.D.N.Y. 1980), even though it is a federal claim for purposes of jurisdiction under 28 U.S.C. § 1331 (1982), see Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 3 L. Ed. 2d 368, 79 S. Ct. 468 (1958), because Congress has explicitly prohibited removal of Jones Act claims. 28 U.S.C. § 1445(a) (1982); 46 U.S.C. § 688 (1976) (making statutes modifying remedies of railway employees applicable to seamen). Thus, this is not a typical section 1441(c) case in which a removable claim must be examined to see if it is "separate and distinct" from a claim for which federal jurisdiction was never authorized; here the removable claim is joined with a federal claim that Congress prefers to leave in state court if that is where a plaintiff has filed it. Our first inquiry therefore is whether section 1445(a) in effect overrides section 1441(c) and prevents the removal of a Jones Act claim even when joined with a "separate and independent" removable claim.
We are confronted with a conflict between two statutory policies in the same chapter of the Judicial Code. Section 1441 (c) reflects the Congressional judgment that plaintiff's joinder of separate and independent claims, one of which is non-removable, should not destroy a defendant's right to removal. However, section 1445(a) provides the Jones Act plaintiff with a choice-of-forum privilege. The question then is "where Congress intended the right granted a [Jones Act] claimant to cease and the protection granted defendants to commence." U.S. Industries, Inc. v. Gregg, 348 F. Supp. 1004, 1015 (D. Del. 1972), rev'd on other grounds, 540 F.2d 142 (3d Cir. 1976), cert. denied, 433 U.S. 908, 53 L. Ed. 2d 1091, 97 S. Ct. 2972 (1977). It is possible that a non-removal statute, like section 1445(a), forbids removal even if the provisions of section 1441(c) are satisfied. This possibility has been explored by some courts and rejected. See Abing v. Paine, Webber, Jackson & Curtis, 538 F. Supp. 1193, 1195 (D. Minn. 1982) (non-removal provision for securities claims, 15 U.S.C. § 77v(a) (1982)); Hages v. Aliquippa & Southern Railroad Co., 427 F. Supp. 889, 891-92 (W.D. Pa. 1977) (28 U.S.C. § 1445); U.S. Industries Inc. v. Gregg, supra, 348 F. Supp. at 1004 (securities claim); Cunningham v. Bethlehem Steel Co., 231 F. Supp. 934, 937 (S.D.N.Y. 1964) (maritime claim); Emery v. Chicago B. & Q.R. Co., 119 F. Supp. 654, 656-57 (S.D. Iowa 1954) (28 U.S.C. § 1445); see also Pate v. Standard Dredging Corp., supra, 193 F.2d 498; Pinto v. Maremont Corp., 326 F. Supp. 165, 168-69 (S.D.N.Y. 1971). The Fifth Circuit ruled the other way in Gamble v. Central of Georgia Railway Co., 486 F.2d 781 (5th Cir. 1973), though the statement is arguably dictum since the allegedly separate claim was that of a third-party defendant indemnitor, rather than a plaintiff.
We find persuasive the observation in U.S. Industries, Inc. v. Gregg, supra, that the structure and language of the entire removal statute, 28 U.S.C. § 1441, suggests that section 1441(c) applies to claims non-removable because of an explicit statutory prohibition:
This statute contains two grants of removal jurisdiction. Subsection (a) grants the general right of removal to defendants in any case that could originally have been brought in a district court of the United States. The first clause of the subsection limits this authority to cases where a contrary result has not been "otherwise expressly provided by Act of Congress." This is a clear reference to statutes like [section 1445(a)]. Subsection (b) further limits this general removal jurisdiction in diversity cases to cases where no defendant is a resident.
Most commentators find "considerable force" in that analysis. See C. Wright, Law of Federal Courts 224 n.27 (4th ed. 1983); 14 C. Wright, A Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction, § 3724 at 654-44 (1976); see also 1A J. Moore, Moore's Federal Practice paras. 0.163[4.4], 0.167, and 0.167[3.-2] at 468 (1983). We agree that there is no indication that Congress intended to confine the meaning of a "non-removable" claim in section 1441(c) to claims over which a federal district court would not have original subject matter jurisdiction.
We turn now to the issue of whether Jones Act and maintenance and cure claims are "separate and independent" for purposes of section 1441(c) removal. The statutory standard was last considered by the Supreme Court in American Fire & Casualty Co. v. Finn, 341 U.S. 6, 95 L. Ed. 702, 71 S. Ct. 534 (1951). Finn involved a suit, removed from state court, to recover on a fire policy allegedly issued by one of two non-resident corporate defendants and a further alternative claim against a resident agent of both corporations for failure to procure insurance. In holding the action improperly removed, the Supreme Court underscored the Congressional intent to abridge the right of removal by requiring "more complete disassociation" between joined claims. 341 U.S. at 12. The Court relied on its prior attempt in Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 321, 71 L. Ed. 1069, 47 S. Ct. 600 (1927), to define the elusive concept of a "cause of action":
Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right of the plaintiff, namely, the right ...