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Nikitjuks v. Stolt-Nielsen

October 28, 2010


The opinion of the court was delivered by: Surrick, J.


Presently before the Court is Plaintiff's Motion to Remand. (ECF No. 8.) For the following reasons, Plaintiff's Motion will be granted.


Defendants Stolt-Nielsen, S.A., and Stolt Tankers and Terminals are engaged in the business of transporting, distributing, and storing liquid chemicals. (Mot. Remand Ex. C ¶ 5, ECF No. 8.) Stolt-Nielsen is a foreign corporate entity organized under the laws of Luxembourg. (Id. ¶ 2.) Stolt Tankers and Terminals is a wholly owned subsidiary of Stolt-Nielsen and has its principal place of business in the Netherlands. (Id. ¶ 3.) Defendants own and operate a vessel named Stolt Stream. (Id. ¶ 11.) Plaintiff Andrejs Nikitjuks, a Latvian citizen, was a seaman employed by Defendants and assigned to work on Stolt Stream. (Id. ¶ 12.)

On December 22, 2005, Stolt Stream was carrying cargo to a port located at Westway Dock, in Philadelphia, Pennsylvania. (Id. ¶ 13.) When the crew members were unloading cargo, Defendants ordered Plaintiff to assist in the performance of line-clearing operations. (Id. ¶ 14.) While Plaintiff was executing his duties, a Teflon envelope gasket of a cargo tank's hydraulic valve burst. (Id. ¶ 15.) The tank contained a dangerous chemical, caustic soda, which sprayed on Plaintiff following the rupture. (Id.) Plaintiff alleges that he sustained severe personal injuries to his face, eyes, and other areas of his skin and body, as a result of the explosion and his physical contact with the caustic soda. (Id.)

On August 7, 2009, Plaintiff filed a Complaint in the Court of Common Pleas Philadelphia County asserting claims against Defendants under the Jones Act, 46 U.S.C. §§ 688, et seq., the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 905, et seq., and general maritime law. On August 27, 2009, Defendants timely filed a Notice of Removal in this Court pursuant to 28 U.S.C. § 1446(a). (Mot. Remand Ex. D.) Plaintiff then filed the instant Motion, arguing that the Jones Act bars the removal of actions brought by seamen in state courts. (Id. ¶ 19.) Defendants concede that the Jones Act generally precludes removal. (Defs.' Opp'n 3, ECF No. 10.) However, Defendants contend that removal is proper in this case because the Jones Act does not apply here. (Id.) Specifically, Defendants claim that they are not "employers" for the purposes of the Jones Act. (Id. 5.)


The Jones Act allows a seaman to recover for personal injuries suffered in the course of his or her employment. Fasold v. Del. River & Bay Auth., 117 F. App'x 836, 837-38 (3d Cir. 2004) (non-precedential). It provides seamen with the same rights that are given to railway workers under the Federal Employers Liability Act ("FELA"). Id. An action under the FELA filed in state court is generally not removable. See 28 U.S.C. § 1445(a) ("A civil action in any State court against a railroad . . ., arising under [the FELA], may not be removed to any district court of the United States."); see also Fritchman v. Norfolk S. Ry. Co., No. 08-2559, 2009 U.S. Dist. LEXIS 21379, at *7-8 (E.D. Pa. Mar. 17, 2009). The Jones Act, which incorporates by reference the remedies available to railway employees in personal injury cases, concomitantly prevents the removal of actions brought by seamen in state courts under the Jones Act. See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001); Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); Rodriguez v. Am. Trading & Transp. Co., No. 87-8180, 1988 WL 59016, at *1 & n.1 (E.D. Pa. June 3, 1988).

Although a Jones Act claim is generally not removable, a district court "may deny remand where, but only where, resolving all disputed facts and ambiguities in current substantive law in plaintiff's favor, the court determines that the plaintiff has no possibility of establishing a Jones Act claim on the merits." Zertuche v. Great Lakes Dredge & Dock Co., 306 F. App'x 93, 94-95 (5th Cir. 2009) (internal quotation marks and citations omitted) (non-precedential). This rule is predicated on the notion that a "defendant seeking removal may 'pierce the pleadings' of a lawsuit asserting claims that are ostensibly barred by section 1445(a) to show that the claims have been fraudulently pled to avoid removal." Feichko v. Denver & Rio Grande W. R.R., 213 F.3d 586, 589 (10th Cir. 2000). Defendants are "permitted to demonstrate that parties-or claims-are baseless in law and in fact and 'serve[] only to frustrate federal jurisdiction.'" Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993) (citations omitted). However, this burden is a heavy one. A district court will only deny remand in a Jones Act case where it determines "as a matter of law there was no reasonable basis for predicting that the plaintiff might establish liability." Burchett, 48 F.3d at 176 (citations omitted).


Defendants argue that remand is inappropriate because Plaintiff has not adequately asserted a claim against a "Jones Act Employer." (Defs.' Opp'n 5.) Defendants premise their argument on a series of Supreme Court cases that provide a framework for determining whether a particular shipowner is an "employer" for Jones Act purposes. Lauritzen v. Larsen, 345 U.S. 571 (1953); Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970).

In Lauritzen, a Danish seaman by the name of Larsen, while temporarily in New York, joined the crew of a Danish ship. 345 U.S. at 573. Larsen was a member of a Danish union and his employment contract provided that his rights as a crew member would be governed by Danish law. Id. Larsen was injured during the course of his employment while his ship was in the Havana Harbor. He subsequently brought suit under the Jones Act in the Southern District of New York. Id. Reviewing the case on appeal, the Supreme Court articulated a number of factors that courts should consider when evaluating whether a plaintiff may sue a particular employer under the Jones Act. Lauritzen, 345 U.S. at 583-92. These factors include: 1) the place of the wrongful act; 2) the law of the flag; 3) the allegiance or domicile of the injured plaintiff; 4) the allegiance of the defendant; 5) the place of contract; 6) the inaccessibility of a foreign forum; and 7) the law of the forum. Id. In Rhoditis, the Court added the defendant's "base of operations" to this list. 398 U.S. at 309.

Defendants agree that claims to which the Jones Act applies are generally not removable. (Defs.' Opp'n 3.) However, Defendants ask us to apply the Lauritzen-Rhoditis factors and determine whether the Plaintiff has properly asserted a claim against a Jones Act employer. We are satisfied that it would be inappropriate for the Court to engage in a Lauritzen-Rhoditis analysis at this time.

The Third Circuit has determined that courts should apply the Lauritzen-Rhoditis analysis "to determine choice of law, not subject matter jurisdiction." Neely v. Club Med Mgmt. Servs., Inc., 63 F.3d 166, 177-78 (3d Cir. 1995); see also In re Del. Bay Launch Serv., Inc., No. 06-595, 2010 WL 2898296, at *2-3 (D. Del. July 20, 2010). The Third Circuit warned that "treating the Lauritzen analysis as going to subject matter jurisdiction would be out of keeping with the approach of most jurisdictional inquiries, which tend to be straight-forward threshold questions." Neely, 63 F.3d at 177. Since a Lauritzen--Rhoditis analysis implicates choice of law questions ...

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