IN THE DISTRICT COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN
CARMELA SUSINO ) ESTATE OF DECEDENT ) Case No. 3:21-cv-0038 LUCIANO SUSINO on her own behalf and on ) behalf of the DECEDENT LUCIANO ) SUSINO, and all other statutory ) b e n e f i c i a r iPelsa oinftiff, ) ) v. ) ) AIR & LIQUID SYSTEMS CORPORATION ) ) ) (sued individually and as successor-by- ) merger to BUFFALO PUMPS, INC.), a ) PAe.Wnn. sCyHlvEaSnTiaE RCoTrOpNor CaOtioMnP wAiNthY its principal ) place of business in the State of Pennsylvania; ) , a DelawCRarAeN E ) CCOor.poration with its principal place of ) business in the State of Massachusetts; ) (sued individually and as successor-in- ) interest as CHAPMAN VALVE CO.), a Delaware ) CEoArGpLoEraBtUioRnG wMitAhN iNts IpNrDinUciSpTaRl pIElaSc IeN oCf. ) business in the State of Connecticut; ) (fs/uke/da ) individually and as successor in-interest to ) BURGMANN PACKINGS AMERICA, INC. ) BURGMANN SEALS AMERICA, INC., successor-) in interest to BURGMANN SEALS AMERICA, ) INC.), ;a E DAeGlaLwEaBrUeR CGoMrpAoNraNti oINnD wUitShT iRtsI ES LP ) principal place of business in the State of ) Texas ) (sued individually and as successor-in- ) interest to BURGMANN PACKINGS AMERICA, ) INC. f/k/a BURGMANN SEALS AMERICA, INC., ) successor-in-interest to BURGMANN SEALS ) AMERICEALL, IINOCT.T), aC ODMelaPwAaNrYe Corporation with ) its principal place of business in the State of ) Texas; (sued individually ) and as successor-in-interest to ELLIOTT ) TURBO MACHINERY COMPANY, INC.), a ) DFLeOlaWwaSrEeR CVoErpUoSr,a ItNioCn. with its principal place ) of business in the State of Pennsylvania; ) (sued individually and ) as successor-in-interest to EDWARD VALVES), Case N2o. 31:241-cv-0038 Memorandum Opinion Page of FMC ) CORPORATION ) place of business in the State of Texas; ) (sued individually and as ) successor-in-interest to NORTHERN PUMP ) COMPANY and as successor-in-interest to J.S. ) COFFIN PUMP COMPANY), a DelawareF OSTER ) CWoHrpEoErLaEtiRo nE wNEitRhG itYs CpOriRncPiOpaRl ApTlaIcOeN of ) business in the State of Pennsylvania; ) , a ) DFOelSaTwEaRre W CHorEpEoLrEatRio LnL wCith its principal place ) of business in the State of New Jersey; ) , a DelawareG ENERAL ) CEoLrEpCoTrRatIiCo nC OwMithP AitNs Yprincipal place of ) business in the State of New Jersey; ) , a New York ) CGoOrUpLoDraSt iPoUn MwPitSh LitLsC pfr/ink/ciapGalO pUlaLcDeS o Pf UMPS ) bINuCsiOnResPsO inR AthTeE SDtate of Massachusetts; ) ) HES,S a O DIeLl aVwIRaGreI NC oISrpLoArNaDtio n ) wCOitRhP it.s principal place of business in the State ) of New York; ) HESS C, Oa RUP.SO. VRiArgTiInO INslands Corporation with ) is principal place of business in New York; ) , a Delaware HESS OIL ) CNoErWpo YraOtRioKn CwOitRhP i.ts principal place of ) business in the State of New York; ) OVER, SaE NAeSw S HYoIPrkH COoLrDpIoNraGt ion ) wGRitOh UitPs ,p IrNinCc.ipal place of business in the State ) of New York; ) PARK, aE DRe-HlaAwNaNreI FCIoNr pCoOrRatPioOnR wATithIO itNs ) principal place of business in the State of ) Florida; ) (sued individually and as successor-in interest ) to SACOMA-SIERRA, INC.), anV OIhAiCoO MCBS ) CINoCrp.ofr/akt/ioan with its principal plaf/cke/ oaf ) business in the State of Ohio; ) ( CBS fC/OkR/aPORATION, ) VIACOM, INC. successor-by-merger with CBS ) CORPORATION WESTINGHOUSE ) ELECTRIC CORPORATION), a Dela ware ) C o r p o r Dateifoenn wdaitnht ist.s principal place of ) busines s in the State of New York, Case N3o. 31:241-cv-0038 Memorandum Opinion Page of MEMORANDUM OPINION MOLLOY, Chief Judge. BEFORE THE COURT are Plaintiff’s motions to remand. (ECF Nos. 37 and 42.) For the reasons stated below, the Court will grant the motion and remand this action to the Superior Court of the IV. iFrgAiCnT IsUlaAnLd As.N D PROCEDURAL BACKGROUND This matter comes before the Court as a wrongful death and survival action against Overseas Shipholding Group, Inc. (“OSG”) and eighteen other defendants. Plaintiff Carmela See . Susino (“Plaintiff”) is the daughter of decedent Luciano Susino (“Mr. Susino”), and the representative of his estate and beneficiaries. ECF No. 1-1 Plaintiff alleges that Mr. Susino was exposed to asbestos while serving as a seaman from approximately 1978 to 1980 aboard vessels owned, operated, and/or managed by Id. OSG, including while such vessels were docked at the Hess Oil Virgin Islands Corp refinery See id. on St. Croix, Virgin Islands. at 10. Following a medical examination on February 28, See id. 2017, Mr. Susino was diagnosed with malignant mesothelioma. at 21. Sadly, Mr. Susino died of mesothelioma on March 5, 2018. at 8. Plaintiff alleges that his death See id. was the result of exposure to asbestos containing products controlled by the defendants. at 8. On March 5, 2021, Ms. Susino, on her own behalf, and on behalf of the estate of the See id. Decedent, Mr. Susino, and his beneficiaries, commenced a civil action against OSG, HONX, Inc. and sixteen other defendants (collectively “Defendants”). at 1-3. The Complaint organizes the numerous Defendants by placing them in different group classifications, See id. namely: Manufacturer Defendants, Equipment Defendants, Boiler Defendants, and 1 Premises Defendants. at 4-8. The six-count complaint alleges: negligence against 1 See id. 3M Company; A.W. Chesterton Company; Eagleburgmann Industries, Inc.; and Parker-Hannifin Corporation are being sued as Manufacturer DSeefee indd. ants. at 4-8. Air & Liquid Systems Corporation; Crane Co.; Elliott Company; FMC Corporation; Flowserve Us, Inc.; GenerSael eE liedc. tric Company; and Goulds Pumps LLC are being sued as Equipment Defendants. at 4-6. Foster Wheeler EnergSye Ce oidrp. oration; Foster Wheeler LLC; and ViacomCBS, Inc. are being sued as Boiler Defendants. at S5e-e7 i. d H. ess Oil Virgin Islands Corp; Hess Corp; a nd Hess Oil New York Corp. are being sued as Premise Defendants. at 6. Overseas Shipholding Group, Inc. is being sued as a Jones Act/Maritime Employer Defendant. Case N4o. 31:241-cv-0038 Memorandum Opinion Page of 2 Equipment Defendants (Count One); strict liability (Count Two); negligence against Premises Defendants (Count Three); violations of Title 46 U.S.C. § 30104 (the “Jones Act”) See id. (Count Four); violations of general maritime law (Count Five); and loss of consortium See id. premised on the allegations in Counts One through Five. at 11-29. Plaintiff also asserts claims for wrongful death and survival and seek punitive damages at 29-30. Defendant 3M Company (“3M”) removed the case to this Court on April 23, 2021, on the bases of diversity jurisdiction and federal question jurisdiction, asserting that Counts See Four and Five allege violations of federal law, and thus, argues that the Court has original 3 jurisdiction over the matter. ECF No. 1 at 4. Plaintiffs filed the instant Motion for Remand on May 28, 2021, arguing that neither See of the asserted grounds for federal subject matter jurisdiction are valid, and that a See procedural defect in removal necessitates remand. ECF No. 42. Initially, all appearing defendants stated that they did not intend to oppose remand. ECF No. 81. At the Status Conference held before the Magistrate Judge on July 15, 2021, OSG asserted that the Court See has jurisdiction over the matter under 28 U.S.C. § 1334(b), as this matter is “related to” its prior bankruptcy reorganization. ECF No. 99 at 1. On July 16, 2021, the Magistrate Judge ordered all defendants to file an opposition to the Motion to Remand, or a statement See that they do not oppose remand, support of this new basis for jurisdiction, and permitted Plaintiff additional time to supplement their Motion and reply to OSG’s Opposition. ECF 4 No. 81. See OSG filed its opposition to Plaintiff’s Motion to Remand on July 30, 2021, advancing 5 bankruptcy as a ground for removal pursuant to § 1334(b). ECF No. 95. Plaintiff filed 2 This Count does not apply to OSG or the Premises DefendanStese. 3 3M company was dismissed as a party on March 18, 2022. ECF No. 101. 4 Ten defendants filed statements asserting that they had no objection to remand: (1) Air & Liquid Systems, (2) Crane Co., (3) EngSleebe urgmann Industriers, Inc., (4) Engleburgmann Industries LP, (5) General Electric Co., (6) Flowserve US, Inc, (7) Foster Wheeler, LLC, (8) Foster Wheeler Energy Corporation, (9) FMC Corporation, (10) ViacomCBS, Inc. ECF Nos. 85, 86, 87, 88, 89, 90,91, 92, 97 See 5 Hess Oil New York Corp and Hess Corporation joined in OSG’s Opposition on July 30, 2023. ECF No. 96. Case N5o. 31:241-cv-0038 Memorandum Opinion Page of See the Supplement to Their Motion for Remand and Response to Defendants’ Filings Concerning Federal Jurisdiction on August 16, 2021. ECF No. 99. Plaintiff concedes that the Court may otherwise exercise jurisdiction pursuant to § 1334(b) but argues that See id. removal on the basis of bankruptcy is untimely, and that OSG cannot amend the notice of See id. removal to add an entirely new basis for jurisdiction at this late hour. at 2. Plaintiff otherwise requests that the Court remand the action on equitable grounds. at 4. On May 12, 2022, HONX, Inc.—formerly known as Hess Oil New York Corp. and/or See as Hess Oil Virgin Islands Corp.— filed its Suggestion of Bankruptcy for HONX, Inc. and Notice of Automatic Stay of Proceedings. ECF No 102. The filing states that on April 28, 2022, HONX, Inc. filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. §§ 101–1532 (the “Bankruptcy Code”) in the United States Bankruptcy Court for the Southern District of Texas. (ECF No. 102 at 1.) HONX, Inc. further asserts that pursuant to 11 U.S.C. § 362(a), the Chapter 11 filing gives rise to an automatic stay of “the commencement or continuation of any judicial, administrative, or other action Id. or proceeding against [HONX, Inc.] that was or could have been commenced before the commencement of the Chapter 11 Case.” On March 13, 2023, Plaintiff filed a Request for Ruling on Remand, asserting that a ruling on the remand would not violate the automatic stays related to bankruptcy proceeIdIi. nLgEsG aAffLe cStTinAgN tDhiAs RmDa tter.6
Under 28 U.S.C. § 1441(a), a defendant may remove any civil action brought in a See State or Territorial court if the federal court would have had original jurisdiction over the action. 28 U.S.C. § 1441(a). Congress has granted federal courts original jurisdiction over cases involving a federal question, 28 U.S.C. § 1331; cases between “citizens of different states”, or “citizens of a State and citizens or subjects of a foreign state,” in which Theodore v. Hess Corporation 6 Plaintiff cites to the recent decision in , et al., Civ. No.: 1:21-cv-00178 (D.V.I. December 14, 2022) (ECF No. 81), in which Judge Wilma A. Lewis of the Division of St. Croix remanded an action to Stehee iSdu. perior Court for lack of subject matter jurisdiction notwithsMtacnNdainmga arna avu. tHoemssa tCioc rbpa.nkruptcy stay. The Memorandum Opinion and Order cited does not discuss the effect of bankruptcy stays on motions to remand. However, the opinion cites to a related opinion entered in , Civ. No.: 1:20-cv-0060, 2022 U.S. Dist. LEXIS 223220 (D.V.I. Dec. 12, 2022), which provides a thorough analysis of such motions to remand. Case N6o. 31:241-cv-0038 Memorandum Opinion Page of the amount in controversy exceeds $75,000, 28 U.S.C. § 1332; and cases involving admiralty or maritime disputes, 28 U.S.C. § 1333. A defendant seeking to remove a civil action from state court must file a notice of removal within 30 days of being served “containing a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a). See A plaintiff may seek to remand the action back to state court for lack of subject matter jurisdiction or any defect in removal procedure. 28 U.S.C. § 1447(c). Furthermore “[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447. “The party Samuel-Bassett v. KIA Motors Am., Inc. asserting jurisdiction bears the burden of showing that at all stages of the litigation the case is properly before the federal court.” , 357 F.3d 392, 396 (3d Cir. 2004). As federal courts are of limited jurisdiction, “removal statutes ‘are to be Batoff v. State Farm Ins. Co. strictly construed against removal and all doubts should be resolved in favor of remand.’” , 977 F.2d 84II8I,. 8A5N1A (L3YdS CISir . 1992). A. Effect of Automatic Bankruptcy Stay on Motions to Remand Although no party has explicitly asserted such argument, the Court will first address whether the automatic stay of proceedings, applicable here pursuant to section 362(a) of the Bankruptcy Code, bars the Court from addressing the instant motion to remand. Bankruptcy proceedings trigger the automatic stay provision of section 362(a) barring the “commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the [bankruptcy ] case . . . .” 11 U.S.C. § 362(a). This Olick v. Northampton Cty. Tax Claim Bureau (In re Olick) provision offers debtors a “‘breathing spell’ from creditors by stopping all collection Maritime Electric Co., Inc. v. United Jersey Bank efforts.” , 504 F. App’x 189, 193 (3d Cir. 2012) (quoting , 959 F.2d 1194, 1204 (3d Cir. 1991)). Recently, a case in the Division of St. Croix of the District Court of the Virgin Islands addressed whether the issue of remand constitutes a “continuation of the action” pursuant Case N7o. 31:241-cv-0038 Memorandum Opinion Page of See McNamara v. Hess Corp. to 11 U.S.C. § 362(a). At issue was the bankruptcy stay triggered by HONX, Inc.’s bankruptcy petition. , Civil Action No. 2020-0060, 2022 U.S. Dist. LEXIS 223220, at *11-14 (D.V.I. Dec. 12, 2022). Reasoning that remanding an action to See id. state court does not require the court to address the merits of the case, the court found that a remand did not constitute a prohibited continuation of proceedings under § 362. at *12-13. The court further found that remanding an action “does not affect [the Defendant’s] Id. financial status, assets, or creditors’ standing in the bankruptcy proceeding which the See id. automatic stay is designed to protect.” at 13.The court therefore found it was permitted
to address the motion to remand notwithstanding the bankruptcy stay. This conclusion is consistent with holdings across the circuits, where courts have See Schaffer v. Atl. Broad. of Lindwood NJ Ltd. Liab. Co. concluded that remands do not violate the automatic stay provision triggered by bankruptcy filings. , Civil No. 10-5449, 2011 U.S. Dist. LEXIS 53255, 2011 WL 1884734, at *13 (D.N.J. May 17, 2011) (“[T]he Court Sanders v. Farina finds that remand of this matter to the Superior Court of New Jersey does not violate 11 U.S.C. § 362.”); , 67 F. Supp. 3d 727, 729 (E.D. Va. 2014) (“[A] remand Lindley Contours, LLC v. AABB Fitness Holdings, Inc. pursuant to 28 U.S.C. § 1441 does not constitute ‘commencement or continuation’ of an action.”); , 414 F. App’x 62, 63 (9th Cir. 2011) (“[A] decision remanding to the district court with instructions to remand to the Cnty. of Cook v. Mellon Stuart Co. state court for lack of jurisdiction is not a prohibited ‘continuation’ of the action under § 362.”); , 812 F. Supp. 793, 798 n.3 (N.D. Ill. 1992) (“The subsequent bankruptcy filing and resulting stay under section 362 of the Bankruptcy Code, 11 U.S.C. § 362, do not prevent this court from remanding an improperly removed action.”). Here, the proceedings are stayed by the bankruptcy petitions of both OSG and HONX, Inc, which bar the commencement or continuation of proceedings against these defendants. However, the instant motion is a motion for remand, which, as described above, does not require the Court to reach the merits of the case. Rather, a motion to remand asks the Court if it is permitted by Congress to make any conclusions regarding the merits of the case. The Court further agrees with the wealth of guidance from our sister courts, finding that motions to remand do not run contrary the underlying purpose of the Case N8o. 31:241-cv-0038 Memorandum Opinion Page of bankruptcy stay. Motions to remand do not disturb a petitioner’s “breathing spell,” or otherwise affect a defendant’s financial status. Accordingly, the Court will proceed on this motBio. nW fohr ertehmearn tdh.i s Court has Subject Matter Jurisdiction i. Bankruptcy Jurisdiction In its Opposition to Plaintiff’s Motion to Re, mand, OSG argues that subject matter jurisdiction exists pursuant to 28 U.S.C. § 1452(a) which provides for removal of claims “related to” bankruptcy cases, as well as 28 U.S.C. § 1334(b), which provides that federal courts have “original but not exclusive jurisdiction of all civil proceedings arising under See title 11, or arising in or related to cases under title 11.” (ECF No. 95 at 1); 28 U.S.C. § 1452; 28 U.S.C. § 1334(b). Plaintiff concedes that § 1334(b) provides a valid basis for removal. ECF No. 99 at 2. Plaintiff argues, however, that removal on the basis of bankruptcy See id. jurisdiction is untimely, and OSG cannot otherwise assert a new ground for removal at this time. Generally, a defendant seeking to remove a civil action from state court must file a notice of removal within 30 days of being served “containing a short and plain statement of USX Corp. v. Adriatic Ins. Co. the grounds for removal.” 28 U.S.C. § 1446(a). During this 30-day period, a defendant may freely amend the notice of removal. , 345 F.3d 190, 205 n.13 (3d Cir. 2003). Thereafter, defendants must seek leave from the court to any amendments that A.S. v. SmithKline Beecham Corp. may only “clarify (or correct technical deficiencies in) the allegations already contained in USX Corp. see the original notice.” , 769 F.3d 204, 214 (3d Cir. 2014) See SmithKline, (quoting , 345 F.3d at 205 n.12.); 28 U.S.C. § 1653. Amendments may not cf. Newman-Green, Inc. v. Alfonzo-Larrain correct fundamental defects nor assert new grounds for removal. 769 F.3d at 214; , 490 U.S. 826, 832 (1989) (opining that Kovach v. Coventry while courts may amend defective allegations of jurisdiction under 28 U.S.C. § 1653, they Health Care, Inc. may not “produce jurisdiction where none actually existed before”); Gray v. , No. 02:10-cv-00536, 2011 U.S. Dist. LEXIS 6953, at *14-17 (W.D. Pa. Jan. Remley 25, 2011) (deeming waived a basis for removal raised beyond the 30-day window); , No. 1:03-CV-421, 2004 U.S. Dist. LEXIS 7697, at *5-6 (M.D.N.C. Apr. 30, 2004) Case N9o. 31:241-cv-0038 Memorandum Opinion Page of (refusing to permit amendment of a notice of removal to allege federal bankruptcy jurisdiction, where the original notice of removal contained no such allegations, and the See PMC, Inc. v. Tomco Constr., Inc. time to remove had expired). Likewise, Defendants may not raise a new jurisdictional basis in an opposition to a motion to remand. , No. 2:21-cv- 13470 (BRM) (JSA), 2021 U.S. Dist. LEXIS 223306, at *10-11 (D.N.J. Nov. 18, 2021) (“[A] Rehman v. Basic defendant may not add an entirely new basis for this Court’s removal jurisdiction by raising Moving, No. Civ. A. 09-248 it only in an opposition brief filed more than thirty days after removal.”); , 2009 U.S. Dist. LEXIS 41281, 2009 WL 1392149 (W.D. Pa. May Hahn v. Rauch 15, 2009) (finding that an argument which raised a “new and independent ground for removal” in response to a motion to remand did not have merit); , 602 F. Supp. 2d 895, 909 (N.D. Ohio 2008) (“A defendant cannot argue a new substantive ground as a basis for removal in opposing remand.”) In its opposition to Plaintiff’s motion to remand, OSG does not seek leave to amend See the notice of removal but asserts bankruptcy as grounds for jurisdiction in its opposition, nonetheless. ECF No. 95. However, even if OSG sought to amend the notice of removal to include bankruptcy jurisdiction as grounds for removal it would be far too late to do so at this time. The notice of removal filed by 3M on April 23, 2021, avers that this Court has See jurisdiction on the bases of diversity jurisdiction and federal question jurisdiction, See id. asserting that Counts Four and Five allege violations of federal law. ECF No. 1 at 4. Bankruptcy jurisdiction was not asserted therein. OSG had until May 23, 2021, to amend the notice of removal to assert these new substantive grounds. However, OSG failed do so. Accordingly the Court finds that this untimely assertion of bankruptcy jurisdiction ii. Diversity Jurisdiction 7 lacks merit, and removal is not proper on these grounds.
Lincoln Ben. Life Co. v. AEI Life Diversity jurisdiction generally requires “complete diversity between all plaintiffs and all defendants.” , LLC, 800 F.3d 99, 101 (3d Cir. 2015). See 7 See id. On May 17, 2023, OSG filed a renewed opposition to Plaintiff’s motion to remand. ECF No. 112. OSG reasserts its arguments that jurisdiction is proper under §§ 1334(b) and 1452(a). at 1. This argument remains moot, as the assertion of bankruptcy jurisdiction was grossly untimely, and otherwise procedurally improper. Case N10o. 3:2114-cv-0038 Memorandum Opinion Page of Where, as here, an action involves citizens of a State and citizens of a foreign state, 28 U.S.C. § 1332(a)(2) outlines the circumstances under which diversity jurisdiction may be established. In pertinent part, 28 U.S.C. § 1332 provides: The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between- ... (2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State; 28 U.S.C. § 1332(a)(2). Dresser Indus. v. Underwriters at Lloyd’s of London The Third Circuit has explained that § 1332(a)(2) “only grants jurisdiction in cases between aliens and citizens.” , 106 F.3d Id 494, 499 (3d Cir. 1997). “Cases between aliens on one side and aliens and citizens on the other, therefore, do not fit the jurisdictional pigeonhole.” . In other words, “the presence Virgin Diving, LLC et al. v. Blake of aliens on both sides of a civil action in which U.S. citizens appear on only one side destroys otherwise good alienage jurisdiction.” , 2018 U.S. Dist. LEXIS 164971, at *9-10. Here, the parties to not dispute that Plaintiff, filing suit on her own behalf and on behalf of the Estate of Mr. Luciano and all other statutory beneficiaries of Mr. Luciano’s Estate, is considered an Italian foreign national, and therefore is a citizen of a foreign state. Thus, the Court must determine whether any defendant is also an alien for diversity purposes. If one or more defendants are citizens of a foreign state, complete diversity does not exist, and the Court does not have jurisdiction based on diversity of citizenship. See Zambelli Fireworks Mfg. Co. v. Wood The rules for determining citizenship for purposes of diversity jurisdiction are well See id. established. , 592 F.3d 412, 418 (3d Cir. 2010). A natural person is deemed a citizen of the state in which she is domiciled. A corporation is deemed a citizen of “every State and foreign state by which it has been incorporated and of the State or foreign state where it has its principal place of business.” Case N11o. 3:2114-cv-0038 Memorandum Opinion Page of S ee Zambelli McCann v. George W. Newman Irrevocable Tr. members. , 519 F.3d at 420. “The party asserting diversity jurisdiction bears McNutt v. Gen. Motors Acceptance Corp. the burden of proof.” , 458 F.3d 281, 286 (3d Cir. 2006) (citing , 298 U.S. 178, 189 (1936)). “A Id. party generally meets this burden by proving diversity of citizenship by a preponderance of the evidence.” GBForefront, L.P. v. Forefront Mgmt. Grp., LLC A court evaluating a challenge to diversity jurisdiction “must determine whether the challenge is a facial attack or a factual attack.” , 888 F.3d 29, 35 (3d Cir. 2018). A facial attack “challenges subject matter jurisdiction Papp v. Fore-Kast Sales Co. without disputing the facts alleged in the [notice of removal], and it requires the court to Davis v. Wells Fargo consider the allegations as . . . true.” , 842 F.3d 805, 811 (3d Cir. 2016) (quoting , 824 F.3d 333, 346 (3d Cir. 2016)) (alterations in Id. original). Conversely, a factual attack challenges “the factual allegations underlying the assertion of jurisdiction, and involves the presentation of competing facts.” When See GBForefront resolving a factual challenge, courts may consider evidence outside of the pleadings and/or notice of removal. , 888 F.3d at 35 (quoting Aichele, 757 F.3d at 358). Here, Plaintiffs assert a factual challenge to diversity jurisdiction, therefore the Court may consider external evidence. In both Plaintiff’s Complaint and the Notice of Removal, the parties aver that Foster See Wheeler, LLC is a Delaware corporation with its principal place of business in the State of New Jersey. ECF No. 1 at 8; ECF No. 1-1 at 5. Plaintiff now challenges this averment, See stating that her previous allegations of citizenship were incorrect, and arguing instead that Foster Wheeler LLC is a citizen of England, Wales, and/or Scotland. ECF No. 40 at 7. Of course, the place of incorporation and the principal place of business of a limited liability company are irrelevant for purposes of determining the citizenship of that See company. Plaintiff initially notes that Foster Wheeler LLC is a limited liability company, See id. citing its name as evidence, and assert that its citizenship is that of all of its members. ECF No. 6. However, Foster Wheeler failed to file a disclosure of its ownership. at 7. Plaintiff thus adduced Foster Wheeler’s citizenship based on the LLC’s filings in other actions. Plaintiff first directs the Court to the Corporate Disclosure Statement filed in Case N12o. 3:2114-cv-0038 Memorandum Opinion WPagaeu gh ovf . V iacom CBS, Inc. , No. 3:21-cv-00145 (D. Conn. Feb. 10, 2021), in which Foster Wheeler stated that it is “a wholly-owned indirect subsidiary of John Wood Group plc See (Scotland), a publicly traded company owning 10% or more of Foster Wheeler LLC’s stock.” Payne et al. v. ABB, Inc. et al. ECF No. 40 at 7; ECF No. 40-1 at 2. Plaintiff next cites to the Notice of Interested Parties filed in , No. 2:20-cv-01198 (E.D. Cal. July 16, 2020), which See provides that Foster Wheeler is “a wholly-owned, indirect subsidiary of Amec Foster Wheeler plc, a publicly traded company.” ECF No. 40 at 7; ECF No. 40-2 at 3. Plaintiffs See Amec aver that Amec Foster Wheeler plc is “a company organized under the laws of England and Foster Wheeler plc v. Enterprise Prods. Operation, LLC, Wales, with its principal place of business in England.” ECF No. 40 at 7 (quoting 631 S.W.3d 147, 151 (Tex. App. 8 2020). Waugh The Court has verified that the proffered exhibits were filed in the referenced cases. The Court further notes that the corporate disclosure statement in was filed on See February 10, 2021, not even three months before the instant matter was removed to federal court on April 23, 2021. ECF No. 40-1. Furthermore, no defendant has attempted to meet its burden to prove diversity jurisdiction by a preponderance of the See evidence. To the contrary, Foster Wheeler filed a notice stating that “it does not oppose remand of this case to the Superior Court of the Virgin Islands.” ECF No. 85. At minimum, these un-rebutted exhibits present compelling evidence that Foster Wheeler was a citizen of a foreign state at the time of removal, destroying diversity jurisdiction. However, even if the evidence is not sufficient to prove foreign citizenship, it certainly raises significant doubts as to whether Foster Wheeler is a citizen of Delaware and/or New Jersey. The Court further notes that there is presently no way to ascertain all of Foster Wheeler’s citizenships, as they have failed to provide the Court a disclosure of ownership disclosing the identity of all members within the LLC and detailing the citizenship of such members. Considering that all doubts as to jurisdiction should be
8 Plaintiffs further stated that the 2020 Annual Report of John Wood plc states that “[s]ome of Amec Foster Wheeler’s US subsidiaries are defendants in numerous asbestos-related lawsuits. It is unclear how this argument supports their motion for remand. Case N13o. 3:2114-cv-0038 Memorandum Opinion Page of resolved in favor of remand, the doubts raised by Plaintiffs’ motion and the accompanying exhibits require the Court to remand on these grounds. Accordingly, diversity jurisdiction iii. Admiralty Jurisdiction does not exist here, and thus, removal on this ground is improper.
3M additionally alleges in its notice of removal that the action is properly removable under 28 U.S.C. § 1331, asserting that Count IV, brought under the Jones Act, 46 U.S.C. § See 30104, and Count V, brought under the General Maritime Law of the United States, allege See violations of federal law. ECF No. 1 at 4. In their motion to remand, Plaintiff argues that claims under maritime law do not present federal questions. ECF No. 40 at 5. Plaintiff Id. further argues that she invoked the “saving to suitors” clause in her Complaint, and as a
result federal question jurisdiction does not provide a basis for removal in this action. Under 28 U.S.C. § 1333, “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.” Courts See Auerbach v. Tow Boat U.S. interpret the “saving to suitors” clause of § 1333 to preserve the concurrent jurisdiction of Romero v. 9Int’l Term. Operating Co. state courts in admiralty actions. , 303 F. Supp. 2d 538, 542 (D.N.J. 2004) (quoting , 358 U.S. 354, 372 (1959)). The Supreme Court has explained that “permitting the unfettered removal of admiralty cases to Sea-Land Service, Inc. v. federal courts ‘would make considerable inroads into the traditionally exercised J&W Import/Export, Inc. Romero concurrent jurisdiction of the state courts in admiralty matters.’“ , 976 F. Supp. 327, 330 (D.N.J. 1997) (quoting , 358 U.S. at See U.S. Express Lines, LTD. v. 372). To that end, the Supreme Court has held that admiralty claims do not arise under Higgins Romero federal law for the purposes of federal question jurisdiction. , 281 F.3d 383, 390 (3d Cir. 2002) (citing , 358 U.S. at 368-69.) “Thus, a Id; see also Bardroff v. Keitech USA, LLC maritime claim filed in state court may only be removed if there exists some independent basis for federal jurisdiction.” , No. 2:21-15044
9 Madruga v. Superior Court of Cal. This clause only applies to certain actions, such as in personam actions, “that is, where the defendant is a person, not a ship or some other instrument of navigation.” , 346 U.S. 556, 560-61 (1954). The parties do not dispute that the instant action is an in personam action. Case N14o. 3:2114-cv-0038 Memorandum Opinion Page of (WJM), 2022 U.S. Dist. LEXIS 17317 (D.N.J. Jan. 31, 2022) (remanding a maritime claim filed in state court under the “saving to suitors” clause because there was no other basis for jurisdiction). See Plaintiff initiated this action in the Superior Court as a wrongful death and survival action pursuant to the saving to suitors clause. ECF No. 1-1. Therefore, an independent basis for jurisdiction must exist for the cases to have been properly removed. As explained above, diversity jurisdiction does not exist in this matter. Furthermore, any alternative basis for jurisdiction asserted by OSG was untimely, and thus is deemed waived by the Court. Inasmuch as there is no diversity of citizenship or other basis for jurisdiction, removal is improper here. AccordinglIyV, .t hCeO mNCotLiUonS ItOo Nre mand must be granted. The saving to suitors clause bars the removal of this admiralty action to this Court. In addition, no defendant has demonstrated any other basis for removal. Thus, the Court will grant the instant motion and remand this action to the Superior Court of the Virgin Islands. An appropriate Order follows. Dated: Robert A. Molloy ROBERT A. MOLLOY July 14 , 2023 /Csh/ief Judge _