Trinh v. Yamaha Boat Co., 122 F. Supp. 2d 1364 (S.D. Ga. 2000)

*1365 Robert Bartley Turner, R. Scott Kraeuter, Savage, Turner & Pinson, Savannah, GA, William M. Simon, Simon, Booth & Cook, Savannah, GA, for plaintiff.

Ben L. Weinberg, Jr., Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Atlanta, GA, for Yamaha Golf-Car Company and C & C Manufacturing Company.

G. Mason White, Brennan, Harris & Rominger LLP, Savannah, GA, for Daytona Plastix, Inc.

R. Stephen Sims, Barrow & Sims, P.C., Savannah, GA, for Attwood Corporation.

Joseph H. Barrow, Barrow & Ballew, P.C., Savannah, GA, for CoastMarine, Inc.

Paul W. Painter, Jr., Ellis, Painter, Ratterree & Bart LLP, Savannah, GA, for Rule Industries, Inc.

MOORE, District Judge.

Before this Court are various motions by both Plaintiff and Defendants. After carefully considering all these motions, the Court GRANTS Plaintiff's motion to remand. (Doc. # 2). All other motions are DISMISSED as MOOT.

Plaintiff filed her complaint in the State Court of Chatham County, Georgia. Defendants removed the case to this Court, asserting that the case was governed by the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761, et seq., and was thus removable as a federal question under 28 U.S.C. § 1441(b). Plaintiff responded by filing a motion to remand. Plaintiff claimed that the case was not governed by DOHSA, and further asserted that even if the case was governed by DOHSA, it did not present a federal question making it removable from state court. Defendants filed a response, to which Plaintiff has filed a further response.

The Court finds that even if this case was governed by DOHSA, the case does not present a federal question and is thus not removable under 28 U.S.C. § 1441(b).^[1] A DOHSA claim is an admiralty claim, not a federal question, and therefore does not "arise under" laws of the United States for purposes of § 1441(b).

The Court finds that DOHSA claims are not removable because, historically, admiralty claims have been held to be distinct from federal questions, and only federal questions are removable to federal court under § 1441(b). See Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S. Ct. 468, 3 L. Ed. 2d 368 (1959). In the Romero case, the Supreme Court held that admiralty claims are separate and distinct from federal questions. Id. at 378-79, 79 S. Ct. 468; see also Marine Coatings of Alabama, Inc. v. United States, 792 F.2d 1565, 1566 (11th Cir. 1986) ("The Supreme Court ... has held that admiralty claims do not arise under the laws of the United States ... and thus are not federal question cases.").

In the case of DOHSA, the statute expressly states that claims brought under the statute are admiralty in nature. See 46 U.S.C. § 761 (1982)^[2]; see also In re *1366 Dearborn Marine Service, Inc., 499 F.2d 263, 272 (5th Cir.1974) ("DOHSA has been construed to confer admiralty jurisdiction over claims...."); Filho v. Pozos Int'l Drilling Services, Inc., 662 F. Supp. 94, 100 (S.D.Tex.1987) (noting that because the statute says that a plaintiff "may maintain a suit ... in admiralty" the statute indicates that DOHSA is an admiralty question and not a federal question). Because this law indicates DOHSA claims are admiralty questions, the Romero decision mandates that such claims are not federal questions. Therefore, the Court finds that DOHSA claims are not removable under § 1441(b).

The Court is further persuaded that it has reached the right result by observing that the majority of the courts ruling on the issue agree with this Court's reasoning. See Argandona v. Lloyd's Registry of Shipping, 804 F. Supp. 326, 327 (S.D.Fla. 1992) ("The Court finds that DOHSA claims do not arise under the `laws of the United States' for the purposes of sections 1331 and 1441(b)."); see also Pierpoint v. Barnes, 892 F. Supp. 60 (D.Conn.1995) (holding that admiralty suits among nondiverse parties was not removable); Baker v. Bell Helicopter/Textron, Inc., 907 F. Supp. 1007, 1010 (N.D.Tex.1995) (holding that DOHSA claims were not removable); De Bello v. Brown & Root, Inc., 809 F. Supp. 482 (E.D.Tex.1992) (same); Saunee v. Harry's Dive Shop, 1992 WL 370095, *2 (E.D.La.1992) ("[A] DOHSA claim does not present a federal question."); Tomlin v. Carson Helicopters, 700 F. Supp. 248 (E.D.Pa.1988) (same); Filho, 662 F. Supp. at 98-100 (S.D.Tex.1987) (same).

However, the Court is aware that two courts have disagreed, finding that DOHSA cases are removable to federal court. See Phillips v. Offshore Logistics, 785 F. Supp. 1241 (S.D.Tex.1992) (holding that because the Supreme Court did not say that DOHSA claims cannot be removed from state court, it must have meant for DOHSA claims to be removable); Kearney v. Litton Precision Gear, 1988 WL 383575, 1988 U.S.Dist. LEXIS 16887 (C.D.Cal. March 17, 1988) (same).

The Court declines to follow these two cases, as both fail to examine or even address the Romero decision, which contradicts those courts' decisions by holding that admiralty claims are separate and distinct from federal question claims. This failure leads both courts to base their conclusions on an inaccurate reading of the Supreme Court's decision in Offshore Logistics v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986) (holding that DOHSA claims preempt state law wrongful death claims). They find that the Tallentire court's silence on the issue of whether DOHSA claims are federal questions for the purposes of 1441(b) suggests that DOHSA claims are removable. However, neither the Phillips nor the Kearney court observe that the Tallentire court never expressly overrules or even mentions the Romero decision. That the Tallentire court did not do so indicates that it was not reversing its decision in Romero that admiralty claims are not federal questions. Thus, because the Phillips and Kearney courts reach their decisions without fully examining the controlling case law, this Court does not find those decisions persuasive.

Because admiralty claims are not federal question claims and are not removable under § 1441(b), this Court is convinced that remand is appropriate in this case.

For the foregoing reasons, Plaintiff's motion to remand this case to the State Court of Chatham County is GRANTED. Because the Court does not have jurisdiction to decide the other motions before it, *1367 all other motions filed by Plaintiff or Defendants are DISMISSED as MOOT.

[1] The Court has not, and will not, rule on whether DOHSA is applicable in this case.

[2] The DOHSA statute states that:

"Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any state, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued." (emphasis added).

The addition of the words "in admiralty" strongly suggest that the statute meant to confer admiralty jurisdiction.