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GATES CONSTR. CORP. v. KOSCHAK

June 5, 1992

GATES CONSTRUCTION CORPORATION, Plaintiff, against WALTER KOSCHAK, JR., and CAROL KOSCHAK, Defendants. WALTER KOSCHAK, JR., and CAROL KOSCHAK, Plaintiffs, -against- GATES CONSTRUCTION CORPORATION, Defendant.


The opinion of the court was delivered by: MICHAEL B. MUKASEY

 MICHAEL B. MUKASEY, U.S.D.J.

 Gates Construction Corporation ("defendant") has sued Walter Koschak, Jr., and Carol Koschak ("plaintiffs") for a declaratory judgment that Walter Koschak is not entitled to sue as a seaman under the Jones Act, 46 U.S.C. § 688, et seq., for injuries sustained while employed by defendant ("the declaratory judgment action"). Just after filing the declaratory judgment action, defendant removed to federal court the Jones Act personal injury suit brought by plaintiffs in Supreme Court, Bronx County ("the Jones Act suit"). Plaintiffs move to remand the Jones Act suit and to dismiss the declaratory judgment action. For the reasons set forth below, plaintiffs' motions are granted.

 I.

 On March 8, 1989, during his employment and while constructing foot bridges at Liberty Island State Park, Walter Koschak was injured by a piece of flying debris. (Declaratory J. Compl. P 11) In December, 1990, plaintiffs attempted to commence the Jones Act suit in Supreme Court, Bronx County, by mailing a summons and complaint to defendant's New Jersey headquarters. (Pl. Notice of Mot. Ex. A) In its Answer, defendant alleged that the December service had been defective and that, therefore, the court lacked personal jurisdiction over defendant. (McElligott Aff. P 5; see Notice of Mot. Ex. H)

 In addition to its Answer, defendant also served on plaintiffs a series of discovery demands. (See McElligott Aff. P 6 and Ex. A) Defendant deposed Walter Koschak on February 28, 1991, and plaintiffs deposed defendant for the first time on May 29, 1991. The parties continued with discovery throughout the summer of 1991. (Id. PP 7-13)

 Plaintiffs' attorney, Paul Matthews, Esq., claims that on June 4, 1991, he had a summons and complaint personally served on defendant. However, defendant claims that it never received the June 4, 1991 summons and complaint (Declaratory J. Compl. PP 17-18), and Matthews did not provide an affidavit service until October 23, 1991, when he moved to have it admitted nunc pro tunc in the state action. Matthews claims that he did not file the affidavit of service until October because of a change in the New York service statute and a timing error. (Matthews Aff. P 5)

 On August 29, 1991, defendant filed the declaratory judgment action at hand, seeking a determination "of its rights and responsibilities to Walter Koschak under either the Longshore and Harbor Workers' Compensation Act or the Jones Act . . . ." (Declaratory J. Compl. I P 18)

 On September 27, 1991, plaintiffs again served process on defendant; defendant does not contest the validity of this service of process. (McElligott Aff. P 22)

 On October 15, 1991, defendant filed a notice of removal in the Southern District of New York pursuant to 28 U.S.C. § 1441 et seq.; accordingly, the Jones Act suit was removed to this Court.

 II.

 Plaintiffs move to remand the Jones Act suit to state court on the grounds that: (1) 28 U.S.C. § 1445(a) prohibits removal of Jones Act suits; (2) the removal petition was untimely; and (3) defendant is barred by laches. (Pl. Mem. at 2)

 Section 1445(a) of Title 28 provides that: "A civil action in any State Court against a railroad or its receivers or trustees, arising under Sections 51 to 60 of Title 45, may not be removed to any district court of the United States." Under 46 U.S.C. § 688, the statutes modifying railway employees' remedies are applicable to seamen. Therefore, Jones Act claims ordinarily are not removable. See Gonsalves v. Amoco Shipping Co., 733 F.2d 1020, 1021-22 (2d Cir. 1984); Pate v. Standard Dredging Corp., 193 F.2d 498, 500 (5th Cir. 1952).

 Defendant argues that the Jones Act suit is removable because the declaratory judgment action was brought "to ascertain whether indeed Walter Koschak was a seaman at the time of his injuries, or was only a dock builder, as Gates contends." (Def. Mem. at 9-10) Although a question of fact exists as to whether Walter Koschak qualifies as a Jones Act ...


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