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NIELSEN v. WEEKS MARINE INC.

December 15, 1995

FRANCIS NIELSEN and JACQUELINE NIELSEN, Plaintiffs, against WEEKS MARINE INC. and DERRICK VESSEL BARGE 525, Defendants.


The opinion of the court was delivered by: NICKERSON

 NICKERSON, District Judge:

 Plaintiff Francis Nielsen, a New York resident, brought this personal injury action in April 1993 in New York Supreme Court, Richmond County, alleging under the Jones Act, 46 U.S.C. App. § 688, that defendants were negligent and alleging liability under the general maritime law and for unseaworthiness. His wife, plaintiff Jacqueline Nielsen, also asserted a claim for loss of consortium. Defendant Weeks Marine Inc. (Weeks), a New Jersey corporation, removed the case to this court on May 19, 1993 pursuant to 28 U.S.C. §§ 1441, on the ground that the action was founded on a claim under the Jones Act and general maritime law. This court has jurisdiction under 28 U.S.C. §§ 1331 and 1332.

 Thereafter the parties took depositions and engaged in other discovery. In 1995 defendants moved for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiffs then cross-moved and for the first time sought to remand the case to state court pursuant to 28 U.S.C. § 1447(e).

 I

 The following relevant facts as to the merits of the claims are undisputed. Weeks contracted with New York City to renovate certain slips and piers at the Old Coast Guard Piers in Staten Island. In 1991 Weeks employed Francis Nielsen as a dockbuilder who belonged to a dockbuilders' union.

 From approximately March through May of 1991, Nielsen was part of a dockbuilding gang assigned by Weeks to repair Pier 2A of the Old Coast Guard Piers. Weeks used Derrick Vessel Barge 525 (Barge 525) at the pier to store materials and to set and drive piles. A tugboat brought Barge 525, carrying the derrick, to the site where the barge was tied to the pier. Otherwise Barge 525 never carried persons or materials to and from the pier. Another barge supplied Barge 525 with additional piles for the project.

 Barge 525 remained anchored at the work site for the duration of the renovation. It housed several structures for storage of piles and other construction materials and also held the derrick used to drive piles. Although it could not travel independently through open waters, Barge 525 could move 100 feet up and down the pier along its own cables by using anchors and motorized winches.

 Nielsen and the rest of the dockbuilding gang came to the pier every day by car. He would arrive at 6:30 a.m., park his car, and walk across the pier to Barge 525, where he would change into his work clothes and get his tools and equipment. After changing, he would return to the pier or to the checkerboard, a temporary frame located next to the pier and used to set and drive piles. A substantial portion of his duties were carried out on the pier or the checkerboard. At no time did he or any other member of his gang sleep on Barge 525.

 On May 23, 1991, Nielsen sustained leg injuries while loosening and refitting piles on the checkerboard. Barge 525 was stationary for all of that day.

 II

 Plaintiffs' cross-motion to remand is based on 28 U.S.C. § 1447(e), which provides that "if after removal the plaintiff seeks to join additional defendants whose joinder would destroy subject matter jurisdiction, the court may deny joinder, or permit joinder and remand the action to the State court." Plaintiffs say that they have actions pending in New York State Court against New York City, the owner of the Old Coast Guard Piers, and Frederick R. Harris, Inc., the engineering firm supervising the work, and that joinder of these parties would destroy subject matter jurisdiction.

 Section 1447(e) applies only if the party seeking a remand asks to join non-diverse parties as defendants. Plaintiffs have not done that. Cf. Wyant v. National R.R. Passenger Corp., 881 F. Supp. 919 (S.D.N.Y. 1995) (allowing joinder of non-diverse defendant and remanding case to state court). But in any event that section does not authorize remand here.

 The court has subject matter jurisdiction over this case not only because of diversity of citizenship, but also because it arises under the Jones Act, a law of the United States. The joinder of ...


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