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March 3, 1999


The opinion of the court was delivered by: Block, District Judge.


Plaintiffs Kathleen Greenidge and Walwyn Greenidge (collectively, the "Greenidges") move pursuant to 28 U.S.C. § 1447(c) to remand this action to the Supreme Court, Queens County ("State"), from which it was removed by defendant Mundo Shipping Corporation ("Mundo"). The defendant opposes the motion for remand and cross-moves for partial summary judgment. For the reasons explained below, the Greenidges' motion is granted, this action is remanded to State court and Mundo's motion is denied, without prejudice.


On October 7, 1997, the Greenidges commenced an action against Mundo in State court. In their complaint, they allege that Kathleen Greenidge, through her agent Walwyn Greenidge, arranged with Mundo to ship her automobile from New York to the West Indies for $2,100.00. They further allege that the automobile came under the control, care and responsibility of Mundo in New York, and that the car has not been returned to Kathleen Greenidge, nor has compensation been paid to her, despite her demands for such relief. The Greenidges have sued Mundo for conversion, because Kathleen Greenidge's car has allegedly not been returned to her, and gross negligence, because Mundo has allegedly refused to provide the Greenidges with information concerning the whereabouts of the car. The Greenidges seek compensatory and punitive damages.

On October 29, 1997, Mundo removed the action from State court to federal court in the Eastern District of New York. Mundo's removal papers include a copy of a two-page bill of lading which Mundo allegedly gave to the Greenidges. The second page of the bill of lading is largely unreadable because of its very small print and poor reproduction quality. Mundo alleges that this page incorporates the provisions of the Carriage of Goods by Sea Act ("COGSA"), 46 App.U.S.C. § 1300 et seq., and, specifically, its $500.00 limit on liability. Accordingly, Mundo's cross-motion for partial summary judgment seeks to limit its liability to that sum. The Greenidges oppose this cross-motion on the grounds that they did not receive the second page of the bill of lading until after they had relinquished control of the car, and consequently, they had no opportunity to object to or protect themselves against this restrictive liability. In seeking remand, the Greenidges contend that the viability of their common law tort claims and Mundo's COGSA defense should be adjudicated in State court.


A. Burden of Proof

A federal court does not have subject matter jurisdiction over a case that has been improperly removed from state court. Thus, the removing party must establish grounds for federal jurisdiction in the removal petition, and "bears the burden of proving that the case is properly in federal court." United Food & Commercial Workers Union, Local 919, AFL-CIO v. CenterMark Properties Meriden Square, Inc., 30 F.3d 298, 301 (2d Cir. 1994). Mundo, in its petition, invokes both admiralty and federal question jurisdiction as its basis for placing the case in federal court since "[t]he Mundo bill of lading which constituted the contract of carriage for the shipments in suit incorporates COGSA. . . ." Notice of Removal, at ¶ 4.

In keeping with its burden to establish federal jurisdiction, where the facts underlying removal are in dispute the removing party must prove those facts by a preponderance of the evidence. See Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); United Food, 30 F.3d at 301 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936)). Here, it is not known whether the alleged conversion occurred on land or at sea, and whether the Greenidges had received the second page of the bill of lading, with its alleged limitation of liability, prior to relinquishing the car. If resolution of these factual issues were necessary to resolve the subject matter jurisdictional issue, Mundo would be entitled to a hearing pursuant to Rule 43(e) of the Federal Rules of Civil Procedure to afford it the opportunity to satisfy its burden of proof. However, for the reasons that follow, neither admiralty nor federal question jurisdiction obtains regardless of how these factual matters be resolved.

B. Admiralty Jurisdiction

"The district courts shall have original jurisdiction, exclusive of the courts of the States, of . . . [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . . ." 28 U.S.C. § 1333 (1). Whether admiralty jurisdiction could here be invoked would undoubtedly turn on whether the alleged tortious conduct occurred on land or at sea. See, e.g., Leather's Best v. S.S. Mormaclynx, 451 F.2d 800, 808 (2d Cir. 1971) (action against warehouse for negligent loss of cargo on land is state law claim, and not within federal maritime jurisdiction); New York Marine & Gen. Ins. v. S/S Ming Prosperity, 920 F. Supp. 416, 421 (S.D.N.Y. 1996) ("In numerous tort cases, the Second Circuit has held unequivocally that no maritime jurisdiction exists if the alleged damage occurred during any land portion of transportation."); see also Colgate Palmolive Co. v. S/S Dart Canada, 724 F.2d 313, 315 (2d Cir. 1983).

Resolution of this factual issue is here irrelevant because even if it be determined that the Greenidges' case is in admiralty. "[c]ommon law maritime cases filed in state court are not removable to federal court, due to 28 U.S.C. § 1333's `saving to suitors' clause." Pierpoint v. Barnes, 94 F.3d 813, 816 (2d Cir. 1996). "Under the "saving to suitors' clause [plaintiffs] with a common law claim arising from a transaction over which a federal court would have admiralty jurisdiction may either avail themselves of federal admiralty jurisdiction or sue at law in state court."*fn1 Yangming Marine Transport Corp. v. Electri-Flex Co., 682 F. Supp. 368, 372 (N.D.Ill. 1987). See Pierpoint, 94 F.3d at 816; Victrix Steamship Co., S.A. v. Salen Dry Cargo, A.B., 825 F.2d 709, 713 (2d Cir. 1987). Therefore, assuming, without deciding, that admiralty jurisdiction exists over the Greenidges' claims, they nonetheless could rightfully have their case litigated in State court since admiralty cases are an exception to "the general rule that cases which could originally have been filed in federal court are removable to federal court at the option of the defendant." Pierpoint, 94 F.3d at 816.

C. Federal Question Jurisdiction

Federal question jurisdiction may be statutorily grounded in either of two statutes: 28 U.S.C. § 1337 ("The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce . . .;"), or 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.").*fn2 Relying on COGSA, Mundo sets forth two bases in support of its contention that removal is warranted by reason of federal question jurisdiction: (1) because of the incorporation of COGSA into the bill of lading, the ...

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