jurisdiction obtains regardless of how these factual matters be
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 Greenidges' claims are governed by federal law; (2) in any
event, COGSA completely preempts the plaintiffs' claims, even if they be
regarded solely as state claims.
Turning first to the issue of complete preemption, "`on occasion . . .
the pre-emptive force of a statute is so extraordinary that it converts
an ordinary state common-law complaint into one stating a federal claim.
. . .'" Fax
Telecommunicaciones Inc. v. AT & T, 138 F.3d 479, 479 (2d Cir. 1998)
(citing Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425,
96 L.Ed.2d 318 (1987)). Where state law within a certain field of law is
completely preempted, a complaint that pleads state law claims in that
field is removable to federal court. See id. However, removal based on
complete preemption is limited to a narrow range of cases in which
Congress has clearly manifested an intent to make a specific action
within a particular area removable. See Marcus v. AT&T Corp., 138 F.3d 46,
54 (2d Cir. 1998). The United States Supreme Court has only recognized
complete preemption as to claims made under the Labor Management
Relations Act, ERISA suits by beneficiaries, and certain Indian land
grant rights. Id.; Fleet Bank, N.A. v. Burke, 160 F.3d 883, 886-87 (2d
Congress has not clearly manifested an intent that COGSA completely
preempt state law as to shipping by sea. Rather, COGSA simply sets forth
the minimum liabilities, rights and responsibilities of the carrier and
shipper; it does not regulate all onboard activities related to cargo.
See 46 App.U.S.C. § 1300 et seq. Furthermore, COGSA does not cover
activities before or after the loading of a ship, although these
activities are integral to international shipping. See
46 App. U.S.C. § 1301; Colgate Palmolive, 724 F.2d at 315. In that
regard, Congress has limited itself to simply precluding those
intricately involved in the shipping process from exculpating themselves
from liability for their on-land conduct, see the Harter Act, 46
App.U.S.C. § 190-195, and has thereby implicitly decided not to
regulate all aspects of pre- and post-loading activities. See Hemphill
v. Transfresh Corp., 1998 WL 320840, at *3-*4 (N.D.Cal. June 11, 1998)
(action alleging state law causes of action is not removable because
COGSA does not completely preempt state law).
In respect to Mundo's contention that COGSA nonetheless federalizes
Greenidges' lawsuit because of COGSA's incorporation into the bill of
lading, the Greenidges would, under any view of the facts, be entitled to
return to state court by operation of the well-pleaded complaint rule.
Under this rule, in the absence of complete preemption, "a plaintiff may
avoid federal jurisdiction by pleading only state law claims, even where
federal claims are also available, and even if there is a federal
defense." Fax Telecommunicaciones, 138 F.3d at 486. This holds true,
"even where Congress has chosen to regulate an entire field of law in the
area in question." Marcus, 138 F.3d at 52. A plaintiff may not, however,
under the "artful pleading" doctrine, avoid removal "by framing in terms
of state law a complaint the real nature of [which] is federal, . . or by
omitting to plead necessary federal questions in a complaint." Id. at
486-87 (internal quotation omitted).
The Greenidges complaint does not fall prey to the artful pleading
proscription; their claims of negligence and conversion are pure state law
claims, devoid of any dependent federal issues. Under any view of the
case, Mundo's reliance on COGSA's limitation of liability is either a
federal statutory or state common law contractual defense to plaintiffs
"well-pleaded" complaint. See Colgate Palmolive, 724 F.2d at 315
("Parties may contractually extend COGSA's application beyond its normal
parameters. When they do so, however, COGSA does not apply by its own
force, but merely as a contractual term.").*fn3 Since defenses premised
on federal statutes do not qualify as grounds upon which to establish
v. Regions Bank of La., 522 U.S. 470, 118 S.Ct. 921, 925, 139 L.Ed.2d 912
(1998); Fax Telecommunicaciones, 138 F.3d at 487; Marcus, 138 F.3d at
52-53, neither COGSA nor the terms of the bill of lading can serve as the
basis for removal.
In sum, the Greenidges are entitled to have their claims litigated in
State court. Mundo is, of course, entitled to assert its COGSA limitation
of liability claim in that litigation as an affirmative defense and the
State court will, based upon the developed facts, determine its viability
as either a state contractual defense or a federal statutory defense. See
Hemphill, 1998 WL 320840, at *3 n. 1 ("The court expresses no opinion on
the effect that COGSA and other federal laws may have on plaintiffs state
law claims. The [state court] is competent to address these issues.").
D. Costs and Expenses
The Greenidges have moved for the costs and expenses they incurred as a
result of Mundo's improvident removal of this action but have not
submitted evidence in support of this claim. See 28 U.S.C. § 1447 (c)
("An order remanding the case may require payment of just costs and any
actual expenses, including attorney fees, incurred as a result of the
removal."); Morgan Guaranty Trust Co. of KY v. Republic of Palau,
971 F.2d 917, 923-25 (2d Cir. 1992) (finding removal order for lack of
jurisdiction nonappealable, but affirming grant of attorney fees and
costs). The Court grants the Greenidges reasonable costs and expenses and
retains jurisdiction over this action for this limited purpose.
For the reasons discussed above, the Court lacks subject matter
jurisdiction over the plaintiffs' claims. The Court, therefore, remands
this action to the Supreme Court of the State of New York, Queens
County, from which it was improvidently removed. Mundo's cross-motion is
dismissed, without prejudice, for lack of subject matter jurisdiction.
The Court grants the Greenidges reasonable costs and expenses and will
retain jurisdiction over this action for the limited purpose of assessing
such costs and expenses, upon a proper submission, in the event that the
parties cannot forthwith reach an agreement in respect thereto.