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Palmer v. Beach Dryden Scuba Enterprises, LLC

United States District Court, N.D. Texas, Dallas Division

March 30, 2018

JOYCE PALMER, as Surviving Mother and Heir at Law of KENNETH PALMER, Deceased, and RHONDA GAINEY, as Representative of the ESTATE OF KENNETH PALMER, Plaintiffs,



         Before the court is Plaintiffs' Motion to Remand (Doc. 4), filed July 27, 2017. After considering the motion, response, briefing, pleadings, record, and applicable law, the court grants Plaintiffs' Motion to Remand (Doc. 4).

         I. Factual and Procedural Background

         This case arises from a scuba diving accident resulting in the death of Kenneth Palmer on August 14, 2016. The following background facts are drawn from Plaintiffs' Original Petition (“Petition”), filed on June 7, 2017, in Dallas County Court at Law No. 1, Dallas County, Texas, by Plaintiffs Joyce Palmer, as Surviving Mother and Heir at Law of Kenneth Palmer, Deceased, and Rhonda Gainey, as Representative of the Estate of Kenneth Palmer (collectively, “Plaintiffs”). Plaintiffs bring this lawsuit against Defendants Beach Dryden Scuba Enterprises, LLC, Individually and d/b/a Dive West (“Beach Dryden”), and Brandi Farch (“Farch”) (collectively, “Defendants”), alleging claims for wrongful death and violations of the Deceptive Trade Practices Act (“DTPA”) under Texas law, in connection with the Kenneth Palmer's untimely death. With respect to their wrongful death action, Plaintiffs allege in their Petition that:

Kenneth Palmer was diving as part of a dive group with the Defendants. Kenneth Palmer was using dive equipment which had been checked by the Defendants and had paid Dive West for the trip. It is believed that while on the second dive of the trip, Kenneth Palmer was lost during the dive and eventually drowned. Based upon information and belief, it appears that the Dive Master and the Defendant failed to provide adequate safety policies and procedures for the dive including having a dive buddy assigned to Kenneth Palmer for any emergency type situation, including an out-of-air emergency. Based upon information and belief, it appears the Defendants failed to enforce the rules for proper and safe dives including the use of the buddy system.

Pls.' Orig. Pet. 3. Plaintiffs allege with respect to their DTPA claim that Defendants falsely represented that their goods and services had characteristics, uses, or benefits that they did not have, and such representations were made with actual awareness of their falsity. Plaintiffs seek actual and compensatory damages, as well as exemplary damages as allowed by the Texas Wrongful Death Act, the Texas Survival Statute, the DTPA, and Texas common law. Plaintiffs also seek to recover attorney's fees, prejudgment and postjudgment interest, and costs, and they request a jury trial.

         On July 10, 2017, Defendants filed their Original Answer in which they assert, among other things, that Plaintiffs' claims are preempted by the Death on the High Seas Act, 46 U.S.C. § 30301, et. seq. (“DOHSA”). On July 11, 2017, Defendants removed the action to federal court based on federal question jurisdiction under 28 U.S.C. § 1331, asserting that Plaintiffs' state law claims fall under the umbrella of DOHSA or, alternatively, the court has admiralty and maritime jurisdiction under 28 U.S.C. § 1333. On July 27, 2017, Plaintiffs filed their Motion to Remand, contending that federal question jurisdiction is lacking because, under the well-pleaded complaint rule, the Petition only asserts state law claims and, alternatively, even assuming their claims fall within the ambit of DOHSA or admiralty law, a plaintiff may elect to bring these claims in state court. In response, Defendants argue that DOHSA preempts Plaintiffs' state law claims and provides a basis for federal jurisdiction or, alternatively, that Plaintiffs' claims “fall within the court's original admiralty and maritime jurisdiction under 28 U.S.C. § 1333, and that their claims are therefore properly brought in federal court.” Defs.' Br. 7 (Doc. 7).

         II. Applicable Legal Standard for Removal - Federal Question

         A federal court has subject matter jurisdiction over civil cases “arising under the Constitution, laws, or treaties of the United States, ” or over civil cases in which the amount in controversy exceeds $75, 000, exclusive of interest and costs, and in which diversity of citizenship exists between the parties. 28 U.S.C. §§ 1331, 1332. Federal courts are courts of limited jurisdiction and must have statutory or constitutional power to adjudicate a claim. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994) (citations omitted); Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). Absent jurisdiction conferred by statute or the Constitution, they lack the power to adjudicate claims and must dismiss an action if subject matter jurisdiction is lacking. Id.; Stockman v. Federal Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998) (citing Veldhoen v. United States Coast Guard, 35 F.3d 222, 225 (5th Cir. 1994)). A federal court must presume that an action lies outside its limited jurisdiction, and the burden of establishing that the court has subject matter jurisdiction to entertain an action rests with the party asserting jurisdiction. Kokkonen, 511 U.S. at 377 (citations omitted). “[S]ubject-matter jurisdiction cannot be created by waiver or consent.” Howery v. Allstate Ins. Co., 243 F.3d 912, 919 (5th Cir. 2001).

         Federal courts may also exercise subject matter jurisdiction over a civil action removed from a state court. Unless Congress provides otherwise, a “civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a).

         A federal court has an independent duty, at any level of the proceedings, to determine whether it properly has subject matter jurisdiction over a case. Ruhgras AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“[S]ubject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); McDonal v. Abbott Labs., 408 F.3d 177, 182 n.5 (5th Cir. 2005) (A “federal court may raise subject matter jurisdiction sua sponte.”) (citation omitted).

         A federal court has subject matter jurisdiction over cases arising under the Constitution, laws, or treaties of the United States, which is commonly referred to as federal question jurisdiction. 28 U.S.C. § 1331. This provision for federal question jurisdiction is generally invoked by a plaintiff pleading a cause of action created by federal law. This, however, is not the only manner in which federal question jurisdiction may arise.

         An action that asserts only state law claims may “arise under” federal law if “the vindication of a right under state law necessarily turn[s] on some construction of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983) (citations omitted). This means that a federal district court has jurisdiction over a state claim that “necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308, 314 (2005). Otherwise stated, as “the presence of a disputed federal issue and the ostensible importance of a federal forum are never necessarily dispositive, ” a federal court is to decline jurisdiction if the exercise of its jurisdiction is inconsistent “with congressional judgment about the sound division of labor between state and federal courts governing application of [28 U.S.C.] § 1331.” Id. at 313-14. Under Grable, federal question jurisdiction exists only when “(1) resolving a federal issue is necessary to the resolution of the state-law claim; (2) the federal issue is actually disputed; (3) the federal issue is substantial; and (4) federal jurisdiction will not disturb the balance of federal and state judicial responsibilities.” Singh v. Morris, LLP, 538 F.3d 334, 338 (5th Cir. 2008). In the final analysis, when a plaintiff's pleadings set forth only state law claims, a federal district court has federal question jurisdiction to entertain the action only if “(1) the state law claims necessarily raise a federal issue or (2) the state law claims are completely preempted by federal law.” Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 2008).

         Whether an action “arises under” federal law and creates federal question jurisdiction over a case removed from state to federal court, or one originally filed in such court, ordinarily “must be determined by reference to the ‘well-pleaded complaint.'” Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986) (citation omitted). “[A] case may not be removed to federal court on the basis of a federal defense . . . even if the defense is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense is the only question truly at issue.” Caterpillar Inc. v. Williams,482 U.S. 386, 393 (1987). “A defense that raises a federal question is inadequate to confer federal jurisdiction.” Thompson, 478 U.S. at 808 (citation omitted). “Even an inevitable federal defense does not provide a basis for removal jurisdiction.” Bernhard, 523 F.3d at ...

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