Oklahoma Ex Rel. Edmondson v. Magnolia Marine Transport Co.

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
FEB 24 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STATE OF OKLAHOMA, ex rel.;
DREW EDMONDSON,

Plaintiffs-Appellants,

v. No. 02-7139

MAGNOLIA MARINE TRANSPORT
COMPANY, a Mississippi
corporation; ERGON, INC.,
a Mississippi corporation;
WILLIAM JOE DEDMON,

Defendants-Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. No. 02-CV-330-P)

Submitted on the briefs:

E. Clyde Kirk and Gregory S. Eldridge, Assistant Attorneys General, Litigation
Section, Oklahoma City, Oklahoma, for Plaintiffs-Appellants.

Michael Burrage and Sean Burrage, of Burrage Law Firm, Durant, Oklahoma, for
Defendants-Appellees Magnolia Marine Transport Company and Ergon, Inc.

Joel L. Wohlgemuth of Norman Wohlgemuth Chandler & Dowdell, Tulsa,
Oklahoma, for Defendant-Appellee William Joseph Dedmon.

Before McCONNELL , ANDERSON , and BALDOCK , Circuit Judges.
ANDERSON , Circuit Judge.

The plaintiff State of Oklahoma appeals from the denial of its motion to

remand this case back to state court. The State asserts that removal of the case

both violated the Eleventh Amendment and rested on an erroneous assertion of

federal question jurisdiction. As explained below, we take jurisdiction of this

interlocutory appeal under a particular variant of the collateral order doctrine,

and, on the merits, hold that (1) the State’s Eleventh Amendment immunity did

not bar removal, but (2) the specific basis for federal question jurisdiction relied

on by the district court was insufficient to support removal. Accordingly, we

remand the case for further consideration of several alternative bases for federal

question jurisdiction invoked in defendants’ petition for removal. 1

A brief recitation of the immediately pertinent facts should suffice to put

the legal questions in context. The State filed this tort action in the District Court

of Muskogee County, Oklahoma, to recover damages it incurred when a tugboat

pushing two barges on the Arkansas River collided with the Interstate 40 bridge

near Webber Falls, Oklahoma. The collision caused a portion of the bridge to

1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.

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collapse, resulting in death or serious injury to numerous people as well as

substantial property damage. The tugboat was owned and operated by defendant

Magnolia Marine Transport Company, a wholly owned subsidiary of defendant

Ergon, Inc., and was under the command of defendant William Joe Dedmon at the

time of the accident.

Shortly after the state action was commenced, defendants filed a notice of

removal in the United States District Court for the Eastern District of Oklahoma,

broadly alleging several bases for federal jurisdiction in support of removal under

28 U.S.C. § 1441(a) and (b). See Aplt. App. at 14-15. The State promptly moved

to remand the case back to Muskogee County district court on the ground that

removal subjected it to an involuntary assertion of federal court process and

thereby violated its immunity under the Eleventh Amendment. See id. at 33-38.

Defendants responded by arguing that the Eleventh Amendment applies to suits

brought against the States, not to suits brought by a State. See id. at 39-44. In its

subsequent reply, the State reargued the Eleventh Amendment point and, in the

course of that argument, also asserted in passing that its tort complaint had not

raised a federal question. See id. at 46.

The district court agreed with defendants’ view regarding the scope of the

Eleventh Amendment and denied the State’s motion for remand. See id. at 51-57.

The district court also discussed the relatively unexplored question of federal

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subject matter jurisdiction supporting removal, holding that the State’s action for

damages caused by a commercial vessel on navigable waters was a “civil case of

admiralty or maritime jurisdiction” and thus within its original jurisdiction under

28 U.S.C. § 1333(1). Id. at 55-57. The State now appeals, challenging both of

these holdings.

Ordinarily, an interlocutory appeal may not be taken from the denial of

a motion to remand a previously removed case. See Caterpillar Inc. v. Lewis ,

519 U.S. 61, 74 (1996) (quoting Chicago, R.I. & Pac. R.R. v. Stude , 346 U.S. 574,

578 (1954)). But States “may take advantage of the collateral order doctrine to

appeal a district court order denying a claim of Eleventh Amendment immunity.”

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147 (1993).

The State’s motion for remand here involved such a claim. See Texas v. Real

Parties In Interest , 259 F.3d 387, 391 (5 th Cir. 2001). And, “because we have

appellate jurisdiction over the interlocutory appeal of [the State’s] assertion of

Eleventh Amendment immunity, we also have [pendent] appellate jurisdiction to

determine whether the district court had subject matter jurisdiction over the

[State’s] underlying claim against defendants in the first instance.” Timpanogos

Tribe v. Conway , 286 F.3d 1195, 1201 (10 th Cir. 2002); accord Hospitality

House, Inc. v. Gilbert , 298 F.3d 424, 429 (5 th Cir. 2002).

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 We review the district court’s determination of the Eleventh Amendment

question de novo. Chaffin v. Kan. State Fair Bd. , 348 F.3d 850, 865 (10 th Cir.

2003). Upon independent consideration of the constitutional text and relevant

case law, however, we reach the same conclusion: the Eleventh Amendment’s

abrogation of federal judicial power “over any suit . . . commenced or prosecuted

against one of the United States” does not apply to suits commenced or

prosecuted by a State. A legion of case law could be cited reflecting the general

understanding that “[t]he ultimate guarantee of the Eleventh Amendment is that

nonconsenting States may not be sued by private individuals in federal court.”

Bd. of Trustees of the Univ. of Ala. v. Garrett , 531 U.S. 356, 363 (2001)

(emphasis added). In contrast, the Federal Circuit recently noted in denying an

Eleventh Amendment challenge to a transfer of venue that the Supreme Court has

never construed the Eleventh Amendment “to apply to suits in which a state is

solely a plaintiff.” Regents of the Univ. of Cal. v. Eli Lilly & Co. , 119 F.3d 1559,

1564 (Fed. Cir. 1997) (upholding transfer over Eleventh Amendment objection

without recourse to principles governing territorial reach of immunity waiver

“because this case does not create an Eleventh Amendment jurisdictional issue

concerning which the question of waiver even arises”).

More specifically regarding removal, the Supreme Court has held without

qualification that “where a State is suing parties who are not other States,” the

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suit may “‘be brought in or removed to’ ” the federal district courts “‘without

regard to the character of the parties.’” Illinois v. City of Milwaukee , 406 U.S.

91, 101 (1972) (quoting Ames v. Kansas , 111 U.S. 449, 470 (1884) (emphasis

added)). While the immediate issue in City of Milwaukee and Ames was whether

the Supreme Court’s original jurisdiction in actions involving States is exclusive

of jurisdiction in the lower federal courts, nearly every court to consider Eleventh

Amendment immunity in the removal context has relied on the unconditional

holding of those cases, in conjunction with the pointed and specific language used

in the constitutional text itself, to conclude that a State cannot assert Eleventh

Amendment immunity to bar the removal of a suit it has brought. See, e.g. , South

Dakota ex rel. South Dakota R.R. Auth. v. Burlington N. & Santa Fe Ry. Co. ,

280 F. Supp. 2d 919, 935 (D.S.D. 2003); California v. PG & E Corp. (In re Pac.

Gas & Elec. Co.) , 281 B.R. 1, 6-7 (Bankr. N.D. Cal. 2002); In re Rezulin Prods.

Liab. Litig. , 133 F. Supp. 2d 272, 297 (S.D.N.Y. 2001); Regents of the Univ. of

Minn. v. Glaxo Wellcome, Inc. , 58 F. Supp. 2d 1036, 1039-40 (D. Minn. 1999);

Kansas ex rel. Stovall v. Home Cable Inc. , 35 F. Supp. 2d 783, 789 (D. Kan.

1998); Vermont v. Oncor Communications, Inc. , 166 F.R.D. 313, 321 (D. Vt.

1996); Banco y Agencia de Financiamiento de la Vivienda de P.R. v.

Urbanizadora Villalba , 681 F. Supp. 981, 982-83 (D.P.R. 1988). But see Moore

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ex rel. Miss. v. Abbott Labs., Inc. , 900 F. Supp. 26, 30-31 (S.D. Miss. 1995);

California v. Steelcase, Inc. , 792 F. Supp. 84, 86 (C.D. Cal. 1992).

Thus, although we appear to be the first circuit court to examine the precise

issue, our course here is hardly uncharted. Consistent with the constitutional text,

relevant pronouncements of the Supreme Court, and the vast majority of district

court cases directly on point, we hold that the State may not assert its Eleventh

Amendment immunity to preclude defendants’ removal of the tort action it

brought against them in its own courts.

We hasten to add that our decision is not as broad as it may appear. There

is an important factual qualification on our holding, not touched on in the body of

case law cited above, that limits its direct effect on the question of removal per se

as well as its significance for potential Eleventh Amendment issues that may arise

post-removal. This appeal presents a simplest-case scenario for Eleventh

Amendment analysis, in that the removed action involved only claims asserted by

the State and no party sought to interject counterclaims or cross-claims against

the State upon removal. Thus, we need not and do not express any opinion as to

whether a private defendant may remove an action that includes claims of this sort

asserted against a State plaintiff. 2
Nor does our decision imply or suggest any

2
In Wis. Dep’t of Corr. v. Schacht , 524 U.S. 381 (1998), the Court held that
when a State removes a case, the presence of a mix of claims both inside and
(continued...)

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particular result in the event a party seeks to assert a counterclaim or cross-claim

against the State after removal over the State’s objection. 3

Turning to the jurisdictional basis for removal, the district court held that

removal was proper based on 28 U.S.C. § 1333(1), which grants federal district

courts “original jurisdiction, exclusive of the courts of the States” over “[a]ny

civil case of admiralty or maritime jurisdiction.” This grant of jurisdiction is,

however, immediately qualified by a clause “saving to suitors in all cases all other

remedies to which they are otherwise entitled.” Id. The State argues persuasively

that this clause undermines the district court’s reliance on § 1331(1) to support

removal here.

2
(...continued)
outside the scope of the Eleventh Amendment does not affect removability. The
issue reserved above, however–whether private defendants can remove a case
over a State objection if there are any claims asserted against the State–involves
quite different concerns.
3
There is a body of case law addressing counterclaims asserted against
States that have voluntarily brought suit in federal court. See, e.g. , Regents of the
Univ. of N.M. v. Knight , 321 F.3d 1111, 1123-24 (Fed. Cir.), cert. denied ,
124 S. Ct. 104 (2003). Again, however, the treatment of such claims in cases
filed by the State in its own courts and later removed by the defendant raises
distinct concerns. Compare Oregon v. City of Rajneeshpuram , 598 F. Supp. 1217,
1219, 1221 (D. Or. 1984) (holding that although Eleventh Amendment did not bar
defendants’ removal of State’s action, it did bar defendants’ counterclaim for
injunctive relief) with Puerto Rico v. Sea-Land Serv., Inc. , 349 F. Supp. 964, 977
(D.P.R. 1970) (holding waiver of immunity extends to counterclaims asserted by
private defendant after removal of suit to federal court).

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 The Supreme Court has noted that the “historic option of a maritime suitor

pursuing common-law remedies to select his forum,” which is the object of the

savings clause, “would be taken away by an expanded view of § 1331, since

savings-clause actions would then be freely removable under § 1441.” Romero v.

Int’l Terminal Operating Co. , 358 U.S. 354, 371-72 (1959); see Lewis v. Lewis &

Clark Marine, Inc. , 531 U.S. 438, 455 (2001). Following Romero , “[c]ourts have

consistently interpreted the ‘savings clause’ to preclude removal of maritime

actions brought in state court and invoking a state law remedy, provided there is

no independent basis for removal” such as the presence of a federal question or

diversity of citizenship. In re Chimenti , 79 F.3d 534, 537 (6 th Cir. 1996);

see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 390 (3d Cir. 2002);

Servis v. Hiller Sys., Inc. , 54 F.3d 203, 206-07 (4 th Cir. 1995).

Defendants offer no substantive opposition to this analysis. Instead, they

note that their petition for removal alleged several sources for federal jurisdiction

that the district court has had no occasion to consider, and suggest that a remand

for further proceedings would be the appropriate course in the event we agree

with the State that § 1331(1) cannot support removal. 4
The State has responded to

4
Defendants also suggest, in summary fashion and without any supporting
authority, that the State’s appeal in a related case may render this appeal moot.
Original Brief of Defendants-Appellees at 13-14. The State’s thorough response
has satisfied us that this suggestion is meritless. Reply Brief of the State of Okla.
(continued...)

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this suggestion with a fairly summary argument that none of the alternative bases

for federal jurisdiction are meritorious. Given the cursory and collateral nature of

the briefing on this decisive issue, we deem it best to remand to permit fuller

argument to and consideration by the district court in the first instance.

The order of the district court denying the State’s motion for remand is

AFFIRMED insofar as it rejects the State’s assertion of Eleventh Amendment

immunity and REVERSED insofar as it relies on § 1331(1) as a source for federal

question jurisdiction to support removal. The matter is remanded for further

proceedings consistent with this decision.

4
(...continued)
at 15-21.

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