Present: All the Justices
GERRY R. LEWIS, ADMINISTRATOR
OF THE ESTATE OF WILLIE
BENJAMIN LEWIS, DECEASED
v. Record No. 022543 OPINION BY JUSTICE CYNTHIA D. KINSER
October 31, 2003
C.J. LANGENFELDER & SON, JR., INC.
FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE
V. Thomas Forehand, Jr., Judge
In this appeal, the dispositive issue is whether this
Court has jurisdiction over the case in light of the
removal of the action to a federal district court. The
removal occurred after the state trial court dismissed a
claim filed under the Jones Act, 46 U.S.C. § 688. Because
removal of an action from state court to federal court
effects a transfer of the entire case, this Court has no
jurisdiction to hear the appeal. For that reason, we will
dismiss the appeal without prejudice.
MATERIAL FACTS AND PROCEEDINGS
Gerry R. Lewis (“Lewis”), administrator of the estate
of Willie Benjamin Lewis (“the Decedent”), filed a motion
for judgment against C.J. Langenfelder & Son, Jr., Inc.
(”Langenfelder”), 1 seeking damages for the wrongful death of
1
There is a discrepancy in the record regarding
whether Langenfelder’s corporate name is C.J. Langenfelder
& Son, Jr., Inc. or C.J. Langenfelder & Son, Inc.
the Decedent. 2 Lewis alleged that, at the time of the
accident resulting in her husband’s death, he was working
as a seaman aboard Langenfelder’s tugboat and that the boat
was “in navigation on navigable waters.” Lewis sought
recovery under the Jones Act, 46 U.S.C. § 688, and general
maritime law.
Langenfelder moved for entry of partial summary
judgment striking the Jones Act claim. Langenfelder
contended that no employer/employee relationship existed
between the Decedent and Langenfelder at the time of the
accident at issue. The circuit court agreed and granted
the motion, thereby dismissing with prejudice the claim
asserted pursuant to the Jones Act.
After the circuit court dismissed that claim,
Langenfelder filed a notice of removal of the action to the
United States District Court for the Eastern District of
Virginia pursuant to 28 U.S.C. § 1441. 3 This Court
subsequently awarded Lewis an appeal from the judgment of
the circuit court dismissing her Jones Act claim. The
federal district court has stayed the removed action
2
Lewis filed the motion for judgment in the Circuit
Court of the City of Norfolk. That court transferred the
case to the Circuit Court of the City of Chesapeake.
3
Four days after filing the notice of removal,
Langenfelder filed an amended notice of removal.
2
pending there until this Court decides Lewis’ appeal. The
federal district court, however, has not entered an order
remanding this case. Lewis v. C.J. Langenfelder & Son,
Inc., No. 2:01, slip op. at 9 (E.D. Va. May 2, 2003).
ANALYSIS
On appeal, Lewis challenges the circuit court’s
dismissal of the Jones Act claim. However, there is a
threshold issue we must decide: whether this Court has
jurisdiction over this appeal in light of the removal of
the action to the federal district court. A court always
has jurisdiction to determine its own jurisdiction. See
Morrison v. Bestler, 239 Va. 166, 170, 387 S.E.2d 753, 755
(1990).
With regard to this issue, Langenfelder argues that,
pursuant to 28 U.S.C. § 1446(d), this Court lost
jurisdiction over all claims asserted by Lewis, including
the Jones Act claim, upon removal of the case to the
federal district court. Although Langenfelder acknowledges
that the provisions of 28 U.S.C. § 1445(a), as incorporated
by 46 U.S.C. § 688, prohibit the removal of a Jones Act
claim from state court to federal court, it asserts that
the improper removal of such a claim is a procedural defect
that can be challenged only in federal court by timely
filing a motion for remand. Thus, Langenfelder contends
3
that this Court, absent a remand by the federal district
court, has no jurisdiction to hear this appeal.
Lewis agrees that removal of a case to federal court
ordinarily suspends a state court’s jurisdiction over the
case. However, Lewis contends that this general rule is
not applicable here because the provisions of 28 U.S.C.
§ 1445(a) prohibit removal of a Jones Act claim. In Lewis’
view, the circuit court’s dismissal of that claim was a
“condition precedent” to the removal of the maritime
claims. Citing Higgins v. E.I. DuPont de Nemours & Co.,
863 F.2d 1162, 1166 (4th Cir. 1988), Lewis argues that a
reversal by this Court of the circuit court’s judgment
dismissing the Jones Act claim would destroy the federal
district court’s jurisdiction over the case. She also
points out that the federal district court stated that it
would remand the case if this Court reverses the circuit
court’s judgment. See Lewis, slip op. at 9.
A seaman may file a claim under the Jones Act in
either state or federal court. 4 American Dredging Co. v.
4
In pertinent part, the Jones Act states:
Any seaman who shall suffer personal injury in
the course of his employment may, at his election,
maintain an action for damages at law, with the right
of trial by jury, and in such action all statutes of
the United States modifying or extending the common-
law right or remedy in cases of personal injury to
railway employees shall apply[.]
4
Miller, 510 U.S. 443, 445 (1994); Engel v. Davenport, 271
U.S. 33, 37 (1926). However, when the seaman brings such
an action in state court, the case is not removable to
federal court. Lewis v. Lewis & Clark Marine, Inc., 531
U.S. 438, 455 (2001); Pate v. Standard Dredging Corp., 193
F.2d 498, 500 (5th Cir. 1952); Keegan v. Sterling, 610 F.
Supp. 789, 790 (S.D. Fla. 1985); Stokes v. Victory
Carriers, Inc., 577 F. Supp. 9, 11 (E.D. Pa. 1983); Moltke
v. Intercontinental Shipping Corp., 86 F. Supp. 662, 663
(S.D.N.Y. 1949). This is so because the Jones Act
expressly incorporates and makes applicable to seamen all
the “statutes of the United States modifying or extending
the common-law right or remedy in cases of personal injury
to railway employees[.]” 46 U.S.C. § 688. One of those
statutes, 28 U.S.C. § 1445(a), prohibits removal from state
court to federal court of cases brought under the Federal
Employers’ Liability Act. Pate, 193 F.2d at 500; Keegan,
610 F. Supp. at 790.
However, the bar against removing a Jones Act claim is
waived if a plaintiff does not file a motion to remand
within the 30-day deadline set forth in 28 U.S.C.
§ 1447(c). Lirette v. N.L. Sperry Sun, Inc., 820 F.2d 116,
46 U.S.C. § 688(a).
5
117 (5th Cir. 1987); see also Albarado v. Southern Pac.
Transp. Co., 199 F.3d 762, 765 (5th Cir. 1999) (“if a
defendant removes an action arising under an act covered by
[28 U.S.C.] § 1445(a), then wrongful removal is a
procedural defect, which may be waived”); Cades v. H & R
Block, Inc., 43 F.3d 869, 873 (4th Cir. 1994) (“[a] motion
to remand the case because of a defect in removal procedure
must be made within 30 days”); In re Digicon Marine, Inc.,
966 F.2d 158, 160 (5th Cir. 1992) (holding that a “remand
based on a lack of ‘removal jurisdiction’ is not considered
lack of subject matter jurisdiction but is instead a defect
in removal procedure”). Only a federal court may determine
whether a case has been improperly removed. State ex rel.
Allis-Chalmers Mfg. Co. v. Boone Circuit Court, 86 N.E.2d
74, 78 (Ind. 1949); State ex rel. Gremillion v. NAACP, 90
So.2d 884, 886-87 (La. Ct. App. 1956).
The removal of a case from state court to federal
court effects a transfer of the entire action, including
all the parties and all the claims, to the federal court.
City of Gainesville v. Brown-Crummer Investment Co., 277
U.S. 54, 60 (1928); Arango v. Guzman Travel Advisors Corp.,
621 F.2d 1371, 1376 (5th Cir. 1980); Murphy v. Kodz, 351
F.2d 163, 167 (9th Cir. 1965); Hartlein v. Illinois Power
Co., 601 N.E.2d 720, 726 (Ill. 1992). A defendant, upon
6
filing a notice of removal, “shall give written notice
thereof to all adverse parties and shall file a copy of the
notice with the clerk” of the state court, which effects
the removal. 28 U.S.C. § 1446(d). At that point, “the
[s]tate court shall proceed no further unless and until the
case is remanded.” Id.
“After compliance with the removal statute[,] the
jurisdiction of the [s]tate court is suspended until there
has been a remand.” Levine v. Lacy, 204 Va. 297, 300, 130
S.E.2d 443, 445 (1963); accord Yarnevic v. Brink’s, Inc.,
102 F.3d 753, 754 (4th Cir. 1996); Maseda v. Honda Motor
Co., 861 F.2d 1248, 1254 (11th Cir. 1988); Allman v.
Hanley, 302 F.2d 559, 562 (5th Cir. 1962). “Any subsequent
proceedings in state court on the case are void ab initio.”
Maseda, 861 F.2d at 1254-55 (citing Steamship Co. v.
Tugman, 106 U.S. 118, 122 (1882)); accord South Carolina v.
Moore, 447 F.2d 1067, 1073 (4th Cir. 1971). A later
determination that the removal petition was not proper does
not change that outcome. See Maseda, 861 F.2d at 1254
n.11; Moore, 447 F.2d at 1073; United States v.
Silberglitt, 441 F.2d 225, 227 (2d Cir. 1971); Lowe v.
Jacobs, 243 F.2d 432, 433 (5th Cir. 1957).
Based on these well-established principles, we
conclude that we have no jurisdiction to hear this appeal.
7
When Langenfelder effected the removal of this action by
complying with the requirements of 28 U.S.C. § 1446(d), the
entire case, including the Jones Act claim, was transferred
to the federal district court. See Hartlein, 601 N.W.2d at
726. We are not persuaded otherwise by the observation of
the court in Higgins that the diversity jurisdiction of a
federal court could be destroyed if a state appellate court
reversed the dismissal of a non-diverse party. 863 F.2d at
1166. Unless and until there is a remand of this case from
the federal district court, neither the circuit court nor
this Court can proceed any further with the action. 28
U.S.C. § 1446(d).
The removal of this action from state court to federal
court did not, however, vacate the actions taken by the
circuit court prior to removal. “All injunctions, orders,
and other proceedings had in such action prior to its
removal shall remain in full force and effect until
dissolved or modified by the district court.” 28 U.S.C.
§ 1450. The federal court “takes the case up where the
[s]tate court left it off.” Duncan v. Gegan, 101 U.S. 810,
812 (1880); accord Resolution Trust Corp. v. Nernberg, 3
F.3d 62, 68 (3d Cir. 1993).
8
Accordingly, this appeal will be dismissed without
prejudice. 5
Dismissed.
5
In light of our decision, we do not reach the merits
of Lewis’ assignments of error, nor is it necessary to
summarize the facts relevant to those alleged errors.
9