Dahiya v. Talmidge International Ltd.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

VINOD KUMAR DAHIYA CIVIL ACTION

v. NO. 20-1527

TALMIDGE INTERNATIONAL LTD., ET AL. SECTION “F”

ORDER AND REASONS

Before the Court is the plaintiff Vinod Kumar Dahiya’s motion

to remand. For the reasons that follow, the motion is DENIED.

Background

This case arises from personal injuries sustained by an Indian

national in international waters in 1999. Despite a Louisiana

state court judgment which was vacated on appeal and an Indian

arbitration award in the seaman’s favor, this protracted

litigation continues two decades later.

Plaintiff Vinod Kumar Dahiya, an Indian national, served as

an engine cadet on the M/T EAGLE AUSTIN, a Singapore-flagged vessel

owned by Talmidge International Ltd. Dahiya worked on the vessel

pursuant to an employment contract (called a “Deed”) with Neptune

Shipmanagement Services (PTE), Ltd., a Singapore-based ship

crewing agency. While the EAGLE AUSTIN was in international waters

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on November 13, 1999, Dahiya was burned while operating the

vessel’s incinerator. Before he returned to India, Dahiya was

briefly treated for his injuries in Baton Rouge, Louisiana.

On March 4, 2002, Dahiya sued Talmidge International Ltd.,

Neptune Shipmanagement Services (PTE), Ltd., American Eagle

Tankers, Inc., American Eagle Tankers Agencies, Inc., and The

Britannia Steam Ship Insurance Association (the defendants, and

collectively, the “Vessel Interests”) in state court in

Plaquemines Parish. On July 12, 2002, the Vessel Interests removed

the lawsuit to this Court, invoking The Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, 21 U.S.T.

2517, T.I.A.S. 6997, 330 U.N.T.S. 3, and its enabling legislation,

9 U.S.C. § 201. See Dahiya v. Talmidge Int’l Ltd., et al., No.

02-2135 (E.D. La. 2002) (“Dahiya I”). Dahiya moved to remand and

the Vessel Interests moved to compel Dahiya to arbitrate his claims

pursuant to the terms of the parties’ Deed.

On October 11, 2002, this Court granted Dahiya’s motion to

remand and denied the Vessel Interests’ motion to compel

arbitration. Dahiya I, 2002 WL 31962151 (E.D. La. Oct. 11, 2002).

The order remanding Dahiya I was unreviewable by the Fifth Circuit.

See Dahiya I, 371 F.3d 207, 209 (5th Cir. 2004) (ruling that

appellate court was precluded from reviewing order remanding case

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for lack of subject matter jurisdiction, “no matter how erroneous”

the remand order). This Court has since observed that its remand

ruling was erroneous, the Vessel Interests point out; and, Dahiya

does not dispute that the Fifth Circuit has explicitly rejected

the argument (previously accepted by this Court) that La.R.S. §

23:921 invalidates foreign arbitration clauses in employment

contracts of foreign seamen. See, e.g., Lim v. Offshore Specialty

Fabricators, Inc., 404 F.3d 898, 906 (5th Cir. 2005).

The Vessel Interests’ motion to compel arbitration – re-urged

in state court on remand – was denied on August 8, 2003.

Discretionary writs were denied by the state appellate court, and

Dahiya’s personal injury claims proceeded to trial on the merits.

Dahiya prevailed. A judgment was entered against Neptune,

Talmidge, and American Eagle Tankers. Defendants appealed.1

Reversing the state trial court judgment, the state appellate court

ruled in the Vessel Interests’ favor as to their first assignment

1 Dahiya cross-appealed, challenging the adequacy of the $579,988

damages award and arguing that the state district court

inadvertently omitted from the judgment the insurer, Britannia.

The state appellate court pretermitted resolution of Dahiya’s

cross-appeal and certain of defendants’ assignments of error,

given that relief was granted on the Vessel Interests’ first

assignment of error (in which the Vessel Interests argued that the

state district court erred in failing to sustain their exceptions

of no right of action given the arbitration clause and failed to

dismiss or stay the case pending arbitration). All other

assignments of error were thus moot.

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of error; in so doing, the state appellate court held that the

arbitration clause in Dahiya’s Deed was valid and enforceable, and

ordered Dahiya to arbitrate his claims against the Vessel Interests

in India. Dahiya I, 931 So. 2d 1163, 1173 (La. App. 4 Cir. 2006).

The state appellate court thus remanded the case to the state trial

court with instructions to compel the parties to arbitrate in

India. Id. On May 29, 2007, the U.S. Supreme Court denied Dahiya’s

petition for a writ of certiorari. Dahiya I, 550 U.S. 968 (2007).

On October 10, 2007, the state trial court stayed the case

pending arbitration; a process that itself spanned years for

contested reasons the Court need not address. Ultimately, Dahiya

prevailed in the Indian arbitration. On January 25, 2020, he

obtained an award against Neptune of 95 Lakh, which is 9,500,000

Indian Rupees, or approximately $130,000.2

2 Among the many contentious issues the parties debate, Dahiya

notes that the arbitration award remains unpaid, but the Vessel

Interests submit that they offered to satisfy the Indian

Arbitration Award. The Vessel Interests say that they contacted

Dahiya’s Indian counsel in an effort to agree on the amounts owed

under the award, particularly the amount of accrued interest. But,

the Vessel Interests say, Dahiya has ignored their inquiries and

refused to cooperate with their attempts to satisfy the award.

One matter perhaps both can agree on: Dahiya’s attempt to reinstate

the Louisiana state court judgment or re-try his personal injury

claim in Louisiana state court indicates that he is dissatisfied

with the Indian arbitration award.

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Less than three months later, on April 15, 2020, Dahiya filed

a “Motion to Reinstate Judgment, or Alternatively Re-Set for Trial”

in the Louisiana state court lawsuit. In that motion, Dahiya

“pointed out that the arbitration award is not enforceable under

U.S. law, and only affects one of the named defendants in the

suit.” Before the state court could resolve Dahiya’s motion, the

Vessel Interests, now for a second time, removed Dahiya’s lawsuit

from state court to this Court. The same day they removed this

lawsuit, on May 26, 2020, the Vessel Interests sued Dahiya in this

Court; the Vessel Interests’ originally filed case was assigned

Civil Action Number 20-1525, and this removed case was assigned

Civil Action Number 20-1527. In 20-1525, the Vessel Interests

filed a complaint under the Convention and its enabling legislation

seeking an order confirming the Indian Arbitration Award, a

judicial declaration that this litigation has been resolved, and

a permanent injunction enjoining Dahiya from making any further

attempts to litigate his personal injury claim in the United

States. Similarly, in this removed lawsuit, the Vessel Interests

ultimately seek confirmation of the arbitration award and a final

order dismissing Dahiya’s personal injury claims. Because both

20-1525 and 20-1527 are related to the 18-year-old removed case

assigned to this Section of Court (Civil Action Number 02-2135),

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both 20-1525 and 20-1527 were transferred here from other Sections

of Court. Dahiya now promptly moves to remand 20-1527.3

I.

On a motion to remand, “[t]he removing party bears the burden

of showing that federal jurisdiction exists and that removal was

proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d

720, 723 (5th Cir. 2002).

Here, the removal at issue is predicated on the United States’

adoption of the Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (the “Convention”). Title 9 of the U.S.

Code implements the Convention at Chapter 2, §§ 201-08 (the

“Convention Act”). The Convention Act was intended “to encourage

the recognition and enforcement of commercial arbitration

agreements and international contracts and to unify the standards

by which the agreements to arbitrate are observed and arbitral

awards are enforced in the signatory countries.” Acosta v. Master

Maint. & Constr. Inc., 452 F.3d 373, 376 (5th Cir. 2006)(citation

omitted). In pursuit of that objective, the Convention Act

3 In Civil Action Number 20-1525, the Vessel Interests moved to

consolidate Civil Actions 20-1525 and 20-1527 and for entry of a

briefing schedule. Dahiya opposed. At the Vessel Interests’

request, the Court expedited consideration of the motion to

consolidate. On June 30, 2020, the Court denied the motion to

consolidate without prejudice.

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contains expansive original jurisdiction and removal provisions so

that cases within the Convention’s ambit proceed “in federal court

unless the parties unequivocally choose otherwise.” Id. at 377

(citation omitted).

The statute’s jurisdictional grant, § 203, provides that:

[A]n action or proceeding falling under the Convention

shall be deemed to arise under the laws and treaties of

the United States. The district courts of the United

States . . . shall have original jurisdiction over such

an action or proceeding, regardless of amount in

controversy.

The statute’s removal provision, § 205, permits removal to federal

court when an “action or proceeding pending in a State court

relates to an arbitration agreement or award falling under the

Convention.” Section 205 generally embraces “[t]he procedure for

removal of causes otherwise provided by law.” In Dahiya I, the

Fifth Circuit specifically observed that “[t]his ‘procedure for

removal’ includes the strictures of 1447(d).” Dahiya I, 371 F.3d

at 209 (citation omitted).

As courts have consistently recognized, § 205 is an expansive

removal provision. See, e.g., Acosta, 452 F.3d at 376 (“[T]he

federal courts have recognized that the plain and expansive

language of the removal statute embodies Congress’s desire to

provide the federal courts with broad jurisdiction over Convention

Act cases in order to ensure the reciprocal treatment of

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arbitration agreements by cosignatories of the Convention.”);

Beiser v. Weyler, 284 F.3d 665, 671 (5th Cir. 2002)(“[T]he district

court will have jurisdiction under § 205 over just about any suit

in which a defendant contends that an arbitration clause falling

under the Convention provides a defense.”); Adams v. Oceaneering

Int’l, Inc., 2010 WL 5437192, at *2 (W.D. La. Dec. 21,

2010)(“According to the Fifth Circuit, [§ 205 is] the broadest

removal statute in the federal code.”). “So generous is the

removal provision that we have emphasized that the general rule of

construing removal statutes strictly against removal ‘cannot apply

to Convention Act cases because . . . Congress created special

removal rights to channel cases into federal court.’” Acosta, 452

F.3d at 377 (citation omitted).

Accordingly, within this removal-friendly regime, removal may

be effected when a defendant can show that (1) “an arbitration

agreement or award [] falls under the Convention,” and (2) the

case “relate[s] to that arbitration agreement.” Adam Joseph Res.

v. CAN Metals Ltd., 919 F.3d 856, 862 (5th Cir. 2019).

II.

A.

Dahiya does not dispute that the Court has subject matter

jurisdiction over this action; rather, he challenges the

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procedural propriety of removal. Specifically, he contends that

the removal at issue was both untimely and an impermissible “re-

removal.” The Court considers both arguments in turn.

1. Whether Removal Is Timely.

As relevant here, § 205 provides that:

Where the subject matter of an action or proceeding

pending in a State court relates to an arbitration

agreement or award falling under the Convention, the

defendant or the defendants may, at any time before the

trial thereof, remove such action or proceeding to the

district court of the United States . . . .

9 U.S.C. § 205 (emphasis added). Focusing on the emphasized

proviso, Dahiya contends that the removal at issue is untimely

because a subsequently vacated trial in the underlying state-court

action was held in 2004. The Vessel Interests counter that

Dahiya’s state-court claims were not fully and finally adjudicated

in that trial, and that, therefore, Dahiya’s argument fails to

account for the effect of the state appellate court’s reversal.

Although the parties identify no precedents that squarely

address the precise question of statutory interpretation this

raises, the Court is persuaded that the better interpretation is

the Vessel Interests’. That interpretation is a reasonable one;

indeed, while Dahiya argues that any state-court trial renders a

theretofore removable Convention case unremovable, there is

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greater reason to believe that Congress merely intended to preclude

the post hoc removal of tried-and-resolved state-court actions.

Both the plain language of § 205 and the statutory scheme in

which it operates suggest as much. As to the language, § 205

refers to “the trial” of “an action . . . pending in a State court

relat[ing] to an arbitration agreement or award falling under the

Convention,” not a trial, or any trial. Id. (emphasis added).

The word “the” is inherently exclusive, and its use in this context

implies that Congress likely meant to speak to the single event

that resolves a state-court action that would otherwise be amenable

to removal (ordinarily, to be sure, this would indeed be a trial).

In situations where, as here, an initial trial has been

subsequently vacated and no longer exerts any influence over the

parties’ legal standings with regard to a still-pending state-

court action, it is difficult to conceive of “the trial” as having

come and gone.

The statutory scheme of the Convention Act also counsels a

broader reading of § 205 than Dahiya urges. As the Supreme Court

has explained, where a statute’s meaning is plain, courts must

enforce it accordingly; “[b]ut oftentimes, ‘the meaning – or

ambiguity – of certain words or phrases may only become evident

when placed in context.’” King v. Burwell, 576 U.S. 473, 486

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(2015) (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132 (2000)). Such is the case here. Accordingly, “the Court

must read the words ‘in their context and with a view to their

place in the overall statutory scheme.’” Id. (quoting Brown &

Williamson, 529 U.S. at 132). As previously noted, the removal

regime Congress created in the Convention Act is perhaps the most

permissive “in the statute books.” Acosta, 452 F.3d at 377. The

rigid interpretation advanced by Dahiya does not square with

§ 205’s placement in a statutory scheme that clearly evinces a

congressional intent to affirmatively “channel cases into federal

court.” McDermott Int’l, Inc. v. Lloyds Underwriters of London,

994 F.2d 1199, 1213 (5th Cir. 1991).

All of this may explain why, as the Vessel Interests observe,

several other courts have held that trial-court finality (and not

necessarily the occurrence of a trial per se) is what terminates

a case’s removability under § 205. See, e.g., Infuturia Glob.

Ltd. v. Sequus Pharm., Inc., 631 F.3d 1133, 1139 (9th Cir. 2011)

(“The meaning of [§ 205] is clear: a defendant may remove a

qualifying state court action to federal court at any time before

the claims raised in the state court action have been adjudicated.”

(emphasis added)); Lannes v. Operators Int’l, 2004 WL 2984327, at

*11 (E.D. La. Dec. 20, 2004) (holding that removal under § 205 was

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timely because movants seeking remand could not identify any

“ruling in the state court which has resulted in a final

determination of the plaintiff’s claims” (emphasis added) (quoting

Acosta v. Master Maint. & Constr., Inc., 52 F. Supp. 2d 699, 705

(M.D. La. 1999)) (internal quotation marks omitted)).

As such, the best interpretation of § 205, and the procedural

posture of this case, indicate that the Vessel Interests’ removal

was timely.

2. Whether Re-Removal Is Permissible

While the Court’s finding on timeliness disposes of one

procedural ground for Dahiya’s motion to remand, Dahiya also

objects to the Vessel Interests’ re-removal of the state-court

action at issue. In Dahiya’s view, the Vessel Interests’ removal

of this action a second time constitutes an impermissible

collateral attack on the Court’s dated (and now repudiated)

rejection of the Vessel Interests’ initial removal some years ago.

This issue is more clear-cut.

As the Vessel Interests observe, “[t]he Fifth Circuit

recognizes a defendant’s right to seek subsequent removals after

remand.” S.W.S. Erectors, 72 F.3d at 492. Indeed, “[a]s a general

rule, once a case is remanded to state court, a defendant is

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precluded only from seeking a second removal on the same ground.”

Id.

Here, the Vessel Interests do not “seek[] a second removal on

the same ground.” See id. (emphasis omitted). Instead, their

second removal is premised on a novel development in the

litigation: an arbitrator’s entry of a substantial award for

Dahiya.

Confusing the relevant standard, Dahiya charges the Vessel

Interests with predicating the instant removal on the same

jurisdictional foothold of § 205. See Mot. at 3–4 (“The instant

removal is based on the exact same factual grounds as was the

previous removal: That the subject matter of Dahiya’s claim relates

to an arbitration agreement or award falling under the Convention,

such that the case can be removed pursuant to 9 USC 205.”). This

misstates the Court’s inquiry, however, which is instead to

determine whether an attempted re-removal is permissible by

determining whether a new pleading or event makes the case

removable. See S.W.S. Erectors, 72 F.3d at 492–93 (“The

prohibition against removal ‘on the same ground’ does not concern

the theory on which federal jurisdiction exists (i.e., federal

question or diversity jurisdiction), but rather the pleading or

event that made the case removable.”). Here, the entry of an award

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by a foreign arbitrator is indeed a new “event” that makes a case

removable under § 205, and consequently, the Vessel Interests’

re-removal is not impermissible under Fifth Circuit precedent.

* * *

Accordingly, IT IS ORDERED: that the plaintiff’s motion to

remand is DENIED.

New Orleans, Louisiana, September 16, 2020

MARTIN . Cz. ELDMAN

UNITED STATHS DISTRICT JUDGE

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