N.M., by and through his Wife and guardian, K.M., vs RESORT SPORTS LIMITED a/k/a RESORT SPORTS LTD.,

Lipcon, Margulies & Winkleman, P.A

July 24, 2015

N.M., by and through his Wife and guardian, K.M., vs RESORT SPORTS LIMITED a/k/a RESORT SPORTS LTD.,


This is case involving the personal injury claims of a Jones Act seaman, who suffered severe burns to 87% of the total surface of his body, internal inhalation burns, and burns to the corneas of his eyes when the boat that he was working on exploded. The maritime attorneys at Lipcon, Margulies & Winkleman, P.A. initially filed the complaint in state court, the defendant moved the case to federal court, and this is a motion asking the federal court to move the case back to state court.






N.M., by and through his

Wife and guardian, K.M.,








COMES NOW, Plaintiff, N.M., by and through his wife and guardian, K.M., who move this Court for entry of an Order remanding the present action to the Miami-Dade County Circuit Court from which it was removed, and for attorneys fees and costs. In support thereof, Plaintiff submits the following memorandum of law.


I. Background and Procedure

The present action arises from a February 28, 2015 incident. N.M. in connection with his employment as a boat operator for Resort Sports, Ltd. in Grand Cayman was injured when the boat upon which he was working (and which was owned and operated by Resort Sports, Ltd.) exploded, causing N.M. to suffer severe burns to 87% of the total surface of his body and further suffer internal inhalation burns and burns to the corneas of his eyes. N.M.’s status as a seaman, who was injured while in the service of Resort Sports vessel, created a non-delegable duty upon his employer, Resort Sports, Ltd., to furnish him with prompt, proper, and adequate medical treatment in connection with its maintenance and cure obligation under the General Maritime Law. Due to the severity of N.M.’s injuries and the lack of appropriate medical care for such injuries available in the Caribbean, Resort Sports, Ltd. made arrangements for N.M. to be transferred via air ambulance to the burn unit at Kendall Regional Medical Center in Miami, where he has undergone extensive medical care, surgeries, and treatment since March 1, 2015; generating a hospital bill exceeding Five Million Dollars, which Resort Sports, Ltd. has ignored – causing the hospital to file a lien for its medical expenses. Despite the odds against him, N.M. has survived the countless surgeries and procedures and is recovering – although he requires continuous medical care, including dialysis to continue to live. In addition, Resort Sports has deprived N.M. of his wages since the incident, which he needs to sustain his family in Bulgaria.[1]

Resort Sports, Ltd. is a company that provides shore excursion services to the mostly Miami-based cruise lines during Caribbean cruises which stop at Grand Cayman. Resort Sports’ entire business is spent almost exclusively servicing: Carnival Cruise Lines, Royal Caribbean Cruises, Celebrity Cruises, and Norwegian Cruise Lines – all based in Miami, Florida. N.M.’s job, in this regard, was to take passengers from these cruises on snorkeling and dive excursions and boat rides off the coast of Grand Cayman. It was in connection with one such excursion that the subject incident occurred.

Accordingly, on May 26, 2015, N.M. filed a three-count Complaint in the Miami-Dade Circuit Court against Resort Sports, alleging (1) Jones Act Negligence, (2) Unseaworthiness, and (3) Maintenance and Cure. All counts arise from the same incident and Resort Sports’ subsequent failure to pay Kendall Regional Medical Center’s bill. N.M. served his Complaint on Resort Sports pursuant to Florida Statute 48.181, by serving the Florida Secretary of State, which accepted service on June 3, 2015. That notice of service, a copy of the acceptance, and a copy of the Complaint were then mailed to Resort Sports on June 9, 2015. After learning that Resort Sports failed to pick-up the mailed Summons and Complaint from the Cayman post office, N.M. faxed the Summons and Complaint to Resort Sports on June 30, 2015.

On July 20, 2015, Resort Sports filed a Notice of Removal [D.E. 1] and a Motion to Dismiss [D.E. 1-4]. This Court entered an Order on July 21, 2015 requiring Plaintiff to file a response to the Motion to Dismiss by August 3, 2015 [D.E. 6][2].

Resort Sports’ premises its removal on the allegation that Plaintiff’s “Jones Act allegations are improper and designed for the sole purpose of attempting to thwart removal. The facts alleged in the Complaint defeat the application of the Jones Act in this matter as the Plaintiff is not a Jones Act seaman. . . .   The action is nevertheless an action under admiralty and maritime law and removable pursuant to 28 U.S.C. §§ 1331 and 1333.” For the following reasons, Resort Sports is incorrect, and this matter should be remanded to the Miami-Dade County Circuit Court.

II. Standard of Review for Remand

At this stage, the court should not analyze the personal jurisdiction arguments raised by Resort Sports’ in its Motion to Dismiss. “Because removal jurisdiction raises significant federalism concerns, federal courts are directed to construe removal statues strictly.” University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 1999). “Indeed, all doubts about jurisdiction should be resolved in favor of remand to state court. A presumption in favor of remand is necessary because if a federal court reaches the merits of a pending motion in a removed case where subject matter jurisdiction may be lacking it deprives a state court of its right under the Constitution to resolve controversies in its own courts. For example, in Marathon Oil, the district court dismissed an action on removal from state court for want of personal jurisdiction before reaching the issue of subject matter jurisdiction. On rehearing en banc, the Fifth Circuit held that the district court erred in failing to first examine its subject matter jurisdiction and, because jurisdiction was in fact lacking, in failing to remand to state court. The court reasoned that such an approach ‘accords the proper respect to the state courts, as the residual courts of general jurisdiction, to make the personal jurisdiction inquiry when [federal court] lack either constitutional or statutory subject-matter jurisdiction over a removed case.’” Id.

Additionally, Resort Sports bears the burden of proving its assertion that the Plaintiff plead his Jones Act claims fraudulently; and, further, if Plaintiff is not a Jones Act Seaman, Resort Sports must also prove its assertion that the action is removable as an admiralty claim. Dodson v. Spiliada Maritime Corp. et al., 951 F.2d 40 (5th Cir. 1992). In so doing, all disputed questions of fact and all ambiguities in the current substantive law must be resolved in favor of N.M. as the non-removing party. Id.; Holmes v. Atlantic Sounding, Inc., 437 F.3d 441, 445 (5th Cir. 2006).

“Defendants may abuse the assertion of fraud in the hope of achieving a federal adjudication of the merits of a disputable Jones Act claim.” Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). As such, Resort Sports’ “mere assertion of [fraudulent pleading] is not sufficient to warrant removing a case to federal court. Defendants must prove that the allegations of the complaint were fraudulently made, and any doubts should be resolved in favor of the Plaintiff.” Id. at 207. “[D]efendants’ burden of persuasion is a heavy one. The district court must resolve disputed questions of fact from the pleadings and affidavits in favor of the plaintiff.” Id. (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545 (5th Cir. 1981)). “The removing party must show that there is no possibility that plaintiff would be able to establish a cause of action.” Id. (emphasis added).

“The fraudulent pleading inquiry is capable of summary determination. . . . Although plaintiffs ‘may submit affidavits and deposition transcripts along with the factual allegations in the verified complaint,’ there is no requirement that they do so.” Id. at 208. The court should not attempt to resolve factual disputes where the disputed factual issues relate to matters of substance. Id. “[J]urisdictional inquiry must not subsume substantive determination. The court must resolve all disputed questions of fact from the pleadings and affidavits in favor of the plaintiff, and then determine whether there could possibly be a valid claim against the defendant in question.” Id. (emphasis added).

III. Plaintiff is a Jones Act Seaman and His Claims May Not Be Removed

The Jones Act does not define the term “seaman.” McDermott International, Inc. v. Wilander, 498 U.S. 337 (1991). To qualify as a Jones Act seaman, a plaintiff only needs to show that: (1) his duties contributed to the function of a vessel or to the accomplishment of its mission; and (2) his connection with a vessel (or an identifiable group of vessels) was substantial in both its duration and nature. Chandris Inc. v. Latsis, 515 U.S. 337, 368 (1995). As noted above, the first prong requires the plaintiff to “contribute to the function of the vessel or to the accomplishment of its mission.” Chandris, Inc., 515 U.S. at 359 (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355, 111 S.Ct. 807 (1991)). “[T]his threshold requirement is ‘very broad.’” In re Endeavor Marine, Inc., 234 F.3d 287, 290 (5th Cir. 2000) (quoting Chandris, 515 U.S. at 370, 115 S.Ct. 2172). “All persons employed on a vessel to assist in the main purpose of the voyage are mariners, and included under the name of seamen.” McDermott at 346. “’[M]aster or member of a crew’ restates who a ‘seaman’ under the Jones Act is supposed to be: a sea-based maritime employee.” McDermott at 348. “In Warner v. Goltra, 293 U.S. 155 (1934), the Court held that the master of a vessel is a ‘seaman’ under the [Jones] Act.” McDermott at 348-349. However, the Jones Act covers more than just those who aid in the navigation of the vessel. “All those with that ‘peculiar relationship to the vessel’ are covered under the Jones Act, regardless of the particular job they perform.” McDermott at 354. The requirement is that the employees duties must “contribute to the function of the vessel or to the accomplishment of its mission”; “[i]t is not necessary that a seaman aid in navigation or contribute to the transportation of the vessel, but a seaman must be doing the ship’s work.” McDermott at 355.

Here, the pleadings properly allege that N.M. is a Jones Act seaman. See Complaint [D.E. 1-1], paragraphs 7, 9, 16, and 22. More importantly, it is indisputable that N.M. meets the requirements of a “seaman” under the Jones Act. N.M. was employed by Resort Sports, Ltd. as a boat operator and Scuba dive instructor where he performed over 80% of his duties in that regard aboard vessels owned and operated by Resort Sports, Ltd. for the purpose of providing Scuba diving and snorkeling excursions to passengers of cruise lines mostly based in Miami, Florida. See Affidavit of N.M., Exhibit 1. In fact, Resort Sports’ attorney, Michael Alberga, affirms that “[a]t the time of the incident referenced in the Complaint, N.M. was employed by Resort Sports, Ltd. in the Cayman Islands as an experienced dive master, boat operator and was serving as captain of the GALLEON DIVER.”[3] (D.E. 1-4), paragraph 15.

Clearly, as a captain and a boat operator, N.M. contributed to the function of the vessel and was connected with a vessel in a substantial duration and nature. Further, as a dive instructor, aboard dive vessels, N.M. contributed to the mission of Resort Sports’ vessels – to provide Scuba diving and snorkeling excursions to cruise line passengers. It is well established that Scuba divers aboard dive vessels are Jones Act Seaman.   See e.g. Petits v. Bosarge Diving, Inc., 751 F.Supp.2d 1222 (S.D. Ala. 2010); Wallace v. Oceaneering International et al., 727 F.2d 427 (5th Cir. 1984).

Furthermore, the fact that N.M. was working for Resort Sports in Grand Cayman is also no impediment to his Jones Act claim. There is nothing in the Jones Act which requires a seaman be working or injured while in the United States. The Supreme Court in Lauritzen v. Larsen, 345 US 571 (1953), noted that the Jones Act, by its express terms, applies to “any seaman,” and was written in language so broad that it applies to any seaman on any vessel of any nation at any location on the globe. Indeed, the court in Moncada v. Lemuria Shipping Corp., 491 F. 2d 470 (2d Cir. 1974) pointed out that the literal terms of the Jones Act do not require that either the parties nor the injury have any connection to the United States. Stating that one of the purposes of the Jones Act is to afford indirect protection to American passengers whose well-being is entrusted to crew members, the court in Mattes v. National Hellenic American Line, S.A., 427 F. Supp. 619 (S.D. N.Y. 1977), said that the United States therefore has an interest in extending its law to protect a vessel’s foreign crewmembers from injuries which might in turn, affect the safety of American citizens. Here, while Resort Sports may be a Caymanian entity, its business is to provide shore excursion services to the cruise lines, most of which are based in the United States and, particularly, in Miami Florida. These cruise lines include: Carnival Cruise Lines, Royal Caribbean Cruises, Celebrity Cruises, and Norwegian Cruise Lines. See Affidavit of N.M., Exhibit 1, paragraph 9. Hence, Resort Sports’ business in inextricably connected to Florida and the United States. See, for example, Resort Sports’ contract with Miami-based Carnival Corporation, Exhibit 2, wherein Resort Sports consents to the personal jurisdiction over it in Miami, Florida; and agrees that its duties pursuant to its agreement with Carnival “shall be governed and construed in accordance with the General Maritime Law of the United States and/or the Laws of the State of Florida, U.S.A.” (Exhibit 2, paragraph 14 (c) and (e)).

In connection with this incident, Resort Sports had N.M. transported ‘stat’ from Grand Cayman to the burn unit at Kendall Regional Medical Center in Miami, Florida. And, in so doing, Resort Sports misrepresented the severity of N.M.’s injuries to the Miami hospital and then failed to pay the Miami hospital’s bill of over $5,000,000.00 incurred for the life saving care and treatment rendered to N.M. since March 1, 2015. This has caused the Miami hospital to file a hospital claim of lien against N.M. in Miami-Dade County, Florida. See, Affidavit of Kendall Regional Medical Center, Exhibit 3; and Hospital Claim of Lien, Exhibit 4. In short, and without the benefit of any discovery, Plaintiff has shown: (1) Resort Sports business is inextricable from Miami and the United States; (2) Resort Sports caused N.M. to be relocated to Miami where he currently remains; (3) In misrepresenting the severity of N.M.’s injuries in an effort to induce Kendall Regional Medical Center to accept ‘stat’ air evacuation of N.M. from Grand Cayman, Resort Sports committed a tort in Miami, Florida; (4) In failing to pay Kendall Regional Medical Center’s bill of over $5,000,000.00, Resort Sports committed a breach of contract in Miami, Florida; (5) In failing to pay N.M.’s medical bills, Resort Sports has deprived N.M. of maintenance and cure – leaving him stranded in Miami, Florida; and, currently (6) All of the medical witnesses (including Kendall Regional Medical Center – which remains holding an over $5,000,000.00 medical bill, still accruing) as well as N.M.’s wife, K.M., are located in Miami, Florida. Accordingly, under the inquiry standard of this court at this juncture, the Plaintiff has made a threshold showing that there is prescriptive jurisdiction for application of the Jones Act.

As a matter of law, the claims of a seaman are not subject to removal to federal court (even in the event of diversity of the parties). Lewis v. Lewis & Clark Marine, Inc., 121 S.Ct. 993 (2001). See also 28 U.S.C. §1445(a) (incorporated by reference into the Jones Act, 46 U.S.C. §30104). “It is axiomatic that Jones Act suits may not be removed from state court because [the Jones Act] incorporates the general provisions of the Federal Employers’ Liability Act, including 28 U.S.C. §1445(a), which in turn bars removal. Further, in determining whether a Jones Act claim has been alleged our inquiry is usually limited to a review of the plaintiff’s pleadings.” Lackey v. Atlantic Richfield Company et al., 90 F.2d 202 (5th Cir. 1993).

Accordingly, Resort Sports has improperly removed this matter and this matter should be remanded to the Miami-Dade County Circuit Court.

IV. Regardless of whether Plaintiff is a Jones Act Seaman, the Defendant may not remove General Maritime Law Claims to Federal Court Based upon Federal Question Jurisdiction.

Admiralty and maritime claims are not “federal questions” under 28 U.S.C. § 1331. In 1875 Congress expanded the jurisdiction of the courts by providing for federal question jurisdiction – cases arising under the Constitution, laws and treaties of the United States. 28 U.S.C. 1331. The Supreme Court held in Romero v. International Terminal OperatingCompany, 358 U.S. 354 (1959), that admiralty claims do not fall within federal question jurisdiction and thus are not removable. See Cornelio v. Premier Pacific Seafoods, 270 F.Supp.2d 1228 (W.D. Wash. 2003) where the still sound decision held that maritime claims are not removable to federal courts as federal questions:

Historically, admiralty claims have been held to be distinct from federal questions and only federal questions are removable to Federal Court under 28 U.S.C. Sec. 1441(b). Trinh v. Yamaha Boat Co., 122 F.Supp.2d 1364 (S.D. GA 2000). Admiralty law does not “arise under the Constitution, Treaties or laws of the United States” for purposes of removal pursuant to 28 U.S.C. Sec. 1441. Romero v. International Terminal Operating Co., 358 U.S. 354, 368 (1959). Such “saving clause claims brought in state court are not removable absent some other jurisdiction.” Morris v. Princess Cruises Inc., 236 F.3d 1061, 1069 (9th Cir. 2001)(citing Romero, supra at 371,… Iwag v. Geisel Compania Maritima,S.A., 882 F.Supp. 597, 603 (S.D. Tex. 1995).

General Maritime law claims do not raise federal questions and do not give original jurisdiction to the District Court making those claims subject to removal. See In Re Dutile, 935 F.2d 61 (5th Cir. 1991) (admiralty claims can only be removed when there is complete diversity). Thus, plaintiff’s general maritime claim cannot be removed as a federal question.

Article III, Sec. 1 of the U.S. Constitution provides:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;-to all cases affecting ambassadors, other public ministers and consuls;-to all cases of admiralty and maritime jurisdiction…

Section 9 of the Judiciary Act of 1789 implementing this power:

And be it further enacted, that the district courts…shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction…saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it

28 U.S.C. §1333, states:

The district courts shall have original jurisdiction, exclusive of the courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . .

Since 1789 the “Saving to Suitors” Clause has operated and its purpose has always been to allow cases that could otherwise be brought in the federal court under admiralty jurisdiction to be brought and kept in state courts. Romero, supra at 363. Romero at p. 371-372 described its historical significance as follows:

Not only would the infusion of general maritime jurisdiction into the Act of 1875 (federal question jurisdiction, 28 U.S.C. 1331) disregard the obvious construction of that statute. Important difficulties of judicial policy would flow from such an interpretation, an interpretation which would have a disruptive effect on the traditional allocation of power over maritime affairs in our federal system.

Thus the historic option of a maritime suitor pursuing a common-law remedy to select his forum, state or federal, would be taken away by an expanded view of Section 1331, since saving-clause actions would then be freely removable under section 1441 of Title 28, 28 U.S.C. section 1441. The interpretation of the Act of 1875 contended for would have consequence more deeply felt than the elimination of a suitor’s traditional choice of forum. By making maritime cases removable to the federal courts it would make considerable inroads into the traditionally exercised concurrent jurisdiction of the state courts in admiralty matters—a jurisdiction which it was the unquestioned aim of the saving clause of 1789 to preserve. This disruption of principle is emphasized by the few cases actually involved. This small number of cases is only important in that it negatives the pressing of any practical consideration for the subversion of a principle so long-established and so deeply rooted. The role of the States in the development of maritime law is a role whose significance is rooted in the Judiciary Act of 1789 and the decisions of this Court. Recognition of the part the States have played from the beginning has a dual significance. It indicates the extent to which an expanded view of the Act of 1875 would eviscerate the postulates of the saving clause, and it undermines the theoretical basis for giving the Act of 1875 a brand new meaning.

In order to protect comity and harmony between the state and federal courts Romero clearly held that general maritime law cases alone are not removable and that an independent basis of federal jurisdiction was necessary. Romero has been settled law for 55 years.

And, in 2001, the United States Supreme Court reiterated in Lewis v. Lewis & Clark Marine, Inc., 121 S.Ct. 993, 1004-1005 (2001) the non-removability of admiralty and maritime matters based upon the Saving to Suitors clause, absent a separate ground:

We have previously refused to hold that admiralty claims, such as a limitation claim, fall within the scope of federal question jurisdiction out of concern that saving to suitors actions in state court would be removed to federal court and undermine the claimant’s choice of forum. We explained that to define admiralty jurisdiction as federal question jurisdiction would be a ‘destructive oversimplification of the highly intricate interplay of the States and the National Government in their regulation of maritime commerce.’. . . [A]rguments to limit and enumerate the saved remedies under the saving to suitors clause must fail in view of the consistent recognition by Congress and this Court that both state and federal courts may be proper forums for adjudicating [admiralty and maritime] claims.

Here, Resort Sports’ sole basis for removal is federal question jurisdiction. See Civil Cover Sheet [D.E. 5]. Diversity does not exist. As explained above, admiralty and maritime matters are not federal questions for purposes of removal. Accordingly, Resort Sports has improperly removed this matter and this matter should be remanded to the Miami-Dade County Circuit Court.

V. Plaintiff should receive attorneys fees and costs for the remand of this matter.

28 U.S.C. §1447(c) provides:

. . . . 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. . . .

In Martin v. Franklin Capital Corporation et al., 126 S.Ct. 704 (2005), the United States Supreme Court has set forth the standard for awarding fees upon remand:

The appropriate test for awarding fees under §1447(c) should recognize the desire to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party, while not undermining Congress’ basic decision to afford defendants a right to remove as a general matter, when the statutory criteria are satisfied. In light of these ‘large objectives,’ the standard for awarding fees should turn on the reasonableness of the removal.

Thus, where the moving party lacked an objectively reasonable basis for seeking removal, attorneys fees and costs should be awarded to the non-removing party.

As previously explained, Resort Sports has sought to remove the present case alleging (1) that the Plaintiff is not a Jones Act Seaman; and (2) that the matter, as an admiralty and maritime claim, is removable pursuant to this court’s federal question jurisdiction. Resort Sports is incorrect on both counts. Further, in light of the overwhelming precedent presented, Resort Sports could not have had an objectively reasonable belief that the law would support its removal. As such, Plaintiff should be entitled to reasonable attorneys fees and costs related to the remand of this matter.

VI. Conclusion

Based on the foregoing, Plaintiff respectfully requests this Court remand this matter back to the Miami-Dade County Circuit Court and award reasonable attorneys fees and costs to Plaintiff related to the remand.


Undersigned counsel hereby certifies that he has conferred in good faith with counsel for Defendant, Resort Sports, Ltd., who are opposed the relief sought herein.

Respectfully submitted,



Attorneys for Plaintiff

One Biscayne Tower, Suite 1776

2 South Biscayne Boulevard

Miami, Florida 33131

Telephone No.: (305) 373-3016

Facsimile No.: (305) 373-6204

By: /s/ Jason R. Margulies                 


Florida Bar No. 57916


I HEREBY CERTIFY that on July 26, 2015, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to electronically receive Notices of Electronic Filing.

By: /s/ Jason R. Margulies                 


[1] N.M.’s wife, K.M., flew to Miami upon learning of her husband’s injuries and has remained with him at Kendall Regional Medical Center since arriving. Their twin 11-year old daughters remain in Bulgaria and are temporarily being cared for by N.M.’s aged and ailing parents.

[2] Plaintiff, under separate cover, will file Motion to Extend Time to Respond to Resort Sports’ Motion to Dismiss until such time as this Court rules on Plaintiff’s Motion for Remand.

[3] GALLEON DIVER is also known as the GALLEON and refers to the vessel involved in the subject incident.