KURT D. ENGELHARDT

ORDER AND REASONS

Before the Court is plaintiff's Motion to Remand (Rec. Doc. 11). Two defendants have filed opposition memoranda (Rec. Docs. 17 and 39), the plaintiff has filed two reply memoranda (Rec. Docs. 34 and 44), and North River has filed a sur-reply (Rec. Doc. 46). I. BACKGROUND:

Plaintiff brought this suit in Civil District Court, Parish of Orleans, against four Jones Act defendants and several non-Jones Act defendants, seeking damages for alleged exposure to drilling mud additives that contained asbestos. Rec. Doc. 1-1 at 1-10. On January 31, 2014, approximately three years into the litigation, plaintiff filed a First Supplemental and Amending Petition for Damages, adding certain new defendants, including North River Insurance Company ("North River"), and adding a general maritime law claim against the non-Jones Act defendants. Rec. Doc. 1-1 at 13-18. On February 10, 2014, Chevron Phillips Chemical Company LP ("CPChem") removed the action to this Court, asserting that the case is within this Court's admiralty jurisdiction (28 U.S.C. § 1333) and is removable pursuant to 28 U.S.C. § 1441(a). On March 17, 2014, North River filed a separate notice of removal, invoking admiralty jurisdiction (28 U.S.C. § 1333), as well as asserting that federal question jurisdiction exists pursuant to the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331 et seq. and 28 U.S.C. § 1331. See Civil Action No. 14-624, Rec. Doc. 1. II. LAW AND ANALYSIS:

A. Timeliness:

As a threshold matter, the Court rejects the plaintiff's argument that removal is untimely. Although the matter had been pending in state court for nearly three years, the amending petition named North River as a new defendant. Pursuant to 28 U.S.C. § 1446(b)(2)(B), "[e]ach defendant shall have 30 days after receipt by or service on that defendant of the initial pleading or summons...to file the notice of removal." 28 U.S.C. § 1441(b)(2)(B). Plaintiff does not dispute that North River filed its Notice of Removal within thirty days of receiving service of the amending petition. Thus, pretermitting whether CPChem's notice of removal was timely under section 1446(b)(2)(C), the Court finds that North River's notice of removal was timely and, thus, that the matter was timely removed. Furthermore, as North River was not a party to the litigation prior to being served with the amending petition, plaintiff's waiver argument cannot prevail.

B. OCSLA Juridiction:

If the Court has jurisdiction under OCSLA, as North River maintains, then removal of the action was proper, for it is now settled that where OCSLA jurisdiction exists, a defendant may remove on the basis of federal question jurisdiction even if general maritime law provides the substantive law. See Barker v. Hercules Offshore, Inc., 713 F.3d 208, 223 (5^th Cir. 2013).

The burden is on the party seeking to establish subject matter jurisdiction, who must prove it "by a preponderance of the evidence." Young v. United States, 727 F.3d 444, 446 (5^th Cir. 2013). One of the essential elements of OCSLA jurisdiction is that the facts underlying the complaint must have occurred on an OCSLA situs. Barker, 713 F.3d at 213. "The jurisdictional grant in OCSLA is broad, covering a wide range of activity occurring beyond the territorial waters of the states." Id. (emphasis added) (citations and quotation marks omitted). It covers the Outer Continental Shelf ("OCS") and all artificial islands, installations and other devices "permanently or temporarily attached to the seabed, which may be erected thereon [i.e., on the OCS] for the purpose of exploring for, developing, or producing resources therefrom [i.e., from the OCS]" or for transporting such resources. 43 U.S.C. § 1333(a)(1). The OCS "consists of the seabed and natural resources underlying the coastal waters greater than three geographical miles from the coastline." Barker, 713 F.3d at 213 n.3 (emphasis added); 43 U.S.C. §§ 1331, 1301(a).

In this case, it appears from the petition that at least part of the plaintiff's alleged exposure to asbestos-containing products occurred "on offshore oil rigs in the Gulf of Mexico." Rec. Doc. 1-1 at 5. Further, North River has submitted excerpts of deposition testimony in which the plaintiff attests to having worked on a semi-submersible drilling vessel (the Century) attached to the seafloor with anchors, as well as a fixed platform installed in the Gulf of Mexico. See Civil Action No. 14-624, Rec. Doc. 1-4. However, neither the petition nor the deposition testimony supports a finding that the relevant facts occurred in connection with operations on the Outer Continental Shelf (OCS) as opposed to operations in state waters within the three-mile limit.

Citing to an opinion involving the well-known Deepwater Horizon, North River argues that semi-submersible vessels are capable of drilling in the "deeper waters of the OCS." Rec. Doc. 39 at 9. Yet, there are no facts or evidence before the Court to support a finding that the semi-submersible rig here (the Century) is at all comparable to the dynamically-positioned deepwater drilling vessel involved in the oil spill. More importantly, even if the record could support a finding that the Century was capable of working on the OCS, to deduce therefrom that the Century was in fact working on the OCS at the time of the plaintiff's alleged exposure would require a leap for which there is no support.

Likewise, fixed platform rigs are not confined to the OCS, but exist on both sides of the three-mile limit. See, e.g., Herb's Welding, Inc. v. Gray, 470 U.S. 414, 416-19 (1985) (plaintiff injured on fixed platform located within Louisiana territorial waters); Richard v. Apache Corp., 111 So.3d 1156, 1157 (La. Ct. App. 3^rd Cir.) (plaintiff injured on "fixed platform off the shore of Cameron Parish, Louisiana located within state territorial waters"), writ denied, 118 So.3d 416 (La. 2013). While it is possible that certain of the plaintiff's alleged exposures occurred on an OCSLA situs, it is equally likely that all the plaintiff's alleged exposures occurred on rigs in state waters. Based upon the record presented, it would be sheer speculation to find that any alleged exposure occurred on the OCS or in connection with an operation on the OCS. Thus, North River has failed to carry its burden of establishing OCSLA jurisdiction by a preponderance of the evidence.

C. Admiralty Jurisdiction:

The remaining jurisdictional basis cited for removal is admiralty jurisdiction under 28 U.S.C. § 1333. Without question, the plaintiff's Jones Act claims could have been brought within this Court's admiralty jurisdiction if he had so elected. See Doucet v. Wheless Drilling Co., 467 F.2d 336, 339 (5^th Cir. 1972) ("A seaman having a Jones Act claim may elect the remedy of a suit in admiralty or civil action at law."); Panama R. Co. v. Johnson, 264 U.S. 375, 391 (1924) (Jones Act leaves "leaves the injured seaman free...to assert his right of action...on the admiralty side of the court" where "the issues will be tried by the court" or "on the common-law side there will be a right of trial by jury."). However, Jones Act claims are nonremovable as a matter of statutory law (46 U.S.C. § 30104, 28 U.S.C. § 1445(a)). Even the defendants concede that the Jones Act claims must be remanded if the Court retains jurisdiction over the products liability claims. Thus, the non-Jones Act claims must stand on their own.

1. Does Admiralty Jurisdiction Exist for the Non-Jones Act Claims?

Both plaintiff and defendants gloss over the question of whether admiralty jurisdiction exists with respect to the claims against the non-Jones Act defendants (alleged manufacturers and sellers of asbestos-containing drilling mud additives), leaping directly into the fray over whether the claims are removable under 28 U.S.C. § 1441. "[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and of connection with maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534 (1995) (citing Sisson v. Ruby, 497 U.S. 358 (1995)). The location test is satisfied if it is shown that the tort occurred on navigable water or that the injury was caused by a vessel in navigable water. Id. at 534-35. The connection test has two requirements. First, the incident at issue must be of a type which has a "a potentially disruptive impact on maritime commerce." Id. at 534. Second, a court must determine whether the "general character of the activity giving rise to the incident" must bear a "substantial relationship to particularly maritime activity." Id.

By asserting that the general maritime law applies to his claims against the non-Jones Act defendants (to the extent the defendants' products were used offshore), the plaintiff tacitly agrees with the defendants' assertion that admiralty jurisdiction exists over these claims. See May v. Transworld Drilling Co., 786 F.2d 1261, 1265 (5^th Cir.) ("The test to determine the existence of a cause of action in maritime tort is identical with that applied to determine jurisdiction in admiralty."), cert. denied, 479 U.S. 854 (1986). The Fifth Circuit's opinion in Scarborough v. Clemco Industries, 391 F.3d 660, 665 (5^th Cir. 2004), tends to support such a conclusion. The Court need not grapple further with the issue, however, for it has found the claims to be nonremovable on other grounds, even if admiralty jurisdiction exists.

2. Can In Personam Claims at Law Be Removed Solely on the Basis of Admiralty Jurisdiction?

It is undisputed that prior to 2012, general maritime claims were not removable on the basis of admiralty jurisdiction and could be removed only if a separate basis for jurisdiction existed, such as diversity. In re Dutile, 935 F.2d 61, 62-63 (5^th Cir. 1991). The Fifth Circuit's holding in Dutile was grounded in the text of 28 U.S.C. § 1441(b), as it read prior to the Federal Courts Jurisdiction and Venue Clarification Act of 2011 ("FCJVCA"):

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(b)(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

The FCJVCA amendments removed the language from section 1441(b) upon which the Dutile opinion hinged. On this basis, the removing defendants argue that the amendment renders the Dutile rule obsolete. Several district courts in this Circuit have agreed with this rationale. See Ryan v. Hercules Offshore, Inc., 945 F. Supp.2d 772, 774-78 (S.D. Tex. 2013) (Miller, J.); see also Carrigan v. M/V AMC AMBASSADOR, No. 13-3208, 2014 WL 358353 (S.D. Tex. 1/31/2014) (Werlein, J.) (following Ryan); Bridges v. Phillips 66 Co., No. 13-477, 2013 WL 6092803, *4-5 (M.D. La. 11/19/2013) (same); Wells v. Abe's Boat Rentals Inc., No. 13-1112, 2013 WL 3110322, *1-4 (S.D. Tex. 6/18/2013) (Rosenthal, J.) (same). This Court, too, has once followed the course set by Ryan. Subsequent district court opinions have raised serious questions as to whether other bars might exist to the removability of claims on the basis of admiralty jurisdiction, independent of the changes made to the in-state-defendant provision in section 1441(b). See Barry v. Shell Oil Co., 2014 WL 775662 (E.D. La. 2/25/2014) (Zainey, J.) (holding that the "saving to suitors" clause barred removal where the plaintiff had requested a jury trial, a remedy not available where admiralty is the sole basis of jurisdiction); Coronel v. AK Victory, 2014 WL 820270 (W.D. Wash. 2/28/2014) (holding that 28 U.S.C. § 1333 does not confer original federal subject matter jurisdiction over maritime claims brought at law and that defendants may not convert a plaintiff's suit at law to one in admiralty in order to obtain a federal forum); cf. Perio v. Titan Maritime, LLC, 2013 WL 5563711 *10-14 (S.D. Tex. 10/8/2013) ("it is unclear to the court whether the saving to suitors clause contained in 28 U.S.C. § 1333 is an Act of Congress that would proscribe removal on the basis of the federal courts' original admiralty jurisdiction"). The Court need not answer these questions today, however, for it finds the claims to be nonremovable pursuant to the Jones Act.

D. Nonremovability of Jones Act Claims:

Jones Act claims are nonremovable as a matter of statutory law. 46 U.S.C. § 30104; 28 U.S.C. § 1445(a); see Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 455 (2001); Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5^th Cir. 1993) ("It is axiomatic that Jones Act suits may not be removed from state court."). Recognizing this, the defendants argue that the suit is nonetheless removable pursuant to 28 U.S.C. § 1441(c), which provides:

(c) Joinder of Federal law claims and State law claims.- (1) If a civil action includes-
(A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and
(B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B).
(2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join in or consent to the removal under paragraph (1).

Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

The Court agrees that where section 1441(c) applies, it does permit the removal of suits that otherwise would be nonremovable due to the inclusion of a Jones Act claim. However, section 1441(c), by its very terms, does not apply in this case. Although section 1441(c) has been modified substantially, it still applies only where the nonremovable claim is joined with a claim "arising under the Constitution, laws, or treaties of the United States" or, in the terms of the earlier text, a claim "within the jurisdiction conferred by section 1331." 28 U.S.C. § 1441(c) (2013); 28 U.S.C. § 1441(c) (2006). In other words, both versions of section 1441(c) apply only where the otherwise removable claim is one that falls within the federal question jurisdiction conferred by 28 U.S.C. § 1331. "Emphatically, claims in admiralty, whether designated in rem or in personam, do not fall within this category." Dutile, 935 F.2d at 63 (citing Romero, 358 U.S. at 378). Because admiralty jurisdiction provides the only basis for removal in this case, section 1441(c) does not apply. Thus, even if the claims are otherwise removable on the basis of admiralty jurisdiction, which the Court does not decide (see discussions supra), the defendants cannot overcome the statutory bar to removal in 28 U.S.C. § 1445(a), which is made applicable by 46 U.S.C. § 30104.

Although the 28 U.S.C. § 1445(a) bar to removal can be waived, the plaintiff has done nothing to waive his rights in this case, and North River's argument to the contrary is without basis. Eighteen days after the case was removed by CPChem, the plaintiff filed a motion to remand, arguing inter alia that the case was nonremovable due to the Jones Act claims. His position has been consistent. Moreover, the plaintiff's more forceful argument on the issue, made in his reply to North River (and to which North River objects as waived and untimely), was asserted well within the thirty-day period for filing a motion to remand in response to North River's notice of removal. See 28 U.S.C. § 1447(c). For all of these reasons, the Court finds that the plaintiff's statutory basis for opposing removal was preserved and timely asserted.

Accordingly;

IT IS ORDERED that plaintiff's Motion to Remand (Rec. Doc. 11) is hereby GRANTED, and this matter is hereby REMANDED to the Civil District Court for the Parish of Orleans,

New Orleans, Louisiana, this 8^th day of April, 2014.

________________

KURT D. ENGELHARDT

United States District Judge