Opinion
CIVIL ACTION NO. 03-2478
November 25, 2003
ORDER AND REASONS
Before the Court is plaintiff Simeon Bolcien's Motion for Leave to File a Supplemental Memorandum in Support of Plaintiff's Motion to Remand (Rec. Doc. 10) and Motion to Remand (Rec. Doc. 7) this action to Orleans Parish Civil District Court. Defendant Exxon Mobile Corporation. ("Exxon") opposes the motion to remand. The motions, set for hearing on October 22, 2003, are before the Court on the briefs without oral argument. For the reasons that follow, the Motion to Remand is DENIED. The Motion for Leave to File a Supplemental Memorandum in Support of Plaintiff's Motion to Remand (Rec. Doc. 10) is GRANTED.
BACKGROUND
Plaintiff alleges that on or about April 23, 2003, he was employed by defendant Superior as a wireline operator performing duties in the Gulf of Mexico on a platform owned by defendant Exxon. The West Delta 73 G-3 platform is a fixed platform located approximately 50 miles off of Grand Isle, Louisiana. Pla. Pen. at ¶ 4. While hooking up a hose to a casing valve on the platform Plaintiff claims that he stepped into a concealed hole on the platform and sustained injuries to his foot, ankle, leg, and lower back. Although Plaintiff was injured on the platform, he asserts that he was assigned to a Superior vessel which was adjacent to the platform. Id. at ¶¶ 2, 4. He further asserts that his accident occurred while he was in the service of the vessel and that the unseaworthiness of a Superior-owned vessel was a proximate cause of his accident. Id. at ¶¶ 8, 9.Plaintiff filed suit against Superior in state court asserting a Jones Act claim, and alternatively a general maritime claim pursuant to the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C.A § 905(b). He also asserted a claim against Exxon for platform negligence. Exxon removed the suit to this Court alleging that the Outer Continental Shelf Lands Act ("OCSLA") conferred jurisdiction upon this Court and that Plaintiff had fraudulently pled the claims against Superior in order to avoid removal to federal court.
DISCUSSION
1. Plaintiff's Motion to Remand
Plaintiff argues that removal was improper because issues of fact exist as to whether he is a Jones Act seaman. Assuming he cannot demonstrate an issue of fact as to seaman status, he argues that removal was nevertheless improper because the parties are not completely diverse-Superior has its principal place of business in Louisiana. He also asserts that the removal is procedurally defective because Superior did not join in the removal.
Exxon asserts that removal was proper because Plaintiff's accident occurred on a fixed platform owned by Exxon and was wholly unrelated to any vessel owned by Superior. Thus, Plaintiff has no § 905(b) general maritime claim against Superior for vessel negligence. Further, Exxon asserts that Plaintiff is not a Jones Act seaman. Therefore, because Plaintiff fraudulently pled all of his claims against Superior, Exxon was not required to have Superior join in the removal. Finally, Exxon asserts that Plaintiff's remaining claims-those against Exxon-are within this Court's jurisdiction pursuant to OCS1A.
2. Removal Jurisdiction
"The right of removal is entirely a creature of statute and `a suit commenced in state court must remain there until cause is shown for its transfer under some act of Congress.'" Syncenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Great N. R. Co. v. Alexander, 246 U.S. 276 (1918)). The general removal statute provides in pertinent part:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant.
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.28 U.S.C. § 1441(a), (b). Thus, pursuant to § 1441, defendant can only remove those cases over which the district court would have had original jurisdiction had plaintiff elected to bring the suit in federal court in the first place. Syngenta, 537 U.S. at 33. Further, the presentation of a claim under § 905(b) of the LHWCA does not automatically raise a federal question cognizable under 28 U.S.C. § 1331. Richendollar v. Diamond M Drilling Co., 784 F.2d 580, 583 (5th Cir. 1986). Rather, the nature of the underlying claim must be considered, for that claim determines whether there is federal subject matter jurisdiction. Id.
Although federal courts have original jurisdiction over Jones Act claims, "[a]s a general rule Jones Act cases are not removable." Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999) (quotingBurchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995)). Further, admiralty and maritime claims do not arise under federal law for purposes of federal question removal jurisdiction. Tennessee Gas Pipeline v. Houston Cas., Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996) (citing Romero v. International Term. Oper. Co., 358 U.S. 354 (1959)). Thus, admiralty claims are removable only where original jurisdiction is based upon something other than admiralty,e.g., diversity of citizenship, and removal can only be perfected by non-forum defendants. Id. (citingPoirrier v. Nicklos Drilling Co., 648 F.2d 1063, (5th Cir. 1981)); In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991).
Although Jones Act cases are not removable, a fraudulently pleaded Jones Act claim does not bar removal to federal court. Hufnagel, 182 F.3d at 345. Thus, defendant can "pierce the pleadings" to show that plaintiff has fraudulently pled the Jones Act claim to prevent removal. Id. (quoting Burchett, 48 F.3d at 175). While a district court should not "pre-try" a case to determine removal jurisdiction, the court may use a "summary judgment-like procedure" to determine whether the Jones Act claim was fraudulently pled. Id. If after resolving all disputed facts and ambiguities of law; in plaintiff's favor the court determines that plaintiff has no reasonable possibility of establishing a Jones Act claim on the merits, the court can deny remand.Id., Defendant's burden of persuasion is a heavy one and all doubts must be resolved in favor of plaintiff. Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993) (citing Yawn v. Southern Ry., 591 F.2d 312, 316 (5th Cir. 1979)).
3. Jones Act Claim
The Court's first inquiry is whether Exxon has met its burden of demonstrating that Plaintiff has no reasonable possibility of establishing a Jones Act claim against Superior. If Exxon fails to meet that burden, then the entire case must be returned to state court.
The Jones Act, 46 U.S.C. app. § 688, provides a cause of action against plaintiff's employer grounded upon negligence. Becker v. Tidewater, Inc., 335 F.3d 376, 386 (5th Cir. 2003). To maintain a cause of action under the Jones Act, plaintiff must be a "seaman." Hufnagel. 182 F.2d at 346. Land-based workers are not seamen and therefore have no claim for Jones Act negligence. Id. (citing Harbor Tug Barge Co. v. Papai, 520 U.S. 548 (1997)). A land-based maritime worker's recourse against his employer lies with the LHWCA-a no fault worker's compensation scheme. Becker. 335 F.3d at 387 (citing 33 U.S.C. § 905, 907(a)). Pursuant to § 905(b) of the LHWCA, plaintiff may bring a general maritime claim against a vessel owner, including his employer, for injuries caused by vessel negligence. Id. (citing 33 U.S.C. § 905 (b)). The Jones Act and the LHWCA are "mutually exclusive" compensation schemes. Becker. 335 F.3d at 386 (quoting Harbor Tug Barge Co., 520 U.S. at 553). Thus, if plaintiff satisfies the criteria for being a seaman, then he is covered by the Jones Act. Id. If he does not, then he is protected only by the LHWCA.Id.
The Supreme Court has established a two-part test to determine seaman status. First, plaintiff's duties must contribute to the function of the vessel or to the accomplishment of its mission. Becker. 335 F.3d at 387-88 (citing Chandris. Inc. v. Latsis, 515 U.S. 347 (1995)). Second, plaintiff must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in duration and nature. Id. A fleet of vessels is any identifiable group of vessels acting together or under one control. St. Romain v. Industrial Fabric, Repair Serv., Inc., 203 F.3d 376 (5th Cir. 2000). The Fifth Circuit has rejected the notion that a fleet of vessels means "any group of vessels an employee happens to work aboard." Campo v. Electro-Coal Trans. Corp., 970 F.2d 51, 52 (5th Cir. 1992) (quoting Barrett v. Chevron, 781 F.2d 1067 (5th Cir. 1986)).
Fixed platforms are "legally man-made islands" and are not vessels for Jones Act purposes. Hufnagel, 182 F.3d at 347 n. 1. Moreover, the Fifth Circuit has held that itinerant wireline workers and other fixed platform service personnel typically are not Jones Act seamen because they usually have no permanent connection to a vessel or fleet of vessels notwithstanding that they spend a significant: amount of time on seagoing vessels. Ardleigh v. Schlumberger Ltd., 832 F.2d 933, 934 (5th Cir. 1987); Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554 (5th Cir. 1987);St. Romain, 203 F.3d 376.
According to Superior's affidavit, Plaintiff transferred to Superior's Well Service Division on February 17, 2003. Def. Exh. B at ¶ 2. Plaintiff began his new assignment performing onshore work, and thereafter performed downhole wireline work on five separate Superior job assignments prior to his injury. Id. at ¶¶ 3-4. All five of those jobs involved work aboard non-vessel fixed platforms owned and operated by others. See ¶¶ 5-9. On the third such job, the POWER XI, a liftboat owned and operated by Superior, was jacked up alongside the fixed platform. Id. ¶ 7. Superior attests that Plaintiff's only connection to the POWER XI was to use it as an above water environment from which to perform plug and abandonment work. Id. Plaintiff did not perform any of the navigational or operational duties of the vessel. Id.
Likewise, on the fourth such job, the GULF ISLAND IV, a liftboat owned and operated by Superior, was jacked up alongside the fixed platform.Id. ¶ 8. As with the previous job, Superior asserts that Plaintiff performed none of the vessel's duties and used the GULF ISLAND IV only to provide a fixed above water work environment. Id.
Finally, during the job assignment on which Plaintiff was injured, Plaintiff was housed aboard the M/V GULF MARINER, a vessel neither owned nor operated by Superior. Id. ¶ 9. No Superior vessels were used in connection with this job. Id.
Plaintiff contends that he spent between 50 to 70 percent of his work time aboard the liftboats and supply vessel assigned to the various fixed platforms. Pla. Aff.¶ 6. He asserts that during this time he contributed to the maintenance, function, purpose, and operation of each vessel including performing rigging of material, equipment and supplies aboard the vessels; participation in installing and securing gangway from the vessels co the platform; securing and binding down equipment on the deck of the vessels; conducting fire watch aboard the vessels; repairing and testing tools and equipment on the decks of the vessels; transferring fuel and water from the vessels' tanks to the wireline equipment located on the vessels' deck; cleaning, hosing, and washing the deck of the vessels curing and after completion of the wireline operation. Id. ¶ 6.
Based on the foregoing the Court concludes that Plaintiff is not a Jones Act seaman. Because the fixed platforms upon which Plaintiff worked are not Jones Act vessels, the Court's inquiry need only focus on the three job assignments that utilized liftboats. Superior owned the liftboats used in only two of those assignments and there is no suggestion that Superior in any way exercised control of the third liftboat that it did not own. The issue then is whether Plaintiff's activities on the two job assignments that involved Superior liftboats somehow transformed him into a Jones Act seaman — a status typically denied to wireline operators aboard fixed platforms.
In his affidavit Plaintiff refers to a supply vessel assigned to the various platforms but he gives no clarification as to what role a supply vessel played in his injury or in his employment.
The Fifth Circuit does, in certain narrow circumstances, recognize fleet status even where the vessels are subject to different ownership.See Buras v. Commercial Testing Eng'g Co., 736 F.2d 307 (5th Cir. 1984); Bertrand v. International Mooring Marine, Inc., 700 F.2d 240 (5th Cir. 1983). However, in Lirette v. N.L. Sperry Sun, Inc., the Fifth Circuit clarified that the exception to the common ownership requirement would not apply in the case of a wireline worker aboard a platform because he did not perform the traditional duties of a "blue-water seaman." 831 F.2d 554, 557 (5th Cir. 1987).
The first requirement for seaman status is that Plaintiff's duties contributed to the function of the vessel or to the accomplishment of its mission. It is undisputed that Plaintiff was not hired to man the liftboats or to serve as a member of the liftboat crew. Rather, the liftboats merely served as support structures for Plaintiff's non-seaman wireline work aboard the non — vessel fixed platforms. Thus, it is not surprising that on those occasions when a liftboat was required, Plaintiff spent 50 to 70 percent of his time aboard the liftboats. However, that his work merely required him to be aboard a vessel is insufficient for seaman status unless a substantial part of his duties consisted of performing the work of the vessel and contributing to its function. Plaintiff claims to have performed various vessel-related duties during his time aboard the two Superior liftboats but the evidence when taken as a whole does not demonstrate that these functions were any more than mere incidental duties when compared with his duties as a wireline operator. Moreover, while he claims that 50 to 70 percent of his time was spent aboard liftboats, his affidavit is vague as to how much of that time was spent performing vessel-related duties.
However, assuming arguendo that Plaintiff's affidavit creates an issue of fact as to the first requirement for seaman status, he nevertheless fails to meet the second requirement for seaman status because like most wireline operators he fails to demonstrate that he had a permanent or substantial connection to a vessel or a fleet of vessels. Superior had liftboats present on only two of Plaintiff's five assignments and two other assignments were completed without the involvement of a liftboat or any other vessel. Moreover, no Superior vessel was onsite when Plaintiff was injured. Plaintiff's work aboard vessels was sporadic and wholly dependent upon whether the logistics of a particular job site required an above water work environment. Construing all of the evidence in Plaintiff's favor, he has not shown that an issue of fact exists as to whether he had a substantial connection no the two Superior vessels upon which he happened to work for two of his five assignments. Because Plaintiff is not a seaman he has no Jones Act claim against Superior. Therefore, remand is not required by the Jones Act.
4. Section 905(b) and General Maritime Law Claims
Because Plaintiff is not a Jones Act seaman his sole remedy against Superior lies with the LHWCA. Section 905(b) of the LHWCA allows a non-seaman to bring a general maritime claim against a vessel owner, including his employer, for injuries caused by vessel negligence.Becker. 335 F.3d at 387 (citing 33 U.S.C. § 905(b)). Plaintiff clearly has no § 905(b) claim against Superior because he was not injured aboard a Superior vessel. Plaintiff was injured aboard Exxon's fixed platform when he stepped into a hole. In fact, on the job assignment in question, no Superior vessel is alleged to have been onsite. Thus, Plaintiff's § 905(b) claim is likewise fraudulently pled.
Finally, because all claims against Superior were fraudulently pled, Exxon was not required to have Superior join in the removal. Jerniaan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993). Thus, the removal was not procedurally defective. 5. Removal Jurisdiction and OCSLA
Having determined that the Jones Act and § 905(b) claims do not require remand, the Court must now determine whether it has original jurisdiction over this case. Hufnaael, 182 F.3d at 348. Only those cases over which the district court has original jurisdiction are removable. 28 U.S.C. § 1441(a)
Pursuant to OCSLA the district courts have original jurisdiction over claims "arising out of, or in connection with (A) any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the cuter Continental Shelf." Hugnaoel, 182 F.3d at 349 (quoting 43 U.S.C. § 1349(b)d)). The Fifth Circuit applies a broad "but-for" test to determine whether personal injuries aboard a fixed platform "involved in the `exploration, development, or production' of minerals on the shelf" create a cause of action arising under OCSLA. Id. If the employee's injuries would not have occurred "but-for" his work aboard the platform, then the claim arises under OCSLA. Id. Such claims are removable because they present a federal question. Id. at 350.
Non-maritime claims arising under OCSLA are removable without regard to the citizenship of the parties. Id. at 350-52.
However, because OCSLA does not displace general maritime law, some maritime claims will also arise under OCSLA, and in those situations substantive maritime law will continue to govern. Id. at 350. Thus, where plaintiff asserts a maritime claim governed by OSCLA, the second sentence of § 1441(b) might bar removal where any defendant is a citizen of the forum state. See Hufnagel, 182 F.3d at 351; Tennessee Gas, 87 F.3d at 156.
Plaintiff's case was properly removed pursuant to OCSLA. Plaintiff's employment as a wireline operator undoubtedly furthered mineral production on the shelf. His injury occurred aboard on stationary drilling and production platform on the shelf. But for his employment on the platform his injury would not have occurred. Thus, his claims fall within OCSLA's jurisdictional sweep.
Furthermore, removal was proper without regard to the citizenship of the parties because Plaintiff's claims are non-maritime in nature. To give rise to a tort claim in admiralty, an incident must have both a maritime situs and a connection to traditional maritime activity.Hufnagel, 182 F.3d at 351. Accidents aboard offshore fixed platforms do not, as a matter of law, occur on navigable waters — a jurisdictional requirement for a maritime tort claim. Id. Further, neither the petition nor any of the evidence before the Court suggests that the accident was caused by a vessel on navigable waters. The non-Superior liftboat located next to the platform in no way contributed to Plaintiff stepping into a hole on the platform. Nor did Plaintiff's work aboard the fixed platform bear any relationship to traditional maritime activities. Id. at 352. Thus, Plaintiff's claims are non-maritime in nature and the case was removable without regard to the citizenship of the parties.
Accordingly;
IT IS ORDERED that Plaintiff's Motion to Remand (Rec. Doc. 7) should be and is hereby DENIED;
IT IS FURTHER ORDERED that the Motion for Leave to File a Supplemental Memorandum in Support of Plaintiff's Motion to Remand (Rec. Doc. 10) should be and is hereby GRANTED.