Opinion
CIVIL ACTION NO. 03-0871 SECT. `T'(2).
May 30, 2003.
ORDER
Before this Court is a Motion to Remand [Doc. 9], filed by Plaintiff, Lance Bourque. Both Defendants filed opposition briefs, and this motion came before this Court for hearing on the briefs on May 21, 2003. After considering the written briefs, the law, the record, and the applicable jurisprudence, this Court is now ready to rule.
I. PROCEDURE AND BACKGROUND
Lance Bourque originally filed suit in the Civil District Court of the Parish of Orleans, State of Louisiana, no. 03-2643, on February 19, 2003, seeking to recover damages for injuries that he allegedly sustained on or about September 18, 2002. Bourque, an employee of Tetra Technologies, Inc. (`Tetra'), was injured while working on a production platform operated by Chevron USA, Inc. (`Chevron'). Plaintiff affirmatively asserted in his complaint that he was engaged aboard a production platform claiming negligence and strict liability, claims made under Louisiana law. Defendants filed a timely removal on March 27, 2003, followed by a timely answer to the Plaintiff's Petition. On April 25, 2003, Plaintiff filed a Motion to Remand this matter to the Civil District Court for the Parish of New Orleans, State of Louisiana.
Bourque was engaged in Plug Abandon activities while on the ST 177E platform.
Plaintiff's Petition for Damages, ¶ 3, "he [the Plaintiff] was working on a structure owned and operated by the Defendant . . ."; ¶ 10(a), "operating the platform in an improper and unsafe manner." [emphasis ours].
Plaintiff began working as an employee of Tetra on February 7, 2001. He was hired to work as a floor hand in Tetra's offshore division. The Offshore division provides PA service on various rigs and fixed platforms in the Outer Continental Shelf. Occasionally, the platform-based work is facilitated by the presence of a lift-boat, used for storing tools or housing personnel during the job. Tetra's offshore division does not own nor operate any vessels; rather, the lift-boats are owned or chartered by each oil company with whom Tetra has contracted to perform a given platform PA job. At the time of Plaintiff's injury, Tetra was performing contract PA work on wells on Chevron's ST177E platform in South Timbalier. Tetra assigned several employees to the project including Lance Bourque. Plaintiff was to be a floor hand during the project, and as such, his duties involved moving storage equipment and material from place to place on the platform. While assigned to the ST177E platform, Plaintiff and his fellow employees were housed in living quarters on a lift-boat jacked-up next to the platform to accommodate the men involved in the PA job on the platform. Plaintiff claims that he was injured while carrying a hose on the platform, and that he fell because of a piece of grating allegedly left in an unsafe condition. Plaintiff makes claims under strict liability and negligence.
II. ARGUMENTS OF THE PARTIES
A. Plaintiffs, in favor of remand
Plaintiff maintains that since he filed his suit in Civil District Court as a Jones Act seaman, 46 U.S.C. § 688, the case was improperly removed as Jones' Act cases are not removable under FELA, which bars removal of the actions filed in state court.
B. Defendants, in opposition to remand
Defendants assert that the pleading and evidence submitted with their opposition memoranda clearly demonstrate that the removal of this suit was proper because this Court has original jurisdiction over this matter pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. Accordingly, the Plaintiff fraudulently and without any basis, alleged that he was a Jones Act seaman for purposes of divesting this Court of removal jurisdiction. Defendant continues, "nevertheless, in an attempt to frustrate removal of this matter, plaintiff alleges that he was working from the lift-boat MYRTLE. He does not — and cannot — allege that he was working on this lift-boat, or that he was a member of its crew, or that he was assigned to it, or that he has any connection to it at all. As set forth, the fact that a vessel was used in some fashion to facilitate a platform-based job does not make seamen of platform-based workers."
Alternatively, this Court has jurisdiction over this matter on the grounds of diversity of citizenship as provided by 28 U.S.C. § 1332. Therefore, the citizenship of Tetra should be disregarded in evaluating the existence of diversity of citizenship that exists among the real parties in interest to this suit.
III. LAW AND ANALYSIS
A. Outer Continental Shelf Lands Act
The Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. (`OCSLA'), provides federal subject matter jurisdiction for cases involving injuries which occur on platforms on the Outer Continental Shelf. Plaintiff claims that his injuries involved the negligence of Chevron equipment and unsafe conditions on the ST 177E platform, which is located in the Gulf of Mexico. While Plaintiff does not cite OCSLA as one of the jurisdictional grounds for his claim, he alleges that his inquiry occurred while working on a Chevron platform. See Plaintiff complaint. The platform in question is permanently affixed to the Outer Continental Shelf off the coast of Louisiana. Therefore, the claims of the Plaintiff are governed by OCSLA, and federal subject matter jurisdiction is present regardless of the citizenship of the parties according to 28 U.S.C. § 1441(b).
B. Jones Act Seaman Status and Removal/Remand
Several decisions from the Eastern District of Louisiana have dealt with the issue of removal of a Jones Act suit, and the standard to be employed when determining whether or not a Jones Act suit should be remanded to state court. In Mosquitto v. Connecticut Specialty Insurance Co., 1997 WL 714860 (E.D. La. 1997), the Court stated that,
"The Jones Act, 46 U.S.C. § 688, was passed in 1920 to grant a seaman a cause of action against his employer for negligence." Thomas J. Schoenbaum, Admiralty and Maritime Law Sec. 6-21, (2d Ed. 1994). Because the Jones act incorporates the general provisions of the federal Employers' Liability Act ("FELA"), and because FELA cases are barred from removal, Jones Act cases are generally not removable from state court. See Lackey v. Atlantic Richfield Co., 990 F.2d 202, (5th Cir. 1993). There are two exceptions to this general rule: (1) where a defendant can show that the Jones Act claim has been fraudulently pleaded to prevent removal; and (2) where the removal is allowed under 28 U.S.C. § 1441 ©). The fact that Jones Act claims are ordinarily removable does not prevent this inquiry. See Lackey, 990 F.2d at 207; Schoenbaum, supra at Sec. 4-3. [emphasis ours]
In Mosquitto, the Court ruled that the Defendants must prove that the allegations of the complaint were fraudulently made, and any doubt should be resolved in favor of the Plaintiff. Id. Although the Court had doubts regarding whether the Plaintiff would ultimately prevail on his Jones Act claim, under applicable law, the Court ruled that remand was proper.
Other sections of the Eastern District have also employed a similar analysis in remanding Jones Act suits to state court. In McGinnis v. Parker Drilling Co., 2002 WL 461660 (E.D. La. 2002), the Court stated the following analysis:
"A. Fraudulent Pleading of Jones Act Claim As a general rule, Jones Act cases are not removable. Fields v. Pool Offshore, Inc., 182 F.3d 353, 356 (5th Cir. 1999); see also 46 U.S.C. § 1445 (a); Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991). This rule does not apply however where a plaintiff's assertion of seaman status clearly lacks merit. Patterson v. Hercules Offshore Corp., 1998 WL 37525 (E.D. La. 1998). Thus, a state court Jones Act case may be removed to federal court if the assertion of Jones Act status is brought "only to frustrate federal jurisdiction." Burchett, 48 F.3d at 175-176 (quoting Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207). In such case, Defendant may "pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal." Id. (quoting Lackey, 990 F.2d at 207). The removing party, however, bears the "heavy" burden of demonstrating that "there is no possibility that plaintiff would be able to establish a cause of action." Id. (quoting Lackey, 990 f.2d at 207). [emphasis ours]
A district court should not pre-try a case to determine removal jurisdiction, but a court may use a "summary judgment-like procedure" to dispose of assertions that a Jones Act claim has been fraudulently pled. Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 345 (5th Cir. 1999). The court should deny remand only when, after resolving all disputed facts and ambiguities in the plaintiff's favor, the court determines that the plaintiff has no reasonable possibility of establishing a Jones Act claim on the merits. Id. at 345-46. [emphasis ours]
To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997); [see also, St. Romain v. Industrial Fabrication and Repair Service, Inc., et al., 203 F.3d 376 (5th Cir. 2000)]. The Supreme Court has established that seaman status requires (1) that the plaintiff's employment duties contribute to the function of a vessel or the accomplishment of a vessel's mission, and (2) that the plaintiff have a connection to a vessel in navigation that is substantial in duration and nature. Id. To attain seaman status, a claimant must show that he was either permanently assigned to or performed a substantial part of his work aboard a vessel or identifiable group of vessels under common ownership or control. Id. at 555-58. Likewise, a permanent assignment to a new job on a fixed platform rig may be the sole determiner of seaman status, regardless of previous work experience. See Barrett v. Chevron, 781 F.2d 1067, 1075-76 (5th Cir. 1986) ( en banc) (holding that seaman status may be determined solely on the basis of a new job when reassignment is permanent)"
Thereafter, the Court concluded that Jones Act status was not fraudulently pled, as employing a summary type standard resulted in a decision that it was reasonably possible that Plaintiff could recover damages under the Jones Act, based upon the Plaintiff's allegations that he was temporarily to work aboard a jack-up drilling rig.
In Waller v. American Seafood Co., 1999 WL 694109 (E.D. La. 1999), the Court was also presented with a remand based upon a removal alleging that Jones Act status was fraudulently pled. Recognizing that Jones Act claims are non-removable, the Court ordered a remand because the defendants did not prove that the Plaintiff had fraudulently pled Jones Act status.
In the case at hand, Plaintiff has claimed Jones Act seaman status, and the Defendants have responded to the Plaintiff's motion. Accordingly, the Defendants have put forth evidence which would render such a claim not only doubtful, but improper to the point of "fraudulently pleaded to prevent removal." Lackey, 990 F.2d at 207 (5th Cir. 1993). We must now look to the nature of the structure on which Plaintiff was working to analyze if he meets Jones Act status as a seaman.
C. Nature of the Structure, SE 177E
The structure where Plaintiff's alleged injury occurred, the South Timbalier 177E (`ST 177E'), is a fixed platform owned by Chevron. The ST177E platform is permanently attached to the seabed of the Outer Continental Shelf of the coast of Louisiana in South Timbalier Block 177 in the Gulf of Mexico. Tetra is a company that provides plug and abandonment (`PA') services for various oil and gas companies operating fixed oil and gas production platforms in the Gulf of Mexico. Tetra had a contract with Chevron to plug and abandon a number of wells located on Chevron's ST177E structure. The actual work was performed on this platform. Tetra did not provide any vessels in connection with its work.
Defendant Chevron's memorandum in opposition, exhibit B, ¶ 11.
In Fields v. Pool Offshore, Inc., 182 F.3d 353 (5th Cir. 1999), the Fifth Circuit determined the nature of the types of structures for purposes of Jones Act claims. In Fields, the Court determined that the NEPTUNE spar, owned by Oryx Energy was not a vessel but rather a fixed platform. The Court distinguished that work platforms such as the NEPTUNE spar are designed for primarily stationary residence and true vessels are intended to be used as a means of transportation over navigable water. The Court applied a three prong test to determine if a spar is a work platform: (1) whether the structure was constructed to serve primarily as a work platform; (2) whether the structure was moored or otherwise secured at the time of the accident; and (3) whether the transportation function of the structure went beyond theoretical mobility and occasional incidental movement. Id. at 357. Relying on the decision in Fields, Judge Carl Barbier, in Channel v. Grand Isle Shipyard, Inc., 2001 WL 515220 (E.D.La. 2001), held that the CHEVRON GENESIS spar was a work platform rather than a vessel. See also, Burchett v. Cargill, 48 F.3d 173 (5th Cir. 1995).
For the purposes of the instant motion, the analysis of the evidence leads this Court to the conclusion that the ST177E platform is a platform and not a vessel for the purposes of Jones' Act seaman status. This district has established that spars, structures which have much more of a mobile function than does the ST177E, are work platforms. Affidavits submitted by the Defendants in their Opposition to the Motion to Remand, Exhibit B, et seq., provide supplementary information which assists this Court in its determination that the ST177E is a platform for this determination.
The aforementioned affidavits are from Mancil Barrios, Workover Coordinator with Chevron USA since 1980 [exhibit B], and Sid Falgout, Human Resource Manager for Tetra, since March 2000 [exhibit C].
D. Court's Conclusions
After an analysis of the law, the record, and the applicable jurisprudence, the Court finds that the Plaintiff has not met the criteria to be classified as a Jones Act Seaman for the purposes of the instant matter. In his petition, plaintiff was required to set forth those facts allegedly establishing his Jones Act seaman status. Bourque has failed to meet the burden of proving Jones Act status. Using a summary judgment type standard as outlined by the Fifth Circuit in Hufnagel, this Court has concluded that Plaintiff could not prevail on a Jones Act claim. He has provided only conclusory allegations that he was employed by Tetra and was assigned to a fleet of vessels under Tetra's control. See Plaintiff's Complaint, ¶ 3, et seq. If he had a `work related connection' with the lift boat, the connections were at best temporary and transitory in nature, on an assignment separate and discrete from his previous assignments, and not substantial as a matter of law. Without alleging that he was employed to perform the vessels work and that he had a significant temporal connection to the vessels, the plaintiff cannot qualify as a seaman. Harbor Tug Barge Co. v. Papai, 520 U.S. 548, 554, 117 S.Ct. 1535, 1540 (1997). The Fifth Circuit has repeatedly held that platform-based PA workers such as the plaintiff are not Jones Act seamen as a matter of law. In St. Romain v. Industrial Fabrication and Repair Service, Inc., et al., 203 F.3d 376 (5th Cir. 2000), the Court held that a PA helper injured on a fixed platform was not a Jones Act seaman despite the finding that some of his work involved the support of a lift-boat for transporting equipment to the platforms and providing living quarters to the PA hands. Id. at 378. The Fifth Circuit upheld the district court's grant of summary judgment, holding that the plaintiff did not establish that he had a substantial connection to an identifiable group of vessels under common ownership. Id. at 379.
Similarly, in Roberts v. Cardinal Services, Inc., 266 F.3d 368 (5th Cir. 2001), the court held that a PA operator injured on a platform was not a seaman. Although the plaintiff spent some 41 percent of his work time aboard vessels, and approximately 28 percent of his time on vessels owned by his employer, the Fifth Circuit held that he lacked the requisite temporal connection to a vessel or fleet of vessels and thus could not be a Jones Act seaman as a matter of law. Id. at 376-378.
In the present matter, the Court concludes that the Plaintiff has alleged that he was assigned to work on a fleet of vessels owned or controlled by Tetra; however, the bases for these claims is wanting of any support. The information before the Court points to the fact that the work to be done was on the platform. While he may have been stationed for living quarters on a jack-up rig, the vast majority of the work to be performed, the situs of the alleged injury, and the submissions to this Court, comprised of the complaint as well as affidavits attached to the Defendants opposition to the Motion to Remand, all indicate that Plaintiff was a platform worker. Although he alleges that he worked from a vessel in his complaint, he has not established a substantial temporal connection to these vessels, nor has he alleged that his duties contributed to the function of the vessels as is required in order to establish seaman status. Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172 (1995). Simply alleging that the Plaintiff was `working from' a jack-up lift-boat or vessel, without any other connection, while the work was performed on the ST177E platform, is insufficient to rise to the specter of Jones Act.
As such, Plaintiff was not a Jones Act seaman at the time of his alleged injury, and with the federal court vested with subject matter jurisdiction pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq., this Court finds that the unsupported Jones Act allegation must be disregarded and Plaintiff's Motion to Remand is hereby DENIED.