Opinion
Civil Action No. 01-2927 Section "L" (1)
March 20, 2002
ORDER REASONS
Before the Court is the plaintiffs motion to remand the above captioned case to the Civil District Court for the Parish of Orleans, State of Louisiana. For reasons set forth below, plaintiffs motion is GRANTED.
I. BACKGROUND
Plaintiff Robert McInnis brought this action for personal injury against his employer Parker Drilling Company ("Parker Drilling") and Stone Energy Corporation ("Stone") under the Jones Act, General Maritime Law, and the "Saving to Suitors" clause in Civil District Court for the Parish of Orleans, state of Louisiana. The case grows out of an injury sustained by the plaintiff while in the course of his employment aboard Rig 3, a fixed offshore platform operated and controlled by Stone. The plaintiff alleges that at the time of his injury he was a Jones Act seaman because he was permanently assigned to Parker Drilling's fleet of vessels and was only temporarily assigned to the fixed platform.
On September 24, 2001, defendants removed this case to federal court contending that the Jones Act claim was fraudulently pled. All parties agree that the plaintiffs personal injuries arise out of an accident which occurred on a fixed offshore platform located on the Outer Continental Shelf. On this basis defendants suggest that while the plaintiffs petition purports to bring a claim under the Jones Act, the petition actually states a claim under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, et seq., which consequently justifies removal of the action under 28 U.S.C. § 1441 (b).
II. 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 plaintiffs assertion of seaman status clearly lacks merit. Patterson v. Hercules Offshore Corporation, 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 "baseless in law and fact" and brought "only to frustrate federal jurisdiction." Burchett, 48 F.3d at 175-76 (quoting Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1989)). In such cases, defendants 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).
A district court should not pre-try a case to determine removal jurisdiction, but a court may use a "summary judgement-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 plaintiffs favor, the court determines that the plaintiff has no reasonable possibility of establishing a Jones Act claim on the merits. Id. at 345-46.
To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Herbor Tug and Barge Co. v. Papai, 520 U.S. 548, 560 (1997). The Supreme Court has established that seaman status requires (1) that the plaintiffs 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).
In this case it is undisputed that McInnis was an employee of Parker Drilling and that Parker Drilling owns and operates both vessels, namely jack-up rigs, and fixed platform rigs is also undisputed that plaintiff has worked on both fixed platforms and jack-up rigs throughout his employment with Parker Drilling and that immediately before being assigned to Rig 3 he worked on a movable rig. The parties disagree, however, as to whether the plaintiff can be classified as a seaman. His seaman status depends on whether his assignment to Rig 3 was temporary or permanent.
In support of its claim that plaintiff was permanently assigned to Rig 3 and that his Jones Act claim is fraudulently pled, defendants offer the sworn affidavit of Allen Hebert, the human resources manager for Parker Drilling, stating that Parker Drilling had (and continues to have) a corporate policy of making all assignments from jack-up rigs to fixed platform rigs permanent assignments. Def.'s Ex. 1, XIV. Additionally, Hebert states that McInnis was permanently reassigned from jack-up Rig 11 to fixed platform Rig 3 on November 11, 2000. Def.'s Ex. 1, XIII.
McInnis contends, however, that he obtained seaman status when he was permanently reassigned from a fixed platform to a jack-up rig in March or April of 1999. Plain.'s Ex. A, 6. Plaintiff goes on to assert that his seaman status was not lost upon his transfer to Rig 3 as the transfer was only temporary in nature and that he would be returning to a movable rig. In support of this contention, plaintiff offers his own affidavit in which he states that it was his "understanding at the time of the transfer that it was a temporary transfer" and that "to the best of his knowledge, his job assignment aboard fixed platform Rig 3 was to last approximately 4 to 6 months after which he would be transferred to a jack-up rig." Plain.'s Ex. A, 11 13. Finally, plaintiff alleges that his immediate supervisor on fixed platform Rig 3 informed plaintiff that his assignment to the platform was only temporary. In addressing this allegation, defendants offer the affidavit of Allen Hebert stating that McInnis' immediate supervisor had no authority to determine whether an assignment was temporary or permanent. Def.'s Ex. 1, XVII.
In this case, the defendant has come forward with summary judgement type proof in the form of affidavits suggesting that the plaintiffs assignment to Rig 3 was permanent. Plaintiff on the other hand has also come forward with summary judgment type proof attesting to the fact that it was the plaintiffs subjective belief that his assignment to Rig 3 was only temporary. He bases this belief on a statement purportedly made to him by his supervisor that his assignment was temporary. Although plaintiffs attestation bears merely on his state of mind, the question of whether or not an employee has been permanently or temporarily assigned is a question of fact which is not entirely disposed of by the defendants' evidence. For example, was the plaintiff told by his supervisor that his tenure aboard the platform was temporary; if so, did his supervisor have authority to do so; had the supervisor done this before; and if so, what effect does this have on the supervisor's authority. Furthermore, if plaintiff was in fact only temporarily assigned to the fixed platform, then the issue of seaman status may depend on the plaintiffs work history which also presents issues of fact.
The decision as to whether or not to pierce the pleadings in order to determine whether a claim has been fraudulently pled or a defendant fraudulently joined is committed to the discretion of the district court. See Burden v. General Dynamics Corp., 60 F.3d 213, 217 (5th Cir. 1995) ("in testing for fraudulent joinder the district court in its discretion may "pierce the pleadings"). In this case, the Court concludes that disposing of this issue according to a summary judgment type standard by piercing the pleadings is not appropriate at this stage of the litigation. The Court is not satisfied that sufficient time for discovery has been afforded, either in this forum or in the state court proceeding, such that plaintiff should be expected to have uncovered information, if any exists, with which to contradict the defendants' contentions that plaintiffs assignment to Rig 3 was permanent. Thus, the Court must look to the pleadings for guidance in determining whether there is a reasonable possibility that the plaintiff could prevail on his Jones Act claim. Taking the allegations of plaintiffs petition as true, the Court concludes that the plaintiffs Jones Act claim has not been fraudulently pleaded. It is not necessary that the injury occur on a vessel for the Jones Act to apply. All that is required is that the employee be in the course of his employment and satisfy the requirements for seaman status. See e.g., Rannals v. Diamond Joe Casino, 265 F.3d 442 (6th Cir. 2001). It is reasonably possible that plaintiff could recover damages under the Jones Act if he was a seaman and the injury was sustained on a fixed platform to which the seaman was temporarily assigned.
B. Removability of the Jones Act Claim Pursuant to 28 U.S.C. § 1441 (c)
Having concluded that plaintiffs Jones Act claim was not fraudulently pleaded, the Court considers defendants' argument that plaintiffs petition for damages also states a claim under OCSLA which, as a separate and independent claim from plaintiffs Jones Act claim, justifies removal of the entire case, including the Jones Act claim, pursuant to 28 U.S.C. § 1441 (c).
Congress enacted OCSLA to provide a federal body of law to govern operations on the Outer Continental Shelf. Rodrigue v. Aetna Casualty and Surety Co., 395 U.S. 352 (1969). Plaintiff's petition does not plead a claim under OCSLA eo nomine, but it does assert a claim for damages based on injuries allegedly suffered on a fixed platform rig which all parties agree is located on the Outer Continental Shelf. However, even assuming that plaintiff asserts a claim under OCSLA, the entire case (including the Jones Act claim) could not be removed unless the OCSLA claim is considered separate and independent of the Jones Act claim. 28 U.S.C. § 1441 (c); see also Rybolt v. Laborde Marine Lift, 2001 WL 263119 (E. D. La. 2001).
Title 28, United States Code, Section 1441(c) permits removal of an entire case whenever "a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action." Jones Act chims are not removable from state court. Burchett, 48 F.3d at 175. OCSLA on the other hand is removable under 28 U.S.C. § 1441(b) because OCSLA extends the original jurisdiction of federal courts over cases arising from activities on the Outer Continental Shelf. See Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1226 (5th Cir. 1989). In order to determine if the non-Jones Act claim is separate and independent, the Court must examine whether there was a single wrong arising from an interlocking series of transactions. See Addison v. Gulf Coast Contracting Services, 744 F.2d 494, 499-501 (5th Cir. 1984). In this case all of plaintiffs claims against Parker Drilling and Stone arise out the same facts, the acts or omissions of the defendants contributing to the injury allegedly suffered by the plaintiff onboard the fixed platform. "Where there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." American Fire Casualty Co. v. Finn, 341 U.S. 6, 14 (1951). Furthermore, the simple fact that there are multiple defendants each sued wider a different theory of recovery, does not render the claims separate and independent. Id. at 12-14. Thus, assuming that plaintiffs petition states a claim under both the Jones Act and under OCSLA, the two are not separate and independent and, therefore, the case can not be removed under § 1441(c).
III. CONCLUSION
For the foregoing reasons, the Court finds that the defendant has failed to demonstrate that the plaintiffs Jones Act claim has been fraudulently pleaded. Furthermore, removal of the Jones Act claim is not supported by 28 U.S.C. § 1441 (c). Accordingly, the plaintiffs motion to remand is GRANTED, and IT IS ORDERED that the above captioned case be and hereby is REMANDED to the Civil District Court for the Parish of Orleans, State of Louisiana.