Duet v. American Commercial Lines LLC et al
Filing
27
ORDER AND REASONS denying 7 Motion to Remand to State Court. Signed by Judge Jane Triche Milazzo on 4/16/13. (ecm, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JADE DUET
CIVIL ACTION
VERSUS
NO: 12‐3025
AMERICAN COMMERCIAL LINES LLC, ET AL.
SECTION: “H”(5)
ORDER AND REASONS
Before the Court is a Motion to Remand. (R. Doc. 7.) For the following reasons, the Motion
is DENIED. Plaintiff is not a Jones Act seaman and therefore his Jones Act claim against Defendant
St. James Marine, Inc. ("St. James") was fraudulently pleaded. Accordingly, removal was proper.
BACKGROUND
This maritime personal injury case arises from an accident that occurred on May 14, 2012,
while Plaintiff was working aboard the NM 1035—a vessel owned by Defendant American
Commercial Lines, LLC ("ACL"). Defendant ACL Transportation Services, LLC ("ACLTS") owns and
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operates a barge repair facility (the "Armant Fleet") located on the Westbank of the Mississippi
River in Vacherie, Louisiana. The Armant Fleet extends approximately one to two miles along the
river. Part of the Armant Fleet consists of a number of barges tied together and moored to the
riverbank in order to create a stationary work platform (the "floating dock"). The floating dock has
not moved since originally moored and has no mode of propulsion.
ACLTS provides various fleeting and repair services for barges owned by its sister company,
ACL. The ACL barges serviced by ACLTS remain in the river but are moored to the Armant Fleet.
In order to help service these barges, ACLTS owns and operates several smaller push boats (the
"Fleet Boats"). The Fleet Boats help move barges in and out of the Armant Fleet and shift barges
within the Armant Fleet itself. The Fleet Boats operate twenty‐four hours per day and each has
three permanent crews. The crews consist of a captain and two deckhands. Each crew works
twelve‐hour shifts for fourteen days, and then is off for seven days.
ACLTS also employs fleet workers and repairmen. In addition to ensuring that the floating
dock is properly maintained, the fleet workers assist the Fleet Boat crews in assembling barges into
tows to be moved out of the Armant Fleet. The primary responsibility of the repairmen is the
maintenance and repair of ACLTS equipment and ACL barges moored within the confines of the
Armant Fleet. The repairmen are paid an hourly wage and work Monday through Friday, typically
for eight hours per day.
ACLTS contracted with St. James to provide workers to clean ACL's barges and repairmen
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to service ACLTS' mechanical equipment and ACL's barges. Pursuant to this contract, St.
James—Plaintiff's payroll employer—assigned Plaintiff to work as a mechanic at the Armant Fleet
under ACLTS supervision. Plaintiff slept at home and drove to and from the ACLTS facility each day.
He was not permanently assigned to a vessel. Rather, he performed mechanical and welding work
on both the Fleet Boats and ACL barges. The majority of Plaintiff's work on the Fleet Boats
occurred while the vessels were moored to the floating dock. In order to access ACL barges
moored at more remote locations within the Armant Fleet, Plaintiff was transported by Fleet Boat.
The frequency with which Plaintiff traveled by Fleet Boat varied from day to day.
While Plaintiff's employment with St. James and ACLTS mainly involved repair and
maintenance, Plaintiff would occasionally perform other types of work. Plaintiff worked as a
deckhand when, for example, he helped reposition barges at the floating dock in order to facilitate
a repair. Plaintiff worked in this capacity once or twice a month and only in connection with his
duties as a mechanic. Plaintiff also assured that vessels complied with Coast Guard regulations by
performing air quality control inspection and painting draft numbers on the exterior of the vessels.
Plaintiff worked exclusively within the confines of the Armant Fleet save for two occasions.
On one occasion, Plaintiff left the fleet to help save a sinking vessel. On the other, Plaintiff traveled
on a "sea‐trial" to confirm that a vessel he repaired was in operable condition.
On May 14, 2012, Plaintiff was injured while working aboard the NM 1035 when he
allegedly fell into an open manhole. He filed suit in State court under the Savings to Suitors Clause
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on November 26, 2012. ACL and ACLTS (collectively the "Removing Parties") removed the matter
on December 21, 2012, invoking this Court's diversity jurisdiction and alleging improper joinder of
St. James. (R. Doc. 1.) Plaintiff filed a Motion to Remand on January 8, 2013 (R. Doc. 7), which
Removing Parties opposed on February 5, 2013 (R. Doc. 13). Plaintiff filed a reply on February 7,
2013 (R. Doc. 20), and Removing Parties filed a sur‐reply on February 14, 2013 (R. Doc. 24). The
Court heard oral argument on March 13, 2013, and took the Motion under advisement. (R. Doc.
26.)
LEGAL STANDARD
On a motion to remand, the removing party bears the burden of demonstrating that
removal was proper. Barker v. Hercules Offshore, Inc., No. 12–20150, 2013 WL 1319355, at *2 (5th
Cir. 2013) (citations omitted). The Jones Act, 46 U.S.C. § 30104, expressly incorporates the general
provisions of the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51. Beech v. Hercules Drilling
Co., L.L.C., 691 F.3d 566, 570 (5th Cir. 2012). Since FELA cases may not be removed to federal
court, Jones Act cases are generally non‐removable as well. See 28 U.S.C. 1445(a); Fields v. Pool
Offshore, Inc., 182 F.3d 353, 356 (5th Cir. 1999) (citations omitted). "A fraudulently pleaded Jones
Act claim does not, however, bar removal." Holmes v. Atl. Sounding Co., Inc., 437 F.3d 441, 445
(5th Cir. 2006) (citing Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995)). District courts may
pierce the pleadings and utilize a summary judgment‐like procedure to determine whether a
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plaintiff has fraudulently pleaded a Jones Act claim. Holmes, 437 F.3d at 445 (citations omitted).
A court may only deny remand where, after "resolving all disputed facts and ambiguities in current
substantive law in the plaintiff's favor, the court determines that the plaintiff has no reasonable
possibility of establishing a Jones Act claim on the merits." Hufnagel v. Omega Serv. Indus., Inc.,
182 F.3d 340, 346–47 (5th Cir. 1999) (citing Burchett, 48 F.3d at 176).
LAW AND ANALYSIS
Removing Defendants contend that Plaintiff is not a Jones Act seaman and therefore cannot
assert a Jones Act claim against St. James. Plaintiff insists he is a Jones Act seaman. Consequently,
Plaintiff argues the instant matter must be remanded to State court. For the following reasons, the
Court agrees with Removing Defendants. Since Plaintiff's Jones Act claim was fraudulently pleaded,
removal was proper.
I.
Whether Plaintiff is a Jones Act Seaman
The Jones Act provides that "[a] seaman injured in the course of employment . . . may elect
to bring a civil action at law . . . against the employer." 46 U.S.C. § 30104. Congress did not define
the term "seaman." Thus, federal courts have undertaken the difficult task of defining the special
class of maritime workers entitled to the protections of the Jones Act. Cain v. Transocean Offshore
USA, Inc., 518 F.3d 295, 298 (5th Cir. 2008). To help navigate these murky waters, the Supreme
Court has developed a two‐prong test. First, a plaintiff must show that his duties "contribut[e] to
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the function of the vessel or to the accomplishment of its mission." Chandris, Inc. v. Latsis, 515 U.S.
347, 368 (1995) (alterations in original) (internal quotations and citations omitted). Second, a
plaintiff must "demonstrate a connection to a vessel in navigation (or to an identifiable group of
such vessels) that is substantial in terms of both its duration and its nature." Id. "The seaman
inquiry is a mixed question of law and fact, and it often will be inappropriate to take the question
away from the jury." Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 554 (1997). Nonetheless,
"judgment as a matter of law is mandated where the facts and the law will reasonably support only
one conclusion." Becker v. Tidewater, Inc., 335 F.3d 376, 386 (5th Cir. 2003).
A. Whether Plaintiff Satisfies the First Prong of Chandris
"The Supreme Court in Chandris admitted that satisfying the first prong of the test is
relatively easy: the claimant need only show that he 'do[es] the ship's work.'" Id. at 387–88
(alterations in original) (quoting Chandris, 515 U.S. at 368). Indeed, "this threshold requirement
is very broad" and encompasses "[a]ll who work at sea in the service of a ship." Chandris, 515 U.S.
at 368 (internal quotations and citations omitted). Removing Defendants do not dispute that
Plaintiff satisfies this requirement.
B. Whether Plaintiff Satisfies the Second Prong of Chandris
The purpose of this prong is to "separate the sea‐based maritime employees who are
entitled to Jones Act protection from those . . . whose employment does not regularly expose them
to the perils of the sea." Id. (citations omitted). The Court explained in Papai that "[f]or the
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substantial connection requirement to serve its purpose, the inquiry into the nature of the
employee's connection to the vessel must concentrate on whether the employee's duties take him
to sea." 520 U.S. at 555. The Fifth Circuit has held that the Papai Court did not intend to imply that
an employee's duties must literally take him to sea. In re Endeavor Marine, 234 F.3d 287, 291 (5th
Cir. 2000) (per curiam). Rather, the "going to sea" passage is merely "a shorthand way of saying
that the employee's connection to the vessel [must] regularly expose[] him to the perils of the sea."
Id. (internal quotations and citations omitted).
The Chandris Court emphasized that "this second prong constitutes a 'status based'
standard—i.e., 'it is not the employee's particular job that is determinative [of seaman status], but
the employee's connection to a vessel.'" Becker, 335 F.3d at 388 (alterations in original) (quoting
Chandris, 515 U.S. at 388). Thus, seaman status cannot be resolved simply by examining the situs
of an injury or the particular work the injured employee was performing at the time he was injured.
Saienni v. Capital Marine Supply, Inc., No. Civ.A. 03–2509, 2005 WL 940558, at *6 (E.D. La. Apr. 18,
2005) (citations omitted). Rather, "the total circumstances of an individual's employment must be
weighed to determine whether he had a sufficient relation to the navigation of vessels and the
perils attendant thereon." Chandris, 515 U.S. at 370 (internal quotations and citations omitted).
The second prong of the seaman test is conjuctive: an injured worker's connection to a
vessel or identifiable group of vessels must be substantial in both duration and nature. Roberts v.
Cardinal Servs. Inc., 266 F.3d 368, 374 (5th Cir. 2001) (citing Chandris, 515 U.S. at 371). The Court
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examines each requirement separately.
i. Whether Plaintiff's Connection with the Armant Fleet Was Substantial in Duration
The Chandris Court adopted the Fifth Circuit's rule of thumb that "[a] worker who spends
less than about 30 percent of his time in the service of a vessel in navigation should not qualify as
a seaman under the Jones Act." 515 U.S. at 371. The Fifth Circuit has held that this "30 percent
floor does not change when an 'identifiable group' of vessels in navigation is at issue, rather than
just one vessel." Roberts, 266 F.3d at 375. For purposes of determining seaman status, an
"identifiable group of vessels" is one that is subject to common ownership or control. Papai, 520
U.S. at 557.
Removing Defendants contend that Plaintiff cannot satisfy this durational component,
because the floating dock—comprised of vessels permanently moored to the riverbank with no
means of propulsion—is not a "vessel" under the relevant jurisprudence. See generally Stewart
v. Dutra Constr. Co., 543 U.S. 481 (2005); Lozman v. City of Riviera Beach, Florida, 133 S. Ct. 735
(2013). Additionally, they argue that Plaintiff spent less than five percent of his time riding aboard
the Fleet Boats.
The Court need not address these arguments, because Plaintiff satisfies the durational
component with respect to the ACL barges. The threshold issue is whether such barges are "in
navigation." The Chandris Court held that vessels temporarily moored and undergoing repairs are
"still considered to be 'in navigation' whereas ships being transformed through 'major' overhauls
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or renovations are not." Chandris, 515 U.S. at 374 (citations omitted). Since the record is devoid
of evidence that the ACL barges which Plaintiff serviced were undergoing major overhauls and that
Plaintiff spent less than thirty percent of his working hours servicing those barges, the durational
component is met.
ii. Whether Plaintiff's Relationship with the Armant Fleet Was Substantial in Nature
That Plaintiff spent more than thirty percent of his time in service of vessels is navigation
does not by itself raise a triable factual issue regarding seaman status. As is often the case, the
dispositive issue here is whether Plaintiff's connection to the Armant Fleet is substantial in nature.
As discussed supra, this inquiry turns on whether Plaintiff was regularly exposed to the perils of the
sea. For the following reasons, the Court answers this inquiry in the negative. Consequently,
Plaintiff is not a Jones Act seaman.
Plaintiff argues that he was subjected daily to the perils of the sea. In support of this
argument, Plaintiff notes that he was required to wear a life preserver at all times and contends
that he faced hazard such as: (1) the dangers associated with the movement of vessels in water due
to wind gusts and river turbulence; (2) trip‐and fall hazards caused by the icing of barge surfaces
in the winter; (3) inclement weather; and (4) the dangers of "long step[ping]" from barge to barge
within the Armant Fleet. (R. Doc. 20.) At least two courts, one of which sits in this District, have
held that such hazards are more typical of those faced by longshoremen and therefore do not
constitute the kind of special hazards and disadvantages commonly faced by seamen. See Leblanc
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v. AEP Elmwood, LLC, No. 2:11–cv–01668, 2012 WL 669416, at *5 (E.D. La. Feb. 29, 2012); Denson
v. Ingram Barge Co., No: 5:07–cv–00084–R, 2009 WL 1033817, at *3 (W.D. Ky. Apr. 16, 2009). Such
special hazards and disadvantages include the need to need to fight fires without outside
assistance, the need to abandon ship, the need to survive exposure to inclement weather until help
arrives, potential delay or inconvenience in being transported offsite to receive medical attention,
and being stuck on a vessel under the control of its Master and operator for extended periods of
time until the next port call. Lara v. Arctic King Ltd., 178 F. Supp. 2d 1178, 1182 (W.D. Wash. 2001);
Denson, 2009 WL 1033817 at *3; accord Leblanc, 2012 WL 669416 at *5. Based on the record
before it, the Court concludes that a reasonable jury could not find that Plaintiff was exposed to
the perils of the sea on a regular basis.
Neither of the cases cited by Plaintiff compels a different conclusion. The totality of the
circumstances surrounding Plaintiff's employment in this case are distinguishable from those in In
re Endeavor Marine. In this per curiam decision, the Fifth Circuit held that a crane operator was
a Jones Act seaman even though he did not literally go to sea in the course of his employment.
In re Endeavor Marine, 234 F.3d at 292. In reaching this decision, the Court emphasized that the
plaintiff was permanently assigned to the vessel in question, spent approximately eighteen months
onboard the vessel, and was primarily responsible for operating cranes on board a vessel whose
sole purpose was to load and unload cargo vessels. Id. In the case sub judice, Plaintiff never
operated a crane, was not permanently assigned to any vessel in the Armant Fleet, and went home
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every night after work.
At oral argument, Plaintiff cited Naquin v. Elevating Boats, LLC in support of his position,
despite failing to discuss that case in his written memoranda. 842 F. Supp. 2d 1008 (E.D. La. 2008).
The plaintiff in Naquin was employed as a "repair supervisor" and oversaw the repair of lift boats
and cranes. Id. at 1011. In this capacity, the plaintiff often worked aboard vessels, which were
usually jacked up or moored to a dock. Id. Vessels occasionally needed to be repositioned at the
dock in order to facilitate a repair. Id. The plaintiff was onboard these vessels as they were moved
approximately two to three times per week. Id. During these repositionings, the plaintiff typically
handled the ship's lines and tied the vessel off to secure it. Id. In addition to working as a repair
supervisor, the plaintiff assisted the vessels' deckhands while the vessels were offshore and was
responsible for handling Coast Guard vessel inspections. Id. The plaintiff also operated a crane
aboard a vessel in navigation for a three‐year period. Id. Each hitch lasted three to seven days and
required the plaintiff to sleep onboard the ship. Finally, the plaintiff testified that he went to sea
several times, with each trip lasting no more than five total days at sea. Id. at 1011–12.
Naquin is readily distinguishable from the instant matter. The plaintiff in Naquin routinely
assisted in moving ships and mooring barges, had a wider range of job responsibilities than Plaintiff,
and spent more time at sea.
In sum, after reviewing the record in a light most favorable to Plaintiff, the Court finds
Plaintiff cannot establish seaman status as a matter of law. Given the foregoing, a reasonable jury
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could not conclude that Plaintiff is a"sea‐based maritime employee[] whose work regularly exposes
[him] to 'the special hazards and disadvantages to which they who go down to sea in ships are
subjected.'" Chandris, 515 U.S. at 370 (quoting Seas Shipping Co. v. Sieracki, 328 U.S. 85, (1946)
(Stone, C.J., dissenting)).
II.
Whether Removal Was Proper
Having concluded that Plaintiff is not a Jones Act seaman, the Jones Act does not bar
removal. Moreover, although general maritime claims under 28 U.S.C. § 1333 do not constitute
federal questions for purposes of removal jurisdiction, such claims may be removed on the basis
of diversity of citizenship. See In re Eckstein Marine Service, L.L.C., 672 F.3d 310, 315 (5th Cir.
2012). Accordingly, removal was proper.
CONCLUSION
For the reasons previously stated, the Motion to Remand is DENIED.
New Orleans, Louisiana, this 16th day of April, 2013.
______________________________
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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