Rawls et al v. Phillips 66 Company et al

Filing 27

ORDER granting 16 Motion to Remand; plaintiff's claims are REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Lance M Africk on 5/15/2014. (Attachments: # 1 Remand Letter) (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM RAWLS ET AL.

CIVIL ACTION

VERSUS

No. 14-602

PHILLIPS 66 COMPANY ET AL.

SECTION I
ORDER

Before the Court is a motion1 by plaintiff,2 William Rawls, to remand the above-captioned
matter, to which defendants, The North River Insurance Company (“North River”) and Coastal of
Abbeville, L.L.C. (“Coastal”), have filed an opposition.3 Plaintiff has filed a reply.4
Plaintiff filed a petition for damages in Civil District Court for the Parish of Orleans on
February 2, 2012,5 asserting claims against numerous defendants under the general maritime law and
the Jones Act.6 Plaintiff filed a first supplemental and amending petition on December 13, 2013,
adding claims for punitive damages.7 On January 31, 2014, plaintiff filed a second supplemental and
amending petition, adding nine new defendants, including North River and Coastal.8 North River
and Coastal filed a timely notice of removal pursuant to 28 U.S.C. § 1441(c).9

1

R. Doc. No. 16.
Two other plaintiffs were originally parties in the state court action, but these plaintiffs were
essentially severed by the state court’s consent judgment relative to improper cumulation. See R.
Doc. No. 20, at 3; R. Doc. No. 1-4, at 13.
3
R. Doc. No. 20.
4
R. Doc. No. 24.
5
R. Doc. No. 1-2, at 1.
6
R. Doc. No. 1-2, at 6-9.
7
R. Doc. No. 1-4, at 21.
8
R. Doc. No. 1-6, at 3-4.
9
R. Doc. No. 1, at 3. The Court rejects plaintiff’s passing comment that, although “the last served
defendant rule has been legislatively adopted, Plaintiff suggests that considerations of equity and
efficiency deserve consideration” such that the Court should find the removal untimely. Plaintiff
cites no authority for this proposition, other than Brown v. Demco, Inc., 792 F.2d 478 (5th Cir.
1986), which was superseded by statute as noted in Felder v. Countrywide Home Loans, No.
2

The general rule is that “[a] defendant who desires to remove a maritime action from state
court to federal court must establish” a basis for jurisdiction other than admiralty jurisdiction. In re
Dutile, 935 F.2d 61, 63 (5th Cir. 1991). Plaintiff argues that the-above captioned matter must be
remanded because there is no independent basis for jurisdiction. Defendants respond that the Federal
Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758, changed
the general rule set forth above.10 The Court need not decide the issue because the Court finds that
the presence of a Jones Act claim in this case precludes removal pursuant to § 1441(c). See Freeman
v. Phillips 66 Co., No. 14-311, 2014 WL 1379786, at *3-4 (E.D. La. Apr. 8, 2014) (Engelhardt, J.).11
Jones Act claims have been made non-removable by statute. 28 U.S.C. § 1445(a). However,
§ 1441(c) provides for a procedure by which actions including both a Jones Act claim and a federal
question claim may be removed, subject to severance and remand of the Jones Act claim:
(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

13-0282, 2013 WL 6805843, at *2 (S.D. Tex. Dec. 20, 2013) (Lake, J.).
10
District courts are divided as to whether the amendments to § 1441 permit defendants to remove
general maritime claims on the basis of admiralty jurisdiction. See Landerman v. Tarpon Operating
& Dev., L.L.C., No. 14-381, 2014 WL 1763208, at *3 n.22 (E.D. La. May 1, 2014) (Vance, C.J.)
(listing cases); see also see also Barker v. Hercules Offshore, Inc., 713 F.3d 208, 220-23 (5th Cir.
2013) (noting that “removal of maritime cases is permissible as long as there is an independent basis
for federal jurisdiction” other than admiralty); id. at 229 (Higginbotham, J., dissenting) (“[F]ederal
courts do not have removal jurisdiction over maritime cases which are brought in state court.”); 1
The Law of Seamen § 1:11 (5th ed. 2013) (concluding that the amendments did not lift the
preexisting bar to removing admiralty cases).
11
Similarly, the Court need not address whether plaintiff’s jury demand precludes removal. See R.
Doc. No. 16-1, at 5 (citing Barry v. Shell Oil Co., No. 13-6133, 2014 WL 775662 (E.D. La. Feb. 25,
2014)); R. Doc. No. 20, at 17-18 (citing Luera v. M/V Alberta, 635 F.3d 181, 192 (5th Cir. 2011)).
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(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).

As Judge Engelhardt recognized in Freeman, both the past and present versions of section
1441(c)(1)(A) “apply only where the otherwise removable claim is one that falls within the federal
question jurisdiction conferred by 28 U.S.C. § 1331.” 2014 WL 1379786, at *5.12
As in Freeman, plaintiff has alleged a Jones Act claim consistent with § 1441(c)(1)(B), but
plaintiff has not alleged a claim that would give rise to federal question jurisdiction consistent with
§ 1441(c)(1)(A). Accordingly, even if plaintiff’s maritime claims “are otherwise removable on the
basis of admiralty jurisdiction, which the Court does not decide . . . , the defendants cannot
overcome the statutory bar to removal” relative to plaintiff’s Jones Act claim. Id.
The Court turns to defendants’ argument that plaintiff’s Jones Act claim is fraudulently
pleaded.13 The Court may only deny a motion to remand on the basis that a Jones Act claim is
fraudulently pleaded where the Court “determines, after resolving all disputed questions of fact and
any ambiguities in the current controlling substantive law in plaintiff’s favor, that there is no
reasonable basis for predicting that the plaintiff might establish liability under the Jones Act.” Fields
v. Pool Offshore, Inc., 182 F.3d 353, 356-57 (5th Cir. 1999) (quotation omitted). Defendants bear

12

“‘Emphatically, claims in admiralty, whether designated in rem or in personam, do not fall within
this category.’” Freeman, 2014 WL 1379786, at *5 (quoting Dutile, 935 F.2d at 63).
13
See R. Doc. No. 20, at 12.
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the “heavy burden” of showing a Jones Act claim is fraudulently pleaded. Zertuche v. Great Lakes
Dredge & Dock Co., LLC, 306 F. App’x 93, 97 (5th Cir. 2009).
Defendants essentially argue that plaintiff’s Jones Act claim is fraudulently pleaded because
plaintiff does not allege that the oil rigs on which he worked were vessels.14 This argument, which
is not accompanied by citation to supporting evidence or authority, is an unpersuasive attempt to
shift the burden in this “summary judgment-like” procedure to plaintiff. See Fields, 182 F.3d at 356.
In any event, the Court notes that plaintiff’s unrebutted deposition testimony indicates that he
worked on a jack-up drilling rig, and there is a reasonable basis for predicting that such a rig is a
vessel.15 See Johnson v. PPI Tech. Servs., L.P., No. 11-2773, 2014 WL 949111, at *4 (E.D. La. Mar.
11, 2014) (Barbier, J.) (citing Gilbert v. Offshore Prod. & Salvage, Inc., No. 95-122, 1997 WL
149959 (E.D. La. Mar. 21, 1997) aff’d, 134 F.3d 368 (5th Cir. 1997)).
For the foregoing reasons,
IT IS ORDERED that plaintiff’s motion is GRANTED and that plaintiff’s claims are
REMANDED to Civil District Court for the Parish of Orleans, State of Louisiana.

New Orleans, Louisiana, May 15, 2014.

__________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

14
15

R. Doc. No. 20, at 16.
R. Doc. No. 24-3, at 7-8.
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