Felder v. Nabors Offshore Corporation
Filing
64
ORDER & REASONS granting 49 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 3/24/2016. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RAYMOND L. FELDER
CIVIL ACTION
v.
NO. 14-2666
NABORS OFFSHORE CORPORATION
SECTION "F"
ORDER AND REASONS
Before the Court is Nabors Offshore Corporation’s motion for
summary judgment that the plaintiff was not a seaman under the
Jones Act or general maritime law. For the reasons that follow,
the motion is GRANTED.
Background
This case arises out of an on-the-job personal injury. Seaman
status is disputed.
Raymond Felder was employed by Nabors Offshore Corporation as
an assistant driller to the Nabors M400, a platform rig that was
stacked and located at Kiewit Offshore Services yard in Ingleside,
Texas at the time of the incident. Felder was assigned to this
position October 31, 2013; however, he claims that his employment
with Nabors has spanned 12 years during which time he has been
transferred approximately 25 times to various rig jobs. Felder
contends that he qualifies as a seaman under the Jones Act because
the majority of his assignments over his employment history have
1
been
aboard
jack-up
rigs
and
barge
rigs,
and
he
has
spent
considerably more than 30% percent of his time aboard a fleet of
vessels owned and operated by Nabors.
Nabors does not dispute the plaintiff’s claims about his
work history but notes that the plaintiff worked exclusively on
land-based platform rigs after his reassignment on November 18,
2012, approximately a year and a half before the incident. As
evidence, Nabors points to change of employment status forms,
showing that Felder was transferred to the Nabors M201, a drilling
workover rig, on November 18, 2012 and then to the N88, also a
drilling/workover rig, on July 12, 2013 before his transfer to
the Nabors M400 on October 31, 2013.
On April 22, 2014, Felder experienced a brain aneurism while
sitting on a bench in the smoking area at the turnstile of the
Kiewit yard. That same day, Felder alleges he was placed on leave
pursuant to the Family and Medical Leave Act, and three months
later,
Nabors
terminated
him
because
he
had exhausted his
leave of absence benefits.
On November 21, 2014, Felder sued Nabors alleging claims
pursuant to the Jones Act and general maritime law. Felder alleges
that he suffered a permanent, disabling brain injury which could
have
been
avoided
responsibility
to
or
lessened
provide
the
had
Nabors
plaintiff
not
with
ignored
proper
its
medical
treatment. On March 16, 2015, this Court denied without prejudice
Nabors’ motion to dismiss pursuant to Federal Rules of Civil
2
Procedure 12(b)(1) and 12(b)(6). The Court held that the record
at the time was incomplete, undermining the Court’s ability to
resolve on the merits the disputed facts of Felder’s seaman
status.
Nabors moves for summary judgment that the plaintiff was not
a seaman under the Jones Act or general maritime law.
I.
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine dispute as
to any material fact such that the moving party is entitled to
judgment as a matter of law. No genuine dispute of fact exists if
the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio., 475 U.S. 574, 586 (1986). A genuine dispute
of fact exists only "if the evidence is such that a reasonable
jury could return a verdict for the non-moving party." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
motion. See id. Therefore, "[i]f the evidence is merely colorable,
or
is
not
significantly
probative,"
summary
judgment
is
appropriate. Id. at 249-50 (citations omitted). Summary judgment
is also proper if the party opposing the motion fails to establish
an essential element of his case. See Celotex Corp. v. Catrett,
3
477 U.S. 317, 322-23 (1986). In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
party. See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992). Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
his claim. Id. Hearsay evidence and unsworn documents that cannot
be presented in a form that would be admissible at trial do not
qualify as competent opposing evidence.
Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R.
Civ. P. 56(c)(2).
Finally, in evaluating the summary judgment
motion, the Court must read the facts in the light most favorable
to the non-moving party. Anderson, 477 U.S. at 255.
II.
The Jones Act provides a negligence-based remedy for a seaman
against his employer. See 46 U.S.C. § 30104, et seq. Nabors
disputes that the plaintiff was a Jones Act seaman and
contends
that his Jones Act and maintenance and cure claim should be
summarily
dismissed.
While
"[s]eaman
status
is
ordinarily
a
question of fact for the jury," Tullos v. Resource Drilling, Inc.,
750 F.2d 380, 385 (5th Cir. 1985), this Court may grant summary
judgment where no facts are in dispute with respect to seaman
status. Barrett v. Chevron, 781 F.2d 1067, 1074 (5th Cir. 1986),
citing Guidry v. Continental Oil Co., 640 F.2d 523, 529 (5th Cir.
1981). “To survive a motion for summary judgment, the plaintiff
4
must demonstrate a factual dispute regarding the permanency or the
substantiality of his employment relationship with a vessel or
group of vessels, and that his work contributed to the operation
or function of the vessel or the accomplishment of its mission.”
Buras v. Commercial Testing & Eng'g Co., 736 F.2d 307 (5th Cir.
1984) (citing Betrand v. Int’l Mooring & marine, Inc., 700 F.2d
240, 244 (5th Cir. 1983)).
To qualify as a Jones Act seaman, one must show that (1) his
duties
contributed
to
the
function
of
the
vessel
or
to
the
accomplishment of its mission and (2) his connection with the
vessel in navigation (or an identifiable group of vessels) was
substantial in both its duration and nature. Chandris, Inc. v.
Latsis, 515 U.S. 347, 368-69 (1995). The purpose of the test in
Chandris is to distinguish vessel-based workers from land-based
workers who do not qualify as “seamen” under the Jones Act. Id. at
348. Seaman status turns on “the nature of the seaman's service,
his status as a member of the vessel, and his relationship as such
to the vessel and its operation in navigable waters.” Id. at 35960 (citing Swanson v. Marra Brothers, Inc., 328 U.S. 1, 7 (1946)).
“To satisfy the first prong of the Chandris test, the claimant
need only show that he ‘do[es] the ship's work.’” In re Endeavor
Marine, Inc., 234 F.3d 287, 290 (5th Cir. 2000).
This requirement
is very broad. Id. To determine whether a worker’s connection with
5
the vessel was substantial in nature and duration under the second
prong,
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. The duration of a worker's connection
to a vessel and the nature of the worker's activities,
taken together, determine whether a maritime employee is
a seaman because the ultimate inquiry is whether the
worker in question is a member of the vessel's crew or
simply a land-based employee who happens to be working
on the vessel at a given time.
Chandris, 515 U.S. at 370 (internal quotations and citations
omitted).
Notably,
the
Fifth
Circuit
has
held
that
“[f]ixed
platforms are not vessels, and workers injured on them are covered
under the LHWCA, not the Jones Act.” Becker v. Tidewater, Inc.,
335 F.3d 376, 391 (5th Cir. 2003).
Although the seaman inquiry is a mixed question of fact and
law, “summary judgment or a directed verdict is mandated where the
facts and law will reasonably support only one conclusion.” Harbor
Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997) (quoting
McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 356 (1991)). In
other words, “where undisputed facts reveal that a maritime worker
has
a
clearly
inadequate
temporal
connection
to
vessels
in
navigation, the court may take the question from the jury by
granting summary judgment or a directed verdict.” Chandris, 515
U.S.
at
371.
Here,
Nabors
argues
that
summary
judgment
is
appropriate because there is no genuine issue of material fact
6
that the plaintiff performed only land-based work on platform rigs
subsequent to his assignment to the Nabors M201 on November 18,
2012.
The
plaintiff
counters
that
summary
judgment
is
inappropriate because the majority of his work assignments with
Nabors prior to 2012 were vessel-based assignments. Specifically,
the plaintiff submits that he qualifies as a seaman under Chandris
because (1) he did ship’s work in his past assignments, and (2) he
had a substantial connection to the Nabors vessels because he spent
over 30% of his work time, dating back to February 22, aboard the
Nabors vessels.
The plaintiff insists that the Court must examine a maritime
worker’s
entire
work
history
with
a
particular
employer
in
assessing whether the employee qualifies as a seaman. The Supreme
Court, however, rejected this very argument in Chandris. In its
discussion of the 30% “rule of thumb” in Chandris, the Supreme
Court noted:
[W]e see no reason to limit the seaman status inquiry,
as petitioners contend, exclusively to an examination of
the overall course of a worker's service with a
particular employer. When a maritime worker's basic
assignment changes, his seaman status may change as
well. For example, we can imagine situations in which
someone who had worked for years in an employer's
shoreside headquarters is then reassigned to a ship in
a classic seaman's job that involves a regular and
continuous, rather than intermittent, commitment of the
worker's labor to the function of a vessel. Such a person
should not be denied seaman status if injured shortly
after the reassignment, just as someone actually
transferred to a desk job in the company's office and
7
injured in the hallway should not be entitled to claim
seaman status on the basis of prior service at sea.
Chandris, 515 U.S. at 371-72 (emphasis added). That is, when a
“maritime worker’s essential duties are changed,” courts should
assess “the substantiality of his vessel-related work made on the
basis of his activities in his new position.” Id. at 372.
The Fifth Circuit has elaborated on the Supreme Court holding
in Chandris, explaining that for a maritime worker’s seaman status
to change a “substantial change in status must occur,” as opposed
to a sporadic or temporary deviation from the worker’s past duties.
Becker v. Tidewater, Inc., 335 F.3d 376, 390 (5th Cir.2003). The
reason for this requirement is to prevent a land-based maritime
worker
claiming
“seaman”
status
after
“merely
serving
an
assignment on a vessel in navigation” and similarly to prevent
vessel-based maritime workers from losing seaman status due to
sporadic land-based assignments. See id. at 390.
case
to
the
one
here,
this
Court
granted
In a similar
summary
judgment
dismissing a Jones Act claim, finding that a maritime worker’s
seaman status changed when he was reassigned from jack-up rig work
to platform rig work eleven months before an accident. Walker v.
Nabors Offshore Drilling, Inc., 91 F. Supp. 2d 907, 909 (E.D. La.
2000)
(“Murphy
has
submitted
sworn
statements
made
by
the
toolpusher for whom the plaintiff worked and Nabors' personnel
manager that eleven months prior to Walker's accident, Walker was
8
permanently assigned as a driller on Walker's fixed platform
drilling rig . . . Walker cannot support a claim of seaman
status.”).
In addition to the plaintiff’s argument that the majority of
his work was vessel-based through the course of his employment, he
also contends that his one and a half year platform rig assignment
was only temporary and thus that he remained a Jones Act seaman.
What is lacking from the summary judgment record, however, is any
evidence supporting the transitory nature of this assignment.
Felder simply speculates that he might have been reassigned to
vessel-based work on jack-up rigs at some point in the future. 1
Speculation will not suffice to raise a genuine issue of material
fact about whether Felder was a seaman.
The undisputed material facts here are that the plaintiff
primarily performed vessel-based work on jack-up rigs before his
reassignment
to
the
Nabors
M201
in
November
2012,
and
he
exclusively performed land-based work on platform rigs following
his reassignment. This is not like Becker where the maritime worker
1
This speculation is belied by the record. First, the testimony
of multiple Nabors representatives establishes that no jack-up
rigs were operational at the time of the plaintiff’s aneurism, and
moreover all of Nabors’ jack-up rigs have since been sold. Second,
the rig superintendent testified that he intended to keep the
plaintiff on the M400 through the course of the three (3) to five
(5) year contract with Chevron. The plaintiff does not dispute
this but simply points to the superintendent’s testimony that he
was not sure where the plaintiff would be assigned after the
Chevron contract ended.
9
was to participate in one voyage before immediately returning to
land-based duties. Rather, the facts of record show that Felder’s
reassignment constituted a substantial change in status under
Chandris because the plaintiff was reassigned to do land-based
work in November 2012 and continued to perform only land-based
work through April 22, 2014. The record supports a finding that
this reassignment was permanent and the plaintiff “should not be
entitled to claim seaman status on the basis of prior service at
sea.” Chandris, 515 U.S. at 372. The plaintiff is not a seaman. 2
Accordingly, IT IS ORDERED that Nabors’ motion for summary
judgment is GRANTED. The plaintiff’s claims are hereby dismissed.
New Orleans, Louisiana, March 24, 2016
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
2
The standard for determining seaman status for the purpose of
recovering maintenance and cure under general maritime law is the
same as that for determining status under the Jones Act. Hall v.
Diamond M Co., 732 F.2d 1246, 1248 (5th Cir. 1984). Only seamen
are entitled to maintenance and cure and punitive damages under
the general maritime law. Id. Thus, for the same reasons the
plaintiff has not established seaman status under the Jones Act,
he cannot establish such status under the general maritime law.
10
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