Borne et al v. Chevron U.S.A. Holdings, Inc. et al

Filing 48

ORDER & REASONS: granting 22 Motion to Remand to State Court. Signed by Judge Carl Barbier on 5/26/15. (sek)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

SANDRA COUVILLON BORNE

CIVIL ACTION

VERSUS

NO: 15-631

CHEVRON U.S.A. HOLDINGS, INC.,

SECTION: J(3)

ET AL
ORDER AND REASONS
Before the Court is a Motion to Remand (Rec. Doc. 22) filed
by Plaintiffs, Sandra Couvillon Borne, et al (“Plaintiffs”), an
Opposition thereto (Rec. Doc. 36) by Defendants, Chevron U.S.A.
Holdings,
(Rec.

Inc.,

Doc.

submissions,

et

41).

al

(“Defendants”),

the

Having

considered

record,

and

the

the

and

Plaintiffs’

motion,

applicable

the

law,

Reply

parties’
the

Court

finds, for the reasons expressed below, that the motion should
be GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
This matter is one of a number of lawsuits removed to this
Court,

commonly

known

as

the

“Oil

Patch

Cases.”

In

2013,

Jefferson and Plaquemines Parishes filed a total of twenty-eight
(28)

lawsuits

in

state

court

against

various

oil

and

gas

exploration and production companies, on behalf of themselves
1

and

the

State

of

Louisiana.

The

parishes

claimed

that

the

defendant companies violated state law and caused severe damage
to Coastal Zones located throughout Jefferson and Plaquemines
Parishes. The defendant companies subsequently removed all of
these lawsuits to this Court.
On December 1, 2014, Judge Zainey issued an Order remanding
the first Oil Patch Case, finding that the Court lacked federal
jurisdiction to hear the matter. Parish of Plaquemines v. Total
Petrochemical & Refining USA, Inc., No. 13-6693, 2014 WL 6750649
(E.D. La. Dec. 1, 2014) (Zainey, J.). In his order, Judge Zainey
determined that OCSLA jurisdiction did not provide a basis for
federal jurisdiction, as defendants had not conducted any of
their

alleged

Shelf

(“OCS”).

concluded

injurious

that

Id.
in

at

activities
*15.

“saving

to

Judge

on

the

Zainey

suitors”

Outer
also

cases

Continental
specifically

filed

in

state

court, a basis for federal jurisdiction independent of general
maritime

law

is

required

for

removal.

Id.

at

*20.

Because

Defendants failed to prove any other basis for jurisdiction,
general

maritime

law

did

not

allow

removal.

Following

Judge

Zainey’s rulings, a number of judges within the Eastern District

2

followed suit, remanding the Oil Patch Cases before them for
essentially the same reasons. 1
The

matter

at

hand

differs

from

the

previous

Oil

Patch

Cases remanded by this Court in that it is brought by individual
land owners. Here, Plaintiffs are individuals who possess joint
ownership interests in three tracts of land located in Jefferson
and Plaquemines Parishes. 2 In November 2014, Plaintiffs filed the
present

lawsuit

in

the

24th

Judicial

District

Court

for

the

Parish of Jefferson against eleven (11) separate defendants, all
of whom are oil and gas exploration and production companies
that

operate

wells

and

facilities

in

and

around

Plaintiffs’

property. In their petition for damages, Plaintiffs first allege
that

Defendants’

facilities

were

in

operations
violation

of
of

these
the

various

State

and

wells

Local

and

Coastal

Resources Management Act of 1978, La. R.S. § 49:214.21, et seq,
(“SLCRMA”),

which

regulates

the

use

of

the

Coastal

Zone

of

1

Judge Africk remanded the case before him. See Plaquemines Parish v. Rozel
Operating Co., et al, No. 13-6722 (E.D. La. Jan. 29, 2015). Judge Lemelle
remanded the four cases before him. See Jefferson Parish v. Anadarko E&P
Onshore LLC, et al, No. 13-6701 (E.D. La. Mar. 9, 2015). Judge Feldman
remanded the five cases before him. See Plaquemines Parish v. HilCorp Energy
Co., et al, No. 13-6727 2015 WL 1954640 (E.D. La. Apr. 29, 2015). Judge
Barbier remanded the two cases before him. See Jefferson Parish v. Chevron
U.S.A. Holdings, Inc., et al, No. 13-6738 (E.D. La. May 12, 2015). Judge
Morgan also remanded the case before her. See Plaquemines Parish v. Linder
Oil Company, et al, No. 13-6706 (E.D. La. May 15, 2015).

2

The land at issue in the instant matter is within and adjacent to the land
that forms the subject of Jefferson Parish v. Chevron U.S.A. Holdings, Inc,
et al, No. 13-6738 (E.D. La. May 12, 2015) (Barbier, J.).
3

Louisiana through a permitting system. Plaintiffs further allege
that Defendants’ violation of SLCRMA caused substantial damage
to their land as well as waterbodies located in the “Coastal
Zone” in Jefferson Parish. Plaintiffs also set forth several
additional

causes

including:

(1)

of

action

negligence;

pursuant
(2)

to

strict

Louisiana

liability;

state
(3)

law

public

nuisance; (4) private nuisance; and (5) third party beneficiary
breach of contract. Plaintiffs first seek injunctive relief in
the form of abatement and restoration of the coastal land that
they

allege

has

been

damaged

by

Defendants.

Plaintiffs

also

request monetary damages for the amount of land which they have
allegedly lost as a result of Defendants’ operations, as well as
the cost of all future activities dependent on this lost land.
Defendants removed the present matter before this Court on
February

27,

2015,

alleging

three

bases

for

federal

jurisdiction: (1) federal question jurisdiction; (2) the Outer
Continental Shelf Lands Act (OCSLA); and (3) general maritime
jurisdiction. Plaintiffs subsequently filed the instant motion
seeking remand of this matter to state court, arguing that none
of these three sources of law serve as a valid basis for federal
jurisdiction.
LEGAL STANDARD

4

A defendant may remove a civil action filed in state court
if a federal court would have had original jurisdiction over the
action. See 28 U.S.C. § 1441(a). The removing party bears the
burden

of

proving

by

a

preponderance

of

the

evidence

that

federal jurisdiction exists at the time of removal. DeAguilar v.
Boeing

Co.,

47

F.3d

1404,

1408

(5th

Cir.

1995).

The

jurisdictional facts supporting removal are examined as of the
time of removal. Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880,
883 (5th Cir. 2000). Ambiguities are construed against removal
and

in

favor

of

remand,

because

removal

statutes

are

to

be

strictly construed. Manguno v. Prudential Prop. & Cas. Ins., 276
F.3d 720, 723 (5th Cir. 2002).
DISCUSSION
Defendants assert that removal is proper pursuant to three
sources of law: (1) federal question jurisdiction; (2) OCSLA;
and (3) general maritime law. The Court will consider each of
these grounds for jurisdiction in turn.
A. Federal Question Jurisdiction
As

grounds

for

removal,

Defendants

first

contend

that

Plaintiffs’ petition for damages raises a federal question. A
civil action originally filed in state court may be removed to
federal court on the basis of federal question jurisdiction if
that matter is “founded on a claim or right arising under the
5

Constitution, treaties or laws of the United States.” 28 U.S.C.
§ 1441(b); see also 28 U.S.C. § 1331. In determining whether a
matter has federal question jurisdiction, courts are to apply
the

“well-pleaded

federal

question

complaint
is

rule,”

presented

on

which
the

considers

face

of

a

whether

a

plaintiff’s

“well-pleaded complaint.” Rivet v. Regions Bank of La., 522 U.S.
470,

475,

118

S.Ct.

921

(1998)

(citing

Caterpillar

Inc.

v.

Williams, 482 U.S. 386, 392, 107 S.Ct. 2425 (1987); Louisville &
N.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42 (1908)).
Because

the

well-pleaded

complaint

rule

focuses

solely

on

whether a plaintiff has “affirmatively alleged” a federal claim,
“potential defenses . . . do not provide a basis for federal
question

jurisdiction.”

New

Orleans

&

Gulf

Coast

Ry.

Co.

v.

Barrois, 533 F.3d 321, 328 (5th Cir. 2008) (citing PCI Transp.,
Inc. v. Fort Worth & Western R. Co., 418 F.3d 535, 543 (5th Cir.
2005)). In fact, removal is not warranted pursuant to federal
question jurisdiction “on the basis of a federal defense . . .
even if the defense is anticipated in the plaintiff’s complaint,
and even if both parties admit that the defense is the only
question truly at issue in the case.” Franchise Tax Bd. of Cal.
v. Constr. Laborers Vacation Trust for So. Cal., 463 U.S. 1, 13,
103 S.Ct. 2841 (1983).

6

Despite

the

applicability

of

the

well-pleaded

complaint

rule, a claim which has origins in state law may still be found
to arise under federal law if it falls within a “special and
small category” of cases. Gunn v. Minton, 133 S.Ct. 1059, 1064
(2013) (citing Empire Healthchoice Assurance, Inc. v. McVeigh,
547 U.S. 677, 699, 126 S.Ct. 2121 (2006)). In Grable & Sons
Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308,
125 S.Ct. 2363 (2005), the Supreme Court articulated the test
for

determining

whether

a

claim

falls

within

this

narrow

category, finding that federal question jurisdiction attaches to
state law claims where:
(1) resolving a federal issue is necessary to
resolution of the state-law claim; (2) the federal
issue is actually disputed; (3) the federal issue is
substantial; and (4) federal jurisdiction will not
disturb the balance of federal and state judicial
responsibilities.
Singh v. Duane Morris LLP, 538 F.3d 334 (5th Cir. 2008) (citing
Grable, 545 U.S. at 314, 125 S.Ct. 2363)). However, the category
of

cases

envisioned

in

Grable

is

a

“slim”

one.

Empire

Healthchoice Assurance, Inc., 547 U.S. at 701, 126 S.Ct. 2121.
Moreover,

the

“mere

presence”

of

a

federal

issue

or

the

necessity of interpreting federal law “does not automatically
confer federal-question jurisdiction.” St. Bernard Port, Harbor
& Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F. Supp. 2d
524, 536 (E.D. La. 2011) (Vance, J.) (citing Merrell Dow Pharm.
7

Inc. v. Thompson, 478 U.S. 804, 813, 106 S.Ct. 3229 (1986); Fla.
Marine Transporters, Inc. v. Trinity Marine Prods., Inc., No.
02-1902, 2002 WL 31246765, at *3 (E.D. La. Oct. 4, 2002)).
Here, Plaintiffs’ Amended Complaint sets forth only state
law causes of action and includes no reliance on federal law or
regulations. Despite the notable absence of federal claims from
the

face

of

Plaintiffs’

pleadings,

Defendants

assert

that

Plaintiffs’ claim for negligence “necessarily raise[s] questions
of federal law.” (Rec. Doc. 36, p. 6). Defendants note that in
order for Plaintiffs to prevail on their claim for negligence,
they must prove that Defendants owed Plaintiffs a duty of care,
which they breached. In order to establish said duty for claims
arising

after

1978,

Defendants

submit

that

Plaintiffs

will

likely rely on SLCRMA. However, prior to 1978, the year SLCRMA
was enacted, Defendants note that the only regulations governing
activities

affecting

Coastal

Zones

were

contained

in

an

exclusively federal regulatory scheme, consisting of the federal
Clean Water Act, the federal Rivers and Harbors Act, and the
federal

Coastal

Zone

Management

Act.

(Rec.

Doc.

36,

p.

7).

Because Plaintiffs will be forced to rely on these federal laws
in order to establish that Defendants breached a duty prior to
1978, Defendants assert that the Court will need to apply and
interpret

federal

law.

Defendants
8

further

maintain

that

the

federal

issue

implicated

by

Plaintiffs’

negligence

claim

for

damages sustained prior to 1978 is so pervasive and substantial
as

to

satisfy

the

four

Grable

factors

and

implicate

federal

question jurisdiction. The Court is not persuaded.
Nowhere in Plaintiffs’ petition for damages is it alleged
that

Defendants

breached

a

duty

imposed

by

a

purely

federal

regulatory scheme governing coastal activities prior to 1978.
Instead,

in

their

original

petition,

Plaintiffs

allege

that

Defendants violated “the standard of care as prescribed in the
regulatory framework outlined above.” (Rec. Doc. 1-3, p. 6).
However,

prior

to

this

allegation

in

the

petition,

the

only

mention of a regulatory framework governing coastal activities
in

the

petition

is

in

regard

to

SCLRMA.

Plaintiffs

make

no

mention of any federal law or regulation which Defendants may
have violated. Moreover, Plaintiffs clarify the exact regulatory
scheme to which they are alluding in their amended petition for
damages. In this amended petition, Plaintiffs specify that “the
complained-of operations and activities were prohibited prior to
1978 by various provisions of the Louisiana Statewide Orders 29,
29-A, and 29-B, various field wide orders, as well as various
orders of the Louisiana Stream Control Commission.” (Rec. Doc.
1-24,

p.

5).

It

is

apparent

that

these

are

all

state

regulations, which directly contradicts Defendants’ contention
9

that “no state statutory law provided a duty or standard of care
for Defendants’ pre-1978 activities.” (Rec. Doc. 36, p. 11).
Defendants

make

no

mention

of

this

portion

of

Plaintiffs’

amended petition in their Notice of Removal, and, instead, lead
the Court to believe that Plaintiffs are required to rely solely
on federal law in order to prove a breach of the duty of care.
Because

Defendants

base

their

entire

argument

for

the

existence of federal question jurisdiction on their contention
that Plaintiffs fail to allege violations of state law prior to
1978, which the Court has found to be incorrect, an in-depth
consideration of the various Grable factors is unnecessary. No
federal issue has been raised by either Plaintiff’s original
petition or their amended petition, least of all one the Court
would

deem

arise

“substantial.”

under

federal

law,

Because
this

none

matter

of

Plaintiffs’

lacks

federal

claims

question

jurisdiction.
B. OCSLA
Defendants next assert that OCSLA provides an independent
basis for federal jurisdiction because this matter arises out of
operations

which

were

conducted

on

the

OCS.

This

matter

is

controlled by the test for OCSLA jurisdiction articulated in In
re Deepwater Horizon, 745 F.3d 157 (5th Cir. 2014):

10

Courts typically assess jurisdiction under [OCSLA] in
terms of whether (1) the activities that caused the
injury constituted an “operation” “conducted on the
Outer Continental Shelf” that involved the exploration
and production of minerals, and (2) the case “arises
out of, or in connection with” the operation.
Id. at 163 (emphasis added). In Total, Judge Zainey thoroughly
and extensively considered whether OCSLA jurisdiction attached
to the Oil Patch cases. See Total, 2014 WL 6750649, at *14-19.
Because none of the defendants’ allegedly injurious activities
occurred on the OCS, Judge Zainey ultimately concluded that the
defendants

failed

to

satisfy

the

first

prong

of

the

In

re

Deepwater Horizon test, and OCSLA jurisdiction did not attach.
Id.

at

*16.

Moreover,

in

Jefferson

Parish

v.

Chevron

U.S.A.

Holdings, Inc, et al, in which the claims and land at issue is
indistinguishable from the current matter, this Court concluded
that OCSLA jurisdiction did not attach, because “the undisputed
evidence shows that the activities causing the complained of
injuries

were

conducted

on

land

as

opposed

to

on

the

Outer

Continental Shelf.” No. 13-6738 (Rec. Doc. 73) (E.D. La. May 12,
2015).
Because Defendants have raised essentially no new arguments
to

effectively

distinguish

this

matter

from

the

previous

holdings of this Court, the Court finds no reason to depart from
these prior holdings.

11

C. General Maritime Law
Thirdly

and

jurisdiction
maritime

finally,

attaches

law.

As

Defendants

to
the

with

this
issue

assert

matter
of

that

federal

to

general

pursuant

OCSLA

jurisdiction,

this

issue has already been extensively and thoroughly considered by
the Court in Total and its progeny. Defendants recognize that
this Court has repeatedly rejected the argument that the 2011
amendments

to

the

federal

removal

statute

rendered

maritime

claims independently removable. (Rec. Doc. 36). Despite these
repeated holdings, including those in Total, etc., Defendants
continue

to

assert

that

the

2011

amendments

allow

for

such

removability and request that this Court certify the issue for
appeal

to

the

distinguish
Rozel.
finds

their

Circuit.

arguments

Defendants

from

those

make

no

raised

in

attempt
Total

to
and

As such, the Court agrees with the holding in Rozel, and
that

standing
other

Fifth

the

rule

2011

that

non-admiralty

Rozel,

2015

WL

amendments

general
source

403791,

at

have

maritime

not
law

altered
claims

of

jurisdiction

*4

(citing

to

“long-

require

be

Gregoire

the

v.

some

removable.”
Enterprise

Marine Servs., LLC, 38 F. Supp. 3d 749, 764 (E.D. La. 2014)
(Duval,

J.)

(internal

quotations

omitted)).

The

Court

also

declines to exercise its discretion to certify this question for
appeal.
12

Because

general

maritime

law

does

not

provide

an

independent basis for removal of this matter, it is unnecessary
to consider Defendants’ arguments regarding whether this action
meets the prerequisites for maritime jurisdiction.
CONCLUSION
Accordingly,
IT

IS

HEREBY

ORDERED

that

Plaintiffs’

Motion

to

Remand

(Rec. Doc. 22) is GRANTED.
New Orleans, Louisiana this 26th day of May, 2015.

________________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

13