Sheldon v. C & C Fishery, LLC

Filing 38

ORDER REMANDING CASE TO STATE COURT: IT IS HEREBY ORDERED that Plaintiff Martha Sheldon's 10 Motion to Remand is GRANTED and therefore the case is remanded to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Nannette Jolivette Brown on 7/18/2017. (mmv) (Additional attachment(s) added on 7/18/2017: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARTHA SHELDON

CIVIL ACTION

VERSUS

CASE NO. 16-16293

C&C FISHERY, LLC, et al.

SECTION: “G”(3)
ORDER

Pending before the Court is Plaintiff Martha Sheldon’s (“Plaintiff”) “Motion to Remand.”1
Having considered the motion, the memoranda in support and in opposition, the record, and the
applicable law, the Court will grant the motion and remand this case to the Civil District Court for
the Parish of Orleans, State of Louisiana.
I. Background
A.

Factual Background
In this litigation, Plaintiff alleges that her son, Joshua Sheldon (“Decedent”), suffered a

fatal injury while aboard Defendant C&C Fishery, LLC’s (“C&C Fishery”) vessel, the F/V
MORNING STAR (“MORNING STAR”), due to the alleged negligence of C&C Fishery and the
unseaworthiness of the vessel.2 Plaintiff alleges that Decedent was a seaman pursuant to the Jones
Act and on board the MORNING STAR as an employee of Defendant Riverside Technology
(“Riverside”).3 According to Plaintiff, on March 13, 2016, the MORNING STAR embarked on a

1

Rec. Doc. 10.

2

Rec. Doc. 1-1 at 2.

3

Id. at 1.

1

fishing trip with Decedent onboard.4 Shortly after embarking, Plaintiff contends that Decedent
became extremely ill.5 Despite his serious illness, Plaintiff avers that the MORNING STAR
continued to the designated fishing spot without requesting emergency medical assistance. 6
Plaintiff alleges that the crew of the MORNING STAR did not send an emergency distress
transmission requesting emergency medical assistance until three days later on March 16, 2016.7
According to Plaintiff, the transmission indicated that Decedent had not “moved from his rack
since they had left port and is unable to move and cannot speak (only gurgles and grunts in response
to questions).”8 Plaintiff states that Decedent was then taken to the Deepwater Magnolia Rig where
he was transported via life-flight to a hospital on March 17, 2016, four days after he first became
symptomatic.9 Plaintiff asserts that Decedent was diagnosed with an advanced Methicillinresistant Staphylococcus aureus (“MRSA”) infection that he had allegedly contracted while on the
MORNING STAR.10 Plaintiff states that Decedent subsequently passed away due to complications
of the MRSA infection, which Plaintiff alleges was the result of the negligent acts and inactions

4

Id. at 3.

5

Id.

6

Id.

7

Id.

8

Id.

9

Id.

10

Id.

2

of Defendants C&C Fishery and Riverside (collectively, “Defendants”).11 Plaintiff asserts claims
under the Jones Act, the general maritime law, and Louisiana state law.12
B.

Procedural Background
Plaintiff filed a “Seaman’s Original Petition for Damages” in the Civil District Court for

the Parish of Orleans, State of Louisiana, on August 12, 2016. 13 Defendant Riverside was served
on October 13, 2016, and removed the case to this Court on November 10, 2016.14 Riverside
alleges that removal is proper because Plaintiff’s Jones Act claim was fraudulently pleaded, and
thus this Court has federal question jurisdiction over this matter pursuant to 28 U.S.C. § 1331 and
the Federal Employees’ Compensation Act (“FECA”).15
On December 12, 2016, Plaintiff filed the instant motion to remand.16 On December 20,
2016, Riverside filed a motion to continue the submission date on Plaintiff’s motion to remand, 17
which the Court subsequently granted.18 On January 10, 2017, Defendant C&C Fishery filed an
opposition to the motion to remand.19 On January 10, 2017, Plaintiff filed a joint motion to dismiss

11

Id.

12

Id.

13

Id. at 1.

14

Rec. Doc. 1 at 8.

15

Id. at 3–6.

16

Rec. Doc. 10.

17

Rec. Doc. 11.

18

Rec. Doc. 13.

19

Rec. Doc. 14.

3

Riverside with prejudice,20 which the Court granted on January 11, 2017.21 On May 15, 2017, with
leave of Court, Plaintiff filed a reply to C&C Fishery’s opposition to Plaintiffs’ motion to
remand.22 On May 26, 2017, with leave of Court, C&C Fishery filed a sur-reply.23
II. Parties= Arguments
A.

Riverside’s Notice of Removal
In Riverside’s Notice of Removal, Riverside asserts that removal of this action to federal

court is proper, as this Court has federal question jurisdiction over this matter pursuant to 28 U.S.C.
§ 1331 and FECA.24
Plaintiff’s Jones Act Claim

1.

First, Riverside admits that Plaintiff’s state court Petition asserts claims pursuant to the
Jones Act and that Jones Act cases are typically non-removable under 28 U.S.C. § 1445(a).25
However, Riverside argues that a defendant may overcome the bar to removal if it can show that
the Jones Act claim was “fraudulently pleaded” to prevent removal.26 For example, Riverside
points out that a court in the Southern District of Texas denied a motion to remand a Jones Act
case because it found that the plaintiff was not a “seaman” under the Jones Act, and thus the

20

Rec. Doc. 15.

21

Rec. Doc. 19.

22

Rec. Doc. 29.

23

Rec. Doc. 37.

24

Rec. Doc. 1 at 3–6.

25

Id. at 3.

26

Id. (citing Sanders v. Cambrian Consultants (CC) America, Inc., 132 F. Supp. 3d 853, 855 (S.D. Tex.
2015) (citing Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993)); Skinner v. Schlumberger, No. 13-3146,
2014 WL 791541, at *1 (W.D. La. Feb. 25, 2014), aff’d, No. 15-30650, 2016 WL3667576 (5th Cir. July 8, 2016)).

4

plaintiff had “fraudulently pled” a Jones Act claim.27 In particular, that court noted that the plaintiff
was employed solely as a “marine mammal observer,” and that “all of the caselaw provided
indicate[d] that individuals who are employed solely as statutorily required scientific personnel do
not contribute to the function of the vessel.”28 Indeed, Riverside represents that “[n]umerous courts
have concluded that fisheries observers are not Jones Act seaman.”29
Here, Riverside argues that Plaintiff’s Jones Act claim was fraudulently pleaded, and thus
does not bar removal of this case from state court.30 Riverside points out that it is a federal
government contractor with the National Oceanic and Atmospheric Administration
(“NOAA”)/National Marine Fisheries Service (“NMFS”) and was working pursuant to a contract
with NOAA/NMFS at the time of Decedent’s illness in March 2016.31 According to Riverside, its
contract with NOAA/NMFS includes the provision of fishery observers, such as Decedent, “in
support of the NMFS Miami Pelagic Observer Program and the NMFS Panama City Observer
Program.”32 Riverside contends that the Pelagic Observer Program requires vessels to carry
NMFS-approved observers on permitted vessels at the request of the NMFS.33 Riverside avers that

27

Id. (citing Sanders, 132 F. Supp. 3d at 855).

28

Id. (quoting Sanders, 132 F. Supp. 3d at 857).

29
Id. at 7 (citing O’Boyle v. U.S., 993 F.2d 211, 213 (11th Cir. 1993); Bank of America, N.A. v. Pacific Lady,
No. 00-1114, 2001 WL 33389208, at *1 (W.D. Wash. Nov. 22, 2000); Mason v. Alaskan Observers, Inc., No. 030140, 2001 WL 23181008, at *1 (W.D. Wash. Aug. 29, 2003); Chauvin v. FUGRO-GEOTEAM SA, No. 06-2290,
2007 WL 2265233, at *2 (E.D. La. Aug. 1, 2007); Belcher v. Sundad, Inc., No. 07-346, 2008 WL 2937258, *1–3 (D.
Or. July 18, 2008)).
30

Id.

31

Id. at 4.

32

Id.

33

Id.

5

these fishery observers do not participate in the operation of the fishing vessel, and instead are
only guests aboard the vessel pursuant to Riverside’s own fishery observer guidelines.34 Riverside
asserts that Decedent was hired as a Fishery Observer on October 12, 2013, and was trained at the
NOAA Fisheries Lab in Miami, Florida.35 According to Riverside, fishery observers record and
collect data on fish, environmental information, biological samples, fishery violations, and marine
pollution.36 Riverside avers that Decedent was onboard the MORNING STAR at the time of his
illness in his capacity as a fishery observer, and thus was not a seaman under the Jones Act.37
Therefore, Riverside argues that because Plaintiff cannot bring a Jones Act claim, her instant Jones
Action cause of action was fraudulently pleaded and cannot defeat removal of this action under 28
U.S.C. § 1445(a).38
2.

Independent basis for federal jurisdiction

Second, Riverside asserts that Plaintiff’s general maritime claims do not bar removal of a
case to a federal forum either.39 Rather, Riverside argues that general maritime claims are
removable when there is an independent basis of jurisdiction other than 28 U.S.C. § 1333.40
According to Riverside, the independent basis of jurisdiction here is FECA, which provides this

34

Id.

35

Id.

36

Id. at 5.

37

Id.

38

Id.

39

Id. at 5–6.

40

Id. at 6.

6

Court with federal question jurisdiction under 28 U.S.C. § 1331.41 Riverside contends that on
March 23, 2016, Shawn Sutherland, the Human Resources Director for Riverside, filed a FECA
Form CA-1 on Decedent’s behalf with the United States Department of Labor after he was notified
that Decedent was ill and had been admitted to the hospital.42
Riverside points out that in Jarmuth v. Cox, a court in the Northern District of West
Virginia found that a motion to remand must be denied when a plaintiff’s claims “turn on
substantial questions of federal law, most notably the FECA and the Privacy Act.” 43 Here,
Riverside argues that federal law makes clear that observers on a vessel are federal employees for
the purposes of FECA.44 Thus, Riverside alleges that it was the intent of Congress for observers
under the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) and the Marine
Mammal Protection Act of 1972 (“MMPA”) not to be entitled to file claims under the Jones Act
or maritime law for injuries arising from the performance of their duties as observers on vessels.45
Accordingly, Riverside contends that, because Decedent was a federal employee rather than a
Jones Act seaman, Plaintiff’s claims for pecuniary losses turn on a substantial issue of
interpretation of FECA.46 Therefore, Riverside states that an independent basis of federal question
jurisdiction exists to support removal.47

41

Id.

42

Id. at 2.

43

Id. at 6 (quoting Jarmuth v. Cox, 2007 WL 2892957 (N.D. W.Va. Sept. 28, 2007) (internal quotation marks
and citations omitted)).
44

Id. at 7 (quoting 16 U.S.C. § 1881b(c)).

45

Id.

46

Id. at 7–8.

47

Id. at 8.

7

B.

Plaintiff’s Arguments in Support of the Motion to Remand
In her motion, Plaintiff argues that this case should be remanded to state court.48
Plaintiff’s Jones Act claim

1.

First, Plaintiff asserts that her Jones Act claim bars removal and that Defendants have not
met their “high burden” of proving that Decedent was not a seaman as defined under the Jones
Act.49 Plaintiff argues that as the removing party, Riverside has the burden of proving that
Decedent was not a Jones Act seaman as alleged in Plaintiff’s Petition by showing that “there is
no possibility that plaintiff would be able to establish a cause of action” as a Jones Act Seaman.50
According to Plaintiff, “[s]everal courts” have disapproved of the practice of allowing Defendants
to question a plaintiff’s seaman status by filing a petition of removal.51
Plaintiff represents that in Chandris v. Latsis, the United States Supreme Court devised a
two-part test for determining whether an employee qualifies as a seaman under the Jones Act.52
Plaintiff avers that under the first prong of the Chandris test, a seaman must “contribute to the
function of the vessel or the accomplishment of the mission.”53 Plaintiff asserts that, under the
second prong of the Chandris test, a seaman “must have a connection to a vessel in navigation (or

48

Rec. Doc. 10 at 1.

49

Rec. Doc. 10-1 at 4.

50

Id. at 5 (citing Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993); Preston v. Grant
Advertising, Inc., 375 F.2d 439, 440 (5th Cir. 1967); Zertuche v. Great Lakes Dredge & Dock Co., LLC., 306 Fed.
App’x. 93, 97 (5th Cir. 2009)).
51

Id. at 6 (citing Kattelman v. Otis Engineering Corp., 701 F. Supp. 560, 566 (E.D.La. 1988); Lonthier v.
Northwest Insurance Co., 599 F. Supp. 963, 965–66 (W.D.La. 1985); Green v. Ross Island Sand & Gravel Co., 2014
WL 262133, at * 2 (N.D. Cal. Jan. 23, 2014)).
52

Id. (citing Chandris v. Latsis, 515 U.S. 347, 368 (1995)).

53

Id.

8

to an identifiable group of vessels) that is substantial in terms of both its duration and its nature.”54
According to Plaintiff, the purpose of the “substantial connection requirement” in the second prong
is to “separate sea- based employees from those of land-based maritime workers who only have a
sporadic or transient connection to a vessel and are not subject to the perils of the sea.”55
Plaintiff asserts that Riverside only provided the Declaration of Shawn Sutherland, the
Human Resources Director of Riverside, in support of removal.56 However, Plaintiff alleges that
Sutherland “presumably” spent little time aboard the vessel with Decedent and thus cannot have
personal knowledge as to “what actual duties were performed or were to be performed by Decedent
while aboard the vessel.”57 Moreover, Plaintiff avers that Sutherland stated in his Declaration that,
while fishery observers are “guests” while aboard vessels, Decedent “was directed to provide
observer services” while aboard the MORNING STAR.58 Plaintiff argues that if reasonable
persons could differ as to whether an employee was a “member of the crew,” then it is a question
for the jury and remand is proper.59
2.

Independent basis for federal jurisdiction

Second, Plaintiff contends that Defendants have not pointed to any other basis for federal
question jurisdiction.60 According to Plaintiff, the “Savings to Suitors Clause” in 28 U.S.C.

54

Id.

55

Id. at 4–5.

56

Id. at 5.

57

Id.

58

Id.

59

Id. at 7.

60

Id. at 1–2.

9

§ 1333(1) provides plaintiffs with the right to select their forum, either state or federal, and cases
filed by a plaintiff in state court cannot be removed solely on the basis that the plaintiff brings a
claim under general maritime law.61 Rather, Plaintiff asserts that Defendants must instead identify
an independent basis for federal jurisdiction beyond Plaintiff’s maritime claim for removal here to
be proper.62
Plaintiff argues that FECA, the federal workers’ compensation scheme, cannot provide an
independent basis for federal question jurisdiction here.63 Plaintiff contends that Defendants have
not shown that Decedent was a federal employee, as Defendants admit that Decedent was hired by
Riverside and was a Riverside employee while aboard the MORNING STAR in March 2016. 64
Moreover, even if Decedent was a federal employee, Plaintiff represents that 5 U.S.C. § 8150
specifically provides that FECA “does not affect the maritime rights and remedies” of Plaintiff.65
Plaintiff argues that one of those rights is the ability to bring a civil maritime action in state court.66
Thus, Plaintiff contends that Defendants cannot assert FECA as a basis for removal, as it would
curtail Plaintiff’s right to bring her maritime action in state court.67 Plaintiff alleges that the sole

61

Id. at 3–4.

62

Id. at 2 (citing Gregoire v. Enterprise Marine Services, LLC, 2014 WL 3866589 at *10 (E.D. La. Aug. 6,
2014); Henry J. Ellender Heirs, LLC v. Exxon Mobil Corp., 2014 WL 4231186 at *6 (E.D. La. Aug. 26, 2014); Riley
v. Llog Exploration Co. LLC, 2014 WL 4345002 at *5 (E.D. La. Aug. 28, 2014); Bisso Marine Co., Inc. v. Techcrane
Intern., LLC, 2014 WL 4489618 at *4 (E.D. La. Sept. 10, 2014); Dyche v. US Environmental Services, LLC, 2014
WL 5473238 at *5 (E.D. Tex. Oct. 30, 2014); Yavorsky v. Felice Navigation, Inc., 2014 WL 5816999 at *4 (E.D. La.
Nov. 7, 2014)).
63

Id. at 7.

64

Id.

65

Id. 7–8.

66

Id.

67

Id. at 8.

10

case cited by Riverside in support of its contention that cases under FECA are removable is
distinguishable, as it involved an Army employee who did not bring any maritime or Jones Act
claims.68 Accordingly, Plaintiff argues that the plain language of FECA is clear that it cannot be
used as a basis for removal in a general maritime case.69
C.

Defendant C&C Fishery’s Arguments in Opposition to Motion to Remand
In opposition, C&C Fishery argues that removal was proper.70
Plaintiff’s Jones Act claim

1.

C&C Fishery contends that this case is not barred from removal under the Jones Act
because Decedent does not qualify as a Jones Act seaman.71 According to C&C Fishery, to qualify
as a seaman for the purposes of the Jones Act, a plaintiff must: (1) “contribute to the function of
the vessel or to the accomplishment of its mission;” and (2) “have a connection to a vessel in
navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration
and nature.”72 C&C Fishery points out that Riverside is a federal government contractor that
provides fishery observers like Decedent to collect data for the federal Pelagic Observer
Program.73 C&C Fishery avers that the observers are scientific personnel who “do not participate
in the fishing operations of the vessel in any capacity.”74 Moreover, C&C Fishery contends that

68

Id. (citing Jarmuth v. Cox, 07-33, 2007 WL 2892957, at *1 (N.D.W. Va. Sept. 28, 2007)).

69

Id.

70

Rec. Doc. 14.

71

Id. at 4.

72

Id. (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995)).

73

Id. at 1.

74

Id.

11

Decedent had no connection to the vessel other than being assigned to it for scientific research. 75
Thus, C&C Fishery argues that because it is “undisputed” that Decedent was a fisheries observer
and not a seaman, Plaintiff’s Jones Act claim was “fraudulently pleaded” and cannot prevent
removal of this case to federal court.76
2.

Independent basis for federal jurisdiction

Rather, C&C Fishery alleges that, as a fisheries observer, Decedent was considered an
employee of the federal government for purposes of compensation under FECA.77 C&C Fishery
points out that 16 U.S.C. § 1881b(c) explicitly provides that “[a]n observer on a vessel and under
contract to carry out responsibilities under this chapter [MSA] or the Marine Mammal Protection
Act of 1972 (16 U.S.C. 1361 et seq.) shall be deemed to be a Federal employee for the purpose of
compensation under the Federal Employee Compensation Act (5 U.S.C. 8101 et seq.).”78 C&C
Fishery asserts that FECA provides “exclusive and comprehensive compensation to federal
employees who are injured or killed while in performance of their duties.”79 According to C&C
Fishery, the Sixth Circuit determined in Turner, ex rel. Turner v. Tennessee Valley Authority that
a widow of a federal employee who drowned after falling overboard on a vessel could not assert
claims under the Jones Act, because FECA is an exclusive remedy that bars such employees “from

75

Id. at 4.

76

Id. at 3.

77

Id. at 2 (citing 16 U.S.C. § 1881b(c)).

78

Id. at 5.

79

Id. (quotation marks and alterations omitted).

12

commencing an action under the Jones Act or other remedial statutes.”80 Thus, C&C Fishery
argues that “FECA provides federal question jurisdiction for removal purposes.”81
D.

Plaintiff’s Arguments in Further Support of her Motion to Remand
In her reply, Plaintiff argues that this case should be remanded for several reasons.82 First,

Plaintiff points out that Riverside has been dismissed from this litigation, and thus Plaintiff
contends that any federal questions related to FECA were either resolved or are now moot.83
However, Plaintiff contends that FECA does not bar actions by beneficiaries against responsible
third parties.84 “In fact,” Plaintiff argues, “FECA expressly allows the United States to assert a
subrogation interest against recovery from responsible third parties,” and Plaintiff avers that it
even permits the Secretary of Labor to require beneficiaries to file suit against responsible third
parties. 85
Second, Plaintiff argues that C&C Fishery has failed to raise an independent basis for
federal jurisdiction, as the Savings-to-Suitor Clause does not confer jurisdiction on this Court in
general maritime negligence cases filed in state court.86 Because C&C Fishery is not a federal
contractor or Decedent’s employer, Plaintiff argues, the FECA federal question against Riverside

80

Id. at 6 (quoting 859 F.2d 412,413–14 (6th Cir. 1988)).

81

Id. at 2.

82

Rec. Doc. 29 at 1.

83

Id. at 1.

84

Id. at 3.

85

Id. at 3–4 (citing 5 U.S.C. § 8131).

86

Id. at 1.

13

is moot, and thus Plaintiff is entitled to bring her civil action against C&C Fishery in state court.87
Plaintiff avers that because C&C Fishery has pointed to no other basis for federal jurisdiction other
than FECA, remand is proper.88 Plaintiff also points out that, while C&C Fishery asserted
immunity under the MMPA in its motion for summary judgment, Riverside asserted that Decedent
was an observer under MSA, and no evidence has been presented that Decedent was an observer
under the MMPA.89 Moreover, Plaintiff argues that even if Decedent was an observer under the
MMPA, the statute permits recovery against the vessel owner who engaged in “the complained of
conduct willfully.”90 Thus, Plaintiff avers that C&C Fishery has only asserted an affirmative
defense against Plaintiff’s claims, and that this cannot be used to determine removal jurisdiction.91
Third, Plaintiff contends that C&C Fishery is a citizen of Louisiana and failed to timely
remove this case as required by 28 U.S.C. § 1446.92 Plaintiff alleges that her Petition was filed
against C&C Fishery and Riverside on August 12, 2016, and that C&C Fishery filed an answer on
September 9, 2016.93 According to Plaintiff, C&C Fishery never sought timely removal, and it was
not until Riverside, the federal contractor party, asserted an independent basis for federal

87

Id. at 4.

88

Id. at 5.

89

Id.

90

Id. at 6.

91

Id.

92

Id. at 1.

93

Id. at 2.

14

jurisdiction under FECA that this case was removed.94 Plaintiff points out that Riverside’s notice
of removal was filed on November 10, 2016, which was 64 days after C&C Fishery was served.95
E.

C&C Fishery’s Arguments in Further Opposition to the Motion
In its sur-reply, C&C Fishery first asserts that the dismissal of Riverside does not render

the question of whether Decedent was a federal employee under FECA moot.96 Riverside contends
that the Magnuson-Stevens Fishery Conservation and Management Act (“MSA”) states that
observers under either the MSA or the Marine Mammal Protection Act of 1972 (“MMPA”) are
federal employees for the purposes of FECA.97 Therefore, Riverside alleges that FECA provides
the exclusive remedy available to Plaintiff and that this Court has federal question jurisdiction for
removal purposes that is independent from Plaintiff’s claims under the general maritime law.98
Second, C&C Fishery argues that, as the owner of the MORNING STAR, it is immune
from any civil action by a fisheries observer pursuant to 16 U.S.C. § 1383a(e)(7)(A).99 According
to C&C Fishery, Section 1383a provides that fisheries observers serving on a vessel “may not
bring a civil action” against the owner of the vessel for any injuries or deaths that may arise from
their service as an observer.100 C&C Fishery points to a Ninth Circuit case that held that, because
observers are “thrust” on board private vessels as part of the federal government’s protection

94

Id. at 6–7.

95

Id. at 7.

96

Rec. Doc. 37 at 2.

97

Id. at 3–4.

98

Id. at 3.

99

Id. at 2.

100

Id.

15

efforts under the MSA and the MMPA, “Congress limited the vessel owners’ liability to observers”
to injuries resulting from the vessel owner’s willful misconduct.101 Here, C&C Fishery argues that
Plaintiff did not allege that C&C Fishery engaged in willful misconduct.102 Thus, because
Decedent was “thrust” on the MORNING STAR, C&C Fishery contends, C&C Fishery should be
afforded the immunity provided by the MMPA.103 Finally, C&C Fishery argues that Plaintiff has
not shown that it acted negligently, and thus Plaintiff’s claim of negligence under the general
maritime law must fail.104
III. Law and Analysis
A.

Legal Standard
A defendant may remove a state civil court action to federal court if the federal court has

original jurisdiction over the action.105 Pursuant to 28 U.S.C. § 1331, a district court has subject
matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the
United States.” The removing party bears the burden of demonstrating that federal jurisdiction
exists.106 In assessing whether removal was appropriate, the Court is guided by the principle,
grounded in notions of comity and the recognition that federal courts are courts of limited
jurisdiction, that “removal statute[s] should be strictly construed in favor of remand.” 107 Remand

101

Id. at 4 (quoting Bauer v. Mrag Americas, Inc., 624 F.3d 1210, 1211 (9th Cir. 2010)).

102

Id.

103

Id. at 5.

104

Id.

105

28 U.S.C. § 1441(a); Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 34 (2002).

106

See Allen v. R&H Oil & Gas Co., 63 F.3d 1326, 1335 (5th Cir. 1995).

107

Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).

16

is appropriate if the Court lacks subject matter jurisdiction, and “doubts regarding whether removal
jurisdiction is proper should be resolved against federal jurisdiction.”108
In general, suits properly brought in state court under the Jones Act may not be removed.109
However, the Fifth Circuit has recognized that in certain circumstances “defendants may pierce
the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent
removal.”110 The Fifth Circuit has determined that defendants sued under the Jones Act in state
court may defeat a motion to remand “upon showing that plaintiffs’ claims against non-diverse
defendants are baseless in law and in fact and serve only to frustrate federal jurisdiction.”111 The
Fifth Circuit has noted that the burden of persuasion in such a case “is a heavy one,” as the
removing party must show that there is “no possibility that plaintiff would be able to establish a
cause of action.”112 That is, to deny remand, the district court must determine that “as a matter of
law there was no reasonable basis for predicting that the plaintiff might establish liability.”113 The
Fifth Circuit has “cautioned against pretrying a case to determine removal jurisdiction,” but
recognized that district courts may use a “summary judgment-like procedure” to determine

108

Acuna v. Brown & Root Inc., 200 F.3d 335, 339 (5th Cir. 2000) (citing Willy v. Coastal Corp., 855 F.2d
1160, 1164 (5th Cir. 1988)).
109

46 U.S.C. § 30104; 28 U.S.C. § 1445(a); Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995).

110

Burchett, 48 F.3d at 175 (quoting Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993)).

111

Id. at 175–76 (internal quotation marks and citations omitted). See generally B., Inc. v. Miller Brewing
Co., 663 F.2d 545, 549 (5th Cir. 1981) (“In order to establish that an in-state defendant has been fraudulently joined,
the removing party must show either that there is no possibility that the plaintiff would be able to establish a cause of
action against the in-state defendant in state court; or that there has been outright fraud in the plaintiff's pleadings of
jurisdictional facts.”).
112

Burchett, 48 F.3d at 176.

113

Id. (citing B., Inc. v. Miller Brewing Co., 663 F.2d 545, 551 (5th Cir. 1981)) (emphasis in original).

17

whether the Jones Act claim was fraudulently pleaded.114 In making this determination, the district
court must resolve all disputed questions of fact and any ambiguities in law in favor of the
plaintiff.115
Pursuant to 28 U.S.C. § 1333(1), district courts have original jurisdiction over any civil
case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which
they are entitled.” The Supreme Court has interpreted the “saving to suitors” clause as preserving
the concurrent jurisdiction of the state and federal courts over admiralty and maritime claims.116
Thus, courts have concluded that general maritime claims are not removable when filed in state
court absent an independent basis of jurisdiction other than 28 U.S.C. § 1333.117
B.

Analysis
It is undisputed that in her “Seaman’s Original Petition for Damages,” Plaintiff alleges that

Decedent was a “seaman pursuant to the Jones Act” and asserts a claim under the Jones Act. 118 It

114

Id.; Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999);

115

Hufnagel, 182 F.3d at 345 (citing Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir. 1990);
Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 177 (5th Cir. 1968)).
See Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 444 (2001) (“Thus, the saving to suitors clause
preserves remedies and the concurrent jurisdiction of state courts over some admiralty and maritime claims.”); Romero
v. Int’l Terminal Operating Co., 358 U.S. 354, 362 (1959); The Moses Taylor, 71 U.S. 411, 422 (1866) (“It is well
known that at the time of the adoption of the Constitution, whatever admiralty jurisdiction existed in this country, was
exercised by the State courts.”); see also Gregoire v. Enter. Marine Servs., LLC, 38 F. Supp. 3d 749, 754 (E.D. La.
2014) (Duval, J.).
116

Barker v. Hercules Offshore, Inc., 713 F.3d 208, 220 (5th Cir. 2013) (holding that “removal of maritime
cases is permissible as long as there is an independent basis for federal jurisdiction”); In re Dutile, 935 F.2d 61, 63
(5th Cir. 1991) (noting that complete diversity of citizenship was required between the parties for removal of an
admiralty claim to be proper); Gregoire, 38 F. Supp. 3d at 754 (“In short, general maritime law claims are not now
removable—nor have they ever been—without an independent basis of jurisdiction other than 28 U.S.C.
§ 1333 . . . .”).
117

118

Rec. Doc. 1-1 at 1, 5.

18

is also undisputed that, in general, a Jones Act case filed in state court is not removable.119
Nonetheless, the Fifth Circuit has determined that a Jones Act claim prevents removal only “in the
absence of any issue of a fraudulent attempt to evade removal.” 120 For example, the Fifth Circuit
has held that “like fraudulent joinder cases, defendants sued under the Jones Act can defeat remand
upon showing that plaintiffs’ claims against non-diverse defendants are baseless in law and in fact
and serve only to frustrate federal jurisdiction.”121 In other words, removal is proper if a defendant
can show that a Jones Act claim was “fraudulently pleaded.”122
In her motion, Plaintiff asserts that remand is proper because: (1) C&C Fishery has not
shown that Plaintiff’s Jones Act claim was fraudulently pleaded; and (2) even if Plaintiff’s Jones
Act claim was fraudulently pleaded, cases arising under the general maritime law filed in state
court are not removable absent an independent basis of jurisdiction. 123 Before addressing
Plaintiff’s motion, the Court will first consider C&C Fishery’s argument that FECA precludes
Plaintiff from asserting a Jones Act claim as a matter of law.
1.

Whether FECA precludes Plaintiff’s Jones Act Claim

As a preliminary matter, the Court notes that C&C Fishery asserts that, because Decedent
was allegedly a federal employee under either the Magnuson-Stevens Fishery Conservation and
Management Act or the Marine Mammal Protection Act, Plaintiff’s exclusive remedy lies in

119

Burchett, 48 F.3d at 175; Lackey, 990 F.2d at 207.

120

Lackey, 990 F.2d at 207 (quoting Preston v. Grant Advertising, Inc., 375 F.2d 439, 440 (5th Cir. 1967)).

121

Burchett, 48 F.3d at 175–76 (quoting Lackey, 990 F.2d at 207) (internal quotation marks omitted).

122

Lackey, 990 F.2d at 207.

123

See Rec. Doc. 10.

19

FECA.124 Thus, C&C Fishery asserts that Plaintiff cannot bring a Jones Act claim, and that, while
Plaintiff argues that a FECA beneficiary may file suit against a responsible third party, C&C
Fishery is immune from any civil action by a fisheries observer.125
As both parties agree, Jones Act suits generally may not be removed from state court.126
Accordingly, to defeat Plaintiff’s motion to remand, C&C Fishery must show that “there is no
possibility that plaintiff would be able to establish a cause of action” under the Jones Act, and all
disputed questions of fact and ambiguities in law must be resolved in favor of Plaintiff.127
The Jones Act explicitly limits a seaman’s right to recovery to when “his employer’s
negligence is the cause, in whole or in part, of his injury.”128 Here, it is undisputed that Riverside
was Decedent’s employer.129 The Court notes that, while Defendant Riverside was dismissed from
this matter subsequent to its removal to this Court, the Court’s jurisdiction is determined at the
time of removal. 130 Thus, contrary to Plaintiff’s contentions, Riverside’s dismissal from this case

124
125

See Rec. Doc. 37 at 2.
Id.

See Rec. Doc. 14 at 3 (C&C Fishery alleging that “[i]n general, Jones Act claims are not removable under
28 U.S.C. § 1445(a) . . . .”); see also Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993) (holding that it is
“axiomatic that Jones Act suits may not be removed from state court”).
126

127

Lackey, 990 F.2d at 207; see also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999);
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981) (“The burden of persuasion placed upon those who
cry ‘fraudulent joinder’ is indeed a heavy one.”).
128

Hasty v. Trans Atlas Boats Inc., 389 F.3d 510, 512 (5th Cir. 2004) (quoting Gautreaux v. Scurlock Marine,
107 F.3d 331, 335 (5th Cir. 1997)); see also 46 U.S.C. § 30104 (“A seaman injured in the course of employment or,
if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law,
with the right of trial by jury, against the employer.” (emphasis added)); McAleer v. Smith, 57 F.3d 109, 115 (1st Cir.
1995) (“The Jones Act remedy is available only against the seaman’s employer.”).
See Rec. Doc. 10-1 at 5 (“Plaintiff asserting that “Defendant concedes that Decedent was hired by
Defendant as a fishery observer and reported to a Riverside Technology Program Manager”); see also Rec. Doc. 1 at
4 (Riverside stating in its Notice of Removal that “Decedent was hired by Riverside as a Fishery Observer II (5T) on
October 12, 2013”).
129

130

See, e.g., Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 265 (5th Cir. 1995) (determining that

20

after it was removed from state court does not affect the Court’s analysis here on whether this case
was properly removed to federal court.131
While both parties agree that Decedent was employed by Riverside,132 the parties dispute
whether C&C Fishery has adduced sufficient evidence to show that Decedent was a federal
employee subject to the provisions of FECA.133 However, the Court need not resolve this dispute
at this time, as FECA’s provision establishing that it is the exclusive remedy for injured federal
employees further provides that it “does not apply to a master or a member of a crew of a vessel.”134
As the Supreme Court has made clear, the maritime term “member of a crew” carries the same
meaning as “seaman” under the Jones Act.135 While the Supreme Court has held that this provision
does not apply to “civilian seaman on public vessels,”136 neither party has alleged that the
MORNING STAR was a public vessel. C&C Fishery argues that FECA precludes Plaintiff from

courts must consider the jurisdictional facts as of the time the case is removed to determine if a non-diverse party was
fraudulently joined, and that subsequent amendments to the complaint in federal court cannot defeat removal); Walker
v. Nabors Offshore Drilling, Inc., 91 F. Supp. 2d 907, 910 (E.D. La. 2000) (Fallon, J.) (determining the plaintiff’s
Jones Act was fraudulently asserted, “as he must have known at the time of filing that there was no reasonable
possibility of establishing a Jones Act claim”); see also Cobb v. Delta Exports, Inc., 186 F.3d 675, 678 (5th Cir. 1999)
(stating that the fraudulent joinder doctrine only applies to those parties that exist on the record in state court at the
time of removal).
131

See Rec. Doc. 29 at 2 (Plaintiff stating that all federal questions were resolved or are now moot since
Riverside was dismissed).
132

Rec. Doc. 10-1 at 7; Rec. Doc. 14 at 1.

133

See Rec. Doc. 10-1 at 7 (Plaintiff arguing that Defendants have failed to meet their burden of proof of
showing that Decedent was a federal employee).
5 U.S.C. § 8116(c) (emphasis added) (providing that the “liability of the United States or an
instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an
employee is exclusive . . . However, this subsection does not apply to a master or a member of a crew of a vessel”).
134

See Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 86–87, (1991) (noting that the term “member of a crew of
any vessel,” is “a phrase that is a ‘refinement’ of the term ‘seaman’ in the Jones Act.”).
135

136

Johansen v. United States, 343 U.S. 427, 440–41 (1952) (emphasis added).

21

bringing a Jones Act claim, but C&C Fishery fails to address this exclusionary provision for FECA
or show why it would not apply if the Court found that Plaintiff had sufficiently alleged that
Decedent was a “member of a crew of a vessel.”137 As stated supra, the “heavy” burden is on the
removing party to show that “there is no possibility that plaintiff would be able to establish a cause
of action,”138 and C&C Fishery has not shown that FECA precludes Plaintiff’s Jones Act claim if
the Court determines at this stage that Plaintiff has sufficiently alleged that Decedent was a
“member of a crew of a vessel.” Accordingly, the Court will proceed to consider whether C&C
Fishery has met its burden of showing that Decedent was not “a member of a crew of a vessel,”
i.e. a Jones Act seaman,139 such that Plaintiff’s Jones Act claim was “fraudulently pleaded.”
2.

Whether Plaintiff is a “Seaman” Pursuant to the Jones Act

Plaintiff asserts that she brought this cause of action in state court pursuant to the Jones
Act and that Decedent was a Jones Act seaman, and thus Defendants were precluded from
removing this action to federal court.140 Plaintiff argues that C&C Fishery has not met its high
burden of proving that Decedent was not a Jones Act seaman as defined by the Supreme Court in
Chandris v. Latsis.141 In her motion to remand, Plaintiff asserts that the only evidence attached to

137

The Court notes that C&C Fishery addresses this exclusionary provision in its reply memorandum in
support of its motion for summary judgment. Rec. Doc. 23 at 2–3. However, C&C Fishery merely avers that the
exclusionary provision to FECA does not apply because Decedent does not qualify as a “member of a crew of a
vessel.” Id. Thus, the Court will proceed to address the parties’ arguments regarding whether C&C Fishery has met
its burden of showing that Decedent does not qualify as a Jones Act seaman.
138

Lackey, 990 F.2d at 207; see also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999);
B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981) (“The burden of persuasion placed upon those who
cry ‘fraudulent joinder’ is indeed a heavy one.”).
See Sw. Marine, Inc. v. Gizoni, 502 U.S. 81, 86–87, (1991) (noting that the term “member of a crew of
any vessel,” is “a phrase that is a ‘refinement’ of the term ‘seaman’ in the Jones Act.”).
139

140

Rec. Doc. 10-1 at 1–2.

141

Id. at 4 (citing Chandris v. Latsis, 515 U.S. 347, 368 (1995)).

22

the Notice of Removal in support of Defendants’ arguments that Decedent was not a Jones Act
seaman is the Declaration of Shawn Sutherland, the Human Resources Director of Riverside.142
However, Plaintiff contends that Sutherland does not have personal knowledge as to what duties
Decedent performed while aboard the MORNING STAR, and that Sutherland admits that
Decedent at least provided “observer services” on the vessel.143 In response, C&C Fishery argues
that Decedent was only aboard the MORNING STAR as a fishery observer to conduct scientific
research pursuant to a federal government contract.144 C&C Fishery alleges that observers like
Decedent do not participate in the fishing operations of a vessel in any capacity, and thus Plaintiff’s
Jones Act claim was fraudulently pleaded.145
The Jones Act provides a cause of action and remedy for “seaman injured in the course of
employment.”146 The Jones Act expressly incorporates the general provisions of the Federal
Employees Liability Act (“FELA”).147 FELA cases filed in state court may not be removed to
federal district courts.148 Thus, the Fifth Circuit has held that it is “axiomatic that Jones Act suits
may not be removed from state court.”149 Accordingly, to defeat Plaintiff’s motion to remand,
C&C Fishery must meet its “heavy” burden of demonstrating that Plaintiff’s Jones Act claim was

142

Id. at 5.

143

Id.

144

Rec. Doc. 14 at 1.

145

Id. at 3–4.

146

46 U.S.C. § 30104; see Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995).

147

46 U.S.C. § 30104.

148

28 U.S.C. § 1445(a).

149

Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993).

23

fraudulently pleaded,150 i.e that “there is no possibility that plaintiff would be able to establish a
cause of action.”151 All disputed questions of fact and ambiguities in law must be resolved in favor
of Plaintiff.152
The Jones Act does not define the term “seaman.”153 However, in Chandris, Inc. v. Latsis,
the Supreme Court articulated a two part test to determine if a maritime employee qualifies as a
“seaman” under the Jones Act.154 Pursuant to the Chandris test, to qualify as a Jones Act seaman:
(1) “[t]he worker’s duties must contribute to the function of the vessel or to the accomplishment
of its mission;” and (2) “the worker must have a connection to a vessel in navigation (or an
identifiable group of vessels) that is substantial in terms of both its duration and its nature.”155 The
Supreme Court also noted approvingly in Chandris that the Fifth Circuit “seems to have identified
an appropriate rule of thumb for the ordinary case: 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.”156

Lackey, 990 F.2d at 207 (“Defendants must prove that the allegations of the complaint were fraudulently
made, and any doubts should be resolved in favor of the plaintiff . . . defendants’ burden of persuasion is a heavy
one . . . .”); Sanders v. Cambrian Consultants (CC) Am., Inc., 132 F. Supp. 3d 853, 855 (S.D. Tex. 2015).
150

151

Lackey, 990 F.2d at 207; see also Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir.
1999); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981) (“The burden of persuasion placed upon
those who cry ‘fraudulent joinder’ is indeed a heavy one.”).
152
Lackey, 990 F.2d at 207; Hufnagel, 182 F.3d at 345; Miller Brewing Co., 663 F.2d at 549 (“The burden
of persuasion placed upon those who cry ‘fraudulent joinder’ is indeed a heavy one.”).
153

See Chandris, 515 U.S. at 354.

154

Id.

155

Id. at 376.

Id. at 371. See also Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 F. App’x 93, 95 (5th Cir.
2009) (“The Supreme Court adopted this court's general 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.’”).
156

24

Furthermore, the Supreme Court has held that the determination of whether a worker
qualifies as a “seaman” is a mixed question of law and fact. 157 “The inquiry into seaman status is
of necessity fact specific; it will depend on the nature of the vessel and the employee’s precise
relation to it.”158 Thus, “[i]f reasonable persons, applying the proper legal standard, could differ as
to whether the employee was a ‘member of a crew,’ it is a question for the jury.”159 The Supreme
Court has instructed that “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” to qualify as a Jones Act seaman, rather than “a land-based employee who
happens to be working on the vessel at a given time.”160 Moreover, the Supreme Court has noted
that the seaman status inquiry should focus on the maritime worker’s current assignment, rather
than the “overall course of a worker’s service with a particular employer.”161 For example, “[i]f a
maritime employee receives a new work assignment in which his essential duties are changed, he
is entitled to have the assessment of the substantiality of his vessel-related work made on the basis
of his activities in his new position.”162 The Fifth Circuit has recognized that changes in a worker’s
basic assignment can constitute an exception to its “thirty percent requirement.”163

157

Chandris, 515 U.S. at 369.

158

Wilander, 498 U.S. at 356.

159

Id. (quoting McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 355 (1991)).

160

Id. at 369–70.

161

Id. at 371–72.

162

Id. at 372.

163

Zertuche, 306 F. App’x at 95.

25

In Lackey v. Atlantic Richfield Company, the Fifth Circuit considered whether a district
court had erred in denying a motion to remand based on a finding that the plaintiffs had
fraudulently pleaded a Jones Act claim in their complaint filed in state court.164 In Lackey, the
decedent was hired as an inspector to work on a barge that was contracted out to other corporate
defendants, and the plaintiffs brought a Jones Act claim in state court alleging that defendants
constituted the decedent’s employer.165 The Fifth Circuit noted that the plaintiffs’ complaint “sets
forth that: (i) [decedent] was a seaman; (ii) [decedent] was injured in the course and scope of his
employment in violation of the Jones Act; and (iii) [decedent] was a borrowed servant of the
defendants.”166 The Fifth Circuit concluded that “[t]hese allegations suffice to state a Jones Act
claim.”167 The Fifth Circuit further determined that, while the defendants attacked the plaintiffs’
Jones Act claim by providing affidavits showing that the decedent was employed by another entity,
the Fifth Circuit held that it was not persuaded “that defendants’ affidavits establish beyond dispute
that no borrowed servant employment relationship existed.”168 According to the Fifth Circuit, the
plaintiffs were not required to produce evidence proving that the decedent was a borrowed servant
to defeat removal, and that the defendants had the burden of demonstrating that the plaintiffs’

164

990 F.2d 202, 207 (5th Cir. 1993).

165

Id. at 204.

166

Id. at 207.

167

Id.

168

Id. (emphasis added).

26

allegations “were undisputedly false.”169 Therefore, the Fifth Circuit held that remand was
proper.170
Here, Plaintiff, the mother of Decedent, filed a “Seaman’s Original Petition for Damages”
in Louisiana state court.171 Plaintiff’s Petition alleges that “[f]or all times pertinent, Decedent was
a seaman pursuant to the Jones Act” and that Plaintiff “brings this cause of action pursuant to the
Jones Act (46 U.S.C. § 30104) and under the general maritime law.”172 Plaintiff further contends
in her Petition that “[t]his is a Jones Act case and is not removable pursuant to 28 U.S.C.
§ 1445(a).”173 According to Plaintiff’s Petition, Decedent was aboard a vessel owned and operated
by Defendant C&C Fishery as an employee of Defendant Riverside, and was “acting within the
course and scope of his employment as a seaman in service of the Vessel.”174 Accordingly,
considering the Fifth Circuit’s guidance in Lackey, the Court finds that Plaintiff’s allegations
“suffice to state a Jones Act claim,” as Plaintiff has alleged that: (1) Decedent was a seaman; (2)
Decedent was injured in the course and scope of his employment in violation of the Jones Act; and
(3) Decedent was employed by Defendant Riverside while working “in service of” Defendant
C&C Fishery’s vessel.175

169

Id. at 208.

170

Id.

171

Rec. Doc. 1-1.

172

Id. at 1–2.

173

Id. at 2.

174

Id. at 1–2.

175

Lackey, 990 F.2d at 207; Rec. Doc. 1-1 at 1–2.

27

However, C&C Fishery argues that Plaintiff’s Jones Act claim was fraudulently pleaded,
as it alleges Decedent was not a Jones Act seaman while aboard the MORNING STAR.176 In
support of its argument that Plaintiff’s Jones Act claim was fraudulently pleaded, C&C Fishery
points to two Declarations: (1) the Declaration of Shawn Sutherland, the Human Resources
Director for Riverside, Decedent’s employer;

177

and (2) the Declaration of Tom Huynh, the

Captain of the MORNING STAR.178 In Sutherland’s Declaration, he states that he is familiar with
Decedent’s work and his employment with Riverside.179 Sutherland contends that Riverside does
not own any vessels and did not own or operate the MORNING STAR. 180 Sutherland avers that
Riverside is a federal government contractor that was working pursuant to a contract with
NOAA/NMFS in March 2016 at the time that Decedent fell ill.181
According to Sutherland, Riverside’s contract with NOAA/NMFS provides for, in relevant
part, the provision of fishery observers like Decedent on certain vessels.182 Sutherland alleges that
these fishery observers “do not participate in navigation of fishing vessels or in fishing operations,
do not serve as deckhands aboard the fishing vessels, do not stand regular watches aboard the
fishing vessels, and do not have any financial interest in the performance of the fishing vessels.”183

176

See Rec. Doc. 1 at 4–5.

177

See Rec. Doc. 1 at 45; Rec. Doc. 1-2; Rec. Doc. 14-3.

178

See Rec. Docs. 14-1, 14-2.

179

Rec. Doc. 1-2 at 1.

180

Id.

181

Id. at 2.

182

Id.

183

Id.

28

Rather, Sutherland asserts that Riverside’s “fishery observer guidelines instruct that fishery
observers are guests aboard the fishing vessels.”184 Sutherland goes on to note that Decedent was
hired as a fishery observer in 2013 and promoted in 2015, and that, as a “Fishery Observer III,” he
received direction from the NOAA Fisheries Lab in Miami, Florida.185 According to Sutherland,
the NOAA Fisheries Lab trains the observers, “sets the requirements, protocols, and procedures
for the position,” determines which vessels will be observed, and receives the collected data.186
Sutherland further states that fishery observers like Decedent were tasked with collecting catch
data for conservation and management purposes as directed by NOAA/NMFS, which typically
included data on the fish caught and their location, environmental information, biological samples,
fishery violations, and marine pollution violations.187
Sutherland contends that Decedent was directed to provide fishery observer services on
multiple vessels pursuant to Riverside’s contract with NOAA/NMFS, including aboard: (1) the
REBEL QUEEN out of Panama City, Florida, in May 2015; (2) the CHRISTOPHER JOE out of
Fort Pierce, Florida, in July 2015; (3) the CAPT BOB out of Sea Isle City, New Jersey, in
December 2015; (4) the MR FINN out of Wanchese, North Carolina, in December 2015; (5) the
JOSHUA NICOLE out of Fort Pierce, Florida, in January 2016; (6) the SEA QUEEN III out of
Dulac, Louisiana, in February 2016; and (7) the MORNING STAR out of Dulac, Louisiana, in
March 2016.188 Sutherland further avers that during this time period Decedent also “performed

184

Id.

185

Id.

186

Id. at 2–3.

187

Id. at 3.

188

Id.

29

work for the Pelagic Observer Program” in Miami, Florida, and weighed fish during offloading in
Newfoundland, Canada.189
In her motion to remand, Plaintiff points out that Sutherland only acts as the Human
Resources Director at Riverside “and, presumably, spent little if any time aboard the vessel with
Decedent.”190 Thus, Plaintiff argues that Sutherland cannot have personal knowledge of the actual
duties that were performed or were to be performed by Decedent while aboard the vessel, and
therefore cannot establish C&C Fishery’s high burden of showing that Plaintiff was not a Jones
Act seaman pursuant to the Chandris test.191
The Court also notes that C&C Fishery attached the Declaration of Tom Huynh, the captain
of the MORNING STAR, to its opposition to Plaintiff’s motion to remand.192 In his Declaration,
Huynh avers that C&C Fishery has no contract with Riverside and is the sole owner of the
MORNING STAR.193 Huynh contends that Decedent was onboard the vessel as a fisheries
observer to record and collect fishery data for the federal government.194 Huynh also asserts that
during Decedent’s time aboard the MORNING STAR from March 13, 2016, to March 16, 2016,
Decedent “did not perform any fishing operations, did not participate in any navigational activities,
did not serve as a deckhand, did not stand watch, and did not participate in housekeeping or

189

Id.

190

Rec. Doc. 10-1 at 5.

191

Id.

192

Rec. Docs. 14-1, 14-2.

193

Rec. Doc. 14-1 at 1.

194

Id.

30

cooking.”195 Finally, Hunyh contends that C&C Fishery had no contact with anyone from
Riverside while Decedent was onboard the MORNING STAR.196
Based on the foregoing and resolving all disputed questions of fact and ambiguities in law
in favor of Plaintiff,197 the Court finds that C&C Fishery has not met its “heavy” burden of showing
that Plaintiff’s Jones Act claim was fraudulently pleaded. In particular, the Court finds that the two
Declarations provided are insufficient to establish “beyond dispute” that “there is no possibility
that plaintiff would be able to establish a cause of action” under the Jones Act.198
As stated supra, to determine if Decedent qualifies as a Jones Act seaman, the Court must
consider whether: (1) Decedent’s duties contributed to the function of the vessel or to the
accomplishment of its mission; and (2) if Decedent had a connection to a vessel in navigation (or
an identifiable group of vessels) that is substantial in terms of both its duration and its nature.199
Here, the Court first notes that Sutherland, an employee of Riverside, states that it was the NOAA
Fisheries Lab, and not Riverside or C&C Fishery, that assigned Decedent to certain vessels and
crews and determined the training and responsibilities of Decedent.200 In fact, in Riverside’s
“Statement of Undisputed Facts,” which was attached to Plaintiff’s motion to remand, Riverside
admits that it had no contact or communications with Decedent or C&C Fishery once Decedent

195

Id. at 2.

196

Id.

See Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345–46 (5th Cir. 1999) (“The court may deny
remand where, but only where, 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.”).
197

198

Lackey, 990 F.2d at 207; B., Inc., 663 F.2d at 545.

199

Chandris, 515 U.S. at 376.

200

Rec. Doc. 1-2 at 2–3.

31

boarded the MORNING STAR.201 Additionally, as Plaintiff points out, Sutherland’s Declaration
does not provide any information as to what Plaintiff’s specific duties and responsibilities were
going to be while aboard the MORNING STAR, and it does not show what contributions Decedent
may or may not have made to the function of the vessel or its mission.202 Indeed, Plaintiff also
points out that Sutherland conceded that Decedent at least “was directed to provide observer
services” while aboard the MORNING STAR.203
Moreover, the Declaration of Tom Huynh only purports to show that Decedent did not
engage in certain activities while aboard the MORNING STAR from March 13 to March 16, 2016,
such as navigating, serving as a deckhand, cooking, or standing watch. 204 However, Plaintiff has
alleged that, “[s]hortly after embarking, Decedent became extremely ill, and was unable to move
from his bunk and could only communicate in gurgles and grunts.”205 Plaintiff further alleges that
the captain of the vessel, Tom Hunyh, first noticed these symptoms “as early as late afternoon
March 13, 2016.”206 Thus, the fact that Hunyh points out that Decedent did not engage in certain
activities from March 13, 2016, to March 16, 2016, during the same time period that Decedent
allegedly was extremely ill and could not leave his bunk, does not foreclose a finding that Decedent
could qualify as a Jones Act seaman. This is particularly true here, where Decedent cannot himself
provide information regarding his activities and the facts of Decedent’s status and responsibilities

201

See Rec. Doc. 10-2 at 4.

202

Rec. Doc. 10-1 at 5.

203

Id.

204

Rec. Doc. 14-1.

205

Rec. Doc. 1-1 at 3.

206

Id.

32

on multiple voyages are disputed or not yet fully developed.207 Accordingly, the Court finds that
C&C Fishery has not established “beyond dispute” that Decedent’s duties did not contribute to the
function of the vessel or to the accomplishment of its mission, i.e. the first prong of the Chandris
test.208
Furthermore, both Declarations fail to show that Decedent did not have a substantial
connection to a vessel in navigation or “an identifiable group of vessels,” i.e. the second prong of
the Chandris test.209 Indeed, Sutherland’s Declaration instead shows that Decedent’s employment
with Riverside required him to spend significant time on vessels, as Sutherland states that Decedent
joined at least seven voyages over a ten month period in the course of his employment with
Riverside.210 Additionally, Sutherland’s Declaration fails to establish what percentage of
Decedent’s time and job responsibilities are spent on and off vessels, how much time Decedent
spent on each vessel as Riverside’s employee, and what duties Decedent had on each vessel.
Sutherland’s Declaration also fails to show how long Decedent was to stay with the MORNING
STAR in particular or what duties he had while aboard the vessel.211
As the Fifth Circuit has instructed, courts must consider a maritime worker’s “total
employment” with his employer to determine whether he satisfies “the general 30-percent rule” of

207
See, e.g., Lockhart ex rel. Lockhart v. Applied Coating Servs., Inc., No. 05-1630, 2005 WL 1574208, at
*4 (E.D. La. June 24, 2005) (Vance, J.) (noting that the facts regarding the decedent’s status remain to be developed,
“particularly considering that Lockhart is deceased and cannot himself provide information or an affidavit regarding
his activities”).
208

Chandris, 515 U.S. at 376.

209

Id.

210

Rec. Doc. 1-2.

211

Id.

33

thumb in the Fifth Circuit to qualify as a Jones Act seaman, i.e. whether the worker spends less
than 30% of his time in the service of a vessel in navigation.212 Here, however, C&C Fishery has
not submitted sufficient evidence for this Court to find that Plaintiff spent less than 30% of his
time in service of a vessel during his employment with Riverside or what percentage of his time
was to be spent aboard the MORNING STAR.213 As noted supra, the Court is required to resolve
all disputed questions of fact in favor of Plaintiff. For example, in Waller v. American Seafoods
Company, then-District Court Judge Clement found that, while the defendant’s evidence
established that the plaintiff “generally worked as a land-based pipefitter,” the plaintiff’s
assignment to a 20-day voyage “could be enough to render him a seaman.”214 Thus, the Waller
court found that the defendant had not met its “heavy” burden of showing the plaintiff’s Jones Act
claim was fraudulently pleaded such that there was “no possibility” that the plaintiff would be able
to establish the requisite connection to a vessel to be a Jones Act seaman. 215 Likewise here, C&C
Fishery’s evidence fails to show that Decedent’s connections to a vessel or an identifiable group
of vessels were so insubstantial in terms of both duration and nature that it is “beyond dispute”
that Decedent is not a Jones Act seaman under the Chandris test.
As previously noted, the determination of whether a maritime worker qualifies as a Jones
Act seaman is a mixed question of law and fact typically reserved for the factfinder, and the Court

212

Zertuche, 306 F. App’x at 96. See also Chandris, 515 U.S. at 371.

Cf. Skinner v. Schlumberger Tech. Corp., 655 F. App’x 188, 192 (5th Cir. 2016) (noting that the evidence
showed that the plaintiff did not spend 30% of his time in service of a single vessel or a fleet of vessels, and thus the
district court did not err in denying the plaintiff’s motion to remand).
213

214

Waller v. Am. Seafoods Co., No. 94-3940, 1995 WL 83993, at *1 (E.D. La. Feb. 23, 1995) (Clement, J.).

215

Id.

34

must take into consideration the “total circumstances of an individual’s employment.”216 Here, the
Court finds that the two Declarations, the only evidence presented by Defendants, are insufficient
to establish beyond dispute that Plaintiff’s Jones Act claim was fraudulently pleaded. Additionally,
neither Defendant has submitted any other evidence upon which the Court could conclude
Plaintiff’s Jones Act claim was fraudulently pleaded, such as Decedent’s employment records, the
NOAA Fisheries Lab’s instructions to Decedent regarding his duties and responsibilities while
aboard vessels, or information as to Decedent’s duties and responsibilities throughout his
employment with Riverside during each of his seven voyages.217
C&C Fishery cites to several non-binding cases in support of its argument that Plaintiff’s
Jones Act claim was fraudulently pleaded.218 For example, C&C Fishery cites to O’Boyle v. United
States, where the Eleventh Circuit determined that a biologist was not a “seaman” for purposes of
the Jones Act.219 However, that case is clearly distinguishable, as the court was considering
whether the plaintiff had alleged sufficient facts in support of a Jones Act claim to survive a Rule
12(b)(6) motion to dismiss,220 rather than whether the claim was fraudulently pleaded, i.e. whether
there was no possibility that plaintiff would be able to establish a cause of action under the Jones

216

Chandris, 515 U.S. at 369.

See, e.g., Zertuche, 306 F. App’x at 97 (noting that the district court erred in finding that a Jones Act claim
was fraudulently pleaded and remand was not proper, as the defendant had not submitted any employment records to
refute the plaintiff’s claim that he spent 50% of his time working as a deckhand).
217

218

Rec. Doc. 14 at 3–5 (citing Sanders v. Cambrian Consultants (CC) America, Inc., 132 F. Supp. 3d 853,
855 (S.D. Tex. 2015); Mason v. Alaska Observers, Inc., 2003 WL 23181008 (W.D. Wash Aug. 29, 2003); Bank of
America N.A. v. Pacific Lady, 2001 WL 33389208 (W.D. Wash Nov. 22, 2000); O’Boyle v. United States, 993 F.2d
211 (11th Cir. 1993)).
219

993 F.2d 211 (11th Cir. 1993).

220

Id. at 213–14.

35

Act.221 As the Fifth Circuit has noted in the similar context of fraudulent joinder cases, although
the fraudulent joinder doctrine and Rule 12(b)(6) standards “appear similar,” the scope of the
inquiry is different and the “burden of persuasion on those who claim fraudulent joinder is a heavy
one.”222
Moreover, the “seaman” inquiry is a fact-intensive one, and C&C Fishery has not shown
that the O’Boyle district court decided the Rule 12(b)(6) motion on materially similar facts as the
Court must consider here. In other words, C&C Fishery has not shown that Decedent here and the
plaintiff in O’Boyle shared similar duties, contributions to the vessel, and connections to vessels
in navigation such that the result under the Chandris test would be the same. Indeed, the O’Boyle
court noted several facts that weighed against a finding that the plaintiff was a Jones Act seaman
that are inapplicable here, such as the fact that the plaintiff had been hired as a “special project
employee” to travel with a Japanese vessel pursuant to an international treaty and that the Englishspeaking plaintiff and the Japanese-speaking crew of the vessel could not even communicate with
one another.223
C&C Fishery’s citations to other non-binding district court decisions are equally
unpersuasive for similar reasons. For example, C&C Fishery points to Sanders v. Cambrian
Consultants (CC) America, Inc., where a court in the Southern District of Texas found that a
“marine mammal observer” who was statutorily required to be on the defendant’s vessel while it
was conducting seismic surveys was not a Jones Act seaman, and thus removal of the case to

221

Lackey, 990 F.2d at 207; B., Inc., 663 F.2d at 545.

222

Travis v. Irby, 326 F.3d 644, 649 (5th Cir. 2003).

223

O’Boyle, 993 F.2d at 213.

36

federal court was proper.224 However, as the Court noted supra, the “seaman” inquiry is a factintensive one, and C&C Fishery has not shown that Decedent here and the plaintiff in Sanders
shared similar duties, contributions to the vessel, and connections to vessels in navigation such
that the Chandris test result would be the same. For example, here, Defendants’ own evidence
establishes that Decedent spent significant time with vessels in navigation over ten months while
employed by Defendant Riverside, while the Sanders plaintiff only appeared to point to one
voyage as her connection “to a vessel in navigation (or an identifiable group of vessels).”225
Furthermore, the Sanders court expressly relied on the Eleventh Circuit opinion in O’Boyle
distinguished supra, as well as several non-binding district court cases that dismissed Jones Act
claims at the summary judgment stage where the plaintiffs also had a burden of producing some
evidence in support of their Jones Act claims.226
In other words, C&C Fishery has failed to point to any statutory authority or binding case
law that clearly establishes that Decedent was not a seaman pursuant to the Jones Act such that it
would be “beyond dispute” that “there is no possibility that plaintiff would be able to establish a
cause of action” under the Jones Act.227 By contrast, Plaintiff points to a more analogous case from
a court in the Eastern District of Louisiana, Kattelman v. Otis Engineering Corporation.228 In
Kattelman, the defendant argued that removal of a wireline worker’s Jones Act case was proper

224

132 F. Supp. 3d 853, 855 (S.D. Tex. 2015).

225

Chandris, 515 U.S. at 376.

Sanders, 132 F. Supp. 3d 853, 855 (citing O’Boyle, 993 F.2d at 213; Belcher v. Sundad, Inc., No. 07-346,
2008 WL 2937258, at *1 (D. Or. July 18, 2008); Chauvin v. Furgo-Geoteam SA, No. 06-2290, 2007 WL 2265233, at
*1 (E.D. La. Aug. 1, 2007) (Porteous, J.)).
226

227

Lackey, 990 F.2d at 207; B., Inc., 663 F.2d at 545.

228

701 F. Supp. 560, 566 (E.D. La. 1988) (Feldman, J.).

37

by pointing to two Fifth Circuit cases upholding district courts’ decisions on motions for summary
judgment that found that wireline workers were not Jones Act seaman.229 However, the Kattelman
court determined that the defendants had mischaracterized the law applicable to motions to remand
based on allegedly fraudulent pleadings of Jones Act claims: “Although wireline operators often
are not accorded the safe harbor of the Jones Act, the Fifth Circuit has never articulated a per se
rule that persons performing wireline functions are not Jones Act seamen.”230 Moreover, the
Kattelman court noted that the two Fifth Circuit cases turned on a specific fact-based analysis of
each plaintiff and their relationship to the vessels, rather than a broadly applicable rule holding
that all wireline workers are not Jones Act seaman.231
Here, considering the foregoing, the Court finds that C&C Fishery has not met its high
burden of showing that Plaintiff’s Jones Act claim was fraudulently pleaded.232 Congress has
determined that plaintiffs pursuing claims under the Jones Act are entitled to try their case in state
court without removal to federal court, and, absent clear proof of fraudulent pleadings, “the
plaintiff is entitled to litigate his claim, whatever its ultimate merit, in state court.”233 Thus, the
Court concludes that remand of the above-captioned matter pursuant to 28 U.S.C. § 1447(c) is
proper,234 and therefore grants Plaintiff’s motion to remand.

229
Id. (citing Ardleigh v. Schlumberger Limited, 832 F.2d 933 (5th Cir.1987); Langston v. Scheumberger
Offshore Services, Inc., 809 F.2d 1192 (5th Cir.1987)).
230

Id.

231

Id. at 566–67.

232
See, e.g., Lockhart ex rel. Lockhart v. Applied Coating Servs., Inc., No. 05-1630, 2005 WL 1574208, at
*2 (E.D. La. June 24, 2005) (Vance, J.) (finding that the defendant had not satisfied its heavy burden of showing that
the plaintiff was not a Jones Act seaman, and thus remanding the case to state court).
233

See Lonthier v. Nw. Ins. Co., 599 F. Supp. 963, 965 (W.D. La. 1985).

234

See Meeks v. Swift Transp., Inc., 398 F. App’x 980, 982 (5th Cir. 2010) (noting that remands based on

38

IV. Conclusion
Based on the foregoing, the Court finds that C&C Fishery has not met its burden in
showing that Plaintiff’s Jones Act claim is fraudulently pleaded. C&C Fishery’s evidence is
insufficient to establish “beyond dispute” that “there is no possibility that plaintiff would be able
to establish a cause of action” under the Jones Act.235 Moreover, C&C Fishery has not pointed to
any statutory authority or case law that clearly shows that Decedent could not qualify as a seaman
pursuant to the Jones Act. By contrast, Plaintiff’s Petition alleges that Decedent was a Jones Act
seaman, and thus removal was not proper pursuant to 46 U.S.C. § 30104.236 The Court concludes
that remand of the above-captioned matter pursuant to 28 U.S.C. § 1447(c) is proper, and therefore
grants Plaintiff’s motion to remand. Accordingly,
IT IS HEREBY ORDERED that Plaintiff Martha Sheldon’s “Motion to Remand”237 is
GRANTED and therefore the case is remanded to the Civil District Court for the Parish of Orleans,
State of Louisiana.
NEW ORLEANS, LOUISIANA, this 18th day of July, 2017.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

statutory restrictions against removals are proper under Section 1447(c)).
235

Lackey, 990 F.2d at 207; B., Inc., 663 F.2d at 545.

236

See Lackey, 990 F.2d at 207.

237

Rec. Doc. 10.

39