Moreau et al v. Weston Solutions, Inc.

Filing 36

ORDER AND REASONS granting 25 Renewed MOTION to Remand to State. Signed by Judge Martin L.C. Feldman on 7/26/2017. (Attachments: # 1 Remand Letter)(clc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

ALLEN MOREAU, ET AL.

CIVIL ACTION

v.

NO. 17-994

WESTON SOLUTIONS, INC.

SECTION "F"

ORDER AND REASONS
Before the Court is the plaintiffs’ motion to remand. For the
reasons that follow, the motion is GRANTED.
Background
This

litigation

arises

from

personal

injuries

allegedly

suffered as a result of occupational exposure to Pseudomonas
aeruginosa while the plaintiff worked aboard a vessel in the
aftermath of the BP oil spill.
After the BP Deepwater Horizon explosion and resulting oil
spill in April 2010, the United States Environmental Protection
Agency (EPA), contracted with Weston Solutions, Inc. to conduct
scientific testing to analyze the extent of natural resource
injuries and determine the restoration actions needed in the Gulf
of Mexico. Because Weston did not have its own vessel, and lacked
1

knowledge

of

the

local

waterways,

it

contracted

with

Native

Adventures LLC, owned by Allen Moreau, which provided an unnamed
vessel. Moreau alleges that he worked as a crewmember of the
vessel, and operated the vessel for Weston from May 2010 until
December 2010. Moreau alleges that his duties included piloting
and maintaining the vessel.
Moreau first learned that he was infected with the bacteria,
Pseudomonas aeruginosa, on December 15, 2015. Moreau alleges that
he became infected with the bacteria while working for Weston on
the vessel, and that Weston should have known that the bacteria
was present on the vessel.
On December 12, 2016, Allen Moreau and his wife, Tammy, filed
suit

in

this

Court,

alleging

Moreau

contracted

a

bacterial

infection while working for Weston. Moreau alleged he was a Jones
Act seaman, that Weston was negligent in failing to adopt adequate
safety measures to protect him from infection, that the vessel was
unseaworthy, and that he is entitled to maintenance and cure. Mr.
Moreau seeks compensatory and punitive damages. His wife, Tammy,
seeks loss of consortium damages. Two days after filing in this
Court, on December 14, 2016, the plaintiffs filed suit in the Civil
District Court of Orleans Parish, making the same allegations. The
case pending in this Court was voluntarily dismissed a few weeks
later.
2

On February 3, 2017, the defendants removed the case to this
Court. On March 7, 2017, the plaintiffs moved to remand, without
citing a single legal authority; after the case was transferred to
this Court the motion was denied without prejudice. See Order and
Reasons dated 5/5/17. The plaintiffs now move for a second time to
remand this case to Civil District Court in Orleans Parish.

I.
A.
Although

plaintiff

challenges

removal

in

this

case,

the

removing defendants carry the burden of showing the propriety of
this Court's removal jurisdiction. See Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); see also
Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir. 1993).
Remand is proper if at any time the Court lacks subject matter
jurisdiction.

28

U.S.C.

§

1447(c).

Given

the

significant

federalism concerns implicated by removal, the removal statute is
strictly construed “and any doubt about the propriety of removal
must be resolved in favor of remand.”

Gutierrez v. Flores, 543

F.3d 248, 251 (5th Cir. 2008)(citation omitted); Gasch v. Hartford
Accident

&

Indem.

Co.,

491

F.3d

2007)(citations omitted).

3

278,

281-82

(5th

Cir.

B.
Federal courts are courts of limited jurisdiction, possessing
only the authority granted by the United States Constitution and
conferred by the United States Congress.
Co., 243 F.3d 912, 916 (5th Cir. 2001).

Howery v. Allstate Ins.
A defendant may generally

remove a civil action filed in state court if the federal court
has

original

jurisdiction

over

the

case

--

that

is,

if

the

plaintiff could have brought the action in federal court from the
outset.

See 28 U.S.C. § 1441(a).

Suits not brought under federal

law “may not be removed if any of the parties in interest properly
joined and served as defendants is a citizen of the State in which
such action is brought.” 28 U.S.C. § 1441(b)(2); Int’l Energy
Ventures Mgmt., LLC v. United Energy Grp., Ltd., 818 F.3d 193, 199
(5th Cir. 2016)(“when a properly joined defendant is a resident of
the same state as the plaintiff, removal is improper.”).

To

determine whether it has jurisdiction, the Court must consider the
allegations in the state court petition as they existed at the
time of removal. See Manguno v. Prudential Prop. & Cas. Ins. Co.,
276 F.3d 720, 723 (5th Cir. 2002) (citing Cavallini v. State Farm
Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995)).

4

II.
A.
The defendant asserts that this case is removable because Mr.
Moreau fraudulently pleaded his Jones Act claim. It further argues
that this Court has subject matter jurisdiction based on the
federal officer removal statute. The plaintiffs counter that Mr.
Moreau is a Jones Act seaman and that the federal officer removal
statute does not apply to Weston.
It

is

generally

accepted

that

Jones

Act

cases

are

not

removable. Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir.
1995); 46 U.S.C. § 30104 (incorporating general provisions of the
Federal Employers’ Liability Act, including 28 U.S.C. § 1445(a),
which bars removal). However, a fraudulently pleaded Jones Act
claim does not bar removal. Burchett, 48 F.3d at 175.

To determine

whether a Jones Act claim was fraudulently pleaded, the district
court may employ a “summary judgement-like procedure,” but must
avoid

pre-trying

the

case

to

determine

removal

jurisdiction.

Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir.
1999). The defendant’s burden is a heavy one: 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
5

plaintiff

has

no

reasonable

possibility of establishing a Jones Act claim on the merits.” Id.
at 345-46 (citing Burchett, 48 F.3d at 176).
The Supreme Court created a two part test to determine seaman
status. First, “an employee's duties must contribut[e] to the
function of the vessel or to the accomplishment of its mission.”
Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995). Second, a
seaman must have a connection to a vessel in navigation that is
substantial in terms of both its duration and its nature. Id.
An employer-employee relationship is a necessary prerequisite
for recovery under the Jones Act. Spinks v. Chevron Oil Co., 507
F.2d 216, 224 (5th Cir. 1975), overruled on other grounds by,
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir.
1997). A Jones Act employer need not be the owner or operator of
the vessel. Guidry v. S. Louisiana Contractors, Inc., 614 F.2d
447, 452 (5th Cir. 1980). It is possible for a seaman to have more
than one Jones Act employer. Id. A third person who borrows a
worker may be his employer under the borrowed servant doctrine, if
the borrowing employer assumes enough control over the worker. Id.
“The factor of control is perhaps the most universally accepted
standard for establishing an employer-employee relationship.” Ruiz
v. Shell Oil Co., 413 F.2d 310, 312 (5th Cir. 1969).
informing this inquiry include:

6

Other factors

the furnishing by the temporary employer of the
necessary instruments and the place for performance of
the work in question, employment of the servant over
a considerable length of time, the fact that work being
performed is that of the temporary employer, and the
customary right to discharge the servant and the
obligation for payment of his wages.

Id. at 313 (internal citations omitted).

B.
The federal officer removal statute allows for removal of
claims brought in state court against “[t]he United States or any
agency thereof or any officer (or any person acting under that
officer) of the United States or of any agency thereof, in an
official or individual capacity, for or relating to any act under
color of such office.” 28 U.S.C. § 1442(a). The removal statute
also

applies

to

“private

persons

and

corporate

entities

who

lawfully assist the federal officer in the performance of his
official duty.” Savoie v. Huntington Ingalls, Inc., 817 F.3d 457,
461 (5th Cir. 2016)(citations and quotations omitted). To be
covered by the statute, a defendant must show that: (1) it is a
person within the meaning of the statute, (2) it has “a colorable
federal defense,” (3) it “acted pursuant to a federal officer's
directions,” and (4) “a causal nexus exists between [its] actions
under color of federal office and the plaintiff's claims.” Zeringue
7

v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017)(citations omitted).
The defendant bears the burden of proof. Savoie, 817 F.3d at 462.
When applying the federal officer removal statute, the Court does
not resolve any doubts in favor of remand. Id. (Whether the federal
officer removal statute is implicated is reviewed “without a thumb
on the remand side of the scale”).

III.
A.
Weston contends that Mr. Moreau has fraudulently pleaded his
Jones Act claim. 1 The plaintiffs counter that Mr. Moreau has a
reasonable possibility of establishing a Jones Act claim. The Court
agrees.
Weston has not carried its heavy burden to show that Mr.
Moreau “has no reasonable possibility of establishing a Jones Act
claim.” See Hufnagel, 182 F.3d at 345 (citing Burchett, 48 F.3d at

The defendant points out that the plaintiffs originally invoked
this Court’s jurisdiction before filing this lawsuit that was
removed here. The defendant seems to imply that the plaintiffs
should be estopped from arguing that Mr. Moreau’s Jones Act claim
is not removable because the plaintiffs originally filed this Jones
Act lawsuit here. However, one can neither confer nor waive
jurisdiction, Ins. Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982), and defendant offers no legal
authority that persuades the Court that the plaintiffs’
jurisdictional arguments have been waived. To be sure, counsel may
be dissuaded from forum shopping on pain of sanctions.
1

8

176). It is undisputed that Moreau’s duties contributed to the
vessel’s mission of conducting scientific testing, and he had a
connection to a vessel that was substantial in its duration and
nature. See Chandris, 515 U.S. at 368.

More importantly, Mr.

Moreau submits evidence that there is a “reasonable possibility”
that Weston is his Jones Act employer. 2 The most important factor
in determining if an employer-employee relationship exists is the
level of control exerted by Weston over Moreau. Ruiz, 413 F.2d at
312.

Here, Moreau alleges that he worked as a “crewmember” and

his duties included piloting and maintaining the vessel. As Weston
acknowledges, it directed Mr. Moreau to navigate the vessel to
specific coordinates. This is a level of control that goes beyond
“mere suggestion.” Id. at 313. There is no suggestion or evidence
that Moreau had any input in the coordinates or that if Moreau
wished

to

navigate

to

other

coordinates

it

would

have

been

acceptable. Moreau’s duty was to take Weston’s orders-to navigate
to particular coordinates designated by Weston.

As additional

indicia of Weston’s control, Mr. Moreau states in his affidavit

2

It is undisputed that Moreau owns the vessel he alleges he was
injured on; however, the evidence suggests that Moreau was working
for Weston, not himself, at the time of his alleged infection.
9

that Weston instructed him as to how to operate and maintain the
vessel. 3
Applying the additional factors from Ruiz, and resolving all
disputed facts in Moreau’s favor, the record indicates that: Weston
provided fuel, food, lodging, and equipment necessary to perform
the work; there was no understanding or meeting of the minds
between

Native

Adventures

and

Weston

as

to

the

parties’

relationship; Mr. Moreau was employed “over a considerable length
of time” from May 2010 until December 2010; 4 the scientific testing
being conducted was the work of Weston, the temporary employer;
Weston was obligated to pay Moreau for his work on the vessel;
Weston had the power to fire Moreau from his piloting duties.

For

these reasons, Weston has not met its burden in showing there is
“no reasonable possibility” Moreau could establish a Jones Act
claim. See Hufnagel, 182 F.3d at 345 (citing Burchett, 48 F.3d at
176).

3

The Charter Party is unhelpful in deciding who had the
responsibility to maintain and operate the vessel.
4 See Williams v. Arco Oil & Gas, Inc., No. 89-5201, 1990 WL 178722,
at *2 (E.D. La. May 16, 1990) (finding six months was a significant
amount of time).
10

B.
Weston contends that this case is removable under the federal
officer removal statute. The plaintiffs counter that the federal
officer removal statute does not apply to Weston because it has
not shown a causal nexus between its actions under color of federal
office and the plaintiffs’ claims. The Court agrees.
To be covered by the federal officer removal statute, a
defendant must show: (1) that it is a person within the meaning of
the statute, (2) that it has “a colorable federal defense,” (3)
that it “acted pursuant to a federal officer's directions,” and
(4) “that a causal nexus exists between [its] actions under color
of federal office and the plaintiff's claims.”
Co., 846 F.3d 785, 789 (5th Cir. 2017).

Zeringue v. Crane

The only disputed element

is whether there is a causal nexus between Weston’s actions under
color of federal office and the plaintiffs’ claims.
Weston asserts that there is a causal nexus because its
actions were directed and overseen by the federal government,
through the EPA. It asserts that the contract with the EPA provided
the specifications, policies, standards and procedures to be used
during the performance of the contract.
could

not

implement

any

safety

Weston submits that it

procedure

without

the

EPA’s

approval. Thus, it concludes, there is a causal nexus between its
11

actions, controlled and directed by the EPA, and the plaintiffs’
claims. The plaintiffs counter that there is no casual nexus
because Weston was free to adopt the safety measures that would
have prevented Moreau’s injuries. The Court agrees.
Mr. Moreau asserts that he was injured as a result of Weston’s
failure to: (i) warn of the presence of bacteria on the boat, (ii)
properly train him and the rest of the crew to avoid the bacteria,
and (iii) to adopt other preventative procedures, such as providing
protective

clothing.

The

Fifth

Circuit

instructs

that

the

existence of a causal nexus turns on the nature of the particular
claim. See Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 46365 (5th Cir. 2016)(finding causal nexus requirement met for strict
liability claim but not for negligence claims because negligence
claims challenged a discretionary function of defendant while the
strict liability claims, based solely on the use of asbestos,
challenged a government specification over which defendant had no
control).
Here, the parties focus on the plaintiffs’ claims that sound
in negligence. 5 Notably, there is nothing in the record indicating

5

Weston does not mention how the plaintiffs’ unseaworthiness claim
might satisfy the casual nexus requirement, and the Court declines
to advance the argument for Weston. See Bartel v. Alcoa S.S. Co.,
805 F.3d 169, 174 (5th Cir. 2015)(refusing to consider strict
liability-causal nexus argument made for the first time during
oral argument). The Court simply notes that a ship’s seaworthiness
12

that Weston was prevented from adopting the safety measures that
Mr. Moreau claims would have prevented his alleged infection. See
Bartel, 805 F.3d at 174 (Defendants, “at a minimum, were free to
adopt the safety measures the plaintiffs now allege would have
prevented their injuries.”).
The contract between Weston and the EPA states that Weston
“is responsible for the safety of its employees and subcontractor
employees on site.”

Further, it states “the contractor [Weston]

retains the right to employ more stringent health and safety
requirements

for

itself

and

its

subcontractors.”

Although

approval may have been needed, the government contract defeats
defendant’s argument that the EPA prevented Weston from taking the
protective measures that Mr. Moreau alleges might have prevented
his

infection.

Weston

had

discretion

over

health

and

safety

mandates. Savoie, 817 F.3d at 463. Thus, Weston has failed to
persuade the Court that the causal nexus requirement is met. Id.
Accordingly, because Weston failed to carry its heavy burden
to show that the plaintiffs’ Jones Act claim was fraudulently
pleaded, and because Weston failed to show that the federal officer

is a non-delegable duty of the vessel owner, here, it seems, Mr.
Moreau. See Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549
(1960). All the more reason why the Court need not consider issues
not raised by the parties.

13

removal statute is triggered, the plaintiff’s motion to remand is
GRANTED; the case is hereby remanded to Civil District Court for
the Parish of Orleans. 6

New Orleans, Louisiana, July 26, 2017

_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

The Court notes the unresolved tension in the case literature
between non-removability of Jones Act claims and the federal
officer removal statute.
As well as the tension between the
savings to suitors clause and the federal officer removal statute.
However, because the Court finds that the federal office removal
statute is not implicated on this record, the Court need not reach
those issues. Additionally, because the defendant’s invocation of
this Court’s diversity jurisdiction assumed that the plaintiffs’
Jones Act claim was fraudulently pleaded, the Court need not reach
whether this Court would have diversity jurisdiction, or whether
maritime claims are removable when diversity jurisdiction exists.
14
6