DeHart v. B P America Production Co et al

Filing 69

MEMORANDUM RULING denying 15 Motion to Remand. Signed by Magistrate Judge C Michael Hill on 1/14/10. (crt,Roaix, G)

UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF LOUISIANA J O H N PAUL DEHART, JR. VS. B P AMERICA, INC., ET AL. : : : D O C K E T NO. 09 CV 0626 J U D G E DOHERTY M A G I S T R A T E JUDGE HILL

M E M O R A N D U M RULING P e n d in g before the undersigned is the plaintiff's Motion to Remand this suit to the C iv il District Court for the Parish of Orleans. [rec. doc. 15]. The defendants have filed O p p o s itio n , to which plaintiff filed a Reply. [rec. docs. 66 and 67]. Oral argument was h e a rd on July 23, 2009. For the following reasons, the Motion to Remand is DENIED. BACKGROUND P la in tif f , John Paul DeHart, Jr., filed this purported class action lawsuit, on Ja n u a ry 23, 2009, in the Civil District Court for the Parish of Orleans on behalf of himself a n d allegedly similarly situated people, claiming personal injury as a result of exposure to a irb o rn e radiation dust/t-norms, between February 15, 2007 and April 30, 2007, while e n g a g e d in a platform decommissioning project. The platform was located at South T im b a lie r Block 160, located on the Outer Continental Shelf, offshore Louisiana. The p la tf o rm was a fixed platform, permanently attached to the seabed, erected for the p u rp o se of oil and gas exploration, production and development.

A time-chartered liftboat, the L/B DIXIE PATRIOT, which was supporting the p la tf o rm decommissioning, was jacked-up adjacent to the platform. Plaintiff and other w o rke rs engaged in the decommissioning ate meals and slept aboard the L/B DIXIE P A T R IO T while the work was being performed on the platform to decommission it. There were also two supply boats assisting in the operation. Plaintiff, a Louisiana domiciliary1 , asserts a class action, and expressly identifies c a u s e s of action for negligence of the defendants "under the Jones Act, general maritime la w , the applicable Louisiana law and alternatively, for negligence under 33 U.S.C. § 905(b)" 2 , unseaworthiness of the L/B DIXIE/PATRIOT, and for maintenance and cure. [ re c . doc. 1-1, ¶ 8-12]. Plaintiff names BP America Production Company (BP), an a lle g e d foreign corporation, Production Management Industries (PMI), LLC, Crown O ilf ie ld Services, Inc. (Crown), Brand Scaffold Builders, LLC (Brand), an alleged f o re ig n corporation, Cenergy Corporation of Delaware, an alleged foreign corporation, P o w e r Marine, LLC (Power), El Mar Consulting, LLC (El Mar) and Eagle Consulting, L L C (Eagle) as defendants. [Id. at ¶ 2]. In paragraph 4 of his original state court Petition for Damages, plaintiff alleges th a t he was "a rigger hired by Crown . . . assigned as a seaman and a member of the crew o f the L/B DIXIE PATRIOT." He further alleges in paragraph 5 that "BP was a Jones Act

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rec. doc. 1-1 at Preamble. I d . at ¶ 10.

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e m p lo ye r of petitioner . . . and was also the charterer, and/or controller of the L/B Dixie P a trio t, of the two supply vessels and the work areas whereupon petitioner . . . sustained in ju ry" and that "Crown, his paycheck employer, was also his Jones Act employer." W ith respect to his claim under the Jones Act, plaintiff alleges seaman status in p a r a g r a p h 7 as follows: F r o m the date of his employment throughout his service as a seaman on the L/B DIXIE PATRIOT, petitioner was employed by Crown in the service of B P , whose offshore properties were being decommissioned by the use of th e L/B DIXIE PATRIOT. While offshore and involved in the business of B P , Crown, and of the vessel engaged in offshore marine construction, he liv e d and worked on the L/B DIXIE PATRIOT. At the time of the accident a n d exposure set forth hereinabove, petitioner was working offshore and liv in g on the L/B DIXIE PATRIOT to which he was assigned for the d u ra tio n of the decommissioning of the BP platform. Accordingly, p e titio n e r, in his capacity as a construction worker assigned to the L/B D IX IE PATRIOT, was a seaman and a member of the crew of L/B DIXIE P A T R IO T to which he was assigned in order to assist in the performance of th e offshore maritime construction work performed for and by BP by the o th e r named defendants. Further, petitioner's then and prior employment in th e service of BP was on a fleet of vessels under the common control of BP a n d was substantial in nature and duration. F u r th e r, in paragraph 5 of the Petition, with respect to control and supervision of th e work being performed, plaintiff alleges that "all named defendants had representatives p re se n t or should have been present, who were assisting and/or should have been assisting in controlling the work and work environment where petitioner and the other members of th e class suffered injury or who notified them of the hazards involved with the handling o f material contaminated with radiation." Moreover, in paragraph 8, plaintiff alleges that th e L/B/ DIXIE PATRIOT was "owned and operated by Power but chartered and 3

s u p e rv is e d by BP and on which PMI performed radiation services . . . ." C o n trary to the allegations contained in his petition, in his deposition, DeHart te stif ie d that while employed as a rigger for Crown, between December 2005 and D e c e m b e r 2007, he worked for at least eleven different companies including BP, B u rlin g to n , Meritec, Petrohawk, Nexen, NCX, Stone Energy, Arena, Mariner Energy and N e w f ie ld . He further testified that all of this offshore work was performed on fixed p la tf o rm s , not on any vessels. Indeed, he testified that the he never even worked a lo n g s id e a liftboat before the BP project at issue in this case and that the sole liftboat u p o n which he slept was the L/B DIXIE PATRIOT. Finally, he confirmed that his sole c o n n e ctio n to any vessel was as a passenger on supply boats which transported him from p la tf o rm to platform. L ik e w is e , with respect to the BP project at issue in this case, DeHart testified that 9 9 % of the decommissioning work that he performed was performed while DeHart was p h ys ic a lly on the platform, and not while he was on the L/B DIXIE PATRIOT. He f u rth e r specifically testified that he was not involved in cutting anything while on the L/B D IX IE PATRIOT as has been suggested by counsel. Indeed, DeHart admitted that his u s e of the L/B DIXIE PATRIOT was limited to eating meals and sleeping aboard. T h is testimony is consistent with the affidavit testimony of Chet Lambert, Health S af ety & Environmental Coordinator for Crown. Lambert confirmed that DeHart's work f o r Crown as a rigger in February, March and April of 2007 was performed onshore in

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C r o w n ' s shop, and offshore on fixed platforms for various customers, not on any vessels. Ind ee d , during the entirety of his employment with Crown, 99% of the work DeHart p e rf o rm e d was while he was on land at Crown's shop, and offshore on fixed platforms for v ariou s customers, not on any vessels. Moreover, Lambert agreed with DeHart's te stim o n y that 99% of DeHart's work for BP on the South Timbalier project was p e rf o rm e d while DeHart was physically on the platform, not while DeHart was on the L /B DIXIE PATRIOT or on any other supply boat or vessel. T h e proposed class is defined as: [ A ]ll persons working on the L/B DIXIE PATRIOT or supply boats w o rk in g in conjunction with the L/B DIXIE PATRIOT to dismantle the BP P la tf o r m during the period from approximately February 15, 2007 to at least A p r il 30, 2007 and who were exposed to airborne radiation dust/t-norms. T h e proposed Class is further subdivided as follows: a . Jones Act Seamen working on the L/B DIXIE PATRIOT or the supply b o a ts working in conjunction with the L/B DIXIE PATRIOT on the project to dismantle the BP Platform; [and] b . Maritime workers working on the project to dismantle the BP Platform. [Id. at ¶ 3]. W ith respect to the propriety of permitting this case to proceed as a class action, p la in tif f alleges that the class is so numerous that joinder of all members is impracticable, a n d that while plaintiff does not know the exact number of class members, he believes the n u m b e r of members is "no more than one hundred and thirty members, including e m p lo ye e s of Power, the vessel operator, owner's representatives and supervisors, and 5

e m p lo ye e s , inter alia, of Crown, PMI, Brand, Cenergy, Power, El Mar and Eagle, as well a s members of the crew of the two supply boats." [Id. at ¶ 16]. W ith respect to his claims, which plaintiff alleges are typical of the claims of the c la ss as a whole, plaintiff alleges that he became seriously ill, and afflicted with serious a n d permanent neurological, psychological, and pathological conditions, as a result of the m o v e m e n t, improper storage, cutting and removal of radioactive liquids, flow lines and o th e r contaminated equipment on, and from, the deck of the L/B DIXIE PATRIOT and a d ja c e n t work areas. [Id. at ¶ 6 and 18]. Plaintiff further alleges that he and each of the purported class members "have s u s ta in e d physical, mental and/or emotional injuries, fright, inconvenience, and other in ju rie s associated with the exposure to airborne radiation dust/t-norms, in special d a m a g e s in the particulars set forth hereinafter, and in general damages in an amount d e e m e d just in the premises, all plus interest from judicial demand until paid and all costs . . . ." [Id. at ¶ 1]. Plaintiff also alleges that he and each other purported class member " su f f ere d a significant exposure to proven hazardous substances" and that as a result each h a v e "a significantly increased risk of contracting a serious latent disease or diseases . . ." re q u irin g medical monitoring. [Id. at ¶ 6]. Damages sought include those for past, present and future physical and mental p a in and suffering, past present and future medical expenses including rehabilitation c o sts , doctor, hospital and pharmaceutical bills, costs for laboratory and physical

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e x a m in a tio n s and diagnostic studies, past present and future loss of wages and fringe b e n e f its , permanent disability and the cost of medical monitoring. [Id. at ¶ 13]. On February 20, 2009, the defendants removed this action to the United States D is tric t Court for the Eastern District of Louisiana, alleging jurisdiction under the Outer C o n tin e n ta l Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, et seq., and/or the Class A c tio n Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). The defendants further a lle g e d that plaintiff had failed to state any claim for relief or right of recovery under the Jo n es Act, unseaworthiness under the general maritime law or for maintenance and cure b ec au se plaintiff fails to qualify as a seaman, and that these causes of action are a "mere s h a m and pretext for the fraudulent purpose of preventing removal." [rec. doc. 1, ¶ 7 and 8 ]. On April 16, 2009, this case was transferred to this Court. [rec. docs. 26 and 27]. W h ile still pending before the Eastern District, on March 12, 2009, plaintiff filed th e instant Motion to Remand. Plaintiff asserts that this suit was improperly removed b e c au s e plaintiff, DeHart, is a Jones Act seaman, whose Jones Act action is nonre m o v a b le under 28 U.S.C. § 1445(a), because there is no OCSLA jurisdiction and b e c au s e there is no jurisdiction under CAFA. Plaintiff additionally seeks attorney's fees a n d costs for improper removal pursuant to 28 U.S.C. § 1447(c) and Rule 11, FRCP.3 [ re c . doc. 15].

The Motion was supported by the unsigned declaration of plaintiff, John Paul DeHart, Jr. Plaintiff's s u b s e q u e n t Motion for Leave to Substitute the signed declaration was withdrawn by counsel. [See rec. docs. 55 and 5 9 ].

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T h e defendants opposed remand on several grounds, including, that by reason of h is sworn deposition testimony, DeHart is not a Jones Act seaman, and that it is facially a p p a re n t from plaintiff's state court Petition that jurisdiction under CAFA exists and p lain tiff has failed to carry his burden establishing that any exception to CAFA applies to d iv e st this court of jurisdiction. W ith respect to seaman status, in his Reply memorandum, plaintiff argues that a lth o u g h his paycheck employer, Crown, did not own operate any liftboats, it utilized "an a m p h ib io u s flotilla". . . "to ply its trade of maritime construction", presumably including B P -c h a rte re d liftboats such as the L/B DIXIE PATRIOT. During oral argument, p la in tif f 's counsel acknowledged that BP did not control the navigation of the liftboat (th e L/B DIXIE PATRIOT). LAW AND ANALYSIS S ta n d a r d on Removal of alleged fraudulently pleaded Jones Act Claims A s a general rule, Jones Act cases are not removable. Preston v. Grant A d v e rtis in g , Inc., 375 F.2d 439 (5th Cir.1967); Johnson v. ODECO Oil & Gas Company, 8 6 4 F.2d 40, 42 (5th Cir.1989); 28 U.S.C. § 1445(a). However, the Fifth Circuit has re c o g n iz e d that in certain circumstances "defendants may pierce the pleadings to show th a t the Jones Act claim has been fraudulently pleaded to prevent removal." Burchett v. C a r g ill, Inc., 48 F.3d 173, 175-176 (5 th Cir. 1995) citing Lackey v. Atlantic Richfield Co., 9 9 0 F.2d 202, 207 (5th Cir.1993). Thus, while the Fifth Circuit has cautioned against

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p re -tryin g a case to determine removal jurisdiction, the Fifth Circuit nevertheless has re c o g n ize d the district court's authority to use a summary judgment-like procedure to d e te rm in e whether a plaintiff has fraudulently pleaded a Jones Act claim. Id. at 176. The burden of persuasion on a removing party in such a case is a heavy one: "The re m o v in g party must show that there is no possibility that plaintiff would be able to e sta b lis h a cause of action." Id. at 176. Accordingly, "in determining whether a plaintiff's c la im s are baseless, the district court must resolve all disputed questions of fact and any a m b ig u itie s in the current controlling substantive law in favor of the plaintiff." Id. (citatio n s omitted). A denial of remand is permissible where the district court " d e te rm in e [ s] that as a matter of law there was no reasonable basis for predicting that the p la in tif f might establish liability." Id. F r o m the record before this court, for the reasons set forth below, the undersigned f in d s that, as a matter of law, there is no possibility that plaintiff, John Paul DeHart, Jr., c a n be found to be Jones Act seaman. Therefore, remand on this basis must be denied. Seaman Status T o determine if an individual worker is a seaman, and therefore entitled to the p ro tec tio n s of the Jones Act, the Supreme Court has established a two-prong test. First, " a n employee's duties must contribute to the function of the vessel or to the a c co m p lis h m e n t of its mission." Becker v. Tidewater, Inc., 335 F.3d 376, 387 (5 th Cir. 2 0 0 3 ) quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 368, 115 S.Ct. 2172, 132 L.Ed.2d

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3 1 4 (1995). Second, "a seaman must have a connection to a vessel in navigation (or to an id e n tif ia b le group of such vessels) that is substantial in terms of both duration and n a tu re ." Id. The Supreme Court has emphasized that the "substantial connection" test is c o n ju n c tiv e and therefore the purported seaman must have a connection to a vessel or f le e t of vessels that is substantial in both duration (the temporal prong) and nature (the f u n c tio n a l prong). Roberts v. Cardinal Servs. Inc., 266 F.3d 368, 374 (5th Cir.2001) c itin g Chandris, 515 U.S. at 371. In this case, DeHart alleges in his Petition that he was assigned to the L/B DIXIE P A T R IO T as a seaman, in order to assist in the performance of the offshore maritime c o n stru c tio n work performed for and by BP. Assuming without deciding that the L/B D IX IE PATRIOT is a vessel in navigation, the question is thus whether plaintiff's c o n n e ctio n to the L/B DIXIE PATRIOT is substantial in both duration and nature, th e re b y providing coverage under the Jones Act. W ith respect to the nature of the work necessary to satisfy the "substantial c o n n e ctio n " requirement for crew-member status, the Fifth Circuit has found that either p e rm a n e n t assignment to a vessel, or the performance of a substantial portion of the e m p lo ye e 's work performed on the vessel, is sufficient. Barrett v. Chevron, USA, Inc., 7 8 1 F.2d 1067, 1073-1074 (5 th Cir. 1986). The latter requires a showing that "[the c la im a n t] performed a significant part of his work aboard the vessel with at least some d e g re e of regularity and continuity." Id. at 1074.

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T h e Fifth Circuit has quantified the duration of time necessary to satisfy the " s u b s ta n t ia l connection" requirement by using a 30 percent rule of thumb. "[A]s a g e n e ra l rule, [a worker] must show [substantial duration] by demonstrating that 30 p e rc e n t or more of his time is spent in service of that vessel." Roberts, 266 F.3d at 375. The Supreme Court endorsed this thirty-percent rule in Chandris noting that a "worker w h o spends less than about 30 percent of his time in the service of a vessel in navigation s h o u ld not qualify as a seaman under the Jones Act." Chandris, 515 U.S. at 371. See a ls o Nunez v. B&B Dredging, Inc., 288 F.3d 271, 277 (5th Cir.2002) (reaffirming the 3 0 -p e rc e n t rule, holding that because the plaintiff spent only approximately 10 percent of h i s work time aboard a vessel in navigation, he did not qualify for seaman status as a m atter of law). In itia lly, the undersigned notes that it is undisputed that the L/B DIXIE PATRIOT w a s not owned or operated by either of DeHart's alleged Jones Act employers, Crown or B P . Furthermore, it is clear from DeHart's deposition testimony and the affidavit of Chet L a m b e r t, that DeHart did not perform 30% of his work during the BP South Timbalier p ro je c t on the L/B DIXIE PATRIOT. To the contrary, DeHart candidly admitted that 9 9 % of his work on this project was performed while he was physically on the platform, n o t while he was on the L/B DIXIE PATRIOT, and that his sole connection to the L/B D IX IE PATRIOT was for the purpose of eating meals and sleeping.

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W h ile counsel asserted that the declaration of Larry Meyers (submitted in c o n n e ctio n with his related case but not submitted in connection with the instant Motion) d e m o n s tr a te s the contrary, counsel acknowledged during oral argument that Meyers' d e c la ra tio n fails to say anything about the work performed by DeHart. Based on the re c o rd before this court, it is therefore clear that there is no possibility that plaintiff, John P a u l DeHart, Jr., may be deemed a Jones Act seaman as a result of his alleged connection to the L/B DIXIE PATRIOT. He lacks the "permanent-attachment" aspect necessary for c re w member status. See Barrett, 781 F.2d at 1074. DeHart also alleges in his Petition that his "then and prior employment in the s e rv ic e of BP was on a fleet of vessels under the common control of BP and was s u b s ta n tia l in nature and duration." However, DeHart's above cited deposition testimony a n d the testimony of Chet Lambert belie this allegation. Furthermore, DeHart admitted th a t while employed as a rigger for Crown, he worked for at least eleven different c o m p a n ies , only one of which was BP. He further candidly admitted that all of his o f f sh o re work was performed on platforms, not vessels. This testimony is confirmed by th e affidavit testimony of Lambert who testified that DeHart's work for Crown was p e rf o rm e d on land in Crown's shop and offshore, for various customers, on fixed p la tf o rm s . In accordance with the reasoning of St. Romain v. Industrial Fabrication and R e p a ir Service, Inc., 203 F.3d 376 (5 th Cir. 2000), DeHart's service on projects for eleven d if f ere n t companies, on different platforms and support vessels, does not qualify as

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s e rv ic e on a fleet of vessels subject to common control and ownership. T o avoid this result, plaintiff's counsel argues that the Crown time sheets provided in discovery reveal that 26.84% of DeHart's total employment with Crown was on BP p ro je c ts , and, presumably, on vessels under the common control and ownership of BP. However, there is no competent evidence before this court demonstrating that DeHart s p e n t this time performing work on any vessel, much less any fleet of vessels, owned, o p e ra te d , controlled or charted by BP, as opposed to merely performing work on a fixed p la tf o rm . Furthermore, even if there was competent evidence that DeHart worked on an id e n tifia b le fleet of BP controlled vessels, as plaintiff's counsel contends, the 30% rule " d o e s not change when an `identifiable group' of vessels in navigation is at issue . . . ." R o b e rts , 266 F.3d at 375. While plaintiff's counsel suggested that more discovery might reveal additional w o rk performed by DeHart for BP sufficient to reach the 30% threshold, given the lack of c o m p e te n t evidence that DeHart performed work on, or was assigned to duty on, any BP c o n tro lle d vessel or fleet of vessels, and DeHart's testimony negating any such su g g estio n , the court is not persuaded by this argument. Furthermore, discovery reg ard ing remand issues has been ongoing since May, 2009 and plaintiff has therefore h a d more than sufficient time to discover favorable supporting evidence to present to this c o u rt.

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M o reo v er, while there is a narrow exception to the 30% rule for those workers w h o are engaged in "classical seaman's work", DeHart does not fall within this exception a s his work, as a rigger, cannot be classified as "classical seaman's work." To the c o n tra ry, DeHart practices "an art developed in land work and transposed to a maritime s e ttin g " for which Jones Act coverage is unavailable. Roberts, 266 F.3d at 377-378. Finally, the court finds the cases cited by plaintiff in support of his position, J e n k i n s v. Aries Marine Corp., 554 F.Supp.2d 635 (E.D. La. 2008)4 and Parker v. Jackup B o a t Service, LLC, 542 F.Supp.2d 481(E.D. La. 2008)5 , are factually distinguishable. In b o th cases, there was no question that the alleged Jones Act seaman worked on vessels in n a v ig a b le waters. The sole issue presented in those cases was whether the plaintiff had s p e n t at least 30% of his time working on vessels owned and operated by the same c o m p a n y. Here, there is no competent evidence before this court that DeHart ever p e rf o rm e d worked on, or was assigned to duty on, any vessel or fleet of vessels owned or o p e ra te d by any particular company. DeHart's work was admittedly performed on land

In Jenkins, the plaintiff could not demonstrate the requisite connection to the vessel (or the predecessor v e ss e l owned by the same company) on which he was injured. However, the record evidence established that J e n k i n s spent 87% of his total work time for his employer, Royal Eagle, while assigned to "vessels on navigable w a te rs , while subject to the perils of sea", of which time, 61% was on "four vessels under common ownership or c o n t r o l of Tidewater M a r i n e . " Thus, although he was employed as a rigger, Jenkins was assigned to perform his w o r k over 30% of the time on vessels in navigable waters. The court rejected the defendant's argument that the p la in tiff's employer had to be the owner of the group of vessels that makes up the 30% threshold. I n Parker, the plaintiff, a steward, could not demonstrate the requisite connection to the vessel on which he w a s injured. However, because the record evidence established that Parker worked approximately half of his time w h i le employed by Trinity Catering, Inc., aboard two construction barges owned and operated by Cross Marine, he w a s deemed a seaman. In so finding, the court noted that the plaintiff's employer need not be the owner of the group o f vessels that makes up the 30% threshold
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a n d on fixed platforms, which are not vessels for purposes of the Jones Act. See Becker, 3 3 5 F.3d at 391 citing Demette v. Falcon Drilling Co., 280 F.3d 492 (5th Cir.2002). In sum, the undersigned finds that, as a matter of law, there is no possibility that p la in tif f , John Paul DeHart,Jr., may be deemed a Jones Act seaman. He lacks the r e q u is ite connection to a vessel in navigation, or to an identifiable group of such vessels, th a t is substantial in terms of both duration and nature. Therefore, remand on this basis m u s t be denied. C A F A Jurisdiction A lth o u g h removal is not barred under the Jones Act, this court must nevertheless p o s s e ss jurisdiction over this action. For the reasons which follow, the undersigned finds th a t this action was properly removed under this court's CAFA jurisdiction, codified at 28 U.S.C. § 1332(d). C o n g r e s s enacted CAFA to encourage federal jurisdiction over interstate class a c tio n lawsuits of national interest. Preston v. Tenet Healthsystem Memorial Medical C e n te r, Inc., 485 F.3d 793, 797 (5 th Cir. 2007) (Preston I). CAFA contains a basic ju ris d ic tio n a l test which requires a removing defendant to prove minimal diversity and an a g g re g a te d amount in controversy of $5,000,000 or more.6 Id., citing 28 U.S.C. § 1332(d). M in im a l diversity is satisfied when one plaintiff is diverse from one defendant. Exxon

CAFA abrogates the rule against aggregating claims to reach the jurisdictional minimum for federal court j u r i s d i c t i o n . Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 571, 125 S.Ct. 2611, 2627-2628 (2005); 2 8 U.S.C. § 1332(d)(6).

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M o b il Corp. v. Allapattah Services, Inc., 545 U.S. 546, 125 S.Ct. 2611, fn. 12 (2005). The putative class must also consist of at least 100 class members. 28 U.S.C. § 1332(d)(5)(B).7 Under CAFA, a single defendant may remove a class action that meets th e s e three requirements, even over the objections of other defendants. Jenkins v. BOH B r o s . Const. Co., LLC, 2009 WL 3346953 (E.D. La. 2009) citing 28 U.S.C. § 1453(b)8 . T h e removing defendant's burden may be satisfied on the basis of the allegations in the plaintiff's Petition where it is "facially apparent" that CAFA jurisdiction exists. See Frazier v. Pioneer Americas, LLC, 455 F.3d 542, 545 (5 th Cir. 2006) citing Allen v. R & H Oil & Gas Co., 63 F.3d 1326, 1335 (5 th Cir. 1995) (in discussing proof necessary to e s ta b l is h the amount in controversy for cases removed from Louisiana and Texas courts, w h o s e rules prohibit claims for specific damage amounts, approving removal of cases w h ere the amount in controversy is facially apparent); Phillips v. Severn Trent E n v ir o n m e n ta l Services, Inc., 2007 WL 2757131, *2 (E.D. La. 2007) (noting the size of th e putative class, and the litany of categories of serious damages and the seriousness of th e potential injuries alleged, the court held that the removing defendant met its burden to p rov e by a preponderance that the putative class members' claims exceeded $5,000,000);
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The undersigned notes that several district courts have held that the 100 member class provision is not a r e q u i r e m e n t of CAFA jurisdiction, but rather, is an exception to CAFA jurisdiction, which must be established by the p a r t y opposing removal, not the removing party. See Garcia v. Boyar & Miller, PC, 2007 W L 1556961, *4 (N.D. T e x . 2007) citing Frazier, 455 F.3d at 546; Broquet v. Microsoft Corp., 2008 W L 2965074, *1 (S.D. Tex. 2008) c itin g Frazier, supra. However, as is discussed below, it is clear in this case that the purported class consists of over 1 0 0 members, no matter who bears the burden of proof. 28 U.S.C. 1453(b) provides that "A class action may be removed to a district court of the United States in a c c o r d a n c e with section 1446 . . . without regard to whether any defendant is a citizen of the State in which the a c t i o n is brought, except that such action may be removed by any defendant without the consent of all defendants."
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R o b in s o n v. Cheetah Transportation, 2006 WL 468820, *2 (W.D. La. 2006) (finding f ro m the allegations in the state court Petition that all requirements for exercise of CAFA ju ris d ic tio n were satisfied). See also Simon v. WalMart Stores, 193 F.3d 848, 850 (5 th C ir. 1999) citing Luckett v. Delta Airlines, Inc., 171 F.3d 295 (5 th Cir. 1999) (A removing d e f en d a n t must prove the amount in controversy satisfies this court's jurisdictional m in im u m by either (1) demonstrating that it is facially apparent that the claims are likely a b o v e the jurisdictional minimum, or (2) setting forth the specific facts in controversy that su p p o rt a finding of the jurisdictional amount). T h e basis for federal jurisdiction under CAFA is established at the time of re m o v a l, and "subsequent events generally cannot `oust' the federal court of jurisdiction." S e e Braud v. Transp. Serv. Co., 445 F.3d 801, 808 (5th Cir. 2006); Brinston v. Koppers In d u s tr ie s, Inc., 538 F.Supp.2d 969, 975 (W.D. Tex. 2008). See also Gebbia v. Wal-Mart S to r e s, Inc., 233 F.3d 880, 883 (5th Cir. 2000) (jurisdictional facts that support removal m u s t be judged at the time of the removal). Here, it is facially apparent that CAFA jurisdiction exists over this purported class a c tio n lawsuit. Plaintiff DeHart, a Louisiana domiciliary, is undisputably diverse from d e f e n d a n t s, BP, Brand and Cenergy, all of whom are alleged to be foreign corporations. T h u s , minimal diversity is present. DeHart further alleges in his Petition that the class could be as large as 130 m e m b e r s . While DeHart asserts that the defendants should be judicially estopped from

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relying on the allegations set forth in plaintiff's Petition, given their allegedly contrary p o s itio n taken in the Myers case, judicial estoppel does not apply in this separate suit. "The doctrine of judicial estoppel prevents a party from asserting a position in a legal p ro c e ed in g that is contrary to a position previously taken in the same or some earlier p ro c e e d in g ." Ergo Science, Inc. v. Martin, 73 F.3d 595, 598 (5 th Cir. 1996). There has b e e n no contrary representation by the defendants in this case, nor has there been any e a rlie r proceeding in this case. Furthermore, if the doctrine was applicable, the doctrine w o u ld likewise preclude plaintiff from arguing the opposite position, contrary to the p o s itio n taken by plaintiff on behalf of the plaintiff's class in the Myers case. Finally, during oral argument, plaintiff's counsel acknowledged that his class w o u ld consist of about 118 people, well over the 100 person threshold. Given that several d istric t courts have held that the 100 member class provision (§ 1332(d)(5)(B)) is not a re q u ire m e n t of CAFA jurisdiction, but rather, is an exception to CAFA jurisdiction, w h ich must be established by the party opposing removal, not the removing party, this c o n c e s s io n terminates any controversy over the size of the putative class. See Garcia v. B o y a r & Miller, PC, 2007 WL 1556961, *4 (N.D. Tex. 2007) citing Frazier, 455 F.3d at 5 4 6 ; Broquet v. Microsoft Corp., 2008 WL 2965074, *1 (S.D. Tex. 2008) citing Frazier, supra. Lastly, it is facially apparent that the amount in controversy exceeds $5,000,000.00 b ase d on the nature of the damages sought and the size of the purported class. More

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s p e c if ic a lly, the Petition contains sufficient specificity and substance to support a finding th a t the jurisdictional amount is, more likely than not, satisfied. DeHart's individual c la im for damages resulting from alleged exposure to radiation, causing an alleged p e rm a n e n t neurological, psychological and pathological condition, appears substantial. Further, DeHart and the other class members seek damages for severe and possibly d isa b lin g physical, mental and emotional injuries associated with alleged exposure to a irb o rn e radiation exposure, including damages for diagnostic studies and future medical m o n ito rin g . Under the circumstances, the undersigned finds that, even a minimal award to e a ch of the 118 potential plaintiffs acknowledged by plaintiff's counsel, and as suggested b y the defendants, more likely than not satisfies this court's jurisdictional minimum in the a g g re g a te . See Frazier, 455 F.3d at 545 (finding the CAFA jurisdictional minimum f a c ia lly apparent based on the nature of the alleged injuries and damages sought by class m em b ers). C A F A Exceptions T h e district court can decline CAFA jurisdiction under three provisions: (1) the " h o m e state exception", § 1332(d)(4)(B); (2) the "local controversy" exception, § 1 3 3 2 (d )( 4 )( A ); and (3) discretionary jurisdiction, § 1332(d)(3). Preston I, 485 F.3d at 797. T h e party moving to remand the class action to state court must prove that the C A F A exceptions to federal jurisdiction divest the district court of subject matter

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ju ris d ic tio n . Id., citing Serrano v. 180 Connect, Inc., 478 F.3d 1018, 1024 (9th Cir.2007) a n d Frazier v. Pioneer Ams. LLC, 455 F.3d 542, 546 (5th Cir.2006). In this case, DeHart contends that both the "local controversy" and "home state" e x c ep tio n s are applicable. For the reasons which follow, the undersigned finds that n e ith e r exception is applicable, and that this court, therefore, may not decline federal ju ri s d ic tio n . Local Controversy Exception " C o n g re ss crafted CAFA to exclude only a narrow category of truly localized c o n tro v e rs ie s. . . ." Preston v. Tenet Health Systems, 485 F.3d 804, 812 (5 th Cir. 2007) (P resto n II). Pursuant to the "local controversy" exception, the district court "shall d e c lin e to exercise jurisdiction" when the action meets the following four criteria: (1) m o re than two-thirds of the members of the proposed plaintiff class are citizens of the S ta te in which the action was originally filed (Louisiana); (2) the plaintiffs sued at least o n e defendant (a) from whom they seek significant relief, (b) whose conduct forms a s ig n if ic a n t basis for their claims, and (c) who is a citizen of the State in which the action w a s originally filed (Louisiana); (3) the principal injuries resulting from the alleged c o n d u c t, or any related conduct, of each defendant happened in the State in which the a c tio n was originally filed (Louisiana); and (4) during the past three years, no other class a c tio n has been filed against any of the defendants asserting the same or similar factual a lleg a tio n s, on behalf of the same or other persons. § 1332(d)(4)(A). All four elements

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m u s t be satisfied for the "local controversy" exception to apply. Caruso v. Allstate In s u r a n c e Company, 469 F.Supp.2d 364, 371 (E.D. La. 2007) It has been recognized that the Legislative history indicates that any doubts as to th e applicability of the local controversy exception should be "resolved `in favor of ex erc isin g jurisdiction over the case.' " Aburto v. Midland Credit Management, Inc., 2009 W L 2252518, *5 (N.D. Tex. 2009) citing Escoe v. State Farm Fire and Cas. Co., 2007 W L 1207231, *2 (E.D. La. 2007) quoting Evans, 449 F.3d at 1163. T h e defendants do not dispute the second element of the local controversy test, that th e re is a Louisiana citizen which is a "significant defendant." Indeed, five of the eight n a m e d defendants are allegedly Louisiana companies. Defendants, however, contend that p la in tif f 's proposed class action does not meet the first, third and fourth elements.. T h e party moving for remand must prove the statutory citizenship requirement by a p re p o n d e ra n c e of the evidence.9 Preston I, 485 F.3d at 797 citing Welsh v. Am. Surety Co. o f N.Y., 186 F.2d 16, 17 (5th Cir. 1951). Moreover, citizenship, for purposes of proving a n exception to CAFA, must be shown on the date the complaint was filed. Preston I, 485 F .3 d at 798 citing 28 U.S.C. § 1332(d)(7) ("Citizenship of the members of the proposed

"In determining diversity jurisdiction, the state where someone establishes his domicile serves a dual fu n c tio n as his state of citizenship." Preston I, 485 F.3d at 797 citing Stine v. Moore, 213 F.2d 446, 448 (5th C ir .1 9 5 4 ) . Residence alone is not the equivalent of domicile. Preston II, 485 F.3d at 815 citing Mas v. Perry, 489 F . 2 d 1396, 1399 (5th Cir.1974). Evidence of a person's place of residence, however, is prima facie proof of his d o m i c i l e . Preston I, 485 F.3d at 799 citing Stine, 213 F.2d at 448). Furthermore, once established, "[a] person's state o f domicile presumptively continues unless rebutted with sufficient evidence of change." Preston I, 485 F.3d 798. In this case, the plaintiff purportedly presents citizenship information received from the defendants which was p r e s u m a b l y derived from residential addresses. In the absence of any evidence that any purported plaintiff's c i t iz e n s h i p or residence has changed, the court will not inquire further into the domicile of any particular plaintiff.

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p la in tif f classes shall be determined for purposes of paragraphs (2) through (6) as of the d a te of filing of the complaint. . . ."). Thus, DeHart must show that greater than twoth ird s of the putative class members were citizens of Louisiana on January 23, 2009, the f ilin g date of this purported class action lawsuit. H e re , the sole proof of citizenship presented by plaintiff is a document entitled " C itiz e n sh ip of the POBS Taken from Information Provided by Defendants." [rec. doc. 1 5 -4 ]. The document was attached to plaintiff's original Motion to Remand. Following th e defendant's objection to the document as unsubstantiated and inaccurate, plaintiff su b m itted the Unsworn Declaration of paralegal Michelle LaMark, wherein LaMark s ta te s that she compiled the document from POB (Persons on Board) documents for the L /B DIXIE PATRIOT for March and April 2007 and the defendants' discovery re sp o n s e s, and that the compilation was "true and correct to the best of [her] information, k n o w led g e and belief." [rec. doc. 67-8]. The document lists 111 people who purportedly w o rk e d on the L/B DIXIE PATRIOT. Of these, plaintiff lists 44 as Louisiana citizens, 2 T e x a s citizens, 3 Mississippi citizens, 2 possible citizens of Louisiana, and 1 possible c itiz e n of Texas or Louisiana. The remaining 59 persons have no citizenship identified. At the hearing on the instant Motion, plaintiff's counsel offered another c o m p ilatio n . This compilation differs from the original as follows. The document lists o n ly 109 persons (Joseph Glen Johnson and Fred Cart are not listed). Of those previously lis te d as Louisiana citizens, 9 are listed as citizens of Florida, Alabama, Texas,

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M is s is s ip p i and/or Missouri (Jim Ritter, James Carter, Larry Palmer, Leshon Hood, W illiam Mark Gunn, Don Taylor, Lyman Greg Wood, James Perry, Steve Sadich), while o th e rs are deemed Louisiana citizens (Rene Madere, Mike Brown), for a total number of 3 5 Louisiana citizens (and one listed as a possible Louisiana or Texas citizen). Of the 109 p e rs o n s , 60 have no citizenship identified. This revised compilation was not offered into evidence or attached as an exhibit to the Motion or plaintiff's Reply. However, plaintiff's counsel argued that this court s h o u ld rely on the percentage of Louisiana citizens presented in this compilation (72.9%) a n d requested that the court use this data to extrapolate the citizenship of those persons w h o s e citizenship had not yet been discovered. T h e defendants contested the plaintiff's compilation as inaccurate. Given the c o n f lic tin g documents, that argument is persuasive. However, this court need not reach th e issue because, even accepting plaintiff's compilations, it appears that plaintiff has not satisfied his burden of demonstrating that two-thirds of the entire plaintiff's class were L o u is ia n a citizens on the date the instant suit was filed, January 23, 2009. To the c o n tra ry, the majority of the persons listed in plaintiff's original and supplemental d o c u m e n ts have no citizenship identified. Plaintiff argues that of the potential plaintiffs w h o se citizenship he has discovered, 72.9 percent are Louisiana citizens. However, it ap p ea rs that plaintiff has failed to provide this court with sufficient evidence for this court to reasonably conclude that of the total number of purported plaintiffs, be it 130 alleged in

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th e Petition, 118 as estimated by plaintiff's counsel during oral argument, 111 listed in the o r ig i n a l compilation, or 109 in the supplemental compilation, that two-thirds of those p e rs o n s are Louisiana citizens, much less that they were, or remained, Louisiana citizens o n January 23, 2009, the date this suit was filed. At best, plaintiff has shown that slightly more than one third and less than half (35 o f 109, or 44 of 111) of the purported plaintiff class were Louisiana citizens at the time th e y were aboard the L/B DIXIE PATRIOT in March and April 2007. Furthermore, u n lik e the Bennett case cited by plaintiff, the class description in plaintiff's Petition p ro v id e s no support from which a reasonable inference of Louisiana citizenship may be m a d e . The class is not described as compromised of Louisiana residents, but rather c o n sis ts of seamen and offshore workers employed by numerous in-state and out-of-state c o m p a n ie s . See Bennett v. Board of Commissioners for East Jefferson Levee District, 2 0 0 7 WL 2571942, *4-5 (E.D. La. 2007) citing Caruso, 469 F.Supp.2d at 367. While the Fifth Circuit has acknowledged that at this threshold stage of the case, the district court need not engage in the arduous task of examining the domicile of every p r o p o s e d class member before ruling on the citizenship requirement, the Court must n e v e rth e les s be presented with competent and reliable evidence from which a credible e s tim a te may be made. Preston II, 485 F.3d at 816; Preston I, 485 F.3d at 802-803. The

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e v id e n c e presented by plaintiff herein is clearly insufficient.10 E v e n if the plaintiff had established the requisite two-thirds citizenship, plaintiff h a s nevertheless failed to demonstrate that the principal injuries resulting from the d e f e n d a n t's alleged conduct occurred in Louisiana. The plaintiffs' alleged injuries did n o t occur within the State of Louisiana. To the contrary, the alleged injuries occurred w h ile the plaintiffs were working on the Outer Continental Shelf, which is defined by the O C S L A as all those submerged lands three or more geographical miles from the United S ta te s coastline, "and of which the subsoil and seabed appertain to the United States and a re subject to its jurisdiction and control." Shell Oil Co. v. Iowa Dept. of Revenue, 488 U .S . 19, 109 S.Ct. 278 (1988) citing 43 U.S.C. § 1331 and § 1301.11 T h e OCSLA further provides that "the subsoil and seabed of the Outer Continental S h e lf appertain to the United States and are subject to its jurisdiction, control, and power o f disposition . . . ." 43 U.S.C. § 1332. It is thus well settled that the OCS is under the

Plaintiff's counsel's suggestion that the defendants are in possession of information bearing on the c i tiz e n s h ip of the putative class is unavailing. Both the Fifth Circuit in Frazier and the Eleventh Circuit in Evans, n o te d that the plaintiffs were better positioned to produce the information necessary to carry the burden of proving t h e exceptions to the CAFA. Frazier, 455 F.3d at 546 ("This result is supported by the reality that plaintiffs are b e t t e r positioned than defendants to carry this burden."); Evans, 449 F.3d at 1164 n. 3 ("Moreover, placing the b u r d e n of proof on the plaintiff in this situation is not only consistent with the statutory design, we believe it places th e burden on the party most capable of bearing it."). Moreover, even if this Court were to assume that plaintiff was n o t in a better position to produce such information, he has had months to conduct discovery and to compel p r o d u c t i o n of this evidence. The OCS includes "all submerged lands lying seaward and outside of the area of lands beneath navigable w a t e r s as defined in section 1301 of this title." 43 U.S.C. §1331. "[L]ands beneath navigable waters" include all s u b m e r g e d lands within three geographical miles of the coastline of the United States. 43 U.S.C. §1301.
11

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e x c l u s iv e jurisdiction and control of the Federal Government.1 2 Accordingly, this case a rise s out of injuries allegedly sustained in an area of exclusive federal jurisdiction, not in L o u is ia n a , as is required to make this case a "local controversy" as contemplated by CA FA . Furthermore, plaintiff's suggestion that the alleged application of Louisiana law in th is case somehow changes the situs of the plaintiff's alleged injuries to Louisiana, is u n a v a ilin g . This is so because although the OCS is subject to the exclusive jurisdiction a n d control of the Federal Government, Congress was also faced with the problem of w h ic h civil and criminal laws should govern activity on OCS sites. Shell Oil, 488 U.S. at 2 7 . The OCSLA therefore provides that Constitution and the laws of the United States a re extended to cover the OCS. Id. at citing 43 U.S.C. § 1333(a)(2)(A). Congress re c o g n iz e d , however, that "because of its interstitial nature, federal law would not provide a sufficiently detailed legal framework to govern life on `the miraculous structures which w ill rise from the sea bed of the [OCS].'" Id., citing Christopher, "The Outer Continental

The background and legislative history of the OCSLA confirm that OCSLA grew out of a dispute, which fir s t developed in the 1930's, between the adjacent States and the Federal Government over territorial jurisdiction a n d ownership of the OCS and, particularly, the right to lease the submerged lands for oil and gas exploration. Shell O i l, 488 U.S. at 26 citing S.Rep. No. 133, 83d Cong., 1st Sess., 21 (1953), U.S. Code Cong. & Admin. News 1953, p . 1385. The adjacent States claimed jurisdiction over the submerged lands and their rich oil, gas, and mineral d e p o s its , and some had even extended their territorial boundaries as far as the outer edge of the OCS. Id. citing S . R e p . No. 133 at 6 and 11. After the United States Supreme Court, in a series of opinions, ruled that the Federal G o v e r n m e n t , and not the adjacent States, had exclusive jurisdiction over the OCS, Congress, in 1953, passed the O C S L A . Id. at 26-27 citing United States v. Louisiana, 339 U.S. 699, 705, 70 S.Ct. 914, 917, 94 L.Ed. 1216 ( 1 9 5 0 ) , United States v. Texas, 339 U.S. 707, 717-718, 70 S.Ct. 918, 923-924, 94 L.Ed. 1221 (1950), and United S t a t e s v. California, 332 U.S. 19, 38-39, 67 S.Ct. 1658, 1668-1669, 91 L.Ed. 1889 (1947).

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S h e lf Lands Act: Key to a New Frontier", 6 Stan.L.Rev. 23, 37 (1953). In resolving this is s u e , the OCSLA provides for the incorporation of the civil and criminal laws of the a d ja c e n t States to act as surrogate federal law. Id. citing 43 U.S.C. § 1333(a)(2)(A).1 3 The a p p lic a b le law in this exclusively federal jurisdiction is therefore federal law. Finally, plaintiff has failed to demonstrate that during the past three years, no other c la ss action has been filed against any of the defendants asserting the same or similar f a ctu a l allegations, on behalf of the same or other persons. § 1332(d)(4)(A)(ii). The in s ta n t action was filed in state court on January 23, 2009. This court's records d e m o n s tr a te that on December 20, 2007 George Larry Myers filed a purported class ac tio n lawsuit, in another state court, on behalf of crew members and offshore workers a b o a rd the L/B DIXIE PATRIOT, covering the same time period alleged in this case, a g a in st BP, PMI Crown and Brand, all of whom are defendants herein. That lawsuit s e e k s recovery of damages for exposure to radiation, asserting similar factual allegations a s those alleged in the present action. That action was removed and remains pending in this court. Myers v. BP America, Inc., et al, 6:08-0168 (W.D. La.). While the undersigned was initially concerned that because Myers and DeHart are m e m b e r s of the same class that their individual actions could be viewed as a single case,

Section 1333(a)(2)(A) provides in pertinent part: "To the extent that they are applicable and not in c o n s is te n t with this subchapter or with other federal laws and regulations of the Secretary now in effect or h e re in a fte r adopted, the civil and criminal laws of each state, now in effect or hereinafter adopted, amended, or r e p e a le d are declared to be the law of the United States for that portion of the subsoil and seabed of the Outer C o n t i n e n t a l Shelf . . . ."

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o n further consideration, the undersigned finds that in light of the express statutory la n g u a g e, and further based on the reasoning of Judge Vance in the Caruso case, this c o n c ern is not valid. The statute expressly prohibits the filing of multiple class actions by d if fe re n t members of the same class. Indeed, one of the reasons Congress passed CAFA w a s to protect defendants from this type of activity, where different class members file s e p a ra te class action lawsuits in varying jurisdictions, by providing a singular federal f o ru m . See S.Rep.NO.109-14 at 4-5 (2005), as reprinted in 2005 U.S.C.C.A.N. 3, 5-6 (n o tin g that "[m]ultiple class action cases purporting to assert the same claims on behalf o f the same people often proceed simultaneously in different state courts, causing judicial in e f fic ie n c ie s and promoting collusive activity" as one of the abuses which CAFA was in te n d e d to address by "creat[ing] efficiencies in the judicial system by allowing o v e rla p p in g and `copycat' cases to be consolidated in a single federal court . . . ."). For th is court to remand this action to state court, despite the fact that the Myers case remains p e n d in g in this court, would thwart that Congressional objective. B e c au s e neither the third nor fourth elements of the local controversy exception a re satisfied, the "local controversy" exception is not applicable and remand on the basis o f that exception is not warranted. Home State Exception P u r s u a n t to the "home state" exception, a district court "shall" decline to exercise its jurisdiction over class actions in which "two-thirds or more of the members of all

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p ro p o s e d plaintiff classes in the aggregate, and the primary defendants are citizens of the S tate in which the action was originally filed." 28 U.S.C.A. § 1332(d)(4)(B) (emphasis a d d e d ). Under this exception, all primary defendants must be citizens of the state in w h ic h the action was originally filed (Louisiana). Raspberry v. Capitol Country Mut. Fire In s . Co., 609 F.Supp.2d 594, 606 (E.D. Tex. 2009) citing Robinson v. Cheetah Transp., 2 0 0 6 WL 3322580 (W.D. La. 2006). As correctly noted by Magistrate Judge Hayes, "this is evident from the statute's use of the phrase "the primary defendants" rather than "a p rim a ry defendant." Robinson, 2006 WL 3322580 at *3 (emphasis in original). The provisions of CAFA do not define the term "primary defendants" and there is v e ry little case law addressing the issue. However, Magistrate Judge Hayes relied on the S e n a te Report on CAFA in reaching what the undersigned agrees is the operative d e f in itio n , stating the following: ". . . the Committee intends that `primary defendants' be interpreted to re a ch those defendants who are the real "targets" of the lawsuit-i.e., the d e f e n d a n ts that would be expected to incur most of the loss if liability is f o u n d . Thus, the term "primary defendants" should include any person who h a s substantial exposure to significant portions of the proposed class in the a c tio n , particularly any defendant that is allegedly liable to the vast majority o f the members of the proposed classes (as opposed to simply a few in d iv id u a l class members)." Robinson, 2006 WL 3322580, *2-3 quoting 3 S.Rep. No. 109-14, at 43-44 (2005). Judge Vance of the Eastern District relied on the dictionary definition, opining that " `p rim a ry' includes `first importance; chief; principal; [and] main'" defendants. Caruso, 4 6 9 F.Supp.2d at 369. Other courts have held that the term "primary defendant" includes 29

a n y defendant against whom direct liability is sought and, therefore, excludes a defendant w h o s e liability is based on vicarious liability, indemnification, or contribution. Robinson, 2 0 0 6 WL 3322580, *3 . (citations omitted). Under any of these definitions, it is clear that BP, an alleged foreign corporation, is a "primary defendant." BP is the alleged owner of the platform which was being d e c o m m is s io n e d , the alleged charterer and supervisor of the L/B DIXIE PATRIOT, the a lle g e d "Jones Act employer of petitioner and many members of the class" and the a lle g e d "controller of the L/B DIXIE PATRIOT, of the two supply vessels, and of the w o rk areas whereupon petitioner and members of the class sustained injury." [rec. doc. 11 , ¶ 3, 5-7]. Indeed, during oral argument, while declining to concede BP is a "primary" d e f e n d a n t, plaintiff's counsel nevertheless conceded that BP is a "principal" defendant in th a t "at the end of the day I expect them to pay us some money." Because BP is a "primary" defendant in this class action lawsuit, the "home state" e x c ep tio n does not apply. Remand on the basis of this exception is therefore not w a rr a n te d . B a s e d on the foregoing, this court has jurisdiction of this action under the Class A c tio n Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). Further, because the p lain tiff has not carried his burden of demonstrating an exception to this Court's ju ris d ic tio n under CAFA, this court therefore may not decline federal jurisdiction. The C o u rt will therefore not reach the alternate ground for jurisdiction alleged by the

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d e f en d a n ts under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1331, e t seq. CONCLUSION B a s e d on the foregoing, the undersigned concludes that, for purposes of remand, the plaintiff, John Paul DeHart, Jr., is not a Jones Act seaman. Hence, there is no bar to re m o v a l of this action under the Jones Act. Moreover, this court has jurisdiction of this a c tio n under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d). Accordingly, the Motion to Remand is DENIED. It is further ordered that plaintiff's r e q u e s t for costs, expenses and attorney's fees is DENIED. S ig n e d , January 14, 2010, at Lafayette, Louisiana.

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