Leloff v. Georgia-Pacific Corporation et al
Filing
19
OPINION AND ORDER: I GRANT Mr. Leloff's Motion to Remand to State Court 9 . On the face of his Amended Complaint, Mr. Leloff has properly pleaded a Jones Act claim. Jones Act claims are nonremovable, and, for the purposes of the Motion, Mr. Leloff's non-Jones Act claims are not separate and independent claims for relief. Therefore, I remand all of Mr. Leloff's claims to the Multnomah County Circuit Court. Signed on 6/23/16 by Chief Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
THOMAS D. LELOFF, a seaman,
Plaintiff,
v.
No. 3:16-cv-00539-MO
OPINION AND ORDER
GEORGIA-PACIFIC CONSUMER
PRODUCTS, LTD. (LIMITED
PARTNERSHIP), GEORGIA-PACIFIC,
LLC, and GEORGIA-PACIFIC
CONSUMER PRODUCTS, LP,
Defendants.
MOSMAN, J.,
Plaintiff Thomas D. Leloff filed this action in Multnomah County Circuit Court against
Defendants Georgia-Pacific Consumer Products, Ltd., Georgia-Pacific, LLC, and GeorgiaPacific Consumer Products, LP, under 46 U.S.C. § 30104 (“Jones Act”), 33 U.S.C. § 905(b)
(“Longshore and Harbor Workers’ Compensation Act” or “LHWCA”), and general maritime law
alleging unseaworthiness of a vessel, failure to pay maintenance and cure, and vessel negligence.
Defendants Georgia-Pacific, LLC and Georgia-Pacific Consumer Products, LP (collectively
“Georgia-Pacific”) filed a timely Notice of Removal to this Court relying on diversity
jurisdiction. Mr. Leloff filed a Motion to Remand to the Multnomah County Circuit Court.
The primary question presented in this case is whether Mr. Leloff qualifies as a Jones Act
seaman. A related issue is whether to look beyond the pleadings to make this determination. For
the reasons stated below, I now GRANT the Motion to Remand to State Court [9] and remand all
claims.
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BACKGROUND
In June 2007, Mr. Leloff began working at Georgia-Pacific’s Wauna Tissue Mill (“the
Wauna Mill”). (Decl. of Thomas Leloff [10] at 2.) The Wauna Mill consists of a land-based
wood mill and a boat area for receiving and shipping products. (Id.) Although Mr. Leloff initially
worked on landside assignments, in January 2012, he began work as a deckhand aboard the tug
boat WESTERN STAR. (Id.) Mr. Leloff’s duties as a deckhand included: carrying out orders
from the captain to assist with navigation of the tug, docking and mooring the tug, making the
barges fast up to the tug, maneuvering and mooring barges, transferring barges from ocean-going
tugs to the WESTERN STAR, and changing out lines and cables on the tug. (Id.) Although he
alternated between working at the landside wood mill and on the WESTERN STAR, Mr. Leloff
alleges he spent about fifty percent of his time at the Wauna Mill working on the WESTERN
STAR. (Id. at 4.)
In November 2014, Mr. Leloff began training to work as an employee in the wood mill
while continuing to serve as an alternate deckhand on the WESTERN STAR. (Id. at 3.) On
January 31, 2015, Mr. Leloff’s shift manager asked him to assist on the WESTERN STAR. (Id.)
During that shift, he allegedly suffered neck and shoulder injuries while attempting to tie up a
barge to a mooring structure with a tie-off line that had not been properly stowed. (Id. at 4.) He
subsequently filed this suit on February 12, 2016, and Georgia-Pacific timely removed the case
to this Court on March 29, 2016.
LEGAL STANDARD
A defendant may remove an action filed in state court to federal court if the federal
district courts have original jurisdiction based on diversity of citizenship. 28 U.S.C. § 1441.
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However, “[t]he removal statute is strictly construed, and any doubt about the right of removal
requires resolution in favor of remand.” Moore-Thomas v. Alaska Airlines, Inc., 553 F.3d 1241,
1244 (9th Cir. 2009) (citing Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992)). “The
presumption against removal means that ‘the defendant always has the burden of establishing
that removal is proper.’” Id. (quoting Gaus, 980 F.2d at 566). In assessing whether a plaintiff's
claims were properly removable, the Ninth Circuit looks to the plaintiff's pleadings. Boggs v.
Lewis, 863 F.2d 662, 663-64 (9th Cir. 1988) (citing Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 14
(1950)).
DISCUSSION
Jones Act claims are typically not removable, even in the event of diversity jurisdiction.
Lewis v. Lewis & Clark, 531 U.S. 438, 455 (2001). However, Georgia-Pacific argues that Mr.
Leloff’s Jones Act claim was pleaded improperly to evade removal, and therefore, removal is
appropriate on grounds of diversity jurisdiction. (Def.’s Notice of Removal [1] at 2-3.) GeorgiaPacific relies on a minority rule applied in the Fifth Circuit that allows defendants to “pierce the
pleadings to show that [a] Jones Act claim has been fraudulently pleaded to prevent removal.”
Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993).
Mr. Leloff raises three arguments in his Motion to Remand: (1) Defendants’ Notice of
Removal is defective because only two of the three defendants joined the Notice of Removal and
the third defendant did not consent to such as required by 28 U.S.C. § 1446(b)(2)(A); (2) the
Ninth Circuit requires remand of a Jones Act claim that is proper on the face of the complaint;
and (3) even if I were to apply the Fifth Circuit rule and look beyond the pleadings, Defendants
cannot carry their burden of establishing removal as proper. (Pl.’s Mot. to Remand [9].) I address
each argument below.
3-OPINION AND ORDER
I.
Notice of Removal Defective
Under 28 U.S.C. § 1446(b)(2)(A), “[w]hen a civil action is removed solely under section
1441(a), all defendants who have been properly joined and served must join in or consent to the
removal of the action.” In his Motion to Remand, Mr. Leloff argues Defendants’ Notice of
Removal is defective because the third defendant, Georgia-Pacific Consumer Products, Ltd., did
not join or consent to removal. (Pl.’s Mot. to Remand [9] at 7.)
In its response, Georgia-Pacific argues Georgia-Pacific Consumer Products, Ltd. is a
nonexistent entity and therefore could not have been “properly joined or served” as a prerequisite
to joining or consenting to removal. (Resp. in Opp’n to Mot. to Remand [11] at 3.)
In his reply brief, Mr. Leloff acknowledges that no such entity entitled “Georgia-Pacific
Consumer Products, Ltd.” exists. Because all properly joined defendants sought removal in
accordance with 28 U.S.C. § 1446(b)(2)(A), Mr. Leloff withdrew his first argument. (Reply to
Resp. to Mot. to Remand [14] at 2.)
II.
The Ninth Circuit’s Procedure for Remand of Jones Act Claims
Considering only the Amended Complaint, Mr. Leloff has properly pleaded a Jones Act
claim. Because Jones Act claims are not subject to removal, Mr. Leloff’s Jones Act claim must
be remanded.
Federal district courts have original jurisdiction over any civil admiralty case, “saving to
suitors in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333.
The “saving to suitors” clause preserves the plaintiff’s choice of forum, and the state courts are a
proper forum for adjudicating admiralty claims. See Lewis, 531 U.S. at 455.
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The Jones Act allows a seaman injured in the course of employment to bring a civil
action against an employer. 46 U.S.C. § 30104. The Jones Act further states that the laws
regulating the personal injury of a railway employee apply to seamen filing suit pursuant to 46
U.S.C. § 30104. Because civil actions against a railroad “may not be removed to any district
court of the United States,” 28 U.S.C. § 1445(a), courts have held Jones Act suits may similarly
not be removed to “federal court even in the event of diversity of the parties.” Lewis, 531 U.S. at
455 (citation omitted). Therefore, so long as a Jones Act claim is pleaded properly and filed in
state court, it cannot be removed to federal court and must be remanded to state court if it is
removed.
Georgia-Pacific contends Mr. Leloff’s Jones Act claim was pleaded fraudulently to
preclude removal. Georgia-Pacific cites statements in Mr. Leloff’s sworn declaration that it
claims contradict his Amended Complaint and undermine his seaman status. Because the Jones
Act claim was fraudulently pleaded, Georgia-Pacific argues, removal is appropriate. See
Burchette v. Cargill, 48 F.3d 173, 175-76 (5th Cir. 1995); see also Creps v. Truco Marine, LLC,
2011 WL 5577083, at *2-3 (N.D. Cal. Nov. 8, 2011) (explaining that defendants sued under the
Jones Act can defeat remand by showing claims were fraudulently pleaded). Before considering
this argument, I must determine whether to look beyond the pleadings. For the reasons stated
below, I limit my review to the pleadings. Based on the pleadings, Mr. Leloff has properly
pleaded a Jones Act claim. Therefore, I remand Mr. Leloff’s claims to the Multnomah County
Circuit Court.
A.
Limiting Review to the Pleadings
The Ninth Circuit has not directly addressed whether it is permissible for a court to look
beyond the pleadings to determine if a plaintiff’s Jones Act claim was removed properly. As a
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general instruction, the Ninth Circuit has said “[i]n assessing whether a plaintiff's claims were
properly removable under § 1441(c), we look to the plaintiff's pleadings.” Boggs, 863 F.2d at
663-64 (citing Am. Fire & Cas. Co., 341 U.S. at 14). Furthermore, the Supreme Court has stated
that “seaman status under the Jones Act is a question of fact for the jury.” McDermott Intern.,
Inc. v. Wilander, 498 U.S. 337, 355 (1991).
Though not binding authority, Green v. Ross Island Sand & Gravel Co., No. C 13-05431
SI, 2014 WL 262133 (N.D. Cal. Jan. 23, 2014) suggests a district court’s determination should
be limited to the pleadings. The facts of Green are analogous to the present case. A plaintiff filed
a complaint alleging that while he was employed as a seaman, he was injured due to the
defendant’s negligence. Id. at *1. The defendant argued that the plaintiff was not a seaman
because he lacked substantial connection to the barge on which he was allegedly injured. Id. at
*2. The court determined that it would not look beyond the pleadings to make a factual
determination because the Ninth Circuit had never directed district courts to look beyond the
plaintiff’s pleadings on a motion to remand. Id. at *3; see also Rodriguez v. Flota Mercante
Grancolombiana, S.A., 703 F.2d 1069, 1072 (9th Cir. 1983) (directing courts to look to the
complaint to determine if a Jones Act claim has been properly pleaded on a motion to dismiss).
Based on the Ninth Circuit’s general instruction to limit my inquiry to the pleadings and a lack of
specific instruction to the contrary, I now follow the reasoning set forth in Green and limit my
review of the record to the pleadings.
B.
Jones Act Claim is Properly Pleaded
Next, I must determine whether Mr. Leloff has pleaded sufficiently a Jones Act claim in
his Amended Complaint. For the reasons stated below, I find he has. “A tort claim under the
Jones Act is properly plead [sic] if it contains allegations that the injured person is a seaman who
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was acting within the scope of his employment when he was injured.” Rodriguez, 703 F.2d at
1072 (citing Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1308 (9th Cir. 1970)). In his
Amended Complaint, Mr. Leloff states:
12.
At all times material, Defendants employed Plaintiff as a seaman in the
service of the WESTERN STAR on the navigable water of the United States on
the Columbia River.
On or about January 31, 2015, while Plaintiff was engaged in the course of
13.
duties as a deckhand in the service of the WESTERN STAR, defendants . . .
negligent[ly] . . . cause[d] injury to Plaintiff.
(Pl.’s Amended Compl. [1-1] at 11.) These allegations are sufficient to constitute a properly
pleaded Jones Act claim. See Rodriguez, 703 F.2d at 1072. Because Jones Act claims cannot be
removed to federal court, Mr. Leloff’s Jones Act claim must be remanded.
C.
Remanding All Claims
In addition to his Jones Act claim, Mr. Leloff raises general maritime law claims and a
LHWCA claim. Although the parties do not explicitly address whether these non-Jones Act
claims should be remanded, for the reasons stated below, I remand all claims.
As noted above, general maritime law claims are subject to the “saving to suitors” clause.
The LHWCA claim is also subject to the “saving to suitors” clause. See Ghotra by Ghotra v.
Bandila Shipping, Inc., 113 F.3d 1050, 1055 (9th Cir. 1997). Therefore, I will resolve
jurisdictional questions regarding these two sets of claims in a similar manner.
General maritime law claims are “not removable under 28 U.S.C. § 1441 absent some
other jurisdictional basis, such as diversity . . . jurisdiction.” Morris v. Princess Cruises, Inc., 236
F.3d 1061, 1069 (9th Cir. 2001). This Court has diversity jurisdiction. Therefore, were Mr.
Leloff’s only causes of action based on general maritime law, Georgia-Pacific’s removal would
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be appropriate for the non-Jones Act claims. However, in light of the non-removable Jones Act
claim, removal is not appropriate.
Although the Ninth Circuit has not specifically addressed whether diversity jurisdiction
serves as a proper basis for a district court to retain non-Jones Act claims while remanding the
related Jones Act claim, a number of district courts throughout the Circuit seem to agree that if a
maritime law claim is not separate and independent from a Jones Act claim, the maritime claim
must be remanded along with the Jones Act claim. See, e.g., Green, 2014 WL 262133, at *3;
Skaw v. Lady Pac., Inc., 577 F. Supp. 2, 3 (D. Alaska 1983).
In this case, the “saving to suitors” clause, applicable to each of Mr. Leloff’s claims,
gives him the right to file suit in his forum choice. See Lewis, 531 U.S. at 455. Furthermore,
severing and remanding only the Jones Act claim would be inconsistent with principles of
judicial efficiency and consistency inasmuch as all claims arise out of the same set of operative
facts. Therefore, I remand all claims.
III.
The Fifth Circuit’s Procedure for Remand of Jones Act Claims
Georgia-Pacific urges me to adopt the rule applied in the Fifth Circuit and look beyond
the pleadings. However, even if I choose to look beyond the pleadings, Mr. Leloff’s Amended
Complaint and sworn declaration together support his qualification as a seaman under the Jones
Act. At the very least, Georgia-Pacific has failed to carry its burden of proving there is no
possibility Mr. Leloff could establish he qualifies as a seaman. Therefore, even under the Fifth
Circuit’s procedure, Mr. Leloff’s claims must be remanded.
When there is suspicion of fraudulent pleading, the procedure applied in the Fifth Circuit
allows “defendants [to] pierce the pleadings to show that [a] Jones Act claim has been
fraudulently pleaded to prevent removal.” Lackey, 990 F.2d at 207. However, even when looking
8-OPINION AND ORDER
beyond the pleadings, the defendant still carries the heavy burden of proving “that there is no
possibility that plaintiff would be able to establish a cause of action.” Id. (citing B., Inc. v. Miller
Brewing, Co., 663 F.3d 545 (5th Cir. 1981)). In other words, Georgia-Pacific must prove there is
no possibility that Mr. Leloff qualifies as a seaman under the Jones Act.
A.
Seaman Status
Georgia-Pacific argues that Mr. Leloff’s admissions in his sworn declaration reveal
fraudulent pleading and defeat his Jones Act seaman status. Specifically, Georgia-Pacific points
to Mr. Leloff’s statements that he was not assigned to the WESTERN STAR at the time of his
injury but was rather assigned to work in the mill and that he was not onboard the WESTERN
STAR when he was allegedly injured. (Decl. of Thomas Leloff [10] at 3, 4.) Georgia-Pacific
contends these statements are inconsistent with Mr. Leloff’s allegation in his Amended
Complaint that he is a seaman and this inconsistency is the reason why I should look beyond the
pleadings to determine whether the Jones Act claim has been fraudulently pleaded.
To qualify as a seaman under the Jones Act, Mr. Leloff must allege: (1) his duties
“contribute to the function of [a] vessel or to the accomplishment of its mission,” and (2) he
“ha[s] a connection to a vessel in navigation . . . that is substantial in terms of both its duration
and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 376 (1995). Therefore, in order to show
that Mr. Leloff does not qualify as a seaman, Georgia-Pacific must show (1) there is no
possibility that Mr. Leloff’s actions contributed to the function of a vessel or (2) his connection
to a vessel is not substantial in terms of both its duration and its nature. Georgia-Pacific fails to
carry this burden with respect to either element.
1.
Contribute to the Function of the Vessel
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Mr. Leloff satisfies the first element of seaman status. The first “threshold requirement
[of qualifying as a seaman] is very broad: ‘All who work at sea in the service of a ship’ are
eligible for seaman status.”1 Id. at 368 (emphasis in original) (quoting McDermott Intern., Inc.,
498 U.S. at 354). Mr. Leloff, as a deckhand, meets this broad requirement inasmuch as he
contributes to the function of the WESTERN STAR and to the accomplishment of its mission.
Mr. Leloff began working on the WESTERN STAR in January 2012. (Decl. Thomas Leloff [10]
at 2.) He provided a long list of his deckhand duties directly associated with the function and
mission of the WESTERN STAR. (Id. at 3.) Mr. Leloff admits that in November 2014, he
received an assignment to work in the mill. (Id.) However, in that same declaration, he states that
he continued to serve as an alternate deckhand on the tug WESTERN STAR. (Id.) GeorgiaPacific argues that Mr. Leloff had entirely stopped working as a deckhand and was permanently
assigned to work at the mill. However, the fact that Mr. Leloff was allegedly injured while
working, by assignment, in the service of the WESTERN STAR in the middle of the Columbia
River undermines this argument. From the evidence provided, Mr. Leloff has sufficiently alleged
that his duties contribute to the function and mission of the WESTERN STAR.
2.
Substantial Connection
Georgia-Pacific also fails to carry its burden with respect to the second element.
Ultimately, determining if an employee has a substantial connection to a vessel—and
determining seaman status generally—requires a fact-intensive inquiry dependent on “the nature
of the vessel and the employee’s precise relation to it.” McDermott Intern., Inc., 498 U.S. at 356.
In making this evaluation, I am “not [to] employ a snapshot test for seaman status, inspecting
only the situation as it exists at the instant of injury.” Chandris, Inc., 515 U.S. at 363 (internal
1
Although the word “sea” is used here, the Supreme Court acknowledges that the Jones Act provides recovery for
seamen injured while working on any navigable waterway. Chandris, 515 U.S. at 359.
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quotes omitted) (quoting Easley v. S. Shipbuilding Corp., 965 F.2d 1, 5 (5th Cir. 1992)). I am
also to avoid exclusively examining the overall course of a worker’s service because when a
maritime worker’s basic assignment changes, his seaman status may change as well. Id. at 37172. In attempts to focus this inquiry, the Supreme Court has established a general thirty-percent
rule as a guide for determining whether an employee has a substantial connection to a vessel. Id.
at 371. That is, if a worker has spent more than thirty percent of his time in the service of a
vessel, he may qualify as a seaman under the Jones Act. Id.
Dissecting the briefings, Georgia-Pacific makes three arguments allegedly undermining
Mr. Leloff’s substantial connection to the WESTERN STAR: (1) he was not standing on the
WESTERN STAR at the time of his alleged injury; (2) he was permanently assigned to the mill
three months before his injury; and (3) he is a longshoreman and cannot concurrently qualify as a
seaman. I address each argument below.
First, Georgia-Pacific argues that because Mr. Leloff was standing on the barge—not the
WESTERN STAR—at the time of his injury, he was not on the vessel and therefore does not
qualify as a seaman. While Mr. Leloff admits he was standing on the barge, given the nature of
the WESTERN STAR’s mission—moving barges—he was required to occasionally work from
the otherwise unmanned barges the tug maneuvered. Therefore, Georgia-Pacific’s first argument
does not undermine Mr. Leloff’s seaman status.
Second, Georgia-Pacific argues that because Mr. Leloff was permanently assigned to the
mill three months before his injury (Decl. of Ian Dieter [1-4] at 2), he cannot qualify as a seaman
under the Jones Act. Mr. Leloff argues that he spent half his time employed by Georgia-Pacific
working on the WESTERN STAR. (Decl. of Thomas Leloff [10] at 4.) However, it is unclear
how much time he spent on the WESTERN STAR following his permanent assignment to the
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mill. It could very well be that he spent much more than thirty percent of his time on the
WESTERN STAR before his reassignment and considerably less than thirty percent of his time
on the tug following the reassignment. The Supreme Court in Chandris cautioned against
limiting the seaman status inquiry to an examination of the overall course of employment. In
other words, I am not to simply consider how much time Mr. Leloff spent on the WESTERN
STAR over the entire course of his employment, but rather I should consider his status around
the time of the accident. Therefore, in light of Mr. Leloff’s reassignment to the mill on October
20, 2015, it is possible that he spent very little time on the tug leading up to his accident and
would not meet the Chandris thirty-percent test.
However, following the Fifth Circuit’s standards, I am to resolve disputed questions of
fact in favor of the plaintiff. Lackey, 990 F.2d at 207. Georgia-Pacific does not provide evidence
disproving Mr. Leloff’s claim that he continued to serve as an alternate deckhand following his
reassignment to the mill. Georgia-Pacific simply claims that Mr. Leloff was permanently
assigned to the mill without providing evidence that Mr. Leloff worked solely in the mill. It is
obvious that, despite his permanent reassignment to the mill, Mr. Leloff still worked at least
some days on the tug—otherwise he would not have been injured on the tug when he was. It is
plausible that Mr. Leloff continued to spend more than thirty percent of his employed time in the
service of the WESTERN STAR. This appears to be a disputed question of fact. Therefore, at
best, Georgia-Pacific has supplied competing, non-conclusory evidence that does not sink Mr.
Leloff’s Jones Act claim.
Third, Georgia-Pacific contends that Mr. Leloff is a longshoreman and not a seaman
because Mr. Leloff has been a member of the United Steelworkers Local 1097 since starting his
employment at the Wanua Mill, his Amended Complaint raises a LHWCA claim inconsistent
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with a Jones Act claim, and he has been receiving ongoing disability benefits under the
LHWCA. (Def.’s Resp. to Mot. to Remand [11] at 8.) However, it is possible for employees to
qualify as both Jones Act seamen and LHWCA workers. Figueroa v. Campbell Indus., 45 F.3d
311, 315 (9th Cir. 1995) (“[A]lthough the [Jones Act and LHWCA] are ‘mutually exclusive’,
some maritime workers may be Jones Act seamen who are injured while also performing a job
specifically enumerated under the LHWCA, and, therefore, are entitled to recovery under both
statutes, although double recovery of any damage element is precluded.”). While recovery under
both the Jones Act and LHWCA is not allowed, an employee who receives voluntary LHWCA
payments without a formal award is not precluded from seeking relief under the Jones Act. Sw.
Marine, Inc. v. Gizoni, 502 U.S. 81, 91 (1991). Furthermore, Mr. Leloff is allowed to plead
alternative claims even if they are inconsistent. FED. R. CIV. P. 8(d)(3); see also Heise v. Fishing
Co. of Alaska, Inc., 79 F.3d 903, 906-07 (9th Cir. 1996) (recognizing that a plaintiff alleging
violations of the Jones Act can alternatively plead a LHWCA claim). Therefore, raising both a
LHWCA claim and a Jones Act claim does not create a presumption of longshoreman status.
For the foregoing reasons, even if I choose to look beyond the pleadings, viewing the
evidence in a light most favorable to Mr. Leloff, Georgia-Pacific has failed to carry its burden of
proving that there is no possibility that Mr. Leloff qualifies as a Jones Act seaman.
CONCLUSION
For the reasons stated above, I GRANT Mr. Leloff’s Motion to Remand to State Court
[9]. On the face of his Amended Complaint, Mr. Leloff has properly pleaded a Jones Act claim.
Jones Act claims are nonremovable, and, for the purposes of the Motion, Mr. Leloff’s non-Jones
Act claims are not separate and independent claims for relief. Therefore, I remand all of Mr.
Leloff’s claims to the Multnomah County Circuit Court. Even if I were to look beyond the
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pleadings, Mr. Leloff has provided sufficient evidence to qualify as a seaman, raise a Jones Act
claim, and prevent removal.
IT IS SO ORDERED.
DATED this
23rd day of June, 2016.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
Chief United States District Judge
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