Ferdin v. Performance Energy Services, L.L.C. et al

Filing 11

ORDER OF REMAND granting #5 MOTION to Remand. The Court remands this action to the County Court at Law No. 4, Nueces County, Texas. (Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION

January 20, 2016
David J. Bradley, Clerk

ANDRES FERDIN,

§
§
Plaintiff,
§
VS.
§ CIVIL ACTION NO. 2:15-CV-448
§
PERFORMANCE ENERGY SERVICES, §
L.L.C., et al,
§
§
Defendants.
§
ORDER REMANDING CASE
Plaintiff Andres Ferdin (Ferdin) filed this action against Performance Energy
Services, LLC (PES) and Alliance Offshore, LLC (Alliance Offshore) in the County
Court at Law No. 4, Nueces County, Texas on August 8, 2014. D.E. 1-1. On May 7,
2015, Alliance Offshore, with PES’s consent, removed the case to this Court under
federal question jurisdiction, relying on the applicability of the Outer Continental Shelf
Lands Act (OCSLA) and arguing that Ferdin’s Jones Act claim was fraudulently pled.
See Cause No. 2:15-cv-204, D.E. 1, filed in this Court. The Court remanded the case to
state court on the basis that the removal was not timely and because Defendants had not
satisfied their burden to demonstrate that Ferdin’s Jones Act claim was fraudulently pled.
2:15-cv-204, D.E. 17.
After remand, on September 21, 2015, Ferdin filed his First Amended Petition in
the state court, joining Alliance Liftboats, LLC (Alliance Liftboats) as a Defendant. D.E.
1-2. On October 21, 2015, Alliance Liftboats, with the consent of Alliance Offshore and
PES, removed the case to this Court, again arguing federal question jurisdiction related to
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OCSLA and that Ferdin’s Jones Act claims were fraudulently pled. In his Motion to
Remand (D.E. 5) now pending before this Court, Ferdin relies on the Court’s Order in
2:15-cv-204 and asks the Court to remand once again because removal was not timely
and the Jones Act claim is proper.
After reviewing the motion, responses, and evidence presented, the Court finds
that removal was timely because the removal statute permits removal by later-joined
defendants regardless of the removal actions or inactions of previously-joined defendants.
28 U.S.C. § 1446(b)(2)(C).

The Court rejects Ferdin’s argument that the parent-

subsidiary relationship between Alliance Offshore and Alliance Liftboats prejudiced
Alliance Liftboat’s removal rights. See Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d
1202, 1206 n.7 (11th Cir. 2008) (constructive notice principles have been rejected as a
trigger for the right to remove).
Noting that both Ferdin’s allegations and Defendants’ evidence have not changed
since this Court’s ruling in 2:15-cv-204, the Court holds, once again, that Defendants
have not sustained their high burden of proof to show that Ferdin’s allegations are
fraudulent. Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 F. App’x 93, 94 (5th
Cir. 2009) (“the burden of persuasion rests with the removing party, and this burden is a
heavy one.”). The Jones Act claim is not removable and the OCSLA claim is not
properly severable. See Lockhart v. Applied Coating Servs., Inc., 2005 WL 1574208, at
*4 (E.D. La. June 25, 2005) (where there is a single injury, the claims are not severable);
Figueroa v. Marine Inspection Servs., 28 F. Supp. 3d 677, 680-82 (S.D. Tex. 2014) (the
“saving to suitors” clause generally prevents removal).
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Therefore, the Court GRANTS the motion to remand and REMANDS this action
to the County Court at Law No. 4, Nueces County, Texas.
ORDERED this 20th day of January, 2016.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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