Bishop v. Chet Morrison Contractors, L.L.C. et al
Filing
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MEMORANDUM OPINION AND ORDER granting 5 Motion to Remand. This suit is REMANDED to the County Court at Law Number 2 of Galveston County, Texas.(Signed by Judge Gregg Costa) Parties notified.(arrivera, )
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
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§
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Plaintiff,
§ CIVIL ACTION NO. 3-12-165
VS.
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CHET MORRISON CONTRACTORS, §
L.L.C., et al,
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Defendants.
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CHARLES TODD BISHOP,
MEMORANDUM OPINION AND ORDER
In March 2012, Plaintiff Charles Todd Bishop allegedly suffered
severe injuries when a large piece of metal grating was dropped on his head
while he was working offshore in Defendants’ employ. Bishop filed a Jones
Act suit in state court, and Defendants removed to this Court. Bishop now
moves to remand the case to County Court at Law Number 2 of Galveston
County. He relies on the federal statute disallowing removal of Jones Act
claims.
Defendants argue in opposition that removal was proper on the ground
that Bishop’s Jones Act claim was fraudulently pleaded because Bishop was
not a Jones Act seaman. If they can avoid the Jones Act’s bar on removal,
Defendants contend that federal jurisdiction otherwise exists on both
diversity and federal question grounds (the latter pursuant to the Outer
Continental Shelf Lands Act). The Court has considered the facts of the
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case, the arguments of counsel, and the appropriate authorities, and now
determines that Plaintiff’s Motion to Remand (Docket Entry No. 5) should
be GRANTED. Defendants have not carried their burden to show that
Bishop could not have been a Jones Act seaman, and thus this suit must
proceed in Bishop’s chosen state-court forum.
I.
BACKGROUND
Bishop was employed by Defendant Chet Morrison Contractors,
L.L.C. (“Chet Morrison”) from April 2011 until March 2012, when he was
allegedly injured while working a well abandonment job in the East
Cameron 129 block, part of the Outer Continental Shelf off the coast of
Louisiana. He alleges that a coworker accidentally dropped a 100 pound
piece of metal grating onto his head from a height of thirty feet, causing
extensive injuries and requiring him to spend eight days in the hospital.
Although the accident apparently occurred on a fixed platform, Bishop
claims that he was assigned to the L/B JONI, a liftboat owned by Offshore
Liftboats, L.L.C., a nonparty. 1
In his job at Chet Morrison, Bishop worked offshore providing
support for various well plugging and abandonment jobs that Chet Morrison
1
Though Bishop has not yet brought suit against Offshore Liftboats, he may intend to do
so at some point, given that he included the company’s name in the case heading on his
motion to remand. See Pl.’s Mot. to Remand 1, Docket Entry No. 5.
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was engaged in and, in addition, spent a significant amount of time working
on land at Chet Morrison’s onshore facilities. Bishop appears to have had
the title of Plugging and Abandonment Assistant, but his exact duties are not
clear from the record. The parties agree that, in total, Bishop conducted
63.32% of his work with Chet Morrison offshore and the remaining 36.68%
onshore. However, they strongly disagree about whether Bishop worked on
fixed platforms or on jack-up vessels. Bishop alleges that he would be
assigned to a specific jack-up liftboat while working offshore and that his
duties included working with the liftboat’s equipment while it was in transit,
assisting the liftboat’s crane operator while it was jacked up on location next
to a fixed platform, and running pumps and hoses from the liftboat to fixed
platforms. According to Bishop, most of his offshore work—approximately
ten hours of each twelve-hour shift—was performed on the liftboats, with
the remainder on fixed platforms. In contrast, Chet Morrison claims that
Bishop only roomed and boarded on the liftboats, and that he conducted all
of his offshore work on fixed platforms.
Bishop filed an action in state court alleging negligence under the
Jones Act, unseaworthiness, and violations of the obligation of maintenance
and cure. He now moves to remand. Defendants argue that removal was
proper because Bishop was not a seaman under the Jones Act. The issue
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before the Court is whether Defendants have satisfied their heavy burden to
prove that a normally nonremovable Jones Act case was properly removed.
II.
STANDARD
Suits properly brought in state court under the Jones Act may not be
removed. 2 See 46 U.S.C. § 30104 (incorporating by reference the Federal
Employers Liability Act’s bar on removal, 28 U.S.C. § 1445(a)). Removal
is nonetheless proper if a defendant can show that the plaintiff’s Jones Act
claim was fraudulently pleaded to prevent removal. See Hufnagel v. Omega
Serv. Indus., Inc., 182 F.3d 340, 345 (5th Cir. 1999) (citations and quotation
marks omitted); Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir.
1993). That said, the “burden of persuasion on a removing party in such a
case . . . is a heavy one.” Burchett v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir.
1995). The district court may examine the claim in a “summary judgmentlike procedure” but may deny remand “only where, resolving all disputed
facts and ambiguities in current substantive law in [the] plaintiff’s favor, the
court determines that the plaintiff has no possibility of establishing a Jones
2
Defendants cite the “savings to suitors” clause in arguing that such cases may still be
removed if an independent basis for federal jurisdiction exists. See Opp. to Mot. to
Remand 2, Docket No. 8 (citing Morris v. T E Marine Corp., 344 F.3d 439, 444 (5th Cir.
2003)). However, the relevant provision in this case is the Jones Act’s incorporation of
FELA’s statutory bar on removal. Cf. Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d
340, 348 (5th Cir. 1999) (examining whether an independent basis for removal
jurisdiction existed only after concluding that the Jones Act could not possibly bar
removal).
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Act claim on the merits.” Holmes v. Atl. Sounding Co., 437 F.3d 441, 445
(5th Cir. 2006) (citation and quotation marks omitted).
III.
DISCUSSION
The foundational question in any Jones Act case is whether the
plaintiff qualifies as a Jones Act seaman. Under Chandris, Inc. v. Latsis,
515 U.S. 347 (1995), an individual will count as a seaman for purposes of
the Jones Act when he has an “employment-related connection to a vessel in
navigation.”
Id. at 368 (citation and quotation marks omitted).
This
connection will be found where the “employee’s duties . . . contribute to the
function of the vessel or to the accomplishment of its mission” and “the
connection to the vessel in navigation [is] substantial in terms of both its
duration and its nature.” Manuel v. P.A.W. Drilling & Well Serv., Inc., 135
F.3d 344, 347 (5th Cir. 1998) (citing Chandris, 515 U.S. at 368–69).
Before applying Chandris’s two prongs, however, the more
“fundamental prerequisite” that must be addressed is whether or not any of
the structures or vehicles worked on by the plaintiff count as “vessels” for
purposes of determining seaman status under the Jones Act. Id. (citing
Burchett, 48 F.3d at 176). The test for what counts as a vessel is a liberal
one; as the Fifth Circuit has stated, “[t]he exotic watercraft that have been
deemed vessels and the heavy inquiry that surrounds each analysis of an
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unconventional craft’s status has led even this court to recognize that the
‘three men in a tub would fit within our definition of a Jones Act seaman,
and one probably could make a convincing case for Jonah inside the
whale.’” Holmes, 437 F.3d at 446 (quoting Burks v. Am. River Transp. Co.,
679 F.2d 69, 75 (5th Cir. 1982)) (brackets and ellipses omitted).
The
Biblical whale aside, Fifth Circuit precedent makes clear that permanently
fixed drilling platforms are not Jones Act vessels, but that jack-up rigs and
liftboats are vessels even when temporarily attached to the ocean floor.
Compare Hufnagel, 182 F.3d at 346 n.1 (noting that “[i]t is clear” that fixed
platforms are not vessels), with Hous. Oil & Minerals Corp. v. Am. Int’l
Tool Co., 827 F.2d 1049, 1052–53 (5th Cir. 1987) (collecting cases stating
that jack-up rigs and other detachable barges are vessels). Thus, the L/B
JONI and any other liftboats that Bishop may have worked on qualify as
Jones Act vessels.
Applying Chandris, that Chet Morrison and the other Defendants do
not meet their burden to prove that Bishop could not have been a Jones Act
seaman. To make their case, they largely rely on the affidavit of Devann
Frazier, Chet Morrison’s “Risk Management coordinator,” who states that
Bishop was never assigned to work on a vessel or a vessel’s work crew,
never performed any work on a vessel, and only performed work on fixed
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platforms or on land. Aff. of Devann Frazier ¶¶ 23–26, Docket Entry No. 81. Defendants also provide the affidavit of Craig Pierce, the “Health, Safety,
and Environmental Manager” of nonparty Offshore Liftboats, L.L.C., the
owner of the L/B JONI. Pierce’s affidavit states that Bishop was never a
member of the JONI’s crew and never contributed to its mission. Aff. of
Craig M. Pierce ¶¶ 5–6, Docket Entry No. 8-7.
Finally, Defendants
supplement the two affidavits with Bishop’s timesheets, which show
Bishop’s assignments and the dates and hours that he worked. See Chet
Morrison Contractors DFR Labor Report 1–21, Docket Entry No. 8-1 Ex. A.
Defendants contend that these materials conclusively show that Bishop only
worked on fixed platforms and was not assigned to any vessel.
However, as Bishop points out, while the timesheets show that he
spent approximately 63% of his work time offshore—a fact that he does not
contest—they are silent regarding the duties he performed offshore and
whether his work time was spent on fixed platforms or on liftboats. Thus,
the relevant evidence comes down to Bishop’s word that he performed most
of his work on the JONI and other liftboats against Frazier and Pierce’s word
that he did not. Resolving all disputed facts in favor of Bishop, as this Court
must do when evaluating Defendants’ claim of fraudulent pleading,
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Defendants have not met their burden to prove that Bishop cannot possibly
be a Jones Act seaman.
The first Chandris prong requires Bishop’s duties to “contribute to the
function of the vessel or to the accomplishment of its mission.” Chandris,
515 U.S. at 368 (citation, quotation marks, and brackets omitted). While it
is only satisfied for “maritime employees who do the ship’s work . . . this
threshold requirement is very broad.” Id. Bishop claims that he spent much
of his time working about the JONI and other liftboats, time he allegedly
used to maintain liftboat equipment, run hoses from the liftboats to fixed
platforms, and assist the liftboat crane operators. Unlike the plaintiff in
Hufnagel, who only roomed and boarded on the vessel in that case and at
most performed incidental duties upon it, Bishop has alleged that he was
“doing the ship’s work.” McDermott Int’l, Inc. v. Wilander, 498 U.S. 337,
355 (1991).
Because the Frazier and Pierce affidavits merely dispute
Bishop’s allegations and cannot disprove them, Bishop may yet fulfill the
first Chandris prong.
Likewise, Bishop can still show that he has a connection to a vessel or
a fleet of vessels that is substantial in both duration and nature, as he must
ultimately do to fulfill the second Chandris prong. The duties he alleges he
consistently performed offshore, if proven true, clearly fulfill the
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requirement that his connection be substantial in nature, as they would tend
to show that he was “a member of the vessel’s crew” and not “simply a landbased employee who happen[ed] to be working on the vessel.” Chandris,
515 U.S. at 371. In addition, his affidavit shows that he could exceed
Chandris’s 30% benchmark for showing a connection of substantial
duration. See id. at 370 (“A worker who spends less than about 30 percent
of his time in the service of a vessel in navigation should not qualify as a
seaman under the Jones Act.”). In his affidavit, Bishop claims that, for the
over 63% of his work that took place offshore, an average of ten hours of
each twelve-hour shift was spent working on the liftboats. That figure, if
true, would correlate to almost 53% of his total work time, easily passing
Chandris’s 30% mark.
Defendants are correct that Bishop has not produced evidence proving
he spent at least 30% of his work time on any one vessel or fleet of vessels
under common control, and that he has not even identified any of the vessels
he worked on other than the JONI. However, Bishop need not make such
showings at this stage. In trying to show that Bishop’s Jones Act claim was
fraudulently pleaded, the burden is on Defendants to show that Bishop has
“no possibility of establishing a Jones Act claim on the merits.” Holmes,
437 F.3d at 445 (citation and quotation marks omitted). Because Defendants
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have failed to prove that Bishop will be unable to identify a substantial
connection to a particular vessel or fleet of vessels, Bishop may still satisfy
the second Chandris prong.
Defendants have not met their burden to show that Bishop’s Jones Act
claim was fraudulently pleaded. Remand is appropriate.
IV.
ORDER
For the foregoing reasons, IT IS ORDERED:
Plaintiff’s Motion to Remand (Docket Entry No. 5) is GRANTED.
This suit is REMANDED to the County Court at Law Number 2 of
Galveston County, Texas.
IT IS SO ORDERED.
SIGNED this 23rd day of August, 2012.
______________________________
Gregg Costa
United States District Judge
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