Rushing v. Pride International, Inc. et al
Filing
22
MEMORANDUM AND ORDER DENIED 4 MOTION to Remand.(Signed by Judge Nancy F. Atlas) Parties notified.(sashabranner, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DONALD RUSHING,
Plaintiff,
§
§
§
v.
§
§
PRIDE INTERNATIONAL, INC. & BP §
EXPLORATION & PRODUCTION,
§
INC.,
§
Defendants.
§
CIVIL ACTION NO. H-11-0294
MEMORANDUM AND ORDER
Pending before the Court is Plaintiff’s Motion to Remand [Doc. # 4], to which
Defendants have responded [Doc. # 10], and Plaintiff has replied [Doc. # 11], and
Defendants filed two Sur-replies [Docs. # 12, # 14]. The Court also heard oral
argument on this Motion on May 25, 2011, and ordered supplemental briefing. See
Doc. # 18. Plaintiff has now filed its Supplemental Brief [Doc. # 20] and Defendants
have filed a Supplemental Response [Doc. # 21]. Having considered the parties’
briefing, the applicable legal authorities, and all matters of record, the Court denies
Plaintiff’s Motion to Remand [Doc. # 4].
I.
BACKGROUND
This case arises out of injuries Plaintiff received while working aboard the BP
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
THUNDER HORSE, a floating offshore oil production facility located in the Gulf of
Mexico. The THUNDER HORSE consists of a large production platform that floats
atop four large, buoyant columns that are partially submerged beneath the surface. It
is connected to the sea floor 6,000 feet below by a complex mooring system along
with various pipelines and other drilling equipment that extend downward from the
platform onto the Outer Continental Shelf.
Plaintiff alleges that, on or about February 4, 2010, he was injured while
performing his normal duties aboard the THUNDER HORSE. Specifically, Plaintiff
alleges that
He was working on top of a four foot platform. He went to remove a
protector from the top of the pipe and hundreds of pounds of pressure
released and caused him to fall with equipment falling on his leg and
other parts of his bodies [sic] injuring him. Previously, he has been told
by Defendants that each cap had a hole drilled in it so there was no
pressure. This proved to be false.1
On April 12, 2010, Plaintiff commenced this action by filing his Original
Petition in the Galveston County Court at Law No. One. In his Original Petition,
Plaintiff asserted claims against Defendants only under the Jones Act, 46 U.S.C.
§ 30104 et seq., and the general maritime law, 28 U.S.C. § 1337. On September 3,
2010, the court entered an agreed order transferring venue to Harris County, Texas.
1
Plaintiff’s First Amended Petition [Doc. # 1-9] (“Amended Petition”), ¶ 10.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
2
The case then proceeded in the 133rd Judicial District Court of Harris County, Texas.
On December 28, 2010, Plaintiff filed his First Amended Petition. In that new
pleading, Plaintiff re-asserted his claims under the Jones Act and general maritime
law. Additionally, for the first time, Plaintiff asserted that “Plaintiff has state law
causes of action against BP arising under the Louisiana Civil Code and premises
liability . . . .”2
On January 1, 2011, Defendant removed the case to federal court on the basis
of federal question jurisdiction, contending that Plaintiff’s claims as stated in his First
Amended Petition arise under federal law, specifically, the Outer Continental Shelf
Lands Act (“OCSLA”), 43 U.S.C. § 1301 et seq. On February 9, 2011, Plaintiff filed
the instant Motion to Remand the case to state court. That Motion has been fully
briefed and is now ripe for decision.
II.
LEGAL STANDARD
“‘Federal courts are courts of limited jurisdiction.’” Rasul v. Bush, 542 U.S.
466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,
377 (1994)); McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 337 (5th Cir. 2004);
Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “‘They possess only
that power authorized by Constitution and statute, which is not to be expanded by
2
Id., ¶ 13.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
3
judicial decree.’” Rasul, 542 U.S. at 489 (quoting Kokkonen, 511 U.S. at 377
(citations omitted)). The court “must presume that a suit lies outside this limited
jurisdiction, and the burden of establishing federal jurisdiction rests on the party
seeking the federal forum.” Bourne v. Wal-Mart Stores, Inc., 582 F. Supp. 2d 828,
832 (E.D. Tex. 2008) (quoting Howery, 243 F.3d at 916 (citing Kokkonen, 511 U.S.
at 377)); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); see also
Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005).
“The removing party bears the burden of showing that federal jurisdiction exists
and that removal was proper.” Manguno v. Prudential Prop. and Cas. Ins. Co., 276
F.3d 720, 723 (5th Cir. 2002); accord Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.
2008). In the absence of diversity jurisdiction, federal question jurisdiction is required
for removal. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). District courts
have “original jurisdiction of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. Congress allows for removal of a
case from state court to federal court when a plaintiff’s complaint alleges a claim
“arising under” federal law. 28 U.S.C. § 1441; Beneficial Nat’l Bank v. Anderson,
539 U.S. 1, 6 (2003). To determine whether jurisdiction is present in a removed
action, the claims set forth in the state court petition are considered as of the date of
removal. See Campbell v. Stone Ins., Inc., 363 F.3d 556, 558 n.1 (5th Cir. 2004).
Generally, “[t]he presence or absence of federal-question jurisdiction is
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
4
governed by the ‘well-pleaded complaint rule,’ which provides that federal
jurisdiction exists only when a federal question is presented on the face of the
plaintiff’s properly pleaded complaint.” Caterpillar, 482 U.S. at 392. “Federal
question jurisdiction under § 1331 extends to cases in which a well-pleaded complaint
establishes either that federal law creates the cause of action or that the plaintiff’s right
to relief necessarily depends on resolution of a substantial question of federal law.”
Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); accord Singh v.
Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008). A plaintiff is the “master
of his complaint” and may choose to allege only state law causes of action, even when
federal remedies might also exist. See Elam v. Kansas City Southern Ry. Co., 635
F.3d 796, 803 (5th Cir. 2011) (citing Bernhard v. Whitney Nat'l Bank, 523 F.3d 546,
551 (5th Cir. 2008)). Thus, under the well-pleaded complaint rule, a plaintiff may
avoid federal jurisdiction by exclusively relying on state law, even where a federal
claim is also available. Caterpillar, 482 U.S. at 392; Elam, 635 F.3d at 803;
Gutierrez, 543 F.3d at 251 ( “Under the well-pleaded complaint rule, ‘a federal court
has original or removal jurisdiction only if a federal question appears on the face of
the plaintiff’s well-pleaded complaint; generally, there is no federal jurisdiction if the
plaintiff properly pleads only a state law cause of action.’” (citing Bernhard v.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
5
Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 2008)).3
In the case at bar, Defendants do not dispute that Plaintiff’s Original Petition
did not on its face assert a question of federal law. Rather, Defendants assert that
Plaintiff has voluntarily added a new claim in his First Amended Petition which
renders this case removable. In his Motion to Remand, Plaintiff argues that this case
must be remanded because Defendants did not timely remove the case to this Court
and because Plaintiff’s Jones Act claim is not removable. Defendants reply that they
timely removed this case pursuant to 28 U.S.C. § 1446(b), and that Plaintiff’s Jones
Act claim is fraudulently pleaded because the THUNDER HORSE is not a vessel.
Defendants further argue that Plaintiff’s claims arise from his activities on a work
platform attached to the Outer Continental Shelf, and, therefore, OCSLA applies.
3
An exception to the well-pleaded complaint rule arises when Congress “so completely
preempt[s] a particular area that any civil complaint raising this select group of claims
is necessarily federal in character.” Elam, 635 F.3d at 803; Gutierrez, 543 F.3d at 252
(quoting Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000)). The Fifth
Circuit recently explained, “[u]nder the “complete preemption” doctrine, “what
otherwise appears as merely a state law claim is converted to a claim ‘arising under’
federal law for jurisdictional purposes because the federal statute so forcibly and
completely displaces state law that the plaintiff's cause of action is either wholly
federal or nothing at all.” Elam, 635 F.3d at 803 (citing New Orleans & Gulf Coast
Ry. Co. v. Barrois, 533 F.3d 321, 330 (5th Cir. 2008) (internal quotation marks and
brackets omitted), and Franks Inv. Co. LLC v. Union Pacific R.R. Co., 593 F.3d 404,
407 (5th Cir. 2010) (en banc)). An example of a complete preemption statute is the
Employee Retirement Income Security Act (“ERISA”).
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
6
III.
ANALYSIS
A.
Timeliness of Removal
The relevant statute, 28 U.S.C. § 1446(b), sets forth the following guidelines
regarding removal of actions from state court:
The notice of removal of a civil action or proceeding shall be filed within
thirty days after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth the claim for
relief upon which such action or proceeding is based, or within thirty
days after the service of summons upon the defendant if such initial
pleading has then been filed in court and is not required to be served on
the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of
removal may be filed within thirty days after receipt by the defendant,
through service or otherwise, of a copy of an amended pleading, motion,
order or other paper from which it may first be ascertained that the case
is one which is or has become removable . . . .
28 U.S.C. § 1446(b) (emphasis added). The first paragraph of section 1446(b) applies
to cases that are removable as initially filed; the second paragraph applies to cases that
although not initially removable, later become removable. See Johnson v. Heublein,
227 F.3d 236, 241 (5th Cir. 2000); Chapman v. Powermatic, Inc., 969 F.2d 160, 161
(5th Cir. 1992). Under the second paragraph of section 1446(b), the thirty-day
removal clock begins to run when a defendant receives a pleading, motion, or other
paper that reveals on its face a basis for federal jurisdiction. Chapman, 969 F.2d at
164; Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994).
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
7
It is undisputed that Defendants did not file a notice of removal within thirty
days of Plaintiff’s Original Complaint. Nevertheless, Defendants argue that they
timely and properly removed this case pursuant to the second paragraph of 28 U.S.C.
§ 1446(b) because the lawsuit was not initially removable when filed.4 The Court
agrees. Plaintiff’s Original Petition stated claims against Defendants for negligence
under the Jones Act and for unseaworthiness and maintenance and cure benefits under
general maritime law. “It is axiomatic that Jones Act suits may not be removed from
state court because 46 U.S.C. § 688 (the Jones Act) incorporates the general
provisions of the Federal Employers’ Liability Act, including 28 U.S.C. § 1445(a),
which in turn bars removal.” Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th
Cir. 1993); accord Holmes v. Atlantic Sounding Co., Inc., 437 F.3d 441, 445 (5th Cir.
2006). Plaintiff’s claims under general maritime law also did not provide a basis for
removal. See Addison v. Gulf Coast Contracting Servs., 744 F.2d 494, 498-99 (5th
Cir. 1984) (“[A] maintenance and cure claim is not sufficiently distinct from a Jones
Act claim arising out of the same set of operative facts to warrant removal.” (internal
quotation marks omitted)); see also 28 U.S.C. § 1441(c).
Plaintiff argues that the Original Petition was initially removable because
4
Alternatively, Defendants argue that they timely and properly removed this case
pursuant to the revival exception to the first paragraph of 28 U.S.C. § 1446(b).
Because the Court finds that this case is governed by the second paragraph of 28
U.S.C. § 1446(b), the Court need not address this argument.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
8
Defendants could have sought removal on the basis of fraudulent joinder of a Jones
Act claim. See, e.g., Holmes, 437 F.3d at 445 (“A fraudulently pleaded Jones Act
claim does not, however, bar removal.”); see generally Moore v. BIS Salamis, Inc.,
748 F. Supp.2d 598 (E.D. Tex. 2010). Plaintiffs also point to the fact that Defendants
repeatedly argued in the state court that the THUNDER HORSE was not a Jones Act
“vessel” because it was permanently moored to the sea floor and located in the Outer
Continental Shelf. Defendants respond that, at the time the Original Petition was
filed, they lacked sufficient grounds to assert that Plaintiff had fraudulently pleaded
a Jones Act claim.
The Court is not persuaded by Plaintiff’s contentions. Defendants were allowed
to make any and all arguments in state court to defend against Plaintiff’s Jones Act
claims. Assertions about the invalidity of the Jones Act claim did not render that
claim removable on its face. “The absence of a valid Jones Act claim, of course, does
not automatically vest jurisdiction in the district court.” Hufnagel v. Omega Serv.
Indus., Inc., 182 F.3d 340, 348 (5th Cir. 1999). In addition to asserting fraudulent
joinder of a Jones Act claim, Defendants would have had to supply an independent
basis for federal jurisdiction. To do so, Defendants would have had to tell Plaintiffs
that their claims could be brought under OCSLA. Plaintiff cites, and the Court has
found, no authority that Defendants had any obligation to identify for Plaintiff a new
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
9
potentially viable cause of action.
Rather, each plaintiff is the master of his own complaint. See Caterpillar, 482
U.S. at 391; Elam, 635 F.3d at 803; Gutierrez, 543 F.3d at 251.5 Plaintiff’s claims
under OCSLA are evidenced by his pleading of Louisiana state law causes of action
in his First Amended Petition, because the THUNDER HORSE is located off the coast
of New Orleans, and OCSLA applies the law of the adjacent state.6 See Grand Isle
Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 782-83 (5th Cir. 2009).
Plaintiff’s First Amended Complaint therefore did plead a claim arising under federal
law, specifically OCSLA. Accordingly, the Court concludes that this action did not
become removable until Plaintiff filed his First Amended Petition on December 28,
5
Plaintiff is correct that defendants in other cases have chosen to remove on the basis
of a fraudulent joinder theory when no federal claim was asserted in the state petition.
The law does not require this strategy, which in many instances may not be
successful.
6
OCSLA provides:
To the extent that they are applicable and not inconsistent with this
subchapter or with other Federal laws and regulations of the Secretary
now in effect or hereafter adopted, the civil and criminal laws of each
adjacent State, now in effect or hereafter adopted, amended, or repealed
are declared to be the law of the United States for that portion of the
subsoil and seabed of the outer Continental Shelf, and artificial islands
and fixed structures erected thereon, which would be within the area of
the State if its boundaries were extended seaward to the outer margin
of the outer Continental Shelf . . . .
43 U.S.C. § 1333(a)(2)(A) .
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
10
2010, which affirmatively asserted claims under state law which by necessity involve
OCSLA. The Court concludes that Defendants timely removed this case on January
21, 2011.
B.
Is the Jones Act Claim Fraudulently Pleaded?
“Generally, Jones Act cases are not removable from state court.” See Holmes,
437 F.3d at 445 (citing Burchett v . Cargill, Inc., 28 F.3d 173, 175 (5th Cir. 1995)).
“A fraudulently pleaded Jones Act claim does not, however, bar removal.” Id. “A
defendant may ‘pierce the pleadings to show that the Jones Act claim has been
fraudulently pleaded to prevent removal.’” Id. (quoting Burchett, 48 F.3d at 175). The
district court may use a “summary judgment-like procedure” to determine whether a
plaintiff has fraudulently pleaded a Jones Act claim. Burchett, 48 F.3d at 176. “‘The
court may deny remand where, but only where, resolving all disputed facts and
ambiguities in current substantive law in plaintiff’s favor, the court determines that
the plaintiff has no possibility of establishing a Jones Act claim on the merits.’”
Holmes, 437 F.3d at 445 (quoting Hufnagel, 182 F.2d at 345-46).
“To qualify as a seaman under the Jones Act, an employee must first
demonstrate that his duties ‘contribute to the function of the vessel or to the
accomplishment of its mission.’” Id. (quoting Chandris, Inc. v. Latsis, 515 U.S. 347,
359 (1995)). Second, “a seaman must have a connection to a vessel in navigation (or
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
11
an identifiable group of vessels) that is substantial in terms of both its duration and its
nature.” Id. Defendants contend only that the THUNDER HORSE is not a vessel
under the Jones Act. “The existence of a vessel is a fundamental prerequisite to Jones
Act jurisdiction and is at the core of the test for seaman status.” Id. at 446. “Whether
an unconventional craft is a vessel is an issue that is generally resolved as a matter of
law . . . .” Id. at 445. Accordingly, if Defendants carry their burden and demonstrate
that there exists no genuine issue of material fact that the THUNDER HORSE is not
a vessel for Jones Act purposes, then the Court must find that Plaintiff’s Jones Act
claims are fraudulently pleaded.
“What constitutes a vessel under the Jones Act has escaped precise definition.”
Moore v. Bis Salamis, Inc., 748 F. Supp. 2d 598, 604 (E.D. Tex. 2010) (citing Holmes,
437 F.3d at 446). In 2005, the United States Supreme Court reexamined the definition
of “vessel” in the context of the Longshore and Harbor Workers’ Compensation Act
(“LHWCA”). Stewart v. Dutra Constr. Co., 543 U.S. 481, 488–97 (2005). In
Stewart, the Supreme Court stated that, for the purposes of the LHWCA, the term
“vessel” is defined by 1 U.S.C. § 3 as “every description of water-craft or other
artificial contrivance used, or capable of being used, as a means of transportation on
water.” Id. at 489. Consistent with this definition, the Supreme Court determined that
any watercraft “practically capable of maritime transportation, regardless of its
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
12
primary purpose or state of transit at a particular moment” is a vessel under the
LHWCA. Id. at 497. Accordingly, “[t]he question remains in all cases whether the
watercraft’s use as a means of transportation on water is a practical possibility or
merely a theoretical one.” Id. at 496. In Holmes, the Fifth Circuit concluded that
“Stewart’s definition of ‘vessel’ applies equally to the Jones Act and the
LHWCA . . . .” 437 F.3d at 448. Accordingly, a Jones Act “vessel” encompasses any
watercraft that is “practically capable of maritime transportation . . . .” Id. Although
the Fifth Circuit did not expressly overrule its prior jurisprudence regarding vessel
status, the Holmes court acknowledged that “the class of water-borne structures that
are vessels for . . . Jones Act purposes is broader than we have heretofore held.” Id.
at 449.7
7
The seminal case in the Fifth Circuit before Stewart was Fields v. Pool Offshore, Inc.,
182 F.3d 353, 357 (5th Cir. 1999). “Courts have long recognized a distinction
between ‘work platforms’ that are designed for primarily stationary residence and true
vessels.” Fields, 182 F.3d at 357 (citing Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S.
352 (1969) (“[T]he Court has specifically held that drilling platforms are not within
admiralty jurisdiction.” (citing Phoenix Const. v. The Steamer Poughkeepsie, 212 U.S.
558 (1908)))); accord Mendez v. Anadarko Pet. Corp., No. H-10-1755, 2010 WL
4644049 (S.D. Tex. Nov. 5, 2010) (Rosenthal, J.). Under Fields, the Fifth Circuit
traditionally used a three-part test to determine whether work platforms were Jones
Act vessels. Fields, 182 F.3d at 357-58. The test considered (1) whether the craft
was designed primarily to serve as a work platform, (2) whether the structure was
moored or otherwise secured at the time of the accident, and (3) “whether the
transportation function of the structure went beyond theoretical mobility and
occasional incidental movement.” Id. This Court need not do a detailed analysis
under the Fields rubric. Suffice it to say that the facts of record would easily establish
(continued...)
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
13
The Fifth Circuit has yet to apply the Stewart and Holmes analysis to floating
platforms such as the THUNDER HORSE. However, at least one federal district
court and at least one Texas state court have squarely held that the THUNDER
HORSE is not a vessel under the Jones Act. See Moore v. Bis Salamis, Inc., 748 F.
Supp. 2d 598, 603-08 (E.D. Tex. 2010) (Crone, J.); Scroggs v. Bis Salamis, Inc., 2010
WL 3910563, at *4-*8 (E.D. Tex. Oct. 5, 2010) (Crone, J.); Charles Hernandez v. M-I
Swaco, Inc., No. 62,268 (Co. Ct. at Law No. 1, Galveston County, Tex. April 1,
2011).8 The Court adopts the extensive, persuasive findings and reasoning in Moore
and Scroggs.9 Moore, 748 F. Supp. 2d at 606, 608 (“[B]ecause of its extensive
7
(...continued)
under the Fields test that the THUNDER HORSE is not a vessel for Jones Act
purposes. See text infra at 14-18.
8
Judge Lee Rosenthal also has found two floating platforms similar to the THUNDER
HORSE not to be vessels under the Jones Act. See Case v. Omega Natchiq, Inc., No.
H-08-0835, 2008 WL 2714124, at *7 (S.D. Tex. July 10, 2008) (Rosenthal, J.)
(discussing the “Rowan Midland,” an offshore structure moored in the Gulf of
Mexico), and Mendez v. Anadarko Pet. Corp., No. H-10-1755, 2010 WL 4644049
(S.D. Tex. Nov. 5, 2010) (holding that the RED HAWK Spar, a floating oil and gas
cell spar (platform), was not a “vessel” for Jones Act purposes). Judge Rosenthal’s
analysis in Mendez is particularly apt. She based her conclusion on the fact that the
RED HAWK Spar was tightly anchored to the ocean floor, had extensive underwater
infrastructure of flow lines, export pipeline systems, and was intended to remain in
place for the productive life of the field. See Mendez, 2010 WL 4644049, at *6–*8.
See also Jordan v. Shell Oil Co., No. G–06–265, 2007 WL 2220986, at *1–*2
(S.D.Tex. Aug. 2, 2007) (holding the URSA floating oil production facility was not
a vessel under the Jones Act).
9
As explained by Judge Crone, the main portion of the THUNDER HORSE was towed
to its offshore location. Moore, 748 F. Supp. 2d at 606. The owner “extensively
(continued...)
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
14
attachment to the ocean floor and long-term commitment to a single location, . . . the
THUNDER HORSE is a work platform that is permanently attached to the seabed and
not a Jones Act vessel.”); Scroggs, 2010 WL 3910563, at *6-*8.
Plaintiff argues that this Court should not rely on Moore and Scroggs because
Plaintiff has now been able to garner more evidence indicating that the THUNDER
HORSE is a “vessel.” Plaintiff presents several documents that label it as such at least
once: a BP press release, an American Bureau of Shipping certification, a Coast
Guard inspection, BP’s tow configuration, the operating manual for the THUNDER
HORSE, and documents from GVA consultants, the company that designed and built
the THUNDER HORSE.10 The Court is not persuaded. The nominal designation of
the THUNDER HORSE as a “vessel” in various documents does not determine the
9
(...continued)
modified” the platform to attach it to the ocean floor. Id. Sixteen chain-mooring lines
connected to 16 suction piles, which extend 90 feet into the ocean floor, fasten the
THUNDER HORSE to the ocean floor. Id. Two production pipelines, risers,
water-injection lines, and umbilical control lines also spread out across the ocean
floor. Id. Judge Crone concluded that although the THUNDER HORSE was capable
of lateral movement within a 350 feet radius for the purpose of servicing a group of
closely-packed wellheads around the drill center, id. at 608, the limited range of
motion was merely incidental to its function as a work platform and did “not render
it practically capable of maritime transportation.” Id. Judge Crone found that the
platform was to “remain at its current location for the duration of its service
life—approximately 25 years—after which it will most likely be disassembled and
scrapped.” Id. at 606. She concluded that the THUNDER HORSE was “a permanent
structure attached to the seabed and, thus, not practically capable of maritime
transportation” and not a Jones Act vessel. Id.
10
See Plaintiff’s Supplemental Brief [Doc. # 20], at 2-5, at Exhs. C, D, E G, H, and I
attached thereto.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
15
legal question of the THUNDER HORSE’s vessel status under the Jones Act. Rather
the controlling factor is whether the THUNDER HORSE is practically capable of
maritime transportation. See Stewart, 543 U.S. at 496; Holmes, 437 F.3d at 448.
Plaintiff also presents evidence that he argues demonstrates that the THUNDER
HORSE is “capable of movement.”11 Plaintiff selectively quotes a BP interrogatory
response, stating that “[a]ssuming each of these steps are completed in the proper
order over the many months and perhaps years of work such a task would require, it
would be technically feasible to move the THUNDER HORSE PDQ to a different
location.”12 Plaintiff improperly ignores the remainder of the interrogatory response,
which details six complicated steps that would need to be taken before the THUNDER
HORSE could be moved to a different location.13 BP further explains that each of
these hyper-technical steps would require specialty equipment and the completion of
all of them would likely take years.14 Plaintiff further relies on the deposition of
Charles Hernandez, Plaintiff’s counsel’s former client and the plaintiff in Charles
Hernandez v. M-I Swaco, Inc., No. 62,268, a Galveston County state court case, which
also rejected the argument that the THUNDER HORSE was a vessel under the Jones
11
See id., at 5-10.
12
See Exh. J to Plaintiff’s Supplemental Brief [Doc. # 20-10], at 7.
13
See id. at 5-7.
14
See id.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
16
Act.15 Hernandez testified that he had seen the THUNDER HORSE move “100 to 200
feet.”16 Plaintiff also relies on the deposition of Edward Ziegler, a retained expert in
the Hernandez case, who testified that the THUNDER HORSE is a vessel because
“anything that floats and transports people [and/or] materials is a vessel.”17
The Court is entirely unpersuaded. Plaintiff apparently misapprehends the
proper test. The Court must evaluate whether the watercraft in issue is “practically
capable of maritime transportation,” not whether it is practically capable of
15
See Charles Hernandez v. M-I Swaco, Inc., No. 62,268 (Co. Ct. at Law No. 1,
Galveston County, Tex. April 1, 2011); see also BP Exploration & Production Inc.’s
Motion for Partial Summary Judgment in Cause No. 62,268; Charles Hernandez v.
M-I Swaco, Inc., et al.; In County Court at Law No. One (1) for Galveston County,
Texas (originally filed as Dkt. #14-1), attached as Exh. E to Defendants’
Supplemental Response [Doc. # 21].
16
See Deposition of Charles Hernandez [Doc. # 20-6], at 167.
17
See Deposition of Edward Ziegler [Doc. # 20-1], at 83 (summarizing his
understanding of the Supreme Court’s opinion in Stewart). The Court is not
persuaded by Ziegler’s understanding of the Stewart case. Moreover, his legal
conclusions about the THUNDER HORSE’s vessel status are in admissible. “[A]n
expert may never render conclusions of law.” Goodman v. Harris Cnty., 571 F.3d
388, 399 (5th Cir. 2009) (citing Snap-Drape, Inc. v. Comm’r of Internal Rev., 98 F.3d
194, 198 (5th Cir. 1996) (holding that expert opinions of “legal conclusions” were
properly excluded). Expert testimony about what the law is or that presents legal
conclusions is inadmissible. See Estate of Willie Mae Sowell v. United States, 198
F.3d 169, 171 (5th Cir. 1999); Askanase v. Fatjo, 130 F.3d 657, 673 (5th Cir. 1997);
Vanderbilt Mtg. and Fin., Inc. v. Flores, No. C-09-312, 2010 WL 4595592, at *4
(S.D. Tex. Nov. 1, 2010) (“‘Allowing an expert to give his opinion on the legal
conclusions to be drawn from the evidence both invades the court’s province and is
irrelevant.’” (quoting Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983));
see also Fisher v. Halliburton, No. H-05-1731, 2009 WL 5216949, at *3 (S.D. Tex.
Dec. 21, 2009) (holding that expert testimony that renders conclusions of law usurps
the role of the judge and is not helpful to the trier of fact).
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
17
movement. Moreover, “[t]he question remains in all cases whether the watercraft’s
use ‘as a means of transportation on water’ is a practical possibility or merely a
theoretical one.” Stewart, 543 U.S. at 496. Defendants do not dispute that the
THUNDER HORSE is capable of laterally moving from wellhead to wellhead, up to
a 350 foot radius, by tightening and loosening its sixteen permanent mooring chains.
As Judge Crone persuasively stated in Moore, this movement is purely incidental and
is insufficient to confer vessel status. See Moore, 748 F. Supp. 2d at 608. Having
reviewed the record as a whole, the Court concludes that Plaintiff has not raised a fact
question that the THUNDER HORSE is a vessel for purposes of the Jones Act.18
In light of the Court’s conclusion that the evidence of record and pertinent law
establish as a matter of law that the THUNDER HORSE is a not a “vessel,” Plaintiff
cannot be a Jones Act seaman and thus has no possibility of prevailing on his Jones
Act claim. Accordingly, Plaintiff’s Jones Act claim is fraudulently pleaded for
removal purposes.
18
Plaintiff requests additional discovery on vessel status. This request is rejected. The
Court already granted Plaintiff limited additional discovery on his motion to remand.
Moreover, the Court concludes that the additional discovery Plaintiff requests would
not raise a material fact question as to the THUNDER HORSE’s vessel status.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
18
C.
Does OCSLA Claim Provide Federal Question Jurisdiction?
As indicated above, the absence of a valid Jones Act claim does not
automatically make removal proper. Defendants must affirmatively demonstrate that
this suit was removable under 28 U.S.C. § 1441. See Hufnagel, 182 F.3d at 348. In
their Notice of Removal [Doc. # 1], Defendants rely on federal question jurisdiction
under OCSLA as the basis for subject matter jurisdiction. For OCSLA to apply to an
action, a plaintiff need not specifically assert any claims under that statute in the
complaint; rather, OCSLA governs if the facts alleged within the complaint fall within
the statutory grant of jurisdiction. Nase v. Teco Energy Inc., 347 F. Supp. 2d 313, 317
(E.D. La. 2004) (citing Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150,
154–55 (5th Cir. 1996)). OCSLA provides:
The Constitution and laws and civil and political jurisdiction of the
United States are extended to the subsoil and seabed of the [O]uter
Continental Shelf and to all artificial islands, and all installations and
other devices permanently or temporarily attached to the seabed, which
may be erected thereon for the purpose of exploring for, developing, or
producing resources therefrom, or any such installation or other device
(other than a ship or vessel) for the purpose of transporting such
resources, to the same extent as if the [O]uter Continental Shelf were an
area of exclusive Federal jurisdiction located within a State . . . .
43 U.S.C. § 1333(a)(1). “The purpose of the [OCSLA] [is] to define a body of law
applicable to the seabed, the subsoil, and the fixed structures . . . on the [O]uter
Continental Shelf.” Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352, 355 (1969);
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
19
accord Grand Isle Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 784 (5th
Cir.2009), cert. denied, ––– U.S. ––––, 130 S.Ct. 3386 (2010). OCSLA expressly
grants subject matter jurisdiction to the federal courts over cases and controversies
“arising out of or in connection with . . . any operation conducted on the [O]uter
Continental Shelf which involves exploration, development, or production of the
minerals” from the Outer Continental Shelf. 43 U.S.C. § 1349(b)(1); accord Texaco
Exploration & Prod. v. AmClyde Engineered Prods. Co., Inc., 448 F.3d 760, 768 (5th
Cir. 2006).19
In his Motion to Remand [Doc. # 4], Plaintiff does not specifically argue why
OCSLA does not apply to his claims. Rather, Plaintiff’s Motion focuses on arguing
that the THUNDER HORSE is a vessel under the Jones Act and that Defendants’
removal was untimely. Vessels are specifically excluded from 43 U.S.C.
§ 1333(a)(1)’s grant of jurisdiction. As discussed above, however, the THUNDER
HORSE is not a vessel, but is a work platform attached to the seabed. Because “the
THUNDER HORSE is attached to the Outer Continental Shelf and is engaged in the
exploration, development, or production of mineral resources therefrom,” see Moore,
19
“[R]ecognizing that the statutory federal law may in some areas be inadequate,
OCSLA incorporates aspects of the laws of adjacent states, where those laws are not
inconsistent with OCSLA. These incorporated state laws become “surrogate federal
law,’ and are considered exclusively federal law when applicable under OCSLA. 43
U.S.C. § 1333(a)(2)(A).” Hufnagel, 182 F.3d at 349 (footnote omit
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
20
748 F. Supp. 2d at 609, the THUNDER HORSE falls within OCSLA’s jurisdictional
grant. See 43 U.S.C. § 1333(a)(1), 1349(b)(1); Dahlen v. Gulf Crews, Inc., 281 F.3d
487, 492 (5th Cir. 2002). Therefore, the district court would have had jurisdiction
over Plaintiff’s claims had he chosen to file them in federal court. See Hufnagel, 182
F.3d at 350.
The Fifth Circuit has recognized, however, that “OCSLA does not necessarily
transform maritime claims falling within its jurisdictional grant into claims arising
under federal law.” See Hufnagel, 182 F.3d at 350. As the Fifth Circuit has
explained, “OCSLA does not displace general maritime law,” and “maritime cases do
not ‘arise under’ federal law for purposes of removal jurisdiction.” Id. (citing
Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 153 (5th Cir. 1996)).
“Any civil action of which the district courts have original jurisdiction,” but which
does not “arise under” federal law, “shall be removable only if none of the parties in
interest properly joined and served as defendants is a citizen of the State in which such
action is brought.” 28 U.S.C. § 1441(b); see Hufnagel, 182 F.3d at 348. “Therefore
where a claim within OCSLA’s grant of original federal court jurisdiction is
nevertheless governed by maritime law, it arguably does not provide removal
jurisdiction unless no defendant is a citizen of the state of suit . . .” Hufnagel, 182
F.3d at 350. Although the Fifth Circuit has not yet directly resolved this question,
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
21
some courts have held that “where plaintiffs have alleged maritime claims which fall
within OCSLA’s jurisdictional grant . . . those cases may be removed only subject to
subsection 1441(b)’s restriction that no defendant may reside in the state in which the
case is filed.” See id. at 350-51 (citing cases).
This issue need not be resolved in this case because the Court concludes as a
matter of law that Plaintiff has asserted a non-maritime claim against Defendants.
Plaintiff in his First Amended Petition asserts non-maritime claims, specifically,
claims under Louisiana state law. Because Plaintiff’s injury occurred entirely on and
was caused entirely by his work on the THUNDER HORSE, a fixed platform and not
a vessel, Plaintiff does not present any claim within the admiralty or maritime
jurisdiction of the federal courts. See Hufnagel, 182 F.3d at 349, 351-53. Plaintiff’s
state law claims thus “arise under” OCSLA, 43 U.S.C. § 1333(a)(2)(A); see Hufnagel,
182 F.3d at 351. They fall within Sections 1441(b) and 1331, and are not subject to
Section 1441(b)’s restriction to cases in which no defendant is a citizen of the state of
suit. The Court accordingly has subject matter jurisdiction over this dispute and
removal was proper under Section 1441.
IV.
CONCLUSION AND ORDER
Based on the foregoing analysis, the Court concludes that Defendants timely
removed this case pursuant to 28 U.S.C. § 1446(b). The Court further concludes that
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
22
Plaintiff is not a Jones Act seaman because the THUNDER HORSE is not a vessel
under the Jones Act. Since Plaintiff has no possibility of prevailing on his Jones Act
claim, this claim does not prevent removal of the instant case. Finally, the Court
concludes that because Plaintiff has asserted a non-maritime claim arising under
OCSLA , this Court has subject matter jurisdiction over this dispute and removal was
proper. Accordingly, it is hereby
ORDERED that Plaintiff’s Motion to Remand [Doc. # 4] is DENIED.
SIGNED at Houston, Texas, this 22nd day of July, 2011.
P:\ORDERS\11-2011\0249MRemand.wpd
110722.0959
23
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?