Wells v. Abe's Boat Rentals Inc et al

Filing 24

MEMORANDUM AND ORDER entered: Willie Wells's motion to remand, (Docket Entry No. 2), is granted in part and denied in part. It is granted in that Wells's claims against Abe's Boat Rentals are severed and remanded to the 125th Judicial District Court of Harris County, Texas. It is otherwise denied; the claims against Energy XII and IOC remain in this court.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, ) Modified on 6/18/2013 (leddins, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
WILLIE WELLS,
Plaintiff,
VS.
ABE’S BOAT RENTALS INC., et al.,
Defendants.

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CIVIL ACTION NO. H-13-1112

MEMORANDUM AND ORDER
I.

Background
This case arises from an injury that occurred while the plaintiff, Willie Wells, was working

for Abe’s Boat Rentals, Inc. on the M/V DUTCHMAN off the Louisiana shore. Wells was
participating in a transfer of cargo from the vessel to the Main Pass 61-B fixed platform via a crane
on that platform. He asserted Jones Act claims against Abe’s Boat Rentals and negligence claims
under general maritime law against Energy XXI GOM, LLC, which owned the Main Pass 61-B
platform, and against Island Operating Company, Inc., which operated the platform. The
defendants timely removed. Wells moves to remand, arguing that Jones Act and general maritime
claims are not removable. Energy XXI and IOC respond that the claims against them fall under the
Outer Continental Shelf Lands Act (OSCLA), 43 U.S.C. § 1349 (b)(1), and are removable even if
substantive maritime law applies, and that under recent amendments to the removal statute, 28
U.S.C. § 1441, general maritime claims are removable.
For the reasons stated below, this court grants Willie Wells’s motion to remand, (Docket
Entry No. 2), in part and denies it in part. It is granted in that Wells’s claims against Abe’s Boat

Rentals are severed and remanded to the 125th Judicial District Court of Harris County, Texas. It
is otherwise denied; the claims against Energy XII and IOC remain in this court.

II.

Analysis
Under 28 U.S.C. § 1333, district courts “have original jurisdiction, exclusive of the courts

of the States, of . . . [a]ny civil action of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are entitled.” Historically, general maritime claims saved
to suitors have not been removable. Morris v. T E Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003).
The bar to removal was the well-established principle that maritime claims do not “aris[e] under the
Constitution, treaties or laws of the United States’ for purposes of federal question and removal
jurisdiction.” 28 U.S.C. § 1441(b) (2006); see also Morris 344 F.3d at 444 (citing Romero v. Int’l
Terminal Operating Co., 348 U.S. 354, 377–79 (1959)). General maritime claims could not be
removed as federal questions, and federal courts could only assert removal jurisdiction over
admiralty claims that met diversity jurisdiction requirements, which are not satisfied here. Energy
XXI and IOC agree that before the removal statute was amended in December 2011, a general
maritime claim could be removed only when there was a separate basis for federal jurisdiction.
These defendants oppose remand by arguing that the removal statute was amended to allow removal
if there is original jurisdiction and there is otherwise no statutory bar to removal. They assert that
there is original jurisdiction under the OCSLA that allows the entire case to be removed, while
requiring the severance and remand of the nonremovable Jones Act claim to state court. They also
assert that even if the claims against the defendants are general maritime claims, they are removable
under the amended version of the removal statute.
The previous version of § 1441 stated:
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(a) Except as otherwise expressly provided by Act of Congress, any
civil action brought in a State court of which the district courts of the
United States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United States
for the district and division embracing the place where such action is
pending. For purposes of removal under this chapter, the citizenship
of defendants sued under fictitious names shall be disregarded.
(b) Any civil action of which the district courts have original
jurisdiction founded on a claim or right under the Constitution,
treaties or laws of the United States shall be removable without
regard to the citizenship or residence of the parties. Any other such
action 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(a) & (b) (2006). The statute was amended in 2011. The current version states:
(a) Generally. Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which the
district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of
the United States for the district and division embracing the place
where such action is pending.
(b) Removal based on diversity of citizenship.
(1) In determining whether a civil action is removal on the basis of
the jurisdiction under section 1332(a) of this title, the citizenship of
defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of the
jurisdiction under section 1332(a) of this title may not be removed if
any of the parties in interest properly joined and served as defendant
is a citizen of the State in which such action is brought.
28 U.S.C.A. § 1441(a) & (b) (2012).
In Ryan v. Hercules Offshore, Inc., — F. Supp. 2d — , 2013 WL 1967315 (S.D. Tex. May
13, 2013), the court considered the removability of maritime claims under the amended removal
statute. After surveying the recent case law, the court stated:

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These cases make relatively clear that (1) federal courts have original
jurisdiction over admiralty claims; (2) the saving to suitors clause
does not preclude federal courts from exercising jurisdiction over
admiralty claims originally brought in state court; (3) the old version
of section 1441(b) was relied upon as the “Act of Congress” that
precluded federal courts from exercising removal jurisdiction unless
the requirements of section 1441(b) were met; and (4) admiralty
cases do not arise under the Constitution, treaties or laws of the
United States, so admiralty cases were considered “any other such
actions” under the prior version of section 1441(b) and were thus
removable only if none of the parties in interest properly joined and
served as defendants was a citizen of the State in which the action
was brought. When Congress amended section 1441, it left the
reference in section 1441(a) to cases in which courts have “original”
jurisdiction being removable unless prohibited by an act of Congress.
However, it deleted the text in section 1441(b) upon which courts in
the Fifth Circuit relied as being an “Act of Congress” that precluded
removal of cases that did not meet the other requirements of section
1441(b). The new version of section 1441(b) speaks solely to cases
that are removed on the basis of diversity of citizenship. . . .
. . . . The new statute does not contain any ambiguous language.
Under the amendment, as under the prior version, federal district
courts may exercise removal jurisdiction over cases for which they
have original jurisdiction unless an act of Congress prohibits that
exercise of jurisdiction. Section 1441(b), however, is no longer an
“Act of Congress” prohibiting that exercise in admiralty cases
involving non-diverse parties. Instead, Congress expects courts to
look to the new version of section 1441(b) only when ascertaining
removability of cases removed on the basis of diversity—hence the
new title of the section, “Removal based on diversity of citizenship.”
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Plaintiffs argue that maritime claims cannot be removed pursuant to
section 1441(a) because they do not arise under the Constitution,
treaties or laws of the United States. However, neither the prior
version nor the new version of section 1441(a) refers to claims that
arise under the Constitution, treaties or laws of the United States.
This reference was found in the previous version of section 1441(b).
Both versions of section 1441(a) refer to original jurisdiction, and
federal district courts have “original jurisdiction” over “[a]ny civil
case of admiralty or maritime jurisdiction, saving to suitors in all
cases all other remedies to which they are otherwise entitled.” 28
U.S.C. § 1333(1).

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Ryan, 2013 WL 1967315, at *3–5 (internal citation omitted). The court concluded that the claims
under general maritime law were removable. Id.
The Ryan court’s analysis of the effect of the amended version of the removal statute is
consistent with the case law analyzed. If the claims against Energy XXI and IOC fall under
OCSLA, or are viewed as general maritime claims, they are removable. The fact that the action
includes Jones Act claims against Abe’s Rentals does not make the entire case nonremovable.
Jones Act claims are nonremovable under 46 U.S.C. App. § 30104 and 28 U.S.C. § 1445(a). Title
28 U.S.C. § 1441(c) states that if an action includes a “claim that has been made nonremovable by
statute, the entire action may be removed if it would be removable without the inclusion of the
[nonremovable claims].” Id., § 1441(c)(1)(B). After removal, however, “the district court shall
sever [the nonremovable claims] and shall remand the severed claims to the State court from which
the action was removed. . . .” Id., § 1441(c)(2). If the claims against Energy XXI and IOC are
removable, the claims against Abe’s Rentals will be severed and remanded to the state court, but the
remaining claims will stay in federal court.
Energy XXI and IOC have provided sufficient support for the application of the OCSLA.
Energy XXI owned federal mineral leases located within Main Pass Block 61 on the Outer
Continental Shelf and owned the platform fixed on the Outer Continental Shelf off the Louisiana
coast. (Nelson Aff., Docket Entry No. 9, Ex. A). IOC contract operators worked on the platform
assisting Energy XXI in oil and gas exploration and production work, including by operating the
platform’s cranes to transfer cargo to and off the platform. Energy XXI contracted with the
plaintiff’s employer, the owner of the M/V DUTCHMAN, to assist with the operations on Main Pass
61-B platform, including by transporting cargo to and from that platform.

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In his state-court petition, Wells alleged that he was injured while working on the M/V
DUTCHMAN assisting the transfer of cargo from the platform via the crane fixed to the platform.
He alleged that the crane used in the transfer caused him to be lifted off the vessel deck by his arm,
resulting in spinal and other injuries. The allegations make clear that this case arises from an
operation conducted on the Outer Continental Shelf that involved the exploration or production of
minerals. The claims against Energy XXI and IOC are federal-question claims under the OCSLA,
making this case removable (although the Jones Act claims must be severed and remanded). See,
e.g., Barker v. Hercules Offshore, Inc., 2013 WL 1319355 at *9 (5th Cir. 2013); Hamm v. TRTB,
2010 WL 4627078 (W.D. La. July 30, 2010), report and recommendation adopted, 2010 WL
4607529 (W.D. La. Nov. 5, 2010), aff’d sub nom. Hamm v. Island Operating Co., Inc., 450 F. App’x
365 (5th Cir. 2011). Even assuming that general maritime law applies, under Ryan and the cases
it cites this action is nonetheless removable, again with the proviso that the Jones Act claim against
Abe’s Boat Rentals is severed and remanded to the state court.
III.

Conclusion
Willie Wells’s motion to remand, (Docket Entry No. 2), is granted in part and denied in part.

It is granted in that Wells’s claims against Abe’s Boat Rentals are severed and remanded to the
125th Judicial District Court of Harris County, Texas. It is otherwise denied; the claims against
Energy XII and IOC remain in this court.
SIGNED on June 18, 2013, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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