Clapp v. Halliburton Energy Services, Inc.

Filing 22

MEMORANDUM OPINION AND ORDER - The court concludes that Plaintiff's Jones Act claim is not fraudulently pleaded, and his Jones Act claim is not removable under 28 U.S.C. § 1445(a). The court has OCSLA subject matter jurisdiction over Pla intiff's claim for maintenance and cure under 43 U.S.C. § 1349(b)(1). Nevertheless, § 144l(c) does not authorize removal or severance of an action containing a Jones Act claim and a general maritime claim. Plaintiff's 9 MOTIO N to Remand is therefore GRANTED. This action is REMANDED to the 164th Judicial District Court of Harris County, Texas...*** 5 MOTION to Dismiss Under Federal Rules Of Civil Procedure 12(B)(7) And 12(B)(3) And Alternative Motion To Transfer Or Stay is DENIED AS MOOT...*** Terminate: 20 Supplemental MOTION to Remand...*** Case terminated on 3/5/25. (Signed by Judge Sim Lake) Parties notified. (sra4)

United States District Court
Southern District of Texas

ENTERED
March 05, 2025

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ERIC CLAPP,

Nathan Ochsner, Clerk

§

§
§
§
§
§
§
§
§
§

Plaintiff,
v.
HALLIBURTON ENERGY SERVICES,
INC.,
Defendant.

CIVIL ACTION NO. H-24-3550

MEMORANDUM OPINION AND ORDER

Eric
Judicial

Clapp

("Plaintiff")

District

Halliburton

Energy

Court

of

Services,

filed
Harris
Inc.

this

action

County,

in

Texas,

("Defendant") . 1

the

164th

against
Plaintiff

alleges a Jones Act negligence claim and a claim for failure to pay
maintenance and cure. 2

Pending before the court is Plaintiff's

Motion to Remand and Supporting Brief (Docket Entry No. 9).

For

the reasons set forth below, Plaintiff's Motion to Remand will ~e
granted.

1

Plaintiff's Original Petition ("Petition"), Exhibit A-2 to
Notice of Removal, Docket Entry No. 1-4; Notice of Removal, Docket
Entry No. 1, p. 1 i 1. All page numbers reference the pagination
imprinted at the top of the page by the court's Electronic Case
Filing system.
2

Peti tion, Exhibit A-2 to Notice of Removal, Docket Entry
No. 1-4, pp. 4-6. References to Plaintiff's Jones Act negligence
claim include his gross negligence allegations.

I.

Background

Plaintiff filed this action on August 26, 2024, in the 164th
Judicial District Court of Harris County,

Texas. 3

Plaintiff

alleges that he was injured during his employment for Defendant
aboard a drillship, the Noble Globetrotter II when Hurricane Ida
struck the drillship. 4
Defendant removed the action to this court on September 20,
2024. 5

Plaintiff's Motion to Remand was filed on October 18, 2024,

Defendant responded, and Plantiff replied. 6
Defendant

argues

that

the

court

has

subject

matter

jurisdiction over Plaintiff's claims under the Outer Continental
Shelf Lands Act

("OCSLA") and that Plaintiff has fraudulently

pleaded Jones Act seaman status. 7

Defendant argues that if the

court does not find that Plaintiff fraudulently pleaded Jones Act
seaman status, Plaintiff's Jones Act claim should"be severed and
remanded and that the court should retain Plaintiff's claim for
Notice of Removal, Docket Entry No. 1, p. 1 i 1.

3

Petition, Exhibit A-2 to Notice of Removal, Docket Entry
No. 1-4, pp. 3-4 ii 9, 13, 14.
4

Notice of Removal, Docket Entry No. 1.

5

Plaintiff's Motion to Remand, Docket Entry No. 9; Defendant's
Opposition to Plaintiff's Motion to Remand
("Defendant's
Response"), Docket Entry No. 12; Plaintiff's Reply in Support of
His Motion to Remand, Docket Entry No. 15.
Plaintiff filed a
Supplement to Plaintiff's Motion to Remand Based on New Evidence
(Docket Entry No. 20), which the court need not consider to resolve
Plaintiff's Motion to Remand.
6

Defendant's Response, Docket Entry No. 12, p. 9 § II.

7

-2-

maintenance and cure.8

Plaintiff argues that the court lacks

subject matter jurisdiction because (1) he alleges a single Jones
Act claim that is made nonremovable by statute,. and
jurisdiction does not apply. 9

(2) OCSLA

Plaintiff argues that his single

Jones Act claim is not severable and that the action must be
remanded in whole. 10
II.
A.

Subject Matter Jurisdiction

Removal
Under 28 U.S.C. § 1441{a), 11 a defendant may remove a state

court civil action to federal district court if the court has
original subject matter jurisdiction.

See Gasch v. Hartford

Accident & Indemnity Co., 491 F.3d 278, 281 (5th Cir. 2007).

"If

at any time before final judgment it appears that the district
court

lacks

remanded."

subject
28

matter

u.s.c.

§

jurisdiction,

1447 {c).

"Lack

the

case

of

subject

jurisdiction may be found in any one of three instances:

shall

be

matter
(1) the

complaint alone; (2) the complaint supplemented by undisputed facts

9

Plaintiff's Motion to Remand, Docket Entry No. 9, p. 8.

11 Title 28 U.S.C.
§ 1441 (a) states:
"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."

-3-

evidenced in the record;

or (3) the complaint supplemented by

undisputed facts plus the court's resolution of aisputed facts."
Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

B.

The Outer Continental Shelf Lands Act
Under OCSLA federal courts have subject matter jurisdiction

over "cases and controversies arising out of, or in connection with
(A) any operation conducted on the outer Continental Shelf ["OCS"]
which involves exploration,
minerals,

development,

or production of the

of the subsoil and seabed of the outer Continental

Shelf[.]"

43 U.S.C. § 1349(b) (1).

"Courts typically assess

jurisdiction under this provision in terms of whether (1) the
activities that caused the injury constituted an
'conducted on the outer Continental Shelf'

'operation'

that involved the

exploration and production of minerals, and (2) the case 'arises
out of, or in connection with' the operation."
Horizon, 745 F.3d 157, 163 (5th Cir. 2014}.

In re Deepwater

With respect to the

second prong, the Fifth Circuit "deems § 1349 to require only a
'but-for' connection" between a mineral operation-and the alleged
injury.

C.

Id.

Jones Act Claims
Title 46 O.S.C. § 30104 states that "[a] seaman injured in the

course of employment .

. may elect to bring a civil action at

law, with the right of trial by jury, against the employer."

Such

a

the

claim

"may

United States."

not

be

removed

to

any

district

court

of

28 U.S.C. § 1445(a); 46 O.S.C. § 30104(a); ?
-4-

also Santee v. Oceaneering International, Inc., 110 F.4th 800, 805
(5th Cir. 2024) ("[C]laims [under § 30104] filed in state court
generally are 'not subject to removal to federal court.'").
"A Jones Act claim also requires proof of an employment
relationship either with the owner of the vessel or with some other
employer who assigns the worker to a task creating a vessel
connection[.]"

Guidry v. South Louisiana Contractors, Inc., 614

F.2d 447, 452 (5th Cir. 1980). "The employer need not be the owner
of the vessel, and independent contractors may be liable under the
Act." Volyrakis v. M/V Isabelle, 668 F.2d 863, 865 (5th Cir. 1982)
(internal citation omitted), overruled on other grounds by In re
Air Crash Disaster Near New Orleans, La. on July 9, 1982, 821 F.2d
1147 (5th Cir. 1987).
A plaintiff is a Jones Act seaman if (1) the "'employee's
duties [] contribute to the function of the vessel or to the
accomplishment

of

its

mission'"

and

(2)

the

employee

has

"'a connection to a vessel in navigation (or to an identifiable
group of such vessels) that is substantial in terms of both its
duration and its nature.'"
S. Ct. 1535,

Harbor Tug and Barge Co. v. Papai, 117

1540 (1997) (quoting Chandris, Inc. v. Latsis, 115

S. Ct. 2172, 2190 (1995)).
The first prong "is very broad:

'All who work at sea in the

service of a ship' are eligible for seaman status."

Chandris, 115

S. Ct. at 2190 (quoting McDermott International, Inc. v. Wilander,
111 S. Ct . 807 , 817 (1991) .
5-

The

second

plaintiff's

prong

connection

includes
to the

duration and in nature.

two

requirements

vessel must

that

the

be substantial in

See Papai, 117 S. Ct. at 1540.

respect to the substantial duration element,

With

courts apply "an

appropriate rule of thumb for the ordinary case:

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. ''

Chandris, 115 S. Ct. at 2191; see also Sanchez v. Smart

Fabricators of Texas, L.L.C., 997 F.3d 564, 574 (5th Cir. 2021)
("[G]enerally if a worker spends at least 30 percent of his time
aboard a vessel or a fleet of vessels, then he establishes the
duration prong.").
For the substantial-in-nature element, the
identified four factors that guide the analysis:

Fifth

Circuit

(1) whether the

plaintiff is subject to "'the perils of the sea 111 in his job,
(2) whether the plaintiff "owe[s] his allegiance to the vessel,
rather than simply to a shoreside employer[,]"
plaintiff's

"work

activity[,]" and

[is]

sea-based

or

(3) whether the

involve[s]

seagoing

(4) whether the plaintiff's "assignment to a

vessel [is] limited to performance of a discrete task after which
the worker's connection to the vessel ends, or [instead whether the
plaintiff's] assignment includes sailing with the vessel from port
to port or location to location[.]"

Sanchez, 997 F.3d at 573-74.

"[D]efendants may pierce the pleadings to show that the Jones
Act claim has been fraudulently pleaded to prevent removal[.]"
6-

Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207
1993).

(5th Cir.

"As in fraudulent joinder cases, defendants' burden of

persuasion is a heavy one." Id. The Fifth Circuit has "recognized
the district court's autho

ty to use a summary judgment-like

procedure for disposing of fraudulent pleading claims."
v. Cargill, Inc., 48 F.3d 173, 176 (5th Cir. 1995).

Burchett

"'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.'"
Sounding Co., Inc., 437 F.3d 441, 445 (5th

Holmes v. Atlantic

r. 2006), abrogated on

other grounds by Lozman v. City of Riviera Beach, Florida, 133
S. Ct. 735 (2013).
III.
A.

Analysis

Whether OCSLA Jurisdiction Applies

Defendant argues that OCSLA jurisdiction applies because
(1) the Noble Globetrotter II engaged in an operation on the OCS
involving the extraction of minerals and (2) Plaintiff's alleged
injuries would not have occurred but for the operation.

Plaintiff

argues that OCSLA jurisdiction includes a "situs" requirement, that
the Noble Globetrotter II's involvement in the operation ceased
prior to the injury, and that Defendant must show a "substantial
nexus" between the operation and alleged injury -'not merely but­
for causation.12
12

Plaintiff's Motion to Remand, Docket Entry No. 9, pp. 17-18.
-7-

Defendant's uncontradicted evidence shows that in August of
2021,

Shell

Offshore,

Inc.

("Shell")

was

engaged

in

the

exploration, development, and production of oil and gas from the
Princess P-12 well in the OCS, that Defendant contracted to provide
cementing services to Shell for completion of the Princess P-12
well, that Defendant's cementing services were provided on a cement
unit affixed to the Noble Globetrotter II,

and that Plaintiff

worked on the Noble Globetrotter II to provide these cementing
services.13 Plaintiff disputes none of this but argues that because
the Noble Globetrotter II had unlatched to try to avoid Hurricane
Ida, the ship was not engaged in a mineral extraction operation at
the time Plaintiff was injured. 14
Although an "operation" is not defined in the statute, the
Fifth Circuit has interpreted it to mean "doing of some physical
act" on the OCS.

Amoco Production Co. v. Sea Robin Pipeline Co.,

844 F.2d 1202, 1207 (5th Cir. 1988).

The Fifth Circuit elaborated

in EP Operating Limitetd Partnership v. Placid Oil Co., stating
that "operation" should be read to include "the full range of oil
and gas activity from locating mineral resources through the
construction, operation, servicing and maintenance of facilities to
produce those resources."

EP Operating Limited Partnership v.

Declaration of Troy Sonnier ("Sonnier Deel."), Exhibit 1 to
Defendant's - Response, Docket Entry No. 12-1, p. 2 ii 6-8;
Declaration of Justin Denais ("Denais Deel."), Exhibit 2 to
Defendant's Response, Docket Entry No. 12-2, p. 1· i 4, p. 2 i 7.
13

14

Plaintiff's Motion to Remand, Docket Entry No. 9, p. 17.
-8-

Placid Oil Co.,

26 F.3d 563,

568

(5th Cir. 1994).

Shell's

extraction from the Princess P-12 well (and Defendant's cementing
services provided via the Noble Globetrotter II-) are "physical
acts" done on the OCS and easily fall within "the full range of oil
and gas activity" contemplated by EP Operating.

Defendant has

therefore shown the existence of an "operation conducted on the
[OCS] which involves exploration, development, or production of the
minerals .

of the outer Continental Shelf[.]"

43 U.S.C.

§ 1349 (b) (1).
The only other requirement is a but-for connection between the
operation and Plaintiff's alleged injuries.

In Tennessee Gas

Pipeline v. Houston Casualty Insurance Co., 87 F.3d 150, 152 (5th
Cir. 1996), "[a]n ocean-going vessel, in the tow of a tug whose
helmsman

was

reading

a

novel,

[collided]

with

a

[mineral

extraction] platform secured to the outer continental shelf[.]"
The platform owner sued the tugboat's insurer in state court, and
the

insurer

jurisdiction.

removed
Id.

on

the

basis

of

OCSLA

subject

matter

The platform owner argued that OCSLA did not

apply because its injuries arose from a navigational error - not
from a mineral operation. Id. at 155.

The

fth Circuit held that

because the navigational error would not have occurred but for the
mineral operation, OCSLA jurisdiction applied.
The but-for causation requirement i? satisfied in this case.
Similar to Tennessee Gas Pipeline, a force unrelated to Defendant's
mineral operation - Hurricane Ida
-9-

physically

ured

iff.

However, Plaintiff would not have been on the Noble Globetrotter II
in Hurricane Ida's path but for Defendant's operation on the OCS.
Plaintiff's alleged injuries therefore "ar[ose]
connection

with"

a

mineral

extraction

out of,

operation.

or in

u.s.c.

43

§ 1349 (b) (1).

Plaintiff argues that OCSLA j

sdiction depends on a situs

requirement that is not satisfied here because the ship was not
connected to the OCS at the time of Plaintiff's injuries.

Subject

matter j

sdiction is just one of multiple matters that OCSLA

addresses

regarding

the

OCS.

Other

provisions,

43

u.s.c.

§§ 1333 (a) (1), 1333 (a) (2) (A), regulate what substantive law applies

to the OCS (and therefore what law governs various disputes arising
on the OCS). Courts turn to these provisions "to ascertain whether
state,

federal,

or maritime law applies to a particular [OCS]

case."

Deepwater Horizon, 745 F.3d at 164.

In that analysis it is

relevant whether the controversy "ar(o]se on a situs covered by
OCSLA

(i.e.

permanently

the
or

subsoil

seabed,

temporarily

attached

or

artificial

thereto)."

structures
Grand

Isle

Shipyard, Inc. v. Seacor Marine, LLC, 589 F.3d 778, 783 (5th Cir.
2009); see also 43

u.s.c.

§ 1333 (a) (1) (A).

A few courts have

imported this situs requirement into their analysis of subject
matter jurisdiction, but the

fth Circuit has made clear that the

two analyses should not be conflated and that OCSLA subject matter
j

sdiction does not include a situs requirement. -United States

v. Kaluza,

780 F.3d 647,

655

(5th Cir. 2015)
-10-

("[T]he issue of

whether the rig was an OCSLA situs does not implicate subject
matter jurisdiction.

. We have held that this subject matter

jurisdiction inquiry should not be conflated with tpe choice-of-law
inquiry.");

Deepwater

Horizon,

745

F.3d

at

164

(plaintiffs'

"attempt to intertwine the Section 1349 jurisdictional inquiry with
OCSLA's choice of law provision, 43 U.S.C. § 1333, fails because
the provisions and the issues they

are distinct.

Because federal jurisdiction exists for cases 'arising out of, or
in connection with' OCS operations, 43 U.S.C. § 1349, the statute
precludes an artifi

limit based on situs[.]").

It therefore

does not matter that the Noble Globetrotter II was not physically
attached to the OCS at the time of Plaintiff's injuries.
Plaintiff also argues that the Noble Globetrotter II had
ceased operations when Plaintiff was injured.
explained above, OCSLA subject matter j

court

But as

sdiction covers claims

"arising out of, or in connection with" a mineral operation
just those that arose during a mineral operation.

not

43 u.s.c.

§ 1349(b)(1); Placid Oil Co., 26 F.3d at 568 ("Production from oil
and gas facilities can be interrupted and there can be a hiatus in
activity for any number of reasons. Such temporary lulls in
activity should not control jurisdiction in federal court.").
Plaintiff argues

some courts have required something more

than but-for causation, such as a subs

al nexus, for OCSLA

subject matter jurisdiction to apply.

In Pacific Operators

Offshore,

LLP v.

Valladolid,

132 S. Ct. 680,
-11-

690 (2012),

the

Supreme Court analyzed the scope of 43 U.S.C. § 1333(b), which
states that compensation is available under the federal Longshore
and Harbor Workers' Compensation Act ("LHWCA") for "'disability or
death of an employee resulting from any injury occurring as the
result of [mineral] operations conducted on the outer Continental
Shelf[.]'"

The Court held that§ 1333(b) requires a "substantial

nexus" between an OCS mineral operation and the employee's injury
for the LHWCA to apply.

Id. at 691.

Section 1333(b) addresses a different question (applicability
of substantive law) and uses different causation language than
§ 1349(b)(1). 15 Moreover, since Pacific Operators the Fifth Circuit
has continued to state that subject matter jurisdiction under
§ 1349(b)(1) requires only a but-for connection between a mineral
operation and a claim.

Deepwater Horizon, 745 F.3d at 163. 16

Because the relevant activities, i.e. Shell's completion of
the Princess

P-12

well and Defendant's accompanying cementing

services, are "operation[s] conducted on the [OCS] which involve
Compare 43 U.S.C. § 1333(b) (". . . any injury occurring as
the result of operations conducted on the outer Continental Shelf
.") with 43 U.S.C. § 1349(b)(1) ("[T]he district courts . . .
shall have jurisdiction of cases and controversies arising out of,
or in connection with (A) any operation conducted on the outer
Continental Shelf . . .") (emphasis added).
15

Even if a substantial nexus caus
on standard were to apply,
it would be met under Plaintiff's allegations. Plaintiff alleges
that Defendant failed'to timely evacuate him and that the Noble
Globetrotter II failed to unlatch until it was too late to avoid
Hurricane Ida. Petition, Exhibit A-2 to Not
of Removal, Docket
Entry No. 1-4, pp. 3-4 i? 13-14. The decisions of whether and when
to evacuate crew and when to unlatch due to severe weather are part
of the mineral operation.
16

-12

[mineral] exploration, development, or productiofl," and because
Plaintiff's claims "ar[ose] out of, or in connection with" those
mineral

operations,

OCSLA

grants

jurisdiction over this action.
B.

the

court

subject

matter

43 U.S.C. § 1349(b)(1).

Whether Plaintiff is a Jones Act Seaman
Defendant argues that Plaintiff fraudulently pleaded a Jones

Act claim.17 In particular, Defendant argues that Plaintiff did not
have a connection to the Noble Globetrotter II that was substantial
in duration or nature. 18
1.

Substantial in Duration

The parties

present

contradictory

evidence regarding the

duration of Plaintiff's connection to the Noble Globetrotter II.
Plaintiff's Deel. states:
2.

17

I started working for Halliburton Energy Services
Inc., in 2017. I was permanently assigned to the
Noble Globetrotter II as a service supervisor in
On August 29, 2021, the date of my
early 2019.
inj
es, I had been working for Halliburton for
more than three years. I was assigned to the Noble

Defendant's Response, Docket Entry No. 12, p. 23.

The first prong of the Jones Act seaman test
that
Plaintiff's duties contributed to the function of the vessel or to
the accomplishment of its mission
appears to be undisputed.
Moreover, Defendant's evidence shows that Plaintiff maintained its
cementing equipment and prepared cement for pouring, Declaration of
Eric Clapp ("Plaintiff's Deel."), Exhibit 2 to Plaintiff's Motion
to Remand, Docket Entry No. 9-2, p. 2 1 3, which contributed to the
Noble Globetrotter II's mission of completion of the Princess P-12
well.
Sonner Deel., Exhibit 1 to Defendant's Response, Docket
Entry No. 12-1, p. 2 11 7-8. This easily falls within the "very
broad" category of "[a]ll [those] who work at sea in the service of
a ship[.]" Chandris, 115 S. Ct. at 2190.
18

-13-

Globetrotter II for the entirety of that time with
no end date for my assignment.
3.

In my work for Halliburton, I spent at least 99% of
19
my time on the Noble Globetrotter II.

Defendant's

Response

Assignment History. " 20

attaches

a

record

titled

"Eric

Clapp

Plaintiff's Assignment History indicates

that Plaintiff served stints on various boats or rigs for Defendant
from June of 2014 through September of 2021.21 That tenure included
a few vessels to which Plaintiff was assigned for a week or less,
but most of his assignments were for several consecutive months. 22
Out of the last 23 months shown, only one assignment (lasting just
over a week) was on a ship other than the Noble Globetrotter II.23
Based on the Assignment History, Defendant calculates that 26.8% of
Plaintiff's time working for Defendant was spent on the Noble
Globetrotter II. 24
Plaintiff has offered evidence that he spent substantially
more than 30% of his work t

on the Noble Globetrotter II; and

the court, employing "a summary judgment-like procedure," resolves
factual disputes in Plaintiff's favor.

Burchett, 48 F.3d at 176.

Plaintiff's Deel., Exhibit 2 to Plaintiff's Motion to Remand,
Docket Entry No. 9-2, p. 2.
19

mEric Clapp Assignment History ("Assignment History"),
Exhibit D to Denais Deel. , Exhibit 2 to Defendant's Response,
Docket Entry No. 13-7.
21

at 4-5.

23

Id. at 5.

24

Defendant's Response, Docket Entry No. 12, p. 13.
-14

Plaintiff

has,

at

this

stage,

shown

that

he

satisfies

the

substantial-in-duration element of being a Jones Act seaman.
2.

Substantial in Nature

To determine whether Pla

ff had a connection to the Noble

Globetrotter II that was substantial in nature, the court weighs
the four factors stated in Sanchez, 997 F.3d at 573-74.
a.

Whether Plaintiff Was Subject to the Perils of the
Sea

Plaintiff presents evidence that he was subject to the perils
of the sea in his work.

Plaintiff's Deel. states that he spent

over 99% of his work time aboard the ship and that he sailed with
it wherever it went.
of Mexico,

Moreover, this work was located in the Gulf

not "a calm river or bay" or "a quiet canal."

See

Sanchez, 997 F.3d at 574.
b.

Plaintiff's Allegiance

Plaintiff was employed by Defendant - not the vessel's owner.
But paragraph 5 of Plaintiff's Deel. states:
I had to
In order to work on the Noble Globetrotter
be authorized and assigned by the Captain.
I was
required to follow orders from the Captain and other
senior members of the crew.
The Halliburton lead
supervisor on the vessel took orders from the Captain and
worked in conjunction with the Captain to operate the
vessel.
As a service supervisor, I
into the
hierarchy of the vessel, worked as part of the crew, and
was subject to the chain of command on the vessel. 25
Plaintiff's Deel., Exhibit 2 to Plaintiff's Motion to Remand,
Docket Entry No. 9-2, p. 3 1 5.
25

-15-

"[A] maritime worker may possess allegiance to both a vessel
on which he has had longstanding employment and his shoreside
employer."

Santee v. Oceaneering International, Inc., 110 F.4th

800, 807 (5th Cir. 2024) (emphasis in original).
affidavit similar to Plaintiff's,

the

Evaluating an

fth Circuit in Santee

concluded that the plaintiff's evidence supported his allegation
that he owed dual allegiance to his employer and to the vessel.
Id.

The court emphasized that the plaintiff "spent over 96% of his

employment time

in

the

last five

years

with

[his

employer]

(specifically assigned to [a ship owned and operated by a third
party]), reported to [the customer's] project leader,

and took

orders from both [the customer] and the captain of the vessel."
Id.

The Fifth Circuit reversed the district court's ruling that

the plaintiff h?d fraudulently pleaded Jones Act seaman status.
ke the Santee plaintiff, Plaintiff spent most of his work
time for an extended period on the Noble Globetrotter II and was
subject to the orders of the vessel's captain.

Plaintiff has

presented evidence that he "owe[d his] allegiance to a vessel and
not solely to a land-based employer[.]" Wilander, 111 S. Ct. at 813.
c.

Whether Plaintiff's Work Was Sea-Based

Defendant argues that Plaintiff's work, cementing,
sea-based because it was not "'inherently maritime[.]'" 26

was not
The cases

Defendant' s Response, Docket Entry No. 12, p. 30 (quoting
Roberts v. Cardinal Services, Inc., 266 F.3d 368. 378 (5th Cir.
2001)).
26

-16-

analyzing whether a plaintiff's work

sea-based focus on whether

the work was done at sea. ?, Phillips v. Javeler Marine Services,
LLC, 736 F. Supp. 3d 408, 419 (M.D. La. 2024) ("[T]he Court considers
whether Plaintiff's work was sea-based or involved seagoing activity.
In essence, this involves whether the worker's dut
sea.'").

'take him to

Plaintiff's cited authority discussing whether work is

"'inherently maritime'" does not relate to this factor. 27
Defendant argues that some of Plaintiff's work was done on
drilling rigs or on land but does not provide a percentage.
Because Plaintiff's Deel. states that he spent over 99% of his work
time aboard the Noble

Globetrotter II,

he has supported his

allegation that his work was sea-based.
d.

Whether Plaintiff's Assignment Was Limited to a
ing With the
Discrete Task or Instead Included
Vessel

Plaintiff's Deel.

states that he "worked,

slept,

aboard the vessel for days at a time during my hitches.
on a dock and returned to a dock when my hitch ended.
"did

not

l

from

I embarked
I

led

The Denais Deel. states that

with the vessel where it went. " 28
Plaintiff

and ate

port

to

port

with

the

Noble

The caselaw asking whether work is inherently maritime
relates to the substantial-in-duration requiremen?. See Roberts,
266 F.3d at 377-78. In particular it relates to an exception to
the general rule that a Jones Act seaman must spend,at least 30% of
his work time aboard the vessel. Id. The court is not aware of
any opinions importing this analysis into the substantial-in-nature
factors.
27

Plaintiff' s Deel., Exhibit 2 to Plaintiff's Motion to Remand,
Docket Entry No. 9-2, p. 2 1 3.
28

-17-

Globetrotter II.

For each hitch, he traveled to and from the Noble

Globetrotter II via a different vessel or helicopter provided by
the customer." 29

The Assignment History shows that Plaintiff worked

for several days or several weeks at a time on the ship and was
then

off

for

a

period

(also

lasting

days

or

weeks)

before

returning. 30
Reconciling this evidence,

it appears that Plaintiff worked

hitches on the ship lasting days or weeks and would sail with the
ship when it moved during his hitches but would leave the ship in
between his hitches.

The court understands the Denais Deel.

to

mean that Plaintiff was not aboard the ship long enough to make
full "port to port" journeys.
focused.

But this factor is not so narrowly

The factor seeks to distinguish workers "assigned to []

short-term, transitory task[s]" from those with more permanent or
open-ended connections to a vessel.

See Santee, 110 F.4th at 807.

The Sonnier Deel. and Plaintiff's lengthy tenure with the ship show
that cementing is a necessary,
oil

and

gas

operations. 31

long-term component of the ship's

Plaintiff's

Deel.

states

that

his

29

Denais Deel., Exhibit 2 to Defendant's Response, Docket Entry
No. 12-2, p. 3 i 18.
30

Assignment History, Exhibit D to Denais Deel., Exhibit 2 to
Defendant's Response, Docket Entry No. 13-7, p. 5.
31

Sonnier states that cementing "includes the cementing pipe
in place during the drilling phase of the project, the testing and
monitoring of pressure as fluids are pumped out of and into the
well during the drilling and completions phase of the project, and
pumping of weighted fluid into the pipe as a slug during the
(continued ... )
-18-

assignment to the ship had no end dat'e at the time of his injury. 32
Even

Plaintiff did not sail "port to port," his connection to

the vessel was not limited to a "discrete task" and was lasting
enough that he sailed with it "from location to location[.]"

See

Sanchez, 997 F.3d at 574.
Weighing the Sanchez Factors

e.

Plaintiff has

ented evidence that his work aboard the

Noble Globetrotter II subjected him to the perils of the sea, that
he owed his allegiance in part to the vessel, that his work was
sea-based, and that his assignment was not limited to a discrete
Although

task but instead included sailing with the vessel.

Defendant presents contrary evidence on some of these elements, the
court, for purposes of resolving a claim of fraudulent pleading,
resolves

factual

disputes

in

Plaintiff's

favor.

The

court

therefore concludes that Plaintiff had a connection to the Noble
Globetrotter II that was substantial in nature.
Because

Plaintiff's duties

accomplishment

of

[the

"contribute[d]

vessel's]

mission'"

the

to
because

he

had

31 ( ••• continued)

dril
and completion phase of the project. The cementing
processes are commonly used in the exploration, development,
completion and production, of oil, gas, and other minerals.,,
Sonnier Deel., Exhibit 1 to Defendant's Response, Docket Entry
No. 12-1, p. 2 1 11. Moreover, the Noble Globetrotter II had a
cementing unit "affixed" to the ship.
Id. ':ll 8.
Nothing in
Defendant's evidence suggests that the ·ship's need for cementing
equipment and personnel was temporary or sporadic.
Plaintiff's Deel., Exhibit 2 to Plaintiff's Motion to Remand,
Docket Entry No. 9-2, p. 2 1 2.
32

-19-

"'a connection to [the] vessel

. that [was] substantial in

terms of both its duration and its nature,'" he has properly
pleaded that he was a Jones Act seaman at the time of his injury.
Papai, 117 S. Ct. at 1540.

Plaintiff's claim under the Jones Act

is by definition outside the court's subject matter jurisdiction
and therefore must be remanded.
C.

Whether Plaintiff's Jones Act Claim Must Be Severed
Plaintiff states that he brings "a single Jones Act action

against Halliburton for negligence and maintenance and cure
quintessential Jones Act claims. "33

But maintenance and cure is a

separate claim that does not arise under the Jones Act.
Atlantic Sounding Co.,

See

Inc. v. Townsend, 129 S. Ct. 2561, 2570

(2009) ("The Jones Act thus created a statutory cause of action for
negligence,

but

it

did

not

eliminate

pre-existing

remedies

available to seamen for the separate common-law cause of action
based on a seaman's right to maintenance and cure.").
Defendant argues that if the court concludes that Plaintiff
has alleged a valid Jones Act claim, the court must sever the two
claims and only remand the Jones Act claim.

Defendant cites

28 U.S.C. § 1441(c), which states:
(1)

If a civil action includes
(A) a claim
sing under the Constitution,
laws, or treaties of the United States (within
the meaning of section 1331 of this title),
and

33

Plaintiff's Motion to Remand, Docket Entry No. 9, p. 20.
-20-

a claim _that
{B)
nonremovable by statute,

has

been

made

the ent
action may be removed if the action
would be removable without the inclusion of the
claim described in subparagraph (B).
the district court shall
(2) Upon removal
sever from the action all [nonremovable] claims
. . . and shall remand the severed claims . . .
Plaintiff's maintenance and cure

28 U.S.C. § 1441(c).

not arise under the Constituition,
United States;

laws,

or treaties of the

is a general maritime claim.

Vane Line Bunkering,

Inc.,

aim does

See Whittaker v.

No. 1:18-CV-00539 (MAD/DJS),

2018

WL 6179425, at *3 (N.D.N.Y. Nov. 27, 2018) ("General maritime claims,
such as claims for maintenance and cure, do not present federal
questions for purposes of Section 1331.").
terms, therefore does not apply.

Section 1441(c), by

Although the court has OCSLA

jurisdiction over Plaintiff's claim, § 1441(c) does not authorize
Defendant to remove an action alleging both a general maritime
claim and a nonremovable Jones Act claim.

For the same reason,

§ 144l(c) does not authorize the court to sever Plaintiff's claims.
The court is not aware of any analogous provision allowing removal
of actions containing both general maritime claims ?nd nonremovable
claims.

Plaintiff's entire action will therefore be remanded.
rv.

Conclusion and Order

The court concludes that Plaintiff's Jones Act claim

not

fraudulently pleaded, and his Jones Act claim is not removable
under 28 U.S.C. § 1445(a).

The court has OCSLA subject matter
-21-

j

sdiction over Plaintiff's claim for maintenance and cure under

43 U.S.C. § 1349(b) (1).

Nevertheless, § 144l(c) does not authorize

removal or severance of an action containing a Jones Act claim and
a general maritime claim.

Plaintiff's Motion to Remand (Docket

Entry No. 9) is therefore GRANTED.
164th Judicial Di

ct Court of

This action is REMANDED to the
s County, Texas. 3?

The Clerk will provide a copy of this Memorandum Opinion and
Order to the District Clerk of Harris County, Texas.
SIGNED at Houston, Texas, on this the 5th day of March, 2025.

SIM LAKE
SENIOR UNITED STATES DISTRICT JUDGE

34 Because the action was improperly removed, Defendant's Motion
to Dismiss Under Federal Rules of Civil Procedure 12(b)(7) and
12(b)(3) and Alternative Motion to Transfer or Stay (Docket Entry
No. 5) is DENIED AS MOOT.

-22-