Opinion
Civil Action No. 05-1630 Section "R" (3).
June 24, 2005
ORDER AND REASONS
Plaintiff Janice Lockhart moves to remand this matter to state court. Defendant Applied Coating Services, Inc. opposes the motion. For the following reasons, the Court GRANTS plaintiff's motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On April 9, 2004, John Lockhart worked for defendant Applied Coating Service, Inc. in the Gulf of Mexico as a painter/sandblaster on a fixed platform owned and operated by defendant Kerr-McGee Chemical, L.L.C. At approximately 8:55 p.m., Lockhart began to complain of chest pains and difficulty breathing and told the platform operator that he wanted a medic and a flight to a hospital. (Pl.s' Mot. to Remand, Ex. 1). Mr. Lockhart received CPR on the platform and was flown to West Jefferson Medical Hospital for treatment, where he was pronounced dead at 9:20 p.m. of probable cardiac arrhythmia. ( Id., Ex. 2).
On April 3, 2005, Mr. Lockhart's wife, Janice Lockhart, sued Applied Coating Services and Kerr-McGee in Civil District Court for the Parish of Orleans individually and on behalf of her husband. Plaintiff alleges that defendants are liable because they negligently failed to provide Mr. Lockhart with proper medical treatment. Plaintiff alleges that jurisdiction for the claims is "based upon the Outer Continental Shelf Lands Act, State Law, the Jones Act, General Maritime law, and the `savings to suitors clause.'"
On April 29, 2005, Applied Coating Services removed the matter to this Court. In its notice of removal, defendant asserts that Lockhart was not a Jones Act seaman and that plaintiff therefore fraudulently pleaded a cause of action under the Jones Act and the "savings to suitors" clause for the sole purpose of preventing removal to federal court. Defendant further asserts that this Court has removal jurisdiction under 28 U.S.C. § 1441 because there is complete diversity of citizenship under 28 U.S.C. § 1332 and because plaintiff has pleaded a separate and independent cause of action under the OCSLA that confers federal question jurisdiction on this Court.
Plaintiff now moves to remand this case to state court, asserting that remand is proper because defendant has not met its burden to show that plaintiff fraudulently pleaded a claim under the Jones Act. Plaintiff also disputes defendant's assertions that the OCSLA provides this Court with removal jurisdiction.
II. DISCUSSION
1. Applicable Law
A. Fraudulent Pleading of Jones Act Claim
As a general rule, Jones Act suits may not be removed from state court. See Fields v. Pool Offshore, Inc., 182 F.3d 353, 356-357 (5th Cir. 1999); Burchett v. Cargill, Inc., 48 F.3d 173 (5th Cir. 1995); Johnson v. Odeco Oil Gas Co., 864 F.2d 40, 42 (5th Cir. 1989). To determine whether a plaintiff alleges a claim under the Jones Act, the Court's inquiry is usually limited to a review of the plaintiff's pleadings. Lackey v. Atlantic Richfield Co., 990 F.2d 202, 206 (5th Cir. 1993). When, however, the removing party alleges that a Jones Act claim has been fraudulently pleaded to prevent removal, the Court may "pierce the pleadings" to determine whether the Jones Act claim is baseless in law and fact. Burchett, 48 F.3d at 175. The removing party has a heavy burden of persuasion to show that the Jones Act claim is fraudulently pleaded. Id. It must show that there is no possibility that plaintiff would be able to establish a cause of action under the Jones Act. Burchett, 48 F.3d at 176; Lackey, 990 F.2d at 207. In determining whether plaintiff's claims are baseless, the district court must resolve all disputed questions of fact and any ambiguities in the current controlling substantive law in favor of the plaintiff. Lackey, 990 F.2d at 208. Although plaintiffs "may submit affidavits and deposition transcripts along with the factual allegations in the verified complaint, there is no requirement that they do so," because defendant has the burden of proof. See id. (citation omitted); see also Jones v. Derrick Hammers, Inc., Civ. A. No. 92-0596, 1992 WL 125378, at *2 (E.D. La. May 20, 1992) ("The court will not try the question of seaman status on the motion to remand under the same standard and procedure as it would on a motion for summary judgment brought in a federal Jones Act suit."). Absent such proof from the defendant, "the case will be remanded without further delay." Lonthier v. Northwest Ins. Co., 599 F. Supp. 963, 965 (W.D. La. 1985).
2. Analysis
Defendant contends that plaintiff fraudulently pleaded a Jones Act claim because plaintiff has no possibility of establishing that Lockhart was a Jones Act seaman. The threshold basis for stating seaman status under the Jones Act is: 1) the worker has a connection to a vessel or fleet of vessels that is substantial in terms of both duration and nature; and 2) the worker's duties contribute to the function, mission, operation, or welfare of the vessel. Becker v. Tidewater, Inc., 335 F.3d 376 (5th Cir. 2003) (citing Chandris, Inc. v. Latsis, 515 U.S. 347 (1995)). A fleet of vessels is "an identifiable group of vessels that is acting together or under one control." New v. Assoc. Painting Servs., Inc., 863 F.2d 1205, 1208 (5th Cir. 1989). 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, 515 U.S. at 371.
Defendant has produced an affidavit from its operations manager, Billy Rife, who attests that Lockhart performed all of his job duties on fixed platforms, performed no job duties on vessels, and ate all meals and slept on fixed platforms. Rife also attests that, although Lockhart was transported to platforms on vessels, transportation was the extent of his use of the vessels, and the vessels were "not primarily used for sandblasting/painting operations." (Def.'s Opp. to Mot. to Remand, Ex. 1, Decl. of Billy Rife at ¶¶ 9-12). Finally, the operations manager attests that Mr. Lockhart's "use" of the vessels represented less than 5 percent of his work time, that Lockhart "did not offload any sand from any vessel while working on the Kerr-McGee job," that he had no duties regarding the operation of the vessels, and that he was not permanently assigned to a vessel or group of vessels under common ownership or control. ( Id. at ¶¶ 14-17).
If gone uncontroverted, this evidence would tend to establish defendant's position. Plaintiff, however, has submitted some evidence that tends to establish that Lockhart had a connection to a fleet of vessels that was used in offshore work and that his duties contributed to the mission of those vessels. Plaintiff relies on six "Foreman's Daily Reports," dated March 17, 18, 22, 25, 27, 2004 and April 7, 2004, which indicate that Lockhart, along with the rest of his crew, rode vessels to and from offshore work areas and performed some amount of work aboard the vessels. (Pl.s' Mot. to Remand, Ex. 7).
Construing all disputed questions of fact and any ambiguities in the current controlling substantive law in plaintiff's favor, the Court finds that defendant has not satisfied its heavy burden of proof to show that plaintiff's Jones Act claim is "baseless in law and in fact and serves only to frustrate federal jurisdiction." Lackey, 990 F.2d at 207. First, the vessels Lockhart used for transportation could qualify as a fleet, despite defendant's assertion to the contrary, because defendant's evidence also indicates that the vessels were all contracted by Kerr-McGee and therefore were under common control. (Def.'s Opp. to Mot. to Remand, Rife Decl. at ¶¶ 12-13 (indicating that Kerr-McGee maintained a group of vessels for transportation of workers and materials to platform jobs)). Evidence suggesting that the vessels were commonly controlled is sufficient to raise an issue as to whether the vessels comprise an identifiable fleet, regardless of whether the employer is the one who owns or operates the vessels. See New, 863 F.2d 1205 at 1208.
Second, plaintiff's evidence also suggests that Lockhart may have had a connection to the fleet of vessels that was substantial in duration and nature. Defendant points out that courts have determined on summary judgment that a plaintiff is not a seaman when it is undisputed that his connection with a vessel is merely for transportation to and from an offshore work site. See Ketnor v. Automatic Power, Inc., 850 F.2d 236, 238-39 (5th Cir. 1988) (citing Munguia v. Chevron Co., U.S.A., 768 F.2d 649 (5th Cir. 1985)); Hayles v. Sonat Exploration Co., 868 So.2d 276, 281 (La.Ct.App. 2004). The Fifth Circuit has also held, however, that when vessels used to transport workers to an offshore work area also carry all tools and equipment necessary for their work, some of which is performed on the deck of the vessel, and workers assist in the vessels' operations, the workers, as a matter of law, qualify as Jones Act seamen. See Coulter v. Texaco, Inc., 714 F.2d 467, 469 (5th Cir. 1983).
Here, the evidence regarding Lockhart's connection to the vessel is disputed, which itself indicates that defendant has not met its burden to show that plaintiff's claim is baseless in law and fact. Plaintiff's evidence indicates that the vessels carried materials, such as sand, that was necessary for the crew's work. And, although defendant's affiant states that Lockhart's "use" of the vessels represented less than 5 percent of his work time, that calculation is based on defendant's characterization that Lockhart's only connection to the vessels was for transportation. Further, the documents plaintiff submits suggest that the vessels also were used for offshore work that was done by crewmembers, such as Lockhart. Because a disputed issue of fact exists as to the nature of Lockhart's connection to the vessels and as to how much time he spent in their service, defendant has not shown that there is no possibility that Lockhart had a substantial connection to a fleet of vessels. Furthermore, defendant's affiant admits that the vessels were used to some extent for sandblasting and painting operations, not simply for transportation to a platform. ( See id., Ex. 1, Rife Decl. at ¶ 12 (the "vessels were used for multiple functions and were not primarily used for sandblasting/painting operations") (emphasis added)). Lockhart was a sandblaster/painter, and there are cases in which courts have found that a sandblaster/painter's duties in relation to a vessel used in sandblasting and painting operations raised disputed issues of fact with respect to seaman status. See Nolan v. Coating Specialists, Inc., 422 F.2d 377. 378-79 (5th Cir. 1970) (noting that, even though plaintiff did not work aboard a painting and sandblasting boat and was not a member of its crew, his sandblasting/painting duties "could be said to contribute to the mission of [the vessel]"); Funderburk v. Maintenance Assocs., Inc., 640 F. Supp. 813, 815 (E.D. La. 1986) (finding that disputed issues of fact regarding function of vessel and plaintiff sandblaster's duties aboard vessel prevented summary judgment on seaman status).
Drawing all factual inferences and legal ambiguities in plaintiff's favor, the Court is unable to say that plaintiff's Jones Act claim is fraudulently pleaded. Plaintiff's evidence contradicts defendant's evidence in some respects and arguably contradicts it in several others. Defendant's affidavit, which contains conclusions and characterizations of facts, disputes the interpretation of the evidence plaintiff submitted. This very dispute raises issues of fact that the Court cannot resolve on this motion to remand. Defendant's affiant has not been deposed, and the facts regarding Lockhart's status remain to be developed, particularly considering that Lockhart is deceased and cannot himself provide information or an affidavit regarding his activities. Because there are disputed issues of fact regarding the extent of Lockhart's connection to the vessels and of his contribution to the mission or function of the vessels, defendant has failed to establish there is no possibility that Lockhart will qualify as a Jones Act seaman. Accordingly, the Court finds that the Jones Act claim was not fraudulently pleaded.
B. Removability of the Jones Act Claim
Defendant argues that plaintiff's petition for damages states claims under the OCSLA that are separate and independent from plaintiff's Jones Act claims and therefore warrant removal of the entire case. 28 U.S.C. § 1441(c) permits removal of an entire case "[w]henever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action." 28 U.S.C. § 1441(c). Plaintiff's Jones Act claims are not removable because, under the "savings to suitors" clause, 28 U.S.C. § 1333(1), Congress intended for seamen to have their choice of a state or federal forum in Jones Act cases. See Rybolt v. Laborde Marine Lift, No. Civ.A. 00-3800, 2001 WL 263119, at *1 (E.D. La. Mar. 14, 2001).
Plaintiff, however, has also asserted claims under the OCSLA, which extends the original jurisdiction of federal courts to cases arising from activities on the outer continental shelf. See Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1226 (5th Cir. 1989). Plaintiff's OCSLA claim therefore raises a federal question and would be removable if sued upon alone. Because plaintiff's OCSLA claims are joined with non-removable Jones Act claims, however, removal of the entire case is justified only if the OCSLA claims are separate and independent from the non-removable Jones Act claims. 28 U.S.C. § 1441(c); see Rybolt, 2001 WL 263119, at *1 (citing Addison v. Gulf Coast Contracting Servs., Inc., 744 F.2d 494, 499-501 (5th Cir. 1987)). Defendant's reliance on Morris v. T E Marine Corp., 344 F.3d 439 (5th Cir. 2003), which held that a complaint that alleged claims under OCSLA was properly removed under 28 U.S.C. § 1441(a) and (b), is misplaced. Id. at 444. Morris did not involve a non-removable Jones Act claim, because the plaintiff in that case had amended his complaint to delete all claims of seaman status and to withdraw his Jones Act claim before the case was removed. Id. at 442. The presence of a non-removable Jones Act claim here plainly distinguishes this case from Morris and requires the Court to analyze whether it has jurisdiction under 28 U.S.C. § 1441(c), which permits removal of a case that joins an otherwise non-removable claim with a claim that would be removable if sued upon alone only if the latter is a separate and independent cause of action.
To determine whether the OCSLA claims are separate and independent for purposes of § 1441(c), the Court must examine whether there was a single wrong arising from an interlocking series of transactions. Rybolt, 2001 WL 263119, at *2 (citing Addison, 744 F.2d at 500). Alleging multiple causes of action or theories of recovery is not determinative of the independence of the claims. Id. Rather, "where there is a single wrong to plaintiff, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." McInnis v. Parker Drilling Co., No. Civ.A.01-2927, 2002 WL 461660, at *4 (E.D. La. Mar. 21, 2002) (citing American Fire Cas. Co. v. Finn, 341 U.S. 6, 14 (1951)). Because plaintiff's claims arise from a single set of facts and seek a single recovery, plaintiff's claims against Applied Coating Services and Kerr-McGee are not separate and independent. See Rybolt, 2001 WL 263119, at *2 (finding that plaintiff's claims against multiple defendants under the Jones Act, the OCSLA and general maritime law not removable because they arose from a single set of facts and sought a single recovery). Defendant's arguments to the contrary are meritless, because "the simple fact that there are multiple defendants each sued under a different theory of recovery does not render the claims separate and independent." McInnis, 2002 WL 461660, at *4. Accordingly, this matter is not removable and must be remanded to state court.
IV. CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiff's motion to remand, and remands this matter to Civil District Court for the Parish of Orleans.