Opinion
Civil Action No: 01-3407 Section: "R" (5)
March 4, 2002
ORDER AND REASONS
Plaintiff Stephen A. Lopez, Sr. filed this suit against Air Logistics, LLC. and Textron, Inc. in state court to recover damages arising from personal injuries that Lopez allegedly suffered when the helicopter transporting him to an offshore platform located off the Coast of Louisiana crashed into the Gulf of Mexico. Plaintiff is a citizen of Louisiana. Air Logistics is company incorporated in Louisiana. Textron is a foreign company. Defendants timely removed this suit to federal court pursuant to 28 U.S.C. § 1441. Plaintiff contends that since he seeks recovery solely under general maritime law, this case is not removable and moves to remand the case to state court. For the following reasons, plaintiff's motion is granted.
28 U.S.C. § 1441 provides in pertinent part:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in State court of which the district courts of the United States have original jurisdiction, may be removed by defendant or the defendants, to the district court of the United States for the district and division embracing the place and where such action is pending. . . .
(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising 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.
I. BACKGROUND
On August 5, 2001, Stephen A. Lopez, Sr., an offshore production operator employed by Grasso Production Management, was a passenger on a Bell model 206L-1 helicopter owned and operated by Air Logistics and manufactured by Textron, which was taking him to a job on an oil production platform. The helicopter crashed near the offshore platform and fell into the Gulf of Mexico. Lopez filed suit in state court under the Savings to Suitor's Clause, 28 U.S.C. § 1333 , asserting claims under the general maritime law. (Compl., at ¶ 1.) Defendants removed the case to federal court under 28 U.S.C. § 1441, asserting that this Court had original subject matter jurisdiction over plaintiff's claims. Specifically, defendants argue that plaintiff's claims are governed by the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1349. Plaintiff argues that even if the Court had original jurisdiction under OCSLA, the case is not removable because he has alleged only claims arising under the general maritime law. He therefore asks a remand. The Court held oral argument on the motion to remand on February 20, 2002.
28 U.S.C. § 1333 states:
The district courts shall have original jurisdiction, exclusive of the court of the States, of:
(1) any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. . . .
II. ANALYSIS
A civil action filed in state court may be removed to federal court if the district court would have had original jurisdiction over the plaintiff's claim, and the cause of action arises under federal law. Tennessee Gas Pipeline v. Houston Cas. Ins., 87 F.3d 150, 154-55 (5th Cir.), reh'g suggested reh'g en banc denied, 95 F.3d 1151 (5th Cir. 1996). In Tennessee Gas, the Fifth Circuit held that although federal courts have original jurisdiction over admiralty claims, maritime law does not arise under federal law and therefore fails to satisfy the removal requirements of 28 U.S.C. § 1441 (b). Id. ("It is well established that [general] maritime claims do not `aris[e] under the Constitution, treaties or laws of the United States' for purposes of federal question and removal jurisdiction.") (citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 377-79, 79 S.Ct. 468 (1959)).
In this case, defendants assert that the Court has original jurisdiction under OCSLA. They then argue that OCSLA jurisdiction alone creates "arising under" jurisdiction for purposes of Section 1441 removal. In the alternative, defendants contend that in the complaint, plaintiff asserted state law claims, which are governed by OCSLA and may be removed under 28 U.S.C. § 1441 (b). "[I]t is also well established that the savings clause does not prevent the removal of maritime claims when original jurisdiction is based upon something other than admiralty." Tennessee Gas, 87 F.3d at 153.
A. Original Jurisdiction Under OCSLA
OCSLA establishes federal jurisdiction and control over the resources located on the Outer Continental Shelf. The statute extends federal control over the "subsoil and seabed" that is the Shelf, as well as "the artificial islands," or fixed structures that are constructed upon it. 43 U.S.C. § 1333 (a)(1). The jurisdictional grant of OCSLA provides that "the district courts of the United states shall have jurisdiction of cases and controversies arising out of, or in connection with (A) any operation conducted on the Outer Continental Shelf which involves exploration, development, or production of the minerals, of . . . the Outer Continental Shelf." 43 U.S.C. § 1349 (b)(1). Therefore, two requirements must be satisfied for OCSLA to govern a specific case: the defendant must be associated with operations conducted on the Shelf, and the alleged accident must be associated with such operations. Tennessee Gas, 87 F.3d at 154-55.
Although plaintiff did not assert any OCSLA claims, the Act will nonetheless govern if the requirements of the statute are satisfied by the Complaint. Tennessee Gas, 87 F.3d at 154-55. This case clearly meets the first jurisdictional requirement. The helicopter, owned and operated by Air Logistics and manufactured by Textron, was taking Lopez to an offshore oil production platform — an OCSLA enclave. In his motion to remand, Lopez argues that defendants fail to satisfy the second jurisdictional requirement because the helicopter accident was caused by pilot error, rather than by the platform.
Although the Fifth Circuit has described OCSLA's jurisdictional grant as "very broad," it is not unlimited. Tennessee Gas, 87 F.2d at 154. OCSLA will not apply to an accident that is not somehow connected to the Shelf. To determine if a claim is connected to Shelf operations and is therefore governed by the Act, the Court must determine if the accident involved a fixed offshore platform. In Recar v. CNG Producing Co., 853 F.2d 367, 369 (5th Cir. 1988), the Fifth Circuit explained that courts should utilize a "but for" test to decide if a "dispute arises out of, or in connection with" offshore operations. Id. The Supreme Court addressed the issue of whether an accident in which a helicopter ferrying offshore workers between an offshore "island" and land was covered by OCSLA in Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 217-20, 106 S.Ct. 2485 (1986). The Court explained that OCSLA could not be extended to cover accidents involving platform workers "who were killed miles away from the platform and on the high seas simply because of their status as platform workers. Id. Although OCSLA might not be intended to cover maritime accidents "beyond its intended locale" of the artificial Shelf "islands," id. at 218, the accident in this case is not so remote. It is undisputed that defendants' helicopter experienced difficulties as it was "preparing to land" on the platform. (Def.'s Opp. Mot. Remand, Ex. 1, at 11, 36.) The pilot was "either over the deck [of the heliport on the platform"] or close to the deck" when problems arose. ( Id., at 36.) Indeed, the pilot had to "engage in a particular maneuver to avoid the platform." ( Id., at 37.) The Court finds these facts sufficient to satisfy the second jurisdictional requirement and finds that the Court had original jurisdiction under OCSLA, 43 U.S.C. § 1349.
B. The OCSLA and "Arising Under" Jurisdiction
In order to remove plaintiff's state court action, defendants must not only demonstrate that this Court had original jurisdiction over their claims, satisfying 28 U.S.C. § 1441 (a), but they must also show that plaintiff's case is based on claims "arising under" federal law pursuant to 28 U.S.C. § 1441 (b). See Hodges v. Shell Oil Co., 1997 WL 473809, at *2 (E.D. La. 1997) Defendants state that their only basis for removal is federal question jurisdiction. (Pet. for Removal, ¶ IV.) The Court therefore must determine whether plaintiff's OCSLA claims "arise under federal law," satisfying the first sentence of section 1441(b).
In Tennessee Gas, the Fifth Circuit discussed whether OCSLA claims "arise under" federal law for removal purposes. The court stated that "[g]iven the national interest that prompted Congress to pass OCSLA and grant broad jurisdiction under 43 U.S.C. § 1349, Congress arguably intended to vest the federal courts with the power to hear any case involving the OCS, even on removal, without regard to citizenship." Id. at 156. Although this language suggests that an OCSLA claim arises under federal law for purposes of Section 1441 removal, the Fifth Circuit did not rule on the issue. Whether an OCSLA claim can be removed as a federal question remains an unsettled question. See Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 351 (5th Cir. 1999) (noting, but not resolving the "conundrum").
Since the court found that the parties were diverse and that the plaintiff's claims were therefore removable under the second sentence of Section 1441(b), the Court did not definitively answer the "arising under" question. See Tennessee Gas, 87 F.3d at 156.
Nevertheless, in Hufnagel, the Fifth Circuit strongly suggested that OCSLA jurisdiction does not provide removal jurisdiction in general maritime cases, in the absence of diversity. 182 F.3d at 350 ("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, notwithstanding that it would fall within the federal district court's original jurisdiction under OCSLA.") The Hutnagel panel reiterated that section 1441(b) placed a restriction on removal: While claims "arising under" federal law may be removed without regard to citizenship, "[a]ny other such action" may be removed only if no defendant is a citizen of the state in which the action was filed. 182 F.3d at 350. It is settled law that maritime cases do not "arise under" federal law for purposes of federal removal jurisdiction. Tennessee Gas, 87 F.3d at 153. Further, although OCSLA applies to all claims arising on the Shelf, it is does not displace general maritime law if it is otherwise applicable. See id. at 154. Based on the language in Tennessee Gas and Hufnagel, and in the absence of a clear statement of law by the Fifth Circuit, the Court therefore finds that removal under OCSLA is not proper when plaintiff's claim is governed by maritime law.
Here, on the face of the Complaint, plaintiff asserts only negligence claims under the general maritime law. (Compl. at ¶ 1.) ("Petitioner files this claim under the Savings to Suitor's Clause set forth in 28 U.S.C. § 1333 (3), which preserves to the citizens of the various states the right to proceed in these courts in all matters sounding in maritime tort, and asserts actions pursuant to the General Maritime Law.") Defendants assert that removal is nevertheless proper because plaintiff also asserted Louisiana state claims, which would apply as surrogate federal law under section 1333(a)(2). See Demette, 2002 WL 58890 at *5; Hufnagel, 182 F.3d at 351, n. 8 (finding that if plaintiff asserted both maritime and state law claims in his complaint, the case would be removable under OCSLA).
Congress enacted OCSLA to "assert federal jurisdiction and control over the resources on the Outer Continental Shelf." Thomas J. Shoenbaum,Admiralty Jurisdiction, § 3-9 (2d Ed. 1994). The Act purports to extend the Constitution, laws and civil and political jurisdiction of the United States to the subsoil and seabed of the Shelf, as well as to the artificial islands constructed upon it. 43 U.S.C. § 1333 (a)(1). Recognizing that federal law may not exist to cover the variety of legal disputes associated with Shelf operations, Congress enacted Section 1333(a)(2), which provides that the law of the adjacent state is to be applied as "surrogate federal law" to the extent that it is not inconsistent with federal law. Rodrigue v. Aetna Cas. Sur. Co., 395 U.S. 352, 355, 89 S.Ct. 1835 (1969); see Tennessee Gas, 87 F.3d 150 at 153-54 ("State law was adopted as federal law because Congress knew that federal law, including maritime law, was inadequate to meet the full range of disputes that would arise on the OCS."). Although OCSLA applies to all claims arising on the Shelf, it is does not displace general maritime law if it is otherwise applicable. See Tennessee Gas, 97 F.3d at 154. Thus surrogate federal law is implemented only when three factors are satisfied: (1) the controversy arises on an OCSLA situs; (2) maritime law does not apply of its own force; and (3) state law is not inconsistent with federal law. See Demette v. Falcon Drilling Co., 2002 WL 58890, at *3 (5th Cir. 2002) (citing Union Texas Petroleum Corp. v. PLT Engineering, 895 F.2d 1043 (5th Cir. 1990)).
Section 1331(a)(1) of Title 43 of the United States Code provides in pertinent part:
The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer 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 outer Continental Shelf were an area of exclusive Federal jurisdiction located within a state.28 U.S.C. § 1331 (a)(1).
The relevant portion of OCSLA's `gap-filling' provision reads:
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 hereby 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. . . .28 U.S.C. § 1331 (a)(2)(A).
In this case, defendants do not dispute that plaintiff has asserted maritime claims. Defendants, however, argue that plaintiff also asserted state law claims when he asked that the defendants be held liable "jointly, severally and in solido for all damages," and that Lopez also asked for "past and future loss of wage and earning capacity." (Compl. ¶ 3, ¶ 13.) Defendants assert that in solido liability is a theory under Louisiana state law and not recognized in maritime law. Defendants similarly argue that loss of "earning capacity" is a measure of damages unique to Louisiana state law. Defendants contend that by using the terms " in solido" and "earning capacity," plaintiff seeks relief under Louisiana state law as well as maritime law.
The Court disagrees. " In solido" is a civil law term that simply means "joint and several." See BLACK'S LAW DICTIONARY 797 (6th ed. 1990); Touchard v. Williams, 617 So.2d 885, 889 (La. 1993). The Fifth Circuit has held that joint and several liability applies under general maritime law. See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1139 (5th Cir. 1995) (declining to replace joint and several liability with modified joint liability for general maritime law). Since in solido liability and joint and several liability are essentially the same, the Court finds that simply because plaintiff used the term " in solido" does not convert a general maritime negligence claim into a Louisiana state law claim. Moreover, in 1996, Louisiana abolished in solido liability for non-intentional torts, so that in solido liability does not even apply to a negligence claim under Louisiana law. See LA. CIV. CODE ANN. art 2324 (West 2002).
The Court also rejects defendants' assertion that asking for damages for lost "earning capacity" converts a claim under general maritime law into a Louisiana state law claim. First, loss of earnings capacity is an element of damages, not a cause of action. Furthermore, the Court has found numerous examples of courts' awarding plaintiffs damages for lost "earning capacity" when plaintiffs asserted only claims under general maritime law. See e.g., Couch v. Cro-Marine Transport, Inc., 44 F.3d 319, 327 (5th Cir. 1995); Comeaux v. C.F. Bean Corp., 750 So.2d 291, 299 (La.App. 4 Cir. 1999). Accordingly, the Court finds that plaintiff has asserted only claims under general maritime law, which are not removable under OCSLA. Cf. Stokes v. Petroleum Helicopters, 1997 WL 695557 (E.D. La. 1997) (finding that since plaintiffs asserted state law claims independent from their maritime claims and that were not facially inconsistent with federal law, plaintiff's state law claims arose under OCSLA).
In addition, defendants assert that removal is proper under the second sentence of 28 U.S.C. § 1441 (b), which provides that any action based on diversity jurisdiction is removable provided that none of the defendants is a citizen of the forum state. 28 U.S.C. § 1441 (b). Although defendants admit that Air Logistics is a Louisiana citizen, they nonetheless claim that removal is proper because plaintiff did not raise the issue of Air Logistics' citizenship in its motion to remand. The Court rejects defendants' argument as meritless. In their removal petition, defendants' sole asserted ground for removal was that the Court had subject matter jurisdiction under Outer Continental Shelf Lands Act. (Pet. for Removal, ¶ IV.) ("The above-described action is a case or controversy over which this Court has original subject matter jurisdiction pursuant to the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349, and may be removed pursuant to the provisions of 28 U.S.C. § 1441, et. seq.") Defendants did not raise the issue of diversity. Further, the Court notes that plaintiff, in his complaint, stated that Air Logistics was a Louisiana company. Since the parties are not diverse, this removal provision is not implicated in this case.
III. CONCLUSION
Since plaintiff asserted only general maritime claims in his Complaint, the Court finds that this case was improperly removed. Accordingly, plaintiff's motion to remand is hereby granted.