Glass et al v. Fieldwood Energy Llc et al

MOTION to Dismiss for Failure to State a Claim

E.D. La.January 19, 2017

{N3350647.1} IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BARBARA GLASS, ET AL. Plaintiffs, v. FIELDWOOD ENERGY, LLC, ET AL. Defendants. MASTER CASE NO. 2:16-cv-13762 c/w CASE NO. 2:16-cv-15922 JUDGE MARTIN L.C. FELDMAN MAGISTRATE MICHAEL B. NORTH DOCUMENT PERTAINS TO ALL CASES FIELDWOOD DEFENDANTS’ MOTION TO DISMISS Defendants, Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate move this Court under Federal Rule of Civil Procedure 12(b)(6) to dismiss the actions asserted by plaintiffs Barbara Glass, as Administratrix of the Succession of Robert Glass and as natural tutrix of Karli Glass, Kameron Glass, and Kyleigh Glass, and Misty Cruz, on behalf of Julian Cruz (Case No. 2:16-cv-13762), and plaintiff Keith M. Greene, Sr. (Case No. 2:16-cv-15922). For the reasons discussed in the attached memorandum, plaintiffs have failed to state a claim and their actions should be dismissed with prejudice. PRAYER Defendants Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate pray that their motion be granted and the Court enter a judgment dismissing with prejudice the actions asserted by plaintiffs Barbara Glass, as Administratrix of the Succession of Robert Glass and as natural tutrix of Karli Glass, Kameron Glass, and Kyleigh Glass, and Misty Cruz, on behalf of Julian Cruz (Case No. 2:16-cv-13762), and plaintiff Keith M. Greene, Sr. (Case No. 2:16-cv- 15922). Case 2:16-cv-13762-MLCF-MBN Document 32 Filed 01/19/17 Page 1 of 2 2 {N3350647.1} Respectfully submitted, /s/ Tyler J. Rench ROBERT B. BIECK, JR., T.A. (La. # 3066) CHRISTOPHER S. MANN (La. # 26397) TYLER J. RENCH (La. # 34049) Jones Walker LLP 201 St. Charles Ave., Suite 5100 New Orleans, Louisiana 70170 Telephone: (504) 582-8336 Facsimile: (504) 589-8336 rbieck@joneswalker.com cmann@joneswalker.com trench@joneswalker.com and DOUGLAS C. LONGMAN, JR. (La. # 8719) Jones Walker LLP 600 Jefferson St., Suite 1600 Lafayette, Louisiana 70501 Telephone: (337) 593-7607 Facsimile: (337) 593-7601 dlongman@joneswalker.com Counsel for Defendants, Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served on all counsel of record using the Court’s CM/ECF system this 19 th day of January 2017. /s/ Tyler J. Rench Case 2:16-cv-13762-MLCF-MBN Document 32 Filed 01/19/17 Page 2 of 2 {N3350647.1} IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BARBARA GLASS, ET AL. Plaintiffs, v. FIELDWOOD ENERGY, LLC, ET AL. Defendants. MASTER CASE NO. 2:16-cv-13762 c/w CASE NO. 2:16-cv-15922 JUDGE MARTIN L.C. FELDMAN MAGISTRATE MICHAEL B. NORTH DOCUMENT PERTAINS TO ALL CASES MEMORANDUM IN SUPPORT OF FIELDWOOD DEFENDANTS’ MOTION TO DISMISS Defendants Fieldwood Energy LLC (“Fieldwood”), Patrick Huse, John Riley, and Richard Tate (the “Fieldwood Defendants”), submit this memorandum in support of their motion to dismiss the actions asserted by plaintiffs Barbara Glass, as Administratrix of the Succession of Robert Glass and as natural tutrix of Karli Glass, Kameron Glass, and Kyleigh Glass, and Misty Cruz, on behalf of Julian Cruz (the “Glass Plaintiffs”) (Case No. 2:16-cv-13762), and Keith M. Greene, Sr. (Case No. 2:16-cv-15922) (together, Greene and the Glass Plaintiffs are “Plaintiffs”). INTRODUCTION Plaintiffs allege that an oil sheen was briefly observed around a fixed platform in the Gulf of Mexico from July 19 to July 23, 2015. On the final day of that period, an operator on the platform, Robert Glass, used his “Stop Work Authority” to halt production, ostensibly to stop the sheen. Two months later, Glass was discharged. Five months after that, Glass allegedly “succumbed to an uncharacteristic use of drugs and perished.” 1 Drawing a link between Glass’s use of his “Stop Work Authority” and his discharge two months later, Plaintiffs accuse defendants of wrongful termination. Maintaining a connection 1 Glass Plaintiffs’ Compl. for Damages ¶ 77 (Aug. 10, 2016) (16-cv-13762; R. Doc. 1) [“Glass Compl.”]. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 1 of 26 2 {N3350647.1} between Glass’s discharge and his drug overdose five months after that, Plaintiffs accuse defendants of wrongful death. And declaring that three different companies and seven individuals all conspired to discharge Glass, Plaintiffs accuse defendants of civil RICO violations. 2 Plaintiffs then assert the same claims (excepting wrongful death) for Keith Greene, an operator who allegedly encouraged Glass to halt production and was discharged five months later. Plaintiffs have stretched a wrongful-termination case into an action that includes civil RICO, wrongful-death, survival, and whistleblower counts. And in asserting so much, Plaintiffs plead very little. When the conclusory allegations and equivocal statements are removed from the pleadings, no viable claims remain. In other words, each theory advanced by Plaintiffs is defective on the face of pleadings. For the RICO claims in particular, Plaintiffs have had four opportunities to plead these claims correctly. In light of the continuing defects, and given the futility of allowing further pleading, Plaintiffs’ actions should be dismissed with prejudice. BACKGROUND I. FACTS ALLEGED BY PLAINTIFFS. MP-310A is a fixed platform in the Gulf of Mexico. 3 The platform is located in the Main Pass Area, Block 310, of the Outer Continental Shelf off the coast of Louisiana. 4 This platform and its adjacent unmanned platform, MP-310JA, are operated by Fieldwood and regulated by the 2 As used here, the term “RICO” refers to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961–1968. 3 See Glass Compl. ¶¶ 9, 49; Greene’s Compl. for Damages ¶¶ 8, 48 (Oct. 28, 2016) (16-cv-15922; R. Doc. 1) [“Greene Compl.”]. 4 See id.; Platform Structures Query for Main Pass Area–Block 310, Bureau of Safety and Environmental Enforcement (“BSEE”), https://www.data.bsee.gov/homepg/data_center/platform/platform/platformlist.asp (accessed Jan. 14, 2017) [“MP-310 Listing”], attached as Exhibit A; see also Norris v. Hearst Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (“[I]t is clearly proper in deciding a 12(b)(6) motion to take judicial notice of matters of public record.”); Rooster Petroleum, LLC v. Fairways Offshore Exploration, Inc., No. 12–1322, 2013 WL 6274375, at *7 n.4 (E.D. La. Dec. 4, 2013) (considering Fed. R. Evid. 201(b) and ruling that courts can “take[] judicial notice of the data provided from the BSEE’s website”). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 2 of 26 3 {N3350647.1} federal Bureau of Safety and Environmental Enforcement (“BSEE”). 5 While some Fieldwood personnel are stationed on MP-310A, Fieldwood has contracts with service providers to staff the platform. 6 Defendants Island Operating Company, Inc. (“Island”) and Shamrock Management, LLC (“Shamrock”) are two of those companies that provide personnel to man and operate the platform. 7 To this end, Island hired and employed Glass (represented here by the Glass Plaintiffs), 8 and Shamrock hired and employed plaintiff Greene. 9 On July 14, 2015, Glass and Greene began the first day of a “fourteen-day hitch” on MP- 310A for their respective employers. 10 Thus, during the period that followed, “Glass was employed by Island [] and working for Fieldwood,” and Greene was employed by Shamrock and working for Fieldwood. 11 Three days later, on July 17, 2015, BSEE Inspector Allan Williams visited MP-310A to inspect the platform. 12 Plaintiffs allege that “Williams observed that the platform’s ‘Free Water Knockout’ system failed to operate properly[.]” 13 As background, Plaintiffs explain that “the Free Water Knockout separates oil and gas from water” through the following process: “[a]n oil emulsion flows to the Free Water Knockout, where it is separated before being pumped into a tank and treated again in a connected flotation cell called a 5 See MP-310 Listing p. 1; Glass Compl. ¶¶ 18, 33; Greene Compl. ¶¶ 17, 32. 6 See Pls.’ Joint RICO Case Statement pp. 2–3 (Dec. 19, 2016) (16-cv-13762; R. Doc. 27) [“Joint Statement”]. Plaintiffs’ Joint Statement was submitted on behalf of Greene and the Glass Plaintiffs in response to the Court’s November 18, 2016 Order Consolidating Cases and Establishing Deadlines (16-cv-13762; R. Doc. 22). 7 See Joint Statement pp. 2–3; Glass Compl. ¶ 33; Greene Compl. ¶ 32. 8 Glass Compl. ¶ 35 (“On August 15, 2014, Mr. Glass was hired as an operator by Island[.]”). 9 Greene Compl. ¶ 35 (“On December 22, 2014, Mr. Greene was hired as an operator by Shamrock.”). 10 See Glass Compl. ¶¶ 39–40; Greene Compl. ¶¶ 38–39. 11 See Glass Compl. ¶¶ 35–36; Greene Compl. ¶¶ 34–35. 12 See Glass Compl. ¶¶ 41–42; Greene Compl. ¶¶ 40–41. 13 Glass Compl. ¶ 44; Greene Compl. ¶ 43. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 3 of 26 4 {N3350647.1} ‘WEMCO,’” which “removes any residual oil”; together, the WEMCO and Free Water Knockout, “work to discharge clean water back into the sea.” 14 Later, on July 19, 2015, Plaintiffs allege that Glass and Greene first “observed an oil sheen on the surface waters surrounding the platform and reported it to their Fieldwood supervisors.” 15 Later that day, a Fieldwood production foreman, defendant John Riley, allegedly “conducted a ‘fly-by’ over MP-310 A to investigate” and determined that the platform could not be identified as the source of the sheen. 16 The next day, on July 20, 2015, Glass and Greene allegedly “reported to their supervisor and the Fieldwood Person in Charge (‘PIC’), [defendant Patrick] Huse, that the platform was still sheening,” and afterwards were instructed “to initiate a ‘hydrochloric acid treatment’ of MP-310 A’s Free Water Knockout and WEMCO.” 17 The day after that, July 21, 2015, Plaintiffs claim that “oil continued to be discharged from MP-310 A’s Free Water Knockout and WEMCO systems into the Gulf of Mexico.” 18 And on July 22, 2015, Glass and Greene purportedly “advised Mr. Huse that . . . the platform was still sheening.” 19 Then, on July 23, 2015, after allegedly “observ[ing] that the platform was still sheening,” Glass and Greene “decided as a group that Mr. Glass would be the one to initiate [an Emergency Shut Down or] ESD of the facility,” and Glass then exercised his “Stop Work Authority” to do so. 20 After the ESD, Huse allegedly received word that BSEE inspectors were returning to the platform that day “to finish their inspection” and cover areas “they had forgotten to inspect the 14 See Glass Compl. ¶ 44; Greene Compl. ¶ 43. 15 Glass Compl. ¶ 46; Greene Compl. ¶ 45. 16 See Glass Compl. ¶ 47; Greene Compl. ¶ 46. 17 Glass Compl. ¶ 48; Greene Compl. ¶ 47. 18 Glass Compl. ¶ 49; Greene Compl. ¶ 48. 19 Glass Compl. ¶ 53; Greene Compl. ¶ 52. 20 Glass Compl. ¶¶ 54–56; Greene Compl. ¶¶ 53–55. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 4 of 26 5 {N3350647.1} previous week[.]” 21 After the BSEE inspectors arrived, Plaintiffs allege that “Huse falsely reported to BSEE that Fieldwood had repaired the Free Water Knockout,” which report was signed by “Huse on July 23, 2015 and submitted to BSEE.” 22 A few days later, on July 26, 2015, “Glass departed MP-310 A to seek treatment for a staph infection.” 23 Two days after that, on July 28, 2015, “Greene departed MP-310 A to return home until his next fourteen-day hitch beginning on August 11, 2015.” 24 When August 11, 2015, arrived, Glass and Greene allegedly “returned to MP-310 A for another fourteen-day hitch,” but “Glass was sent home . . . in retaliation for his previous actions in using his supposed Stop Work Authority[.]” 25 Greene remained on the platform. Plaintiffs then allege that Glass “was subsequently forbidden from working for Fieldwood on August 12, 2015,” and on September 3, 2015, Island “terminated Mr. Glass from employment.” 26 After his discharge, Plaintiffs claim that “Glass contacted federal agents with the [Office of Inspector General, U.S. Department of the Interior and the U.S. Environmental Protection Agency, Criminal Investigation Division]” to report alleged misconduct. 27 Later, on October 6, 2015, Plaintiffs claim that “Greene was contacted by the same federal agents that” were speaking to Glass. 28 Two months after that, on December 3, 2015, Green was allegedly “fired from Shamrock” for his “cooperation with federal authorities.” 29 21 Glass Compl. ¶ 59; Greene Compl. ¶ 58. 22 Glass Compl. ¶¶ 65–66; Greene Compl. ¶¶ 64–65. 23 Glass Compl. ¶ 67. 24 Greene Compl. ¶ 64. 25 Glass Compl. ¶ 69; Greene Compl. ¶ 66. 26 Glass Compl. ¶¶ 69–72; Greene Compl. ¶¶ 66–68. 27 Glass Compl. ¶ 73; Greene Compl. ¶ 69. 28 Glass Compl. ¶ 74; Greene Compl. ¶ 70. 29 Glass Compl. ¶ 76; Greene Compl. ¶ 72. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 5 of 26 6 {N3350647.1} Finally, on February 10, 2016, five months after his discharge, Glass “succumbed to an uncharacteristic use of drugs and perished” as a “direct result of the anxiety, depression and immense stress thrust upon Mr. Glass by virtue of Defendants’ actions[.]” 30 II. LAWSUITS FILED BY PLAINTIFFS. On August 10, 2016, the Glass Plaintiffs filed suit. 31 On October 28, 2016, Greene followed with an action containing nearly identical allegations. 32 Both complaints name the same set of defendants. 33 Beyond naming Fieldwood, Island, and Shamrock, Plaintiffs also name multiple employees from each company: from Fieldwood, Patrick Huse, MP-310A’s supervisor; 34 John Riley, the employee who conducted the “fly-by” of the platform on July 19, 2015; 35 and Richard Tate, an operator on MP-310A whose involvement in the episode is not fully explained in the pleadings (the only references to Tate are made in tandem with Huse and Riley; e.g., various allegations concerning “Mr. Huse, Mr. Tate and/or Mr. Riley”). 36 As to Island, Plaintiffs name the company’s president, Greg Falgout, and one of its onshore project managers, John Saldana. 37 As to Shamrock, Plaintiffs name the company’s general counsel, Jason Lyons, and one of its onshore account managers, Craig Robichaux. 38 The pleadings do not allege that these individuals were involved in the events on MP-310A, other 30 Glass Compl. ¶ 77. 31 See id. 32 Compare Greene Compl. ¶¶ 4–72, with Glass Compl. 4–77. 33 See Glass Compl. ¶¶ 6–16; Greene Compl. ¶¶ 5–15. 34 Glass Compl. ¶ 10; Greene Compl. ¶ 9. 35 Glass Compl. ¶¶ 11, 47; Greene Compl. ¶¶ 10, 46. 36 See Glass Compl. ¶¶ 12, 69, 86(a), (b), (i); Greene Compl. ¶¶ 11, 66, 73, 81(a), (b), (i). 37 Glass Compl. ¶¶ 13–14; Greene Compl. ¶¶ 12–13. 38 Glass Compl. ¶¶ 15–16; Greene Compl. ¶¶ 14–15. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 6 of 26 7 {N3350647.1} than to say that Falgout and Saldana ultimately discharged Glass, and Lyons and Robichaux meet with Greene concerning his alleged conversation with investigators. 39 The complaints nonetheless assert that all defendants violated RICO by conspiring and committing violations of criminal law “in a scheme to fraudulently misrepresent MP-310 A, including its feeder wells, platforms and pipelines, as an environmentally safe oil production platform, to defraud the federal government and United States taxpayers through that misrepresentation, and to silence workers on MP-310 A from exposing the fraud.” 40 Beyond these RICO claims, complaints assert that defendants violated Louisiana whistleblower statutes La. Rev. Stat. § 23:967 and La. Rev. Stat. § 30:2027. 41 The Glass Plaintiffs also assert claims against defendants for wrongful death and survival. 42 LAW AND ARGUMENT I. PLAINTIFFS’ RICO CLAIMS SHOULD BE DISMISSED. Plaintiffs have had four opportunities to state a claim under RICO: the Glass Complaint, the Greene Complaint, the Glass RICO Case Statement, 43 and the Joint RICO Case Statement. Despite these opportunities, Plaintiffs have failed to satisfy a single requirement of RICO’s four- part test. This failure defeats the substantive RICO claims under 18 U.S.C. § 1962(c). The additional conspiracy claims, asserted under 18 U.S.C. § 1962(d), fail in tandem with the substantive claims. RICO’s four-part test is as follows: “[t]o state a civil claim for a RICO violation under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) conduct (2) of an enterprise (3) through a pattern 39 Compare Glass Compl. ¶¶ 72–76, with id. ¶¶ 1–127; compare Greene Compl. ¶¶ 68–72, with id. ¶¶ 1– 107. 40 Glass Compl. ¶ 78; accord id. ¶¶ 78–97; Greene Compl. ¶ 73; accord id. ¶¶ 73–92. 41 Glass Compl. ¶¶ 98–110; Greene Compl. ¶¶ 93–104. 42 Glass Compl. ¶¶ 111–124. 43 See Glass RICO Case Statement (16-cv-13762; R. Doc. 19). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 7 of 26 8 {N3350647.1} (4) of racketeering activity.’” 44 In reviewing these factors on a motion to dismiss, a district court “must consider the well pleaded facts of the complaint, including the RICO case statement filed pursuant to the standing order.” 45 A. Failure of Racketeering Activity: The racketeering activity alleged is neither pleaded sufficiently nor the proximate cause of the injuries claimed. To analyze the RICO claims asserted by Plaintiffs, it is helpful to begin with the last element of the four-part test: racketeering activity. This element entails the pleading of certain “predicate acts.” To this end, 18 U.S.C. § 1961(1) contains an exclusive list of statutory violations that constitute predicate acts under RICO. Here, Plaintiffs accuse defendants of violating four statutes on that list: (1) mail fraud under 18 U.S.C. § 1341; (2) wire fraud under 18 U.S.C. § 1343; (3) tampering with a witness, victim, or informant (i.e., intimidation) under 18 U.S.C. § 1512(b)(3); and (4) interfering with employment under 18 U.S.C. § 1513(e). 46 Applied to the above episode, Plaintiffs assert that defendant Huse committed either mail or wire fraud in allegedly submitting a false report to BSEE on July 23, 2015, concerning the Free Water Knockout. 47 In allegedly “threatening Mr. Greene on multiple occasions” after he spoke with federal investigators on October 6, 2015, Plaintiffs claim that defendants committed witness intimidation. 48 And in purportedly firing Greene for his “cooperation with federal authorities,” Plaintiffs allege that defendants unlawfully interfered with his employment. 49 44 Rezner v. Bayerische Hypo-Und Vereinsbank AG, 630 F.3d 866, 873 (5th Cir. 2010) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). 45 Dixon v. Ford Motor Credit Co., No. 98–2456, 1999 WL 104425, at *2 (E.D. La. Feb. 24, 1999) (citing Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992)). 46 Joint Statement p. 13; Glass Compl. ¶ 87(c)–(e); Greene Compl. ¶ 82(c)–(e). 47 Joint Statement pp. 13–14, 16. 48 Id. at 14. 49 Glass Compl. ¶ 76; Greene Compl. ¶ 72. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 8 of 26 9 {N3350647.1} Yet, Plaintiffs go beyond these three predicate acts. To bolster their RICO claim, Plaintiffs allege other violations under these four statutes. Plaintiffs assert that defendants committed mail and wire fraud, “[f]rom at least February of 2015” to an unknown point, by submitting to BSEE “falsified operator visitation logs.” 50 During the same indefinite period, Plaintiffs allege that defendants again committed either mail or wire fraud through the submission of fraudulent water-sample reports to BSEE. 51 Finally, Plaintiffs allege that defendant Huse committed a second violation on July 23, 2015, by submitting a fraudulent report to BSEE concerning a “Fuel Gas Scrubber” on the platform. 52 Whether these additional fraud violations have anything to do with the oil-sheen episode is unclear. Plaintiffs also assert additional violations of the employment-interference and witness- intimidation statutes. Specifically, Plaintiffs allege that defendants interfered with Glass’s employment by terminating him after he spoke with with federal investigators. 53 But given that Glass was discharged before he allegedly spoke with investigators (unlike Greene), this asserted violation is puzzling. 54 As to intimidation, Plaintiffs allege that, after “Defendants were informed that Mr. Glass … [was] cooperating in a federal investigation,” they “participated and/or conspired to participate in conduct aimed at hindering” Glass’s communication with investigators. 55 But because Glass allegedly spoke with investigators after he was discharged, and because defendants no longer had control over him, this asserted violation is also confusing, 50 Joint Statement pp. 13–14, 15. 51 Id. 52 Id. at 16. 53 Glass Compl. ¶ 87(f). 54 Compare id., with id. ¶ 73 (“After being terminated by Fieldwood and Island Operating, Mr. Glass contacted federal agents with the DOI OIG and the EPA CID regarding Defendants’ criminal enterprise.”) (emphasis added). 55 Joint Statement p. 14. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 9 of 26 10 {N3350647.1} apart from lacking specifics. 56 Regardless, the predicate acts claims by Plaintiffs are charted below for reference. PREDICATE ACTS Statute Allegedly Violated Conduct Alleged 1 Mail Fraud, 18 U.S.C. § 1341, or Wire Fraud, 18 U.S.C. § 1343 Free Water Knockout – Defendant Huse allegedly submitted a false report to BSEE on July 23, 2015, concerning the Free Water Knockout “via mail, e- mail and/or facsimile” 57 2 Mail Fraud, 18 U.S.C. § 1341, or Wire Fraud, 18 U.S.C. § 1343 Fuel Gas Scrubber – Defendant Huse allegedly submitted a false report to BSEE on July 23, 2015, concerning the Fuel Gas Scrubber “via mail, e-mail and/or facsimile” 58 3 Mail Fraud, 18 U.S.C. § 1341, or Wire Fraud, 18 U.S.C. § 1343 Visitation Logs – Allegedly, “[f]rom at least February of 2015, [defendants] Mr. Huse, Mr. Tate and/or Mr. Riley falsified operator visitation logs” that were submitted to BSEE “via mail, email and/or facsimile” 59 4 Mail Fraud, 18 U.S.C. § 1341, or Wire Fraud, 18 U.S.C. § 1343 Water Samples – Allegedly, “[f]rom at least February of 2015, [defendants] Mr. Huse, Mr. Tate and/or Mr. Riley” falsified water sample results that were submitted to BSEE “via mail, email and/or facsimile” 60 5 Witness Intimidation, 18 U.S.C. § 1512(b)(3) Greene Intimidation – Defendants allegedly “threaten[ed] Mr. Greene on multiple occasions” after he spoke with federal investigators on October 6, 2015 61 6 Witness Intimidation, 18 U.S.C. § 1512(b)(3) Glass Intimidation – After “Defendants were informed that Mr. Glass … [was] cooperating in a federal investigation of the enterprise,” they “participated and/or conspired to participate in conduct aimed at hindering” Glass’s communication with investigators 62 56 See Glass Compl. ¶ 73. 57 Joint Statement p. 16. 58 Id. 59 Id. at 13–14, 15. 60 Id. 61 Id. at 14. 62 Id. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 10 of 26 11 {N3350647.1} PREDICATE ACTS Statute Allegedly Violated Conduct Alleged 7 Employment Interference, 18 U.S.C. § 1513(e) Greene Termination – Shamrock purportedly fired Greene on December 3, 2015, for his “cooperation with federal authorities” 63 8 Employment Interference, 18 U.S.C. § 1513(e) Glass Termination – Island purportedly fired Glass on September 3, 2015, “in retaliation for providing truthful information to” federal authorities” 64 1. Plaintiffs fail to comply with basic pleading standards in alleging predicate acts. Among the predicate acts are violations of the mail- and wire-fraud statutes. 65 Federal Rule of Civil Procedure 9(b) requires particularity in pleading fraud—this applies to “the pleading of fraud as a predicate act in a RICO claim[.]” 66 To this end, allegations of mail and wire fraud must, “[a]t a minimum,” describe the “[1] time, [2] place, and [3] contents of the false representations, as well as [4] the identity of the person making the misrepresentation and [5] what he obtained thereby.” 67 None of Plaintiffs’ allegations meet this standard. Plaintiffs allege that “Defendants falsified and/or conspired to falsify operator visitation logs to MP-310 JA by forging or directing the forgery of the signatures of operators, including Mr. Glass and Mr. Greene and falsified and/or conspired to falsify ‘Incidents of Non- Compliance Investigation Reports’ to BSEE[,] … and willfully submitting the falsified documents to BSEE via mail, email and/or facsimile, in violation of mail fraud under 18 U.S.C. § 1341 and wire fraud under 18 U.S.C. § 1343.” 68 The repeated use of “and/or” in this statement is a giveaway that particularity is absent (notably, Plaintiffs use “and/or” ninety-five times in 63 Joint Statement p. 18. 64 Glass Compl. ¶ 87(f). 65 See Joint Statement pp. 13–14. 66 Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1138–39 (5th Cir. 1992). 67 Id. 68 Joint Statement pp. 13–14 (emphasis added). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 11 of 26 12 {N3350647.1} their Joint RICO Case Statement). 69 But for the purpose of comprehensiveness, the Fieldwood Defendants break down the allegations into the visitation-log and water-sample components. As to the visitation logs, Plaintiffs fail to allege with particularity: (A) how the logs were transmitted to BSEE (they use the equivocation “via mail, email and/or facsimile”); (B) when the logs were transmitted to BSEE (asserting “[f]rom at least February of 2015” without claiming any intervals or end point); (C) the content of the alleged transmissions to BSEE (Plaintiffs claim that the transmitted logs “fraudulently misrepresent[ed] to BSEE that MP-310 JA was being visited as required on a daily basis,” but fail to state how that representation was false, like “MP- 310 JA was actually being visited every other day,” or “every three days,” or “not at all,” etc.); and (D) who transmitted the logs to BSEE (alleging equivocally that “Mr. Huse, Mr. Tate and/or Mr. Riley falsified operator visitation logs”). 70 As to the water samples, Plaintiffs fail to allege with particularity: (A) how the samples (or sample results) were transmitted (there is no allegation as to how samples or sample results were submitted, much less a statement that the mail or the wires were used); (B) when the samples (or sample results) were transmitted (Plaintiffs assert “[f]rom at least February of 2015,” without identifying any particular date or end point); (C) the content of the samples or sample results (Plaintiffs claim that the samples were manipulated “by filtering, or ‘polishing’, samples through a makeshift contraption that removed contaminates in the water,” but fail to state which contaminates were removed—like hydrocarbons, processing agents, organic waste, etc.—and how the sample results reflected that removal); (D) who transmitted the samples or sample results (only alleging equivocally that “Mr. Huse, Mr. Tate and/or Mr. Riley manipulated or directed to manipulate overboard water samples”); and (E) who actually received the samples or 69 See Joint Statement pp. 1–31. 70 Id. at 15 (emphasis added). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 12 of 26 13 {N3350647.1} sample results (Plaintiffs reference BSEE and EPA water-quality standards, but do not allege which agency was the recipient of the samples). 71 Concerning the two reports that defendant Huse allegedly submitted to BSEE on July 23, 2015 (concerning the Free Water Knockout and Fuel Gas Scrubber), Plaintiffs fail to allege the particulars of the transmission of these reports (using, instead, the equivocation “via mail, email and/or facsimile”). 72 This repeated failure to specify how the messages were conveyed is important. Beyond failing to satisfy the requirements of Rule 9(b), Plaintiffs fail to give defendants notice of which statute they allegedly violated—mail fraud, 18 U.S.C. § 1341, or wire fraud, 18 U.S.C. § 1343. The distinction is critical, because intrastate wire communications are beyond the reach of the wire-fraud statute. 73 If the visitation logs, test results, or July 23, 2015 reports were faxed or emailed from MP-310 A (off the Louisiana coast) to BSEE’s regional office (in Jefferson Parish, Louisiana), then these communications are intrastate and outside the reach of the wire-fraud statute. 74 As such, Plaintiffs have failed to plead the mail- and wire-fraud predicate acts. The failure to plead adequately, however, is not limited to mail and wire fraud. As to the employment-interference predicate acts, Plaintiffs allege that defendants “terminat[ed] Mr. Glass in retaliation for providing truthful information to BSEE, EPA CID and DOI OIG relating to Defendants’ fraudulent scheme, in violation of 18 U.S.C. 1513(e) and (f).” 75 But again, Plaintiffs 71 Joint Statement p. 15. 72 See id. at 13–16. 73 See Smith v. Ayres, 845 F.2d 1360, 1366 (5th Cir. 1988) (holding that a shareholder could not assert a RICO claim based upon the predicate act of wire fraud in connection with purely intrastate telephone calls); accord United States v. Biyiklioglu, 652 F. App’x 274, 280 (5th Cir. 2016). 74 See id. 75 Glass Compl. ¶ 87(f). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 13 of 26 14 {N3350647.1} concede that Glass did not speak with federal investigators until after he was terminated. 76 Accordingly, the alleged termination of Glass could not have occurred in retaliation for his contacting investigators. To remedy this chronological defect, Plaintiffs allege that 18 U.S.C. § 1513 is otherwise satisfied because, “[i]n direct response to Mr. Glass’s cooperation with federal authorities, Defendants conspired to prevent Mr. Glass from obtaining employment in the oil & gas industry by blackballing and disparaging Mr. Greene to other potential employers in the Gulf of Mexico.” 77 Yet, no facts are alleged to support this conclusory allegation, and it fails. 78 As to the witness-intimidation predicate acts, Plaintiffs assert that, “[w]hen Defendants were informed that Mr. Glass and Mr. Greene were cooperating in a federal investigation of the enterprise, Defendants participated and/or conspired to participate in conduct aimed at hindering, delaying, and/or preventing Mr. Glass and Mr. Greene from communicating with investigators,” which allegedly violated 18 U.S.C. § 1512. 79 Yet, in the same pleading, Plaintiffs concede that Glass was no longer employed by Island when he contacted federal investigators. 80 Given that Glass was no longer with the company, and given that Plaintiffs do not allege that defendants remained in contact with Glass post-termination, it is unclear what power defendants had to “hinder, delay, or prevent [Glass’s] communication to a law enforcement officer[.]” 81 By contrast, Plaintiffs allege that Glass freely communicated with investigators during this time. 82 In short, it seems that both the employment-interference and witness-intimidation predicate acts are 76 See Glass Compl. ¶ 73. 77 Id. ¶ 86(l). 78 See id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). 79 Joint Statement p. 14. 80 See id. 81 See 18 U.S.C. § 1512(b)(3). 82 See Joint Statement p. 14. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 14 of 26 15 {N3350647.1} directed at Greene, and Glass was merely included as an afterthought. Regardless, Plaintiffs have failed to plead adequately these predicate acts. 2. The inadequate pleading of Plaintiffs’ substantive RICO claims also defeats Plaintiffs’ conspiracy RICO claims. As stated above, the conspiracy violations asserted under 18 U.S.C. § 1962(d) fail in tandem with the substantive violations asserted under 18 U.S.C. § 1962(c). The reason for this is inadequate pleading. Apart from failing to plead sufficiently the predicate-act elements of their substantive claims, Plaintiffs have also failed to plead the agreement element of their RICO conspiracy claims. “[B]ecause the core of a RICO civil conspiracy is an agreement to commit predicate acts, a RICO civil conspiracy complaint, at the very least, must allege specifically such an agreement.” 83 “Simply alleging the existence of an agreement, however, is not sufficient.” 84 Here, Plaintiffs’ conspiracy claims are an exercise in ambiguous pleading. In fact, the majority of times “conspiracy” appears in Plaintiffs’ Joint RICO Case Statement, the discussion is conclusory and contains a material equivocation, like “and/or” (e.g., “Fieldwood attempted and/or conspired to stop and/or unduly influence Mr. Glass’s and Mr. Greene’s participation in the investigation”). 85 Additionally, when the Court specifically asked Plaintiffs to “describe in detail the alleged conspiracy,” Plaintiffs’ simply regurgitated factual allegations from earlier pleadings and added the preface “Defendants conspired to . . .” 86 This fails federal pleading requirements generally and conspiracy requirements specifically. 87 Given that Plaintiffs have had multiple opportunities to correct these deficiencies, the conspiracy claims should be dismissed. 83 Tel-Phonic Servs., Inc. v. TBS Int’l, Inc., 975 F.2d 1134, 1140 (5th Cir. 1992); accord Abraham v. Singh, 480 F.3d 351, 357 (5th Cir. 2007). 84 Martin v. Magee, No. 10–2786, 2011 WL 2413473, at *8 (E.D. La. June 10, 2011) (Vance, J.). 85 See Joint Statement p. 4 (emphasis added); accord id. at 5, 6, 7, 8, 9, 10, 11, 13, 14, 19, 22, and 29. 86 See id. at 25–27. 87 See Iqbal, 556 U.S. at 678; Tel-Phonic, 975 F.2d at 1140. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 15 of 26 16 {N3350647.1} 3. Plaintiffs fail to plead a causal connection between their predicate acts and the injuries claimed. Apart from failing to plead adequately their predicate acts, Plaintiffs also fail to allege a causal connection between those acts and the injuries claimed. “RICO affords a private right of action only to a plaintiff who can show that he or she has been injured by reason of a violation of RICO’s criminal prohibitions.” 88 So, “[t]he Supreme Court requires plaintiffs to establish both but-for cause and proximate cause in order to show injury by reason of a RICO violation.” 89 As to the latter element, “[p]roximate cause should be evaluated in light of its common-law foundations [and] ... requires some direct relation between the injury asserted and the injurious conduct alleged.” 90 “When a court evaluates a RICO claim for proximate cause, the central question it must ask is whether the alleged violation led directly to the plaintiff’s injuries.” 91 Here, the injuries claimed by Plaintiffs are related to the alleged terminations of Glass and Greene. 92 As to Glass, Plaintiffs assert that defendants “unlawfully interfered with and terminated Mr. Glass’s employment after he exercised his Stop Work Authority on MP-310 A[.]” 93 Yet, terminating an employee for exercising Stop Work Authority is not a predicate act under RICO. 94 And insofar as the damages related to Glass all flow from this termination, they do not relate directly to the predicate acts alleged, and thus are not actionable under RICO. This Court reached the same conclusion in Cullom v. Hibernia National Bank, 666 F. Supp. 88, 90 (E.D. La. 1987) (Feldman, J.). Similar to the injuries claimed here, the Cullom 88 Torres v. S.G.E. Mgmt., L.L.C., 838 F.3d 629, 636 (5th Cir. 2016) (emphasis added) (internal citations and quotation marks omitted). 89 Id. (internal citations and quotation marks omitted). 90 Id. (emphasis added) (internal citations and quotation marks omitted). 91 Id. (internal citation omitted). 92 See Glass Compl. ¶ 125; Greene Compl. ¶ 105. 93 Joint Statement p. 14. 94 See 18 U.S.C. § 1961(1). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 16 of 26 17 {N3350647.1} “plaintiff’s damages, if any, stem[med] from his discharge . . . by virtue of his own allegations.” 95 As such, the Court explained that “[p]laintiff’s assertions would convert a suit for wrongful employment termination into the treble damage club of a civil RICO suit.” 96 The Court conceded that the Cullom plaintiff’s “allegations might be correct; the termination of his employment might have been without cause. But that termination certainly does not constitute a [RICO] violation. Thus, plaintiff’s injury to his business or property cannot be said to flow from a RICO violation and plaintiff cannot avail himself of [RICO]. 97 4. Plaintiffs’ claimed damages are not compensable under RICO. The damages for Greene, and especially for Glass, include mental anguish, emotional distress, and other damages associated with personal injury. 98 Yet, personal-injury damages are not compensable under RICO. 99 As such, Plaintiffs’ RICO claim should be dismissed. B. Failure of Conduct: Not all defendants “conducted” the alleged RICO enterprise. Again, “[t]o state a civil claim for a RICO violation under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’” 100 As to the first element—conduct—the Fifth Circuit has explained that, “[t]o ‘participate, directly or indirectly, in the conduct of such enterprise’s affairs’, an individual must have some part in the operation or management of the enterprise itself.” 101 “In other words, ‘some part in directing 95 Cullom, 666 F. Supp. at 90. 96 Id. 97 Id. 98 Glass Compl. ¶ 125; Greene Compl. ¶ 105. 99 See, e.g., Hughes v. Tobacco Inst., Inc., 278 F.3d 417, 422 (5th Cir. 2001) (tobacco companies’ alleged personal injuries against smokers and their survivors were not actionable under RICO, which recognizes injuries to “business or property” only). 100 Rezner, 630 F.3d at 873 (citing Sedima, 473 U.S. at 496). 101 Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 551 (5th Cir. 2012). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 17 of 26 18 {N3350647.1} the enterprise’s affairs is required.’” 102 To this end, “the law is clear that merely having a business relationship with and performing services for such an enterprise . . . does not support RICO liability because performance of such services is not the equivalent of participation in the operation and management of the enterprise. . . . This is true even though the service provider knows of the enterprise’s illicit nature or performs improper acts itself.” 103 Here, Island, Shamrock, and their employees cannot be viewed as having “conducted” the alleged enterprise, because their relationship with Fieldwood was purely contractual. As the Joint RICO Case Statement makes clear, “Fieldwood engaged Island [] to provide operators to work on the MP-310 A,” and similarly, “Fieldwood engaged Shamrock to provide operators to work on the MP-310 A[.]” 104 To this end, there is no allegation that Island, Shamrock, or their employees participated in—much less directed—the alleged false-reporting predicate acts on MP-310 A. 105 In short, the pleadings do not allege sufficiently that Island, Shamrock, and their employees “conducted” the enterprise in question. As such, these entities and individuals are not proper RICO defendants and should be dismissed. C. Failure of Pattern: The alleged pattern of racketeering does not have the continuity or relationship required by law. 1. Plaintiffs fail to allege a pattern with sufficient continuity. As indicated above, “[t]o state a civil claim for a RICO violation under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of 102 United States v. Rosenthal, 805 F.3d 523, 532 (5th Cir. 2015) (emphasis added) (citing Reves v. Ernst & Young, 507 U.S. 170, 179 (1993)). 103 In re MasterCard Int’l Inc., Internet Gambling Litig., 132 F. Supp. 2d 468, 490 (E.D. La. 2001) (quoting Jubelirer v. MasterCard Int’l, Inc., 68 F. Supp. 2d 1049 (W.D. Wis. 1999)). 104 Joint Statement pp. 5, 6. 105 See id. at 15–18. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 18 of 26 19 {N3350647.1} racketeering activity.’” 106 The third element—a pattern—requires “both [1] a relationship between the predicate offenses… and [2] the threat of continuing activity.” 107 The latter component is known as the “continuity” element. 108 To this end, “[t]here are two ways to demonstrate continuity: (1) a ‘closed period of repeated conduct;’ or (2) an open-ended period of conduct that ‘by its nature projects into the future with a threat of repetition.’” 109 “A closed period of repeated conduct requires predicate acts that extend over a ‘substantial period of time.’” 110 In this regard, the Fifth Circuit has held that “[p]redicate acts extending over a few weeks or months ... do not satisfy this requirement,” and has even “found seven months of activity [to be] insufficient.” 111 Here, the episode in question occurred over a brief period of time, allegedly beginning with the “fourteen-day hitch” that Glass and Greene started on July 14, 2015, and ending with their respective terminations on September 3, 2015, and December 3, 2015. This period of five or less months is facially insufficient under the Fifth Circuit standard. 112 In the face of this shortcoming, Plaintiffs may claim open-ended continuity through their allegation that “Defendants’ predicate acts constitute a threat of continuing racketeering activity[.]” 113 Open- ended continuity, though, is also absent. Under Fifth Circuit law, “[a]n open-ended period of conduct involves ‘a threat of continued racketeering activity’ and may be established by a showing that [A] there is a ‘specific 106 Rezner, 630 F.3d at 873 (citing Sedima, 473 U.S. at 496). 107 Malvino v. Delluniversita, 840 F.3d 223, 231 (5th Cir. 2016). 108 Id. 109 Id. 110 Id. 111 Id. at 232. 112 See id. at 231-32. 113 Glass Compl. ¶ 82; Greene Compl. ¶ 77. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 19 of 26 20 {N3350647.1} threat of repetition extending indefinitely into the future,’ or [B] ‘that the predicates are a regular way of conducting [a] defendant’s ongoing legitimate business.’” 114 Here, Plaintiffs do not allege sufficient facts to support either element. As to the latter element, there is no allegation of any sort to suggest that the claimed “predicates are a regular way of conducting [Fieldwood]’s ongoing legitimate business.” 115 After all, Plaintiffs allege that “Fieldwood holds the largest assets base in the Gulf of Mexico,” including “750 employees, 1,000 wells, and 500 leases covering over 2 million gross acres[.]” 116 But the predicate acts claimed by Plaintiffs relate to a single episode on a single platform. This falls short of describing the “regular way” that Fieldwood conducts its business. As to the former element, Plaintiffs fail to allege a “specific threat of repetition extending indefinitely into the future.” 117 As to the employment-interference predicates, Glass and Greene could only be discharged once, and thus there is no threat of those predicates continuing. As to the witness-intimidation predicates, Glass and Greene have “exposed” the alleged activity they were purportedly “persuaded in a corrupt manner” not to expose. Thus, there is no threat of repetition for those predicate acts either. As to the mail- and wire-fraud predicates, there is no allegation to suggest that these predicates extended or will extend beyond the circumstance in question. After all, the whole episode centers on the allegation that a “malfunctioning Free Water Knockout and WEMCO had caused an oil spill,” 118 and Plaintiffs do not allege that the malfunction or the oil spill actually continued after the Emergency Shut Down of the platform. 119 114 Malvino, 840 F.3d at 232. 115 See id. 116 Glass Compl. ¶ 21; Greene Compl. ¶ 20. 117 Malvino, 840 F.3d at 232. 118 Glass Compl. ¶ 61; accord Greene Compl. 63. 119 See Glass Compl. ¶ 57; Greene Compl. ¶ 56. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 20 of 26 21 {N3350647.1} Thus, the allegations that defendants acted wrongfully during this one episode do not, by their nature, project indefinitely into the future. Without this continuity, Plaintiffs have failed to allege a viable pattern under RICO. As such, their RICO claims should be dismissed. 2. Plaintiffs fail to allege a pattern with the requisite relationships. A pattern of racketeering also requires a relationship between predicate acts. To this end, “[a] plaintiff can satisfy the relationship requirement by demonstrating that the alleged predicate acts ‘have the same or similar purposes, results, participants, victims, or methods of commission or otherwise are interrelated by distinguishing characteristics and are not isolated events.’” 120 Here, Plaintiffs have assembled a collection of predicate acts that do not satisfy this standard. This case revolves around the alleged oil sheen that purportedly occurred from July 19 to July 23, 2015, and the Stop Work Authority that Glass exercised in a claimed attempt to stop it. 121 Yet, the predicate act concerning the false report about the Fuel Gas Scrubber has nothing to do with the sheen (or the Free Water Knockout and WEMCO that Plaintiffs allege to have caused it)—in fact, the pleadings concede that the Fuel Gas Scrubber is part of a different mechanical system. 122 Moreover, the alleged (but never really identified) predicate acts that occurred before July 23, 2015 (like falsifying visitation logs or water-sample reports), are separated in time and in nature from the reporting predicate acts that allegedly occurred during the sheen on July 23, 2015 (concerning the Fuel Gas Scrubber, the Free Water Knockout System, and WEMCO). In short, the predicate acts alleged do not have the interrelation required by law. 120 Heller Fin., Inc. v. Grammco Computer Sales, Inc., 71 F.3d 518, 524 (5th Cir. 1996) (citing H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 240 (1989)). 121 See Glass Compl. ¶ 61; Greene Compl. 63. 122 While Plaintiffs allege the Free Water Knockout and WEMCO are “connected” and work “[t]ogether,” there is no such allegation for the Fuel Gas Scrubber. See Glass Compl. ¶ 44–45; Greene Compl. ¶ 43–44. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 21 of 26 22 {N3350647.1} Beyond this, the participants and victims of the predicate acts are also different. In terms of participants, Plaintiffs allege that three employees of Fieldwood (and not Fieldwood itself) committed mail and wire fraud against the federal government. 123 Plaintiffs then allege that all defendants somehow terminated and intimidated Glass and Greene. 124 Concerning victims, the federal government is alleged to be the victim of the mail- and wire-fraud predicate acts, but Glass and Greene are alleged to be the victims of the employment-interference and witness- intimidation predicate acts. 125 These disparities preclude a finding of the relationships required by law. Without these relationships, there is no viable pattern, and Plaintiffs’ RICO claims fail. D. Failure of Enterprise: The enterprise claimed by Plaintiffs fails for lack of the purpose, relationships, and longevity required by law. Once again, “[t]o state a civil claim for a RICO violation under 18 U.S.C. § 1962(c), a plaintiff must show ‘(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.’” 126 As to the second element in this inquiry—an enterprise—Plaintiffs allege the existence of an association-in-fact enterprise. 127 On this point, the Supreme Court has identified “three structural features as indispensable to an association-in-fact enterprise: [1] ‘a purpose, [2] relationships among those associated with the enterprise, and [3] longevity sufficient to permit these associates to pursue the enterprise’s purpose.’” 128 Here, Plaintiffs allege the purpose of the enterprise is “a scheme to fraudulently misrepresent MP-310 A, including its feeder wells, platforms and pipelines, as an 123 See Glass Compl. ¶ 86(a)–(b), (e)–(f); Greene Compl. ¶ 81(a)–(b), (e)–(f). 124 See Joint Statement p. 14. 125 See id. at 11-13, 23. 126 Rezner, 630 F.3d at 873 (citing Sedima, 473 U.S. at 496). 127 See Joint Statement p. 20. 128 Allstate Ins. Co. v. Plambeck, 802 F.3d 665, 673–74 (5th Cir. 2015) (citing Boyle v. United States, 556 U.S. 938, 946 (2009)). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 22 of 26 23 {N3350647.1} environmentally safe oil production platform, to defraud the federal government and United States taxpayers through that misrepresentation, and to silence workers on MP-310 A from exposing the fraud[.]” 129 But given that Fieldwood alone is the operator of MP-310A, it is unclear how Island and Shamrock share in that purpose. There is no allegation that Island and Shamrock have a legal interest in, or responsibility for, the platform’s production. 130 There is no allegation that Island and Shamrock have day-to-day knowledge of what actually occurs on the platform. 131 And apart from conclusory statements concerning all “Defendants,” there is no factual allegation that Island and Shamrock do anything other than provide workers for the platform. 132 As such, the alleged enterprise fails for lack of common purpose. Plaintiffs’ enterprise also fails for lack of the required relationships. For example, between Island and Shamrock, there is no relationship. After all, they are direct business competitors. And apart from conclusory statements to the contrary, there is no factual allegation that Island and Shamrock had any communication with each other concerning the oil-sheen episode (or otherwise). 133 On a more granular level, there are no alleged facts supporting a relationship between the defendant employees of the three companies. For example, there is no relationship alleged between defendant Lyons (Shamrock’s general counsel) and defendant Riley (the Fieldwood operator who conducted the “fly-by” of MP-310A). There is no relationship alleged between defendant Falgout (the president of Island) and defendant Tate (a mid-level Fieldwood operator on MP-310A). This process can be repeated for most defendants in the lawsuit. Accordingly, when conclusory group statements like “Defendants conspired” or 129 Glass Compl. ¶ 78; Greene Compl. ¶ 73. 130 See Glass Compl. ¶¶ 21–77; Greene Compl. ¶¶ 20–72. 131 See id. 132 See Joint Statement pp. 2–3; Glass Compl. ¶ 33; Greene Compl. ¶ 32. 133 See Glass Compl. ¶¶ 21–77; Greene Compl. ¶¶ 20–72. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 23 of 26 24 {N3350647.1} “Defendants participated” are removed from consideration, the pleadings fail to establish a relationship between most defendants, much less a relationship that would support an association-in-fact enterprise under RICO. Finally, the enterprise alleged by Plaintiffs also lacks the required longevity element. As this Court has recognized, “[t]wo individuals who join together for the commission of one discrete criminal offense have not created an ‘association-in-fact’ enterprise, even if they commit two predicate acts during the commission of this offense, because their relationship to one another has no continuity.” 134 To the extent that Plaintiffs’ whole case revolves around the oil- sheen episode that occurred on July 19–23, 2015, 135 the enterprise lacks the longevity required by law. Absent this element, the enterprise fails, and the RICO claims should be dismissed. II. PLAINTIFFS’ WHISTLEBLOWER, WRONGFUL-DEATH, AND SURVIVAL CLAIMS SHOULD BE DISMISSED. Greene and the Glass Plaintiffs assert state-law whistleblower claims under La. Rev. Stat. § 23:967 and La. Rev. Stat. § 30:2027. 136 The Glass Plaintiffs also assert state-law claims for wrongful-death, under La. Civ. Code art. 2315.2, and survival, under La. Civ. Code art. 2315.1. 137 As to these claims, the Fieldwood Defendants adopt the arguments asserted by co- defendants in their motions to dismiss (16-cv-13762; R. Docs. 30, 31), with the following modifications. 134 Global Oil Tools, Inc. v. Barnhill, No. 12–1507, 2012 WL 5866139, at *10 (E.D. La. Nov. 19, 2012) (quoting Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 427 (5th Cir. 1987)). 135 See Glass Compl. ¶¶ 21–77; Greene Compl. ¶¶ 20–72. 136 Glass Compl. ¶¶ 98–110; Greene Compl. ¶¶ 93–104. 137 Glass Compl. ¶¶ 111–124. Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 24 of 26 25 {N3350647.1} • As to Plaintiffs’ claims under La. Rev. Stat. § 23:967, Island and Shamrock were the respective “payroll employers” of Glass and Green, not Fieldwood. 138 Thus, Fieldwood has no liability under La. Rev. Stat. § 23:967. 139 • As individual employees do not have liability under La. Rev. Stat. § 23:967 and La. Rev. Stat. § 30:2027, there is no claim against Fieldwood Defendants Huse, Riley, and Tate. 140 • While not a “payroll employee” of Fieldwood, Glass is nonetheless alleged to be a “borrowed employee” of Fieldwood. 141 As such, the Glass Plaintiffs’ claims for wrongful death and survival, sounding in state law, are preempted by the Longshore and Harbor Workers’ Compensation Act. 142 CONCLUSION For the foregoing reasons, Plaintiffs have failed to state a claim and their actions should be dismissed with prejudice. Re-pleading at this point is futile, because Plaintiffs have already had multiple opportunities to satisfy the relevant standards. 138 See Glass Compl. ¶ 35 (“On August 15, 2014, Mr. Glass was hired as an operator by Island[.]”); Greene Compl. ¶ 35 (“On December 22, 2014, Mr. Greene was hired as an operator by Shamrock.”). During the period in question, Plaintiffs also make the distinction that “Glass was employed by Island” but “working for Fieldwood,” and Greene was similarly employed by Shamrock but working for Fieldwood. See Glass Compl. ¶¶ 39–40; Greene Compl. ¶¶ 38–39. 139 See English v. Wood Grp. PSN, Inc., No. 15–568, 2015 WL 5061164, at *11 (E.D. La. Aug. 25, 2015) (holding that “the ‘employer’ must be a payroll employer for purposes of LWA liability [under La. Rev. Stat. § 23:967]”). 140 See Dronet v. LaFarge Corp., No. 00–2656, 2000 WL 1720547, at *2 (E.D. La. Nov. 17, 2000) (As “a supervisor is neither an employer in the traditional sense nor an employer within the meaning of the Louisiana Employment Discrimination Law, the Court finds that [a supervisor] is not an employer under the Louisiana Whistleblower Act.”); accord Jones v. JCC Holding Co., No. 01–0573, 2001 WL 537001, at *3 (E.D. La. May 21, 2001). 141 Compare English, 2015 WL 5061164, at *14 n.11 (outlining the elements of a “borrowed employee”), with Glass Compl. ¶¶ 21–77; Greene Compl. ¶¶ 20–72 (Glass and Greene were “employed by” Island and Shamrock, but “working for Fieldwood”; “Island [] and Shamrock were engaged by Fieldwood to provide operators,” like Glass and Greene; Glass and Greene worked “on MP-310 A,” Fieldwood’s platform, under the direction of “Fieldwood supervisors”; etc.). 142 See English, 2015 WL 5061164, at *14 (“tort immunity under the LHWCA has been expanded to include ‘borrowing employers’ under the borrowed employee doctrine”). Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 25 of 26 26 {N3350647.1} Respectfully submitted, /s/ Tyler J. Rench ROBERT B. BIECK, JR., T.A. (La. # 3066) CHRISTOPHER S. MANN (La. # 26397) TYLER J. RENCH (La. # 34049) Jones Walker LLP 201 St. Charles Ave., Suite 5100 New Orleans, Louisiana 70170 Telephone: (504) 582-8336 Facsimile: (504) 589-8336 rbieck@joneswalker.com cmann@joneswalker.com trench@joneswalker.com and DOUGLAS C. LONGMAN, JR. (La. # 8719) Jones Walker LLP 600 Jefferson St., Suite 1600 Lafayette, Louisiana 70501 Telephone: (337) 593-7607 Facsimile: (337) 593-7601 dlongman@joneswalker.com Counsel for Defendants, Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served on all counsel of record using the Court’s CM/ECF system this 19 th day of January 2017. /s/ Tyler J. Rench Case 2:16-cv-13762-MLCF-MBN Document 32-1 Filed 01/19/17 Page 26 of 26 Case 2:16-cv-13762-MLCF-MBN Document 32-2 Filed 01/19/17 Page 1 of 1 {N3350647.1} IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA BARBARA GLASS, ET AL. Plaintiffs, v. FIELDWOOD ENERGY, LLC, ET AL. Defendants. MASTER CASE NO. 2:16-cv-13762 c/w CASE NO. 2:16-cv-15922 JUDGE MARTIN L.C. FELDMAN MAGISTRATE MICHAEL B. NORTH DOCUMENT PERTAINS TO ALL CASES NOTICE OF SUBMISSION FOR FIELDWOOD DEFENDANTS’ MOTION TO DISMISS Please take notice that the Fieldwood Defendants’ Motion to Dismiss filed by defendants Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate is set for submission before the Honorable Martin L.C. Feldman, United States District Judge, on February 8, 2017, at 10:00 a.m., in the United States District Court for the Eastern District of Louisiana, 500 Poydras Street, Courtroom C551, New Orleans, Louisiana 70130. Respectfully submitted, /s/ Tyler J. Rench ROBERT B. BIECK, JR., T.A. (La. # 3066) CHRISTOPHER S. MANN (La. # 26397) TYLER J. RENCH (La. # 34049) Jones Walker LLP 201 St. Charles Ave., Suite 5100 New Orleans, Louisiana 70170 Telephone: (504) 582-8336 Facsimile: (504) 589-8336 rbieck@joneswalker.com cmann@joneswalker.com trench@joneswalker.com and Case 2:16-cv-13762-MLCF-MBN Document 32-3 Filed 01/19/17 Page 1 of 2 2 {N3350647.1} DOUGLAS C. LONGMAN, JR. (La. # 8719) Jones Walker LLP 600 Jefferson St., Suite 1600 Lafayette, Louisiana 70501 Telephone: (337) 593-7607 Facsimile: (337) 593-7601 dlongman@joneswalker.com Counsel for Defendants, Fieldwood Energy LLC, Patrick Huse, John Riley, and Richard Tate CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing was served on all counsel of record using the Court’s CM/ECF system this 19 th day of January 2017. /s/ Tyler J. Rench Case 2:16-cv-13762-MLCF-MBN Document 32-3 Filed 01/19/17 Page 2 of 2