Opinion
Civil Action No. 00-3093 Section "N"
July 23, 2001
ORDER AND REASONS
Before the Court are Defendant Nabors Offshore Corporation's and Chevron U.S.A., Inc.'s Motion for Reconsideration and Plaintiff Louis DeRouen's Motion to Remand. For the following reasons, the Motions are GRANTED.
A. BACKGROUND
Plaintiff Louis DeRouen had worked for Defendant Nabors Offshore Corporation ("Nabors") for several years before being injured on June 29, 2000 while working for Nabors on a jack-up barge owned by Defendant Chevron U.S.A., Inc. ("Chevron"). On September 11, 2000, Mr. DeRouen filed suit in Louisiana state court against Nabors, Chevron and Entergy Corporation to recover damages under the Jones Act and the General Maritime Law. On October 18, 2000, Nabors and Chevron filed a notice of removal in this Court.
B. LAW AND ANALYSIS 1. Motion for Reconsideration
On June 26, 2001, this Court granted Mr. DeRouen's Motion to Remand as unopposed because Nabors and Chevron had failed to timely file a memorandum in opposition in violation of Local Rule 7.5E. Nabors and Chevron move for reconsideration of that order, and Mr. DeRouen does not oppose that motion. Accordingly, the Court GRANTS Nabors' and Chevron's Motion for Reconsideration.
2. Motion to Remand
Mr. DeRouen asserts that removal of his suit to federal court was improper because he has alleged a Jones Act claim. As a general matter, a defendant may remove a civil action brought in state court to a federal district court which would have had original jurisdiction over the controversy. See 28 U.S.C. § 1441. Jones Act claims, however, are not removable. See 46 U.S.C. § 688 (incorporating non-removability provision of 28 U.S.C. § 1445 (a)). Thus, Nabors and Chevron bear the burden of showing that "the Jones Act claim has been fraudulently pleaded to prevent removal". Fields v. Pool Offshore. Inc., 182 F.3d 353, 356 (5th Cir. 1999) (quoting Burchett v. Cargill, 48 F.3d 173, 175 (5th Cir. 1995), and Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993)), cert. denied, 528 U.S. 1155, 120 S.Ct. 1161, 145 L.Ed.2d 1073 (2000).
Nabors and Chevron have not met their burden. In an affidavit, Cohen Guidry, Nabors' Personnel and Safety Coordinator, states that Mr. DeRouen was assigned to work almost exclusively on "platform rigs" during the course of his employment. Nabors and Chevron assert that Mr. DeRouen was only temporarily assigned to the jackup rig. They assert that he was filling in for an injured mechanic and was to return to his usual assignment aboard a platform rig after the replacement hitch ended. Nabors and Chevron have failed to present any evidence, however, that the rigs on which Mr. DeRouen had previously worked actually were non-vessel platforms. Although "[c]ourts have long recognized a distinction between `work platforms' that are designed for primarily stationary residence and true vessels", Fields, 182 F.3d at 357, determining whether a particular structure is a work platform or a vessel requires a careful consideration of real evidence. The Fifth Circuit has "focused on three factors when trying to determine whether a structure is a work platform beyond the realm of the Jones Act. First, we ask whether the structure was constructed to serve primarily as a work platform. Second, we look to whether or not the structure was moored or otherwise secured at the time of the accident. Lastly, we attempt to ascertain whether the transportation function of the structure went beyond theoretical mobility and occasional incidental movement." Id. at 357-58; see also Johnson v. Odeco Oil and Gas Co., 864 F.2d 40, 42-43 (5th Cir. 1989) (considering nine factors to determine whether a given structure is a vessel); Young v. Pool Co., 2000 WL 122246, at *2 (E.D. La. Jan. 31, 2000) (finding structure to be a "platform rig" because it was "an offshore structure affixed to the subsoil and seabed on the outer-continental shelf"). In the instant case, Nabors and Chevron have presented mere conclusions, not evidentiary support, regarding vessel status and therefore have failed to meet the heavy burden placed on a party crying fraudulent joinder.
Even the affidavit of Cohen Guidry, presumably a non-lawyer, contains legal conclusions. See, e.g., Cohen Aff. ¶ 9 ("At no time from the date of his initial hire on September 14, 1993 until June 28, 2000, was DeRouen Assigned to a jackup rig or any other kind of rig which would constitute a vessel in navigation. . .").
Mr. DeRouen might not be able to recover against the defendants under the Jones Act, but it is not for this Court to "decide whether the plaintiff will actually or even probably prevail on the merits". Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). Nabors and Chevron "have not shown that there is no possibility that [Mr. DeRouen] would be able to establish a cause of action against them in state court" and therefore have not proved fraudulent joinder. Id (courts look "only for a possibility that" plaintiff may prevail).
C. CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Nabors Offshore Corporation's and Chevron U.S.A., Inc.'s Motion for Reconsideration and Plaintiff Louis DeRouen's Motion to Remand are GRANTED.