Opinion
Civil Action No. 00-1703, Section "F".
August 3, 2000.
ORDER AND REASONS
Before the Court is plaintiffs motion to remand. For the reasons that follow, the motion is denied.
Background
The facts are rather tortuous. In July 1994, the plaintiff filed suit in the Civil District Court for injuries claiming that he was injured due to the negligence of T.E. Marine Corporation. The plaintiff then filed a Supplemental and Amending Petition, adding additional parties and the allegation that he was a seaman under the Jones Act. The plaintiff filed a Second Supplemental and Amending Petition, reiterating the allegations of the original and First Supplemental and Amending Petitions and adding allegations of negligence on the part of, a new party, Gulf Inland Contractors, Inc. The plaintiff then settled with T.E. Marine, the original defendant, who reimbursed Murphy (his employer) for worker compensation benefits paid to the plaintiff under OCSLA. T.E. Marine and Murphy were dismissed.
On April 28, 1998, the plaintiff filed still a Third Supplemental and Amending Petition, reiterating the allegations in the previous petitions and adding Sub Sea International, Inc. and its successor in interest, Global, as a party.
On June 18, 1999, Sub Sea International and Global applied for a peremptory exception of prescription on the ground that the statute of limitation for a maritime tort had run. Earlier, on May 15, 1999, the plaintiff filed his opposition and maintained that his cause of action was based on the Outer Continental Shelf Lands Act. At the May 19, 2000 hearing, counsel for Gulf Inland pointed out that "in ruling on the exception, essentially, [the judge was] deciding the law that will govern the case." On May 22, 2000, the state court judge found in favor of the plaintiff.
The plaintiff then filed his Fourth Supplemental and Amending Petition on May 25, 2000, deleting and withdrawing any claim of seaman status or any Jones Act claim. The plaintiff alleged jurisdiction under the Outer Continental Shelf Lands Act. On June 9, 2000, the defendants, Sub Sea International and Global Industries filed a notice of removal.
I. Removal
Under 28 U.S.C. § 1446 (b), the Court uses a two step test to determine whether a defendant has timely removed a case. Simmons v. Arellano, 1996 WL 194928 (E.D.La.). First, "if the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant." Gullage v. Kmart Corp., 1996 WL 255919 (E.D.La.). Second, if the case is not removable based on the initial pleading, then notice of removal must be filed within thirty days of receipt of "an amended pleading, motion, order, or other paper from which the defendant can ascertain that the case is removable." Gullage v. Kmart Corp., 1996 WL 259919 (E.D.La.). It is this second test that these facts focus on this motion.
"[A]ctions brought by seamen in the state courts under the Jones Act are not removable to the federal courts." Pate v. Standard Dredging Corp., 193 F.2d 498, 499 (5th Cir. 1952); Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 345 (5th Cir. 1999). "An admiralty action filed in state court under the savings to suitors clause [citation omitted] is not removable solely because it might have been filed in federal court. Rather, removal of an admiralty action filed in state court is possible only if jurisdiction is based on other grounds, such as diversity or a statutory provision." Rivas v. Energy Partners of Delaware, 2000 WL 127290 (E.D.La.). "Thus a defendant cannot remove a case based on general maritime or admiralty jurisdiction alone. Defendant must either find an independent basis for the Court's `arising under' jurisdiction [citation omitted] or establish complete diversity."Zoila-Ortego v. B J-Titan Services Company, 751 F. Supp. 633, 636 (E.D.La.).
On the other hand, the Outer Continental Shelf Lands Act is exclusively federal law. Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 349 (5th Cir. 1999). Therefore, OCSLA claims are "removable under § 1441 without regard to the citizenship of the parties." Rivas v. Energy Partners of Delaware. 2000 WL 127290 (E.D.La.). But "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. . . ." Hufnagel v. Omega Services Industries, Inc., 182 F.3d 340, 350 (5th Cir. 1999).
II. Timeliness
The plaintiff incorrectly contends removal is untimely. The plaintiff asserts that the "[d]efendants made no effort to remove the case to Federal Court, despite being served with pleadings that absolutely and unequivocally set forth plaintiff's position that the only jurisdictional basis for the state court proceedings was the Outer Continental Shelf Lands Act." The plaintiff states that when T.E. Marine and Murphy were dismissed from the case, his Jones Act claim was also "effectively dismissed" and "all parties acknowledged coverage under the OCSLA." Based on this argument, the plaintiff concludes that the defendants knew there was no Jones Act claim when they answered in 1998. (The plaintiff also contends that the defendants knew that the plaintiff was basing his claim solely on OCSLA when he filed his opposition to the peremptory exception of prescription on May 15, 1999.)
Contrary to the plaintiff's assertions, it is far from clear that his Jones Act claim was dismissed when T.E. Marine and Murphy were dismissed. With the exception of the Fourth Supplemental and Amending Petition, the pleadings did not absolutely and unequivocally set forth OCSLA as the sole jurisdictional basis. The plaintiff filed the Third Supplemental and Amending Petition in April 1998 after T.E. Marine and Murphy were dismissed. The Third Supplemental and Amending Petition continued the plaintiff's assertion that he was a seaman under the Jones Act and that his cause of action was brought pursuant to the Savings to Suitors clause. Paragraph II of the petition states that "[p]aragraph 2 through paragraph 12 of plaintiff's original, First and Second Supplemental and Amending Petitions should remain and read the same." Paragraph 2 of the plaintiff's Second Supplemental and Amending Petition states that "[i]n all other respects, Paragraphs I through IX of plaintiff's original and Supplemental Amending Petitions should remain and read the same." Paragraph IX of the plaintiff's Supplemental and Amending Petition states that "[a]t the time of the accident and at all material times mentioned herein, plaintiff was a seaman under the Jones Act. . . Plaintiff brings this cause of action in the Civil District Court for the Parish of Orleans pursuant to the Savings to Suitors clause. . . ." The Jones Act claim was perpetuated by incorporation. Furthermore, even if the parties did acknowledge coverage under the OCSLA when T.E. Marine and Murphy settled, which suggests an overlap of OCSLA and maritime law, the case was not removable since one of the defendants, Gulf Inland, is a Louisiana corporation. Therefore, the defendants did not have notice that the case could be removed in 1998.
Furthermore, the defendants did not have notice that the case could be removed when the plaintiff filed his opposition to the peremptory exception of prescription. As counsel for Gulf Inland pointed out, "in ruling on the exception, essentially, [the judge was] deciding the law that will govern the case." It was not until May 22, 2000, when the judge found in favor of the plaintiff, that it became clear that the Outer Continental Shelf Land's Act applied. The defendants then timely filed their notice of removal on June 9, 2000, within the 30 days by 28 U.S.C. § 1446 (b). The Court finds that the defendants timely filed their notice of removal.
For the foregoing reasons, the motion to remand is DENIED.