Opinion
Civil Action No. 2:20-CV-245
12-23-2020
Maria Isabel RIVERA, et al., Plaintiffs, v. ORION MARINE GROUP INC., et al., Defendants.
Baldemar F. Gutierrez, Attorney at Law, J. Javier Gutierrez, The Gutierrez Law Firm, Inc., Alice, TX, David L. Rumley, Wiginton Rumley Dunn & Blair LLP, Corpus Christi, TX, for Plaintiffs. Frank Anthony Piccolo, Chaffe McCall LLP, Houston, TX, for Defendants Orion Marine Construction, Inc., Orion Marine Group, LLC. Brian George Walker, Kent M. Adams, Wilson Elser Moskowitz Edelman & Dicker, LLP, Houston, TX, for Defendants Epic Midstream Holdings GP, Epic Midstream Holdings, LP, Epic Crude Holdings, LP. Patrick W. Mizell, Matthew Charles Hoffman, Vinson Elkins LLP, Houston, TX, David Evans Keltner, Kelly Hart and Hallman LLP, Fort Worth, TX, for Defendants Enterprise Products Operating LLC, Enterprise Products Partners, LP.
Baldemar F. Gutierrez, Attorney at Law, J. Javier Gutierrez, The Gutierrez Law Firm, Inc., Alice, TX, David L. Rumley, Wiginton Rumley Dunn & Blair LLP, Corpus Christi, TX, for Plaintiffs.
Frank Anthony Piccolo, Chaffe McCall LLP, Houston, TX, for Defendants Orion Marine Construction, Inc., Orion Marine Group, LLC.
Brian George Walker, Kent M. Adams, Wilson Elser Moskowitz Edelman & Dicker, LLP, Houston, TX, for Defendants Epic Midstream Holdings GP, Epic Midstream Holdings, LP, Epic Crude Holdings, LP.
Patrick W. Mizell, Matthew Charles Hoffman, Vinson Elkins LLP, Houston, TX, David Evans Keltner, Kelly Hart and Hallman LLP, Fort Worth, TX, for Defendants Enterprise Products Operating LLC, Enterprise Products Partners, LP.
ORDER FOR REMAND
DAVID S. MORALES, UNITED STATES DISTRICT JUDGE
Joel Rivera DeLeon, a seaman of more than fifteen years, suffered a tragic death when the vessel he was working on was consumed in an explosion and fire. (D.E. 1-2, p. 3–4). Seeking compensation for his estate and family members, Plaintiffs Maria Isabel Rivera, Cipriano Rivera, Jesus Rivera, Carlos Rivera, Lucero Rivera, Joel Rivera, and Efren Rivera ("Plaintiffs") elected to file this wrongful death and survival action in the County Court at Law No. 3, Nueces County, Texas. Id. at 1-8. Defendant EPIC Midstream Holdings, LP removed the case to this Court, arguing that the Court has federal enclave jurisdiction, federal officer jurisdiction under 28 U.S.C. § 1442, and federal question jurisdiction under 28 U.S.C. § 1331 pursuant to the Grable doctrine. (D.E. 1); see Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).
Pending before the Court are Plaintiffs' Motion to Remand for lack of federal subject matter jurisdiction and Supplemental Motion to Remand raising a procedural defect in the notice of removal. (D.E. 4; D.E. 7). After considering the state court petition (D.E. 1-2, p. 1–8), the notice of removal (D.E. 1), and the motions to remand (D.E. 4; D.E. 7), along with the accompanying briefs (D.E. 13; D.E. 14), the Court GRANTS Plaintiffs' motion to remand. (D.E. 4). This action is REMANDED to the County Court at Law No. 3, Nueces County, Texas, the court from which it was removed.
Because the Court finds that no basis for federal jurisdiction exists in this case, it does not address Plaintiffs' procedural defect argument raised against the notice of removal and asserted in their supplemental motion to remand. (D.E. 7).
I. Background
Defendants Orion Marine Group, LLC and Orion Marine Construction, Inc. (collectively, "Orion") entered into a contract with Defendants Epic Midstream Holdings, LP, Epic Midstream Holdings GP, LLC, and Epic Crude Holdings, LP (collectively, "EPIC") to perform dredging work at the EPIC Marine Terminal. (D.E. 1-2, p. 2–4). Relevant to the case at hand, Orion had seamen employees working on the dredging project aboard the Waymon L. Boyd ("Vessel"). (D.E. 4, p. 2). Defendants Enterprise Products Operating, LLC and Enterprise Products Partners, LP (collectively, "Enterprise") operate a pipeline located in Tule Lake Channel, which is within the Port of Corpus Christi Inner Harbor Security Zone. (D.E. 1, p. 3; D.E. 1-2, p. 4); 33 C.F.R. § 165.809. The United States Coast Guard is tasked with protecting the security zone. § 165.809. The Coast Guard's operational headquarters for this security zone is located at 249 Glasson Drive, Corpus Christi, Texas 78406. (D.E. 1-2, p. 17). The Coast Guard owns the real property at 249 Glasson Drive. Id.
On August 21, 2020, Enterprise's pipeline was struck during the dredging work Orion was performing for EPIC, resulting in an explosion that engulfed the Vessel. (D.E. 1-2, p. 4). Among those who died in the explosion was Joel Rivera DeLeon, one of the seamen employed by Orion aboard the Vessel working on the dredging project at the time of the explosion. Id. at 3–4.
Plaintiffs, who are Joel Rivera DeLeon's surviving wife and adult children, commenced this lawsuit against the defendants seeking damages for personal injury and wrongful death. Id. at 5. The Petition contains the following causes of action:
• Negligence, negligence per se, gross negligence, and recklessness against Orion "pursuant to the Jones Act, as well as principals of maritime negligence and unseaworthiness." Id. at 4;
• Negligence, negligence per se, gross negligence, and recklessness against EPIC. Id. at 4–5;
• Negligence, negligence per se, gross negligence, and recklessness against Enterprise. Id. at 5;
• Strict liability against Enterprise for failing to abide by its non-delegable duty to follow certain federal regulations. Id. at 5.
Having reviewed the pleading against EPIC and Enterprise and seeing only allegations of negligence and strict liability theories without reference to vessels or navigable waters, the Court finds that there are no admiralty or maritime claims alleged against either defendant. See generally (D.E. 1-2, p. 4–5).
EPIC, with the consent of Orion and Enterprise, removed the case to this Court, asserting that federal jurisdiction exists. (D.E. 1). II. Legal Standard
Plaintiffs raise a procedural defect in the notice of removal, asserting that co-defendant Epic Crude Terminal Co., LP did not properly consent to the removal. (D.E. 7; D.E. 14, p. 9–10); see also (D.E. 13, p. 14–15). Because the Court concludes that no basis for federal jurisdiction exists in this case, it does not address whether EPIC Crude Terminal Co. LP's consent was required, and if so, whether it was timely and proper.
A defendant seeking to remove any civil action from state court must include in its notice of removal "a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). Because it purposely mirrors the pleading standard in Federal Rule of Procedure 8, "courts should apply the same liberal rules [to removal allegations] that are applied to other matters of pleading." Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 87, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) (alteration in original) (internal quotation marks omitted). As such, a notice of removal need only include plausible allegations of federal jurisdiction. Id. at 89, 135 S.Ct. 547 ; Gonzalez v. Limon , 926 F.3d 186, 188 (5th Cir. 2019). Upon a motion to remand, the burden is on the removing party to prove removal was proper. Tenn. Gas Pipeline v. Hous. Cas. Ins. Co. , 87 F.3d 150, 152 (5th Cir. 1996). To determine whether removal was proper, federal courts can look beyond the face of the complaint. Baccus v. Parrish , 45 F.3d 958, 960–61 (5th Cir. 1995).
III. Analysis
Plaintiffs' lawsuit contains claims against Orion pursuant to the Jones Act, 46 U.S.C. § 30104, and general maritime law, as well as state law claims against EPIC and Enterprise. (D.E. 1-2, p. 4–5). The Court will first address whether Plaintiffs' Jones Act claims can be removed in this case. Second, it will examine whether Plaintiffs' general maritime claims can be removed under 28 U.S.C. § 1333. Third, it will analyze whether Plaintiffs' maritime claims and state law claims can be removed under federal enclave jurisdiction, federal officer jurisdiction, or federal question jurisdiction pursuant to the Grable doctrine.
A. Plaintiffs' Jones Act claims against Orion are not removable.
It is well established that Jones Act claims cannot be removed from state court because the Jones Act "incorporates the general provisions of the Federal Employers' Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal." Lackey v. Atlantic Richfield Co. , 990 F.2d 202, 207 (5th Cir. 1993). Thus, Plaintiffs' Jones Act claims against Orion are not removable and must be remanded.
B. Plaintiffs' maritime tort claims against Orion are not removable under 28 U.S.C. § 1333 ; removal requires an independent basis of federal jurisdiction.
28 U.S.C. § 1333 grants federal district courts "original jurisdiction, exclusive of the courts of the States, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." § 1333(1). Had Plaintiffs elected to file their maritime claims in this Court, there is no doubt that original jurisdiction would exist over the maritime claims. However, because Plaintiffs elected to file said claims in state court, they invoked the § 1333(1)'s "saving to suitors" clause, and the Court must determine its control here. See (D.E. 1-2, p. 1).
Historically, removing parties have not been permitted to remove maritime claims under § 1333, instead needing an independent basis of federal jurisdiction. See, e.g. , Figueroa v. Marine Inspection Servs. , 28 F. Supp. 3d 677, 680 (S.D. Tex. 2014). "This was the result whether the court relied on the language of the removal statute ( 28 U.S.C. § 1441 ) or the saving to suitors clause of the jurisdictional statute ( 28 U.S.C. § 1333 )." Id. Defendants raise the issue of whether the 2011 amendments to 28 U.S.C. § 1441 effect this traditional understanding. (D.E. 13, p. 12–14). The Court holds that it does not. See Figueroa , 28 F. Supp. 3d at 680–82 (finding that an independent basis of jurisdiction is required to remove maritime claims); see Rogers v. BBC Chartering Am., LLC , No. 4:13-CV-3741, 2014 WL 819400, at *1 (S.D. Tex. Mar. 3, 2014) ("It is well accepted that maritime cases filed in state court cannot be removed to federal court unless an independent basis for federal jurisdiction exists. Nothing in the 2011 amendments to the removal statutes altered this traditional understanding."); Belanger v. McDermott Int'l, Inc. , No. H-19-1591, 2019 WL 5595452, at *1–2 (S.D. Tex. Oct. 30, 2019).
Defendants, however, do not solely rely on § 1333 for removal. (D.E. 1). Defendants also argue that the Court has federal enclave jurisdiction, federal officer jurisdiction, and federal question jurisdiction under the Grable doctrine over the maritime claims and state law claims. Id. at 5–11. Plaintiffs, for their part, argue that the only possible basis for removal is if the federal district court has diversity jurisdiction under 28 U.S.C. § 1332. (D.E. 4, p. 17). The Court disagrees with Plaintiffs on this point, as the Fifth Circuit has not restricted removal to a certain type of federal jurisdiction; the requirement is simply that an independent basis for federal jurisdiction exists. See Barker v. Hercules Offshore, Inc. , 713 F.3d 208, 219 (5th Cir. 2013) (explaining that § 1333(l)'s saving to suitors clause exempts maritime claims from removal unless an independent basis of jurisdiction exists, "such as diversity of citizenship"). As such, because federal enclave jurisdiction, federal officer jurisdiction, or the Grable doctrine could provide an independent basis of jurisdiction, each must be analyzed.
C. The Court does not have federal enclave jurisdiction.
Defendants rely on federal enclave jurisdiction as an independent basis for jurisdiction. (D.E. 1, p. 5–6; D.E. 13, p. 6–8). "Under the Constitution the United States has the power to acquire land from the states for certain specified uses and to exercise exclusive jurisdiction over such lands, which are known as federal enclaves." Lord v. Local Union No. 2088, Intern. Broth. of Elec. Workers, AFL-CIO , 646 F.2d 1057, 1059 (5th Cir. 1981) (citing U.S. CONST. art. I, § 8, cl. 17 ); see also Lawler v. Miratek Corp. , No. EP-09-CV-252-KC, 2010 WL 743925, at *2 (W.D. Tex. Mar. 2, 2010) ("Federal enclave jurisdiction is a subspecies of federal question jurisdiction, which is a form of subject matter jurisdiction vested in federal district courts by 28 U.S.C. § 1331."). As a result, "federal courts have at least concurrent original jurisdiction" over "tort claims that arise on federal enclaves." Lawler , 2010 WL 743925, at *2 (citing Durham v. Lockheed Martin Corp. , 445 F.3d 1247, 1250 (9th Cir. 2006) ; Mater v. Holley , 200 F.2d 123, 123–24 (5th Cir. 1952) ). The key factor in determining whether federal enclave jurisdiction exists is the location of the plaintiff's injury or where the specific cause of action arose. See Mater , 200 F.2d at 123-25 ; Lawler , 2010 WL 743925, at *3 (observing that the "exact geographical location" of where the claim arose determines the applicability of the federal enclave jurisdiction).
Here, it is undisputed that the explosion occurred in the Corpus Christi Tule Lake Channel, which is located within a federally designated "security zone." See 33 C.F.R. § 165.809(a) (providing that the Tule Lake and "[a]ll waters of the Corpus Christi Inner Harbor from the Inner Harbor Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin" are "designated as a security zone"). Thus, the issue is whether the security zone itself—standing alone—is a federal enclave with exclusive federal jurisdiction or is somehow an extension of a separate, nearby federal enclave.
Regarding the first question, the Court finds that the security zone itself—standing alone—is not a federal enclave. The Supreme Court has outlined at least two requirements for a federal enclave to exist whereby exclusive jurisdiction is vested in the federal government: (1) the United States must acquire land through purchase, condemnation, or cession from a state to erect forts, magazines, arsenals, dock-yards, or other needful buildings; and (2) the state legislature must consent to the jurisdiction of the federal government. See Paul v. United States , 371 U.S. 245, 264–65, 83 S.Ct. 426, 9 L.Ed.2d 292 (1963). Furthermore, if the property was acquired after 1940, the federal government must accept jurisdiction "by filing a notice of acceptance with the Governor of the State or in another manner prescribed by the laws of the State where the land is situated." 40 U.S.C. § 3112(b) ; see also id. § 3112(c) ("It is conclusively presumed that jurisdiction has not been accepted until the [federal] Government accepts jurisdiction over land as provided in this section."); Paul , 371 U.S. at 264–65, 83 S.Ct. 426 ; Dekalb Cnty., Ga. v. Henry C. Beck Co. , 382 F.2d 992, 994–95 (5th Cir. 1967) (holding that the United States must take some affirmative action to accept jurisdiction over federal enclaves). None of the requirements for declaring the security zone itself a federal enclave with exclusive federal jurisdiction are in the record.
To be sure, no one, not even the federal government, can own running water. See Sturgeon v. Frost , ––– U.S. ––––, 139 S. Ct. 1066, 1078, 203 L.Ed.2d 453 (2019) ("[R]unning waters cannot be owned—whether by a government or by a private party."). And "waters" is precisely what the security zone covers. See 33 C.F.R. § 165.809 (providing that "[a]ll waters of the Corpus Christi Inner Harbor from the Inner Harbor Bridge (U.S. Hwy 181) to, and including the Viola Turning Basin" are "designated as a security zone"). Accordingly, because some form of title is a necessary component of federal enclaves, see Paul , 371 U.S. at 264–65, 83 S.Ct. 426, and the federal government has no ownership rights in the Tule Lake Channel whatsoever, the security zone itself cannot meet the requirements of establishing a federal enclave with exclusive federal jurisdiction. As such, the security zone, standing alone, is not a federal enclave.
Generally, a security zone is
an area of land, water, or land and water which is so designated by the Captain of the Port or District Commander for such time as is necessary to prevent damage or injury to any vessel or waterfront facility, to safeguard ports, harbors, territories, or waters of the United States or to secure the observance of the rights and obligations of the United States.
(b) The purpose of a security zone is to safeguard from destruction, loss, or injury from sabotage or other subversive acts, accidents, or other causes of a similar nature:
(1) Vessels,
(2) Harbors,
(3) Ports, and
(4) Waterfront facilities:
in the United States and all territory and water, continental or insular, that is subject to the jurisdiction of the United States.
33 C.F.R. § 165.30.
It appears that the Port of Corpus Christi Authority of Nueces County, Texas owns the submerged land beneath the Tule Lake Channel. See (D.E. 4-1).
Next, Defendants argue that
even if the water is not "owned" by the federal government, designation of a waterway as a Security Zone means that
the federal government may exercise "exclusive rights to occupy this area." United States v. Allen , 924 F.2d 29, 31 (2d Cir. 1991) (per curiam). This, coupled with the broad holding of Cappaert v. United States , 426 U.S. 128, 138 [96 S.Ct. 2062, 48 L.Ed.2d 523] (1976), that water adjacent to federal enclaves is a part of the federal enclave, surely brings the Security Zone itself within the definition of a federal enclave.
(D.E. 13, p. 7). Defendants point to two other "federal enclaves": (1) the Coast Guard's operational headquarters for the security zone, located roughly five miles from the incident; and (2) the federal courthouse, also located about five miles away from the incident. Id. at 8; (D.E. 1-2, p. 17).
First, it is questionable whether the federal government has "exclusive rights to occupy" the Tule Lake Channel, which is part of the Port of Corpus Christi. See 33 C.F.R. § 165.809(b)(1) (limiting those who need authorization from the Captain of the Port Corpus Christi prior to entering the security zone only to "recreational vessels, passenger vessels, or commercial fishing vessels"); see also 67 Fed. Reg. 64044-01, 2002 WL 31316984 (explaining that the security zone covering the Corpus Christi Inner Harbor is not intended to "affect commercial traffic conducting business within the ports" that otherwise has a right to be there). Second, even assuming without deciding that those two properties are federal enclaves, the Court finds that the reserved water rights doctrine in Cappaert , 426 U.S. at 138, 96 S.Ct. 2062, does not extend the enclave status of the federal courthouse or the Coast Guard property to the security zone. The finding is the same even if the federal government did have an exclusive right to occupy the security zone.
The record seems to reflect that the parties assume the enclave status of the United States courthouse and the Coast Guard property at 249 Glasson Drive. However, the Court observes that the only information in the record regarding the enclave status of either property is that the federal government purchased the real property at 249 Glasson Drive. See (D.E. 1-2, p. 17–19). As previously noted, establishing a federal enclave whereby the federal government has exclusive jurisdiction requires very specific requirements, namely: (1) the United States must acquire land through purchase, condemnation, or cession from a state to erect forts, magazines, arsenals, dock-yards, or other needful buildings; (2) the state legislature must consent to the jurisdiction of the federal government; and (3) a formal acceptance by the federal government as prescribed by 40 U.S.C. § 3112 for land acquired after 1940. See Paul , 371 U.S. at 264–65, 83 S.Ct. 426 ; Henry C. Beck Co. , 382 F.2d at 994–95. Nonetheless, the Court will analyze whether, assuming that both are federal enclaves, the security zone also has enclave status by extension.
The Supreme Court describes the reserved water rights doctrine as the following: "when the Federal Government withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation." Id. The rights the government retains under the doctrine are "usufructuary in nature, meaning that they are rights for the government to use—whether by withdrawing or maintaining—certain waters it does not own." Sturgeon , 139 S. Ct. at 1079 (internal quotation marks omitted). The Sturgeon Court also observed with approval that "reserved water rights are not the type of property interests to which title can be held." Id. Even if they were, the Court noted, the reserved water rights doctrine "does not give the Government plenary authority over the waterway to which it attaches." Id. "Rather, the interest merely enables the Government to take or maintain the specific ‘amount of water’—and ‘no more’—required to ‘fulfill the purpose of [its land] reservation.’ " Id. (alteration in original) (quoting Cappaert , 426 U.S. at 141, 96 S.Ct. 2062 ).
Here, the land that the federal government withdrew from the public domain were two "federal enclaves": the Coast Guard property and the United States courthouse. At best, the reserved water rights doctrine could be a basis for why and to what extent the Coast Guard can regulate the security zone. See 33 C.F.R. § 165.809. However, the security zone certainly does not become a "federal enclave" whereby the government has exclusive jurisdiction over it. The reserved water rights doctrine does not imply such a right. See Sturgeon , 139 S. Ct. at 1079. There is a specific process for how federal enclaves are created and the reserved water rights doctrine is not a means to bypass that process. See Paul , 371 U.S. at 264–65, 83 S.Ct. 426 ; Henry C. Beck Co. , 382 F.2d at 994-95.
Defendants, as the removing parties, have the burden of demonstrating that the Court has federal enclave jurisdiction. See New Orleans & Gulf Coast Ry. Co. v. Barrois , 533 F.3d 321, 327 (5th Cir. 2008). Because the events occurred in an area that is not a federal enclave, the Court finds that federal enclave jurisdiction does not exist over Plaintiffs' claims.
D. The Court does not have federal officer jurisdiction.
Defendants next argue that removal is proper under 28 U.S.C. § 1442(a) for federal officer jurisdiction. (D.E. 1, p. 6–8; D.E. 13, p. 8–9). In order to invoke federal officer jurisdiction and establish a right to remove under § 1442, the Fifth Circuit requires that a defendant show that (1) it has asserted a colorable federal defense, (2) it is a "person" within the meaning of the statute, (3) that has acted pursuant to a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions. Latiolais v. Huntington Ingalls , 951 F.3d 286, 296 (5th Cir. 2020) (en banc). No one disputes that Defendants are "persons" under the statute. Plaintiffs do, however, contest the remaining three elements. See (D.E. 4, p. 13–19).
i. No defendant was acting under a federal officer's directions.
Because the statute allows removal for persons "acting under" an officer or agency of the United States, 28 U.S.C. § 1442(a), that language has been interpreted to mean "[t]hat [the] statute creates federal jurisdiction even over cases brought against private parties if they are sued for conduct they committed under the direction of federal authorities and for which they have a colorable defense under federal law." Crutchfield v. Sewerage & Water Bd. of New Orleans , 829 F.3d 370, 375 (5th Cir. 2016). The initial question before this Court, therefore, is whether any Defendant—all of which are private parties—was "sued for conduct [it] committed [while acting] under the direction of federal authorities." Id.
At the December 16, 2020 hearing, the Court inquired into Defendants' position on the matter:
Court: Who is the federal officer we are talking about?
Defendant: The federal officer would be the Coast Guard, because if you look at the regulation, ... "[n]o person or vessel may enter or remain in a security zone without the permission of the Captain of the Port." [quoting 33 C.F.R. § 165.33(a) ]. So it is explicit within the regulation itself that we are not just talking about a general overlay of regulations.
We are talking about express and direct communications between anyone that is entering that port area, which all ships that enter that area, including the barge at issue, have to do; so the statute says that they must contact and get directions from the captain of the port.
....
Defendant: So what we have alleged in our removal petition is that we have to comply with this body of federal law, including specific directions that are given on a case-by-case basis by a federal officer, and the plaintiffs allege that conduct of moving the barge through the channel resulted in an explosion, and so that's directly connected with, or associated with, an act pursuant to the federal officer's directions.
....
Court: [Just to clarify, you are saying that] all defendants are required to comply with Coast Guard directives. So, that is the question that I have: how is ... you said that these directives were on a case-by-case basis, [and] it wasn't just the same for everyone, so in this particular case, how was the Coast Guard giving directions in this specific instance to the defendants in this case?
Defendant: That is what the evidence is going to have to bear out in terms of the specificity that [the Court] is looking for, but what I will say is, at a minimum, it is going to speak to the circumstances under which the captain of the port is going to allow access to the security zone itself, so how to and when to access the security zone, and if there were any additional, which the evidence may bear out, "[e]ach person and vessel in a security zone shall obey [those] direction[s] or order[s] of the Captain of the Port." [quoting 33 C.F.R. § 165.33(b) ].
Assuming that the Coast Guard captain is a federal officer in this situation, the Supreme Court in Watson v. Philip Morris Companies, Inc. , 551 U.S. 142, 143, 152, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007), held that "the private person's ‘acting under’ must involve an effort to assist, or to help carry out, the federal superior's duties or tasks." Here, Defendants point to general regulations governing the security zone, which Defendants contend categorically establishes that "any person in the Security Zone is clearly ‘acting pursuant to a federal officer's directions.’ " See (D.E. 13, p. 8–9) (first quoting Latiolais , 951 F.3d at 296 ; then citing 33 C.F.R. § 165.33(a), (b), (f) ). But neither the general regulations for security zones nor the specific regulation designating the Port of Corpus Christi as a security zone contain any requirements for maintaining channel depth. See 33 C.F.R. §§ 165.33, 165.809(b). In any event, "a private firm's compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official,’ even if the regulation is highly detailed and even if the private firm's activities are highly supervised and monitored." Watson , 551 U.S. at 153, 127 S.Ct. 2301. The Watson Court went on to explain that "[a] contrary determination would expand the statute's [ 28 U.S.C. § 1442(a) ] scope considerably, potentially bringing within it state-court actions filed against private firms in many highly regulated industries. Nothing in the statute's language, history, or purpose indicates a congressional intent to do so." Id. at 143, 153, 127 S.Ct. 2301. Defendants cannot use the general regulations concerning the security zone as a basis by itself for officer jurisdiction. More is needed. See id. ; see also, e.g. , Jackson v. Am. Bureau of Shipping , 2020 WL 1743541, at *1 (S.D. Tex. Apr. 8, 2020) (determining that the defendant could not "claim federal officer jurisdiction for all acts merely because [U.S. Coast Guard] imposes strict standards on ABS before allowing it to perform inspections").
To be clear, Defendants cite 33 C.F.R. § 165.33 in their notice of removal and response for the proposition that "[a]ny person or vessel entering the Security Zone is under the direct order and control of the United States Coast Guard." (D.E. 1, p. 4; D.E. 13, p. 5). But, as Plaintiffs point out in their reply, see (D.E. 14, p. 2–4), § 165.33 is entitled: "General regulations." One regulation is that "each person and vessel in a security zone shall obey any direction or order of the Captain of the Port." Id. § 165.33(b). This is an important distinction, for the regulation only suggests that if the Coast Guard directs someone to act or refrain from acting in a particular way, the person or vessel must oblige.
Interestingly, Defendants do not cite or otherwise attempt to distinguish Watson ’s holding as it pertains to their situation. See (D.E. 1; D.E. 13).
To the extent that Defendants are asserting that it is possible the Coast Guard gave specific directives to Defendants—beyond the general regulations—concerning the incident, it seems that this is speculative, as Defendants do not even allege in their notice of removal that the captain of the port gave any specific directions that prompted Defendants to act in a way that was connected or associated with the charged conduct. See (D.E. 1; D.E. 13). All that Defendants assert in their notice of removal is that
[h]ere, federal officer jurisdiction exists because any ‘Vessel’ entering the Security Zone is under operational orders of the United States Coast Guard. Moreover, the Orion Defendants at issue are engaged in contracts with federal governmental authorities which places them under further direct control and oversight of the United States.
There is no evidence in the record to support the assertion that any defendant entered into a contract with the federal government. To the extent that Defendants are asserting some derivative form of federal immunity through a federal contractor defense, the Court concludes that the facts do not support such a defense in this case. See infra section III(d)(ii).
(D.E. 1, p. 8). Because Defendants point to no allege specific coast-guard directives issued concerning the incident, the Court is left to speculate whether those directives were even given in this case. However true it may be that § 1442 only requires a "short and plain statement" for the basis of officer jurisdiction, it cannot be so short and plain that it falls within speculation. Moreover, to Defendants' position that the "evidence is going to have to bear out" the facts supporting the "acting under" element, discovery cannot be used as a fishing expedition to permit the removal basis first and the pursuing discovery to support it; Defendants must have some basis in fact for the removal. See Dart , 574 U.S. at 89, 135 S.Ct. 547 ; Gonzalez , 926 F.3d at 188. Defendants point to no known facts on the face of the state-court petition or in the record that minimally supports the "acting under" element of officer jurisdiction.
ii. No defendant has a colorable federal defense.
With regard to whether a potential federal defense is "colorable," the Fifth Circuit states that "the asserted federal defense need not be clearly sustainable, as section 1442 does not require a federal official or person acting under him to win his case before he can have it removed." Latiolais , 951 F.3d at 296–97 (internal quotation marks omitted). "Instead, an asserted federal defense is colorable unless it is ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.’ " Id. at 297 (emphasis added). "Certainly, if a defense is plausible, it is colorable." Id.
Here, Defendants assert a derivative form of a federal contractor defense (i.e., derivative federal immunity). The concept of derivative immunity extends to private contractors the immunity traditionally afforded to the government when the contractor (1) acts under the federal government's authority and direction and (2) does not exceed the authority conferred by the federal government. See Ackerson v. Bean Dredging LLC , 589 F.3d 196, 204 (5th Cir. 2009) (quoting Yearsley v. W.A. Ross Constr. Co. , 309 U.S. 18, 20–21, 60 S.Ct. 413, 84 L.Ed. 554 (1940) ). But here, the evidence is that the dredging by Defendant Orion was not under the federal government's authority or at the federal government's direction. Instead, the dredging was undertaken to construct Defendant EPIC's new crude oil terminal, a private construction project and all operations were being performed in conformance with Epic's construction plans. See (D.E. 7-4; D.E. 14-1). Accordingly, derivative federal immunity is not a colorable defense in this case.
iii. Whether the charged conduct is connected or associated with an act pursuant to a federal officer's directions.
Because the Court determines that no defendant was acting under a federal officer's directions, and no defendant has a colorable federal defense, the Court does not address whether the charged conduct is connected or associated with an act pursuant to a federal officer's directions.
Although a zealous attempt, the Court concludes that Defendants have not met their removal burden in alleging federal officer jurisdiction.
Plaintiffs also assert that because there is no federal officer jurisdiction, the case must be remanded solely on the grounds that co-defendant EPIC Crude Terminal Co., LP did not properly consent to the removal. (D.E. 14, p. 9-10). Because the Court concludes that no basis for federal jurisdiction exists in this case, it does not address whether EPIC Crude Terminal Co., LP's consent was required, and if so, whether it was timely and proper.
E. The Court does not have federal question jurisdiction over Plaintiffs' maritime tort claims or state law claims.
28 U.S.C. § 1331 gives federal district courts "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Under the well-pleaded complaint rule, "arising under" jurisdiction "must appear on the face of the complaint." McKnight v. Dresser, Inc. , 676 F.3d 426, 430 (5th Cir. 2012).
Ordinarily, arising under jurisdiction exists "when federal law creates the cause of action asserted." Gunn v. Minton , 568 U.S. 251, 257, 133 S.Ct. 1059, 185 L.Ed.2d 72 (2013) ; see also § 1331. However, under the Grable doctrine, there is a "special and small category" of cases where state law creates the cause of action but "arising under jurisdiction still lies." Gunn , 568 U.S. at 258, 133 S.Ct. 1059 ; see also Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005). Under the Grable doctrine, "federal jurisdiction over a state law claim will lie if a federal issue is: (1) necessarily raised, (2) actually disputed, (3) substantial, and (4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress." Gunn , 568 U.S. at 258, 133 S.Ct. 1059. Plaintiffs plead causes of action under the Jones Act, general maritime law, and state law. (D.E. 1-2, p. 4–6). Having already disposed of the removability of the Jones Act claims, the Court must now analyze whether Plaintiffs' maritime claims and state law claims "arise under" federal law. It goes undisputed that federal law does not create the maritime claims and state law claims. And as explained below, the Court also does not have "arising under" jurisdiction under the Grable doctrine because Plaintiffs' general tort claims (both those under maritime law and state law) do not necessarily raise a federal issue, and although the first two elements are satisfied as to the strict liability claim against Enterprise, the federal issue raised there, if any, is not substantial.
i. Is a federal issue necessarily raised?
Plaintiffs' tort claims are brought against Orion, Epic, and Enterprise. (D.E. 1-2, p. 4–5). The claims are for negligence, negligence per se, gross negligence, and recklessness which proximately caused Plaintiffs' injuries. Id. In addition, Plaintiffs raise a strict liability claim against Enterprise specifically, alleging that Enterprise had a non-delegable duty to follow federal pipeline regulations. Id. at 5.
Regarding Plaintiffs' tort claims against Orion, Epic, and Enterprise, Defendants fail to show how a federal issue is necessarily raised. Defendants' first argument is that the federal government has a general interest in protecting navigable waterways and adjacent federal landholdings. (D.E. 1, p. 11). This is too indistinct to satisfy this element. Defendants fail to argue how this general interest affects Plaintiffs' tort claims. See id. ; (D.E. 13, p. 9–13). The Grable doctrine surely was not meant to give jurisdiction to federal district courts anytime a claim potentially affects an interest of the federal government. See Grable , 545 U.S. at 315, 319–20, 125 S.Ct. 2363.
Defendants' second argument is that the regulations within the security zone will control the standards of care, which in turn means a federal issue is necessarily raised. (D.E. 1, p. 11). Defendants cite to federal regulations that establish: (1) that the Port of Corpus Christi Inner Harbor security zone was created to "prevent damage or injury to any vessel or waterfront facility, to safeguard ports, harbors, territories, or waters of the United States" within the security zone; (2) that no recreational, passenger, or commercial fishing vessels can enter the security zone without permission of the Captain of the Port; and (3) that every person and vessel must obey "any direction or order of the Captain of the Port." 33 C.F.R. §§ 165.30, 165.33, 165.809. Nonetheless, the pivotal question remains: how do these regulations affect the standards of care for Plaintiffs' state law tort claims? Because it is not apparent on the face of the state-court petition or notice of removal, and because Defendants offer no plausible allegations in support, Defendants have not met their burden to show a federal issue is necessarily raised.
Plaintiffs' strict liability claim against Enterprise, however, does necessarily raise a federal issue that is apparent on the face of the petition. See (D.E. 1-2, p. 5). Plaintiffs allege that Enterprise had the non-delegable duty to follow federal pipeline regulations. Id. Therefore, federal regulations do control an essential element of the claim, satisfying this element.
ii. Is the federal issue that the strict liability claim raises actually disputed?
Having disposed of Plaintiffs' tort claims, the next issue is whether the federal issue that Plaintiffs' strict liability claim raises is actually disputed. Although the parties do not specifically address this issue in their respective briefs, a dispute over whether Enterprise abided by its duty under the federal pipeline regulations is unavoidable, and thus the Court finds that this element is facially met.
iii. Is the federal issue that the strict liability claim raises substantial?
The next issue is whether the federal issue that the strict liability claim raises is substantial. When the federal issue necessarily raised and actually disputed is important to "the federal system as a whole," it will be considered substantial. See Gunn , 568 U.S. at 260, 133 S.Ct. 1059. For instance, in Grable , the plaintiff initiated a quiet title action in state court, claiming that he had superior title because the Internal Revenue Service failed to give adequate notice. Grable , 545 U.S. at 314, 125 S.Ct. 2363. Whether the IRS gave adequate notice was defined by federal law. Id. at 314–15, 125 S.Ct. 2363. As such, an essential element of the plaintiff's claim in that case depended on "a nearly pure issue of law:" interpreting the meaning of the federal law governing notice. See id. ; Empire Healthchoice Assur., Inc. v. McVeigh , 547 U.S. 677, 681, 126 S.Ct. 2121, 165 L.Ed.2d 131 (2006).
Another important aspect of the quiet title case in Grable was that the interpretation of the federal statute governing the notice requirement appeared to be the only contested issue. See Grable , 545 U.S. at 315, 125 S.Ct. 2363.
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Grable and its progeny also offer guidance as to when a federal issue is not substantial. For example, when "the federal issue is predominantly one of fact," the federal issue will generally not be considered substantial. See Empire , 547 U.S. at 700–01, 126 S.Ct. 2121 ; Singh v. Duane Morris LLP , 538 F.3d 334, 339 (5th Cir. 2008) ; Delgado v. M. Lipsitz & Co., Ltd. , No. 3:13-CV-4324-N, 2014 WL 11456820, at *2 (N.D. Tex. Jan. 28, 2014). In Delgado , a sister district court applied this rule to a situation nearly identical to the case at hand. See 2014 WL 11456820, at *2. There, a federal pipeline regulation governed the standard of care for the plaintiffs' negligence and negligence per se claims, necessarily raising a federal issue that the parties disputed. Id. The court found that the federal issue was not substantial because "the involvement of the regulation [was] limited to questions specific to the circumstances of the case: whether the regulation is the appropriate standard of care in this case given Texas's negligence per se standard and, if so, whether the Defendants violated the regulation." Id.
Here, at stake is whether Enterprise violated federal pipeline regulations. Disposition of this issue will predominantly involve applying the facts to the relevant federal pipeline regulations. Such a fact-bound, situation specific federal issue is not substantial for it will not have the impact on the federal system that the Grable doctrine requires. See Grable , 545 U.S. at 314–15, 125 S.Ct. 2363 ; Gunn , 568 U.S. at 260, 133 S.Ct. 1059 ; Empire , 547 U.S. at 700–01, 126 S.Ct. 2121.
iv. Would federal jurisdiction over the strict liability claim disturb the balance of federal and state judicial responsibilities?
In Grable , the Supreme Court observed that state tort proceedings regularly involve the violation of federal statutes and regulations and that exercising federal jurisdiction in this context would result in an "enormous shift of traditionally state cases into federal courts." Grable , 545 U.S. at 318–19, 125 S.Ct. 2363 ; see Delgado , 2014 WL 11456820, at *2. That concern exists here. Plaintiffs' strict liability claim against Enterprise is one of state law. See (D.E. 1-2, p. 5). Exercising federal jurisdiction over a state law claim merely because federal regulations govern the standard of care "would considerably intrude on state authority." Singh , 538 F.3d at 340. Because the federal issue lacks substantiality and due to federalism concerns, the Grable doctrine does not supply the Court with federal jurisdiction in this case.
IV. Conclusion
For the above reasons, the Court finds that the case was improperly removed as the Court does not have federal subject matter jurisdiction to adjudicate any of Plaintiffs' claims. Therefore, the Court GRANTS Plaintiffs' motion to remand. (D.E. 4). This action is REMANDED to the County Court at Law No. 3, Nueces County, Texas, the court from which it was removed.
SO ORDERED.