Opinion
CIVIL ACTION NO: 00-3800.
March 13, 2001.
ORDER AND REASONS
Before the Court is plaintiff's motion to remand to the Civil District Court for the Orleans Parish. For the reasons stated below, plaintiff's motion is GRANTED.
I. Background
Plaintiff, Richard Rybolt, was employed as a crew member by Laborde Marine Lift ("Laborde") aboard the vessel M/V JOHN P. LAB. He alleges that he was injured while M/V JOHN P. LAB was mooring at an offshore fixed platform designated as Matagorda Island 622 on December 1, 1999. Plaintiff contends that he was employed by Laborde and BP/Amoco, and that ENSCO and/or BP/Amoco owned and operated the platform.
Plaintiff erroneously named "Laborde Marine Lift" as his employer; however, the Court notes that LABORDE MARINE L.L.C. is the correct title.
Plaintiff claims that during the mooring of the vessel, the vessel was positioned near the platform so that fluid was discharged from the platform onto the deck of the vessel. Plaintiff contends that he sustained severe injuries after slipping on this fluid and falling on the deck during the mooring process. Plaintiff seeks damages under the Jones Act, 46 App. U.S.C. § 688, the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333, maritime law, and the Louisiana Civil Code.
Plaintiff originally filed this action in Civil District Court for Orleans Parish. ENSCO removed the case to this Court, pursuant to 28 U.S.C. § 1441, based on federal question jurisdiction under 28 U.S.C. § 1331 over the OCSLA claims. Plaintiff now seeks to remand this case to Civil District Court.
II. Discussion
Defendants claim the removal of this action from state court is predicated upon 28 U.S.C. § 1441(c), which permits removal of an entire case "[w]henever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action." Jones Act cases are not removable from state court. See Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); 46 App. U.S.C. § 688 (incorporating 28 U.S.C. § 1445(a), the FELA provision barring removal). Under the savings to suitors clause, Congress intended for seamen to have their choice of a state or federal forum in Jones Act cases. In addition to his Jones Act claims, plaintiff sues BP/Amoco and ENSCO under OCSLA. OCSLA extends the original jurisdiction of federal courts over cases arising from activities on the outer continental shelf. See Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1226 (5th Cir. 1989). The existence of removal jurisdiction under the first sentence of § 1441(b) over OCSLA claims that overlap with general maritime law claims has not been resolved by the Fifth Circuit. See, e.g., Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340 (5th Cir. 1999); Tennessee Gas Pipeline v. Houston Casualty Ins. Co., 87 F.3d 150, 155 (5th Cir. 1996); see also Newman v. Superior Well Servs., Inc., 1997 WL 208920, *3 (E.D. La. 1997); Bulen v. Hall-Houston Oil Co., 953 F. Supp. 141 (E.D. La. 1997); Courts v. Accu-Coat Servs., Inc., F. Supp. 592 (W.D. La. 1996). Even if OCSLA provided a jurisdictional basis for removal, this Court could not assert removal jurisdiction over these claims unless they were separate and independent from the nonremovable Jones Act claims. 28 U.S.C. § 1441(c); see Addison v. Gulf Coast Contracting Servs., Inc., 744 F.2d 494, 499-501 (5th Cir. 1984); Lirette v. N.L. Sperry Sun, Inc., 810 F.2d 533 (5th Cir. 1987). The Court therefore need not reach the thorny issue of whether OCSLA claims that overlap with general maritime claims can be removed under the first sentence of § 1441(b) if there would be no removal jurisdiction in any event because of the presence of a related Jones Act claim.
Removal under the second sentence of § 1441(b) is unavailable because Laborde is a Louisiana resident.
Before the Court can determine if the claims are separate and independent, it must determine whether the plaintiff has adequately pled a Jones Act claim. Generally, federal courts look to the plaintiff's pleadings in determining whether a Jones Act claim has been sufficiently pled, but defendants may pierce the complaint to show that the Jones Act claim has been fraudulently pled to defeat removal. See Newman, 1997 WL 208920 at *3 (citing Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993)). The defendants must show that there is no possibility that plaintiff would be able to establish a cause of action under the Jones Act. See Id. Plaintiff alleges that his injuries were caused by the negligence of the defendants. More specifically, plaintiff alleges that Laborde and/or BP/Amoco were negligent in failing to provide an adequate and sufficient crew, failing to properly navigate the vessel, failing to maintain and keep the deck and other working areas clear, failing to mark safety hazards on the deck, and failing to properly light the deck. Moreover, Laborde has submitted an affidavit that states that plaintiff was employed by Laborde and assigned to the vessel M/V JOHN P. LAB. Based on this affidavit and plaintiff's allegations of negligence, the Court cannot find that plaintiff has no possibility of establishing a Jones Act claim against Laborde. For the present purposes, it is not necessary to determine whether plaintiff also has a cause of action under the Jones Act against BP/Amoco.
In order to determine if the non-Jones Act claims are separate and independent, the Court must examine whether there was a single wrong arising from an interlocking series of transactions. See Addison, 744 F.2d at 500 ( citing American Fire Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534 (1951)). Alleging multiple causes of action or theories of recovery is not determinative of the independence of the claims. See Lirette, 810 F.2d at 539; Nunez v. Unocal Exploration Corp., 1994 WL 242248, *2 (E.D. La. 1994). Plaintiff seeks recovery for a single injury arising from a series of transactions to which all of the defendants contributed. He asserts that the concurrent negligence of all of the defendants contributed to causing him to slip and fall on fluid flowing from the platform onto the deck of the vessel. "(W]here there is a single wrong to plaintiff, for which relief is sought, arising from an interlocked series of transactions, there is no separate and independent claim or cause of action under § 1441(c)." American Fire Casualty Co., 341 U.S. at 14, 71 S.Ct. at 540. Because plaintiff's claims arise from a single set of facts for which he seeks a single recovery, plaintiff's claims against Laborde, BP/Amoco, and ENSCO are not separate and independent. Plaintiff chose to bring his Jones Act claims in state court and his related claims are not removable under § 1441(c).
III. Conclusion
For the reasons stated above, the Court grants plaintiff's motion for remand.