Opinion
Civil Action No: 04-865, SECTION: "R" (1).
August 25, 2004
ORDER AND REASONS
Before the Court is plaintiffs' motion to remand For the following reasons, the Court GRANTS the plaintiffs' motion.
I. BACKGROUND
On or about March 22, 2003, plaintiffs' skiff struck one of Apache Corporation's oil wells located in a canal in Apache's South Pass Field in Plaquemines Parish. On February 19, 2004, plaintiffs sued defendants in state court. Defendants are Apache, a Delaware corporation, and Ronald Oubre, a Louisiana domiciliary. Oubre is a production foreman for Apache, and he supervises Apache employees' work in the area where the plaintiffs struck the well. (Def.'s Mem. Opp'n Remand, Aff. of Oubre at ¶¶ 2-3.) On March 26, 2004, defendants removed to this Court under diversity jurisdiction. Specifically, they allege that plaintiffs fraudulently joined Oubre to destroy diversity. Thus, defendants argue, jurisdiction in this Court is proper because Apache is a Delaware corporation, and plaintiffs are Louisiana residents.
II. DISCUSSION
A. Legal Standard
Fraudulent joinder "is established by showing: (1) actual fraud in pleading jurisdictional facts; or (2) inability of the plaintiff to establish a cause of action against the non-diverse [defendant]." Ross v. Citifinancial, Inc., 344 F.3d 458, 461-62 (5th Cir. 2003) (citing Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003)). The Fifth Circuit has recently held that to determine whether a plaintiff can state a cause of action against the non-diverse defendant, the Court "must determine whether there is arguably a reasonable basis for predicting that state law might impose liability." Id. at 462 (citing Great Plains Trust Co. v. Morgan Stanley Dean Witter Co., 313 F.3d 305, 312 (5th Cir. 2002)). There must exist a " reasonable possibility of recovery, not merely a theoretical one." Id.
The burden of persuasion on the defendant who asserts fraudulent joinder is a heavy one. Id. (citing Travis, 326 F.3d at 648). Even though this burden rests with the removing party, a plaintiff may not rest upon mere allegations in his pleadings. Id. at 462. To determine the validity of a fraudulent joinder claim, the Court "may `pierce the pleadings' and consider summary judgment-type evidence." Id. at 462-63 (citing Travis, 326 F.3d at 648-49). In pursuing this inquiry, the Court "`must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff.'" Id. at 463 (citing Travis, 326 F.3d at 649). Moreover, the Court must resolve all factual disputes in favor of the plaintiff. Burden v. Gen. Dynamics, 60 F.3d 213, 217 (5th Cir. 1995). Finally, the Court must resolve all ambiguities of state law in favor of plaintiff. See Ross, 344 F.3d at 463.
B. Analysis
The Court finds that the plaintiffs have a reasonable possibility of recovery against Oubre. In their complaint, plaintiffs allege that Oubre maintained the well in a careless and forseeably dangerous manner; that he failed to properly inspect, mark, and identify the well; that he failed to take remedial measures to alleviate the dangers posed by the well; and that he failed to ensure that the well was not a hazard to navigation. (Pl.'s Compl. at ¶ 14.) Additionally, plaintiffs allege that Oubre had personal knowledge of the well, that it was unmarked and unlit, and that he failed to take measures to locate and mark the well or implement procedures or policies to that end. ( Id.)
(1) Claims Under Louisiana Law
Defendants argue that plaintiffs have no possible cause of action against Oubre under Louisiana law. Louisiana courts hold an individual employee liable to a third party when: (1) the employer owes duty of case to the plaintiff; (2) the employer delegates the duty to the employee; (3) the employee has breached the duty of care through personal fault; and (4) the employee has a personal duty towards the plaintiff, and the breach of that duty caused the plaintiff's damages. Canter v. Koehring Co., 283 So.2d 716, 721 (La. 1973); Ford v. Elsbury, 32 F.3d 931, 935-36 (5th Cir. 1994).
(a) Apache's Duty of Care
Defendants first argue that Apache had no duty of care to plaintiffs because the canal in which plaintiffs traveled was not navigable. Hence, defendants argue, Apache had no reason to expect the plaintiffs to be on the waterway. Navigability is a question of fact. Dardar v. LaFourche Realty Co., Inc., 33 F.3d 1082, 1085 (5th Cir. 1995). A waterway is navigable if it can serve as a highway for commerce in its ordinary condition. Id. Defendants submit the affidavit of Oubre, in which Oubre attests that the canal is a dead end and that he "had a couple of our field employees measure the dead end canal, and they determined the water in the canal runs between 1'-3' deep at high tide and less at low tide." (Def.'s Opp'n Remand, Aff. of Oubre at ¶ 5.) He further attests that "[t]he water in the canal and around the well at issue is not `navigable water.'" ( Id. at ¶ 6.) In response, plaintiffs submit the affidavit of plaintiff Patrick Fontenot, a commercial fisherman. (Reply Mem. to Opp'n Mot. Remand, Aff. of Fontenot at ¶ 4.) He attests that the waterway was navigable with sufficient depth for safe passage by a vessel on the night of the accident. ( Id. at ¶ 3.) Fontenot further attests that other fishermen commonly use it as a thruway. ( Id. at ¶ 4.) Fontenot also states that the canal is not a dead end because it connects Southeast Pass and Redfish Bay. ( Id. at ¶¶ 5-6.) Ultimately, the navigability of the canal is a disputed issue of fact. Accordingly, the Court does not find that Apache has negated a duty to plaintiffs on the grounds that the canal is not navigable.
(b) Delegation to Oubre
Defendants do not address whether the Apache delegated its duty of care to Oubre. Oubre attests that he is a production foreman, and he supervises Apache's work in the South Pass Field, where plaintiffs struck the well. (Def.'s Mem. Opp'n Remand, Aff. of Oubre at ¶ 3.) Defendants do not supply more specific information concerning Oubre's position or his job responsibilities. The Apache Loss Occurrence form that documents plaintiffs' accident names Oubre as the Apache supervisor who is responsible for the facility. (Pl.'s Mem. Remand, Ex. 5.) Therefore, the evidence before the Court suggests that Apache delegated its duty of care to Oubre. Compare Bienaime v. Kitzman, 2000 WL 381932 at *4 (E.D. La. April 12, 2000) (finding that the employer did not delegate its duty of care to elevator passengers to the defendant-employee because the employee stated in her affidavit that the employer never delegated any responsibility to repair or maintain elevators to the employee, and the plaintiff did not submit evidence to rebut the employee's affidavit).
(c) Oubre's Breach of His Duty of Care through Personal Fault
Defendants argue that plaintiffs cannot show that Oubre breached a duty of care through personal fault. This is because Apache delegated the responsibility for lighting the wells to Automatic Power. As more fully explained in section B(1)(d), infra, Oubre's knowledge of the well's dangerous condition, and his concomitant failure to remedy the danger can give rise to personal liability.
Moreover, plaintiffs allege that Oubre was at fault for more than just the failure to light the well. Specifically, plaintiffs allege that Oubre failed to mark the well properly, which is arguably different from failing to light it. They also allege that Oubre further failed to maintain and inspect the well, that he failed to take remedial measures to alleviate the dangers that the well created, and that he failed to implement procedures and policies for locating unmarked and unlit wells. (Pl.'s Compl. at ¶ 14.) Defendants do not sumbit evidence to refute plaintiffs' allegation that Oubre was responsible for maintaining, inspecting, and implementing policies for wells. Additionally, Oubre does not disclaim his responsibility for any of these functions in his affidavit. Therefore, it is reasonably possible that Oubre could be personally at fault for plaintiffs' accident.
(d) Oubre's Personal Duty to Plaintiffs
Defendants argue that Oubre did not have a personal duty to the plaintiffs. Instead, they contend that Oubre's responsibility for the accident site was more like that of a general administrator. The Canter court noted an employee could not be personally liable "simply because of his general administrative responsibility for performance of some function of employment." Canter, 283 So.2d at 721. Instead, the employee had to have "a personal duty towards the plaintiff." Id. If the employee's responsibility has been delegated to a subordinate, the employee "is not personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm." Id. (emphasis mine).
To begin with, defendants submit no evidence to establish that Oubre was more of a general safety administrator than an employee directly responsible for the safety of the well that plaintiffs struck. Indeed, the only information that Apache submits concerning Oubre's duties is that Oubre is a "production foreman [and he] supervise[s] Apache employee's work in Apache's South Pass Field" where the collision occurred. (Def.'s Mem. Opp'n Remand, Aff. of Oubre at ¶ 3.)
Moreover, plaintiffs allege that Oubre had personal knowledge of the dangerous condition of the well, and he failed to remedy it. Oubre does not contest plaintiffs' allegation that he had personal knowledge of the well and its dangerous condition. Thus, even if Oubre's responsibility for the well were delegated to others, and he acted as a general administrator, he could still be liable for plaintiffs' injuries if he had personal knowledge of the danger and failed to cure the risk of harm. Compare Ford, 32 F.3d at 936 (noting that a supervisor's knowledge of a risk of harm and failure to respond to the risk could create personal liability under Canter), and Hayden, 788 F. Supp. at 287 (finding that an employee's alleged personal knowledge of a dangerous pipeline could give rise to personal duty under Canter), with Alexander v. Norfolk S. Corp., 1997 WL 728186 at *6 (E.D. La. Nov. 19, 1997) (finding that plaintiffs could not state a cause of action against defendant-employees because the employees were general supervisors, and the plaintiffs did not allege that the employees had personal knowledge of the danger created by the trains).
Defendants rely on Freeman v. Witco Corp. and Cook v. Shoney's for the proposition that Oubre is not liable because he is a general administrator. Those cases are inapposite. In neither case did the plaintiffs allege that the defendant-employees had personal knowledge of the risk of harm. Freeman, 984 F. Supp. 443, 449-50 (E.D. La. 1997); Cook v. Shoney's, 1999 WL 1000506 at *3 (E.D. La. Nov. 2, 1999). Additionally, defendants cite Richards v. Shell Oil Co. for the proposition that the court cannot hold Oubre liable for a failure to act. 1993 WL 541525 at * 1 (E.D. La. Dec. 21, 1993). Again, the plaintiff in that case did not allege that the defendant-employees had personal knowledge of the risk of harm. Id. The plaintiff simply alleged a failure to act. Id.
Defendants rely on Harrod v. Zenon for the proposition that Oubre was not responsible for plaintiffs' injuries because Oubre was not present at the accident site. 2003 WL 21748687 at *2-3 (E.D. La. July 25, 2003). Defendants reliance is misplaced. In Harrod, the plaintiff slipped and fell on spilled gasoline at a gas station. Id. at *1. The defendant-employee was a gas station supervisor. Id. at *2. The court declined to find that she caused plaintiff's injuries through personal fault or that she had a personal duty of care to the plaintiff because she was not at the gas station when plaintiff fell, she did not spill the gasoline, and the gasoline was not spilled by the time she left work that day. Id. at *3 (noting that "managers cannot reasonably be expected to predict the future, much less have any personal knowledge as to what the exact conditions of their businesses are three hours after they have gone home"). Therefore, to hold the defendant-employee liable in that scenario would in effect hold her liable simply because of her position as station manager. Id.
Here, plaintiffs do not seek to hold Oubre liable simply because of his position with Apache. Instead, as noted above, plaintiffs allege that Oubre had personal knowledge of the dangerous well and that he failed to remedy the danger. In light of his alleged duties and personal knowledge, that Oubre was not present at the site of the accident does not necessarily mean that Oubre was not at fault or that he did not have a duty to the plaintiffs. In other actions involving boat collisions with submerged objects, courts have found that the defendant-employee may have had a duty of care to plaintiffs even though the defendant-employee was not physically present at the accident site. See Hayden, 788 F. Supp. at 287 (facts indicating that defendant-employee was not present when plaintiffs struck submerged pipeline); Amos v. United Gas Pipe Line Co., 1993 WL 255125 at *1-2 (E.D. La. June 29, 1993) (facts indicating that defendant-employee was not present when plaintiffs struck submerged bulkhead); Delahoussaye v. S. Natural Gas Co., 1992 WL 111256 at *1-2 (E.D. La. May 11, 1992) (facts indicating that defendant-employee was not present plaintiffs struck submerged bulkhead).
(2) Maritime Tort
In order to have a cause of action in maritime tort, the tort must have occurred on navigable water. Weidemann Fransen v. Hollywood Marine, 811 F.2d 864, 865 (5th Cir. 1987) (citing Foremost Ins. Co. v. Richardson, 457 U.S. 668, 673 (1987)). The Court has found that defendants have not shown that there is no reasonable possibility that the canal in issue could be found navigable. Defendants did not specifically address other elements of plaintiffs' maritime tort claims. Therefore, defendants have failed to carry their burden to show fraudulent joinder.
For all of the foregoing reasons, the Court grants plaintiffs' motion to remand
C. Costs and Fees
The Court has discretion to award "payment of just costs and any actual expenses, including attorney's fees, incurred as a result of removal" under 28 U.S.C. § 1447(c). See also Miranti v. Lee, 3 F.3d 925, 929 (5th Cir. 1993) (noting that the district court has discretion to award fees only if defendant's removal was improper). Section 1447(c) applies only to those costs and expenses incurred in federal court as a result of removal. W.H. Avitts v. Amoco Production Co., 111 F.3d 30, 32 (5th Cir. 1997). In applying section 1447(c), "the court should consider the propriety of the removing party's actions based on an objective view of the legal and factual elements" as they stood at the time of removal. Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 293 (5th Cir. 2000). The court inquires only into the propriety of removal, not the alleged or apparent motive of the removing party. Id. at 292. An award of fees is not an abuse of discretion when the basis for removal is expressly contrary to established precedent. Garcia v. Amfels, Inc., 254 F.3d 585, 588 (5th Cir. 2001).
The Court declines to award costs and fees in this case. Based on an objective view of the facts as they stood at the time of removal, the Court cannot conclude that the defendants' removal was expressly contrary to established precedent. Defendants contended that the canal is not navigable. Defendants submitted the affidavit of Oubre to establish that the canal was not navigable. If the canal was not navigable, then plaintiffs might not have had a cause of action either in maritime tort or under Louisiana law, and removal might have been proper. Thus, removal was not expressly contrary to established precedent on the facts as defendants submit them.
III. CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs' motion to remand the action to state court and DENIES plaintiffs' request for costs and fees.