Opinion
Civil Action No. 04-1020, Section "A" (3).
June 30, 2004
Before the Court is a Motion for New Trial Pursuant to Fed.R.Civ.Pro. 59 (Rec. Doc. 11) filed by plaintiff Gary Michael Smith. Defendants, Chevron USA, Inc., Kenneth Gaspard, Daniel Cantrell, Charles Triggs, and Kevin Pointier (collectively "Defendants"), oppose the motion. The motion, set for hearing on June 30, 2004, is before the Court on the briefs without oral argument.
In an order entered on June 7, 2004, the Court denied Plaintiff's motion to remand on the basis that his injury occurred on the Outer Continental Shelf thereby giving this Court original jurisdiction over his claim pursuant to the Outer Continental Shelf Lands Act ("OCSLA"). Rec. Doc. 9. Plaintiff now moves for new trial and to remand the case arguing that Defendants failed to allege OCSLA jurisdiction in their notice of removal. According to Plaintiff, Defendants did not timely raise OCSLA jurisdiction and therefore cannot now rely upon it as a basis for federal jurisdiction.
Unarguably, the Court has subject matter jurisdiction over this case pursuant to OCSLA. However, the notice of removal does not allege OCSLA as a basis for jurisdiction. In fact, Defendants alleged no facts in their notice to even suggest that the accident occurred on the Outer Continental Shelf. Defendants' sole basis for removal was diversity of citizenship based upon allegations of fraudulent joinder. Therefore, Defendants are precluded from relying upon OCSLA as a basis for removal notwithstanding that OCSLA jurisdiction is present. The Court therefore must determine whether Defendants have met their burden in establishing that the non-diverse defendants were fraudulently joined to defeat jurisdiction.
Courts routinely recognize that the removing defendant cannot amend its removal notice more than thirty days after removal to assert a brand new ground for removal. See, e.g., Davis v. Life Investors Ins. Co., 214 F. Supp.2d 691 (S.D. Miss. 2002 (citing numerous cases on defendant's ability to amend a removal notice). In this case Defendants have not expressly sought to "amend" their removal notice to allege OSCSLA jurisdiction but by raising the argument in opposition to Plaintiff's motion to remand they have in essence implicitly done so. And the Court's prior decision to deny remand based on OCSLA jurisdiction has allowed Defendants to do indirectly what they are precluded from doing directly, i.e., taking advantage of a basis for jurisdiction that they failed to timely plead.
Background
Gary Michael Smith ("Plaintiff") was employed by Wood Group Pressure Control, Inc., as a valve maintenance specialist. On June 22, 2003, he was assigned to perform duties aboard a Chevron-Texaco, Inc. platform, South Timbalier 52-CE, located on the Outer Continental Shelf off of the Louisiana coast. He alleges that while performing his duties he injured his back. Pla. Pet. ¶ 4. He asserts that he sustained his injury when forced to lift the valve without the appropriate mechanical device. Id. Defendant Chevron USA, Inc. ("Chevron") owned the platform. Plaintiff claims that all of the defendants are liable to him because they failed to provide him with the proper lifting device, a gin pole. Id. ¶ 6. The petition alleges nothing with respect to the individual defendants Gaspard, Cantrell, Triggs, and Pointier (collectively "the Individual Defendants") except that they are Chevron employees and are alleged to be Louisiana residents. Plaintiff is a citizen of Louisiana.
Defendants removed the suit to this Court clarifying that Gaspard and Triggs are the only two Louisiana defendants but asserting that Plaintiff fraudulently joined them to defeat federal jurisdiction. Rem. Ntc. ¶¶ III, IX. Defendants argue that Gaspard and Triggs have been fraudulently joined because under Louisiana law employees acting within the scope of their employment are not personally and individually liable to third persons like plaintiff because no personal duty is owed.
In opposition, Plaintiff argues that he should be allowed to conduct discovery before the Court determines whether he has a cause of action against Gaspard and Triggs under Louisiana law. Plaintiff expounds upon the allegations contained in his petition by pointing out that Gaspard and Triggs participated in a safety meeting regarding Plaintiff's task shortly before the accident, and that Gaspard and Triggs assumed responsibility for having a gin pole installed to assist Plaintiff. Plaintiff argues that his injuries resulted from the failure of Chevron and its employees to follow through on their pledge to install the gin pole.
Discussion
If the removing party alleges jurisdiction on the basis that parties of non-diverse citizenship have been fraudulently joined, then the removing party must prove the inability of the plaintiff to establish a cause of action against the non-diverse party in state court. Travis v. Irby, 326 F.3d 644, 647 (5th Cir. 2003) (citing Griggs v. State Farm Lloyds, 181 F.3d 694 (5th Cir. 1999)). The court must determine based upon the record before it whether the plaintiff has any possibility of recovery against the party whose joinder is questioned. Id. (citing Great Plains Trust Co. v. Morcan Stanley Dean Witter Co., 313 F.3d 305 (5th Cir. 2002)). In a fraudulent joinder analysis, the district court may "pierce the pleadings" and consider summary judgment-type evidence in the record but must also take into account all unchallenged factual allegations, including those alleged in the complaint, in the light most favorable to the plaintiff. Id. (citing Carriere v. Sears, Roebuck Co., 893 F.2d 98, 100 (5th Cir. 1990); Griggs, 181 F.3d at 699-702). The burden of persuasion on those who claim fraudulent joinder is a heavy one. Id. (citing B., Inc. v. Miller Brewing Co., 633 F.2d 545, 549 (5th Cir. 1981)).
The fraudulent joinder issue turns on whether Plaintiff has any possibility of recovery against Gaspard and Trigg personally. Plaintiff's claims against Gaspard and Trigg are governed byCanter v. Koehring Co., 283 So.2d 716 (La. 1973). Canter answered when and under what circumstances an employee is individually and personally liable to a third person injured solely by reason of the employee's breach of an employment-imposed duty. Absent an independent personal duty owed to the plaintiff, individual employees are liable only for "the actual commission of those positive wrongs for which they would be otherwise accountable in their individual capacity, under the obligations common to all other men." Lailhengue v. Mobil Oil Co., 775 F. Supp. 908, 910 (E.D. La. 1991) (quoting Prince v. Nationwide Ins. Co., Civ. A. No. 882858, 1989 WL 10682 *1 (E.D. La. Feb. 9, 1989)).
As noted above Plaintiff's petition alleges no facts whatsoever upon which to conclude that Gaspard and Triggs are personally liable to him for his injuries even if some conduct on their part while acting as Chevron employees contributed to his injuries. In his affidavit submitted with the motion to remand, Plaintiff attests to the following:
At [the safety meeting], Kenneth Gaspard and Charles Triggs, employees of the defendant, Chevron USA, were present and the issue of the installation of a gin pole was discussed. It was concluded during this meeting that Chevron would assume the responsibility of the gin pole installation. Chevron prepared diagrams and engineering plans regarding the installation of the gin pole. Only Chevron and its employees, Kenneth Gaspard, Charles Triggs were in a position to install such a gin pole.
Smith Aff., Exh. to Pla. Motion to Remand, Rec. Doc. 7. Gaspard's and Triggs' affidavits suggest that they were not on duty on the platform in question on the day of the accident. Rem. Ntc. Exhs. 4, 5.
Assuming arguendo that Chevron assumed a duty to install the gin pole, nothing in the evidence of record even remotely suggests that Gaspard and Triggs acted in such a way so that Chevron's duty became a duty owed by them personally to the Plaintiff. In fact, Plaintiff's own affidavit attests that Chevron assumed the duty to install the gin pole. Gaspard and Triggs were simply at the meeting as representatives of Chevron. And even if they were the specific employees delegated the task of installing the pole, such an assignment came to them only through their status as Chevron employees. If their negligence is ultimately shown to have contributed to Plaintiff's injuries, the liable party will be their employer Chevron. Plaintiff's assertions as to Gaspard and Triggs' involvement in this case simply do not fall within the ambit of Canter liability.
Further, Lazzell v. Booker Drilling Co., cited by Plaintiff in his original motion to remand, does nothing to support his position. 816 F.2d 196 (5th Cir. 1987). Lazzell simply held that a company that had promised to provide assistance to a contractor aboard a platform could be held liable when its employees failed to do so. Id. at 196-97. In its broadest reading the Lazzell decision does nothing to suggest that the individual workers who failed to provide assistance faced personal liability. Therefore, while Lazzell seems pertinent to Plaintiff's claim against Chevron, it does nothing to support a claim against Gaspard and Trigg.
Finally, Plaintiff argues that the Court should remand the case so that he can conduct further discovery on the fraudulent joinder issue. To be sure, if Plaintiff could point to anything favorable to his position the Court would err on the side of letting Plaintiff pursue his claims against Gaspard and Trigg. However, Plaintiff points to nothing to support his position, and the Court is convinced that any such discovery would be a fishing expedition conducted for the purpose of keeping this case in state court.
In sum, the Court finds that Defendants have established that Plaintiff fraudulently joined Gaspard and Triggs to defeat federal jurisdiction. As such, their citizenship is to be ignored for purpose of determining whether diversity jurisdiction is present. Plaintiff is a Louisiana citizen and no other defendant is a Louisiana citizen. Therefore, the only remaining question is whether the amount in controversy exceeds $75,000.
Plaintiffs petition reveals only that he suffered a back injury while lifting a valve. In his petition he claims numerous elements of damages that may or may not exceed $75,000. The removal petition does nothing more than reiterate the plain vanilla allegations in the petition. Defendants, as the party seeking federal jurisdiction, have the affirmative duty to produce information, through factual allegations or an affidavit, sufficient to show by a preponderance of the evidence that the amount in controversy exceeds $75,000. Simon v. Wal-Mart Stores, Inc., 193 F.3d 848, 851 (5th Cir. 1999) (citing Luckett v. Delta Airlines, Inc., 171 F.3d 295, 298 (5th Cir. 1999)). Therefore, Defendants shall have fifteen (15) days from entry of this order to submit an additional memorandum and any pertinent evidence in order to meet their burden of establishing that removal was proper and that the Court can properly exercise jurisdiction over this case.
Accordingly;
IT IS ORDERED that Plaintiff's Motion for New Trial Pursuant to Fed.R.Civ.Pro. 59 (Rec. Doc. 11) should be and is hereby DENIED; IT IS FURTHER ORDERED that Defendants shall have fifteen (15) days from entry of this order to supplement the record regarding the amount in controversy.