Opinion
Civil Action No. 01-2959
December 12, 2001
ORDER REASONS
Before the Court is Plaintiffs' Motion to Remand. Having considered the record, the memoranda of counsel and the law, the Court determines that the Motion should be GRANTED.
BACKGROUND
This lawsuit alleges the following:
On or about September 16, 1998, Plaintiff was injured while working for R B Falcon Drilling (U.S.A.), Inc. ("Falcon"), as a seaman within the meaning of the Jones Act, 46 U.S.C. § 688. See Rec. Doc. 1, Seamen's Pet. for Damages at ¶ 4. More specifically, Plaintiff was a rig manager and crew member aboard the FALCON RIG #19 ("RIG"), a vessel owned, operated, and/or controlled by Falcon. See id. at ¶ 4. He was injured while being transported from a dock to the RIG aboard the MN COLORADO RIVER ("COLORADO RIVER"), a crewboat owned, operated and/or controlled by Trico Marine Operators, Inc. ("Trico"). See id. at ¶ 6, 7; Rec. Doc. 4, Mem. in Supp. of Mot. to Remand at 2. Trico had been hired by El Paso Production Co. ("El Paso") to transport Falcon's employees. See id. Plaintiff was thrown from his seat and into a broken seat aboard the Trico vessel. See Rec. Doc. 1, Seamen's Pet. for Damages at ¶ 7. As a result, he suffered severe injury to his neck, back, and right arm. See id. On August 21, 2001, Plaintiff filed a petition in the 25th Judicial District Court for the Parish of Plaquemines, State of Louisiana, alleging negligence against Trico and Falcon under general maritime law and the latter under the Jones Act. See Rec. Doc. 1, Seamen's Pet. for Damages. On September 17, 2001, the petition was amended prior to Falcon's and Trico's answers to add a claim for negligence against El Paso under general maritime law. See id., First Supplemental and Amending Pet. for Damages. On September 26, 2001, Trico and Falcon removed. See Rec. Doc. 1
Trico and Falcon argue that the Jones Act claim has been fraudulently pleaded to avoid removal. See Rec. Docs. 6, 7, 9. Jones Act suits are generally non-removable; however, a fraudulently pleaded Jones Act claim does not bar removal. See Hufnagel v. Omega Services Indus., Inc., 182 F.2d 340, 345 (5th Cir. 1999). The determination whether a Jones Act claim has been alleged is generally limited to a review of Plaintiffs' pleadings. See Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). However, "defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal." Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995) (internal quotations omitted).
Jones Act defendants can defeat remand by showing that claims against non-diverse defendants are "'baseless in law'" and "'serve only to frustrate federal jurisdiction.'" Lackey, 990 F.2d at 207 (quoting Dodd v. Fawcett Publ'ns, Inc., 239 F.2d 82, 85 (10th Cir. 1964)). Here, the Notice of Removal asserts that Defendants Trico and Falcon are diverse, and the First Supplemental and Amending Seamen's Petition for Damages asserts that Defendant El Paso is diverse. Even assuming, arguendo, complete diversity, however, the remand analysis is the same as in cases lacking complete diversity. Cf Lewis v. Lewis Clark Marine, Inc., 531 U.S. 434, 455, 121 S.Ct. 993, 1004, 148 L.Ed.2d 931 (2001) (Jones Act claim not subject to removal to federal court even in the event of diversity of the parties). Thus, Defendants' burden of persuasion is heavy; they must show that there is no possibility that Plaintiff would be able to establish a cause of action. See id. Summary proceedings may be used to determine whether the claims are fraudulently made. See Fields v. Pool Offshore, Inc., 182 F.3d 353, 356 (5th Cir. 1999). Remand is appropriate unless, all disputed questions of fact and ambiguities in the law having been resolved in the plaintiffs' favor, there is no reasonable basis for predicting that the plaintiff might establish Jones Act liability. See id.; Lackey, supra.
Trico first argues that remand is improper because nothing in the record indicates that Plaintiff has pleaded the elements necessary to recover on a claim of negligence under the Jones Act. See Rec. Doc. 6 at 3-4. Trico contends that Plaintiff has failed to plead the elements of breach of Falcon's duty and that the breach proximately caused the harm suffered. See Myles v. Quinn Mendenhan Fisheries, Inc., 302 F.2d 146, 150 (5th Cir. 1962)). Consequently, Trico argues, as it has properly asserted that the evidence in the record contains insufficient proof concerning essential elements of plaintiffs' claim, the burden is on Plaintiff to set out specific facts showing that a genuine issue exists by submitting or referring to evidence. See Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). Furthermore, Trico asserts, Plaintiff may not merely rest on the pleadings to satisfy this burden. See id. at 324, 106 S.Ct. at 2553.
First, it is improper to graft the summary judgment procedure set out in Celotex onto the fraudulent joinder analysis here. As the Fifth Circuit has noted, in defending against an allegation of fraudulent joinder, it is not necessary for the plaintiff to submit evidence outside the pleadings. See Lackey, 990 F.2d at 208. Hence, the Celotex burden-shifting procedure is inapposite here.
Moreover, although the pleadings may approach the conclusory, they do not fall beneath the level necessary to support the Motion to Remand. See id. at 207 (remand required where plaintiffs' adequately pled Jones Act claim and where defendants failed to show fraudulent joinder). Here, the Petitions meet the requirement of a short and plain statement of the facts under Federal Rule of Civil Procedure 8(a). Although Plaintiff's pleadings do not refer specifically to a breach of Falcon's duty and that the breach proximately caused Plaintiffs' injuries, the Petitions do set forth the specific circumstances that led to the injury, including allegations that, at the time, he was performing duties for Falcon, his employer, as a seaman. Such allegations are sufficient to give Defendants fair notice of what Plaintiffs' claim is and the grounds upon which it rests. See Porter v. St. Louis-San Francisco Ry. Co., 354 F.2d 840, 843-44 (5th Cir. 1966) (dismissal improper despite failure of complaint to allege necessary element of claim where plaintiff was not foreclosed from proving element at trial). Thus, as the pleadings are adequate, Plaintiffs' Motion cannot be defeated on the ground advanced here.
Trico also apparently argues that the Jones Act claim was fraudulently pleaded because on or about the day plaintiff asserts he was injured, September 16, 1998, the vessel was on "stand-by" and took on no passengers. See Rec. Doc. 6 at 2, Ex. D. As stated, however, Plaintiff does not foreclose the possibility that his injury happened on a day other than September 16, 1998. See, e.g., Rec. Doc. 1, Seamen's Pet. for Damages at ¶ 7. Moreover, logs for the vessel in question indicate that the vessel was not on stand-by at various times on September 15 and 17, 1998. See Rec. Doc. 6 at Ex. D. Thus, it cannot be said that Plaintiff cannot prove his claim that he was injured about September 16, 1998. Therefore, denial of the Motion to Remand on this basis is improper. See Lackey, 990 F.2d at 207.
Trico does not specifically detail this argument in its Memorandum in Opposition to Motion to Remand. But as Trico mentions these facts and has attached logs for the vessel in question, the Court infers that Trico intended them to be considered in opposing the Motion to Remand and accordingly does so here.
Next, Falcon contends that Plaintiffs' claim is inadequate here because he has not demonstrated that the employer had notice of the alleged unsafe condition or the opportunity to correct the unsafe condition, showings required for employer liability under the Jones Act. See Colburn v. Bunge Towing, Inc., 883 F.2d 373, 374 (5th Cir. 1989). Here, Falcon contends that Plaintiff was generally responsible for managing operations of the RIG safely and thus would not have knowingly sat in an unsafe seat. See Rec. Doc. 9 at 3-4. The Petitions, however, allege that Plaintiff was thrown from his seat and into the broken seat, not that he knowingly sat in an unsafe seat. See Rec. Doc. 1, Seaman's Pet. for Damages at ¶ 7; First Supplemental and Amending Seaman's Pet. for Damages at ¶ 6. Thus, denial of the Motion to Remand on this basis is improper. See Lackey, 990 F.2d at 207.
Finally, Falcon argues that Plaintiff cannot prevail on his Jones Act claim because, Falcon claims, it neither owned nor time chartered the COLORADO RIVER. See Rec. Doc. 9 at 4-5. Accordingly, Falcon contends, it lacked the necessary control over the vessel to be held liable for any condition rendering the vessel unsafe or unseaworthy. See id. Falcon further argues that even if it were the time charterer, it assumed no liability for negligence because there is no showing that the parties to the charter intended to assume liability for negligence of the crew or unseaworthiness of the vessel. See In re PE Boat Rentals, Inc., 872 F.2d 642 (5th Cir. 1989). Beyond the assertion that it did not time charter the COLORADO RIVER, however, Falcon points to no evidence dispositive of this contention. Hence, it has not carried its burden to show fraudulent joinder. See Lackey, 990 F.2d at 207.
CONCLUSION
The Court has determined for the foregoing reasons that Defendants Trico and Falcon have failed to demonstrate that Plaintiff fraudulently pleaded a Jones Act claim. Accordingly,
IT IS ORDERED that:
1. Plaintiffs' Motion to Remand is GRANTED, and
2. this case is remanded to the 25th Judicial District Court for the Parish of Plaquemines, State of Louisiana.