Hufnagel v. Omega

• Decision Date: 26 July 1999
• Docket Number: No. 98-30191,98-30191
• Citation: 182 F.3d 340
• Parties: (5th Cir. 1999) RICHARD H. HUFNAGEL, Plaintiff-Appellant, v. OMEGA SERVICE INDUSTRIES, INC.; KERR McGEE CORPORATION; GLOBAL INDUSTRIES LIMITED, Defendants-Appellees
• Court: U.S. Court of Appeals — Fifth Circuit

Page 340

182 F.3d 340 (5th Cir. 1999)

RICHARD H. HUFNAGEL, Plaintiff-Appellant, v. OMEGA SERVICE INDUSTRIES, INC.; KERR McGEE CORPORATION; GLOBAL INDUSTRIES LIMITED, Defendants-Appellees.

No. 98-30191

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 26, 1999

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Jeffery F. Speer, J Louis Gibbens, III, Doucet-Speer, A Professional Law Corporation, Lafayette, LA, for Plaintiff-Appellant.

Diogenis C Panagiotis, Lafayette, LA, for Omega Serv. Ind., Inc.

Michael Joseph Juneau, Sue Nations, The Juneau Firm, Lafayette, LA, for Kerr McGee Corp. and Global Ind., Ltd.

Appeal from the United States District Court for the Western District of Louisiana. 97-CV-978. John M Shaw, US District Judge.

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

On April 23, 1996, plaintiff-appellant Richard H. Hufnagel (Hufnagel) was injured while working on a drilling platform permanently affixed to the outer Continental Shelf off the coast of Louisiana. Hufnagel sued his employer, the platform owner, and the owner of an adjacent jack-up boat, in Louisiana state court alleging, among others, claims under the Jones Act, the general maritime law, and as to each defendant "under the Louisiana Civil Code, Articles 2315, 2317 and 2322, for the negligence, strict liability, violations of the Coast Guard and Secretary of the Interior Regulations, non-delegable statutory duties, rules and regulations, having the force and effect of law wherein the accident occurred." He has also alleged alternative claims under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et. seq., and/or 33 U.S.C. 905(B). The defendants removed the case to the district court below, and Hufnagel moved to remand. After denying remand, the district court certified its ruling on the remand motion to this Court under 28 U.S.C. 1292(b), inquiring whether removal was prohibited by the Jones Act, and if not, whether Hufnagel has presented claims which support federal removal jurisdiction.

FACTS AND PROCEEDINGS BELOW

The pleadings and undisputed facts before the district court on the motion to remand reflect the following.

Defendant-appellee Omega Service Industries, Inc. (Omega), a Louisiana corporation, is an oilfield service company which contracts with offshore platform owners to construct and repair offshore oil and gas platforms. When a platform owner requests service, Omega assigns a crew of available employees based on the type of work requested. The platform owners transport or furnish transportation for the workers from the shore to the platforms, and the workers generally remain on the platform until the work is complete. Sometimes, the workers sleep and eat meals on the platforms. On other occasions, the platform owner supplies a jack-up vessel to lodge the workers. Omega does not own or hire any vessels, and no Omega employees are assigned as crew members of any vessel.

Hufnagel began working for Omega in November 1994. Hufnagel worked as a rigger, and his duties typically included assisting welders and fitters. During the course of his employment with Omega, Hufnagel had been assigned to work on twenty-six different fixed platforms, for thirteen different customers. These assignments ranged from one day to twenty-seven days. Hufnagel was never permanently assigned to any particular customer or platform.

At the time of his injury, Hufnagel was working on a platform owned by defendant-appellee Kerr-McGee Corp. (Kerr-McGee), which was permanently affixed to the outer Continental Shelf off the coast of Louisiana. Hufnagel and other Omega employees had been assigned to repair pilings located on the platform. Kerr-McGee had contracted with defendant-appellee Global Industries, Ltd. (Global), a Louisiana corporation, to provide a vessel (the AMBERJACK), which was used as a temporary work station and a hotel where the workers ate and slept. Global supplied its own crew for the AMBERJACK. Although Hufnagel claims to have spent a majority of his working hours aboard the AMBERJACK, Hufnagel had no duties regarding the maintenance, custody, or operation of the vessel.

Hufnagel, a citizen of Louisiana, sued Omega, Kerr-McGee, and Global in Louisiana state court. Hufnagel's state court petition alleges:

"2.

At all pertinent times herein, the petitioner, RICHARD H. HUFNAGEL, was an employee of OMEGA, INC.

3.

On or about April 23, 1996, the petitioner, RICHARD H. HUFNAGEL, was working in the course and scope of his employment when he was severely injured. The petitioner was working on a scaffold erected onto a piling of a fixed platform located at Ship Shoal 239B, said platform believed to be owned by KERR MCGEE CORPORATION, located off the coast of the State of Louisiana on the outer-continental shelf.

4.

While attempting to repair the aforesaid piling, the petitioner was struck in the face by a chain and/or hook fixed to a come-a-long which was being used in the course of repair of the piling."

Hufnagel's state court pleading further alleged that the AMBERJACK was "owned and operated by Global," and that he was a member of the crew of the AMBERJACK, and was hence entitled to bring a claim under the Jones Act. Additionally, Hufnagel raises claims under maritime law and the Louisiana Civil Code, made surrogate federal law by application of the Outer Continental Shelf Lands Act, 43 U.S.C. 1331 et. seq. (OCSLA).

The defendants removed the case to federal court, asserting, inter alia, that the Jones Act claim was fraudulently pled. Hufnagel moved for remand, arguing that Jones Act cases are not removable. The district court concluded that the undisputed evidence demonstrated that as Hufnagel was not a seaman he had no arguable Jones Act claim and therefore the Jones Act did not bar removal. The court found that Hufnagel had stated a claim against Kerr-McGee arising under the OCSLA, thus supporting removal jurisdiction under 28 U.S.C. 1441(a) & (b). Therefore, the court denied Hufnagel's motion to remand despite the absence of complete diversity and the fact that two of the three defendants are Louisiana citizens. We hold that the district court correctly denied the motion to remand.

DISCUSSION

I. The Jones Act

"As a general rule, . . . Jones Act cases are not removable." Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); 46 App. U.S.C. 688 (incorporating general provisions of Federal Employers' Liability Act, including 28 U.S.C. 1445(a), which bars removal). However, "'defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal.'" Burchett, 48 F.3d at 175, quoting Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A fraudulently pleaded Jones Act claim does not bar removal. See id. While a district court should not pre-try a case to determine removal jurisdiction, the court may use a "summary judgment-like procedure" to dispose of the assertion that the Jones Act claim was fraudulently pleaded. See Burchett, 48 F.3d at 176. The court may deny remand where, but only where, resolving all disputed facts and ambiguities in current substantive law in the plaintiff's favor, the court determines that the plaintiff has no reasonable possibility of establishing a Jones Act claim on the merits. Id.

The district court correctly held that the undisputed evidence establishes that Hufnagel was not a seaman and hence could not recover under the Jones Act. To maintain a cause of action under the Jones Act, the plaintiff must be a seaman. Land-based workers are not seamen. See Harbor Tug and Barge Co. v. Papai, 520 U.S. 548, 117 S. Ct. 1535, 1540, 137 L. Ed. 2d 800 (1997).

The Supreme Court has established a two-part test to determine seaman-status:

"First . . . an employee's duties must contribute to the function of the vessel or to the accomplishment of its mission . . .

"Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature." Harbor Tug, 117 S. Ct. at 1540 (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S. Ct. 2172, 2179, 132 L. Ed. 2d 314 (1995)) (citations and internal quotation marks omitted).

The requirement that a seaman have a substantial connection to a vessel or identifiable fleet of vessels serves to distinguish sea-based workers whose employment regularly exposes them to "the perils of the sea," from primarily land-based workers who have only sporadic or tangential connections to navigation. See Harbor Tug, 117 S. Ct. at 1540. Therefore, seaman-status is determined by the employee's entire employment-related connection to a vessel, and not by the immediate circumstances or location of the plaintiff's injury. See Chandris, 115 S. Ct. at 2187 ("Courts should not employ a snapshot' test for seaman status, inspecting only the situation as it exists at the instant of injury; a more enduring relationship is contemplated in the jurisprudence.") (internal quotation marks and citation omitted).

Hufnagel claims to have been a crew member of the AMBERJACK, entitling him to bring a Jones Act claim.¹ However, Hufnagel was an employee of Omega, which neither owned nor controlled any vessel. The AMBERJACK, owned and controlled by Global, came with its own crew, supplied by Global. Global was hired by Kerr-McGee, not Omega. In his deposition, Hufnagel was not able even to identify these AMBERJACK crew members or their responsibilities.² Hufnagel concedes that no Omega employee was involved with the navigation of the AMBERJACK, and that the Omega employees and AMBERJACK crew had separate duties, although the Omega employees may have assisted to position the vessel over the platform.³ Furthermore, Hufnagel does not allege, and no facts suggest, that he acted as a borrowed...