Burchett v. Cargill, Inc.

• Decision Date: 29 March 1995
• Docket Number: 94-30446,Nos. 94-30156,s. 94-30156
• Citation: 48 F.3d 173
• Parties: David BURCHETT and Cheryl Burchett, Plaintiffs-Appellants, v. CARGILL, INC., Defendant-Intervenor-Appellee, Appellant, v. MARINE EQUIPMENT MANAGEMENT CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 173

48 F.3d 173

1995 A.M.C. 1576

David BURCHETT and Cheryl Burchett, Plaintiffs-Appellants, v. CARGILL, INC., Defendant-Intervenor-Appellee, Appellant, v. MARINE EQUIPMENT MANAGEMENT CORPORATION, Defendant-Appellee.

Nos. 94-30156, 94-30446.

United States Court of Appeals, Fifth Circuit.

March 29, 1995.

Rehearing and Suggestion for Rehearing

En Banc Denied May 11, 1995.

Phillip T. Hager, Metairie, LA, for David Burchett and Cheryl Burchett.

George J. Nalley, Jr., David A. Parsiola, Metairie, LA, for Cargill.

Georges M. Legrand, Clarence William Emory, Herbert, Mouledoux & Bland New Orleans, LA, for Marine Equipment Management Corp.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before REYNALDO G. GARZA, GARWOOD and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Plaintiffs David and Cheryl Burchett appeal the dismissal of their Jones Act and unseaworthiness actions against Cargill, Inc. ("Cargill") and their Sec. 905(b) action against Marine Equipment Management Corporation ("MEMCO"). We affirm.

I.

David Burchett, a crane operator employed by Cargill, was injured when he slipped and fell on the cover deck of the K-2, a midstream bulk cargo transfer unit owned and operated by Cargill. The K-2, located in the Mississippi River near Convent, Louisiana, is used to transfer bulk products, usually grain, from river barges to ocean-going vessels. The K-2's structure was built on top of a 330 x 75 foot barge in 1981. The K-2 is permanently moored to the bottom of the Mississippi River, approximately 500 feet from the river's east bank. It has been in this position since 1982.

The K-2 has no engines, thrusters, or any other independent mode of locomotion other than a winch and cable system used to reposition the K-2 alongside the ocean-going vessel. The K-2's backward and forward mobility is limited to the length of the cables (1,200 feet), and it has no capacity to move laterally. The K-2 has a raked bow, a ballast system, anchor lights, life boats and jackets, and a radar unit used to monitor weather conditions. Although it has an eating area and locker rooms for the crew, the crew does not sleep aboard the K-2 but rather is transported to and from shore daily. The K-2 is not registered as a vessel with, nor has it ever been inspected by, the U.S. Coast Guard.

During the cargo transfer process, the ocean-going vessel maneuvers itself to the west side of the K-2. Tugs then push the grain barges into position on the east side of the K-2. Cargill personnel then transfer the grain from the cargo holds of the barges to the cargo holds of the ocean-going vessel. Throughout this process, the K-2 remains stationary except for some minor adjusting to align the K-2's offloading spouts over the cargo holds of the vessel.

To offload the cargo from the barge, Cargill personnel first remove the hatch covers from the cargo barge with a crane and stack them on the K-2's cover deck. When the offloading process is complete, a second crane on the K-2 cover deck replaces the covers on the barge. According to Mr. Burchett, on October 1, 1992, Cargill personnel removed the hatch covers from a cargo barge owned by MEMCO and stacked them on the cover deck of the K-2. Burchett testified that he slipped when he stepped on one of the hatch covers. He contends the covers were slippery because dew and soybean dust had accumulated on them during the offloading process. He also complains that the covers were not painted with non-skid paint.

David and his wife Cheryl originally filed this action in state court, asserting Jones Act and unseaworthiness claims against both Cargill and MEMCO. Cargill and MEMCO removed the case to federal court on the basis of diversity, asserting that plaintiffs' Jones Act claims were baseless. The plaintiffs moved to remand the action to state court on the ground that Jones Act cases are non-removable. The district court denied the motion to remand and subsequently entered summary judgment in favor of Cargill on the grounds that the K-2 was not a vessel and, therefore, Burchett was not a seaman under the Jones Act. Cargill later filed an intervention seeking reimbursement from MEMCO for the compensation benefits paid to Burchett under the Longshoremen and Harbor Workers' Compensation Act ("LHWCA").

After plaintiffs' motion to remand was unsuccessful, they amended their complaint against MEMCO, withdrawing the Jones Act claim and adding a negligence claim under Sec. 905(b) of the LHWCA and the general maritime law. The district court subsequently granted summary judgment in favor of MEMCO as well, on the grounds that the summary judgment evidence revealed that MEMCO had no liability under Sec. 905(b). Plaintiffs now appeal.

II.

A.

Plaintiffs argue first that the district court erred in refusing to remand their action to state court because Jones Act suits are not removable. As a general rule, we agree that Jones Act cases are not removable. Johnson v. ODECO Oil & Gas Co., 864 F.2d 40, 42 (5th Cir.1989); 46 App.U.S.C. Sec. 688 (incorporating general provisions of Federal Employers' Liability Act, including 28 U.S.C. Sec. 1445(a), which bars removal). However, this court has recognized that in certain circumstances "defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal." Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir.1993). In Lackey, we held that, like fraudulent joinder cases, defendants sued under the Jones Act can defeat remand upon showing that plaintiffs' claims against non-diverse defendants "are baseless in law and in fact and 'serve[ ] only to frustrate federal jurisdiction.' " Id. (quoting Dodd v. Fawcett Publications, Inc., 329 F.2d 82, 85 (10th Cir.1964)).

The burden of persuasion on a removing party in such a case, however, is a heavy one: "The removing party must show that there is no possibility that plaintiff would be able to establish a cause of action." ¹ Id. While we have cautioned against pretrying a case to determine removal jurisdiction, we have recognized the district court's authority to use a summary judgment-like procedure for disposing of fraudulent pleading claims. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 n. 9 (5th Cir.1981). Accordingly, in determining whether a plaintiff's claims are baseless, the district court must resolve all disputed questions of fact and any ambiguities in the current controlling substantive law in favor of the plaintiff. See Carriere v. Sears Roebuck & Co., 893 F.2d 98, 100 (5th Cir.), cert. denied, 498 U.S. 817, 111 S.Ct. 60, 112 L.Ed.2d 35 (1990); Bobby Jones Garden Apartments, Inc. v. Suleski, 391 F.2d 172, 177 (5th Cir.1968). A denial of remand is permissible where the district court "determine[s] that as a matter of law there was no reasonable basis for predicting that the plaintiff might establish liability." Miller Brewing, 663 F.2d at 551 (fraudulent joinder case) (citations omitted).

B.

Defendants contended below that plaintiffs had no possibility of sustaining a Jones Act claim because the K-2 is not a vessel. In support of this assertion, defendants submitted an affidavit outlining in some detail the relevant facts about the nature and use of the K-2. None of the facts that are pertinent to our inquiry were disputed by plaintiffs. The district court concluded that the K-2 is not a vessel as a matter of law and thus that "plaintiffs' allegations of seaman's status are baseless."

The existence of a vessel is a fundamental prerequisite to a Jones Act claim and is central to the test of seaman status. Daniel v. Ergon, Inc., 892 F.2d 403 (5th Cir.1990); Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F.2d 1140, 1141 (5th Cir.1978). Plaintiffs, therefore, cannot possibly recover on their Jones Act claim unless the K-2 is a vessel. Johnson, 864 F.2d at 42-43.

In determining whether a structure is a vessel, the touchstones are "the purpose for which the craft is constructed and the business in which it is engaged." Blanchard, 575 F.2d at 1142. We have been called upon on a number of occasions to determine whether a structure, used as a floating platform in ship repair or longshoring operations, was a vessel. Several of these cases have identified three factors usually present when floating platforms are not vessels:

(1) the structures involved were constructed and used primarily as a work platforms; (2) they were moored or otherwise secured at the time of the accident; and (3) although they were capable of movement and were sometimes moved across navigable waters in the course of normal operations, any transportation function they performed was merely incidental to their primary purpose.

Bernard v. Binnings Constr. Co., Inc., 741 F.2d 824, 831 (5th Cir.1984); see also Ellender v. Kiva Constr. & Eng'g, Inc., 909 F.2d 803, 806, (5th Cir.1990); Daniel, 892 F.2d at 407; Ducrepont v. Baton Rouge Marine Enters., Inc., 877 F.2d 393, 395 (5th Cir.1989).

The K-2 satisfies all three of these factors. It was constructed to serve as a base or platform to transfer bulk cargo from barge to ship. It was not only securely moored at the time of the accident but had been securely moored at the location for a decade. The limited movement of the K-2, along its mooring lines, to align the K-2's offloading spouts over the cargo holds of the vessel is certainly incidental to its primary purpose of shifting the cargo from one vessel to another.

We read the cases as establishing the above factors as the most important considerations in resolving whether a work platform is a vessel. See Daniel, 892 F.2d at 407-08. Some of the cases suggest an expanded list that also may be considered. ² While this list may be helpful in resolving close cases, we do not find these factors useful in deciding a case such as this where all three Daniel factors are satisfied and the structure has been continuously moored and used as a...