876 F.2d 1157 (5th Cir. 1989), 87-4923, Aaron v. National Union Fire Ins. Co. of Pittsburg, Pa.

Docket Nº:87-4923.
Citation:876 F.2d 1157
Party Name:Bernadette AARON, et al., Plaintiffs-Appellants, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG, PENNSYLVANIA, Intervenor-Appellant, v. AMERICAN HOME INSURANCE GROUP, et al., Defendants-Appellees, and Lake Charles Stevedores, Inc., Defendant-Appellee.
Case Date:June 26, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1157

876 F.2d 1157 (5th Cir. 1989)

Bernadette AARON, et al., Plaintiffs-Appellants,

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURG,

PENNSYLVANIA, Intervenor-Appellant,

v.

AMERICAN HOME INSURANCE GROUP, et al., Defendants-Appellees,

and

Lake Charles Stevedores, Inc., Defendant-Appellee.

No. 87-4923.

United States Court of Appeals, Fifth Circuit

June 26, 1989

As Amended Aug. 15, 1989.

Page 1158

Roger G. Burgess, Lake Charles, La., for Aaron, et al.

Donald C. Brown, Lake Charles, La., for Nat. Union Fire Ins.

Hunter W. Lundy, Lake Charles, La., for defendants-appellees.

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

Before KING, JOHNSON and JOLLY, Circuit Judges.

KING, Circuit Judge:

The plaintiffs appeal the district court's 12(b)(6) dismissal of that part of their complaint which seeks to hold Lake Charles Stevedores, Inc. liable. Alternatively, plaintiffs seek a writ of mandamus ordering the district court to grant the plaintiffs' motion to remand this cause to state court. Because we find that there is no federal subject matter jurisdiction, we vacate the district court's order of dismissal and return this case to the district court with

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instructions to remand the cause to Louisiana state court.

I. Factual and Procedural Background

Wash Aaron died after being struck by a front-end loader manufactured by Caterpillar, Inc. ("Caterpillar"). When the accident occurred, Aaron was taking a break from his job of shovelling debris from the hold of a vessel. At the time of his death, Aaron was employed by Lake Charles Stevedores, Inc. ("LCSI") at the Lake Charles Harbor and Terminal District ("LCHTD"). The plaintiffs concede that Aaron was a longshoreman, working in that capacity in the hold of a vessel on navigable waters at the time of the accident. Since Aaron's death, LCSI's Longshore and Harbor Workers' Compensation Act ("LHWCA"), 1 insurance carrier, American Home Insurance Groups, a division of National Union Fire Insurance Co. ("National Union"), has been paying $484 per week in benefits in addition to the initial lump sum payment already made to Aaron's survivors under the LHWCA. 2

The plaintiffs, Aaron's widow, minor child and major children, filed this wrongful death action in Louisiana state court against LCSI, LCHTD and Caterpillar alleging that both intentional and negligent tortious actions taken by the defendants caused Aaron's death. The defendants 3 removed the case to the United States District Court for the Western District of Louisiana pursuant to 28 U.S.C. Sec. 1441, 4 asserting that the claim is governed by the LHWCA and therefore there is federal question jurisdiction. Two days after removing the case, defendants LCSI and National Union filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), asserting that the LHWCA provided the plaintiffs' exclusive remedy and that the plaintiffs were receiving LHWCA benefits. The plaintiffs filed a motion to remand, arguing that the parties are not diverse, nor is there federal question jurisdiction. They asserted that, under the saving to suitors clause of 28 U.S.C. Sec. 1333, 5 they had elected a state law remedy and that the defendants therefore had no right to remove the cause. The plaintiffs argued that they had a right to elect their remedy under the doctrines of "maritime but local" and "twilight zone" which create an area of concurrent state and federal jurisdiction. Additionally, they contended that because their complaint alleges intentional torts on the part of Aaron's employer, LCSI, the exclusivity provisions of the LHWCA are inapplicable.

The district court agreed with the defendants. It denied the plaintiffs' motion to remand, asserting that according to the plain and literal meaning of the LHWCA, the decedent was clearly covered at the time of his accident, given that there was no dispute that he was a longshoreman working in the course of his employment in the hold of a vessel on navigable waters.

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The court held that the removal was proper and that the LHWCA created the plaintiffs' exclusive remedy, and it granted the defendants' motion to dismiss.

The plaintiffs appeal both aspects of this decision. 6 They first reassert their position that the state and federal courts have concurrent jurisdiction of their claim under the saving to suitors clause, that they may elect their remedy and that therefore the failure to remand was error. They argue the concepts of "maritime but local" and "twilight zone" to defeat federal jurisdiction, asserting that Aaron was engaged in a "local" activity at the time of his death. The plaintiffs conclude that the district court's denial of their motion to remand was improper, and they seek to have the district court's judgment denying the motion for remand set aside by a writ of mandamus. We agree that the district court's denial of the plaintiffs' motion to remand was error, but as we set forth below, we do not agree that mandamus is the appropriate remedy.

The plaintiffs argue also that the LHWCA does not provide their exclusive remedy here and that the 12(b)(6) dismissal was therefore incorrect. They assert that their allegations of intentional torts on the part of Aaron's employer take them out of the exclusivity provisions of the LHWCA and argue also that Aaron's status at the time of his death would not preclude recovery under state law tort theory. Because we find that the district court did not have jurisdiction over this cause, we cannot and do not reach these questions.

II. Appealability of the Refusal to Remand

A district court's denial of a motion to remand is not a final order, and it therefore is not reviewable on appeal. Poirrier v. Nicklos Drilling Co., 648 F.2d 1063 (5th Cir.1981); Wright, Miller & Cooper, Federal Practice & Procedure Sec. 3914. The interlocutory denial of a motion to remand can be appealed only if it is certified by the district court according to 28 U.S.C. Sec. 1292(b). Melancon v. Texaco, Inc., 659 F.2d 551 (5th Cir. Unit A Oct.1981). However, when the refusal to remand is coupled with a final order, the appellate court has jurisdiction to review the district court's denial of the motion. B., Inc. v. Miller Brewing Co., 663 F.2d 545, 548 (5th Cir. Unit A Dec.1981). In the case before us, the district court simultaneously denied the plaintiffs' motion to remand and granted the defendants' 12(b)(6) motion to dismiss. The district court subsequently made the order dismissing the two defendants before us in this appeal a final order pursuant to rule 54(b). Therefore, a final appealable order was entered along with the denial of the motion for remand, and we can review the latter without a need to resort to the extraordinary remedy of mandamus.

III. The Well-Pleaded Complaint Rule

The relevant portion of plaintiffs' complaint, filed in state court, alleges intentional and negligent torts on the part of the defendant LCSI resulting in Aaron's death. On its face, the complaint nowhere mentions or implicates the LHWCA or any other federal law; it simply asserts a state law tort action. The defendants removed the case on the ground that the plaintiffs' allegations "involve questions arising from a federal statute, namely the [LHWCA]."

A defendant may remove a state court action to federal court only if the action could have originally been filed in the federal court. Caterpillar v. Williams, 482 U.S. 386, 391-92 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); 28 U.S.C. Sec. 1441(a). Thus, where there is no diversity jurisdiction, a federal question must be present in order for removal to be proper. Caterpillar, 107 S.Ct. at 2429. The well-pleaded complaint rule places even further restrictions on a defendant's ability to remove a case from state court. The rule provides that the plaintiff's properly

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pleaded complaint governs the jurisdictional determination, and if, on its face, such a complaint contains no issue of federal law, then there is no federal question jurisdiction. Id.; Franchise Tax Bd. v. Laborers Vacation Trust, 463 U.S. 1, 10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). The fact that a federal defense may be raised to the plaintiff's action--even if both sides concede that the only real question at issue is created by a federal defense--will not suffice to create federal question jurisdiction. Id. at 12, 103 S.Ct. at 2847; Powers v. South Central United Food & Commercial Workers Unions, 719 F.2d 760, 764 (5th Cir.1983). Thus, the general rule provides that a federal defense to a state law claim does not create removal jurisdiction. 7

  1. The AVCO Exception

    There are exceptions, however, to the well-pleaded complaint rule, in which a court will find that a federal claim is involved as the result of federal preemption of the asserted state claim. One such exception is known as the artful pleading doctrine, in which the court seeks to evaluate a plaintiff's motive for her failure to plead a federal case of action. 8 If the court concludes that the plaintiff's failure to plead her federal claim was not in good faith, but rather was an attempt to conceal the fact that her claim was truly federal, the court will allow the removal. See Charles Alan Wright, The Law of Federal Courts Sec. 38; Mary P. Twitchell, Characterizing Federal Claims, Preemption, Removal, and the Arising-Under Jurisdiction of the Federal Courts, 54 George Washington L.Rev., 812, 825 (1987). This court has applied the artful pleading doctrine principally in cases which involve the preemptive effect of section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. Secs. 141-187. Beers v. North American Van Lines, Inc., 836 F.2d 910, 913 (5th...

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