Barker v. Hercules Offshore, Inc.

• Decision Date: 20 March 2013
• Docket Number: No. 12–20150.,12–20150.
• Citation: 713 F.3d 208
• Parties: Francis BARKER, Jr., Plaintiff–Appellant v. HERCULES OFFSHORE, INC.; Hall–Houston Exploration II, L.P.; Hall–Houston Exploration Partners, L.L.C.; Hall–Houston Exploration Company, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

713 F.3d 208

Francis BARKER, Jr., Plaintiff–Appellant

v.HERCULES OFFSHORE, INC.; Hall–Houston Exploration II, L.P.; Hall–Houston Exploration Partners, L.L.C.; Hall–Houston Exploration Company, Defendants–Appellees.

No. 12–20150.

United States Court of Appeals, Fifth Circuit.

Filed Feb. 1, 2013.

Revised March 20, 2013.

James Edward Diaz, Sr., Lafayette, LA, Paul B. Rosen, Law Office of Paul B. Rosen, Bellaire, TX, for Plaintiff–Appellant.

Robert D. Brown, Attorney, Donato Minx Brown & Pool, P.C., John F. Unger, Christopher Wayne Ogle, Royston, Rayzor, Vickery & Williams, L.L.P., Houston, TX, David Bruce Salmons, Attorney, Bingham McCutchen, L.L.P., Washington, DC, for Defendants–Appellees.

Appeals from the United States District Court for the Southern District of Texas.

Before HIGGINBOTHAM, CLEMENT, and HAYNES, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge: ^*

After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Francis Barker filed suit in Texas state court seeking relief under general maritime law, the Longshore and Harbor Workers' Compensation Act (“LHWCA”), and Texas tort law. The District Court for the Southern District of Texas denied Barker's motion for remand and granted summary judgment to Defendants Hall–Houston and Hercules Offshore under Texas law or, in the alternative, under general maritime law. On appeal Barker challenges both the denial of the remand motion and the grant of summary judgment. For the following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

Hall–Houston Exploration II is the owner of a federal mineral lease located on the Outer Continental Shelf off the coast of Texas and outside of Texas state waters. In January 2008, Hall–Houston contracted with Hercules Offshore to obtain a mobile offshore jack-up drilling unit or drilling rig, known as the Hercules 251, to drill offshore oil and gas wells including the well at issue in this case. Hall–Houston also contracted with Frank's Casing to run a 60 inch casing over the well before drilling commenced.

On January 27, 2008, Barker, a welder employed by Frank's, was performing work onboard the Hercules 251 rig in preparation for running the casing over the well. At the time of the incident the drilling rig was in the “jacked-up” position, meaning that its hull and work deck were lifted completely out of the water. The legs of the rig extended downward through the water into the seabed which provided the means of support. In order to drive the casing over the well, Frank's employees had to enlarge a hole in the pollution pan, which sat about six feet below the rig's floor. Unbeknownst to the Frank's crew, the pollution pan was not welded to the rig structure as is customary in the standard jack-up configuration, but instead was held in place by straps that were in turn welded to the structure. Barker and his long-time friend Frank Broussard were told to, and did, cut the straps supporting the pan, causing the pan to fall 100 feet into the ocean. Frank Broussard was standing on the pollution pan when it fell, and although he was initially able to hang on to a beam for support, he lost his grip and fell into the ocean, striking another beam on the way down. When the incident occurred Barker was standing about two feet from the pan with his back turned. Although he did not see the incident itself, he turned around in time to witness his friend fall to his death.

Barker filed suit against Hercules and Hall–Houston (“Defendants”) in Texas state court. Although Barker admits he was not physically injured in the incident, he claims to have suffered severe emotional distress from witnessing his friend's death. He also alleges various physical injuries resulting from that emotional injury.

Barker alleged three causes of action in his original petition. He sought general, special, and punitive damages for negligence, gross negligence, and wanton disregard for his safety and that of Broussard under general maritime law or, in the alternative, under 33 U.S.C. § 905(b) of the Longshore and Harbor Workers' Compensation Act. He also sought general, special, and punitive damages under Texas tort law to the extent that Texas tort law supplemented or supplanted general maritime law.

Defendants removed this action to the Southern District of Texas under the jurisdictional grant contained in the Outer Continental Shelf Lands Act (“OCSLA”). The district court denied Barker's motion to remand and granted summary judgment to Defendants, holding that Barker could not recover under either Texas law or maritime law. On appeal, Barker challenges the district court's decisions with respect to both his motion to remand and the Defendants' motion for summary judgment.

STANDARD OF REVIEW

This court reviews decisions denying remand de novo. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir.2002). On a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Id. at 723. “Any ambiguities are construed against removal because the removal statute should be strictly construed in favor of remand.” Id.

“This court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court.” Greater Houston Small Taxicab Co. Owners Ass'n v. City of Houston, 660 F.3d 235, 238 (5th Cir.2011). “Summary judgment is warranted if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine [dispute] as to any material fact and that the movant is entitled to judgment as a matter of law.” Id. (alteration in original).

DISCUSSION

I. Motion to Remand

The district court held, and Defendants maintain on appeal, that Barker's suit was properly removed to federal court because the Outer Continental Shelf Lands Act provides federal subject matter jurisdiction over this action pursuant to 43 U.S.C. § 1349(b)(1). Barker concedes that OCSLA provides original federal subject matter jurisdiction as required for removal under 28 U.S.C. § 1441(a), but nevertheless argues that removal was improper because maritime law provides the rule of decision, and therefore this action can only be removed if no defendant is a resident of the state where the suit is brought. See28 U.S.C. § 1441(b) (2011).² For the followingreasons, we hold that removal of this action was proper.

a. Background and application of OCSLA

When it was passed in 1953, the purpose of OCSLA was to allocate to the federal government “jurisdiction, control, and power of disposition” over “the subsoil and seabed of the Outer Continental Shelf.” ³43 U.S.C. § 1332(1). OCSLA asserts exclusive federal question jurisdiction over the OCS by specifically extending “[t]he Constitution and laws and civil and political jurisdiction of the United States ... [to the OCS] and all installations and other devices permanently or temporarily attached to the seabed ... for the purpose of exploring for, developing, or producing resources therefrom.” Id. § 1333(a)(1); accord id. § 1349(b)(1); see also Recar v. CNG Producing Co., 853 F.2d 367, 370 (5th Cir.1988) (acknowledging that “OCSLA invests [a] district court with original federal question jurisdiction.”). The jurisdictional grant in OCSLA is broad, covering a “wide range of activity occurring beyond the territorial waters of the states.” Texaco Exploration & Prod., Inc. v. AmClyde Engineered Prods. Co., 448 F.3d 760, 768 (5th Cir.2006)amended on reh'g,453 F.3d 652 (5th Cir.2006) (quoting Demette v. Falcon Drilling Co., 280 F.3d 492, 495 (5th Cir.2002), overruled on other grounds by, Grand Isle Shipyard v. Seacor Marine, LLC, 589 F.3d 778 (5th Cir.2009) (en banc)).

A plaintiff does not need to expressly invoke OCSLA in order for it to apply. Amoco Prod. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202, 1205 (5th Cir.1988) (“In determining federal court jurisdiction, we need not traverse the Serbonian Bog of the well pleaded complaint rule because § 23 of OCSLA expressly invests jurisdiction in the United States District Courts.” (citation omitted)). To determine whether a cause of action arises under OCSLA, the Fifth Circuit applies a but-for test, asking whether: (1) the facts underlying the complaint occurred on the proper situs; (2) the plaintiff's employment furthered mineral development on the OCS; and (3) the plaintiff's injury would not have occurred but for his employment. See Demette, 280 F.3d at 496;Recar, 853 F.2d at 369. There is no dispute that these requirements are satisfied on the present record.

OCSLA covers, among other situs, a device “permanently or temporarily attached to the seabed [of the OCS] ... for the purpose of exploring for, developing, or producing resources therefrom.” 43 U.S.C. § 1333(a)(1). A jack-up rig attached to the Outer Continental Shelf (like the one at issue in this case) qualifies as such a device. Demette, 280 F.3d at 498. Accordingly, the jack-up rig is a proper OCSLA situs for the purpose of this tort action. See Grand Isle, 589 F.3d at 784–85.

By his own admission Barker's employment on the jack-up rig was directly related to the development of minerals or other natural resources on the OCS. See Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 154–55 (5th Cir.1996). Furthermore, it is clear that but for his employment, Barker would not have been involved in the incident forming the basis of this suit. See id. at 155. Therefore, as the parties both acknowledge, this action arises under OCSLA.

b. Choice of law under OCSLA

The more difficult question in this appeal is whether federal, state, or maritime law provides the substantive rule of decision for Barker's OCSLA claim. For the reasons explained below, the panel chooses not to decide this issue because the result is the same regardless of which law is applied.

Although my colleagues do not join this section of the opinion discussing...