Barker v. Hercules Offshore Inc

• Decision Date: 01 February 2011
• Docket Number: CIVIL ACTION H-10-0898
• Parties: FRANCIS BARKER, JR., Plaintiff, v. HERCULES OFFSHORE, INC., HALL- HOUSTON EXPLORATION II, L.P., HALL-HOUSTON EXPLORATION PARTNERS, L.L.C., AND HALL- HOUSTON EXPLORATION COMPANY, Defendant.
• Court: U.S. District Court — Southern District of Texas

FRANCIS BARKER, JR., Plaintiff,

v. HERCULES OFFSHORE, INC., HALL-HOUSTON EXPLORATION II, L.P., HALL-HOUSTON EXPLORATION PARTNERS, L.L.C., AND HALL-HOUSTON EXPLORATION COMPANY, Defendant.

CIVIL ACTION H-10-0898

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

Dated: February 1, 2011

OPINION AND ORDER DENYING REMAND

Pending before the Court in the above referenced action, arising out of a tort that occurred on a jack up drilling rig in the Gulf of Mexico off of Galveston, Texas and removed by Defendant Hercules Offshore, Inc. ("Hercules") from the County Court at Law No. 3 of Galveston County, Texas on federal question jurisdiction based on the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §§ 1331, et seq., is Plaintiff Francis Barker, Jr.'s motion to remand (instrument #7).¹

Factual Allegations

Plaintiff's Original Petition (#1, Notice of Removal, Ex. E) alleges that Plaintiff, a welder employed by Frank's Casing, Inc., which was under contract to the Defendants, was working on board Hercules's mobile offshore jack-up drilling unit (MODU), drilling rig #251, which at that time was attached to the seabed in Galveston Block 151, on the Outer Continental Shelf, for the purpose of developing minerals there (i.e., "setting up to drill a well" on the site for further production of oil). Plaintiff sustained his alleged injury when he and his co-welder and longtime best friend Thomas B. Broussard were attempting to remove the Pollution/Oil Pan in order to run a 60" pipe casing underneath the drilling floor. Plaintiff complains that although safety manuals and practices of Defendants required that there be a safety meeting, pre-job plan, instructions by Hercules' employees on how to perform the job and remove the pan, communication among the parties, and fall protection devices, and although Plaintiff requested that Hercules's driller provide fall protection equipment, including an air hoist to suspend the pan after the support structures were cut off, none of these had been provided to Plaintiff and Broussard. They were told to and did cut the straps supporting the pan, which was directly above the ocean floor. With Plaintiff watching, the pan on which Broussard was standing fell into the ocean floor about 100 feet below. Broussard managed to hang onto a beam for some time, but then lost his grip. Plaintiff was able to hold onto a beam, but he witnessed Broussard fall into the water, striking a beam on the way. Broussard's body was lifted from the water and flown out by helicopter.

Plaintiff asserts that he suffered severe permanent psychological trauma and physical pain and suffering, followed later by a cerebral stroke, which he claims was caused by the injuries he suffered from the accident.

The Original Petition brings three causes of action. First, it alleges, under general maritime law, claims of negligence, gross negligence, and wanton disregard for the safety of Plaintiff and Broussard. He seeks general, special and punitive damages under general maritime tort law. Second, in the alternative, under 33 U.S.C. § 905(b), ² it alleges that Hercules was negligent asowner/operator of the vessel, Hercules Rig 251, that Hercules's negligence proximately caused Plaintiff's injuries, and that it breached its duty to Plaintiff, including its "turn over duty, " duty to warn of dangers not obvious to the contractor, active control duty, and duty to intervene. Third, under Texas tort law to the extent it supplements or supplants maritime law, it alleges negligence, gross negligence and wanton disregard for the safety of Plaintiff and Broussard, and Plaintiff again seeks general, special and punitive damages.

Relevant Law

Removal

The federal removal statute, 28 U.S.C. § 1441, provides,

(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending....

(b) Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.

(c) Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwisenonremovable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates.

Under 28 U.S.C. § 1441(a) any state court action over which federal courts would have original jurisdiction may be removed from state to federal court. Gasch v. Hartford Accident & Indemnity Co., 491 F.3d 278, 282 (5^th Cir. 2007); see also, e.g., Guttierrez v. Flores, 543 F.3d 248, 251 (5^th Cir. 2008)("A district court has removal jurisdiction in any case where it has original jurisdiction.").

A district court has original federal question jurisdiction over "all civil actions arising under the Constitution, laws or treaties of the United States." 28 U.S.C. § 1331. Federal question claims are removable "without regard to the citizenship or residence of the parties." Id. Because federal courts have original federal question jurisdiction over OCSLA claims, OCSLA claims by themselves are removable under § 1441 without regard to citizenship. Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5^th Cir. 1999).

The removing party bears the burden of showing that subject matter jurisdiction exists and that removal was proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5^th Cir. 2002). Any doubts are construed against removal because the removal statute is strictly construed in favor of remand. Id. OCSLA As oil and gas exploration moved outward into the sea from inland waters, disputes arose between the federal government and coastal states over ownership of the minerals in lands under coastal waters. Kenneth G. Engerrand, Primer of Remedies on the Outer Continental Shelf, 4 Loy. Mar. L.J. 19, 20 (Spring 2005). Initially when California, and later, Louisiana and Texas began claiming ownership of the submerged lands off their shores, the Supreme Court held that the federal government rather than the states had paramount rights and control over the submerged lands and their minerals beyond the states' coastlines. United States v. California, 332 U.S. 19, 38-39 (1947); United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950). Gradually Congress enacted legislation addressing the problem Id. at 23; David W. Robertson, The Outer Continental Shelf Lands Act's Provisions on Jurisdiction, Remedies and Choice of Law: Correcting the Fifth Circuit's Mistakes, 38 J. Mar. L. & Com. 487, 494-95 (Oct. 2007). In 1933 Congress passed the Submerged Lands Act, 43 U.S.C. §§ 1301-1315, under which the federal government ceded to the states all interests it had in the seabed and natural resources underlying the coastal waters up to three geographical miles from the coastline, but reserving to the federal government the seabed and natural resources of the Outer Continental Shelf (the area extending seaward beyond that allocated to the states in the Submerged Lands Act). Id.; id. Congress did allow a more extendedboundary, up to three marine leagues, to states bordering the Gulf of Mexico, including Texas, where the state's constitution or laws before the state became a member of the Union so provided or where Congress had previously approved a boundary of more than three geographic miles. Id.; id. at 495.

In 1953 Congress passed OCSLA, 43 U.S.C. §§ 1331-1356, which allocated to the federal government "jurisdiction, control, and power of disposition" over the subsoil and seabed of the outer Continental Shelf ("OCS").³ Engerrand, 4 Loy. Mar. L.J. at 24; Robertson, 38 J. Mar. L. & Com. at 496. In Hufnagel v. Omega Service Industries, Inc., the Fifth Circuit observed that "Congressenacted OCSLA to provide a federal body of law to govern operations on the outer Continental Shelf." 182 F.3d 340, 349 (5^th Cir. 1999), citing Rodrigue v. Aetna Casualty and Surety Co., 395 U.S. 352 (1969)("The purpose of the Lands Act was to define a body of law applicable to the seabed, the subsoil, and the fixed structures... on the outer Continental Shelf.").

Title 43 U.S.C. § 1333(a)(1), which asserts exclusive federal jurisdiction over the subsoil and seabed of the OCS, provides in relevant part,

The Constitution and laws and civil and political jurisdiction of the United States are extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State....

Furthermore, under 43 U.S.C. § 1349(b), OCSLA expressly grants subject matter jurisdiction to federal district courts over "cases and controversies arising out of, or in connection with any operation conducted on the outer Continental Shelf which involves the exploration, development, ⁴ or production of the minerals, ofthe subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals.... Proceedings with...