Filho v. Pozos Intern. Drilling Services, Inc.

• Decision Date: 02 June 1987
• Docket Number: H-86-3380.,Civ. A. No. H-86-3068
• Citation: 662 F. Supp. 94
• Parties: Sebastiao Fortunato FILHO, et al. v. POZOS INTERNATIONAL DRILLING SERVICES, INC., et al. Christina Santanna DA SILVA, et al. v. POZOS INTERNATIONAL DRILLING SERVICES, INC., et al.
• Court: U.S. District Court — Southern District of Texas

662 F. Supp. 94

Sebastiao Fortunato FILHO, et al. v. POZOS INTERNATIONAL DRILLING SERVICES, INC., et al.

Christina Santanna DA SILVA, et al. v. POZOS INTERNATIONAL DRILLING SERVICES, INC., et al.

Civ. A. Nos. H-86-3068, H-86-3380.

United States District Court, S.D. Texas, Houston Division.

June 2, 1987.

John H. Bennett, Jr., Barbara A. Clark, Gilpin, Pohl & Bennett, Houston, Tex., for plaintiffs.

G. Byron Sims, Brown, Sims, Wise & White, Houston, Tex., for Pozos Intern. Drilling Services.

Louis E. McCarter, Houston, Tex., for Halliburton Co. et al.

Donald B. McFall, Cook, Davis & McFall, Houston, Tex., for Dresser Industries, Inc.

John H. Boswell, Boswell & Hallmark, Houston, Tex., for other defendants.

MEMORANDUM OPINION AND ORDER

HITTNER, District Judge.

Pending before this Court is Plaintiffs' Motion to Remand. Having considered that motion, the submissions of the parties, the argument of counsel, and the applicable law, the Court is of the opinion that Plaintiffs' motion should be granted and that the above-captioned actions should be remanded to the 125th Judicial District Court of Harris County, Texas.

PROCEDURAL AND FACTUAL BACKGROUND

The claims which are the basis of the actions before this Court arise out of a gas well blowout on an offshore drilling rig. The rig, owned by Petroleo Brasileira, S.A. (Petrobras), was being used to drill a well in the Enchova Field located approximately 53 miles off the coast of Brazil. Petrobas is the national oil company of Brazil and, as such, is an arm of the Brazilian government. When the blowout occurred, on or about August 16, 1984, a number of the Plaintiffs were injured or lost their lives on the rig. Several other Plaintiffs attempted to escape the rig by lifeboat. The lifeboat capsized on the high seas, killing several Plaintiffs and injuring others. The Plaintiffs, all Brazilian nationals, filed the above-captioned suit against Defendants, who are allegedly the rig operators, and suppliers of services and materials to the rig.¹ Plaintiffs seek damages under Texas state law for the alleged deaths and personal injuries resulting from the blowout and the subsequent evacuation of the rig.

This case involves two lawsuits consolidated by court order dated September 15, 1986. The lawsuits, styled Sebastiao Fortunato Filho, et al. v. Pozos International Drilling Services, Inc., et al. (Filho) and Christina Santanna Da Silva, et al. v. Pozos International Drilling Services, Inc., et al. (Da Silva), were originally filed in the 125th Judicial District Court of Harris County, Texas. Both cases were timely removed to federal court pursuant to 28 U.S.C. § 1446(b), without waiver of Defendants' Fed.R.Civ.P. 12(b) defenses, including lack of in personam jurisdiction, insufficiency of process and service of process, as well as a reservation of the right to move for transfer or dismissal of this action based on the inconvenience of the forum.

All Defendants, with the exception of Koomey, Inc., joined in the removal of the above-captioned cases. Koomey, Inc. is presently in Chapter 11 bankruptcy proceedings in the United States Bankruptcy Court for the Southern District of Texas and is subject to an automatic stay pursuant to the bankruptcy laws of the United States. 11 U.S.C. § 362 (1982). A defendant in bankruptcy need not be joined in the removal petition. Consumers Distributing Co., Ltd. v. Tele-Save Merchandising Co., 553 F.Supp. 974, 976 (D.N.J.1982). Thus, all Defendants required to join in removal in the instant case have done so.

ASSERTED GROUNDS FOR REMOVAL

The Filho action was originally removed to federal court on the ground of diversity jurisdiction. Although a nondiverse party, Pozos Perfuracoes LTDA, had been named, it had not been served and did not initially join in the removal. After the subsequent service of Defendant Pozos Perfuracoes LTDA and its mandatory joinder, Defendants supplemented their removal petition for the Filho action by asserting federal question jurisdiction based upon the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761, et seq.² Likewise, the removal of the Da Silva case is premised on federal question pursuant to DOHSA.³

Only Texas state law grounds were pleaded by Plaintiffs. Defendants deny that American law is applicable to this case and claim that Brazilian law controls. However, Defendants correctly contend that if American law is applicable, this action, as it pertains to those Defendants who lost their lives on the high seas, should properly have been brought pursuant to DOHSA.

In their state court pleadings, those Plaintiffs whose decedents were killed allege causes of action under the Texas wrongful death and survival statutes. Tex.Civ.Prac. & Rem.Code, Ann., §§ 71.002, 71.021 (Vernon 1986). Those Plaintiffs have further alleged that death occurred in international waters surrounding the platform.

The United States Supreme Court recently held that DOHSA provides the exclusive wrongful death remedy where death occurs beyond the three-mile territorial waters of a state. Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct. 2485, 91 L.Ed.2d 174 (1986). Those Plaintiffs whose decedents were killed on the "high seas" thus should properly have couched their claims in terms of DOHSA violations. Although Plaintiffs did not plead their wrongful death action under DOHSA, Defendants contend that the "artful pleading doctrine" prevents Plaintiffs from defeating removal to federal court by casting an exclusively federal claim in terms of state law. Defendants urge that, pursuant to that doctrine, where it appears that the Plaintiffs have framed their pleadings with the design of avoiding removal, the Court should look beyond the allegations of the pleadings to the underlying facts and determine whether Plaintiffs might arguably recover against the Defendants on the claims as pleaded. Where, as in the cases before us, Plaintiffs could not recover on state law grounds but only pursuant to an exclusive federal law remedy, Defendants argue that the Court should pierce Plaintiffs' pleadings, and recast them for purposes of removal in the form in which they should properly have been presented.

While it is true that a plaintiff may not by artful pleading, fraudulently defeat federal question removal, the Fifth Circuit has held that the "artful pleading doctrine" must be applied in conjunction with the "well-pleaded complaint" rule. The latter doctrine provides:

Whether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute ... must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.

Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914). See also Franchise Tax Bd. of the State of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 10, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 43, 53 L.Ed. 126 (1908). Even though the artful pleading doctrine has been invoked, the Fifth Circuit has held that, when in effect what a defendant is doing is raising a defense of preemption, the well-pleaded complaint doctrine prevents the assertion of "arising under" jurisdiction and the subsequent removal to federal court on federal question grounds. Powers v. South Central United Food & Commercial Workers Unions, 719 F.2d 760 (5th Cir.1983). Thus, in Powers, where the plaintiff, a participant in an employee health and welfare plan alleged no federal cause of action, raised no federal issue, and relied on no federal statute, but sought relief only based on the Texas Deceptive Trade Practices — Consumer Protection Act, negligence, and fraud, the court held that removal on federal question jurisdiction was improper, even though the defendant raised the artful pleading doctrine and asserted in its removal petition that the state claims were preempted by an exclusive federal remedy, the Employment Retirement Income Security Act of 1974 (ERISA). Id. at 766.

On the other hand, the Fifth Circuit has recognized that a too rigid application of the well-pleaded complaint doctrine should not be permitted to aid a plaintiff's attempt to circumvent federal jurisdiction. Consequently, following the United States Supreme Court, the Fifth Circuit held that removal was proper where the defendant asserted federal question jurisdiction on the ground that the plaintiff's action should properly have been brought pursuant to the Labor Management Relation Act (LMRA), 29 U.S.C. § 141 et seq. (1982). "If a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily `arises under' federal law." Eitmann v. New Orleans Public Service, Inc., 730 F.2d 359, 366 (5th Cir.1984) (quoting Franchise Tax Board, supra, 463 U.S. at 24, 103 S.Ct. at 2854).

This Court need not reach the issue of whether the cases before it fall within the holding of the Powers case in that Defendants are merely asserting a preemptive defense, or whether DOHSA constitutes a total preemption akin to the LRMA. Even were this Court to hold that DOHSA does constitute such a total preemption and construe this action as one arising under DOHSA, this Court would be unable to acquire federal question removal jurisdiction over a DOHSA claim.

REMOVABILITY OF DOHSA CLAIM

Plaintiffs correctly argue that, assuming their action was properly brought as a DOHSA claim, the statute grants only admiralty jurisdiction and is therefore non-removable once brought in state court.⁴ This Court agrees with the Plaintiffs, but follows a slightly different path of analysis in reaching that conclusion.

Plaintiffs rely on Romero v....