Fogleman v. Tidewater Barges, Inc., Civ. A. No. 90-2500.

• Decision Date: 22 August 1990
• Docket Number: Civ. A. No. 90-2500.
• Citation: 747 F. Supp. 348
• Court: U.S. District Court — Eastern District of Louisiana
• Parties: Gwendolyn S. FOGLEMAN, et al. v. TIDEWATER BARGES, INC., et al.

747 F. Supp. 348

Gwendolyn S. FOGLEMAN, et al. v. TIDEWATER BARGES, INC., et al.

Civ. A. No. 90-2500.

United States District Court, E.D. Louisiana.

August 22, 1990.

Lawrence D. Wiedemann and Karl Wiedemann, Wiedemann & Wiedemann, New Orleans, La., for plaintiffs.

Cliffe F. Laborde and Charles A. Cerise, Jr., Gelpi, Sullivan, Carroll & Laborde, New Orleans, La., for defendant, Tidewater Barges, Inc.

David L. Duplantier, Chevron U.S.A., Inc., New Orleans, La., for Chevron U.S.A., Inc., defendant.

ORDER AND REASONS

MENTZ, District Judge.

This matter comes before the Court on the plaintiffs' motion to remand the case to the District Court for the Parish of Orleans. After reviewing the motion, memoranda of counsel, the record and the law, the Court grants the motion because the case is not a civil action over which this Court has subject matter jurisdiction.¹

FACTS

On June 29, 1990, plaintiffs, Gwendolyn and Joseph Fogleman, filed suit against Tidewater Barges, Inc. ("Tidewater") and Chevron U.S.A., Inc. ("Chevron") in the Civil District Court for the Parish of Orleans, State of Louisiana, to recover damages for injuries sustained by Mr. Fogleman which were allegedly caused solely by the joint negligence of Tidewater and Chevron. At the time of his injury, Joseph Fogleman was employed by Bokenkamp Drilling Company, Inc. ("Bokenkamp") as a roustabout aboard a Chevron platform located in South Pass Block 78, an area of the Gulf of Mexico more than three miles off the coast of Louisiana.

On November 14, 1989, Fogleman was assigned to unload coiled tubing from the M/V FLOODTIDE II to the Chevron platform. Mr. Fogleman contends that he was injured during the unloading procedure when he slipped and fell on an accumulation of fish slime on the deck of the vessel. At the time of the accident, the M/V FLOODTIDE II was owned and operated by Tidewater, a Louisiana corporation. The plaintiffs are also Louisiana residents. Chevron is a corporation foreign to Louisiana, but registered to do and doing business in Louisiana.

The Foglemans alleged in their state court petition that the M/V FLOODTIDE II was in the joint control of Tidewater and Chevron, who shared the joint responsibility of determining when, and under what conditions the vessel would be loaded and unloaded, and when it would leave the dock or platform. According to the petition, the wind and sea conditions on the day of the accident were so hazardous that it was obvious, or by the exercise of reasonable care, should have been obvious that the work crew assigned to unload the coiled tubing could not accomplish the task safely. The Foglemans further alleged that Tidewater was negligent in allowing its crew members to throw their catch onto the deck of the vessel. The plaintiffs contended that the state court had jurisdiction over their action pursuant to the "saving to suitors clause" as provided in 28 U.S.C. § 1333(1).²

On or about June 29, 1990, Tidewater and Chevron were served with the plaintiffs' citation and petition for damages. Thereafter, on July 12, 1990, Tidewater and Chevron timely removed the case to this Court. Removal was based on the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331-56 ("OCSLA").³ Accordingly, Tidewater and Chevron claim to invoke the federal question subject matter jurisdiction of this Court pursuant to 28 U.S.C. § 1331.⁴ In the instant motion, the plaintiffs have moved to remand this case to the state court because their petition does not contain a claim under OCSLA.

ANALYSIS

Tidewater and Chevron contend that the plaintiffs need not refer to OCSLA in their state court petition for OCSLA jurisdiction to exist as a basis for removal. Defendants argue that while generally plaintiffs are the masters of their claims, they may not avoid federal court jurisdiction through artful pleading. See 14A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3722 at n. 60 (1985 & Supp. 1990).⁵ The defendants assert that the Foglemans have alleged sufficient facts in their state court petition to permit removal under OCSLA.

Overlapping OCSLA and Admiralty Jurisdiction

Relying on the "but for" test,⁶ defendants contend that Fogleman would not have been injured while unloading the coiled tubing from the M/V FLOODTIDE II but for his employment connection to the platform. See e.g., Recar v. CNG Producing Company, 853 F.2d 367 (5th Cir.1988). In Recar, a maintenance crew foreman was injured while using a swing rope to transfer from a platform to a vessel. During the transfer, the swing rope broke and Recar fell to the deck of the vessel where he allegedly injured his neck. Recar filed suit in federal court against the platform owner alleging jurisdiction under OCSLA. At a pretrial conference, the district court determined that its only basis for subject matter jurisdiction was in admiralty. Despite being given a chance to amend his complaint, Recar declined to do so. The district court then dismissed the action without prejudice and Recar appealed from that order. On appeal, the defendant argued that OCSLA did not provide the district court with jurisdiction because of the maritime flavor of the case. The defendant pointed out that Recar actually spent most of his time working from a vessel, and that his injuries were sustained while he was trying to board the vessel. The Fifth Circuit Court of Appeals reversed, finding that Recar had alleged facts sufficient to bring his case within the provisions of OCSLA. Id. at 369. The circuit court held that regardless of the maritime flavor of the case, the district court may well have both admiralty jurisdiction under the general maritime law and federal question jurisdiction by virtue of OCSLA. Id. However, the court noted that "where admiralty and OCSLA jurisdiction overlap, the case is governed by admiralty law." Id. at 369-70 (quoting Laredo Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223, 1229 (5th Cir.1985) (emphasis supplied)). Finally, the court stated that, for purposes of the appeal, it had not been called upon to decide which body of law applied to the case. Rather, it would be up to the district court to determine on remand whether the "wrong" alleged bore a sufficiently strong relationship to traditional maritime activity to characterize it as a maritime tort, thereby requiring the application of general maritime law. Id. at 370 (citing Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 253-60, 93 S.Ct. 493, 497-500, 34 L.Ed.2d 454 (1972); Rodrigue v. Aetna Casualty & Surety Co., 395 U.S. 352, 355, 89 S.Ct. 1835, 1836, 23 L.Ed.2d 360 (1969); Smith v. Pan Air Corp., 684 F.2d 1102, 1109-10 (5th Cir. 1982); Laredo, 754 F.2d at 1229.

Two cases cited by the parties to the present motion deal with the specific problem of the right to a jury trial when a claim for injuries has both OCSLA and admiralty implications. Both involve injuries to offshore workers incurred while they were in the process of unloading a vessel adjacent to a platform. In Stevenson v. Point Marine, Inc., 697 F.Supp. 285 (E.D.La.1988), cited by the defendants in the present motion, the plaintiff was injured when a wave washed over the stern of the vessel causing the cargo to shift. The plaintiff sued the vessel owner in federal court for negligence under OCSLA. The plaintiff maintained that he had a right to a jury trial by virtue of the court's federal question jurisdiction.

The court found that the plaintiff's injury would not have occurred but for the offshore drilling activities. Id. at 287 (citing Recar, 853 F.2d at 369). Because the accident occurred outside the territorial limits of a state, the court found that the Longshoremen's and Harbor Workers' Compensation Act applied as the borrowed substantive law under OCSLA, and that the plaintiff was relegated to a claim under section 905(b) against the vessel owner. Id. A section 905(b) claim is generally cognizable only in admiralty. Id. at 286 (citing Russell v. Atlantic & Gulf Stevedores, 625 F.2d 71, 72 (5th Cir.1980)). The court held that OCSLA's adoption of section 905(b) did not spontaneously create a new statutory right of action against negligent vessel owners, it merely limited such actions, as does the LHWCA in claims by longshoremen against vessels. As a result, since OCSLA created no substantive right against vessel owners "under the Act," and since a 905(b) action is only cognizable in admiralty, the motion to strike the jury was granted. Id. at 288.

The district court in Stevenson adhered to Recar in two important respects: (1) the OCSLA claim filed by the plaintiff in federal court alleged sufficient facts under the "but for" test to come within the scope of OCSLA; and (2) where admiralty jurisdiction and OCSLA jurisdiction overlap, the case is governed by admiralty law. With respect to this latter consideration, the jurisdictional overlap occurred when Stevenson made a claim involving a vessel. Although he asserted OCSLA as the basis of jurisdiction, section 905(b) had to be applied as borrowed substantive law. Since a 905(b) claim is cognizable only in admiralty, and admiralty governs where jurisdiction is concurrent with OCSLA, the court found that Stevenson was not entitled to a jury.

The plaintiffs also cite a case involving a motion to strike the jury. In Hails v. Atlantic Richfield Co., 595 F.Supp. 948 (W.D. La.1984), the plaintiff, a platform worker, was injured while aiding in the unloading of a vessel. He filed suit against the platform owner under OCSLA and general maritime law, and against the vessel owner and crane operator under general maritime law. The plaintiff designated his claim as one in admiralty under Rule 9(h) without benefit of trial by jury. Despite the plaintiff's Rule 9(h) designation, the platform owner requested a trial by jury, claiming that its status as a platform owner exempted it from admiralty jurisdiction, leaving only jurisdiction under OCSLA. Id. at 949. The...