Gillis v. Louisiana, 01-31251.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 294 F.3d 755
• Docket Number: No. 01-31251.,01-31251.
• Parties: Malcolm GILLIS; George Mowbray; Michael Miller; Steve Nelson; Frank Jewell; Brett Palmer; Arthur Hallam; Chuck Morrison; Kevin May; John Harris; Lake Charles Pilots Inc., Plaintiffs-Appellants, v. State of LOUISIANA; Board of River Port Pilot Commissioners and Examiners; CITGO Petroleum Corp.; Conoco Inc.; Lake Charles Harbor & Terminal District, Defendants-Appellees.
• Decision Date: 02 July 2002

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294 F.3d 755 Malcolm GILLIS; George Mowbray; Michael Miller; Steve Nelson; Frank Jewell; Brett Palmer; Arthur Hallam; Chuck Morrison; Kevin May; John Harris; Lake Charles Pilots Inc., Plaintiffs-Appellants,
v.
State of LOUISIANA; Board of River Port Pilot Commissioners and Examiners; CITGO Petroleum Corp.; Conoco Inc.; Lake Charles Harbor & Terminal District, Defendants-Appellees. No. 01-31251. United States Court of Appeals, Fifth Circuit. July 2, 2002.

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Kenneth Michael Wright (argued), Richard Dale Moreno, Wright, Everett & Moreno, Lake Charles LA, for Plaintiffs-Appellants.

Burton Paul Guidry (argued), Litigation Div., Gary L. Keyser, Asst. Atty. Gen., Baton Rouge, LA, for Louisiana.

Michael K. Dees (argued), Lake Charles Harbor & Terminal Dist., Port of Lake Charles, Lake Charles, LA, for Board of River Port Pilot Com'rs & Examiners and Lake Charles Harbor & Terminal Dist.

Henry DuPont Heck Olinde, Jr. (argued), Frank Paul Simoneaux (argued), Simoneaux, Carleton, Dunlap & Olinde, Baton Rouge, LA, William B. Swift, Swift, Spears & Harper, Lake Charles, LA, for CITGO Petroleum Corp.

Thomas Hebert Huval (argued), Jeansonne & Remondet, New Orleans, LA, for Conoco Inc.

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

Before DAVIS, EMILIO M. GARZA and STEWART, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The Lake Charles Pilots, Inc. and its individual state-commissioned river pilot shareholders ("the Pilots") appeal the district court's grant of summary judgment in favor of the State of Louisiana and the other defendants (collectively, "the Defendants") in their declaratory judgment action.¹ Specifically, the Pilots contend that the district court should have ruled that the State of Louisiana has no authority to regulate pilotage on the portion of the Calcasieu Ship Channel that lies more than three miles seaward of the state's coastline. The Pilots also appeal the district court's denial of their motion to remand the case back to state court. Because we find no error in the district court's opinion, we affirm. We also affirm the district court's denial of the Pilots' motion to remand. Finally, the Pilots' motion to take judicial notice is denied.²

The Calcasieu Ship Channel (CSC) is a navigation project maintained by the United

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States Army Corps of Engineers. It extends from the Port of Lake Charles southward through the Calcasieu River and out into the Gulf of Mexico. It ends at a point approximately thirty-three miles from Louisiana's coastline. Pursuant to 43 U.S.C. § 1312, the seaward boundary of Louisiana is a line three miles from the coastline.³ The portion of the CSC that lies landward of the three-mile line in Louisiana is known as the "Inner Bar." The approximately thirty miles of the CSC seaward of the three-mile line is known as the "Outer Bar."

The individual plaintiffs in this case are river pilots commissioned by the State of Louisiana to serve the Port of Lake Charles and the CSC. Under Louisiana law, the Pilots have a duty "to pilot seagoing vessels ... through navigable streams, channels, rivers, passes and bars within the State of Louisiana and across the bars and passes." La. R.S. 34:1073. Until recently, this provision has generally been accepted to include the Outer Bar. While in the process of considering an increase in pilotage fees in March 2000, however, the Louisiana Public Service Commission made an oral ruling that Louisiana did not have authority to regulate pilotage beyond its three-mile boundary. The Pilots then filed the present declaratory judgment action in Louisiana state court.⁴

In their petition, the Pilots sought the following declarations:

1) [The Pilots] may not be compelled to provide pilotage services under state commission for any portion of the Calcasieu Bar Channel more than three geographic miles from the coastline of Louisiana, or be punished in any way by the State, any elected State official, any of its statutorily or constitutionally created subdivisions or Boards;

2) Pilotage or other maritime services provided more than three miles from the Coast of Louisiana is [sic] not performed pursuant to a commission issued by the State of Louisiana, but pursuant to a United States Coast Guard License or endorsements thereto;

3) The buoy Number 36 on NOAA chart Number 11347 is the furthest point on the Calcasieu Bar Channel subject to jurisdiction from the State of Louisiana; and

4) The Court renders such other Orders and Decrees to which the petitioners are entitled determining the rights and obligations of petitioners, and for full, general and equitable relief.

Petition for Declaratory Relief at ¶ 8. Defendant CITGO Petroleum then removed the state court action to federal court based on federal question jurisdiction. See 28 U.S.C. § 1441(b). The other defendants each filed a timely consent to removal.

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Thereafter, questions developed regarding whether the consent to removal filed on behalf of one of the defendants, the Board of River Port Pilot Commissioners and Examiners ("the Board"), was formally authorized. The consent was filed by attorney Michael Dees at the informal request of two members of the three-member Board. The Board did not meet formally during the removal period to vote on the consent because of scheduling conflicts allegedly caused by Board Chairman Malcolm Gillis, who is also a plaintiff in this case. After Gillis questioned Dees's authority to file the consent to removal, the Board held a formal meeting to ratify the consent and to make official Dees's status as counsel of record.⁵ This meeting took place thirty-nine days after the expiration of the removal period.

The Pilots filed a motion to remand based on a defect in the Board's consent and for lack of federal question jurisdiction (or, alternatively, an absence of complete preemption). The case was referred to a magistrate judge. In his Report and Recommendation, the magistrate judge concluded: (1) that federal question jurisdiction existed because the Pilots' petition for declaratory relief sought an injunction against Louisiana state officials based on the preemptive effect of a federal statute, and (2) that under the "exceptional circumstances doctrine" of Getty Oil, the formal but untimely action by the Board to retroactively "ratify" the actions of Dees cured any defect in the consent to removal. Getty Oil v. Ins. Co. of N. Am., 841 F.2d 1254, 1263 n. 12 (5th Cir.1988). The district court denied the motion to remand for the reasons given by the magistrate judge.

The Pilots and the Defendants then filed cross motions for summary judgment. The district court denied the Pilots' motion for summary judgment and granted the Defendants' motion. The district court held that Louisiana retained its sovereign authority to regulate pilotage of foreign and registry vessels transiting the CSC to and from the Port of Lake Charles on the Outer Bar. In so holding, the district court noted that the waters over the Outer Continental Shelf are relatively shallow for many miles off of the Louisiana coast, and that navigation is restricted there. Under such circumstances, the court held, "it is within the State's authority to protect the ships approaching the CSC from invisible hazards and to control navigation to and from the port through th [sic] regulating of pilotage out to the 33 mile buoy." Gillis v. Louisiana, Memorandum Ruling, No. 00-CV-1038 (W.D.La. Sept. 19, 2001). Moreover, the court found no extant federal law or regulation to preempt the State's authority. The Pilots now appeal the district court's grant of summary judgment in favor of the Defendants as well as the district court's denial of their motion to remand the case to state court.

We review a district court's grant of summary judgment de novo. McClendon v. City of Columbia, 258 F.3d 432, 435 (5th Cir.2001). We will affirm a district court's grant of summary judgment when, viewing the evidence in the light most favorable to the nonmoving party, the record reflects that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review the denial of a motion to remand de novo. Hernandez v. Jobe Concrete Prods. Inc., 282 F.3d 360, 361 (5th Cir.2002).

The Pilots first argue that the district court should have remanded this

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case because the consent to removal filed on behalf of the Board was not properly authorized within the thirty-day removal period as required by 28 U.S.C. § 1446.⁶ We have previously held that, in order to comply with the requirements of § 1446, all served defendants must join in the removal petition filed prior to the expiration of the removal period. Getty Oil, 841 F.2d at 1262 n. 9. This rule simply requires that there be "some timely filed written indication from each served defendant, or from some person or entity purporting to formally act on its behalf in this respect and to have the...