Holmes v. Atlantic Sounding Co., Inc.
| Decision Date | 19 January 2006 |
| Docket Number | No. 04-30732.,No. 04-30750.,04-30732.,04-30750. |
| Citation | 437 F.3d 441 |
| Parties | Addie HOLMES, Plaintiff-Appellant, v. ATLANTIC SOUNDING COMPANY, INC.; Weeks Marine Inc.; ABC Insurance Co.; XYZ Insurance Co., Defendants-Appellees. Addie Holmes, Plaintiff-Appellant, v. Atlantic Sounding Company, Inc.; ABC Insurance Co., Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Victor L. Marcello (argued), Talbot, Carmouche & Marcello, Gonzales, LA, for Holmes.
Kenneth G. Engerrand, Brown Sims, Houston, TX, for Defendants-Appellees.
David W. Robertson, Austin, TX, pro se and for Sturley, Amicus Curiae.
Appeals from the United States District Courts for the Western District of Louisiana.
Before WIENER, DeMOSS, and PRADO, Circuit Judges.
This court's previous opinion is hereby withdrawn, and the following opinion is substituted:
In this consolidated appeal of two state actions that were removed to different district courts, Plaintiff-Appellant Addie Holmes appeals the denial of her motion to remand and the dismissal of her Jones Act and general maritime law personal injury suit against defendants-appellees, Atlantic Sounding Co., Inc. ("Atlantic"), her nominal payroll employer, and Weeks Marine, Inc. ("Weeks"), for which she was actually performing services at the time in question. The dispositive issue — whether an unpowered floatable structure like Weeks's quarterbarge BT-213 ("the BT-213"), on which Holmes was working when injured, is a vessel for Jones Act purposes — is not one of first impression in this circuit. We resolved this issue in Gremillion v. Gulf Coast Catering Co.,1 answering the question in the negative; however, the Supreme Court's recent decision in Stewart v. Dutra Construction Co.2 calls into question the analysis underlying our holding in Gremillion. We therefore must determine what effect, if any, Stewart has on this aspect of our vessel jurisprudence.
For the reasons that follow, we conclude that the BT-213 is a vessel for purposes of the Jones Act. We therefore reverse the district courts' judgments and orders adverse to Holmes and remand these cases to those courts for further proceedings consistent with this opinion.
Holmes sued defendants-appellees Atlantic and Weeks (collectively, "appellees") in Louisiana state court seeking damages for injuries that she allegedly sustained on her first day of work as a cook aboard the BT-213. Holmes is a Louisiana domiciliary. Both Atlantic and Weeks are New Jersey corporations with their principal place of business in Cranford, New Jersey.
The BT-213 is 140 feet long and 40 feet wide. It is, in effect, a floating dormitory, a barge on the deck of which a two-story, 50-bed "quarters package" is mounted. Weeks causes the BT-213 to be moved from place to place to house and feed employees during dredging projects at various locations. The BT-213 has sleeping quarters on both stories, as well as toilet facilities, a fully-equipped galley, locker rooms, freshwater deck tanks, diesel-powered electrical generators, and a gangway with railings. The BT-213's entire "crew" consists of two cooks and two janitors. There is no record evidence that they are transported on the BT-213 while it is moved from one site to another.
The BT-213 is towed by tugs between project locations. It is sometimes towed by itself and, at times, together with other barges. Weeks temporarily installs battery-operated running lights on the BT-213 when it is to be towed by itself. When the BT-213 is not in use, it is held in a boat slip at Weeks's facility in Houma, Louisiana. At the time of Holmes's accident, the BT-213 was moored in a private boat slip at Holly Beach in Cameron Parish while the crew of Weeks's dredge worked in the Gulf of Mexico. The BT-213 arrived at Holly Beach in August 2002 and had not moved before Holmes's accident the following month.
The BT-213 has never been inspected by or registered with the Coast Guard. It is not intended to transport personnel, equipment, passengers, or cargo, and no evidence in the record reflects that it has ever done so. It is not fitted out with winches, running lights, a radar, a compass, engines, navigational aids, Global Positioning System, lifeboats, or steering equipment such as rudders. It is incapable of self-propulsion; has no captain, engineer, or deckhand; has no bilge pumps or wing tanks; and has never been offshore.
On the other hand, the BT-213 has a raked bow on each end, and "two end tanks where the rakes are ... for flotation." It has a radio that is used primarily to communicate with the dredge. It is equipped with bits or bollards that are used to tie it to the shore or to other vessels or structures. It is sometimes moored by anchors and is equipped with life rings and portable water pumps.
Holmes alleges that when she attempted to place her belongings in her locker on the BT-213, both the locker and a television set that was on top of it fell on her as she opened the locker door. She alleges further that the accident caused injuries to her neck, shoulder, ears, and nose and caused dizziness as well.
Holmes sued Atlantic and Weeks in Louisiana state court, asserting claims under the Jones Act3 and general maritime law. She later filed a second suit in Louisiana state court against Atlantic, seeking maintenance and cure.
These cases were removed to different federal district courts. In their respective removal notices, Atlantic and Weeks advanced that Holmes fraudulently pleaded a Jones Act claim to prevent removal to federal court and that diversity jurisdiction existed under 28 U.S.C. § 1332. Holmes responded with motions to remand both suits. The magistrate judge ordered the parties to brief the issue of Jones Act liability.
After discovery and briefing were complete, the magistrate judge issued reports and recommendations in both suits, proposing that the district courts deny Holmes's motions to remand and enter judgments in favor of Weeks and Atlantic. The magistrate judge concluded that (1) the BT-213 is not a vessel for purposes of the Jones Act, (2) Holmes could not establish any possibility of recovery under the Jones Act, and (3) as diversity jurisdiction existed, removal was proper. Holmes timely objected to the magistrate judge's report and recommendation.
In June 2004, the district court to which Holmes's maintenance and cure suit against `Atlantic had been removed adopted the report and recommendation and issued a partial final judgment in favor of Atlantic. After Holmes conceded that no other viable claims remained, the district court amended the partial final judgment to reflect its finality.
One month later, the district court to which Holmes's Jones Act and general maritime law suit against Weeks and Atlantic had been removed adopted the magistrate judge's report and recommendation, denied Holmes's motion to remand, and dismissed her Jones Act claim. The court certified the partial final judgment under Federal Rule of Civil Procedure 54(b). Holmes timely filed notices of appeal in both courts. We consolidated the appeals of these two cases.
We review the denial of a motion to remand de novo.4 We also review a district court's grant of summary judgment de novo.5 Whether an unconventional craft is a vessel is an issue that is generally resolved as a matter of law, although we have recognized that "at the margin, fact issues may be presented."6
Generally, Jones Act cases are not removable from state court.7 A fraudulently pleaded Jones Act claim does not, however, bar removal.8 A defendant may "`pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal.'"9 The district court may use a "summary judgment-like procedure" to determine whether a plaintiff has fraudulently pleaded a Jones Act claim.10 "The court may deny remand where, but only where, resolving all disputed facts and ambiguities in current substantive law in plaintiff's favor, the court determines that the plaintiff has no possibility of establishing a Jones Act claim on the merits."11
To qualify as a seaman under the Jones Act, an employee must first demonstrate that his duties "'contribute to the function of the vessel or to the accomplishment of its mission.'"12 Second, "a seaman must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature."13 Atlantic and Weeks contend only that the BT-213 is not a vessel under the Jones Act. Accordingly, if Atlantic and Weeks carry their burden and demonstrate that there exists no genuine issue of material fact as to the BT-213's vessel status, removal was proper, as was dismissal. For the following reasons, we find that the BT-213 is a vessel for Jones Act purposes. Accordingly, we vacate the district courts' denials of Holmes's motions to remand, and we remand to those courts for further proceedings not inconsistent with this opinion.
"The existence of a vessel is a `fundamental prerequisite to Jones Act jurisdiction' and is at the core of the test for seaman status."14 The term "vessel" has, however, escaped precise definition. The exotic watercraft that have been deemed vessels and the heavy inquiry that surrounds each analysis of an unconventional craft's status has led even this court to recognize that the "three men in a tub would ... fit within our definition [of a Jones Act seaman], and one probably could make a convincing case for Jonah inside the whale."15
Historically, we have noted that the term "vessel" connotes a structure designed or used for "transportation of passengers, cargo or equipment from place to place across navigable waters."16 "As a general principle, where the vessel status of an unconventional craft is unsettled, it is necessary to focus upon `the purpose...
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