LeBlanc v. AEP Elmwood, LLC, CIVIL ACTION NUMBER: 2:11-cv-01668
| Decision Date | 28 February 2012 |
| Docket Number | CIVIL ACTION NUMBER: 2:11-cv-01668 |
| Parties | ANTHONY LEBLANC v. AEP ELMWOOD, LLC AND DIAMOND L SERVICES, INC. |
| Court | U.S. District Court — Eastern District of Louisiana |
Before the Court is Plaintiff Anthony Leblanc's (Plaintiff) Motion to Remand (Rec. Doc. No. 9) this case to the 23rd Judicial Court for the Parish of St. James. In response, Defendant AEP Elmwood LLC (AEP) filed its Opposition Memorandum to Plaintiff's Motion to Remand (Rec. Doc. No. 15). Additionally, Defendant Diamond L Services Inc. (Diamond L) filed its Opposition to Plaintiff's Motion to Remand (Rec. Doc. No. 16). Accordingly, and for the reasons articulated below,
IT IS ORDERED that Plaintiff's Motion to Remand is DENIED.1
Plaintiff was hired by Diamond L2 in 2009 and was assigned to be a barge washer at AEP's3 St. James Parish/Mississippi Riverfacility. (Rec. Doc. No. 9-1 at 2). The barges in question were "never fixed to the river bed," but instead were "afloat and transient" while Plaintiff was an employee. Id. The barge-cleaning crew members were responsible for removing "algae, dirt, grease, and other foreign substances from the barges." Id. at 3.
This lawsuit was filed in the 23rd Judicial District Court for the Parish of St. James, Louisiana, under the Saving to Suitors Clause, 28 U.S.C. § 1333(1) on June 17, 2011. (Rec. Doc. No. 1 at1). On July, 17, 2011, AEP removed this case "as a matter involving citizens of different States over an amount in controversy that exceeds the sum of $75,000.00." Id. at 2. Plaintiff filed the instant Motion to Remand on August 5, 2011. (Rec. Doc. No. 9). AEP countered with its Opposition Memorandum to Plaintiff's Motion to Remand on September 2, 2011. (Rec. Doc. No. 15). Diamond L filed its Opposition to Plaintiff's Motion to Remand on September 6, 2011. (Rec. Doc. No. 16). On November 2, 2011, all parties filed a Joint Motion to Statistically Close the Case. (Rec. Doc. No. 39). On February 6, 2011, Plaintiff requested that the case be re-opened and the original Motion to Remand be decided by this Court. (Rec. Doc. No. 41-1 at 1-2).
Plaintiff asserts that this case should be remanded to state court because AEP cannot demonstrate removal was proper in the instant suit.(Rec. Doc. No. 9 at 1). Specifically, Plaintiff alleges that there is no diversity jurisdiction because there are proper claims against Diamond L. (Rec. Doc. No. 9-1 at 1). Plaintiff also claims that, since there is a "reasonable possibility of establishing a Jones Act claim" against both Defendants, the matter should be returned to state court "where it was properly filed in the first instance." Id. at 2.
AEP claims that "Plaintiff has fraudulently joined his direct employer, [Diamond L], in an attempt to avoid removal." (Rec. Doc. No. 15 at 1). AEP further asserts that Plaintiff is not entitled to coverage under the Jones Act because he was employed "as a shore-based barge washer, not a seaman." Id. at 1-2. Therefore, the alleged incident would be governed by the Longshore Act.4 Id. at 2. AEP claims that the only relevant claims remaining under 28 U.S.C. § 1332 (a)(1)5 are against AEP, who is a diverse defendant, and the amount in controversy exceeds $75,000 in the instant case. Id. Because of this, AEP argues that remand is improper. Finally, AEP asserts that the motion to remand should be denied because "Plaintiff has no possibility of proving Jones Act seaman status on the merits of the case." Id. at 2.
Diamond L claims that the "Jones Act causes of action were fraudulently pleaded so that Diamond L could be fraudulently joined in order to defeat diversity jurisdiction." (Rec. Doc. No. 16 at 1).In its Opposition to Plaintiff's Motion to Remand, Diamond L asserts that "it is not a proper party" in the instant suit. Id. at2. Diamond L argues that Plaintiff cannot qualify as a Jones Act seaman because he "lacks a connection to [the] vessel (or an identifiable group of vessels) that is sufficiently substantial in terms of both its duration and its nature." Id. at 3.
The Supreme Court has noted an exception to the general right to removal for admiralty cases: if a lawsuit is brought in state court, and it could have been brought in federal court under 28 U.S.C. § 1333, the case may not be removed if § 1333 is the only basis for federal jurisdiction. Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 371-72 (1959). Plaintiffs that exercise their option to file in state court can keep their court in state court unless there is diversity of citizenship or another statutory basis besides § 1333 that qualifies the lawsuit for federal jurisdiction. Further, the Fifth Circuit has held that cases brought under the Jones Act are generally not removable. Holmes v. Atl. Sounding Co., 437 F.3d 441, 445 (5th Cir. 2006)(citing Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995)).
The exception to this is if a plaintiff fraudulently pleads a Jones Act claim in an effort to prevent federal jurisdiction. Id. (citing Burchett, 48 F.3d at 175). In that instance, a defendant ispermitted to "pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal." Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A 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." Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340, 345-46 (5th Cir. 1999)(citing Burchett, 48 F.3d at 176). The burden of persuasion "rests with the removing party, and this burden is a heavy one." Zertuche v. Great Lakes Dredge & Dock Co., LLC, 306 F. App'x 93, 94 (5th Cir. 2009)(citing Burchett, 48 F.3d at 176).
The Jones Act provides that "[a] seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer." 46 U.S.C. § 30104 (2006). An action under the Jones Act may be properly brought in either a federal court or a state court. See, e.g., Madruga v. Superior Ct. of State of Cal. in & for San Diego Cty., 346 U.S. 556, 560 (1954); 28 U.S.C. § 1333(1) (2006).
The United States Supreme Court defined a benchmark for determining whether or not an employee qualifies as a "seaman" under the Jones Act in Chandris, Inc. v. Latsis, 515 U.S. 347(1995). The Court noted that Jones Act jurisdiction is not contingent "on the place where the injury is inflicted;" rather, it is dependent on the "nature of the seaman's service, his status as a member of the crew, and his relationship as such to the vessel and its operation in navigable waters." Id. at 559-60 (quoting Swanson v. Marra Brothers, Inc., 328 U.S. 1,4 (1946))(emphasis added). There are two criteria recognized for an employee to qualify as a seaman under the Jones Act. First, "an employee's duties must contribute to the function of the vessel or the accomplishment of its mission." Id. at 368 (internal citations omitted). This is a broad threshold: "'all who work at sea in the service of a ship' are eligible for seaman status." Id. (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 354 (1991)). Second, a seaman's connection to the vessel must be "substantial in terms of both its duration and its nature." Id.
The total circumstances surrounding employment "must be weighed to determine whether he had a sufficient relation to the navigation of vessels and the perils attendant therein." Wallace v. Oceaneering Int'l, 727 F.2d 427, 432 (5th Cir. 1984). The Court held that the "ultimate inquiry" when determining Jones Act coverage is "whether the worker in question is a member of the vessel's crew or simply a land-based employee who happens to be working on the vessel at a given time." Chandris, 515 U.S. at 369.
The Court found that the Fifth Circuit applied an "appropriate rule of thumb" for ordinary cases: "A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act." Id. at 371; see also Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067 (5th Cir. 1986)(establishing the use of percentages as the basis for Jones Act qualification).
28 U.S.C. § 1333 provides that federal courts will have exclusive jurisdiction in "[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." 28 U.S.C. § 1333(1) (2006). However, the Supreme Court affirmatively stated that this jurisdiction "is 'exclusive' only as to those...
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