McAdow v. Promus Companies, Inc.
Decision Date | 25 April 1996 |
Docket Number | Civil Action No. 95-1202. |
Citation | 926 F. Supp. 93 |
Parties | Brian C. McADOW v. PROMUS COMPANIES, INC., d/b/a Harrah's Shreveport Casino. |
Court | U.S. District Court — Western District of Louisiana |
Franklin H. Spruiell Jr., Comegys, Lawrence, Jones, Odom & Spruiell, Shreveport, LA, for plaintiff.
Patrick J. Veters, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, LA, Eskridge E. Smith Jr., Bossier City, LA, for defendant.
MEMORANDUM RULING
Brian McAdow ("McAdow") instituted this action in state court seeking damages under the Jones Act, 28 U.S.C. § 1333, for an injury arising from an accident that allegedly occurred in the fall of 1994 while he was working on the M/V Shreveport Rose ("Shreveport Rose"), then the home of Harrah's Shreveport Casino. Promus Companies, Inc. ("Promus") removed the action and McAdow moved to remand. In his Memorandum Ruling of December 13, 1995 (Rec. Doc. 11), Magistrate Judge Roy S. Payne granted McAdow's motion to remand, and Promus has appealed.
Finding Judge Payne's ruling under the present state of the law to be clearly erroneous, for the reasons set out below, the order of remand is REVERSED. This decision is not final until the parties have fully briefed the issue, which the court raises sua sponte, of whether this court retains the jurisdiction to act in this matter.
Judge Payne's Order of Remand is considered a non-dispositive ruling. See F.R.C.P. Rule 72. An order of this nature is reviewed by the district court under the clearly erroneous standard. See Perales v. Casillas, 950 F.2d 1066, 1070 (5th Cir.1992).
Although Jones Act cases are ordinarily non-removable pursuant to 28 U.S.C. § 1445(a), Promus "may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal." Lackey v. Atlantic Richfield Co., 990 F.2d 202, 207 (5th Cir.1993). Promus must show that McAdow's claims "are baseless in law and in fact and serve only to frustrate federal jurisdiction" and "that there is no possibility that ... McAdow would be able to establish a cause of action." Id. Taking into account the same type of evidence used in the summary judgment context, all significant questions of fact and all ambiguities in the controlling state law are to be resolved in favor of McAdow. Carriere v. Sears, Roebuck & Co., 893 F.2d 98, 100 (5th Cir.1990).
Id. Given these facts,1 the court held the Biloxi Belle to be (1) removed from navigation; and (2) a work platform at the time of the relevant accidents. Id. These conclusions were reached by plugging the relevant facts into the Desper/Hawn withdrawn-from-navigation factors2 and the Bernard/Gremillion work platform attributes.3 Id.
The Shreveport Rose was both removed from navigation and a work platform before, during, and after McAdow's alleged injury. The structure was, for all intents and purposes, a land-based casino. There is a striking degree of permanent connection between the Shreveport Rose and the shore: "Only by removing steel pins from the ramps, letting loose all lines and cables and lifting the gate of the coffer cell by means of a crane barge" could the Shreveport Rose be freed from its retaining walls. See Rec.Doc. 16, Affidavit of Oran Lanclos. Moreover, the casino was not at all self-sufficient. All utilities, including telephone, electric, sewer, water, and computer connections were permanently accessed from the shore. These too would have to be removed for the casino to break free from the concrete barriers separating it from the flow of the Red River.
Indeed, the Shreveport Rose was always used as a casino and a work platform. Gaming tables, slot machines, and cocktails could all be found in abundance, along with the attending service personnel.
Louisiana Riverboat Economic Development and Gambling Control Act, La.R.S. §§ 4:501-562 (West Supp.1995), at § 4:525(B)(1)(b)(I). This piece of legislative legerdemain produces an economic advantage of considerable magnitude. It eliminates, in the Shreveport and Bossier City markets, the cruising requirements applicable to similar boats located elsewhere in the state of Louisiana. It permits costly utility installations to be shore based. And these privileged boats can be moated, leveed or coffer dammed, thereby lessening the effects of rising and falling river levels. Elsewhere in Louisiana, gambling may not be conducted aboard boats in other locations while docked, "unless the vessel is docked for less than forty-five minutes between excursions." Id. §§ 4:525(B)(1)(a).
Taking a slight divergence, some other interesting, slightly relevant facts (considered by judicial notice) should be noted. Because of increasing business, it became necessary for Harrah's (Promus) to bring in a larger casino. This is why the Shreveport Rose was extracted from its position on the riverfront. The New Orleans Times-Picayune reported in its March 12, 1996 issue that, based upon Louisiana State Police sources, each of the top three revenue-producing floating casinos in the state were from the Shreveport/Bossier City area for the month of February 1996. In that month, Harrah's gross revenue was $12,057,340, Isle of Capri's gross revenue was $12,745,882, and Horseshoe's gross revenue was $14,246,989. No other area in the state rivaled these astonishing numbers.4 There can be little doubt that the cruising exemption gives the local floating casinos a tremendous economic advantage over their counterparts in this state.
Returning to the main focus, the court simply cannot fathom that the Shreveport Rose can be deemed a vessel for Jones Act purposes with the above considerations in mind. It may, as Magistrate Payne concluded, be a different animal from the Biloxi Belle and other floating casinos,5 but nevertheless, since being moved to Shreveport it was in its own right a creature of the land. There is no basis in fact or law for concluding that the Shreveport Rose is a vessel for Jones Act purposes and any conclusion to the contrary cannot be supported in light of current Fifth Circuit doctrine. There can be no principled basis to distinguish between a solidly moored barge casino and a solidly moored paddle wheel casino. Neither of these floating objects were, at any time, "used or intended to be used for transporting freight or passengers." Hayford v. Doussony, 32 F.2d 605 (5th Cir.1929). Therefore, the Shreveport Rose is not a vessel for Jones Act purposes. It follows that there is no possibility that McAdow has a cause of action for a Jones Act claim. As such, McAdow fraudulently pleaded his Jones Act claim and Judge Payne's ruling granting McAdow's motion to remand was mistaken and clearly erroneous.
The parties have not raised the issue of whether the court has subject matter jurisdiction, but the court now raises this question sua sponte. It is unclear whether 28 U.S.C. § 1447(c) and (d), standing alone, or together with the Clerk of Court's certification of Judge Payne's remand order to state court, deprives this court of...
To continue reading
Request your trial-
Glendora v. Pinkerton Sec. and Detective Services
...the complaint. Further, such an amendment would constitute fraudulent pleading intended to prevent removal. See McAdow v. Promus Cos., Inc., 926 F.Supp. 93, 94 (W.D.La. 1996) (stating that defendant may "`pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to......
-
30,368 La.App. 2 Cir. 2/25/98, Chase v. Louisiana Riverboat Gaming Partnership
...], must be added to that list. Pavone, 52 F.3d at 570. (emphasis added). Following in the wake of Pavone came McAdow v. Promus Companies, Inc., 926 F.Supp. 93 (W.D.La.1996), where the district court sitting in Shreveport and applying the Pavone approach held that the casino riverboat Shreve......
-
Davis v. Missouri Gaming Co.
...quarters, which was towed to Shreveport, Louisiana, and immediately moored in a coffer cell on the Red River. McAdow v. Promus Cos., Inc., 926 F.Supp. 93, 94 (W.D. La. 1996). The Shreveport Rose never transported passengers or cargo across navigable waters, nor was it intended for such use,......
-
IN MATTER OF TREASURE BAY CORP., Bankruptcy No. 94-09048 SEG
...to find that a gambling casino similar to Treasure Bay Tunica and Treasure Bay Biloxi was not a "vessel". McAdow v. Promus Companies, Inc., 926 F.Supp. 93 (W.D.La.1996), involved an alleged seaman seeking damages under the Jones Act for injuries that occurred while he was working on the M/V......