Mims v. Deepwater Corrosion Servs., Inc.

• Decision Date: 16 March 2015
• Docket Number: Civil Action No. H–14–0594.
• Parties: Christopher MIMS, Plaintiff, v. DEEPWATER CORROSION SERVICES, INC., Chevron USA, Inc., Gulf Offshore Logistics, LLC, and Topcor Offshore, LLC, Defendants.
• Court: U.S. District Court — Southern District of Texas

90 F.Supp.3d 679

Christopher MIMS, Plaintiff

v.DEEPWATER CORROSION SERVICES, INC., Chevron USA, Inc., Gulf Offshore Logistics, LLC, and Topcor Offshore, LLC, Defendants.

Civil Action No. H–14–0594.

United States District Court, S.D. Texas, Houston Division.

Signed March 16, 2015.

Kurt B. Arnold, Jonathan Kyle Findley, Arnold and Itkin LLP, Houston, TX, for Plaintiff.

Ronald E. Tigner, Karl A. Schulz, Cozen O'Connor, Michael D. Williams, Brown Sims PC, Marcus Grant Matthews, Phelps Dunbar, Houston, TX, for Defendants.

OPINION AND ORDER OF REMAND

MELINDA HARMON, District Judge.

The above referenced lawsuit seeks damages under general maritime law for severe hand injuries¹ allegedly suffered by Plaintiff Christopher Mims (“Mims”) when he was struck by an anode on or about June 25, 2011 while he was working for his employer, Insperity, on assignment on board a vessel owned, controlled or operated by Defendants while the vessel was in navigable waters alongside a platform owned by Chevron USA, Inc. Alternatively, if Defendant Deepwater Corrosion Services, Inc. (“Deepwater”) argues that it was Mims' employer or borrowed employer, Mims asserts claims for damages and punitive damages under the Jones Act for negligence and gross negligence and for an unseaworthy vessel, causing him physical pain, mental anguish, and physical impairment.² In addition, as a seaman, Mims asserts entitlement to maintenance and cure, but claims that Defendant arbitrarily and improperly refused to pay his medical bills, and therefore he seeks attorney's fees and punitive damages. The case was removed by Defendant Gulf Offshore Logistics, LLC (“Gulf”) from the 333rd Judicial District Court of Harris County, Texas, pursuant to (a) the current version of 28 U.S.C. § 1441³ and (b) 28 U.S.C. § 1446,⁴ with a full reservation of rights and defenses. Pending before the Court inter alia is Mims' motion to remand (instrument # 9).

Applicable Law

Removal and Remand

“ ‘Federal courts are courts of limited jurisdiction’ ”; they possess “ ‘only that power authorized by Constitution and by statute.’ ” Gunn v. Minton, ––– U.S. ––––, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013), quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Under 28 U.S.C. § 1441(a) any state court action over which federal courts would have original jurisdiction may be removed from state to federal court. Gasch v. Hartford Accident & Indemnity Co., 491 F.3d 278, 282 (5th Cir.2007) ; Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008) (“A district court has removal jurisdiction in any case where it has original jurisdiction.”). The original jurisdiction for purposes of removal may be federal question jurisdiction under 28 U.S.C. § 1331 (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.”) or diversity jurisdiction under 28 U.S.C. § 1332(a) (where there is complete diversity of citizenship between the sides and the amount in controversy exceeds the sum of $75,000.00, excluding interest and costs).⁵

The right to remove depends upon the plaintiff's pleading at the time of the petition for removal. Pullman Co. v. Jenkins, 305 U.S. 534, 537–38, 59 S.Ct. 347, 83 L.Ed. 334 (1939) ; Cavallini v. State Farm Mutual Auto Ins., 44 F.3d 256, 264 (5th Cir.1995) ; Ford v. Property & Cas. Ins. Co. of Hartford, No. Civ.A. H–09–1731, 2009 WL 4825222, *2 (S.D.Tex. Dec. 9, 2009).

The removing party bears the burden of showing that subject matter jurisdiction exists and that removal was proper. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002). Because removal deprives the state court of an action properly before it, removal raises significant federalism concerns and the statute is therefore to be strictly construed, with any doubt about the propriety of removal resolved in favor of remand. Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008).

Title 28 U.S.C. § 1333(1) provides, “The district courts shall have original jurisdiction, exclusive of the courts of the States, of ... [a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” “Federal admiralty jurisdiction exists giving a court jurisdiction over a dispute if the tort occurs on navigable waters⁶ and the tort bears a significant relationship to traditional maritime activity.” Sanders v. Placid Oil Co., 861 F.2d 1374, 1376–77 (5th Cir.1988), citing Foremost Ins. Co. v. Richardson,

457 U.S. 668, 674, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982). “[A] party seeking to invoke federal admiralty jurisdiction pursuant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of location and connection with maritime activity.” Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), cited by Venable v. Louisiana Workers' Compensation Corp., 740 F.3d 937, 944 (5th Cir.2013).⁷ For the first prong, the court asks whether the tort occurred on navigable waters or whether injury suffered on land was caused by a vessel on navigable water.Id., id. For the connection prong, the court examines “ ‘the general features of the type of incident involved,’ to determine whether the incident has ‘a potentially disruptive impact on maritime commerce’ ” and determines “whether the general character of the activity giving rise to the incident shows a substantial relationship to maritime activity.” Id. [citations omitted]; id.

Traditionally a plaintiff had three possible options for bringing an admiralty or maritime claim: he could bring his suit in admiralty jurisdiction in federal court under the grant of original and exclusive subject matter jurisdiction under § 1333, typically with no right to trial by jury; he could bring a diversity of citizenship claim in a federal district court, with the right to a jury if one party demands it, and he could limit that jurisdiction with a binding forum-selection clause; or he could assert his claim at law (at common law), grounded in tort or contract, under the saving to suitors clause in a state court.⁸ See 14A Charles Alan Wright, et al., Federal Practice and Procedure § 3672 (3d ed.1998).

Also traditionally the saving to suitors clause referenced in § 1333(1) has been interpreted to allow a plaintiff to file admiralty and maritime actions with claims “at law,” otherwise exclusively within the jurisdiction of the federal courts in state court. Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1542 (5th Cir.1991), citing 1 S. Friedell, Benedict On Admiralty, § 122 (6th ed.1991). If a plaintiff elects to bring admiralty and maritime claims in state court, the claims cannot be removed in the absence of diversity of citizenship unless there was another basis for jurisdiction besides admiralty. In re Eckstein Marine Service, LLC, 672 F.3d 310, 315–16 (5th Cir.2012), cert. denied, ––– U.S. ––––, 133 S.Ct. 96, 183 L.Ed.2d 735 (2012) ; see also Morris v. TE Marine Corp., 344 F.3d 439, 444 (5th Cir.2003) (General maritime law claims saved to suitors, by themselves, are not removable from state court.), citing Romero v. Int'l Terminal Operating Co., 358 U.S. 354, 377–79, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959) (superseded by statute on other grounds, 45 U.S.C. § 59 )(“saving to suitors” claims are not removable because maritime claims do not arise under the laws or Constitution of the United States and therefore do not present federal questions.); Barker v. Hercules Offshore, Inc., 713 F.3d 208, 219 (5th Cir.2013) (Although federal courts have original jurisdiction over maritime claims under 28 U.S.C. § 1331, when a plaintiff files suit with general maritime law claims in state court under the saving to suitors clause, there is no removal jurisdiction unless removal is based on another jurisdictional grant such as diversity of citizenship or an applicable federal statute, such as the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1349, which grants original jurisdiction.), citing In re Dutile, 935 F.2d 61, 63 (5th Cir.1991).

Jones Act, 46 U.S.C. § 30104

“A Jones Act⁹ claim is an in personam action for a seaman who suffers injury in the course of employment due to negligence of his employer, the vessel owner, or crew members.” Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). The Jones Act provides a remedy to personally injured seamen and their survivors of compensation for personal injury and/or wrongful death caused by the negligence of the seaman's employer, vessel owner, or crew members.

Generally Jones Act cases are not removable. 28 U.S.C. § 1445(a). Preston v. Grant Advertising, Inc., 375 F.2d 439 (5th Cir.1967).¹⁰ The Jones Act incorporates the Federal Employees Liability Act (“FELA”), 45 U.S.C. § 51 et seq., 46 U.S.C. § 30104. Pursuant to 28 U.S.C. § 1445, FELA actions are not removable and its incorporation into the Jones Act results in Jones Act claims not being subject to removal even if the parties are diverse.

Unseaworthy Vessel Under General Maritime Law

Unseaworthiness is a claim under general maritime law based on the vessel owner's duty to provide a seaworthy vessel, including appurtenances, gear and equipment, reasonably fit for its intended purpose of performing offshore operations.¹¹ Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.1992), citing Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th Cir.), cert. denied, 488 U.S. 968, 109 S.Ct. 497, 102 L.Ed.2d 533 (1988). The vessel does not have to be perfect or accident free. Id. This duty to provide a seaworthy vessel is “ ‘absolute and completely independent of the duty under the Jones Act to exercise reasonable care.’ ” Id., quoting Johnson, 845 F.2d at 1354. Thus “ ‘both the Jones Act and unseaworthiness remedies are additional to maintenance and cure.’ ” McBride, 768...