Moore v. Bis Salamis Inc.

• Decision Date: 20 September 2010
• Docket Number: Civil Action No. 1:09–CV–1008.
• Citation: 748 F.Supp.2d 598
• Court: U.S. District Court — Eastern District of Texas
• Parties: Reston L. MOORE, Plaintiff,v.BIS SALAMIS, INC., BP Exploration & Production, Inc., and Mobil Oil Exploration and Producing Southeast, Inc., Defendants.

748 F.Supp.2d 598

Reston L. MOORE, Plaintiff,

v.BIS SALAMIS, INC., BP Exploration & Production, Inc., and Mobil Oil Exploration and Producing Southeast, Inc., Defendants.

Civil Action No. 1:09–CV–1008.

United States District Court, E.D. Texas.

Sept. 20, 2010.

Charles Keith Kebodeaux, Attorney at Law, Casey Hugh Hargroder, Law Office of Keith Kebodeaux, Beaumont, TX, Kurt B. Arnold, Arnold & Itkin, LLP, Houston, TX, for Plaintiff.Thomas J. Smith, James Terry Bailey, Galloway Johnson Tompkins Burr & Smith, Richard Austin Schwartz, Schwartz Junell Greenberg & Oathout, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

MARCIA A. CRONE, District Judge.

Pending before the court is Plaintiff Reston Moore's (“Moore”) Motion to Remand (# 8), wherein Moore seeks remand to state court of his action against Defendants Bis Salamis, Inc. (“BSI”), BP Exploration & Production, Inc. (“BP”), and Mobil Oil Exploration and Producing Southeast, Inc. (“Mobil”) (collectively, “Defendants”). Having reviewed the motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that remand is not warranted.

I. Background

BP and Mobil jointly own and operate the “Thunder Horse,” a floating offshore oil production facility located in the Gulf of Mexico. The Thunder Horse consists of a large production platform that floats atop four large, buoyant columns that are partially submerged beneath the surface. It is connected to the sea floor 6,000 feet below by a complex mooring system along with various pipelines and other drilling equipment that extend downward from the platform into the Outer Continental Shelf.

BSI is an independent contractor hired to perform various maintenance services on the Thunder Horse. BSI employed Moore as part of its workforce on the platform. Moore alleges that, on or about July 17, 2009, while performing his duties aboard the Thunder Horse, he was exposed to a chemical skin irritant that caused him to suffer a severe allergic reaction. Moore received initial care from onboard medical staff, who purportedly advised him that he should return to shore for further treatment. Nevertheless, Moore claims that his foreman instructed him to return to work immediately. The following day, while allegedly still suffering from the effects of the chemical exposure, Moore claims that he tripped on a piece of metal pipe protruding into a walkway and fell, injuring his neck, back, and right knee.

On November 6, 2009, Moore filed his original petition in the 60th Judicial District Court of Jefferson County, Texas, asserting claims against BSI, BP, and Mobil for unseaworthiness, maintenance and cure, and negligence pursuant to the Jones Act and general maritime law. On December 16, 2009, BSI removed the case to federal court on the basis of federal question jurisdiction, contending that Moore's claims arise under federal law, specifically the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1301 et seq. On January 1, 2010, Moore filed the instant motion to remand the case to state court.¹

II. AnalysisA. Removal and Remand

“ ‘Federal courts are courts of limited jurisdiction.’ ” Rasul v. Bush, 542 U.S. 466, 489, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994)); accord Johnson v. United States, 460 F.3d 616, 621 n. 6 (5th Cir.2006); McKee v. Kansas City S. Ry. Co., 358 F.3d 329, 337 (5th Cir.2004); Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir.), cert. denied, 534 U.S. 993, 122 S.Ct. 459, 151 L.Ed.2d 377 (2001). “ ‘They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree.’ ” Rasul, 542 U.S. at 489, 124 S.Ct. 2686 (quoting Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673 (citations omitted)). The court “must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum.” Howery, 243 F.3d at 916 (citing Kokkonen, 511 U.S. at 377, 114 S.Ct. 1673); see also Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir.2005). In an action that has been removed to federal court, a district court is required to remand the case to state court if, at any time before final judgment, it determines that it lacks subject matter jurisdiction. 28 U.S.C. § 1447(c); Grupo Dataflux v. Atlas Global Grp., L.P., 541 U.S. 567, 571, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); McDonal v. Abbott Labs., 408 F.3d 177, 182 (5th Cir.2005).

When considering a motion to remand, “[t]he removing party bears the burden of showing that federal jurisdiction exists and that removal was proper.” Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002); accord DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir.2008); In re Hot–Hed Inc., 477 F.3d 320, 323 (5th Cir.2007); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir.2005); Boone, 416 F.3d at 388; Garcia v. Koch Oil Co. of Tex. Inc., 351 F.3d 636, 638 (5th Cir.2003). “ ‘This extends not only to demonstrating a jurisdictional basis for removal, but also necessary compliance with the requirements of the removal statute.’ ” Roth v. Kiewit Offshore Servs., Ltd., 625 F.Supp.2d 376, 382 (S.D.Tex.2008) (quoting Albonetti v. GAF Corp. Chem. Grp., 520 F.Supp. 825, 827 (S.D.Tex.1981)); accord Crossroads of Tex., L.L.C. v. Great–West Life & Annuity Ins. Co., 467 F.Supp.2d 705, 708 (S.D.Tex.2006); Smith v. Baker Hughes Int'l Branches, Inc., 131 F.Supp.2d 920, 921 (S.D.Tex.2001). “Only state-court actions that originally could have been filed in federal court may be removed to federal court by the defendant.” Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (citing 28 U.S.C. § 1441(a)); see Aetna Health Inc. v. Davila, 542 U.S. 200, 207, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004); Halmekangas v. State Farm Fire & Cas. Co., 603 F.3d 290, 294 (5th Cir.2010); Gutierrez, 543 F.3d at 251. “The removal statute ties the propriety of removal to the original jurisdiction of the federal district courts.” Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir.1997); see 28 U.S.C. § 1441(a). Because removal raises significant federalism concerns, the removal statutes are strictly and narrowly construed, with any doubt resolved against removal and in favor of remand. See Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108–09, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Gutierrez, 543 F.3d at 251; Gasch v. Hartford Accident & Indem. Co., 491 F.3d 278, 281–82 (5th Cir.2007); In re Hot–Hed Inc., 477 F.3d at 323; Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir.2002); Beiser v. Weyler, 284 F.3d 665, 674 (5th Cir.2002).

Federal courts have subject matter jurisdiction and are authorized to entertain causes of action only where a question of federal law is involved or where there is diversity of citizenship between the parties and the amount in controversy exceeds $75,000.00, exclusive of interest and costs. See 28 U.S.C. §§ 1331, 1332; Arbaugh v. Y & H Corp., 546 U.S. 500, 513, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 89, 126 S.Ct. 606, 163 L.Ed.2d 415 (2005); Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); Halmekangas, 603 F.3d at 294; McDonal, 408 F.3d at 181; Howery, 243 F.3d at 914–15. In order to determine whether jurisdiction is present in a removed action, the claims set forth in the state court petition are considered as of the date of removal. See Wisconsin Dep't of Corr. v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998); Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 n. 2 (5th Cir.2007); McGowin v. ManPower Int'l, Inc., 363 F.3d 556, 558 n. 1 (5th Cir.2004); Manguno, 276 F.3d at 723; Howery, 243 F.3d at 916; Gebbia v. Wal–Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir.2000).

A federal question arises if a substantial, disputed question of federal law is presented on the face of the plaintiff's “well-pleaded complaint.” See Davila, 542 U.S. at 207, 124 S.Ct. 2488; Caterpillar Inc., 482 U.S. at 392, 107 S.Ct. 2425; Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Gutierrez, 543 F.3d at 251–52; McAteer v. Silverleaf Resorts, Inc., 514 F.3d 411, 416 (5th Cir.), cert. denied, 553 U.S. 1080, 128 S.Ct. 2884, 171 L.Ed.2d 813 (2008); Hoskins v. Bekins Van Lines, 343 F.3d 769, 772 (5th Cir.2003). “Federal question jurisdiction under § 1331 extends to cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.” Frank, 128 F.3d at 922; see Singh v. Duane Morris LLP, 538 F.3d 334, 337–38 (5th Cir.2008); MSOF Corp. v. Exxon Corp., 295 F.3d 485, 490 (5th Cir.), cert. denied, 537 U.S. 1046, 123 S.Ct. 623, 154 L.Ed.2d 519 (2002). “Under the ‘well pleaded complaint’ rule, ... a movant may not remove a case to federal court unless the plaintiff's complaint establishes that the cause of action arises under federal law.” Frank, 128 F.3d at 922 (citing Franchise Tax Bd. v. Construction Laborers Vacation Trust, 463 U.S. 1, 10–11, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983)); accord Arana v. Ochsner Health Plan, 338 F.3d 433, 437 (5th Cir.2003), cert. denied, 540 U.S. 1104, 124 S.Ct. 1044, 157 L.Ed.2d 889 (2004); Howery, 243 F.3d at 916 n. 12. “As a general rule, absent diversity jurisdiction, a case will not be removable if the complaint does not affirmatively allege a federal claim.” Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). Pursuant to the well-pleaded complaint rule, a case does not arise under federal law and, thus, is not removable if the...