Nase v. Teco Energy

• Decision Date: 03 December 2004
• Docket Number: No. CIV.A. 04-0838.,CIV.A. 04-0838.
• Citation: 347 F.Supp.2d 313
• Parties: Michael NASE, et al. v. TECO ENERGY, INC., et al.
• Court: U.S. District Court — Eastern District of Louisiana

347 F.Supp.2d 313

Michael NASE, et al. v. TECO ENERGY, INC., et al.

No. CIV.A. 04-0838.

United States District Court, E.D. Louisiana.

December 3, 2004.

COPYRIGHT MATERIAL OMITTED

Stuart Housel Smith, Michael G. Stag, Lloyd Stafford Jolibois, Jr., Smith & Stag, LLC, New Orleans, LA, for Plaintiffs.

Michael David Fisse, Jonathan H. Sandoz, Daigle Fisse, PLC, Covington, LA, John A. Scialdone, Balch & Bingham, LLP, Gulfport, MS, W. Brett Mason, Breazeale, Sachse & Wilson, Baton Rouge, LA, George J. Fowler, III, Robert R. Johnston, Fowler, Rodriguez & Chalos, Mark John Spansel, Robert Bernard Nolan, Francis V. Liantonio, Jr., Adams & Reese, James F. Holmes, Christovich & Kearney, LLP, Charles (Chuck) R. Lane, Gregory Carl Weiss, Tobin James Eason, Weiss & Eason, David W. Leefe, Nathan B. Abercrombie, Liskow & Lewis, New Orleans, LA, for Defendants.

ORDER AND REASONS

VANCE, District Judge.

The plaintiffs move the Court to remand the action to state court. For the following reasons, the Court GRANTS the plaintiffs' motion.

I. BACKGROUND

On February 17, 2004, Michael Nase, Beverly Nase, and Glen Wilson sued four groups of defendants in state court. One group consists of Michael Nase's and Glen Wilson's former employers: Teco Energy, Inc., TODCO Management Services, Inc., Transocean Offshore U.S.A., Inc., Transocean Offshore Ventures, Inc., The Offshore Drilling Company, and Cliffs Drilling Company. The second group includes drilling companies: Flint Energy Services, Inc., GlobalSantaFe Corporate Services, Inc., and Helmerich & Payne, Inc. The third group consists of drilling fluid manufacturers and suppliers: BJ Services Company, U.S.A., Halliburton Energy Services, Inc., M-I L.L.C., d/b/a M-I Drilling Fluids, Inc., and Schlumberger Technology Corporation. The fourth group consists of only Buddy Horton, the safety manager for Cliffs Drilling. (Def.'s Answer at ¶ 13 (R. Doc. 15).)

A. Michael Nase

Michael Nase alleges that from 1989 to 1995, he worked for Teco Energy, Inc. During that time, Teco explored, mined, and shipped phosphate. Phosphate is a Naturally Occurring Radioactive Material (NORM) that is hazardous, toxic, and carcinogenic. Nase alleges that he was exposed to the hazardous materials when he transported them. He asserts that Teco neither provided protective equipment, nor enforced any safety polices and procedures for handling the hazardous materials.

Nase also alleges that from 1995 to 1999, he worked as an oilrig mechanic. During that period, he allegedly inspected and maintained oilrig equipment in Venezuela under the direction of TODCO, The Offshore Drilling Company, and Cliffs Drilling Company, all of which are subsidiaries or related entities of Transocean Offshore U.S.A. or Transocean Offshore Ventures (collectively, Transocean).

In January of 2000, Nase was transferred to Abbeville, Louisiana. There, he worked as an oilrig mechanic on jack-up rigs in the Gulf of Mexico for TODCO. TODCO is a division or subsidiary of Transocean.

Nase alleges that the defendants engaged in the oil and gas exploration business in Venezuela, the Gulf of Mexico, or both. He asserts that the defendants had custody and control of oilfield equipment that contained Technologically Enhanced Naturally Occurring Radioactive Material (TENORM)¹ and other hazardous, toxic, and carcinogenic materials. He alleges that he was exposed to drilling muds, drilling fluids, and oil solvents with known toxicological properties when he worked under the supervision of the employer and drilling company defendants. BJ Services, Halliburton Energy Services, or Schlumberger Technology allegedly manufactured or supplied these substances to Nase's employers.

Nase alleges that he contracted non-Hodgkin's lymphoma as a result of his occupational exposure to NORM, TENORM, or other hazardous, toxic, and carcinogenic materials from oilfield drilling operations. Nase alleges that the defendants knew of his exposure and the consequences, and they failed to warn him of the attendant dangers. Nase alleges that he was injured while he worked on vessels engaged in commerce and navigation, and his duties included performing service work that entailed the inspection and maintenance of vessel appurtenances. Thus, Nase alleges that general maritime law and the Jones Act govern his claims. In the alternative, Nase alleges that he was a maritime worker entitled to compensation under the Longshore and Harbor Workers' Compensation Act (LHWCA).

B. Glen Wilson

Plaintiff Glen Wilson alleges that he worked as a mechanic, electrician, and maintenance supervisor for Transocean from February 1996 to August 2003. Transocean and the drilling company defendants engaged in oil and gas exploration in Venezuela, the Gulf of Mexico, or both. Wilson alleges that Transocean explored for, mined, and shipped NORM. He also alleges that Transocean and the drilling companies were in custody and control of oilfield equipment containing TENORM and other hazardous, toxic, and carcinogenic materials. He asserts that he was exposed to metal particulate, dust, fumes, oxides, or salts including beryllium, cadmium, chromium, mercury, or other naturally-occurring heavy metals with known toxicological properties. Wilson avers that he also exposed to drilling muds, drilling fluids, and oil solvents with known toxicological properties when he worked on oilrig equipment. BJ Services, Halliburton Energy Services, or Schlumberger Technology allegedly manufactured the drilling fluids and muds or supplied them to Wilson's employer.

Wilson alleges that he worked under the supervision of Transocean and the drilling company defendants and that he was exposed to TENORM and other hazardous, toxic, or carcinogenic materials as a result of using the defendants' equipment. He asserts that Transocean neither provided protective equipment nor enforced any health and environmental safety policies or procedures regarding hazardous materials.

Wilson alleges that he was diagnosed with bronchitis obliterans organizing pneumonia (BOOP) in May of 2001. Wilson asserts that he did not learn that occupational exposure to toxins may have caused his BOOP until June of 2003. Wilson alleges that the defendants knew of Wilson's exposure and the consequences of his exposure, and they failed to warn him of the dangers. Wilson alleges that he was a maritime worker entitled to compensation under the LHWCA.

C. Procedural History

On February 17, 2004, the plaintiffs sued the defendants in state court. They demand damages for, inter alia, loss of enjoyment of life, physical disability, pain and suffering, disruption of bodily cells and tissues, medical expenses, loss of family relationships, loss of consortium. The plaintiffs allege causes of action under Louisiana law, the Jones Act, LHWCA, and general maritime law. On March 23, 2004, the defendants removed the action to this court alleging jurisdiction under the Outer Continental Shelf Lands Act (OCSLA), or, in the alternative, complete diversity.

II. REMOVAL STANDARD

Generally, a defendant may remove a civil action filed in state court if a federal court would have had original jurisdiction. See 28 U.S.C. § 1441(a). If the defendant removes claims that "arise under" federal law, the defendant can remove the action without regard to the citizenship of the parties. Id. at § 1441(b). If, on the other hand, the defendant removes claims that do not "arise under" federal law, then removal is proper only if no defendant resides in the state of suit. Id. at § 1441(b). "The removing party bears the burden of establishing that federal jurisdiction exists" at the time of removal. De Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir.1995). Because the exercise of removal jurisdiction raises significant federalism concerns, the Court must construe the removal statutes strictly. See Eastus v. Blue Bell Creameries, L.P., 97 F.3d 100, 106 (5th Cir.1996). With these basic principles in mind, the Court turns to the plaintiffs' motion to remand.

III. MICHAEL NASE'S CLAIMS

On the face of his complaint, Nase asserts claims only under state law and maritime law. The defendants argue that removal is proper because Nase actually asserts a federal claim under the Outer Continental Shelf Lands Act. Furthermore, the defendants argue that removal under OCSLA is proper.

A. The Federal Nature of Nase's Claims

Nase asserts only state law, maritime, and Jones Act claims in his complaint. Despite the apparent absence of a federal claim from his complaint, the defendants argue that his claims are actually federal claims under OCSLA.

For OCSLA to apply to an action, the plaintiff need not specifically assert any claims under OCSLA in the complaint. Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150, 154-55 (5th Cir.1996); Lopez v. Air Logistics, LLC, 2002 WL 356305, at *2 (E.D.La. Mar. 5, 2002). OCSLA governs if the complaint satisfies its statutory requirements. Tennessee Gas, 87 F.3d at 154-55; Lopez, 2002 WL 356305, at *2. This means that the events must have occurred on the outer Continental Shelf, and the events must arise out of or relate to mineral production. 43 U.S.C. § 1331(a).

OCSLA defines the outer Continental Shelf to be "all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title, and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control." Id. Section 1301 defines lands beneath navigable waters to be "all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each [ ] State." Therefore, OSCLA applies to submerged lands bordering the United States that are more than three miles from the coast. Some of Nase's oilfield employment occurred more than three miles off the coast of Louisiana on the outer...