Rivera v. Orion Marine Grp. Inc.

• Decision Date: 23 December 2020
• Docket Number: Civil Action No. 2:20-CV-245
• Parties: Maria Isabel RIVERA, et al., Plaintiffs, v. ORION MARINE GROUP INC., et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

509 F.Supp.3d 926

Maria Isabel RIVERA, et al., Plaintiffs,

v.ORION MARINE GROUP INC., et al., Defendants.

Civil Action No. 2:20-CV-245

United States District Court, S.D. Texas, Corpus Christi Division.

Signed December 23, 2020

Baldemar F. Gutierrez, Attorney at Law, J. Javier Gutierrez, The Gutierrez Law Firm, Inc., Alice, TX, David L. Rumley, Wiginton Rumley Dunn & Blair LLP, Corpus Christi, TX, for Plaintiffs.

Frank Anthony Piccolo, Chaffe McCall LLP, Houston, TX, for Defendants Orion Marine Construction, Inc., Orion Marine Group, LLC.

Brian George Walker, Kent M. Adams, Wilson Elser Moskowitz Edelman & Dicker, LLP, Houston, TX, for Defendants Epic Midstream Holdings GP, Epic Midstream Holdings, LP, Epic Crude Holdings, LP.

Patrick W. Mizell, Matthew Charles Hoffman, Vinson Elkins LLP, Houston, TX, David Evans Keltner, Kelly Hart and Hallman LLP, Fort Worth, TX, for Defendants Enterprise Products Operating LLC, Enterprise Products Partners, LP.

ORDER FOR REMAND

DAVID S. MORALES, UNITED STATES DISTRICT JUDGE

Joel Rivera DeLeon, a seaman of more than fifteen years, suffered a tragic death when the vessel he was working on was consumed in an explosion and fire. (D.E. 1-2, p. 3–4). Seeking compensation for his estate and family members, Plaintiffs Maria Isabel Rivera, Cipriano Rivera, Jesus Rivera, Carlos Rivera, Lucero Rivera, Joel Rivera, and Efren Rivera ("Plaintiffs") elected to file this wrongful death and survival action in the County Court at Law No. 3, Nueces County, Texas. Id. at 1-8. Defendant EPIC Midstream Holdings, LP removed the case to this Court, arguing that the Court has federal enclave jurisdiction, federal officer jurisdiction under 28 U.S.C. § 1442, and federal question jurisdiction under 28 U.S.C. § 1331 pursuant to the Grable doctrine. (D.E. 1); see Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).

Pending before the Court are Plaintiffs' Motion to Remand for lack of federal subject matter jurisdiction and Supplemental Motion to Remand raising a procedural defect in the notice of removal. (D.E. 4; D.E. 7). After considering the state court petition (D.E. 1-2, p. 1–8), the notice of removal (D.E. 1), and the motions to remand (D.E. 4; D.E. 7), along with the accompanying briefs (D.E. 13; D.E. 14), the Court GRANTS Plaintiffs' motion to remand. (D.E. 4).¹ This action is REMANDED to the County Court at Law No. 3, Nueces County, Texas, the court from which it was removed.

I. Background

Defendants Orion Marine Group, LLC and Orion Marine Construction, Inc. (collectively, "Orion") entered into a contract with Defendants Epic Midstream Holdings, LP, Epic Midstream Holdings GP, LLC, and Epic Crude Holdings, LP (collectively, "EPIC") to perform dredging work at the EPIC Marine Terminal. (D.E. 1-2, p. 2–4). Relevant to the case at hand, Orion had seamen employees working on the dredging project aboard the Waymon L. Boyd ("Vessel"). (D.E. 4, p. 2). Defendants Enterprise Products Operating, LLC and Enterprise Products Partners, LP (collectively, "Enterprise") operate a pipeline located in Tule Lake Channel, which is within the Port of Corpus Christi Inner Harbor Security Zone. (D.E. 1, p. 3; D.E. 1-2, p. 4); 33 C.F.R. § 165.809. The United States Coast Guard is tasked with protecting the security zone. § 165.809. The Coast Guard's operational headquarters for this security zone is located at 249 Glasson Drive, Corpus Christi, Texas 78406. (D.E. 1-2, p. 17). The Coast Guard owns the real property at 249 Glasson Drive. Id.

On August 21, 2020, Enterprise's pipeline was struck during the dredging work Orion was performing for EPIC, resulting in an explosion that engulfed the Vessel. (D.E. 1-2, p. 4). Among those who died in the explosion was Joel Rivera DeLeon, one of the seamen employed by Orion aboard the Vessel working on the dredging project at the time of the explosion. Id. at 3–4.

Plaintiffs, who are Joel Rivera DeLeon's surviving wife and adult children, commenced this lawsuit against the defendants seeking damages for personal injury and wrongful death. Id. at 5. The Petition contains the following causes of action:

• Negligence, negligence per se, gross negligence, and recklessness against Orion "pursuant to the Jones Act, as well as principals of maritime negligence and unseaworthiness." Id. at 4;

• Negligence, negligence per se, gross negligence, and recklessness against EPIC. Id. at 4–5;

• Negligence, negligence per se, gross negligence, and recklessness against Enterprise. Id. at 5;

• Strict liability against Enterprise for failing to abide by its non-delegable duty to follow certain federal regulations. Id. at 5.²

EPIC, with the consent of Orion and Enterprise,³ removed the case to this Court, asserting that federal jurisdiction exists. (D.E. 1).

II. Legal Standard

A defendant seeking to remove any civil action from state court must include in its notice of removal "a short and plain statement of the grounds for removal." 28 U.S.C. § 1446(a). Because it purposely mirrors the pleading standard in Federal Rule of Procedure 8, "courts should apply the same liberal rules [to removal allegations] that are applied to other matters of pleading." Dart Cherokee Basin Operating Co., LLC v. Owens , 574 U.S. 81, 87, 135 S.Ct. 547, 190 L.Ed.2d 495 (2014) (alteration in original) (internal quotation marks omitted). As such, a notice of removal need only include plausible allegations of federal jurisdiction. Id. at 89, 135 S.Ct. 547 ; Gonzalez v. Limon , 926 F.3d 186, 188 (5th Cir. 2019). Upon a motion to remand, the burden is on the removing party to prove removal was proper. Tenn. Gas Pipeline v. Hous. Cas. Ins. Co. , 87 F.3d 150, 152 (5th Cir. 1996). To determine whether removal was proper, federal courts can look beyond the face of the complaint. Baccus v. Parrish , 45 F.3d 958, 960–61 (5th Cir. 1995).

III. Analysis

Plaintiffs' lawsuit contains claims against Orion pursuant to the Jones Act, 46 U.S.C. § 30104, and general maritime law, as well as state law claims against EPIC and Enterprise. (D.E. 1-2, p. 4–5). The Court will first address whether Plaintiffs' Jones Act claims can be removed in this case. Second, it will examine whether Plaintiffs' general maritime claims can be removed under 28 U.S.C. § 1333. Third, it will analyze whether Plaintiffs' maritime claims and state law claims can be removed under federal enclave jurisdiction, federal officer jurisdiction, or federal question jurisdiction pursuant to the Grable doctrine.

A. Plaintiffs' Jones Act claims against Orion are not removable.

It is well established that Jones Act claims cannot be removed from state court because the Jones Act "incorporates the general provisions of the Federal Employers' Liability Act, including 28 U.S.C. § 1445(a), which in turn bars removal." Lackey v. Atlantic Richfield Co. , 990 F.2d 202, 207 (5th Cir. 1993). Thus, Plaintiffs' Jones Act claims against Orion are not removable and must be remanded.

B. Plaintiffs' maritime tort claims against Orion are not removable under 28 U.S.C. § 1333 ; removal requires an independent basis of federal jurisdiction.

28 U.S.C. § 1333 grants federal district courts "original jurisdiction, exclusive of the courts of the States, of any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled." § 1333(1). Had Plaintiffs elected to file their maritime claims in this Court, there is no doubt that original jurisdiction would exist over the maritime claims. However, because Plaintiffs elected to file said claims in state court, they invoked the § 1333(1)'s "saving to suitors" clause, and the Court must determine its control here. See (D.E. 1-2, p. 1).

Historically, removing parties have not been permitted to remove maritime claims under § 1333, instead needing an independent basis of federal jurisdiction. See, e.g. , Figueroa v. Marine Inspection Servs. , 28 F. Supp. 3d 677, 680 (S.D. Tex. 2014). "This was the result whether the court relied on the language of the removal statute ( 28 U.S.C. § 1441 ) or the saving to suitors clause of the jurisdictional statute ( 28 U.S.C. § 1333 )." Id. Defendants raise the issue of whether the 2011 amendments to 28 U.S.C. § 1441 effect this traditional understanding. (D.E. 13, p. 12–14). The Court holds that it does not. See Figueroa , 28 F. Supp. 3d at 680–82 (finding that an independent basis of jurisdiction is required to remove maritime claims); see Rogers v. BBC Chartering Am., LLC , No. 4:13-CV-3741, 2014 WL 819400, at *1 (S.D. Tex. Mar. 3, 2014) ("It is well accepted that maritime cases filed in state court cannot be removed to federal court unless an independent basis for federal jurisdiction exists. Nothing in the 2011 amendments to the removal statutes altered this traditional understanding."); Belanger v. McDermott Int'l, Inc. , No. H-19-1591, 2019 WL 5595452, at *1–2 (S.D. Tex. Oct. 30, 2019).

Defendants, however, do not solely rely on § 1333 for removal. (D.E. 1). Defendants also argue that the Court has federal enclave jurisdiction, federal officer jurisdiction, and federal question jurisdiction under the Grable doctrine over the maritime claims and state law claims. Id. at 5–11. Plaintiffs, for their part, argue that the only possible basis for removal is if the federal district court has diversity jurisdiction under 28 U.S.C. § 1332. (D.E. 4, p. 17). The Court disagrees with Plaintiffs on this point, as the Fifth Circuit has not restricted removal to a certain type of federal jurisdiction; the requirement is simply that an independent basis for federal jurisdiction exists. See Barker v. Hercules Offshore, Inc. , 713 F.3d 208, 219 (5th Cir. 2013) (explaining that § 1333(l)'s saving to suitors clause exempts maritime claims from removal unless an independent basis of jurisdiction exists, "such as diversity of citizenship"). As such, because federal enclave jurisdiction, federal officer jurisdiction, or the Gr...