Rushing v. Pride Int'l Inc.

• Decision Date: 22 July 2011
• Docket Number: CIVIL ACTION NO. H-11-0294
• Parties: DONALD RUSHING, Plaintiff, v. PRIDE INTERNATIONAL, INC. & BP EXPLORATION & PRODUCTION, INC., Defendants.
• Court: U.S. District Court — Southern District of Texas

DONALD RUSHING, Plaintiff, v. PRIDE INTERNATIONAL, INC. & BP EXPLORATION & PRODUCTION, INC., Defendants.

CIVIL ACTION NO. H-11-0294

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION

Dated: July 22, 2011

MEMORANDUM AND ORDER

Pending before the Court is Plaintiff's Motion to Remand [Doc. # 4], to which Defendants have responded [Doc. # 10], and Plaintiff has replied [Doc. # 11], and Defendants filed two Sur-replies [Docs. # 12, # 14]. The Court also heard oral argument on this Motion on May 25, 2011, and ordered supplemental briefing. See Doc. # 18. Plaintiff has now filed its Supplemental Brief [Doc. # 20] and Defendants have filed a Supplemental Response [Doc. # 21]. Having considered the parties' briefing, the applicable legal authorities, and all matters of record, the Court denies Plaintiff's Motion to Remand [Doc. # 4].

I. BACKGROUND

This case arises out of injuries Plaintiff received while working aboard the BPTHUNDER 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 onto the Outer Continental Shelf.

Plaintiff alleges that, on or about February 4, 2010, he was injured while performing his normal duties aboard the THUNDER HORSE. Specifically, Plaintiff alleges that

He was working on top of a four foot platform. He went to remove a protector from the top of the pipe and hundreds of pounds of pressure released and caused him to fall with equipment falling on his leg and other parts of his bodies [sic] injuring him. Previously, he has been told by Defendants that each cap had a hole drilled in it so there was no pressure. This proved to be false.¹

On April 12, 2010, Plaintiff commenced this action by filing his Original Petition in the Galveston County Court at Law No. One. In his Original Petition, Plaintiff asserted claims against Defendants only under the Jones Act, 46 U.S.C. § 30104 et seq., and the general maritime law, 28 U.S.C. § 1337. On September 3, 2010, the court entered an agreed order transferring venue to Harris County, Texas.The case then proceeded in the 133rd Judicial District Court of Harris County, Texas.

On December 28, 2010, Plaintiff filed his First Amended Petition. In that new pleading, Plaintiff re-asserted his claims under the Jones Act and general maritime law. Additionally, for the first time, Plaintiff asserted that "Plaintiff has state law causes of action against BP arising under the Louisiana Civil Code and premises liability . . . ."²

On January 1, 2011, Defendant removed the case to federal court on the basis of federal question jurisdiction, contending that Plaintiff's claims as stated in his First Amended Petition arise under federal law, specifically, the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1301 et seq. On February 9, 2011, Plaintiff filed the instant Motion to Remand the case to state court. That Motion has been fully briefed and is now ripe for decision.

II. LEGAL STANDARD

"'Federal courts are courts of limited jurisdiction.'" Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)); 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. 2001). "'They possess only that power authorized by Constitution and statute, which is not to be expanded byjudicial decree.'" Rasul, 542 U.S. at 489 (quoting Kokkonen, 511 U.S. at 377 (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." Bourne v. Wal-Mart Stores, Inc., 582 F. Supp. 2d 828, 832 (E.D. Tex. 2008) (quoting Howery, 243 F.3d at 916 (citing Kokkonen, 511 U.S. at 377)); Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005); see also Boone v. Citigroup, Inc., 416 F.3d 382, 388 (5th Cir. 2005).

"The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); accord Gutierrez v. Flores, 543 F.3d 248, 251 (5th Cir. 2008). In the absence of diversity jurisdiction, federal question jurisdiction is required for removal. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). District courts have "original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Congress allows for removal of a case from state court to federal court when a plaintiff's complaint alleges a claim "arising under" federal law. 28 U.S.C. § 1441; Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6 (2003). 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 Campbell v. Stone Ins., Inc., 363 F.3d 556, 558 n.1 (5th Cir. 2004).

Generally, "[t]he presence or absence of federal-question jurisdiction isgoverned by the 'well-pleaded complaint rule,' which provides that federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint." Caterpillar, 482 U.S. at 392. "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 v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); accord Singh v. Duane Morris LLP, 538 F.3d 334, 337-38 (5th Cir. 2008). A plaintiff is the "master of his complaint" and may choose to allege only state law causes of action, even when federal remedies might also exist. See Elam v. Kansas City Southern Ry. Co., 635 F.3d 796, 803 (5th Cir. 2011) (citing Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 2008)). Thus, under the well-pleaded complaint rule, a plaintiff may avoid federal jurisdiction by exclusively relying on state law, even where a federal claim is also available. Caterpillar, 482 U.S. at 392; Elam, 635 F.3d at 803; Gutierrez, 543 F.3d at 251 ("Under the well-pleaded complaint rule, 'a federal court has original or removal jurisdiction only if a federal question appears on the face of the plaintiff's well-pleaded complaint; generally, there is no federal jurisdiction if the plaintiff properly pleads only a state law cause of action.'" (citing Bernhard v.Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir. 2008)).³

In the case at bar, Defendants do not dispute that Plaintiff's Original Petition did not on its face assert a question of federal law. Rather, Defendants assert that Plaintiff has voluntarily added a new claim in his First Amended Petition which renders this case removable. In his Motion to Remand, Plaintiff argues that this case must be remanded because Defendants did not timely remove the case to this Court and because Plaintiff's Jones Act claim is not removable. Defendants reply that they timely removed this case pursuant to 28 U.S.C. § 1446(b), and that Plaintiff's Jones Act claim is fraudulently pleaded because the THUNDER HORSE is not a vessel. Defendants further argue that Plaintiff's claims arise from his activities on a work platform attached to the Outer Continental Shelf, and, therefore, OCSLA applies.

III. ANALYSIS

A. Timeliness of Removal

The relevant statute, 28 U.S.C. § 1446(b), sets forth the following guidelines regarding removal of actions from state court:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable . . . .

28 U.S.C. § 1446(b) (emphasis added). The first paragraph of section 1446(b) applies to cases that are removable as initially filed; the second paragraph applies to cases that although not initially removable, later become removable. See Johnson v. Heublein, 227 F.3d 236, 241 (5th Cir. 2000); Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992). Under the second paragraph of section 1446(b), the thirty-day removal clock begins to run when a defendant receives a pleading, motion, or other paper that reveals on its face a basis for federal jurisdiction. Chapman, 969 F.2d at 164; Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 525 (5th Cir. 1994).

It is undisputed that Defendants did not file a notice of removal within thirty days of Plaintiff's Original Complaint. Nevertheless, Defendants argue that they timely and properly removed this case pursuant to the second paragraph of 28 U.S.C. § 1446(b) because the lawsuit was not initially removable when filed.⁴ The Court agrees. Plaintiff's Original Petition stated claims against Defendants for negligence under the Jones Act and for unseaworthiness and maintenance and cure benefits under general maritime law. "It is axiomatic that Jones Act suits may not be removed from state court because 46 U.S.C. § 688 (the Jones Act)...