The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRIAN C. MILLS CIVIL ACTION
VERSUS NO: 19-11893
BO-MAC CONTRACTS, LTD. SECTION: “H”(1)
ORDER AND REASONS
Before the Court is Plaintiff’s Motion to Remand (Doc. 5). For the
following reasons, the Motion is GRANTED.
BACKGROUND
Plaintiff Brian Mills brought this action in the Civil District Court for
the Parish of Orleans against his employer, Defendant Bo-Mac Contractors,
Ltd., for injuries he sustained while working aboard its vessel. Plaintiff’s state
court petition asserted claims for Jones Act negligence, unseaworthiness, and
maintenance and cure. Defendant removed the action to this Court on the basis
of diversity jurisdiction, arguing that Plaintiff’s Jones Act claim was
fraudulently plead. Plaintiff now moves for remand.
1
LEGAL STANDARD
Generally, a defendant may remove a civil state court action to federal
court if the federal court has original jurisdiction over the action.1 The burden
is on the removing party to show “that federal jurisdiction exists and that
removal was proper.”2 When determining whether federal jurisdiction exists,
courts generally consider “the claims in the state court petition as they existed
at the time of removal.”3
LAW AND ANALYSIS
Plaintiff filed this action in state court asserting claims for Jones Act
negligence, unseaworthiness, and maintenance and cure. Defendant removed
the action to this Court on the basis of diversity jurisdiction.4 In light of the
savings to suitors clause, however, Jones Act cases are not removable, even on
the basis of diversity.5 That said, the Fifth Circuit “has recognized that in
1 28 U.S.C. § 1441.
2 Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013) (quoting
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002)).
3 Manguno, 276 F.3d at 723.
4 The Court notes that Defendant failed to properly allege diversity of citizenship in
its notice of removal. Defendant alleged that it is a limited partnership and that its partners
are a Delaware limited liability company and a Texas corporation. It failed, however, to allege
the members of the limited liability company. For purposes of diversity jurisdiction, the
“citizenship of a LLC is determined by the citizenship of all of its members.” Harvey v. Grey
Wold Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008). Accordingly, the party invoking
federal jurisdiction “must list the citizenship of each member of each limited liability
company to properly allege diversity of citizenship.” Bona Fide Demolition & Recovery, LLC
v. Crosby Constr. Co. of Louisiana, Inc., No. 07–3115, 2009 WL 413504, at *1 (E.D. La. Feb.
18, 2009) (citations omitted). The Court need not address this issue, however, because
removal was improper in light of Plaintiff’s Jones Act claim.
5 Eddy v. Inland Bay Drilling & Workover, Inc., 784 F. Supp. 370, 373 (S.D. Tex. 1992);
see Lackey v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993).
2
certain circumstances defendants may pierce the pleadings to show that the
Jones Act claim has been fraudulently pleaded to prevent removal.”6
Accordingly, Defendant may remove this action only if it can show that
Plaintiff’s Jones Act claim is “baseless in law and in fact” and serves only “to
frustrate federal jurisdiction.”7 Defendant’s “burden of persuasion is a heavy
one.”8 “The district court must resolve disputed questions of fact from the
pleadings and affidavits in favor of the plaintiff. The removing party must
show that there is no possibility that plaintiff would be able to establish a cause
of action.”9
Defendant contends that Plaintiff cannot establish that he is a Jones Act
seaman, and there is, therefore, no possibility that he can succeed on his claim
under the Jones Act. The Jones Act does not provide a definition of a
“seaman.”10 However, the Supreme Court has promulgated two requirements
for an employee to achieve seaman status.11 First, “an employee’s duties must
contribute to the function of the vessel or to the accomplishment of its
mission.”12 Second, “a seaman must have a connection to a vessel in navigation
(or to an identifiable group of such vessels) that is substantial in terms of both
its duration and its nature.”13 As a general rule of thumb, “[a] worker who
6 Burchett v. Cargill, Inc., 48 F.3d 173, 175–76 (5th Cir. 1995).
7 Lackey, 990 F.2d at 207.
8 Id.
9 Id.
10 Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995).
11 Id. at 368.
12 Id.
13 Id.
3
spends less than about 30 percent of his time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act.”14
Plaintiff’s sworn declaration asserts that he worked for Defendant as a
welder/pile-driver beginning in March 2017 and was permanently assigned to
two of its vessels: first, the MIKE H and then the EMILY. The EMILY and the
MIKE H are crane barges used to transport materials along inland waterways.
Plaintiff was aboard the EMILY on August 2, 2018 when he was injured by the
EMILY’s crane. Plaintiff contends that his daily activities aboard the EMILY
included stabilizing and securing the barge for heavy lift operations, securing
the barge using ropes or cables, assisting the tug captain with navigation via
radio communication while positioned on the crane barge, performing deck
hand duties, and cleaning the barge’s living area. He states that he was also
given the responsibility of operating the control systems on the EMILY and
would control the EMILY’s spuds and cables in order to turn the crane barge
into the position necessary to make crane lifts. Plaintiff states that he boarded
the crane barge either by gangway or crew boat to begin work each morning.
He also states that he often drove the crew boat back and forth to the crane
barge.
The facts set forth in Plaintiff’s declaration are starkly contrasted by the
sworn facts provided by Defendant’s area manager, Dustin Talley. Talley
contends that Plaintiff was not assigned to any vessel and that the majority of
his job duties were performed on docks or other land-based sites. He states that
Plaintiff only boarded the EMILY for purposes related to his rigging or welding
14 Id.
4
work on shore and that he spent less than 30% of his work time aboard the
EMILY.
The facts set forth by Plaintiff easily suggest that he is a seaman, and
Defendant does nothing but offer contradictory facts. This Court must resolve
the parties’ factual disputes in favor of Plaintiff.15 Therefore, Defendant cannot
show that there is no possibility that Plaintiff would be able to establish that
he is a seaman. Accordingly, Plaintiffs Jones Act claim cannot be removed to
this Court, and remand is proper.
CONCLUSION
For the foregoing reasons, the Motion is GRANTED, and this matter is
REMANDED to the Civil District Court for the Parish of Orleans
New Orleans, Louisiana this 18th day of December, 2019.
G TRICHE (Lh
UNITED STATES DISTRICT JUDGE
5 Lackey, 990 F.2d at 207.