Alexis v. Hilcorp Energy Company

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

CECELE ALEXIS CIVIL ACTION

VERSUS NO. 20-2289

HILCORP ENERGY COMPANY, SECTION M (4)

HOT ENERGY SERVICES, INC., and

BONVILLIAN MARINE SERVICE,

INC.

ORDER & REASONS

Before the Court is a motion by plaintiff Cecele Alexis to remand this matter to the 25th

Judicial District Court, Parish of Plaquemines, State of Louisiana.1 Defendant Hilcorp Energy

Company responds in opposition.2 Having considered the parties’ memoranda, the record, and the

applicable law, the Court GRANTS the motion finding that, when the plaintiff invokes the savings-

to-suitors clause, general maritime law claims are not removable without another independent

basis for federal subject-matter jurisdiction, and diversity subject-matter jurisdiction is not present

in this case because the Louisiana defendants are properly joined.

I. BACKGROUND

This matter concerns damage to Alexis’s oyster lease. Alexis, a Louisiana citizen, owns

two Louisiana state oyster leases in the navigable waters of Lake Grand Ecaille in Plaquemines

Parish (“the leases”).3 She and her son, Gleason Alexis, have invested time and money in

cultivating and harvesting oysters from the leases as a family business.4

1 R. Doc. 11.

2 R. Doc. 12.

3 R. Doc. 1-2 at 20.

4 Id.

Hilcorp, a corporate citizen of Texas,5 is an oil-and-gas exploration-and-production

company.6 It owns the rights to extract minerals from a Louisiana state oil lease on the navigable

waters of Lake Washington Field in Plaquemines Parish (“the well”).7

Alexis alleges that during the week of June 2, 2019, Hilcorp hired the push barge Miss

Lucy to service the well.8 The Miss Lucy was owned and operated by defendant Hot Energy

Services, Inc., which is a corporate citizen of Louisiana.9 According to Alexis, the Miss Lucy

accessed the well via a route through a shallow pipeline canal and then crossed the northern portion

of one of her leases.10 Alexis alleges that Hilcorp knew that (1) the route crossed her lease and (2)

the water in the pipeline canal and the oyster lease was too shallow for the Miss Lucy, which had

a draft of over five feet, not including the depth of the propeller.11

Additionally, Alexis alleges that on July 9, 2019, Hilcorp hired the push barge Lady Crystal

to assist in the plugging and abandonment of the well.12 The Lady Crystal was owned and operated

by defendant Bonvillian Marine Services, Inc., a corporate citizen of Louisiana.13 Alexis alleges

that the Lady Crystal used a route nearly identical to the one used by the Miss Lucy, and that

Hilcorp was again aware that (1) the route crossed her lease and (2) the water in the pipeline canal

and the oyster lease was too shallow for the Lady Crystal, which had a draft of over five-and-a-

half feet, not including the depth of the propeller.14 Alexis further alleges that the Lady Crystal,

in the course of performing Hilcorp’s work, crossed over the southern tip of her lease and made

5 R. Doc. 1 at 3.

6 R. Doc. 1-2 at 21.

7 Id.

8 Id.

9 Id.

10 Id. at 21-22.

11 Id. at 22.

12 Id.

13 Id. at 21.

14 Id. at 22.

multiple passes down the shallow pipeline canal adjacent to her lease, which resulted in sediment

flowing out of the pipeline canal and onto her property.15

Alexis alleges that Hilcorp, Hot Energy, and Bonvillian Marine, “physically cut through

[her] lease or entered into the 500 foot halo surrounding the lease that defines the area requiring

waterbottom review.”16 She alleges that these trespasses damaged the leases by creating a soft

sediment layer that can hinder oyster growth.17 Alexis alleges claims for trespass and negligence

under Louisiana state law and the general maritime law.18 She seeks damages and an injunction

preventing Hilcorp from further prop washing on her leases without proper governmental

authorization and notice to her.19

Hilcorp removed Alexis’s case to this Court alleging maritime and diversity subject-matter

jurisdiction.20 Hilcorp maintains that Alexis invoked the general maritime law of the United States

by alleging that the defendants’ “traditional maritime activity” caused her injuries.21 Hilcorp

argues that Hot Energy and Bonvillian Marine are improperly joined, and thus, their citizenship is

irrelevant to the diversity subject-matter jurisdiction analysis.22 Hilcorp says that Alexis has not

stated a claim of negligence against Hot Energy and Bonvillian Marine because the allegations are

general and conclusory and do not clearly assert that they owed her a duty, which they breached,

causing her damage.23 Hilcorp also argues that Alexis cannot prevail on her trespass claim against

15 Id. at 23.

16 Id.

17 Id. Alexis also alleges that defendants are liable under Louisiana Civil Code articles 667-69, which pertain

to legal servitudes, and that defendants “unjustly enriched themselves to [her] detriment.” Id. at 24-25. These

allegations will not be discussed herein because Alexis does not address these claims in the motion to remand.

18 Id. at 24-25.

19 Id. at 24-26.

20 R. Doc. 1.

21 Id. at 2-3.

22 Id. at 3-7.

23 Id. at 4.

the non-diverse defendants because she does not allege that they intended any actions that harmed

her.24

II. PENDING MOTION

Alexis argues that this matter must be remanded because a maritime case filed in state court

pursuant to the savings-to-suitors clause in 28 U.S.C. § 1331 is not removable absent another

independent ground for federal subject-matter jurisdiction.25 Alexis further argues that this Court

lacks diversity subject-matter jurisdiction because she and defendants Hot Energy and Bonvillian

Marine are all Louisiana citizens and she adequately stated claims against Hot Energy and

Bonvillian Marine for negligence and trespass.26

In opposition, Hilcorp argues that general maritime law claims brought in state court are

removable under the 2011 amendments to 28 U.S.C § 1441(b).27 While acknowledging that the

Fifth Circuit has yet to decide this question, Hilcorp argues that the Seventh Circuit and some

district courts within the Fifth Circuit have found cases involving such claims to be removable.28

Further, Hilcorp argues that Hot Energy and Bonvillian Marine are improperly joined because

Alexis did not adequately allege negligence or trespass claims against them.29 And, Hilcorp

maintains, as a result, complete diversity exists.

III. LAW & ANALYSIS

A. Remand Standard

A defendant may remove from state court to the proper United States district court “any

civil action brought in a State court of which the district courts of the United States have original

24 Id. at 5-6.

25 R. Doc. 11-1 at 2-3.

26 Id.

27 The 2011 amendments to § 1441(b) were enacted by the Federal Courts Jurisdiction and Venue

Clarification Act of 2011, Pub. L. No. 112-63, 125 Stat. 758.

28 R. Doc. 12 at 1-4.

29 Id. at 4-8.

jurisdiction.” 28 U.S.C. § 1441(a). Subject-matter jurisdiction must exist at the time of removal

to federal court, based on the facts and allegations contained in the complaint. St. Paul Reins. Co.

v. Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (“[J]urisdictional facts must be judged as of

the time the complaint is filed ....”). Because federal courts have limited jurisdiction, the removal

statute is strictly construed, and any ambiguities are construed against removal and in favor of

remand to state court. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.

2002). The party seeking removal has the burden of establishing “that federal jurisdiction exists

and that removal was proper.” Id.

B. Removability of General Maritime Law Claims

Federal courts have original jurisdiction over general maritime law claims. 28 U.S.C. §

1333. Traditionally, general maritime law claims filed in state court pursuant to the savings-to-

suitors clause were non-removable. See In re Dutile, 935 F.2d 61, 63 (5th Cir. 1991). Hilcorp

argues that the 2011 amendments to 28 U.S.C. § 1441 changed the law so that general maritime

law claims are now removable.

Section 1441(a), as amended, currently states:

Except as otherwise expressly provided by Act of Congress, any civil action

brought in a State court of which the district courts of the United States have

original jurisdiction, may be removed by the defendant or the defendants, to the

district court of the United States for the district and division embracing the place

where such action is pending.30

28 U.S.C. § 1441(a). Section 1333, the statute granting admiralty jurisdiction to the federal courts,

states in pertinent part that “[t]he district courts shall have original jurisdiction, exclusive of the

courts of the States, of: (1) Any civil case of admiralty or maritime jurisdiction, saving to suitors

30 The prior version of § 1441(a) was identical to the current version, except it included this last

sentence: “For purposes of removal under this chapter, the citizenship of defendants sued under fictitious

names shall be disregarded.”

in all cases all other remedies to which they are otherwise entitled.” 28 U.S.C. § 1333(1). Hilcorp

argues that these statutes, when read together, mean that general maritime law claims are

removable under § 1441 because federal courts have original jurisdiction over such claims under

§ 1333.

Prior to the 2011 amendments, § 1441(b) read:

Any civil action of which the district courts have original jurisdiction founded on a

claim or right arising under the Constitution, treaties or laws of the United States

shall be removable without regard to the citizenship or residence of the parties. Any

other such action shall be removable only if none of the parties in interest properly

joined and served as defendants is a citizen of the State in which such action is

brought.

The 2011 amendments removed this subsection (b) and replaced it with provisions related to

removal based on diversity of citizenship. See 28 U.S.C. § 1441(b). Because general maritime

law claims do not arise under the Constitution, treaties, or laws of the United States for the

purposes of federal question subject-matter jurisdiction under § 1331, see Romero v. Int’l Terminal

Operating Co., 358 U.S. 354, 378 (1959), the Fifth Circuit had held that general maritime law

claims were not removable under the pre-2011 version of § 1441, without some other basis for

subject matter jurisdiction. Dutile, 935 F.2d at 63. The court reasoned that general maritime law

claims were subsumed in the phrase “[a]ny other such action” of the old subsection (b)’s second

sentence and construed this language as an “Act of Congress” that “expressly provided” that

general maritime law claims were not removable under § 1441(a). Id. at 62-63.

As explained above, the current version of § 1441 states that a defendant may remove a

civil action over which the federal district court has “original jurisdiction,” and omits the pre-2011

amendments modifier that the “original jurisdiction” be “founded on a claim or right arising under

the Constitution, treaties or laws of the United States.” The current version of the statute also

omits what was the second sentence of former § 1441(b): “Any other such action shall be

removable only if none of the parties in interest properly joined and served as defendants is a

citizen of the State in which such action is brought.”

In Ryan v. Hercules Offshore, Inc., 945 F. Supp. 2d 772 (S.D. Tex. 2013), the court

reasoned that the removal of the “any other such action” language of § 1441(b) leads to the

conclusion that § 1441 no longer prohibits the removal of general maritime law claims brought in

state court, and such claims are removable to federal court because they are within the court’s

original jurisdiction under § 1333. Certain other district courts have followed Ryan, holding that

under the current version of § 1441, general maritime law claims are freely removable even in the

absence of an independent basis for federal court subject-matter jurisdiction, such as diversity

under 28 U.S.C. § 1332 or federal question under 28 U.S.C. § 1331. See Costanza v. Accutrans,

Inc., 2017 WL 4785004, at *5 (E.D. La. Oct. 24, 2017) (citing Provost v. Offshore Service Vessels,

LLC, 2014 WL 2515412, at *2-5 (M.D. La. June 4, 2014), and Harrold v. Liberty Ins.

Underwriters, Inc., 2014 WL 688984, at *4 (M.D. La. Feb. 20, 2014), without analysis of the

issue); Exxon Mobil Corp. v. Starr Indem. & Liab. Co., 2014 WL 2739309 (S.D. Tex. June 17,

2014); Carrigan v. M/V AMC Ambassador, 2014 WL 358353 (S.D. Tex. Jan. 31, 2014); Bridges

v. Phillips 66 Co., 2013 WL 6092803 (M.D. La. Nov. 19, 2013); Wells v. Abe's Boat Rentals Inc.,

2013 WL 3110322 (S.D. Tex. June 18, 2013).

The Fifth Circuit has observed, however, that “[t]he vast majority of district courts

considering this question have maintained that such lawsuits are not removable.” Sangha v.

Navig8 Ship Mgmt. Private Ltd., 882 F.3d 96, 100 (5th Cir. 2018) (citing Langlois v. Kirby Inland

Marine, LP, 139 F. Supp. 3d 804, 809-10 (M.D. La. 2015) (collecting cases), but stating that “there

is no binding precedent from this circuit” since “[t]he Fifth Circuit has not yet spoken directly on

this issue,” quoting Riverside Constr. Co. v. Entergy Miss., Inc., 626 F. App’x 443, 447 (5th Cir.

2015)). To be sure, many sections of this Court have disagreed with the holding and rationale of

Ryan. See Gregoire v. Enter. Marine Servs., LLC, 38 F. Supp. 3d 749 (E.D. La. 2014) (Duval, J.);

see also Great N. & S. Navigation Co. LLC French Am. Line v. Certain Underwriters at Lloyd’s

London, 2019 WL 1417305 (E.D. La. Mar. 29, 2019) (Lemelle, J.); Fleming v. New Orleans Cold

Storage & Warehouse Co., 2018 WL 2980067 (E.D. La. June 14, 2018) (Lemmon, J.); Arrington

v. Seaonus Stevedoring-New Orleans, LLC, 2017 WL 4803933 (E.D. La. Oct. 25, 2017) (Lemelle,

J.); Darville v. Tidewater Marine Serv., Inc., 2016 WL 1402837 (E.D. La. Apr. 11, 2016) (Brown,

J.); Plaqueimes Par. v. BEPCO, L.P., 2015 WL 4097062 (E.D. La. July 7, 2015) (Brown, J.);

Plaquemines Par. v. Palm Energy Offshore, LLC, 2015 WL 3404032 (E.D. La. May 26, 2015)

(Fallon, J.); Alexander v. Magnolia Marine Transp. Co., 2015 WL 1298394 (E.D. La. Mar. 19,

2015) (Duval, J.); Plaquemines Par. v. Rozel Operating Co., 2015 WL 403791 (E.D. La. Jan. 29,

2015) (Africk, J.); Par. of Plaquemines v. Total Petrochemical & Ref. USA, Inc., 64 F. Supp. 3d

872 (E.D. La. 2014) (Zainey, J.); Yavorsky v. Felice Navigation, Inc., 2014 WL 5816999 (E.D. La.

Nov. 7, 2014) (Lemmon, J.); Bisso Marine Co. v. Techcrane Int’l, LLC, 2014 WL 4489618 (E.D.

La. Sept. 10, 2014) (Feldman, J.); Riley v. LLOG Explor. Co., 2014 WL 4345002 (E.D. La. Aug.

28, 2014) (Milazzo, J.); Henry J. Ellender Heirs, LLC v. Exxon Mobil Corp., 42 F. Supp. 3d 812,

820 (E.D. La. 2014) (Fallon, J.); Grasshopper Oysters, Inc. v. Great Lakes Dredge & Dock, LLC,

2014 WL 3796150 (E.D. La. July 29, 2014) (Berrigan, J.); Perrier v. Shell Oil Co., 2014 WL

2155258 (E.D. La. May 22, 2014) (Zainey, J.); Barry v. Shell Oil Co., 2014 WL 775662 (E.D. La.

Feb. 25, 2014) (Zainey, J.). These courts focused on the “savings to suitors” clause in § 1333,

examined the history of maritime removal jurisdiction, and concluded that the 2011 amendments

to § 1441 did not change the traditional non-removability of general maritime law claims. As the

Gregoire court reasoned:

Under Section 1441(a), removal of civil actions is permitted where the federal

district court has “original jurisdiction” over the claim. Section 1333 provides

jurisdiction to the federal court exclusively for in rem actions and concurrently with

the state courts for in personam actions; without more, removal of maritime cases

instituted in state courts appears to apply, superficially, under Section 1441(a). Yet

Congress carefully wrought Section 1333 to balance interests of federalism and

recognize historical development of maritime law in state courts by including the

saving to suitors clause. Maritime claims initiated in state court are, by definition,

brought at common law under the saving to suitors clause as an “exception” to the

original jurisdiction of the federal courts. If state court maritime cases were

removable under Section 1333, the effect would be tantamount to considering all

maritime law claims as part of federal question jurisdiction under Section 1331,

eviscerating the saving to suitors clause and undermining the holding and policies

discussed at length in Romero. That the saving to suitors clause does not guarantee

a non-federal forum but only common law remedy, a rule oft cited by the Fifth

Circuit, does not lead to the conclusion that the suit is invariably removable. As

already established, maritime law claims brought under the saving to suitors clause

in state court have traditionally required some other basis of jurisdiction

independent of Section 1333 to be removable, supported by practical reasons and

sound policy.

Congress’ 2011 amendments to Section 1441 do not alter this conclusion. Though

Dutile determined that “[a]ny other such action” under Section 1441(b) was an “Act

of Congress” prohibiting removal of saving to suitors clause cases absent diversity

and out-of-state defendants, the removal of this language in no way modified the

long-standing rule that general maritime law claims require some other non-

admiralty source of jurisdiction to be removable. Congress has not given any

indication that it intended to make substantive changes to removal of admiralty

matters, and the Fifth Circuit has not indicated otherwise. Despite the present

debate over formalistic administration of admiralty law in the context of removal

jurisdiction versus adherence to traditional admiralty procedure, this Court is bound

to follow the clear precedent before it. Therefore, this Court finds that general

maritime law claims are not removable under Section 1333 as part of the original

jurisdiction of the court and require an independent basis of jurisdiction.

In determining whether remand is appropriate, the [c]ourt must “scrupulously

confine ... jurisdiction to the precise limits which the statute has defined,” and

construe doubts concerning removal in favor of remand. …

38 F. Supp. 3d at 764-65 (footnotes omitted). The Gregoire court concluded, then, that the

plaintiff’s general maritime law claims were not removable because the defendants did not offer

any other valid basis for federal subject-matter jurisdiction, such as diversity.

After examining these competing lines of authority, this Court finds that the reasoning of

Gregoire is persuasive and, like many other sections of this Court, holds that the 2011 amendments

to § 1441 did not change the traditional non-removability of general maritime law claims initiated

in state court and that such claims are not removable without an independent basis of subject-

matter jurisdiction. This Court is aware that the Seventh Circuit in Lu Junhong v. Boeing Co, 792

F.3d 805, 817-18 (7th Cir. 2015), held that “§ 1333(1) supplies admiralty jurisdiction” over a case

removed from state court, even though it recognized that the savings-to-suitors clause may forbid

removal of admiralty claims filed in state court; the federal appellate court simply declined to

consider the issue because the plaintiffs did not mention the clause or make the argument. Id.

Here, Alexis specifically invokes the savings-to-suitors clause, and the weight of the persuasive

authority holds that this case is not removable absent another basis of federal subject-matter

jurisdiction independent of § 1333.

B. Improper Joinder

The other basis of federal subject-matter jurisdiction invoked by Hilcorp is diversity.

Pursuant to § 1332, a federal court may exercise diversity subject-matter jurisdiction “over a civil

action between citizens of different States if the amount in controversy exceeds $75,000.” Flagg

v. Stryker Corp., 819 F.3d 132, 135 (5th Cir. 2016). There must be complete diversity between the

parties, meaning that no plaintiff may be a “citizen of the same State as any defendant.” Id. at 136.

Section 1441(b)(2) permits a defendant to “remove a case from state court to federal court

on the basis of diversity jurisdiction so long as none ‘of the parties in interest properly joined and

served as defendants is a citizen of the State in which such action is brought.’” Wolf v. Deutsche

Bank Nat’l Tr. Co. for Am. Home Mortg. Inv. Tr. 2007-1, 745 F. App’x 205, 207 (5th Cir. 2018)

(quoting 28 U.S.C. § 1441(b)(2); citing Alviar v. Lillard, 854 F.3d 286, 289 (5th Cir. 2017)).

However, the lack of complete diversity will not render an action non-removable if a party has

been improperly joined. Id. Instead, if a “plaintiff improperly joins a non-diverse defendant, then

the court may disregard the citizenship of that defendant, dismiss the non-diverse defendant from

the case, and exercise subject matter jurisdiction over the remaining diverse defendant.” Flagg,

819 F.3d at 136. The defendant can demonstrate improper joinder by showing either: “‘(1) actual

fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of

action against the non-diverse party in state court.’”31 Mumfrey v. CVS Pharmacy, Inc., 719 F.3d

392, 401 (5th Cir. 2013) (quoting McKee v. Kan. City S. Ry. Co., 358 F.3d 329, 333 (5th Cir.

2004)). The improper joinder doctrine is a “‘narrow exception’ to the rule of complete diversity,

and the burden of persuasion on a party claiming improper joinder is a ‘heavy one.’” Campbell v.

Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007) (citing McDonal v. Abbott Labs., 408 F.3d 177,

183 (5th Cir. 2005)). “Under the second prong (inability to establish a cause of action), the court

must determine whether ‘there is arguably a reasonable basis for predicting that state law might

impose liability.’” Id. (quoting Ross v. Citifin., Inc., 344 F.3d 458, 462 (5th Cir. 2003)). “This

means that there must be a reasonable possibility of recovery, not merely a theoretical one.” Ross,

344 F.3d at 462 (emphasis in original).

In Smallwood v. Illinois Central Railroad Co., 385 F.3d 568 (5th Cir. 2004), the Fifth

Circuit explained the procedure used by courts to determine whether a plaintiff has improperly

joined a non-diverse defendant. A court first looks “at the allegations of the complaint to determine

whether the complaint states a claim under state law against the in-state defendant,” and

“[o]rdinarily, if a plaintiff can survive a Rule 12(b)(6) challenge, there is no improper joinder.”

Id. at 573. However, if “a plaintiff has stated a claim, but has misstated or omitted discrete facts

31 Hilcorp does not argue that there was actual fraud in the pleadings.

that would determine the propriety of joinder ... the district court may, in its discretion, pierce the

pleadings and conduct a summary inquiry.” Id. The Fifth Circuit “caution[ed] that a summary

inquiry is appropriate only to identify the presence of discrete and undisputed facts that would

preclude plaintiff's recovery against the in-state defendant.” Id. at 573-74. In conducting such an

inquiry, the district court may “consider summary judgment-type evidence in the record, but must

also take into account all unchallenged factual allegations, including those alleged in the

complaint, in the light most favorable to the plaintiff.” Travis v. Irby, 326 F.3d 644, 649 (5th Cir.

2003) (citations omitted). Further, “[a]ny contested issues of fact and any ambiguities of state law

must be resolved in [the plaintiff’s] favor.” Id. (citation omitted).

Hilcorp argues that there is complete diversity as would support federal subject-matter

jurisdiction because Hot Energy and Bonvillian Marine – the only defendants sharing the same

citizenship as Alexis – are improperly joined in that Alexis has not adequately stated a negligence

or trespass claim against them.

1. Negligence

To state a claim for negligence under Louisiana law, a plaintiff must allege that: (1) the

defendant had a duty to conform his conduct to a specific standard; (2) the defendant’s conduct

failed to conform to that standard; (3) the defendant’s conduct was the cause-in-fact of the

plaintiff’s injuries; (4) the defendant’s conduct was a legal cause of the plaintiff’s injuries; and (5)

actual damages. Perkins v. Entergy Corp. 782 So. 2d 606, 611 (La. 2001). Further, La. R.S.

56:423(B)(1) provides that “[a] lessee of oyster beds or grounds who has obtained, recorded, and

marked his lease in compliance with the law shall have the right to maintain an action for damages

against any person, partnership, corporation, or other entity causing wrongful or negligent injury

or damage to the beds or grounds under lease to such lessee.” To state a claim for maritime

negligence, “the plaintiff must demonstrate that there was a duty owed by the defendant to the

plaintiff, breach of that duty, injury sustained by the plaintiff, and a causal connection between the

defendant’s conduct and the plaintiff’s injury.” In re Great Lakes Dredge & Dock Co., 624 F.3d

201, 211 (5th Cir. 2010) (internal quotations and alterations omitted).

In her amended petition, Alexis alleges that Hot Energy and Bonvillian Marine operated

their respective vessels.32 As vessel operators, these defendants had a duty to navigate with

reasonable care. Alexis alleges that they breached the duty by navigating their vessels across her

leases in waters that were too shallow for the depths of the vessels, and that such breaches caused

damage to her oyster beds.33 Thus, under a Rule 12(b)(6) standard requiring that the complaint be

read in the light most favorable to plaintiff, Alexis’s allegations are adequate to state plausible

negligence claims against Hot Energy and Bonvillian Marine.

2. Trespass

Under Louisiana law, the tort of trespass applies to immovable property. MCI Commc’ns

Servs., Inc. v. Hagan, 74 So. 3d 1148, 1155 n.12 (La. 2011). Oyster leases are considered

incorporeal immovable property pursuant to Louisiana Civil Code article 470. Vekic v. Popich,

236 So. 3d 526, 535 n.11 (La. 2017). An act of civil trespass is defined as “the unlawful invasion

of the property or possession of another,” and the elements of the tort are: (1) “intent to enter

property that belongs to another (defendant need not know the property belongs to another)” and

(2) “physical entrance onto the land of another.” Barney v. Plaquemines Par. Gov’t ex rel.

President, 22 So. 3d 1117, 1118-19 (La. App. 2009) (citing Thibodeaux v. Krouse, 991 So. 2d

1126 (La. App. 2008)). “[A] defendant may be held liable for an inadvertent trespass resulting

32 R. Doc. 1-2 at 21. That Alexis thought it necessary to allege the non-vessel owner/operator Hilcorp’s

knowledge of the vessels’ drafts and courses does not create a deficiency in her allegations concerning Hot Energy

and Bonvillian Marine who, as the owners/operators of the vessels, were obviously aware of the drafts and courses.

33 Id. at 21-23.

from an intentional act.” Terre Aux Boeufs Land Co. v. J.R. Gray Barge Co., 803 So. 2d 86, 96

(La. App. 2001) (emphasis in original).

Again, Alexis alleges that Hot Energy and Bonvillian Marine operated their respective

vessels.34 In doing so, it is implied that each vessel navigated its course intentionally, and that

each vessel crossed Alexis’s property, causing damage to her oyster beds.35 Even if Hot Energy’s

and Bonvillian Marine’s trespasses were inadvertent, they were nevertheless actionable under

Louisiana law since they arose from the intentional act of operating the vessels over Alexis’s

property. Thus, under a Rule 12(b)(6) standard, Alexis has alleged plausible claims for trespass

under Louisiana law against Hot Energy and Bonvillian Marine.

As Alexis has alleged plausible state-law claims for negligence and trespass against Hot

Energy and Bonvillian Marine, they are properly joined as defendants. Because Hot Energy and

Bonvillian Marine are citizens of Louisiana, as is Alexis, diversity subject-matter jurisdiction is

lacking, and this matter must be remanded to state court.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that Alexis’s motion to remand (R. Doc. 11) is GRANTED, and this

matter is REMANDED to the 25th Judicial District Court, Parish of Plaquemines, State of

Louisiana.

New Orleans, Louisiana, this 8th day of October, 2020.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE

34 Id. at 21.

35 Id. at 21-23.