Griffin v. Specialized Environmental Services Inc

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAFAYETTE DIVISION

BRYAN KEITH GRIFFIN CIVIL DOCKET NO. 6:21-CV-00082

VERSUS JUDGE DAVID C. JOSEPH

SPECIALIZED ENVIRONMENTAL MAGISTRATE JUDGE DAVID J.

RESOURCES, INC. AYO

MEMORANDUM RULING

Before the Court is a MOTION FOR SUMMARY JUDGMENT (the “Motion”) [Doc. 42]

filed by Defendant, Specialized Environmental Services, Inc., A/K/A Specialized

Environmental Resource, LLC, A/K/A Restoration Environmental Specialist, LLC

(collectively “SER”). Plaintiff, Bryan Griffin (“Plaintiff”) opposed the Motion. [Doc.

45]. SER filed a REPLY [Doc. 46], to which Plaintiff responded [Doc. 48]. Because

Plaintiff has failed to establish the subject matter jurisdiction of this Court, SER’s

Motion is DENIED, and the above-captioned matter is DISMISSED without

prejudice.

BACKGROUND

On May 9, 2019, SER hired Plaintiff as a seismic driller’s helper. [Doc. 42-7,

pp. 14, 16]. During his first week of employment, Plaintiff watched safety videos,

worked at SER’s shop, cleaned the yard, loaded trucks, and worked on equipment.

[Doc. 42-7, pp. 6-8]. Plaintiff was subsequently assigned to a field project in Port

Neches, Texas, where his job consisted of inserting pipes in the soil and taking

samples. [Doc. 42-7, pp. 7-9, 14]. He performed this work exclusively on SER’s Marsh

Buggy #1 (the “marsh buggy”). Id. The marsh buggy is a custom-made “amphibious

tracked vehicle” designed to operate on land, swampland, or marshland flooded with

up to two feet of water. [Doc. 42-4, pp. 1-2]. The marsh buggy’s sole means of

propulsion are its two “tracks,” and it does not have an outboard engine or any other

means of water propulsion. [Doc. 42-7, p. 21].

While on the project, Plaintiff spent approximately forty minutes each morning

getting to the marsh buggy. [Doc. 42-2, p. 9]. At 6:00 a.m., Plaintiff arrived at a boat

landing on the Neches River to board a support boat with two outboard engines. [Doc.

42-2, pp. 9, 11]. This boat would take him to a smaller body of water, where he would

transfer to an air boat to drive him to the marsh buggy. Id. The marsh buggy

operated in “swampland” like terrain where the marsh buggy would, at times, kick

up mud as it moved. [Doc. 42-2, p. 9]. There were no tugboats nearby to assist the

buggy move through the terrain, nor were there any other vessels, boats, or vehicles

in the surrounding area.1 Id.

On June 9, 2019, while Plaintiff was working on a pipe in the marsh buggy,

the driller accidently hit a lever that caused the pipe to move unexpectedly and injure

Plaintiff’s right hand. [Doc. 2, p. 3]. Following his injury, Plaintiff brought a claim

against SER for benefits under the Longshore Harbor Workers Compensation Act

(“LHWCA”). [Doc. 42-2, p. 7]; see [Doc. 42-5]. From June 15, 2019, to January 28,

1 Plaintiff stated in his deposition that he could see boats in the distance in the channel

where the support boat navigated. [Doc. 42-2, p. 9].

2021, Plaintiff received approximately $43,000 in indemnity disability payments and

approximately $42,000 for medical care.2 Id.

On January 13, 2021, Plaintiff filed suit in this Court asserting claims of

negligence and unseaworthiness against SER under both the Jones Act and general

maritime law. [Doc. 2, p. 3]. SER filed the pending Motion on December 8, 2022,

asserting that Plaintiff’s claims are not cognizable because of his prior LHWCA

settlement and because he does not qualify as a “seaman” under the Jones Act. [Doc.

42-2, p. 6]. In this respect, SER contends that Plaintiff cannot establish: (i) that the

marsh buggy was a vessel; (ii) that the marsh buggy operated on navigable waters;

nor (iii) that he had a sufficient connection to any specific vessel. Id. In response,

Plaintiff urges that summary judgment is improper because “no decision has been

made by the court concerning seaman’s status in this matter and summary judgment

is inappropriate to decide this important issue.” [Doc. 45, p. 10].

LAW AND ANALYSIS

I. Subject Matter Jurisdiction

Subject matter jurisdiction is a threshold issue and one to which federal courts

must remain attentive throughout the course of any litigation. See generally,

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Although not raised by the parties,

given the posture of this case and the facts presented, the Court deems it necessary

to determine subject matter jurisdiction before considering the merits of the Motion.

2 Plaintiff’s LHWCA claim against SER settled on June 12, 2021. [Doc. 42-2, p. 7]; [Doc.

42-6].

It is fundamental that “[f]ederal courts are courts of limited jurisdiction.”

Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). As such,

Courts should presume “that a cause lies outside [its] limited jurisdiction, and the

burden of establishing the contrary rests upon the party asserting jurisdiction.” Id.

(internal citations omitted). Unlike other issues such as personal jurisdiction,

subject-matter jurisdiction “can never be waived or forfeited.” Gonzalez 565 U.S. at

141. “If the court determines at any time that it lacks subject-matter jurisdiction, the

court must dismiss the action.” Fed. R. Civ. P. 12(h)(3). The Court looks to the facts

alleged by the Plaintiff to determine its jurisdiction over this matter.

II. Jones Act

“The Jones Act creates a cause of action for the seaman who is injured in the

course of his employment by his employer's negligence.” Powell v. Offshore Nav. Inc,

644 F.2d 1063, 1068 (5th Cir. 1981). Because the Jones Act establishes a federal

statutory basis for recovery, the Court’s jurisdiction over claims brought pursuant to

the Jones Act is founded on general federal question jurisdiction. Id. at 1067; 28

U.S.C. § 1331. Plaintiff’s entitlement to recovery under the Jones Act – and thus this

Court’s jurisdiction – therefore hinges on whether Plaintiff qualifies as a “seaman.”

The Supreme Court has established a two-prong test to determine seaman status: (i)

“the employee’s duties must contribute to the function of the vessel or to the

accomplishment of its mission;” and (ii) “a seaman must have a connection to a vessel

in navigation … that is substantial in terms of both duration and nature.” Chandris,

Inc., v. Latsis, 515 U.S. 347, 368 (1995). “An injured person claiming the benefits of

the Jones Act … has the burden of establishing seaman status.” Barrett v. Chevron,

U.S.A., Inc., 752 F. 2d 129, 132 (5th Cir. 1985).

Here, Plaintiff asserts that his employment on the marsh buggy qualifies him

as a Jones Act seaman. [Doc. 2, p. 3]. SER disputes this assertion and contends in

its Motion that Plaintiff is not entitled to relief under the Jones Act because he cannot

establish that the marsh buggy is a vessel. [Doc. 42-2, pp. 17-18].

It is well established that “[t]he existence of a vessel is a fundamental

prerequisite to a Jones Act claim and is central to the test of seaman status.” Burchett

v. Cargill, Inc., 48 F. 3d 173, 176 (5th Cir. 1995) (citing Daniel v. Ergon, Inc., 892 F.

2d 403 (5th Cir. 1990); Blanchard v. Engine & Gas Compressor Servs., Inc., 575 F. 2d

1140, 1141 (5th Cir. 1978)). Generally, a Jones Act vessel “includes every description

of water-craft or other artificial contrivance used, or capable of being used, as a means

of transportation on water.” Stewart v. Dutra Constr. Co., 543 U.S. 481, 489 (2005)

(internal citations omitted). However, “[t]he question remains in all cases whether

the watercraft’s use ‘as a means of transportation’ is a practical possibility or merely

a theoretical one.” Id. at 496.

In Lozman v. City of Riviera Beach, Fla., the Supreme Court narrowed this

inquiry to whether “a reasonable observer, looking at [the watercraft’s] physical

characteristics and activities, would consider it designed to a practical degree for

carrying people or things over water.” Id. 568 U.S. 115, 121 (2013). The Court further

noted that “[a]lthough a lack of self-propulsion is not dispositive … it may be a

relevant physical characteristic” when determining whether a watercraft is a vessel.

Id. at 122.

In Lozman, the Supreme Court held that the subject “houseboat” did not

qualify as a vessel in part because: (i) it did not have a rudder or steering mechanism;

(ii) it did not have a raked hull; (iii) it “had no special capacity to generate or store

electricity;” (iv) it had no means of self-propulsion; and (v) it was only capable of

traveling over water by being towed. Id. The Court concluded that “[b]ut for the fact

it floats, nothing about [the] home suggests that it was designed to any practical

degree to transport persons or things over water.” Id. at 121. Conversely, in Stewart,

the Supreme Court held that a dredging “Super Scoop” was a vessel because it had

“certain characteristics common to seagoing vessels, such as a captain and crew,

navigational lights, ballast tanks, and a crew dining area.” 543 U.S. 481, 484 (2005).

Additionally, the Court noted that it had “limited means of self-propulsion” and

typically moved thirty-to-fifty feet every couple of hours while dredging in the Boston

Harbor. Id. at 484-85.

Here, the marsh buggy is much more analogous to the houseboat in Lozman

than the Super Scoop in Stewart. First, the marsh buggy was designed to operate in

“land, swampland, or marshland” – not water. [Doc. 42-4, p. 2]. Second, like the

houseboat, the marsh buggy has no ranked bow, or bow of any kind, and relies solely

on its tracks to move through the swampland. Id. Although the marsh buggy can

float over water, it navigates on water with “extremely limited mobility.” Id. When

the marsh buggy is floating on water, it has no means of self-propulsion and must be

steered by a support vessel. Id. Moreover, the marsh buggy had to be “towed over

water to its working location … [because it] could not effectively navigate across the

Neches River canal on its own power.” Id.

All told, the weight of the evidence suggests that the marsh buggy is not a

vessel because a reasonable observer could not determine that it is designed to a

practical degree to carry people or things over water. Because the marsh buggy does

not qualify as a “vessel,” it follows that Plaintiff is not a Jones Act seaman and,

accordingly, that this Court does not maintain federal question jurisdiction over

Plaintiff’s claims under the Jones Act.

III. Admiralty Jurisdiction over Maritime Torts

The jurisdiction of federal courts to hear cases in admiralty originates in the

text of the United States Constitution. See U.S. Const., Art. III, § 2, cl. 1; 28 U.S.C.

§ 1333. To properly invoke the court’s maritime jurisdiction, the plaintiff must

establish both a maritime locality and a significant relationship to a traditional

maritime activity. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,

513 U.S. 527, 531-34 (1995) (citing Executive Jet Aviation, Inc. v. City of Cleveland,

Ohio, 409 U.S. 249, 253 (1972); Foremost Insurance Co. v. Richardson, 457 U.S. 688,

673 (1982); Sisson v. Ruby, 497 U.S. 358, 367 (1990)). Under the two-part Grubart

test, admiralty jurisdiction can be exercised over a tort where both the location test

and the connection test are satisfied. Id. The “location” test requires, in general

terms, that a tort occur on navigable water or that an injury suffered on land was

caused by a vessel on navigable water. Id. The “connection” test requires that: (i) the

“general features of the type of incident involved” have “a potentially disruptive

impact on maritime commerce,” and (ii) the “general character of the activity giving

rise to the incident” shows a “substantial relationship to traditional maritime

activity.” Id.

Location Test

To determine the existence of admiralty jurisdiction, the Court must first

decide whether the areas in which the marsh buggy operated (and the Plaintiff

sustained injury) satisfy the location test. Here, Plaintiff alleges that while he was

working on a pipe from the marsh buggy, the driller accidentally hit a lever causing

the pipe to go down and injure his hand. [Doc. 2, pp. 2-3].

According to Plaintiff’s own account, the marsh buggy operated on “soft swamp

land” that consisted of a few feet of water and mud. [Doc. 42-7, pp. 14, 22-23]. At

times the terrain was so muddy that the marsh buggy required the use of a mounted

boom and bucket to dig itself free from the mud. [Doc. 42-2, p. 23]; [Doc. 42-7, p. 20].

Plaintiff further stated that there were no other vessels, boats, or vehicles operating

in the marsh buggy’s vicinity. Id. Plaintiff testified that he had to take a support

boat and an airboat to reach the marsh buggy.3 [Doc. 42-2, p. 23]; [Doc. 42-7, p. 13].

Plaintiff’s job consisted of inserting and removing pipes from the same “soft swamp

3 In In re Destiny Drilling, the Fifth Circuit held both that shallow marsh did not qualify

as a navigable water and that “[a]n airboat is constructed as a means of transportation across

non-navigable waters.” 184 F.3d 816 (5th Cir. 1999).

land” on which the marsh buggy operated. [Doc. 41-7, p.14]. Pictures of the area and

terrain traversed by the marsh buggy are included below:4

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4 The pictures were provided by SER’s office manager Summer Bagwell. [Doc. 42-3];

[Doe. 42-1, p. 3].

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The Fifth Circuit has consistently held that swampland or marsh land does not

constitute navigable water. See Smith v. Pan Air Corp., 684 F.2d 1102, 1108 (5th Cir.

1982) (finding maritime jurisdiction improper because inland marsh did not

constitute navigable water); In re Destiny Drilling (USA) Inc., 184 F.3d 816, 816 (5th

Cir. 1999) (holding “shallow and vegetation-choked” marsh in St. Mary Parish was a

non-navigable waterway); Dardar v. LaFourche Realty Co., 55 F.3d 1082, 1085 (5th

Cir. 1995) (noting that clogged, discontinuous, and shallow bayou that terminated in

marsh was non-navigable water).

As is evident from the photographs, the area in which the marsh buggy

operated appears to be marshland, not a navigable waterway. Furthermore, the

record contains undisputed evidence that the marsh buggy: (i) was designed to

operate on land, swampland, or marshland with “up to two feet of water;” (ii) had no

means of self-propulsion while floating; and (iii) could only float over water with

“extremely limited mobility.” [Doc. 42-4, pp. 1-2]. This is sufficient for the Court to

determine that the subject accident occurred on a marsh buggy operating in non-

navigable swampland. Because neither the alleged tort nor Plaintiff’s resulting

injury occurred on navigable water, Plaintiff’s allegations do not meet the location

test necessary to support admiralty jurisdiction.5

IV. Diversity Jurisdiction

Although not pled or otherwise invoked by the Plaintiff, the Court next looks

to the parties’ allegations to determine whether it has diversity jurisdiction over the

5 Because Plaintiff has failed to satisfy the location test, the Court need not determine

whether the “connection” test is met.

claims asserted. Under 28 U.S.C. § 1332, “district courts … have original jurisdiction

of all civil actions where the matter in controversy exceeds the sum or value of

$75,000 … and is between citizens of different states.” “To properly allege diversity

jurisdiction under 28 U.S.C. § 1332, a party must allege ‘complete diversity,’ which

means that ‘all persons on one side of the controversy [must] be citizens of different

states than all persons on the other side.’” Smith v. Toyota Motor Corp., 978 F. 3d

280, 281 (5th Cir. 2020) (quoting McLaughlin v. Miss. Power Co., 376 F. ed 344, 353

(5th Cir. 2004). To adequately allege diversity jurisdiction of a corporation, the party

asserting jurisdiction must “set out the principal place of business of the corporation

as well as the state of its incorporation.” Id. (quoting Neeley v. Bankers Tr. Co. of

Tex., 757 F. 2d 621, 634 n.18 (5th Cir. 1985). “The burden of proving that complete

diversity exists rests upon the party who seeks to involve the court’s diversity

jurisdiction.” Stafford v. Mobil Oil Corp., 945 F. 2d 803, 804 (5th Cir. 1991) (quoting

Getty Oil Corp., a Div. of Texaco v. Ins. Co. of N. Am., 842 F. 2d 1254, 1259 (5th Cir.

1988)).

Here, Plaintiff does not specifically, or sufficiently, allege diversity jurisdiction.

In the Complaint, Plaintiff merely states that SER “is a foreign corporation

authorized to do and doing business in the State of Louisiana.” [Doc. 2, p. 1]. Plaintiff

does not allege SER’s principal place of business nor its state of incorporation. See

[Doc. 2]. Nor does Plaintiff allege the monetary value of his claims. [Doc. 2, p. 5]. In

failing to allege SER’s principal place of business, its state of incorporation, and the

amount in controversy, Plaintiff has failed to meet his burden of establishing

diversity jurisdiction. The Fifth Circuit has repeatedly held that a “[flailure [to]

adequately ... allege the basis for diversity jurisdiction mandates dismissal.” Smith,

978 F. 3d at 282 (citing Howery, 243 F. 3d at 919) (quoting Stafford, 945 F. 2d at 805).

CONCLUSION

Because the Plaintiff has failed to establish a basis for this Court’s jurisdiction

under either the Jones Act, admiralty jurisdiction, or in diversity, the Court is

without jurisdiction to decide the merits of the Motion or the subject claims.

IT IS THEREFORE ORDERED that Defendant’s MOTION FOR SUMMARY

JUDGMENT [Doc. 42] is DENIED.

IT IS FURTHER ORDERED that this matter is DISMISSED WITHOUT

PREJUDICE for lack of subject matter jurisdiction.

THUS, DONE AND SIGNED in Chambers on this day of February 2023.

Chae C deat

DAVID C. JOSEPH

UNITED STATES DISTRICT JUDGE

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