Petition for Writ of Certiorari — Stolt Offshore Inc. v. Science Applications International Corp.

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Supreme Court, U.S.

FILED

00 812 NOV 162000

No. 00-

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

STOLT OFFSHORE INC. and

STOLT COMEX SEAWAY HOLDINGS INC.,

Petitioners,

SCIENCE APPLICATIONS

INTERNATIONAL CORPORATION,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

RALPH E. KRAFT

Counsel of Record

CHARLES A. MOUTON

JEAN ANN BILLEAUD

Preis, KRAFT & Roy

Attorneys for Petitioners

Versailles Centré

Suite 400

102 Versailles Boulevard

Lafayette, Louisiana 70509

(337) 237-6062

163395 @ Counsel! Press LLC

(800) 274-3321 + (800) 350-6859

lo Ape

QUESTIONS PRESENTED FOR REVIEW

Whether the ruling and Mandate of the United States

Court of Appeals for the Fifth Circuit, holding State

law claims which pertain to work performed on the

Outer Continental Shelf, while governed by the Outer

Continental Shelf Lands Act and which become Federal law

by application of the Outer Continental Shelf Lands Act

surrogate law mandate, are deemed to not “arise under”

the laws of the United States to sustain a federal question

subject matter jurisdiction removal action, and which conflict

with controlling jurisprudence of this Honorable Court and

a prior decision of the United States Court of Appeals for

the Fifth Circuit, present compelling reasons for review by

Writ of Certiorari.

Whether the ruling and Mandate of the United States

Court of Appeals for the Fifth Circuit, which permit remand

to State Court of a civil action properly removed under

original federal question subject matter jurisdiction

predicated solely on concurrent State and Federal Court

jurisdiction, thereby standing in conflict with a decision of

the United States Court of Appeals for the Eighth Circuit,

and which issue is res nova with this Honorable Court,

present compelling reasons for review by Writ of Certiorari.

STATEMENT PURSUANT TO RULE 29.6

Petitioner Stolt Offshore Inc., formerly known as Stolt

Comex Seaway Inc., is wholly owned by Stolt Comex

Seaway Holdings Inc. Petitioner Stolt Comex Seaway

Holdings Inc. is wholly owned by Stolt Comex Seaway B.V..,

a Netherlands corporation.

TABLE OF CONTENTS

Questions Presented for Review ...............

Statement Pursuant to Rule 29.6 ...............

RE PN ey a re eee Para a

Tee ©E Cte AMOUMIOS nw cc ccc ccccccccce

fives ptaeeécciacnevelests

rT. iccack sods heh bees eaese eas

Statement of the Basis for Jurisdiction ..........

Constitutional and Statutory Provisions Involved ...

re nv ecécetenssvts

Summary of the Argument ....................

Reasons for Granting the Writ .................

Whether The Ruling And Mandate Of The

United States Court Of Appeals For The Fifth

Circuit, Holding State Law Claims Which

Pertain To Work Performed On The Outer

Continental Shelf, While Governed By The

Outer Continental Shelf Lands Act And

Which Become Federal Law By Application

Of The Outer Continental Shelf Lands Act

Page

iil

Contents

Page

Surrogate Law Mandate, Are Deemed To Not

“Arise Under” The Laws Of The United

States To Sustain A Federal Question Subject

Matter Jurisdiction Removal Action,

And Which Conflict With Controlling

Jurisprudence Of This Honorable Court And

A Prior Decision Of The United States Court

Of Appeals For The Fifth Circuit, Present

Compelling Reasons For Review By Writ Of

GUN o0ccdcGe cp dweaneoreenndaens 8

II. Whether The Ruling And Mandate Of The

United States Court Of Appeals For The Fifth

Circuit, Which Permit Remand To State

Court Of A Civil Action Properly Removed

Under Original Federal Question Subject

Matter Jurisdiction Predicated Solely On

Concurrent State And Federal Court

Jurisdiction, Thereby Standing In Conflict

With A Decision Of The United States Court

Of Appeals For The Eighth Circuit, And

Which Issue Is Res Nova With This

Honorable Court, Present Compelling

Reasons For Review By Writ Of Certiorari.

TABLE OF CITED AUTHORITIES

Page

Cases:

Amoco Production Co. v. Sea Robin Pipeline Co.,

844 F.2d 1202 (Sth Cir. 1988) ......... 11, 14, 15, 16

Baldwin v. Sears, Roebuck & Co., 667 F.2d 458

ble A) Per eT ee ye rye rey ry a 20, 21

Barrois v. Title, 1996 WL 312063 (E.D. La. 1996)

eS ey ar ey pee BE asl he eo 20

Bondi v. Atlantic-Richfield Co., 1994 WL 66753

CRED. La SR obese tkeknstecxeasuer teases 11,14

Callison v. Charleston Area Medical Center, Inc.,

909 F. Supp. 391 (S.D.W.Va. 1995) .......... 20

Chilton v. Savannah Foods & Indus., Inc., 814 F.2d

ve, oo 2, Peper ieee Pee 20

Colorado River Water Conservation District v.

United States, 424 U.S. 800, 96 S. Ct. 1236,

SF h., Be DE Ce iva bie ee ease ee 21

Dennis v. Bud’s Boat Rental, Inc., 987 F. Supp. 948

5 ARO 1; Pree r errr rr re ree 11

Emrich v. Touche Ross & Co., 846 F.2d 1190

‘sk a Dr RS Poo re ee eee 20

Cited Authorities

Page

Fields v. Pool Offshore, Inc., 1997 WL 767634 (E.D.

La. 1997), reh'g denied, 1998 WL 43217 (E.D.

La. 1998), aff'd, 182 F.3d 353 Sth Cir. 1999),

cert. denied, _ U.S. _ , 120 S. Ct. 1161, 145

SS FF 8 ot | erp ee 16

Gulf Offshore Co. v. Mobil Oil Co., 453 U.S. 473,

101 S. Ct. 2870, 2878, 69 L. Ed. 2d 784 (1981)

Gully v. First Nat'l Bank, 299 U.S. 109, 57 S. Ct.

FO, SE LE. FORRES i iv enedbencsenenece 15

Heimann v. National Elevator Indus. Pension Fund,

187 F.3d 493 (Sth Cir. 1999), citing and quoting,

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58,

107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987) ....... 15

Huber v. Greyhound Lines, Inc., 926 F. Supp. 821

GED. Wee. QOGED sésiicetesseenuneen 12, 18, 20, 21

Hufnagel v. Omega Service Indus., Inc., 182 F.3d

SOO GRC, GIGS ivicc cv bawereouke 5, 8, 11, 12, 14

Joyner v. Ensco Offshore Oil Co., 2000 WL 341029

CRED. GR. BRU 60kcceseccenscacdnn eae 11,14

Laredo Offshore Constructors, Inc. v. Hunt Oil Co.,

rode Freed f+ Re ee 20

LaRousse v. Murphy Exploration & Prod. Co., 1998

WL 283304 (E.D. La. 1998) ................. 16

vii

Cited Authorities

Page

Martin v. Pride Offshore Co., Inc., 1998 WL 24423

GED. Ee. TRE cccccccccsebdcncsccbstecaces 16

McArthur v. Carmichael, 1998 WL 146233

CRIP. BOGE occccccesesecescdstvassens 20, 21

McDermott Int'l, Inc. v. Lloyds Underwriters of

London, 944 F.2d 1199 (Sth Cir. 1991), reh'g

denied, 947 F.2d 1489 (SthCir. 1991) ......... 21

McPhillips v. Blue Cross & Blue Shield of Alabama,

79 F. Supp. 2d 1325 (M.D. Ala. 2000) ........ 20

Mercy Hospital Ass'n v. Miccio, 604 F. Supp. 1177

Jk Re & | SPP rrr erie 12, 18, 20

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207,

106 S. Ct. 2485, 91 L. Ed. 2d 174 (1986) ...... 20

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 116

S. Ct. 1712, 135 L. Ed. 2d 1 (1996) ........... 10, 21

Rodrigue v. Aetna Cas. & Sur. Co., 395 U.S. 352,

89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969) .......

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100,

61 S. Ct. 868, 85 L. Ed. 1214(1941) ......... 18

Smith v. Anadrill, Inc., 762 F. Supp. 1267 (S.D. Tex.

DOU ie 4d 06 bWasecabacnvenddthaa cakes 12, 18, 20

vill

Cited Authorities

Page

Stevo v. CSX Transp., Inc., 940 F. Supp. 1222

as SE “xb nb bowed’ ccveseaensdeoure 20

Stokes v. Petroleum Helicopters, 1997 WL 695557

eh PEE iedccckerdedecaueuawenen es 11,14

Tennessee Gas Pipeline Co. v. Houston Cas. Ins. Co.,

87 F.3d 150 (Sth Cir. 1996), reh ’g denied, 95 F.3d

beg. fs S|) rer ere 11,12, 13,14

Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 96 S. Ct. 584, 46 L. Ed. 2d 542 (1976)

(ssddeneed cone taale rk eta eae 10

Warren v. United States, 932 F.2d 582 (6th Cir.

PEERS Sicdcakacckosesiexeessasweroreare 20

Weinstein v. Paul Revere Ins. Co., 15 F. Supp. 2d

Pe ts SE bk os cs he decasoxanaeniere 20, 21

Whitfield v. Federal Crop Ins. Corp., 557 F.2d 413

SS DPEN 8 80s oon ee Veencasdéwibeeeine 20

Williams v. Ragnone, 147 F.3d 700 (8th Cir. 1998)

pth eedsandidtadbiadatearbikisices 6, 17, 20, 21

Yurcik v. Sheet Metal Workers’ Int’l Assoc., 889

FP. Beppe. FOO GEDA BOGE). oc svcivaecccsces 20

Statutes:

28 U.S.C.

43 U.S.C.

Cited Authorities

Page

RROD: cb avcacucwabtacdaaneenaed ]

Be eee ere ern errs ett Te re 18

DOOR a kkexss ree 1, 2, 6, 11, 12, 14, 19

fever er rer rer rrr re roe 9

SPREE cictssetiusssedekscavass 2, 10, 21

oo Beer reer ere rary ee oe 2,10

PO Sin dn ckodeabinnsekes bass 2

Be Rr Per eS er rere Per eeee 12,14

Ee occivsnereearaeas eases 13

Esl: nt} re 2, 5, 11, 13, 19

Ee Ey rT Our TT PT eee rer ee ree 13

Cited Authorities

Page

United States Constitution:

Pe See eer er ere reer ote re eee 2

Rules:

Federal Rule of Appellate Procedure 21(a) ....... 2

Federal Rule of Appellate Procedure 35 ......... 4

PUR EE 6k cds voce eunas dus veurss 4

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States Court

Of Appeals For The Fifth Circuit Dated And Filed

DE 20, OO bed eew andar tsadevnntaisecavas la

Appendix B — Memorandum And Order Of Remand

Of The United States District Court For The

Southern District Of Texas, Houston Division

Dated June 7, 2000 And Entered June 8, 2000

NES PE VE TE EEE TERE COUPLER Er Cree 3a

Appendix C — Per Curiam Order Of The United

States Court Of Appeals For The Fifth Circuit

Denying Petition For Reconsideration And

Rehearing Dated And Filed August 18, 2000

PI CC SPOUT OL LOR Ce eT OEE EU ERECT ETE 20a

Appendix D — United States Constitution, Article

Bre ee ree ere le ere rere er Te 22a

Appendix E — 28 U.S.C. § 1441(b) ............ 23a

Appendix F — 28 U.S.C. § 1447(c) and (d) ...... 24a

Appendix G — 43 U.S.C. § 1333(a)(2)(A) ....... 25a

Appendix H — 43 U.S.C. § 1349(b)(1)(A) ....... 26a

Lodging Appendix — Additional Relevant

Documents Submitted Separately

]

Petitioners respectfully Petition for a Writ of Certiorari

to review the ruling and Mandate of the United States Court

of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Mandate denying the Petition for Writ of Mandamus

and the Order denying Reconsideration and Rehearing

En Banc of the United States Court of Appeals for the Fifth

Circuit, Civi! Action No. 00-20582, are not reported. !

The Remand Order of the United States District Court

for the Southern District of Texas in Science Applications

International Corporation v. Stolt Comex Seaway Holdings

Inc., Stolt Comex Seaway Inc., and Stolt Offshore Inc.,

Civil Action No. 00-1271, is not reported.’

STATEMENT OF THE BASIS FOR JURISDICTION

The judgment of the United States Court of Appeals for

the Fifth Circuit was entered July 19, 2000. The United States

Court of Appeals for the Fifth Circuit denied rehearing and

rehearing en banc in an Order dated August 18, 2000.

No motions for extension of time have been filed.

This Petition is filed within ninety days of the

United States Court of Appeals for the Fifth Circuit’s denial

of rehearing and therefore, this Honorable Court has

jurisdiction of this Petition by virtue of 28 U.S.C. § 1254(1).

Jurisdiction in the Courts below was premised on removal

jurisdiction, 28 U.S.C. § 1441(b), the Outer Continental

1. See Appendices A and C at la and 20a, respectively.

2. See Appendix B at 3a.

Shelf Lands Act, 43 U.S.C. § 1349(b)(1)(A), and Federal

Appellate Jurisdiction of the District Courts of the

United States, Federal Rule of Appellate Procedure 21(a)

and 28 U.S.C. § 1651(a).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent constitutional provision involved in this

case is United States Constitution, Art. III, § 2, cl. 1.

The pertinent statutes involved in this case are: 28 U.S.C.

§ 1441(b); 28 U.S.C. § 1447(c) and -(d); 43 U.S.C.

§ 1333(a)(2)(A); and 43 U.S.C. § 1349(b)(1)(A).4

STATEMENT OF THE CASE

On March 17, 2000, Science Applications International

Corporation (“SAIC”) filed suit against Stolt Comex Seaway

Holdings Inc., Stolt Comex Seaway Inc. and Stolt Offshore

Inc. (“SOI”) in the 164" Judicial District Court, Harris

County, Texas, regarding a contractual dispute pertaining to

the lay and burial of fiber optic cable, known as “FiberWeb”,

on the Outer Continental Shelf in the Gulf of Mexico off the

coast of Texas.* The fiber optic cable is the integral

transmission component of a communications system

constructed as a data and/or communications link between

oil and gas producing platforms located offshore on the Outer

3. See Appendix D at 22a.

4. See Appendices E through H at 23a through 26a,

respectively.

5. See Lodging Appendix (Tab 1) at L-1 through L-9.

Continental Shelf, to and from shoreside facilities for the

purpose and/or in furtherance of development and/or

production of minerals from the subsoil and seabed of the

Outer Continental Shelf.°

A Notice of Removal was timely filed on April 14, 2000

by SOI based on original subject matter jurisdiction under

the Outer Continental Shelf Lands Act (““OCSLA”).’ SAIC

filed a Motion to Remand on May 10, 2000,* which was

opposed by SOI.’ The District Court entered a Memorandum

and Order of Remand on June 8, 2000.'° A Petition for Writ

of Mandamus was filed by SOI on July 6, 2000."

By panel comprised of the Honorable Judges Wiener,

Garza and Parker, the United States Court of Appeals for

the Fifth Circuit, by Mandate of July 19, 2000, denied the

Petition for Writ of Mandamus.'* The United States Court

of Appeals for the Fifth Circuit recognized and held that

original jurisdiction over the dispute exists pursuant to the

OCSLA, but did not find that the matter “arises under”

Federal law. The Panel agreed with the District Court that

6. See Lodging Appendix (Tab 2) at L-10 through L-13.

7. See Lodging Appendix (Tab 3) at L-14 through L-21.

8. See Lodging Appendix (Tab 4) at L-22 through L-30.

9. See Lodging Appendix (Tab 5) at L-31 through L-49.

10. See Appendix B at 3a.

11. See Lodging Appendix (Tab 6) at L-50 through L-69.

12. See Appendix A at la.

the State and Federal Courts have concurrent jurisdiction

over claims under OCSLA, complete preemption does not

exist, and therefore, remand by the District Court was proper.

On August 2, 2000, Petitioners timely filed Petitions for

Reconsideration and/or Rehearing En Banc."

On August 18, 2000, the United States Court of Appeals

for the Fifth Circuit denied Petitioners’ Petitions for

Reconsideration and/or Rehearing En Banc, citing Federal

Rule of Appellate Procedure 35 and United States Court of

Appeals for the Fifth Circuit Rule 35."

SUMMARY OF THE ARGUMENT

The Outer Continental Shelf Lands Act (““OCSLA”)

pertains, in part, to cases and controversies arising out of, or

in connection with, operations on the Outer Continental Shelf

involving the exploration, development, or production of the

minerals of the subsoil or seabed of the Outer Continental

Shelf. Congress intended the subsoil of the Outer Continental

Shelf to appertain to the United States and be subject to its

jurisdiction, power and control. The law governing disputes

arising on the Outer Continental Shelf states:

... To the extent that they are applicable and not

inconsistent with this act or with other Federal

laws and regulations of the Secretary now in effect

or hereafter adopted, the civil and criminal

laws of each adjacent state now in effect are

13. See Lodging Appendia (Tab 7) at L-70 through L-86.

14. See Appendix C at 20a.

hereafter adopted, amended, or repealed

are hereby declared to be the law of the United

States for that portion of the subsoil and seabed

of the outer Continental Shelf, . . .

43 U.S.C. § 1333(a)(2)(A) (emphasis added).'°

The United States Supreme Court held the purpose

of the OCSLA was to define a body of law applicable to

the seabed, subsoil and the fixed structures on the

Outer Continental Shelf, which law was to be Federal law

of the United States, applying consistent State law only as

Federal law. Rodrigue v. Aetna Cas. & Sur. Co., 395 US.

352, 89 S. Ct. 1835, 23 L. Ed. 2d 360 (1969) (emphasis

added). The United States Court of Appeals for the

Fifth Circuit, in Hufnagel v. Omega Service Indus., Inc.,

182 F.3d 340 (Sth Cir. 1999), held that the subject personal

injury claim which arose on the Outer Continental Shelf,

emanated from Louisiana State law which became Federal

law by application of OCSLA’s surrogate law mandate, and

was determined to be one “arising under” the OCSLA for

purposes of removal. Hufnagel, supra.

The ruling and Mandate issued in these proceedings by

the United States Court of Appeals for the Fifth Circuit

conflict with controlling jurisprudence in erroneously

holding that State law-based claims, which emanate from

disputes pertaining to operations on the Outer Continental

Shelf, governed by the OCSLA, do not arise under Federal

law for purposes of original subject matter jurisdiction and

removal.

15. See Appendix G at 25a.

The ruling of the United States Court of Appeals for

the Fifth Circuit thereby sanctions remand to State Court of

a civil action properly removed under original federal

question subject matter jurisdiction predicated solely on

concurrent State and Federal Court jurisdiction. Such ruling

is in conflict with a decision of the United States Court of

Appeals for the Eighth Circuit, Williams v. Ragnone,

147 F.3d 700 (8th Cir. 1998). This issue is res nova with

this Honorable Court, and presents an important question of

Federal law which should be settled by this Honorable Court.

Civil actions properiy made the subject of removal,

by definition, present with a concurrent jurisdiction

threshold. To hold, as here by the United States Court

of Appeals for the Fifth Circuit, that concurrent jurisdiction

is a correct and sufficient basis for remand, raises the specter

that all matters so presenting, if removed, should

be remanded. Federal question subject matter jurisdiction

dictates a contrary end result, as such grants to litigants

access to Federal Court via removal pursuant to 28 U.S.C.

§ 1441(b). To hold otherwise, effectively negates that

statutorily granted remedy.

At issue herein, are contractual disputes between the

parties concerning the deployment, lay and burial of fiber

optic cable on the Outer Continental Shelf for the specific

purpose of providing communication and data links between

a number of offshore platforms and shoreside facilities as

respects, and solely as respects, operations conducted on the

Outer Continental Shelf pertaining to the development and

production of minerals from the subso1! and seabed of the

Outer Continental Shelf. Pursuant to the OCSLA, the law to

be applied, expressly declared to be Federal law, is that of

the adjacent State.

Had Congress intended the law of the State adjacent to

the particular Outer Continental Shelf situs to extend as State

law onto the Shelf, it would have so stated. Congress intended

Federal law (even if borrowed via surrogate status from the

adjacent State) to apply to the OCSLA. Hence, in those

matters governed by the OCSLA, Federal law controls and

those matters must be so analyzed, including, when existent,

matters pertaining to removal jurisdiction. There is no line

of demarcation put forth in the OCSLA to differentiate

application of law. Rather, once situs on the Shelf is

determined, State law is Federal law for all purposes of

resolving the matters at issue from their inception.

That original subject matter jurisdiction exists in_

the Federal Court by virtue of the Outer Continental

Shelf Lands Act is established and was so held by the United

States Court of Appeals for the Fifth Circuit. The District

Court did not remand for lack of subject matter jurisdiction

or defect in the removal procedure. Also clearly established,

is the absence of other permissible basis for remand.

Therefore, Petitioner’s statutory right to proceed in Federal

Court has erroneously been denied.

Petitioners’ Writ of Certiorari should be granted for these

compelling reasons, and the ruling and Mandate of the United

States Court of Appeals for the Fifth Circuit, upon review,

should be affirmed, in part, as to the existence of original

subject matter jurisdiction under the OCSLA, and reversed,

in part, with instructions to vacate the District Court’s

Remand Order and to remand for consistent proceedings.

REASONS FOR GRANTING THE WRIT

I. WHETHER THE RULING AND MANDATE OF

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, HOLDING STATE LAW

CLAIMS WHICH PERTAIN TO WORK

PERFORMED ON THE OUTER CONTINENTAL

SHELF, WHILE GOVERNED BY THE OUTER

CONTINENTAL SHELF LANDS ACT AND

WHICH BECOME FEDERAL LAW BY

APPLICATION OF THE OUTER CONTINENTAL

SHELF LANDS ACT SURROGATE LAW

MANDATE, ARE DEEMED TO NOT “ARISE

UNDER” THE LAWS OF THE UNITED STATES

TO SUSTAIN A FEDERAL QUESTION SUBJECT

MATTER JURISDICTION REMOVAL ACTION,

AND WHICH CONFLICT WITH CONTROLLING

JURISPRUDENCE OF THIS HONORABLE

COURT AND A PRIOR DECISION OF THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT, PRESENT COMPELLING

REASONS FOR REVIEW BY WRIT OF

CERTIORARI.

The ruling of the United States Supreme Court for

the Fifth Circuit, in determining an inability to view this

dispute as one “arising under” Federal law, conflicts with

the opinion of this Honorable Court in Rodrigue v. Aetna

Cas. & Sur. Co., 395 U.S. 352, 89 S. Ct. 1835, 23 L. Ed. 2d

360 (1969), and further, with its own prior ruling,

Hufnagel v. Omega Service Indus., Inc., 182 F.3d 340

(Sth Cir. 1999). Specifically, original subject matter

jurisdiction exists in Federal court by required application

of the Outer Continental Shelf Lands Act (“OCSLA”).

Pursuant to the surrogate Federal law mandate of the OCSLA,

the law of the adjacent State becomes Federal law to address

and resolve all issues in the litigation. Federal law controls

and such claims therefore “arise under” Federal law for

removal jurisdiction purposes.

The subject Remand Order was not properly issued.

Permissible grounds for remand are lack of subject matter

jurisdiction, defect in removal procedure, contractual

arrangement between the parties, applicable statute

warranting remand, or circumstances giving rise to

discretionary dismissal. Close examination of the Remand

Order clearly reveals significant internal inconsistencies and

further, no permissible ground for remand. The District Court

writes, on page 16 of the Remand Order, the causes of action

asserted herein “. . . do not fall within the ambit of OCSLA

... and further explains, “. . .because the dispute does not

deal with or affect except in a most tangential way the

operations involving the exploration, development, or

production of natural resources of the OCS”."* The District

Court then concludes:

Ultimately, once FiberWeb is in and operating,

matters relating to the actual communications

regarding production of minerals on the OCS may

be within the jurisdictional grant of OCSLA."”

The Supreme Court precedent regarding the

reviewability of Remand Orders is clear and provides that

Remand Orders issued pursuant to 28 U.S.C. § 1441(c), based

on lack of subject matter jurisdiction or defect in removal

16. See Appendix B at 3a.

17. See Appendix B at 3a (emphasis added)

procedure, are not reviewable due to the bar of 28 U.S.C.

§ 1447(d). Quackenbush y. Allstate Ins. Co., 517 U.S. 706,

1168S. Ct. 1712, 135 L. Ed. 2d 1 (1996); Thermtron Products,

Inc. v. Hermansdorfer, 423 U.S. 336, 96 S. Ct. 584,

46 L. Ed. 2d 542 (1976) (disavowed in Quackenbush

regarding exclusivity of review by mandamus). Therefore,

Remand Orders based other than under 28 U.S.C. § 1447(c)

are reviewable, either by appeal, under the collateral order

doctrine, or by mandamus. Jd.

The United States Court of Appeals for the Fifth Circuit’s

ruling and Mandate correctly recognized the existence of

original subject matter jurisdiction under the OCSLA with

respect to the contract dispute at issue. However, the Court

commented, “... we fail to see how this contract dispute

‘arises under’ federal law”. The Court’s holding implicitly

found that concurrent jurisdiction between the State and

Federal Courts to be a sound basis for remand, effectively

denying the Petition for Writ of Mandamus and refusing to

vacate the District Court’s decision to remand.

SOI submits the Court’s findings and inconsistent

holding in failing to determine that the dispute “arises under”

Federal law and ruling that concurrent jurisdiction between

State and Federal Courts may be the sole ground for remand,

are erroneous.

The OCSLA is clear in providing for adoption of the

law of the adjacent State as a gap filler where there exists no

applicable Federal law:

... To the extent that they are applicable and not

inconsistent with this act or with other Federal

laws and regulations of the Secretary now in effect

or hereafter adopted, the civil and criminal Jaws

of each adjacent state now in effect are hereafter

adopted, amended, or repealed are hereby

declared to be the law of the United States for

that portion of the subsoil and seabed of the outer

Continental Shelf, . . .

43 U.S.C. § 1333(a)(2)(A) (emphasis added).'* The adopted

state law thereby becomes surrogate Federal law.

E.g., Tennessee Gas Pipeline Co. v. Houston Cas. Ins. Co.,

87 F.3d 150, 153-54 (Sth Cir. 1996), reh’g denied, 95 F.3d

1151 (Sth Cir. 1996). OCSLA’s mandated application of

adjacent State law requires the State law become surrogate

Federal law. Applied to these facts, SAIC’s State law claims

are transformed into Federal claims and thereby “arise under”

Federal law. See Rodrigue, supra; Hufnagel, supra;

Tennessee Gas Pipeline Co., supra; Amoco Production Co.

v. Sea Robin Pipeline Co., 844 F.2d 1202 (Sth Cir. 1988);

Dennis v. Bud's Boat Rental, Inc., 987 F. Supp. 948

(E.D. La. 1997); Joyner v. Ensco Offshore Oil Co., 2000

WL 341029 (E.D. La. 2000); Stokes v. Petroleum

Helicopters, 1997 WL 695557 (E.D. La. 1997); Bondi v.

Atlantic-Richfield Co., 1994 WL 66753 (E.D. La. 1994).

Thus, removal was proper under 28 U.S.C. § 1441(b),

which provides:

... Any civil action of which the district courts

have original jurisdiction founded on a claim or

arising under the Constitution, treaties or laws

18. See Appendix G at 25a.

(ee ee ee eee eros eee >

of the United States shall be removable without

regard to the citizenship or residence of the

parties ...

28 U.S.C. § 1441(b) (emphasis added).'®

The United States Court of Appeals for the Fifth Circuit’s

pronouncement in failing to recognize how this matter

“arises under” Federal law for purposes of removal

jurisdiction should not serve as the reason to deprive SOI of

its statutory right to adjudicate this matter in a federal forum.

E.g., Huber v. Greyhound Lines, Inc., 926 F. Supp. 821

(E.D. Wis. 1996); Smith v. Anadrill, Inc., 762 F. Supp. 1267

(S.D. Tex. 1991); Merey Hospital Ass’n v. Miccio,

604 F. Supp. 1177 (E.D.N.Y. 1985).

The United States Court of Appeals for the Fifth Circuit,

in Hufnagel, supra, held that a State law claim made

applicable Federal law by OCSLA, is one “arising under”

OCSLA within the meaning of 28 U.S.C. § 1441(b)

and 43 U.S.C. § 1333, and is thus removable to Federal Court.

This ruling is consistent with this Honorable Court’s

holding in Rodrigue, supra, the United States Court

of Appeals for the Fifth Circuit’s prior dictates of

Tennessee Gas Pipeline Co., supra, and the general policy

of uniformity concerning litigation of disputes arising on

the Outer Continental Shelf by the Federal Courts,

particularly since Congress has intended to treat the Shelf

as a “federal enclave”. Rodrigue, 395 U.S. at 354.

In Rodrigue, the Supreme Court held that the purpose of

OCSLA was “. . . to define a body of law applicable to the

seabed, the subsoil, and the fixed structures such as those in

19. See Appendix E at 23a.

question here on the Outer Continental Shelf.” Jd.

In Tennessee Gas Pipeline Co., supra, the United States

Court of Appeals for the Fifth Circuit addressed whether

OCSLA claims arise under Federal law for removal purposes.

The Court stated, “given the national interest that prompted

Congress to pass OCSLA and grant broad jurisdiction under

43 U.S.C. § 1349, Congress arguably intended to vest the

Federal Courts with the power to hear any case involving

the OCS, even on removal, without regard to citizenship.”

Tennessee Gas Pipeline Co., 87 F.3d at 156.

The United States Court of Appeals for the Fifth Circuit

Panel, by Mandate in these proceedings, correctly concluded

that original jurisdiction does, in fact, exist “... as a result

of the subject matter of the contract in issue being a support

activity of the petroleum platforms and aiding in the

production of minerals of the Outer Continental Shelf, . . .”.?°

Section 1333(a)(2) of the OCSLA provides that laws of

the adjacent State, when not inconsistent with OCSLA or

with other Federal laws and regulations are declared to be

Federal law. 43 U.S.C. § 1333(a)(2)(A).?! In this matter,

the laws of the State of Texas, as the State adjacent to the

Outer Continental Shelf-based operations at issue, became

surrogate Federal law for purposes of resolving this

contractual dispute. SOI submits the absence of sound

reasoning to differentiate the legal analysis between laws

which are derived directly from a Federal statute and those

which derive from the law of the adjacent State and become

Federal by virtue of the surrogate law mandate of OCSLA.

20. See Appendix A at 2a.

21. See Appendix G at 25a.

See, e.g., Tennessee Gas Pipeline Co., supra; Amoco

Production Co., supra; Joyner, supra; Stokes, supra;

Bondi, supra.

The Hufnagel Court made no such distinction, applying

the Louisiana Civil Code as surrogate Federal law to a

personal injury claim arising on the Outer Continental Shelf.

Hufnagel, supra. The Civil Code Article claim was

determined to be one “arising under” the OCSLA

for purposes of removal under § 1441(b) and § 1333.

SOI submits the absence of a valid or rational distinction

between the Louisiana Civil Code Article claims in Hufnagel

and those Texas-based contract claims herein with respect

to whether they “arise under” Federal law (OCSLA)

for purposes of subject matter jurisdiction.

All elements of SAIC’s stated cause of action arise under

the OCSLA, since the contractual dispute at issue directly

pertain to matters related to the production of minerals on

the Outer Continental Shelf. SAIC’s claims specifically

pertain to activities conducted and/or which occurred on the

Outer Continental Shelf; hence, the OCSLA controls.

Preemption is not nor does it become an issue. The District

Court erroneously noted removal was premised on grounds

that the OCSLA preempted the case. Rather, the case was

removed pursuant to the specific jurisdictional grant

contained within the OCSLA, as arising under Federal law.

The District Court cited the “well-pleaded complaint-

rule” in noting the propriety of removal depends upon

whether the case falls within the original federal question

jurisdiction under “38 (sic) U.S.C. § 1331”.” It is well-settled

22. See Appendix B at Sa.

that a cause of action “arises under” Federal law only when

the “well-pleaded” complaint of plaintiff raises issues of

Federal law. Gully v. First Nat'l Bank, 299 U.S. 109, 57

S. Ct. 96, 81 L. Ed. 70 (1936). The jurisprudentially

recognized corollary is “complete preemption”, which holds,

“... Congress may so completely preempt a particular area

that any civil complaint raising this select group of claims is

necessarily federal in character.”> Heimann v. National

Elevator Indus. Pension Fund, 187 F.3d 493, 499 (Sth Cir.

1999), citing and quoting, Metropolitan Life Ins. Co. v.

Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 95 L. Ed. 2d 55

(1987).

SOI submits the “well-pleaded complaint rule” and the

issue of “complete preemption” are never reached as the

OCSLA contains its own specific jurisdictional grant,

43 U.S.C. § 1349(b)(1)(A).% In Amoco Production Co.,

supra, the United States Court of Appeals for the Fifth Circuit

addressed whether an action involving the “take-or-pay”

obligations in contracts for the sale or purchase of natural

gas involved a dispute within the District Court’s jurisdiction

under the Outer Continental Shelf Lands Act. In ultimately

deciding that the contracts involved “production”,

and therefore were within OCSLA jurisdiction, the Court,

with regard to the “well-pleaded complaint rule”, stated:

In determining federal court jurisdiction, we need

not traverse the Serbonian Bog of the well

23. “Complete preemption” is sometimes confused with

“ordinary preemption”, the latter of which does not implicate federal

question subject matter jurisdiction. Heimann, 187 F.3d at 499.

24. See Appendix H at 26a.

pleaded complaint rule ... because ... OCSLA

expressly invests jurisdiction in the United States

District Courts.

Amoco Production Co., 844 F.2d at 1205 (internal citations

omitted and emphasis added).”° The existence of OCSLA-

grounded original subject matter jurisdiction, as correctly

found by the United States Court of Appeals for the

Fifth Circuit in its Mandate, dictates that neither the

“well pleaded complaint rule” nor its corollary of “complete

preemption” are at issue.

25. See also, LaRousse v. Murphy Exploration & Prod. Co.,

1998 WL 283304 (E.D. La. 1998); Martin v. Pride Offshore Co.,

Inc., 1998 WL 24423 (E.D. La. 1998); and Fields v. Pool Offshore,

Inc., 1997 WL 767634 (E.D. La. 1997), reh’g denied, 1998

WL 43217 (E.D. La. 1998), aff'd, 182 F.3d 353 (Sth Cir. 1999),

cert. denied, _U.S.__, 120 S. Ct. 1161, 145 L. Ed. 2d 1073 (2000).

II. WHETHER THE RULING AND MANDATE OF

THE UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT, WHICH PERMIT

REMAND TO STATE COURT OF A CIVIL

ACTION PROPERLY REMOVED UNDER

ORIGINAL FEDERAL QUESTION SUBJECT

MATTER JURISDICTION PREDICATED

SOLELY ON CONCURRENT STATE AND

FEDERAL COURT JURISDICTION, THEREBY

STANDING IN CONFLICT WITH A DECISION OF

THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT, AND WHICH ISSUE IS

RES NOVA WITH THIS HONORABLE COURT,

PRESENT COMPELLING REASONS FOR

REVIEW BY WRIT OF CERTIORARI.

The United States Court of Appeals for the Fifth Circuit’s

refusal to find District Court error in remanding the case

based upon the existence of concurrent jurisdiction between

the State and Federal Courts, conflicts with the opinion from

the United States Court of Appeals for the Eighth Circuit,

Williams v. Ragnone, 147 F.3d 700 (8th Cir. 1998).

Petitioners (Defendants in the District Court) have a

statutory right of removal. There was no defect in the removal

procedure. However, Petitioners’ right of removal has

effectively been denied by the United States Court of Appeals

for the Fifth Circuit. The United States Supreme Court has

not previously spoken on the precise issue of whether the

existence of concurrent jurisdiction in State and Federal

Courts may serve as the sole basis for remand and therefore

be used to defeat a defendant’s statutory right to removal.

This issue res nova to this Honorable Court, calls for

examination of the Federal Court’s original subject matter

jurisdiction, removal jurisdiction and a defendant’s statutory

right to removal, which present inconsistent decisions from the

Circuit Courts of Appeal, and, SOI respectfully submits, should

be sesolved by this Honorable Court.

Federal Courts, as courts of limited jurisdiction,

afford restricted and limited removal jurisdiction.

Justice Stone, speaking for the Court in Shamrock Oil & Gas

Corp. v. Sheets, 313 U.S. 100, 61 S. Ct. 868, 85 L. Ed. 1214

(1941), stated:

[nJot only does the language of the Act of 1887

evidence the congressional purpose to restrict the

jurisdiction of the federal courts on removal, but the

policy of the successive Acts of Congress regulating

the jurisdiction of federal courts is one calling for

the strict construction of such legislation. . . .

Shamrock Oil & Gas Corp., 313 U.S. at 108-109.

A defendant’s right to removal dates back to the original

Judiciary Act of 1789.7 The current removal statute,

28 U.S.C. § 1441, limits and restricts a defendant’s ability to

remove actions. When matters are clearly within the removal

jurisdiction of a Federal Court, that statutory nght should be

protected and the removing defendant should be allowed the

opportunity to proceed in a Federal forum. See, e.g., Huber v.

Greyhound Lines, Inc., 926 F. Supp. 821 (E.D. Wis. 1996);

Smith v. Anadrill, Inc., 762 F. Supp. 1267 (S.D. Tex. 1991);

Mercy Hospital Ass'n v. Miccio, 604 F. Supp. 1177 (E.D.N.Y.

1985).

The OCSLA applies, controls and original subject matter

jurisdiction exists by virtue thereof. SOI submits removal

26. 1 Stat. 73, c. 20, § 12.

jurisdiction exists pursuant to 28 U.S.C. § 1441(b).

The United States Court of Appeals for the Fifth Circuit,

while finding that original subject matter jurisdiction exists,

erroneously found that the matter did not arise under Federal

law (previously addressed herein), and held that because of

the existence of concurrent jurisdiction between State and

Federal Courts, this matter was properly remanded.”’

Although State Courts have concurrent jurisdiction, the

law to be applied is exclusively Federal. 43 U.S.C.

§ 1333(a)(2)(A)*; Rodrigue, 395 U.S. at 357. The contractual

disputes, while concerning a Texas law conceived contract,

“arises under” Federal law pursuant to the OCSLA surrogate

law mandate. As such, SOI has an absolute statutory right to

removal under 28 U.S.C. § 1441(b). The District Court,

in granting the Motion to Remand, deprived SOI of its

statutory right to proceed in a Federal forum. SOI submits

the District Court had neither the authority nor discretion

to remand this properly removed claim. SOI recognizes

parties may consent to litigate OCSLA matters in State Court.

However, the United States Court of Appeals for the

Fifth Circuit’s reference to concurrent jurisdiction between

the State and Federal Courts with respect to OCSLA claims

as the proper and sole basis for remand is misplaced and

affords neither a sufficient nor permissible basis to deprive

SOI of its statutory right to proceed in a Federal forum.

It is well-settled that jurisdiction is concurrent between

State and Federal Courts over personal injury and

contract actions arising under the OCSLA. E£.g., Gulf

Offshore Co. v. Mobil Oil Co., 453 U.S. 473, 484, 101 S. Ct.

27. See Appendix A at la.

28. See Appendix G at 25a.

2870, 2878, 69 L. Ed. 2d 784 (1981); Offshore Logistics,

Inc. v. Tallentire, 477 U.S. 207, 232, 106 S. Ct. 2485, 2499,

91 L. Ed. 2d 174 (1986); Laredo Offshore Constructors, Inc.

v. Hunt Oil Co., 754 F.2d 1223, 1229 (Sth Cir. 1985).

The existence of concurrent jurisdiction does not grant the

District Court the authority or discretion to remand based

solely on such concurrent jurisdiction and to so grant is

impermissible. Williams v. Ragnone, 147 F.3d 700, 702-703

(8th Cir. 1998). To do so effectively defeats a defendant’s

statutory right to removal.

The majority rule is clear. Absent contrary Congressional

declaration, all civil actions brought under Federal

statute over which Federal and State Courts have concurrent

jurisdiction are removable. See, e.g., Williams, supra;

Warren v. United States, 932 F.2d 582, 585 (6th Cir. 1991);

Emrich v. Touche Ross & Co., 846 F.2d 1190,-1196 (9th Cir.

1988); Chilton v. Savannah Foods & Indus., Inc., 814 F.2d

620, 623 (11th Cir. 1987); Baldwin v. Sears, Roebuck & Co.,

667 F.2d 458, 460 (5th Cir. 1982); Whitfield v. Federal Crop

Ins. Corp., 557 F.2d 413, 414 (4th Cir. 1977); McPhillips v.

Blue Cross & Blue Shield of Alabama, 79 F. Supp. 2d

1325, 1327 (M.D. Ala. 2000); Weinstein v. Paul Revere Ins.

Co., 15 F. Supp. 2d 552, 559 (D.N.J. 1998); Stevo v. CSX

Transp., Inc., 940 F. Supp. 1222, 1224 (N.D. Ill. 1996);

Huber, supra; Callison v. Charleston Area Medical Center,

Inc., 909 F. Supp. 391, 394 (S.D.W.Va. 1995); Yurcik v. Sheet

Metal Workers’ Int'l Assoc., 889 F. Supp. 706, 707 (S.D.N.Y.

1995); Smith, supra; Mercy Hospital Ass’n., supra;

McArthur v. Carmichael, 1998 WL 146233 (S.D.N.Y. 1998);

Barrois v. Title, 1996 WL 312063 (E.D. La. 1996).

In so ruling that concurrent jurisdiction permits remand

to State Court, the United States Court of Appeals for the

Fifth Circuit has clearly ruled in conflict with the United

States Court of Appeals for the Eighth Circuit in Williams v.

Ragnone, supra. Furthermore, the United States Court of

Appeals for the Fifth Circuit’s Mandate arguably contradicts

its own ruling in Baldwin v. Sears, Roebuck & Co., supra,

which, consistent with the majority rule, held that absent

contrary Congressional declaration, all civil actions brought

under Federal statute over which concurrent jurisdiction

exists are clearly removable. Baldwin, 667 F.2d at 460.

When there exists a lack of subject matter jurisdiction,

remand is clearly proper. 28 U.S.C. § 1447(c)”; Quackenbush

v. Allstate Ins. Co., 517 U.S. 706, 116 S. Ct. 1712,

135 L. Ed. 2d 1 (1996). Further, a case may be remanded

for defect in the removal procedure, when warranted

by Federal statute, when there exists a contract between

the parties so directing, or when the Court has discretion

to dismiss the action, such as when abstention is at issue.*°

E.g., McDermott Int'l, Inc. v. Lloyds Underwriters of London,

944 F.2d 1199, 1204 (SthCir. 1991), reh’g denied, 947 F.2d

1489 (Sth Cir. 1991). Notably, however, the existence of

concurrent jurisdiction between State and Federal Courts is

not amongst those permissible reasons, cannot be used to

defeat removal, and should not be the sole reason for remand.

See, e.g., Williams, supra; Weinstein, supra; Huber, supra;

McArthur, supra.

29. See Appendix F at 24a.

30. Abstention is appropriate when a Federal constitutional

issue might be mooted or presented differently by a State Court,

when there are difficult questions of State law bearing on

policy problems of substantial public import of transcending

importance, and, under certain circumstances, when federal

jurisdiction has been invoked for purpose of restraining State

criminal proceedings. Colorado River Water Conservation District

v. United States, 424 U.S. 800, 96 S. Ct. 1236, 47 L. Ed. 2d 483

(1976) (internal citations omitted).

The issue of whether the existence of concurrent

jurisdiction between State and Federal Courts may be the

sole reason for remand, when the matter was otherwise

properly removed, is res nova with this Honorable Court.

The United States Court of Appeals for the Fifth Circuit

permitted remand based solely on concurrent jurisdiction

between State and Federal Courts, effectively thwarting

Petitioners’ statutory right to removal and thereby the

siatutorily granted access to Federal Court. Such ruling

effectively negates the removal statute, for a District Court

could conceivably remand all properly removed cases based

solely on the existence of concurrent jurisdiction between

State and Federal Courts, an inherent circumstance in a

proper removal setting.

CONCLUSION

The OCSLA expressly provides that the law of the

adjacent State is to be applied as Federal law. Jurisprudence

of this Honorable Court and a prior ruling of the United States

Court of Appeals for the Fifth Circuit support the rule that a

claim emanating from activities on the Outer Continental

Shelf “arise under” the OCSLA. Therefore, for purposes of

original subject matter jurisdiction and removal, Federal law

governs.

The ruling and Mandate of the United States Court

of Appeals for the Fifth Circuit conflict with controlling

jurisprudence in erroneously holding that State law-based

claims, which emanate from disputes occurring on the

Outer Continental Shelf, do not “arise under” Federal law,

while simultaneously ruling that original subject matter

jurisdiction exists under the OCSLA.

Res nova to this Honorable Court is whether a civil action

properly removed under original federal question subject

matter jurisdiction may be remanded predicated solely on

concurrent jurisdiction between State and Federal Courts.

The United States Court of Appeals for the Fifth Circuit, in

its ruling and Mandate, answered this question in the

affirmative thereby sanctioning remand to State Court of such

an action. Such ruling conflicts with a decision of the United

States Court of Appeals for the Eighth Circuit and effectively

denies a defendant’s statutory right to remove the action and

proceed in Federal Court.

Petitioners respectfully suggest the result of the United

States Court of Appeals for the Fifth Circuit’s ruling and

thereby the affect on removal actions, warrants grant of this

Petition for a Writ of Certiorari.

Upon review by Writ of Certiorari, the ruling and

Mandate of the United States Court of Appeals for the Fifth

Circuit should be affirmed, in part, as to the existence of

original subject matter jurisdiction under the OCSLA, and

reversed, in part, with instructions to vacate the District

Court’s Remand Order and to remand for consistent

proceedings.

Respectfully submitted,

RALPH E. KRAFT

Counsel of Record

CHARLES A. MouTON

JEAN ANN BILLEAUD

Preis, KRAFT & Roy

Attorneys for Petitioners

Versailles Centré

Suite 400

102 Versailles Boulevard

Lafayette, Louisiana 70509

(337) 237-6062

APPENDIX

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

DATED AND FILED JULY 19, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20582

In Re: STOLT COMEX SEAWAY HOLDINGS INC:;

STOLT COMEX SEAWAY INC:;

STOLT OFFSHORE INC.

Petitioners

Petition for Writ of Mandamus to the United States

District Court for the

Southern District of Texas, Houston

Before WIENER, EMILIO M. GARZA and PARKER,

Circuit Judges.

BY THE COURT:

The district court entered an Order remanding this case

to the 164th Judicial District Court for Harris County, Texas,

reasoning that the burial of fiber optic communication cable

on the Outer Continental Shelf was not a support activity of

petroleum platforms and that the dispute at hand, which is a

contract dispute involving the laying of said cable, does not

involve the exploration, development or production of

minerals of the Outer Continental Shelf and that therefore

jurisdiction was lacking in the federal court. While we

disagree with the district court and find that original

Appendix A

jurisdiction does, in fact, exist in the district court as a result

of the subject matter of the contract in issue being a support

activity of the petroleum platforms and aiding in the

production of minerals of the Outer Continental Shelf, such

jurisdiction is not exclusive in the federal courts, but is

concurrent with the state courts. Further, we fail to see how

this contract dispute “arises under” federal law. In other

words, we have identified no element of plaintiff's cause of

action, much less an essential element, that is created by a

law of the United States, nor do we have a situation where

Congress has so completely preempted breach of contract

claims involving support activity of oil and gas production

on the Outer Continental Shelf so that such claims would

necessarily be federal in nature. See Metropolitan Life Ins.

Co. v. Taylor, 481 U.S. 58, 63-64 (1987); see also

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-94, 398-99

(1987).

Our disagreement, however, with the district court

involving its findings that the laying of this cable is not a

support activity or involves the exploration, development or

production of minerals on the Outer Continental Shelf does

not alter the correctness of its conclusion that the state and

federal courts have concurrent jurisdiction over contract

issues brought under the OCSLA, and that no complete

pre-exemption exists. The petition for mandamus is,

therefore, DENIED.

APPENDIX B — MEMORANDUM AND ORDER OF

REMAND OF THE UNITED STATES DISTRICT

COURT FOR THE SOUTHERN DISTRICT OF TEXAS,

HOUSTON DIVISION DATED JUNE 7, 2000

AND ENTERED JUNE 8, 2000

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. H-00-1271

SCIENCE APPLICATIONS INT’L CORPORATION,

Plaintiff

VS.

STOLT COMEX SEAWAY HOLDINGS, INC..,

STOLT COMEX SEAWAY, INC., -

AND STOLT OFFSHORE, INC.,

Defendants

MEMORANDUM AND ORDER OF REMAND

Pending before the Court in the above referenced action

alleging breach of contract and negligent misrepresentation

under Texas law, removed from the 164th Judicial District

Court in Harris County, Texas by Defendants Stolt Comex

Seaway Holdings, Inc., Stolt Comex Seaway, Inc., and Stolt

Offshore, Inc. under U.S.C. § 1331 and § 1441(b) on the

grounds that this case is preempted by the Outer Continental

Shelf Lands Act (“OCSLA”), 43 U.S.C. §§ 1331, ef seq.,

Appendix B

are the following motions: (1) Plaintiff Science Application

International Corporation’s motion to remand (#6);

(2) Defendants’ motion to extend submission day and for

leave to conduct limited discovery (#10); and (3) Defendants’

motion for expedited consideration (#12).

Plaintiff explains that this case arises out of a contract

that it entered into with Petroleum Communications, Inc. -

(“PetroCom”’)' to lay approximately 500 miles of fiber optic

cable on the floor of the Gulf of Mexico, in part on the Outer

Continental Shelf (“OCS”) off the shore of Texas, as a

portion of a communications system known as “FiberWeb”

connecting and designed to increase the speed of

communication among offshore platforms and the Houston -

and New Orleans central business districts. Defendants,

which provide underwater robotics, diving services and

underwater engineering and construction to the offshore oil

and gas industry, were selected to lay and bury the fiber-optic

cable in the ocean floor but were unable to perform their

contractual obligations within the time allowed.

The removing parties bear the burden of proving that

removal was proper and that Plaintiff's claims arise under

OCSLA. Carpenter v. Wichita Falls Indep. School Dist.,

44 F.3d 362, 365 (Sth Cir. 1995). As here, where there is no

diversity of citizenship among the parties, the propriety of

1. According to a press release, dated September 5, 1997

submitted by Defendants as an exhibit to their opposition to the

motion to remand, “PetroCom, a Louisiana corporation, is a leading

provider of telecommunications services to the energy industries in

the Gulf of Mexico with facilities in New Orleans, La.; Lafayette,

La.; and Houston, Tx.”

ccm i

Appendix B

removal depends upon whether the case falls within original

federal question jurisdiction under 38 U.S.C. § 1331. Under

the well-pleaded complaint rule, a defendant may only

remove a case to federal court where the complaint (or

petition in Texas state court), standing by itself, establishes

that the case “arises under” federal law within the meaning

of § 1331. “A defendant may not remove on the basis of an

anticipated federal defense, but instead must show that a

federal right is ‘an element, and an essential one, of the

plaintiff's cause of action.’ ” Carpenter, 44 F.3d at 366,

quoting Gully v. First Nat’l Bank, 299 U.S. 109, 111 (1936).

If the plaintiff's complaint states only state-law causes of

action, the case does not arise under federal law and many

not be removed. Kramer v. Smith Barney, 80 F.3d 1080, 1082

(Sth Cir. 1996). “Nor will an anticipated federal defense,

including the defense of preemption, support removal.” Jd.

Only where the preemption is “complete” — where Congress

has “so completely pre-empt[ed] a particular area that any

civil complaint raising this select group of claims is

necessarily federal in character” — may a petition asserting

only state-law causes of action be removed. /d., citing

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-64

(1987). See also Caterpillar, Inc. v. Williams, 482 U.S. 386,

392-94, 398-99 (1987) (In the absence complete preemption,

2. Generally federal preemption is a defensive matter that does

not give rise to federal question jurisdiction in a nondiversity case,

even in an action for a declaratory judgment that a state law is

preempted. Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1 (1983). Only where the preemption is “complete,”

i.€., 1S SO pervasive and displacing as to bring the case within the

rule of Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, is

removal proper.

Appendix B

a plaintiff in a nondiversity suit is the master of his complaint

and may avoid federal subject-matter jurisdiction by relying

exclusively on state law.).

As a threshold matter, Defendants have requested an

extension of time to respond and leave to conduct limited

discovery on the issue of subject matter jurisdiction under

OCSLA. Defendants provide a proposed set of interrogatories

on the question and seek depositions of a corporate

representative of Defendants and of PetroCom. They also

move for expedited consideration of the motion to remand

once the limited discovery is completed. In their opposition

to the motion to remand, they make more specific arguments,

to be discussed subsequently.

Plaintiff opposes an extension and leave to conduct

limited discovery, arguing that such discovery is irrelevant

because “to support removal, the defendant must locate the

basis of federal jurisdiction in those allegations necessary

to support the plaintiff's claim, ignoring his own pleadings

and petition for removal.” Carpenter v. Wichita Falls Indep.

School Dist., 44 F.3d 362, 365 (Sth Cir. 1995) (remand

motion should be based on petition alone). As will be

discussed, if Plaintiff's allegations fall within the ambit of

OCSLA’s jurisdictional mandate, the state law claims will

be preempted by what is termed OCSLA’s surrogate federal

law. Thus the Court addresses the arguments relating to the

motion to remand before determining whether limited

discovery should be permitted to aid in the determination.

Plaintiff moves for remand arguing that this Court lacks

jurisdiction under OCSLA, 42 U.S.C. § 1349(b)(1), which

Appendix B

provides in relevant part, “The district courts of the United

States shall have jurisdiction of cases and controversies

arising out of, or in connection with (A) any operation

conducted on the Outer Continental Shelf which involves

exploration, development, or production of the minerals, of

the subsoil and seabed of the outer Continental Shelf, or

which involves rights to such minerals... .”? Plaintiff

contends that Defendants’ burial of the fibre cable did not

involve “exploration,” “development” or “production” of

minerals of the OCS as those terms are defined by 43 U.S.C.

§ 1331 (k)-(m). Those terms refer to processes involved in

the search for minerals, preparing to extract them by drilling

wells and constructing platforms, inter alia, and removing

the minerals and transferring them to shore.’ Tennessee Gas

3. OCSLA was enacted in 1953 to establish federal ownership

and control over the mineral resources of the OCS and to provide

for the development of those natural resources. E.P. Operating Ltd.

Partnership v. Placid Oil Co., 26 F.3d 563 (5th Cir. 1994). It also

establishes a regulatory scheme controlling leasing and operations

there. Jd. at 566.

4. “Exploration” is defined as the “process of searching for

minerals,” including geophysical surveys and drilling.” § 1331(k).

“[D]evelopment means those activities which take place following

the discovery of minerals in paying quantities, such as geophysical

activity, drilling, platform construction, and operation of all onshore

support facilities, and which are for the purpose of ultimately

producing the minerals discovered.” § 1331(1). “ ‘{P]roduction’

means those activities which take place after the successful completion

of any means for the removal of minerals, including such removal,

field operations, transfer of minerals to shore, operation monitoring,

maintenance, and work-over drilling.” § 1331(M).

(Cont'd)

Appendix B

Pipeline v. Houston Casualty Ins. Co., 87 F.3d 150, 154-55

(Sth Cir. 1996). Clearly the burial of the cable did not relate

directly to searching for, developing or extracting minerals

from the OCS, Plaintiff argues.

Plaintiff asserts that OCSLA jurisdiction is generally

limited to litigation directly relating to petroleum platforms

or pipelines, essential instrumentalities for the exploration,

development, and production of the OCS’s resources. Jd. at

154-55 (suit regarding damage to offshore platform covered

by OCSLA); EP Operating Ltd. Partnership v. Placid Oil

Co., 26 F.3d 563, 568 (Sth Cir. 1994) (dispute over ownership

of offshore platform covered by OCSLA because resolution

of the dispute “would affect the efficient exploitation of

resources from the OCS and/or threaten the total recovery

(Cont’d)

The Court notes that “operation” is not defined in the OCSLA.

In Amoco Prods. Co. v. Sea Robin Pipeline Co., 844 F.2d 1202,

1207 (Sth Cir. 1988), the Fifth Circuit “generally” agreed that

“operation” “refers to the doing of some physical act” and explained

that otherwise the situs of the “operation . . . involv[ing] exploration,

development, or production of minerals ... of the [OCS]” would

be uncertain making it extremely difficult to ascertain whether the

“operation” had been conducted on the OCS,” as required by § 1349

(“any operation conducted on the Outer Continental Shelf which

involved exploration, development, or production of the minerals

....”). The Fifth Circuit further stated in E.P. Operating Ltd.

Partnership v. Placid Oil Co., 26 F.3d 563, 568 (Sth Cir. 1994) that

the terms “operation,” “exploration,” “development,” and

“production” “are defined broadly in the statutes to encompass the

full range of oil and gas activity from locating mineral resources

through the construction, operation, servicing and maintenance of

facilities to produce those resources.”

* ee man Meet ETN

Appendix B

of federally-owned resources”); Amoco Prods. Co. v. Sea

Robin Pipeline Co., 844 F.2d 1202, 1210 (5th Cir. 1988)

(OCSLA applied to dispute over “take-or-pay” provision in

contract regarding purchase of natural gas from Gulf because

the dispute might “alter[ ] the progress of production

activities on the OCS [and consequently] threatens to impair

the total recovery of federally-owned minerals from the

reservoir or reservoirs underlying the OCS”); Laredo

Offshore Constructors, Inc. v. Hunt Oil Co., 754 F.2d 1223

(Sth Cir. 1985) (OCSLA applied to breach of contract claim

related to the construction of an offshore platform); United

Offshore Co. v. Southern Deepwater Pipeline Co., 899 F.2d

405 (Sth Cir. 1990) (jurisdiction exists under OCSLA

because contract dispute regarding the discharge of the

operator of a gas pipeline connected to the OCS “would affect

the exploitation of minerals” on the OCS).

In contrast, jurisdiction was found not to exist under the

OCSLA in Brooklyn Union Exploration Co. Inc. v. Tejas

Power Corp., 930 F. Supp. 289, 292-93 (S.D. Tex. 1996), in

which a seller of natural gas from the OCS claimed that it

had been underpaid by a buyer of the gas because the dispute

did not threaten to “alter the flow of production or otherwise

affect the efficient exploitation of natural resources in the

OCS.” In Harris Trust and Savings Bank v. Ener Assets

Int'l Corp., 124 F.R.D. 115 (E.D. La. 1989), the ceurt held a

priority dispute between holders of a mortgage covering oil

and gas leases on the OCS would not affect production on

the OCS and therefore was not within the ambit of the

OCSLA. The Harris Trust court distinguished the facts

before it from those in Sea Robin, 844 F.2d 1202, by pointing

out that the priority dispute did not have an “immediate

10a

Appendix B

bearing on the production of” minerals or “threaten[ ] to

impair the total recovery of the federally-owned minerals

from the reservoir or reservoirs underlying the OCS.” 124

F.R.D. at 119, quoting Sea Robin, 844 F.2d at 1210.

Plaintiff argues that the work of laying and burying the

cable did not involve a search for minerals on, extracting

minerals from, or removing minerals from the OCS and

transferring them to shore. Tennessee Gas, 87 F.3d at 154-55.

Instead, the fiber optic cable system was intended to speed

communications between petroleum platforms in the Gulf

of Mexico and the mainland of the United States. This dispute

over a breach of contract or negligent misrepresentation of

Defendants’ abilities to bury the cable properly and timely

does not threaten the exploitation of minerals in the OCS so

as to confer jurisdiction under the OCSLA.

In opposition to the motion to remand, Defendants assert

that the FiberWeb communications system is intended to

serve as a data and/or communications link to oil and gas

offshore producing platforms, and that the “installation of

equipment [is] integral to” and directly affects the

exploration, development or production of minerals from the

subsoil and seabed of the OCS. Specifically they contend

that “the defined purpose of FiberWeb is to provide broad

band communications in the oil and gas industry offshore,

based on several factors ... including: the aggressive

expansion of the energy industry into the deep waters of the

Gulf of Mexico; the increasing amount of real-time data

generated from seismic wireline and measurement during

drilling activities; the more sophisticated oil and gas

production and process control systems not being deployed

ieee iene

lla

Appendix B

offshore and subsea; the trend to increase automation and

reduce the number of workers assigned to the offshore

production platforms; the need to connect offshore

infrastructure to enterprise computing systems, which

typically operate at higher speeds than legacy networks; the

need to improve compliance with growing regulatory

oversight by the MMS, EPA, OSHA, and other agencies;

and the desire to improve the quality of life for offshore

personnel by delivery of local cable and distance learning

programs.” Opposition to the Motion to Remand (#9) at 4-5.

Defendants argue that the laying and burying of the cable is

a “physical act” performed on the OCS under OCSLA.

Amoco Production Co. v. Sea Robin Pipeline Co., 844 F.2d

1202, 1207 (Sth Cir. 1995); Tennessee Gas Pipeline v.

Houston Casualty Ins. Co., 87 F.3d 150, 154 (Sth Cir. 1996).

Moreover, under OCSLA, the definition of “development”

includes “operation of all onshore suppert facilities,” and

the definition of “production” includes “operation

monitoring” under 43 U.S.C. § 1331(1) and (m), both of

which are design features of FiberWeb. They also claim that

FiberWeb was expressly installed to connect nine Gulf Coast

Oil platforms to land falls at Freeport, Texas and Fourchon,

Louisiana and would allow offshore platforms to be

monitored remotely from locations onshore. Opposition

at 7-8. “Development” and “production” under OCSLA are

broadly defined and to be broadly construed. EP Operating

Ltd. Partnership v. Placid Oil Co., 26 F.3d 563, 568 (Sth

Cir. 1994). Moreover, they point to the Fifth Circuit “but

for” test for determining if a controversy falls under OCSLA,

i.e., if the subject matter of the lawsuit would have occurred

“but for” the subject operations on the OCS. Tennessee Gas

Pipeline, 87 F.3d at 155; Recar v. CNG Producing Co., 853

12a

Appendix B

F.2d 367, 369 (Sth Cir. 1988). They then argue that but for

the operation on the OCS involving the development and/or

production of natural resources, which consists of the laying

and burial of fiberoptic cable, the dispute between the parties

would not have occurred. Thus Defendants insist that the

Court has jurisdiction over this suit under OCSLA.

Furthermore they provide documents obtained from the home

pages and/or websites of PetroCom and Defendants, an

affidavit from Defendant Stolt Offshore Inc.’s Senior Project

Manager Robert Murray about the cable burial project, and

a couple of news articles to support their arguments about

FiberWeb. Finally, they argue that removal is proper under

Hufnagel v. Omega Services Industries, Inc., 182 F.3d 340,

348-49 (Sth Cir. 1999) because the claims here under Texas

or Louisiana ‘aw are adopted as surrogate federal law by

OCSLA, providing original federal jurisdiction. See also

Dennis v. Bud's ~>at Rental, Inc., 987 F. Supp. 948, 951-52

(E.D. La. 1997); Stokes v. Petroleum Helicopters, No. Civ.

A 97-0508, 1997 WL 695557 (E.D. La. 1997).

In a reply to Defendants, Plaintiff reiterates that to show

removal was proper, Defendants must, but fail to, locate the

basis of federal jurisdiction in Plaintiff's petition. Carpenter,

44 F.3d at 365. Nevertheless, Plaintiff argues that the petition

and the documents relied upon by Defendant demonstrate

that OCSLA does not apply to this case and that removal

was improper.

Defendants broadly argue that burying cable relates to

development or production of minerals in the OCS because

the term “development” encompasses all onshore support

facilities and “production” encompasses operation

13a

Appendix B

monitoring, both design features of FiberWeb. Leaving aside

the breadth of Defendants’ definitions, Defendants

emphasize that the burial of the cable did not involve

operation of an onshore support facility or monitoring of a

petroleum platform. They insist that the definition of

“development” does not encompass the construction of a

support facility tangentially related to the production of a

platform. Nor did the burying of the cable involve monitoring

of the removal of minerals, which would bring such activity

within the definition of “production.”

Furthermore, Plaintiff contends, the cases relied upon

by Defendants do-not support removal. In Laredo Offshore,

754 F.2d 1223, the Fifth Circuit held that a dispute over the

construction of a stationary platform on the OCS involved

“development” of minerals in the OCS because Congress

specifically included “platform construction” in the

definition of “development.” 43 U.S.C. § 1331(l). In

EP Operating Ltd. Partnership, 26 F.3d at 565, the Fifth

Circuit reviewed a dispute over ownership of an oil pipeline,

a natural gas pipeline, an offshore platform and related

processing facilities. Plaintiff reasons that OCSLA

jurisdiction over matters involving platforms and pipelines

is explicitly provided for in the definition of “production,”

which includes “those activities which take place after the

successful completion of any means for the removal of

minerals, including such removal ... [and] transfer of

minerals to shore.” 43 U.S.C. § 1331(m). In contrast the

burial of fiber optic cable is not within the definition of

“development” or “production.”

Nor insists Plaintiff does the “but for” test of jurisdiction

apply because in all three cited cases (Hufnagel, Tennessee

l4a

Appendix B

Gas, and Recar), the damage or injuries at issue occurred on

petroleum platforms, which are explicitly cover by OCSLA

and would not have occurred “but for” those platforms.

Finally, Plaintiff maintains, even if suits related to some

support activities of petroleum platforms were covered by

OCSLA, Defendants’ burial of the cable was not a support

activity. Only well beyond the facts alleged here could the

cable potentially be involve in operation monitoring or other

activities potentially related to the development or production

of petroleum. No OCSLA cases support such tortured efforts

to connect a dispute to the development or production of

minerals in OCS. Rather, in the cases either the petition

identifies OCSLA by name or it explicitly indicates that the

dispute related directly to a platform or pipeline. Because

the dispute at hand does not involve the exploration,

development, or production of minerals of the OCS, federal

jurisdiction is lacking and the Court should remand the case

to the 164th Judicial District Court of Harris County, Texas.

This Court observes that state courts have concurrent

jurisdiction over tort and contract issues brought under

OCSLA, so federal courts do not have exclusive jurisdiction.

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 482-84

(1981).

A threshold issue » ere in reviewing Plaintiff's insistence

that his well-pleadea. nplaint alleges only causes of action

_ under state law is whether OCSLA completely preempts state

law or whether, in this nondiversity case, if there is no

complete preemption under OCSLA, Plaintiff as the master

of his complaint is entitled to have this suit remanded to

state court.

15a

Appendix B

Preemption, which is rooted in the Supremacy Clause

of the United States Constitution, Art. VI, cl. 2, may be

express or implied and requires the Court to focus on

Congressional intent. Hetzel v. Bethlehem Stee! Corp.,

50 F.3d 360, 363 (Sth Cir. 1995). If there is no explicit

preemptive language in a statute, as is the case with OCSLA,

Congress’ intent-to supersede state law may be inferred where _

“(t]he scheme of federal regulation may be so pervasive as

to make reasonable the inference that Congress left no room

for the States to supplement it,” because “the Act of Congress

may touch a field in which the federal interest is so dominant

that the federal system will be assumed to preclude

enforcement of state laws on the same subject,” or because

“the object sought to be obtained by federal law and the

character of obligations imposed by it may reveal the same

purpose.” /d. Even if Congress does not completely displace

state regulation in a specific area, it can nullify state law to

the extent that the state law conflicts which federal law, and

a conflict occurs when “compliance with both federal and

state regulation is a physical impossibility, or when state

law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.”

Id. In sum, there are three ways that state law can be

preempted: (1) Congress explicitly states its intent that state

law be preempted; (2) the very comprehensive federal scheme

implies congressional intent to preempt state regulation in

the area; and (3) state law either directly conflicts with the

federal law or interferes with the regulatory prograri

established by Congress. Jd.

OCSLA has an unusual provision. Title 43 U.S.C.

§ 1333(2)(A) provides,

16a

Appendix B

To the extent that they are applicable and not

inconsistent with this subchapter or with other

Federal laws and regulations ... the civil and

criminal laws of each adjacent State, now in effect

and hereafter adopted . . . are declared to be the

law of the United States for that portion of the

subsoil and seabed of the outer Continental Shelf,

See also Rodrigue v. Aetna Casualty Surety Co., 395 US.

352, 356 (1969) (concluding that the language of OCSLA

demonstrates that the law to be applied or the OCS is the

federal law of the United States, and that state law is to be

applied only as surrogate federal law and then only after

federal law is applied and only when it is not inconsistent

with the applicable federal law).

In Hufnagel v. Omega Service Industries, Inc., 182 F.3d

340 (Sth Cir. 1999), in which Hufnagel sued for personal

injuries occurring on a fixed platform on the OCS in the

course of his employment, the Fifth Circuit observed that

OCSLA was enacted to provide a federal body of law to

govern operations on the OCS and proclaimed that “OCSLA

is exclusively federal law.” Jd. at 349. The Circuit

pronounced that although OCSLA incorporates aspects of

the laws of adjacent states where those laws are not

inconsistent with OCSLA to fill in any gaps, this incorporated

state law becomes “surrogate federal law” and is “considered

exclusively federal law when applicable under OCSLA.” Jd.,

quoting 43 U.S.C. § 1333(a)(2)(A), and citing Rodrigue,

89S. Ct. at 1838 (“It is evident from this [legislative history]

that federal law is ‘exclusive’ in its regulation of this area,

17a

Appendix B

and that state law is adopted only as surrogate federal law.”).

In Hufnagel, the Fifth Circuit concluded that even though

Hufnagel’s petition did not plead OCSLA eo nomine, but

sought imposition of strict liability for a ruinous structure

under the Louisiana Civil Code, it did plead that the events

occurred on a fixed platform on the OCS. It reasoned, “There

is nothing which would make Kerr-McGee’s platform or its

conditions subject to Louisiana law other than OCSLA,

which incorporates this Civil Code provision as “surrogate

federal law.” It further noted that “Hufnagel’s employment

furthered mineral production on the shelf,” that his “injuries

occurred on a stationary drilling platform involved in the

‘exploration, development, or production of minerals on the

shelf,’ ” and thus his claims fell within the jurisdictional grant

of OCSLA. It therefore concluded that removal was proper.°

5. The petition in Hufnagel also alleged unspecified violations

of the Coast Guard and Secretary of the Interior Regulations having

the force and effect of law where the accident occurred [i.e., the

platform].” Jd. The Fifth Circuit construed this reference to

regulations as those issued under the authority of OCSLA, 43 U.S.C.

§ 1333(d)(1) (“The Secretary of the Department in which the Coast

Guard is operating shall have authority to promulgate regulations

... relating to the promotion of safety of life and property on the

artificial islands, installations, and other devices referred to in

subsection (a)... .” /d. Finally the Fifth Circuit noted that “Hufnagel

has consistently acquiesced in . . . [the] characterization of his suit

as including OCSLA claims.” Thus the panel found the complaint

asserted claims under OCSLA.

These facts are clearly distinguishable from those before this

Court in the case sub judice.

18a

Appendix B

Hufnagel demonstrates that the mere pleading of state

law causes of action will not prevent OCSLA from

superseding where the claim falls within the ambit of

OCSLA’s jurisdictional mandate. See also Stokes, 1997 WL

695557, *2 (“Although the plaintiffs did not assert any

OCSLA claims, the Act will nonetheless govern if the

requirements of the statute are satisfied by their

Complaints.”), citing Tennessee Gas, 87 F.3d at 154-55.

Nevertheless, the Fifth Circuit, while describing the

jurisdictional grant of OCSLA as “very broad,” did not

conclude that it was unlimited. Tennessee Gas, 87 F.3d at

154. The link between the disputed activity and an operation

involving the exploration, development, or production of

minerals of the OCS cannot be endlessly attenuated. The

Court agrees with Plaintiff that the causes of action asserted

here, i.e., a breach of contract for failure to perform burial

of a fiber optic cable line and misrepresentations about their

ability to perform this service, do not fall within the ambit

of OCSLA because the dispute does not deal with or affect

except in a most tangential way the operations involving the

exploration, development, or production of natural resources

of the OCS. Ultimately, once FiberWeb is in and operating,

matters relating to the actual communications regarding

production of minerals on the OCS may be within the

jurisdictional grant of OCSLA. The Court concludes that the

actual service of burying that cable, only part of which occurs

in the OCS, by Defendants does not fall within that

jurisdictional mandate. Nor have Defendants convinced this

Court that additional discovery about the cable

communications, as opposed to the act of laying and burying

the cable, will be of any aid.

19a

Appendix B

Accordingly, the Court

ORDERS that Defendants’ motion to extend submission

day and for leave to conduct limited discovery is DENIED.

The Court further

ORDERS that Plaintiff's motion to remand this case to

the 164th Judicial District Court of Harris County, Texas is

GRANTED. Finally, Defendants’ motion for expedited

consideration is MOOT.

SIGNED at Houston, Texas, this 7th day of June, 2000.

s/ Melinda Harmon

MELINDA HARMON

UNITED STATES DISTRICT

JUDGE

20a

APPENDIX C — PER CURIAM ORDER OF THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT DENYING PETITION FOR

RECONSIDERATION AND REHEARING DATED

AND FILED AUGUST 18, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20582

In Re: STOLT COMEX SEAWAY HOLDINGS INC.;

STOLT COMEX SEAWAY INC.;

STOLT OFFSHORE INC.

Petitioners

Petition for Writ of Mandamus to the United States

District Court for the

Southern District of Texas, Houston

ON PETITION FOR RECONSIDERATION

AND REHEARING EN BANC

Before WIENER, EMILIO M. GARZA and PARKER,

Circuit Judges.

PER CURIAM:

(“) The Petition for Reconsideration is DENIED and no

member of this panel nor judge in regular active service on

the court having requested that the court be polled on

2la

Appendix C

Rehearing En Banc, (Feb. R. App. P. and STH Cir. R. 35) the

Petition for Rehearing En Banc is also DENIED.

*” * *

ENTERED FOR THE COURT:

s/ [illegible]

United States Circuit Judge

22a

APPENDIX D — UNITED STATES CONSTITUTION,

ARTICLE III, SECTION 2

ARTICLE III

Section 2. The judicial Power shall extend to all Cases,

in Law and Equity, arising under this Constitution, the Laws

of the United States, and Treaties made, or which shall be

made, under their Authority; — to all Cases affecting

Ambassadors, other public Ministers and Consuls; — to all

Cases of admiralty and maritime Jurisdiction; — to

Controversies to which the United States shall be a Party;

— to Controversies between two or more States; — between

a State and Citizens of another State; — between Citizens

of different States; — between Citizens of the same State

claiming Lands under the Grants of different States, and

between a State, or the Citizens thereof, and foreign States,

Citizens or Subjects. ;

23a

APPENDIX E — 28 U.S.C. § 1441(b)

§ 1441. Actions removable generally

x * *

(b) 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.

24a

APPENDIX F — 28 U.S.C. § 1447(c) and (d)

§ 1447. Procedure after removal generally

*- * *

in removal procedure must be made within 30 days after the

filing of the notice of removal under section 1446(a)

[28 USCS § 1446(a)]. If at any time before final judgment it

appears that the district court lacks subject matter

jurisdiction, the case shall be remanded. An order remanding

the case may require payment of just costs and any actual

expenses, including attorney fees, incurred as a result of the

removal. A certified copy of the order of remand shall be

mailed by the clerk to the clerk of the State court. The State

court may thereupon proceed with such case.

(d) An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise,

except that an order remanding a case to the State court from

which it was removed pursuant to section 1443 of this title

shall be reviewable by appeal or otherwise.

25a

APPENDIX G — 43 U.S.C. § 1333(a)(2)(A)

§ 1333. Laws and regulations governing lands

(a) Constitution and United States laws; laws of adjacent

States; publication of projected State lines; international

boundary disputes; restriction on State taxation and

jurisdiction.

* * *

(2)(A) To the extent that they are applicable and

not inconsistent with this Act or with other Federal

laws and regulations of the Secretary now in effect

or hereafter adopted, the civil and criminal laws of

each adjacent State riow in effect or hereafter

adopted, amended, or repealed are hereby declared

to be the law of the United States for that portion of

the subsoil and seabed of the outer Continental Shelf,

and artificial islands and fixed structures erected

thereon, which would be within the area of the State

if its boundaries were extended seaward to the outer

margin of the outer Continental Shelf, and the

President shall determine and publish in the Federal

defining each such area. All of such applicable laws

shall be administered and enforced by the

appropriate officers and courts of the United States.

State taxation laws sha!i not apply to the outer

Continental Shelf.

26a

APPENDIX H —— 43 U.S.C. § 1349(b)(1)(A)

§ 1349. Citizens suits, jurisdiction and judicial review

* * *

(b) Jurisdiction and venue of actions. (1) Except as

provided in subsection (c) of this section, the district courts

of the United States shall have jurisdiction of cases and

controversies arising out of, or in connection with (A) any

operation conducted on the outer Continental Shelf which

involves exploration, development, or production of the

minerals, of the subsoil and seabed of the outer Continental

Shelf, or which involves rights to such minerals, .. . .

x* * © *

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