Hufnagel v. Omega Service Industries, Inc.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 98-30191

RICHARD H. HUFNAGEL,

Plaintiff-Appellant,

versus

OMEGA SERVICE INDUSTRIES, INC.;
KERR McGEE CORPORATION; GLOBAL
INDUSTRIES LIMITED,

Defendants-Appellees.

Appeal from the United States District Court for the
Western District of Louisiana

July 26, 1999

Before GARWOOD, BARKSDALE and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

On April 23, 1996, plaintiff-appellant Richard H. Hufnagel

(Hufnagel) was injured while working on a drilling platform

permanently affixed to the outer Continental Shelf off the coast of

Louisiana. Hufnagel sued his employer, the platform owner, and the

owner of an adjacent jack-up boat, in Louisiana state court

alleging, among others, claims under the Jones Act, the general

maritime law, and as to each defendant “under the Louisiana Civil
Code, Articles 2315, 2317 and 2322, for the negligence, strict

liability, violations of the Coast Guard and Secretary of the

Interior Regulations, non-delegable statutory duties, rules and

regulations, having the force and effect of law wherein the

accident occurred.” He has also alleged alternative claims under

the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901

et. seq., and/or 33 U.S.C. § 905(B). The defendants removed the

case to the district court below, and Hufnagel moved to remand.

After denying remand, the district court certified its ruling on

the remand motion to this Court under 28 U.S.C. § 1292(b),

inquiring whether removal was prohibited by the Jones Act, and if

not, whether Hufnagel has presented claims which support federal

removal jurisdiction.

FACTS AND PROCEEDINGS BELOW

The pleadings and undisputed facts before the district court

on the motion to remand reflect the following.

Defendant-appellee Omega Service Industries, Inc. (Omega), a

Louisiana corporation, is an oilfield service company which

contracts with offshore platform owners to construct and repair

offshore oil and gas platforms. When a platform owner requests

service, Omega assigns a crew of available employees based on the

type of work requested. The platform owners transport or furnish

transportation for the workers from the shore to the platforms, and

the workers generally remain on the platform until the work is

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complete. Sometimes, the workers sleep and eat meals on the

platforms. On other occasions, the platform owner supplies a jack-

up vessel to lodge the workers. Omega does not own or hire any

vessels, and no Omega employees are assigned as crew members of any

vessel.

Hufnagel began working for Omega in November 1994. Hufnagel

worked as a rigger, and his duties typically included assisting

welders and fitters. During the course of his employment with

Omega, Hufnagel had been assigned to work on twenty-six different

fixed platforms, for thirteen different customers. These

assignments ranged from one day to twenty-seven days. Hufnagel was

never permanently assigned to any particular customer or platform.

At the time of his injury, Hufnagel was working on a platform

owned by defendant-appellee Kerr-McGee Corp. (Kerr-McGee), which

was permanently affixed to the outer Continental Shelf off the

coast of Louisiana. Hufnagel and other Omega employees had been

assigned to repair pilings located on the platform. Kerr-McGee had

contracted with defendant-appellee Global Industries, Ltd.

(Global), a Louisiana corporation, to provide a vessel (the

AMBERJACK), which was used as a temporary work station and a hotel

where the workers ate and slept. Global supplied its own crew for

the AMBERJACK. Although Hufnagel claims to have spent a majority

of his working hours aboard the AMBERJACK, Hufnagel had no duties

regarding the maintenance, custody, or operation of the vessel.

Hufnagel, a citizen of Louisiana, sued Omega, Kerr-McGee, and

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Global in Louisiana state court. Hufnagel’s state court petition

alleges:

“2.

At all pertinent times herein, the petitioner,
RICHARD H. HUFNAGEL, was an employee of OMEGA, INC.

3.

On or about April 23, 1996, the petitioner, RICHARD
H. HUFNAGEL, was working in the course and scope of his
employment when he was severely injured. The petitioner
was working on a scaffold erected onto a piling of a
fixed platform located at Ship Shoal 239B, said platform
believed to be owned by KERR MCGEE CORPORATION, located
off the coast of the State of Louisiana on the outer-
continental shelf.

4.

While attempting to repair the aforesaid piling, the
petitioner was struck in the face by a chain and/or hook
fixed to a come-a-long which was being used in the course
of repair of the piling.”

Hufnagel’s state court pleading further alleged that the

AMBERJACK was “owned and operated by Global,” and that he was a

member of the crew of the AMBERJACK, and was hence entitled to

bring a claim under the Jones Act. Additionally, Hufnagel raises

claims under maritime law and the Louisiana Civil Code, made

surrogate federal law by application of the Outer Continental Shelf

Lands Act, 43 U.S.C. § 1331 et. seq. (OCSLA).

The defendants removed the case to federal court, asserting,

inter alia, that the Jones Act claim was fraudulently pled.

Hufnagel moved for remand, arguing that Jones Act cases are not

removable. The district court concluded that the undisputed

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evidence demonstrated that as Hufnagel was not a seaman he had no

arguable Jones Act claim and therefore the Jones Act did not bar

removal. The court found that Hufnagel had stated a claim against

Kerr-McGee arising under the OCSLA, thus supporting removal

jurisdiction under 28 U.S.C. § 1441(a) & (b). Therefore, the court

denied Hufnagel’s motion to remand despite the absence of complete

diversity and the fact that two of the three defendants are

Louisiana citizens. We hold that the district court correctly

denied the motion to remand.

DISCUSSION

I. The Jones Act

“As a general rule, . . . Jones Act cases are not removable.”

Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995); 46

App. U.S.C. § 688 (incorporating general provisions of Federal

Employers’ Liability Act, including 28 U.S.C. § 1445(a), which bars

removal). However, “‘defendants may pierce the pleadings to show

that the Jones Act claim has been fraudulently pleaded to prevent

removal.’” Burchett, 48 F.3d at 175, quoting Lackey v. Atlantic

Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A fraudulently

pleaded Jones Act claim does not bar removal. See id. While a

district court should not pre-try a case to determine removal

jurisdiction, the court may use a “summary judgment-like procedure”

to dispose of the assertion that the Jones Act claim was

fraudulently pleaded. See Burchett, 48 F.3d at 176. The court may

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deny remand where, but only where, resolving all disputed facts and

ambiguities in current substantive law in the plaintiff’s favor,

the court determines that the plaintiff has no reasonable

possibility of establishing a Jones Act claim on the merits. Id.

The district court correctly held that the undisputed evidence

establishes that Hufnagel was not a seaman and hence could not

recover under the Jones Act. To maintain a cause of action under

the Jones Act, the plaintiff must be a seaman. Land-based workers

are not seamen. See Harbor Tug and Barge Co. v. Papai, 117 S.Ct.

1535, 1540 (1997).

The Supreme Court has established a two-part test to determine

seaman-status:

“First . . . an employee’s duties must
contribute to the function of the vessel or to
the accomplishment of its mission . . .

“Second, and most important for our purposes
here, a seaman must have a connection to a
vessel in navigation (or to an identifiable
group of such vessels) that is substantial in
terms of both its duration and its nature.”
Harbor Tug, 117 S.Ct. at 1540 (quoting
Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2179
(1995)) (citations and internal quotation
marks omitted).

The requirement that a seaman have a substantial connection to

a vessel or identifiable fleet of vessels serves to distinguish

sea-based workers whose employment regularly exposes them to “the

perils of the sea,” from primarily land-based workers who have only

sporadic or tangential connections to navigation. See Harbor Tug,

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117 S.Ct. at 1540. Therefore, seaman-status is determined by the

employee’s entire employment-related connection to a vessel, and

not by the immediate circumstances or location of the plaintiff’s

injury. See Chandris, 115 S.Ct. at 2187 (“[C]ourts should not

employ a