Costanza et al v. Accutrans, Inc., No. 2:2017cv05706 - Document 22 (E.D. La. 2017)
Court Description: ORDER AND REASONS denying 8 Motion to Remand to State Court. Signed by Judge Susie Morgan on 10/24/2017. (clc)
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Costanza et al v. Accutrans, Inc. Doc. 22 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A CALVIN M. COSTAN ZA, ET AL., Plain tiffs CIVIL ACTION VERSU S N O. 17-570 6 ACCU TRAN S, IN C., D e fe n d an t SECTION : “E” ( 5) ORD ER AN D REAS ON S Before the Court is Plaintiff Calvin Costanza, his wife, Stacey Costanza, individually and on behalf of their m inor son, Brantley Costanza’s (collectively “Plaintiffs”) Motion to Rem an d Proceedings to State Court After Rem oval by the Defendant Accutrans, Inc. (“Accutrans”), and For Costs and Attorney’s Fees. 1 The m otion is opposed. 2 On Septem ber 20 , 20 17, Plaintiffs filed a supplem ental m em orandum in support of their m otion to rem and, 3 and on Septem ber 29, 20 17, Accutrans filed its supplem ental m em orandum in opposition. 4 For the reasons that follow, the Court denies Plaintiffs’ m otion to rem and. BACKGROU N D 5 Accutrans provides stevedoring services to various com panies operating in the Gulf of Mexico. 6 Mr. Costanza worked as a tankerm an for Accutrans from April 20 12 until J anuary 20 16. 7 His duties included “loading and/ or unloading cargo from barges, 1 R. Doc. 8. R. Doc. 12. 3 R. Doc. 16. 4 R. Doc. 20 . 5 All facts stated herein are taken in the light m ost favorable to Plaintiffs. See Lackey v. Atlantic Richfield Co., 990 F.2d 20 2, 20 7 (5th Cir. 1993) (stating that, when evaluatin g whether seam an status was fraudulently pleaded, “[t]he district court m ust resolve disputed questions of fact from the pleadin gs an d affidavits in favor of the plaintiff”). 6 R. Doc. 12-1 at 1. 7 R. Doc. 1-1 at ¶ 3; R. Doc. 16-6; R. Doc. 12-1. 2 1 Dockets.Justia.com m ooring the barges to the dock, m onitoring the drafts of the barges to m ake sure they stayed afloat, and pum ping out the ballast tanks if the barges took on water during the loading an d/ or unloading process.”8 When Accutrans assigned Mr. Costanza to a particular barge, he was in charge and given total control over it. For the m ost part, these barges were “special purpose vessels designed to transport hazardous cargo,” and Mr. Costanza was “regularly being exposed to toxic substances.”9 In J anuary 20 15, Mr. Costanza was diagnosed with cancer. 10 Plaintiffs allege Mr. Costanza’s cancer is a direct result of his “expos[ure] to toxic and carcinogenic substances” “while in the course and scope of his em ploym ent.”11 Plaintiffs filed the instant m atter in the 24th J udicial District Court for the Parish of J efferson, State of Louisiana on May 8 , 20 17 pursuant to the J ones Act, 46 U.S.C. § 68 8 . 12 In their state court petition, Plaintiffs alleged Mr. Costanza “was em ployed as a seam an within the m eaning of the J ones Act and the General Maritim e Law.”13 On J une 9, 20 17, Accutrans rem oved the action to this Court, 14 conten ding Plaintiffs m ay not seek relief under the J ones Act, as Mr. Costanza’s seam an status was fraudulently pleaded. 15 Accutrans invoked the jurisdiction of this Court under 28 U.S.C. §§ 1333, 1441, and 1446. 16 LEGAL STAN D ARD J ones Act cases are generally not rem ovable from state court. 17 However, defendants m ay “pierce the pleadings to show that the J ones Act claim has been 8 R. Doc. 16 at 1– 2. R. Doc. 16 at 12– 13. 10 R. Doc. 1-1 at ¶ 6. 11 Id. at ¶ 5, 7. 12 R. Doc. 1-1. 13 Id. at ¶ 4. 14 R. Doc. 1. 15 R. Doc. 12. 16 R. Doc. 1. 17 Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir.1995). 9 2 fraudulently pleaded to prevent rem oval.”18 A district court m ay use a “sum m ary judgm ent-like procedure” to determ in e whether it m ay retain jurisdiction or rem and the case. 19 In its evaluation, the district court “m ust resolve all disputed questions of fact and any am biguities in the current controlling substantive law in favor of the plaintiff.” The defendant bears the burden of showing “there is no possibility that plaintiff would be able to establish a cause of action.”20 A denial of rem and is perm issible when the district court “determ ines that as a m atter of law there was no reasonable basis for predicting that the plaintiff m ight establish liability.”21 The pertin ent issue in this case is whether Mr. Costanza could possibly establish that he was a J ones Act seam an. To qualify as a seam an under the J ones Act, a plaintiff m ust dem onstrate that (1) his duties “contribute to the function of the vessel or to the accom plishm ent of its m ission,” an d (2) he has “a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in term s of both its duration and its nature.”22 “The inquiry into seam an status is of necessity fact specific; it will depen d on the nature of the vessel and the em ployee’s precise relation to it.”23 “[T]he ultim ate inquiry is whether the worker in question is a m em ber of the vessel’s crew or sim ply a land-based em ployee who happens to be working on the vessel at a given tim e.”24 18 Id. (citing Lackey v . Atlantic Richfield Co., 990 F.2d 20 2, 20 7 (5th Cir. 1993)). Id. at 176. 20 Id. (quotin g Lackey , 990 F.2d at 20 7). 21 Id. (citing B., Inc. v. Miller Brew ing Co., 663 F.2d 545, 549, n . 9 (5th Cir. 1981)). 22 Id. at 368 (citation, internal quotation m arks, and alteration om itted). 23 Id. at 371. 24 Id. at 370 . 19 3 AN ALYSIS Defendants put forward two argum ents in support of their contention that Mr. Costanza does not qualify as a seam an for the purposes of the J ones Act. First, Defendants assert that Mr. Costanza lacks a substantial connection to the vessels on which he worked, arguing he “was not a m em ber of the crew of any vessel,” “never sailed with the barges, or went to sea,” and “never slept on the barges.”25 Further, Defendants point out that “[w]hen [Mr. Costanza] was working, the tank barges were always m oored, unm anned, and had no crew.”26 Second, Accutrans argues Mr. Costanza’s work did not involve an identifiable group of vessels, as he “was not perm anently assigned to any vessel or fleet of vessels under one ownership or control.”27 In support of this assertion, Accutrans subm itted the deposition of Toni Macksey, Accutrans’ vice president of adm inistration and com pliance, attaching to it a detailed list of each of the vessels upon which Mr. Costanza worked, the work perform ed, and the num ber of hours spent com pleting each job. 28 Accutrans also subm itted a sum m ary of the total num ber of hours Mr. Costanza worked for each custom er. 29 According to Defendant, because Mr. Costanza did not work for an identifiable fleet, “[a]s a m atter of law, Calvin Costanza is a longshorem an covered by the Longshore and Harbor Workers’ Com pensation Act, and is therefore ineligible for relief under the J ones Act.”30 Plaintiffs dispute both of Defendants’ argum ents. As to Defendants’ first argum ent, Plaintiffs argue Mr. Costanza had a substantial relationship to the vessels upon which he 25 R. Doc. 12 at 8. Id. 27 Id. 28 R. doc. 12-1. 29 R. Doc. 20 -3. 30 R. Doc. 12 at 8. 26 4 worked because he was exposed to the perils of sea. Specifically, the barges on which Mr. Costanza worked transported hazardous m aterials, requiring Mr. Costanza to have specialized training. “Due to the specialization in training and certifications Costanza received during the course of his em ploym ent and additional duties he took responsibility for while aboard the vessels, Costanza’s work is not analogous to that of a traditional longshorem an who typically do not unload hazardous cargo from special purpose vessels, such as the barges serviced by Accutrans.”31 Second, Plaintiffs contend “there were identifiable fleets of barges [Mr.] Costanza was assigned to by the defendant on a regular basis, m any of which Costanza worked on m ultiple different occasions.”32 He alleges: [O]n the “WEB” barges for the custom er Blessey Marine Services, Inc., Costanza worked on these barges 8 8 tim es, m any of which he worked on m ultiple different occasions, for a total of 945.0 0 hours. Costanza worked on barges nam ed “EMS” for custom er Enterprise Marine Services, LLC on approxim ately 8 0 occasions for a total of 933.0 0 hours. Costanza also worked on barges nam ed “GON” for custom er, Lebeouf Towing, Inc., on 76 barges for a total of 863.0 0 hours. For Settoon Towing, Costanza worked on 59 barges nam ed “SMI” for a total of 648.50 hours. For another custom er, Genesis Marine, LLC, with barges nam ed “GM” and “FMT”, Costanza worked 55 barges for a total of 60 4.0 0 hours. For Florida Marine Transporters, Inc., Costanza worked on 39 barges nam ed “FMT”, for a total of 496.0 0 hours. And for Cenac Marine Services, LLC, with barges nam ed “CTCO”, Costanza worked on 15 barges for a total of 186.0 0 hours. Plaintiffs subm it “[t]hese groups of barges that Costanza perform ed work on a rotating basis represent an identifiable fleet of vessels under the com m on control of Accutrans” and that “these groups of barges were an identifiable fleet of vessels under the control of Accutrans when Costanza was present on the barges.”33 31 R. Doc. 16 at 13. R. Doc. 16 at 3. 33 R. Doc. 16 at 3. 32 5 For the reasons that follow, the Court finds Mr. Costanza lacks a substantial connection to a particular vessel or fleet of vessels and thus does not qualify as a seam an under the J ones Act. 34 1. Identifiable group of vessels In its supplem ental m em orandum in opposition to Plaintiffs’ m otion to rem and, Accutrans included a sum m ary of the total num ber of hours Mr. Costanza worked for each custom er and upon which vessels. 35 This sum m ary revealed Mr. Costanza worked a total of 766 jobs, perform ing 8 223.5 hours of work in his tim e with Accutrans. These hours were spent working on barges owned by 30 different com panies. Although Mr. Costanza worked a large portion of these hours for four com panies—(1) Blessey Marin e Services, Inc.; (2) Enterprise Marine Services, LLC; (3) Hogm an Barge Lines, LLC; and (4) Lebeouf Bros Towing, Inc.—Mr. Costanza spent no m ore than 11.58% of his tim e working for any one com pany. Plaintiffs do not dispute these facts, but rather argue Mr. Costanza m ay nevertheless be considered a J ones Act seam an, citing Bertrand v. Internation Mooring & Marine, Inc., 36 and arguing that “in light of the purposes of the J ones Act, em ployers will not be allowed to deny J ones Act coverage to seam en by arrangem ents with third parties regarding a vessel’s operation or by the m anner in which work is assigned.”37 Essentially, because Accutrans had service agreem ents with third parties, Plaintiffs contend “these groups of barges were an iden tifiable fleet of vessels under the control of Accutrans when Costanza was present on the barges.”38 34 Because the Court finds Mr. Constanza did not have a relationship with an identifiable fleet of vessels, it does not address the issue of whether Mr. Constanza’s connection to the vessels on which he worked was substantial. 35 R. Doc. 20 -3. 36 70 0 F.2d 240 (5th Cir. 198 3). 37 R. Doc. 16 at 12. 38 R. Doc. 16 at 3. 6 In Bertrand v. International Mooring Marine, Inc., 39 the plaintiffs were m em bers of an anchor-handling crew em ployed by International Mooring and Marine. Plaintiffs brought suit under the J ones Act to recover for injuries suffered in a one-vehicle accident that occurred while they were returning from a job relocating a drilling rig. The district court granted sum m ary judgm ent in favor of the em ployer. The district court found that, although the “anchor-handling crew was continuously subjected to the perils of the sea like blue water seam an and was engaged in classical seam an’s work,” they were not seam an as a m atter of law, because the plaintiffs worked aboard num erous vessels which had no com m on ownership or control. 40 The Fifth Circuit reversed, holding that although the “em ployer neither own[ed] nor control[led] the several vessels upon which the seam an work[ed],” the plaintiff could still be considered a J ones Act Seam an. 41 In reversing the district court, the Fifth Circuit noted that ninety percent of plaintiffs’ work was perform ed aboard twenty-five vessels owned by various com panies, and the rem aining ten percent was spent preparing equipm ent for offshore vessel assignm ents. 42 The court noted that when assigned to a particular vessel, the crew ate an d slept aboard the vessel, 43 and the plaintiffs’ tours of duty with a vessel was for the duration of its m ission. 44 Thus, “the m ission of the vessel and the plaintiff's job were coextensive; when plaintiffs finished their responsibilities, the vessel’s m ission was com pleted.”45 Thus, the Fifth Circuit held reasonable persons could conclude the plaintiffs were J ones 39 70 0 F.2d 240 (5th Cir. 198 3). Bertrand v. Int'l Mooring & Marine, Inc., 517 F. Supp. 342, 347, 348 (W.D. La. 1981). 41 70 0 F.2d at 245. 42 Id. at 247. 43 Id. 44 Id. at 248 . 45 Id. (internal citations, footnotes om itted). 40 7 Act seam an. 46 Markedly, however, the Fifth Circuit confined its holding to the facts of the case, noting the situation “should be contrasted with the situation in which the m arine worker perform s a particular specialized job that contributes toward the vessel’s larger m ission.”47 Although Bertrand expanded the concept of a fleet to encom pass vessels used, but not owned or chartered, by the em ployer, the Fifth Circuit has sin ce clarified in Buras v. Com m ercial Testing & Engineering Co. 48 that Bertrand cannot “fairly be read so broadly as to confer seam an status on every worker whose duties place him aboard a large num ber of random ly-owned and controlled vessels for short periods of tim e that aggregate to com prise a substantial portion of his working tim e.”49 Essentially, Bertrand did not “reject[] the identifiable or recognizable fleet requirem ent established by our prior cases.”50 Since Buras, the Fifth Circuit has continued to apply the “fleet rule” narrowly. In Langston v. Schlum berger Offshore Services, Inc., 51 for exam ple, the Fifth Circuit held the plaintiff, who perform ed thirty-two percent of her work on fifteen different vessels owned by ten unrelated owners, was not a seam an, as she did not have a sufficient connection to a vessel or group of vessels. In Lirette v. N .L. Sperry Sun, Inc., 52 the Court held the plaintiff, “a wireline operator who perform ed one specialized job for m an y different vessels,” did n ot fall within the Bertrand exception, because “he did not perform the traditional duties of a blue water seam an” and did not work aboard drilling rigs “for 46 Id. Id. (internal citations, footnotes om itted). 48 736 F.2d 30 7 (5th Cir. 198 4). 49 Id. at 311– 12. 50 Id. at 312. 51 80 9 F.2d 1192 (5th Cir. 198 7). 52 831 F.2d 554, 557 (5th Cir. 1987). 47 8 the duration of their m ission.” In Ardleigh v. Schlum berger Ltd., 53 the Fifth Circuit held a wireline engin eer was not a seam an, noting that although he worked aboard vessels seventy percent of the tim e, the plaintiff could “be classified as a seam an only if the thirty different vessels on which he worked constituted a ‘fleet.’” Finally, in Roberts v. Cardinal Services, Inc., 54 the Court found a plug and abandonm ent worker was not a seam an, noting “when a group of vessels is at issue, a worker who aspires to seam an status m ust show that at least 30 percent of his tim e was spent on vessels, every one of which was under his defendant-em ployer’s com m on ownership or control,”55 rejecting the opportunity “to depart from our well-established rule . . . that a worker who fails to show that at least 30 percen t of his tim e is spent on vessels under the com m on ownership or control of his em ployer is precluded from recovering as a seam an under the J ones Act.”56 In this case, it is undisputed that the vessels upon which Mr. Constanza worked did not fall under com m on ownership. In his tim e with Accutrans, Mr. Costanza worked a total of 766 jobs, perform ing 8 223.5 hours of work. These hours were spent working on barges owned by 30 different com panies; Mr. Costanza spent no m ore than 11.58% of his tim e working for any one com pany. Mr. Costanza did not sail with the vessels, was not a m em ber of a vessel’s crew, and did not work aboard the vessels for the duration of their m issions. Rather, Mr. Costanza interacted with the vessels to perform a particular service. This is a “situation in which the m arin e worker perform s a particular specialized job that 53 832 F.2d 933, 934 (5th Cir. 1987). 266 F.3d 368 , 377 (5th Cir. 20 0 1). 55 Id. 56 Id. at 378; see also St. Rom ain v. Indus. Fabrication & Repair Svc., Inc., 20 3 F.3d 376, 379– 80 (5th Cir. 20 0 0 ) (stating that because the worker “did not work aboard vessels under com m on ownership or control,” then he “[wa]s not a seam an” and that the Fifth Circuit’s “decisions after Bertrand have reaffirm ed the essential principle that to qualify as a seam an an em ployee m ust establish an attachm ent to a vessel or to an identifiable fleet of vessels”)). 54 9 contributes toward the vessel’s larger m ission,” and the Bertran d exception does not apply. 57 Because Plaintiffs have failed to “show that at least 30 percent of [Mr. Costanza’s] tim e was spent on vessels, every one of which was under his defendant-em ployer’s com m on ownership or control,”58 the Court finds “there is no possibility that plaintiff would be able to establish a cause of action” under the J ones Act. 59 Under 28 U.S.C. § 1441, a defendant m ay rem ove a case based on general m aritim e law, even in the absence of an independent grant of jurisdiction. 60 Rem and is not warranted in this case. Accordingly; IT IS H EREBY ORD ERED that Plaintiffs’ m otion to rem and is hereby D EN IED . 61 N e w Orle a n s , Lo u is ian a, th is 2 4 th d ay o f Octo be r, 2 0 17. ____________ ________ _______ S U SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 57 70 0 F.2d at 245. Roberts, 266 F.3d at 378 . 59 Id. (quotin g Lackey , 990 F.2d at 20 7). 60 Provost v. Offshore Service Vessels, LLC, No. 14-89, 20 14 WL 2515412, at *2– 5 (M.D. La. J une 4, 20 14); Harrold v. Liberty Ins. Un derw riters, Inc., No. 13-762, 20 14 WL 68 8984, at *4 (M.D. La. Feb. 20 , 20 14) (“[T]he [20 11] am endm ent to § 1441 allows rem oval of general m aritim e claim s.”). 61 Plaintiffs’ m otion for sanctions is den ied. 58 10
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