United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION ORDER
LKE, SENIOR UNITED STATES DISTRICT JUGE.
Ray Sam ("Plaintiff") sued defendants Laborde
Marine, L.L.C. ("Laborde") and Fieldwood Energy LLC
"Defendants") in the 165th District Court of Harris
County, Texas. Defendant timely removed based on
jurisdiction under the Outer Continental Shelf Lands Act
("OCSLA") . Pending before the court is
Plaintiff's Motion to Remand (Docket Entry No. 10) . For
the reasons stated below, Plaintiff's Motion to Remand
will be denied.
Alleged Facts and Procedural Background
Fieldwood owns the Eugene Island 333 offshore platform
("the platform") . Defendants assert and Plaintiff
does not dispute that the platform is located on the Outer
Continental Shelf ("OCS") . Plaintiff was employed as an
inspector and arrived on the platform to perform tests on
January 9, 2019. Fieldwood housed Plaintiff on a nearby
vessel owned and operated by defendant Laborde. During his first
night on the vessel, Plaintiff slipped while descending
stairs and suffered injuries. On September 5, 2019, Plaintiff
sued Defendants in state court alleging
negligence. Defendants removed under OCSLA on October
16, 2019.Plaintiff filed his Motion to Remand on
November 15, 2019,  and Defendants filed responses on
December 6, 2019.
28 U.S.C. § 1441(a) any state court civil action over
which a federal court would have original jurisdiction may be
removed from state to federal court. "The party seeking
to assert federal jurisdiction . . . has the burden of
proving by a preponderance of the evidence that subject
matter jurisdiction exists." New Orleans &
Gulf Coast Railway Co. v. Barrois, 533 F.3d 321, 327
(5th Cir. 2008). Jurisdictional facts must be judged as of
the time of the filing of the state court petition. White
v. FCI USA, Inc., 319 F.3d 672, 674 (5th Cir.
2003) (per curiam). "The court has wide, but not
unfettered, discretion to determine what evidence to use in
making its determination of jurisdiction." Coury v.
Prot, 85 F.3d 244, 249 (5th Cir. 1996). "Any
ambiguities are construed against removal because the removal
statute should be strictly construed in favor of
remand." Manguno v. Prudential Property and Casualty
Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002).
Relevance of Adiralty Jurisdiction
courts have original jurisdiction in maritime cases except
where the plaintiff elects to sue in state court. 28 U.S.C.
§ 1331(1); Morris v. TE Marine Corp., 344 F.3d
439, 444 (5th Cir. 2003). Plaintiff argues that removal was
improper because he alleges a maritime claim against
Defendants. However, defendants may remove a general
maritime action from state court if there is a basis for
federal jurisdiction other than admiralty. Barker v.
Hercules Offshore, Inc., 713 F.3d 208, 220 (5th Cir.
2013). OCSLA grants federal district courts jurisdiction over
cases “arising out of, or in connection with 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." 43 U.S.C. § 1349(b) (1) . The Fifth Circuit
has repeatedly held that general maritime cases may be
removed if OCSLA jurisdiction applies. Barker, 713
F.3d at 221; Morris, 344 F.3d at 444. Accordingly,
removal was proper if the court has OCSLA jurisdiction over
OCSL Jurisdiction and Situs
argues OCSLA jurisdiction requires situs on a platform or
installation attached to the OCS, which excludes vessels like
the one he was injured on. But the Fifth Circuit has
explicitly rejected the argument that OCSLA jurisdiction
includes a situs requirement. In re Deepwater
Horizon, 745 F.3d 157, 164 (5th Cir. 2014). OCSLA
jurisdiction requires only a but-for connection, meaning the
facts underlying the action would not have occurred but for
an operation on the Outer Continental Shelf. Id. at
163. Plaintiff cites Barker v. Hercules Offshore,
Inc., where the court, in analyzing whether there was
jurisdiction under OCSLA, stated:
To determine whether a cause of action arises under OCSLA,
the Fifth Circuit applies a but-for test, asking whether: (1)
the facts underlying the complaint occurred on the proper
situs; (2) the plaintiff's employment furthered mineral
development on the OCS; and (3) the plaintiff's injury
would not have occurred but for his employment.
713 F.3d at 213. Barker pre-dates and was cited in,
but not overruled or distinguished by, Deepwater
Horizon. 745 F.3d at 163 (citing Barker for the
rule that "[a] plaintiff does not need to expressly
invoke OCSLA in order for it to apply").
apparent conflict between Barker and Deepwater
Horizon arises because OCSLA not only creates federal
jurisdiction but also provides choice-of-law rules and a body
of substantive law governing controversies that arise on the
OCS. See EP Operating Ltd. Partnership v. Placid
Oil Co., 26 F.3d 563, 569 (5th Cir. 1994) (discussing
both jurisdiction and choice-of-law under OCSLA). OCSLA
provides that federal law, supplemented by gap-filling state
law, applies "to the subsoil and seabed of the outer
Continental Shelf . . . and to all installations"
attached thereto. 43 U.S.C. §§ 1333(a) (1),
(a)(2)(A). Situs is a requirement for this body of law to
apply because § 1333 extends to the geographic location
of the OCS. Union Texas Petroleum Corp. v. PLT
Engineering. Inc., 895 F.2d 1043, 1047 (5th Cir. 1990).
The jurisdictional grant, by contrast, covers not only cases
arising geographically on the OCS but also over cases arising
"in connection with" operations thereon. 43 U.S.C.
§ 1349(b) (1). Barker and Deepwater
Horizon's holdings on jurisdiction therefore do not
conflict because Barker teaches only that claims
governed by § 1333' s substantive law necessarily
fall under OCSLA jurisdiction while Deepwater
Horizon provides the broader test for OCSLA jurisdiction
applicable in cases that may be governed by other substantive
conclusion is consistent with the district court decision
cited by Plaintiff, Hicks v. BP Exploration &
Production, Inc.,308 F.Supp.3d 878 (E.D. La. 2018).
That court acknowledged that Barker and
Deepwater Horizon appear to disagree on whether
OCSLA requires situs as part of the but-for test and followed
Barker because it has not been overruled and is
supported by other Fifth Circuit case law. Id. at
883 n.8. But Hicks was deciding choice-of-law under
OCSLA, not jurisdiction, as were the other Fifth Circuit
cases it cited as supporting Barker. Grand Isle Shipyard,
Inc. v. Seacor Marine, LLC,589 F.3d 778, 783-84 (5th
Cir. 2009); Union Texas Petroleum Corp. v. PLT
Engineering, Inc.,895 F.2d 1043, 1046-47 (5th Cir.
1990); Hicks, 308 F.Supp.3d at 878, 893.
Hicks therefore correctly applied the choice-of-law
standard rather than the broader jurisdictional standard.