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In re Oil Spill

United States District Court, E.D. Louisiana

November 22, 2017

In Re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 This Document Relates to Nos. 12-1895, 13-6013, 11-945

         SECTION: J


          ORDER & REASONS


         Before the Court is Defendants' Motion to Dismiss the Claims of Peggy Kemp and Dorothy Bright Clark (Rec. Doc. 23011), [1] Peggy Kemp's Opposition (Rec. Doc. 23173), and Defendants' Reply (Rec. Doc. 23173). Also before the Court is Peggy Kemp's Motion to Remand. (Rec. Doc. 7375). For reasons explained below, the Court denies the Motion to Remand, grants the Motion to Dismiss, and dismisses with prejudice the referenced member cases.

         BACKGROUND [2]

         The following facts are undisputed. On April 20, 2010, a blowout, explosions, and fire occurred aboard the DEEPWATER HORIZON, a semi-submersible drilling rig, as it was preparing to temporarily abandon a well, known as Macondo, it had drilled on the Outer Continental Shelf approximately 50 miles from the Louisiana coast. Roy Wyatt Kemp (“Roy”), a Transocean[3] employee, was one of the eleven workers who died in the casualty. Roy's surviving spouse, Clara Courtney Kemp (“Clara”) was appointed administratrix of Roy's estate. A few weeks after the incident, Transocean filed a limitation action under 46 U.S.C. § 30511 and Rule F of the Supplemental Rules for Admiralty and Maritime Claims.[4] On April 20, 2011, Clara filed a claim in Transocean's limitation action on behalf of herself individually, as representative of Roy's estate, and as the natural tutrix of Roy and Clara's two minor children. (No. 10-2771, Rec. Doc. 428). In October 2011, Clara reached a settlement through the Gulf Coast Claims Facility. (Rec. Doc. 23011-6). In connection with that settlement, she executed a Release and Covenant Not to Sue wherein Clara, “acting (i) individually, (ii) in her capacity as a ‘Personal Representative' (as that term is used in the Death on the High Seas Act . . . and or the Jones Act . . .) of the decedent Roy Wyatt Kemp, (iii) in her capacity as administratrix of the estate of Roy Wyatt Kemp, and (iv) in her capacity as the tutrix of . . . the [two] minor children of herself and the decedent Roy Wyatt Kemp, ” released all claims concerning Roy's injury and death that were or could be asserted against BP, [5] Transocean, Halliburton, [6] and certain other parties.

         In April 2012, Roy's surviving mother, Peggy Kemp (“Peggy”), sued BP and Halliburton-but not Transocean-in Texas state court for damages resulting from the death of her son, “including loss of household services, loss of consortium, loss of economic support, and loss of inheritance.” (No. 12-1895, Rec. Doc. 1-2 ¶ VIII). Peggy asserted claims under the Jones Act, 46 U.S.C. § 30104, general maritime law, and the Death on the High Seas Act (“DOHSA”), 46 U.S.C. § 30302.[7] Defendants removed the case to the Southern District of Texas, and the Judicial Panel on Multidistrict Litigation subsequently it to this Court as a “tag along” to MDL 2179, where it is docketed as No. 12-1895. Peggy filed a motion to remand with this Court (Rec. Doc. 7375), which was automatically stayed pursuant to Pretrial Order No. 15 (Rec. Doc. 676). In April 2013, Peggy filed another, nearly identical suit in state court. That case was also removed to the Southern District of Texas and then transferred here as part of MDL 2179. It is docketed as No. 13-6013.[8]

         Peggy Kemp's cases remained stayed while the Court and parties addressed other aspects of the MDL. In June 2017, following status reports on matters remaining in pleading bundle “A” (Rec. Doc. 22247, 22582, 22592, 22720), the Court instructed Defendants to file the instant motion to dismiss and set a schedule for filing opposition and reply briefs (Rec. Doc. 22922). In her opposition, Peggy references the fact that she has a pending motion to remand. Accordingly, the Court will address the motion to remand first and the motion to dismiss second.


         The removal statute provides, in relevant part, “Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants . . . .” 28 U.S.C. § 1441(a).[9]

         As mentioned, Peggy brings claims under the Jones Act, general maritime law, and DOHSA. The Jones Act, through its incorporation of Federal Employer's Liability Act, contains a statutory bar to removal. See 46 U.S.C. § 30104; 28 U.S.C. § 1445(a); Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995). However, a fraudulently pleaded Jones Act claim will not prevent removal. Burchett, 48 F.3d at 175. To defeat remand, defendants may pierce the pleadings and must show that the Jones Act claim is baseless in law and in fact and serves only to frustrate federal jurisdiction. Id. All disputed questions of fact and any ambiguities in the current controlling substantive law are resolved in the plaintiff's favor.

         The Court finds the Jones Act claim is fraudulently pleaded for two reasons. First, Peggy has not sued Roy's employer. A Jones Act claim may only be asserted against a seaman's[10]employer. See 46 U.S.C. § 30104. Peggy does not sue Roy's employer, Transocean, however. Peggy argues that BP qualifies as Roy's employer under the borrowed servant doctrine. See Baker v. Raymond Int'l, Inc., 656 F.2d 173, 178 (5th Cir. Unit A Sept. 1981). However, given this Court's extensive experience with this litigation, the Court can and does conclude with certainty that Roy was not BP's borrowed servant. Second, the fact that Roy is survived by a spouse and two children precludes any recovery by a surviving parent under the Jones Act. See 45 U.S.C. § 51[11]; Robert Force & Martin J. Norris, The Law of Seamen § 29:8, at 29-20 (5th ed. 2003) (“The wording of the Jones Act make it clear that the beneficiaries are listed in a hierarchical order. Thus parents are not eligible to recover if there is a surviving spouse or child.”). Accordingly, the Court finds that the Jones Act claim is baseless in law and in fact and serves only to frustrate federal jurisdiction.

         This leaves Peggy's claims under general maritime law and DOHSA. While Peggy could have asserted these claims in federal court, the “saving to suitors” clause generally prevents their removal from state court absent some other basis of federal jurisdiction. The Outer Continental Shelf Lands Act (“OCSLA”) provides that basis, notwithstanding the fact that Peggy did not explicitly invoke jurisdiction under that Act. See 43 U.S.C. § 1349(b)(1);[12]Barker v. Hercules Offshore, Inc., 713 F.3d 208, 212 (5th Cir. 2013); In Re Deepwater Horizon, 745 F.3d 157, 163-64 (5th Cir. 2014). Furthermore, the existence of OCSLA jurisdiction makes this case removable even if the ...

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