United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT UNITED STATES DISTRICT JUDGE
the Court is Plaintiff's Motion to Remand (Rec. Doc. 15).
The Motion is opposed by two Defendants, Shell Oil Company
and Tennessee Gas Pipeline Company, LLC
("Defendants") (Rec. Doc. 23). For the reasons
stated herein, IT IS ORDERED that
Plaintiff's Motion to Remand is DENIED.
16, 2017, Plaintiff, Federico Lopez, filed the instant
lawsuit in the Civil District Court for the Parish of
Orleans, State of Louisiana, against fifteen defendants
seeking an award of damages for his alleged exposure to
asbestos between the years of 1973-1986. (See Rec.
Doc. 1-2, as amended by Rec. Doc. 30). Plaintiff alleges
that he was exposed to injurious levels of asbestos while he
was employed by Kellogg Brown & Root as a welder and
pipefitter at "numerous locations, " including
"premises/sites owned and/or operated by
Defendants." (Rec. Doc. 30 at p. 1). Plaintiff further
alleges that the asbestos exposure caused him to contract
malignant mesothelioma, which was diagnosed on or around May
18, 2017. (Rec. Doc. 30 at p. 4).
September 13, 2017, Defendants, Shell Oil Company and
Tennessee Gas Pipeline Company, LLC, removed the action,
invoking federal subject matter jurisdiction pursuant to the
Outer Continental Shelf Lands Act (“OCSLA”), 43
U.S.C. § 1349(b), and, alternatively, pursuant to
federal question jurisdiction, 28 U.S.C. §
1331. (See Rec. Doc. 1). Further,
Defendants contend that this Court has supplemental
jurisdiction over Plaintiff's claims against all other
defendants pursuant to 28 U.S.C. § 1367(a), "as
those claims are so related to the claims falling under this
Court's original jurisdiction such that they form part of
the same case or controversy." (Id. at p. 5).
Finally, Defendants assert that removal is timely because the
Notice of Removal was filed within thirty days of
Plaintiff's August 16, 2017 deposition, during which
Defendants first ascertained that Plaintiff's claims
against them arose out of, or were in connection with,
Defendants' operations on the Outer Continental Shelf
("OCS"), which involved the exploration,
development, and/or production of minerals. (Id.).
Plaintiff filed the instant Motion to Remand, seeking remand
on the basis that this Court lacks subject matter
jurisdiction. (Rec. Doc. 15). Plaintiff alleges that
Defendants have failed to carry their burden of showing that
OCSLA, or any other basis for federal subject matter
jurisdiction, applies in this case. (Rec. Doc. 15-1 at p. 3).
Plaintiff denies that his injuries arose out of or in
connection with the exploration, development, or production
of minerals: "Rather, Plaintiff [alleges that he] was
exposed to asbestos in the course of building or repairing
platforms, not operating them, and Plaintiff was not
exploring, developing, or producing minerals when he was
exposed." (Id. at p. 5). Further, Plaintiff
asserts that OCSLA does not provide a basis for removal
because he alleged solely state law causes of action and did
not assert a cause of action under OCSLA. (Id. at p.
opposition, Defendants reject Plaintiff's arguments as
being "contrary to Fifth Circuit precedent." (Rec.
Doc. 23). Specifically, Defendants assert that the case was
properly removed on two separate grounds, 43 U.S.C. 1349
(OCSLA) and 28 U.S.C. 1331 (federal question). (Id.
at p. 4). While emphasizing the broad reach of OCSLA's
jurisdictional grant, Defendants contend that removal
jurisdiction exists under OCSLA because Plaintiff alleges
that he was exposed to asbestos while working to construct,
repair, maintain, and service OCS platforms, which qualifies
as operations on the OCS involved in the exploration or
production of minerals. (Id. at pp. 4-5). Defendants
assert that "but for those OCS operations, his
allegations would not exist;"thus, this Court has OCSLA
jurisdiction. (Id. at p. 13). Alternatively,
Defendants contend that this Court has federal question
jurisdiction under 28 U.S.C. 1331, in light of OCSLA's
choice of law provision, 43 U.S.C. §1333. Accordingly,
Defendants request that the Motion to Remand be denied.
LAW AND ANALYSIS
burden is on the removing party to establish federal subject
matter jurisdiction, who must prove it “by a
preponderance of the evidence.” Young v. United
States, 727 F.3d 444, 446 (5th Cir. 2013). OCSLA, 43
U.S.C. §1349(b), contains an independent grant of
original federal jurisdiction, which states, in pertinent
[T]he district courts of the United States shall have
jurisdiction of cases and controversies 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, or which involves rights to such
minerals. . . .
43 U.S.C. § 1349(b)(1).
Fifth Circuit has consistently interpreted this
jurisdictional grant broadly, utilizing a
“but-for” test in order to determine if a cause
of action arises under OCSLA. See In re Deepwater
Horizon, 745 F.3d 157, 163-64 (5th Cir. 2014);
Hufnagel v. Omega Serv. Indus., Inc., 182 F.3d 340,
350 (5th Cir. 1999); Tenn. Gas Pipeline v. Hous. Cas.
Ins. Co., 87 F.3d 150, 154 (5th Cir. 1996); EP
Operating Ltd. P'ship v. Placid Oil Co., 26 F.3d
563, 569 (5th Cir. 1994). Specifically, when assessing OCSLA
jurisdiction under 43 U.S.C. § 1349(b), federal courts
consider whether “(1) the activities that caused the
injury constituted an ‘operation' ‘conducted
on the outer Continental Shelf' that involved the
exploration and production of minerals, and (2) ...