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Lopez v. McDermott, Inc.

United States District Court, E.D. Louisiana

January 24, 2018

FEDERICO LOPEZ
v.
MCDERMOTT, INC., ET AL

         SECTION “N” (5)

          ORDER AND REASONS

          KURT D. ENGELHARDT UNITED STATES DISTRICT JUDGE

         Before 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.

         I. BACKGROUND

         On June 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).[1] 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).

         On 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.[2] (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.).

         Thereafter, 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. 6).

         In 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.

         II. LAW AND ANALYSIS

         A. OCSLA Jurisdiction

         The 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 part:

[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).

         The 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) ...


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