Published: February 15, 2013
By: Frederick B. Goldsmith
Earl Scott Brewer filed a lawsuit in the Twenty-Third Judicial District Court of St. James Parish, Louisiana, against Cooper/T. Smith Mooring Co. (“Cooper”) and others. He claimed he worked for Cooper as a linesman and that when pulling on a line while releasing a barge from a dock, he seriously injured his neck, back and shoulder. Cooper transferred, or “removed,” Brewer’s lawsuit to federal court in New Orleans. Brewer then filed a motion in federal court, asking the judge to “remand” his Jones Act case, or send it back, to Louisiana state court. Cooper and the other defendants argued in opposition that Brewer failed to qualify as a Jones Act seaman and therefore that the law which prohibits defendants from removing Jones Act suits did not apply.
In Brewer v. Motiva Enters., LLC, 2013 U.S. Dist. LEXIS 16810 (E.D. La. Feb. 7, 2013), U.S. District Judge Nannette Jolivette Brown sided with Brewer and sent his case back to state court. She wrote that “[w]hile Jones Act suits filed in state court are typically immune from removal, defendants may pierce the pleadings to show that a Jones Act claim has been fraudulently pled by a plaintiff to prevent removal.” The Court noted, however, that “the burden is on a defendant to refute a plaintiff’s assertion that he is a Jones Act seaman when the defendant seeks removal, and all doubts must be resolved in favor of the plaintiff….the mere assertion of fraud is not sufficient to warrant removing the case to federal court….Defendants must prove that the allegations of the complaint were fraudulently made, and any doubts should be resolved in favor of the plaintiff.”
Judge Brown discussed the United States Supreme Court’s two-part test to determine whether a worker can qualify as a seaman under the Jones Act: “First, ‘an employee’s duties must ‘contribut[e] to the function of the vessel or to the accomplishment of its mission.’ Second, ‘a seaman must have a connection to a vessel in navigation (or to an identifiable group of vessels) that is substantial in terms of both its duration and its nature.’ The purpose of the substantial connection requirement is ‘to separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based maritime workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.'”
Judge Brown discussed the U.S. Supreme Court’s decision in Chandris v. Latsis, in which the high court adopted the U.S. Fifth Circuit Court of Appeals’ “thirty percent rule” to decide whether a worker has a connection to a vessel substantial enough to qualify as a Jones Act seaman. In the Chandris decision, the Supreme Court wrote that “[a] worker who spends less than about thirty percent of his time in service of a vessel in navigation should not qualify as a seaman under the Jones Act.”
Brewer argued to Judge Brown that in ruling on “the substantiality of an employee’s vessel related work, the Court must look at his entire work history; however, when an employee has received a new permanent work assignment before the alleged accident, substantiality is measured in relation to his new job.” Brewer also argued it was improper for the Defendants to include standby time in the total calculation of his work history in an effort to show his vessel-related work was less than the required 30%.
Judge Brown concluded: “In the absence of controlling authority that [standby] time must be included in the [seaman status] calculation, this Court cannot say that Plaintiffs’ claim that it should not be included is ‘baseless in law.’ Therefore, Defendants have not met their burden and this matter is appropriately remanded to state court.”