Gates v. Am. Bridge Co.

461 F.Supp.3d 508

William GATES, Plaintiff,

v.AMERICAN BRIDGE COMPANY, Defendant.

Civil Action No. H-20-418

United States District Court, S.D. Texas, Houston Division.

Signed May 16, 2020

Sean Edward O'Rourke, Simon Orourke Law Firm PC, Webster, TX, for Plaintiff.

Allen Dwayne Hemphill, Brown Sims PC, Houston, TX, for Defendant.

MEMORANDUM AND OPINION DENYING REMAND

Lee H. Rosenthal, Chief United States District Judge

This personal injury case requires the court to decide whether William Gates, an iron worker who was allegedly injured when he slipped and fell while working on an American Bridge Company-owned barge as an American Bridge employee, is a Jones Act seaman. Federal removal jurisdiction depends on his seaman status under the Jones Act.

Gates sued American Bridge under the Jones Act, seeking damages. American Bridge timely removed, and Gates moved to remand based on the Jones Act's prohibition against removal. American Bridge argues that removal was proper because Gates improperly pleaded a Jones Act claim to prevent removal. American Bridge attached exhibits to its response to show, based on Gates's job as an iron worker, how he does not qualify as a seaman.

Based on a careful review of the pleadings, the motion and response, the record, the parties’ oral arguments, and the applicable law, the court finds that Gates was not a seaman under the Jones Act and denies the remand motion. (Docket Entry No. 2). The reasons are explained below.

I. Background

A. The Complaint Allegations and Procedural History

Gates alleges that American Bridge employed him in a land-based position as an iron worker, but that he was reassigned around December 19, 2018, to work as a "rigger" aboard an American Bridge-owned barge. (Docket Entry No. 1-5 at 3). Gates alleges that "as a result of this job re-assignment," he "became a Jones Act Seaman." (Id. ). On December 19, 2018, Gates was allegedly "performing his regular duties aboard the vessel (as a rigger)" when he slipped and fell, sustaining severe injuries. (Id. ). Gates alleges that the barge "was not properly cleaned or maintained" and that it had "insufficient non-skid and was covered in mud." (Id. ).

Gates sued in state court, asserting claims under the Jones Act and under admiralty and general maritime law. (Id. ). American Bridge removed to federal court, arguing that Gates does not qualify as a seaman under the Jones Act. (Docket Entry No. 1). Because Gates has no reasonable possibility of success on his Jones Act claim, American Bridge argues, the claim is improperly joined to prevent removal. (Id. at 1). Gates moved to remand, and American Bridge responded. (Docket Entry Nos. 2, 6).

B. The Affidavit Testimony

Both parties present affidavits. Gates states in his own affidavit that although American Bridge originally hired him as a land-based iron worker, he was "assigned and reassigned multiple times over the year [he] worked for them to do different work." (Docket Entry No. 2-1 at 1). "Overall," Gates says, "approximately 1/3 or 33.33 % of [his] time was spent working on the water on vessels used by American Bridge Company." (Id. ). Gates states that because the "fabrication work" was finished "[a] week or two" before his injury, he was "moved from the fabrication area to assist in road repair, silt fence work and barge work." (Id. ). "On the day of [his] injury," Gates says, "[a]ll the work on shore had been completed" and he was "assigned that morning to work on the barge to do rigging work." (Id. ). Gates states that he was "helping to rig the removal of old concrete slabs" and that he was "working on American Bridge Company’[s] barge." (Id. at 1–2). According to Gates, another small boat transported him to the barge that day, and the work "took place exclusively on the water." (Id. at 2).

American Bridge submits an affidavit from Alan Salazar-Rosales, a field engineer for American Bridge who was assigned to the same project as Gates and who reviewed Gates's cost and task codes for the project. (Docket Entry No. 6-1 at 4). Rosales explains that he and Gates were assigned to a project to construct a replacement bridge over the San Bernard River in Brazoria County, Texas. (Id. ). According to Rosales, Gates worked on the bridge project regularly from November 2017 until January 2019, and "mostly worked on tasks that did not, and could not, involve his use of vessels." (Id. at 5). During Gates's employment, only one of his tasks involved work "entirely on a barge"; only "a few" tasks required "limited and occasional duties on a barge." (Id. ). Rosales states that when Gates slipped and fell, he was "performing tasks associated with ... demolishing the central pivot pier of the original swing span bridge." (Id. ).

In his affidavit, Rosales reviewed each of Gates's task codes and describes what those tasks entail, concluding that "from [Gates's] date of hire to his alleged injury, William Gates worked on barges, boats, and floating equipment for no more than 7.9 % of his work time (212.6 hours aboard vessels in 2,708.5 total hours worked)." (Id. at 5–7). Rosales added that when Gates worked "any jobs involving barges, boats, and floating equipment, his work was still usually land-based," and that even if Gates had spent all his time aboard a vessel during the tasks that involved vessels, "his work aboard vessels would total well below 30 %" of his total time. (Id. at 8).

American Bridge also submitted the affidavit of Robert Adams, a senior field engineer for American Bridge who was assigned to the same project as Gates and Rosales and who "regularly observed" Gates's work. (Id. at 9). Adams testified that American Bridge's projects "sometimes involve bridges over water," and that these "require the use of barges and tugboats for the support of land-based Iron Workers and other bridge building personnel." (Id. at 10). Adams stated that "[w]hen barges are required on [American Bridge] projects, they are typically maneuvered into place with tugboats operated by a captain and possibly one or two hands," but that "[t]he tugboats are not operated by Iron Workers, and the barges do not have a standing crew." (Id. at 10–11).

Iron workers are used when "support barges and other floating equipment are used on a project." (Id. at 11). Then, they are "usually responsible for assembling cranes on land and for assisting the operations involved with walking them onto barges, securing the equipment to the barges ... and disassembling and moving a crane when it is no longer needed." (Id. ). Iron workers "may also be tasked with assisting with removal of debris stored in barge hoppers" and "welding or minor repairs on a barge." (Id. ). According to Adams, the "central jobs of an Iron Worker, fabrication and welding, take place almost entirely on land and the bridge structure." (Id. at 12). This is true "even in projects requiring the use of support barges." (Id. ).

Adams described the work Gates was doing when he was injured as "demolishing the central pivot pier of the original swing span bridge." (Id. at 13). This work involved a "barge mounted hydraulic hammer" that Gates did not operate. (Id. ). An excavator operated by another operator, not Gates, retrieved the demolition debris. (Id. ). That excavator then "placed the debris ashore or in a hopper on a barge." (Id. ). Gates and similar workers could perform "only a few tasks on the floating equipment," such as tying a barge when it was "infrequently repositioned," rigging a hopper to the excavator, "which would then deposit the debris on the shore," or securing a Flexifloat barge¹ "in the rare circumstance a Flexifloat needed to be repositioned." Other than those tasks, according to Adams, Gates was responsible for "spreading crushed rock across the bank and roadway with skid steer." (Id. ). Adams states that when Gates was injured, Gates was "helping to tie off a small barge composed of Flexifloats holding the excavator." (Id. ). The barge-mounted hydraulic hammer on the excavator would then be used for the underwater demolition, and Gates "would return to his land-based duties distributing debris." (Id. at 14).

Adams stated that "Gates was not assigned to a new job on the date of his injury," and that "from its inception, the tasks assigned to William Gates were almost entirely on land with infrequent tasks requiring him to board one of the support barges." (Id. at 14). Gates was "never assigned the title ‘Rigger,’ and was never advised that his duties would primarily consist of rigging loads," Adams states. (Id. ). He adds that "Gates also performed pier demolition tasks on the two days preceding his injury," and that Gates was assigned similar pier-demolition tasks for about two months before his injury. (Id. ).

II. The Legal Standard

"A party may remove an action from state court to federal court if the action is one over which the federal court possesses subject matter jurisdiction."

Manguno v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 722 (5th Cir. 2002) ; 28 U.S.C. § 1441. "The removing party bears the burden of showing that federal jurisdiction exists and that removal was proper." Id. ; see Carpenter v. Wichita Falls Indep. Sch. Dist. , 44 F. 3d 362, 365 (5th Cir. 1995) (citation omitted). Removal statutes are construed strictly in favor of remand. Gasch v. Hartford Accident & Indem. Co. , 491 F.3d 278, 281–82 (5th Cir. 2007).

Generally, when a plaintiff sues under the Jones Act, 46 U.S.C. § 30104, the defendant cannot remove. Holmes v. Atl. Sounding Co. , 437 F.3d 441, 445 (5th Cir. 2006). Although the Jones Act incorporates provisions of the Federal Employers Liability Act that bar removal, 28 U.S.C. § 1445(a), an improperly pleaded Jones Act claim does not prevent removal. Burchett v. Cargill, Inc. , 48 F.3d 173, 175–76 (5th Cir. 1995). The court may deny remand if, after "resolving all disputed facts and ambiguities in current substantive law in the plaintiff's favor," there is no "reasonable possibility of establishing ...