Reassigned Worker May Be Seaman: District Court of Oregon Refuses to Adopt Fifth Circuit Fraudulent Pleadings Rule

 Reassigned Worker May Be Seaman:

 District Court of Oregon Refuses to Adopt Fifth Circuit Fraudulent Pleadings Rule

By: Nick Bergeron

Leloff v. Georgia-Pacific Consumer Products, Ltd., 2016 U.S. Dist. LEXIS 82375, No. 3:16-cv-00539-MO, 2016 WL 3457166, *1 (D. Ore. 6/23/2016) In this case, the plaintiff sued his employers[1] under the Jones Act, the Longshore and Harbor Workers' Compensation Act ("LHWCA"), and general maritime law alleging unseaworthiness of a vessel, failure to pay maintenance and cure, and vessel negligence. The defendants filed a timely Notice of Removal to the United States District Court of Oregon, Portland Division, relying on diversity jurisdiction. The plaintiff in response filed a Motion to Remand to state court. The issue was whether the court could look beyond the pleadings and whether it would adopt the Fifth Circuit Rule for fraudulent joinder though the Ninth Circuit had not addressed the issue.In granting the plaintiff’s motion to remand, the court recognized the presumption that Jones Act claims are generally not removable and, further, opted to look only to the pleadings in making its legal conclusions.[2] The court found that the non-Jones Act claims could not be removed separate of the Jones Act claim because they were neither separate nor independent from the Jones Act claim, even though diversity jurisdiction existed between the parties, pointing to the “savings to suitors” clause as well as principles of judicial efficiency for support of remanding the non-Jones Act claims as well.The defendants argued that because the plaintiff fraudulently pled his claims, he did not qualify for seaman status. They maintained that the court should adopt the rule of the U.S. Court of Appeals for the Fifth Circuit, which enables the court to look beyond the pleadings. However, as the court reasoned, a defendant must nonetheless carry its burden and show that the plaintiff has no possibility to prove he is a seaman. The court found that the defendants did not meet this burden even if the Fifth Circuit Rule was applied. The plaintiff, as a deckhand onboard the defendants’ tugboat, satisfied the first element of the inquiry – i.e. whether the employee contributes to the function and mission of the vessel. In his complaint, the plaintiff provided a long list of his duties as deckhand onboard the vessel. Although the defendants argued that the plaintiff was injured during an assignment off of the vessel, the court found this argument without merit as the plaintiff was injured while working on the vessel in the middle of the Columbia River.Additionally, with respect to whether the plaintiff substantially contributed to the service of the vessel, the court found that even though the plaintiff was standing on a barge when injured, not the tug itself, the fact that the tug’s mission involved moving barges ultimately required him to stand on unmanned barges while in the course of his work. Moreover, while the plaintiff was permanently assigned to work in a mill for three months at the time of his injury, there was no evidence that he was not contributing at least thirty percent of his time to the vessel at the time of the accident. The court recognized that factual disputes must be resolved in favor of the plaintiff, and found that the defendants created only factual inconsistencies rather than evidence rebutting the plaintiff’s seaman status.Finally, the court echoed a longstanding principle that asserting both Jones Act and LHWCA claims does not create a presumption of longshore status; thus, the plaintiff qualified as a seaman and his claims were remanded to state court. The district judge reasoned that even if he were to look beyond the pleadings, the plaintiff provided sufficient evidence to qualify as a seaman, raise a Jones Act claim, and prevent removal.[1] Georgia-Pacific Consumer Products, Ltd., Georgia-Pacific, LLC, and Georgia-Pacific Consumer Products, LP[2] The district court judge recognized a lack of binding Ninth Circuit precedent instructing to look beyond the pleadings.