           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          January 6, 2009

                                       No. 08-40132                   Charles R. Fulbruge III
                                                                              Clerk

ARMANDO ZERTUCHE

                                                  Plaintiff - Appellant
v.

GREAT LAKES DREDGE & DOCK COMPANY, LLC

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  No. 7:07-cv-31


Before KING, DENNIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Plaintiff Armando Zertuche appeals the district court’s orders denying his
motion to remand and granting the defendant’s motion for summary judgment
on his claim brought under the Jones Act, 46 U.S.C. §§ 30104–30105. For the
reasons stated below, we reverse and remand this case to the district court with
instructions to remand to the state court.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 08-40132

             I. FACTUAL AND PROCEDURAL BACKGROUND
       Zertuche originally filed this Jones Act suit in the 381st Judicial District
of Starr County, Texas, alleging that in April 2006 he was injured while working
on a dredge owned by Great Lakes Dredge & Dock Company, LLC (“Great
Lakes”). Great Lakes removed the suit to the United States District Court for
the Southern District of Texas on the basis that Zertuche was not a seaman
under the Jones Act. Zertuche filed a motion to remand, which the district court
denied after concluding that Zertuche could not possibly establish his status as
a seaman. Thereafter, the district court granted Great Lakes’ motion for
summary judgment based on the same conclusion.
                                   II. DISCUSSION
                                             A.
       We review both the denial of a motion to remand and the grant of
summary judgment de novo. Holmes v. Atl. Sounding Co., Inc., 437 F.3d 441,
445 (5th Cir. 2006).
       A Jones Act claim is generally not removable. Id. at 445; see also Lackey
v. Atl. Richfield Co., 990 F.2d 202, 207 (5th Cir. 1993). A district court “‘may
deny remand where, but only where, resolving all disputed facts and ambiguities
in current substantive law in plaintiff’s favor, the court determines that the
plaintiff has no possibility of establishing a Jones Act claim on the merits.’”
Holmes, 437 F.3d at 445 (quoting Hufnagel v. Omega Serv. Indus. Inc., 182 F.3d
340, 345–46 (5th Cir. 1999)). Thus, the burden of persuasion rests with the
removing party, and this burden is a heavy one. Burchett v. Cargill, Inc., 48
F.3d 173, 176 (5th Cir. 1995).1           While the district court must resist the


       1
        Great Lakes argues that, since Zertuche has the ultimate burden of proof at trial on
his seaman status, then he should have the burden affirmatively to establish that he qualifies
as a seaman. In support of this argument, Great Lakes cites Becker v. Tidewater, Inc., 335
F.3d 376, 390 (5th Cir. 2003); however, Becker occurred at a different procedural stage. There
was no motion to remand filed in Becker; instead, the court was only presented with a motion

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temptation to pretry a case, it is allowed to use a “summary judgment-like
procedure for disposing of fraudulent pleading claims.” Burchett, 48 F.3d at 176.
The district court should not attempt to resolve factual disputes regarding
“matters of substance,” and the “[j]urisdictional inquiry must not subsume
substantive determination.” Lackey, 990 F.2d at 208.
       As the plaintiff in a Jones Act suit attempting to refute a fraudulent
pleading allegation, Zertuche is entitled to rely upon the factual allegations
contained in his petition as well as any affidavits or deposition transcripts
submitted with the motion to remand. Id. In response, Great Lakes “may pierce
the pleadings to show that the Jones Act claim has been fraudulently pleaded
to prevent removal.” Id. at 207. However, “the mere assertion of fraud is not
sufficient to warrant removing the case to federal court.” Id. (internal quotation
marks omitted).
                                               B.
       To qualify as a seaman under the Jones Act, a plaintiff must demonstrate
that (1) his duties contribute to the function of a vessel or to the accomplishment
of its mission and (2) he has a connection to a vessel in navigation that is
substantial in terms of both its duration and nature. Chandris, Inc. v. Latsis,
515 U.S. 347, 368 (1995). The district court found, and Great Lakes concedes,




for summary judgment that was filed prior to trial. See also, e.g., Harbor Tug and Barge Co.
v. Papai, 520 U.S. 548, 559 (1997) (noting, in the context of a motion for summary judgment,
that the plaintiff failed to “identify with specificity” what tasks he performed during his prior
employment with the defendant). Thus, the issue in Becker was “whether the district court
erred by allowing the jury to decide whether plaintiff is a seaman.” 335 F.3d at 386. In this
case, the relevant burden of proof is on the motion to remand, not the motion for summary
judgment. Great Lakes only filed the motion for summary judgment after the motion to
remand was denied, and the district court’s sole reasoning for granting the motion for
summary judgment was its previous finding in the order on the motion to remand that
Zertuche had no possibility of establishing his seaman status. Thus, our analysis focuses on
the relevant standard applicable to the motion to remand.

                                               3
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that Zertuche satisfies the first requirement, leaving only the issue of
substantial connection in dispute.
      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.” Id. In determining whether an
employee is a seaman rather than just a land-based employee temporarily
working aboard a vessel, the court looks to the “total circumstances of an
individual’s employment” and must consider both “[t]he duration of a worker’s
connection to a vessel and the nature of the worker’s activities.” Id. at 370
(emphasis added). Thus, although the second prong is not merely temporal, it
does include a temporal element. Id. at 371.
      The Supreme Court adopted this court’s general rule of thumb that a
“worker who spends less than about 30 percent of his time in the service of a
vessel in navigation should not qualify as a seaman under the Jones Act.” Id.
at 371 (suggesting that summary judgment is appropriate if the plaintiff clearly
cannot reach this threshold level). While this general guideline looks at the
entire length of a plaintiff’s employment with the defendant, the Supreme Court
allowed for an exception to this 30-percent requirement “[w]hen a maritime
worker’s basic assignment changes.” Id. at 372. “If a maritime employee
receives a new work assignment in which his essential duties are changed, he
is entitled to have the assessment of the substantiality of his vessel-related work
made on the basis of his activities in his new position.” Id.
      We applied this exception to the general 30-percent rule in Becker. Becker
was an intern working in a land-based position. Due to a staffing shortage, he
was assigned to replace a crew member aboard a vessel. Becker, 335 F.3d at 382.
It was during the first day of his voyage that Becker sustained his injuries. Id.

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at 383. Since he could not pass the 30-percent threshold, he could only qualify
as a seaman if his reassignment changed his essential duties. Id. at 389 (citing
Chandris, 515 U.S. at 372). We concluded that Becker did not fit into the
exception for permanently reassigned employees because he was only
temporarily assigned to the vessel and would have returned to land-based work
immediately after the voyage. Id. at 391.
                                        C.
      In its order denying the motion to remand, the district court stated that
“the central issue is whether Plaintiff’s status as a temporarily assigned
deckhand on a dredge establishes the second prong of the [Chandris] analysis.”
This was not the issue before the district court on the motion to remand; instead,
it should have asked whether Zertuche’s total employment with Great Lakes
satisfied the general 30-percent rule. The district court erred by (1) disregarding
Zertuche’s affidavit rather than construing the disputed facts in his favor and
(2) misapplying Chandris by analyzing the exception for reassigned employees
without first determining if the general 30-percent rule was satisfied.
      In his affidavit, Zertuche states that he began working for Great Lakes in
September 2003 and he “worked as a deckhand for over fifty percent of the time
of [his] employment with [Great Lakes].” He also describes his duties as a
deckhand, which included performing routine maintenance on vessels. Great
Lakes submitted an affidavit from the captain of the dredge on which Zertuche
was working when he was injured. The captain asserts that Zertuche was first
hired in January 2006 to be a dump foreman, not a deckhand. Thus, the
evidence before the district court on the motion to remand created a dispute over
material facts—how long Zertuche worked for Great Lakes and in what capacity.
These two questions comprise the two elements of the second prong of the
Chandris test—a connection to a vessel in navigation that is substantial in both
nature and duration. Rather than resolving this factual dispute in favor of

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Zertuche as the plaintiff opposing removal, the district court dismissed the
allegations in Zertuche’s affidavit in two footnotes in its order denying the
motion to remand.
       Footnote three states: “Although it is contested whether Plaintiff was
considered a Deckhand or Dump Foreman at the time of injury, the Court finds
that the Plaintiff’s initial position as Dump Foreman is sufficient for purposes
of satisfying the first prong of the seaman analysis.” Although the district court
was discussing the first prong, this footnote shows that the district court did not
accept the allegations in Zertuche’s affidavit. In that affidavit, he claims to have
been hired as a deckhand, but the district court concluded that his initial
position was as a dump foreman, which is the allegation made in the affidavit
submitted by Great Lakes. Footnote four reads: “Plaintiff also states that he
worked for Defendant for three years. However, it remains unclear what other
positions Plaintiff maintained during those three years or . . . whether Plaintiff
worked as a deckhand or as a Dump Foreman.” The district court stated that it
is “unclear” what positions Zertuche held prior to January 2006, but it failed to
resolve this disputed fact in his favor based on his allegation that he spent over
50 percent of his employment with Great Lakes as a deckhand.2
       In opposing removal, Zertuche is entitled to rely upon the allegations in
his affidavit, and it is the heavy burden of Great Lakes to show that there is no
possibility that Zertuche could prove these facts to establish his seaman status.
To satisfy this burden, Great Lakes must pierce Zertuche’s pleadings to show
that the claim has been fraudulently pleaded. For example, Great Lakes could


       2
         Insofar as the district court’s order can be construed to include a finding regarding the
nature element of the second prong of the Chandris test, it would have made the same error
by not resolving this disputed fact in Zertuche’s favor. Zertuche’s affidavit alleges that he was
doing deckhand work on the dredge and explains the nature of that work and its connection
to a vessel. The affidavit submitted by Great Lakes alleges that Zertuche was hired as a dump
foreman and remained a dump foreman at all times. This is another disputed material fact
that the district court should have resolved in favor of Zertuche.

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                                  No. 08-40132

have submitted employment records either showing that Zertuche was first
hired in 2006 or, if he was hired in 2003, that less than 30 percent of his
assignments over the course of his entire employment were connected to a vessel
in navigation. See, e.g., Breaux v. Halliburton Energy Servs., Inc., No. 04-1636,
2004 U.S. Dist. LEXIS 21418, at *5–7 (E.D. La. Oct. 22, 2004) (finding that
defendant had pierced the pleadings to show that plaintiff could not possibly
meet the 30-percent threshold by submitting objective evidence in the form of
the plaintiff’s employment records).       Great Lakes did not submit any
employment records, which are already in its control, to refute Zertuche’s
allegation that he spent 50 percent of his employment working as a deckhand.
Accordingly, the district court should have remanded the case because Great
Lakes did not carry its burden.
      The district court did not attempt to calculate the percentage of time that
Zertuche had worked aboard vessels in navigation while employed by Great
Lakes. Instead, it glossed over the general 30-percent rule in Chandris and
proceeded directly to the rule’s exception for employees whose position has been
fundamentally changed. The district court concluded that, like the plaintiff in
Becker, Zertuche’s assignment on the dredge was temporary and his status had
not been permanently changed.        We do not need to decide whether this
conclusion was in error because the district court should have never reached the
issue. In Becker, we applied this exception because the plaintiff had been
working on the vessel for only one day and it was impossible for him to meet the
30-percent threshold. See Becker, 335 F.3d at 383. Here, the district court never
made a finding that Great Lakes proved that Zertuche could not satisfy the
general 30-percent rule. As described above, Zertuche alleged that he spent 50
percent of his total employment from 2003 through 2006 working as a deckhand,
and Great Lakes’ only rebuttal evidence was an affidavit stating that Zertuche



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                                        No. 08-40132

was first hired in 2006 as a dump foreman.3 Under these circumstances,
resolving all factual disputes in Zertuche’s favor, Great Lakes did not carry its
heavy burden of showing that there was no possibility of Zertuche establishing
his seaman status. Accordingly, the district court should have remanded the
suit to the state court.
                                   III. CONCLUSION
       For the reasons stated above, we REVERSE the district court’s orders
denying the motion to remand and granting summary judgment, and we
REMAND to the district court with instructions to remand the suit to the 381st
Judicial District of Starr County, Texas.




       3
         Great Lakes argues that Zertuche has the burden to prove the specific dates and
names of the vessels on which he worked and that he did not include such details in his
complaint or affidavit. See Habor Tug, 520 U.S. at 560. While it is true that Zertuche would
have to prove these facts in order to ultimately sustain his burden at trial, this case is not at
that procedural stage. Zertuche’s allegations may not be detailed, but they are sufficient to
put Great Lakes on notice. The only burden relevant to this appeal is Great Lakes’ burden as
the removing party to show that there is no possibility that Zertuche could establish his
seaman status. Zertuche alleges that he worked as a deckhand more than 50 percent of the
time since beginning with Great Lakes in 2003. Great Lakes is in control of its own
employment records and could have easily shown that this allegation is false. Instead, Great
Lakes attempted to substitute its burden on the motion to remand with Zertuche’s burden on
summary judgment, without Zertuche having conducted any discovery.

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