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

                                                                            FILED
                                                                           May 21, 2008

                                     No. 07-41104                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


STEPHEN L WILLIS; CORINNA J WILLIS

                                                  Plaintiffs-Appellants
v.

FUGRO CHANCE, INC

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 1:07-CV-353


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       Stephen and Corinna Willis (the “Willises”) appeal the district court’s
grant of Fugro Chance, Inc.’s (“Fugro Chance”) motion for summary judgment.
We AFFIRM.
       The district court correctly outlined the facts underlying the Willises’
claims:




       *
        Pursuant to 5TH CIR. R. 47.5, this court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-41104

       Fugro Chance, a Louisiana corporation, provides a range of
services to the energy industry, including positioning offshore
drilling rigs, production platforms, and pipeline lay barges. In order
to render these services, Fugro Chance maintains a Gulf of Mexico
database containing information concerning the positions of wells,
pipelines, and hazards in the Gulf of Mexico as well as the locations
of shipwrecks, block boundary polygons, shipping fairways, and
underwater hazards on the Outer Continental Shelf. Fugro Chance
employees utilize this database to assist clients in planning projects
and to provide information to field crews in order to avoid delays
and assure safe operations.
       [Stephen] Willis was employed by Fugro Chance as a survey
party chief from December 1994 to August 2002 and from November
2004 to June 2007. In this role, Willis assisted in moving vessels
and other devices, such as semi-submersible drilling rigs, jack-up
drilling rigs, submersible drilling rigs, pipe laying barges, derrick
barges, and coring vessels, from dry-docks, harbors, and similar
places to drill site locations. Equipped with a global star satellite
telephone and other electronic equipment, Willis was responsible for
consulting global positioning satellites, maps, and Fugro Chance’s
database and notifying the rig mover of potential underwater
obstructions and hazards. Relying on information from Willis as
well as his own observations of the monitors, the rig mover would
then order tug boat captains to make the proper navigational
adjustments.
       Plaintiffs allege that, on January 12, 2007, Willis was exposed
to mercury and other toxic chemicals while aboard the LESTER
PETTUS, a submersible offshore drilling rig leased by operator
Century Exploration New Orleans, Inc. (“Century Exploration”) but
owned and “crewed” by Noble Drilling Services, Inc. (“Noble
Drilling”). At the time of the incident, Fugro Chance had been
retained by Century Exploration to provide navigational
information to the rig mover of the LESTER PETTUS, a Noble
Drilling employee, in order to assist him in moving the rig from a
shipyard in Pascagoula, Mississippi, to an offshore location. This
information was to be provided by Willis and his two Fugro Chance
assistants while aboard the LESTER PETTUS.
       When Willis arrived at the rig on the night in question, he
reported to the toolpusher and was told where to set up his
equipment. Willis asserts that, prior to departure from the
shipyard, the ballast operator informed him that the rig was not
ready to leave. Despite this purported statement, the rig proceeded

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       to depart. While en route, valves in the area where Willis was
       working malfunctioned, and Willis and his equipment were
       allegedly showered with mercury and other toxic chemicals.
       According to [the Willises], as a result of this exposure, Willis
       sustained severe bodily injury, including damage to his brain and
       central nervous system.
Willis v. Fugro Chance, Inc., No. 1:07-CV-353, slip op. at 1–3 (E.D. Tex. Oct. 11,
2007).
       In May 2007, the Willises sued Fugro Chance in Texas state court, alleging
negligence under the Merchant Marine Act of 1920, 46 U.S.C. §§ 30104-30105,
commonly known as the “Jones Act”. Fugro Chance removed the case to federal
court on the basis of diversity jurisdiction as well as the court’s original
admiralty jurisdiction. The Willises moved to remand, arguing that Fugro
Chance was barred from removing a Jones Act case. Fugro Chance then moved
for summary judgment, contending that Willis did not qualify as a “seaman” for
purposes of the Jones Act as defined by the Supreme Court in Chandris, Inc. v.
Latsis, 515 U.S. 347, 368 (1995). The district court agreed, denied the Willises’
motion to remand, and granted summary judgment in favor of Fugro Chance.1
The Willises now appeal, arguing that the district court erred in failing to


       1
          “As a general rule, we agree that Jones Act cases are not removable.” Burchett v.
Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995) (citing Johnson v. ODECO Oil & Gas Co., 864
F.2d 40, 42 (5th Cir. 1989)). Upon a motion to remand, “in the absence of any issue of a
fraudulent attempt to evade removal, the court determining whether a cause of action under
the Jones Act has been alleged is limited to a review of the plaintiff’s pleadings.” Preston v.
Grant Advertising, Inc., 375 F.2d 439, 440 (5th Cir. 1967) (per curiam). In its notice of removal
and opposition to the Willises’ motion to remand, Fugro Chance alleged that the Willises
fraudulently pleaded a Jones Act claim to defeat federal jurisdiction. “Thus, while federal
courts ordinarily look only to the plaintiffs’ pleadings in determining whether a Jones Act claim
has been stated, defendants may pierce the pleadings to show that the Jones Act claim has
been fraudulently pleaded to prevent removal.” Lackey v. Atl. Richfield Co., 990 F.2d 202, 207
(5th Cir. 1993). Here, the district court was within its bounds to consider summary judgment-
type evidence and to deny remand if it “‘determine[s] that as a matter of law there was no
reasonable basis for predicting that the plaintiff might establish liability.’” Burchett, 48 F.3d
at 176 (quoting B., Inc. v. Miller Brewing Co., 663 F.2d 545, 551 (5th Cir. 1981)). “The fact
that Jones Act claims are ordinarily not removable does not prevent this inquiry.” Lackey, 990
F.2d at 207.

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identify Willis as a seaman, both under Chandris and in light of this Court’s
definition of “seaman” in Bertrand v. International Mooring & Marine, Inc., 700
F.2d 240, 245 (5th Cir. 1983).
      This Court reviews a district court’s grant of summary judgment de novo,
applying the same standards as the district court. Strong v. Univ. Healthcare
Sys., L.L.C., 482 F.3d 802, 805 (5th Cir. 2007). Summary judgment is proper
when there exists no genuine issue of material fact and the movant is entitled
to judgment as matter of law. FED. R. CIV. P. 56(c).           “The evidence and
inferences from the summary judgment record are viewed in the light most
favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460,
465 (5th Cir. 2005). To survive a summary judgment motion, the nonmovant
“need only present evidence from which a jury might return a verdict in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
      The Jones Act permits “a seaman injured in the course of employment” to
recover from his employer for negligence. 46 U.S.C. § 30104(a). Although the
statute does not define the term “seaman”, the Supreme Court has defined the
term and provided courts a two-part test for determining a claimant’s status as
a seaman:
      First, . . . an employee’s duties must contribute to the function of the
      vessel or to the accomplishment of its mission. The Jones Act’s
      protections, like the other admiralty protections for seamen, only
      extend to those maritime employees who do the ship’s work. But
      this threshold requirement is very broad: All who work at sea in the
      service of a ship are eligible for seaman status.
             Second, . . . a seaman must have a connection to a vessel in
      navigation (or to an identifiable group of such vessels) that is
      substantial in terms of both its duration and its nature. The
      fundamental purpose of this substantial connection requirement is
      to give full effect to the remedial scheme created by Congress and to
      separate the sea-based maritime employees who are entitled to
      Jones Act protection from those land-based workers who have only
      a transitory or sporadic connection to a vessel in navigation, and


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      therefore whose employment does not regularly expose them to the
      perils of the sea.
Chandris, 515 U.S. at 368 (internal quotations and citations omitted). The
parties do not dispute the first prong of the test for seaman status; rather, the
resolution here depends on whether Willis can demonstrate a substantial
connection to a vessel or group of vessels.
      The Chandris Court recognized that “‘[t]he inquiry into seaman status is
of necessity fact specific; it will depend on the nature of the vessel and the
employee’s precise relation to it.’” Id. at 371 (quoting McDermott Int’l, Inc. v.
Wilander, 498 U.S. 337, 356 (1991)). Courts must assess the substance of the
connection to a vessel or group of vessels using both temporal and functional
measures, but the Supreme Court provided guidance by adopting this Court’s
general rule of thumb to measure the temporal connection: “A worker who
spends less than about 30 percent of this time in the service of a vessel in
navigation should not qualify as a seaman under the Jones Act.” Id. As this
Court further clarified:
      Indeed, application of the 30 percent test is the very means by which
      a substantial temporal connection is determined, regardless
      whether a single vessel or a group of vessels is at issue. And, when
      a group of vessels is at issue, a worker who aspires to seaman status
      must show that at least 30 percent of his time was spent on vessels,
      every one of which was under his defendant-employer’s common
      ownership or control.
Roberts v. Cardinal Servs., Inc., 266 F.3d 368, 376–77 (5th Cir. 2001) (emphasis
added).
      Willis argues that the district court ignored the fact that he spends the
majority of his time working at sea, a fact he claims should entitle him to
classification as a seaman for the reasons set forth in Chandris. He also
contends that the district court erred when it declined to recognize his status as
a seaman specifically because the vessel upon which he was working at the time


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of his injury was not part of an identifiable fleet under his employer’s common
control or ownership. Willis argues that the court’s decision is not supported by
this Court’s holding in Bertrand that allowed an injured worker to assert a Jones
Act claim, even though the “employer neither own[ed] nor control[led] the
several vessels upon which the seaman work[ed].” 700 F.2d at 245.
      But even if the record supports Willis’s contention that he the type of
maritime worker that Congress intended to protect under the Jones Act because
his employment “regularly expose[s] [him] to the perils of the sea,” Chandris,
515 U.S. at 368, Willis ignores the fact that we have limited our holding in
Bertrand to the facts of that case:
            Although Bertrand thus expanded the concept of a fleet to
      encompass vessels used, but not owned or chartered, by the
      employer, we do not believe that it can fairly be read so broadly as
      to confer seaman status on every worker whose duties place him
      aboard a large number of randomly-owned and controlled vessels for
      short periods of time that aggregate to comprise a substantial
      portion of his working time, nor do we believe that Bertrand rejected
      the identifiable or recognizable fleet requirement established by our
      prior cases. Rather, Bertrand must be read in light of the factual
      situation it involved.
Buras v. Commercial Testing & Eng’g Co., 736 F.2d 307, 311 (5th Cir. 1984)
(footnote omitted).      Further, in Roberts, we considered one court’s
“classifi[cation] [of a claimant] as a seaman, despite the fact that he did not have
a substantial connection to a fleet under common ownership or control, because
[the claimant] ‘faced regular exposure to the perils of the sea.’” 266 F.3d at 377
(considering the Louisiana Supreme Court’s holding in Wisner v. Professional
Divers of New Orleans, 731 So. 2d 200, 202 (La. 1999)). Nevertheless, we
rejected that opportunity “to depart from our well-established rule . . . that a
worker who fails to show that at least 30 percent of his time is spent on vessels
under the common ownership or control of his employer is precluded from
recovering as a seaman under the Jones Act.” Id. at 378; see also St. Romain v.

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Indus. Fabrication & Repair Svc., Inc., 203 F.3d 376, 379–80 (5th Cir. 2000)
(stating that because the worker “did not work aboard vessels under common
ownership or control,” then he “[wa]s not a seaman”).
     Here, the record reveals that Willis’s employer, Fugro Chance, neither
owned nor exercised control over any of the vessels upon which Willis worked,
including the LESTER PETTUS. Willis does not qualify as a seaman; thus he
is prohibited from recovery under the Jones Act.
     Therefore, the judgment of the district court is AFFIRMED.




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