     Case: 15-30980      Document: 00513478978         Page: 1    Date Filed: 04/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                    No. 15-30980                                 FILED
                                  Summary Calendar                           April 25, 2016
                                                                            Lyle W. Cayce
                                                                                 Clerk
JAMES HEFREN,

              Plaintiff - Appellant

v.

MCDERMOTT, INC.,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 6:12-CV-1899


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant James Hefren filed suit in state court against
Defendant–Appellee McDermott, Inc., alleging personal injuries from
McDermott’s design and construction of the Front Runner Spar, an offshore
drilling and production platform in the Gulf of Mexico. Following removal of
the case to federal court, McDermott filed a motion for summary judgment,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-30980
arguing that Hefren’s claims were perempted under Louisiana state law and
could no longer be brought. The district court granted the motion for summary
judgment, and Hefren now appeals. For the following reasons, we AFFIRM
the judgment of the district court.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       The instant case arises out of personal injuries allegedly sustained by
Plaintiff–Appellant James Hefren while he was employed by Murphy
Exploration & Production Company, USA (Murphy), as a lead operator on the
Front Runner Spar. In March 2002, Murphy contracted with Defendant–
Appellee McDermott, Inc. (McDermott) to have McDermott design and
construct the Front Runner Spar, an offshore facility to be used by Murphy for
removing and processing petroleum from the seabed of the Gulf of Mexico. 1 In
May 2004, Murphy accepted delivery of the Front Runner Spar and affixed it
to the seafloor at the outer continental shelf adjacent to the State of Louisiana
where it has remained since, operating as a platform facility with three decks
used for crew quarters, drilling, and production.
       According to Hefren, he suffered significant injury on or about June 6,
2011, on the Front Runner Spar when a flange of a valve struck him in the
face. Following his injury, Hefren filed suit against Murphy and McDermott
in the 16th Judicial District Court for the Parish of St. Mary in Louisiana on
June 4, 2012. 2 In his complaint, Hefren invoked jurisdiction under the Jones
Act and general maritime law and asserted claims for negligence. Hefren




       1  As previously described by this court, “[a] spar is a nautical structure designed to
float with the bulk of the hull below waves—something akin to a giant buoy,” and spars have
increasingly been used “to exploit oil and gas resources in deeper ocean waters.” Fields v.
Pool Offshore, Inc., 182 F.3d 353, 355 (5th Cir. 1999).
        2 Hefren’s initial complaint improperly named J. Ray McDermott Gulf Contractors,

Inc., as a defendant rather than McDermott, Inc. Hefren later supplemented and amended
his original complaint, substituting McDermott as a defendant.
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                                         No. 15-30980
alleged that both Murphy and McDermott failed to take precautions for
Hefren’s safety and specifically alleged that McDermott failed to properly
design and construct the Front Runner Spar.                    Murphy then removed the
matter to the United States District Court for the Western District of
Louisiana on July 12, 2012, asserting diversity jurisdiction under 28 U.S.C.
§ 1332 and jurisdiction under the Outer Continental Shelf Lands Act (OCSLA).
Hefren subsequently filed a motion to remand his case to state court on August
13, 2012, arguing that he was a seaman under the Jones Act and that Jones
Act claims could not be removed to federal court on the basis of diversity
jurisdiction. 3 However, the motion was denied on October 25, 2012, by a
magistrate judge who concluded that Hefren could not maintain a claim under
the Jones Act because the Front Runner Spar was not a vessel and therefore
Hefren was not a seaman. On May 2, 2013, the district court entered summary
judgment for Murphy, dismissing Hefren’s tort claims against Murphy as
barred by the exclusive remedy provisions of the Longshore & Harbor Workers’
Compensation Act.
       On February 17, 2014, McDermott filed its own motion for summary
judgment, seeking the dismissal of Hefren’s claims against it with prejudice.
McDermott argued that Hefren’s claims were barred or perempted under La.
Stat. Ann. § 9:2772, which provides that no action arising out of deficiencies in
the design or construction of immovable property can be brought five years




       3 Under the Jones Act, “[a] seaman injured in the course of employment . . . may elect
to bring a civil action at law, with the right of trial by jury, against the employer.” 46 U.S.C.
§ 30104. Because the Jones Act incorporates “[l]aws of the United States regulating recovery
for personal injury . . . of a railway employee,” id., it also incorporates those laws’ prohibition
against removal of actions filed in state court. See 28 U.S.C. § 1445(a) (“A civil action in any
State court against a railroad or its receivers or trustees, arising under [federal laws
applicable to the liability of railroads], may not be removed to any district court of the United
States.”).
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                                        No. 15-30980
after the date on which the property is accepted by the owner. 4 Because
Hefren’s claims—relating to deficiencies in the Front Runner Spar—were
brought in 2013 and Murphy took possession of the Front Runner Spar in 2004,
McDermott argued that Hefren’s claim was perempted and that McDermott


       4   The applicable Louisiana statute provides, in relevant part:

       A. Except as otherwise provided in this Subsection, no action, whether ex
       contractu, ex delicto, or otherwise, including but not limited to an action for
       failure to warn, to recover on a contract, or to recover damages, or otherwise
       arising out of an engagement of planning, construction, design, or building
       immovable or movable property which may include, without limitation,
       consultation, planning, designs, drawings, specification, investigation,
       evaluation, measuring, or administration related to any building, construction,
       demolition, or work, shall be brought against any person performing or
       furnishing land surveying services, as such term is defined in R.S. 37:682,
       including but not limited to those services preparatory to construction, or
       against any person performing or furnishing the design, planning, supervision,
       inspection, or observation of construction or the construction of immovables, or
       improvement to immovable property, including but not limited to a residential
       building contractor as defined in R.S. 37:2150.1:
       (1)(a) More than five years after the date of registry in the mortgage office of
       acceptance of the work by owner.
       ...
       B. (1) The causes which are perempted within the time described above include
       any action:
               (a) For any deficiency in the performing or furnishing of land
               surveying services, as such term is defined in R.S. 37:682,
               including but not limited to those preparatory to construction or
               in the design, planning, inspection, or observation of
               construction, or in the construction of any improvement to
               immovable property, including but not limited to any services
               provided by a residential building contractor as defined in R.S.
               37:2150.1(9).
               (b) For damage to property, movable or immovable, arising out
               of any such deficiency.
               (c) For injury to the person or for wrongful death arising out of
               any such deficiency.
               (d) Brought against a person for the action or failure to act of his
               employees.
       (2) Deficiency, as used in this Section, includes failure to warn the owner of
       any dangerous or hazardous condition, regardless of when knowledge of the
       danger or hazard is obtained or should have been obtained.

La. Stat. Ann. § 9:2772.
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                                 No. 15-30980
was entitled to judgment as a matter of law. In response, Hefren argued that
La. Stat. Ann. § 9:2772 did not apply to his claims against McDermott because
the Front Runner Spar was not immovable as only its mooring system was
attached to the seabed, allowing it to be unmoored and transported across the
ocean. Hefren also argued that he asserted claims outside of the scope of that
statute when he claimed that McDermott failed to identify safety hazards to
Murphy employees.
      The district court granted McDermott’s motion for summary judgment
and dismissed Hefren’s claims against McDermott with prejudice on April 9,
2014. Examining the undisputed facts, the court noted that the Front Runner
Spar was “a structure permanently affixed to the seabed and not a vessel.” The
district court then noted that, although Louisiana courts and the Fifth Circuit
had never concluded whether spars were immovable property, these courts had
held that fixed, offshore platforms permanently affixed to the sea floor were
immovable property and that spars were akin to offshore platforms. Based on
these cases and certain features of the Front Runner Spar, the court held that
the Spar was a “building” and constituted immovable property under La. Stat.
Ann. § 9:2772. Among other features, the court noted that the Spar’s mooring
system was permanently attached to the seabed, the Spar was intended to be
at its location for a twenty-year lifetime, it would take months of planning and
work to remove the Spar from its anchored position in the Gulf of Mexico, and
the Spar had remained fixed in its original location since being attached—even
remaining there through several hurricanes. Regarding Hefren’s assertion
that some of his claims were not within La. Stat. Ann. § 9:2772, the court held
that these claims were essentially failure to warn claims and were perempted
by the statute. Hefren timely appealed the judgment.
                        II. STANDARD OF REVIEW
      We review a grant of summary judgment de novo, applying the same
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                                        No. 15-30980
standard as the district court. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d
347, 350 (5th Cir. 2014). Summary judgment is proper “if the movant shows
that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). However, “[a] mere scintilla of evidence will not
preclude granting of a motion for summary judgment.” Schaefer v. Gulf Coast
Reg’l Blood Ctr., 10 F.3d 327, 330 (5th Cir. 1994) (per curiam). “We construe
all facts and inferences in the light most favorable to the nonmoving party
when reviewing grants of motions for summary judgment.” Dillon v. Rogers,
596 F.3d 260, 266 (5th Cir. 2010) (quoting Murray v. Earle, 405 F.3d 278, 284
(5th Cir. 2005)).
             III. PEREMPTION UNDER LOUISIANA STATE LAW
       In determining whether Hefren’s suit is barred, we look to Louisiana law
under OCSLA because the Front Runner Spar is located on the outer
continental shelf adjacent to the State of Louisiana. See Fruge ex rel. Fruge v.
Parker Drilling Co., 337 F.3d 558, 560 (5th Cir. 2003) (“OCSLA adopts the law
of the adjacent state . . . as surrogate federal law, to the extent that it is not
inconsistent with other federal laws and regulations.”). 5 Under the applicable


       5   The applicable provision of OCSLA provides, in relevant part:

       To the extent that they are applicable and not inconsistent with this
       subchapter or with other Federal laws and regulations of the Secretary now in
       effect or hereafter adopted, the civil and criminal laws of each adjacent State,
       now in effect or hereafter adopted, amended, or repealed are declared to be the
       law of the United States for that portion of the subsoil and seabed of the outer
       Continental Shelf, and artificial islands and fixed structures erected thereon,
       which would be within the area of the State if its boundaries were extended
       seaward to the outer margin of the outer Continental Shelf.

43 U.S.C. § 1333(a)(2)(A).
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Louisiana law, any action relating to a deficiency “in the design, planning,
inspection, or observation of construction, or in the construction of any
improvement to immovable property,” and alleging personal injury or “failure
to warn,” is perempted if brought “[m]ore than five years after . . . acceptance
of the work by [the] owner.” La. Stat. Ann. § 9:2772. Rather than simply
“barr[ing] the remedy to be enforced” like a statute of limitations, this
“peremptive statute . . . totally destroys the previously existing right so that,
upon expiration of the statutory period, a cause of action or substantive right
no longer exists to be enforced.” KSLA-TV, Inc. v. Radio Corp. of Am., 732 F.2d
441, 443 (5th Cir. 1984) (per curiam). The parties here disagree over whether
the Front Runner Spar is immovable property under Louisiana law. If it is,
then Hefren’s claims against McDermott fall within the Louisiana statute of
peremption and no longer exist because they were brought more than five years
after Murphy accepted delivery of the Front Runner Spar. 6
       As the district court properly concluded, the Front Runner Spar is
immovable property and Hefren’s claims are extinguished under La. Stat. Ann.
§ 9:2772. In Olsen v. Shell Oil Co., 365 So. 2d 1285, 1290 (La. 1978), the
Supreme Court of Louisiana recognized that a fixed offshore drilling platform
constituted an immovable “building” within the meaning of a separate
Louisiana statute. In particular, the court explained that, in determining
whether an object was a building, there was “[a]n inherent requirement . . .
that there be a structure of some permanence.” Id. at 1289. Relying on Olsen,
a Louisiana appellate court later found that a “fixed drilling platform was a



       6 Hefren argues that his claims against McDermott for failing to instruct Murphy
employees on how to operate the equipment are not subject to the statute of peremption
because he is alleging a failure to provide adequate instruction rather than a failure to warn.
However, under Louisiana law, instructions and warnings are considered part of the design
of an object, and both are subject to the statute of peremption as to design defect claims in
La. Stat. Ann. § 9:2772. Smith v. Arcadian Corp., 657 So. 2d 464, 469 (La. Ct. App. 1995).
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                                      No. 15-30980
separate immovable,” within the meaning of La. Stat. Ann. § 9:2772.
Bruyninckx v. Bratten, 554 So. 2d 247, 249 (La. Ct. App. 1989). Although spars
are not the same as fixed drilling platforms, we have previously noted that a
spar can resemble a fixed drilling platform because it “serve[s] as a work
platform in a specific, fixed location for the foreseeable future,” and is “secured
to the ocean floor . . . using an elaborate system that guarantees movement
will be a difficult and expensive undertaking.” Fields, 182 F.3d at 358; see also
Mendez v. Anadarko Petroleum Corp., 466 F. App’x 316, 317 (5th Cir. 2012)
(per curiam) (unpublished) (noting that a spar’s “features [we]re . . . consistent
with a fixed structure permanently moored far offshore”).
       While both Fields and Mendez were Jones Act cases that ultimately
concluded that spars were not vessels for the purpose of the Jones Act, their
discussion of spars illustrates the similarity of spars to fixed offshore drilling
platforms that are considered immovable property under Louisiana law. This
caselaw and the specific facts found by the district court lead us to conclude
that the Front Runner Spar is immovable property. Like a “building” under
Louisiana law, there is “some permanence” to the Front Runner Spar as it has
not moved from its present location, is intended to remain there for its twenty
year life, and has a permanent mooring system. Olsen, 365 So. 2d at 1289.
And while Hefren argues that the Front Runner Spar cannot be immovable
because it could be moved, he fails to address the district court’s finding that
it would take planning, work, and deconstruction of the Front Runner Spar in
order to move it from its anchored position, a feature that gives the Spar “some
permanence.” 7 Id.


7 In the alternative, Hefren suggests that the question of whether the Front Runner Spar is
immovable property should be certified to the Louisiana Supreme Court. We decline this
invitation. Although Louisiana courts do not appear to have answered the question of
whether spars are immovable property, we find sufficient guidance in the existing caselaw to
decide the instant matter. See Transcon. Gas Pipeline Corp. v. Transp. Ins. Co., 958 F.2d
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                                  IV. CONCLUSION
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




622, 623 (5th Cir. 1992) (per curiam) (“Certification is not a panacea for resolution of those
complex or difficult state law questions which have not been answered by the highest court
of the state. Neither is it to be used as a convenient way to duck our responsibility in OCSLA
or diversity jurisdiction.”).

                                              9
