### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-20047 Summary Calendar

GRIXI MENDEZ, Plaintiff - Appellant
v. ANADARKO PETROLEUM CORPORATION; DEVON ENERGY CORPORATION; DEVON ENERGY INTERNATIONAL LTD.; DEVON ENERGY PRODUCTION COMPANY, LP, Defendants - Appellees

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CV-1755

Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges. PER CURIAM: * G rixi Mendez appeals the district court’s orders denying his motion t o remand and granting summary judgment to his employer, Anadarko Petroleum Corporation (“Anadarko”), on his Jones Act claim, 46 U.S.C. § 30104. We affirm the district court’s rulings because the spar upon whi c h M e ndez was working when he was injured was not a Jones Act vessel, meaning there is no possibility U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D March 26 , 20 12 Lyle W . Cayce Clerk

Pur sua nt to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld * not be publ ish ed and is not pr ece dentexc eptund er the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20047 Document: 00511800327 Page: 1 Date Filed: 03/26/2012No. 11-20047

that Mendez can establis h th at he was a seaman for purposes of Jones Act liability. I. Mendez, an Anadarko employee, was injured while working on the RED HAWK spar. The RED HAWK is a floating gas-production platform moored in

ocean water 5,000 feet deep approximately 210 miles from Sabine Pass, Texas. Spars float on the ocean’s surface, but are moored to large anchors in the seabed below. The RED HAWK has been moored in Red Hawk Field at Garden Banks blocks 876 and 877 s i n c e 2 004. The RED HAWK spar is secured to the ocean floor by a series of six single-point a nc h o r moorings, which extend in a spread platform from th e s p ar ’s hull. Each mooring is comprised of a chain and polyester line 78 feet long. Each line is anchored to the sea floor with a suction embedment anchor that is approximately 18 feet in diameter. The mooring lines

are permanently taut so that the RED HAWK spar cannot move laterally. In addition to these mooring lines, an underwater infrastructure of flow lines and export pipeline systems, as well as umbilicals ext e n di n g f rom the spar to the subsea wellheads, used to transport oil and gas to shore-based facilities attach the spar to the ocean floor. A pipeline extends from the spar to the Pelican Gas Pla nt i n P a tt erson, Louisiana, by way of the VR-397 platform. The gas comes from the wellheads on the sea floor, u p thr o ugh the flow lines, then to the platform. Once on the platform, a separator takes the liquids out, and the gas flows to shore through a sixteen-inch steel pipeline. Anadarko intended the RED HAW K spar to remain in place for the
p roductive life of the field, which it anticipated would be several y e ar s . Production began on July 19, 2004. The field, however, proved less productive

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than Anadarko expected it to be. After four years, on August 17, 2008, Anadarko stopped extracting from the Red Hawk field. The spar has not, however, been moved, and Anadarko has no plans to move it. An a d arko co m missioned a study of the feasibility of having the spar move d to another field approximately 100 miles away. The study concluded that doing

so would take approximately 50 days and cost over $42 million

. Th e a c t ual movement of the spar would take only 2 to 4 of those 50 days; the greatest time and difficulty were presented by preparing to move it and modifying it to anchor in the new location. Only the spar itself would be moved; the mooring system, and the risers and umbilicals, would all have to be severed or disconnected. The mooring system would either be disposed of or left i n p l a ce. Anadarko would have to build a new mooring system at the new location if it decided to have the spar moved. There are no plans to do so. Some of the spar’s features, including “tow bollards,” and the shape of its hull, could facilitate movement f r om one offshore location to another, but the work and expe n se needed to unmoor it, prepare it for transportation, and to reattach it to a new location, make that difficult and expensive. As a result, the spar was designed to remain permanently moored to the seabed and stationary for th e lif

e of the oil and gas production field. Employees on the RED HAWK spar must perform periodic evacuation drills under Coast Guard rules, and the Coast Guard classifies the spar as an “industrial vessel.” These features are, however, consistent with a fixed structure permanently moored far offshore, not merely with vessel status. The Coast Guard’s Certificate of Inspection (“COI”)

al so states that the spar is “considered a floating facility with passive b al l a s t systems.” The COI states that the RED HAWK is not permitted to carry

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passengers and notes under the “Route Permitted and Conditions of Operations” section that the spar is “[l]imited to the Gulf of Mexico

—Garden Banks Block 876, not on international voyage. The unit is a floating production system of the cell spar design u s i n g a synthetic line mooring system, and is considered a floating facility with passive ballast systems.” Mendez brought his Jones Act claim in state court. Anadarko removed the suit to the D i s t ri c t Court for the Southern District of Texas, claiming federal jurisdiction under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq. , and arguing that the Jones Act claim did not p r e v e nt removal because Mendez did not qualify as a seaman. Mendez filed a motion to remand, which the district court denied after concluding th at Mendez could not possibly establish his status as a seaman. The district c o u rt then granted Anadarko’s motion for summary judgment on the same ground and entered final judgment in favor of Anadarko. II. Mendez argues that the district c ourt erred in refusing to remand this action to state court a n d in granting summary judgment to Anadarko. We review both a denial of a motion to remand and the grant of summary judgment de novo

. Holmes v. Atl. Sounding Co. , 437 F.3d 441, 445 (5th Cir. 200 6). When a plaintiff brings a Jones Act case, the defendant generally cannot

remove the cas e t o f e d e r al court. Id. If a Jones Act claim is fraudulently pleaded, though, it is removable. Id. “[A] district court

. . . may use a ‘summary judgment-like procedure’ to dispose of the assertion that the Jones Act claim was f r a u dulently pleaded.” Id. (quoting Burchett v. Cargill, Inc. , 48 F.3d 173 , 1 7 5 (5th Cir. 1995)). “The court may deny remand where, but only where, resolving

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all disputed fac t s a n d ambiguities in current substantive law in the plaintiff’s favor, the court determines that the plaintiff has no reasonable possib ility of establishing a Jones Act claim on the merits.” Id. The issue on appeal i s whether Mendez could possibly establish that he

was a Jones Act seaman. To qualify as a seaman under the Jones Act, a plaintiff must demonstrate, among other things, that he has “a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both it s duration and its nature.” Id. at 368 (internal quotation marks and alteration omitted). Th e di strict court determined that Mendez could not establish a connection to a vessel in navigation because the RED HAWK is not

a vessel in navigation a s th e S u p reme Court has defined that term. We held that a spar almost identical to the RED HAW K w a s not a vessel in Fields v. Poole Offshore , 182 F.3d 353 (5th Cir. 1999). We therefore agree with the district court’s conclusion. The Supreme Court defined the term “vessel” f o r J ones Act purposes in Stewart v. Dutra Construction Co. , 543 U.S. 481 (2005). It held that a vessel is “any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a parti c ul ar m o m e nt.” Id. at 497. A vessel’s primary purpose need not be navigation or transportation, and it need not be in motion at the time of the seaman’s injury. Id. at 495-96. “A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at a n c h o r . . . . ” Id. at 494. On the other hand, “a watercraft is not ‘capable of being used for maritime transport’ in any meaningful sense if it has been permanently moored or otherwise rendered pr a c ti c ally incapable of transportation or movement.” Id. at 495.

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Under this test, the RED HAWK spar is not a vessel. Although the spar floats, it is permanently moored by six mooring lines that are attached to 18-foot

a n c h o r s deeply embedded into the sea floor under 5,000 feet of water. Th e mooring li n e s a r e 78 feet long. Steel flow lines and export pipelines further attach the spar to extraction points i n o ne direction and to an onshore production facility in Louisiana, by way of another platform, in another direction. The RED HAWK spar is permanently affixed to the sea floor and can only be moved after detaching the substantial moorings and pipelines that have been joined to its structure. The relocati o n s tudy shows that moving the spar would involve detaching all the moorings and severing the pipelines; would take nearly two months; would cost of $42 million; and would require abandoning the mooring system and buildi n g a new mooring system at the new site. The relocation study shows at most that the RED HAWK is theoretically capable of maritime transportation but not practically capable. Se e i d

. at 496 (“The question remains in all cases whether the watercraft’s use as a means o f transportation on water is a practical possibility or merely a the o r e ti c al one.”) (internal quotation marks omitted). I n Stewart , the Supreme Court discussed approvingly a case from this circui t holding that a “floating casino was no longer a vessel where it ‘was moored to the shore in a semi-permanent or indefinite manner” as an example of the “sensible” rule that “ships

. . . do not remain vessels merely because of the remote possibility that they may one day sail again.” Id. at 494 (quoting Pavone

v. Miss. Riverboat Amusement Corp. , 975 F.3d 560, 570 (5th Cir. 1995)). The RED HAWK makes an even stronger case for non-vessel status. With 50 days and $42 million dollars, one could undoubtedly disconnect the electrical, water,

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telephone, and other hookups that attach a casino boat to the shore, allowing it to move on water. See id. at 564 (acknowledging that all that was necessary to disconnect the casino boat from the shore was “removing the steel pins from the
ramps [that connected the casino boat to the pier] and letting loose all lines and cables”). Disconnecting the RED HAWK from the sea floor would make disconnecting a casino boat from the shore look as easy as unplugging a toaster. The RED HAW K , therefore, embodies the distinction between theoretical capability, which it has, and practical capability, which it does not. Stewart , 543 U.S. at 496 (“The question remains in all cases whether the watercraft’s use as
a means of transportation on water is a practical possibility or mer e ly a theoretical one.”) (internal quotation marks omitted). Because Me n dez had no substantial connection to a vessel, there is no reasonable possibility that he can demonstrate seam status under the Jones Act. Therefore, the district court did not err in refusing to remand the case to state court or in granting summary judgment. AFFIRMED.

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