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The Fifth Circuit recently issued an en banc opinion in Latiolais v. Huntington Ingalls, Inc.,[1] a case previously featured on the Blog, overruling “extraordinarily confused” precedent and establishing a new removal test under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1).  This new test is likely to have significant impact on future removals to federal court.Continue Reading En Banc Fifth Circuit Issues Long-Awaited Ruling on Federal Officer Removal

The Texas Supreme Court issued an opinion today in Energy Transfer Partners, L.P v. Enterprise Products Partners, L.P., a case previously featured on the Blog.  This case began in 2011 when ETP and Enterprise explored the possibility of partnering to modify and extend, or construct anew, a pipeline to transport oil southbound from Cushing, Oklahoma.

Continue Reading Texas Supreme Court Decides Energy Transfer Partners v. Enterprise Products

In Luv n’ care, Ltd. v. Jackel International Ltd., No. 2019-C-00749, the Louisiana Supreme Court granted writs to address the res nova issue of whether the “punishment for contempt of court” statute, La. R.S. 13:4611, authorizes the imposition of attorney fees against a party not adjudged guilty of contempt.  In the district court, Plaintiff, Luv n’ care, Ltd. (“LNC”), brought a contempt proceeding against defendants, Jackel International Ltd., et al. (“Jackel”), for allegedly violating a permanent injunction previously entered in LNC’s favor.  While LNC was unsuccessful on its motion for contempt, the district court not only denied the motion, but also awarded a substantial attorney fee award to Jackel as the “prevailing party in a contempt proceeding” based on the recently amended language of La. R.S. 13:4611(1)(g).Continue Reading Louisiana Supreme Court Addresses Res Nova Attorney Fees Issue

Can targeted advertising establish general jurisdiction over a foreign corporation?  The Fifth Circuit had not addressed this issue until Frank v. P N K (Lake Charles) L.L.C., No. 18-31060, 2020 WL 288213 (5th Cir. Jan. 21, 2020).  But in so doing, the court may have announced a new jurisdictional test with significant ramifications for future cases.

Frank was a wrongful-death lawsuit filed in Texas state court against L’Auberge Hotel & Casino and its marketing division, PNK.  Following removal to federal court, the district court granted PNK’s motion to transfer, finding PNK was not subject to general jurisdiction in Texas.  The plaintiffs appealed.[1]

Continue Reading Fifth Circuit Rules “Approximate Physical Presence” is Required for General Personal Jurisdiction

Since the initiation of climate change litigation several years ago, various state governments and interest groups have filed lawsuits against fossil fuel companies and governing authorities.  The current landscape consists of (1) two lawsuits brought by state governments against an oil and gas company alleging investor fraud; (2) numerous cities, counties, and other local governments seeking compensation from fossil fuel companies for climate change related damages; and (3) nine lawsuits brought by a non-profit law firm, through children, against governments for failing to protect them from fossil fuel emissions.  Below we take a closer look at each category of lawsuits and provide an update on where they stand today.

Continue Reading U.S. Climate Change Litigation: 2020 Update

In a stark reminder of the sanctity of Coast Guard investigations, and the consequences of impeding such investigations, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) recently took action against a maritime employer for allegedly retaliating against a seaman who cooperated with the Coast Guard in connection with its investigation of a maritime casualty.  On October 20, 2017, Bouchard Transportation’s ATB BUSTER BOUCHARD/B. NO. 255 suffered an explosion and fire while transporting roughly 2,000 barrels of oil off Port Aransas, Texas.  Two crewmembers perished as a result of the casualty.  The brother of one of the deceased crewmembers, who also happened to be a Bouchard Transportation employee, cooperated with the Coast Guard in the ensuing investigation.  Three months later, the surviving brother was terminated without explanation.  OSHA found the termination constituted a retaliatory discharge in violation of the Seaman’s Protection Act (46 U.S.C. §2114) (the “SPA”).  In broad terms, the SPA prohibits maritime employers from terminating or discriminating against seamen who cooperate with Coast Guard, Department of Labor or National Transportation Safety Board investigations.  The obvious intent of the SPA is to guaranty “that, when seamen provide information of dangerous situations to the Coast Guard, they will be free from the “debilitating threat of employment reprisals for publicly asserting company violations” of maritime statutes or regulations.”  Gaffney v. Riverboat Services of Indiana, Inc., 451 F.3d 424, 444 (7th Cir. 2006).  In 2010, Congress empowered OSHA to administer claims arising under the SPA.Continue Reading OSHA Awards Damages for Retaliatory Discharge of Jones Act Seaman in Violation of Seaman’s Protection Act

In May 2018, oil and gas industry defendants removed a docket of 42 cases alleging violations of Louisiana’s coastal zone management laws to federal court in the Eastern and Western Districts of Louisiana (“CZM cases”).  One year later, the Eastern District granted motions to remand filed by Plaquemines Parish and the State of Louisiana in Parish of Plaquemines v. Riverwood Production Company, et al. (“Riverwood”), No. 18-5217, 2019 WL 2271118 (E.D. La. May 28, 2019).  The Western District recently joined the Eastern District and granted similar remand motions filed by Cameron Parish and the State of Louisiana in Parish of Cameron, et al. v. Auster Oil & Gas Incorporated, et al. (“Auster”), No. 18-677, 2019 WL 4734394 (W.D. La. Sept. 26, 2019), —F. Supp. 3d—.  Although there are procedural differences between Riverwood and Auster, both district courts found no federal officer or federal question jurisdiction over the CZM cases.  The Fifth Circuit is poised to resolve these jurisdictional issues in the upcoming year. 
Continue Reading Second Remand Order in Coastal Zone Management Cases Pending Before Fifth Circuit

When is a case removable to federal court?  The general rule is that removability is determined at the time a case is filed.  One exception is the so-called “voluntary-involuntary” rule, which permits removal only when the plaintiff’s voluntary action in state court creates federal jurisdiction.  The textbook example is the voluntary dismissal of a non-diverse defendant who settled with the plaintiff.  The textbook counterexample is when the non-diverse defendant is dismissed via contested motion—an involuntary dismissal.   In Hoyt v. The Lane Construction Corporation, 927 F.3d 287 (5th Cir. 2019), the Fifth Circuit blurred the line between these categories and expanded the cases that can be removed to federal court.Continue Reading Fifth Circuit Opens Door to Removal Following Involuntary Dismissal of Non-Diverse Defendant

Liskow & Lewis’ Shannon Holtzman, James Brown, and A’Dair Flynt recently secured several key rulings in a putative class action, successfully opposing a complex remand motion under the Tax Injunction Act and the Class Action Fairness Act (“CAFA”) and obtaining a dismissal with prejudice of the claims against Liskow’s clients in Robert J. Caluda, APLC, et al v. The City of New Orleans, Linebarger, Goggan, Blair & Sampson, L.L.P, and United Governmental Services of Louisiana, Inc., No. 19-2497, 2019 WL 3283138, 2019 WL 3291014 (E.D. La. July 22, 2019).Continue Reading Liskow & Lewis Secures Key Rulings in Class Action Litigation

Last week the Texas Supreme Court granted review in Energy Transfer Partners, L.P. v. Enterprise Products Partners, L.P., a case concerning Texas partnership law.  Energy Transfer Partners has garnered significant amicus support on both sides of the “v.” and has been closely followed by the energy industry.

Continue Reading Texas Supreme Court to Review $500 Million Verdict in Case Involving Formation of Partnership to Construct Crude Oil Pipeline