Case: 12-30965   Document: 00512484265    Page: 1   Date Filed: 12/30/2013




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

                                                                        FILED
                               No. 12-30965                     December 30, 2013
                                                                   Lyle W. Cayce
                                                                        Clerk


TIMOTHY R. VENABLE; JULIA MARIE CLOTEAUX VENABLE,

                                   Plaintiffs−Appellants
                                   Cross Appellees,

versus

LOUISIANA WORKERS’ COMPENSATION CORPORATION,

                                   Defendant−Appellee
                                   Cross Appellant.




               Appeals from the United States District Court
                   for the Eastern District of Louisiana




Before SMITH, PRADO, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:


     Timothy and Julia Venable appeal a summary judgment in favor of the
Louisiana Workers’ Compensation Corporation (“LWCC”), which cross-appeals
the denial of its motion to dismiss for want of subject-matter jurisdiction.
Because the district court lacked subject-matter jurisdiction, we reverse the
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                                         No. 12-30965
summary judgment and render a judgment of dismissal.


                                                I.
       While employed by Greene’s Energy Company, LLC (“Greene’s”), Timo-
thy Venable suffered a heart attack at work in Louisiana waters aboard the
Stingray drilling barge, which was owned and operated by Hillcorp Energy
Company (“Hillcorp”). LWCC, Greene’s insurance carrier for purposes of the
Longshore and Harbor Workers’ Compensation Act (“LHWCA”), immediately
began providing Venable medical and indemnity benefits pursuant to that act.
       The Venables sued Hillcorp for negligence in federal court, alleging that
an unreasonable delay in obtaining medical care had resulted in further harm. 1
After extensive pre-trial litigation related to the issue of indemnity, the parties
participated in a settlement conference. Although LWCC was not yet a party,
its representative was present. 2 Hillcorp and the Venables tentatively agreed
to settle for $350,000. The Venables contend that, during the settlement con-
ference, the representative for LWCC expressed that LWCC would consent to
the proposed amount. The district court conditionally dismissed the Venables’
claim based on the understanding that it had been settled.
       After the settlement conference, however, LWCC refused to sign the



       1   The district court found that it had admiralty and maritime jurisdiction.
       2   Under the LHWCA, Venable would forfeit any future benefit from LWCC if he settled
his claims against Hillcorp without receiving written approval of the settlement from LWCC
on a Department of Labor-issued form, as required by statute. See 33 U.S.C. § 933(g)(1)
(2012) (“If the person entitled to compensation . . . enters into a settlement with a third person
. . . for an amount less than the compensation to which the person . . . would be entitled under
this chapter, the employer shall be liable for compensation as determined under subsection (f)
of this section only if written approval of the settlement is obtained from the employer and
the employer’s carrier, before the settlement is executed, and by the person entitled to com-
pensation . . . . The approval shall be made on a form provided by the Secretary and shall be
filed in the office of the deputy commissioner within thirty days after the settlement is
entered into.”).
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LS-33 form that the Venables’ counsel had forwarded to LWCC’s attorney. At
some point after the settlement conference, LWCC learned that Venable would
likely need a heart transplant, meaning that LWCC would be left liable for
significant future exposure even with the settlement of third-party claims.
      Because LWCC refused to sign, the district court vacated the conditional
dismissal. The Venables then joined LWCC as a party to enforce LWCC’s pur-
ported consent to the settlement, asking the court to order LWCC to execute
the LS-33 form and otherwise to approve the third-party settlement with Hill-
corp. In the alternative, the Venables requested the court to find that LWCC
had waived § 933(g)’s written-approval requirement by consenting to the set-
tlement, such that no written approval was required. LWCC moved to dismiss
for lack of subject-matter jurisdiction, but the court determined that the waiva-
bility of the § 933(g) written-approval requirement raised a substantial federal
issue that conferred federal-question jurisdiction.
      The Venables then moved for partial summary judgment.             In turn,
LWCC filed a cross-motion for summary judgment, contending that the written
approval requirement of § 933(g) is not waivable, and even if it can be waived,
the conduct of LWCC’s representative did not constitute a waiver. The district
court granted summary judgment for LWCC and dismissed the complaint with
prejudice, holding that LWCC’s decision to withhold consent on the settlement
was a proper exercise of its power under the LHWCA. The Venables appeal
that order, and LWCC cross-appeals the denial of its motion to dismiss for lack
of jurisdiction.


                                       II.
      We review a ruling on subject-matter jurisdiction de novo. See PCI
Transp., Inc. v. Fort Worth & W. R.R. Co., 

, 540 (5th Cir. 2005)
(quoting Hoskins v. Bekins Van Lines, 

, 772 (5th Cir. 2003)). “As
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                                       No. 12-30965
a court of limited jurisdiction, a federal court must affirmatively ascertain
subject-matter jurisdiction before adjudicating a suit.” 3 A district court should
dismiss where “it appears certain that the plaintiff cannot prove a plausible
set of facts that establish subject-matter jurisdiction.” 4 The plaintiff has the
burden of establishing jurisdiction. 5
       The district court incorrectly found that it had federal-question jurisdic-
tion under 28 U.S.C. § 1331. Because the federal issue raised does not satisfy
the well-pleaded-complaint rule, the court lacked such jurisdiction.
       Section 1331 vests lower federal courts with jurisdiction over “all civil
actions arising under the Constitution, laws, or treaties of the United States.”
An action can arise under federal law for purposes of § 1331 in two ways: In a
well-pleaded complaint (1) the party has asserted a federal cause of action, see
Am. Well Works Co. v. Layne & Bowler Co., 

, 260 (1916), or (2) the
party has asserted a state cause-of-action claim that “necessarily raise[s] a
stated federal issue, actually disputed and substantial, which a federal forum
may entertain without disturbing any congressionally approved balance of fed-
eral and state judicial responsibilities,” see Grable & Sons Metal Prods., Inc. v.
Darue Eng’g & Mfg., 

, 314 (2005).
       First, the Venables have not asserted any federal cause of action against
LWCC and instead only point to state causes of action in their amended




       3 Sawyer v. Wright, 471 F. App’x 260, 261 (5th Cir.) (per curiam), cert. denied, 

(2012); see also Ashcroft v. Iqbal, 

, 671 (2009).
       4Castro v. United States, 

, 386 (5th Cir. 2009), vacated on other grounds,

(5th Cir. 2010).
       5  Ramming v. United States, 

, 161 (5th Cir. 2001) (“The burden of proof
for a Rule 12(b)(1) motion to dismiss is on the party asserting jurisdiction. Accordingly, the
plaintiff constantly bears the burden of proof that jurisdiction does in fact exist.” (citations
omitted)).
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complaint. 6 The Venables cannot rely on § 933, which does not create a private
cause of action. 7
       Because state law, and not federal law, creates the causes of action at
issue, we turn to 

, under which a federal court can
exercise federal-question jurisdiction over a state-law claim if (1) the state-law
claim raises a substantial federal issue; (2) the parties actually dispute the
federal issue; and (3) exercising jurisdiction over the particular category of
cases will not disturb any “congressionally approved balance of federal and
state judicial responsibilities.” The district court found it had subject-matter
jurisdiction because it determined that the state-law claims satisfied Grable. 8
       A federal court can exercise jurisdiction only where the case satisfies the
well-pleaded-complaint rule, according to which, to assess whether the case
arises under federal law, the court must look only to “what necessarily appears



       6  The amended complaint includes the following counts: (1) “LWCC should be ordered
to execute the LS-33 or judgment should be entered providing that written consent to the
settlement is unnecessary”; (2) “The parties to this litigation detrimentally relied on the
assurances of LWCC that the amount and other terms of the settlement being negotiated
would be approved by LWCC and its consent would be given”; (3) intentional misrepresenta-
tion; (4) making impossible a condition of the settlement; and (5) abuse of rights. During oral
argument, the Venables’ counsel indicated that he was relying on federal common law. In
his view, one “could supplement or inform the district court’s discretion by using analogous
situations under state law.” Therefore, counsel “gave [the district court] concepts in Louisi-
ana law that would be helpful to inform [the court of its] discretion.” Counsel, however,
acknowledged that his pleadings had not mentioned this reliance on federal common law.
Moreover, this theory of federal-question jurisdiction does not appear in the briefing, so it is
waived. See United States v. Thibodeaux, 

, 912 (5th Cir. 2000).
       7See McLaurin v. Noble Drilling (U.S.) Inc., 

, 291–92 (5th Cir. 2008)
(“Importantly, § 933 recognizes that a covered employee may have tort remedies against third
parties under federal or state law. Section 933 preserves and codifies a maritime worker’s
common law right to pursue a negligence claim against a third party that is not the employer
or a coworker; it does not create a cause of action nor establish a third party’s liability for
negligence.” (citations omitted)).
       8 In its order, the district court noted that it was “persuaded that the proper inter-
pretation of the settlement provision of the LHWCA presents a substantial question of federal
law whose resolution is crucial to the state law claims at issue.”
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in the plaintiff’s statement of his own claim . . . unaided by anything alleged in
anticipation of avoidance of defenses which it is thought the defendant may
interpose.” Taylor v. Anderson, 

, 75–76 (1914). Federal courts lack
jurisdiction “over a case in which the complaint presents a state-law cause of
action, but also asserts that federal law deprives the defendant of a defense he
may raise, or that a federal defense the defendant may raise is not sufficient
to defeat the claim.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers
Vacation Trust for S. Cal., 

, 10 (1983) (citations omitted).
      Furthermore, although the parties may ultimately litigate a federal
issue in their case, that fact does not “show that the suit, that is, the plaintiff’s
original cause of action, arises under the Constitution” or the laws of the
United States. See Louisville & Nashville R.R. Co. v. Mottley, 

,
152 (1908). “[A] right or immunity created by the Constitution or laws of the
United States must be an element, and an essential one, of the plaintiff’s cause
of action.” Gully v. First Nat’l Bank in Meridian, 

, 112 (1936).
      The federal issue the district court relied upon—whether a party can
waive the written-consent requirement under § 933—anticipates LWCC’s pro-
spective defense. That issue would otherwise come up in litigation in the fol-
lowing hypothetical situation: First, without obtaining LWCC’s written con-
sent, the Venables entered into the settlement agreement with Hillcorp. In
response, LWCC terminated benefits. After that, the Venables sought judicial
intervention to have the benefits reinstated. At that point, LWCC would argue
that the Venables had not complied with § 933’s written-consent requirements.
The Venables would then reply as they have here (and would urge, among
other reasons) that LWCC had waived § 933’s requirements). In line with this
hypothetical, the district court’s assessment demonstrates that the Venables




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                                       No. 12-30965
raised this federal issue in anticipation of LWCC’s defense. 9
       Furthermore, none of the Venables’ claims requires proving a federal
issue as an element of the claim. To the extent they have asserted valid Loui-
siana claims, the Venables have not shown that those state-law claims require
proving a substantial federal issue. Certainly, none of them would require
proving that LWCC had waived § 933’s written-consent requirement.
       Even assuming arguendo the district court was correct that the issue of
waiver under § 933 raises a substantial federal issue for purposes of Grable,
the well-pleaded-complaint rule forecloses federal-question jurisdiction. We
therefore do not need to address whether the § 933 written-consent require-
ment poses a “substantial” federal issue.


                                             III.
       We still must examine whether the Venables have established any other
basis for federal jurisdiction. As a threshold matter, they do not posit that
§ 933 itself vests federal-court jurisdiction over their claims. Instead, they offer
a myriad of other theories to demonstrate that the district court had subject-
matter jurisdiction: (1) diversity jurisdiction under 28 U.S.C. § 1332; (2) sup-
plemental jurisdiction under 28 U.S.C. § 1367; (3) admiralty and maritime jur-
isdiction under 28 U.S.C. § 1333; and (4) jurisdiction under the district court’s
“inherent power to enforce [] settlement[s].”
       As to the first theory, § 1332 requires “the matter in controversy [to]
exceed[] the sum or value of $75,000, exclusive of interest and costs, and [be]



       9 The district court’s order notes, “If a § 933(g) is enforced as written then Plaintiffs
cannot prevail on their state law claims because the LHWCA will necessarily control and
preempt any state law to the contrary.” If § 933(g)’s written-consent requirement would nec-
essarily preempt any contrary state law, LWCC would raise this issue as an affirmative
defense.
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between . . . citizens of different States . . . .” 10 Both the Venables and LWCC,
however, are citizens of Louisiana.
       As to the second theory, § 1367 “grants supplemental jurisdiction over
other claims that do not independently come within the jurisdiction of the dis-
trict court but form part of the same Article III ‘case or controversy.’” State
Nat’l Ins. Co. v. Yates, 

, 579 (5th Cir. 2004). “[I]n any civil action
of which [a] district court [has] original jurisdiction, [that] court[] shall have
supplemental jurisdiction over all other claims that are so related to claims in
the action . . . that they form part of the same case or controversy . . . .” 28
U.S.C. § 1367(a) (2012). 11 A claim forms part of the same case or controversy
if the “claim[ is] so related to the original claims that [it] derive[s] from a com-
mon nucleus of operative fact.” Bella v. Davis, 531 F. App’x 457, 459 (5th Cir.
2013) (per curiam).
       The claims the Venables assert against LWCC in their amended com-
plaint do not derive from the same nucleus of operative facts as does their neg-
ligence claim against Hillcorp. LWCC’s potential waiver of § 933(g)’s written-
consent requirement occasioned by its conduct during and after a settlement
conference depends on facts that are completely different from those related to
any torts committed by Hillcorp years before. The district court therefore could
not have exercised supplemental jurisdiction over the claims the Venables
bring against LWCC.
       As to the third theory, § 1333 vests exclusive federal jurisdiction involv-
ing “[a]ny civil case of admiralty or maritime jurisdiction, saving to suitors in



       10 28 U.S.C. § 1332 (2012); see also Mumfrey v. CVS Pharmacy, Inc., 

, 397
(5th Cir. 2013).
       11Even if the claim falls within § 1367(a), the exceptions specified in § 1367(b) and (c)
may apply. Because § 1367(a) does not apply, however, we do not need to determine whether
an exception nevertheless precludes jurisdiction.
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all cases all other remedies to which they are otherwise entitled.” 28 U.S.C.
§ 1333 (2012). “[A] party seeking to invoke federal admiralty jurisdiction pur-
suant to 28 U.S.C. § 1333(1) over a tort claim must satisfy conditions both of
location and of connection with maritime activity.” Jerome B. Grubart, Inc. v.
Great Lakes Dredge & Dock Co., 

, 534 (1995). The locality test
assesses “whether the tort occurred on navigable water or whether injury suf-
fered on land was caused by a vessel on navigable water.” 

test requires two showings:


       A court, first, must assess the general features of the type of inci-
       dent involved, to determine whether the incident has a potentially
       disruptive impact on maritime commerce. Second, a court must
       determine whether the general character of the activity giving rise
       to the incident shows a substantial relationship to traditional mar-
       itime activity.

internal quotation marks omitted).
       The Venables’ claims against LWCC do not satisfy the locality test. 12
The Venables conflate the district court’s jurisdiction over their negligence
claim―the basis of which appears to have occurred on navigable water―with
the claims they assert against LWCC. They allege that LWCC committed var-
ious state-law torts by its conduct during or after the settlement conference.
But none of that conduct occurred on navigable waters, nor were these alleged
torts caused by a vessel on navigable water. 13 Therefore, the Venables cannot
claim admiralty jurisdiction as the basis for subject-matter jurisdiction.
       As to their fourth and final theory, the Venables assert that the district


       12 We therefore do not need to address whether the Venables’ claims satisfy the con-
nection test.
       13See Miller v. Griffin-Alexander Drilling Co., 

, 812 (5th Cir. 1989) (“We
see no reason for expanding admiralty jurisdiction to cases with such scant involvement of
maritime locations.”).
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court could exercise jurisdiction over these claims by its “inherent power to
enforce [] settlement[s].” They appear to suggest that the court could exercise
its ancillary-enforcement jurisdiction as a basis for subject-matter jurisdiction.
      In Kokkonen v. Guardian Life Insurance Co. of America, 

(1994), the Court explained when a federal court can retain jurisdiction over a
settlement agreement by exercising this ancillary enforcement jurisdiction.
There, Guardian Life Insurance Company (“Guardian”) terminated Kokkon-
en’s general agency agreement, prompting Kokkonen to sue in state court,
whereupon Guardian removed to federal court. See 

Before jury
deliberations, “the parties arrived at an oral agreement settling all claims and
counterclaims, the substance of which they recited, on the record, before the
District Judge in chambers.” 

judge was aware of the settle-
ment, the dismissal order made no reference to the settlement agreement. 

Thereafter, the parties disagreed as to Kokkonen’s obligation to return
certain files, and Guardian moved to enforce the agreement. 

whether a federal court could exercise its inherent juris-
diction, the Kokkonen Court first explained that state law governs the enforce-
ment of contracts, including settlement agreements that result in the dismissal
of federal suits. See 

The Court therefore held that an action to
enforce a settlement agreement “is more than just a continuation or renewal
of the dismissed suit, and hence requires its own basis for jurisdiction.” 

that federal courts require an independent jurisdic-
tional basis to enforcement settlement agreements, the Court then described
two general situations in which a federal court can exercise independent “ancil-
lary jurisdiction”: “(1) to permit disposition by a single court of claims that are,
in varying respects and degrees, factually interdependent; and (2) to enable a
court to function successfully, that is, to manage its proceedings, vindicate its
authority, and effectuate its decrees.” 

(citations omitted). As
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was the case in Kokkonen, the first basis does not generally apply in the instant
context because the terms of a settlement agreement usually will not be “fac-
tually interdependent” with the claims underlying the original lawsuit. 14 The
Court further noted that the second basis did not apply to the circumstances
we face here because (1) the district court, in its order, had not expressly
retained jurisdiction over the settlement agreement, and (2) the order did not
incorporate the settlement agreement. 15
       Applying Kokkonen, we likewise require one of those two showings for a
district court to exercise ancillary jurisdiction in enforcing a settlement agree-
ment. 16 The Venables do not have a settlement agreement that they seek to
enforce but instead want a federal court to compel LWCC to consent to their
tentative agreement with Hillcorp. Under Kokkonen, a district court cannot
exercise ancillary jurisdiction to compel a third party’s consent to a proposed,
but not final, settlement agreement; none of the slew of cases cited by the




       14 

(“[T]he facts underlying respondent’s dismissed claim for
breach of agency agreement and those underlying its claim for breach of settlement agree-
ment have nothing to do with each other; it would neither be necessary nor even particularly
efficient that they be adjudicated together.”).
       15Id. at 381 (“The situation would be quite different if the parties’ obligation to comply
with the terms of the settlement agreement had been made part of the order of dismissal—
either by separate provision (such as a provision ‘retaining jurisdiction’ over the settlement
agreement) or by incorporating the terms of the settlement agreement in the order. In that
event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction
to enforce the agreement would therefore exist.”).
       16  See, e.g., Hospitality House, Inc. v. Gilbert, 

, 430–31 (5th Cir. 2002);
Woolwine Ford Lincoln Mercury v. Consol. Fin. Res., Inc., No. 00-60314, 

(table),

, at *2 (5th Cir. Dec. 27, 2000) (per curiam) (unpublished). See generally
Andrew S. Hanen & Jeffrey M. Benton, The Enforceability of Settlement Agreements, 40 THE
ADVOC. (TEX.) 69, 70 (2007) (“It is clear after Kokkonen . . . that a party wishing to preserve
a district court’s jurisdiction over a settlement agreement can only do so in one of two ways:
(1) through an express retention of jurisdiction by the court or (2) by incorporation of the
settlement agreement into the judgment.”).
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Venables suggests as much. 17 Therefore, they have not demonstrated that the
district court could exercise ancillary jurisdiction.
       Because the district court lacked subject-matter jurisdiction over the
state claims the Venables brought against LWCC, we need not decide whether
the court correctly determined that LWCC’s decision to withhold consent on
the settlement was a proper exercise of its power under the LHWCA. The
summary judgment is REVERSED, and a judgment of dismissal for want of
jurisdiction is RENDERED.




       17The Venables principally rely on Bell v. Schexnayder, 

(5th Cir. 1994),
decided shortly after Kokkonen. In Bell, however, the parties had entered into a settlement
agreement, and the district court’s order expressly retained jurisdiction over the settlement
agreement. See 

(“On October 14, the court signed a sixty day order of dismissal.
The order states that the court, ‘having been advised by counsel for the parties that the above
action has been settled,’ was dismissing the case ‘without prejudice to the right, upon good
cause shown within sixty (60) days, to reopen it if settlement is not consummated and seek
summary judgment enforcing the compromise.’”). Bell does not apply where the parties have
not entered into a settlement agreement.
                                              12