Roger Hoschar v. Appalachian Power Company

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cv-00152. [999272204]. [12-2482]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-2482

ROGER HOSCHAR, and JUDY HOSCHAR,
Plaintiffs – Appellants,
v.
APPALACHIAN POWER COMPANY,
Defendant – Appellee,
and
INDUSTRIAL CONTRACTORS, INC.,
Defendant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.
Robert C. Chambers,
Chief District Judge. (3:11-cv-00152)

Argued:

November 6, 2013

Decided:

January 7, 2014

Before GREGORY, DAVIS, and THACKER, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Gregory and Judge Davis joined.

ARGUED: Alexander Deane McLaughlin, THE CALWELL PRACTICE, PLLC,
Charleston, West Virginia, for Appellants.
Daniel Rhys
Michelmore, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for
Appellee.
ON BRIEF:
John Skaggs, THE CALWELL PRACTICE, PLLC,
Charleston, West Virginia, for Appellants.
Brian R. Swiger,

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Michael P. Leahey, JACKSON
Virginia, for Appellee.

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KELLY

2

PLLC,

Charleston,

West

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THACKER, Circuit Judge:
Appellants,

Roger

and

Judy

Hoschar

(collectively

“Appellants”), filed this civil action in the Circuit Court of
Mason County, West Virginia, against Appellee, Appalachian Power
Company

(“APCO”),

and

Defendant,

Industrial

Contractors,

Inc.

(“ICI”), seeking damages for an infectious lung disease called
histoplasmosis

that

Roger

Hoschar

(“Mr.

Hoschar”)

allegedly

contracted while working as a boilermaker at one of APCO’s coalfired power plants.

APCO removed the case to the United States

District Court for the Southern District of West Virginia on the
basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332.
Appellants, West Virginia residents, sought to remand the action
to state court, arguing that APCO’s principal place of business
is in Charleston, West Virginia, and that complete diversity is
therefore

lacking.

The

district

court

denied

Appellants’

motion, concluding that under the “nerve center” test, APCO’s
principal

place

of

business

is

in

Columbus,

Ohio.

After

discovery, the district court awarded summary judgment to APCO,
holding that, pursuant to West Virginia law, APCO did not owe a
duty to Mr. Hoschar.
In this appeal, Appellants challenge both the district
court’s denial of the motion to remand and the district court’s
grant of APCO’s motion for summary judgment.
amply

demonstrates

that

the

location
3

Because the record

where

APCO’s

officers

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direct, control, and coordinate APCO’s activities is Columbus,
Ohio,

we

conclude

that

APCO

has

carried

its

establishing federal subject matter jurisdiction.

burden

of

With respect

to APCO’s motion for summary judgment, we hold that APCO did not
have

actual

or

constructive

knowledge

of

a

potential

histoplasmosis risk, and therefore, APCO did not owe Mr. Hoschar
a duty to guard against it.

Accordingly, we affirm.
I.
A.

APCO owns the Philip Sporn power plant (“Sporn”) near
New Haven, West Virginia.

Sporn is a coal-fired power plant,

generating electricity by burning coal to create steam and then
passing the steam through a turbine.

The power plant has five

“precipitators,” which remove granular ash particles (“fly ash”)
from the gasses produced by burning coal.
precipitator

generates

significant

When in operation, a

heat,

which

can

cause

corrosion to its exterior steel siding and result in fly ash
leakage.
ICI was hired by APCO to perform general maintenance
at Sporn, which included welding metal patches to the exterior
of the precipitators to prevent fly ash leakage.

Mr. Hoschar

was a boilermaker employed by ICI from March 2006 to March 2007.
During that time, he worked exclusively at Sporn.

His typical

maintenance assignment consisted of hanging from a “pick” -4

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that is, a suspended platform like those used by window washers
-- and welding steel patches over corroded portions of the ducts
leading into and out of the Unit 5 precipitator (“Unit 5”).
During his time at Sporn, Mr. Hoschar frequently worked in and
around Unit 5, spending (by his estimate) at least five months
there.

Of

note,

he

working on Unit 5.

did

not

spend

five

consecutive

months

Rather, according to Mr. Hoschar’s work

records, he spent a total of 66 days performing elevated welding
work on the exterior of Unit 5 over the course of 13 months.
Before

welding

any

steel

patches,

Mr.

Hoschar

and

other workers had to remove debris that had built up in the
steel channels.

Because Unit 5 is an outdoor structure, pigeons

sometimes perched on its steel channels and left their droppings
behind.

Therefore,

the

debris

usually

consisted

of

approximately three to four inch accumulations of bird manure
and two inch accumulations of fly ash.
debris

from

the

steel

channels

brush, or using compressed air.

Mr. Hoschar removed the

either

by

hand,

with

a

wire

When removing debris and while

welding the steel patches, Mr. Hoschar wore a respirator over
his face.
In March 2007, Mr. Hoschar was terminated from his
employment

with

ICI.

In

2009,

as

part

of

a

routine

pre-

operative test before Mr. Hoschar underwent knee surgery, which
was unrelated to his work at Sporn, a chest x-ray revealed the
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presence of a mass on his right lung.
feared

the

mass

was

cancerous

and

Mr. Hoschar’s physician

recommended

he

undergo

a

lobectomy to remove the portion of his lung containing the mass.
After a portion of Mr. Hoschar’s lung was removed, a biopsy
revealed that the mass was not cancer, but instead was a disease
called histoplasmosis.
Histoplasmosis

is

an

infectious

disease

caused

by

inhaling the spores of a naturally occurring soil-based fungus
called

histoplasma

capsulatum.

The

histoplasma

capsulatum

fungus is endemic in the Ohio Valley region, in which Sporn is
located,

because

content.

it

grows

best

in

soils

with

high

nitrogen

Once an individual inhales the fungus, it colonizes

the lungs.

However, the vast majority of people infected by

histoplasmosis do not experience any symptoms of infection or
suffer any ill effects.
While

Mr.

Hoschar

was

working

at

Sporn,

the

Occupational Safety and Health Administration (“OSHA”) website
maintained

a

Recognition.”

page

entitled,

“Respiratory

Protection:

Hazard

One of the reference documents found on that page

was a publication by the National Institute for Occupational
Safety and Health (“NIOSH”) called, “Histoplasmosis: Protecting
Workers

at

Publication

Risk”

(the

explained

“NIOSH

that

the

Publication”).
histoplasma

The

NIOSH

capsulatum

fungus

“seems to grow best in soils having a high nitrogen content,
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especially those enriched with bird manure or bat droppings.”
J.A. at 1052. 1

It further noted that the fungus “can be carried

on the wings, feet, and beaks of birds and infect soil under
roosting

sites

buildings.”

or

manure

accumulations

inside

or

outside

Id.
B.

On January 31, 2011, Appellants sued APCO and ICI for
negligence in the Circuit Court for Mason County, West Virginia,
seeking

damages

Appellants

allege

for
Mr.

Mr.

Hoschar’s

Hoschar

histoplasmosis

contracted

infection.

histoplasmosis

while

working at Sporn as a result of inhaling contaminated dust when
he swept out the mixtures of bird manure and fly ash that had
accumulated in Unit 5’s steel channels.

Appellants also allege

APCO did not provide any written or verbal warnings concerning
the presence of aged bird manure around Unit 5 or of the health
risks

associated

with

accumulations

of

bird

manure,

such

as

histoplasmosis.
On March, 9, 2011, APCO removed this action to the
United States District Court for the Southern District of West
Virginia pursuant to 28 U.S.C. § 1332, explaining that APCO’s
principal place of business is in Columbus, Ohio, and complete

1

Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.

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diversity therefore exists between Appellants and APCO and ICI. 2
Appellants filed a motion to remand the case to state court on
March 14, 2011, arguing that APCO’s principal place of business
is in Charleston, West Virginia, and complete diversity is thus
lacking.
C.
Prior to the initiation of this lawsuit, Appellants’
counsel

--

residents)

representing
in

a

other

different

case

clients
also

(also

pending

West

Virginia

the

Southern

in

District of West Virginia against APCO -- took the deposition of
Mark Dempsey, APCO’s Vice President of External Affairs.
deposition

was

Procedure

30(b)(6),

representative
principal

place

conducted

to
of

pursuant

which

testify

to

required
about

business.

Federal
APCO

topics

After

Rule

to

Civil

designate

relating

taking

of

The

the

to

a

APCO’s

deposition,

plaintiff’s counsel in that case filed a motion to remand the
action

to

West

Virginia

state

court.

That

case

settled,

however, before a decision on the motion to remand was issued.
Because the same jurisdictional issue arises in this litigation,
Appellants attached Dempsey’s Rule 30(b)(6) deposition taken in
the

other

case

to

his

motion

to

2

remand

in

this

case.

In

ICI is an Indiana corporation with its principal place of
business in Indiana.
ICI’s principal place of business was
never in dispute.

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opposing Appellants’ motion, APCO submitted an affidavit from
Dempsey.
APCO’s

The following description of the facts relevant to
principal

place

of

business

is

based

on

Dempsey’s

deposition testimony and his affidavit.
APCO

--

a

subsidiary

of

American

Electric

Power

Company (“AEP”) -- is incorporated in Virginia and maintains
offices in Charleston, West Virginia and Columbus, Ohio.
In
Charleston

his

deposition,

office

is

an

Dempsey

testified

“administrative

refer to it as headquarters.”

J.A. 86.

lists Charleston as its headquarters.

office,”

that
but

the

“[they]

In fact, APCO’s website
With respect to APCO’s

Charleston office being referred to as APCO’s “headquarters,”
Dempsey

testified,

applied to APCO.”
known

as

the

“headquarters
Id. at 107.

headquarters

is

probably

a

misnomer

when

He explained that it became

simply

because

president, Dana Waldo, lived in Charleston.

APCO’s

former

Waldo is no longer

employed by APCO.
According to Dempsey, of APCO’s 27 officers, only the
following five officers work in the Charleston office.

Charles

Patton, APCO’s President and Chief Operating Officer, oversees
and directs all aspects of APCO’s day-to-day operations from
Charleston.

He coordinates the allocation of APCO’s resources

as well as APCO’s communication with employees and the public.
With respect to the employees who report directly to him, Patton
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performs a number of administrative tasks, including evaluating
job performance and assigning goals.
chief

representative

Virginia,
Philip

Virginia,

Wright,

responsible

with
and

APCO’s

for

the

Patton also acts as APCO’s

regulatory

Tennessee.
Vice

overseeing

In

President
APCO’s

agencies

addition
of

in

to

West

Patton,

Distribution,

electricity

is

distribution

operation, which involves the actual delivery of electricity to
residential and business customers.

Dempsey himself interacts

with state and local governments and monitors legislation that
affects APCO’s business.
Generating

Assets,

plants.

Lastly,

Regulatory

Affairs,

Jeff LaFleur, APCO’s Vice President of

oversees
Chris

the

operation

Potter,

oversees

APCO’s

APCO’s

of

APCO’s

power

Vice

President

of

regulatory

operations

in

West Virginia, Virginia, and Tennessee.
The remaining 22 out of APCO’s 27 officers maintain
their offices in Columbus, Ohio.

These officers include the

Chief Executive Officer, Chief Financial Officer, Secretary, and
Treasurer.
in

In addition, all nine of APCO’s directors are based

Columbus.

From

its

Columbus

office,

APCO’s

officers

are

responsible for: deciding the location and construction of power
plants

and

facilities,

transmission
pump

storage

lines;

facilities,

operating
coal-fired

hydroelectric
power

plants,

and gas power plants; negotiating and executing contracts for
the procurement of fuel for those generating plants; handling
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environmental
generating
purchase

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permitting

plants;

fleet

calculating
facilities;

work

negotiating

vehicles;

and

for

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paying

controlling

at

and

collecting
taxes
and

APCO’s

executing
and

owed

West

contracts

disbursing

on

its

West

filings

directing

Virginia

made

to

revenues;
Virginia
with

the

Securities and Exchange Commission (the “SEC”) and the Federal
Energy

Regulatory

Commission

(the

“FERC”);

determining

human

resource policies and codes of conduct; and overseeing APCO’s
legal affairs.
The district court considered these facts and denied
Appellants’ motion to remand, finding that Columbus, Ohio, is
APCO’s principal place of business.

The court explained that

although “many of the day-to-day business activities of [APCO]
are

conducted

in

Charleston[,]

.

.

.

the

ultimate

decision-

making power, which directs, controls, and coordinates the bigpicture

activities

of

[APCO],

is

carried

out

in

Columbus.”

Hoschar v. Appalachian Power Co., No. 3:11-152, 2011 WL 1671636,
at *4 (S.D. W. Va. May 3, 2011) (J.A. 172-73).

Therefore, the

district court concluded that complete diversity existed between
the parties and that federal jurisdiction was proper.
After the completion of discovery, APCO and ICI filed
separate motions for summary judgment, which the district court

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granted on November 30, 2012. 3

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See Hoschar v. Appalachian Power

Co., 906 F. Supp. 2d 560, 567, 570 (S.D. W. Va. 2012) (J.A.
1366-67,

1372).

With

respect

to

APCO’s

motion

for

summary

judgment, the district court held that, as a matter of law, the
histoplasmosis hazard posed by the accumulations of aged bird
manure

was

not

reasonably

foreseeable

to

APCO,

and

APCO

therefore did not owe Mr. Hoschar a duty to protect against it.
See Hoschar, 906 F. Supp. 2d at 567 (J.A. 1366).

Appellants

timely appealed both the district court’s denial of the motion
to remand and the district court’s grant of APCO’s motion for
summary judgment.

We possess jurisdiction pursuant to 28 U.S.C.

§ 1291.
II.
“Like

all

questions

implicating

the

subject

matter

jurisdiction of the federal courts, we review de novo the denial
of a motion to remand to state court.”

Lontz v. Tharp, 413 F.3d

435, 439 (4th Cir. 2005) (citing Dixon v. Coburg Dairy, Inc.,
369 F.3d 811, 815-16 (4th Cir. 2004) (en banc)).

The burden of

establishing federal subject matter jurisdiction “is placed upon
the

party

seeking

removal.”

Mulcahey

v.

Columbia

Organic

Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson
3

Appellants settled their case with ICI prior to briefing
this appeal. Therefore, ICI is no longer a party to this
litigation.

12

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v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)).

“We

review the district court’s factual findings with respect to
jurisdiction for clear error.”

Velasco v. Gov’t of Indonesia,

370 F.3d 392, 398 (4th Cir. 2004).
“We review a district court’s grant of a motion for
summary judgment de novo, applying the same legal standards as
the district court.”
Cir. 2013).

Glynn v. EDO Corp., 710 F.3d 209, 213 (4th

Summary judgment is appropriate where there are no

genuine issues of material fact and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

“In

determining whether a genuine issue of material fact exists, we
view the facts and draw all reasonable inferences in the light
most favorable to the non-moving party.”
213.

Glynn, 710 F.3d at

However, to show that a genuine issue of material fact

exists, the non-moving party “must set forth specific facts that
go beyond the ‘mere existence of a scintilla of evidence.’”

Id.

(quoting Anderson

252

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

(1986)).
III.
The threshold issue we must resolve is whether the
federal
dispute.
the

courts

subject

matter

jurisdiction

over

this

Appellants contend that in analyzing this question,

district

existed

have

among

court
the

erroneously
parties

held

after
13

that

complete

incorrectly

diversity

concluding

that

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APCO’s principal place of business is in Columbus, Ohio, rather
than in Charleston, West Virginia.

Appellants argue that the

district court incorrectly applied the “nerve center” test, as
set forth by the Supreme Court in Hertz Corp. v. Friend, 559
U.S. 77, 92-93 (2010).
APCO

are

West

According to Appellants, both they and

Virginia

citizens,

jurisdiction does not exist.

which

means

diversity

We disagree.
A.

Although

originally

filed

in

West

Virginia

state

court, APCO removed this action to federal court pursuant to 28
U.S.C. § 1441.

Section 1441 provides, “any civil action brought

in a State court of which the district courts of the United
States

have

original

jurisdiction,

may

be

removed

by

the

defendant . . . to the district court of the United States for
the district and division embracing the place where such action
is pending.”

28 U.S.C. § 1441(a).

APCO’s

claimed

basis

for

federal

subject

matter

jurisdiction in support of removal was diversity of citizenship.
Pursuant

to

28

U.S.C.

§

1332,

a

federal

district

court

has

original jurisdiction over all civil actions between citizens of
different states where the amount in controversy exceed $75,000.
28

U.S.C.

§

1332(a)(1).

Section

1332

requires

complete

diversity among the parties, meaning the citizenship of each
plaintiff

must

be

different

from
14

the

citizenship

of

each

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defendant.
(1996).

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See

Caterpillar

Pg: 15 of 30

Inc.

v.

Lewis,

519

U.S.

61,

68

For purposes of diversity jurisdiction, “a corporation

shall be deemed to be a citizen of every State . . . by which it
has been incorporated and of the State . . . where it has its
principal place of business.”
In

determining

28 U.S.C. § 1332(c)(1).

a

corporation’s

principal

place

of

business, we previously employed two tests: the nerve center
test and the place of operations test.

See Athena Auto., Inc v.

DiGregorio, 166 F.3d 288, 290 (4th Cir. 1999).

However, the

Supreme Court in Hertz definitively held that, for purposes of
diversity
business

jurisdiction,
is

its

“nerve

a

corporation’s

center.”

Hertz,

principal
559

U.S.

place
at

of

80-81.

Accordingly, we apply the nerve center test to determine whether
APCO’s

principal

place

of

business

is

in

Charleston,

West

Virginia or Columbus, Ohio.
In Hertz, the Supreme Court rejected the more general
“business
business

activities
a

test,”

corporation

which

conducted

measured
in

a

determine its principal place of business.
at 93.

the

amount

of

state

to

particular

See Hertz, 599 U.S.

The Court explained, “administrative simplicity is a

major virtue in a jurisdictional statute,” and the nerve center
approach “is simple to apply comparatively speaking.”
94-95 (emphasis in original).

Id. at

Nevertheless, the Supreme Court

recognized that there will be “hard cases.”
15

Id. at 95.

For

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instance, “in this era of telecommuting, some corporations may
divide their command and coordinating functions among officers
who work at several different locations, perhaps communicating
over

the

Internet.”

Id.

at

95-96.

Even

under

these

circumstances, however, the nerve center test “points courts in
a single direction, towards the center of overall direction,
control, and coordination.”

Id. at 96.

Although the nerve

center test will not, in all instances, “automatically generate
a

result,”

it

nonetheless

“provides

relatively easier to apply.”

a

sensible

test

that

is

Id.

As the Supreme Court explained, “the phrase ‘principal
place of business’ refers to the place where the corporation’s
high

level

officers

direct,

corporation’s activities.”

control,

and

coordinate

Hertz, 559 U.S. at 80.

corporation’s “nerve center.”

Id. at 80-81.

the

This is the

While the Court

noted that in practice, the nerve center “should normally be the
place where the corporation maintains its headquarters,” for a
headquarters to qualify as the nerve center, it must be “the
actual center of direction, control, and coordination, . . . and
not

simply

an

office

where

the

corporation

holds

its

board

meetings (for example, attended by directors and officers who
had traveled there for the occasion).”

Id. at 93.

Similarly,

if the record reveals attempts at jurisdictional manipulation -“for example, that the alleged ‘nerve center’ is nothing more
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than a mail drop box, a bare office with a computer, or the
location

of

analyze

an

“the

annual
place

executive
of

actual

retreat”

--

courts

direction,

should

control,

coordination, in the absence of such manipulation.”

and

Id. at 97.

The Supreme Court acknowledged that the nerve center
test “may in some cases produce results that seem to cut against
the basic rationale for 28 U.S.C. § 1332.”
96.

Hertz, 599 U.S. at

As an illustration, the Court explained:
[I]f the bulk of a company’s business activities
visible to the public take place in New Jersey, while
its top officers direct those activities just across
the river in New York, the “principal place of
business” is New York.
One could argue that members
of the public in New Jersey would be less likely to be
prejudiced against the corporation than persons in New
York -- yet the corporation will still be entitled to
remove a New Jersey state case to federal court. And
note too that the same corporation would be unable to
remove a New York state case to federal court, despite
the New York public’s presumed prejudice against the
corporation.

Id. (emphasis in original).
we

must

clearer

accept

them

rule.”

“in

Id.

Despite “such seeming anomalies,”

view

of

Indeed,

the

necessity

“[a]ccepting

of

having

a

occasionally

counterintuitive results is the price the legal system must pay
to

avoid

producing
system.”

overly
the

complex

benefits

jurisdictional

that

accompany

administration
a

more

uniform

while
legal

Id.
To date, the only decision from this Circuit to apply

Hertz is

Central

West

Virginia
17

Energy

Co.

v.

Mountain

State

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Carbon, LLC, 636 F.3d 101 (4th Cir. 2011).

The plaintiff in

Mountain State Carbon was a West Virginia corporation, and it
brought

suit

in

jurisdiction.

federal

Id.

at

court

102,

on

the

basis

One

of

103.

of

the

diversity
defendants,

Severstal Wheeling, filed a motion to dismiss due to a lack of
complete diversity, arguing that its principal place of business
was in Wheeling, West Virginia.

Id. at 103.

We applied Hertz’s

nerve center test and held that Severstal Wheeling’s principal
place of business was in Dearborn, Michigan, which was where the
majority

of

corporate

officers

were

located

and

where

those

officers were responsible for oversight and strategic decisionmaking.

Id. at 105-06.
In support of our holding in Mountain State Carbon, we

focused particularly on the location with a critical mass of
controlling

corporate

officers,

observing

that

“[s]even

of

Severstal Wheeling’s eight corporate officers -- including its
chief

executive

financial

officer,

officer,
and

chief

general

operating

counsel

and

maintain their offices in Dearborn, Michigan.”

officer,
secretary

chief
--

all

636 F.3d at 105.

“Only the eighth corporate officer, a vice president and general
manager, maintains his office in Wheeling, West Virginia.”
As

such,

operations

we
are

explained
conducted

that
in

even

though

Wheeling,

the

Severstal

Id.

“day-to-day”
Wheeling

has

“fail[ed] to show . . . how any of this is relevant to the
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‘nerve center’ test under Hertz.”

Id.

We concluded that if a

corporation’s day-to-day operations are managed in one state,
while its officers make significant corporate decisions and set
corporate policy in another, the principal place of business is
the latter.

See id. at 106.
B.

In view of the legal principles outlined above, we
conclude APCO has met its burden of establishing federal subject
matter jurisdiction.

In this case, the record demonstrates that

the place where APCO’s “officers direct, control, and coordinate
the corporation’s activities” is Columbus, Ohio.

Hertz, 559

U.S. at 92-93.
APCO’s
Columbus.

entire

Board

of

Directors

is

located

in

Additionally, from its office in Columbus, 22 out of

APCO’s 27 officers -- including its Chief Executive Officer,
Chief

Financial

Officer,

Secretary,

and

Treasurer

--

make

significant corporate decisions and set corporate policy such
that

they

direct,

control,

and

coordinate

APCO’s

activities.

Together, they decide the location and construction of power
plants and transmission lines, and they negotiate and execute
contracts for the procurement of fuel for APCO’s hydroelectric
facilities,

pump

storage

facilities,

coal-fired

power

plants,

and gas power plants; all of which are decisions at the core of
APCO’s

business.

The

Columbus
19

officers

handle

environmental

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permitting

Filed: 01/07/2014

for

work

at

Pg: 20 of 30

APCO’s

West

Virginia

facilities

calculate and pay taxes owed on these facilities.
they

collect

and

disburse

revenues,

control

and

and

Moreover,
direct

the

filings made with the SEC and the FERC, determine human resource
policies and codes of conduct, and oversee APCO’s legal affairs.
On the other hand, only five out of APCO’s 27 officers
are based in Charleston, West Virginia.

The Charleston officers

are

large-scale

responsible

received

for

from

operations
example,

Columbus

in

West

Patton

operations.

implementing
and

for

Virginia,

oversees

Wright

the

managing

Virginia,

all

aspects

oversees

APCO’s

APCO’s

and
of

directives
day-to-day

Tennessee.

For

APCO’s

day-to-day

distribution

operations

group -- that is, “the guys in the line trucks and the service
trucks.”

J.A.

77.

Dempsey

interacts

with

state

and

local

government and monitors legislation, while LaFleur oversees the
operation of APCO’s power plants.
the

regulatory

operations

in

And, finally, Potter oversees
West

Virginia,

Virginia,

and

Tennessee.
The

responsibilities

of

APCO’s

Charleston-based

officers are exactly the kinds of “day-to-day operations and
public interface” that we found insufficient in Mountain State
Carbon

to

support

a

finding

corporation’s nerve center.
at 106.

that

West

Virginia

is

the

See Mountain State Carbon, 636 F.3d

Indeed, the corporation’s day-to-day operations are not
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“relevant to the ‘nerve center’ test under Hertz.”

Id. at 105.

When a corporation’s day-to-day operations are managed in one
state and its officers make significant corporate decisions and
set corporate policy in another, the corporation’s nerve center
and principal place of business is the latter.

See id. at 106.

The record demonstrates that APCO’s day-to-day operations are
managed in Charleston, while its officers direct, control, and
coordinate APCO’s activities from Columbus.

Therefore, APCO’s

principal place of business is in Columbus, Ohio.
Appellants

further

contend

the

district

court

misapplied the nerve center test by looking to the location of
“ultimate”
location

control
of

over

“actual”

APCO’s

control

13-14.

activities,
over

This

is

APCO’s
a

rather

than

the

activities.

distinction

See

Appellants’

Br.

without

a

difference.

First, looking to the location of ultimate control

over a corporation’s activities is not inconsistent with Hertz.
This is because ultimate control is actual control, provided
that

ultimate

control

amounts

to

directing,

coordinating the corporation’s activities.
at

95-96

(explaining

that

some

controlling,

and

See Hertz, 559 U.S.

corporations

“divide

their

command” among different locations but that the nerve center
test “points courts in a single direction, towards the center of
overall

direction,

control,

and

supplied)).
21

coordination”

(emphasis

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Moreover, the Supreme Court’s use of the word “actual”
was

simply

in

the

context

of

distinguishing

center from a legitimate nerve center.

a

nominal

nerve

See Hertz, 559 U.S. at

93 (explaining that normally the corporation’s nerve center is
its headquarters, “provided that the headquarters is the actual
center of direction, control, and coordination . . . and not
simply an office where the corporation holds its board meetings”
(emphasis supplied)); id. at 97 (explaining that “if the record
reveals attempts at [jurisdictional] manipulation[,] . . . the
courts should instead take as the ‘nerve center’ the place of
actual

direction,

supplied)).

control,

and

coordination”

(emphasis

Therefore, under either phrasing, APCO’s principal

place of business is in Columbus, Ohio, because that is the
location where APCO’s officers direct, control, and coordinate
its activities -- actually and ultimately. 4

4

It is of no consequence that APCO’s parent company
maintains its headquarters in Columbus.
See Mountain State
Carbon, 636 F.3d at 107 (“[A]lmost all of Severstal Wheeling’s
own officers work out of Dearborn, Michigan, as do some of its
directors.
That they may do so from a building owned by
Severstal Wheeling’s parent company is irrelevant. And the fact
that they may also be engaged in affiliated companies’ business
activities is also of no import.”).
Of course, we do not
automatically impute a parent corporation’s principal place of
business to its subsidiary.
Instead, we focus on the location
of direction, control, and coordination of the subsidiary’s
activities.

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Finally,

Appellants

Pg: 23 of 30

argue

that

APCO’s

nerve

center

must be Charleston because some of APCO’s officers have referred
to the Charleston office as the company’s “headquarters.”
indeed,

APCO's

website

lists

Charleston

as

its

And,

headquarters.

However, Dempsey’s Rule 30(b)(6) deposition clarified that the
use of the term “headquarters” to refer to APCO’s Charleston
office was a misnomer.

Rather, as Dempsey’s affidavit makes

clear, the “headquarters-type” decisions -- that is, setting the
overarching direction and control of APCO -- occur in Columbus.
To hold otherwise would run afoul of Hertz.
As the Supreme Court in Hertz explained, “in practice
[a

corporation’s

where
that

the
the

nerve

corporation
headquarters

center]
maintains
is

control, and coordination.”

the

should
its

normally

be

headquarters

actual

center

of

the

--

place

provided

direction,

599 U.S. at 93 (emphasis supplied).

But “normally” does not mean “always,” and there is nothing in
Hertz to suggest that a company cannot refer to one office as
its

“headquarters”

another office.

while

maintaining

its

“nerve

center”

in

Cf. Mountain State Carbon, 636 F. 3d at 105 n.2

(considering a newspaper article, which referred to Wheeling,
West

Virginia,

as

the

corporation’s

headquarters,

and

citing

Hertz to explain that “[s]uch materials, however, do not convert
Wheeling, West Virginia into the place where the corporation’s

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level

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officers

direct,

Pg: 24 of 30

control,

and

coordinate

the

corporation’s activities” (internal quotation marks omitted)).
Therefore,
direction,

control,

activities.
Columbus

the
and

Because

officers

focus

are

remains

coordination

the

record

responsible

on
of

the

location

the

corporation’s

demonstrates
for

of

that

directing,

APCO’s

controlling,

and coordinating APCO’s activities, we conclude that, pursuant
to the nerve center test, APCO’s principal place of business is
in Columbus, Ohio, and the parties are thus completely diverse.
IV.
Having concluded that the federal courts have subject
matter jurisdiction over this dispute, we must decide whether
the district court erred by granting APCO’s motion for summary
judgment.

The district court held that, as a matter of law,

APCO did not have actual or constructive knowledge that the bird
manure

on

its

premises

presented

a

potential

histoplasmosis

risk, and that APCO therefore did not owe Mr. Hoschar a duty to
protect against it.
Appellants

We agree.
have

asserted

a

negligence

claim

against

APCO based on premises liability under West Virginia law.

To

prevail on such a claim, a plaintiff must show: (1) the owner
owed a duty to the person injured; (2) that duty was breached;
and (3) the breach of the duty proximately caused (4) an injury.
Senkus v. Moore, 535 S.E.2d 724, 727 (W. Va. 2000).
24

As the

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district court correctly concluded, APCO did not owe Mr. Hoschar
a duty of care as a matter of law.
Under West Virginia law, the question of whether a
duty

is

owed

turns

on

the

foreseeability

of

harm.

As

the

Supreme Court of Appeals of West Virginia has made clear, “[t]he
ultimate test of the existence of a duty to use care is found in
the foreseeability that harm may result if it is not exercised.”
Syl. Pt. 3, Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988).5
“The

test

is,

would

the

ordinary

man

in

the

defendant’s

position, knowing what he knew or should have known, anticipate
that harm of the general nature of that suffered was likely to
result?”

Id.
In the employment context, an employer owes a duty to

provide

a

“reasonably

safe

place

to

work”

to

employees

independent contractors who are on the premises.
Ohio Power Co., 418 S.E.2d 738, 751 (W. Va. 1992).

of

Pasquale v.
“This duty

includes the duty to warn of latent defects existing before the
work is started that are known to the employer, but are not
readily observable by the employee.”

Id.

It is well-settled

that “before [a premises] owner can be liable under a negligence

5

Pursuant to West Virginia’s Constitution, the Supreme
Court of Appeals of West Virginia articulates new points of law
through its syllabus.
See Walker v. Doe, 558 S.E.2d 290, 296
(W. Va. 2001) (citing W. Va. Const. art. VIII, § 4).

25

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theory, he must have had actual or constructive knowledge of the
defective condition which caused the injury.”

Hawkins v. U.S.

Sports

Va.

Ass’n,

Inc.,

633

S.E.2d

31,

35

(W.

2006)

(per

curiam).
In this case, Appellants argue that the existence and
availability

of

the

NIOSH

Publication

provided

APCO

with

knowledge of the danger of histoplasmosis, which gave rise to a
duty owed to Mr. Hoschar.

The NIOSH Publication, which appeared

on

Mr.

OSHA’s

website

while

Hoschar

was

working

at

Sporn,

explained that the histoplasma capsulatum fungus “seems to grow
best in soils having a high nitrogen content, especially those
enriched with bird manure or bat droppings.”

J.A. 1052.

It

further noted that the fungus “can be carried on the wings,
feet, and beaks of birds and infect soil under roosting sites or
manure accumulations inside or outside buildings.”
from

the

mere

existence

of

the

NIOSH

Id.

Aside

on

OSHA’s

Publication

website, however, Mr. Hoschar has offered zero evidence that
APCO

had

actual

Publication

itself

or

constructive

or

that

APCO

knowledge

had

actual

of
or

the

NIOSH

constructive

knowledge that the histoplasma capsulatum fungus was associated
with accumulations of bird manure.
Turning

first

to

actual

knowledge,

there

is

no

evidence that APCO employees actually knew that the histoplasma
capsulatum

fungus

is

associated
26

with

accumulations

of

bird

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manure.

Filed: 01/07/2014

Of

course,

there

Pg: 27 of 30

is

evidence

that

APCO

and

its

employees knew that birds were present at Sporn and that those
birds

left

accumulations

of

manure

at

Unit

5.

However,

knowledge of the existence of birds and their manure does not
mean that APCO actually knew that the histoplasma capsulatum
fungus was present at Sporn.

See, e.g., Mowry v. Schmoll, 441

F.2d 1271, 1273 (8th Cir. 1971) (holding defendants’ general
knowledge

of

constitute

the

histoplasmosis

evidence

that

the

disease

“cannot

defendants

knew

or

in

any

should

way
have

known that the attic would contain spores from the fungus”);
Henderson v. Volpe-Vito, Inc., No. 266515, 2006 WL 1751832, at
*3

(Mich.

Ct.

App.

June

27,

2006)

(unpublished

per

curiam)

(determining that landowner’s acknowledgement of the presence of
geese

and

their

knowledge

of

condition

of

experts

feces

the

did

fungus,

the

[landowner]’s

could

not

not

“attenuate
spores[,]

land”).

definitively

and

Indeed,
say

into

that

an

the

implied

dangerous

Appellants’
the

own

histoplasma

capsulatum fungus actually existed at Sporn, and Appellants did
not conduct any tests to determine whether it was, in fact,
actually present there.

Therefore, APCO did not have actual

knowledge

manure

that

the

bird

on

its

premises

presented

a

potential histoplasmosis risk.
Turning
argue

that

next

because

to

the

constructive
NIOSH
27

knowledge,

Publication

was

Appellants
disseminated

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through various means and was generally available to APCO, the
risk of histoplasmosis was foreseeable to APCO and gave rise to
a duty to at least warn Mr. Hoschar of the bird manure and the
risk

of

histoplasmosis.

The

mere

existence

Publication, however, is insufficient.

of

the

NIOSH

Indeed, APCO cannot be

charged with knowledge of what is contained within the NIOSH
Publication

if

APCO

had

no

reason

to

even

be

aware

of

its

existence.

See Black’s Law Dictionary (9th ed. 2009) (defining

constructive knowledge as “[k]nowledge that one using reasonable
care or diligence should have, and therefore that is attributed
by law to a given person.”).

Without any evidence that APCO was

aware or should have been aware of the NIOSH Publication or its
contents, APCO could not have constructive knowledge that the
bird

manure

on

its

premises

may

have

presented

a

potential

histoplasmosis risk.
Nevertheless, Appellants contend that the question of
whether

APCO

knew

or

should

have

known

of

a

histoplasmosis

hazard on its premises is necessarily a factual determination
that must be made by a jury in every instance.
Appellants’

assertion,

however,

automatically go to a jury.

this

question

Contrary to
does

not

The determination of whether APCO

had actual or constructive knowledge of a histoplasmosis risk
relates to whether a legal duty was owed to Mr. Hoschar in the
first place.

See Hawkins, 633 S.E.2d at 35 (“[B]efore an owner
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can be liable under a negligence theory, he must have had actual
or

constructive

knowledge

caused the injury.”).

of

the

defective

condition

which

It is true that often, whether or not an

individual has actual or constructive knowledge of a risk is a
question

of

conflicting

fact

that

evidence.

cannot
But

be

where,

resolved
as

without

here,

the

weighing
facts

are

undisputed, the district court can make this determination as a
matter of law.

See Fed. R. Civ. P. 56(a).

Here, Appellants

failed to present any evidence to create a genuine issue of
material fact concerning whether APCO had actual or constructive
knowledge

of

the

histoplasmosis

accumulations of bird manure.

risks

associated

with

Therefore, the district court

properly granted APCO’s motion for summary judgment. 6

6

In the alternative, APCO argues -- as it did in the
district court -- that its motion for summary judgment should be
granted because Appellants cannot satisfy the causation element
of their negligence claim.
See Senkus, 535 S.E.2d at 727
(explaining that to prevail on a negligence claim based on
premises liability, a plaintiff must show that the breach of a
duty proximately caused an injury). The district court found it
unnecessary to evaluate APCO’s causation argument, having
concluded that Mr. Hoschar could not satisfy the duty element of
his negligence claim.
While we note that there are serious
causation concerns here, we need not address APCO’s alternative
argument inasmuch as our conclusion that APCO owed no legal duty
to Mr. Hoschar is sufficient to affirm the district court’s
order granting APCO’s motion for summary judgment.

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V.
Pursuant to the foregoing, the district court’s denial
of Appellants’ motion to remand and the district court’s grant
of APCO’s motion for summary judgment is
AFFIRMED.

30