Doe v. Access Industries, Inc.

Filing 24

Judge Mark L. Wolf: ORDER entered. MEMORANDUM AND ORDER. (Bartlett, Timothy)

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JANE DOE,
Plaintiff,

v.

C.A. No.

14-11839-MLW

ACCESS INDUSTRIES, INC.
Defendant.
MEMORANDUM AND ORDER
WOLF, D.J.
I.

September 29, 2015

BACKGROUND
Plaintiff

Jane

Doe

alleges

the

Mass.

Super.

Massachusetts

resident.

"Complaint") .

Access Industries,

corporation
2012.

Id.,

that
~2.

had an office

California

there,

at

she was

incident,

Doe

Ct.

She

Compl. ,

("Access")

in Cambridge,

Doe attended a

the

direction

of

sought

workers'

a

(the

~[l

Massachusetts
Id.,

in

~3.

"professional conference"

Access.

sexually assaulted.

is

is a New York

Access employed Doe in that office.

In October 2012,
in

Inc.

following.

Id.,

Id.,

Following this

~5.

compensation

While

~4.

from

Access,

but

learned that Access did not have workers'

compensation coverage

~8.

On January 24, 2014,

for its Massachusetts employees.

Id.,

Doe brought this case in the Middlesex County Superior Court of
the

Commonwealth

action

against

of

Massachusetts.

Access

pursuant

to

She

asserts

Massachusetts

one

cause

General

of
Law

c.

152,

§66,

alleging

that Access

is

strictly

liable

for

her

injuries.
Access removed this case to this court on April 14,
based

on

diversity

~3.

Notice of Removal,
Dismiss,

or

in

Arbitration.
2014,

the

under

28

U.S.C.

§1332.

See

Ten days later, Access filed a Motion to
Alternative,

Doe then

asserting

workers'

jurisdiction

2014,

that

filed a

her

compensation

to

Proceedings

Pending

Motion to Remand on April

claim

laws

Stay

"arises

and,

under"

therefore,

28,

Massachusetts's
that

28

U.S.C.

§1445(c) bars removal.
II.

LEGAL STANDARDS
A.

Massachusetts Workers' Compensation Law

Massachusetts workers'
with

compensation

employment.
provide
775

Most

workers'

N.E.2d

complies

for

405,

with

compensation law provides employees

injuries

employers

in

compensation
407

this

(Mass.

in

Massachusetts

insurance.
App.

requirement,

employee's

sustained

Ct.

then

"exclusive

the
are

course

of

required

to

See Truong v.
2002).

workers'

If

the

injuries.

Maxwell v. AIG Domestic Claims,

employer

compensation

remedy"

generally

an

Wong,

Inc.,

for

is

wor kplace

950 N.E.2d 40,

53 (Mass. 2011).
However,

when

an

employer

who

is

required

to

provide

workers' compensation insurance does not do so, an employee "may
sue the employer in a civil action for the full
2

scope of tort

damages"

pursuant

sections

66 and 67.

Co.,

to

393 N. E. 2 d 867,

Massachusetts
Id.;
870

General

Laws

see also LaClair v.

(Ma s s . 1979).

chapter

152,

Silber line Mfg.

Section 66 provides,

in

full, that:
Actions brought against employers to recover damages
for
personal
injuries
or
consequential
damages
sustained within or without the commonwealth by an
employee in the course of his employment or for death
resul ting from personal inj ury so sustained shall be
commenced within twenty years from the date the
employee first became aware of the causal relationship
between the disability and his employment.
In such
actions brought by said employees or by the Workers'
Compensation Trust Fund pursuant to the provisions of
subsection (8) of section sixty-five, it shall not be
a defense:
1.

That the employee was negligent;

2.
That the injury was caused
negligence of a fellow employee;

by

the

the
employee
had
assumed
3.
That
voluntarily or contractually the risk of the
injury;
4.
That the employee's injury did not
result from negligence or other fault of the
employer, if such injury arose out of and in
the course of employment.
M.G.L.

c.

152,

§66.

The

subsequent

section

provides,

in

relevant part, that:
Section sixty-six shall not apply to actions
recover damages for personal injuries received
employees of an insured person or a self-insurer.
In other words,

Id., §67.
against

an

employer

for

to
by

an employee "may bring a tort action
work-related

3

injuries

under

§66's

generous strict liability standard only if his employer did not
obtain

workers'

compensation

Pena v. Geszpenc,
June 11, 2002)
B.

insurance

14 Mass. L. Rptr.

as

required

637, at *2

by

(Mass.

law."

Super. Ct.

(citing LaClair, 393 N.E.2d at 870).

Federal Jurisdiction and Removal Law

A defendant in a state court case may remove the case to a
Uni ted States
original
is

District

jurisdiction."

authorized

where

jurisdiction.

A

where,

the

the

as

here,

parties

are

Court
28

if

U.S.C.

there

is,

district

among

in

of

federal

court

§1441 (a).

court

amount

ci ti zens

the

Therefore,

other

has

things,

diversity

controversy

di fferent

would

removal

diversity

jurisdiction

exceeds

states.

"have

$75,000

See

28

and

U. S. C.

§1332 (a) .
The

jurisdiction.
Cir.

construed,

Further,

and
in

any

of

remand

F.

Supp.

3d

321,

327

(D.

to

Eli Lilly & Co.,

14C Charles

(" [A]

statute

propriety

is

of

831

strictly

forum."

Dialysate

Prods.

Liab.

Mass.

2015);

see

779 F.3d 214,

778

F.3d 909,
Federal

also
218

912

(1st

removal

state

Alan Wright et al.,

§37 3 9 (4th ed. 2015)

establishing

the

Mgmt. LLC v. Moonmouth Co. SA,
Dudley v.

the

of

132 F.3d 824,

removal

about

Fresenius Granuflo/Naturalyte

burden

Local S6,

"[t]he

doubts

favor

the

has

BIW Deceived v.

1997).

resolved

party

removing

are

In

re

Li tig.,

76

Carlyle

Inv.

(3d Cir. 2015);

(11th Cir.

2014);

Practice and Procedure

great many cases can be cited for the
4

proposition

that

if

federal

removed case is doubtful,

sUbject-matter

jurisdiction over a

the case should be remanded to state

court. ") .
A federal statute limits the extent to which certain state
law actions can be removed to federal court.

"A civil action in

any State court arising under the workmen's compensation laws of
such

State

United

may

not

States."

be

28

whether a plaintiff I s
workers'
Nemours

U.S.C.

Co.,

58

"arising under"

to

any

§1445.

district
Federal

court
law

laws.

F.3d 121,

See
125

Arthur

(4th Cir.

in this context,

v.

a

£.1.

1995).

of

the

determines

cause of action "arises under"

compensation
&

removed

state's

DuPont

de

In defining

courts have examined how that

term has been interpreted in the context of the general federal
jurisdiction

statute,

Autoalliance Int'l,
Humphrey
1995);

v.

Gunn v.

Inc.,

Sequentia,

Spearman,
Minton,

28

Inc.,

Ct.

"[l]inguistic

consistency"

precedents

another

to

§1331.

See

392 F.3d 195,202-03

16 F.3d at
133 S.

U.S.C.

58

F.3d

1238,
931

1059,

1064

(8th
1092;

(2013)

use

of

the

Cir.
cf.

(explaining that
applying

for

v.

2004);

F.2d at

Jones,

statutory

(6th Cir.

1245-46

725;

counsels

Harper

term

§1331
"arising

under") .
For the purposes of §1331,

a

See Gunn,

federal law in one of two ways.
First,

cause of action arises under
133 S.

Ct.

at 1064.

"a case arises under federal law when federal law creates
5

the cause of action asserted."

Id.

of

law where

action

"turn [s]

arises
on

under

federal

substantial

Sons Metal Prods.,

questions

Inc. v.

Second,

of

a state-law cause

the

federal

cause

of

law."

Darue Eng'g & Mfg.,

action

Grable

545 U.S. 308,

&

312

(2005) .
Therefore,
workmen's
the

§1445(c)

compensation

plaintiff's

resolution
law."

of

a

bars

law

right

removal

"when

created the
relief

to

substantial

cause

either

(1)

of action

the

question of workmen's

(2)

depends

necessarily

or

on

compensation

Harper, 392 F.3d at 203; cf. Gunn, 133 S. Ct. at 1064.

III. ANALYSIS
Doe
Doe

brings

argues

damages,"
action

that,

her

that

her

claim
although

claim
is

"[p] ursuant"
she

§66.

allowed

is

not

a

tort

created

by

a

workers'

Pl. 's Mem. in Support of Mot.
in contrast,

"is

to

claim

Compl.,

CJI12.

pursue

tort

to

"but

is

instead

compensation

to Remand at 4.

an

statute."

Access contends,

that Doe's claim is a common-law tort action, which

§66 merely alters.

Def. 's Mem. in Opp.

to Pl.'s Mot.

to Remand

at 2-7.
Massachusetts
§66

confers

Surety Co.,
terms

courts

rights

on

183 N.E.

confers

no

been

employees.

918,
rights

employer of defences

have

to a

919
on

inconsistent
Compare

(Mass. 1933)
the

as

Rose

to whether
v.

Franklin

(stating that §66 "in

employee

but

deprives

the

law action which he would otherwise
6

have had"),
1982)

with Brown v.

(citing M.G.L.

Compensation]

Act

c.

Leighton,

434 N.E.2d 176,

180

152, §66 to note that "[t]he

creates

a

right

of

action

for

(Mass.

[Workmen's

an

employee

against an uninsured employer to recover for injuries occurring
during
Certain
(1st

the

Interested

Cir.

private

course

2012)

action

of

employment

Underwriters

(stating
in

tort

regardless
Stolberg,

v.

that

§§

against

of
680

66

and

employer

67

fault"),
F.3d

and

61,

"authoriz[e]

who

has

67
[a]

failed

to

maintain the required workers' compensation insurance") .
While these cases did not address whether removal of a §66
claim is proper,

they show that Massachusetts law is not clear

as to whether §66 creates a cause of action.

All doubts must be

resolved

In

in

favor

Granuflo/Naturalyte
3d at 327.
a

of

Dialysate

Therefore,

Massachusetts

cause of action,

remand.

court

Prods.

See
Liab.

re

Li tig.,

the case is being remanded.
decides

that

§66

does

not

Fresenius
76

F.

Supp.

However,
create

if

Doe's

Access may again remove this case to federal

court.
IV.

ORDER
In view of the foregoing, it is hereby ORDERED that:
1.

The

plaintiff's

Motion

ALLOWED.

7

to

Remand

(Docket

No.

15)

is

2.

The

Alternative,

defendant's

Motion

to

Dismiss,

or

in

the

to Stay Proceedings Pending Arbitration (Docket No.

12) is MOOT.

8