NORDGREN v. HUGHES
Filing
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MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE JOI ELIZABETH PEAKE signed on 7/2/2015, RECOMMENDING that this action be remanded to North Carolina state court for further proceedings. FURTHER RECOMMENDED that Defendant's Motion to Dismiss (Doc. # 5 ) be denied without prejudice to Defendant raising his contentions in state court. (Daniel, J)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TIMOTHY A. NORDGREN, ESQ.,
Administrator of the Estate of RYNO
FERREIRA, deceased,
Plaintiff,
v.
OWAIN HUGHES,
Defendant.
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1:14CV605
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on Defendant’s Motion to Dismiss [Doc. #5].
In the Motion, Defendant contends that the case should be dismissed as barred by the
exclusivity provisions of the North Carolina Workers’ Compensation Act.
However,
because Plaintiff and Defendant are both aliens, as further discussed below, and this case
does not involve a suit by or against any citizen of a State under 28 U.S.C. § 1332, the Court
recommends that this case be remanded to North Carolina state court due to lack of federal
subject matter jurisdiction. On that basis, the Court recommends that Defendant’s Motion
to Dismiss be denied without prejudice to further consideration by the state court.
I.
FACTS, CLAIMS, AND PROCEDURAL HISTORY
Plaintiff brings the instant action as administrator of the estate of Ryno J. Ferreira
(“Ferreira” or “Decedent”). According to the Complaint, Decedent was a citizen and
resident of the Republic of South Africa, who, at the time of his death, was legally within the
United States as part of a program “commonly known as the J-1 Visa Exchange Visitor
Program.” (Compl. [Doc. #2] ¶¶ 1-2.) The Complaint alleges that, on April 6, 2013,
Decedent was a passenger in a vehicle driven by Defendant. According to the Complaint,
Defendant failed to properly stop or yield at a stop sign, causing the vehicle to enter into the
path of a truck. The resulting collision caused Decedent severe injuries and ultimately
resulted in his death. (Id., ¶ 10.) The Complaint includes no allegations regarding the
employment of Decedent or of Defendant at the time of the accident. Plaintiff initially filed
the Complaint in North Carolina state court, bringing a sole claim entitled “Negligence of
[Defendant] Resulting in Wrongful Death.” (Id., ¶¶ 11-13.) Defendant removed this action
to federal court on the basis of diversity of citizenship [Doc. #1]. In his Petition for
Removal, Defendant notes that, at the time of the accident and when this action was
commenced, Defendant was a citizen and resident of the United Kingdom. (Id., ¶ 8.)
Defendant has now filed the instant Motion, contending that dismissal is appropriate
under Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure because
Decedent and Defendant were co-workers at the time of the accident and the claim is barred
by the North Carolina Workers’ Compensation Act.1 In connection with his Motion,
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The United States Court of Appeals for the Fourth Circuit has affirmed decisions dismissing claims under
Rule 12(b)(1) where the applicable Workers’ Compensation Act provides for the exclusive remedy. See, e.g.,
Meredith v. Honeywell Int’l, Inc., 245 F. App’x 325 (4th Cir. 2007); Banks v. Virginia Elec. Power Co., 205
F.3d 1332 (Table) (4th Cir. 2000); Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642
(1999). However, courts have questioned whether this issue should be analyzed under Rule 12(b)(6) or Rule
56 rather than Rule 12(b)(1). See, e.g., Harvard v. Perdue Farms, Inc., 403 F. Supp. 2d 462, 463-64 (D. Md.
2005); Demetres v. East W. Constr., 995 F. Supp. 2d 539, 542 n.2 (E.D. Va. 2014); see also Carrier v.
Westvaco Corp., 46 F.3d 1122 (Table) (4th Cir. 1995) (affirming grant of summary judgment based on
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Defendant has filed certain documents from the North Carolina Industrial Commission
indicating acceptance of workers’ compensation awards by both Decedent and Defendant.
The first document is entitled “Order Approving Agreement for Final Compromise
Settlement and Release” and identifies Defendant in this action, Owain Hughes, as
“Employee-Plaintiff” and “Hidden Creek Contractors, Inc./Fairway Solutions Corp.” as
“Employer.” (See Def.’s Mot., Ex. A [Doc. #5-1] at 2.) The second document is a form
document entitled “Award Approving Agreement for Compensation for Death” listing
“Ryno Ferreira” in the location for “Deceased Employee’s Name” and “Hidden Creek
Contractors, Inc. and Fairway Solutions” in the location for “Employer’s Name.” (See
Def.’s Mot., Ex. B [Doc. #5-2] at 2.) Based on those documents, Defendant contends that,
“[b]ecause the Decedent and [Defendant] were co-employees at the time of the accident, and
they have applied for and accepted benefits under the North Carolina Worker’s
Compensation Act, Decedent’s estate is barred from bringing a separate action directly
against [Defendant].” (Def.’s Mem. [Doc. #6] at 2.)
II.
DISCUSSION
Defendant’s Motion raises legitimate questions regarding the propriety of this action.
“The [North Carolina] Workers’ Compensation Act provides an exclusive remedy for
Workers’ Compensation exclusivity provisions). The Court of Appeals for the Seventh Circuit has
considered this issue directly, concluding that the question of federal subject matter jurisdiction is a matter of
federal constitutional and statutory law, and that “state law cannot expand or contract that grant of
authority,” but that a claim barred by state workers’ compensation exclusivity provisions is not a viable claim
and should be dismissed for failing to state a claim on which relief may be granted under Rule 12(b)(6) or on
summary judgment under Rule 56. Goetzke v. Ferro Corp., 280 F.3d 766 (7th Cir. 2002).
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unintentional work-related injuries.” Gregory v. Pearson, 736 S.E.2d 577, 580 (N.C. App.
2012). This exclusivity also bars “a worker who is injured in the course of his employment
from suing a co-employee whose negligence caused the injury.” Pleasant v. Johnson, 312
N.C. 710, 713, 325 S.E.2d 244, 247 (1985); see also Gregory, 736 S.E.2d at 580 (“Similarly,
an employee who recovers under the Workers’ Compensation Act cannot raise a negligence
claim against a co-employee acting in the scope of employment.”). The only exception to
the Act’s exclusivity provision that appears relevant here holds that “when a co-employee
acts in a willful, wanton, and reckless manner” an injured plaintiff may “seek recovery from
the co-employee in a common law action.” Trivette v. Yount, 366 N.C. 303, 306, 735 S.E.2d
306, 308-09 (2012) (citing Pleasant, 312 N.C. at 716-17, 325 S.E.2d at 249-50). However,
given the minimal allegations of willful, wanton and reckless conduct in this case, and the
contentions that Decedent and Defendant were employed by the same entity at the time of
the underlying accident and have apparently recovered on Workers’ Compensation claims, it
is questionable whether Plaintiff’s claim may proceed.2
However, the Court cannot proceed further with this matter because it appears that
federal subject matter jurisdiction is lacking. Pursuant to 28 U.S.C. § 1447, after a case is
removed from State court, “[i]f at any time before final judgment it appears that the district
court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c); see
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In light of the lack of specific assertions in the Complaint regarding these issues, and in light of the
contentions raised by Plaintiff in the Response Brief, it appears that limited discovery and/or preliminary
summary judgment motions would be appropriate with respect to the applicability of the Workers’
Compensation exclusivity provisions in this case if federal subject matter jurisdiction otherwise existed.
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also Brickwood Contractors, Inc. v. Datanet Eng'g, Inc., 369 F.3d 385, 390 (4th Cir. 2004)
(en banc) (“[Q]uestions of subject-matter jurisdiction may be raised at any point during the
proceedings and may (or, more precisely, must) be raised sua sponte by the court.”). In this
case, although Defendant removed the case to this Court on the basis of diversity of
citizenship, it is clear from the Complaint and from the Notice of Removal that both
Decedent and Defendant are foreign nationals.
As such, this Court does not have
jurisdiction to hear this matter. “Article III of the United States Constitution extends the
judicial power to controversies ‘between Citizens of different States . . . and between a State,
or the Citizens thereof, and foreign States, Citizens or Subjects.’ U.S. Const. art. III, § 2, cl.
1. . . . In the case of litigation involving an alien, a state or a citizen of a state must be a
party.” Matao Yokeno v. Sawako Sekiguchi, 754 F.3d 649, 652 (9th Cir. 2014) (citing
Jackson v. Twentyman, 27 U.S. (2 Pet.) 136, 136 (1829) (holding that under the Constitution,
“the judicial power does not extend to private suits in which an alien is a party, unless a
citizen be the adverse party”); Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303, 304 (1809)
(holding that under the Constitution, if the plaintiff is an alien, the defendant must be a
citizen of a State, otherwise the federal courts do not have jurisdiction)); see also Bastos v.
Kelowna Flightcraft, Ltd., No. 2:10CV946, 2011 WL 3905064 (S.D. Ohio Sept. 6, 2011).
Likewise, under 28 U.S.C. § 1332, “Congress . . . has granted district courts original
jurisdiction in civil actions between citizens of different States, between U.S. citizens and
foreign citizens, or by foreign states against U.S. citizens.” Exxon Mobil Corp. v. Allapattah
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Servs., Inc., 545 U.S. 546, 552 (2005) (citing 28 U.S.C. § 1332); see also Kavourgias v.
Nicholaou Co., 148 F.2d 96 (9th Cir. 1945) (“Being a suit between aliens, wherein no Federal
question was raised, this was not a suit of which the district courts of the United States are
given original jurisdiction, and hence it was not removable.”); 14A Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 3661 (4th ed.) (“If both the plaintiff and
the defendant are aliens, . . . it is [ ] well settled . . . that Section 1332 does not apply and
there is no alienage jurisdiction . . . .”).
In this case, the Complaint alleges that Decedent “was a citizen and resident of the
Republic of South Africa” and that Defendant “is a citizen and resident of the United
Kingdom.” (Compl. [Doc. #2] ¶¶ 1, 4.)3 Likewise, Defendant’s Petition for Removal states
that, “[a]t the time of his death, [Decedent] was a citizen and resident of the Republic of
South Africa who was, upon information and belief, lawfully in the United States pursuant to
a J-1 Visa” and that “[a]t the time of the [a]ccident and when the action was commenced,
Defendant Owain Hughes was a citizen and resident of the United Kingdom.” (Pet. for
Removal [Doc. #1] ¶¶ 6, 8.) The Petition goes on to state that “[n]o change of citizenship
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The Court notes that although the administrator of the Decedent’s estate is a citizen and resident of North
Carolina, “the legal representative of the estate of a decedent shall be deemed to be a citizen only of the same
State as the decedent.” 28 U.S.C. § 1332(c)(2). “The statutory definition of the term ‘State’ does not include
foreign states, see 28 U.S.C. § 1332(d); however, ‘[t]he most obvious and sensible meaning of [28 U.S.C.]
§ 1332(c)(2) . . . is that the representative of a decedent’s estate is treated as having the citizenship of the
decedent. Consequently, the representative of the estate of an alien is treated as an alien for purposes of
diversity jurisdiction.’” Miller ex rel. Estate of Dimas v. Morocho Brother’s Const., Inc., No. 1:03CV924,
2004 WL 727040 at n.3 (M.D.N.C. Mar. 31, 2004) (quoting Kato v. County of Westchester, 927 F. Supp. 714,
716 (S.D.N.Y.1996)).
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of parties has occurred since the commencement of the action.” (Id., ¶ 9.) Accordingly,
both parties being foreign nationals, diversity of citizenship for purposes of 18 U.S.C. § 1332
and Article III does not exist, and this matter should be remanded.
IV.
CONCLUSION
IT IS THEREFORE RECOMMENDED that this action be remanded to North
Carolina state court for further proceedings.
IT IS FURTHER RECOMMENDED that Defendant’s Motion to Dismiss [Doc.
#5] be denied without prejudice to Defendant raising his contentions in state court.
This, the 2nd day of July, 2015.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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