El Karmassi v. GCR Firestone et al

Filing 15

ORDER granting 13 Motion to Dismiss. Signed by U.S. District Judge Charles B. Kornmann on 12/18/18. (SST) Mailed to Mohammed El Karmassi on 12/19/2018 (SST).

UNITED STATES DISTRICT COURT

DISTRICT OF SOUTH DAKOTA

18

NORTHERN DIVISION

MOHAMMED EL KARMASSI,

1:18-CV-01017-CBK

Plaintiff,
ORDER

vs.

GCR FIRESTONE, BRIDGESTONE
AMERICAS, OLD REPUBLIC,
Defendants.

Plaintiff filed a pro se complaint alleging that he had an accident while at work on

November 11, 2015. He claims his manager refused to timely report the accident, required
plaintiff to work in violation of his doctor's restrictions, human resources would not retum his

calls, and the workers compensation carrier would not retum his calls or pay for therapy. He
claims the manager forged plaintiffs signature on time cards and other documents. Plaintiff
contends that he was discriminated against, harassed, threatened and was fired in retaliation for

raising safety concems and trying to pursue a workers' compensation claim. Plaintiffis seeking
to hold OCR Firestone responsible for the accident and his medical and pharmacy bills.
Plaintiff captioned his complaint only against"OCR Firestone/Old Republic" but listed in
the body of his complaint that he was suing defendants OCR Firestone, Bridgestone Americas,
and Old Republic. The record shows a proof of service only upon defendant OCR Firestone.

Defendant Bridgestone filed a motion to dismiss. Bridgestone sets forth that Bridgestone
Americas Tire Operations, LLC is incorrectly named in the complaint as OCR Firestone/Old
Republic. Bridgestone also sets forth that OCR Firestone is not a separate entity although
Bridgestone operates some stores under OCR Tire. Defendant Bridgestone filed a motion to
dismiss the complaint, apparently on behalf of all named defendants, on the basis that plaintiff is
attempting to relitigate matters that were dismissed with prejudice in CIV 16-1057, that

plaintiffs claims arise out of a workers' compensation proceeding, and that the parties
previously settled plaintiffs claims.

Plaintiff previously filed suit against GCR Firestone, 1:16-CV-Ol057-CBK, wherein he
raised similar issues. The time to answer that complaint was extended pending mediation.
Thereafter, defendant in that case moved to dismiss on the basis that the parties had mediated the
matter in April 2017, that the plaintiff had signed a settlement agreement and release, agreeing to
dismiss the case, and that plaintiff had been paid. Plaintiff did not object to the motion to
dismiss and a judgment of dismissal was entered.

Plaintiff admits in his response to the pending motion to dismiss in this case that he
attended mediation and settled "this case." Nonetheless, he is seeking continued payment of his
ongoing medical bills. He asserts that "if workman's comp is not going to pay then GCR is

responsible for paying for my medical expenses as I was injured while employed at GCR."
When an employer is insured under the state's workers' compensation statute,"an action
for workers' compensation benefits is the exclusive remedy available to an employee against an
employer for work-related injury." Ouiles v. Johnson. 906 F.3d 735, 737(8th Cir. 2018). See
Ham V. Cont'l Lumber Co.. 506 NW2d 91,95(SD 1993)("Worker's compensation is the

exclusive remedy for all on-the-job injuries to workers except those injuries intentionally
inflicted by the employer."). All plaintiffs claims arise out of his work-related injury and his
dissatisfaction with the handling of his workers' compensation claim. As such, they are not
cognizable in federal court.

It is clear from the record that plaintiff did in fact engage in mediation of his
discrimination and other claims against his employer, that he signed a settlement agreement as to

his claims against his employer, and that he was paid pursuant to the settlement agreement. He
cannot relitigate the claims raised in CIV 16-1057 despite now believing that he was not paid

enough and continues to suffer from his original on-the-job injury.
Now,therefore,
IT IS ORDERED that the motion. Doc. 13, to dismiss is granted. This matter is

dismissed with prejudice and with the taxation of costs.

DATED this /

ofDecember,2018.
BY THE COURT:

United States District Judge