Adame et al v. Meridia EXP, LLC et al

Filing 37

ORDER: The pending Motions to Dismiss (Docket Nos. 16, 18, 24, 26, 28) are hereby GRANTED, and the claims against the Jamison Defendants, the CSX Defendants, Berkley, and Metro are DISMISSED WITHOUT PREJUDICE. In addition, Metro's Motion for Sanctions (Docket No. 33) is hereby GRANTED, and it is ORDERED that counsel for the plaintiffs, Joel R. Bellis, shall pay Metro's reasonable attorney's fees and expenses in connection with this matter. Metro shall file a motion enumeratin g its requested attorneys fees and expenses by July 3, 2017, to which Mr. Bellis shall file a Response by July 24, 2017. It is further ORDERED that, by July 7, 2017, the plaintiffs shall make filings in the record of the case that SHOW CAUSE why thei r claims against Mr. Emmanuel and Meridia should not be dismissed for failure to timely serve them with a summons and the Complaint. Signed by District Judge Aleta A. Trauger on 6/22/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
PROTO ADAME, JOSE HERNANDEZ,
NICHOLAS VARGAS-CATREJON, and
FRANCISCO LOPEZ

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Plaintiffs,
and
BITCO GENERAL INSURANCE CORP.,
Intervening Party,
v.
MERIDIA EXP LLC, CSX CORP., CSX
TRANSPORTATION, INC., THOMAS
EMMANUEL, METROPOLITAN
GOVERNMENT OF NASHVILLE AND
DAVIDSON COUNTY, JAMISON
CONSTRUCTION LLC, CECIL JAMISON,
BERKLEY INSURANCE COMPANY, and
CARL SIMS,
Defendants.

Case No. 3:17-183
Judge Aleta A. Trauger

MEMORANDUM & ORDER
Pending before the court are six motions. First, there are five unopposed Motions to
Dismiss: 1) a Motion to Dismiss filed by Jamison Construction LLC, Cecil Jamison, and Carl
Sims (collectively “the Jamison Defendants”) (Docket No. 16); 2) a Motion to Dismiss filed by
Berkley Insurance Company (“Berkley”) (Docket No. 18); 3) a Motion to Dismiss filed by CSX
Corporation (Docket No. 24); 4) a Motion to Dismiss filed by CSX Transportation, Inc.
(“CSXT”) and CSX Corporation (collectively, the “CSX Defendants”) (Docket No. 26); and 5) a
Motion to Dismiss filed by the Metropolitan Government of Nashville and Davidson County
(“Metro”) (Docket No. 28). Next, there is a pending motion for Sanctions against the plaintiffs’
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counsel, Joel R. Bellis, filed by Metro. (Docket No. 33.) For the reasons discussed herein, all of
the pending motions will be granted.
BACKGROUND & PROCEDURAL HISTORY
The plaintiffs filed this personal injury action on January 27, 2017 based on allegations
that they were injured while working for defendant Jamison Construction, Inc. (“Jamison
Construction”). (Docket No. 1.) According to the Complaint, in August of 2015, the Tennessee
Department of Transportation (“TDOT”) contractually retained Jamison Construction to repair
TDOT bridges, so as to prevent damage to the neighboring property of the CSX Defendants, and
the contract provided that certain safety measures for the project would be overseen by the CSX
Defendants. On January 30, 2016, the Complaint alleges, the plaintiffs were suspended on a
scaffold by Jamison Construction foreman, defendant Carl Sims, when defendant Thomas
Emmanuel, driving a truck for Meridia EXP LLC (“Meridia”), crashed into the scaffolding,
causing severe physical injuries and emotional distress to the plaintiffs. According to the
Complaint, Mr. Sims knew the scaffolding was damaged and unable to carry the amount of
weight it was holding, and he acted in violation of the TDOT contract and the safety regulation
plans for the jobsite. The Complaint further alleges that CSX Transportation, Jamison
Construction, and the TDOT all failed to properly supervise Mr. Sims and the jobsite to ensure
compliance with the requisite safety control plan and other applicable safety regulations. In
addition, the Complaint alleges that Mr. Emmanuel was driving negligently at the time and that
he was negligently supervised by Meridia in being permitted to drive for too many hours
consecutively.
While Metro is named as a defendant, the Complaint lacks any explanation of Metro’s
role in this action. There are no factual allegations raised against Metro, nor any legal theories

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asserted for Metro’s liability in this matter, other than the fact that the events giving rise to this
action took place within the city of Nashville.
The only allegation in the Complaint involving Berkley is the allegation that Berkley acts
as a surety to the performance and payment bonds of the Jamison Defendants under their
contract with the TDOT.
According to the Complaint, the plaintiffs are all residents of Tennessee, as are Jamison
Construction and Cecil Jamison. The remaining defendants, other than Metro, are identified as
having residence in various other states, with the exception of Carl Sims, whose residence is not
indicated.
The Complaint brings claims against all defendants for common law negligence per se
under Tennessee law. The Complaint also brings claims against the CSX Defendants for
premises liability, strict liability, and violation of the Federal Employer’s Liability Act, 45
U.S.C. § 51 (“FELA”). It further brings a claim against Jamison Construction, Cecil Jamison
(an agent of Jamison Construction), and Berkeley for breach of the TDOT contract, to which the
plaintiffs allege they are third-party beneficiaries. Finally, the Complaint brings claims against
Mr. Sims for negligent and intentional infliction of emotional distress. The Complaint seeks
compensatory and punitive damages.
On April 6, 2017, the Jamison Defendants filed a Motion to Dismiss for failure to state a
claim under Rule 12(b)(6) (Docket No. 16), along with a Memorandum in support (Docket No.
17). The Jamison Defendants argue that the claims against them are barred under Tenn. Code
Ann. § 50-6-108, which states that the Tennessee Workers’ Compensation Law provides the

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exclusive remedy for personal injury claims by an employee against his or her employer, and
bars all other claims under Tennessee tort or contract law. 1
On April 10, 2017, Berkley filed a Motion to Dismiss for failure to state a claim under
Rule 12(b)(6) (Docket No. 18), along with a Memorandum in support (Docket No. 19), arguing
that the allegations in the Complaint involving Berkeley consist solely of the allegation that
Berkeley acted as a surety with respect to the Jamison Defendants’ performance under the TDOT
contract. Berkley asks the court to take judicial notice of the fact that such a surety relationship
gives rise to only limited liability for Berkley – namely, liability to the TDOT in the event that
the Jamison Defendants do not fulfill their contractual obligations – but does not give rise to
general liability for Berkley for all claims that may arise out of the Jamison Defendants’ actions
in carrying out their contractual obligations. Accordingly, Berkley argues that the allegations in
the Complaint do not support a claim against Berkley in contract or in tort.
On April 12, 2017, the court granted a Motion to Intervene by BITCO General Insurance
Corporation (“BITCO”), a provider of workers’ compensation insurance for Jamison
Construction. BITCO has provided (and continues to provide) certain workers’ compensation
benefits to the plaintiffs in connection with the incident giving rise to this action. (Docket No.
20.) On the same day, BITCO filed an Intervenor Complaint, seeking to recover from the
defendants all past and future benefits paid by BITCO to the plaintiffs pursuant to workers’
compensation. (Docket No. 21.)
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The Jamison Defendants note the exception to this rule for torts that are intentional (meaning
that a defendants acted with an intent to harm, rather than knowingly permitted a dangerous
condition to exist or willfully violated a safety regulation), citing King v. Ross Coal, 684 S.W.2d
617 (Tenn. App. 1984). The Jamison Defendants argue, however, that, while the Complaint
makes the summary allegation that the Jamison Defendants acted intentionally, there are no
specific allegations to support a finding of intentionality that would meet the standard for the
exception to Section 50-6-108 and, therefore, no such intentional tort claim has been sufficiently
pled.
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On April 21, 2017, CSX Corporation, a parent of subsidiary CSXT, filed a Motion To
Dismiss for lack of personal jurisdiction under Rule 12(b)(1) (Docket No. 24), along with a
Memorandum in support (Docket No. 25). CSX Corporation argues that it is a Virginia
corporation with its principal place of business in Florida and that it lacks sufficient contacts
with the state of Tennessee to give rise to general personal jurisdiction, and did not purposely
avail itself of doing business in Tennessee so as to give rise to specific personal jurisdiction
here. 2
On the same day, the CSX Defendants filed a joint Motion to Dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1) and failure to state a claim under Rule 12(b)(6) (Docket
No. 26), along with a Memorandum in support (Docket No. 27). The CSX Defendants argue that
the plaintiffs have failed to state a claim with respect to the only federal law claim at issue in the
case – the claim against the CSX Defendants for violation of the FELA – and the Complaint
otherwise lacks diversity jurisdiction, so there is no ground for subject matter jurisdiction in
federal court. According to the CSX Defendants, they cannot be liable to the plaintiffs under the
FELA because they never employed the plaintiffs, nor are there any allegations in the Complaint
that they did so.
Also on April 21, 2017, Metro filed a Motion to Dismiss for failure to state a claim under
Rule 12(b)(6) and lack of subject matter jurisdiction under Rule 12(b)(1) (Docket No. 28), along
with a Memorandum in support (Docket No. 29). Metro argues that the claims against it have

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This motion does not appear to reject the possibility that personal jurisdiction may be
appropriate over CSXT, which apparently owns or operates the railroad property that was
adjacent to the jobsite at issue. This motion only advances CSX Corporation’s argument that
such jurisdiction does not extend to CSX Corporation as the parent company, in light of its own
complete lack of contact with the state of Tennessee.
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been insufficiently pled because the Complaint contains no factual allegations of wrongdoing by
Metro and no legal theories of liability against Metro.
On May 25, 2017, Metro filed a Motion for Sanctions (Docket No. 33) along with a
Memorandum in support (Docket No. 34), again arguing that the Complaint does not make any
factual allegations or assert any theories of liability with respect to Metro and, therefore, the
claims against Metro are frivolous and wholly without merit. Accordingly, Metro seeks
sanctions from the plaintiffs’ counsel, Joel R. Bellis, 3 under Federal Rule of Civil Procedure 11
in the form of an award of reasonable attorney’s fees and expenses for Metro’s defense of this
action. Attached to the Motion is an April 21, 2017 letter sent from Metro to Mr. Bellis,
indicating Metro’s intent to seek sanctions if the plaintiffs did not dismiss their claims against
Metro, and attaching a draft of Metro’s motion for sanctions. (Docket No. 33-1.)
Also on May 26, 2017, the CSX Defendants and BITCO filed a joint stipulation to the
dismissal of BITCO’s claims against the CSX Defendants based on lack of jurisdiction. (Docket
No. 35.) BITCO states that it is not seeking any relief from the CSX Defendants in this action. 4

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Metro’s Motion for Sanctions and its accompanying Memorandum both open with language
indicating that Metro is seeking sanctions against the plaintiffs themselves rather than their
counsel. (Docket No. 33, p.1; Docket No. 34, p. 1.) These documents both later clarify,
however, that the sanctions are sought against the plaintiffs’ counsel, rather than the plaintiffs.
Indeed, under Rule 11(c)(5), monetary sanctions, such as attorney’s fees, cannot be awarded
“against a represented party for violating Rule 11(b)(2)”; see also Dearborn Street Bldg. Assocs.
LLC v. Huntignton Nat’l Bank, 411 F.App’x 847, 852 (6th Cir. 2011) (no sanctions can be issued
against a represented party based on the frivolousness of the party’s legal position).
Accordingly, the court considers Metro’s motion to be one seeking sanctions solely against Mr.
Bellis.
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BITCO does not concede its right to intervene in the plaintiffs’ claims against the other
defendants in this action.
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The plaintiffs have not responded to any of the five pending motions to dismiss, and the
deadline has now long since passed. Moreover, Mr. Bellis has not responded to Metro’s Motion
for Sanctions, and the deadline for doing so has also now passed.
There has been no challenge to the claims against Mr. Emmanuel and Meridia in this
Action but it appears from the record that these defendants have not yet been served.
ANALYSIS
According to local Rule 7.01(b), failure to respond a motion to dismiss indicates a lack of
opposition. District courts can construe any arguments against an unopposed motion to dismiss
as having been waived. See Humphrey v. U.S. Attorney General’s Office, 279 F. App’x 328, 331
(6th Cir. 2008) (citing Resnick v. Patton, 258 F. App’x 789, 790-91, n.1 (6th Cir. 2007)).
Moreover, the pending motions raise meritorious grounds for dismissal. 5 Accordingly, the court
will summarily grant the pending motions to dismiss and dismiss the claims against the Jamison
Defendants, the CSX Defendants, Berkley, and Metro.
Turning to Metro’s Motion for Sanctions, Rule 11(b) provides that a pleading is a
certification to the court by the pleading party’s counsel that
(1) it is not being presented for any improper purpose such as to harass, cause
unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law
or by a non-frivolous argument for extending, modifying, or reversing existing
law or for establishing new law;

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The court notes, however, that the only ground raised for dismissal of the state law claims
against CSXT is the lack of subject matter jurisdiction. In particular, the CSX Defendants argue
that there is no diversity jurisdiction, presumably referencing the fact that the Jamison
Defendants and Metro are residents of Tennessee, as are the plaintiffs. Because this opinion
dismisses the claims against the Jamison Defendants and Metro on other grounds, diversity
jurisdiction could potentially apply to state law claims against CSXT. Because the plaintiffs
have not opposed the CSX Defendants’ motion, however, nor indicated any willingness to
proceed against CSXT in the Middle District of Tennessee once the other claims discussed in
this motion are dismissed, the court will dismiss the state law claims against CSXT at this time.
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(3) the factual contentions have evidentiary support or, if specifically so
identified, will likely have evidentiary support after a reasonable opportunity for
further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on belief or a lack of information.
Under Rule 11(c)(1), “the court may impose an appropriate sanction on any attorney, law firm,
or party that violated [Rule 11(b)] or is responsible for the violation.” Such a sanction “must be
limited to what suffices to deter repetition of the conduct or comparable conduct by others
similarly situated.” Fed. R. Civ. P. 11(c)(4). The district courts are given “considerable
discretion” in determining whether sanctions should be issued under Rule 11. Indah v. U.S.
S.E.C., 661 F.3d 914, 928 (6th Cir. 2011).
Metro argues that sanctions should be imposed on the plaintiffs’ counsel, Mr. Bellis, for
“filing claims that have no legal merit,” since “the Complaint does not contain a single factual
allegation or any alleged theory of liability” with respect to Metro. (Docket No. 34, p. 1.) The
court interprets this motion for sanctions to be brought pursuant to Rule 11(b)(2), as there is no
basis for finding that the plaintiffs or Mr. Bellis violated any other subsection of Rule 11(b).
There is no evidence in the record that the plaintiffs filed the claims against Metro for any
improper purpose or that there are any factual contentions that lack evidentiary support. Metro’s
position in both its Motion to Dismiss and in its Motion for Sanctions is solely that the plaintiffs’
claims against it are frivolous because they are wholly unsupported by the allegations in the
Complaint and, therefore, Mr. Bellis should be ordered to pay Metro’s reasonable attorney’s
fees.
The court agrees that the Complaint is devoid of any meritorious basis for claims against
Metro. Moreover, the plaintiffs’ counsel has not bothered to oppose Metro’s Motion to Dismiss
or Motion for Sanctions, despite evidence that Metro has communicated its position to Mr. Bellis

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and has also indicated its intent to seek sanctions under Rule 11. The court finds that Mr. Bellis
has clearly not acted reasonably. Metro was named as a defendant, despite the fact that the
Complaint is wholly devoid of any allegations linking Metro to this action. Moreover, when
given notice of Metro’s position, the plaintiffs have neither offered any defense for including
Metro nor sought to amend the pleadings or stipulate to the dismissal of the claims against
Metro. Rather, Mr. Bellis has allowed this action to proceed against Metro at Metro’s expense
and without any active participation by the plaintiffs or Mr. Bellis.
At first blush, the fact that this action has only recently commenced, that the litigation has
not yet advanced to the discovery phase, and that the claims against Metro will be dismissed as
of this Order, might suggest that there has been a limited burden on Metro in defending this suit
and, therefore, that sanctions are unwarranted. However, even the limited involvement by
Metro in this litigation has a real cost, albeit perhaps not a relatively great one, and Metro should
not be forced to pay for the unreasonable actions of the plaintiffs’ counsel. The fact that Metro
has had a limited burden in defending this action also means that reasonable attorneys’ fees and
expenses for its defense will be likewise limited. And, it is only these attorneys’ fees and
expenses that Metro is seeking to recover in sanctions.
Not only is the argument for awarding the requested sanctions well supported by Rule 11
but, moreover, Sixth Circuit precedent indicates that the court would abuse its discretion if it
were to deny the sanctions. See Rentz v. Dynasty Apparel Indus., Inc., 556 F.3d 389, 400-02 (6th
Cir. 2009) (holding that the district court abused its discretion by not awarding full reasonable
attorney’s fees as sanctions against an attorney to deter the pursuit of frivolous claims); see also
Merritt v. Int’l Assoc. of Machinists and Aerospace Workers, 613 F.3d 609, 629 (6th Cir. 2010)
(holding that sanctions are appropriate against an attorney who did not “adequately research the

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factual basis for the claims asserted in the complaint at the time of filing.”). Accordingly, the
court finds that awarding the requested attorney’s fees and expenses is appropriate. Denying
Metro’s Motion for Sanctions would be an abdication of the court’s responsibility to deter the
future filing of these sorts of frivolous claims. For these reasons, the court will grant Metro’s
Motion for Sanctions and order Mr. Bellis to pay Metro’s reasonable attorneys’ fees and
expenses in defending this action.
Finally, with respect to remaining defendants, Mr. Emmanuel and Meridia, there is no
documentation in the record that the plaintiffs have timely served them with a summons and the
Complaint to initiate this action. According to the Federal Rules of Civil Procedure:
If a defendant is not served within 90 days after the complaint is filed, the court –
on motion or on its own after notice to the plaintiff – must dismiss the action
without prejudice against that defendant or order that service be made within a
specified time. But if the plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The Complaint was filed on January 27, 2017, meaning that such service
should have been completed more than two months ago, and the court may now dismiss the
claims against these defendants absent good cause shown. Accordingly, the court will order the
plaintiffs to show cause why these claims should not be dismissed.
CONCLUSION
For the foregoing reasons, the pending Motions to Dismiss (Docket Nos. 16, 18, 24, 26,
28) are hereby GRANTED, and the claims against the Jamison Defendants, the CSX
Defendants, Berkley, and Metro are DISMISSED WITHOUT PREJUDICE. In addition,
Metro’s Motion for Sanctions (Docket No. 33) is hereby GRANTED, and it is ORDERED that
counsel for the plaintiffs, Joel R. Bellis, shall pay Metro’s reasonable attorney’s fees and
expenses in connection with this matter. Metro shall file a motion enumerating its requested

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attorneys’ fees and expenses by July 3, 2017, to which Mr. Bellis shall file a Response by July
24, 2017. It is further ORDERED that, by July 7, 2017, the plaintiffs shall make filings in the
record of the case that SHOW CAUSE why their claims against Mr. Emmanuel and Meridia
should not be dismissed for failure to timely serve them with a summons and the Complaint.
It is so ORDERED.
Enter this 22nd day of June 2017.

______________________________
ALETA A. TRAUGER
United States District Court

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