Klicos Painting Company, Inc. v. Burge

Filing 10

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 07/21/2014. (walk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

KLICOS PAINTING COMPANY, INC.,
Plaintiff,
Civil Action No. 3:14CV284-HEH

WILLIAM P. BURGE, COMMISSIONER,
DEPARTMENT OF LABOR AND

INDUSTRY, COMMONWEALTH OF
VIRGINIA,
Defendant.
MEMORANDUM OPINION

(Defendant's Motion to Dismiss)

This is an action seeking damages and equitable relief for alleged due process
violations by the Commissioner (the "Commissioner") of the Virginia Department of

Labor and Industry. The case evolves from a citation issued by an investigator with the

Department of Labor and Industry ("DOLI") against Plaintiff for a purported safety and
health violation at a construction site. The case is presently before the Court on
Defendant's Motion to Dismiss for failure to state a plausible claim filed pursuant to
Federal Rule of Civil Procedure 12(b)(6). Both parties have filed memoranda of law
supporting their respective positions. Since this Court's analysis turns on the four corners

of the Complaint, oral argument would not aid in the decisional process.
In reviewing the Complaint for facial sufficiency, this Court must "accept[] all
well-pled facts as true and construe[] these facts in the light most favorable to the
plaintiff." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th

Cir. 2009). In this process, the Court must parse out the legal conclusions and extraneous
commentary which lack factual enhancement. Francis v. Giacomelli, 588 F.3d 186, 193
(4th Cir. 2009).

From that perspective, the Complaint alleges that "[o]n or about September 18,
2013, Klicos Painting provided services as a subcontractor at a construction site located

at or about the northbound exit ramp off Interstate 95, which exits onto 15th Street in the
City of Richmond, Virginia (the "Construction Site")." (Compl. U6, ECF No. 1-1.) On
that date, an investigator with the DOLI inspected the Construction Site. The inspector

"identified a single 'Serious' violation at the Construction Site: an employee who
neglected to secure the personal fall arrest system he was wearing at the time of the

inspection in the proper manner, pursuant to C.F.R. § 1926.45 l(g)(l)(vii). Klicos
Painting corrected the violation immediately that day during the inspection." (Compl. ^|
7.) According to the Complaint, "the Citation included a proposed penalty of $1,225.00."
{Id. 1 8.)

Plaintiff further maintains in its Complaint that "[h]ad Klicos Painting received the
Citation, the Citation would have provided Klicos Painting with the option of contesting
the Citation within 15 working days after receiving Citation ... in accordance with Va.

Code §§ 40.1-49.4(C) and (E)." {Id. U9.) Although the DOLI represented to Plaintiff
that "the Commissioner signed and issued a Citation and Notification of Penalty on or
about December 4, 2013 [], and that the Commissioner sent the Citation by United Parcel
Service to [Plaintiff] at Klicos Painting's office in Spring Hill, Florida," Plaintiff

contends that the citation was never received. {Id. ffi[ 12-13.) Subsequently, on January
21, 2014, Plaintiff received a letter from the DOLI dated January 13, 2014,

in which it asserted that Klicos Painting had been penalized $1225 without
further particulars as to the nature or cause of the penalty. The January 13,
2014 Letter further threatened continued collection efforts, as well as the

addition of interest, late penalty fees, collection agency costs and attorneys'
fees added to the initial penalty, as well a [sic] negative effect on Klicos
Painting's credit.
{Id. TJ14.) The January 13, 2014 letter demanded a response on or before January 23,
2014. {Id.)

By return letter dated January 22, 2014, Plaintiff advised the DOLI that
its collection letter was the first correspondence it received relating to any
violations, and advised DOLI that it had denied Klicos Painting of due
process by denying it any opportunity to review any of the facts supporting
the citation, denying the opportunity [to] see the citation, denying any
opportunity to respond, and denying an opportunity for an informal
conference or any kind of meeting with DOLI.
{Id. T] 15.) Plaintiff received a response from the DOLI the following month. In that
letter, the DOLI

asserted that it had received no response from Klicos Painting and that
Klicos Painting owed a "PAST-DUE PENALTY." DOLI further
threatened to submit its account to the Virginia Department of Taxation for
inclusion in the Comptroller's Debt Set Off Program, to pursue Klicos
Painting, and to "use every collection method available to settle this
delinquent account. Additional fees may be added."
{Id. 116.)
Although Plaintiff does not appear to contest the fact that the citation was issued

or that it was conveyed to United Parcel Service ("UPS") for delivery, Klicos Painting

contends that its failure to receive the citation deprived it of the opportunity to participate

in an informal conference with the Commissioner to amicably resolve the citation.

Furthermore, Plaintiff alleges that it was deprived of the chance to appeal the
Commissioner's findings to the Circuit Court for the City of Richmond which "would
have had the option of issuing a written order affirming, modifying or vacating the

citation orproposed penalty."1 {Id. til.) Based on the analysis that follows, this Court
concludes that Plaintiff fails to plead a plausible due process claim.
In examining a complaint for facial sufficiency under Rule 12(b)(6), a court "does
not resolve contests surrounding the facts, the merits of a claim, or the applicability of

defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). To
survive Rule 12(b)(6) scrutiny, a complaint need only contain "enough facts to state a
claim to relief that is plausible on its face." Bell Alt. Corp. v. Twombly, 550 U.S. 544,
570 (2007); see also Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim must contain

... a short and plain statement of the claim showing that the pleader is entitled to
relief."). Mere labels and conclusions declaring that the plaintiff is entitled to relief are
not enough. Twombly, 550 U.S. at 555.

A complaint achieves facial plausibility when the facts contained therein support a
reasonable inference that the defendant is liable for the alleged misconduct. Id. at 556;
see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). This analysis is context-specific
and requires "the reviewing court to draw on its judicial experience and common sense."
Francis, 588 F.3d at 193. In addition to the well-pleaded factual allegations in the

1Nowhere in the Complaint does Plaintiff contend that it was unaware of the violation or that it
was not guilty of the safety violation.
4

complaint, the court may consider official public records, documents central to plaintiffs

claim, and documents sufficiently referred to in the complaint so long as the authenticity
of these documents is not disputed. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180
(4th Cir. 2009).

The pivotal claim in Plaintiffs Complaint is that it did not physically receive the

citation in time to pursue legal remedies. If afforded that opportunity, Plaintiff contends
that it may have been able to resolve the citation amicably with the Commissioner, or
convince a circuit court judge to modify or vacate the citation. The Due Process Clause

of the Fourteen Amendment requires the government to provide notice and an
opportunity to be heard prior to intentional deprivation of a property interest. Linton v.
Frederick Cnty. Bd. Cnty. Comm'rs, 964 F.2d 1436, 1439 (4th Cir. 1992).

To plead a viable procedural due process claim, the plaintiff must assert that (1) it

had property or a property interest, (2) of which the defendant deprived it, (3) without
due process of law. Sylvia Dev. Corp. v. Calvert Cnty., Md., 48 F.3d 810, 826 (4th Cir.
1995). The same requirements are necessary to establish a due process claim under

Virginia law. As the Supreme Court of Virginia noted in Shivaee v. Commonwealth, "the
due process protections afforded under the Constitution of Virginia are co-extensive with
those of the federal constitution, [and] the same analysis [] applfies] to both." 270 Va.
112, 119(2005).

The key component of the claim is not that the Commissioner failed to properly
post the citation, but the fact that Plaintiff failed to timely receive it. Plaintiffs argument
appears to misconstrue the notice requirement under the Due Process Clause.

It is well settled that "[a]n elementary and fundamental requirement of due process
in any proceeding which is to be accorded finality is notice reasonably calculated, under

all the circumstances, to apprise interested parties of the pendency of the action and
afford them an opportunity to present their objections." Mullane v. Cent. Hanover Bank
& Tr. Co., 339 U.S. 306, 314 (1950) (citations omitted). The method of notification must

demonstrate a "desirfe] of actually informing" the party and must be reasonably adopted
to accomplish that objective. Id. at 315 (noting that "process which is a mere gesture is
not due process"). An equally enshrined principle is that due process does not necessitate
actual notice, but instead requires the government "attempt to provide actual notice"
using a method reasonably certain to reach the intended party. Dusenbery v. United
States, 534 U.S. 161, 170 (2002) (citing Mennonite Bd. ofMissions v. Adams, 462 U.S.
791, 799 (1983)); Mullane, 339 U.S. at 315. There is no claim in the immediate case that
the Commissioner's reliance on UPS to deliver the citation was unreasonable or
miscalculated.

In the Complaint, Plaintiff anchors his due process claim to statutory language

describing a prerequisite to "finality" of a citation issued by the Commissioner imposing
a penalty. The provision of Virginia law empowering the Commissioner to assess civil

penalties does mention the necessity for receipt of a citation by an employer. See Va.

Code § 40.1-49.4(C)(H). The confusion underlying Plaintiffs argument appears to reside
in the distinction between constitutional and statutory safeguards. See Riccio v. Cnty. of

Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990). The Commissioner's attempt to collect the
penalty assessed against Plaintiff may arguably violate a state statute, but falls short of a

viable due process claim under the United States or Virginia Constitution. In the
constitutional context, a state "agency is required to comply with its regulations that are
congruent with the requirements of constitutional due process." Detweiler v. Va. Dep't of

Rehab. Servs., 705 F.2d 557, 561 (4th Cir. 1983) (citation omitted). This obligation was
fulfilled by properly posting the notice with UPS.
In the absence of an actionable claim under the United States Constitution, this

Court lacks subject matter jurisdiction and this case must be dismissed.2
An appropriate Order will accompany this Memorandum Opinion.

4^

/s/

Henry E. Hudson
United States District Judge

Date: Julu Z^ZO/y

Richmond, Va

2Plaintiffs claims under state law hinge on discretionary decisions by state administrators
applying state statutes and regulations. Should further relief be appropriate in this case—and not
barred by sovereign immunity—it should be afforded by the courts of the Commonwealth of
Virginia.