Roberson v. SMG Food and Beverage, LLC et al

Filing 27

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 07/21/2020. (tjoh, )

Case 3:20-cv-00277-HEH Document 27 Filed 07/21/20 Page 1 of 15 PageID# 188

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

LANIQUE ROBERSON,
Plaintiff,
Civil Action No. 3:20cv277-HEH

SMG FOOD & BEVERAGE,LLC,
et al.
Defendants.

MEMORANDUM OPINION

(Granting Defendants' Motions to Dismiss)

This matter is currently before the Court on Defendant SMG Food and Beverage,
LLC's("SMG")Motion to Dismiss(ECF No. 11), as well as Defendant Timothy

Ruffm's ("Ruffin") Motion to Dismiss(ECF No. 13), both of which were filed on May
22, 2020.^ Lanique Roberson ("Plaintiff)filed her Complaint in the City of Richmond
Circuit Court on February 19,2020(ECF No. 1-1), alleging negligence, and Defendants

subsequently removed the case to this Court on April 17, 2020(ECF No. 1). Shortly
thereafter. Plaintiff filed her Amended Complaint on May 8, 2020(Am. Compl.,ECF

No. 7), and Defendants now seek to dismiss Plaintiffs Amended Complaint for lack of
subject matter jurisdiction. The parties have fully briefed the issues, and the Court heard
oral argument on July 16, 2020. For the reasons that follow, the Court will grant
Defendants' Motions to Dismiss.

'Where appropriate, Defendants SMG and Ruffin will be collectively referred to as
"Defendants."

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In a motion brought pursuant to Rule 12(b)(1), the "court may regard the pleadings
as mere evidence on the issue and may consider evidence outside the pleadings."

Valasco v. Gov't oflndon., 370 F.3d 392, 398 (4th Cir. 2004){ciimg Adams v. Bain,697
F.2d 1213, 1219(4th Cir. 1999)).^ The Court notes that, in the Amended Complaint,
Plaintiff references Defendant SMG's contractual relationship with Neighborhood

Housing Services of Richmond,Inc.("NHSR")but failed to attach evidence of this
relationship to her Amended Complaint. (Am. Compl.^ 5.) Defendant SMG attached
this contract(the "Subcontract"), however, to its Motion to Dismiss. {See Def.'s Mem.

Supp. Mot. Dismiss Ex. A,ECF No. 11-2.) Therefore, the Court will consider the

Subcontract in addressing Defendants' Motions.^
On or about April 17, 2019, Defendant Ruffin was supervising and managing
concessions, on behalf of Defendant SMG,at the Dominion Energy Center (the

"Center")"^ in Richmond, Virginia. (Am. Compl.

3-4.) For paid events held at the

^ The United States Court of Appeals for the Fourth Circuit has affirmed a dismissal for lack of
subject matter jurisdiction in similar cases involving the Virginia Workers' Compensation Act.
See, e.g., Evans v. B.F. Perkins Co., 166 F.3d 642,647-50(4th Cir. 1999); Demetres v. E. W.
Constr., Inc., 995 F. Supp. 2d 539(E.D. Va. 2014)(Smith, J.), aff'd, 776 F.3d 271 (4th Cir.
2015). But see Harvard v. Perdue Farms, Inc., 403 F. Supp. 2d 462,464-65(D. Md.2005)
(construing the motion as one brought under Rule 56). Additionally, Defendants' characterize
their challenge to Plaintiffs lawsuit as jurisdictional. Therefore, this Court will conduct a Rule
12(b)(1) analysis.

^ As the Amended Complaint and Defendants' Motions also evince a relationship between the
owner of the Dominion Energy Center—the Richmond Performing Arts Tenant, LLC—and
Defendant SMG,the Court requested that the parties make any such contract existing between
those entities part of the record. The parties complied on June 12, 2020. {See Notice Ex. A
[hereinafter the "Contract"], ECF No. 22-1.) Accordingly, the Court will also consider the
Contract in addressing Defendants' Motions.

^ The Dominion Energy Center is also known as the Carpenter Theatre.

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Center, Defendant SMG engaged volunteers through its contractual relationship with
NHSR to serve as bartenders or concessionaires. {Id. ^5.) Plaintiff served as a NHSR

volunteer bartender on April 17, 2019, and reported to the Center for work that afternoon.
{Id. ^ 7.)

Volunteer bartenders at the event were tasked with selling beer to event attendees.

{Id. H 5.) Defendant SMG kept, maintained, and used a refrigerator at the Center, in
which it stored beer for sale during events. {Id.) During their shifts, volunteer bartenders
would retrieve beer from this refrigerator in order to complete their sales. {Id.)

Prior to the event on April 17, 2019, Defendant Ruffin, among others, found
frozen, broken bottles in the refrigerator at the Center. {Id. ^6.) Defendant Ruffin
indicated that he would have housekeeping clean the refrigerator. {Id.) However,

Plaintiff was not alerted to the state of the refrigerator, and during her shift, she lacerated

her right index finger on the frozen, broken glass in the refrigerator. {Id. H 7.) Plaintiff
brought this lawsuit as a result, and Defendants now seek to dismiss Plaintiffs Amended

Complaint for lack of subject matter jurisdiction.^
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins.
Co., 511 U.S. 375, 377(1994). They possess only such power as is authorized by the
Constitution or conferred by statute. Id. "The requirement that jurisdiction be
established as a threshold matter 'spring[s] from the nature and limits ofthe judicial

^ In the event this Court finds that it may exercise subject matter jurisdiction. Defendant Ruffin
also seeks to dismiss the claims against him on the grounds that Plaintiff has failed to state a
claim upon which relief may be granted.

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power of the United States' and is 'inflexible and without exception.'" Steel Co. v.
Citizensfor a Better Env't, 523 U.S. 83, 94-95(1998)(quoting Mansfield, C. & L.M. Ry.
Co. V. Swan, 111 U.S. 379, 382(1884)). Accordingly, Federal Rule of Civil Procedure

12(b)(1) allows a defendant to move for dismissal of a claim when the court lacks subject
matter jurisdiction over the action. Plaintiffs have the burden of proving subject matter

jurisdiction by a preponderance of the evidence. United States ex rel. Vuyyuru v. Jadhav,
555 F.3d 337, 347-48(4th Cir. 2009);Piney Run Pres. Ass'n v. Cty. Comm 'rs, 523 F.3d
453, 459(4th Cir. 2008). However, a court should apply the standard applicable to a

motion for summary judgment, and "should grant [a] Rule 12(b)(1) motion to dismiss

'only if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.'" Richmond, Fredericksburg & Potomac R. Co. v. United
States, 945 F.2d 765, 768(4th Cir. 1991)(citation omitted), cert, denied, 503 U.S. 984
(1992).

Because it has jurisdictional implications, the Court must initially address

Defendants' challenge to subject matter jurisdiction under Rule 12(b)(1). As this Court's

jurisdiction would be based on diversity of citizenship ifjurisdiction is established, the
substantive law of Virginia governs. Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228,
1234(4th Cir. 1996); see Demetres v. E. W. Constr., Inc., 995 F. Supp. 2d 539, 543(E.D.
Va. 2014)(Smith, J.)("[The United States Court of Appeals for the Fourth Circuit] has
determined that Virginia law applies to a diversity tort action brought in a Virginia
federal court regarding whether the exclusivity provision ofthe [Virginia Workers'

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Compensation Act] bars the claim."(citing Garcia v. Pittsylvania Cty. Serv. Auth., 845
F.2d 465,466-68 (4th Cir. 1988))), affd,116 F.3d 271 (4th Cir. 2015).

Defendants argue that Plaintiffs claim is barred by the exclusivity provision ofthe
Virginia Workers' Compensation Act(the "Act"), Va. Code § 65.2-100 et seq., and this
Court agrees. Therefore, this Court finds Plaintiff has failed to establish subject matter

Jurisdiction would be proper in this Court, and thus it must dismiss Plaintiffs Amended
Complaint.

The Virginia Workers' Compensation Act limits an employee's right of action for
injuries sustained during the course of her employment to only those remedies available
under the Act—thereby prohibiting common law actions against employers for those

same injuries. Va. Code § 65.2-307(A). This provision applies so long as a plaintiff and
defendant are considered to have an employer-employee relationship under the Act. Id.

A defendant-employer constitutes a statutory employer under the Act when it engages
workers to perform part of its "trade, business, or occupation." Va. Code § 65.2-302(A)(C). This principle has been applied and is well-established in circumstances involving
general contractors and subcontractors. Va. Code § 65.2-203(B); see Sykes v. Stone &
Webster Eng'g Corp., 41 S.E.2d 469(Va. 1947).

The Supreme Court of Virginia has addressed the confusion surrounding the
determination of whether a plaintiff-employee is engaged in the "trade, business, or

occupation" of a defendant-employer. See Stone v. Door-Man Mfg. Co., 537 S.E.2d 305,
309-11 (Va. 2000)(discussing three tests). Initially, that court held that "[t]he test... is
whether this indispensable activity is, in that business,[njormally carried on through

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employees rather than independent contractors." Shell Oil Co. v. Leftwich, 187 S.E.2d
162, 167(Va. 1972)(citing////?/? v. Sadler Materials Corp., 180 S.E.2d 501 (Va. 1971);

Burroughs v. Walmont, 168 S.E.2d 107(Va. 1969)). This test was later modified to
except from such instances "cases where the work is obviously a subcontracted fraction
of a main contract."^ Stone, 537 S.E.2d at 310. The third revision of the test, known as

the "stranger to the work" test, derives from Va. Code § 65.2-309(A), and recognizes the
right of an injured worker to maintain a common law action for personal injury against an
"other party." Id. This development followed a ruling that the original test, coined as
"normal work" test, is inapplicable when an employee of a general contractor makes a

personal injury claim against a subcontractor. Id. (citing Whalen v. Dean Steel Erection
Co., 327 S.E.2d 102, 106(Va. 1985)).

It is thus suggested that claims by an employee of a subcontractor against a

general contractor or owner should be subject to the "normal work test," see id. at 309

(citing Whalen, 327 S.E.2d at 105 (collecting cases)), whereas claims by an employee of
an owner—or claims by an employee of a general contractor against a subcontractor—are

better suited for the "stranger to the work" test, see id. at 309 n.4 (collecting cases); id. at
310. Accordingly, as Plaintiff is a volunteer for subcontractor NHSR, bringing a claim
against general contractor and Defendant SMG as well as its employee. Defendant
^ "[I]n the context ofthe construction business," this test has been further narrowed. See Stone,
537 S.E.2d at 310(quoting Cinnamon v. Int'l Bus. Mach. Corp., 384 S.E.2d 618,620(Va.
1989)). As this matter does not involve construction, any distinction specific to that context is
not relevant here. However,the Supreme Court of Virginia has made clear that the test—^without
such narrowing—remains applicable, where appropriate, outside of the context of the
construction business. See, e.g.. Smith v. Horn,351 S.E.2d 14, 17-18(Va. 1986); Cooke v.
Skyline Swannanoa, Inc., 307 S.E.2d 246, 249(Va. 1983).

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Ruffln, the "normal work" test appears to be the appropriate test for application to the
immediate case.

Bartending, the work in which Plaintiff was engaged at the time of her injury, is
the primary work conducted by Defendant SMG. When Defendant SMG's own

employees are able, they engage in bartending at the stands at the Center.^ (ECF No. 111 H 9.) It is not only the primary work of Defendant SMG's employees, but it—along
with concessions, generally—is essential to Defendant SMG's business.

Additionally, of particular significance in applying the "normal work" test can be

the degree of control exercised by the plaintiff-employee. See Shell Oil Co., 187 S.E.2d
at 167(analyzing the degree of control exercised by the plaintiff in order to determine
whether an activity is normally carried on by the defendant's employees or independent
contractors). Here, Defendant SMG enlisted NHSR volunteers, including Plaintiff, to
serve as bartenders and concessionaires during an event at the Center. (Am. Compl. H 5.)
Plaintiff was to "retrieve beer(s)from the refrigerator at the time of sale to customers,"
and "at no time referenced herein did NHSR exercise dominion or control over said

refrigerator." {Id.) This stands in direct contrast to the facts ofShell Oil Co., where the

Supreme Court of Virginia found that the defendant was not the statutory employer of a
service station worker. 187 S.E.2d 162.

^ That the "normal work" test produces this result is further supported by Carmody v. F. W.
Woolworth Co., in which the Supreme Court of Virginia determined that a defendant-employer

was a plaintiffs statutory employer because the "normal work" of the defendant was staffing and
operating department stores—^precisely the work in which plaintiff was engaged at the time of
his injury. 361 S.E.2d 128(Va. 1987).

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In the instant case Shell's control over the gasoline terminated upon its
delivery to the dealer. At that point the dealer, . . . took possession and
control. He could give the gas away, sell it for cash or on credit, or to a man
who held a Shell credit card. While he sold gas at the retail price suggested
by Shell that was not obligatory.

187 S.E.2d at 167. In this case. Plaintiff was not given any freedom in executing her

bartending duties. She was directed to sell beer at a specific price and was not to deviate

from the instructions given.^
Despite these facts, however, application of the "normal work" test to this case—
without consideration of the exception embedded in the text of the test—^would be in
error. The Contract provides that "[d]uring the Management Term,[Defendant] SMG,

either through itself or one or more of its Affiliates, will provide [the Center] with certain
management and operations services, including, but not limited to,... catering,
concession and beverage (including alcoholic beverage)services ...." (Contract at 3.)
As such,

the [bartending work NHSR] contracted to undertake is 'obviously a
subcontracted fraction' of [Defendant SMG's] main agreement with [the
owner ofthe Center] to provide [beer and concessions during events]. Thus,
there is no need to consider the [above analysis], which comes into play only
where an obvious subcontract is not first found.

^ It appears that, even if this Court were to apply the "stranger to the work" test in this case, the
result would be the same. See Barnhart v. American Oil Co., 237 F. Supp. 492,496(E.D. Va.

1965)(applying Virginia law and stating that "[i]n the final analysis we think that the passing of
title or ownership of the fuel oil from [defendant-employer] to [plaintiff-employee] is the most
important single factor in determining whether [plaintiff-employee] was a 'stranger' to
[defendant-employer's] business, trade or occupation"), aff d, 354 F.2d 659(4th Cir. 1966).
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Cooke, 307 S.E.2d at 249; see id {''Shell Oil Co. ...[is] inapposite."). Therefore, this

Court finds—by virtue of the "subcontracted fraction" test—^that Defendant SMG was
Plaintiffs statutory employer.

A plaintiff-employee constitutes a statutory employee under the Act when a

person engages "in the service of another under any contract of hire or apprenticeship,
written or implied." Va. Code § 65.2-101. "A 'contract of hire' is usually defined as an

agreement in which an employee provides labor or personal services to an employer for
wages or remuneration or other thing of value supplied by the employer." Charlottesville
Music Ctr., Inc. v. McCray,205 S.E.2d 674,677(Va. 1974)(citation omitted). Yet,
"[wjhen services or labor are rendered voluntarily without a promise of compensation or

remuneration of any kind, express or implied, then the one providing the services or labor

has supplied them gratuitously, and is not covered by the Act." Id. at 678(finding that
there was no presumption of payment for the decedent's work because he came to the
store of his own volition to help his friend); see Jackson v. RatcliffConcrete Co., 382
S.E.2d 494,495(Va. Ct. App. 1989)(finding that the plaintiff was not acting as an

employee because his motivations were purely personal). But see Atkinson v. Carpenter
Ctr.for the Performing Arts, 93 O.I.C. 160-55-24, 1993 WL 953105(1993)(finding that
a volunteer usher was an employee because she provided something of value, received

benefits for doing so, and operated under the direction and control of a supervisor).^

^ Although the decisions of a state administrative agency are not binding on this Court, they
provide persuasive authority. See Harris v. Norfolk Botanical Garden Soc'y, No. CL09-105,
2009 WL 7388876, at *3(Va. Cir. Ct. Sept. 11, 2009){citmg Atkinson, 1993 WL 953105); see

generally Johnston-Willis, Ltd. v. Kenley, 369 S.E.2d 1, 8(Va. Ct. App. 1988)("The rationale of

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Also pertinent to the determination of a statutory employee are the rights of
owners and independent contractors, which the Act leaves unchanged. Crowder v.
Haymaker, 178 S.E. 803, 804(Va. 1935). Thus, courts in Virginia consider several
factors, stemming from the common law, when analyzing such employer-employee

relationships, see id. (considering, for example, selection and engagement, the payment

of wages, and the power of dismissal); however,the Supreme Court of Virginia has stated
unequivocally that "the first, second and third ofthese elements are not essential to the
relationship .... The 'power of control' is the most significant element bearing on the

question

" Stover v. Ratliff, 212 S.E.2d 40,42(Va. 1980)(explaining such facts are

only more or less useful "in determining whose is the work and where is the power of
control"(quoting Baker v. Nussman, 147 S.E. 246, 249(Va. 1929))). This point has been
further refined to make clear that it is not the "actual exercise of control" that is

determinative but is the "right to control." W<&L Constr. & Paving, Inc. v. Sullivan, No.
2764-96-3, 1997 WL 275492, at * 1 (Va. Ct. App. May 27, 1997)(unpublished)(quoting
James v. Wood Prods. ofVa.,427 S.E.2d 224, 226(Va. Ct. App. 1993));see Hann v.

Times-Dispatch Pub. Co., 184 S.E. 183, 184-85(Va. 1936); see also CraddockMoving

& Storage Co. v. Settles, 427 S.E.2d 428,430(Va. Ct. App. 1993)("One is an employee

the statutory scheme is that the [administrative agency] shall apply expert discretion to matters
coming within its cognizance, and judicial interference is permissible only for relief against the
arbitrary or capricious action that constitutes a clear abuse ofthe delegated discretion. The
reviewing judicial authority may not exercise anew the jurisdiction of the administrative agency
and merely substitute its own independent judgment for that of the body entrusted by the
Legislature with the administrative function."(citing Va. Alcoholic Beverage Control Comm 'n v.
York Street Inn, Inc., 257 S.E.2d 851, 855(Va. 1979))).

10

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of another if the person for whom he or she works has the power to direct the means and
methods by which the work is done.")In this case, Plaintiff did not receive a wage for her services, and any non-

monetary remuneration for her services was minimal. Compare Subcontract at 4("There
is no reserved parking for group members.... There will be no event watching, we

request that you stay in your concession stand. No roaming the event."), with Atkinson,
1993 WL 953105, at *2(permitting volunteers to see their events free of charge as well
as to consume a drink at intermission). Defendant SMG gave Plaintiff only the

opportunity to consume one of certain enumerated menu items during her shift.

(Subcontract at 5.) Despite the size of her compensation, however, the fact remains that
Plaintiff could expect remuneration.''

More important though is the fact that Defendant SMG retained such a sizeable

right to control Plaintiff during her shift. Not only was Plaintiffs attire dictated while
she worked, but Defendant SMG also contracted to provide volunteers with certain

accoutrements when appropriate.'^ (Subcontract at 5.) Plaintiff was prohibited from

Even though Plaintiffs compensation was small, the intrinsic reward to Plaintiff in this case
remains distinct from those in which courts have declined to find plaintiffs were statutory

employees. In such cases, the relationship between the plaintiff and the person receiving the
plaintiffs assistance appears to drive the plaintiffs motivation and generosity; whereas here.
Plaintiff was part of an organized group that was hired to accomplish a task, and it does not
appear that Plaintiffs actions were motivated by any particular relationship. See, e.g.,
Charlottesville Music Ctr., Inc., 205 S.E.2d at 676; Jackson, 382 S.E.2d at 494.

'' Furthermore, the Court believes it noteworthy that NHSR received commissions for its
volunteers' work. (Subcontract at 3—4.)

Although the Subcontract does not indicate that Defendant SMG intended to provide such
accoutrements for events at the Center, it is clear that Defendant SMG still retained the power to
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soliciting tips, and was to report to the Center at the discretion of Defendant SMG.

(Subcontract at 3-4.) Furthermore, and perhaps most important. Defendant SMG
dictated the specific duties Plaintiff was to execute and maintained the power not only to
dismiss Plaintiff if she did not comply with Defendant SMG's rules—but also to dismiss

NHSR altogether. (Subcontract at 4, 8.) Finally, as it appears from the pleadings and is
not disputed by the parties, she was subject to the supervision of Defendant Ruffin—^who
was an agent of Defendant SMG—during the entirety of her shift. These facts
contemplate a relationship between the parties that was characterized by a significant
degree of control.'^
Plaintiff contends that the language in the Subcontract belies any representation
that Defendant SMG considered Plaintiff an employee, rather than an independent

contractor. (PL's Mem. Opp'n at 2-3, ECF No. 16.) Specifically, Plaintiff directs the
do so as the Subcontract specifically noted this authority with respect to other event locations.
(Subcontract at 5.) As it is the right to control that is determinative,see W&L Constr. & Paving,
Inc., 1997 WL 275492, at *1,the Court finds this factor relevant to its analysis.

Plaintiff also argues that, as an unpaid volunteer for NHSR,she was a noncompensated
employee of a corporation exempt from taxation pursuant to 26 U.S.C. § 501(c)(3) and therefore
necessarily is not Defendant SMG's statutory employee. See Va. Code § 65.2-101(2)(/)
("Employee shall not mean: except as otherwise provided in this title, noncompensated
employees... of corporations exempt from taxation pursuant to [§ 501(c)(3)]."). While it may
be the case that Plaintiff is not NHSR's statutory employee under the Act, that does not prevent

her from being Defendant SMG's statutory employee—particularly given that this provision of
the Act is intended to apply to charitable organizations, such as NHSR,not for-profit entities,
such as Defendant SMG. Moreover, even if Defendant SMG were a charitable organization—
which it is not—^the Court would still be obligated to analyze whether Plaintiff was compensated
for her work,see Harris, 2009 WL 7388876, at *3-4. It is not clear to this Court that such

analysis would even lean in Plaintiffs favor. Compare Harris, 2009 WL 7388876, at *4("[T]he
benefit was given in return for entering the volunteer program. The compensation here is simply
in return for being added to the list of volunteers. It is complete at that time. The benefit was in
effect even before [the plaintiff] actually worked as a volunteer."), with Subcontract at 5

(permitting volunteers to enjoy one of certain menu items while working their shifts). Thus, the
Court finds Plaintiffs argument unavailing.

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Court to a portion of the Subcontract that provides that"[NHSR] shall be responsible for
providing appropriate insurance coverage for itself and its members. SMG is not

responsible for any injuries that occur on premises." (Subcontract at 5.) She additionally
points to a provision stating that "[wjhen [NHSR's employees'] operate our stands,[they]
are [] independent contractor[s]." (Subcontract at 6.)

However, Plaintiffs suggestion that this provision of the Subcontract is

dispositive, as the parties are bound by the plain meaning ofthe text ofthe Subcontract, is
undermined by the Supreme Court of Virginia's statement that "[s]uch a recitation is not
self-executing." Richmond Newspaper v. Gill, 294 S.E.2d 840, 843(Va. 1982); see id. at
844("It is a truism that the name chosen by the parties to describe their relationship is
ordinarily of very little importance as against the factual rights and duties they
assume.").'"^ Although the nature of the relationship the parties intended to create is one
of the factors a court should consider—and a written declaration of the parties is relevant

evidence of that intent, see id.—this is not the only evidence of the parties' intent that

emanates from the Subcontract.'^ As discussed supra, Virginia law explicitly provides

Defendants' contention—^that Richmond Newspaper does not reach an analysis of statutory
employees under the Act—is correct. This Court cites Richmond Newspaper for its analysis of
common law employees, however, as the factors relating to master and servant relationships are
pertinent to the analysis of statutory employees. Richmond Newspaper, 294 S.E.2d at 843-44.

This is further supported by Hayden v. Kroger Co., in which the Fourth Circuit found that—
although the defendant's employees transported, loaded, and unloaded canned goods at the
distribution center only 20% ofthe time in comparison with the 80% of the transporting, loading,
and unloading done by the independent trucking contractors—the truckers' designation as
independent contractors was not dispositive. 17 F.3d 74, 75 (4th Cir. 1994)(affirming a district
court's grant ofsummary judgment in favor a defendant warehouse owner on the basis that the
Virginia Workers' Compensation Act barred the plaintiffs tort action).
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that several other factors, particularly the degree and right to control, are pivotal to the

analysis of whether a plaintiff-employee is a statutory employee. Stover,111 S.E.2d at
42. Thus,the aforementioned provisions in the Subcontract prove more instructive in

illuminating the parties' intent in this case. Accordingly, this Court finds that Plaintiff
was Defendant SMG's statutory employee for the purposes of the Act.

"[Plaintiff] has not shown by a preponderance ofthe evidence that [Defendant
SMG]was not her 'employer' or that she was not an 'employee' under the Act.
Therefore, as a matter of law, there is a presumption that her employment relationship is

governed by the Act." See Hawkins v. Robinson, No. 2:16cv219, 2016 WL 7217662,
at *5(E.D. Va. Nov. 21, 2016)(internal alterations omitted)(citing Va. Code Ann.

§ 65.2-300). Therefore, because Defendant SMG was the statutory employer ofPlaintiff,
and Plaintiff was a statutory employee of Defendant SMG,Plaintiffs common law claim

against Defendant SMG is barred by the exclusivity provision ofthe Act. As a result.
Plaintiffs common law claim against Defendant Ruffin is similarly barred. See Stout v.
Onorati, 267 S.E.2d 154, 158(Va. 1980)(foreclosing plaintiff truck driver's workers'

compensation suit against defendant warehouseman where plaintiff truck driver was

engaged in the "ordinary or normal business" of defendant warehouse). Thus, this Court
finds Plaintiff has failed to establish subject matter jurisdiction would be proper in this
Court as Plaintiffs sole remedy is pursuant to the Virginia Workers' Compensation

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Act.'^ Accordingly, Defendants' Motions to Dismiss will therefore be granted, and
Plaintiffs Amended Complaint will be dismissed.

An appropriate Order will accompany this Memorand^ Opinion.
Henry E. Hudson
Senior United States District Judge
Date:

2.t 2.02.*

Richmond,Virginia

Accordingly, this Court need not address Defendant Ruffm's allegation that Plaintiff failed to
state a claim upon which relief may be granted. Thus, Defendant Ruffin's Rule 12(b)(6) defense
has not been waived and remains preserved.

15