Williams et al v. Harsco et al
Filing
57
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND: The Court GRANTED the motion to remand 12 , and REMANDED this case to the Circuit Court of Monongalia County. Signed by District Judge Irene M. Keeley on 7/22/11. (copy Clerk of the Circuit Court of Monongalia County with copy of docket sheet.)(jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
DAVID J. WILLIAMS, IDA WILLIAMS, his wife,
K.H., Infant and by parents and next friends,
David J. Williams and Ida Williams, A.W.,
Infant and by parents and next friends,
David J. Williams and Ida Williams, P.W.,
Infant and by parents and next friends,
David J. Williams and Ida Williams, D.W.,
III, Infant and by parents and next friends,
David J. Williams and Ida Williams, M.W.,
Infant and by parents and next friends,
David J. Williams and Ida Williams, C. W.,
Infant and by parents and next friends,
David J. Williams and Ida Williams, J. W.,
Infant and by parents and next friends,
David J. Williams and Ida Williams, and
Z. W., Infant and by parents and next
friends, David J. Williams and Ida Williams,
Plaintiffs,
v.
//
CIVIL ACTION NO. 1:10CV206
(Judge Keeley)
HARSCO CORPORATION, a Delaware
Corporation, d/b/a Harsco Systems,
TERRY L. SHRIVER, an individual,
DOMINION RESOURCE SERVICES, INC.,
and BETA MAX, INC., a Florida
Corporation,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND (DKT. 12)
I. PROCEDURAL HISTORY
Plaintiff David J. Williams (“Williams”), a West Virginia
resident, together with his wife and minor children who assert
derivative claims, filed this action in the Circuit Court of
Monongalia County, West Virginia. Defendants Harsco Corporation
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
(“Harsco”),
a
Delaware
(“Shriver”)
removed
corporation,
the
case
on
and
the
Terry
basis
L.
of
Shriver
diversity
jurisdiction, claiming that Shriver, who is also a West Virginia
resident, was fraudulently joined in the complaint. Defendants
Dominion
Resource
corporation,
and
Services,
Beta
Max,
Inc.
(“Dominion”),
Inc.
(“Beta
Max”),
a
Virginia
a
Florida
corporation, consented to the removal.
The plaintiffs moved to remand, alleging a lack of diversity.
At a hearing on May 10, 2011, the Court granted the motion to
remand after concluding that the complaint stated a colorable cause
of action against Shriver under West Virginia law. The purpose of
this Memorandum Opinion and Order is to more fully set forth the
reasons for remanding the case.
II. FACTUAL BACKGROUND
According to the plaintiffs’ Amended Complaint, Williams was
injured on November 16, 2008, while working at Dominion's Mount
Storm power plant in Grant County, West Virginia. Williams’s
employer
at
the
time
was
defendant
Harsco,
a
contractor
of
Dominion. Terry Shriver served as Harsco’s site superintendent with
responsibility for the power plant site. Because the critical
question in the analysis of the plaintiffs’ motion to remand is
2
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
whether Williams can assert a viable claim against Shriver, the
non-diverse defendant, the nature of Shriver’s involvement in the
underlying controversy is relevant.
According to the complaint, “Shriver was employed by Defendant
HARSCO as a site superintendent with responsibility for and control
over all Harsco activities at various and differing project sites.”
(Amended Complaint, ¶ 7.) Harsco and Shriver “created and/or
allowed unsafe working conditions at the [Mount Storm] construction
site,” (id. at ¶ 20), and “Shriver knew of the specific unsafe work
conditions,” (id. at ¶ 22), but failed to correct them. (Id. at ¶
25.)
III. ANALYSIS
A. Fraudulent Joinder Standard
Fraudulent joinder may only be established, and thus diversity
jurisdiction held proper, where the defendant can prove that the
plaintiff has no chance whatsoever of maintaining a cause of action
against
Manville
a
non-diverse
Sales
Corp.,
defendant
6
F.3d
in
229
state
(4th
court.
Cir.
Marshall
1993).
v.
Federal
jurisdiction is not present when the plaintiff has at least a
“slight possibility of a right to relief” against the non-diverse
defendant. Hartley v. CSX Transp., Inc., 187 F.3d 422, 426 (4th
3
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
Cir. 1999). This “standard is even more favorable to the plaintiff
than
the
standard
for
ruling
on
a
motion
to
dismiss
under
Fed.R.Civ.P. 12(b)(6).” Id. at 424.
B. West Virginia Deliberate Intent Statute
Notwithstanding the immunity granted by the West Virginia
workers’ compensation statute, in Mandolidis v. Elkins Indus.,
Inc., 246 S.E.2d 907 (W. Va. 1978), the state’s Supreme Court of
Appeals recognized an exception to that immunity, establishing a
cause
of
action
against
an
employer
for
workplace
injuries
resulting from willful, wanton and reckless misconduct. The West
Virginia Legislature later codified that exception in the statutory
section now found at W. Va. Code § 23-4-2(d)(2). Each of the two
sub-sections of this provision, §§ (d)(2)(i) and (d)(2)(ii),1
provides an independent means of establishing deliberate intent.
Coleman Est. v. R.M. Logging, Inc., 700 S.E.2d 168 (W. Va. June 2,
2010)(citing Syl. Pt. 1, Mayles v. Shoney’s, Inc., 405 S.E.2d 15
(W. Va. 1990)).
Sub-section
(i)
requires
a
plaintiff
to
prove
that
the
"employer or person against whom liability is asserted acted with
1
The parties refer to these independent causes of action as
the “single i claim” and “double i claim,” respectively.
4
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
a consciously, subjectively and deliberately formed intention to
produce the specific result of injury or death to an employee."
Neither negligence, recklessness nor willful misconduct satisfies
the requirements of this subsection – instead, in a single i claim
a plaintiff must prove that an employer or other person granted
immunity actually tried to injure or kill him. Syl. Pts. 7-9,
Tolliver v. Kroger Co., 498 S.E.2d 702 (W. Va. 1997).
Sub-section (ii), which does not require proof of subjective
intent to injure, tracks the Mandolidis cause of action. See
Mayles, 405 S.E.2d at 25-26 (Neely, J., dissenting)(describing
Mandolidis
as
recognizing
“constructive
intent”).
Under
this
sub-section, in order to establish a prima facie case of a double
i claim of deliberate intent, a plaintiff must prove five elements:
1) that an unsafe condition existed; 2) that the employer actually
knew of it; 3) that the hazard was a violation of safety rules; 4)
that the employer exposed the plaintiff to the hazard; and 5) that
serious injury resulted. Syl. Pt. 6, Coleman, 700 S.E.2d 170.
Unlike subsection (i), this provision does not refer to any "other
person against whom liability is asserted," but refers repeatedly
to “the employer.”
5
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
Harsco and Shriver argue, and some West Virginia federal
decisions have held, that this difference means no cause of action
exists against a fellow employee or supervisor under sub-section
(ii). A contrary line of authority, however, recognizes that a
plaintiff may indeed assert a cause of action under sub-section
(ii) against a supervisor or co-employee where appropriate facts
exist.
In the Amended Complaint, Williams asserts claims under both
sub-sections. Because Williams has pled a plausible sub-section
(ii) claim against the non-diverse defendant, the Court need not
address his sub-section (i) claim, or the defendants’ motion to
dismiss that claim under Fed.R.Civ.P. 12(b)(6).
C. Conflicting Case Law
In a 1987 published opinion, this Court remanded a case after
concluding that the plaintiff could arguably state a claim against
a supervisor under sub-section (ii). Weekly v. Olin Corp., 681
F.Supp. 346 (N.D.W. Va. 1987)(Kaufman, Senior District Judge,
D.Md., sitting by designation). Most subsequent decisions of this
Court
have
reached
the
same
result.
See,
e.g.,
Hoffman
v.
Consolidated Coal Co., Civ. Action No. 1:10cv83 (N.D.W. Va. Dec. 1,
2010); Beagle v. Altivity Packaging, LLC, Civ. Action No. 5:09cv33
6
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
(N.D.W. Va. July 31, 2009); Howell v. Nalco Chem. Co., Civ. Action
No. 5:00cv205 (N.D.W. Va. Aug. 9, 2001); Morris v. PPG Indus.,
Inc., Civ. Action No. 5:99cv137 (N.D.W. Va. June 7, 2000); Crow v.
Allied-Signal, Inc., Civ. Action No. 5:94cv91 (N.D.W. Va. July 18,
1995); but see Fincham v. Armstrong World Indus., Civ. Action No.
2:08cv101 (N.D.W. Va. Nov. 7, 2008)(holding that no sub-section
(ii)
claim
exists
against
a
co-employee
or
supervisor).
The
Southern District of West Virginia has more often reached the
opposite conclusion. See, e.g., Evans v. CDX Svcs., 528 F. Supp.2d
599 (S.D.W. Va. 2007).
Significantly, however, at least two West Virginia trial court
opinions follow the Weekly line of cases and support the viability
of the claim against Shriver. The most thorough of these is
Anderson v. Am. Elec. Power Svc. Corp., No. 06-C-770 (Kanawha Co.
W. Va. Cir. Apr. 10, 2007). Accord, Knight v. Baker Material
Handling Corp., No. 01-C-39-1 (Harrison Co. W. Va. Cir. Ct. Sept.
26, 2001).
The court’s reading of the statute in Anderson is eminently
reasonable. The introductory portion of the i section at issue
provides that “[t]he immunity from suit . . . may be lost only if
the employer or person against whom liability is asserted acted
7
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
with ‘deliberate intention’.” § 23-4-2(d)(2)(emphasis added). “This
requirement may be satisfied only if” either sub-section (i) or
sub-section (ii) is proven. Id. In Anderson, the court concluded
that this overarching introductory provision suggests the statutory
immunity of employers and other persons is identical, and thus no
greater immunity should exist for a supervisor who acts with
deliberate intent as set forth in sub-section (ii). Such was the
holding of Weekly more than twenty years ago. 681 F.Supp. at 352
(“Plaintiff's interpretation is consistent with West Virginia cases
which hold that the scope of immunity afforded fellow employees .
. . was intended by the legislature to be identical to that enjoyed
by the employer.”)
IV. CONCLUSION
The question in this case, and indeed in all of those cited,
is clearly a debatable point of state law that remains unresolved
by the West Virginia Supreme Court of Appeals. On a motion to
remand, however, “all legal uncertainties are to be resolved in the
plaintiff's favor.” Hartley, 187 F.3d at 425. Thus, the Court need
only find that a “glimmer of hope” exists that Shriver may be held
liable under sub-section (ii). Id. at 426. The fact that several
decisions of this Court, and at least two state trial court
8
WILLIAMS, et al. v.
HARSCO CORP., et al.
1:10CV206
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO REMAND
decisions,
have
upheld
a
sub-section
(ii)
claim
against
a
supervisor supports the conclusion that a real possibility exists
that Williams could prevail on his claim in state court. Notably,
the defendants here have not produced any state court decisions
directly supporting their position.
For the reasons discussed, at the hearing on May 10, 2011, the
Court GRANTED the motion to remand (dkt. 12), and REMANDED this
case to the Circuit Court of Monongalia County.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record and to the Clerk of the Circuit Court of
Monongalia County, and to remove this case from the active docket.
DATED: July 22, 2011.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?