McGovern v. PPG Industries, Inc.

Filing 12

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS MOTION TO REMAND [DKT. NO. 7],GRANTING DEFENDANTS MOTION TO DISMISS [DKT. NO. 2], AND DISMISSING THE CASE WITHOUT PREJUDICE. Signed by District Judge Irene M. Keeley on 4/11/14. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

MICHAEL J. MCGOVERN,
Plaintiff,

v.

//

CIVIL ACTION NO. 5:14CV6
(Judge Keeley)

PPG INDUSTRIES, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
DENYING PLAINTIFF’S MOTION TO REMAND [DKT. NO. 7],
GRANTING DEFENDANT’S MOTION TO DISMISS [DKT. NO. 2],
AND DISMISSING THE CASE WITHOUT PREJUDICE
Pending before the Court are the motion to remand (dkt. no. 7)
filed by the plaintiff, Michael J. McGovern (“McGovern”), and the
motion

to

dismiss

(dkt.

Industries, Inc. (“PPG”).

no.

2)

filed

by

the

defendant,

PPG

For the following reasons, the Court

DENIES McGovern’s motion to remand, GRANTS PPG’s motion to dismiss,
and DISMISSES this case WITHOUT PREJUDICE.
I. BACKGROUND
PPG is a Pennsylvania chemicals manufacturer that operates a
facility known as the “Natrium Plant” in Marshall County, West
Virginia.

McGovern works on the “third line repackaging line” at

the Natrium Plant, where he is responsible for affixing lids to
twenty-five gallon buckets of chemicals. McGovern alleges that PPG
“failed to provide [him] with appropriate training on how to safely

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
and properly operate,” “failed to develop and implement proper
procedures for safe operation,” “failed to evaluate the repackaging
line to determine if the repackaging line was safe,” “failed to
classify the repackaging line as unsafe,” and “failed to implement
protocols to make the repackaging line safe.” (Dkt. No. 1-1 at 9).
McGovern further alleges that, on December 23, 2011, he was
performing his work, when, “as a result of the unsafe procedure for
operating the repackaging line [he] became injured on his right
side.”

Id. at 10.

result of

the

He claims that, as a direct and proximate

“actions,

omissions

and

conduct

of

[PPG],”

he

suffered physical injury, lost wages and benefits, and other
special damages. Id. at 11-12. McGovern asserts one count against
PPG under West Virginia’s “deliberate intention” statute, W. Va.
Code § 23-4-29(d)(2)(ii).
Although McGovern filed his claim in the Circuit Court of
Marshall County, West Virginia, PPG removed it on January 16, 2014.
In its notice of removal, PPG alleges that this Court possesses
diversity
§ 1332(a).
“upon

jurisdiction

over

the

case,

pursuant

to

28

U.S.C.

With regard to the amount in controversy, it asserts,

information

and

belief,

[McGovern]

seeks

in

excess

of

Seventy-Five Thousand Dollars ($75,000) in compensatory damages,
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MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
exclusive of interest and costs.”

(Dkt. No. 1 at 2).

Moreover,

PPG suggests that, “[b]ased on the nature of [McGovern’s] claims
and his requests for relief, it is more likely than not that the
amount in controversy exceeds the jurisdictional amount.”

Id. at

3.
On January 16, 2014, PPG filed a motion to dismiss McGovern’s
complaint for failure to state a claim upon which relief can be
granted.

Specifically, it argues that McGovern “does not identify

his injury or injuries, nor does he provide any facts regarding
[PPG’s] allegedly unsafe working condition.”

(Dkt. No. 2-1 at 2).

Although McGovern never responded to PPG’s motion to dismiss, on
February 14, 2014, he filed a motion to remand the case to the
Marshall

County

demonstrate

that

Circuit
the

Court,

amount

in

arguing

that

controversy

PPG

failed

to

requirement

is

satisfied.
The parties have had the opportunity of full briefing, and the
motions are ripe for review.

As it must, the Court turns first to

McGovern’s motion to remand.
II. MOTION TO REMAND
As the removing party, PPG bears the burden of demonstrating
that diversity jurisdiction is proper.
3

In re Blackwater Sec.

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
Consulting, LLC, 460 F.3d 576, 583 (4th Cir. 2006).

This requires

a showing of complete diversity between the parties and an amount
in controversy greater than $75,000.

See 28 U.S.C. § 1332(a); see

also Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200
(4th Cir. 2008) (explaining that, on removal, a defendant’s burden
of alleging diversity jurisdiction “is no greater than is required
to establish federal jurisdiction as alleged in a complaint”). The
parties do not dispute complete diversity.1

On the other hand,

McGovern argues that PPG has failed to demonstrate adequately that
the $75,000 threshold amount has been met.
To be sure, PPG’s notice of removal is not devoid of amount in
controversy allegations.

Indeed, PPG alleges that, based upon

“information and belief,” it has a “good-faith basis” to believe
the amount in controversy exceeds $75,000.

The question thus is

whether these allegations, together with the other pleadings,
support a finding of subject matter jurisdiction.

See Mullins v.

Harry’s Mobile Homes, Inc., 861 F. Supp. 22, 23 (S.D.W. Va. 1994)
(“[T]he court may look to the entire record before it and make an

1

McGovern is a West Virginia citizen and PPG is a Pennsylvania
corporation with its principal place of business in Pennsylvania.

4

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
independent evaluation as to whether or not the jurisdictional
amount is in issue.”).
McGovern’s

argument

that

PPG’s

amount

allegations are inadequate is unavailing.

in

controversy

In Ellenburg, the

defendants pled the following in their notice of removal:
The value of the matter in dispute in this case, upon
information and belief, exceeds the sum of Seventy Five
Thousand and No/100 ($75,000.00) Dollars, exclusive of
interest and costs, as it appears from the allegations
contained in Plaintiff’s Complaint. Defendants’ counsel
believes in good faith that the amount in controversy in
this case meets and exceeds the $75,000 limit required
for diversity jurisdiction.2
519 F.3d at 195. The district court, sua sponte, remanded the case
based on the notice of removal’s “inadequate” amount in controversy
allegations, and the defendants appealed.
that “the
sufficient

Notice
as

jurisdiction.”

a

of Removal’s
matter

of

The Fourth Circuit held

allegations
law

to

in

allege

this

case

subject

were

matter

Id. at 199.

PPG’s notice of removal contains allegations substantially
similar to, if not more specific than, those in Ellenburg:

2

Unlike McGovern, the plaintiff in Ellenburg sought punitive
damages. 519 F.3d at 195. However, the Fourth Circuit never mentioned
or relied on that fact in reversing the district court’s decision to
remand the case.

5

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
PPG Industries submits, upon information and belief, that
Plaintiff seeks in excess of Seventy-Five Thousand
Dollars ($75,000) in compensatory damages, exclusive of
interest and costs, as the amount in controversy is the
value of the underlying claim.
. . .
Although the Complaint does not request a sum certain,
Defendant has a good-faith basis to believe that the
matter in controversy, exclusive of interest and costs,
exceeds the sum or value of $75,000. In his Complaint,
Plaintiff
seeks recovery for
injuries
based on
allegations of deliberate intent, pursuant to W. Va. Code
§ 23-4-2(d)(2)(ii), suffered by him while performing work
at PPG Industries’ New Martinsville facility. . . .
Moreover, Plaintiff alleges, inter alia, that he: (1) has
suffered serious bodily injury, (2) was caused to miss
work resulting in lost wages and benefits, and (3) has
sustained other special damages. . . . Based on the
nature of Plaintiff’s claims and his requests for relief,
it is more likely than not that the amount in controversy
exceeds the jurisdictional amount set forth in 28 U.S.C.
§ 1332(a).
(Dkt. No. 1 at 2-3).

In light of this similarity, the Court cannot

reach a conclusion contrary to the Fourth Circuit’s holding in
Ellenburg.

Therefore, the Court finds that PPG’s allegations

demonstrate by a preponderance of the evidence that the amount in
controversy exceeds $75,000. See Streight v. State Farm Mut. Auto.
Ins. Co., No. 5:09CV106, 2009 WL 4066455, *1 (N.D.W. Va., Nov. 20,
2009) (“This Court has consistently applied the ‘preponderance of

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MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
the evidence’ standard to determine whether a defendant has met its
burden of proving the amount in controversy.”).
Nevertheless, McGovern also asserts that a discovery response
estops PPG from claiming that the amount in controversy exceeds
$75,000. Specifically, in Request for Admission #7, McGovern asked
PPG to admit that “McGovern’s injuries sustained as a result of
this unsafe condition created by the implementation of the new
drum/lid combination on the 3rd Line Repackaging Line in the CalHypo building exceeds Seventy Five Thousand Dollars $75,000.”
(Dkt. No. 7 at 21).
and

responded

that

PPG denied McGovern’s request for admission,
“[PPG]

does

not

believe

that

[McGovern]

sustained injuries exceeding $75,000, but [PPG] does have a good
faith belief that a jury could award [McGovern] at least $75,000
based

on

the

information

contained

in

the

Complaint.”

Id.

According to McGovern, PPG’s denial of the request for admission
precludes it from claiming that the amount in controversy exceeds
the jurisdictional threshold.
In support of this argument, McGovern relies exclusively on
Lewis v. Abbott Labs., 189 F. Supp. 2d 590 (S.D. Miss. 2001), in
which the plaintiff filed a claim in state court without alleging
a particular amount of damages.

Id. at 591.
7

The defendant served

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
requests for admission on the plaintiff, including an admission
that the damages sought did not exceed $75,000.

Id. at 591-92.

When the plaintiff did not respond within the permissible time
period, the

defendant

removed the

case

to the

United States

District Court for the Southern District of Mississippi, invoking
the court’s diversity jurisdiction.

Id. at 592.

The plaintiff

moved to remand the case, arguing that, under state discovery
rules, her failure to respond to the defendant’s request operated
as a per se admission that the damages sought did not exceed
$75,000.

Id.

The district court agreed and remanded the case.

Id. at 593-94.
McGovern’s comparison of Lewis to the instant case carries
little weight. Here, McGovern, as the plaintiff, requested an
admission from PPG, the defendant, that he had sustained damages in
excess of $75,000.

PPG timely responded to the request.

Thus,

this Court does not confront the situation presented in Lewis,
where a party’s failure to respond operates as an admission, and
what effect that admission has on the Court’s subject matter
jurisdiction.

Rather, the issue here is whether a defendant’s

refusal to admit that the plaintiff in fact sustained damages in

8

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
excess of $75,000 estops it from invoking the Court’s diversity
jurisdiction.
The reality of diversity-based removal is that nearly every
defendant
suffered

implicitly
damages

in

or

explicitly

excess

of

denies

$75,000,

that
while

the

plaintiff

simultaneously

alleging that a jury could award damages exceeding that amount.
This Court’s adoption of McGovern’s argument would require every
defendant invoking diversity jurisdiction on removal to concede
that the plaintiff actually suffered at least $75,000 in damages.
The Court has no authority to apply such a rule and therefore
rejects McGovern’s argument.3
Finally, McGovern suggests that PPG has sole possession of his
medical bills and information on lost wages, and that its failure
to attach that documentation to its notice of removal demonstrates
that McGovern cannot recover in excess of $75,000.
that it

possesses

all

of

McGovern’s

3

medical

PPG disputes

bills

and

other

It is worth noting that McGovern is largely responsible for
allowing PPG the opportunity to remove his complaint. The United States
Supreme Court permits plaintiffs to block removal by “suing for less than
the jurisdictional amount.” St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 294 (1938).
Many other courts enforce a plaintiff’s
binding, pre-removal stipulation that he will not seek or accept an award
greater than $75,000. See, e.g., McCoy v. Erie Ins. Co., 147 F. Supp.
2d 481, 486 (S.D.W. Va. 2001). McGovern took none of these precautions.

9

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
documentation. Regardless, the law does not require a defendant to
produce documentation supporting amount in controversy allegations.
As previously discussed, the standard of proof required for a
defendant on removal is the same standard applied to a plaintiff’s
jurisdictional allegations in an initial complaint. See Ellenburg,
519 F.3d at 200.
Therefore, just as a plaintiff’s complaint sufficiently
establishes diversity jurisdiction if it alleges that the
parties are of diverse citizenship and that “[t]he matter
in controversy exceeds, exclusive of interest and costs,
the sum specified by 28 U.S.C. § 1332,” see Fed. R. Civ.
P. 84; Fed. R. Civ. P. app. Form 2(a), so too does a
removing party’s notice of removal sufficiently establish
jurisdictional
grounds
of
removal
by
making
jurisdictional allegations in the same manner.
Id.

This Court therefore has no basis on which to require PPG to

submit documentation in support of its assertion of diversity
jurisdiction.
III. MOTION TO DISMISS
Having found no basis upon which to grant McGovern’s motion to
remand, the Court turns next to PPG’s motion to dismiss the
complaint on the basis that McGovern failed to allege sufficient
facts to support his deliberate intent claim.

10

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
A. Standard of Review
In reviewing the sufficiency of a complaint, a district court
“‘must accept as true all of the factual allegations contained in
the complaint.’”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188

(4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89, 94
(2007)). However, while a complaint does not need detailed factual
allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Indeed, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265,
286 (1986).
In considering whether the facts alleged are sufficient, “a
complaint must contain ‘enough facts to state a claim to relief
that is plausible on its face.’”
(quoting

Twombly,

550

U.S.

at

Anderson, 508 F.3d at 188

547).

“A

claim

has

facial

plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”

11

Ashcroft v. Iqbal, 556 U.S.

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
662, 678 (2009). This requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id.

B. The Deliberate Intention Statute
The West Virginia Workers’ Compensation Act generally provides
broad immunity to qualifying employers against employees’ tort
actions.

See § 23-2-6.

However, the “deliberate intention”

statute carves out an exception to that immunity and allows an
employee to recover damages from an employer in a deliberate intent
case by proving the following five elements:
(A) That a specific unsafe working condition existed in
the workplace which presented a high degree of risk and
a strong probability of serious injury or death;
(B) That the employer, prior to the injury, had actual
knowledge of the existence of the specific unsafe working
condition and of the high degree of risk and the strong
probability of serious injury or death presented by the
specific unsafe working condition;
(C) That the specific unsafe working condition was a
violation of a state or federal safety statute, rule or
regulation, whether cited or not, or of a commonly
accepted and well-known safety standard within the
industry or business of the employer, as demonstrated by
competent evidence of written standards or guidelines
which reflect a consensus safety standard in the industry
or business, which statute, rule, regulation or standard
was specifically applicable to the particular work and
working condition involved, as contrasted with a statute,
rule, regulation or standard generally requiring safe
workplaces, equipment or working conditions;
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MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
(D) That notwithstanding the existence of the facts set
forth in subparagraphs (A) through (C), inclusive, of
this paragraph, the employer nevertheless intentionally
thereafter exposed an employee to the specific unsafe
working condition; and
(E)
That
the
employee
exposed suffered
serious
compensable injury or compensable death as defined in
section one, article four, chapter twenty-three whether
a claim for benefits under this chapter is filed or not
as a direct and proximate result of the specific unsafe
working condition.
§ 23-4-2(d)(2)(ii)(A)-(E); see also Syl. Pt. 2, Helmick v. Potomac
Edison Co., 406 S.E.2d 700, 702 (W. Va. 1991) (“To establish
‘deliberate intention’ in an action under [W. Va. Code § 23-42(d)(2)(ii)], a plaintiff or cross-claimant must offer evidence to
prove each of the five specific statutory requirements.”).
Here, McGovern has failed to plead several elements of a
deliberate intent cause of action.

He alleges that PPG failed to

provide a safe work environment, failed to train him properly,
failed to conduct a job safety analysis, and failed to implement
proper protocols and procedures.

Although these allegations might

suffice as to the unsafe working condition, the complaint does not
plausibly allege that the unsafe condition posed any degree of risk
or probable injury, both of which are required under element (A).
Moreover,

the

Court

cannot

infer

13

any

significant

risk

or

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
probability of injury.

McGovern’s job requires him to affix lids

to buckets, which is not an inherently dangerous task.

The

allegation of some failure by a defendant, even when combined with
the recitation of element (A), does not automatically result in any
risk or probability of injury.

These additional parts of the

statute must find some factual support in the complaint, which,
here, they do not.
Element (B) builds on the preceding element by requiring the
employer’s actual knowledge of the unsafe condition, the high
degree of risk, and the strong probability of serious injury.
McGovern’s failure to allege sufficiently any degree of risk or any
probability of serious injury precludes the possibility of PPG’s
actual knowledge.

In Miller v. BAS Technical Employment, the

plaintiff alleged that her late husband’s employer had failed to
provide site-specific training and failed to comply with applicable
OSHA regulations. Nevertheless, the district court determined that
“there is no possibility she could establish a deliberate-intention
claim” because, under element (B), “she has failed conclusively to
make

any

showing

of

.

.

.

a

subjective

realization

and

an

appreciation of the existence of . . . the high degree of risk and

14

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
the strong probability of serious injury.”

153 F. Supp. 2d 835,

838 (S.D.W. Va. 2001) (emphasis added).
Finally, the allegations in McGovern’s complaint provide no
factual support for a claim of serious compensable injury or
proximate cause, as required by element (E). McGovern asserts that
“[o]n or about December 23, 2011 [he] was working on the ‘3rd line
repackaging line’ in the ‘Cal-Hypo’ building when as a result of
the unsafe procedure for operating the repackaging line [he] became
injured on his right side.”

(Dkt. No. 1-1 at 10).

He offers no

further details of his “right side injury” or the cause of the
purported injury.

Without any factual support, these allegations

do not rise to the level of plausibility required under the federal
pleading standards.

The Court can do no more than speculate that

PPG’s purported failures created an unsafe working condition that
somehow proximately caused an injury to McGovern’s right side.
IV. CONCLUSION
For the reasons discussed, the Court DENIES McGovern’s motion
to remand, GRANTS PPG’s motion to dismiss, and DISMISSES this case
WITHOUT PREJUDICE.

15

MCGOVERN V. PPG INDUSTRIES, INC.

5:14CV6

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S
MOTION TO REMAND, GRANTING DEFENDANT’S MOTION TO DISMISS
AND DISMISSING THE CASE WITHOUT PREJUDICE
It is so ORDERED.
The Court directs the Clerk to transmit copies of this order
to counsel or record.
DATED: April 11, 2014.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

16