Cartwright et al v. Superior Well Services, Inc. et al

Filing 17

MEMORANDUM OPINION AND ORDER granting defendant William's 4 MOTION to Dismiss him as a defendant in this case; denying Plaintiffs Randall and Jamie Cartwrights' 8 MOTION to Remand to Circuit Court. Signed by Judge David A. Faber on 9/28/2011. (cc: counsel of record) (mjp)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
RANDALL CARTWRIGHT, et al.
Plaintiffs,
v.

Civil Action No.: 1:11-cv-00298

SUPERIOR WELL SERVICES, INC.,
et al.
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court is defendant Darrell Williams’ (“Williams”)
motion to dismiss (Doc. # 4).

Also before the court is

Plaintiffs Randall and Jamie Cartwrights’ (“Cartwright”) motion
to remand (Doc. # 8).

For reasons more fully expressed herein,

the court GRANTS Mr. Williams’ motion to dismiss and DENIES the
plaintiffs’ motion to remand.
I. Factual and Procedural Background
Plaintiffs sued Superior Well Services, Inc. (“Superior
Well”) and Mr. Williams for a work-site injury arising out of a
choke valve explosion occurring on December 2008.
was the individual injured.
allege

Mr. Cartwright

In their Complaint, the Cartwrights

that Superior Well and Mr. Williams acted with deliberate

intent in exposing Mr. Cartwright to the unsafe choke valve.
Plaintiffs bring their deliberate intent claim pursuant to W. Va.
Code § 23-4-2(d)(2)(ii).

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The plaintiffs initially filed this suit in West Virginia
state court, and the defendants removed the case to federal court
on May 2, 2011, on the basis of diversity jurisdiction.

The

plaintiffs are citizens of Virginia; defendant Superior Well is a
citizen of Pennsylvania; and defendant Mr. Williams is a citizen
of West Virginia.

Complaint, attached as Exhibit 1 to Notice of

Removal (Doc. # 1), p. 1.
Following removal of the suit, Mr. Williams filed the
instant motion to dismiss, arguing that, under this court’s
precedent interpreting the West Virginia deliberate intent
statute, an injured plaintiff cannot bring a deliberate intent
claim against an individual supervisor.

In support of his

argument, Mr. Williams cites this court’s opinion in King v.
Sears, No. 1:10-1024, 2011 U.S. Dist. LEXIS 14578 (S.D.W. Va.
Feb. 14, 2011), as well as another Southern District of West
Virginia decision, Evans v. CDX Servs. LLC, 528 F. Supp. 2d 599
(S.D.W. Va. 2007).
In response, plaintiffs acknowledge the foregoing authority
establishing that an individual supervisor cannot be sued under
the West Virginia deliberate intent statute.

They argue,

however, that these cases were wrongly decided and should now be
reconsidered.

Plaintiffs also filed a motion to remand.

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II. Analysis
Plaintiffs’ motion to remand
The court is puzzled as to the basis for the plaintiffs’
motion to remand.

Defendants removed this case on the basis of

diversity jurisdiction.

The parties in this case, as represented

to the court by the plaintiffs, have complete diversity of
citizenship.

The plaintiffs are citizens of Virginia; defendant

Superior Well is a citizen of Pennsylvania; and defendant Mr.
Williams is a citizen of West Virginia.

Complaint, attached as

Exhibit 1 to Notice of Removal (Doc. # 1), p. 1.

Defendants have

presented no evidence or argument to controvert these assertions,
and plaintiffs have failed to advance any other theory for why
this court does not have subject matter jurisdiction over the
matter.
The defendants’ and plaintiffs’ discussion of fraudulent
joinder in this case appears equally puzzling, given that there
is no reason to suspect fraudulent joinder with respect to Mr.
Williams.

Doc. # 1, pp. 2-4.

The doctrine of fraudulent joinder

permits a federal court to disregard the citizenship of a nondiverse defendant, when it is clear that the plaintiff joined
that defendant for the sole purpose of defeating complete
diversity among the parties.

Evans, 528 F. Supp. 2d, at 602.

this case, it is evident that plaintiffs could not have

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In

fraudulently joined Mr. Williams for one simple reason: Mr.
Williams is a diverse party.

He is a citizen of West Virginia,

and as such, does not share citizenship with plaintiffs who are
Virginia citizens.
In view of the fact that all parties are diverse (a fact
which neither the defendants, nor the plaintiffs dispute), and
because plaintiffs advance no other basis for remand, the court
retains jurisdiction of the case.
Defendant Mr. Williams’ motion to dismiss
In order to survive a motion to dismiss, "a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."

Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009).
This court has previously determined that a plaintiff may
not sue an individual supervisor under West Virginia’s deliberate
intent statute, W. Va. Code § 23-4-2(d)(2)(ii).

In King v.

Sears, this court stated the following:
Having considered the well-reasoned arguments
in Evans, this court concludes that the text
of § 23-4-2(d)(2)(ii) does not permit a suit
by an injured employee against an individual
supervisor. It appears to the court that the
West Virginia state legislature intentionally
used different terminology to introduce the
provisions of the two different sections of
the deliberate intention statute. Further,
the court believes that this decision
reflects the state legislature's intention to
distinguish which defendants it would permit
suit against under one section, but not the
other. The court is confident that its
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reading of the statute accords with West
Virginia's policy of punishing egregious
employer behavior, while at the same time
protecting those in supervisory roles who
cannot fairly be said to have done anything
wrong.
King, 2011 U.S. Dist. LEXIS 14578, at *10-11; see also Evans, 528
F. Supp. 2d, at 602 (discussing the impermissibility of
deliberate intent actions under W. Va. Code § 23-4-2(d)(2)(ii)
against individual supervisors).

The validity of this

interpretation has been confirmed since the King case by Hager v.
Cowin and Co., Inc., No. 2:10-1138, 2011 WL 2175075, at *3-4
(S.D.W. Va. June 3, 2011).
The court today reaffirms its decision in King v. Sears and
declines to reverse its prior interpretation of the West Virginia
deliberate intent statute.

Plaintiffs have failed to provide

citation to authority from the West Virginia Supreme Court of
Appeals showing conclusively that a deliberate intent cause of
action can in fact be maintained against an individual supervisor
in West Virginia state court.

Plaintiffs cite to a case from the

West Virginia Supreme Court of Appeals, Bennett v. Buckner, 150
W. Va. 648 (1966), for the proposition that the West Virginia
state legislature intended for the scope of immunity affecting
employers and employees to be identical.

From this premise,

plaintiffs assert that the scope of liability for deliberate
intent cases should also be the same.

Such a conclusion is not

necessarily warranted, however, especially in light of the
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specific, and differentiated language that the West Virginia
state legislature used in drafting the various provisions of W.
Va. Code § 23-4-2(d)(2).

Further, while the plaintiffs point to

cases from lower courts in West Virginia, the court is not
persuaded that these cases resolve the question conclusively.
IV. Conclusion
In view of the foregoing, the court finds that plaintiff
cannot maintain a deliberate intent cause of action under W. Va.
Code § 23-4-2(d)(2)(ii) against Mr. Williams, and accordingly
GRANTS the motion to dismiss Mr. Williams as a defendant in this
case.

The court DENIES the plaintiffs’ motion to remand.
The Clerk is directed to forward a copy of this Memorandum

Opinion and Order to all counsel of record.
It is SO ORDERED this 28th day of September, 2011.
ENTER:

David A. Faber
Senior United States District Judge

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