Hedrick v. E. I. du Pont de Nemours and Company, et. al.

Filing 94

MEMEORANDUM OPINION AND ORDER denying as moot plaintiffs' 18 SURREPLY TO DEFENDANT RALPH EWING'S 4 MOTION TO DISMISS AND ALTERNATIVE MOTION TO AMEND COMPLAINT inasmuch as the plaintiffs have since stipulated to the dismissal of all clai ms against defendant Ewing; granting defendant du Pont's 82 MOTION Deem Defendant Ralph Ewing's 4 MOTION to Dismiss as Moot; denying as moot defendant Ewing's 4 Motion to Dismiss for Failure to State a Claim; denying plaintiffs' 7 MOTION to Remand Case to Circuit Court of Kanawha County. Signed by Judge John T. Copenhaver, Jr. on 6/3/2013. (cc: attys; any unrepresented parties) (tmh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
KEVIN HEDRICK and
SARAH HEDRICK,
Plaintiffs,
v.

Civil Action No. 2:12-06135

E.I. DU PONT DE NEMOURS AND COMPANY,
a Delaware corporation doing
business in West Virginia and
RALPH EWING,
individually,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is the plaintiffs’ motion to remand, filed October
11, 2012.
I.

Factual and Procedural Background

In the fall of 2011, plaintiff Kevin Hedrick was employed as
a “maintenance/mechanic worker” by defendant E.I. du Pont de Nemours
and Company at its Belle, West Virginia chemical plant.
6.

Compl. ¶¶ 3,

At the time, defendant Ralph Ewing served as the process supervisor

for the Belle facility’s dimethyl sulfate unit.

Id. ¶ 5.

Both

plaintiffs, Kevin and Sarah Hedrick, as well as defendant Ralph Ewing,
are residents of West Virginia.

Id. ¶¶ 1, 5.

On September 26, 2011,

during scheduled maintenance of the unit, chemical waste was combined
with water, resulting in the release of toxic vapors.

Id. ¶ 8.

The

fumes enveloped the plaintiff, causing contact and inhalation injuries
severe enough to warrant a five-day hospital stay.

Id.

The plaintiff filed suit in the Circuit Court of Kanawha
County, West Virginia, on September 6, 2012.

The complaint asserts

claims against the corporate and individual defendants for deliberate
intention, as defined by W. Va. Code § 23-4-2.
On October 2, 2012, the defendants removed.

Removal of civil

actions brought in state courts is permitted only if federal district
courts are vested with original jurisdiction over the relevant subject
matter.

28 U.S.C. § 1441(a).

Original jurisdiction exists over “all

civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between . . . citizens
of different States.”

Id. § 1332(a)(1).

In this case, although the

complaint does not request a particular sum, it is undisputed that the
plaintiffs’ potential recovery exceeds the jurisdictional minimum given
the extent of Kevin Hedrick’s injuries.

See Notice of Removal 4-6.

The

plaintiffs do, however, raise two distinct challenges to the exercise
of federal jurisdiction.
II.

Analysis

In moving to remand, the plaintiffs allege that complete
diversity does not exist between the parties.
Pls.’ Mot. to Remand (“Pls.’ Mem.”) 2-3.

Memorandum in Supp. of

They also contend that the

removal of deliberate intention claims is barred by federal statute.
Id. at 4.
1.

Diversity of Citizenship
The plaintiffs first argue that no diversity jurisdiction

exists because they, like defendant Ewing, are citizens of West
Virginia.

Id. at 2-3.

The defendants respond that Ewing was

fraudulently joined, as the complaint does not properly assert a cause
of action for deliberate intention against him.
The exercise of original jurisdiction pursuant to 29 U.S.C.
§ 1332(a), or diversity jurisdiction, requires the opposing parties to
be citizens of different states.

28 U.S.C. § 1332(a)(1).

2

Although

diversity of citizenship must generally be complete, see Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806), the court may disregard
the citizenship of a defendant fraudulently joined, Mayes v. Rapoport,
198 F.3d 457, 461 (4th Cir. 1999) (citing Cobb v. Delta Exps., Inc.,
186 F.3d 675, 677-78 (5th Cir. 1999)).

To invoke the doctrine of

fraudulent joinder, and permit removal despite the inclusion of a
non-diverse defendant,
the removing party must establish either: [t]hat there is no
possibility that the plaintiff would be able to establish a
cause of action against the in-state defendant in state
court; or [t]hat there has been outright fraud in the
plaintiff's pleading of jurisdictional facts.
Id. at 464 (emphasis in original) (quoting Marshall v. Manville Sales
Corp., 6 F.3d 229, 232 (4th Cir. 1993)).

The court should resolve all

issues of law and fact in favor of the plaintiff, placing a “heavy burden”
on the party alleging fraudulent joinder.

Hartley v. CSX Transp., Inc.,

187 F.3d 422, 424 (4th Cir. 1999).
In this case, the defendants make no allegations of outright
fraud, arguing instead that the sole claim asserted against the
non-diverse defendant, deliberate intention, cannot succeed.
Under West Virginia law, employers contributing to the state
workers’ compensation fund and their employees are immune from suits
predicated upon the injury or death of an employee.
23-2-6, 6a.

W. Va. Code. §§

That immunity is lost, however, “if the employer or person

against whom liability is asserted acted with ‘deliberate intention.’”
Id. § 23-4-2(d)(2).

The statute sets forth two distinct methods of

establishing deliberate intention:
(i) It is proved that the employer or person against whom
liability is asserted acted with a consciously, subjectively
and deliberately formed intention to produce the specific
result of injury or death to an employee. This standard
requires a showing of an actual, specific intent and may not
be satisfied by allegation or proof of:

3

(A) Conduct which produces a result that was not
specifically intended;
(B) conduct which constitutes negligence, no matter how
gross or aggravated; or
(C) willful, wanton or reckless misconduct; or
(ii) The trier of fact determines, either through specific
findings of fact made by the court in a trial without a jury,
or through special interrogatories to the jury in a jury
trial, that all of the following facts are proven:
(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;
(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.
Id.
Importantly, subsection (ii) is applicable only to
employers, rendering subsection (i) the sole method of
establishing a deliberate intention claim against a co-employee,

4

such as defendant Ewing.

Adkins v. Consolidation Coal Co., 856

F. Supp. 2d 817, 824 (S.D. W. Va. 2012) (Copenhaver, J.) (“The court
concludes that employee immunity may be lost under section 23–4–
2(d)(2)(i), but not under section 23–4–2(d)(2)(ii).”); Evans v.
CDX Servs., LLC, 528 F. Supp. 2d 599, 605 (S.D. W. Va. 2007)
(Johnston, J.) (“This Court disagrees with the Weekly court's
conclusion that deliberate intent claims can be maintained against
co-employees under § 23-4-2(d)(2)(ii).”).

Contra Weekly v. Olin

Corp., 681 F. Supp. 346, 352 (N.D. W. Va. 1987) (Kaufman, J.,
visiting judge) (“In the absence of any relevant West Virginia
caselaw on point, this Court concludes that section 23–4–
2(c)(2)(ii) applies to co-employees.”).
In this case, the complaint alleges that defendant Ewing
“intentionally . . . exposed Kevin Hedrick to the specific unsafe
working condition.”

Compl. ¶ 25.

The plaintiffs do not assert,

though, that defendant Ewing acted with a “consciously,
subjectively and deliberately formed intention to produce the
specific result of injury or death,” as required by W. Va. Code
§ 23-4-2(d)(2)(i).

See Compl. ¶¶ 21-26.

The pleadings contain

no additional facts supporting the inference that defendant Ewing
intended to injure or kill plaintiff Kevin Hedrick.

Consequently,

the court concludes that there is no possibility of the claim
against defendant Ewing succeeding as pled.
It is noted that the plaintiffs, both in reply to the
defendants’ response to their motion to remand and in a combined
surreply and alternative motion to amend, filed November 15, 2012,
in response to defendant Ewing’s motion to dismiss, requested the
opportunity to amend their complaint to allege a § 23-4-2(d)(2)(i)
specific intent claim against Ewing.

Pls.’ Reply to Defs.’ Joint

Resp. (“Pls.’ Reply”) 3; Pls.’ Surreply to Def. Ralph Ewing’s Mot.
to Dismiss and Alternative Mot. to Am. Compl. 2-3.

The court need

not consider the putative motion to amend, which is hereby ORDERED

5

denied as moot, inasmuch as the plaintiffs have since stipulated
to the dismissal of all claims against defendant Ewing.1
Stipulation of Dismissal, Apr. 8, 2013.

See

As a result, defendant

du Pont’s motion, filed May 8, 2013, to deem defendant Ewing’s
motion to dismiss, filed October 9, 2012, as moot is ORDERED granted
and defendant Ewing’s motion to dismiss is ORDERED denied as moot.
2.

Statutory Bar
The plaintiffs next contend that the federal statutes

governing removal prohibit the court from asserting jurisdiction over
matters arising under the workmen’s compensation laws of West Virginia.
Pls.’ Mem. 4.

The defendants respond that the Fourth Circuit has

already refuted that very argument.
Civil actions brought in state court that arise “under the
workmen’s compensation laws of such State may not be removed to any
district court of the United States.”

28 U.S.C. § 1445(c).

The

deliberate intention cause of action codified by W. Va. Code § 23-4-2,
It is uncertain whether a stipulation pursuant to Federal Rule of Civil
Procedure 41(a)(1)(A)(ii) is the proper mechanism for dismissing a single
party, or whether the rule merely permits stipulated dismissal of the entire
“action.” See 9 Charles Alan Wright et al., Federal Practice and Procedure
§ 2362 (3d ed. supp. 2013). Although the U.S. Court of Appeals for the
Fourth Circuit appears to favor the more restrictive interpretation, see
Skinner v. First Am. Bank of Va., 64 F.3d 659 (4th Cir. 1995) (unpublished
disposition) (holding that the dismissal of fewer than all claims asserted
against the sole named defendant should proceed under Rule 15(a), rather
than Rule 41, “[b]ecause Rule 41 provides for the dismissal of actions,
rather than claims”), it has not addressed the question directly. Several
lower courts under the purview of the Fourth Circuit have nullified
stipulations purporting to dismiss individual parties, directing the
plaintiffs to move for leave to amend the complaint under the auspices of
Rule 15(a). See Volvo Trademark Holding Aktiebolaget v. AIS Constr. Equip.
Corp., 162 F. Supp. 2d 465, 472 (W.D.N.C. 2001) (adopting the conclusions
of the U.S. magistrate judge); see also Keck v. Virginia, No. 3:10cv555,
2011 WL 2708357, at *3 (E.D. Va. July 12, 2011) (Lauck, Magistrate J.).
In view, however, of the court’s determination that no claim has been stated
against the defendant Ewing, coupled with the parties’ stipulation
dismissing him, the court in this instance accepts the stipulation.
1

6

however, is not considered to arise under West Virginia workmen’s
compensation laws for the limited purpose of determining federal
jurisdiction.2

Arthur v. E.I. du Pont de Nemours & Co., Inc., 58 F.3d

121, 128 (4th Cir. 1995).3

28 U.S.C. § 1445(c) is thus inapplicable.
III.

Conclusion

Accordingly, the plaintiffs’ motion to remand is denied.
The Clerk is requested to transmit this opinion and order to
all counsel of record and to any unrepresented parties.
DATED:

June 3, 2013

John T. Copenhaver, Jr.
United States District Judge

2

The Supreme Court of Appeals of West Virginia has concluded otherwise,
interpreting the statutes that authorize deliberate intention claims as
integrated with the Workers’ Compensation Act. See Bell v. Vecellio &
Grogan, Inc., 475 S.E.2d 138, 144 (W. Va. 1996). Yet, in the same opinion,
the Supreme Court of Appeals recognized that federal courts may define the
contours of federal statutes and the scope of federal jurisdiction
“irrespective of local law.” Id.
3

The plaintiffs’ motion to remand makes vague reference to “conflicting
decisions from the federal system” but fails to cite Arthur. Pls.’ Mem.
4.

7