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Washington v. Ox Paperboard, LLC

United States District Court, N.D. West Virginia, Martinsburg

August 31, 2017

OX PAPERBOARD, LLC, a West Virginia limited liability Company and JOHN DOES 1 through 10, Defendants.



         Currently before the Court is Defendant Ox Paperboard, LLC's Motion to Dismiss Amended Complaint, filed on June 6, 2017. ECF No. 7. On June 18, 2017, Plaintiffs Melvin Washington and Deborah Jean Brode filed a Response in Opposition to the Defendant's Motion. ECF No. 8. The Defendant filed a Reply on June 20, 2017. ECF No. 9. Accordingly, this issue is now ripe for the Court's consideration, and for the following reasons, The Defendant's motion shall be GRANTED.

         I. Introduction

         Ox Paperboard, LLC (“Defendant”) removed this matter from the Circuit Court of Jefferson County, West Virginia, on April 28, 2017. ECF No. 1. On May 3, 2017, the Defendant filed a motion to dismiss [ECF No. 3]; however, Melvin Washington and Deborah Jean Brode (“Plaintiffs”) filed an amended complaint on May 23, 2017. ECF No. 5. Thereafter, the Defendant filed the instant motion to dismiss Plaintiffs' amended complaint.

         II. Background

         Plaintiffs' complaint contains two counts, alleging “deliberate exposure” by the Defendant and negligence by John Does one through ten. Both counts arise out of the same set of facts. Plaintiff Washington, during the course of his employment at the Defendant's Halltown, West Virginia, facility, was transporting large rolls of paper measuring seventy inches tall by five inches wide and weighing over three hundred pounds. He sustained serious injuries while transporting these rolls when several of them fell off the “skateboard” he was using to transport them.

         Plaintiffs aver that the Defendant deliberately exposed Mr. Washington to an unsafe working condition, which presented a high degree of risk and a strong probability of serious injury or death pursuant to West Virginia Code § 23-4-2(d)(2)(ii). Further, Plaintiffs argue that John Does one through ten are unknown parties who may also be liable for their injuries. Specifically, John Does one through ten are any parties who provided services to the Defendant, including consulting, training, maintaining or supervising the procedures and processes regarding the transportation of large rolls of paper within the Defendant's facility.

         The Defendant contends that it is not liable under West Virginia Code § 23-4-2(d)(2)(ii) because Plaintiffs have failed to adequately plead the requisite elements. The Defendant argues that because Plaintiffs have failed to establish the five elements required by the statute, West Virginia's workers' compensation scheme imposes a legal bar to Plaintiffs' claim. Moreover, the Defendant argues that Plaintiffs' claims against John Does one through ten must also fail as a matter of law.

         III. Standard of Review

         “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). When reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must assume all of the allegations to be true, must resolve all doubts and inferences in favor of the plaintiff and must view the allegations in a light most favorable to the plaintiff. See Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). But a complaint must be dismissed if it does not allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To that end, Federal Rule of Civil Procedure 8 articulates a pleading standard which “does not require detailed factual allegations, but . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation and internal quotation marks omitted).

         A complaint that offers “labels and conclusions or a formulaic recitation of the elements of a cause of action will not do.” Id. (citation and internal quotation marks omitted). Likewise, a complaint that tenders only “naked assertion[s] devoid of further factual enhancement” does not suffice. Id. (alteration in original) (citation and internal quotation marks omitted). A party is required to articulate facts that, when accepted as true, “show” he is plausibly entitled to relief. Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citing Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged- but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2)). When reviewing a complaint's sufficiency under Rule 12(b)(6), a court may consider “documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

         IV. West Virginia's Deliberate Intention Statute

         West Virginia Code § 23-2-6 of the West Virginia Workers' Compensation Act is “the exclusive remedy as against an employer for workplace injuries or death and provides general immunity from suit for such injuries or death to qualifying employers.” Young v. Apogee Coal Company, 753 S.E.2d 52, 55 ( W.Va. 2013). There is no immunity under the Act, however, “if the employer or person against whom liability is asserted acted with ‘deliberate intention.'” W.Va. Code § 23-4-2(d)(2).[1] The Act “is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee.” W.Va. Code § 23-4-2(d)(1). An employer's immunity from tort liability “may be lost only if the employer or person against whom liability is asserted acted with ‘deliberate intention.'” W.Va.Code § 23-4-2(d)(2). Under the exception, an employee may recover damages in excess of those received under the workers' compensation scheme. Mayles v. Shoney's, Inc., 405 S.E.2d 15, 18 ( W.Va. 1990).

         Section 23-4-2(d)(2)(ii) sets forth one method for proving deliberate intent. Syl. Pt. 3, Young, 753 S.E.2d at 54. To succeed on a claim under subsection ...

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