United States District Court, N.D. West Virginia, Martinsburg
MELVIN WASHINGTON and DEBORAH JEAN BRODE, his wife, Plaintiffs,
OX PAPERBOARD, LLC, a West Virginia limited liability Company and JOHN DOES 1 through 10, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING THE
DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' AMENDED
M. GROH, CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
Standard of Review
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,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal quotation marks omitted).
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).
West Virginia's Deliberate Intention Statute
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). 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).
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 ...