United States District Court, S.D. West Virginia, Charleston Division
JESS W. FELTNER, JR., Plaintiff,
CONSOL OF KENTUCKY, INC., et al., Defendants.
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, CHIEF JUDGE.
before the Court is Plaintiff Jess W. Feltner's
(“Feltner”) Motion to Remand, (ECF No. 7), and
Defendant Consol Energy, Inc.'s (“CEI”)
motion to dismiss. (ECF No. 5.) For the reasons discussed
more fully below, the Court DENIES
Feltner's motion to remand. (ECF No. 7.) The Court
further GRANTS CEI's motion to dismiss
and DISMISSES Count II of the Complaint.
(ECF No. 5.)
time prior to August 4, 2015, Feltner was hired by Defendant
CONSOL of Kentucky, Inc. (“COK”), CEI's
subsidiary, as an equipment operator to haul rock at the Twin
Branch surface mine in Mingo County, West Virginia. (ECF No.
7-3 at ¶ 6; see also ECF No. 6 at 7.)
Feltner's position required him to operate a CAT 789
mining truck that Feltner alleges was owned by CEI. (See
Id. at ¶¶ 14, 20.) Feltner alleges that the
mining truck's access ladder was defective and not
properly maintained. (See Id. at ¶¶ 14.)
August, 4, 2015, Feltner was injured while climbing the
access ladder on the mining truck. (See ECF No. 8 at
1.) The second rung of the access ladder failed, causing
Feltner to fall. (See id.) During the fall, Feltner
attempted to grab the access ladder with both hands, but was
only successful with his right hand. (See id.) As a
result, Feltner states that he felt a pull in his right arm
and severe pain shoot down his right hip and leg. (See
id.) Feltner alleges that he suffered severe and
permanent injuries. (See id.)
filed the present action on July 31, 2017 in the Circuit
Court of Mingo County, West Virginia, against COK and CEI.
(See ECF No. 1-1.) Plaintiff, however, did not
immediately serve his Complaint because, statutorily, he had
to wait for a final award on his workers' compensation
claim. (See ECF No. 8 at 2.) On October 18, 2017,
Plaintiff received a final award from the State of West
Virginia Workers' Compensation Office of Judges.
(See ECF No. 7-2.) COK had thirty days to appeal the
order. (See id.) On November 22, 2017, having
received no notice of an appeal by COK, Plaintiff filed an
Amended Complaint which alleged the following two counts:
deliberate intent under West Virginia Code §
23-4-2(d)(2)(B) against COK (Count I) and negligence against
CEI (Count II). (See ECF No. 7-3.)
timely removed the instant action to this Court on December
27, 2017. (ECF No. 1.) On January 2, 2018, CEI filed the
present motion to dismiss Count II of the Complaint. (ECF No.
5.) Feltner timely responded to CEI's motion, (ECF No.
9), and CEI timely replied. (ECF No. 10.) On January 16,
2018, Feltner filed the present motion to remand, (ECF No. 7)
to which CEI timely responded, (ECF No. 12), and Feltner
timely replied. (ECF No. 13.) As such, both motions are fully
briefed and ripe for adjudication.
motion is governed by different standards, the Court will
address each motion separately. Because the Court must first
determine whether it has jurisdiction over the instant
action, the Court will address Feltner's motion to remand
before turning to CEI's motion to dismiss.
MOTION TO REMAND
motion to remand, Feltner argues that the 2015 Amendments to
the West Virginia deliberate intent statute bar the removal
of deliberate intention actions. (See ECF No. 8 at
8-12.) Specifically, Feltner argues that the 2015
Amendments' requirement that a plaintiff asserting a
deliberate intent claim demonstrate that “a total whole
person impairment level of at least thirteen percent as a
final award in the employees workers' compensation
claim” deviates from the common law, thus making
deliberate intent claims an integral part of the workers'
compensation scheme. (See Id. at 10.)
defendant may remove any action from a state court to a
federal court if the case could have originally been brought
in federal court.” Yarnevic v. Brink's,
Inc., 102 F.3d 753, 754 (4th Cir.1996) (citing 28 U.S.C.
§ 1441). “The district courts shall have original
jurisdiction of 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.” 28 U.S.C. § 1332(a)(1).
party asserting federal jurisdiction bears the burden of
proving federal jurisdiction by a preponderance of the
evidence. Landmark Corp. v. Apogee Coal Co., 945
F.Supp. 932, 935 (S.D. W.Va. 1996). Because removal of civil
cases from state to federal court infringes on state
sovereignty, federal courts strictly construe the removal
statute and resolve all doubts in favor of remanding cases to
state court. See Shamrock Oil & Gas Corp. v.
Sheets, 313 U.S. 100, 109 (1941); see also Mulcahey
v. Columbia Organic Chems. Co., 29 F.3d 148, 151 (4th
Cir. 1994) (“Because removal jurisdiction raises
significant federalism concerns, we must strictly construe
removal jurisdiction.” (citation omitted)).
28 U.S.C. § 1445(c), “[a] civil action in any
State court arising under the workmen's compensation laws
of such State may not be removed to any district court of the
United States.” In Arthur v. E.I. DuPont de Nemours
&Co., the Fourth Circuit addressed whether §
1445(c) bars removal of West Virginia deliberate intention
claims. See 58 F.2d 121 (4th Cir. 1995). In
resolving this issue, the Fourth Circuit first defined
“workmen's compensation laws” as “a
statutorily created insurance system that allows employees to
receive fixed benefits, without regard to fault, for
work-related injuries.” Id. at 125.
Court next examined the history of deliberate intention
claims in West Virginia to determine whether deliberate
intent arise under workers' compensation law within the
meaning of § 1445(c). See Id. at 125. In
reviewing this history, the court observed that these claims
are rooted in the West Virginia's Supreme Court of
Appeal's decision in Mandolidis v. Elkins Industries,
Inc., 246 S.E.2d 907 (W.Va. 1978). See Arthur,
58 F.3d at 123. The Court further noted that, following the
Mandolidis decision, the West Virginia legislature
amended the Workers' Compensation Act to provide a
statutory definition of “deliberate intention.”
Id. at 126. The Fourth Circuit found that “the
legislature made clear that it was not removing
Mandolidis suits from the ‘common law tort
system'” but instead simply intended “to
create a ...