Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Napper v. United States

United States District Court, S.D. West Virginia, Beckley Division

March 19, 2019

SCOTT R. NAPPER, Administrator of the Estate of Joshua Napper, Plaintiff,



         The Court has reviewed the Motion of the United States to Dismiss this Civil Action (Document 7), the Memorandum in Support of the Motion of the United States to Dismiss (Document 8-1), Plaintiff's Memorandum in Opposition to Motion to Dismiss (Document 14), the Reply Memorandum in Support of the Motion of the United States to Dismiss this Civil Action (Document 16), the Motion to Amend Complaint, Instanter (Document 17) and accompanying Amended Complaint (Document 17) as well as the attached exhibits, and the Memorandum of the United States in Opposition to Plaintiff's Motion to Amend Complaint, Instanter (Document 21). For the reason stated herein, the Court finds that the motion to amend should be granted and the motion to dismiss should be denied.


         The statement of facts set forth below is taken from the Plaintiff's amended complaint and supporting exhibits.[1] The Plaintiff, Scott Napper, Administrator of the Estate of Joshua Napper, deceased, filed a one-count amended complaint against the Defendant, the United States of America, pursuant to the Federal Tort Claim Act (hereinafter “FTCA”) 28 U.S.C § 1346(b). Joshua Napper, along with 28 other miners, died on April 5, 2010, at the Upper Big Branch Mine (hereinafter “the Mine”) due to an explosion.[2] After the explosion, the Mine Safety and Health Administration (hereinafter “MSHA”) began investigating its cause. MSHA determined that on a longwall face, methane ignition at the Mine transitioned into a small methane explosion that propagated into a massive coal dust explosion and the deadliest U.S. coal mine disaster in nearly forty years.

         MSHA also reviewed its conduct in the period leading up to the fatal accident. The investigation revealed that MSHA inspectors violated mandatory regulations which created, maintained, or contributed to unsafe working conditions including the violations before and including those cited in the March 6, 2012 Internal Review of MSHA's actions at the Mine. For example, according to the report, in violation of the General Coal Mine Inspection Procedures and Inspection Tracking System Handbook, some parts of the mine were not inspected during the previous six regular inspections, fire protection equipment inspections were not conducted or documented, checks for imminent dangers were not conducted and self-contained self-rescue devices were not properly inspected. Moreover, inspection trainees conducted some inspections.

         The Plaintiff, the father of the deceased, instituted this action on February 9, 2018. The sole count of the complaint asserts claims for negligence and wrongful death under West Virginia law. The Plaintiff alleges that “the United States is liable here for negligently executing a duty it undertook, and for failing to exercise reasonable care to prevent harm to Joshua Napper caused by the United States' affirmative negligent conduct.” (Compl. ¶32).

         On May 11, 2018, the Defendant moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The United States contends that (1) the Plaintiff's claims are barred by the sovereign immunity of the United States, (2) the Court lacks subject matter jurisdiction under the FTCA, because the Plaintiff's claims are barred by the discretionary function exception, (3) the Court lacks subject matter jurisdiction because the United States has not waived sovereign immunity under the FTCA to allow tort claims based on alleged violations of federal law, and (4) the Plaintiff's claims are based on alleged violations of the Mine Act, and federal law does not recognize a private right of action for alleged violations of the Mine Act.

         On May 25, 2018, the Plaintiff filed a memorandum in opposition to the motion to dismiss and on June 1, 2018, filed a motion to amend the complaint and attached the amended complaint. On June 1, 2018, the Defendant filed a reply memorandum in support of its motion to dismiss. Finally, on June 16, 2018, the Defendant filed a memorandum opposing the Plaintiff's motion to amend the complaint, wherein it argued that the amendments were not sufficient to defeat its motion to dismiss.[3]


         A. Motion to Dismiss- 12(b)(1)

         A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. “In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion.” Thigpen v. United States, 800 F.2d 393, 396 (4th Cir. 1986), rejected on other grounds, Sheridan v. United States, 487 U.S. 392 (1988) (but explaining that a court should accept the allegations in the complaint as true when presented with a facial attack that argues insufficiency of the allegations in the complaint). Reasonable discovery may be necessary to permit the party seeking jurisdiction to produce the facts and evidence necessary to support their jurisdictional allegations. Id. The party seeking jurisdiction also has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Dismissal for lack of subject matter jurisdiction is proper only if there is no dispute regarding the material jurisdictional facts and the moving party is entitled to prevail as a matter of law. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir. 1999).

         B. Motion to Dismiss- 12(b)(6)

         A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

         The Court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw [] all reasonable factual inferences from those facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore, the court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

         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.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


         The Defendant has moved for dismissal based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court will initially address the 12(b)(1) motion, because the 12(b)(6) challenge is moot if the Court lacks subject matter jurisdiction.

         The Court must first address whether the United States has waived its sovereign immunity. [T]he Court has recognized the general principle that “the United States, as sovereign, ‘is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit. Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (citations and quotations omitted). The FTCA provides for a limited waiver of the United States' sovereign immunity and grants the federal courts jurisdiction over actions for damages arising from the acts or omissions of agents or employees of the United States. 28 U.S.C. § 1346(b). Also see 28 U.S.C. § 2674. The United States is liable only to the extent that, in the same circumstances, the applicable local law would hold a private person responsible. Id. Also see United States v. Olson 546 U.S. 43, 45-48 (2005). As such, the Plaintiff must show that West Virginia law would impose liability on a private person in similar circumstances in order to bring an FTCA claim. See 28 U.S.C. § 1346(b)(1). Also see Olson 546 U.S. at 44. In other words, the Plaintiff must prove that West Virginia law recognizes a claim against a private inspector for negligent inspection of a mine.

         The Fourth Circuit addressed this exact question of law in the per curiam opinion of Bragg v. United States, 528 Fed.Appx. 282 (4th Cir. 2013) (unpublished). In Bragg, as in this case, the Plaintiff brought a negligence and wrongful death suit under the FTCA alleging that MSHA was negligent in their safety inspections of a mine. Id. The district court dismissed the action because in its view, under West Virginia law, “a private person under like circumstances to those alleged against the United States would not be liable in a negligence action for the wrongful death of the miners.” Id. Since the appeal turned on a question of West Virginia law, the Fourth Circuit certified the following question to the Supreme Court of Appeals of West Virginia: “whether a private party conducting inspections of a mine and mine operator for compliance with mine safety regulations is liable for the wrongful death of a miner resulting from the private party's negligent inspection?” Id. The Fourth Circuit noted in response to their question that:

The Supreme Court of Appeals of West Virginia unambiguously answered our question in the affirmative. That court stated that factors including “the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden” on a defendant “weigh in favor of finding that a safety inspector owes a duty of care to the employees whose safety the inspection is intended to secure.” Bragg v. United States, 230 W.Va. 532, 741 S.E.2d 90, 99-100 (2013) (quotation marks omitted). The court plainly “h[e]ld that a private inspector who inspects a work premises for the purpose of furthering the safety of employees who work on said premises owes a duty of care to those employees to conduct inspections with ordinary skill, care, and diligence commensurate with that rendered by members of his or her profession.” Id.

Id. at 283. Thus, it is clear that West Virginia law recognizes a claim against a private inspector for negligent inspection of a mine, and the limited waiver of the United States' sovereign immunity under the FTCA gives this Court jurisdiction over this matter.

         However, the Court's inquiry does not end there. Congress created exceptions to § 1346(b) under 28 U.S.C. § 2680, which qualified the United States' waiver of sovereign immunity under the FTCA. “If one of those exceptions applies, the bar of sovereign immunity remains.” Dolan v. U.S. Postal Serv., 546 U.S. 481, 485 (2006). One such exception is the discretionary function exception, which states that the limited waiver of sovereign immunity provided by § 1346(b) does not apply to:

[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a) (emphasis added). The statute is silent on what “discretionary function or duty” is and “the exception has a fluid quality that escapes particular confinement.” Fleming v. United States, 69 F.Supp.2d 837, 840 (W.D. Va. 1999) (quoting Williams v. United States, 50 F.3d 299, 309 (4th Cir. 1995). However, the United States Supreme Court has mandated a two-part test to be used to determine whether the exception bars a suit under the FTCA. See United States v. Gaubert, 499 U.S. 315, 322-23 (1991). First, the court must determine if the government employee's act in question was discretionary or mandatory. Id. at 322. Second, if the act was discretionary, then it must be determined if the employee's discretion was based on considerations of governmental policy. Id. at 323. The Plaintiff bears the burden of demonstrating that the discretionary function exception does not apply. If that burden is not met, the Court must dismiss the case. See Wood v. United States, 845 F.3d 123, 127 (4th Cir. 2017).

         In its motion to dismiss, the Defendant contends that both prongs of the test set forth in Gaubert are satisfied. First, it argues that many of the claims alleged in the complaint are not violations of mandatory duties. It notes that the Plaintiff did not dispute that MSHA conducted the required six regular quarterly inspections of the Mine and that the inspectors inspected the working areas of the mines as determined by the active operation of the Mine at the time of the inspections. To the extent that an area of the mine was not inspected, the Defendant contends that the mine operator failed to maintain current maps ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.