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Dalton v. The Dow Chemical Co.

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

June 10, 2019

DONALD G. DALTON, Plaintiff,
THE DOW CHEMICAL COMPANY, et al., Defendants.



         I. Introduction

         Pending before the court is a Motion to Stay Litigation Pending Arbitration [ECF No. 31] filed by Third-Party Defendant Austin Industrial Specialty Services, Inc. (“Austin”). For the reasons that follow, the Motion is GRANTED in part and DENIED in part. The court imposes a limited stay, as detailed below.

         II. Background

         On May 3, 2018, the plaintiff filed a Complaint in the Circuit Court of Kanawha County, West Virginia relating to an injury he incurred while employed by Austin. The Complaint [ECF No. 1-1] alleges as follows: The plaintiff worked for Austin as an A-mechanic. In May 2016, the plaintiff was working at a chemical plant operated by Defendant and Third-Party Plaintiff Bayer CropScience, LP (“Bayer”) under a labor services contract Austin maintained with Bayer.[1] On May 4, 2016, at Bayer's direction, the plaintiff was moving materials down a set of stairs with a Bayer employee. The Bayer employee allegedly lost control of the materials causing them to fall on and severely injure the plaintiff.

         The plaintiff subsequently filed a worker's compensation claim with Austin and was placed on leave by his physician. In June 2016, the plaintiff's physician released him to light duty at work. The plaintiff alleges that despite Austin's representations, Bayer told the plaintiff that no light duty was available and that he was not allowed at the plant. Austin then fired the plaintiff on or about July 29, 2016. The plaintiff maintains that Austin fired him at least in part based on Bayer's insistence.

         The Complaint asserts five causes of action. Count One asserts a cause of action for negligence against Defendants Dow Chemical Company (“Dow”), Union Carbide Corporation (“Union Carbide”), and Bayer, alleging that these defendants, “as owners and/or operators of the plant[, ] were under a duty to ensure that employees under their supervision and control conducted work related activities in a prudent and safe manner.” Compl. [ECF No. 1-1] ¶ 46. Count Two asserts a violation of the West Virginia Workers' Compensation Act against Austin. Counts Three and Four allege, respectively, disability and age discrimination under the West Virginia Human Rights Act (“WVHRA”) against Austin. Count Five alleges that Defendants Dow, Union Carbide, and Bayer “aided, abetted, incited, compelled and/or coerced” Austin to engage in unlawful discriminatory conduct in violation of the WVHRA. Id. ¶ 68.

         In November 2018, the plaintiff and Austin entered into a Joint Stipulation and Order of Dismissal Without Prejudice [ECF No. 1-2], whereby the plaintiff voluntarily dismissed all claims asserted against Austin pursuant to the Federal Arbitration Act (“FAA”). Arbitration proceedings between the plaintiff and Austin are still ongoing. Accordingly, only Counts One and Five remain.

         In December 2018, Bayer removed the case to this court. On March 8, 2019, this court granted Bayer leave to file its Third-Party Complaint [ECF No. 22] against Austin. Bayer's Third-Party Complaint asserts a sole cause of action against Austin for contribution, stating: “Should a judgment be entered against [Bayer] on the claim in Count V of the Complaint, [Bayer] is entitled to contribution from Austin in an amount based on Austin's respective fault.” Third-Party Compl. [ECF No. 22] ¶ 10. On May 3, 2019, Austin answered the Third-Party Complaint and filed the instant Motion, seeking a stay of this entire action pending the outcome of arbitration.

         III. Legal Standard

         The decision whether to grant a stay is discretionary, and within the inherent power of the court “to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). Proper use of this discretion “calls for the exercise of judgment which must weigh competing interests and maintain an even balance. The party seeking a stay must justify it by clear and convincing circumstances outweighing potential harm to the party against whom it is operative.” Williford v. Armstrong World Indus., Inc., 715 F.2d 124, 127 (4th Cir. 1983). In other words, the court should consider whether the movant has demonstrated “a clear case of hardship or inequity in being required to go forward, if there is even a fair possibility that the stay” will harm someone else. Id. (quoting Landis, 299 U.S. at 255). Thus, this court has identified three factors to consider in determining whether to grant a motion to stay: “(1) the interests of judicial economy; (2) hardship and equity to the moving party if the action is not stayed; and (3) potential prejudice to the non-moving party.” Tolley v. Monsanto Co., 591 F.Supp.2d 837, 844 (S.D. W.Va. 2008) (Goodwin, J.) (quoting Meyers v. Bayer AG, 143 F.Supp.2d 1044, 1049 (E.D. Wis. 2001)).

         Moreover, “district courts have the power to stay claims against a non-arbitrating party when a case involves both arbitrating and non-arbitrating parties.” Chapman-Martin Excavating & Grading, Inc. v. Hinkle Contracting Co., No. 2:11-cv-00563, 2011 WL 5999868, at *4 (S.D. W.Va. Nov. 30, 2011). “Enforcement of agreements to arbitrate under the [FAA] may require piecemeal litigation, and the decision to stay the litigation of non-arbitrable claims or issues is a matter largely within the district court's discretion to control its docket.” Am. Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 97 (4th Cir. 1996) (citations omitted). However, “litigation on the non-arbitrable issues which depend on arbitrable issues should be stayed pending arbitration.” Summer Rain v. Donning Co./Publishers, Inc., 964 F.2d 1455, 1461 (4th Cir. 1992).

         IV. Discussion

         Austin seeks a stay of this entire action pending arbitration. While the plaintiff does not object to a stay of Bayer's contribution claim against Austin, the plaintiff does object to a stay of any other claims in this proceeding. The court finds a limited stay warranted: The Tolley factors weigh in favor of staying only (1) the plaintiff's WVHRA claims set forth in Count Five and (2) Bayer's ...

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