United States District Court, S.D. West Virginia, Charleston Division
DONALD G. DALTON, Plaintiff,
THE DOW CHEMICAL COMPANY, et al., Defendants.
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE
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
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. 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
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.
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.
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.
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.
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)).
“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.
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