Norman K. Moon United States District Judge
As explained further herein, Defendant was a statutory employer of Plaintiff, and under the exclusivity provisions of the Virginia Workers’ Compensation Act (the “Act”), Defendant is not susceptible to Plaintiff’s tort claims. Accordingly, pursuant to Federal Rule of Civil Procedure 12(b)(1), I will grant Defendant’s motion to dismiss for lack of jurisdiction.
As a preliminary matter, I must address Plaintiff’s argument that Defendant’s motion should be deemed withdrawn pursuant to this Court’s Local Rules. Local Civil Rule 11(b) provides, in pertinent part, that
[t]he moving party is responsible either to set a motion for hearing or to advise the Court that all parties agree to submission of the motion without a hearing. The non-moving party also may arrange for a hearing. All hearings are to be at a date and time obtained from and scheduled by the Court. Unless otherwise ordered, a motion is deemed withdrawn if the movant does not set it for hearing (or arrange to submit it without a hearing) within 60 days after the date on which the motion is filed.
W.D. Va. Civ. R. 11(b) (emphasis added).
Plaintiff points out that the motion was filed on December 7, 2012, and that, under Local Rule 11(b), Defendant had until February 5, 2013, to set the matter for a hearing. According to Plaintiff’s counsel, Defendant’s counsel failed to timely set the matter for a hearing, and the motion should be deemed withdrawn.
However, the record contains ample documentation showing that Defendant’s counsel attempted to schedule a hearing, but that Plaintiff’s counsel failed to cooperate with Defendant’s counsel, who made numerous attempts to contact Plaintiff’s counsel in order to set the matter for a mutually acceptable date chosen from a number of available dates Defendant’s counsel had obtained from the Clerk of the Court. See docket no. 15. Moreover, this Court’s Local Civil Rules were adopted in accordance with Rule 83(a) of the Federal Rules of Civil Procedure, and “[i]t is . . . entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities.” Foman v. Davis, 371 U.S. 178, 181 (1962); see also W.D. Va. Standing Order No. 2010-2 (March 9, 2010) (adopting Local Rules in accordance with, inter alia, Fed.R.Civ.P. 83(a)); Michael v. Sentara Health Sys., 939 F.Supp. 1220, 1225 n. 3 (E.D. Va. 1996) (“the application of the local rules is within the discretion of the Court”).
Accordingly, I will not deem the instant motion withdrawn.
The complaint states the following, in pertinent part (paragraph numbering omitted; emphases added; otherwise verbatim):
The plaintiff is a citizen of the Commonwealth of Virginia. The defendant is a corporation incorporated under the laws of the State of Delaware with its principal place of business in Hoffman Estates, Illinois. The amount in controversy, without interest and costs, exceeds the sum or value specified by 28 U.S.C. § 1332.
Jonathan Vaughan is a resident of Lynchburg, Virginia.
Sears Logistics Services, Inc. is a corporation doing business in Virginia with a registered agent for service of process.
On or about October 1, 2009, Plaintiff, Jonathan Vaughan, picked up a trailer from the defendant, Sears Logistics Services, Inc. (Hereinafter “Sears Logistics”) at one of its locations in Middleton, Pennsylvania. Sears Logistics had the exclusive and sole duty to load the trailer in a safe and proper manner. Plaintiff, Jonathan Vaughan, fixed the trailer to the truck he was operating and drove it to Westminster, Maryland.
On October 2, 2009, Jonathan Vaughan, delivered the trailer to Sears Auto Center in Westminster, Maryland. After the Sears Auto Center’s manager clipped the seal on the trailer, Vaughan, opened the door to the trailer. When he did so about half of a row of tires loaded into the truck came crashing out and struck Vaughan in the shoulder causing severe, painful, and permanent injuries.
The defendant, and its employees and agents were negligent in the following ways:
(a) They failed to properly secure the load in a safe and proper manner so that when the trailer door was opened the person opening it would not be injured;
(b) They failed to warn Vaughan that the trailer was dangerously loaded so that he could protect himself when the door was opened;
(c) They loaded the trailer improperly on the safety plate thereby overloading the trailer and illegally exposing Vaughan and others to injury;
(d) They were negligent in other ways discovery shall reveal.
As a result of the aforesaid negligence and illegal acts, Plaintiff, Jonathan Vaughan, was severely, painfully, and permanently injured causing great pain, suffering, inconvenience, medical, surgical, and physical therapy care, both in the past and in the future, loss of income, loss of earning capacity, and permanent disability and impairment.
Plaintiff “moves the Court for judgment . . . in the amount of $500, 000 plus costs and for all other relief law or equity may seem met.”
The plaintiff bears the burden of establishing the existence of subject-matter jurisdiction when challenged under Rule 12(b)(1). See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In considering a challenge to its subject-matter jurisdiction, a district court may look beyond the pleadings without converting the proceeding to a motion for summary judgment. Id. “The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. (citation omitted).
Defendant now moves for dismissal for lack of jurisdiction pursuant to Rule 12(b)(1) on the ground that Defendant is a statutory employer of Plaintiff, and Defendant is therefore immune from this suit because the sole jurisdiction for Plaintiff’s claims arising out of the stated injuries resides with the Virginia Workers’ Compensation Commission (from which Plaintiff has accepted an award). Whether an individual is a statutory employee is a jurisdictional matter presenting a mixed question of law and fact that must be determined according to the facts of each case. Burch v. Hechinger Co., 264 Va. 165, 169 (2002). Applying the body of relevant case law to the facts of this case, I conclude that Plaintiff was Defendant’s statutory employee when his injuries occurred.
As the parties acknowledged at the hearing on the instant motion, the material facts are not in dispute. The only dispute is whether Plaintiff’s negligence claims against Defendant are barred by the exclusivity provision of the Virginia Workers’ Compensation Act. Plaintiff’s opposition to Defendant’s motion contends that he “is not the statutory employee of Sears Logistics Services, Inc., ” and he quotes Napper v. ABM Janitorial Services Mid-Atlantic, Inc., 284 Va. 55 (2012), for the proposition that
The remedies afforded the employee under the [A]ct are exclusive of all his former remedies within the field of the particular business, but the [A]ct does not extend to accidents caused by strangers to the business. If the employee is performing the duties of his employer and is injured by a stranger to the business, the compensation prescribed by the act is ...