Searching over 5,500,000 cases.


searching
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.

Demetres v. East West Constr., Inc.

United States District Court, E.D. Virginia, Norfolk Division

January 28, 2014

JAMES THOMAS DEMETRES, Plaintiff,
v.
EAST WEST CONSTRUCTION, INC., Defendant

Page 540

For James Thomas Demetres, Plaintiff: Earl Stanley Murphy, LEAD ATTORNEY, Moody, Strople & Kloeppel, LTD, Portsmouth, VA.

For East West Construction, Inc., Defendant: Danielle Deanna Giroux, LEAD ATTORNEY, Harman Claytor Corrigan & Willman, Richmond, VA; Stanley Paul Wellman, LEAD ATTORNEY, Harman Claytor Corrigan & Wellman, Glen Allen, VA.

OPINION

Page 541

OPINION AND ORDER

REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE.

This matter comes before the court on the Motion to Dismiss (" Motion" ) and accompanying Memorandum in Support, filed by the Defendant, East West Construction, Inc., pursuant to Federal Rule of Civil Procedure 12(b)(1). ECF No. 6. Therein, the Defendant alleges that this court lacks jurisdiction over the dispute because the Plaintiff's claims are preempted by the Virginia Workers' Compensation Act (" VWCA" ). For the reasons set forth below, the court GRANTS the Defendant's Motion, and the case is DISMISSED for lack of subject matter jurisdiction in this federal court in the Eastern District of Virginia.[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

This suit arises out of an accident that occurred on a construction site in the City of Virginia Beach on March 28, 2011. Am.

Page 542

Compl. ¶ 1. ECF No. 4. After a period of discovery, the parties filed an Agreed Statement of Facts (" SOF" ). ECF No. 24. The following facts, which are relevant to the jurisdictional analysis, are undisputed.

At the time of the accident, the Plaintiff, James Thomas Demetres (" Plaintiff" ), a citizen of North Carolina, was an employee of Ashland Construction Company (" Ashland" ), a North Carolina corporation. Am. Compl. ¶ ¶ 1, 3; SOF ¶ ¶ 1, 3. Ashland, a general contractor, assigned the Plaintiff " to work as the superintendent for the construction of a new CVS pharmacy" in Virginia Beach. Am. Compl. ¶ 10. Ashland hired East West Construction, Inc. (" Defendant" ), a site and utility subcontractor and a Virginia corporation, to prepare the property for construction. Am. Compl. ¶ ¶ 7, 11. On March 28, 2011, one of the Defendant's employees was operating a bulldozer, which he backed over the Plaintiff, causing extensive injuries. Am. Compl. ¶ ¶ 11, 13. Following the accident, the Plaintiff received North Carolina workers' compensation benefits on behalf of his employer, Ashland. Am. Compl. ¶ 4; SOF ¶ 6. On March 27, 2013, the Plaintiff filed this diversity action against the Defendant in federal court, alleging that the negligence of the Defendant's employee caused the accident, and seeking $100,000,000 in damages. Am. Compl. ¶ ¶ 19-20.

II. STANDARD OF REVIEW

The plaintiff bears the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. See, e.g., United States ex rel. Vuyyuru v. Jadhav,555 F.3d 337, 347-48 (4th Cir. 2009) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). When a defendant challenges subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), " 'the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.'" Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). The district court should grant the Rule 12(b)(1) motion to dismiss " 'only if the material ...


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.