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Hawkins v. Robinson

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

November 21, 2016

KIM HAWKINS, Plaintiff,
v.
TERRY ROBINSON And SUDDATH RELOCATION SYSTEMS OF HOUSTON, INC., Defendants.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.

         This negligence case is before the court on Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF No. 15). Plaintiff, Kim Hawkins ("Hawkins")/ brought this suit after he was injured while unloading a moving truck for Defendants, Terry Robinson ("Robinson") and Suddath Relocation Systems of Houston, Inc. ("Suddath") (collectively "Defendants"). Defendants argue that Hawkins' claims are barred by the Virginia Workers' Compensation Act because he was Defendants' employee and engaged in work-related activities when he was injured. See Defs.' Mem. Supp. Mot. Dismiss at 4 (ECF No. 16). Hawkins argues that his claims are not barred because he was not Defendants' employee, but was an employee of Kenyell Plummer ("Plummer"), the individual who had contracted with Suddath to move his belongings. The district court referred this Motion and Defendants' Motion for Summary Judgment (ECF No. 17) pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b). Having considered the parties' pleadings and for the reasons stated below, the undersigned recommends that Defendants' Motion to Dismiss for Lack of Jurisdiction (ECF No. 15) be GRANTED, the Motion for Summary Judgment (ECF No. 17) be terminated as MOOT, and the case DISMISSED.

         I. BACKGROUND

         On or about June 12, 2015, Robinson approached Hawkins and Darrel Spaulding ("Spaulding") at Big Charlie's Truck Plaza in Virginia Beach to assist him and his son in unloading a moving truck he was driving. Hawkins Dep. 46:14-22 (ECF No. 16-2). Robinson is a subcontractor for Suddath, and had been contracted in this instance to transport furniture and other belongings from California to Virginia for Suddath's client, Plummer.[1] See Robinson Dep. 6:14-22 (ECF No. 16-1). Robinson offered Hawkins and Spaulding twenty-five dollars per hour for their help. Hawkins Dep. 46:18-21 (ECF No. 16-2). Plummer was not involved in and did not know the details of how Hawkins and Spaulding came under Robinson's employ. See Plummer Dep. 15:7-10, 18:10- 20 (ECF No. 16-5). Hawkins, Spaulding, and Robinson's son were all being paid directly by Robinson. See Robinson Dep. 57:6-7 (ECF No. 16-1); Plummer Dep. 17:21-22, 18:1 (ECF No. 16-5). Both Robinson and Plummer testified that Robinson was the only person responsible for directing the three movers during the unloading process. See Robinson Dep. 57:8-10 (ECF No. 16-1); Plummer Dep. 18:2-9 (ECF No. 16-5).

         Once Robinson and the three movers arrived at the storage facility, they met with Plummer to identify where the contents of the truck needed to be stored. Plummer Dep. 11:22, 12:1-22 (ECF No. 16-5). After backing the truck into the facility, Hawkins, Spaulding, and Robsinson's son began unloading the truck. Hawkins Dep. 47:11-18 (ECF No. 16-2). At some point during the unloading process, Hawkins was descending the loading ramp with a dolly when the ramp fell, causing him to fall to the pavement. Plummer Dep. 19:9-20, 21:20-22, 22:1-14 (ECF No. 16-5) . Robinson provided the ramp, and someone on Robinson's crew had been responsible for setting it up. See id. at 19:9-17.

         As a result of the injuries he sustained from the fall, Hawkins filed a negligence suit against several parties, including Defendants, in Norfolk Circuit Court. See Defs.' Notice of Removal, Ex. A (ECF No. 1) . Defendants timely removed to this court and filed the instant Motion, as well as a Motion for Summary Judgment. Id. Hawkins was granted leave to file his response to this Motion after failing to do so before the original filing deadline, and Defendants' filed a timely reply.

         II. STANDARD OF REVIEW

         In considering a motion to dismiss for lack of subject matter jurisdiction, plaintiff has the burden of showing by a preponderance of the evidence that the court has such jurisdiction. See Evans v. B. F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)/ see also Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). When subject matter jurisdiction is challenged in a Rule 12(b)(1) motion, "the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond, 945 F.2d at 768 (citations omitted). The motion to dismiss should only be granted "if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Id.

         III. ANALYSIS

         The Virginia Workers' Compensation Act ("Act") provides that, except in express circumstances, every employer and employee "shall be conclusively presumed to have accepted" the provisions of the Act that establish a respective duty to "pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment." Va. Code Ann. § 65.2-300 (West 2016). The Act also states thattt[t] he rights and remedies [of the Act] granted to an employee . shall exclude all other rights and remedies of such employee." Id. at § 65.2-307. This is referred to as the "exclusivity provision, " and it bars any suit seeking damages for injury brought by a person who is otherwise covered by the Act. See Butler v. Southern States Coop., Inc., 620 S.E.2d 768, 772 (Va. 2005). Faced with a 12(b) (1) motion to dismiss for lack of jurisdiction, "the plaintiff bears the burden of proving that the [Act's] exclusivity provision does not preclude this court's subject matter jurisdiction." Demetres v. East West Const., Inc., 995 F.Supp.2d 539, 543 (E.D. Va. 2014).

         There is no apparent dispute in this case that, if Hawkins was an employee of Robinson and/or Suddath, compensation for his injuries would be governed by the Virginia Workers' Compensation Act, and the exclusivity provision would bar him from bringing the instant suit against Defendants. Thus, the dispositive jurisdictional issue is whether Hawkins was an employee of Robinson and/or Suddath, and therefore subject to the exclusivity provision of the Act. The undisputed facts demonstrate that he was.

         A. Hawkins was not Plummer's Employee

         Hawkins' argument against application of the exclusivity-provision is that he worked for Plummer, the furniture owner, not the Defendants. The Act's definition of "employer" is broad and "includes (i) any person . . . using the service of another for pay . . . ." Va. Code Ann. § 65.2-101 (defining "employer"). Hawkins argues that because Plummer hired United Van Lines, who does business through Suddath, who in turn subcontracted with Robinson, who hired Hawkins to assist with unloading his belongings, Plummer is Hawkins' ...


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