United States District Court, E.D. Virginia, Norfolk Division
MAGISTRATE JUDGE'S REPORT AND
DOUGLAS E. MILLER, UNITED STATES MAGISTRATE JUDGE.
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.
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. 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).
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.
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.
STANDARD OF REVIEW
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."
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).
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.
Hawkins was not Plummer's Employee
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' ...