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Glover v. Hryniewich

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

October 3, 2017

DAVID I. GLOVER, Plaintiff,
v.
RICHARD J. HRYNIEWICH and THE CITY OF NORFOLK, VIRGINIA Defendants. TIMOTHY B. PRIDEMORE, Plaintiff,
v.
RICHARD J. HRYNIEWICH and THE CITY OF NORFOLK, VIRGINIA Defendants.

          OPINION & ORDER

          HENRY COKE MORGAN, JR. SENIOR UNITED SLATES DISTRICT JUDGE

         This matter is before the Court pursuant to Defendant City of Norfolk's ("the City's") and Officer Richard J. Hryniewich's ("Hryniewich's") (collectively, "Defendants'") Motion to Dismiss or Stay ("Motion"). Glover v. Hrvniewich, et al.. No. 2:17cv109. Doc. 5.[1] On August 4, 2017, this Court entered an Order GRANTING Defendants' Motion and STAYING this action, pending issuance of the Norfolk Circuit Court's ruling on Defendants' Plea in Bar. Doc. 11. On August 21, 2017, Defendants filed a Notice of the Circuit Court's ruling. Doc. 12. In that ruling, the Circuit Court SUSTAINED Defendants' Plea in Bar as to the City, and SUSTAINED IN PART and OVERRULED IN PART Defendants' Plea in Bar as to Hryniewich. Id, Ex. A. As to Hryniewich, the Circuit Court held that "under the circumstances, gross negligence is not a proper issue for a plea in bar asserting sovereign immunity." Id. at 2.

         The Circuit Court's decision changes the abstention analysis in this Court's previous Order. On abstention questions, the Court follows the guidance of Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976), which has been distilled by the Fourth Circuit into a six-factor test, see Great Am. Ins. Co. v. Gross, 468 F.3d 199, 207-08 (4th Cir. 2006). The fifth factor considered under this test is "whether state or federal law provides the rule of decision on the merits." Id. at 208. In the August 4, 2017 Order, this Court noted that "at this point in time, Factor Five of Colorado River is neutral toward abstention." Doc. 11 at 11.

         The Court went on to say:

[I]f the Norfolk Circuit Court finds that Defendants are immune from suit, altering the harmony and uniformity of maritime law in the process, Factor Five [of Colorado River] will weigh against abstention. However, if the opposite occurs, Factor Five will weigh in favor of abstention as the state court is well equipped to rule on the underlying merits of the State Actions.

         Doc. 11 at 11.

         The Norfolk Circuit Court has found that the City is immune from suit, and that Hryniewich is immune except as to Plaintiffs' gross negligence claims. The Circuit Court's finding of sovereign immunity as to the City and in part as to Hryniewich means that the state court "is without subject matter jurisdiction to adjudicate" most of Plaintiffs' claims. Afzall v. Commonwealth, 273 Va. 226, 230 (2007); see also Doud v. Commonwealth, 282 Va. 317, 321 (2011) ("In the absence of [an express waiver of sovereign immunity], the courts of the Commonwealth lack subject-matter jurisdiction to adjudicate tort claims against the Commonwealth."). The Circuit Court's finding of sovereign immunity, and thus lack of jurisdiction, demonstrates that state court is not an available forum in which to adjudicate Plaintiffs' claims.

         Accordingly, the Court FINDS that Factor Five of Colorado River now weighs against abstention. The Court further FINDS that, taken as a whole, the Colorado River factors now weigh against abstention in this case. Accordingly, and for the reasons stated in the following updated analysis, the Court DENIES Defendants' Motion.

         I. BACKGROUND

         A. Factual Allegations

         On January 21, 2014, the City issued a purchase order to Willard Marine Services, Inc. ("Willard") "for the modification and repair of the City's 27 foot aluminum hull SAFE Boat vessel." Compl. 6.¶ On February 6, 2014, the City issued an additional purchase order to Willard "for the repair and modification of the vessel's steering system." Id. The City took redelivery of the SAFE Boat on March 21, 2014. Id. ¶ 7. Hryniewich, employed by the City as a police officer, was present for the vessel's redelivery on behalf of the City. Id. ¶ 8. Two employees of Willard, Glover and Pridemore, were also present for the vessel's redelivery. Id. "Also aboard were two other City of Norfolk employees." Id, The individuals present for the redelivery proceeded to conduct a sea trial of the vessel. Id. ¶¶ 8-10.

         Plaintiffs allege that "[d]uring the course of the sea trial, Hryniewich identified what he perceived to be steering and handling issues with the vessel and expressed those concerns to the other City of Norfolk employees on board." Id. ¶10. While maneuvering the SAFE Boat, Hryniewich allegedly pushed "the vessel to high speed and then, without slowing down or warning other than a 'hold on' with insufficient notice, recklessly turned the wheel hard to starboard causing the vessel to capsize." Id. ¶11. Plaintiffs state that they were injured and taken to a local hospital. Id. ¶12. Plaintiffs allege temporary and permanent physical injuries, considerable medical expenses, and lost wages. Id. Plaintiffs contend that their injuries were caused by the "negligence, gross negligence and recklessness" of Hryniewich in "attempting to make a severe turn at an unsafe speed." Id. ¶ 14, 16. Plaintiffs further allege that the City is liable for "failing to provide a competent operator of the vessel, " id. ¶ 14, and that, "[a]t the time of the inception of the voyage (sea trials) the City of Norfolk knew or should have known that Hryniewich was not competent to operate the vessel, thereby rendering it unseaworthy within the City of Norfolk's privity and knowledge." Id. ¶15.

         B. Procedural History

         On March 21, 2016, Glover and Pridemore each filed a complaint against Defendants in Norfolk Circuit Court ("State Actions"). Doc. 6, Ex. 1. Defendants responded with a Plea in Bar in both of the State Actions and Plaintiffs both filed Motions to Strike Defendants' Plea in Bar. Id. at 2. On December 16, 2016, the Norfolk Circuit Court DENIED Plaintiffs' Motion to Strike. Doc. 7 at 3.

         On February 23, 2017, Plaintiffs filed the instant Complaints ("Federal Actions"). Glover v. Hryniewich, et al., No. 2:17cv109, Doc. 1; Pridemore v. Hryniewich, et al., No. 2:17cv110, Doc. 1. On March 6, 2017, the Court ORDERED that the Federal Actions be consolidated for discovery only. Doc. 4 at 1. On April 21, 2017, Defendants filed the instant Motion. Doc. 5. On May 5, 2017, Plaintiffs responded in opposition to the Motion. Doc. 7. On May 11, 2017, Defendants responded in further support of the Motion. Doc. 9.

         II. LEGAL STANDARDS

         "The rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal Court having jurisdiction." McClellan v. Carland, 217 U.S. 268, 282 (1910); accord McLaughlin v. United Va. Bank, 955 F.2d 930, 934 (4th Cir. 1992). Rather, "federal courts ordinarily should entertain and resolve on the merits an action within the scope of a jurisdictional grant, and should not 'refus[e] to decide a case in deference to the States.'" Sprint Commc'ns. Inc. v. Jacobs, 134 S.Ct. 584, 588 (2013) (quoting New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 368 (1989)). In Colorado River Water Conservation District v. United States, the Supreme Court noted that Federal courts have a "virtually unflagging obligation ... to exercise the jurisdiction given them." 424 U.S. 800, 817 (1976). However, the Supreme Court also noted that a federal court may abstain from exercising jurisdiction over a duplicative federal action for purposes of "wise judicial administration" in "exceptional circumstances." Id. at 818-19.

         "The threshold question in deciding whether Colorado River abstention is appropriate is whether there are parallel federal and state suits." Great Am. Ins. Co. v. Gross,468 F.3d 199, 207 (4th Cir. 2006) (citing Chase Brexton Health Servs.. Inc. v. Maryland, 411 F.3d 457, 463 (4th Cir. 2005)); accord vonRosenbere v. Lawrence,849 F.3d 163, 168 (4th Cir. 2017). "Suits are parallel if substantially the same parties litigate substantially the same issues in different forums." New Beckley Min. Com, v. Int'l Union, United Mine Workers of Am.. 946 F.2d 1072, 1073 (4th Cir. 1991). "If parallel suits exist, then we must carefully balance several factors 'with the balance heavily weighted in favor of ...


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