United States District Court, E.D. Virginia, Norfolk Division
DAVID I. GLOVER, Plaintiff,
RICHARD J. HRYNIEWICH and THE CITY OF NORFOLK, VIRGINIA Defendants. TIMOTHY B. PRIDEMORE, Plaintiff,
RICHARD J. HRYNIEWICH and THE CITY OF NORFOLK, VIRGINIA Defendants.
OPINION & ORDER
COKE MORGAN, JR. SENIOR UNITED SLATES DISTRICT JUDGE
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. 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.
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.
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.
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'
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.
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.
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.
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.
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.
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.
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 ...