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Glover v. Hryniewich

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

April 16, 2018

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. Judge

         This matter is before the Court pursuant to four (4) Motions: (1) Defendant City of Norfolk's ("City's") Motion for Judgment on the Pleadings in Glover v. Hryniewich. et al., No. 2:17cv109, Doc. 22; (2) the City's Motion for Judgment on the Pleadings in Pridemore v. Hryniewich. et al., No. 2:17cv110, Doc. 22; (3) Defendant Richard J. Hryniewich's ("Hryniewich's") Motion for Judgment on the Pleadings in Glover v. Hryniewich. et al., No. 2:17cv109, Doc. 24; and (4) Hryniewich's Motion for Judgment on the Pleadings in Pridemore v. Hryniewich. et al., No. 2:17cv110, Doc. 24.

         Glover. No. 2:17cv109, and Pridemore. No. 2:17cv110, are consolidated for the purposes of discovery. Both of the City's Motions, although filed in the two (2) separate cases, are identical. The same can be said of the two (2) Motions filed by Hryniewich. Given this connection and for clarity's sake, all references and citations to pleadings herein will be made to Glover. No. 2:17cv109, unless otherwise specified.

         For the reasons stated below, the Court DENIES all four (4) Motions.

         I. BACKGROUND

         A. Factual Allegations[1]

         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." Doc. 1 ("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. Willard's employees Glover and Pridemore, who are the Plaintiffs in these actions, were also present for the vessel's redelivery, as were two (2) City of Norfolk employees. Id. The individuals present for the redelivery proceeded to conduct a sea trial of the vessel. Id. ¶¶ 8-10.

         "During 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 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 were severely injured and taken to a local hospital, Id. ¶ 12. Plaintiffs suffered 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 ... 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 privily and knowledge." Id. ¶ 15. B. Procedural History On March 21, 2016, Glover and Pridemore each filed a complaint against the City and Hryniewich (collectively, "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 each filed a Motion to Strike Defendants' Plea in Bar. Id. at 2. On December 16, 2016, the Norfolk Circuit Court denied Plaintiffs' Motions 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 purposes. Doc. 4 at 1. On April 21, 2017, Defendants filed a Motion to Dismiss or Stay Pursuant to Rule 12(b)(1) ("Motion to Dismiss"). Doc. 5. On August 4, 2017, the Court granted the Motion to Dismiss in part, and stayed the Federal Actions pending a Norfolk Circuit Court ruling regarding whether sovereign immunity was available to Defendants in the State Actions. Doc. 11.

         By letter opinion dated August 18, 2017, the Norfolk Circuit Court found that the City was engaged in a governmental function at the time of the alleged negligent incident, and therefore held that the City was entitled to sovereign immunity. See Doc. 12, Ex. A at 1. The Norfolk Circuit Court further held that Hryniewich was entitled to sovereign immunity as to Plaintiffs' simple negligence claims, but not as to their gross negligence claims. Id. Given the Norfolk Circuit Court's finding of sovereign immunity, this Court found that abstention was inappropriate, and the Court subsequently denied Defendants' Motion to Dismiss. Defendants filed the instant Motions on October 18, 2017. Docs. 22, 24. Defendants then filed Third-Party Complaints against Willard and Safe Boats International, LLC ("Safe Boats") on October 31, 2017. Docs. 26, 27, 28, 29. Plaintiffs responded in opposition to the Motions on November 1, 2017. Docs. 34, 35. Defendants replied in further support of the Motions on November 7, 2017. Docs. 38, 39. Defendants filed a Request for Hearing on the Motions on November 8, 2017. Doc. 40.

         On March 22, 2018, Defendants filed a Notice informing the Court that two (2) issues have been certified for interlocutory appeal to the Supreme Court of Virginia in the State Actions: (1) the Norfolk Circuit Court's granting of sovereign immunity for the City in a general maritime law case, and (2) that court's denial of general maritime law qualified immunity to Hryniewich. Doc. 56.

         II. LEGAL STANDARDS

         "The standard of review for Rule 12(c) motions is the same as that [for a motion to dismiss] under Rule 12(b)(6)." Draeer v. PLIVA USA. Inc., 741 F.3d 470, 474 (4th Cir. 2014).

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of a complaint; it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses. Republican Party of N.C. v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal. 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Venkatraman. 417 F.3d at 420 ("In considering a motion to dismiss, we accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff.") (citing Mvlan Labs., 7 F.3d at 1134). A complaint establishes facial plausibility "once the factual content of a complaint allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Nemet Chevrolet. Ltd. v. Consumeraffairs.com. Inc., 591 F.3d 250, 256 (4th Cir. 2009) (quoting Iqbal. 556 U.S. at 678). Therefore, the complaint need not include "detailed factual allegations" as long as it pleads "sufficient facts to allow a court, drawing on judicial experience and common sense, to infer more than the mere possibility of misconduct." Id. Although a court must accept as true all well-pleaded factual allegations, the same is not true for legal conclusions. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal. 556 U.S. at 678.

         In deciding the motion, a court may consider the facts alleged on the face of the complaint as well as "'matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint.'" Moore v. Flapstar Bank, 6 F.Supp.2d 496, 500 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (1990)). The court may look to documents attached to the complaint and those incorporated by reference without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. See Pueschel v. United States, 369 F.3d 345, 353 n.3 (4th Cir. 2004) (citations omitted).

         III. ANALYSIS

         A. City's Motions

         The City argues that it is entitled to judgment on the pleadings for three (3) reasons. First, the City argues that Plaintiffs have alleged that its vessel was unseaworthy, and, "because [Plaintiffs] have brought their suit under 33 U.S.C. § 905(b), an action for unseaworthiness is not available to them." Doc. 23 at 1. Second, the City argues that it is immune to Plaintiffs' claims "because the Commonwealth of Virginia's jurisdictional immunity extends to the City under the circumstances presented here and because ... the City was acting as an arm of the state at the time of the Plaintiffs' injuries." Id. at 1-2. Third, the City argues that "Plaintiffs have failed to plead a violation of any of the duties that the City owed to them." Id. at 2. The Court rejects these arguments and DENIES the City's Motions.

         1. Plaintiffs' claims are permissible ...


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