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. Judge
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.
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.
reasons stated below, the Court DENIES all four (4) Motions.
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.
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.
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.
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.
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.
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
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
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).
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.
Plaintiffs' claims are permissible ...