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Muhammad v. Norfolk Southern Railway Co.

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

June 13, 2018

KENNETH MUHAMMAD, Plaintiff,
v.
NORFOLK SOUTHERN RAILWAY CO., Formerly Known as Norfolk & Western Railway Co., Defendant.

          MEMORANDUM OPINION AND ORDER

          KAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Norfolk Southern Railway Company's ("Defendant") Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12 (b)(1), to dismiss the lawsuit of Kenneth Muhammad ("Plaintiff). Having reviewed the Parties' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On May 19, 2016, Plaintiff was working with the Norfolk Terminal Carpenter gang deconstructing, removing, and installing bridge ties on the east approach span of the South Branch Lift Bridge ("Bridge"), which crosses over the Elizabeth River. Compl. at 2. Specifically, Plaintiff worked as a Third Rate Carpenter in Defendant's Bridge and Building Department from 2008 until May 2016. ECF No. 7. Defendant is a railroad corporation organized and existing under the Commonwealth of Virginia. Compl. at 1. Defendant owns the Bridge and considered a maritime employer. ECF No. 7.

         Plaintiff states that while performing his duties on the Bridge, Plaintiff had to cross a wooden "catwalk" walkway platform and a portion of the wooden walkway gave way under the Plaintiff. Compl. at 2. Plaintiff was able to grab on to the hand rails to prevent his fall into the Elizabeth River below. Id. During this incident, Plaintiff was hit in the head with at least one beam from the Bridge, he suffered serious and permanent injuries to his knees, and he suffered spinal injuries. Id. at 2-3. He also had to have knee surgery as a result of this incident. Id. at 3.

         Plaintiff files this action pursuant to the Federal Employers' Liabilities Act ("FELA").[1]Id. at 1. In the Complaint, Plaintiff claims that Defendant negligently: 1) failed to exercise reasonable care to provide Plaintiff with a safe place to work; 2) failed to provide Plaintiff with safe conditions in which to work; 3) failed to properly inspect the bridge's walkways or catwalks and failed to maintain the walkways in safe condition for Plaintiff to perform his assigned job assignment; and 4) failed to comply with Defendant's own written safety and operating rules relating to such bridge and track maintenance and inspection work. Id. at 3.

         Plaintiff originally filed this matter in Norfolk Circuit Court. ECF No. 7. Plaintiff then voluntarily nonsuited the matter after Defendant filed a Plea in Bar on the issue that the Longshore and Harbor Worker's Compensation Act ("LHWCA") provides exclusive jurisdiction over Plaintiffs claim and the court lacked subject matter jurisdiction. Id.

         On January 12, 2018, Plaintiff, through counsel, filed a Complaint against Defendant in this Court. ECF No. 1. On February 7, 2018, Plaintiff filed a Motion for Partial Summary Judgment. ECF Nos. 3-4. On February 15, 2018, Defendant filed this instant Motion to Dismiss, requesting that the Court dismiss Plaintiffs Complaint because the Court lacks subject matter jurisdiction over Plaintiffs action and the LHWCA has exclusive jurisdiction. ECF Nos. 6-7. Defendant filed a Response to Plaintiffs Motion for Partial Summary Judgment on February 21, 2018. ECF No. 8. On February 27, 2018, Plaintiff filed a Reply to the Motion for Partial Summary Judgment and a Response to the Motion to Dismiss. ECF No. 10. On March 2, 2018, Plaintiff filed a Motion for Hearing on the Motion for Partial Summary Judgment and Motion to Dismiss. ECF No. 11. On March 5, 2018, Defendant filed a Reply to the Motion to Dismiss. ECF No. 12. On May 25, 2018, Plaintiff filed a Motion for Discovery Use of Prior State Court Action Depositions. ECF No. 14.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(b)(1) provides for the dismissal of an action if the Court lacks subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). Unless a matter involves an area over which federal courts have exclusive jurisdiction, [2] a plaintiff may bring suit in federal court only if the matter involves a federal question arising "under the Constitution, laws or treaties of the United States/' 28 U.S.C. § 1331 (1980), or if "the matter in controversy exceeds the sum or value of $75, 000, exclusive of interests and costs, and is between citizens of different States." 28 U.S.C. § 1332(a)(1) (2011).

         The court assumes that all factual allegations in the complaint are true if it is contended that a complaint simply fails to allege facts upon which subject matter jurisdiction can be based. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). However, if the factual basis for jurisdiction is challenged, the plaintiff has the burden of proving subject matter jurisdiction. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). Plaintiff bears the burden of proving that subject matter jurisdiction exists by a preponderance of the evidence. United States ex rel Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009). To determine whether subject matter jurisdiction exists, the reviewing court may consider evidence outside the pleadings, such as affidavits or depositions, Adams, 697 F.2d at 1219, or whatever other evidence has been submitted on the issues. GTE South Inc. v. Morrison, 957 F.Supp. 800, 803 (E.D. Va. 1997). A party moving for dismissal for lack of subject matter jurisdiction should prevail only if material jurisdictional facts are not in dispute and the moving party is entitled to prevail as matter of law. Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768. Federal Rule of Civil Procedure 12(h)(3) provides that "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed.R.Civ.P. 12(h)(3).

         III. DISCUSSION

         Pursuant to Defendant's Motion, Defendant contends that the Court does not have subject matter jurisdiction over this matter because the LHWCA provides the exclusive remedy for Plaintiffs claim rather than the FELA.

         LHCWA liability is the exclusive remedy for railroad workers in maritime employment who attempt to assert FELA claims. See Pa. R.R. Co. v. O'Rourke, 344 U.S 334, 338 (1953) ("The later Harbor Workers' Act . . . covered such injuries on navigable water and made its coverage exclusive."); see also 33 U.S.C. § 902(3) (2009); see also 33 U.S.C. ยง 905(a) (1984). Under the LHCWA, courts must address the ...


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