United States District Court, E.D. Virginia, Norfolk Division
MEMORANDUM OPINION AND ORDER
KAYMOND A. JACKSON UNITED STATES DISTRICT JUDGE
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.
FACTUAL AND PROCEDURAL HISTORY
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.
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.
files this action pursuant to the Federal Employers'
Liabilities Act ("FELA").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.
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.
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.
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,
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).
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).
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.
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. § 905(a) (1984).
Under the LHCWA, courts must address the ...