Adams v. Alliant Techsystems Inc., CIV.A.7:99CV00813.

• Citation: 218 F.Supp.2d 792
• Decision Date: 23 August 2002
• Docket Number: No. CIV.A.7:99CV00813.,CIV.A.7:99CV00813.
• Parties: Harry ADAMS, et al., Plaintiffs, v. ALLIANT TECHSYSTEMS INC., and Hercules Incorporated, Defendants.
• Court: U.S. District Court — Western District of Virginia

218 F.Supp.2d 792

Harry ADAMS, et al., Plaintiffs, v. ALLIANT TECHSYSTEMS INC., and Hercules Incorporated, Defendants.

No. CIV.A.7:99CV00813.

United States District Court, W.D. Virginia, Roanoke Division.

August 23, 2002.

COPYRIGHT MATERIAL OMITTED

John Gregory Webb, Gary Wheeler Kensall, Michie, Hamlett, Lowry, Rasmussen & Tweel, Charlottesville, VA, Charles Richard Cranwell, Cranwell, Cranwell, Moore & Bullington, PLC, Roanoke, VA, Reuben A. Gyttman, Brian P. McCafferty, Charles V. Fifth, Provost & Umphrey, Washington, DC, Brent Coon, Provost & Umphrey Law Firm, LLP, Beaumont, TX, for Plaintiffs.

Linda Davis Frith, Nancy Fuller Reynolds, Frith, Anderson & Peake, PC, Roanoke, VA, for Defendants.

MEMORANDUM OPINION

WILSON, Chief Judge.

This is a personal injury action brought by plaintiffs, employees or former employees at the Radford Army Ammunition Plant ("Arsenal"), against defendants, Alliant Techsystems, Inc. and Hercules Incorporated, for hearing loss plaintiffs allegedly suffered while working at the Plant. On May 7, 2002, this court entered a memorandum opinion granting in part and denying in part defendants' first motion for summary judgment. This matter is before the court on plaintiffs' motion for reconsideration. Plaintiffs argue that the court erroneously decided that Virginia's statute of limitation applied to their claims because: (1) not all of the Arsenal is a federal enclave under the exclusive jurisdiction of the United States and governed by 16 U.S.C. § 457, (2) the defendants agreed not to assert Virginia's statute of limitations, (3) 16 U.S.C. § 457 does not make Virginia's statute of limitations applicable to these claims, and (4) even if Virginia's statute of limitations applies, there are questions of fact for the jury regarding fraudulent concealment that would toll Virginia's statute of limitations. For the reasons stated below the court will not reconsider its summary judgment opinion.

I.

Plaintiffs' argument that part of the Arsenal is not on a federal enclave subject to the National Parks Act, 16 U.S.C. § 457, is a new one, not raised while the summary judgment motion was pending. After the court ruled, and well after the issue was effectively closed, plaintiffs submitted evidence which they claim raises the prospect that some plaintiffs, although they cannot even say which plaintiffs, may have worked on Arsenal property that adjoined but was not within the federal enclave. The issue has been fairly closed and the court will not reconsider it.

In their summary judgment memorandum, defendants state:

In April 1942, the Commonwealth of Virginia ceded jurisdiction over the realty comprising the Plant to the United States. The Commonwealth reserved only the jurisdiction to serve civil and criminal process on the Plant realty. Consequently, the Plant became a federal enclave with all the rights and obligations of a federal domain.

(Mem. in Supp. of Defs' First Summ. J. Mot., at 2). In support of this proposition, defendants submitted the affidavit of Chuck Gardner, Contract Specialist and former Safety Director at the Radford Army Ammunition Plant. In his affidavit, Gardner stated, "In April 1942, by Deed of Cession, the Commonwealth of Virginia ceded exclusive jurisdiction to the United States of America to all realty comprising the Plant, retaining jurisdiction only with regard to the service of civil or criminal process."¹

In their Opposition Memorandum, plaintiffs recognized defendants' assertion that "the Radford Arsenal is a federal enclave" governed by federal law (Opp. to Def.'s First Mot. for Summ. J. at 17.), and did not contest the point. In fact, plaintiffs argued that the National Parks Act applies. Plaintiffs argued that defendants were not entitled to governmental immunity for injuries that occurred at the Arsenal because "personal injuries occurring in federal enclaves are subject to state tort law pursuant to 16 U.S.C. § 457." (Id. at 14). According to plaintiffs, "16 U.S.C. § 457 makes clear that plaintiffs may obtain recovery for damages under state law for persons injured on federal enclaves." (Id. at 18). Therefore, in their words: "Virginia substantive law on negligence does apply here and Defendants are unable to assert any federal immunity (or pre-emption) based solely on the fact that the Radford Arsenal is a federal enclave." (Id.) Plaintiffs repeated this argument during the summary judgment hearing. Until they moved for reconsideration, plaintiffs produced no evidence contradicting defendants' affidavits and never challenged the assertion that the Arsenal was on a federal enclave; instead, they consistently argued that the National Parks Act made state law applicable to personal injury actions occurring on federal enclaves.

In short, before the court issued its May 7, 2002 opinion, both parties agreed that the Arsenal was on a federal enclave, a fact incidentally supported by the record. The issue was properly before the court, and the court decided it, stating that it would grant judgment in the cases listed in Appendix A of the court's May 7, 2002 opinion.² Accordingly, the court finds no reason to reconsider the issue.

II.

Plaintiffs argue that when this case was dismissed by the Minnesota state court based on forum non conveniens the defendants "clearly agreed not to apply a two-year statute of limitations period." Alternatively, plaintiffs argue that summary judgment is inappropriate because there is a genuine question of material fact as to the terms of the agreement. The court rejects both arguments.

The submissions of the parties, including the Minnesota court's order, disclosed no genuine issue of material fact as to the terms of the agreement. All of the evidence before the court indicated, and still indicates, that defendants agreed to waive any statute of limitations defense that was not available to them in Minnesota. The Minnesota court's order granting defendants' motion to dismiss based on forum non conveniens states that the "dismissal is GRANTED on the condition that defendants waive defenses involving: personal jurisdiction, service of process, and statutory limitations which did not exist in Minnesota as of July 1, 1997." (Mem. in Supp. of Defs' First Summ. J. Mot., Ex. A). Also, in their October 30, 1997 Reply Memorandum submitted to the Minnesota court, defendants stated that they "would not oppose the inclusion within the Court's dismissal Order of appropriate language to state that the Defendants agree to waive defenses in Virginia based on personal jurisdiction, process, and statute of limitations which did not exist in Minnesota as of July 1, 1997, the date [the] action was filed with the Court." (Opp. to Defs' First Mot. for Summ. J., Ex. 4). Faced with this clear language, plaintiffs now argue that, in discussions between the parties during the Minnesota litigation, defendants agreed not to assert Virginia's two-year statute of limitations.³ However, plaintiffs never marshaled any evidence regarding these discussions, and the time to do so has passed.

Plaintiffs also argue that since defendants did not assert in the Minnesota court that Virginia's statute of limitations would apply under the National Parks Act, defendants cannot assert Virginia's statute of limitations in this court. However, nothing indicates that defendants waived the ability to assert Virginia's statute of limitations. Instead, the submissions showed only that defendants agreed to waive any statute of limitations defense that was not available in the Minnesota court on July 1, 1997. As the court explained in its summary judgment opinion and reiterates in this opinion, the National Parks Act would have required the Minnesota court to apply Virginia's statute of limitations. Since defendants did not waive statute of limitations defenses that were available in the Minnesota state court, defendants can assert Virginia's statute of limitations made applicable by § 457.⁴

III.

As the court held in its summary judgment opinion, the National Parks Act, 16 U.S.C. § 457, has its own choice of law rule: the court must apply "the law of the State within the exterior boundaries of which [the enclave] may be," including the surrounding state's statutes of limitations.⁵ Plaintiffs argue that the court should reconsider that holding. They contend that the Act incorporates only state substantive law and not state procedural law and that, in Virginia, statutes of limitations are procedural laws that affect the legal remedy and not the right itself. It follows, plaintiffs argue, that the Act did not absorb Virginia's statutes of limitations. The court concludes, however, that although the National Parks Act does not incorporate state procedural housekeeping rules, such as rules of evidence or civil procedure, the Act does incorporate outcome determinative state law, including statutes of limitations, as in cases arising under the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq. ("Lands Act"). The Supreme Court's opinion in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), is instructive.⁶

In Chevron Oil, the Supreme Court applied the Lands Act, which is similar and analogous to the National Parks Act. "The Lands Act makes the Outer Continental Shelf, including fixed structures thereon, an area of exclusive federal jurisdiction." Chevron Oil, 404 U.S. at 100, 92 S.Ct. 349. "The Act extends the laws of the United States to this area ... and provides that the laws of the adjacent State shall also apply `[t]o the extent that they are applicable and not inconsistent' with applicable federal laws, 43 U.S.C. § 1333(a)(2)." Id.⁷ In Chevron Oil, the plaintiff was injured while working on a drilling rig on the Outer Continental Shelf off the Louisiana coast. Id. at 98, 92 S.Ct. 349. The District Court found the case barred by Louisiana's one-year statute of limitation for personal injury actions. Id. at 99, 92 S.Ct. 349. The Court...