Kirkland v. Huntington Ingalls Inc., CIVIL NO. 1:17-cv135-HSO-JCG

• Decision Date: 11 September 2018
• Docket Number: CIVIL NO. 1:17-cv135-HSO-JCG
• Parties: JOHNNY KIRKLAND PLAINTIFF v. HUNTINGTON INGALLS INCORPORATED DEFENDANT
• Court: U.S. District Court — Southern District of Mississippi

JOHNNY KIRKLAND PLAINTIFF v. HUNTINGTON INGALLS INCORPORATED DEFENDANT

CIVIL NO. 1:17-cv135-HSO-JCG

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI SOUTHERN DIVISION

September 11, 2018

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT HUNTINGTON INGALLS INCORPORATED'S MOTION FOR SUMMARY JUDGMENT [50] AND DENYING AS MOOT DEFENDANT'S MOTION TO DISMISS [48]

This matter is before the Court on Defendant Huntington Ingalls Incorporated's Motion to Dismiss [48] or in the alternative Motion for Summary Judgment [50]. This Motion is fully briefed. After review of the Motions, the Response, the related pleadings, the record, and relevant legal authority, the Court finds that Defendant Huntington Ingalls Incorporated's Motion for Summary Judgment [50] should be granted and Plaintiff Johnny Kirkland's claims should be dismissed. Defendant's Motion to Dismiss [48] should be denied as moot.

I. BACKGROUND

A. Facts and procedural history

Construing the relevant facts in the light most favorable to the nonmoving party, in either 1971 or 1978, Plaintiff Johnny Kirkland ("Kirkland") was hired by Defendant Huntington Ingalls Incorporated ("Ingalls"). Employee Separation Certificate [6-1] at 4. According to Ingalls, the actual last workday of Kirkland's employment was September 18, 1978, and he was released from employment on September 25, 1978, based upon a designation of "CODE 32-PROBATIONARY RELEASE-MISSING TIME." Id.

Invoking federal question jurisdiction, Kirkland filed a pro se Complaint [1] in this Court on May 2, 2017, naming as Defendants Ingalls Shipyard, John (sic) Manville, and Fibre Board. Plaintiff asserts that while he was employed at Ingalls Shipyard, he was exposed to asbestos which resulted in "his illness" in violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Compl. [1] at 1-5. Kirkland seeks damages in the amount of "2.8 MILLION." Id. at 4.

After the Magistrate Judge entered an Order [4] requiring additional information on the issue of subject-matter jurisdiction, Kirkland filed a Response [6] contending that Defendants acted under color of state and federal law while causing his damages. Resp. [6] at 1-5. Kirkland alleges that Ingalls Shipyard was his employer, while John (sic) Manville and Fibre Board were suppliers, and that Defendants violated his Fourteenth Amendment rights by "failing to protect my safety and health from harmful chemicals" that were sold by John (sic) Manville and Fibre Board to Ingalls Shipyard. Id. Kirkland asserts that his

rights under the Eighth Amendment was (sic) violated by hollowing (sic) at me, and threatening to fire me if I didn't do what he told me to do, and by working me under age.

Id. at 5. Kirkland states that he began working at Ingalls Shipyard in 1971 at the age of 13, although he stated on his application that he was 18. Id. at 4. Kirklandworked as a third class laborer, which included cleaning up, painting, cleaning insulation, grinding rust off tanks, cleaning out chemical tanks, and pipe fitting, all in the bottom of ships without any safety gear. Id.

Based upon the Exhibits [6-1] attached to Plaintiff's Response [6] to the Magistrate Judge's Order, the Magistrate Judge directed the Clerk of Court to "alter the docket to reflect that Defendants' proper names are: The Ingalls Shipbuilding Corporation, Johns Manville, and Fibreboard Corporation." Order [7] at 1.

Kirkland next filed an Amended Complaint [22], without leave of Court, on October 4, 2017, naming additional Defendants but dismissing Johns Manville.¹ Am. Compl. [22] at 1-9. Kirkland states, in pertinent part, that he worked at age 13 as a laborer in the "27th Department" painting, cleaning up, carrying out insulation in the trash, sand blasting, and rust grinding. Id. at 6. Kirkland further asserts that, in addition to the illness he suffers from asbestos exposure, he experienced chemical burns on his skin and hearing loss due to the loud noise at the shipyard and due to a piece of "hot steel" that flew into his ear. Id. at 6-7. Kirkland seeks damages in the amount of "5 or TEN BILLION DOLLARS," and claims that hisfather worked at Ingalls and was exposed to asbestos, which somehow contributed to Plaintiff's illness. Id.

On December 4, 2017, Kirkland filed a Second Amended Complaint [36] which was stricken from the record by the Magistrate Judge for noncompliance with Federal Rule of Civil Procedure 15. Order [38]. Kirkland then filed a Motion to Amend Pleadings [46] on February 2, 2018, apparently seeking to supplement his Amended Complaint with an allegation that Ingalls failed to screen his employment application, or it would have discovered that he was a minor and that he had used his cousin's Social Security number to obtain employment. The Court granted this Motion [46] as unopposed.

B. Ingalls' Motion to Dismiss [48] or, alternatively, its Motion for Summary Judgment [50]²

Ingalls has filed a Motion to Dismiss pursuant to Federal Rule Civil Procedure 12(b)(1) and 12(b)(6), Mot. to Dismiss [48], or, alternatively, for Summary Judgment, Mot. Summ. J. [50]. Specifically, Ingalls contends that Kirkland's

claims are within the exclusive jurisdiction of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. (LHWCA) and are barred by the exclusive remedy provision of § 905(a) of that Act. In the alternative, to the extent Plaintiff's claims are not preempted by the LHWCA, his claims fail to state a claim upon which relief can be granted because they are implausible and/or time barred by § 15-1-49(1) of the Mississippi Code.

Mot. to Dismiss [48] at 1; Mot. for Summ. J. [50] at 1. In support of its Motions, Ingalls attaches the Affidavit of Steve Pierce ("Pierce"), Manager-Risk Management of Northrop Grumman Shipbuilding, Inc., which avers that while Kirkland was employed there in 1978, Ingalls maintained workers' compensation coverage under both the Mississippi Workers' Compensation Act and the LHWCA.³ In addition, Ingalls required all of its subcontractors to carry workers' compensation coverage. Pierce Affs. [48-1] at 1; [50-1] at 1.

In response, Kirkland admits that Ingalls is "covered under the LHWCA" but argues for the first time that, in addition to any claims that fall within the purview of the LHWCA, he is also "suing Huntington Ingalls Incorporation (sic) under the Dual Capacity Doctrine for strict liability in tort, breach of duty, negligence, punitive damages, and illegal underage working," citing Mississippi Code § 71-1-17. Mem. in Opp'n [63] at 1-5. Kirkland also posits that his claims are not barred "according to § 15-1-49(2) of the Mississippi Code," and that the LHWCA would not want anything to do with Ingalls "hiring underage children and exposing them to asbestos." Resp. in Opp'n [62] at 1-2.

Ingalls replies that to the extent Kirkland's claims are not preempted by the LHWCA, they are barred by the three-year statute of limitations found at Mississippi Code § 15-1-49(1). Ingalls maintains that although Kirkland is asserting for the first time in his Response that his injuries were latent, such that they fall within the exception set forth at Mississippi Code § 15-1-49(2), Kirkland has failed to come forward with relevant material evidence to support such a contention. Reply [65] at 1-5.

II. DISCUSSION

A. Relevant legal standards

1. Motion to Dismiss

Federal Rule of Civil Procedure 12(b)(1) permits a party to challenge the subject-matter jurisdiction of the district court to hear a case. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). Subject-matter jurisdiction may be determined on the basis of: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id. The burden of proof on a Rule 12(b)(1) motion rests with the party seeking to invoke the Court's jurisdiction. Id. (citation omitted). "When a Rule 12(b)(1) motion is filed in conjunction with other Rule 12 motions, the court should consider the Rule (12)(b)(1) jurisdictional attack before addressing any attack on the merits." Id. (citation omitted). Because Kirkland has alleged that Ingalls violated his federalconstitutional rights, the Court finds that it has subject-matter jurisdiction pursuant to 28 U.S.C. § 1331.

In considering a motion to dismiss under Rule 12(b)(6), a court accepts "all well-pleaded facts as true" and views them in the light most favorable to the plaintiff. Firefighters' Ret. Sys. v. Grant Thornton, LLP, 894 F.3d 665, 669 (5th Cir. 2018) (quotation omitted). "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) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Specifically, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

"[T]he mere presence of additional issues in the record" does not require a court to treat a motion to dismiss pursuant to Rule 12(b)(6) as one for summary judgment. Britton v. Seale, 81 F.3d 602, 605 n.1 (5th Cir. 1996) (citation omitted). In addition, "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [plaintiff's] claim." Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citation omitted). Federal Rule of Civil Procedure 12(d) provides, however, that "on a motion under Rule 12(b)(6) or 12(c), when matters outside the pleadings are presented to and not excluded by the court, themotion must be treated as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d).

Based on the...