Napper v. United States

• Decision Date: 19 March 2019
• Docket Number: CIVIL ACTION NO. 5:18-cv-00286
• Citation: 374 F.Supp.3d 583
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Scott R. NAPPER, Administrator of the Estate of Joshua Napper, Plaintiff, v. UNITED STATES of America, Defendant.

374 F.Supp.3d 583

Scott R. NAPPER, Administrator of the Estate of Joshua Napper, Plaintiff,

v.UNITED STATES of America, Defendant.

CIVIL ACTION NO. 5:18-cv-00286

United States District Court, S.D. West Virginia, Beckley Division.

Signed March 19, 2019

Adam J. Schwendeman, Jackson Kelly, Charleston, WV, Daniel Patrick Corcoran, John E. Triplett, Jr., Matthew C. Carlisle, Theisen Brock, Marietta, OH, for Plaintiff.

Fred B. Westfall, Jr., U.S. Attorney's Office, Charleston, WV, for Defendant.

MEMORANDUM OPINION AND ORDER

IRENE C. BERGER, UNITED STATES DISTRICT JUDGE

The Court has reviewed the Motion of the United States to Dismiss this Civil Action (Document 7), the Memorandum in Support of the Motion of the United States to Dismiss (Document 8-1), Plaintiff's Memorandum in Opposition to Motion to Dismiss (Document 14), the Reply Memorandum in Support of the Motion of the United States to Dismiss this Civil Action (Document 16), the Motion to Amend Complaint, Instanter (Document 17) and accompanying Amended Complaint (Document 17) as well as the attached exhibits, and the Memorandum of the United States in Opposition to Plaintiff's Motion to Amend Complaint, Instanter (Document 21). For the reason stated herein, the Court finds that the motion to amend should be granted and the motion to dismiss should be denied.

FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

The statement of facts set forth below is taken from the Plaintiff's amended complaint and supporting exhibits.¹ The Plaintiff, Scott Napper, Administrator of the Estate of Joshua Napper, deceased, filed a one-count amended complaint against the Defendant, the United States of America, pursuant to the Federal Tort Claim Act (hereinafter "FTCA") 28 U.S.C § 1346(b). Joshua Napper, along with 28 other miners, died on April 5, 2010, at the Upper Big Branch Mine (hereinafter "the Mine") due to an explosion.² After the explosion, the Mine Safety and Health Administration (hereinafter "MSHA") began investigating its cause. MSHA determined that on a longwall face, methane ignition at the Mine transitioned into a small methane explosion that propagated into a massive coal dust explosion and the deadliest U.S. coal mine disaster in nearly forty years.

MSHA also reviewed its conduct in the period leading up to the fatal accident. The investigation revealed that MSHA inspectors violated mandatory regulations which created, maintained, or contributed to unsafe working conditions including the violations before and including those cited in the March 6, 2012 Internal Review of MSHA's actions at the Mine. For example, according to the report, in violation of the General Coal Mine Inspection Procedures and Inspection Tracking System Handbook, some parts of the mine were not inspected during the previous six regular inspections, fire protection equipment inspections were not conducted or documented, checks for imminent dangers were not conducted and self-contained self-rescue devices were not properly inspected. Moreover, inspection trainees conducted some inspections.

The Plaintiff, the father of the deceased, instituted this action on February 9, 2018. The sole count of the complaint asserts claims for negligence and wrongful death under West Virginia law. The Plaintiff alleges that "the United States is liable here for negligently executing a duty it undertook, and for failing to exercise reasonable care to prevent harm to Joshua Napper caused by the United States' affirmative negligent conduct." (Compl. ¶ 32).

On May 11, 2018, the Defendant moved to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The United States contends that (1) the Plaintiff's claims are barred by the sovereign immunity of the United States, (2) the Court lacks subject matter jurisdiction under the FTCA, because the Plaintiff's claims are barred by the discretionary function exception, (3) the Court lacks subject matter jurisdiction because the United States has not waived sovereign immunity under the FTCA to allow tort claims based on alleged violations of federal law, and (4) the Plaintiff's claims are based on alleged violations of the Mine Act, and federal law does not recognize a private right of action for alleged violations of the Mine Act.

On May 25, 2018, the Plaintiff filed a memorandum in opposition to the motion to dismiss and on June 1, 2018, filed a motion to amend the complaint and attached the amended complaint. On June 1, 2018, the Defendant filed a reply memorandum in support of its motion to dismiss. Finally, on June 16, 2018, the Defendant filed a memorandum opposing the Plaintiff's motion to amend the complaint, wherein it argued that the amendments were not sufficient to defeat its motion to dismiss.³

STANDARD OF REVIEW

A. Motion to Dismiss-12(b)(1)

A motion to dismiss pursuant to Rule 12(b)(1) raises the fundamental question of whether a court is competent to hear and adjudicate the claims brought before it. "In contrast to its treatment of disputed issues of fact when considering a Rule 12(b)(6) motion, a court asked to dismiss for lack of jurisdiction may resolve factual disputes to determine the proper disposition of the motion." Thigpen v. United States , 800 F.2d 393, 396 (4th Cir. 1986), rejected on other grounds, Sheridan v. United States , 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988) (but explaining that a court should accept the allegations in the complaint as true when presented with a facial attack that argues insufficiency of the allegations in the complaint). Reasonable discovery may be necessary to permit the party seeking jurisdiction to produce the facts and evidence necessary to support their jurisdictional allegations. Id. The party seeking jurisdiction also has the burden of proving that subject matter jurisdiction exists. See Richmond, Fredericksburg & Potomac R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991). Dismissal for lack of subject matter jurisdiction is proper only if there is no dispute regarding the material jurisdictional facts and the moving party is entitled to prevail as a matter of law. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp. , 166 F.3d 642, 647 (4th Cir. 1999).

B. Motion to Dismiss-12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli , 588 F.3d 186, 192 (4th Cir. 2009) ; Giarratano v. Johnson , 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Additionally, allegations "must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1). "[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In other words, "a complaint must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. Moreover, "a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ) (internal quotation marks omitted).

The Court must "accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). The Court must also "draw [ ] all reasonable factual inferences from those facts in the plaintiff's favor." Edwards v. City of Goldsboro , 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions "are not entitled to the assumption of truth" and are insufficient to state a claim. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Furthermore, the court need not "accept as true unwarranted inferences, unreasonable conclusions, or arguments." E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship , 213 F.3d 175, 180 (4th Cir. 2000). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ "

Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

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.’ " Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). In other words, this "plausibility standard requires a plaintiff to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’ " Francis , 588 F.3d at 193 (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A plaintiff must, using the complaint, "articulate facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief." Francis , 588 F.3d at 193 (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). "Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.

DISCUSSION

The Defendant has moved for dismissal based on Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court will initially address the 12(b)(1) motion, because the 12(b)(6) challenge is moot if the Court lacks subject matter jurisdiction.

The Court must first address whether the United States...