Roberson v. SMG Food & Beverage, LLC
| Decision Date | 21 July 2020 |
| Docket Number | Civil Action No. 3:20cv277-HEH |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | LANIQUE ROBERSON, Plaintiff, v. SMG FOOD & BEVERAGE, LLC, et al., Defendants. |
(Granting Defendants' Motions to Dismiss)
This matter is currently before the Court on Defendant SMG Food and Beverage, LLC's ("SMG") Motion to Dismiss (ECF No. 11), as well as Defendant Timothy Ruffin's ("Ruffin") Motion to Dismiss (ECF No. 13), both of which were filed on May 22, 2020.1 Lanique Roberson ("Plaintiff") filed her Complaint in the City of Richmond Circuit Court on February 19, 2020 (ECF No. 1-1), alleging negligence, and Defendants subsequently removed the case to this Court on April 17, 2020 (ECF No. 1). Shortly thereafter, Plaintiff filed her Amended Complaint on May 8, 2020 (Am. Compl., ECF No. 7), and Defendants now seek to dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction. The parties have fully briefed the issues, and the Court heard oral argument on July 16, 2020. For the reasons that follow, the Court will grant Defendants' Motions to Dismiss.
In a motion brought pursuant to Rule 12(b)(1), the "court may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings." Valasco v. Gov't of Indon., 370 F.3d 392, 398 (4th Cir. 2004) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1999)).2 The Court notes that, in the Amended Complaint, Plaintiff references Defendant SMG's contractual relationship with Neighborhood Housing Services of Richmond, Inc. ("NHSR") but failed to attach evidence of this relationship to her Amended Complaint. (Am. Compl. ¶ 5.) Defendant SMG attached this contract (the "Subcontract"), however, to its Motion to Dismiss. (See Def.'s Mem. Supp. Mot. Dismiss Ex. A, ECF No. 11-2.) Therefore, the Court will consider the Subcontract in addressing Defendants' Motions.3
On or about April 17, 2019, Defendant Ruffin was supervising and managing concessions, on behalf of Defendant SMG, at the Dominion Energy Center (the "Center")4 in Richmond, Virginia. (Am. Compl. ¶¶ 3-4.) For paid events held at theCenter, Defendant SMG engaged volunteers through its contractual relationship with NHSR to serve as bartenders or concessionaires. (Id. ¶ 5.) Plaintiff served as a NHSR volunteer bartender on April 17, 2019, and reported to the Center for work that afternoon. (Id. ¶ 7.)
Volunteer bartenders at the event were tasked with selling beer to event attendees. (Id. ¶ 5.) Defendant SMG kept, maintained, and used a refrigerator at the Center, in which it stored beer for sale during events. (Id.) During their shifts, volunteer bartenders would retrieve beer from this refrigerator in order to complete their sales. (Id.)
Prior to the event on April 17, 2019, Defendant Ruffin, among others, found frozen, broken bottles in the refrigerator at the Center. (Id. ¶ 6.) Defendant Ruffin indicated that he would have housekeeping clean the refrigerator. (Id.) However, Plaintiff was not alerted to the state of the refrigerator, and during her shift, she lacerated her right index finger on the frozen, broken glass in the refrigerator. (Id. ¶ 7.) Plaintiff brought this lawsuit as a result, and Defendants now seek to dismiss Plaintiff's Amended Complaint for lack of subject matter jurisdiction.5
"Federal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). They possess only such power as is authorized by the Constitution or conferred by statute. Id. "The requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicialpower of the United States' and is 'inflexible and without exception.'" Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). Accordingly, Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for dismissal of a claim when the court lacks subject matter jurisdiction over the action. Plaintiffs have the burden of proving subject matter jurisdiction by a preponderance of the evidence. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Piney Run Pres. Ass'n v. Cty. Comm'rs, 523 F.3d 453, 459 (4th Cir. 2008). However, a court should apply the standard applicable to a motion for summary judgment, and "should grant [a] Rule 12(b)(1) motion to dismiss 'only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.'" Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) (citation omitted), cert. denied, 503 U.S. 984 (1992).
Because it has jurisdictional implications, the Court must initially address Defendants' challenge to subject matter jurisdiction under Rule 12(b)(1). As this Court's jurisdiction would be based on diversity of citizenship if jurisdiction is established, the substantive law of Virginia governs. Benner v. Nationwide Mut. Ins. Co., 93 F.3d 1228, 1234 (4th Cir. 1996); see Demetres v. E. W. Constr., Inc., 995 F. Supp. 2d 539, 543 (E.D. Va. 2014) (Smith, J.) , aff'd, 776 F.3d 271 (4th Cir. 2015).
Defendants argue that Plaintiff's claim is barred by the exclusivity provision of the Virginia Workers' Compensation Act (the "Act"), Va. Code § 65.2-100 et seq., and this Court agrees. Therefore, this Court finds Plaintiff has failed to establish subject matter jurisdiction would be proper in this Court, and thus it must dismiss Plaintiff's Amended Complaint.
The Virginia Workers' Compensation Act limits an employee's right of action for injuries sustained during the course of her employment to only those remedies available under the Act—thereby prohibiting common law actions against employers for those same injuries. Va. Code § 65.2-307(A). This provision applies so long as a plaintiff and defendant are considered to have an employer-employee relationship under the Act. Id. A defendant-employer constitutes a statutory employer under the Act when it engages workers to perform part of its "trade, business, or occupation." Va. Code § 65.2-302(A)-(C). This principle has been applied and is well-established in circumstances involving general contractors and subcontractors. Va. Code § 65.2-203(B); see Sykes v. Stone & Webster Eng'g Corp., 41 S.E.2d 469 (Va. 1947).
The Supreme Court of Virginia has addressed the confusion surrounding the determination of whether a plaintiff-employee is engaged in the "trade, business, or occupation" of a defendant-employer. See Stone v. Door-Man Mfg. Co., 537 S.E.2d 305, 309-11 (Va. 2000) (discussing three tests). Initially, that court held that "[t]he test . . . is whether this indispensable activity is, in that business, [n]ormally carried on throughemployees rather than independent contractors." Shell Oil Co. v. Leftwich, 187 S.E.2d 162, 167 (Va. 1972) (citing Hipp v. Sadler Materials Corp., 180 S.E.2d 501 (Va. 1971); Burroughs v. Walmont, 168 S.E.2d 107 (Va. 1969)). This test was later modified to except from such instances "cases where the work is obviously a subcontracted fraction of a main contract."6 Stone, 537 S.E.2d at 310. The third revision of the test, known as the "stranger to the work" test, derives from Va. Code § 65.2-309(A), and recognizes the right of an injured worker to maintain a common law action for personal injury against an "other party." Id. This development followed a ruling that the original test, coined as "normal work" test, is inapplicable when an employee of a general contractor makes a personal injury claim against a subcontractor. Id. (citing Whalen v. Dean Steel Erection Co., 327 S.E.2d 102, 106 (Va. 1985)).
It is thus suggested that claims by an employee of a subcontractor against a general contractor or owner should be subject to the "normal work test," see id. at 309 (citing Whalen, 327 S.E.2d at 105 (collecting cases)), whereas claims by an employee of an owner—or claims by an employee of a general contractor against a subcontractor—are better suited for the "stranger to the work" test, see id. at 309 n.4 (collecting cases); id. at 310. Accordingly, as Plaintiff is a volunteer for subcontractor NHSR, bringing a claim against general contractor and Defendant SMG as well as its employee, DefendantRuffin, the "normal work" test appears to be the appropriate test for application to the immediate case.
Bartending, the work in which Plaintiff was engaged at the time of her injury, is the primary work conducted by Defendant SMG. When Defendant SMG's own employees are able, they engage in bartending at the stands at the Center.7 (ECF No. 11-1 ¶ 9.) It is not only the primary work of Defendant SMG's employees, but it—along with concessions, generally—is essential to Defendant SMG's business.
Additionally, of particular significance in applying the "normal work" test can be the degree of control exercised by the plaintiff-employee. See Shell Oil Co., 187 S.E.2d at 167 (). Here, Defendant SMG enlisted NHSR volunteers, including Plaintiff, to serve as bartenders and concessionaires during an event at the Center. (Am. Compl. ¶ 5.) Plaintiff was to "retrieve beer(s) from the refrigerator at the time of sale to customers," and "at no time referenced herein did NHSR exercise dominion or control over said refrigerator." (Id.) This stands in direct contrast to the facts of Shell Oil Co., where ...
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