Sickle v. Torres Advanced Enter. Solutions, LLC

• Decision Date: 24 December 2013
• Docket Number: Civil No. 11–cv–2224 KBJ
• Citation: 17 F.Supp.3d 10
• Parties: David Sickle, et. al., Plaintiffs, v. Torres Advanced Enterprise Solutions, LLC, et. al., Defendants.
• Court: U.S. District Court — District of Columbia

17 F.Supp.3d 10

David Sickle, et. al., Plaintiffs
v.
Torres Advanced Enterprise Solutions, LLC, et. al., Defendants.

Civil No. 11–cv–2224 KBJ

United States District Court, District of Columbia.

December 24, 2013

17 F.Supp.3d 13

Scott J. Bloch, Law Offices of Scott J. Bloch, PA, Washington, DC, for Plaintiffs.

Rachel Hirsch, Alain J. Ifrah, Ifrah PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

Plaintiffs David Sickle and Matthew Elliot (“Plaintiffs”) are former military subcontractors for Torres Advanced Enterprise Solutions, LLC (“Torres AES”). Plaintiffs maintain that Torres AES—acting through one of the principals, Scott Torres—improperly discharged them in retaliation for Elliot's having lodged a workers' compensation claim after he suffered a back injury while on the job. Plaintiffs have brought the instant action against Defendants Torres AES and Scott Torres (“Defendants”), alleging retaliatory discharge for Elliot's having sought workers' compensation benefits under the Defense Base Act (“DBA”), in violation of 33 U.S.C. § 948a, and also claiming several tort and contract breaches in violation of common law. (First Amended Compl. (“Am.Compl.”), ECF No. 7, ¶ 1.)

Before this Court at present is Defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted under Rule 12(b)(6). (Defs.' Mot. to Dismiss First Amended Compl. (“Defs.' Mot.”), ECF No. 10, at 1.)¹ Defendants' motion to dismiss is primarily predicated on the argument that Plaintiffs' federal action is procedurally improper because the DBA and the Longshore and Harbor Workers' Compensation Act (“LHWCA”), on which the DBA is based, establish the exclusive remedy for Plaintiffs' alleged injuries. The Court

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agrees, and for the specific reasons discussed below, Defendants' motion to dismiss the amended complaint is GRANTED . A separate order consistent with this opinion will follow.

I. BACKGROUND

A. Facts Alleged In The Complaint

Torres AES is a military defense contractor that contracts with the Department of Defense, the Department of State, and Saber Security International (another defense contractor) to provide security and other services at United States installations abroad. (Am. Compl. ¶ 4.) Sickle and Elliot are both sub-contractors who worked for Torres AES at Forward Operating Base Shield (“FOB Shield”) in Iraq during 2010. (Id. ¶ 7–8.) Torres AES first hired Sickle as a medic at FOB Shield in February 2009, and it executed a new, one-year contract with Sickle on June 1, 2010. (Id. ¶ 7.) Torres AES contracted with Elliot to work at FOB Shield as a kennel master, managing trained dogs used for explosive detection; this employment contract commenced on February 16, 2010, and was effective through December 31, 2010. (Id. ¶¶ 8–9.)

On March 15, 2010, approximately one month after beginning work at FOB Shield, Elliot injured his back while on base. (Id. ¶ 10–11.) According to the amended complaint, Elliot was asked to help place sandbags on the base, and he suffered what was later thought to be a herniated disc after handling and stacking nearly 400 sandbags that were approximately 60 pounds each. (Id. ¶ 10.) As the Medical Officer that Torres AES employed on base, Sickle examined Elliot's back injury, treated him with pain medication, and recommended that Elliot obtain further medical treatment in the United States. (Id. ¶¶ 10, 12.)

On April 30, 2010, Elliot returned to the United States. (Id. ¶ 16.) Sickle wrote an undated report about Elliot's injury that was faxed on May 12, 2010. (Id. ¶ 11; Ex. A, ECF No. 7–1.) After a failed first attempt to obtain DBA workers' compensation benefits as a result of his injury, Elliot received medical coverage and temporary total disability benefits pursuant to the DBA's administrative process. (Am. Compl. ¶ 13.)

Plaintiffs allege that Elliot was set to return to duty on May 16, 2010, but that Scott Torres terminated Elliot by email and without advance written notice on May 9, 2010, after learning of Elliot's DBA workers' compensation claim. (Id. ¶ 16.)² Plaintiffs further maintain that Torres AES and Scott Torres represented to insurance company representatives that the benefits claim was false and that Elliot was fired for filing a false claim. (Id. )

As concerns Sickle, Plaintiffs allege that Torres AES and Scott Torres “were aware of Mr. Sickle's accident report verifying Mr. Elliot's injury on the job prior to his return home,” (id. ¶ 16), and that they dispatched agents in Iraq during June 2010, to “intimidate[ ] and threaten[ ]” Sickle to retract his report about Elliot's injury (id. ¶ 15). When Sickle refused, Defendants allegedly expressed “great anger” and sent Sickle back to the United States for thirty days to “think things over.” (Id. ¶¶ 16–17.) After Sickle again refused to withdraw his report regarding Elliot's injury, Scott Torres allegedly terminated Sickle without the required notice,

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and also in retaliation for assisting Elliot with his DBA claim. (Id. ¶ 16.)

B. Procedural History

Plaintiffs filed a complaint in this court on December 14, 2011. (ECF No. 1.) On April 9, 2012, Plaintiffs filed an amended complaint, claiming that Elliot and Sickle were improperly discharged in retaliation for the filing of a workers' compensation claim that was valid under the DBA “but which Scott Torres regarded as faked.” (Am. Compl. ¶ 17.) The amended complaint alleges four counts against Defendants Torres AES and Scott Torres; to wit: (1) discrimination and retaliatory discharge in violation of 33 U.S.C. § 948a (Count I); (2) breach of contract and the covenant of good faith and fair dealing (Count II); (3) common law improper retaliatory discharge for the filing of a worker's compensation claim (Count III), and (4) “[c]onspiracy and prima facie tort” on the grounds that Defendants conspired with their workers' compensation insurance carrier to commit the acts alleged in the amended complaint (Count IV). (Id. ¶¶ 20–43.)

On April 27, 2012, Defendants filed a motion to dismiss the complaint in its entirety. Defendants' arguments expressly rely on Federal Rule of Civil Procedure 12(b)(6), dismissal for failure to state a claim upon which relief can be granted, and also Rule 12(b)(2), lack of personal jurisdiction in regard to Scott Torres. (Defs.' Mot. at 1.) As explained further below, in regard to the 12(b)(6) argument, Defendants first maintain that the DBA provides the exclusive remedy for the injury that Plaintiffs allege they have suffered such that Plaintiffs are precluded from bringing an action seeking redress in this Court. Notably, this “exclusivity” argument implicates both exhaustion and preemption principles. (See Mem. in Support of Defs.' Mot. to Dismiss First–Amended Complaint (“Defs.' Mem.”), ECF No. 10, at 13, 15.³ ) Defendants argue, in the alternative, that even if it is legally proper for Plaintiffs to have brought a § 948a claim in federal court, Plaintiffs have failed to allege facts sufficient to demonstrate retaliatory termination under the DBA. (Id. at 19.) Defendants also argue, in regard to Plaintiffs' common law claims, that Plaintiffs have failed to state claims for breach of contract/breach of the covenant of good faith and fair dealing (id. at 22), and for retaliatory termination in violation of public policy, and that the District of Columbia does not recognize a cause of action for a “prima facie tort” (id. at 29).

Defendants' motion to dismiss became ripe on June 1, 2012. The case was transferred to the undersigned on April 5, 2013, and this Court held a hearing on June 6, 2013.

II. LEGAL LANDSCAPE

A. Motion to Dismiss Standards

Although Defendants have expressly grounded their motion to dismiss on Rules 12(b)(6) and 12(b)(2), their primary dismissal arguments are that any claims arising from Plaintiffs' allegedly retaliatory discharges must be resolved through the DBA's administrative claims process, and that the DBA preempts Counts II–IV of Plaintiffs' amended complaint. It is unclear in this District whether a defendant should assert such exhaustion and preemption defenses in a Rule 12(b)(1) motion, as jurisdictional defects, or in a Rule 12(b)(6) motion for failure to state a claim. See, e.g., Hansen v. Billington, 644 F.Supp.2d 97, 102 (2009) ;

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In re Rail Freight Fuel Surcharge Antitrust Litig., 593 F.Supp.2d 29, 40 n. 5 (D.D.C.2008). The Court will therefore lay out the governing standard for each rule.

A Rule 12(b)(1) motion tests whether this Court has subject matter jurisdiction over the complaint. Under Rule 12(b)(1), the plaintiff bears the burden of establishing the existence of jurisdiction by a preponderance of the evidence. See Erby v. United States, 424 F.Supp.2d 180, 182 (D.D.C.2006) ; see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F.Supp.2d 9, 13 (D.D.C.2001) (noting that a court has an ...