Vance v. CHF Int'l

• Decision Date: 19 October 2012
• Docket Number: Civil Case No. RWT 11–3210.
• Citation: 914 F.Supp.2d 669
• Parties: Jeffrey VANCE, et al., Plaintiffs, v. CHF INTERNATIONAL, et al., Defendants.
• Court: U.S. District Court — District of Maryland

914 F.Supp.2d 669

Jeffrey VANCE, et al., Plaintiffs,

v.CHF INTERNATIONAL, et al., Defendants.

Civil Case No. RWT 11–3210.

United States District Court, D. Maryland.

June 20, 2012.

Opinion Denying Motion to Vacate Oct. 19, 2012.

Scott Michael Perry, Klores Perry Mitchell PC, Earl Neville Mayfield, III, Michael P. Lewis, The Lewis Firm PLLC, Thomas Wilfried Mitchell, Bruce J. Klores and Associates PC, Washington, DC, for Plaintiffs.

Tara M. Lee, Joseph C. Davis, DLA Piper LLP (US), Reston, VA, Christopher M. Corchiarino, Linda S. Woolf, Baltimore, MD, Kevin John Walsh, New York, NY, for Defendants.

MEMORANDUM OPINION

ROGER W. TITUS, District Judge.

On November 10, 2011, Plaintiffs, who are the personal representative of the estate of Stephen D. Vance and his wrongful death beneficiaries, filed a six-count complaint against Defendant CHF International(“CHF”) and Defendant Unity Resources Group (“URG”) asserting claims for wrongful death; survivorship; loss of consortium; negligent hiring, supervision, training; and intentional infliction of emotional distress based on the murder of Mr. Vance while he was performing aid work in Pakistan. Doc. No. 1.

On December 21, 2011, CHF moved to dismiss arguing that (1) Defense Base Act (“DBA”) insurance provides Plaintiffs an exclusive remedy and (2) Plaintiffs fail to allege an intentional infliction of emotion distress claim. Doc. No. 6. On January 9, 2012, Plaintiffs filed their opposition, Doc. No. 18, to which CHF replied on January 26, 2012. Doc. No. 19. On February 26, 2012, Plaintiffs filed a motion for leave to file a sur-reply, which CHF opposed on February 14, 2012. Doc. No. 27.

On February 24, 2012, URG moved to dismiss on the basis that this Court cannot exercise personal jurisdiction over it. Doc. No. 28. On March 26, 2012, Plaintiffs filed their opposition, Doc. No. 31, to which URG replied on April 9, 2012. Doc. No. 32. A hearing on the motions was held on April 13, 2012. For the reasons discussed below, Defendants' motions will be granted, and the Plaintiffs' motion will be denied.

I. Background

CHF is a development organization founded in 1952 that works in conflict-affected areas and developing countries. Compl. ¶ 11. CHF relies on private donations and governmental grants to perform its activities. Id. ¶ 12. Plaintiffs allege that in 2008, one of CHF's projects was to implement a job creation and workforce development program in Pakistan's Federally Administered Tribal Area (“FATA”) located in northwest Pakistan. Id. ¶ 13. “The project was funded, in whole or in part, by the United States Agency for International Development (“USAID”) via a Cooperative Agreement.” Id. Plaintiffs contend that “the Cooperative Agreement required that CHF provide security for its employees” and that CHF contracted with URG “in Maryland for URG to consult on security matters to provide security and safety services for CHF personnel” in Pakistan. Id. ¶¶ 14–15. URG is incorporated in Singapore, and its headquarters are located in Dubai.

The Cooperative Agreement between CHF and USAID established the Livelihood Development program. The Agreement states that “[p]ursuant to the authority contained in the Foreign Assistance Act of 1961, as amended [USAID] hereby awards to CHF International ... the sum of $149,998,130 to provide support for the [Program].” Doc. No. 6, Ex. A at 1. The Agreement provided for the implementation of the Program in the FATA, Frontier Regions, and NWFP districts. Id. at A–1. The main components of the Program include “(1) creating jobs, increasing incomes and teaching employable skills, with a focus on unemployed youth; (2) revitalizing community infrastructure and essential services; and supporting established businesses and developing new sustainable business.” Doc. No. 6 at 4.

The Cooperative Agreement required CHF to provide DBA insurance coverage to its employees working on the Program. See id. Ex. A at C–2 (incorporating by reference all provisions of 22 C.F.R. 226); 22 C.F.R. 226, App. A ¶ 9 (“Contracts which require performance outside the United States shall contain a provision requiring Worker's Compensation Insurance (42 U.S.C. 1651, et seq.).”). CHF maintains that it “procured [DBA] insurance coverage for Mr. Vance, as exhibited by the fact that Mr. Vance's beneficiaries have been receiving DBA death benefits since January 26, 2009.” Doc. No. 6 at 4.

CHF hired Mr. Vance to direct the project of implementing a job creation and workforce development program in FATA. Compl. ¶¶ 16–18. Plaintiffs allege that CHF “knew or should have known” about the dangerous, violent conditions in Northwest Pakistan. Id. ¶¶ 18–24. Plaintiffs contend that international organizations warned NGO's, such as CHF, to “implement minimum operating security standards, (“MOSS”), designated to enhance employee security and mitigate risk,” which Plaintiffs allege CHF failed to do. Id. at ¶ 24–25. Plaintiffs maintain that “CHF's failure to provide adequate security was conducted via decisions coordinated from its Maryland headquarters.” Id. ¶ 26.

On November 12, 2008, Mr. Vance and his driver were shot and killed on their way to CHF's office in Peshawar. Id. ¶ 29. Plaintiffs maintain that the driver drove through “choke points, areas where a vehicle could be slowed or stopped by the natural terrain or other man-made obstacles.” Id. ¶ 30. At one choke, “another vehicle struck Mr. Vance's vehicle from behind” and gunmen got out of another vehicle and ambushed Mr. Vance and his driver with assault rifles.” Id. ¶¶ 31–32. Each man was shot multiple times and killed. Id. ¶¶ 33–35. Plaintiffs allege that the vehicle in which Mr. Vance rode was not protected with armor and that his driver was not properly trained to deal with ambush attacks. Id. ¶¶ 27–28. The Vance family was required to identify the decedent's body before leaving Pakistan. Id. ¶ 36.

Mr. Vance's DBA benefits began on November 13, 2008, with the first payment of compensation occurring on January 26, 2009. See id. Ex. B (U.S. Department of Labor Notice of Final Payment or Suspension of Compensation Payments (“DOL Notice”)). CHF contends that Plaintiffs conceded that Mr. Vance's death was covered by CHF's DBA insurance and have confirmed in writing that they are in agreement with respect to the benefits owed to Mr. Vance's statutory dependents under the DBA as well as the amount of those benefits. Id. Ex. C. Plaintiffs maintain that the DBA benefits are not their exclusive remedy.

II. Standard of Reviewa. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) raises the question of whether a court has the authority to hear and decide a case. See Davis v. Thompson, 367 F.Supp.2d 792, 799 (D.Md.2005). A court may grant a motion to dismiss for lack of subject matter jurisdiction “where a claim fails to allege facts upon which the court may base jurisdiction.” Id. (citations omitted). “In a Rule 12(b)(1) motion, the court may look beyond the pleadings and the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists.” Khoury v. Meserve, 268 F.Supp.2d 600, 606 (D.Md.2003) (quotation omitted). When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. See Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991).

b. Motion to Dismiss for Lack of Personal Jurisdiction

“When a defendant files a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving grounds for jurisdiction by a preponderance of the evidence.” Allcarrier Worldwide Servs., Inc. v. United Network Equipment Dealer Ass'n, 812 F.Supp.2d 676, 680 (D.Md.2011) (citing Mylan Labs., Inc. v. Akzo, 2 F.3d 56, 59–60 (4th Cir.1993)). “This burden requires the plaintiff to produce competent evidence to sustain jurisdiction, including, for example, sworn affidavits.” Id. (citing Nichols v. G.D. Searle & Co., 783 F.Supp. 233, 235 (D.Md.1992)). “In determining the existence of jurisdiction, the court should draw all ‘reasonable inferences' from the proof offered by the parties in the plaintiff's favor.” Id. (quoting Mylan Labs., 2 F.3d at 62). The court does not look solely to the evidence produced by the plaintiff, but rather it “must consider ‘all relevant pleading allegations in the light most favorable to the plaintiff,’ and draw reasonable inferences therefrom.” Id. (quoting Mylan Labs., 2 F.3d at 62).

c. Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quotation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not “shown”—that the pleader is entitled to relief.” Id. at 1950;see also Simmons v. United Mortg. & Loan Invest., 634 F.3d 754, 768 (4th Cir.2011) (“On a Rule 12(b)(6) motion, a complaint must be dismissed if it does not allege enough facts to state a claim to relief that is plausible on its face.”) (quotation and emphasis omitted).

A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994...