Butcher v. Halliburton Energy Services, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

JUSTIN BUTCHER and JENNIFER

BUTCHER, husband and wife,

Residents of Big Stone Gap,

Virginia,

Plaintiffs,

v. Civil Action No. 1:20-CV-74

(Judge Kleeh)

HALLIBURTON ENERGY SERVICES,

INC., a Delaware corporation,

ANTERO RESOURCES CORPORATION,

a Delaware corporation, and

SAFETY MANAGEMENT SYSTEMS,

LLC, a Louisiana Corporation,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING IN PART AND DENYING IN PART

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

Pending before the Court is Defendant Halliburton Energy

Services, Inc.’s (“Halliburton”) Motion to Dismiss [ECF No. 60].

The matter is fully briefed and ripe for decision. For the reasons

discussed herein, the motion is granted, in part, and denied, in

part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Justin Butcher (sometimes hereinafter “Justin

Butcher” or “Butcher”) is a resident of Appalachia, Wise County,

Virginia. Amend. Compl., ECF No. 56, at ¶ 2. Butcher alleges

he worked for Halliburton Energy Services, Inc. (“Halliburton”) in

Pennsboro, Ritchie County, West Virginia. Id. He was based out

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

of Halliburton’s Zanesville, Ohio yard. Id. at Ex. 8. At the

time of the injury giving rise to this litigation, Butcher was

working at a customer’s location – Defendant Antero Resources

Corporation (“Antero”) – in Ritchie County, West Virginia. Id.

Butcher suffered a workplace injury on April 30, 2018 while

working on Antero’s Petroleum Pad 3225, again, in Ritchie County,

West Virginia. Specifically, Butcher alleges he was performing

general maintenance on a Q10-high pressure pump and injured his

hand when he reached into a pot. Id. at ¶17.

The number of days Butcher spent working within the borders

of the state of West Virginia is a significant issue here. Those

dates are addressed in the Amended Complaint and established by

Halliburton’s payroll records and the affidavit of Jessica

Knittle, HSE Manager. ECF Nos. 61-1 and 61-2. Again, he commenced

employment with Halliburton in Ohio on February 6, 2018. From

that start date through March 13, 2018, Butcher was either training

(i.e., working) in Ohio or had scheduled time off. On March 14,

2018, Butcher worked on the aforementioned well pad in Ritchie

County, West Virginia. From March 23, 2018 through April 5, 2018,

he was either on vacation or had scheduled time off. Butcher

returned to Ritchie County, West Virginia for work on April 6,

2018 and worked there through April 17, 2018. He had time off

from work from April 18, 2018 through April 23, 2018. Butcher

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

resumed work on the Ritchie County well pad on April 24, 2018 and

worked there through the date of injury, April 30, 2018.

Plaintiffs allege Justin Butcher was assigned or physically

present in West Virginia for 48 calendar days. Some of those days

represent days where Plaintiff did not perform work or was on

scheduled vacation. Plaintiffs’ Amended Complaint scarcely

addresses the issue but does not allege Justin Butcher performed

work in excess of thirty (30) days within the borders of West

Virginia. Plaintiff’s Response Brief argues, multiple times, he

worked in West Virginia EXACTLY thirty (30) days. Halliburton’s

aforementioned exhibits count Butcher’s days performing work in

West Virginia at 28.

Plaintiff Butcher alleges a number of causes of action against

Defendants. Halliburton’s motion focuses on the claims for injury

in violation of West Virginia Code § 23-4-2 otherwise known as a

deliberate intent claim (Count III), workers compensation

discrimination in violation of West Virginia Code § 23-5A-1 et

seq. (Count VI) and workers’ compensation fraud (also, Count VI).

II. STANDARD OF REVIEW

A. Rule 12(b)(1)

Rule 12 of the Federal Rules of Civil Procedure provides that

“[i]f the court determines at any time that it lacks subject-

matter jurisdiction, the court must dismiss the action.” Fed. R.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

Civ. P. 12(h)(3). Parties may present that defense via motion.

See Fed. R. Civ. P. 12(b)(1). The burden of proving subject matter

jurisdiction on a motion to dismiss lies with the party asserting

jurisdiction. CSX Transp., Inc. v. Gilkison, No. 5:05CV202, 2009

WL 426265, at *2 (N.D.W. Va. Feb. 19, 2009).1 No presumptive

truthfulness attaches to the plaintiff's allegations, and the

existence of disputed material facts will not preclude the trial

court from evaluating the merits of the jurisdictional claims. Id.

at *2.

B. Rule 12(b)(6)

Rule 12(b)(6) allows a defendant to move for dismissal upon

the ground that a complaint does not “state a claim upon which

relief can be granted.” In ruling on a 12(b)(6) motion to dismiss,

a court “must accept as true all of the factual allegations

contained in the complaint.” Anderson v. Sara Lee Corp., 508 F.3d

181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,

94 (2007)). A court is “not bound to accept as true a legal

conclusion couched as a factual allegation.” Papasan v. Allain,

478 U.S. 265, 286 (1986).

1 Plaintiffs’ reliance on the guidance of the Supreme Court of

Appeals of West Virginia and Saverse v. Allstate Ins. Co., 672

S.E.2d 355 (W. Va. 2008) with respect to the relative burdens

imposed under the FEDERAL Rules of Civil Procedure is inapposite.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). A motion to dismiss “does not resolve

contests surrounding the facts, the merits of a claim, or the

applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 942, 952 (4th Cir. 1992).

A motion filed under Rule 12(b)(6) challenges

the legal sufficiency of a complaint, Jordan

v. Alternative Resources Corp., 458 F.3d 332,

338 (4th Cir. 2006), considered with the

assumption that the facts alleged are true,

Eastern Shore Mkts, Inc. v. J.D. Assocs. Ltd.

P'ship, 213 F.3d 175, 180 (4th Cir. 2000). And

the legal sufficiency of a complaint is

measured by whether it meets the standards for

a pleading stated in Rule 8 (providing general

rules of pleading), Rule 9 (providing rules

for pleading special matters), Rule 10

(specifying pleading form), Rule 11 (requiring

the signing of a pleading and stating its

significance), and Rule 12(b)(6) (requiring

that a complaint state a claim upon which

relief can be granted).

Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009)

C. Application

Halliburton urges the Court to proceed under Rule 12(b)(1)

challenging this Court’s jurisdiction. However, Halliburton’s

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

motion under this procedural avenue is misplaced. “A court must

have the power to decide the claim before it (subject-matter

jurisdiction) and power over the parties before it (personal

jurisdiction) before it can resolve a case.” Lightfoot v. Cendant

Mortg. Corp., -- U.S. --, 137 S. Ct. 553, 562 (2017) (internal

citation omitted). Although Halliburton argues (and as this Court

concludes) Plaintiff Justin Butcher cannot seek relief under W.

Va. Code § 23-4-2, the question of whether this Court has the

authority or power to decide such a question – the core of a

subject matter jurisdiction challenge - can hardly be disputed.

Plaintiffs originally filed this matter in this Court and alleged

jurisdiction was proper under “29 [sic] USCA §1332.” ECF No. 1 at

¶ 12. Subsequently, Plaintiffs filed their Amended Complaint [ECF

No. 56], the operative pleading currently before the Court,

alleging the same jurisdictional predicate – that this matter

represents “a dispute between citizens of different states,

wherein the amount in controversy, including costs, exceeds the

jurisdictional threshold of $75,000.” ECF No. 56 at ¶ 12. At no

point has any party challenged whether the requirements of 28

U.S.C. § 1332 have been satisfied.2

2 Of course, unlike personal jurisdiction, subject matter

jurisdiction can never be forfeited or waived. See U.S. v. Cotton,

535 U.S. 625, 630 (2002). The Court, mindful of its obligation to

always ensure subject matter jurisdiction exists, see, e.g., Rule

12(h)(3), can find no basis to legitimately question whether the

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

Instead, Halliburton advances the argument that because

Plaintiff Justin Butcher cannot avail himself of the protections

of West Virginia workers’ compensation law, including the

deliberate intent statute, this Court somehow lacks jurisdiction.

The argument confuses the issue. “It is firmly established in our

cases that the absence of a valid (as opposed to arguable) cause

of action does not implicate subject-matter jurisdiction, i.e.,

the courts' statutory or constitutional power to adjudicate the

case.” Verizon Maryland, Inc. v. Pub. Serv. Comm’n of Maryland,

535 U.S. 635, 642-43 (2002) (internal quotation marks and citation

omitted)(analyzing jurisdictional challenge under 28 U.S.C. § 1331

as opposed to § 1332). The Rule 12 challenge to Plaintiffs’ claims

is better phrased as one of plausibility even if the question is

if Justin Butcher is covered by the statutes he cites in his

Amended Complaint. This Court most certainly has the legal

authority to answer that question. Thus, the Court views the

pending motion through the Rule 12(b)(6) prism.

In a related vein, Plaintiffs seek shelter under Rule 56

because, as they contend, the reference to exhibits transforms

Halliburton’s motion to one seeking summary judgment. The Court

disagrees. As the Fourth Circuit has noted, courts are not

statutory requirements of diversity jurisdiction have been

satisfied. See 28 U.S.C. § 1332.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

required to “accept as true allegations that are merely conclusory,

unwarranted deductions of fact, or unreasonable inferences ... Nor

must [courts] accept as true allegations that contradict matters

properly subject to judicial notice or by exhibit.” Veney v.

Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Sprewell v.

Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).3

III. DISCUSSION

Plaintiff Butcher asserts multiple claims against Halliburton

made subject of the pending motion. The Court addresses each in

turn.

A. Butcher’s Statutory Deliberate Intent Claim Fails Because

He Is Not Entitled To Recover Benefits for Injury, Disease

or Death Under West Virginia Workers’ Compensation Law.

Butcher initially asserts a claim for injury against

Halliburton, his employer, for alleged violation of West Virginia

Code § 23-4-2, or “deliberate intent.” ECF No. 56 at ¶¶ 44-50.

Butcher seeks the usual array of damages. Id. at ¶ 49. Halliburton

argues Butcher cannot seek such damages – or any compensation under

West Virginia workers’ compensation law – because he was only a

temporary employee within the state.

West Virginia Code § 23-2-1 proscribes limits on West Virginia

law and its application to “temporary employees.”

If the employee is a resident of a state other

than this state and is subject to the terms

3 But see n.5, infra.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

and provisions of the workers' compensation

law or similar laws of a state other than this

state, the employee and his or her dependents

are not entitled to the benefits payable under

this chapter on account of injury, disease or

death in the course of and as a result of

employment temporarily within this state, and

the rights of the employee and his or her

dependents under the laws of the other state

shall be the exclusive remedy against the

employer on account of any injury, disease or

death.

W. Va. Code § 23-2-1c(c). Butcher is a resident of the

Commonwealth of Virginia. ECF No. 56 at ¶ 2. Thus, a central

question as to whether he can advance a “deliberate intent” claim

for the injuries allegedly sustained while working in West Virginia

is whether he is “subject to the terms and provisions of the

workers’ compensation laws of a state other than this state ...”

If he is, his exclusive, i.e., only, remedy lies elsewhere.

The West Virginia Insurance Commission has provided guidance

on this specific question. Specifically, Rule 7.1 states

Extraterritorial employees performing work in

the State of West Virginia on a temporary

basis (i.e., for a period not exceeding thirty

(30) calendar days in any three hundred and

sixty-five (365) day period) are not required

to be covered with West Virginia workers’

compensation coverage. If an extraterritorial

employee is injured while working in this

state on a temporary basis, the

extraterritorial employee’s exclusive

workers’ compensation remedy is under the laws

of the state to which the extraterritorial

employee is subject.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

W. Va. C.S.R. 85-8-7.1. The Supreme Court of Appeals of West

Virginia has also addressed the issue. Back in 1992, that Court

recognized the language of W. Va. Code § 23-2-1c(c) as “mak[ing]

the compensation law of another state the exclusive remedy against

the employer for a nonresident employee who is temporarily employed

in [West Virginia], if such employee is injured in [West Virginia]

and is covered by his or her employer’s workers compensation in

the other state.” Syl. Pt. 3, Pasquale v. Ohio Power Company, 418

S.E.2d 738 (W. Va. 1992) (emphasis added). Ultimately, the Court

held “a foreign corporation not covered by West Virginia workers’

compensation law, but covered by the compensation law of its home

state, temporarily employing an out-of-state resident who is

injured in West Virginia, is immune from suit for contribution by

a joint tortfeasor.” Id. at Syl. Pt. 4 (emphasis added).

In 1996, the Supreme Court of Appeals extended Pasquale noting

“[a] nonresident employee who is injured in [West Virginia] and is

protected under the terms and provisions of the workers’

compensation laws of a foreign state shall not be entitled to the

benefits and privileges provided under the West Virginia Workers

Compensation Act, including the right to file and maintain a

deliberate intent cause of action under W. Va. Code § 23-4-2(c)(2)

(1994).” Syl. Pt. 3, Gallapoo v. Wal-Mart Stores, Inc., 475 S.E.2d

172 (W. Va. 1996) (emphasis added).

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

As with all things, the express, specific language of the

applicable regulation is important. The Code of State Regulations

requires an employee to “perform work” – not reside or base - in

West Virginia for a period not exceeding thirty (30) calendar days

to be considered temporary. Plaintiffs’ opposition to

Halliburton’s motion and their Amended Complaint attempt, but fall

short, of pleading just that. Plaintiffs do not argue Justin

Butcher exceeded that thirty day threshold. Instead, they

repeatedly note he worked EXACTLY thirty days. See Pl. Resp. Br.,

ECF No. 73, at 6 (“Out of the forty-eight (48) calendar days that

Plaintiff was assigned to work in West Virginia from March 13,

2018, until he was injured on April 30, 2018, he was actually

required to be in West Virginia for 30 paid days EXACTLY ...) and

(“... Plaintiff Justin Butcher performed work for 30 payroll days

EXACTLY ...”)(emphasis added). Later in that same submission,

Plaintiffs note Butcher “was sent to West Virginia ... for ... 48

calendar days in total.” Id. at 13 (emphasis added); see also id.

at 14 (“During the entire time Plaintiff was assigned to work in

the state of West Virginia, a total of 48 calendar days

...”)(emphasis added). However, there is no allegation, argument

or even suggestion he “performed work” each of those days or in

excess of the thirty (30) day threshold to trigger West Virginia

workers’ compensation coverage.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

The Response Brief’s argument is of particular note compared

to the careful wording of the Amended Complaint. That pleading

never alleges Justin Butcher performed work in excess of thirty

days in West Virginia. For example, the “Introduction, Parties,

Jurisdiction and Venue” section alleges “he was an employee of

HALLIBURTON, working on a non-temporary basis in Pennsboro,

Ritchie County, West Virginia, for more than 30 consecutive working

days prior to the date of his injuries ...” ECF No. 56 at ¶ 2.

The only other allegation relevant here states “Plaintiff was an

extraterritorial employee who had worked in West Virginia for a

continuous period of time exceeding thirty (30) calendar days ...”

Id. at ¶ 82. Plaintiffs seem to intentionally avoid the critical

distinction between extraterritorial, which Justin Butcher clearly

was, with “non-temporary” which absolutely requires an employee to

have performed work for a period exceeding thirty (30) days in any

three hundred sixty-five (365) day period. See W. Va. C.S.R. §

85-8-7.1.

Accepting Plaintiffs’ argument here would render the

regulation’s use of the word “exceeding” meaningless. “A

regulation that is proposed by an agency and approved by the

Legislature is a “legislative rule” as defined by the State

Administrative Procedures Act, W. Va. Code, § 29A–1–2(d), and such

a legislative rule has the force and effect of law.” Syl. Pt. 5,

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

Smith v. West Virginia Human Rights Comm’n, 602 S.E.2d 445, 447

(W. Va. 2004). “It is generally accepted that statutes and

administrative regulations are governed by the same rules of

construction.” West Virginia Racing Comm’n v. Reynolds, 780 S.E.2d

664, 668 (W. Va. 2015)(internal citation omitted). This Court

cannot abide such selective reading or interpretation of duly-

enacted pronouncements from the legislative branch. See Discover

Bank v. Vaden, 396 F.3d 366, 369 (4th Cir. 2005) (“It is a classic

canon of statutory construction that courts must give effect to

every provision and word in a statute and avoid any interpretation

that may render statutory terms meaningless or

superfluous.”)(internal quotation marks and citation omitted); T.

Weston, Inc. v. Mineral Cnty., 638 S.E.2d 167, 171 (W. Va. 2006)

(“It is presumed that each word in a statute has a definite meaning

and purpose.”)(internal citation omitted).

The same could be said for the phrase “perform work.”

Plaintiffs make repeated reference to “calendar days” and claim

Butcher “worked for a period exceeding thirty (30) calendar days”

but are careful to not allege or argue he performed work each of

those days. The Response Brief confirms the lack of this critical

factual allegation. Plaintiffs go so far as to claim Halliburton

“attempts to cloud this issue by asserting that Plaintiff was a

temporary employee because it only paid him for work done on 28

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

payroll days ...” [ECF No. 73 at 14]. Contrary to Plaintiffs’

argument, the plain meaning of the regulation requires an

extraterritorial employee to perform work – not simply be

physically located – in West Virginia for more than thirty (30)

days. No such allegation or argument is presented here. Moreover,

nothing in the regulation or precedent interpreting the regulation

suggests, as Plaintiffs do, that calendar, non-working days should

be the controlling metric or, even more drastic, that somehow

“dates during the consecutive time frame when the employee is

granted the right to take vacation days” should count. “Perform

work” means just that, to work. Days spent on other pursuits do

not salvage Plaintiffs’ claim here.

Plaintiffs further urge the Court to focus its analysis on W.

Va. C.S.R. § 85-8-7.4. That regulation provides “[a]n employer

and an employee who are both subject to the workers' compensation

laws of a state other than West Virginia may enter into a written

agreement in which the employer and employee both agree to be bound

by the laws of the other state[.]” Id. (emphasis added).

Plaintiffs argue this provision, read with W. Va. C.S.R. § 85-8-

7.2, compels denial of the pending motion. Section 85-8-7.2

states:

Extraterritorial employees working in West

Virginia on a non-temporary basis.

Extraterritorial employees who perform work in

the State of West Virginia on a non-temporary

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

basis (i.e., for a period exceeding thirty

(30) calendar days in any three hundred and

sixty-five (365) day period) and are not

otherwise exempt from West Virginia's workers'

compensation laws must be covered with West

Virginia workers' compensation coverage

unless they enter into an agreement with their

employer described under subsection 7.4. of

this section. An employer of extraterritorial

employees has a duty to immediately advise its

West Virginia private carrier when it

reasonably believes it will be employing

extraterritorial employees in the State of

West Virginia on a non-temporary basis, so

that premium can be adjusted accordingly.

Id. Plaintiffs’ argument is misplaced based on the clear language

of these regulations. Plaintiff Justin Butcher does not satisfy

the initial prerequisite – working as an “extraterritorial

employee ... on a non-temporary basis ...” Without meeting that

initial hurdle, the remainder of the regulation’s commands are

irrelevant here including the requirement the employer and

employee reach an agreement to be subject to the workers’

compensation laws of another jurisdiction.4 As discussed above,

4 Plaintiffs appear to advance an argument with respect to the

agreement contemplated by W. Va. C.S.R. § 85-8-7.2 and 7.4

heretofore not addressed by the West Virginia courts outside a

dissent to a Memorandum Opinion. In her dissent to Mize v.

Commonwealth Mining, LLC, No. 16–0413, 2017 WL 1348516, at *6 (W.

Va. April 7, 2017), Justice Workman notes her belief, joined by

Justice Davis, that the lack of agreement would subject the

employer and employee to both West Virginia law and the law of the

other jurisdiction. Justice Workman contends the majority, at

best, ignores the issue in deciding Mize. Regardless, for what

that Memorandum Decision may be worth, the majority does not adopt

Justice Workman’s analysis in its opinion. Bound to faithfully

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

Plaintiff Justin Butcher, based on the record before the Court,

has neither alleged nor argued he performed work in West Virginia

for a period EXCEEDING thirty days.

Again, the Court assess Halliburton’s motion under the

stringent standards of Rule 12(b)(6). The Fourth Circuit has

advised district courts:

At bottom, determining whether a complaint

states on its face a plausible claim for

relief and therefore can survive a Rule

12(b)(6) motion will “be a context-specific

task that requires the reviewing court to draw

on its judicial experience and common sense.

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 ‘show[n]’—‘that the

pleader is entitled to relief,’ ” as required

by Rule 8. Iqbal, 129 S. Ct. at 1950

(alteration in original) (citation omitted)

(quoting Fed. R. Civ. P. 8(a)(2)). The Court

noted that even though Rule 8 “marks a notable

and generous departure from the hyper-

technical, codepleading regime of a prior era,

... it does not unlock the doors of discovery

for a plaintiff armed with nothing more than

conclusions.” Id.

Francis, 588 F.3d at 193. Plaintiffs’ Amended Complaint falls

short even with the deference required under Rule 12, Iqbal and

Twombly. The well-pleaded facts do not give rise to a plausible

claim Plaintiff Justin Butcher performed work in West Virginia for

apply the law of the state of West Virginia, this Court cannot

follow that path either.

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

a period exceeding thirty (30) days at the time of his injury.5

Therefore, as the Supreme Court of Appeals of West Virginia has

held, he cannot state a claim for deliberate intent under W. Va.

Code §23-4-2. Halliburton’s motion is GRANTED with respect to the

Amended Complaint’s Count III on these grounds.

B. Plaintiffs’ Amended Complaint fails to satisfy the

specificity requirements for a fraud claim.

Plaintiffs further allege a cause of action for fraud premised

on Persinger v. Peabody, 474 S.E.2d 887 (W. Va. 1996). There, the

Supreme Court of Appeals established and framed the claim as

follows:

An employee’s cause of action against his/her

employer for fraudulent misrepresentation

concerning the employee’s workers’

compensation claim must be pled with

particularity and must be supported by factual

allegations identifying the employer’s

particular acts or circumstances which

distinguish the intentional tort of fraudulent

misrepresentation from the employer’s

negligent misrepresentation or mere delay in

5 The Court’s decision here does not necessarily require reference

or reliance upon any of the exhibits or attachments to

Halliburton’s motion as the Amended Complaint’s factual

allegations are insufficient to plausibly state a claim;

therefore, Plaintiffs’ argument that the motion should be

converted to one seeking summary judgment under Rule 56 (allowing

Plaintiffs to properly avoid such a fate citing the need for

additional discovery) is unpersuasive. Regardless, the exhibits

provided by Halliburton in support of its motion confirm

Plaintiff’s allegations that Justin Butcher did not perform work

for a period of time in excess of thirty days. See Veney, 293

F.3d at 730; Sprewell, 266 F.3d at 988 (both authorizing district

court to consider exhibits in direct contradiction of complaint

allegations without converting motion).

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

processing or payment of said claim, the

latter two of which are not sufficient to

support an employee’s independent cause of

action.

Id. at 898. While that holding finds much of its basis in West

Virginia’s pleading rules, the Federal Rules of Civil Procedure

impose the same stringent requirements. Rule 9(b) requires a party

to “state with particularity the circumstances constituting fraud

or mistake.” Fed. R. Civ. P. 9(b). This Court has previously

observed “[t]he circumstances that must be pleaded with

particularity include ‘the time, place, and contents of the false

representations, as well as the identity of the persons making the

misrepresentation and what he [or she] obtained thereby.’” Bennett

v. Skyline Corp., 52 F.Supp.3d 796, 813 (N.D.W. Va. 2014).

Plaintiffs’ Amended Complaint falls short of this admittedly

lofty burden. The most Plaintiff alleged in that pleading in

support of the fraud claim are legal conclusions. Plaintiff

alleges that Halliburton “unlawfully and deceptively caused

Plaintiff’s [workers’ compensation] claim to be removed from the

West Virginia workers’ compensation system, without Plaintiff’s

consent or agreement, and re-filed it as a workers’ compensation

claim in the State of Ohio” all while allegedly knowing Plaintiff

was a non-temporary employee in the state of West Virginia. ECF

No. at ¶ 82. An unnamed person from Halliburton allegedly

“misrepresented to Plaintiff and his wife while he was in the

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

hospital in West Virginia that he was required by law to be covered

under Ohio” laws. Id. at ¶ 83. Halliburton then allegedly

“knowingly misrepresented to the Ohio Bureau of Workers’

Compensation that, even without Plaintiff’s consent or agreement,

the Ohio Bureau of Workers’ Compensation had jurisdiction to

process Plaintiff’s extraterritorial claim.” Id. at ¶84.

Plaintiff further alleges such conduct was deceptive, fraudulent

and discriminatory in manner, and that Halliburton denied certain

rights owed to him under the laws of West Virginia. Id. at ¶88.

However, the Amended Complaint is most notable for what it

fails to include – dates, times, individual actors and the benefit

derived from the alleged fraudulent scheme. See Bennett, 52

F.Supp.3d at 813. Considering the standard imposed on pleadings

asserting claims for fraud, the motion must be and is hereby

GRANTED with respect to Count VI’s common law fraud claim.

C. Defendant has not demonstrated entitlement to relief

under Rule 12 with respect to Plaintiff’s Discrimination

Claim under W. Va. Code § 23-5A-1.

Plaintiffs also allege a claim for unlawful discrimination in

violation of W. Va. Code § 23-5A-1. That statute prohibits

discrimination “in any manner against any of his present or former

employees because of such present or former employee's receipt of

or attempt to receive benefits under this chapter.” W. Va. Code

§ 23-5A-1 (emphasis added). Although the lengthy Amended Complaint

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

is somewhat sparse on the specific instances of alleged

discrimination, the Court believes a threshold issue exists before

it can assess the sufficiency of the Amended Complaint under the

Rule 12 challenge, Iqbal and Twombly. Specifically, the Court is

unable to find any authority addressing the question as to whether

an employee, ultimately covered by another state’s workers’

compensation laws – as the Court believes Plaintiff to be here, is

nonetheless entitled to the protections of the anti-discrimination

provisions of West Virginia’s workers’ compensation system. The

plain language of the statute provides no answer but also does not

facially contemplate the limitations on Plaintiffs’ other claims

here. Specifically, unlike the other issues already addressed

supra, W. Va. Code § 23-5A-1 places no disclaimer or limitation on

those prohibited from discriminating – employers. The statute

merely states “[n]o employer” may engage in the proscribed conduct

without further defining the term. In short, the West Virginia

Legislature chose the broad path here. For that reason, the Court

is of the opinion that the matter may present a question

appropriate for certification to the Supreme Court of Appeals of

West Virginia.

This Court, via the Honorable Irene M. Keeley, recently

outlined the relevant law governing certified questions.

West Virginia has enacted the Uniform

Certification of Questions of Law Act,

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

(“UCQLA”), W. Va. Code § 51–1A–1, et seq.,

which provides:

The Supreme Court of Appeals of West

Virginia may answer a question of

law certified to it by any court of

the United States ... if the answer

may be determinative of an issue in

a pending case in the certifying

court and if there is no controlling

appellate decision, constitutional

provision or statute of this state.

W. Va. Code § 51–1A–3. The Supreme Court of

Appeals has recognized that the purpose of

this statute is “to provide foreign courts

with the benefit of [its] determination of

West Virginia law” and “to resolve ambiguities

or unanswered questions” in the same. Abrams

v. W. Va. Racing Comm'n, 263 S.E.2d 103, 106

(W. Va. 1980) (internal quotations omitted);

see also Morningstar v. Black and Decker Mtg.

Co., 253 S.E.2d 666, 669 (W. Va. 1979). The

provisions of the UCQLA are discretionary for

both the certifying court and the Supreme

Court of Appeals. Abrams, 263 S.E.2d at 105;

see also Lehman Bros. v. Schein, 416 U.S. 386,

391 (1974) (“[Certification's] use in a given

case rests in the sound discretion of the

federal court.”).

Pajack v. Under Armor, Inc., et al., No. 1:19-CV-160, ECF No. 290,

at p.9 (N.D.W. Va. March 5, 2021) (Keeley, J.). The parties are

hereby ORDERED to file briefing on (1) whether the matter is

appropriate for certification under the foregoing and (2) if so,

how the question(s) should be framed and, potentially, answered.

A separate order setting the briefing schedule and, possibly, a

hearing date will be forthcoming. Defendant’s motion on Count

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

VI’s statutory discrimination claim is DENIED WITHOUT PREJUDICE

AND WITH LEAVE TO REFILE IF NECESSARY.

D. Plaintiff Jennifer Butcher’s Loss of Consortium Claim

Survives Rule 12 Challenge.

Plaintiff Jennifer Butcher asserts a loss of consortium

claim. “Although the loss of consortium claim is a separate cause

of action, plaintiffs commonly join loss of consortium and tort

actions.” DuPont v. U.S., 980 F.Supp. 192, 197 (S.D.W. Va. 1997).

“The invasion of the deprived spouse's interests in the marriage

is a separate tort against that spouse, although it is conditioned

upon factors that also constitute a tort against the impaired

spouse.” Id. (quoting Restatement (Second) Of Torts § 693 cmt. g

(1976)) (internal quotations omitted). “In raising a loss of

consortium claim, the only separate allegations that must be made

to survive a motion to dismiss are that the plaintiffs suffered a

loss of consortium, and that the loss of consortium was caused by

the tortuous activity of the tortfeasor which impaired the

plaintiff's spouse.” Councell v. Homer Laughlin China Co., 823 F.

Supp. 2d 370 (N.D.W. Va. 2001).

Here, although the Court has dismissed most of Plaintiffs’

causes of action against Halliburton, the statutory discrimination

claim remains at this point. Thus, the Court cannot find, under

the applicable standards, that Plaintiffs have failed to

DEFENDANT HALLIBURTON ENERGY SERVICES, INC.’S MOTION TO DISMISS

articulate a plausible loss of consortium claim. Defendant’s

motion on this Count is DENIED.

IV. CONCLUSION

For the foregoing reasons, Defendant Halliburton’s motion

[ECF No. 60] is GRANTED with respect to Counts III (Deliberate

Intent – W. Va. Code § 23-4-2) and Count VI (Fraud claim only).

The motion is DENIED WITHOUT PREJUDICE WITH LEAVE TO REFILE IF

NECESSARY as it relates to Count VI (Discrimination – W. Va. § 23-

5A-1) and DENIED with respect to Plaintiff Jennifer Butcher’s Loss

of Consortium claim.

A separate order establishing the briefing schedule with

respect to the statutory discrimination claim and the potential

need to certify the question loosely identified here as well as

setting a status conference to discuss discovery and other

litigation management matters going forward will be entered.

The Clerk is hereby directed to forward a copy of this Order

to counsel of record via the CM/ECF system.

IT IS SO ORDERED.

Entered this 15th day of April, 2021.

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE