Gasper v. Swick & Sons Maintenance Specialists, Inc

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

CLARKSBURG

KIMBERLY I. GASPER and

ANDY FOSTER, husband,

Plaintiffs,

v. CIVIL ACTION NO. 1:20cv212

(KLEEH)

SWICK & SON MAINTENANCE SPECIALISTS,

INC., individually doing business as

Chesapeake Mechanical & Coatings,

CONWAY-PHILLIPS HOLDINGS, LLC, PROCESS

COMBUSTION CORPORATION, WEYERHAEUSER

COMPANY, WEYERHAEUSER NR COMPANY,

CHRIS CORDER, JOHN DOES 1-5, and XYZ

CORPORATIONS 1-5,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING MOTION TO REMAND [ECF NO. 15]

Pending before the Court is a Motion to Remand filed by

Plaintiffs Kimberly I. Gasper and Andy Foster. ECF No. 15.

Plaintiffs filed the Motion to Remand pursuant to 28 U.S.C. §§

1441 and 1446 and move to remand the instant action to the Circuit

Court of Harrison County, West Virginia, alleging that Defendants

have failed to satisfy its burden of proving the diversity

jurisdiction requirement under 28 U.S.C. § 1441. Defendant Swick

& Son Maintenance Specialists, Inc., d/b/a Chesapeake Mechanical

& Coatings (“Chesapeake”) filed a Notice of Removal to remove the

matter from the Circuit Court of Harrison County, West Virginia,

to the United States District Court for the Northern District of

the individual defendant, Chris Corder. For the reasons discussed

herein, the Motion to Remand is GRANTED. [ECF No. 15].

I. PROCEDURAL HISTORY

Plaintiffs Kimberly I. Gasper and Andy Foster (“Plaintiffs”)

filed a Complaint in the Circuit Court of Harrison County, West

Virginia, on June 26, 2020. ECF No. 1-1. Plaintiffs’ Complaint was

served on Defendant Chris Corder on June 27, 2020, by certified

mail. ECF No. 1-1. Plaintiff’s Complaint was served on Defendant

Swick & Son Maintenance Specialist, Inc., individually doing

business as Chesapeake Mechanical & Coatings, on July 31, 2020, by

certified mail. ECF No. 1-3. The West Virginia Secretary of State

effectuated service of Plaintiffs’ Complaint on Defendants

Weyerhaeuser Company, Process Combustion Corporation, Conway-

Phillips Holdings, LLC, and Weyerhaeuser NR Company on August 3,

2020. Id. Defendant Chris Corder moved to dismiss the action

pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil

Procedure on July 28, 2020. ECF No. 1-2. Chesapeake timely filed

the Notice of Removal pursuant to 28 U.S.C. § 1446(b)(2)(B) on

August 25, 2020. ECF No. 1.

II. GOVERNING LAW

When an action is removed from state court, the district court

must determine whether it has original jurisdiction over the

plaintiff’s claims. Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994). “Federal courts are courts of limited

jurisdiction. They possess only that power authorized by

Constitution and statute, which is not to be expanded by judicial

decree[.]” Id. (citations omitted). “Because removal jurisdiction

raises significant federalism concerns, we must strictly construe

removal jurisdiction.” Mulcahey v. Columbia Organic Chems. Co., 29

F.3d 148, 151 (4th Cir. 1994) (citation omitted).

Federal courts have original jurisdiction over two types of

cases: those involving federal questions under 28 U.S.C. § 1331

and those involving diversity of citizenship under 28

U.S.C. § 1332. When a party seeks to remove a case based on

diversity of citizenship, that party bears the burden of

establishing that “the matter in controversy exceeds the sum or

value of $75,000, exclusive of interests and costs, and is between

citizens of different states[.]” 28 U.S.C. § 1332. Generally, §

1332 requires complete diversity among parties, which means that

the citizenship of all defendants must be different from the

citizenship of all plaintiffs. See Caterpillar, Inc. v. Lewis, 519

U.S. 61, 68 (1996). For purposes of diversity of citizenship

jurisdiction under 28 U.S.C. § 1332, “an unincorporated

association shall be deemed to be a citizen of the State where it

has its principal place of business and the State under whose laws

it is organized.” 28 U.S.C. § 1332(d)(10).

It is required that an action “be fit for federal adjudication

at the time the removal petition is filed.” See 28 U.S.C. §

1441(a); Moffitt v. Residential Funding Co., LLC, 604 F.3d 156,

159 (4th Cir. 2010) (quoting Caterpillar Inc., 519 U.S. at 73). If

the complaint does not contain a specific amount in controversy

and the defendant files a notice of removal, “the defendant bears

the burden of proving that the claim meets the requisite

jurisdictional amount,” and “the court may consider the entire

record” to determine whether that burden is met. Elliott v. Tractor

Supply Co., No. 5:14CV88, 2014 WL 4187691, at *2 (N.D.W. Va. Aug.

21, 2014) (citation omitted). If the defendant sufficiently proves

by a preponderance of the evidence that the amount in controversy

exceeds $75,000 and the parties are diverse, then removal is

proper. Dart Cherokee Basin Operating Co., LLC v. Owens, 574 U.S.

81, 87-88 (2014). “[A]bsent a binding stipulation signed by [the

plaintiff] that he will neither seek nor accept damages in excess

of $75,000, the Court must independently assess whether the

defendants [have] proven by a preponderance of the evidence that

[the plaintiff’s] complaint seeks damages in excess of $75,000.”

Virden v. Altria Group, Inc., 304 F.Supp.2d 832, 947 (N.D.W. Va.

2004). Where diversity jurisdiction is doubtful, remand is

required. Maryland Stadium Authority v. Ellerbe Becket

Incorporated, 407 F.3d 225, 260 (4th Cir. 2005).

Plaintiffs, as masters of the Complaint, determine who to sue

and for what to sue the chosen Defendants. See Lincoln Property

Co. v. Roche, 546 U.S. 81, 91 (2005) (“In general, the plaintiff is

the master of the complaint and has the option of naming only

those parties the plaintiff chooses to sue, subject only to the

rules of joinder [of] necessary parties.”) (quoting 16 J. Moore et

al., Moore's Federal Practice § 107.14[2][c], p. 107–67 (3d ed.

2005)).

Complete diversity exists between the parties when “no party

shares common citizenship with any party on the other side.” Mayes

v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). The fraudulent

joinder doctrine is an exception to the complete diversity

requirement, in that it “permits removal when a non-diverse party

is (or has been) a defendant in the case.” Id. In essence, a

defendant may remove a case on the basis of diversity jurisdiction

even if a non-diverse defendant is a party to the case, so long as

the removing party can prove that the non-diverse defendant was

fraudulently joined, by demonstrating either (1) “outright fraud

in the plaintiff’s pleading of jurisdictional facts” or (2) that

“there is no possibility that the plaintiff would be able to

establish a cause of action against the in-state defendant in state

court.” Hartley v. CSX Transp., Inc., 187 F.3d 422, 424 (4th Cir.

1999) (internal citation omitted) (emphasis omitted). Fraudulent

joinder “effectively permits a district court to disregard, for

jurisdictional purposes, the citizenship of certain nondiverse

defendants, assume jurisdiction over a case, dismiss the

nondiverse defendants, and thereby retain jurisdiction.” Mayes,

198 F.3d at 461 (internal citation omitted).

In the United States Court of Appeals for the Fourth Circuit,

“fraudulent joinder claims are subject to a rather black-and-white

analysis [and] [a]ny shades of grey are resolved in favor of

remand.” Hartman v. Caraco Pharmaceutical Laboratories, Ltd., 789

F.Supp.2d 701, 703 (S.D.W. Va. 2011). A removing defendant bears

a heavy burden of establishing that the non-diverse defendant has

been fraudulently joined. Mayes, 198 F.3d at 464. Under the “no

possibility” standard, a removing defendant cannot succeed if

there is a “glimmer of hope” that plaintiff’s claim against a non-

diverse defendant will succeed. Id. at 466.

III. THE COMPLAINT

A. The Parties

Plaintiffs Kimberly I. Gasper and Andy Foster, wife and

husband, are residents and citizens of Pearl River County,

Mississippi. Compl., ECF No. 1-1, ¶ 1. Defendant Chesapeake, a

corporation duly organized and existing under the laws of the state

of Maryland, with a principal place of business in the state of

Maryland, is qualified to do and is doing business in the State of

West Virginia. Id. at ¶ 2, ECF No. 1, ¶ 16(b). Defendant Conway-

Phillips Holding, LLC, (“Conway-Phillips”), is a limited liability

company organized and existing under the laws of the State of West

Virginia; however, a limited liability company is considered a

citizen of every jurisdiction of which any member is a citizen.

Compl., ECF No. 1-1, ¶ 3, Central W. Va. Energy Co., Inc. v.

Mountain State Carbon, LLC, 636 F.3d 101, 103 (4th Cir. 2011).

Because the sole member of Conway-Phillips is an individual who is

a resident of the state of Pennsylvania, Conway-Phillips is a

citizen of the state of Pennsylvania. ECF No. 1, ¶ 16(c)-(e).

Defendant Process Combustion Corporation (“Process Combustion”),

is a legally organized corporation and existing under the laws of

the state of Pennsylvania, has done business in the state of West

Virginia, and is therefore subject to jurisdiction pursuant to W.

Va. Code § 31D-15-1510. Compl., ECF No. 1-1, ¶ 4. Defendant

Weyerhaeuser Company (“Weyerhaeuser”) is a legally organized

foreign corporation with residency in the state of Washington, and

doing business throughout the state of West Virginia, and within

the county of Harrison. Id. at ¶ 5, ECF No. 1, ¶ 16(g). Defendant

Weyerhaeuser NR Company (“Weyerhaeuser NR”), a wholly owned

subsidiary of Defendant Weyerhaeuser, is a legally organized

foreign corporation doing business throughout the state of West

Virginia, and within the county of Harrison. Compl., ECF No. 1-1,

¶¶ 6-7. Defendant Chris Corder (“Defendant Corder”) is a resident

and citizen of Upshur County, West Virginia, and was an employee,

representative, or agent of Defendants Weyerhaeuser and

Weyerhaeuser NR (collectively “Weyerhaeuser defendants”). Compl.,

ECF No. 1-1, ¶¶ 8-9.

Plaintiffs allege that jurisdiction and venue are appropriate

in the Circuit Court of Harrison County, West Virginia, because

certain defendants, including the Weyerhaeuser defendants, while

not citizens of the state, conduct business in Harrison County,

and Defendant Corder is a citizen and resident of West Virginia.

Id. at ¶ 13.

B. The Factual Allegations

Plaintiffs allege that on June 30, 2018, Plaintiff Kimberly

I. Gasper, (“Plaintiff Gasper”), an employee of Southern Erectors,

Inc., was injured while working at a Weyerhaeuser plant in Braxton

County, West Virginia. Id. at ¶¶ 16-17. Southern Erectors, Inc.,

(“Southern Erectors”), a non-party to this action, had been hired

“to sandblast/paint a large tank located in the plant.” Id. at ¶

17. Defendants had also been hired to perform work at the plant.

Id. at ¶ 18.

Plaintiff Gasper was working as a safety technician and in

completing various job tasks, had placed “a red (danger) barricade

around the area where work was to be performed by Southern

Erectors.” Id. at ¶ 19. On June 30, 2018, Plaintiff Gasper tripped

and fell onto a concrete floor, landing on her hands and knees,

after attempting to step over “the duct tubing and wires left by

one or more of the Defendants.” Id. at ¶ 25. In the area where

Plaintiff Gasper fell, one or more of the Defendants named in this

action had performed work and left “collapsible duct tubing, cords,

wires, and other debris scattered over the floor.” Id. at ¶ 20. In

the ducting were small looped wires used to hang the ducting, and

such wires posed a tripping hazard to anyone stepping over the

ducts to enter the work area. Id. at ¶¶ 21-25.

Plaintiffs argue that Plaintiff Gasper was injured due to the

Defendants’ negligence in failing to remove the duct tubing, cords,

wires, and other debris from the area where Plaintiff Gasper was

performing work, and also in failing to warn Plaintiff Gasper of

the hazard. Id. at ¶¶ 30-34. Plaintiffs argue vicarious liability

against the Weyerhaeuser defendants for the actions and omissions

of its employees, including Defendant Corder, by way of the

doctrine of respondeat superior. Id. at ¶ 39.

In the Complaint, Plaintiffs assert the following causes of

action.

(I) Negligence – Defendants Swick & Son Maintenance

Specialists, Inc d/b/a Chesapeake Mechanical &

Coatings; Conway-Phillips Holding, LLC, Process

Combustion Corporation; John Does 1-5, and XYZ

Corporations 1-5,

(II) Negligence – Defendants Weyerhaeuser,

Weyerhaeuser NR, and Corder, and

(III) Loss of Consortium – All Defendants.

Plaintiffs argue damages due to the alleged injuries.

Specifically, Plaintiffs request past medical expenses for

Plaintiff Gasper’s injuries, totaling $60,391.00, and future

medical expenses in an amount presently indeterminable. Id. at ¶

61. Plaintiffs further request the loss of past and future wages.

Id. at ¶ 62. Plaintiffs request money damages to compensate for

Plaintiff Gasper’s past, present, and future pain and suffering,

Plaintiff Andy Foster’s loss of consortium, and interest, costs,

and other expenses incurred by the Plaintiffs. Id. at ¶¶ a-f.

IV. DISCUSSION

The Court finds that Chesapeake has failed to demonstrate by

a preponderance of the evidence that the parties herein are

diverse; therefore, the Court GRANTS Plaintiffs’ Motion to Remand.

ECF No. 15. First, removal is timely as Chesapeake timely filed

the Notice of Removal pursuant to 28 U.S.C. § 1446(b)(2)(B) on

August 25, 2020. ECF No. 1.

A. Amount in Controversy1

While the amount in controversy is not challenged here, the

Court finds that the $75,000.00 amount in controversy is satisfied.

1 Plaintiffs did not challenge the amount in controversy prong of

the analysis in their Motion to Remand. Nonetheless, the Court,

mindful of the need to assess if jurisdiction exists, is satisfied

28 U.S.C. § 1332. In Chesapeake’s Notice of Removal, it states

that Plaintiffs have submitted a paid report of Workers

Compensation benefits in the amount of $79,480.78. ECF No. 1, ¶

11. Chesapeake also points to a prior settlement demand in support

of its assertion the amount in controversy is satisfied here.

Chesapeake represents to the Court that prior to filing the

lawsuit, Plaintiffs made a settlement demand to Defendants of

$950,000.00. Id. at ¶ 13. This Court has previously found

settlement discussions germane to the issue presented here. See

Gillis v. Bayview Loan Servicing, LLC, No. 2:18-CV-57, 2018 WL

4183255 (N.D.W. Va. Aug. 15, 2018); see also Grinell Mut.

Reinsurance Co. v. Haight, 697 F.3d 582, 585 (7th Cir. 2012)

(“Although settlement negotiations are not admissible at trial

pursuant to Federal Rule of Evidence 408 to prove liability for or

invalidity of the claim or its amount, they can be considered ‘to

show the stakes’ when determining whether the amount in controversy

is met.”). Plaintiffs may not avoid federal court via removal

jurisdiction claiming the amount in controversy is unsatisfied

after establishing a potential value of their claims of their own

volition. Nor are courts required to ignore such clear indicators

when analyzing an issue as critical as jurisdiction.

In the Complaint, Plaintiffs specifically request past

medical expenses for Plaintiff Gasper’s injuries, totaling

$60,391.00, and future medical expenses in an amount presently

indeterminable. Compl., ECF No. 1-1, ¶ 61. Further, Plaintiffs

allege the loss of past and future wages. Id. at ¶ 62. Plaintiffs

request money damages to compensate for Plaintiff Gasper’s past,

present, and future pain and suffering, Plaintiff Foster’s loss of

consortium, and interest, costs, and other expenses incurred by

the Plaintiffs. Id. at ¶¶ a-f. It is clear that Chesapeake showed

by a preponderance of the evidence that the amount in controversy

exceeds $75,000.00. 28 U.S.C. § 1332.

B. Diversity Citizenship

The question remaining before the Court is whether Plaintiffs

fraudulently joined Defendant Corder in this action to defeat

complete diversity among the parties. There is no question that

all parties are diverse in citizenship, except for Defendant

Corder, who is a citizen and resident of Upshur County, West

Virginia.2 In essence, the issue before the Court whether Defendant

Corder owed an individual duty to Plaintiffs solely on the basis

of his title as Safety Manager.

Plaintiffs allege that there is legal duty on the part of

Defendant Corder, an employee of Weyerhaeuser, to provide a safe

workplace to Plaintiff Gasper, and that the allegations in the

2 See supra, Section III.A. Plaintiffs allege Mississippi

residency, Chesapeake is a resident of Maryland, Conway-Phillips

is a resident of Pennsylvania, Process Combustion is a resident of

Pennsylvania, Weyerhaeuser defendants are residents of the state

of Washington, and Defendant Corder is a resident of Upshur County,

Complaint show that there are possibilities that the Plaintiffs

can establish a cause of action against Defendant Corder, and the

case should therefore be remanded to the Circuit Court of Harrison

County. Motion to Remand, ECF No. 15, p. 5.

Chesapeake alleges that Plaintiffs named Chris Corder as a

defendant for the sole purpose of defeating diversity

jurisdiction. Chesapeake argues that Defendant Corder was named in

the Complaint solely because of his position and title as Safety

Manager of the Weyerhaeuser plant, and that no affirmative act or

omission of negligence, or any specific facts supporting the

allegations whatsoever, has been alleged against Defendant Corder.

Response in Opposition, ECF No. 18, p. 5. In fact, Chesapeake

alleges that Plaintiffs fail to meet the pleading standards in

their Complaint as set forth in Iqbal, Twombly, and their progeny.

In the “Affidavit of Christopher Corder” submitted by Chesapeake

as an exhibit to its Notice of Removal, Defendant Corder averred

that he was employed by Weyerhaeuser NR as the “Safety Manager.”

ECF No. 1-4. He further states that he did not witness the accident

involving Plaintiff Gasper because he was not present at the

facility at the time the event occurred. Id. Defendant Corder goes

on to testify: “[w]hen I had left [the facility] the evening

before, I was not aware of any unsafe condition that existed in

the working area nor had anyone reported concern over any workplace

condition to any Weyerhaeuser personnel.” Id.

Federal pleading standards demand more than naked assertions

and labels and conclusions in the complaint. Ashcroft v. Iqbal,

556 U.S. 662 (2009). While a plaintiff is not required to make

“detailed factual allegations,” it must allege more than “a

formulaic recitation of the elements of a cause of action.” Id. at

679 (quoting Bell v. Twombly, 550 U.S. 544, 127 (2007)). A claim

must be plausible on its face, which means to say that the claim

must be pleaded so that the factual content allows the court to

draw the reasonable inference that the defendant is liable for the

misconduct alleged. Twombly, 550 U.S. at 556.

In order to fully address the question before the Court, the

Court must examine the relevant West Virginia law governing the

tort of negligence. To establish a prima facie case of negligence

in West Virginia, a plaintiff must show that “the defendant has

been guilty of some act or omission in violation of a duty owed to

the plaintiff. No action for negligence will lie without a duty

broken.” Syl. Pt. 1, Parsley v. General Motors Acceptance Corp.,

280 S.E.2d 703 (W. Va. 1981). Duty “is measured by the scope of

the risk which negligent conduct foreseeably entails.” Thompson v.

Quality Carriers, Inc., No. 5:14CV127, 2015 WL 1880365, *1, *4

(N.D.W. Va. Apr. 25, 2015) (internal citation omitted). In

determining whether resulting harm was foreseeable, a Court must

ask the following question: “[W]ould the ordinary man in the

defendant’s position, knowing what he knew or should have known,

anticipate that harm of the general nature of that suffered was

likely to result?” Syl. Pt. 3, Sewell v. Gregory, 371 S.E.2d 82

(W. Va. 1988).

The determination of whether a defendant owes a duty to the

plaintiff is a matter of law for the Court. Jack v. Fritts, 457

S.E.2d 431, 435 (W. Va. 1995). Chesapeake states, pursuant to West

Virginia Code § 21-3-1, that a duty to provide a safe workplace

lies with the employer and property owner:

Every employer shall furnish employment which shall be

reasonably safe for the employees therein engaged and

shall furnish and use safety devices and safeguards, and

shall adopt and use methods and processes reasonably

adequate to render employment and the place of

employment safe, and shall do every other thing

reasonably necessary to protect the life, health,

safety, and welfare of such employees: Provided, That as

used in this section, the terms "safe" or "safety" as

applied to any employment, place of employment, place of

public assembly or public building, shall include,

without being restricted hereby, conditions and methods

of sanitation and hygiene reasonably necessary for the

protection of the life, health, safety, or welfare of

employees or the public.

Every employer and every owner of a place of employment,

place of public assembly, or a public building, now or

hereafter constructed, shall so construct, repair and

maintain the same as to render it reasonably safe.

W. Va. Code § 21-3-1 (emphasis added). However, as Plaintiffs point

out, it is settled law that

“[a]n employee may be held personally liable for torts

against third parties. The fact that an individual is

acting as an employee does not relieve that person of

liability. An employee's personal liability is

independent of the employment relationship, and the fact

that the employer may be held liable under the doctrine

of respondeat superior does not of itself relieve the

employee of liability.”

30 C.J.S. Employer—Employee § 254. Further, the Supreme Court of

Appeals of West Virginia in Musgrove v. Hickory Inn, Inc. describes

the doctrine of respondeat superior: “An agent or employee can be

held personally liable for his own torts against third parties and

this personal liability is independent of his agency or employee

relationship. Of course, if he is acting within the scope of his

employment, then his principal or employer may also be held

liable.” Syl Pt. 3, Musgrove v. Hickory Inn, Inc., 281 S.E.2d 499,

500 (W. Va. 1981). In essence, the doctrine of respondeat superior

imposes liability on an employer “for the negligent acts of an

employee committed while the employee was acting within the scope

[of employment].” Dunn v. Rockwell, 689 S.E.2d 255, 274 (W. Va.

2009).

Importantly, “[e]mployees in West Virginia are not relieved

of tort liability by the application of respondeat superior, even

when acting in the scope of their employment.” McKean v. Wal-Mart

Stores, Inc., No. 2:05-0176, 2005 WL 1785260, *1, *3 (S.D.W. Va.

July 26, 2005) (citing Musgrove, 281 S.E.2d at 501); see also State

ex rel. Bumgarner v. Sims, 79 S.E.2d 277, 289 (W. Va. 1953) (“In

this jurisdiction a joint action of tort may be instituted against

a master and servant in a case in which the plaintiff’s injuries

were occasioned solely by the negligence of the servant, and the

only ground for holding the master liable is that furnished by the

doctrine of respondeat superior.”). The United States District

Court of the Southern District of West Virginia, in a determining

an issue similar to the instant issue before this Court, concluded

that “[i]t . . . appears that the West Virginia Supreme Court may

recognize a cause of action against a management level employee

charged with some responsibility for maintaining the premises.”

McKean, 2005 WL 1785260 at *3. The McKean Court, in granting the

plaintiff’s motion to remand the case to the Circuit Court of

Kanawha County, answered the following question in the

affirmative: “whether plaintiffs have sufficiently pled a cause of

action against this particular manager, defendant Smailes.” Id.

The McKean Court relied on defendant Smailes’s affidavit, in part,

stating that it showed an affirmative duty on the part of defendant

Smailes to check the operation of a bay door, which was at issue

in the case. Id. In the affidavit, Smailes stated that she

“inspected the bay doors, including the one in question, when and

if there was a problem” and that she “was not present at the time

of the accident, was not on notice of any problem with the door,”

and “did not maintain the door when and if there were problems.”

Id. The Court noted that it may be true that defendant Smailes’s

duties regarding the bay door are in question, but “[i]n evaluating

remand motions, the court is directed to view all facts in the

light most favorable to plaintiffs, and Smailes’s own affidavit

shows that there exist questions of fact as to her duties.” Id.

Here, to support the negligence theory, Plaintiffs pleaded

paragraphs 38-52, under Count II of the Complaint, specifically

against the Weyerhaeuser defendants and Defendant Corder:

38. Plaintiffs reallege and incorporate herein all

of the allegations contained within the Complaint as if

the same were reprinted herein verbatim.

39. The Weyerhaeuser defendants are vicariously

liable for the actions and omissions of its employees,

agents, and/or servants, including, but not limited to

Defendant Corder, pursuant to the doctrine of Respondent

[sic] Superior.

40. At all times relevant to this Complaint,

Defendants were charged with the affirmative duty and

obligated by law to provide Plaintiff Gasper with a safe

place to work that complied with all state, federal, and

industry established safety standards.

41. Defendants breached their affirmative duty and

legal obligation to provide Plaintiff Gasper with a safe

place to work that complied with all state, federal, and

industry established safety standards, by failing to

ensure that the collapsible duct tubing, cords, wires,

and other debris scattered over the floor were removed

prior to other workers working in the area.

42. In addition, Defendants breached their

affirmative duty and legal obligation to provide

Plaintiff Gasper with a safe place to work that complied

with all state, federal, and industry established safety

standards, by failing to ensure that the collapsible

duct tubing, cords, wires, and other debris scattered

over the floor were adequately marked and/or barricaded.

43. Further, Defendants breached their affirmative

duty and legal obligation to provide Plaintiff Gasper

with a safe place to work that complied with all state,

federal and industry established safety standards, by

violating federal safety laws and regulations,

including, but not necessarily limited to:

a. 29 CFR 1910.22;

b. 29 CFR 1910.144;

c. 29 CFR 1910.145;

d. 29 CFR 1926.20;

e. 29 CFR 1926.25;

f. 29 CFR 1926.200;

44. Furthermore, Defendants breached their

affirmative duty and legal obligation to provide

Plaintiff Gasper with a safe place to work that complied

with all state, federal, and industry established safety

standards, by failing to take proper precautions to

prevent unsafe hazards including duct tubing, cords,

wires, and other debris in an active work area or to

otherwise maintain the areas where people were

traversing in a safe manner.

45. The acts and omissions of Defendants described

in the aforementioned paragraphs herein constitute

negligence.

46. In addition to, and/or in the alternative,

Defendants Weyerhaeuser as the owner and/or occupier of

the premises, owed to Plaintiff the duty of providing a

reasonable safe place to work, as well as the duty to

exercise ordinary and reasonably care for her safety.

47. In addition to, and/or in the alternative, on

the aforesaid date, Defendants failed to provide

Plaintiff Gasper with a reasonably safe place to work

and negligently failed to exercise ordinary and

reasonable care for her safety.

48. In addition to, and/or in the alternative,

Defendants retained supervision and control of the job

that was being performed, and upon information and

ballet conducted numerous supervisory visits and oversaw

the performance of any type of work being done and

further retained the right to modify and did modify the

operations and performance of the work.

49. In addition to, and/or in the alternative,

Defendants retained supervision and control of the job

site upon which Plaintiff Gasper was injured and

conducted numerous supervisory visits and oversaw the

performance and type of work being done and further

retained the right to modify the operations and

performance of the work.

50. In addition to, and/or in the alternative,

Defendants further breached their duty to Plaintiff by

not complying with the safety laws of the State of West

Virginia and of the United States of America, and the

rules and regulations promulgated thereunder, and failed

to protect Plaintiff while upon the premises which were

owned, occupied and controlled by Defendant, or in its

exercise of reasonable care, should have known that

injury or death might result as a direct and probable

consequence of the performance of the work if reasonable

care was not exercised.

51. In addition to, and/or in the alternative,

Defendants knew, or in the exercise of reasonable care,

should have known, that the work being performed was

intrinsically dangerous, in nature, and the Defendants

were under a continuing duty to exercise reasonable care

to prevent dangerous practices which could result in

injury or death to persons working in or about the

premises under their control and supervision.

52. In addition to and/or in the alternative,

Defendants by and through its agents and employees,

including, but not necessarily limited to Defendant

Corder, knew or had reason to know that the working

conditions to which Plaintiff was subjected created a

high risk for injury or death and that such conditions

violated the safety laws of the State of West Virginia

and the United States of America, and knowing this, said

Defendants failed to take reasonable precautions to

prevent and prohibit such activity.

Compl., ECF No. 1-1, ¶¶ 38-52.

Here, it is more than possible for Plaintiffs to maintain the

negligence action as pleaded against Defendant Corder as the Safety

Manager for the site at issue. Plaintiffs’ charges against the

Weyerhaeuser defendants and Defendant Corder seem to sufficiently

plead joint, or joint and several, liability under the negligence

theory. Compl., ECF No. 1-1, ¶¶ 38-52. Because Plaintiffs’

allegations against Defendant Corder are more than bare

assertions, and are each plausible on its face, Plaintiffs’

Complaint surpasses the pleading standards as outlined in Twombly

and Iqbal. Specifically, under Count II “Negligence” against the

Weyerhaeuser defendants and Defendant Corder, Plaintiffs pleaded

respondeat superior in Paragraph 39. Id. at ¶ 39. As West Virginia

case law clearly shows, the Supreme Court of Appeals of West

Virginia recognizes such negligence claims against an employer and

employee. Notably, the Court recognizes a cause of action against

a management level employee charged with some responsibility for

maintaining the premises. McKean v. Wal-Mart Stores, Inc., 2005 WL

1785260, *1, *3 (S.D.W. Va. July 26, 2005).

This stage of the litigation, not being one for resolution of

any factual issues relating to Plaintiffs’ case against Defendant

Corder, is for the Court to determine whether Plaintiffs’ claim

has some possibility of success. Even taking all of Defendant

Corder’s statements contained in the affidavit as true, there is

no statement that bars the possibility that Defendant Corder, who

apparently undertook some responsibility with regard to unsafe

conditions existing in the working area in averring that he “was

not aware of any unsafe condition that existed in the working

area”, “knew or had reason to know that the working conditions to

which Plaintiff was subjected created a high risk for injury” as

alleged in Plaintiffs’ Complaint. ECF No. 1-4; Compl., ECF No. 1-

1, ¶ 52. Defendant Corder, if even to a minute degree, contemplates

knowing or having an awareness of unsafe conditions in the working

area as Safety Manager for the work site.

While the duty lies with the employer and property owner to

provide for a reasonably safe workplace pursuant to West Virginia

Code § 21-3-1, the Court finds Plaintiffs have pleaded a plausible

claim against Defendant Corder under their negligence theory.

Notably, West Virginia case law shows that claims against a company

and its employees can go hand in hand: “[w]here, in an action for

personal injuries, plaintiff seeks to recover damages against a

master and his employee, liability of the master is not predicated

solely upon the employee’s negligence, but upon the negligence of

another employee, or that of the employer himself, a verdict

against the employer and exonerating the employee is not

inconsistent.” Syl. Pt. 4, Humphrey v. Virginian Ry. Co., 54 S.E.2d

204 (W. Va. 1948).

The Court is mindful of the West Virginia Legislature limiting an

employee’s liability in certain situations, such as the immunity

granted to employees under the Workers’ Compensation statute. See

W. Va. Code § 23-2-6a. However, this Court is unaware of a statute

in the West Virginia Code which limits the liability of a

supervisory employee’s negligence in this setting. Because there

is no provision of West Virginia law limiting the liability of an

employee such as Defendant Corder, and the negligence claims

alleged against him are plausible and show a possibility of

success, Chesapeake has failed to show fraudulent joinder of

Defendant Corder. For all the reasons stated herein, there remains

a “glimmer of hope” that Plaintiffs will succeed against Defendant

Corder; therefore, complete diversity is not present here and

remand is required. See Mayes v. Rapoport, 198 F.3d 457, 466 (4th

Cir. 1999).

V. CONCLUSION

For the reasons discussed above, the Motion to Remand is

GRANTED [ECF No. 15]. This action is hereby REMANDED to the

Circuit Court of Harrison County, West Virginia.

It is so ORDERED.

The Clerk of this Court is directed to transmit copes of this

Order to all counsel of record and the Circuit Clerk of Harrison

County.

DATED: April 28, 2021

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

United States District Judge