Hornsby v. United States of America, No. 2:2022cv00427 - Document 111 (E.D. Va. 2023)
Court Description: OPINION. The court ADOPTS AND APPROVES IN FULL the findings and recommendations set forth in the Magistrate Judge's 93 Report and Recommendation and overrules Plaintiff's 96 Objections. Accordingly, KD Shipyard Repairs, LLC's 54 Motion to Dismiss is GRANTED, Plaintiff's claims against KDSR are DISMISSED with prejudice and without leave to amend, and KDSR is DISMISSED with prejudice from the case. Coastal Mechanical Systems, LLC's 59 Motion to Dismiss is also GRAN TED, Plaintiff's claims against Coastal are DISMISSED with prejudice and without leave to amend, and Coastal is DISMISSED with prejudice from this case. The Clerk shall enter judgment for Defendants KDSR and Coastal. Coastal's 100 Motion for Judgment on the Pleadings is DISMISSED AS MOOT. Signed by District Judge Rebecca Beach Smith on 12/15/23. (jhie, )
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Hornsby v. United States of America Doc. 111 UNITED STATES DISTRICT EASTERN DISTRICT COURT OF VIRGINIA Norfolk Division DOUGLAS I. HORNSBY, Administrator of the Estate of CYNTHIA GARY, Plaintiff, CIVIL NO.: V. 2:22cv427 UNITED STATES OF AMERICA, COASTAL MECHANICAL SYSTEMS, LLC, and KD SHIPYARD REPAIRS, LLC, Defendants. OPINION This matter comes before the court on filed by Defendants KD Shipyard Repairs, Mechanical Systems, LLC reasons explained below, findings Report ("Coastal") .^ LLC ECF ("KDSR") Nos. 54, to Dismiss, and Coastal 59. For the the court ADOPTS AND APPROVES IN FULL the and recommendations set and two Motions Recommendation Plaintiff's Objections, ECF No. forth in the Magistrate Judge's ("R&R"), ECF No. 93; OVERRULES 96; GRANTS the Defendants' Motions ^ CECO Environmental Corp. ("CECO") also filed a Motion to Dismiss, ECF No. 73, and the Magistrate Judge's Report and Recommendation addresses that Motion, ECF No. 93. However, CECO was dismissed from this case without prejudice on November 13, 2023. ECF No. 110. Accordingly, this Opinion only addresses the Motions filed by KDSR and Coastal. Dockets.Justia.com to Dismiss, ECF Nos. 54, 59; and DISMISSES Defendants KDSR and Coastal from the case with prejudice. I. This Factual and Procedural History matter arises from the death of Ms. ("Decedent") while working on board the USS McFaul on March 15, 2021. United States Metro and was Machine ("NASSCO"). ECF No. for d/b/a at The McFaul repairs at General Decedent 4-5. unexpectedly closed, at SI 2. docked Corp., Id. 21 a Cynthia ("the McFaul") is owned by the shipyard owned by Dynamics died crushing her to death. when Id. NASSCO-Norfolk a Id. Coastal. Plaintiff October 14, Coastal,^ SISI filed 2022, United States, and at door Multiple including KDSR 7-9. a Complaint ECF No. 1, against the United March 10, States 2023, ECF No. 21. On including KDSR April 28, 2023, KDSR filed a Motion to Dismiss the Amended Complaint under Fed. Civ. P. 12(b)(6) filed a Motion 2 October NASSCO 27, and a Brief in Support. to was 2023. Dismiss on May 4, dismissed ECF No. on and an Amended Complaint against the NASSCO,^ and various subcontractors, on blow-in at SI 27. subcontractors were working on the McFaul that day, and Gary from the ECF Nos. 2023, case 54, ECF No. without 55. 59. R. Coastal Plaintiff prejudice on 98. 2 The other subcontractors are Harbor Industrial Services, ("HIS") and Advanced Integrated Technologies, LLC ("AIT"). Plaintiff's claims against HIS were dismissed with prejudice on August 17, 2023. ECF No. 88. Plaintiff's claims against AIT were dismissed without prejudice on November 13, 2023. ECF No. 109. Inc. 2 has Defendants have replied, ECF Nos. are Plaintiff's negligence (Count IV) and defendants (Count VIII). Plaintiff's On August 17, claim ECF Nos. district applicable, to Dismiss. death claim 55 at 4-8, and and Coastal all against the 59 at 3-4. Leonard pursuant to 28 U.S.C. designating including evidentiary hearings, undersigned 68, the court referred the matter to United 2023, thereby 636(b)(1)(B), KDSR against wrongful 66, 70. At issue in the Motions 67, States Magistrate Judge Lawrence R. § ECF Nos. filed memoranda opposing these Motions, him \> to proposed hearings. and to submit to the if necessary, judge conduct findings of fact. if and recommendations for the disposition of the Motions // ECF No. 90 at court's Referral Order, Dismiss 2 ("Referral Order"). Pursuant to the the Magistrate Judge held a hearing on the Motions to on September 7, 2023. ECF No. 91. hearing, the Magistrate Judge decided he would recommend granting At the KDSR's and Coastal's Motions to Dismiss as to the negligence claim against The them. ECF Magistrate No. Judge 92 at 25 did not (September 7, decide whether leave to amend the negligence claim nor for the wrongful death claim. On September 29, recommending the 2023, Id. the at 25, 2023, to Court Count VIII grant Plaintiff finalize a recommendation 44. Magistrate Judge filed an following: 1. With respect to KDSR's Motion to Dismiss, the Transcript). RECOMMENDS wrongful that death, Count be 3 IV, ECF No. negligence, DISMISSED, that leave 54, and to R&R amend the Complaint be DENIED, from the and that KDSR be DISMISSED case. 2. With respect to Coastal's Motion to Dismiss, ECF No. 59, the Court RECOMMENDS that Count IV, negligence, and Count VIII, wrongful death, be DISMISSED, that leave to amend the Complaint be DENIED, and that Coastal be DISMISSED from the case. 3. With respect to CECO's Motion to Dismiss, the Court RECOMMENDS that Count VIII be 73, ECF No. DISMISSED WITH PREJUDICE. ECF No. file 93 at 93 at 11-12.“^ The parties then had fourteen written objections to the R&R. See ECF (14) Nos. days 90 at to 2-3; 12. On October 13, 2023, ECF No. 96. Judge's recommendations and KDSR. Plaintiff's Id. at 3-5. Plaintiff two on filed Objections to the R&R. objections the focused on negligence Plaintiff did not claim file the Magistrate against objections recommendation of dismissing the wrongful death claim. and KDSR responded on October 27, II. Pursuant Procedure, to Rule the court, 2023. Coastal ECF Nos. 99, Id. to the Coastal 102. Legal Standard 72 (b) of the Federal Rules of Civil having reviewed the record in its entirety. must make a ^ novo determination of those portions of the R&R to which the parties have specifically objected. Fed. R. Civ. ^ Granting a Motion to Dismiss under Rule 12(b) (6) operates as a dismissal with prejudice unless otherwise stated. See, e.q., Carter v. Norfolk Cmty. Cir. 1985). Hosp. Ass'n, 4 Inc., 761 F.2d 970, 974 (4th P. 72(b). itself that order to R. there the Ins. Co., Civ. P. accept, reject, of the Objections of 2:17-cv-176, (Jackson, 622 Cir. not proper. a waiver. Cir. the or the 2018 R&R 315 (4th recommit w must the of v. record Colonial Cir. 2005) note). the t The in Life (quoting court may the recommendation matter to him with the States *2 v. must general or court of district V. (E.D. Va. Va. Port Mar. Midqette, also sufficient 'with made Scott n at Objections because be alert 1508592, United w Diamond tt committee's objection. WL face 636(b)(1). (citing Orpiano 478 Auth., 27, 2018) F.3d respond to the 616, specific conclusory objections are v. Johnson, 687 F.2d 44, 47 (4th 1982)). Ill. Plaintiff's to / the 'only satisfy General or conclusory objections are the equivalent of Id. ff § 310, reasonably to [R&R] on in whole or in part, Judge, 2007)). errors in the F.3d advisory (quoting J.) (4th 416 U.S.C. as error recommendation. to specificity so No. clear or modify, 28 ground no 72 Magistrate instructions. true is accept & Accident Fed. must For unchallenged portions, the court amend Coastal; instead should and of (2) with objections to be granted Analysis the as R&R are to the as follows: negligence (1) claim leave against the dismissal of KDSR should be without prejudice prejudice. ECF No. 96 at 3-5. As noted above. Plaintiff does not object to the Magistrate Judge's recommendation 5 that the Virginia wrongful death claim be dismissed with prejudice and without leave to recommendations, court Plaintiff Coastal. amend Leave reviews leave to Complaint, claim de The Amend novo Civ. appropriate negligence to amend See Fed. R. is Id. court now as P. the to to recommendation negligence on Plaintiff the can No. facts alleged a fact discussed at the hearing, 96 at 4. It to deny against claim establish in appears from the a the viable Amended and new evidence an Occupational Safety and Health Administration ECF in turn. Coastal R&R's his R&R's 72(b). Plaintiff argues that leave to because based as the addresses and Plaintiff's objections to them, A. The amend. report.^ ("OSHA") hearing from transcript that Plaintiff had access to the OSHA report at the time of the hearing but did not negligent. stated much. ft that rely on No. 92 ECF the that at report 13, redacted OSHA 16. to argue Instead, report . . that Coastal Plaintiff's . didn't was counsel really help Id. at 13. Coastal argues that the court should not consider 5 Of interest. Plaintiff does not specifically object to the R&R's recommendation that Plaintiff's negligence claim against Coastal be dismissed with prejudice, ECF No. 96 at 3-5, as he does for KDSR, see infra at 9-12. However, in Adbul-Mumit v. Alexandria Hyundai, LLC, the Fourth Circuit held that "[p]laintiffs whose actions are dismissed are free to subsequently move for leave to amend pursuant to Federal Rule of Civil Procedure 15 (b) even if (4th Cir. 2018) further instructed leave to amend is the dismissal is with prejudice." 896 F.3d 278, 293 (citations omitted). The court in Adbul-Mumit that the standard of review for a denial of \\ abuse of discretion." Id. 427-28 (4th Cir. 2006)) . (citing Laber v. See infra note 6 6. Harvey, 438 F.3d 404, the OSHA report and that, even considering the cannot establish that KDSR was negligent. Plaintiff report. ECF No. 99 at 3-8. In reviewing a magistrate judge's recommendations, a district court may consider Enterprises (E.D. Va. Ltd, 2000) new evidence v. from an Virgin Cuts, (Friedman, J.) . objecting party. 149 Inc., However, F. Supp. attempts Virgin 2d 220, to 223 raise new evidence during a district court's review of an R&R are disfavored. Id. Further, district courts often decline to consider new evidence when the objecting party could have presented that evidence to the magistrate judge but Caldwell v. Jackson, 831 F. court will not consider The could have used, opted not but to. Supp. chose not See, 2d 911, the to, 915 OSHA in id. e_^. 224 (M.D.N.C. report his at that negligence & n.3; 2010). Plaintiff argument against Coastal at the hearing before the Magistrate Judge. As the court explained in Virgin Enterprises, permitting such piecemeal presentation of evidence is exceptionally wasteful of time of both the magistrate and district judges. ft burdens opposing parties, encourage the withholding of negative evidence, and careless 149 at 223-24 F. Supp. preparation court the (quoting Morris v. 161, 163 (S.D.N.Y. Considering the the of initial papers. would reward Supp. 2d Amalgamated Lithographers of Am., 994 rr F. may 1998)). record that was before the Magistrate Judge, agrees with his recommendation to deny Plaintiff to amend the negligence claim against Coastal. 7 leave Under Federal Rule of Civil Procedure 15(a) , when justice so requires. [t]he \\ Fed. ft court R. Civ. should P. freely 15(a) (2) . give leave However, leave to amend should not be given when the amendment would be futile. Balas V. Cir. Huntington 2013). A insufficient Com. (Payne, proposed on Workers its Indus., is Union, 254 Inc. 274, 280 facts that plausibly demonstrate \> negligence the 401, \\ if Foods F.R.D. A legally sufficient F.3d futile Smithfield ft 711 Inc., amendment face. Int^l J.) . Ingalls v. it 409 is legally United (E.D. a Food Va. claim must existence of (4th 2008) contain legal duty. a breach of the duty, and proximate causation resulting in damage. Riddick v. Watson, (Davis, 288, J.) 293, elements 503 F. Supp. (quoting Atrium Unit 585 S.E.2d 545, of statements, a cause U.S. 662, 678 must be enough to ft Id. 548 of // (2003)). Id. (2009)). raise a 410, Owners action. do not suffice. 556 level. 3d 399, \\ Further, (quoting Bell Atl. Ass^n to Corp. King, 266 recitals mere of relief Va. the conclusory (quoting Ashcroft v. any v. v. by tf (E.D. Va. 2020) Threadbare supported at 410 right 424-25 & Iqbal, [f]actual allegations above speculative Twombly, the 550 U.S. 544, 555 (2007)). The Magistrate Judge weighed Coastal in Plaintiff's Amended emerged at the hearing that project on interior side onto the Plaintiff. ECF No. 93 \\ the Complaint, Coastal of at facts the 10; was alleged plus completing blow-in door see the ECF // No. against fact a that welding that collapsed 92 at 19-20. Regarding the Amended Complaint, during the hearing that it Plaintiff's ft is woefully short of facts. w at 13. It states only that Coastal admitted counsel ECF No. 92 was a subcontractor responsible for all or part of the work in which Gary was engaged at the time of her death"; subcontractor that that was owed Plaintiff a duty, injuries. the ECF No. recital of Plaintiff working assigned under Coastal; 7, elements 19-20, of to work and that for a Coastal and caused Plaintiff's breached that duty, 21 at the was 47-49. negligence These bare are facts and insufficient. The added fact that Coastal was working near the blow-in door does not move the proposed discussing only this surmise amendments fact at about liability. ECF No. how the beyond a hearing. this fact speculative Plaintiff's might 92 at 19-20. Accordingly, level. counsel indicate In could Coastal's Plaintiff's objection regarding leave to amend as to Coastal is OVERRULED.® B. The court Dismissal of KDSR With Prejudice reviews KDSR with prejudice. de novo the See Fed. R. R&R's Civ. P. recommendation 72(b). to Plaintiff dismiss argues that KDSR should be dismissed without prejudice because "discovery may develop facts which would show negligence by KDSR. ® Coastal the As discussed supra at 7-9, the negligence is threadbare and amending it would be court finds no clear error in dismissing the R&R's ff ECF No. claim futile. 96 against Therefore, recommendation of the negligence claim against Coastal with prejudice. See Diamond, 416 F.3d at 315 (clear error standard applies to R&R's unchallenged recommendations). 9 at 5.”^ amend Relatedly, inappropriate. the R&R recommends denying Plaintiff leave to using discovery to obtain additional facts would be because In the ECF /f No. Fourth 93 at Circuit, 8-9.8 district courts are not required to give plaintiffs one without-prejudice ruling on the merits before dismissing with prejudice. MedCom Carolinas, Fourth power Circuit to Inc., has manage efficient 42 their resolutions, of district 278, 292 dismissal court. t/ States F.4th 185, 196 explained. and lies an of that rel. N\ the Nicholson (4th Cir. courts eye toward power sound 2022). have is (citation omitted). within Adbul-Mumit v. (4th Cir. with part Id. ex [d]istrict \\ dockets with-prejudice dismissals. nature United rr the inherent speedy the Therefore, LLC, and use discretion Alexandria Hyundai, As v. of 896 of the the F.3d 2018) . See supra note 5 and accompanying text. Moreover, KDSR argues that Plaintiff's objection to the recommendation of dismissal with prejudice "is the same as its request for leave to amend at the hearing" and thus lacks specificity and is a general objection that should be reviewed for clear error. ECF No. 102 at 3-4. Contrary to KDSR's assertion, the Fourth Circuit has recently clarified that objections need not be novel to be sufficiently specific." Elijah v. Dunbar, 66 F.4th 454, 460 (4th Cir. 2023). Instead, an objection can be sufficiently specific even if it \\ w merely 'restate[s] all of [the] claims'" raised earlier because doing so "alert [s] the district court that [the litigant] believed the magistrate judge erred in recommending dismissal of those claims." Id. (quoting Martin v. Duffy, 858 F.3d 239, 246 (4th Cir. 2017)). Accordingly, the court will review the recommendation of dismissal with prejudice ^ novo. 8 Plaintiff does not specifically object to this recommendation regarding leave to amend, so the court reviews it for clear error. ECF No. 96 at 5; see Diamond, 416 F.3d at 315. 10 Here, the Magistrate Judge reasonably No. no 93 at 7. Next, evidence would correct Complaint. the Id. ft survive a Rule 12(b)(6) motion. \\ the Magistrate Judge reasoned that suggesting that Plaintiff deficiencies at 8 (internal and that Plaintiff's negligence Plaintiff does not appear to contest. claim against KDSR could not concluded, is found within quotation [tjhere any facts aware of marks ECF the is that Amended omitted) . That reasoning is sound considering Plaintiff's acknowledgments at the hearing \\ that "the [CJomplaint nobody knows what happened, is woefully short of facts, ft that and that the United States Navy and ft OSHA both conducted investigations but have been unable to explain why the accident occurred. ECF No. 92 at 13-14, 16-17. Also, Plaintiff's Objections to the R&R recognize that any claim against KDSR would time. ECF No. n leave to discovery reasonably out if Micro (Fed. depend it amend is has "facts at 5. the to 1990)) . v. be viable a a party I n Co., recommendation "a to prove discovery. Inc., 93 894 not a because claim not at 8 F.2d clearly later denying discovery ECF No. is at R&R recommends after without claim. Steel discovery" the claim 'assist for Kane This in Accordingly, to any basis Inc, learned negligence intended believes Motion, Cir. 96 on to it find (quoting 1318, 1327 erroneous given Plaintiff's speculative reliance on future discovery. In light of eventually, the uncertainty raise a viable around whether Plaintiff could. negligence claim against KDSR, and in 11 the interest of judicial efficiency, the court OVERRULES Plaintiff's objection to the R&R's recommendation that Plaintiff's negligence claim against KDSR be dismissed with prejudice.® C. Wrongful Death Claim The court reviews the R&R's recommendation that Plaintiff's wrongful death claim under Virginia law be dismissed with prejudice and without not object to at 315. The because it at leave to amend this portion Magistrate is for of Judge preempted clear error the R&R. See recommends by general an admiralty Plaintiff because 416 Diamond, this dismissing maritime ECF law. did F.3d claim No. 93 10-11. Plaintiff's case is admiralty jurisdiction. ECF No. 21 at SISI case under 11, 13. w this court's With admiralty jurisdiction comes the application of substantive admiralty law. E. River 864 (1986). maritime law, be S.S. v. Therefore, law, Transamerica [a]bsent as developed by the a Delaval, relevant Inc., 476 U.S. statute, judiciary, applies. like the wrongful death statute Plaintiff relies applied if federal 1220, Corp. it maritime 1226 ® But conflicts law. (4th Cir. ff Md. with, or seeks Dep't of Nat. 1995). see supra note 5. 12 to Res, the ft general Id. on, 858, » State may not materially change. v. Kellum, 51 F.3d Virginia's wrongful death statute allows plaintiffs to recover damages for mental anguish, but federal maritime law does not. Compare Va. Code § Ann. 8.01-52 (2023) ("The verdict or judgment of the court trying the case without a jury shall include. but may not be limited to, with Sea-Land Servs., ("[Mjental anguish damages Inc, v. . IS wrongful-death remedy."), Gaudet, not for . . . 414 U.S. 573, compensable anguish") , mental 585 n.l7 under the (1974) maritime superseded on other grounds by statute, Longshore and Harbor Workers' Compensation Act, Pub. L. No. 92-576, 86 Stat. U.S. 1251, 19, 30 as n.l recognized (1990). in Miles Given this v. Apex conflict Marine Corp., 498 Virginia's between wrongful death law and federal maritime law, the state law wrongful death not claim clearly is preempted. err in preempted, ECF No. the R&R's Accordingly, finding the the Virginia Magistrate wrongful Judge death did claim 93 at 11, and the court ADOPTS this finding and recommendation that this claim be dismissed with prejudice and without leave to amend. IV. Having reviewed the Conclusion record in its entirety, and having made a ^ novo determination of those portions of the R&R to which the Plaintiff objected, the court OVERRULES Plaintiff's Objections and ADOPTS AND APPROVES IN FULL forth in the the findings R&R. 13 and recommendations set Accordingly, KDSR's Motion to Dismiss, ECF No. 54, is GRANTED, Plaintiff's without claims against KDSR are DISMISSED with prejudice and leave to amend, the case. and KDSR is DISMISSED with prejudice Coastal's Motion to Dismiss, Plaintiff's claims against and without leave to amend, from this case. and are 59, is also GRANTED, prejudice DISMISSED with and Coastal is DISMISSED with prejudice The Clerk shall enter judgment for Defendants KDSR Coastal. Finally, for Coastal ECF No. from Judgment on October 27, on the Pleadings wrongful death claim Coastal further filed a Motion 2023, asking (Count VIII). the ECF No. court 100. to dismiss the Plaintiff filed a Response stating that he does not oppose this Motion for Judgment. ECF No. the 107 at 1-2. wrongful death Coastal's Motion DISMISSED AS The counsel IT Because the court, claim for in Judgment its on in this Opinion, entirety the to as Pleadings, dismisses all parties. ECF No. 100, is Opinion to MOOT. Clerk is DIRECTED to send a copy of this for all parties. IS SO ORDERED. bL Rebecca Beach Smith -m Senior United States District Judge REBECCA SENIOR December 15 , 2023 14 UNITED BEACH STATES SMITH DISTRICT JUDGE
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