Hoschar v. Appalachian Power Co., No. 12-2482 (4th Cir. 2014)
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Plaintiffs, Mr. and Mrs. Hoschar, filed suit in West Virginia state court against APCO and ICI, seeking damages for an infectious lung disease called histoplasmosis that Mr. Hoschar allegedly contracted while working as a boilermaker at one of APCO's coal-fired power plants. On appeal, plaintiffs challenged the district court's denial of their motion to remand the case to state court and the district court's grant of APCO's motion for summary judgment in favor of APCO. The court concluded that APCO has carried its burden of establishing federal subject matter jurisdiction because the record amply demonstrated that the location where APCO's officers direct, control, and coordinate APCO's activities was Columbus, Ohio. The court held that APCO did not have actual or constructive knowledge of a potential histoplasmosis risk, and therefore, APCO did not owe Mr. Hoschar a duty to guard against it. Accordingly, the court affirmed the district court's grant of summary judgment in favor of APCO.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2482 ROGER HOSCHAR, and JUDY HOSCHAR, Plaintiffs Appellants, v. APPALACHIAN POWER COMPANY, Defendant Appellee, and INDUSTRIAL CONTRACTORS, INC., Defendant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:11-cv-00152) Argued: November 6, 2013 Decided: January 7, 2014 Before GREGORY, DAVIS, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Gregory and Judge Davis joined. ARGUED: Alexander Deane McLaughlin, THE CALWELL PRACTICE, PLLC, Charleston, West Virginia, for Appellants. Daniel Rhys Michelmore, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for Appellee. ON BRIEF: John Skaggs, THE CALWELL PRACTICE, PLLC, Charleston, West Virginia, for Appellants. Brian R. Swiger, Michael P. Leahey, JACKSON Virginia, for Appellee. KELLY 2 PLLC, Charleston, West THACKER, Circuit Judge: Appellants, Roger and Judy Hoschar (collectively Appellants ), filed this civil action in the Circuit Court of Mason County, West Virginia, against Appellee, Appalachian Power Company ( APCO ), and Defendant, Industrial Contractors, Inc. ( ICI ), seeking damages for an infectious lung disease called histoplasmosis that Roger Hoschar ( Mr. Hoschar ) allegedly contracted while working as a boilermaker at one of APCO s coalfired power plants. APCO removed the case to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332. Appellants, West Virginia residents, sought to remand the action to state court, arguing that APCO s principal place of business is in Charleston, West Virginia, and that complete diversity is therefore lacking. The district court denied Appellants motion, concluding that under the nerve center test, APCO s principal place of business is in Columbus, Ohio. After discovery, the district court awarded summary judgment to APCO, holding that, pursuant to West Virginia law, APCO did not owe a duty to Mr. Hoschar. In this appeal, Appellants challenge both the district court s denial of the motion to remand and the district court s grant of APCO s motion for summary judgment. amply demonstrates that the location 3 Because the record where APCO s officers direct, control, and coordinate APCO s activities is Columbus, Ohio, we conclude that APCO has carried its establishing federal subject matter jurisdiction. burden of With respect to APCO s motion for summary judgment, we hold that APCO did not have actual or constructive knowledge of a potential histoplasmosis risk, and therefore, APCO did not owe Mr. Hoschar a duty to guard against it. Accordingly, we affirm. I. A. APCO owns the Philip Sporn power plant ( Sporn ) near New Haven, West Virginia. Sporn is a coal-fired power plant, generating electricity by burning coal to create steam and then passing the steam through a turbine. The power plant has five precipitators, which remove granular ash particles ( fly ash ) from the gasses produced by burning coal. precipitator generates significant When in operation, a heat, which can cause corrosion to its exterior steel siding and result in fly ash leakage. ICI was hired by APCO to perform general maintenance at Sporn, which included welding metal patches to the exterior of the precipitators to prevent fly ash leakage. Mr. Hoschar was a boilermaker employed by ICI from March 2006 to March 2007. During that time, he worked exclusively at Sporn. His typical maintenance assignment consisted of hanging from a pick -4 that is, a suspended platform like those used by window washers -- and welding steel patches over corroded portions of the ducts leading into and out of the Unit 5 precipitator ( Unit 5 ). During his time at Sporn, Mr. Hoschar frequently worked in and around Unit 5, spending (by his estimate) at least five months there. Of note, he working on Unit 5. did not spend five consecutive months Rather, according to Mr. Hoschar s work records, he spent a total of 66 days performing elevated welding work on the exterior of Unit 5 over the course of 13 months. Before welding any steel patches, Mr. Hoschar and other workers had to remove debris that had built up in the steel channels. Because Unit 5 is an outdoor structure, pigeons sometimes perched on its steel channels and left their droppings behind. Therefore, the debris usually consisted of approximately three to four inch accumulations of bird manure and two inch accumulations of fly ash. debris from the steel channels brush, or using compressed air. Mr. Hoschar removed the either by hand, with a wire When removing debris and while welding the steel patches, Mr. Hoschar wore a respirator over his face. In March 2007, Mr. Hoschar was terminated from his employment with ICI. In 2009, as part of a routine pre- operative test before Mr. Hoschar underwent knee surgery, which was unrelated to his work at Sporn, a chest x-ray revealed the 5 presence of a mass on his right lung. feared the mass was cancerous and Mr. Hoschar s physician recommended he undergo a lobectomy to remove the portion of his lung containing the mass. After a portion of Mr. Hoschar s lung was removed, a biopsy revealed that the mass was not cancer, but instead was a disease called histoplasmosis. Histoplasmosis is an infectious disease caused by inhaling the spores of a naturally occurring soil-based fungus called histoplasma capsulatum. The histoplasma capsulatum fungus is endemic in the Ohio Valley region, in which Sporn is located, because content. it grows best in soils with high nitrogen Once an individual inhales the fungus, it colonizes the lungs. However, the vast majority of people infected by histoplasmosis do not experience any symptoms of infection or suffer any ill effects. While Mr. Hoschar was working at Sporn, the Occupational Safety and Health Administration ( OSHA ) website maintained a Recognition. page entitled, Respiratory Protection: Hazard One of the reference documents found on that page was a publication by the National Institute for Occupational Safety and Health ( NIOSH ) called, Histoplasmosis: Protecting Workers at Publication Risk (the explained NIOSH that the Publication ). histoplasma The NIOSH capsulatum fungus seems to grow best in soils having a high nitrogen content, 6 especially those enriched with bird manure or bat droppings. J.A. at 1052. 1 It further noted that the fungus can be carried on the wings, feet, and beaks of birds and infect soil under roosting sites buildings. or manure accumulations inside or outside Id. B. On January 31, 2011, Appellants sued APCO and ICI for negligence in the Circuit Court for Mason County, West Virginia, seeking damages Appellants allege for Mr. Mr. Hoschar s Hoschar histoplasmosis contracted infection. histoplasmosis while working at Sporn as a result of inhaling contaminated dust when he swept out the mixtures of bird manure and fly ash that had accumulated in Unit 5 s steel channels. Appellants also allege APCO did not provide any written or verbal warnings concerning the presence of aged bird manure around Unit 5 or of the health risks associated with accumulations of bird manure, such as histoplasmosis. On March, 9, 2011, APCO removed this action to the United States District Court for the Southern District of West Virginia pursuant to 28 U.S.C. § 1332, explaining that APCO s principal place of business is in Columbus, Ohio, and complete 1 Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 7 diversity therefore exists between Appellants and APCO and ICI. 2 Appellants filed a motion to remand the case to state court on March 14, 2011, arguing that APCO s principal place of business is in Charleston, West Virginia, and complete diversity is thus lacking. C. Prior to the initiation of this lawsuit, Appellants counsel -- residents) representing in a other different case clients also (also pending West Virginia the Southern in District of West Virginia against APCO -- took the deposition of Mark Dempsey, APCO s Vice President of External Affairs. deposition was Procedure 30(b)(6), representative principal place conducted to of pursuant which testify to required about business. Federal APCO topics After Rule to Civil designate relating taking of The the to a APCO s deposition, plaintiff s counsel in that case filed a motion to remand the action to West Virginia state court. That case settled, however, before a decision on the motion to remand was issued. Because the same jurisdictional issue arises in this litigation, Appellants attached Dempsey s Rule 30(b)(6) deposition taken in the other case to his motion to 2 remand in this case. In ICI is an Indiana corporation with its principal place of business in Indiana. ICI s principal place of business was never in dispute. 8 opposing Appellants motion, APCO submitted an affidavit from Dempsey. APCO s The following description of the facts relevant to principal place of business is based on Dempsey s deposition testimony and his affidavit. APCO -- a subsidiary of American Electric Power Company ( AEP ) -- is incorporated in Virginia and maintains offices in Charleston, West Virginia and Columbus, Ohio. In Charleston his deposition, office is an Dempsey testified administrative refer to it as headquarters. J.A. 86. lists Charleston as its headquarters. office, that but the [they] In fact, APCO s website With respect to APCO s Charleston office being referred to as APCO s headquarters, Dempsey testified, applied to APCO. known as the headquarters Id. at 107. headquarters is probably a misnomer when He explained that it became simply because president, Dana Waldo, lived in Charleston. APCO s former Waldo is no longer employed by APCO. According to Dempsey, of APCO s 27 officers, only the following five officers work in the Charleston office. Charles Patton, APCO s President and Chief Operating Officer, oversees and directs all aspects of APCO s day-to-day operations from Charleston. He coordinates the allocation of APCO s resources as well as APCO s communication with employees and the public. With respect to the employees who report directly to him, Patton 9 performs a number of administrative tasks, including evaluating job performance and assigning goals. chief representative Virginia, Philip Virginia, Wright, responsible with and APCO s for the Patton also acts as APCO s regulatory Tennessee. Vice overseeing In President APCO s agencies addition of in to West Patton, Distribution, electricity is distribution operation, which involves the actual delivery of electricity to residential and business customers. Dempsey himself interacts with state and local governments and monitors legislation that affects APCO s business. Generating Assets, plants. Lastly, Regulatory Affairs, Jeff LaFleur, APCO s Vice President of oversees Chris the operation Potter, oversees APCO s APCO s of APCO s power Vice President of regulatory operations in West Virginia, Virginia, and Tennessee. The remaining 22 out of APCO s 27 officers maintain their offices in Columbus, Ohio. These officers include the Chief Executive Officer, Chief Financial Officer, Secretary, and Treasurer. in In addition, all nine of APCO s directors are based Columbus. From its Columbus office, APCO s officers are responsible for: deciding the location and construction of power plants and facilities, transmission pump storage lines; facilities, operating coal-fired hydroelectric power plants, and gas power plants; negotiating and executing contracts for the procurement of fuel for those generating plants; handling 10 environmental generating purchase permitting plants; fleet for work negotiating vehicles; calculating and paying facilities; controlling at and collecting taxes and APCO s executing and owed West contracts disbursing on its West filings directing Virginia made to revenues; Virginia with the Securities and Exchange Commission (the SEC ) and the Federal Energy Regulatory Commission (the FERC ); determining human resource policies and codes of conduct; and overseeing APCO s legal affairs. The district court considered these facts and denied Appellants motion to remand, finding that Columbus, Ohio, is APCO s principal place of business. The court explained that although many of the day-to-day business activities of [APCO] are conducted in Charleston[,] . . . the ultimate decision- making power, which directs, controls, and coordinates the bigpicture activities of [APCO], is carried out in Columbus. Hoschar v. Appalachian Power Co., No. 3:11-152, 2011 WL 1671636, at *4 (S.D. W. Va. May 3, 2011) (J.A. 172-73). Therefore, the district court concluded that complete diversity existed between the parties and that federal jurisdiction was proper. After the completion of discovery, APCO and ICI filed separate motions for summary judgment, which the district court 11 granted on November 30, 2012. 3 See Hoschar v. Appalachian Power Co., 906 F. Supp. 2d 560, 567, 570 (S.D. W. Va. 2012) (J.A. 1366-67, 1372). With respect to APCO s motion for summary judgment, the district court held that, as a matter of law, the histoplasmosis hazard posed by the accumulations of aged bird manure was not reasonably foreseeable to APCO, and APCO therefore did not owe Mr. Hoschar a duty to protect against it. See Hoschar, 906 F. Supp. 2d at 567 (J.A. 1366). Appellants timely appealed both the district court s denial of the motion to remand and the district court s grant of APCO s motion for summary judgment. We possess jurisdiction pursuant to 28 U.S.C. § 1291. II. Like all questions implicating the subject matter jurisdiction of the federal courts, we review de novo the denial of a motion to remand to state court. Lontz v. Tharp, 413 F.3d 435, 439 (4th Cir. 2005) (citing Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815-16 (4th Cir. 2004) (en banc)). The burden of establishing federal subject matter jurisdiction is placed upon the party seeking removal. Mulcahey v. Columbia Organic Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson 3 Appellants settled their case with ICI prior to briefing this appeal. Therefore, ICI is no longer a party to this litigation. 12 v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)). We review the district court s factual findings with respect to jurisdiction for clear error. Velasco v. Gov t of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004). We review a district court s grant of a motion for summary judgment de novo, applying the same legal standards as the district court. Cir. 2013). Glynn v. EDO Corp., 710 F.3d 209, 213 (4th Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). In determining whether a genuine issue of material fact exists, we view the facts and draw all reasonable inferences in the light most favorable to the non-moving party. 213. Glynn, 710 F.3d at However, to show that a genuine issue of material fact exists, the non-moving party must set forth specific facts that go beyond the mere existence of a scintilla of evidence. Id. (quoting Anderson 252 v. Liberty Lobby, Inc., 477 U.S. 242, (1986)). III. The threshold issue we must resolve is whether the federal dispute. the courts subject matter jurisdiction over this Appellants contend that in analyzing this question, district existed have among court the erroneously parties held after 13 that complete incorrectly diversity concluding that APCO s principal place of business is in Columbus, Ohio, rather than in Charleston, West Virginia. Appellants argue that the district court incorrectly applied the nerve center test, as set forth by the Supreme Court in Hertz Corp. v. Friend, 559 U.S. 77, 92-93 (2010). APCO are West According to Appellants, both they and Virginia citizens, jurisdiction does not exist. which means diversity We disagree. A. Although originally filed in West Virginia state court, APCO removed this action to federal court pursuant to 28 U.S.C. § 1441. Section 1441 provides, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant . . . to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. § 1441(a). APCO s claimed basis for federal subject matter jurisdiction in support of removal was diversity of citizenship. Pursuant to 28 U.S.C. § 1332, a federal district court has original jurisdiction over all civil actions between citizens of different states where the amount in controversy exceed $75,000. 28 U.S.C. § 1332(a)(1). Section 1332 requires complete diversity among the parties, meaning the citizenship of each plaintiff must be different from 14 the citizenship of each defendant. (1996). See Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 For purposes of diversity jurisdiction, a corporation shall be deemed to be a citizen of every State . . . by which it has been incorporated and of the State . . . where it has its principal place of business. In determining 28 U.S.C. § 1332(c)(1). a corporation s principal place of business, we previously employed two tests: the nerve center test and the place of operations test. See Athena Auto., Inc v. DiGregorio, 166 F.3d 288, 290 (4th Cir. 1999). However, the Supreme Court in Hertz definitively held that, for purposes of diversity business jurisdiction, is its nerve a corporation s center. Hertz, principal place 559 at U.S. of 80-81. Accordingly, we apply the nerve center test to determine whether APCO s principal place of business is in Charleston, West Virginia or Columbus, Ohio. In Hertz, the Supreme Court rejected the more general business business activities a test, corporation which conducted measured in a determine its principal place of business. at 93. the amount of state to particular See Hertz, 599 U.S. The Court explained, administrative simplicity is a major virtue in a jurisdictional statute, and the nerve center approach is simple to apply comparatively speaking. 94-95 (emphasis in original). Id. at Nevertheless, the Supreme Court recognized that there will be hard cases. 15 Id. at 95. For instance, in this era of telecommuting, some corporations may divide their command and coordinating functions among officers who work at several different locations, perhaps communicating over the Internet. Id. at 95-96. Even under these circumstances, however, the nerve center test points courts in a single direction, towards the center of overall direction, control, and coordination. Id. at 96. Although the nerve center test will not, in all instances, automatically generate a result, it nonetheless provides relatively easier to apply. a sensible test that is Id. As the Supreme Court explained, the phrase principal place of business refers to the place where the corporation s high level officers direct, corporation s activities. control, and coordinate Hertz, 559 U.S. at 80. corporation s nerve center. Id. at 80-81. the This is the While the Court noted that in practice, the nerve center should normally be the place where the corporation maintains its headquarters, for a headquarters to qualify as the nerve center, it must be the actual center of direction, control, and coordination, . . . and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who had traveled there for the occasion). Id. at 93. Similarly, if the record reveals attempts at jurisdictional manipulation - for example, that the alleged nerve center is nothing more 16 than a mail drop box, a bare office with a computer, or the location of analyze an the annual place executive of actual retreat -- courts direction, should control, coordination, in the absence of such manipulation. and Id. at 97. The Supreme Court acknowledged that the nerve center test may in some cases produce results that seem to cut against the basic rationale for 28 U.S.C. § 1332. 96. Hertz, 599 U.S. at As an illustration, the Court explained: [I]f the bulk of a company s business activities visible to the public take place in New Jersey, while its top officers direct those activities just across the river in New York, the principal place of business is New York. One could argue that members of the public in New Jersey would be less likely to be prejudiced against the corporation than persons in New York -- yet the corporation will still be entitled to remove a New Jersey state case to federal court. And note too that the same corporation would be unable to remove a New York state case to federal court, despite the New York public s presumed prejudice against the corporation. Id. (emphasis in original). we must clearer accept them rule. in Id. Despite such seeming anomalies, view of Indeed, the necessity [a]ccepting of having a occasionally counterintuitive results is the price the legal system must pay to avoid producing system. overly the complex benefits jurisdictional that accompany administration a more uniform while legal Id. To date, the only decision from this Circuit to apply Hertz is Central West Virginia 17 Energy Co. v. Mountain State Carbon, LLC, 636 F.3d 101 (4th Cir. 2011). The plaintiff in Mountain State Carbon was a West Virginia corporation, and it brought suit in jurisdiction. federal Id. at court 102, on the basis One of 103. of the diversity defendants, Severstal Wheeling, filed a motion to dismiss due to a lack of complete diversity, arguing that its principal place of business was in Wheeling, West Virginia. Id. at 103. We applied Hertz s nerve center test and held that Severstal Wheeling s principal place of business was in Dearborn, Michigan, which was where the majority of corporate officers were located and where those officers were responsible for oversight and strategic decisionmaking. Id. at 105-06. In support of our holding in Mountain State Carbon, we focused particularly on the location with a critical mass of controlling corporate officers, observing that [s]even of Severstal Wheeling s eight corporate officers -- including its chief executive financial officer, officer, and chief general operating counsel and maintain their offices in Dearborn, Michigan. officer, secretary chief -- all 636 F.3d at 105. Only the eighth corporate officer, a vice president and general manager, maintains his office in Wheeling, West Virginia. As such, operations we are explained conducted that in even though Wheeling, the Severstal Id. day-to-day Wheeling has fail[ed] to show . . . how any of this is relevant to the 18 nerve center test under Hertz. Id. We concluded that if a corporation s day-to-day operations are managed in one state, while its officers make significant corporate decisions and set corporate policy in another, the principal place of business is the latter. See id. at 106. B. In view of the legal principles outlined above, we conclude APCO has met its burden of establishing federal subject matter jurisdiction. In this case, the record demonstrates that the place where APCO s officers direct, control, and coordinate the corporation s activities is Columbus, Ohio. Hertz, 559 U.S. at 92-93. APCO s Columbus. entire Board of Directors is located in Additionally, from its office in Columbus, 22 out of APCO s 27 officers -- including its Chief Executive Officer, Chief Financial Officer, Secretary, and Treasurer -- make significant corporate decisions and set corporate policy such that they direct, control, and coordinate APCO s activities. Together, they decide the location and construction of power plants and transmission lines, and they negotiate and execute contracts for the procurement of fuel for APCO s hydroelectric facilities, pump storage facilities, coal-fired power plants, and gas power plants; all of which are decisions at the core of APCO s business. The Columbus 19 officers handle environmental permitting for work at APCO s West Virginia facilities calculate and pay taxes owed on these facilities. they collect and disburse revenues, control and and Moreover, direct the filings made with the SEC and the FERC, determine human resource policies and codes of conduct, and oversee APCO s legal affairs. On the other hand, only five out of APCO s 27 officers are based in Charleston, West Virginia. The Charleston officers are large-scale responsible received for from operations example, Columbus in West Patton operations. implementing and for Virginia, oversees Wright the managing Virginia, all aspects oversees APCO s APCO s and of directives day-to-day Tennessee. For APCO s day-to-day distribution operations group -- that is, the guys in the line trucks and the service trucks. J.A. 77. Dempsey interacts with state and local government and monitors legislation, while LaFleur oversees the operation of APCO s power plants. the regulatory operations in And, finally, Potter oversees West Virginia, Virginia, and Tennessee. The responsibilities of APCO s Charleston-based officers are exactly the kinds of day-to-day operations and public interface that we found insufficient in Mountain State Carbon to support a finding corporation s nerve center. at 106. that West Virginia is the See Mountain State Carbon, 636 F.3d Indeed, the corporation s day-to-day operations are not 20 relevant to the nerve center test under Hertz. Id. at 105. When a corporation s day-to-day operations are managed in one state and its officers make significant corporate decisions and set corporate policy in another, the corporation s nerve center and principal place of business is the latter. See id. at 106. The record demonstrates that APCO s day-to-day operations are managed in Charleston, while its officers direct, control, and coordinate APCO s activities from Columbus. Therefore, APCO s principal place of business is in Columbus, Ohio. Appellants further contend the district court misapplied the nerve center test by looking to the location of ultimate location control of over actual APCO s control 13-14. activities, over This is APCO s a rather than the activities. distinction See Appellants Br. without a difference. First, looking to the location of ultimate control over a corporation s activities is not inconsistent with Hertz. This is because ultimate control is actual control, provided that ultimate control amounts to directing, coordinating the corporation s activities. at 95-96 (explaining that some controlling, and See Hertz, 559 U.S. corporations divide their command among different locations but that the nerve center test points courts in a single direction, towards the center of overall direction, control, and supplied)). 21 coordination (emphasis Moreover, the Supreme Court s use of the word actual was simply in the context of distinguishing center from a legitimate nerve center. a nominal nerve See Hertz, 559 U.S. at 93 (explaining that normally the corporation s nerve center is its headquarters, provided that the headquarters is the actual center of direction, control, and coordination . . . and not simply an office where the corporation holds its board meetings (emphasis supplied)); id. at 97 (explaining that if the record reveals attempts at [jurisdictional] manipulation[,] . . . the courts should instead take as the nerve center the place of actual direction, supplied)). control, and coordination (emphasis Therefore, under either phrasing, APCO s principal place of business is in Columbus, Ohio, because that is the location where APCO s officers direct, control, and coordinate its activities -- actually and ultimately. 4 4 It is of no consequence that APCO s parent company maintains its headquarters in Columbus. See Mountain State Carbon, 636 F.3d at 107 ( [A]lmost all of Severstal Wheeling s own officers work out of Dearborn, Michigan, as do some of its directors. That they may do so from a building owned by Severstal Wheeling s parent company is irrelevant. And the fact that they may also be engaged in affiliated companies business activities is also of no import. ). Of course, we do not automatically impute a parent corporation s principal place of business to its subsidiary. Instead, we focus on the location of direction, control, and coordination of the subsidiary s activities. 22 Finally, Appellants argue that APCO s nerve center must be Charleston because some of APCO s officers have referred to the Charleston office as the company s headquarters. indeed, APCO's website lists Charleston as its And, headquarters. However, Dempsey s Rule 30(b)(6) deposition clarified that the use of the term headquarters to refer to APCO s Charleston office was a misnomer. Rather, as Dempsey s affidavit makes clear, the headquarters-type decisions -- that is, setting the overarching direction and control of APCO -- occur in Columbus. To hold otherwise would run afoul of Hertz. As the Supreme Court in Hertz explained, in practice [a corporation s where that the the nerve corporation headquarters center] maintains is control, and coordination. the should its normally be headquarters actual center of the -- place provided direction, 599 U.S. at 93 (emphasis supplied). But normally does not mean always, and there is nothing in Hertz to suggest that a company cannot refer to one office as its headquarters another office. while maintaining its nerve center in Cf. Mountain State Carbon, 636 F. 3d at 105 n.2 (considering a newspaper article, which referred to Wheeling, West Virginia, as the corporation s headquarters, and citing Hertz to explain that [s]uch materials, however, do not convert Wheeling, West Virginia into the place where the corporation s 23 high level officers direct, control, and coordinate the corporation s activities (internal quotation marks omitted)). Therefore, direction, control, activities. Columbus the and Because officers focus are remains coordination the record responsible on of the location the corporation s demonstrates for of that directing, APCO s controlling, and coordinating APCO s activities, we conclude that, pursuant to the nerve center test, APCO s principal place of business is in Columbus, Ohio, and the parties are thus completely diverse. IV. Having concluded that the federal courts have subject matter jurisdiction over this dispute, we must decide whether the district court erred by granting APCO s motion for summary judgment. The district court held that, as a matter of law, APCO did not have actual or constructive knowledge that the bird manure on its premises presented a potential histoplasmosis risk, and that APCO therefore did not owe Mr. Hoschar a duty to protect against it. Appellants We agree. have asserted a negligence claim against APCO based on premises liability under West Virginia law. To prevail on such a claim, a plaintiff must show: (1) the owner owed a duty to the person injured; (2) that duty was breached; and (3) the breach of the duty proximately caused (4) an injury. Senkus v. Moore, 535 S.E.2d 724, 727 (W. Va. 2000). 24 As the district court correctly concluded, APCO did not owe Mr. Hoschar a duty of care as a matter of law. Under West Virginia law, the question of whether a duty is owed turns on the foreseeability of harm. As the Supreme Court of Appeals of West Virginia has made clear, [t]he ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. Syl. Pt. 3, Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988).5 The test is, would 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? Id. In the employment context, an employer owes a duty to provide a reasonably safe place to work to employees independent contractors who are on the premises. Ohio Power Co., 418 S.E.2d 738, 751 (W. Va. 1992). of Pasquale v. This duty includes the duty to warn of latent defects existing before the work is started that are known to the employer, but are not readily observable by the employee. Id. It is well-settled that before [a premises] owner can be liable under a negligence 5 Pursuant to West Virginia s Constitution, the Supreme Court of Appeals of West Virginia articulates new points of law through its syllabus. See Walker v. Doe, 558 S.E.2d 290, 296 (W. Va. 2001) (citing W. Va. Const. art. VIII, § 4). 25 theory, he must have had actual or constructive knowledge of the defective condition which caused the injury. Hawkins v. U.S. Sports Va. Ass n, Inc., 633 S.E.2d 31, 35 (W. 2006) (per curiam). In this case, Appellants argue that the existence and availability of the NIOSH Publication provided APCO with knowledge of the danger of histoplasmosis, which gave rise to a duty owed to Mr. Hoschar. The NIOSH Publication, which appeared on Mr. OSHA s website while Hoschar was working at Sporn, explained that the histoplasma capsulatum fungus seems to grow best in soils having a high nitrogen content, especially those enriched with bird manure or bat droppings. J.A. 1052. It further noted that the fungus can be carried on the wings, feet, and beaks of birds and infect soil under roosting sites or manure accumulations inside or outside buildings. from the mere existence of the NIOSH Id. Aside on OSHA s Publication website, however, Mr. Hoschar has offered zero evidence that APCO had actual Publication itself or constructive or that APCO knowledge had actual of or the NIOSH constructive knowledge that the histoplasma capsulatum fungus was associated with accumulations of bird manure. Turning first to actual knowledge, there is no evidence that APCO employees actually knew that the histoplasma capsulatum fungus is associated 26 with accumulations of bird manure. Of course, there is evidence that APCO and its employees knew that birds were present at Sporn and that those birds left accumulations of manure at Unit 5. However, knowledge of the existence of birds and their manure does not mean that APCO actually knew that the histoplasma capsulatum fungus was present at Sporn. See, e.g., Mowry v. Schmoll, 441 F.2d 1271, 1273 (8th Cir. 1971) (holding defendants general knowledge of constitute the histoplasmosis evidence that the disease cannot defendants knew or in any should way have known that the attic would contain spores from the fungus ); Henderson v. Volpe-Vito, Inc., No. 266515, 2006 WL 1751832, at *3 (Mich. Ct. App. June 27, 2006) (unpublished per curiam) (determining that landowner s acknowledgement of the presence of geese and their feces did knowledge of the condition of [landowner] s experts could fungus, not not the attenuate spores[,] land ). definitively and Indeed, say into that an the implied dangerous Appellants the own histoplasma capsulatum fungus actually existed at Sporn, and Appellants did not conduct any tests to determine whether it was, in fact, actually present there. Therefore, APCO did not have actual knowledge manure that the bird on its premises presented a potential histoplasmosis risk. Turning argue that next because to the constructive NIOSH 27 knowledge, Publication was Appellants disseminated through various means and was generally available to APCO, the risk of histoplasmosis was foreseeable to APCO and gave rise to a duty to at least warn Mr. Hoschar of the bird manure and the risk of histoplasmosis. The mere existence Publication, however, is insufficient. of the NIOSH Indeed, APCO cannot be charged with knowledge of what is contained within the NIOSH Publication if APCO had no reason to even be aware of its existence. See Black s Law Dictionary (9th ed. 2009) (defining constructive knowledge as [k]nowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person. ). Without any evidence that APCO was aware or should have been aware of the NIOSH Publication or its contents, APCO could not have constructive knowledge that the bird manure on its premises may have presented a potential histoplasmosis risk. Nevertheless, Appellants contend that the question of whether APCO knew or should have known of a histoplasmosis hazard on its premises is necessarily a factual determination that must be made by a jury in every instance. Appellants assertion, however, automatically go to a jury. this question Contrary to does not The determination of whether APCO had actual or constructive knowledge of a histoplasmosis risk relates to whether a legal duty was owed to Mr. Hoschar in the first place. See Hawkins, 633 S.E.2d at 35 ( [B]efore an owner 28 can be liable under a negligence theory, he must have had actual or constructive knowledge caused the injury. ). of the defective condition which It is true that often, whether or not an individual has actual or constructive knowledge of a risk is a question of conflicting fact that evidence. cannot But be where, resolved as without here, the weighing facts are undisputed, the district court can make this determination as a matter of law. See Fed. R. Civ. P. 56(a). Here, Appellants failed to present any evidence to create a genuine issue of material fact concerning whether APCO had actual or constructive knowledge of the histoplasmosis accumulations of bird manure. risks associated with Therefore, the district court properly granted APCO s motion for summary judgment. 6 6 In the alternative, APCO argues -- as it did in the district court -- that its motion for summary judgment should be granted because Appellants cannot satisfy the causation element of their negligence claim. See Senkus, 535 S.E.2d at 727 (explaining that to prevail on a negligence claim based on premises liability, a plaintiff must show that the breach of a duty proximately caused an injury). The district court found it unnecessary to evaluate APCO s causation argument, having concluded that Mr. Hoschar could not satisfy the duty element of his negligence claim. While we note that there are serious causation concerns here, we need not address APCO s alternative argument inasmuch as our conclusion that APCO owed no legal duty to Mr. Hoschar is sufficient to affirm the district court s order granting APCO s motion for summary judgment. 29 V. Pursuant to the foregoing, the district court s denial of Appellants motion to remand and the district court s grant of APCO s motion for summary judgment is AFFIRMED. 30
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