2019 WL 6837765

UNPUBLISHED OPINION. CHECK COURT RULES BEFORE CITING.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not “constitute precedent or be binding upon any court.” Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Superior Court of New Jersey, Appellate Division.
ESTATE OF KATHLEEN CHETWYND by FREDERICK E. CHETWYND, JR., the Executor of the Estate of Kathleen Chetwynd, FREDERICK E. CHETWYND, JR., her husband, individually, and PETER CHETWYND, Plaintiffs-Appellants,
v.
DIVERSIFIED RACK & SHELVING, INC., J.C. RACK & SHELVING, INC., JUAN CARLOS RODRIGUEZ, JOSE AVALOS, SCHREIBER FOODS INTERNATIONAL, INC., ALL SEASONS FOODS, INC. d/b/a EVILY ATLANTIC WAREHOUSE, LTD., EVILY DISTRIBUTION, and HARLEYSVILLE INSURANCE COMPANY, Defendants-Respondents.
DOCKET NO. A-0761-18T4
|
Submitted December 2, 2019
|
Decided December 16, 2019
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0232-16.
Attorneys and Law Firms
Pezzano Mickey & Bornstein LLP, attorneys for appellants (Wendy S. Bornstein, on the briefs).
Law Office of Gerald F. Strachan, attorneys for respondent Diversified Rack & Shelving, Inc. (Matthew Raymond Panas, on the brief).
Barry, McTiernan & Wedinger, PC, attorneys for respondents Schreiber Foods International, Inc. and All Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse, Ltd. a/k/a Evily Distribution (Laurel A. Wedinger and Richard W. Wedinger, on the brief).
Before Judges Fasciale and Moynihan.
Opinion

PER CURIAM

*1 In this personal injury case, plaintiffs appeal two April 2, 2018 orders, barring plaintiffs’ liability expert report and granting summary judgment to defendants Diversified Rack & Shelving, Inc. (Diversified) and Schreiber Foods International, Inc.; All Seasons Foods, Inc. d/b/a Evily Atlantic Warehouse, Ltd. a/k/a Evily Distribution (collectively Schreiber). Kathleen Chetwynd (plaintiff) died during the unloading of heavy metal shelving from her truck. We affirm.

Schreiber owned the premises where the accident occurred. Schreiber hired Diversified to dismantle, transport and re-install storage racks. Diversified then hired plaintiff’s company, Kat’z Transportation LLC, to transport the shelving, and hired J.C. Rack & Shelving, Inc. (J.C. Rack), which was owned by Juan Carlos Rodriguez (Rodriguez), to load and unload plaintiff’s truck. The accident occurred when Jose Avalos (Avalos)—a J.C. Rack employee—unloaded plaintiff’s truck using a forklift. Plaintiffs argued that Avalos operated the forklift without taking the necessary steps to ensure that no one was within the truck’s vicinity.1

I.
We begin by addressing the order barring plaintiffs’ expert report as a net opinion. The admission or exclusion of expert testimony is within the trial judge’s sound discretion. State v. Berry, 140 N.J. 280, 293 (1995). “Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion.” Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 247 (App. Div. 2014) (internal quotation marks omitted) (quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)). An abuse of discretion occurs when a decision is “made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.” Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation omitted).

The net opinion rule “forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” State v. Townsend, 186 N.J. 473, 494 (2006). It mandates that an expert provide “the why and wherefore that supports the opinion, rather than a mere conclusion.” Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (internal quotation marks and citations omitted). “The failure of an expert to give weight to a factor thought important by an adverse party does not reduce his testimony to an inadmissible net opinion if he otherwise offers sufficient reasons which logically support his opinion.” Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002). “[A]n expert witness is always subject to searching cross-examination as to the basis of his opinion[.]” Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div. 1990) (citation omitted).

The Occupational Safety and Health Administration Agency (OSHA) classifies all worksite employers into one or more categories. Plaintiffs’ expert, Brooks Rugemer (Rugemer), classified Diversified as: (1) a creating employer (one that “caused a hazardous condition that violates an OSHA standard”); (2) an exposing employer (one “whose own employees are exposed to a hazard”); (3) a correcting employer (one “who is engaged in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard”); and (4) a controlling employer (one “who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them”). He classified Schreiber as an exposing employer, a correcting employer, and a controlling employer. Diversified and Schreiber contend that Rugemer provided mere conclusions, rather than “the why and wherefore that supports [his] opinion[.]” Saddle River, 216 N.J. at 144 (internal quotation marks and citations omitted).

*2 N.J.R.E. 702 governs the admissibility of expert testimony: “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” N.J.R.E. 702 imposes three basic requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.
[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (internal quotation marks and citations omitted).]
N.J.R.E. 703 governs the underlying bases of expert opinion testimony:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Rugemer did not provide “sufficient reasons which logically support his opinion” as to the cause of plaintiff’s death nor who bore responsibility for the accident. Rosenberg, 352 N.J. Super. at 402. As the judge noted, the report does not contain an explanation as to how a possible classification alone creates liability. There must be evidentiary support for an expert’s conclusion, and the expert must base his opinion on facts or data. See Bahrle v. Exxon Corp., 279 N.J. Super. 5, 30 (App. Div. 1995). Rugemer’s report did not provide sufficient detail, and it did not sufficiently indicate that his opinion and conclusions were based on factual evidence. Thus, the motion judge properly barred the report from evidence.

II.
Plaintiffs contend the judge improperly determined that Diversified did not or could not have had knowledge that it hired an incompetent subcontractor. In his written decision, the motion judge stated that:
No evidence has been provided to this court’s satisfaction that [d]efendant Diversified had any indication that anyone working for J[.]C[.] Rack, including Mr. Jose Avalos[,] who operated the forklift on the date in question, was anything but competent to do the job requested. Even if this court were to find that J[.]C[.] Rack was incompetent by means of any liability associated with the actions of Mr. Avalos, and that such incompetence is what led to the death of plaintiff, plaintiff cannot prove that [d]efendant Diversified knew or should have know[n] of said incompetence.

Principals are not liable for the actions of independent contractors, absent one of three exceptions: (1) the principal retains control of the manner and means of the performance of the contracted work; (2) the principal retains an “incompetent contractor”; and (3) the activity is a nuisance per se. Majestic Realty Assocs., Inc. v. Toti Contracting Co., 30 N.J. 425, 431 (1959). In this case, the issue is whether Diversified hired an “incompetent contractor.”
[T]o prevail against the principal for hiring an incompetent contractor, a plaintiff must show that the contractor was, in fact, incompetent or unskilled to perform the job for which he/she was hired, that the harm that resulted arose out of that incompetence, and that the principal knew or should have known of the incompetence.
*3 [Puckrein v. ATI Transp., Inc., 186 N.J. 563, 576 (2006).]

In Puckrein, plaintiff-decedents were killed when their automobile was struck by an unregistered and uninsured tractor-trailer with defective brakes. Id. at 567. The tractor-trailer was owned by ATI Transport, Inc. (ATI) and was transporting material for Browning-Ferries Industries of New York, Inc. (BFI) at the time of the accident. Ibid. The judge granted summary judgment to BFI, and we affirmed. Ibid. However, our Supreme Court reversed, explaining that, “when a person engages an independent contractor to do work that is not itself a nuisance, he is not vicariously liable for the negligent acts of the contractor in the performance of the contract.” Id. at 574. “Generally … the principal is not vicariously liable for the torts of the independent contractor if the principal did not direct or participate in them.” Ibid. (alteration in original) (quoting Baldasarre v. Butler, 132 N.J. 278, 291 (1993)).

In Mavrikidis v. Petullo, the owner of a company hired an independent contractor to repave the asphalt at his premises. 153 N.J. 117, 125 (1998). The contractor’s dump truck collided with the plaintiff’s car, causing her injuries. Id. at 124-25. The plaintiff sued the contractor and the owner. Id. at 129. A jury found that the owner was “negligent in engaging a careless, reckless or incompetent contractor,” and that the negligence was the proximate cause of the plaintiff’s injuries. Id. at 130. But we reversed, concluding there was insufficient evidence to support a finding that the owner was negligent in hiring the contractor. Id. at 131. The Court affirmed, explaining that there was no evidence that the contractor was incompetent to perform the work it was hired to do. Id. at 137. The Court held that even if the contractor was incompetent, the owner had no knowledge of that. Id. at 138. As the Court opined, the poor condition of the contractor’s trucks did not evince its incompetency to replace asphalt—the job it was hired to perform. Id. at 138-42.

Thus, in Mavrikidis, the plaintiff’s injury occurred not as part of the paving job, but rather during the hauling of equipment to the job site. Id. at 125. This is a vastly different case than that presented in Puckrein, in which the plaintiffs were injured while ATI transported material for BFI—the job that ATI was hired to do. 186 N.J. at 567. In Puckrein, transportation was not peripheral to the contract—like it was in Mavrikidis—but rather it was the essence of contract. Id. at 578. The Court explained that, “the hauler’s basic competency included, at a minimum, a valid driver’s license, a valid registration certificate, and a valid liability insurance identification card,” and that without those, the hauler “ha[d] no right to be on the road at all.” Ibid. “[A]n employer may be charged with negligence in hiring an independent contractor where it is demonstrated that he should have known, or might by the exercise of reasonable care have ascertained, that the contractor was not competent.” Id. at 579 (citation omitted). “The extent of the inquiry obviously depends on the status of the principal and the nature of the task that the contract covers.” Ibid.

*4 David Longo (David), Diversified’s warehouse manager, oversaw the Schreiber job performed by J.C. Rack, and was responsible for ensuring that the subcontractors were doing the correct job. When asked if he ever made a determination as to whether the person operating the forklift at the time of the incident was licensed, David testified that it was “up to [Rodriguez] to make sure his crew[ ] … members have licenses.” He said that Diversified ensured that Rodriguez was licensed, but that it was Rodriguez’s responsibility to make sure that an employee operating a forklift was licensed.

David knew that not all of J.C. Rack’s crew members were licensed. But he testified that whoever operates a forklift has to be licensed and that the subcontractor has the ability to decide to which crew members to assign responsibilities. David said that he asked Rodriguez if the forklift driver was licensed approximately one month after the accident, and Rodriguez replied that he was. Though aware that forklift operators must be licensed or certified, Stephen Longo (Stephen), Diversified’s logistics coordinator/in-house project manager, stated that he was “not sure if [J.C. Rack] had [its] forklift license or not, but we require [it] to have a forklift license,” and that Diversified does not “track” a subcontractor’s forklift license. Additionally, Diversified contends that it “did not load or unload the truck,” “did not dismantle and/or bundle the racking systems,” and “did not reinstall the racking systems.” Diversified’s project manager visited the job site for approximately thirty minutes each day but was not on-site when the accident occurred.

At the time of the accident, Rodriguez believed Avalos was certified to operate a forklift, but thereafter learned that Avalos’s prior certification had expired. Diversified also states that Avalos only worked “on and off” for J.C. Rack for a few months and operated a forklift for J.C. Rack “a few times prior to the accident.” Diversified did not know which J.C. Rack crew members would be working at the time of the accident. Diversified also cites to Mavrikidis, in which our Court stated that, “[i]mposing a duty on a contractee to check the driving record and credentials of the contractor’s employees or to inspect the contractor’s equipment would impose a very onerous burden on the contractee.” 153 N.J. at 142.

Here, Diversified hired J.C. Rack to unload trucks, which was merely “part of the overall process” because J.C. Rack was hired to “complete multiple tasks,” such as disassembling the racking system, bundling and packing it, loading it onto a truck, unloading it at a second location, unbundling and unpacking it at this second location, and then reassembling it. As such, it claims that the use of the forklift “was only part of the tasks required by the contract” between Diversified and J.C. Rack. The issue however still hinges on whether J.C. Rack’s employee was properly certified to operate a forklift or if he was an incompetent contractor. As this was crucial to the contract between Diversified and J.C. Rack—and not merely peripheral—Diversified could potentially be liable for hiring an incompetent independent contractor.

But to prevail against Diversified, plaintiffs must show that: (1) J.C. Rack was incompetent or unskilled to perform the job for which it was hired; (2) J.C. Rack’s incompetence caused plaintiff’s death; and (3) Diversified knew or should have known of the incompetence. Puckrein, 186 N.J. at 576. Diversified inquired into whether Rodriguez—as J.C. Rack’s owner—was licensed. The fact that J.C. Rack employed individuals who were not certified forklift drivers does not necessarily mean that Diversified retained an incompetent contractor because J.C. Rack performed other tasks on the job, like disassembling racking systems, bundling and packing them, and then unbundling and reassembling them. Diversified essentially concedes it had a duty to inquire about certifications, and it did so by ensuring that Rodriguez himself was certified to operate forklifts. However, in accordance with Mavrikidis, Diversified did not have a duty to check every J.C. Rack employees’ credentials. 153 N.J. at 142.

III.
*5 Plaintiffs argue that Diversified is liable under general negligence principles for J.C. Rack’s and Avalos’s conduct. “[O]rdinarily[,] negligence must be proved and will never be presumed, … indeed there is a presumption against it, and … the burden of proving negligence is on the plaintiff.” Buckelew v. Grossbard, 87 N.J. 512, 525 (1981). “[A] negligence cause of action requires the establishment of four elements: (1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation, and (4) damages.” Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013). Whether one owes a duty is a question of law to be decided by the trial judge. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 572 (1996). “[N]o bright line rule … determines when one owes a legal duty to prevent a risk of harm to another.” Wlasiuk v. McElwee, 334 N.J. Super. 661, 666 (App. Div. 2000).

The imposition of a duty depends on several factors, including: (1) “the relationship of the parties”; (2) “the nature of the attendant risk”; (3) “the opportunity and ability to exercise care”; and (4) “the public interest in the proposed solution.” Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). “Ultimately, … the question of whether a duty exists is one of ‘fairness’ and ‘public policy.’” Wlasiuk, 334 N.J. Super. at 666-67 (citations omitted). Our Supreme Court “[c]ombin[es] and weigh[s] all relevant factors” such as,
the foreseeability of the nature and severity of the risk of injury based on the defendant’s actual knowledge of dangerous conditions, the relationship of the parties and the connection between the defendant’s responsibility for work progress and safety concerns, and the defendant’s ability to take corrective measures to rectify the dangerous conditions[.]
[Alloway v. Bradlees, Inc., 157 N.J. 221, 231-32 (1999).]
“[G]eneral and subcontractors have a joint, non-delegable duty to maintain a safe workplace that includes ensur[ing] prospective and continuing compliance with the legislatively imposed non-delegable obligation to all employees on the job site, without regard to contractual or employer obligations.” Id. at 237 (second alteration in original) (internal quotation marks and citation omitted).
[T]he State’s statutory imposition of a duty on the general contractor expressed a clear legislative intention “to ensure the protection of all of the workers on a construction project, irrespective of the identity and status of their various and several employers, by requiring, either by agreement or by operation of law, the designation of a single repository of the responsibility for the safety of them all.”
[Id. at 238 (quoting Bortz v. Rammel, 151 N.J. Super. 312, 321 (App. Div. 1977)).]

In Carvalho, a town retained an engineer to prepare plans for the construction of a sewer service. 143 N.J. at 569. A general contractor was hired for the project, who hired a subcontractor. Ibid. Later, the engineer hired an inspector as the site representative. Id. at 570. A trench collapsed at the site, killing an employee of the subcontractor. Id. at 571-72. The employee settled with the general and subcontractors, id. at 572, but the Court analyzed the connected foreseeability of the harm and considerations of fairness and public policy to determine whether to hold the engineer liable. Id. at 573.

The Court recognized that, “[w]hereas the magnitude and likelihood of potential harm are objectively determinable, the propriety of imposing a duty of care is not.” Ibid. (quoting Weinberg v. Dinger, 106 N.J. 469, 485 (1987)).
Although in many cases a duty of care can arise simply from the determination of the foreseeability of harm, usually more is needed to find such a duty, that more being the value judgment, based on an analysis of public policy, that the actor owed the injured party a duty of reasonable care.
*6 [Ibid. (internal quotation marks and citations omitted).]

Here, we consider “fairness and policy,” by weighing foreseeability based on: (1) Diversified’s actual knowledge of dangerous conditions; (2) the relationship between Diversified and plaintiff; and (3) the connection between Diversified’s responsibility for work progress and safety concerns, including its ability to take corrective measures to rectify dangerous conditions. Alloway, 157 N.J. at 231-32.

It is reasonably foreseeable that a subcontractor could be injured because of dangerous conditions on one of Diversified’s jobs. Plaintiff was one of Diversified’s subcontractors. Diversified however did not have direct contact with plaintiff on-site, rather plaintiff worked directly with J.C. Rack—another Diversified subcontractor. The relationship between the parties is still contractual, though a little more attenuated, as there was no direct contact between the two on-site.

In Carvalho, the issue was the relationship between a subcontractor’s employee and an engineer hired by the town in which the construction was taking place. 143 N.J. at 569, 571-72. But this case is distinguishable, even though plaintiff is akin to the subcontractor’s employee, because Diversified is not akin to the engineer, but instead, the general contractor. Nevertheless, Diversified—who did not supervise nor was it required to supervise the work of J.C. Rack—took corrective measures to ensure that forklift drivers be certified to operate forklifts.

IV.
Plaintiffs argue that OSHA regulations should be considered in determining Diversified’s and Schreiber’s liability. The purpose of the Occupational Safety and Health Act (the Act), 29 U.S.C. §§ 651 to 678, is “to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources[.]” 29 U.S.C. § 651(b). The Act requires “employers to comply with specific OSHA standards and also imposes a general duty on employers to provide a workplace ‘free from recognized hazards that are causing or are likely to cause death or serious physical harm.’” Gonzalez v. Ideal Tile Importing Co., Inc., 371 N.J. Super. 349, 359-60 (App. Div. 2004) (emphasis omitted) (quoting 29 U.S.C. § 654(a)).

But, “the finding of an OSHA violation does not ipso facto constitute a basis for assigning negligence as a matter of law; that is, it does not constitute negligence per se.” Kane v. Hartz Mountain Indus., Inc., 278 N.J. Super. 129, 144 (App. Div. 1994). Thus, while the existence of an OSHA violation may be evidence that a company did not follow the OSHA regulations, it is not evidence that a company was liable as either a property owner or a general contractor. As a result, OSHA regulations may be considered in determining Diversified’s and Schreiber’s liability, but such regulations are not determinative.

V.
Finally, plaintiffs contend that there exists a genuine issue of material fact to preclude summary judgment. When reviewing an order granting summary judgment, we apply “the same standard governing the trial court[.]” Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div. 2013). A court should grant summary judgment when the record reveals “no genuine issue as to any material fact” and “the moving party is entitled to a judgment or order as a matter of law.” R. 4:46-2(c). We owe no special deference to the motion judge’s conclusions on issues of law. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). We consider the facts in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). “An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact.” R. 4:46-2(c).

*7 Here, plaintiffs argue that there is a fact issue about whether Diversified was aware of the training, supervision, and certification of the forklift operator unloading plaintiff’s truck. But we see no genuine issues of material fact. As to Diversified, summary judgment was appropriate for reasons previously explained. And as to Schreiber, summary judgment was appropriate because Schreiber had no control over the methods or means of unloading the truck, and did not have knowledge that Diversified hired J.C. Rack to aid in dismantling and reassembling the shelving units.

Affirmed.

All Citations
Not Reported in Atl. Rptr., 2019 WL 6837765

Footnotes

1
Plaintiffs obtained a default judgment against J.C. Rack and Rodriguez, and Avalos was dismissed from the case.

2019 WL 6689912

United States District Court, E.D. Virginia.
ANDY SIRAK, et al. Plaintiffs,
v.
MYRON TERRELL AIKEN, et al., Defendants.
Civil Action No. 3:19cv179
|
Filed 12/06/2019

MEMORANDUM OPINION
M. Hannah Lauck United States District Judge
*1 This matter comes before the Court on Defendants Myron Terrell Aiken and Western Express, Inc.’s (collectively, the “Defendants”) Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5)1 and 12(b)(6).2 (ECF No. 6.) Plaintiffs Andy and Galina Sirak (collectively, the “Siraks”) responded, (ECF No. 11), and the Defendants replied, (ECF No. 12). The matter is ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1332(a).3 For the reasons that follow, the Court will grant the Defendants’ Rule 12(b)(6) Motion to Dismiss.

I. Factual and Procedural Background
This personal injury action arises out of an incident during which a truck struck a pedestrian at a Pilot Travel Center in New Kent, Virginia on December 8, 2016. The Siraks previously filed a substantially similar complaint in the United States Court for the Northern District of Illinois (the “Illinois Complaint”). Because the claims in the previous lawsuit are essential to deciding the Motion to Dismiss, the Court turns first to the Illinois Complaint.

A. Illinois Complaint
On November 27, 2018, the Siraks, represented by Attorney Ralph Briscoe, filed a two-count complaint in the Northern District of Illinois against the Defendants.4 In the Illinois Complaint, the Siraks, through counsel, alleged that Aiken, a driver for Western Express, struck Andy Sirak with his semi-truck while driving through the Pilot Rest Stop in New Kent, Virginia. (Ill. Compl. ¶¶ 10, 12, ECF No. 7-1.) As a result of the accident, the Plaintiffs stated that Andy Sirak suffered “serious injuries” including “contusions to his face and torso, a fractured rib, and a fractured foot.” (Id. ¶ 14.) The Illinois Complaint identified two claims for relief. First, the Siraks sought to recover for injuries caused by Aiken’s negligence in operating his semi-truck. Second, Galina Sirak sought to recover for “loss of consortium,” because she “lost and continues to lose the love, moral, beneficial and economic support … of her husband.” (Id. ¶ 24.) The Illinois Complaint demanded damages in excess of $150,000. (Id. 5.)

*2 Under the section entitled “PARTIES,” the Siraks averred that they resided in Illinois, that Western Express was a citizen of Tennessee, and that Aiken was a citizen of Georgia. (Id. ¶ 5.) Under the section entitled “VENUE AND JURISDICTION,” They further asserted that venue was “proper in this District, because the Plaintiffs are permanent residents of Wheeling, Illinois … [and] Andy Sirak’s employer on the date of the incident was … located in Broadview, Illinois.” (Id. ¶ 6.)

The Siraks failed to prosecute the Illinois Complaint. Approximately two months later, on January 22, 2019, the Defendants moved to dismiss the Illinois lawsuit “for lack of personal jurisdiction and insufficient service of process.” (Mem. Supp. Mot. Dismiss. 3, ECF No. 7.) Counsel for the Siraks failed to respond to the Defendants’ motion, and the Illinois Court “dismissed the case, without prejudice, after [Briscoe] failed to appear at a hearing on March 6, 2019.” (Id. 4; see also Illinois Ct. Order, ECF No. 7-3.)

B. Virginia Complaint
On March 14, 2019, eight days after the dismissal of the Illinois Complaint, the Siraks filed their Complaint (also, the “Virginia Complaint”) in this Court. The Virginia Complaint is similar to the Illinois Complaint, with four important differences. First, the Virginia Complaint includes an additional cause of action for assault and battery. (Compl. ¶ 24.) The Siraks now allege that “Aiken[ ] exited his vehicle and … [struck Andy Sirak] about the head and body with his fists without legal justification.” (Id. ¶ 15.) Second, the Virginia Complaint seeks damages in excess of $200,000—$50,000 more than the Illinois Complaint. (Id. 5.) Third, the Virginia Complaint was purportedly filed “pro se.” (Id. 1.) However, in the Local Rule 83.1 (M) Certification attached to the Virginia Complaint, the Siraks state that Briscoe—their attorney in Illinois who is not licensed to practice law in the Commonwealth of Virginia—assisted them in the preparation of their lawsuit. (Compl. Ex-1.) Fourth, and finally, the Virginia Complaint asserts that “[v]enue is proper in this District, because the underlining incident which gives rise to this cause of action occurred within the jurisdictional limits of this court being New Kent County, Virginia.” (Compl. ¶ 6.)

C. Procedural Background
The Siraks’ Virginia Complaint brings three counts against the Defendants, alleging: (1) negligence; (2) battery; and, (3) loss of consortium. On July 8, 2019, the Defendants filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6).5 (ECF No. 6) Consistent with the requirements of Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Defendants included in their Motion to Dismiss a notice that the “Siraks are entitled to file a response opposing this Motion and any such response must be filed within twenty-one (21) days of the date on which this Motion is filed” and warned that “[t]he Court could dismiss this action on the basis of Defendants’ papers if the Siraks do not file a response.” (Mot. Dismiss. 2, ECF No. 6.) On August 2, 2019, the Siraks, still purportedly proceeding without counsel, filed a response, four days beyond the due date.6 (ECF No. 11.) The Defendants replied. (ECF No. 12.)

II. Legal Standard
*3 “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). To survive Rule 12(b)(6) scrutiny, a complaint must contain sufficient factual information to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states a claim for relief must contain … a short and plain statement of the claim showing that the pleader is entitled to relief.”) Mere labels and conclusions declaring that the plaintiff is entitled to relief are not enough. Twombly, 550 U.S. at 555. Thus, “naked assertions of wrongdoing necessitate some factual enhancement within the complaint to cross the line between possibility and plausibility of entitlement to relief.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted).

A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly, 550 U.S. at 556; see also Ashcroft v. Iqbal, 556 U.S. 662 (2009). This analysis is context-specific and requires “the reviewing court to draw on its judicial experience and common sense.” Francis, 588 F.3d at 193. The Court must assume all well-pleaded factual allegations to be true and determine whether, viewed in the light most favorable to the plaintiff, they “plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 676–79; see also Kensington Volunteer Fire Dep’t, Inc. v. Montgomery Cty, Md., 684 F.3d 462, 467 (4th Cir. 2012) (finding that the court in deciding a Rule 12(b)(6) motion to dismiss “ ‘must accept as true all of the factual allegations contained in the complaint’ ” and “ ‘draw all reasonable inferences in favor of the plaintiff’ ”) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011)). This principle applies only to factual allegations, however, and “a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Iqbal, 556 U.S. at 679.

III. Analysis
Because the Siraks bring claims not cognizable under Virginia law or which fall outside the statute of limitations, the Court must grant the Motion to Dismiss.

A. The Court Will Dismiss the Loss of Consortium Claim (Count III) Because Virginia Does Not Recognize Loss of Consortium as a Viable Cause of Action
Virginia does not recognize loss of consortium as a viable cause of action. See Torabipour v. Cosi, Inc., 2012 WL 2153168, at *7 (E.D. Va. June 12, 2012) (“loss of consortium is not recoverable in the Commonwealth of Virginia) (citing Carey v. Foster, 345 F.2d 772 (4th Cir. 1965)). The Siraks do not contend otherwise, “nor do they attempt to invoke the law of another jurisdiction.” Williams v. AES Corp., 28 F. Supp. 3d 553, 574 (E.D. Va. 2014). Accordingly, the Court will dismiss Count III, the Siraks’ loss of consortium claim.

B. The Court Will Dismiss the Negligence Claim (Count I) and the Battery Claim (Count II) Because The Statute of Limitations Bars Them
The relevant two-year statute of limitations bars the Siraks’ other two claims. Specifically, because the Siraks did not file the Illinois Complaint in good faith, the Illinois Action did not toll Virginia’s two-year statute of limitations for personal injury actions.

1. Legal Standard: Statute of Limitations
Virginia law requires that “every action for personal injuries … shall be brought within two years after the cause of action accrues.” Va. Code § 8.01-243(A). The two-year statute of limitations begins to run from the “time [the] plaintiff [is] hurt.” Locke v. Johns-Manville Corp., 275 S.E.2d 900, 905 (Va. 1981). Virginia law deems a plaintiff hurt “whenever any injury, however slight, is caused by the negligent act, even though additional or more severe injury or damage may be subsequently sustained.” St. George v. Pariser, 484 S.E.2d 888, 890 (Va. 1997).

*4 The statute of limitations may be tolled, however, where a litigant commences an action “within the prescribed limitation period” and that action “abates or is dismissed without determining the merits.” Va. Code § 8.01-229(E)(1). In those cases, the time “such action is pending shall not be computed as part of the period within which such action may be brought.” Id. The “basic purpose” of the tolling rule is to “sav[e] the right of action for plaintiffs who, without fault, have been unable to obtain an adjudication on the merits.” Atkins v. Schmutz Mfg. Co., 435 F.2d 527, 530 (4th Cir. 1970). Where a plaintiff has been “diligent and without fault in his [or her] efforts to prosecute his [or her] claim,” the prior lawsuit should toll the statute of limitations clock while the action pends. Id. (emphases added).

In accordance with this “good faith” rule, a court should not toll the statute of limitations when a litigant brought claims “in a court having no jurisdiction, wil[l]fully or with great negligence and not in good faith.” C.T Drechsler, Annotation, Statute Permitting New Action After Failure of Original Action Commenced Within Period of Limitation, As Applicable in Cases Where Original Action Failed for Lack of Jurisdiction, 6 A.L.R.3d 1043 (1966 and 1989 Supp.) (collecting cases). While the Supreme Court of Virginia has never addressed the issue, Eastern District of Virginia courts have found that plaintiffs must have acted in “good faith” in order to justify tolling the applicable statute of limitations. Rivers v. Black & White Cars, Inc., 1990 WL 303324, at *9 (E.D. Va. June 7, 1990) (tolling the statute of limitations for good faith claim but recognizing that a “plaintiff can eviscerate statutes of limitations by purposely filing in any wrong forum and having his or her action saved by the tolling statute.”).

Federal courts outside the Eastern District of Virginia apply the same rule. Generally, “some measure of good faith expectation of proceeding in the court in which the complaint is filed is essential to tolling the statutes of limitation.” Biby v. Kan. City Life Ins. Co., 629 F.2d 1289, 1294 (8th Cir. 1980). Therefore, filing a complaint that serves “merely [as] a procedural ploy will not suffice” to toll a statute of limitations. Id. Plaintiffs are not permitted to “purposefully … file in the wrong court, thereby holding open the statute of limitations indefinitely.” Pedzewick v. Foe, 963 F. Supp. 50, 51 (D. Mass. 1997) (refusing to transfer case where plaintiffs had filed “on the very last day of the applicable statute of limitations … in a court that—by no stretch of the imagination—could even arguably exercise personal jurisdiction over the[ ] Defendants” to avoid the statute of limitations); see also Daros v. Tokoyo, 2005 WL 1229734, at *3 (E.D.N.Y. May 23, 2005) (“It simply is not in the interest of justice for a court to indulge a plaintiff who filed on the eve of the expiration of the limitations period, in a court that plainly lacks personal jurisdiction … and in a district where venue does not lie.”)

2. The Court Must Dismiss the Negligence and Battery Claims Because the Siraks Did Not File the Illinois Lawsuit in Good Faith
The Court cannot find that counsel’s filing of the Illinois Complaint meets the good faith standard for tolling. Because finding that the Illinois Complaint tolls the Virginia statute of limitations would defeat the purpose of § 8.01-229(E)(1), the Court must dismiss the Complaint.

Andy Sirak claims injury from when he was struck by Aiken’s tractor trailer on December 8, 2016. The Illinois Complaint—filed eleven days before the Virginia statute of limitations expired—was facially defective. Most notably, the Illinois Complaint omitted any claim of personal jurisdiction over the Defendants. No personal jurisdiction over Defendants existed in Illinois. While noting that Western Express and Aiken were citizens of Tennessee and Georgia, the Siraks stated that the Northern District of Illinois afforded proper venue “because the Plaintiffs are permanent residents of Wheeling, Illinois … [and] Andy Sirak’s employer on the date of the incident was … located in Broadview, Illinois.” (Ill. Compl. ¶ 6.) Given the patent lack of personal jurisdiction over Western Express or Aiken, the Defendants moved to dismiss the case. Thereafter, Plaintiffs’ Counsel functionally abandoned the Illinois Lawsuit, failing to file any response or appear at a key hearing. (Mem. Supp. Mot. Dismiss 4.)

*5 Statutes of limitations protect plaintiffs who have acted diligently and without fault in pressing their claims. See Atkins, 435 F.2d at 530. They do not protect those who “purposefully … file in the wrong court, thereby holding open the statute of limitations indefinitely.” Pedzewick, 963 F. Supp. at 51. In Pedzewick, the Massachusetts district court confronted a virtually identical scenario to the case at bar: plaintiffs had filed “on the very last day of the applicable statute of limitations … in a court that—by no stretch of the imagination—could even arguably exercise personal jurisdiction over the[ ] Defendants.” Id. at 50. Plaintiffs then sought to transfer the case to the proper venue pursuant to § 1406(a). Id. The Pedzewick court denied the request, finding that the plaintiff lacked “a good faith belief that the Defendants were subject to personal jurisdiction in [Massachusetts District Court].” Id. at 52. Noting that “[s]tatutes of limitations serve a very useful purpose,” the Pedzewick court determined that the only way to “safeguard the finality ensured by the [proper forum’s] statute of limitations” was to dismiss the complaint. Id. at 51.

Here, instead of moving to transfer their case, the Siraks failed to prosecute the Illinois Complaint and refiled in the Eastern District of Virginia, eight days after dismissal in Illinois.7 As in Pedzewick, the Illinois Complaint, filed near in time to the statute of limitations cut-off, was facially defective because the Illinois Court “by no stretch of the imagination” could exercise personal jurisdiction over the defendants. Pedzewick, 963 F. Supp. at 51. Given that lack of personal jurisdiction, counsel for the Siraks could not have had a “good faith expectation of proceeding” in Illinois. Biby, 629 F.2d at 1294.

As an explanation for their procedural fencing, the Siraks proffer that they filed in Illinois because it “was the only location Plaintiffs could find an attorney willing to prosecute the Complaint.” (Resp. Mot. Dismiss. 1, ECF No. 11.) While it is regrettable that the Siraks could not find a different attorney, the Court cannot allow the Siraks to utilize what amounts to a “procedural ploy” to circumvent the two-year statute of limitations for personal injury actions. Biby, 629 F.2d at 1294. Allowing this case to proceed would reward a party for “purposefully filing in [a] wrong forum and having his or her action saved by the tolling statute.” Rivers, 1990 WL 303324, at *9. The Court cannot endorse such a result. Accordingly, the Siraks remaining claims for negligence and battery must be dismissed.

IV. Conclusion
For the foregoing reasons, the Court will grant the Defendants’ Motion to Dismiss and dismiss the Siraks’ Complaint.

Richmond, Virginia

All Citations
Slip Copy, 2019 WL 6689912

Footnotes

1
Rule 12(b)(5) allows dismissal for “insufficient service of process.” Fed. R. Civ. P. 12(b)(5).

2
Rule 12(b)(6) allows dismissal for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).

3
“The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between … citizens of different States.” 28 U.S.C. § 1332(a). Aiken is a citizen of Georgia; Western Express a citizen of Tennessee; and, the Siraks are citizens of Illinois. (Compl. ¶ 5, ECF No. 1.) The amount in controversy exceeds $75,000.

4
Relevant for the purposes of this case, the Virginia statute of limitations for personal injury actions expires two years after the injury accrues. Therefore, the Siraks filed their Illinois Complaint eleven days before the statute of limitations expired.

5
Because the Court will dismiss the Siraks’ Complaint for failure to state a claim, the Court assumes, without deciding, that they properly served Western Express and Aiken.

6
Despite the Siraks’ untimely filing, in the interest of justice, the Court will consider the arguments contained in their Response to the Motion to Dismiss.

7
The federal cases cited here primarily discuss “good faith” in the context of transfer pursuant to 28 U.S.C. §§ 1404(a) or 1406(a); nonetheless, their reasoning informs the outcome of the case at bar. The Courts in Biby, Pedzewick, and Daros refused to transfer to other districts because they found that doing so would allow plaintiffs to evade the applicable state’s statute of limitations. As the United States Court of Appeals for the Eighth Circuit in Biby observed: “[w]e are not reviewing a transfer order. We are addressing a statutes of limitations issue that was never raised in this case in [the previous forum] because appellees were never afforded the opportunity to raise it.” 629 F.2d at 1294. Allowing the Siraks, with or without counsel, to bring their Complaint in Virginia would mirror the harm that the Biby, Pedzewick, and Daros courts sought to avoid.