United States District Court, E.D. North Carolina, Eastern Division
W. FLANAGAN United States District Judge.
matter is before the court on defendant's motion for
summary judgment, (DE 13), and plaintiff's motion to
remand this action to the General Court of Justice, District
Court division, for Pitt County North Carolina. (DE 20-1).
The issues presented are ripe for ruling. For the reasons
that follow, defendant's motion is granted, and
plaintiff's motion is denied.
proceeding pro se, filed this action in state court November
19, 2016, seeking damages under state and federal law arising
from a forklift injury in 2009 that allegedly aggravated
plaintiff's preexisting back problems. Plaintiff
allegedly sustained this injury in the course of her
employment with defendant. Defendant removed the action to
this court December 15, 2016, based upon federal question and
initiated prior action asserting similar causes of action in
the General Court of Justice, Superior Court Division, for
Wake County on March 19, 2014. Bell v. Weyerhaeuser NR,
Co., No. 14-CVS-3649 ( N.C. Super. Ct. Mar. 19, 2014)
(“Bell I”). Before that case was
resolved, on November 18, 2014, plaintiff filed another,
similar action in the same court. Bell v. Weyerhaeuser
NR, Co., No. 14-CVS-15502 ( N.C. Super. Ct. Nov. 18,
2014) (“Bell II”).
Bell I, defendant moved to dismiss pursuant to Rules
12(b)(4) and (b)(5) of the North Carolina Rules of Civil
Procedure for insufficiency of process and insufficiency of
service of process. Defendant also argued that
plaintiff's claims were barred by the three year statute
of limitations. The record taken into this proceeding reveals
that Bell I was dismissed with prejudice. See
Bell I, No. 14-CVS-3649 ( N.C. Super. Ct. Dec. 1, 2014).
Bell II was removed to this court January 13, 2015.
That case was disposed of on summary judgment granted April
29, 2015, in defendant's favor as to all claims on the
ground that plaintiff's claims were time-barred under the
applicable statute of limitations. See Bell II, No.
5:14-CV-18-FL, 2015 WL 1944917, at *1, *4 (E.D. N.C. Apr. 29,
2015); appeal dismissed, 625 Fed.Appx. 203 (mem)
(4th Cir. 2015).
case, standing as Bell III, defendant filed the
instant motion January 25, 2017, seeking summary judgment on
grounds that plaintiff's claims are barred by the
doctrine of res judicata, the exclusivity provision of the
North Carolina Worker's Compensation Act, N.C. Gen. Stat.
§ 97-10.1 (“Worker's Compensation Act”),
and the applicable statute of limitations. N.C. Gen. Stat.
§ 1-52. Additionally, defendant seeks summary judgment
to the extent plaintiff's claims arise under the Employee
Retirement and Income Security Act of 1974, 29 U.S.C. §
1001, et. seq, (“ERISA”), on the ground
that defendant is not a proper party to action of that
support of its motion, defendant relies upon the state court
files, this court's prior order granting summary judgment
in Bell II, and the affidavit of James R. Jacobsen,
who is an employee of defendant with knowledge of
plaintiff's prior worker's compensation claims and
defendant's employee benefits plan.
March 28, 2017, defendant gave notice that it received a
facsimile transmittal (“fax) in which plaintiff
attempted to respond to defendant's motion for summary
judgment. (DE 19). Although plaintiff failed to file her
response with the court as required by the rules, defendant
submitted a copy of the fax to this court. Plaintiff's
transmittal also sounds as a motion to remand this action to
the General Court of Justice, District Court Division, for
Pitt County North Carolina. Defendant's notice alerting
the court to plaintiff's motion includes response to the
OF UNDISPUTED FACTS
is a resident of Plymouth, North Carolina. Defendant is a
Washington corporation with its principal place of business
in Washington. Plaintiff formerly was defendant's
employee, and plaintiff's separation occurred no later
than August 29, 2011. Order dismissing Bell I for
insufficient process and insufficient service of process,
reads “[p]laintiff's claims for relief and this
action are hereby dismissed with prejudice.” No.
14-CVS-3649 ( N.C. Super. Ct. Dec. 1, 2014). This court's
order granting summary judgment in Bell II, dated
April 29, 2015, reads “defendant's motion for
summary judgment . . . is ALLOWED.” Bell II,
No. 5:14-CV-18-FL, 2015 WL 1944917, at *4 . Summary judgment
in Bell II embraces all claims presented in that
action. (See id.).
in Bell I and II are identical. Compare
Bell I, No. 14-CVS-3649 ( N.C. Super. Ct. Mar. 19, 2014)
(complaint asserting cause of action based upon 2009 forklift
injury), Bell II, No. 14-CVS-15502 ( N.C. Super. Ct.
Nov. 18, 2014) (same). Complaint in this action paraphrases
prior complaints in more concise form. (See DE 1-2).