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Bell v. Weyerhaeuser NR Co.

United States District Court, E.D. North Carolina, Eastern Division

July 13, 2017

VERNICE BELL, Plaintiff,
v.
WEYERHAEUSER NR COMPANY, Defendant.

          ORDER

          LOUIS W. FLANAGAN United States District Judge.

         This 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.

         BACKGROUND

         Plaintiff, 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 diversity jurisdiction.

         Plaintiff 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”).

         In 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).

         In this 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 nature.

         In 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.

         On 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 motion.

         STATEMENT OF UNDISPUTED FACTS

         Plaintiff 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.).

         Complaints 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).

         DISCUSSION

         A. ...


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