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Plastic Fusion Fabricators, Inc. v. Dam-It Dams, Inc.

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

January 14, 2018

PLASTIC FUSION FABRICATORS, INC., Plaintiff,
v.
DAM-IT DAMS, INC., Defendant.

          ORDER

          W. Earl Britt Senior U.S. District Judge

         This matter is before the court on Dam-It Dams, Inc.'s (“defendant”) motion to dismiss this action for Plastic Fusion Fabricators, Inc.'s (“plaintiff”) failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE # 9.) Plaintiff has filed a response in opposition to the motion. (DE # 12.) Defendant has filed a reply. (DE # 14.) Thus, the motion has been fully briefed and is ripe for disposition.

         I. BACKGROUND

         Plaintiff's complaint is related to an employee's worksite injury allegedly caused by defendant's negligence. Defendant, pursuant to a purchase order agreement with plaintiff, provided plaintiff a ten-foot cofferdam, which plaintiff used when attempting to replace a pond liner on 1 and 2 May 2014. (Compl., DE #1-1, ¶¶ 10, 11, 15, 16.) After plaintiff began filling the cofferdam with water, on 2 May 2014, the cofferdam burst and injured the right knee of Andres Rodriguez-Diaz, one of plaintiff's employees. (Id. ¶¶ 16-18.) As a result of Rodriguez-Diaz's worksite injury, plaintiff's workers' compensation insurer, North River Insurance Company (“North River”), paid Rodriguez-Diaz workers' compensation benefits. (Id. ¶¶ 19- 20.) Plaintiff alleges that North River has the right to proceed in plaintiff's name to enforce defendant's liability.[1] (Id. ¶ 22.)

         Prior to filing suit, plaintiff sought “Rodriguez Diaz's cooperation with [its] subrogation claim” by repeatedly attempting to contact him. (Id. ¶ 33.) However, Rodriguez-Diaz refused to cooperate. (Id.) On 28 April 2017, plaintiff filed this complaint in North Carolina state court. Plaintiff asserts a negligence claim against defendant, contending that defendant negligently supplied it with a defective cofferdam and breached defendant's duties to plaintiff and Rodriguez-Diaz. (Id. ¶¶ 24-28.) Plaintiff seeks to recover damages, including the workers' compensation payments made to Rodriguez-Diaz. (Id. ¶ 30.) Plaintiff also asserts a “claim” for joinder of Rodriguez-Diaz as a party-plaintiff. (Id. ¶ 34.) On 2 June 2017, defendant removed the action to this court.

         On 7 July 2017, defendant moved to dismiss plaintiff's complaint on several grounds: (1) plaintiff lacks standing under North Carolina's workers' compensation statutes to bring a claim; (2) the statute of limitations bars plaintiff's claim; (3) plaintiff cannot join Rodriguez-Diaz because plaintiff does not have the right to bring this action; and (4) res judicata bars plaintiff's claim. Plaintiff's arguments in opposition to the motion largely center on the joinder of Rodriguez-Diaz as a party to this action.

         II. STANDARD OF REVIEW

         Rule 12(b)(6) permits a court to dismiss a complaint that does not “contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Under this standard, the plaintiff's complaint must make factual allegations that are “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. When considering a motion to dismiss, the court must “accept as true all well-pleaded allegations and view the complaint in the light most favorable to the plaintiff.” Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007).

         III. ANALYSIS

         A. Motion to Dismiss

         Defendant's statutory standing defense to plaintiff's negligence claim resolves its motion to dismiss.[2] It is based on one of North Carolina's workers' compensation statutes, § 97-10.2. That statute “defines the rights and remedies of employees and employers against third-party tort-feasors.” Radzisz v. Harley Davidson of Metrolina, Inc., 484 S.E.2d 566, 568 ( N.C. 1997). The relevant portions of the statute are as follows:

(a) The right to compensation and other benefits under this Article for disability, disfigurement, or death shall not be affected by the fact that the injury or death was caused under circumstances creating a liability in some person other than the employer to pay damages therefor, such person hereinafter being referred to as the “third party.” The respective rights and interests of the employee-beneficiary under this Article, the employer, and the employer's insurance carrier, if any, in respect of the common-law cause of action against such third party and the damages recovered shall be as set forth in this section.
(b) The employee . . . shall have the exclusive right to proceed to enforce the liability of the third party by appropriate proceedings if such proceedings are instituted not later than 12 months after the date of injury . . . . During said 12-month period, and at any time thereafter if summons is issued against the third party during said 12-month period, the employee . . . shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury . . . .
(c) If settlement is not made and summons is not issued within said 12-month period, and if employer shall have filed with the Industrial Commission a written admission of liability for the benefits provided by this Chapter, then either the employee or the employer shall have the right to proceed to enforce the liability of the third party by appropriate proceedings; either shall have the right to settle with the third party and to give a valid and complete release of all claims to the third party by reason of such injury . . . . Provided that 60 days before the expiration of the period fixed by the applicable statute of limitations if ...

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