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McCarthy v. G.UB.MK Constructors and Jacobs Engineering Group, Inc.

United States District Court, E.D. Tennessee

March 15, 2017

MIKE McCARTHY, Plaintiff,



         This civil action is before the Court on defendant G.UB.MK Constructors’ (“GUBMK”) Motion to Dismiss for Failure to State a Claim and/or Motion for Summary Judgment [Doc. 58], plaintiff’s Motion for Leave of Court to File Amended Complaint [Doc. 68], defendant Jacobs Engineering Group, Inc.’s (“Jacobs”) Motion for Summary Judgment Based on Government Contractor Qualified Immunity and the First Filed Doctrine [Doc. 75],[1] and Jacobs’s Motion for Summary Judgment [Doc. 94]. The parties filed several responses and replies in support of, and in opposition to, the motions before the Court [Docs. 71–73, 78, 123–24, 126–28, 130–31, 134].

         For the reasons discussed herein, the Court will deny plaintiff’s Motion for Leave of Court to File Amended Complaint [Doc. 68], grant Jacobs’s Motion for Summary Judgment [Doc. 94], grant GUBMK’s Motion to Dismiss for Failure to State a Claim and/or Motion for Summary Judgment [Doc. 58], and deny as moot Jacobs’s Motion for Summary Judgment Based on Government Contractor Qualified Immunity and the First Filed Doctrine [Doc. 75].

         I. Background

         This action relates to plaintiff’s participation in the post-spill clean-up removal and recovery of fly ash at the Tennessee Valley Authority (“TVA”) Kingston Fossil Fuel Plant (the “KIF plant”) following the coal ash spill that occurred when a containment dike at the KIF plant failed on December 22, 2008 (the “ash spill”).

         Plaintiff was an employee of GUBMK [Doc. 4-1 ¶ 4]. He asserts that while employed by GUBMK, he sustained a “progressive work-related occupational illness injury” and that he notified GUBMK of this injury allegedly resulting from his exposure to toxic substances [Id.]. Plaintiff provides that “as a result of his work-related complaint, he sought but did not receive medical treatment or protective equipment for his work” [Id. ¶ 5]. He claims that GUBMK discharged him in retaliation for reporting “work-related exposure and complaints about lack of worker protection for himself and all other workers” [Id. ¶ 6].

         Plaintiff further states that GUBMK was acting upon the “coercive pressure” of Jacobs, a contractor on the site [Id. ¶ 10]. According to plaintiff, Jacobs did not want to alert the Roane County, Tennessee community and TVA as to the danger of the ash spill location in order to preserve its reputation and receive payment as the primary safety contractor on site [Id.]. As such, plaintiff contends that Jacobs hid safety problems and put undue coercion on other subcontractors to do the same [Id. ¶ 12]. This coercion included having subcontractors, including GUBMK, ignore prescriptions for respirator protection, dusk masks, and other precautionary measures [Id. ¶ 13]. Plaintiff contends that one example of this behavior is when Chris Ike, an employee of Jacobs, threatened plaintiff with his job “by stating that he would be hanging himself with his own cock by wearing a dusk mask for safety after requesting said protective wear due to breathing problems and Jacobs denying the request” [Id. ¶ 11].

         Plaintiff further states that defendants violated federal regulations by “failing to provide appropriate respiratory protection, manipulating air testing, and retaliating through potential interference with subcontract employee employers regarding those individuals that needed protection for human health” [Id. ¶ 15]. Plaintiff also contends that as a result of defendants’ violations of state law, plaintiff “witnessed individuals working on [the] site continually ingesting harmful toxins becoming injured and dying” [Id. ¶ 16]. According to plaintiff, this conduct occurred “outside the scope of law and knowledge and permission” of the federal agencies involved [Id.].

         Plaintiff’s first amended complaint appears to assert the following claims against both defendants: (1) retaliatory discharge under Tennessee common law and the Tennessee Public Protection Act (“TPPA”), Tenn. Code Ann. § 50-1-304; (2) violations of federal Occupational Safety and Health Administration (“OSHA”) regulations, 29 C.F.R. §§ 1910.1018, 126.103, and 1910.134(a)(2); (3) violations of Tennessee’s Occupational Safety and Health Act of 1972 (“TOSHA”), Tenn. Code Ann. §§ 50-3-2012,[2] 50-3-106, and 50-3-409; (4) Tennessee common law intentional/reckless infliction of emotional distress (“IIED”); and (5) Tennessee common law civil conspiracy [Id. ¶¶ 1–21].[3]

         II. Standards of Review

         Currently pending before the Court are GUBMK’s motion to dismiss and/or motion for summary judgment [Doc. 58], plaintiff’s motion to amend [Doc. 68], and Jacobs’s two motions for summary judgment [Docs. 75, 94]. The Court will first discuss the standards of review applicable to each motion and will then turn to the merits of each motion.

         A. Motion to Amend

         Aside from the situations described in Federal Rule of Civil Procedure 15(a)(1), which do not apply here, “a party may amend its pleading only with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a)(2). “The court should freely give leave,” however, “when justice so requires.” Id. Leave is appropriate “[i]n the absence of . . . undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment.” Leary v. Daeschner, 349 F.3d 888, 905 (6th Cir. 2003) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 633 (6th Cir. 2009).

         B. Motion to Dismiss

         Rule 8(a)(2) of the Federal Rules of Civil Procedure sets forth a liberal pleading standard. Smith v. City of Salem, 378 F.3d 566, 576 n.1 (6th Cir. 2004). It requires only “‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Detailed factual allegations are not required, but a party’s “obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557)).

         In deciding a Rule 12(b)(6) motion to dismiss, the Court must determine whether the complaint contains “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. In doing so, the Court “construe[s] the complaint in the light most favorable to the plaintiff, accept[s] its allegations as true, and draw[s] all reasonable inferences in favor of the plaintiff.” Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citation omitted). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).

         C. Motion for Summary Judgment

         Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477 U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993). All facts and all inferences to be drawn therefrom must be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Burchett v. Kiefer, 301 F.3d 937, 942 (6th Cir. 2002).

         “Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations.” Curtis Through Curtis v. Universal Match Corp., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing Celotex, 477 U.S. at 317). The plaintiff must offer “concrete evidence from which a reasonable juror could return a verdict in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “[M]ere conclusory and unsupported allegations, rooted in speculation, do not meet that burden.” Bell v. Ohio State Univ., 351 F.3d 240, 253 (6th Cir. 2003) (citation omitted). Summary judgment may not be defeated “based on rumors, conclusory allegations, or subjective beliefs.” Hein v. All Am. Plywood Co., 232 F.3d 482, 488 (6th Cir. 2000). To establish a genuine issue as to the existence of a particular element, the non-moving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson, 477 U.S. at 248. The genuine issue must also be material; that is, it must involve facts that might affect the outcome of the suit under the governing law. Hein, 232 F.3d at 488.

         The Court’s function at the point of summary judgment is limited to determining whether sufficient evidence has been presented to make the issue of fact a proper question for the factfinder. Anderson, 477 U.S. at 250. The Court does not weigh the evidence or determine the truth of the matter. Id. at 249. Nor does the Court search the record “to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed is the threshold inquiry of determining whether there is a need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477 U.S. at 250.

         III. Plaintiff’s Motion to Amend

         Although plaintiff filed its motion to amend after GUBMK filed its dispositive motion, granting a motion to dismiss or a motion for summary judgment before addressing a pending motion to amend can be an abuse of discretion. See Thompson v. Superior Fireplace Co., 931 F.2d 372, 374 (6th Cir. 1991). As such, the Court first considers plaintiff’s motion to amend and will then turn to defendants’ dispositive motions.

         In opposition to the motion to amend, GUBMK argues that: (1) the proposed amendments are futile; (2) plaintiff moved to amend the complaint with undue delay; (3) plaintiff proposes the amendments in bad faith; and (4) allowing the proposed amendments would unduly prejudice GUBMK. The Court first turns to whether the proposed amendments are futile.

         “Amendment of a complaint is futile when the proposed amendment would not permit the complaint to survive a motion to dismiss.” Miller v. Calhoun Cty., 408 F.3d 803, 807 (6th Cir. 2005) (citing Neighborhood Dev. Corp. v. Advisory Council on Historic Pres., 632 F.2d 21, 23 (6th Cir. 1980)). When a motion to amend is filed in response to a motion for summary judgment, however, “the Court may properly look to the affidavits and other evidence in the record.” Powell v. Henry, No. 05-CV-70435-DT, 2006 WL 2160896, at *1 (E.D. Mich. July 28, 2006). In this circumstance, “the Court cannot assess the proposed amended complaint as if that evidence does not exist.” Id. (quoting Smith v. Chrysler Corp., 938 F. Supp. 1406, 1414 (S.D. Ind. 1996)). Consequently, in such a case, “the proposed amended complaint is futile under Rule 15(a) not only if it would fail to survive a motion to dismiss for failure to state a claim, but also if the amended pleading could not survive a previously filed motion for summary judgment.” Id. (citing Bauchman v. West High Sch., 132 F.3d 542, 561–62 (10th Cir. 1997); Wilson v. Am. Trans Air, Inc., 874 F.2d 386, 392 (7th Cir. 1989)). As such, the Court will consider whether plaintiff’s proposed claims would survive a Rule 12(b)(6) motion to dismiss, and whether the claims would survive GUBMK’s previously filed motion for summary judgment [Doc. 58]. In doing so, the Court applies the standards of review pertaining to such motions.

         Upon review of plaintiff’s proposed second amended complaint, it appears that plaintiff is attempting to assert the same claims as set forth in his first amended complaint, except his proposed amended complaint includes additional allegations in support of those claims [Compare Doc. 4-1 with Doc. 68-1]. As with his first amended complaint, plaintiff’s proposed second amended complaint asserts the following claims against both Jacobs and GUBMK: (1) retaliatory discharge under Tennessee common law and the TPPA; (2) violations of OSHA ...

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