United States District Court, E.D. Tennessee
A. VARLAN CHIEF UNITED STATES DISTRICT JUDGE.
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.
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,
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].
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
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].
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].
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.].
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, 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. ¶¶
Standards of Review
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
Motion to Amend
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).
Motion to Dismiss
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
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).
Motion for Summary Judgment
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).
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.
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.
Plaintiff’s Motion to Amend
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’
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.
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.
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 ...