Johnston v. Foster-Wheeler Constructors, Inc.

158 F.R.D. 496, 1994 U.S. Dist. LEXIS 16413, 1994 WL 648021
CourtDistrict Court, M.D. Alabama
DecidedNovember 8, 1994
DocketCiv. A. No. 94-A-392-N
StatusPublished
Cited by15 cases

This text of 158 F.R.D. 496 (Johnston v. Foster-Wheeler Constructors, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 1994 U.S. Dist. LEXIS 16413, 1994 WL 648021 (M.D. Ala. 1994).

Opinion

MEMORANDUM OPINION AND ORDER

ALBRITTON, District Judge.

This cause is now before the court on Defendant’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), (3) and (6); alternatively, Defendant moves to transfer this action to the United States District Court for the Southern Division of Florida pursuant to 28 U.S.C. § 1404.

BACKGROUND

On March 10, 1994 Plaintiff, William E. Johnston, filed his complaint in the Circuit Court of Montgomery County, Alabama, against Defendant. On April 1, 1994, the Defendant timely filed its notice of removal to this court. Removal is based upon diversity jurisdiction. The Plaintiff is an individual resident of Alabama. Defendant, a Delaware corporation, has its principal place of business in Clinton, New Jersey. Although the Plaintiff does not specify the amount of damages claimed, the notice of removal states that the amount in controversy exceeds $50,-000 exclusive of interest and costs.

Plaintiff alleges he was wrongfully terminated in retaliation for claiming workmen’s compensation medical benefits, in violation of Code of Alabama § 25-5-11.1 and Florida Statutes Section 440.205. Plaintiff claims compensatory and punitive damages for emotional distress, lost wages and future lost wages.

The pleadings allege the following facts:

In September of 1992, Plaintiff entered into an employment-at-will contract with the Defendant. The place of employment was to be the Turkey Point Power Plant of Florida Power and Light Company, located in Homestead, Florida. The complaint alleges that on October 3,1992, Plaintiff was injured during the course and in the scope of his employment with Defendant. Plaintiff maintains that he was injured when he was welding near asbestos material and several asbestos particles became imbedded in the surface of the cornea of his eye. Plaintiff claims that [498]*498Defendant insisted that Plaintiff continue welding, after he had requested Defendant to arrange medical treatment for his eye pursuant to the Florida Workmen’s Compensation Act. Plaintiff further avers that three days later, his eye became swollen shut. Plaintiff was taken to the Miami General Hospital where the asbestos debris was removed. The doctor instructed Plaintiff to stay off the job for twenty-four hours, but Plaintiff’s supervisor allegedly sent him back to work. Plaintiff sustained permanent damage to his eye.

Plaintiff submitted an oral claim to Defendant’s safety officer for workmen’s compensation benefits on or about October 6, 1992. That same day, Plaintiff was terminated. Subsequently, he brought this action and Defendant filed the instant motion.

STANDARD OF REVIEW FOR MOTION TO DISMISS

A court may dismiss a complaint for failure to state a claim upon which relief may be granted, under Rule 12(b)(6) of the Fed. R.Civ.P., only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984); see also Wright v. Newsome, 795 F.2d 964, 967 (11th Cir.1986) (“[W]e may not ... [dismiss] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claims in the complaint that would entitle him or her to relief.”). A court must accept as true all well-pleaded factual allegations and view them in a light most favorable to the non-moving party. Hishon, 467 U.S. at 73, 104 S.Ct. at 2232; H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 2905-06, 106 L.Ed.2d 195 (1989); see also Marshall County Bd. of Educ. v. Marshall County Gas Dist., 992 F.2d 1171 (11th Cir.1993). Moreover, the threshold that a complaint must meet to survive a motion to dismiss for failure to state a claim upon which relief can be granted is “exceedingly low.” Ancata v. Prison Health Services, Inc., 769 F.2d 700, 703 (11th Cir.1985).

If a complaint fails to state grounds for subject matter jurisdiction the court may dismiss the claim for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). In deciding whether it has subject matter jurisdiction, the court may consider evidence as well as the pleadings. Colonial Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir.1991). Federal district courts are empowered to hear cases only by express congressional grants of jurisdiction. Therefore, to invoke the jurisdiction of such courts, a complaint must affirmatively and distinctly allege the statutory basis for the jurisdiction. 1 Moore’s Federal Practice ¶ 0.60[3] (2d ed. 1989); See, Kirkland Masonry, Inc. v. Commissioner, 614 F.2d 532, 533 (5th Cir.1980) (per curiam); Carnage v. Sanborn, 304 F.Supp. 857, 858 (N.D.Ga.1969).

In the context of a motion to dismiss for lack of personal jurisdiction in which no evidentiary hearing is held, the plaintiff bears the burden of establishing a prima facie case of jurisdiction over the movant, non-resident defendant. Morris v. SSE, Inc., 843 F.2d 489, 492 (11th Cir.1988) (citations omitted); Delong Equip. Co. v. Washington Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir.1988); Bracewell v. Nicholson Air Services, Inc., 748 F.2d 1499, 1504 (11th Cir. 1984). A prima facie case is established if the plaintiff presents sufficient evidence to defeat a motion for a directed verdict. Morris, 843 F.2d at 492. The court must construe the allegations in the complaint as true, to the extent they are uncontroverted by defendant’s affidavits or deposition testimony. Id. (citations omitted); Delong, 840 F.2d at 845; Bracewell, 748 F.2d at 1504. Moreover, where the evidence presented by the parties’ affidavits and deposition testimony conflicts, the court must construe all reasonable inferences in favor of the non-movant plaintiff. Delong, 840 F.2d at 845.

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

The Defendant has moved this court to dismiss Plaintiff’s complaint for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). Defendant argues, and Plaintiff concedes, that the com[499]*499plaint fails to state a claim for which relief may be granted under Code of Alabama § 25-5-11.1 (1975). Therefore, the court holds that the claim for relief under the Alabama statute should be dismissed for failure to state a claim upon which relief may be granted. The court holds, however, that relief may be granted pursuant to Florida law under the facts presented in the complaint. See Hishon v. King & Spalding, 467 U.S.

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Bluebook (online)
158 F.R.D. 496, 1994 U.S. Dist. LEXIS 16413, 1994 WL 648021, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnston-v-foster-wheeler-constructors-inc-almd-1994.