JESUS CORTEZ RIVERA, et al., Plaintiffs,
v.
ALTEC, INC., et al., Defendants.
Civil Action No. ELH-21-0681
United States District Court, D. Maryland
November 19, 2021
MEMORANDUM
Ellen Lipton Hollander United States District Judge
In this personal injury and product liability case, plaintiff Jesus Cortez Rivera and his wife, plaintiff Viridiana Reyes, filed suit in the Circuit Court for Frederick County, Maryland against Navistar, Inc. (“Navistar”); Altec, Inc. and Altec Industries, Inc. (collectively, “Altec”); and All Reliable Services, Inc. (“All Reliable”) and All Railroad Services Corp. (“All Railroad”) (collectively, “ARS Defendants”). ECF 2 (“Complaint”). Defendants removed the case to this Court on March 18, 2021, on the basis of diversity jurisdiction, pursuant to 28 U.S.C. §§ 1332 and 1441. ECF 1 (“Notice of Removal”).[1]
On October 13, 2021, plaintiffs filed a “Motion for Voluntary Dismissal Without Prejudice by Court Order.” ECF 49 (the “Motion”).[2] In the Motion, plaintiffs seek to dismiss
this case because they desire to pursue their claims in related litigation pending in the United States District Court for the Northern District of West Virginia. See Rivera et al. v. ALTEC, Inc. et al., No. 3:21-CV-132-GMG (N.D. W.Va.).[3] The ARS Defendants oppose the Motion (ECF 51, the “Opposition”), supported by two exhibits. ECF 51-1; ECF 51-2. Plaintiffs have not replied and the time to do so has expired.
Previously, the ARS defendants had moved to dismiss this case, or, in the alternative, for summary judgment. ECF 8. Their motion is supported by a memorandum (ECF 8-1) (collectively, the “ARS Motion”) and an exhibit. Plaintiffs opposed the ARS Motion (ECF 21), with exhibits, and ARS replied. ECF 26. And, with new counsel, plaintiffs have moved to supplement their opposition to the ARS Motion. ECF 50 (“Motion to Supplement”).
No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I shall grant the Motion. Therefore, I shall deny, as moot, the ARS Motion and the Motion to Supplement.
I. Factual and Procedural Summary
The procedural history of this action, by now somewhat extensive, embraces both the case in the District of Maryland and the parallel case in the Northern District of West Virginia.
Plaintiffs assert product liability and negligence claims against defendants arising out of a serious workplace accident that occurred in West Virginia on July 15, 2019. ECF 2, ¶¶ 111-126. They contend that on that date Mr. Rivera, an experienced employee of All Reliable, was operating a bucket truck to clear vegetation and trim trees from utility power lines and poles. Id.¶¶ 111, 112, 117.
While Mr. Rivera was in the truck, it tipped over, without warning. Id. ¶ 124. As a result, Mr. Rivera fell approximately 50 feet to the ground and sustained severe injuries. Id. ¶¶ 124, 125, 126. Defendants were allegedly involved in the design, manufacture, assembly, sale, and repair of the truck. Id. ¶¶ 100-110.
The Complaint contains nine counts. Counts One through Eight are asserted by Mr. Rivera alone, and Count Nine is asserted by both plaintiffs. The claims are as follows: “Negligence (Hydraulic Operations Switch)” against all defendants (Count One); “Products Liability (Hydraulics Operations Switch)” against all defendants (Count Two); “Negligence (Outrigger, Weight, and Balance)” against Altec and Navistar (Count Three); “Negligence against All Reliable and All Railroad (Assignment of Subject Truck to Plaintiff)” (Count Four); “Intentional or Grossly Reckless Assignment of Subject Truck to Plaintiff” against All Reliable and All Railroad (Count Five); “Strict Products Liability (Outrigger, Weight, and Balance)” against all defendants (Count Six); “Strict Products Liability” against All Reliable and All Railroad (Count Seven); “Negligent Repair” against Altec, All Reliable, and All Railroad (Count Eight); and “Loss of Consortium Against All Defendants” (Count Nine).
Altec answered the suit. ECF 4. Navistar moved to dismiss the Complaint, claiming lack of personal jurisdiction under Fed.R.Civ.P. 12(b)(2). ECF 9. Plaintiffs opposed that motion. ECF 22. And, by letter of June 15, 2021, plaintiffs' prior counsel requested an “expedited decision” regarding Navistar's motion, citing the impending statute of limitations deadline. ECF 33. On July 2, 2021, I granted Navistar's motion, concluding that this Court lacked personal
jurisdiction as to Navistar. ECF 35; ECF 36.[4] However, the suit remains pending as to the other defendants.
For their part, the ARS Defendants moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), or, in the alternative, for summary judgment, pursuant to Fed.R.Civ.P. 56. ECF 8.[5]The ARS Motion is supported by a memorandum of law (ECF 8-1) and an exhibit. See ECF 8-2. The ARS Defendants' principal argument is that they are protected from suit under West Virginia workers' compensation law, because they paid workers' compensation benefits to Mr. Rivera. ECF 8-1 at 5, 10-13. Furthermore, they argue that plaintiffs have not adequately pled “deliberate intention” on the part of the ARS Defendants, which is the sole basis under West Virginia law to forfeit such immunity. Id. at 13-20. Plaintiffs oppose the ARS Motion, supported by six exhibits. ECF 21 (the “Opposition”). The ARS Defendants replied, and submitted one exhibit. ECF 26.
On July 8, 2021, after this Court dismissed the case as to Navistar, plaintiffs filed suit in a West Virginia state court against the defendants. In a letter of July 9, 2021, counsel for Navistar informed this Court that plaintiffs' counsel had notified defendants of plaintiffs' intent to dismiss the Maryland case against all defendants, in view of the filing of the West Virginia case. ECF 41. Then, on August 11, 2021, defendants removed the West Virginia state case to the United States District Court for the Northern District of West Virginia. W.Va. Docket, ECF 1. Thereafter, the ARS Defendants filed a “Motion to Dismiss or, in the Alternative, for Summary
Judgment.” Id., ECF 2. It is similar to the ARS Motion filed in this case. Compare id. with ECF 8. Then, a few days later, on August 16, 2021, plaintiffs filed a “Motion to Dismiss” in the West Virginia case, indicating that they would prefer to litigate in the District of Maryland. W.Va. Docket, ECF 4.
On August 13, 2021, this Court requested a status report. ECF 44. Plaintiffs' counsel responded (ECF 45), advising that plaintiffs had filed a pro se suit in West Virginia “[a]s a precaution . . . to preserve their rights before the statute of limitations expired, ” but that plaintiffs seek to pursue their claims against defendants in Maryland. Thereafter, on September 2, 2021, new counsel entered an appearance in Maryland on behalf of plaintiffs. ECF 48.[6] The same lawyer, as well as an additional attorney practicing in West Virginia, now represent plaintiffs in the West Virginia case.
In the interim, on August 27, 2021, plaintiffs moved in the West Virginia case to withdraw their motion to dismiss. W.Va. Docket, ECF 14. Chief Judge Groh granted that motion on September 2, 2021. Id., ECF 18.
Plaintiffs also filed an opposition to the ARS Defendants' motion to dismiss in the West Virginia case. Id., ECF 20. The ARS Defendants replied. Id., ECF 21. On October 7, 2021, Chief Judge Groh issued an Order staying proceedings in the West Virginia case, “pending resolution of the parties' dispute” in this Court, citing the “first-to-file” rule. Id., ECF 27. The “first-to-file” rule pertains to two identical or substantially similar suits, and gives priority to the court where the first action was initiated. See LWRC International, LLC v. Mindlab Media, LLC, 838 F.Supp.2d 330, 337 (D. Md. 2011).[7]
Thereafter, on October 13, 2021, plaintiffs filed the Motion. ECF 49. In the Motion, plaintiffs advise that Altec has “agreed” to the dismissal of this case, but that the ARS Defendants do not. Id. at 1.
In addition, plaintiffs filed a “Motion for Leave to File a Supplemental Opposition” to the ARS Motion (ECF 50), accompanied by a proposed Supplemental Opposition. ECF 50-1. The ARS Defendants oppose the Motion to Supplement. ECF 52.
II. Discussion
A. Choice of Law
“[A] voluntary dismissal to reinstate the action in a forum that will apply a different body of substantive law clearly is disfavored.” 9 Charles A. Wright and Arthur R. Miller, Federal Practice & Procedure § 2364 (4th ed. Apr. 2021) (“Wright & Miller”). If the West Virginia Court would apply a different body of substantive law than would this Court in adjudicating the dispute, that might suggest forum shopping. Therefore, as a preliminary matter, the Court considers the substantive body of law that would apply to litigation here and in West Virginia.
In my view, West Virginia substantive law would apply whether the case is litigated in Maryland or in West Virginia. In the ARS Motion, the ARS Defendants assert that West
Virginia law applies. ECF 8-1 at 10-11. In the Motion, plaintiffs concede that the application of West Virginia law is “correct[].” ECF 49 at 4. And, in their opposition to the ARS Motion, they cite West Virginia law. See ECF 21 at 13-23.
For a state law claim, the Court must apply the law of the forum state, including as to choice of law. See, e.g., Nash v. Montgomery Cty., GJH-20-1138, 2021 WL 1222874, at *7 n.7 (D. Md. Mar. 31, 2021); Ben-Joseph v. Mt. Airy Auto Transporters, LLC, 529 F.Supp.2d 604, 606 (D. Md. 2008). In tort actions, Maryland adheres to the principle of lex loci delicti, meaning it applies the substantive law of the state where the wrong occurred. Ben-Joseph, 529 F.Supp.2d at 606 (citing Erie Ins. Exch. v. Heffernan, 399 Md. 598, 619, 925 A.2d 636, 648-49 (2007)) (other citations omitted).
The accident at issue occurred in West Virginia. See ECF 2, ¶¶ 117, 122-26; ECF 8-1 at 2-3. The lex...
