Self v. Norfolk Southern Corp.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-1242

FRANCES ANN SELF; SANDRA G. GANTT,
individually and on behalf of others similarly
situated,

Plaintiffs - Appellants,

versus

NORFOLK SOUTHERN CORPORATION; NORFOLK SOUTHERN
RAILWAY COMPANY,

Defendants - Appellees.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, District Judge.
(1:06-cv-01730-MBS)

Submitted: February 5, 2008 Decided: February 13, 2008

Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit
Judge.

Affirmed by unpublished per curiam opinion.

Kristina M. Anderson, ANDERSON & ANDERSON, LLP, Aiken, South
Carolina; Herbert W. Louthian, Jr., LOUTHIAN LAW FIRM, PA,
Columbia, South Carolina, for Appellants. Daniel B. White, W.
Howard Boyd, Jr., Jennifer E. Johnson, Thomas E. Vanderbloemen,
GALLIVAN, WHITE & BOYD, PA, Greenville, South Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Frances A. Self and Sandra G. Gantt, individually and on

behalf of others similarly situated (collectively “Self”), seek to

appeal the district court’s order dismissing their complaint

against Norfolk Southern Corporation and Norfolk Southern Railway

Company (collectively “Norfolk”). We affirm the district court’s

judgment.

The standard of review of a Fed. R. Civ. P. 12(b)(6)

dismissal is de novo. Schatz v. Rosenberg, 943 F.2d 485, 489 (4th

Cir. 1991). This court will construe factual allegations in the

nonmoving party’s favor and will treat them as true, id., but is

“not so bound with respect to [the complaint’s] legal conclusions.”

Dist. 28, United Mine Workers, Inc. v. Wellmore Coal Corp., 609

F.2d 1083, 1085-86 (4th Cir. 1979). The plaintiff’s “[f]actual

allegations must be enough to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 127 S. Ct.

1955, 1965 (2007). “[O]nce a claim has been stated adequately, it

may be supported by showing any set of facts consistent with the

allegations in the complaint.” Id. at 1969. A complaint attacked

by a Rule 12(b)(6) motion to dismiss will survive if it contains

“enough facts to state a claim to relief that is plausible on its

face.” Id. at 1974.

Under South Carolina law, “[a] cause of action for

negligence requires: (1) the existence of a duty on the part of the

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defendant to protect the plaintiff; (2) the failure of the

defendant to discharge the duty; (3) injury to the plaintiff

resulting from the defendant’s failure to perform.” South Carolina

State Ports Auth. v. Booz-Allen & Hamilton, Inc., 346 S.E.2d 324,

325 (S.C. 1986). The absence of any one of these elements renders

the cause of action insufficient.

Because Norfolk owed no duty to Self or any of the class

members that would warrant recovery for wages lost as the result of

layoffs and terminations at the Avondale Mills facilities, we

conclude that Self has failed to plead enough facts to state a

claim that is plausible on its face. Id. Accordingly, we find

that the court properly granted Norfolk’s Rule 12(b)(6) motion to

dismiss for failure to state a claim. We further deny Self’s

request to certify the issue of Norfolk’s liability to the South

Carolina Supreme Court because sufficient authority exists to

determine that South Carolina requires a legal duty to impose tort

liability. Roe v. Doe, 28 F.3d 404, 407 (4th Cir. 1994).

We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED

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