UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2188
JEROME MCLAUGHLIN,
Plaintiff - Appellant,
v.
SAFWAY SERVICES, LLC, a/k/a Thyssen Krupp Safway,
Incorporated,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cv-00627-LMB-IDD)
Submitted: May 16, 2011 Decided: May 20, 2011
Before DUNCAN, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Raymond L. Palmer, Sr., RAYMOND L. PALMER & ASSOCIATES,
Richmond, Virginia, for Appellant. Michael R. Ward, MORRIS &
MORRIS, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
While employed with Covanta Energy Corporation
(Covanta), Jerome McLaughlin sustained an injury in an accident
at Covanta’s energy manufacturing plant. McLaughlin received
benefits under the Virginia Workers’ Compensation Act (VWCA) as
a result of the accident. McLaughlin sued Safway Services, LLC
(Safway), a contractor that routinely designed, delivered, and
erected scaffolding needed to clean, inspect, and maintain the
boilers that are essential to Covanta’s business. The district
court granted Safway’s Fed. R. Civ. Proc. 12(b)(1) motion to
dismiss for lack of jurisdiction, concluding that the
exclusivity provision of the VWCA barred McLaughlin’s tort
action against Safway. McLaughlin appealed. We affirm.
We review the district court’s dismissal of a
complaint for lack of subject matter jurisdiction under Rule
12(b)(1) de novo. Etape v. Chertoff, 497 F.3d 379, 382 (4th
Cir. 2007). A district court should dismiss a complaint for
lack of subject matter jurisdiction pursuant to Rule 12(b)(1) if
the complaint fails to allege facts upon which subject matter
jurisdiction can be based or if the jurisdictional allegations
in the complaint are not true. Kerns v. United States, 585 F.3d
187, 192 (4th Cir. 2009). The burden of proving subject matter
jurisdiction in response to a Rule 12(b)(1) motion to dismiss is
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on the plaintiff, the party asserting jurisdiction. Williams v.
United States, 50 F.3d 299, 304 (4th Cir. 1995).
The remedies provided by the VWCA are generally
exclusive to all other rights and remedies potentially available
to an employee who received benefits. Va. Code Ann. § 65.2-
307(A) (2007); Anderson v. Dillow, 553 S.E.2d 526, 527 (Va.
2001); Stone v. Door-Man Mfg. Co., 537 S.E.2d 305, 307 (Va.
2000). An exception to the exclusivity provision, however,
allows maintaining an action against the tortfeasor if the
wrongdoer is an “other party” within the meaning of Va. Code
Ann. § 65.2-309(A) (2007). Anderson, 553 S.E.2d at 527; Stone,
537 S.E.2d at 307-08. If the plaintiff is an employee of the
owner, in order for a defendant to be an “other party” subject
to suit, the defendant must be a “stranger to the trade,
occupation, or business in which the plaintiff was involved.”
Stone, 537 S.E.2d at 311; Stewart v. Bass Constr. Co., 288
S.E.2d 489, 490 (Va. 1982).
Our review of the record leads us to conclude that the
district court correctly found that Safway was not an “other
party” under the VWCA. Consequently, McLaughlin’s negligence
action against Safway is barred by the exclusivity provision of
the VWCA.
Therefore, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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