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Fischer v. ISE America, Inc.

United States District Court, D. Maryland

November 5, 2014

PAUL M. FISCHER, ET AL., Plaintiffs,
v.
ISE AMERICA, INC., Defendant.

MEMORANDUM OPINION

ELLEN LIPTON HOLLANDER, District Judge.

On April 17, 2014, plaintiffs Paul M. Fischer and Patricia Fischer, husband and wife, filed suit against ISE America, Inc. ("ISE"), defendant. They claim damages under Maryland tort law for injuries sustained by Mr. Fischer when he fell at a property owned by defendant in Millington, Maryland. ECF 1. Jurisdiction is founded on diversity of citizenship under 28 U.S.C. § 1332.

ISE has moved to dismiss, pursuant to Fed.R.Civ.P. 9 and 12 ("Motion, " ECF 4). Defendant contends that the Fischers' claims must be dismissed because Mr. Fischer "was an employee of ISE at the time of this incident, " and "therefore his exclusive remedy is to file a Workers' Compensation claim." Id. at 3. ISE did not submit a supporting memorandum, but it filed two exhibits with its Motion: an "offer of employment letter, marked as Exhibit 1 [(ECF 4-1)] and the Affidavit of Gregg Clanton, President of ISE, marked as Exhibit 2 [(ECF 4-2)]." Motion at 2. Defendant also asks the Court to award legal fees and costs. Id. at 3.

Plaintiffs oppose the Motion ("Opposition" ECF 6). They argue that Mr. Fischer was an independent contractor, not an employee of defendant, and therefore "this Court is the proper venue with subject matter jurisdiction to resolve the disputes and claims raised in Plaintiff's Complaint." Opposition at 4. Further, they argue that Fed.R.Civ.P. 12(d) requires that defendant's motion to dismiss be converted to one for summary judgment because the Motion "presents matters outside the pleadings, " namely, defendant's exhibits. Opposition at 6. To support their claim that Mr. Fischer was not an employee of defendant, plaintiffs have also filed their own exhibits: an affidavit of plaintiff Paul Fischer (ECF 6-1) and Form 1099 tax statements of "Miscellaneous Income" sent by defendant to Mr. Fischer (ECF 6-21).

Defendant has not submitted a reply to plaintiffs' Opposition, and the time to do so has now passed. See Local Rule 105.2(a). The Motion has been fully briefed, and no hearing is necessary to resolve it. See Local Rule 105.6. For the reasons that follow, I will deny the Motion.

Factual Background[1]

In their complaint, the Fischers allege that on September 27, 2011, Mr. Fischer entered the "premises known as ISE AMERICA, INC. Company 2 (a/k/a Red Bird Egg Farms, Inc.)" in order to "check on the progress of an equipment installation" on the premises. ECF 1 ¶¶ 6, 8. After Mr. Fischer "completed his inspection, " someone asked him to "deliver a case of eggs to the corporate office." Id. ¶ 9. As Mr. Fischer was leaving the cooler where he had just retrieved the eggs, he began descending a six-step stairway. Id. ¶ 9, 11. "When [Mr. Fischer's] right foot hit the third step, the toe of his shoe became entangled in debris on the stair tread surface." Id. ¶ 12. This "caused [him] to fall as a result of his foot being entangled in the packing tape present on the stair tread surface." Id. ¶ 13. The same day, Mr. Fischer went to "the closest medical facility" and was diagnosed with a tendon rupture. Id. ¶¶ 19, 20. He had surgery the next day, id. ¶ 21, and subsequently was diagnosed with a staph infection (MRSA). Id. ¶ 22. The staph infection led to six additional surgical procedures and, ultimately, the partial amputation of plaintiff's leg. Id. ¶ 23.

Additional facts are included in the Discussion.

Standard of Review & Choice of Law

In its skeletal, three-page Motion ISE asserts that the Motion is brought "pursuant to [Fed. R. Civ. P.] 9 and 12, " but defendant does not specify under which subsections of Fed.R.Civ.P. 12 it seeks dismissal. ECF 4 at 1, 1-4. The entirety of ISE's argument is set forth below, id. at 3:

a. Under F.R.C.P. 9, the Plaintiff lacks the capacity to sue because he was an employee of ISE at the time of this incident; therefore his exclusive remedy is to file a Workers' Compensation claim.
b. For the same reason, but referencing the language of F.R.C.P. 12, the Federal District Court - or any court in this state - is an improper venue. It follows logically that this Court does not have jurisdiction over a case which belongs before the Maryland Workers' Compensation Commission and, in addition, that Plaintiff has failed to state a claim upon which relief can be granted.

Defendant's underlying argument is that the Fischers' "exclusive remedy is to file a Workers' Compensation claim." Id. Referencing this assertion, defendant then invokes claims for dismissal under Rules 12(b)(3), 12(b)(1), and 12(b)(6), reciting certain keywords. Specifically, defendant states that this Court "is an improper venue;" that the Court "does not have jurisdiction over a case which belongs before the Maryland Workers' Compensation Commission;" and that "Plaintiff has failed to state a claim upon which relief can be granted." Id.

Both sides have submitted information outside the pleadings that speak to Mr. Fischer's status at the time of his fall. However, I need not consider this information to decide the Motion. Thus, I will not convert defendant's motion to dismiss to one for summary judgment. Rather, I will consider defendant's Motion as a motion to dismiss under Fed.R.Civ.P. 12(b)(1), 12(b)(3), and 12(b)(6), with the argument as to each being that the Fischers' ...


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