[B]Case Name: [/B][I]Freddie Hammonds v. Jason Lennep and F.A. Richard & Associates, Inc.
[/I][B]Date Decided: [/B]October 20, 2009
[B]Court: [/B]U.S.D.C. Southern District of Mississippi
[B]Judge: [/B]Judge Guirola
[B]Citation: [/B]2009 WL 3418546 (S.D.Miss.)[B]Background:
[/B]Defendants, Jason Lennep and F.A. Richard & Associates, Inc. (“FARA”) filed a motion to dismiss in response to plaintiff, Freddie Hammonds (“Hammonds”), claim against FARA for workers compensation alleging foot and back injuries.
Hammonds was injured while working for Northrop Grumman Ship Systems and filed a workers compensation claim. In 2005, Hammonds and Northrop Grumman entered into an agreement in which Northrup would continue to pay Hammonds’ past and future medical expenses pursuant to section 7 of the Longshore Harbors’ Workers’ Compensation Act (“LHWCA”).
In September of 2008, Hammonds alleged that his physician determined he needed surgical lumbar fusion as a result of the back injury. Hammonds claimed that Lennep, the FARA employee assigned to handle his claim, failed to respond to repeated claims that Lennep failed to respond to repeated requests for pre-approval of the surgery. Hammonds filed this action alleging that Lennep and FARA have breached the settlement agreement and have acted with negligence and gross negligence in handling his request for pre-approval of the fusion.
Hammond also claimed that FARA failed to reasonably investigate his claim in Circuit Court of Mississippi.
The defendants removed this case to this Court asserting diversity and federal question jurisdiction. Alternatively, defendants filed a motion to dismiss alleging that defendants’ negligence and failure to investigate claims are preempted by the LHWCA.
Also, defendants argue that because they were not a party to the settlement agreement than as a matter of law, Hammonds’ breach of contract claims must fail as a matter of law.
[/B]Did this Court grant defendants’ motion to dismiss holding that Hammonds’ claim is preempted by LHWCA and breach of contract claim because they were not a party to the settlement agreement?
[/B]First, FARA argued that the breach of contract claim should be dismissed because FARA was not a party to the settlement agreement. This Court found that FARA is not a party to the agreement and there was no evidence before the Court that FARAS was a party to [I]any agreement [/I]entered with Hammonds or for the benefit of Hammonds.
Accordingly, this Court dismissed Hammonds’ breach of contract claim.
Moreover, defendants argued that all the other claims against defendants are barred by the exclusivity provision of the LHWCA.
This Court had previously found that Hammonds’ negligence, gross negligence, and failure to investigate claims against Lennep are barred by the exclusivity provision. Accordingly, this Court holds that Hammonds’ claims against FARA are barred for the same reasons.
Because Hammonds did not request permission to amend his complaint upon the granting of the motion to dismiss and that this Court found it unlikely Hammonds would be capable of stating a claim against the defendants that is not barred by the LHWCA, this Court found that Hammonds should not be allowed to amend his complaint.
Often, if a complaint is dismissed then Courts will usually allow the plaintiff to amend his/her complaint in order to sufficiently state a claim for which relief can be granted. Usually, the plaintiff will request permission that upon dismissal he/she may be able to amend the complaint. [/B]
[B]However, if the Court finds that it is highly unlikely that the plaintiff will be able to state a sufficient claim than it will be dismissed with prejudice. [/B]
[B]Steve Gordon *[/B]