MEMORANDUM OPINION
On November 10, 2011, Plaintiffs, who are the personal representative of the estate of Stephen D. Vance and his wrongful death beneficiaries, filed a six-count complaint against Defendant CHF Interna
On December 21, 2011, CHF moved to dismiss arguing that (1) Defense Base Act (“DBA”) insurance provides Plaintiffs an exclusive remedy and (2) Plaintiffs fail to allege an intentional infliction of emotion distress claim. Doc. No. 6. On January 9, 2012, Plaintiffs filed their opposition, Doc. No. 18, to which CHF replied on January 26, 2012. Doc. No. 19. On February 26, 2012, Plaintiffs filed a motion for leave to file a sur-reply, which CHF opposed on February 14, 2012. Doc. No. 27.
On February 24, 2012, URG moved to dismiss on the basis that this Court cannot exercisе personal jurisdiction over it. Doc. No. 28. On March 26, 2012, Plaintiffs filed their opposition, Doc. No. 31, to which URG replied on April 9, 2012. Doc. No. 32. A hearing on the motions was held on April 13, 2012. For the reasons discussed below, Defendants’ motions will be granted, and the Plaintiffs’ motion will be denied.
I. Background
CHF is a development organization founded in 1952 that works in conflict-affected areas and developing countries. Compl. ¶ 11. CHF relies on private donations and governmental grants to perform its activities. Id. ¶ 12. Plaintiffs allege that in 2008, one of CHF’s projects was to implement a job creation and workforce development program in Pakistan’s Federally Administered Tribal Area (“FATA”) located in northwest Pakistan. Id. ¶ 13. “The project was funded, in whole or in part, by the United States Agency for International Development (“USAID”) via a Cooperative Agreement.” Id. Plaintiffs contend that “the Cooperative Agreement required that CHF provide security for its employees” and that CHF contracted with URG “in Maryland for URG to consult on security matters to provide security and safety services for CHF personnel” in Pakistan. Id. ¶¶ 14-15. URG is incorporated in Singapore, and its headquarters are located in Dubai.
The Cooperative Agreement between CHF and USAID established the Livelihood Development program. The Agreement states that “[pjursuant to the authority contained in the Foreign Assistance Act of 1961, as amended [USAID] hereby awards to CHF International ... the sum of $149,998,130 to provide support for the [Program].” Doc. No.- 6, Ex. A at 1. The Agreement provided for the implementation of the Program in the FATA, Frontier Regions, and NWFP districts. Id. at A-l. The main components of the Program include “(1) creating jobs, increasing incomes and teaching employable skills, with a focus on unemployed youth; (2) revitalizing community infrastructure and essential services; and supporting established businesses and developing new sustainable business.” Doc. No. 6 at 4.
The Cooperative Agreement required CHF to provide DBA insurance coverage to its employees working on the Program. See id. Ex. A at C-2 (incorporating by reference all provisions of 22 C.F.R. 226); 22 C.F.R. 226, App. A ¶ 9 (“Contracts which require performance outside the United States shall contain a provision requiring Worker’s Compensation Insurance (42 U.S.C. 1651, et seq.).”). CHF maintains that it “procured [DBA] insurance coverage for Mr. Vance, as exhibited by the fact that Mr. Vance’s beneficiaries have been receiving DBA death benefits since January 26, 2009.” Doc. No. 6 at 4.
On November 12, 2008, Mr. Vance and his driver were shot and killed on their way to CHF’s office in Peshawar. Id. ¶ 29. Plaintiffs maintain that the driver drove through “choke points, areas where a vehicle could be slowed or stopped by the natural terrain or other man-made obstacles.” Id. ¶ 30. At one choke, “another vehicle struck Mr. Vance’s vehicle from behind” and gunmen got out of another vehicle and ambushed Mr. Vance and his driver with assault rifles.” Id. ¶¶ 31-32. Each man was shot multiple times and killed. Id. ¶¶ 33-35. Plaintiffs allege that the vehicle in which Mr. Vance rode was not protected with armor and that his driver was not properly trained to deal with ambush attacks. Id. ¶¶ 27-28. The Vance family was required tо identify the decedent’s body before leaving Pakistan. Id. ¶ 36.
Mr. Vance’s DBA benefits began on November 13, 2008, with the first payment of compensation occurring on January 26, 2009. See id. Ex. B (U.S. Department of Labor Notice of Final Payment or Suspension of Compensation Payments (“DOL Notice”)). CHF contends that Plaintiffs conceded that Mr. Vance’s death was covered by CHF’s DBA insurance and have confirmed in writing that they are in agreement with respect to the benefits owed to Mr. Vance’s statutory dependents under the DBA as well as the amount of those benefits. Id. Ex. C. Plaintiffs maintain that the DBA benefits are not their exclusive remedy.
II. Standard of Review
a. Motion to Dismiss for Lack of Subject Matter Jurisdiction
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) raises the question of whether a court has the authority to hear and decide a case. See Davis v. Thompson,
b. Motion to Dismiss for Lack of Personal Jurisdiction
“When a defendant files a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of proving grounds for jurisdiction by a preponderance of the evidence.” Allcarrier Worldwide Servs., Inc. v. United Network Equipment Dealer Ass’n, 812 F.Supp.2d
c. Motion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Edwards v. City of Goldsboro,
A court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver,
III. Analysis
a. The DBA Provides the Exclusive Remedy for Plaintiffs’ Common-Law Tort Claims
The DBA provides that
[t]he liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and theirdependents) coming within the purview of this chapter, under the workmen’s compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.
42 U.S.C. § 1651(c). In addition, the DBA extends coverage of the Longshore and Harbor Workers’ Compensation Act, 42 U.S.C. § 1651(a), to apply to employees of contractors outside of the United States. See Nordan v. Blackwater Sec. Consulting,
The liability of an employer prescribed in section 4 [33 U.S.C. § 904] shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death ...”
Id. (quoting 33 U.S.C. § 905(a)). “As Section 5 of the Longshoremen’s and Harbor Workers’ Compensation Act destroys any underlying tort liability of the employer, ... it necessarily displaces all derivative common-law causes of action based on the injury or death of a covered employee caused by employer negligence, including wrongful death and survivorship actions.” Ross v. DynCorp,
“The DBA establishes a uniform, federal compensation scheme for civilian contractors and their employees for injuries sustained while providing functions under contracts with the United States outside its borders.” Fisher v. Halliburton,
CHF argues that this Court lacks subject matter jurisdiction because the DBA provides the exclusive remedy for descendant’s death under one of two provisions: (1) Mr. Vance’s Contract was performed under the Foreign Assistance Act (“FAA”) pursuant to § 1651(a)(5) or (2) Mr. Vance’s employment included “public work” as defined by § 1651(a)(4). Plaintiffs contend that CHF has not demonstrated that the DBA applies to their claims.
The DBA applies to the injury of death of an employee engaged in employment:
under a contract approved and financed by the United States or any executive department ... where such contract is to be performed outside the continental United States, under the [Foreign Assistance Act], as amended ... and every such contract shall contain provisions requiring that the contractor ... (A) shall, before commencing performance of such contract, provide for securing to or on behalf of employees engaged in work under such contract the payment of compensation and other benefits under the provisions of this chapter ...
42 U.S.C. § 1651(a)(5).
The parties agree that Mr. Vance was an employee working under a contract performed outside of the United States and that the contract contained provisions requiring the contractor to secure benefits under the DBA. The parties dispute whether the contract was performed under the FAA.
CHF maintains that the only inquiry that the Court need to make is whether the contract with USAID was financed in the manner required by the DBA. Doc. No. 19 at 5. Plaintiffs argue that the statutory subsection contains two operative phrases that the Court must consider. Plaintiffs contend that “[although the statute itself does not define what it means for a contract to bе ‘performed under’ the FAA, Congress chose to use the express term ‘financed by’ in the first phrase of § 1651(a)(5), while using the entirely distinct terms ‘performed’ and ‘under’ as the condition determining when the DBA applies to contracts executed under the FAA.” Doc. No. 18 at 8. Plaintiffs’ hyper-technical reading of the statute is not persuasive.
Courts have held that where, as here, plaintiffs concede that the contract was to be performed outside the continental United States, and that the contract contained the workers’ compensation-insurance related provisions required by § 1651(a)(5), “the only issue [ ] before the Court regarding the applicability of § 1651(a)(5) is whether the Contract was ‘financed’ in the manner required by the subsection.” Ross,
Plaintiffs’ argument that the terms ‘performed under’ and ‘funded by’ are not synonymous lacks support in case law and
ii. In the Alternative, the DBA Applies Pursuant to 1651(a)(4) Because CHF’s Contract Constituted “Public Works”
The DBA applies to employees:
under a contract entered into with the United States or any executive department, independent establishment, or agency thereof ..., or any subcontract, or subordinate contract with respéct to such contract, where such contract is to be performed outside the continental United States ... for the purpose of engaging in public work ...
§ 1651(a)(4). There are again three factors to consider in determining whether the DBA coverage applies: whether (1) the contract is with the United States or an executive department; (2) the contract is to be performed outside the continental United States; and (3) the purpose of the contract is to engage in public work. As discussed above, the parties agree that Mr. Vance was an employee working under a contract performed outside of the United States and that the contract contained provisions requiring the contractor to secure benefits under the DBA. The only issue the Court must decide is whether the contract was for the purpose of engaging in public work.
Under the DBA, the term public work: means any fixed improvement or any project, whether or not fixed, involving construction, alteration, removal or repair for the public use of the United States or its allies, including but not limited to projects or operations under service contracts and projects in connection with the national defense or with war activities, dredging, harbor improvements, dams, roadways, and housing, as well as preparatory and ancillary work in connection therewith at the site or on the project
42 U.S.C. § 1651(b)(1).
Courts have found that public work generally consists of “work constituting government-related construction projects, work connected with the national defense, or employment under a service contract supporting either activity.” Univ. of Rochester v. Hartman,
The Benefits Review Board has held that a “claimant’s employment teaching Asian Studies in the Pacific to Navy personnel [on board Navy ships in the Pacific] under a contract is related to national defense and therefore constitutes ‘public work’ within the meaning of the statute.” Casey v. Chapman College, 23 BRBS 7, at *3 (1989). Courts generally find that ‘public work’ “is a very broad term and should be liberally construed in line with the public policy of protection for the employees, a policy embodied in the Longshoremen’s and Harbor Workers’ Compensation Act ... which was extended to projects in connection with the war effort by the Defense Bases Act.” Republic Aviation Corp. v. Lowe,
The parties agree that the contract under which Mr. Vance worked had three main components and project areas: “(1) creating jobs, increasing incomes and teaching employable skills, with a focus on unemployed youth; (2) revitalizing community infrastructure and essential services; and (3) supporting established businesses and developing new sustainable business.” Doc. No. 6 at 4.
CHF argues that the Cooperative Agreement constituted public work for two reasons: (1) because “the project was part of a joint effort to counter the growing influence of extremist and terrorist groups, it related to the national defense” and (2) “specific activities undertaken pursuant to the contract dealt explicitly with construction and infrastructure improvement initiatives, as well as activities in support thereof.” Doc. No. 6 at 15. Plaintiffs argue that Mr. Vance’s work was mostly “humanitarian economic development work, which is not remotely within the ambit of § 1651(b)(1).” Doc. No. 18 at 7.
The FATA Livelihood Development Program Description states: “[t]o win the Global War on Terrorism, the United States must help the [Government of Pakistan] recast its relationship with the country’s FATA region,” and that “[c]ountering extremist influences in FATA will require a robust economic development program implemented with the support and assistance of the U.S. and international community.” Doc. No. 6, Ex. A at 3. CHF argues that pursuant to the Cooperative Agreement, emрloyees conducted improvements to “rural agriculture infrastructure, afforestation, plantation, and pit-digging.” Doc. No. 6 at 15; Ex. A at 10. CHF contends that “[development in FATA is vital to Pakistan’s progress in fighting insurgents, and the Livelihood Development Program was established as part of a joint effort between the United States and Pakistan to provide social and economic stabilization in FATA to counter the growing influence of extremist and terrorist groups.” Doc. No. 6 at 15.
This Court finds that that CHF’s program comes under the public works provision of § 1641(a)(4). The work appears to constitute work performed under a service contract connected with a government-related construction project and work done in connection with the national defense. The Program indicates that it is being undertaken to counter extremist influences in Pakistan, which is a goal of the United States’ war on terror. The program also includes construction projects such as rebuilding agricultural infrastructure in the FATA.
Therefore, the DBA applies pursuant to § 1651(a)(5) and § 1651(a)(4) and is Plaintiffs’ exclusive remedy. Therefore, the Court will grant CHF’s motion to dismiss
b. Plaintiffs’ Intentional Infliction of Emotional Distress Claim is Subject to Dismissal
The issue of whether DBA exclusivity bars an intentional tort claim appears to be one of first impression for the Court of Appeals for the Fourth Circuit. Recently, the Fifth Circuit held that the DBA bars plaintiffs from bringing claims of intentional torts against employers unless the claim involves “injuries caused by an employer’s intentional assault of an employee with the specific desire to injure the employee.” Fisher v. Halliburton,
The Court adopts this reasoning of the Fifth Circuit and concludes that Plaintiffs’ intentional infliction of emotional distress claim (Count V) will be dismissed for lack of subject matter jurisdiction.
Moreover, Plaintiffs’ intentional infliction of emotional distress claim also fails to state a claim upon which relief can be granted. Plaintiffs allеge that CHF’s “willful failure to provide Mr. Vance with adequate security given its knowledge of horrific acts of violence being perpetrated on Westerns and others by persons sworn to kill such individuals, was extreme, outrageous and beyond all bounds of decency tolerated by a civilized society.” Compl. ¶ 56.
In order to succeed on an intentional infliction of emotional distress claim, Plaintiffs must demonstrate (a) intentional or reckless conduct that is (b) outrageous and extreme (c) causally connected to (d) extreme emotional distress. See Caldor, Inc. v. Bowden,
CHF argues that the “Complaint fails to allege a claim upon which relief can be granted because Plaintiffs have failed to
Plaintiffs’ intentional infliction of emotional distress claim fails to allege facts sufficient to survive a motion to dismiss. The only specific allegations of conduct by CHF in the Complaint are that the Defendants’ “willful failure to provide Mr. Vance with adequate security ... was extreme, outrageous, and beyond all bounds of decency tolerated by a civilized society.” Compl. ¶ 56. The only allegations of injury are that “Plaintiffs have suffered and will continue to suffer, severe emotional distress.” Compl. ¶ 58. Even when accepting all of Plaintiffs’ factual allegations as true, the Complaint merely recites in conelusory form the bare elements of an intentional infliction of emotional distress claim. Moreover, the allegеd failure to provide security is, at best, an averment of negligence, not intentional action, and the tort of negligent infliction of emotional distress is not recognized in Maryland. See, e.g., Lapides v. Trabbic,
Even if the requisite outrageous and extreme intentional action had been alleged, Maryland courts have held that there is a “high burden imposed by the requirement that a plaintiffs emotional distress be severe.” Manikhi v. Mass Transit Admin.,
Accordingly, Count V will be dismissed not only for failure to state a claim, but also because it can only be viewed as a negligence claim for which the exclusive remedy for the Plaintiffs is under the DBA.
c. This Court May Not Exercise Personal Jurisdiction Over URG
A federal court may exercise personal jurisdiction over a non-resident defendant if (1) the exercise of jurisdiction is authorized by the forum state’s long-arm statute,
For a court’s exercise of personal jurisdiction to comport with due process requirements, the nonresident defendant must have sufficient “minimum contacts” with the forum, “such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Int’l Shoe Co. v. Washington,
While the rule in the Fourth Circuit is that the minimum contacts analysis is “not susceptible to mechanical application,” “courts have considered various nonexclusive factors in seeking to resolve whether a defеndant has engaged in such purposeful availment.” Consulting Engineers Corp. v. Geometric Ltd.,
URG argues that “[w]hile the Complaint alleges with some detail the events in Pakistan which constitute a tort claim, the single allegation of any URG connection with this forum is the allegation that ‘CHF contracted with URG in Maryland for URG to consult on security matters.’ ” Doc. No. 28 at 3 (quoting Compl. ¶ 15). URG maintains that the contract with CHF was not executed by it, but by Unity Resources Pakistan, a subsidiary of URG, which operated in Pakistan. Both parties signed the contract in Pakistan. Id.; Ex. 1 ¶¶ 4-5, Ex. A at 1. URG attaches a declaration from Syed Mubashar Hasan Shah, the Country Manager of URG Pakistan, in which he claims that (1) he and one other URG employee had operating responsibilities for advising CHF on security in Pakistan; (2) at all times he and the other employee were located in Pakistan; (3) they reported to CHF through Mr. Vance; and (4) they never traveled to Ma
Plaintiffs maintain that URG has sufficient contacts with Maryland for the Court to exercise jurisdiction over URG. Specifically, Plaintiffs maintain that URG “negotiated the contract with a Maryland company, amended the contract in Maryland, conducted its contractual responsibilities on behalf of a Maryland company, was paid from Maryland, and even agreed that the Contract would be governed by Maryland law.” Doc. No. 31 at 2. Plaintiffs argue that the Contract was amended three times, and each time the CHF employee signing the amendment did so in Maryland. Id. at 2-3. The Plaintiffs did not submit affidavits in support of their opposition to the motion to dismiss.
Plaintiffs’ allegation that this Court may exercise personal jurisdiction over URG on the basis that URG “[tjransacts any business or performs any character of wоrk or service in the State” is incorrect. Plaintiffs rely on Jason Pharms. Inc. v. Jianas Bros. Packaging Co.,
Here, Plaintiffs fail to demonstrate that URG contacted CHF in Maryland to enter into a business relationship. Additionally, URG’s declarations and thе contract it attaches demonstrate that the contract between URG Pakistan and CHF was not executed in Maxyland. See Compl. ¶¶ 14-15. Plaintiffs have failed to offer any evidence that would support any basis for this Court to exercise jurisdiction over URG.
Even assuming Plaintiffs’ allegations are true regarding the formation of the contract, the Court still finds that it cannot exercise personal jurisdiction of URG. Plaintiffs maintain that URG engaged in negotiations with a Maryland company, received payment from Maryland, and agreed that Maryland law governs the contract and that any disputes arising under the Contract would be settled by the rules and procedures of the American Arbitration Association. These facts alone are insufficient to allow this Court to exercise jurisdiction. URG (1) does not maintain offices of agents in Maryland, (2) does not own property in the state, (3) did not make in-person contact with a resident in the forum to conduct business, and (4) performed the contract in Pakistan. Therefore, the Court will grant URG’s motion to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2).
IV. Conclusion
For the foregoing reasons, Defendants’ motions to dismiss will be granted and Plaintiffs’ motion will be denied. A separate order follows.
On November 10, 2011, Plaintiffs, the personal representative of the estate of Stephen D. Vance and his wrongful death beneficiaries, filed a six-count complaint against Defendant CHF International (“CHF”) and Defendant Unity Resources Group (“URG”), asserting claims for wrongful death; survivorship; loss of consortium; negligent hiring, supervision, training; and intentional infliction of emotional distress, based on the tragic murder of Mr. Vance while he was performing aid work in Pakistan. (Doc. No. 1).
Plaintiffs allege that in 2008, one of CHF’s projects was to implement a job creation and workforce development program in Pakistan’s Federally Administered Tribal Area (“FATA”), located in northwest Pakistan. Compl. ¶ 13. “The project was funded, in whole or in part, by the United States Agency for International Development (‘USAID’) via a Cooperative Agreement.” Id. The Cooperative Agreement required CHF to provide Defense Base Act (“DBA”) insurance coverage to its employees working on the Program. Doc. No. 6, Ex. A at C-2. CHF maintains that it “procured [DBA] insurance coverage for Mr. Vance, as exhibited by the fact that Mr. Vance’s beneficiaries have been receiving DBA death benefits since January 26, 2009.” Doc. No. 6 at 4.
On June 19, 2012, this Court granted CHF’s Motion to Dismiss (Doc. No. 6) and URG’s Motion to Dismiss (Doc. No. 28), and entered an Order closing this case (Doc. No. 39). The Court found that it cannot exercise personal jurisdiction over URG, and that it lacks subject matter jurisdiction over Plaintiffs’ claims against CHF because DBA insurance is the exclusive civil remedy against CHF for Mr. Vance’s death. (Doc. No. 38).
On July 17, 2012, Plaintiffs’ filed a Rule 59 Mоtion to Vacate Order Dismissing Case Against CHF International, Inc., Based on Newly Discovered Evidence that the Defense Base Act Does Not Apply. (Doc. No. 40). On August 3, 2012, CHF filed its Opposition to Plaintiffs’ Motion to Vacate Order Dismissing Case. (Doc. No. 43). On August 8, 2012, URG filed a Motion on Consent for Entry of Judgment Pursuant to Fed.R.Civ.P. 54(b). (Doc. No. 44). On August 17, 2012, Plaintiffs filed their Reply in Support of Motion to Vacate Order Dismissing Case as to CHF. (Doc. No. 45). The Court is able to decide this matter without a hearing. See Local Rule 105.6 (“Unless otherwise ordered by the Court ... all motions shall be decided on the memoranda without a hearing.”). For a full recitation of the facts underlying this action, see Plaintiffs’ Complaint (Doc. No. 1) and this Court’s Memorandum Opinion, signed June 19, 2012 (Doc. No. 38).
Standard of Review
Plaintiffs’ Motion to Vacate is brought under Rule 59(e) of the Federal Rules of Civil Procedure, which allows a Court to “alter or amend a judgment.” Fed.R.Civ.P. 59(e). “Although Rule 59(e) does not itself provide a standard under which a district court mаy grant a motion to alter or amend a judgment,” the Fourth Circuit recognizes that there are “three grounds for amending an earlier judgment: (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Pac. Ins. Co. v. Am. Nat’l Fire Ins.,
Analysis
Plaintiffs argue that, subsequent to the Court’s June 19, 2012 Order dismissing their action, they became aware of “new evidence” from USAID demonstrating that the DBA applies only to contracts and not to cooperative agreements like the Cooperative Agreement at issue in this matter. (Doc. No. 40 at 2). Plaintiffs’ newly-discovered evidence consists of USAID directives, regulations, and policies, all of which, according to Plaintiffs, exclude cooperative agreements from the reach of the DBA’s provisions; specifically, the DBA’s provision providing that it is the exclusive civil remedy for claims against an employer that provides DBA coverage for employees. Id. at 4. Plaintiffs further argue that USAID’s view that cooperative agreements are not contracts is reasonable, that the Court should find that the Cooperative Agreement here is not a contract, and that the Court should vacate its Order because the Order’s outcome was controlled by the Court’s “misunderstanding” that the Cooperative Agreement is a contract covered by the DBA. Id. at 12-13.
Plaintiffs succinctly summarize their argument that this Court should vacate its June 19th Order pursuant to Rule 59(e) as follows: “Plaintiffs have (1) new evidence that was unknown to them prior to the entry of the Court’s order; (2) the legal result of which makes clearly erroneous the Court’s prior finding of no subject-matter jurisdiction; and (3) vacating the Order as it pertains to jurisdiction over the claims against CHF would prevent manifest injustice to the Plaintiffs, allowing a merit-based determination of their claims.” Id. at 3.
CHF argues that Plaintiffs’ alleged “newly-discovered evidence” is USAID policy guidance that was available to Plaintiffs throughout the proceedings in this matter. (Doc. No. 43 at 2). CHF argues that Plaintiffs are attempting to present evidence and arguments that could have been presented prior to the Court’s entry of judgment, and that Rule 59 does not permit Plaintiffs to address a new legal theory or to present evidence that Plaintiffs could have presented before the Court entered its Order dismissing this action. Id. Finally, CHF maintains that the Court’s Order does not make a clear error of law, or deliver manifest injustice to Plaintiffs, as it is undisputed that: “(1) CHF provided Mr. Vance with DBA coverage; (2) CHF, Plaintiffs, the DBA carrier, and the Department of Labor (‘DOL’) agreed that his death was covered by the DBA; and (3) the DOL approved, and Plaintiffs have received, payment of DBA compensation.” Id. at 3. Defendant further claims that the “DBA is quite clear that its coverage is an exclusive remedy.” Id.
The Court is unconvinced that Plaintiffs have uncovered any “newly-discovered evidence” that was not accessible to them prior to the Court’s June 19th Order. The USAID policy guidance was available to Plaintiffs via the Internet well in advance of the Court’s Order. Even if the Plaintiffs only found this information after the Court entered its Order, “reasonable diligence” would have uncovered this information before the hearing. See Boryan v. United States,
With respect to Plaintiffs’ argument that the Court’s Order is marred by a “clear error of law” because the Court
The Court also finds no manifest injustice here because Plaintiffs are receiving thеir full remedies under the law. CHF provided Mr. Vance with DBA coverage. CHF, Plaintiffs, the DBA carrier, and the DOL agreed that his death was covered by the DBA. The DOL approved, and Plaintiffs have received, payment of DBA compensation. The benefits of that coverage are Plaintiffs’ exclusive remedy. See 42 U.S.C. § 1651(c) (“The liability of an employer ... under [the DBA] shall be exclusive and in place of all other liability of such employer .... ”); Fisher v. Halliburton,
Accordingly, the Court will deny Plaintiffs’ Motion to Vacate (Doc. No. 40), and need not reach Plaintiffs’ argument that the Cooperative Agreement is not a “contract” as that term is used in the DBA.
Conclusion
For the foregoing reasons, Plaintiffs’ Rule 59 Motion to Vacate Order Dismissing Case Against CHF International, Inc., Based on Newly Discovered Evidence that the Defеnse Base Act Does Not Apply (Doc. No. 40) will be denied. Because this holding dismisses the entire action, the Court denies as moot United Resources Group Pte. Ltd.’s Motion on Consent for Entry of Judgment Pursuant to Fed. R.Civ.P. 54(b) (Doc. No. 44). A separate order follows.
Notes
. "A very narrow exception to the DBA’s exclusive liability provision applies where the employer acted with the specific intent to injure the employee.” Fisher v. Halliburton,
. The parties agree that the Mutual Security Act of 1954 cited in the DBA was repealed and superseded by the Foreign Assistance Act of 1961. See Overseas African Const. Corp. v. McMullen,
. During the motions hearing, Plaintiffs’ counsel аrgued that jurisdictional discovery is necessary before this Court acts on the pending motion. This Court disagrees. CHF has provided Plaintiffs with the Cooperative Agreement, DOL Notice, and the Order Approving Stipulation of the Parties. These documents demonstrate that the Project was funded pursuant to the FAA, that Mr. Vance’s death was covered by CHF's DBA insurance policy, and that Mr. Vance’s beneficiaries received DBA benefits.
. Maryland’s long-arm statute enumerates six circumstances whereby a court may exercise personal jurisdiction over a defendant. It states that a court may exercise personal jurisdiction over a person who, directly or by an agent:
(1) [transacts any business or performs any character of work or service in the State; (2) [cjontracts to supply goods, food, services, or manufactured products in the State; (3) [clauses tortious injury in the State by an act or omission in the State; (4) [clauses tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State; (5) [h]as aninterest in, uses, or possesses real property in the State; or (6) [c]ontracts to insure or act as surety for, or on, any person, property, risk, contract, obligation, or agreement located, executed, or to be performed within the State at the time the contract is made, unless the parties otherwise provide in writing.
Md. Code Ann., Cts. & Jud. Proc. § 6-103(b).
. If the Plaintiffs’ new theory had been advanced prior to this Court's June 19, 2012 Order, the result would not have changed. For the reasons set forth in CHF's Opposition, the Court concludes that the argument that the DBA remedy is not exclusive is unavailing. See Doc. No. 43 at 14-17.