The opinion of the court was delivered by: Keith P. Ellison United States District Judge
Pending before the Court are the KBR Defendants' Motion for Partial Summary Judgment (Doc. No. 150), the KBR Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Partial Summary Judgment (Doc. No. 173), and the KBR Defendants' Motion for Leave of Court to File Reply Brief in Excess of 10-Page Limit (Doc. No. 188).*fn1 Upon considering the Motions, all responses thereto, and the applicable law, the Court finds that the KBR Defendants' Motion for Partial Summary Judgment (Doc. No. 150) must be granted in part and denied in part, the KBR Defendants' Motion to Dismiss for Lack of Subject Matter Jurisdiction and Motion for Partial Summary Judgment (Doc. No. 173) must be granted in part and denied in part, and the KBR Defendants' Motion for Leave of Court to File Reply Brief in Excess of 10-Page Limit (Doc. No. 188) must be granted.*fn2
This lawsuit arises from events that occurred while Plaintiff Jamie Leigh Jones ("Plaintiff" or "Jones") was employed by Defendants Halliburton Company d/b/a KBR Kellogg Brown & Root (KBR), Kellogg Brown & Root, Services, Inc., Kellogg Brown & Root International, Inc., Kellogg Brown & Root, LLC, Kellogg Brown & Root, Inc., Kellogg Brown & Root (KBR), Inc., KBR Technical Services, Inc., and Overseas Administrative Services, Ltd. (collectively, the "KBR Defendants" or "KBR").*fn3 We set forth the following undisputed facts that are relevant to disposition of the pending motions.
Prior to July, 2005, Jones worked for the KBR Defendants in Houston, Texas as an administrative assistant. On July 15, 2005, Jones signed an employment agreement with Defendant Overseas Administration Services, Ltd. ("OAS"), in which she agreed to provide support services to the United States military and to be stationed in Iraq (the "Employment Agreement"). (Doc. No. 150 Ex. E.) OAS hired Jones as part of the LOGCAP III contract, under which some of the KBR Defendants provided support services to the United States military in Iraq. (Curfman Aff. ¶ 4; Doc. No. 173, Ex. B.) Paragraph 4 of the Employment Agreement contained the following provision: "Your sole recourse for any injury, illness, or death arising out of or in the course of your employment under this Agreement shall be as determined under the provisions of the Defense Base Act." (Doc. No. 173, Ex. C at 1.)
Not long after signing the Employment Agreement, Jones flew to Baghdad, Iraq to begin her assignment with the KBR Defendants. On July 25, 2005, Jones reported for duty at the KBR Defendants' headquarters, which was located in the "Green Zone" of Baghdad. Camp Hope, the housing quarters for KBR employees, was also located in the Green Zone. (Tumbarella Dep. 10:9-10, 11:3-5; Andino Dep. 28:1-2, 49:2-5.) Jones arrived at the KBR headquarters to replace an IT specialist named Sara Tumbarella (also known as Sara Simco). (Tumbarella Dep. 10:22-11:8, 83:13-18.) On July 27, 2005, Jones was transferred from the KBR Defendants' headquarters to the United States Mission Iraq ("USMI") facility to work. (Tumbarella Dep. 23:22-24:1; Adams Dep. 7:3-5, 10:2-4.) Sometime during the evening of July 27, 2005 and the early morning of July 28, 2005, Jones and Defendant Charles Bortz ("Bortz") engaged in sexual intercourse at her room in the Camp Hope barracks. (Bortz Dep. 67:9-15, 93:10-19; Tumbarella Dep. 23:9-16.)
On the morning of July 28, 2005, Jones arrived at the USMI facility to begin work for the day. (Adams Dep. 16:10-12.) After her arrival, Jones contacted a fellow KBR employee, Pete Arroyo ("Arroyo"), and told him that she had been raped by Bortz. (Doc. No. 159, Ex. 12 at 2.) William Goodgine, KBR's security manager, was notified of the rape and he, in turn, notified Ron Boutwell, KBR's human resources manager, and Gabriel Andino ("Andino"), KBR's project manager for the USMI. (Andino Dep. 25:7-16, 116:19-23; Doc No. 159, Ex. 12 at 2.)
Jones was taken to the 86th Combat Support Hospital, also in the Green Zone and sometimes referred to as "86 CASH." (Schulz Dep. 8:21-23, 10:1-3; Doc. No. 159, Ex. 20 at 1.) Jones was accompanied by Kristen Rumba ("Rumba"), a USMI physician's assistant. (Doc. No. 159, Ex. 20 at 1.) Dr. Jodi Schulz ("Schulz"), a staff gynecologist working for the U.S. Army, examined Jones. (Schulz Dep. 13:23-25, 74:10-12.) Schulz performed a sexual assault examination ("SAE") kit and took handwritten notes of her exam of Jones. (Schulz Dep. 14:12-19:7, 26:9-10.) The SAE or "rape" kit was taken by KBR personnel from the hospital to a KBR facility, where it was placed in a safe. (Goodgine Dep. 141:11-142:14.)
Two KBR security personnel accompanied Jones from the hospital to a KBR trailer in Camp Hope, away from her barracks. (Goodgine Dep. 19:13-20:22; Andino Dep. 118:9-16.) Guards were placed outside of the KBR trailer while Jones remained inside. (Goodgine Dep. 21:15-21, 24:2.) A KBR HR employee named Jamie Armstrong ("Armstrong") asked Jones to provide a statement, which both Jones and Armstrong wrote while Jones was in the KBR trailer. (Armstrong Dep. 19:17-22; Goodgine Dep. 27:5-6.) Goodgine and Boutwell joined Armstrong in the trailer with Jones. (Goodgine Dep. 34:5-11.) Goodgine describes Jones as looking "frightened and perplexed" when he met with her in the trailer. (Id. 38:13, 161:12-14.)
Heidi McMichael ("McMichael") and Matthew McCormack ("McCormack"), two U.S. Department of State ("DOS") employees that had been notified of Jones's reported rape, arrived at the KBR trailer to interview Jones and take custody of her from the KBR trailer. (Goodgine Dep. 27:7-14; Doc. No. 159, Ex. 12 at 2.) From this point forward, the investigation of Jones's alleged rape was under the control of the DOS. (Doc. No. 159, Ex. 20 at 2.) Goodgine and Andino met with Jones, McMichael, and other DOS employees on July 29, 2005. (Goodgine Dep. 38:22-39:9.) During the meeting, which lasted a few hours, Jones asked whether she would continue receiving her salary, since Goodgine had told her previously that she would no longer be paid.*fn4 (Id. 40:9-18.) Employees of the KBR Defendants told Jones that she had essentially two choices: (1) to "stay and get over it"; or (2) to go home with "no guarantee of a job" either in Iraq or back in Houston. (Doc. No. 159, Ex. 1 at 3.) Jones left Iraq and returned to the United States.*fn5
Jones filed a Charge of Discrimination ("EEOC Charge") with the Equal Employment Opportunity Commission ("EEOC") in October 2005. (Doc. No. 150 Ex. B.) In the Charge, Jones stated that the discrimination was based on "sex" and had occurred between July 25, 2005 and July 28, 2005. (Id.) Jones described the particulars of the discrimination as being housed in an all-male barracks, which created a hostile work environment, and being drugged and sexually assaulted in her barracks room. She also stated that the KBR Defendants had not responded to her emails regarding her housing in the all male barracks. (Id.) Jones's Amended Charge of Discrimination filed in January 2006 was substantially similar to her original EEOC Charge. (Doc. No. 150 Ex. C.) The EEOC conducted an investigation based on the EEOC Charge and issued a Letter of Determination finding cause that the KBR Defendants had violated Title VII of the Civil Rights Act of 1964. (Doc. No. 150 Ex. D at 2.)
Jones filed suit against the KBR Defendants, Bortz, Iler, and several John Doe rapists. In her Fourth Amended Complaint, Jones asserts claims of: (1) negligence by the some of the KBR Defendants; (2) negligent undertaking by the KBR Defendants; (3) sexual harassment and hostile work environment created by the KBR Defendants; (4) retaliation by the KBR Defendants; (5) breach of contract by the KBR Defendants; (6) fraud in the inducement to enter the employment contract by the KBR Defendants; (7) fraud in the inducement to agree to arbitration by the KBR Defendants; (8) assault and battery by Bortz and the John Doe rapists; and (9) intentional infliction of emotional distress by the KBR Defendants.*fn6 (Doc. No. 53.)
In a prior memorandum and order (the "May 2008 Order"), we addressed the KBR Defendants' motion to compel arbitration of Jones's claims. (Doc. No. 65.) After holding that a valid agreement to arbitrate existed between Jones and the KBR Defendants, we held that four of Jones's claims fell beyond the reach of the broad arbitration provision. (Id. at 15-16.) Specifically, we held that Jones was not compelled to arbitrate her claims of: (1) assault and battery; (2) intentional infliction of emotional distress arising out of the alleged assault; (3) negligent hiring, retention, and supervision of employees involved in the alleged assault; and (4) false imprisonment.*fn7 (Id. at 24.) We compelled Jones's remaining claims to arbitration and stayed the litigation of the non-arbitrable claims until the parties completed arbitration of the arbitrable claims. (Id.)
The KBR Defendants appealed the holdings of the May 2008 Order to the Court of Appeals for the Fifth Circuit. The Fifth Circuit affirmed the May 2008 Order and remanded (the "Fifth Circuit Order"). (Doc. No. 80.) The Court then vacated the stay upon the parties' representation that they would be amenable to proceeding with the four non-arbitrable claims while the other claims proceeded in arbitration. (Doc. No. 85.) The parties have subsequently agreed to withdraw Jones's arbitrable claims from the arbitration proceeding and litigate them in this Court.*fn8 (Doc. No. 195). As such, Jones's live claims against Defendants are the following:
(1) negligence by the some of the KBR Defendants; (2) negligent undertaking by the KBR Defendants; (3) sexual harassment and hostile work environment created by the KBR Defendants; (4) retaliation by the KBR Defendants; (5) breach of contract by the KBR Defendants; (6) fraud in the inducement to enter the employment contract by the KBR Defendants; (7) fraud in the inducement to agree to arbitration by the KBR Defendants; (8) assault and battery by Bortz and the John Doe rapists; (9) intentional infliction of emotional distress by the KBR Defendants; and (10) false imprisonment.
II.SUBJECT MATTER JURISDICTION
The KBR Defendants have moved to dismiss Jones's common law claims against them for lack of subject matter jurisdiction. Specifically, KBR contends that the Defense Base Act ("DBA"), 42 U.S.C. § 1651, et seq., provides the exclusive remedy by which Jones can recover on her common law claims, and preempts all other liability under the common law on the part of the KBR Defendants for these injuries. Jones contends that the May 2008 Order and the Fifth Circuit Order has already resolved this issue in her favor. According to Jones, these prior rulings have held that Jones's claims do not arise out of or in the course of her employment, and thus do not fall within the scope of the DBA.
A.Legal Standard -- Subject Matter Jurisdiction
The court must dismiss a case when the plaintiff fails to establish subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). "It is incumbent on all federal courts to dismiss an action whenever it appears that subject matter jurisdiction is lacking." Stockman v. Federal Election Com'n, 138 F.3d 144, 151 (5th Cir. 1998). A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case. Home Builders Ass'n of Mississippi, Inc. v. City of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998) (internal quotation marks and citation omitted). The burden of establishing federal jurisdiction rests on the party seeking the federal forum. Stockman, 138 F.3d at 151.
A district court may determine its subject matter jurisdiction based on "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Rodriguez v. Christus Spohn Health Sys. Corp., 628 F.3d 731, 734 (5th Cir. 2010) (quoting Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)). An attack on subject matter jurisdiction may be "facial," where the district court accepts the facts in the plaintiff's complaint as true, or "factual," where the trial court is free to weigh the evidence and to make factual findings decisive of determination. Williamson, 645 F.2d at 413-14. "If a defendant makes a 'factual attack' upon the court's subject matter jurisdiction over the lawsuit, the defendant submits affidavits, testimony, or other evidentiary materials. In the latter case a plaintiff is also required to submit facts through some evidentiary method and has the burden of proving by a preponderance of the evidence that the trial court does have subject matter jurisdiction." Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
B.Prior Rulings in the Case
This is not the first time that the Court has been asked to take note of the DBA in this case. The KBR Defendants moved in 2007 to compel arbitration of Jones's claims against them. (Doc. No. 45.) We disposed of that motion in the May 2008 Order. The May 2008 Order specifically analyzed whether Jones's claims against the KBR Defendant fell within the scope of the valid arbitration clause in her employment agreement. We noted that the arbitration clause was a "broad" provision because it covered "any and all claims . . . related to your employment . . . ." (May 2008 Order at 15.) Despite the broad nature of the arbitration provision, we found that four claims brought by Jones did not relate to her employment. These four claims were unrelated to her employment because she "could maintain these claims without reference to her own employment." (May 2008 Order at 16. (emphasis added)) In arriving at this conclusion, we addressed the KBR Defendants' argument that the Fifth Circuit's interpretation of "scope of employment" in the context of the DBA should also apply in the context of a broad arbitration provision. We reviewed the Fifth Circuit's holding in O'Keeffe v. Pan American Airways, Inc., 338 F.2d 319 (5th Cir. 1964), that an accident involving a man killed in a traffic accident on the island of Grand Turk occurred within the scope of the man's employment. The Fifth Circuit had noted in O'Keeffe that "personal activities of a social or recreational nature must be considered as incident to the overseas employment relationship." Id. at 322. We also noted that Jones was receiving worker's compensation payments under the DBA. However, we declined to incorporate the liberal interpretation of the term "scope of employment" in the worker's compensation context into the interpretation of an arbitration provision. (May 2008 Order at 20.) We did not address whether the DBA was Jones's exclusive remedy for her common law claims, nor did we find that Jones's claims fell within the scope of the DBA.*fn9
The Fifth Circuit affirmed our May 2008 Order. (Doc. No. 80.) In so doing, the panel concluded that the liberal construction of "scope of employment" for purposes of workers' compensation is not necessarily the same standard to be applied when construing an arbitration provision containing similar language. (Id. at 15.) The panel noted that, in O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951), the Supreme Court held that a worker was entitled to compensation under the DBA not just in situations involving a causal relationship between the accident and the nature of the worker's employment, but also in situations where the obligations or conditions of employment create a "zone of special danger out of which the injuries arose." Id. at 506-07. As such, the Fifth Circuit did not think it was contradictory for Jones to receive workers' compensation under a standard that allows recovery solely because her employment created the "zone of special danger" which led to her injuries, yet claim, in the more restrictive context of arbitration, that the allegations this Court deemed non-arbitrable did not have a "significant relationship" to her employment contract. (Doc. No. 80 at 16-17.) Significantly, the panel analyzed several cases that had awarded workers' compensation to individuals based on injuries suffered while the individuals were living in employer-provided housing and concluded that, "[e]ven within the context of workers compensation, . . . simply living in employer-provided housing does not mean an injury occurring in that housing necessarily arises 'out of and in the course of employment'." (Id. at 17.) The Fifth Circuit did not make any finding as to whether Jones's injuries fell within the scope of the DBA.
As the preceding discussion shows, both this Court and the Fifth Circuit have examined the applicability of the DBA to this case, but have done so only to determine whether Jones's claims are "related to" her employment in the context of the arbitration agreement. Neither the Fifth Circuit Order nor our May 2008 Order answered the questions presented here: (1) whether Jones's injuries arose out of and in the course of her employment under the DBA; and (2) whether, by seeking and obtaining compensation under the DBA, Jones is barred from bringing her common law claims in this Court. We address these questions in turn below.
C.Evidence Presented for Our Review
The KBR Defendants state that they are making a "factual" attack on subject matter jurisdiction. As evidence in support of their motion, the KBR Defendants present the LOGCAP III contract between the KBR Defendants and the U.S. government, Jones's Employment Agreement, the KBR Code of Business Conduct, Bortz's Acknowledgment of the KBR Code of Business Conduct, and an affidavit of Mark Lowes describing the legal relationship among the KBR Defendants. In addition, the KBR Defendants cite to various portions of the Fourth Amended Complaint in support of their argument. They do not use any of the evidence submitted in support of their motion to contradict allegations in the Fourth Amended Complaint. In turn, Jones does not dispute any of the evidence proffered by the KBR Defendants. She proffers the Employer's First Report of Injury form submitted by the KBR Defendants to the U.S. Department of Labor, Office of Workers' Compensation Programs ("OWCP"). In reply, the KBR Defendants proffer stipulations entered in an OWCP proceeding between Jones and the KBR Defendants. None of these documents are disputed as having been submitted in the OWCP proceeding. Thus, we rest our analysis on the complaint supplemented by undisputed facts evidenced in the record. See Rodriguez, 628 F.3d at 734.
D.Whether Jones's Injuries are Covered by the DBA
The first question we must address is whether Jones's injuries fall within the scope of the DBA. The DBA extends and incorporates the provisions of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 901, et seq., to provide federal workers' compensation coverage for injuries suffered by certain classes of employees working outside the continental United States, including on military bases. 42 U.S.C. § 1651(a). The purpose of the DBA is to "provide uniformity and certainty in availability of compensation for injured employees on military bases outside of the United States." Davila-Perez v. Lockheed Martin Corp., 202 F.3d 464, 468 (1st Cir. 2000). A covered "injury" under the LHWCA is an: accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.
33 U.S.C. § 902(2). Compensation under the LHWCA is payable "irrespective of fault as a cause of the injury, and the concept of proximate cause, as it is applied in the law of torts, is not applicable." Southern Stevedoring Co. v. Henderson, 175 F.2d 863, 864 (5th Cir. 1949).
The remedy provided by the LHWCA "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 . . . ." 33 U.S.C. § 905(a); see also 42 U.S.C. § 1651(c) (exclusivity provision of DBA). "Section 5 of the Longshoremen's and Harbor Workers' Compensation Act destroys any underlying tort liability of the employer." Robin v. Sun Oil Co., 548 F.2d 554, 556 (5th Cir. 1977); see also Nations v. Morris, 483 F.2d 577, 587-88 (5th Cir. 1973) (exclusivity provision of LHWCA "completely obliterates the rights at common, civil or maritime law against Employer and fellow employee"); Pulley v. Peter Kiewit Son's Co., 223 F.2d 191, 194 (7th Cir. 1955). "[A]n employer that secures insurance coverage for its employees as required by the DBA is entitled to immunity under the LHWCA." Colon v. U.S. Dep't of Navy, 223 F. Supp. 2d 368, 369 (D. P.R. 2002) (citing Davila-Perez, 202 F.3d at 468-69).
The exclusive remedy provision of the DBA clearly requires that, if Jones's injuries fall within the scope of the DBA, she must bring her claims under the DBA and cannot pursue common law claims against the KBR Defendants arising out of her injuries. Jones does contest that the DBA provides an exclusive remedy for a covered injury. Instead, she argues that her injuries do not fall within the scope of the DBA. Thus, we must determine whether Jones's injuries are "accidental injure[ies] or death arising out of and in the course of employment."*fn10
1. Arising Out of and in the Course of Employment
The DBA covers injuries that arise out of or in the course of employment, a standard that relaxes the common law notions of causation:
Workmen's compensation is not confined by common-law conceptions of scope of employment. The test of recovery is not a causal relation between the nature of employment of the injured person and the accident. Nor is it necessary that the employee be engaged at the time of the injury in activity of benefit to his employer. All that is required is that the 'obligations or conditions' of employment create the 'zone of special danger' out of which the injury arose.
O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 506-07 (1951) (omitting internal citations); see also Gondeck v. Pan American World Airways, Inc., 382 U.S. 25, 27 (1965). In O'Leary, an employee of a government contractor operating in Guam drowned while attempting to rescue two swimmers. The contractor operated a recreation center for its employees near the shoreline, along which ran a dangerous channel where posted signs prohibited swimming. The deceased employee had seen the swimmers in distress while waiting for a bus at the recreation center. The Supreme Court held that the employee's death was a covered injury because the employee, at the time of his drowning, was using the recreational facilities sponsored and provided by his employer for the use of its employees and that such participation was an incident of his employment. 340 U.S. at 506. The Court noted that the employee's death "may be fairly attributable to the risks of the employment." Id. at 509. "A reasonable rescue attempt, like pursuit in aid ...