                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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