                               PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 12-2482


ROGER HOSCHAR, and JUDY HOSCHAR,

                 Plaintiffs – Appellants,

           v.

APPALACHIAN POWER COMPANY,

                 Defendant – Appellee,

           and

INDUSTRIAL CONTRACTORS, INC.,

                 Defendant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
Chief District Judge. (3:11-cv-00152)


Argued:   November 6, 2013                  Decided:   January 7, 2014


Before GREGORY, DAVIS, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Gregory and Judge Davis joined.


ARGUED: Alexander Deane McLaughlin, THE CALWELL PRACTICE, PLLC,
Charleston, West Virginia, for Appellants.         Daniel Rhys
Michelmore, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for
Appellee.  ON BRIEF:  John Skaggs, THE CALWELL PRACTICE, PLLC,
Charleston, West Virginia, for Appellants.    Brian R. Swiger,
Michael P. Leahey, JACKSON   KELLY   PLLC,   Charleston,   West
Virginia, for Appellee.




                             2
THACKER, Circuit Judge:

            Appellants,       Roger       and   Judy     Hoschar      (collectively

“Appellants”), filed this civil action in the Circuit Court of

Mason County, West Virginia, against Appellee, Appalachian Power

Company   (“APCO”),     and    Defendant,       Industrial      Contractors,    Inc.

(“ICI”), seeking damages for an infectious lung disease called

histoplasmosis       that    Roger    Hoschar        (“Mr.   Hoschar”)     allegedly

contracted while working as a boilermaker at one of APCO’s coal-

fired power plants.         APCO removed the case to the United States

District Court for the Southern District of West Virginia on the

basis of diversity jurisdiction pursuant to 28 U.S.C. § 1332.

Appellants, West Virginia residents, sought to remand the action

to state court, arguing that APCO’s principal place of business

is in Charleston, West Virginia, and that complete diversity is

therefore    lacking.         The     district       court   denied      Appellants’

motion, concluding that under the “nerve center” test, APCO’s

principal    place     of    business      is   in    Columbus,    Ohio.       After

discovery, the district court awarded summary judgment to APCO,

holding that, pursuant to West Virginia law, APCO did not owe a

duty to Mr. Hoschar.

            In this appeal, Appellants challenge both the district

court’s denial of the motion to remand and the district court’s

grant of APCO’s motion for summary judgment.                  Because the record

amply   demonstrates        that    the    location     where    APCO’s    officers

                                           3
direct, control, and coordinate APCO’s activities is Columbus,

Ohio,   we    conclude    that     APCO    has   carried        its    burden   of

establishing federal subject matter jurisdiction.                     With respect

to APCO’s motion for summary judgment, we hold that APCO did not

have    actual    or     constructive      knowledge       of     a      potential

histoplasmosis risk, and therefore, APCO did not owe Mr. Hoschar

a duty to guard against it.        Accordingly, we affirm.

                                      I.

                                      A.

             APCO owns the Philip Sporn power plant (“Sporn”) near

New Haven, West Virginia.          Sporn is a coal-fired power plant,

generating electricity by burning coal to create steam and then

passing the steam through a turbine.             The power plant has five

“precipitators,” which remove granular ash particles (“fly ash”)

from the gasses produced by burning coal.              When in operation, a

precipitator     generates       significant     heat,   which         can   cause

corrosion to its exterior steel siding and result in fly ash

leakage.

             ICI was hired by APCO to perform general maintenance

at Sporn, which included welding metal patches to the exterior

of the precipitators to prevent fly ash leakage.                      Mr. Hoschar

was a boilermaker employed by ICI from March 2006 to March 2007.

During that time, he worked exclusively at Sporn.                     His typical

maintenance assignment consisted of hanging from a “pick” --

                                       4
that is, a suspended platform like those used by window washers

-- and welding steel patches over corroded portions of the ducts

leading into and out of the Unit 5 precipitator (“Unit 5”).

During his time at Sporn, Mr. Hoschar frequently worked in and

around Unit 5, spending (by his estimate) at least five months

there.      Of    note,   he    did    not       spend   five   consecutive       months

working on Unit 5.             Rather, according to Mr. Hoschar’s work

records, he spent a total of 66 days performing elevated welding

work on the exterior of Unit 5 over the course of 13 months.

            Before      welding    any    steel         patches,     Mr.    Hoschar    and

other workers had to remove debris that had built up in the

steel channels.         Because Unit 5 is an outdoor structure, pigeons

sometimes perched on its steel channels and left their droppings

behind.           Therefore,      the        debris       usually         consisted     of

approximately three to four inch accumulations of bird manure

and two inch accumulations of fly ash.                     Mr. Hoschar removed the

debris    from    the   steel   channels         either    by   hand,      with   a   wire

brush, or using compressed air.                  When removing debris and while

welding the steel patches, Mr. Hoschar wore a respirator over

his face.

            In March 2007, Mr. Hoschar was terminated from his

employment       with   ICI.      In    2009,      as    part   of    a    routine    pre-

operative test before Mr. Hoschar underwent knee surgery, which

was unrelated to his work at Sporn, a chest x-ray revealed the

                                             5
presence of a mass on his right lung.                          Mr. Hoschar’s physician

feared    the    mass    was    cancerous          and     recommended      he   undergo    a

lobectomy to remove the portion of his lung containing the mass.

After a portion of Mr. Hoschar’s lung was removed, a biopsy

revealed that the mass was not cancer, but instead was a disease

called histoplasmosis.

            Histoplasmosis           is   an       infectious        disease     caused    by

inhaling the spores of a naturally occurring soil-based fungus

called     histoplasma        capsulatum.                The   histoplasma       capsulatum

fungus is endemic in the Ohio Valley region, in which Sporn is

located,    because      it    grows      best      in     soils   with     high   nitrogen

content.        Once an individual inhales the fungus, it colonizes

the lungs.           However, the vast majority of people infected by

histoplasmosis do not experience any symptoms of infection or

suffer any ill effects.

            While       Mr.     Hoschar            was     working     at      Sporn,     the

Occupational Safety and Health Administration (“OSHA”) website

maintained       a    page    entitled,     “Respiratory             Protection:       Hazard

Recognition.”         One of the reference documents found on that page

was a publication by the National Institute for Occupational

Safety and Health (“NIOSH”) called, “Histoplasmosis: Protecting

Workers     at       Risk”    (the     “NIOSH        Publication”).              The    NIOSH

Publication      explained      that      the       histoplasma       capsulatum       fungus

“seems to grow best in soils having a high nitrogen content,

                                               6
especially those enriched with bird manure or bat droppings.”

J.A. at 1052. 1      It further noted that the fungus “can be carried

on the wings, feet, and beaks of birds and infect soil under

roosting     sites    or     manure     accumulations    inside    or   outside

buildings.”    Id.

                                         B.

            On January 31, 2011, Appellants sued APCO and ICI for

negligence in the Circuit Court for Mason County, West Virginia,

seeking    damages     for    Mr.     Hoschar’s   histoplasmosis    infection.

Appellants    allege    Mr.    Hoschar    contracted    histoplasmosis    while

working at Sporn as a result of inhaling contaminated dust when

he swept out the mixtures of bird manure and fly ash that had

accumulated in Unit 5’s steel channels.                Appellants also allege

APCO did not provide any written or verbal warnings concerning

the presence of aged bird manure around Unit 5 or of the health

risks    associated    with    accumulations      of   bird   manure,   such   as

histoplasmosis.

            On March, 9, 2011, APCO removed this action to the

United States District Court for the Southern District of West

Virginia pursuant to 28 U.S.C. § 1332, explaining that APCO’s

principal place of business is in Columbus, Ohio, and complete


     1
       Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                          7
diversity therefore exists between Appellants and APCO and ICI. 2

Appellants filed a motion to remand the case to state court on

March 14, 2011, arguing that APCO’s principal place of business

is in Charleston, West Virginia, and complete diversity is thus

lacking.

                                              C.

               Prior to the initiation of this lawsuit, Appellants’

counsel     --    representing            other     clients      (also       West        Virginia

residents)       in    a    different      case    also      pending    in     the       Southern

District of West Virginia against APCO -- took the deposition of

Mark Dempsey, APCO’s Vice President of External Affairs.                                      The

deposition       was       conducted      pursuant      to    Federal       Rule     of     Civil

Procedure        30(b)(6),        which      required         APCO     to      designate        a

representative          to      testify     about       topics    relating          to     APCO’s

principal      place       of    business.         After      taking     the    deposition,

plaintiff’s counsel in that case filed a motion to remand the

action    to     West       Virginia      state     court.        That       case        settled,

however, before a decision on the motion to remand was issued.

Because the same jurisdictional issue arises in this litigation,

Appellants attached Dempsey’s Rule 30(b)(6) deposition taken in

the   other      case      to   his   motion       to   remand    in     this      case.       In

      2
       ICI is an Indiana corporation with its principal place of
business in Indiana.    ICI’s principal place of business was
never in dispute.



                                               8
opposing Appellants’ motion, APCO submitted an affidavit from

Dempsey.        The following description of the facts relevant to

APCO’s     principal           place     of   business    is    based     on   Dempsey’s

deposition testimony and his affidavit.

               APCO       --    a   subsidiary      of    American       Electric     Power

Company (“AEP”) -- is incorporated in Virginia and maintains

offices in Charleston, West Virginia and Columbus, Ohio.

               In     his       deposition,        Dempsey     testified       that    the

Charleston      office         is   an   “administrative       office,”     but     “[they]

refer to it as headquarters.”                  J.A. 86.      In fact, APCO’s website

lists Charleston as its headquarters.                        With respect to APCO’s

Charleston office being referred to as APCO’s “headquarters,”

Dempsey    testified,           “headquarters       is   probably    a    misnomer     when

applied to APCO.”               Id. at 107.          He explained that it became

known     as        the     headquarters       simply      because       APCO’s     former

president, Dana Waldo, lived in Charleston.                      Waldo is no longer

employed by APCO.

               According to Dempsey, of APCO’s 27 officers, only the

following five officers work in the Charleston office.                              Charles

Patton, APCO’s President and Chief Operating Officer, oversees

and directs all aspects of APCO’s day-to-day operations from

Charleston.          He coordinates the allocation of APCO’s resources

as well as APCO’s communication with employees and the public.

With respect to the employees who report directly to him, Patton

                                               9
performs a number of administrative tasks, including evaluating

job performance and assigning goals.                 Patton also acts as APCO’s

chief     representative      with     the       regulatory        agencies      in   West

Virginia,    Virginia,       and    Tennessee.         In    addition      to     Patton,

Philip     Wright,       APCO’s     Vice    President        of     Distribution,       is

responsible       for     overseeing       APCO’s     electricity         distribution

operation, which involves the actual delivery of electricity to

residential and business customers.                  Dempsey himself interacts

with state and local governments and monitors legislation that

affects APCO’s business.            Jeff LaFleur, APCO’s Vice President of

Generating     Assets,      oversees       the     operation        of   APCO’s       power

plants.       Lastly,       Chris     Potter,       APCO’s        Vice   President      of

Regulatory    Affairs,       oversees      APCO’s     regulatory         operations     in

West Virginia, Virginia, and Tennessee.

            The remaining 22 out of APCO’s 27 officers maintain

their offices in Columbus, Ohio.                    These officers include the

Chief Executive Officer, Chief Financial Officer, Secretary, and

Treasurer.        In addition, all nine of APCO’s directors are based

in   Columbus.       From    its    Columbus      office,     APCO’s      officers     are

responsible for: deciding the location and construction of power

plants      and      transmission          lines;     operating          hydroelectric

facilities,       pump   storage     facilities,      coal-fired         power    plants,

and gas power plants; negotiating and executing contracts for

the procurement of fuel for those generating plants; handling

                                           10
environmental       permitting     for     work         at    APCO’s      West     Virginia

generating    plants;      negotiating            and       executing      contracts      to

purchase    fleet     vehicles;    collecting           and       disbursing     revenues;

calculating     and      paying    taxes      owed           on    its    West    Virginia

facilities;    controlling        and    directing           filings      made    with   the

Securities and Exchange Commission (the “SEC”) and the Federal

Energy    Regulatory     Commission      (the          “FERC”);      determining     human

resource policies and codes of conduct; and overseeing APCO’s

legal affairs.

            The district court considered these facts and denied

Appellants’ motion to remand, finding that Columbus, Ohio, is

APCO’s principal place of business.                      The court explained that

although “many of the day-to-day business activities of [APCO]

are   conducted     in   Charleston[,]        .    .    .    the    ultimate     decision-

making power, which directs, controls, and coordinates the big-

picture    activities     of   [APCO],        is       carried      out   in     Columbus.”

Hoschar v. Appalachian Power Co., No. 3:11-152, 2011 WL 1671636,

at *4 (S.D. W. Va. May 3, 2011) (J.A. 172-73).                            Therefore, the

district court concluded that complete diversity existed between

the parties and that federal jurisdiction was proper.

            After the completion of discovery, APCO and ICI filed

separate motions for summary judgment, which the district court




                                         11
granted on November 30, 2012. 3             See Hoschar v. Appalachian Power

Co., 906 F. Supp. 2d 560, 567, 570 (S.D. W. Va. 2012) (J.A.

1366-67,    1372).         With   respect      to   APCO’s    motion    for    summary

judgment, the district court held that, as a matter of law, the

histoplasmosis hazard posed by the accumulations of aged bird

manure     was    not    reasonably       foreseeable        to     APCO,   and    APCO

therefore did not owe Mr. Hoschar a duty to protect against it.

See Hoschar, 906 F. Supp. 2d at 567 (J.A. 1366).                            Appellants

timely appealed both the district court’s denial of the motion

to remand and the district court’s grant of APCO’s motion for

summary judgment.          We possess jurisdiction pursuant to 28 U.S.C.

§ 1291.

                                          II.

            “Like       all   questions     implicating       the    subject      matter

jurisdiction of the federal courts, we review de novo the denial

of a motion to remand to state court.”                 Lontz v. Tharp, 413 F.3d

435, 439 (4th Cir. 2005) (citing Dixon v. Coburg Dairy, Inc.,

369 F.3d 811, 815-16 (4th Cir. 2004) (en banc)).                       The burden of

establishing federal subject matter jurisdiction “is placed upon

the   party      seeking      removal.”        Mulcahey      v.   Columbia     Organic

Chemicals Co., 29 F.3d 148, 151 (4th Cir. 1994) (citing Wilson

      3
       Appellants settled their case with ICI prior to briefing
this appeal. Therefore, ICI is no longer a party to this
litigation.



                                          12
v. Republic Iron & Steel Co., 257 U.S. 92, 97 (1921)).                                “We

review the district court’s factual findings with respect to

jurisdiction for clear error.”                  Velasco v. Gov’t of Indonesia,

370 F.3d 392, 398 (4th Cir. 2004).

            “We review a district court’s grant of a motion for

summary judgment de novo, applying the same legal standards as

the district court.”           Glynn v. EDO Corp., 710 F.3d 209, 213 (4th

Cir. 2013).       Summary judgment is appropriate where there are no

genuine issues of material fact and the moving party is entitled

to judgment as a matter of law.                   Fed. R. Civ. P. 56(a).             “In

determining whether a genuine issue of material fact exists, we

view the facts and draw all reasonable inferences in the light

most favorable to the non-moving party.”                       Glynn, 710 F.3d at

213.     However, to show that a genuine issue of material fact

exists, the non-moving party “must set forth specific facts that

go beyond the ‘mere existence of a scintilla of evidence.’”                          Id.

(quoting Anderson         v.    Liberty    Lobby,      Inc.,   477    U.S.    242,    252

(1986)).

                                          III.

            The threshold issue we must resolve is whether the

federal    courts    have       subject      matter     jurisdiction         over    this

dispute.     Appellants contend that in analyzing this question,

the    district    court       erroneously      held   that    complete       diversity

existed    among    the    parties    after       incorrectly        concluding      that

                                           13
APCO’s principal place of business is in Columbus, Ohio, rather

than in Charleston, West Virginia.                      Appellants argue that the

district court incorrectly applied the “nerve center” test, as

set forth by the Supreme Court in Hertz Corp. v. Friend, 559

U.S. 77, 92-93 (2010).                According to Appellants, both they and

APCO     are        West     Virginia    citizens,        which       means      diversity

jurisdiction does not exist.              We disagree.

                                             A.

               Although         originally    filed     in    West      Virginia        state

court, APCO removed this action to federal court pursuant to 28

U.S.C. § 1441.             Section 1441 provides, “any civil action brought

in a State court of which the district courts of the United

States     have         original    jurisdiction,       may     be     removed     by    the

defendant . . . to the district court of the United States for

the district and division embracing the place where such action

is pending.”            28 U.S.C. § 1441(a).

               APCO’s       claimed     basis     for    federal       subject        matter

jurisdiction in support of removal was diversity of citizenship.

Pursuant       to    28    U.S.C.   §   1332,     a   federal   district        court    has

original jurisdiction over all civil actions between citizens of

different states where the amount in controversy exceed $75,000.

28     U.S.C.       §     1332(a)(1).        Section     1332        requires    complete

diversity among the parties, meaning the citizenship of each

plaintiff       must       be    different    from      the   citizenship        of     each

                                             14
defendant.         See   Caterpillar    Inc.   v.      Lewis,    519    U.S.   61,   68

(1996).     For purposes of diversity jurisdiction, “a corporation

shall be deemed to be a citizen of every State . . . by which it

has been incorporated and of the State . . . where it has its

principal place of business.”           28 U.S.C. § 1332(c)(1).

            In     determining     a   corporation’s       principal       place     of

business, we previously employed two tests: the nerve center

test and the place of operations test.                 See Athena Auto., Inc v.

DiGregorio, 166 F.3d 288, 290 (4th Cir. 1999).                          However, the

Supreme Court in Hertz definitively held that, for purposes of

diversity        jurisdiction,    a    corporation’s       principal       place     of

business    is     its   “nerve   center.”       Hertz,    559    U.S.    at   80-81.

Accordingly, we apply the nerve center test to determine whether

APCO’s    principal      place    of   business       is   in    Charleston,       West

Virginia or Columbus, Ohio.

            In Hertz, the Supreme Court rejected the more general

“business        activities   test,”     which        measured    the     amount     of

business     a    corporation     conducted      in    a   particular      state     to

determine its principal place of business.                  See Hertz, 599 U.S.

at 93.      The Court explained, “administrative simplicity is a

major virtue in a jurisdictional statute,” and the nerve center

approach “is simple to apply comparatively speaking.”                          Id. at

94-95 (emphasis in original).             Nevertheless, the Supreme Court

recognized that there will be “hard cases.”                      Id. at 95.          For

                                         15
instance, “in this era of telecommuting, some corporations may

divide their command and coordinating functions among officers

who work at several different locations, perhaps communicating

over    the     Internet.”      Id.     at     95-96.       Even     under     these

circumstances, however, the nerve center test “points courts in

a single direction, towards the center of overall direction,

control, and coordination.”             Id. at 96.         Although the nerve

center test will not, in all instances, “automatically generate

a   result,”    it   nonetheless   “provides      a     sensible   test    that    is

relatively easier to apply.”          Id.

              As the Supreme Court explained, “the phrase ‘principal

place of business’ refers to the place where the corporation’s

high    level     officers    direct,        control,     and    coordinate       the

corporation’s activities.”         Hertz, 559 U.S. at 80.               This is the

corporation’s “nerve center.”            Id. at 80-81.          While the Court

noted that in practice, the nerve center “should normally be the

place where the corporation maintains its headquarters,” for a

headquarters to qualify as the nerve center, it must be “the

actual center of direction, control, and coordination, . . . and

not    simply   an   office   where   the     corporation       holds    its   board

meetings (for example, attended by directors and officers who

had traveled there for the occasion).”                  Id. at 93.       Similarly,

if the record reveals attempts at jurisdictional manipulation --

“for example, that the alleged ‘nerve center’ is nothing more

                                        16
than a mail drop box, a bare office with a computer, or the

location      of     an    annual       executive    retreat”     --    courts     should

analyze       “the        place     of     actual     direction,        control,     and

coordination, in the absence of such manipulation.”                       Id. at 97.

              The Supreme Court acknowledged that the nerve center

test “may in some cases produce results that seem to cut against

the basic rationale for 28 U.S.C. § 1332.”                        Hertz, 599 U.S. at

96.    As an illustration, the Court explained:

       [I]f the bulk of a company’s business activities
       visible to the public take place in New Jersey, while
       its top officers direct those activities just across
       the river in New York, the “principal place of
       business” is New York.   One could argue that members
       of the public in New Jersey would be less likely to be
       prejudiced against the corporation than persons in New
       York -- yet the corporation will still be entitled to
       remove a New Jersey state case to federal court. And
       note too that the same corporation would be unable to
       remove a New York state case to federal court, despite
       the New York public’s presumed prejudice against the
       corporation.

Id. (emphasis in original).                 Despite “such seeming anomalies,”

we    must    accept      them    “in    view   of   the   necessity      of   having   a

clearer       rule.”         Id.          Indeed,     “[a]ccepting        occasionally

counterintuitive results is the price the legal system must pay

to    avoid    overly       complex      jurisdictional        administration      while

producing      the     benefits      that    accompany     a     more   uniform    legal

system.”      Id.

              To date, the only decision from this Circuit to apply

Hertz is      Central       West    Virginia      Energy   Co.    v.    Mountain   State

                                             17
Carbon, LLC, 636 F.3d 101 (4th Cir. 2011).                           The plaintiff in

Mountain State Carbon was a West Virginia corporation, and it

brought     suit     in   federal     court      on     the     basis       of     diversity

jurisdiction.         Id.    at    102,    103.         One     of    the        defendants,

Severstal Wheeling, filed a motion to dismiss due to a lack of

complete diversity, arguing that its principal place of business

was in Wheeling, West Virginia.               Id. at 103.           We applied Hertz’s

nerve center test and held that Severstal Wheeling’s principal

place of business was in Dearborn, Michigan, which was where the

majority     of    corporate      officers      were    located       and    where     those

officers were responsible for oversight and strategic decision-

making.    Id. at 105-06.

             In support of our holding in Mountain State Carbon, we

focused particularly on the location with a critical mass of

controlling        corporate      officers,      observing          that    “[s]even       of

Severstal Wheeling’s eight corporate officers -- including its

chief     executive       officer,       chief        operating       officer,        chief

financial     officer,      and   general       counsel       and    secretary       --   all

maintain their offices in Dearborn, Michigan.”                        636 F.3d at 105.

“Only the eighth corporate officer, a vice president and general

manager, maintains his office in Wheeling, West Virginia.”                                Id.

As   such,    we     explained      that     even      though        the     “day-to-day”

operations    are     conducted     in    Wheeling,       Severstal         Wheeling      has

“fail[ed] to show . . . how any of this is relevant to the

                                           18
‘nerve center’ test under Hertz.”                 Id.     We concluded that if a

corporation’s day-to-day operations are managed in one state,

while its officers make significant corporate decisions and set

corporate policy in another, the principal place of business is

the latter.       See id. at 106.

                                        B.

               In view of the legal principles outlined above, we

conclude APCO has met its burden of establishing federal subject

matter jurisdiction.        In this case, the record demonstrates that

the place where APCO’s “officers direct, control, and coordinate

the corporation’s activities” is Columbus, Ohio.                          Hertz, 559

U.S. at 92-93.

               APCO’s   entire     Board     of    Directors       is    located     in

Columbus.       Additionally, from its office in Columbus, 22 out of

APCO’s 27 officers -- including its Chief Executive Officer,

Chief    Financial      Officer,     Secretary,         and    Treasurer       --   make

significant corporate decisions and set corporate policy such

that    they    direct,   control,    and    coordinate         APCO’s   activities.

Together, they decide the location and construction of power

plants and transmission lines, and they negotiate and execute

contracts for the procurement of fuel for APCO’s hydroelectric

facilities,      pump   storage    facilities,          coal-fired     power    plants,

and gas power plants; all of which are decisions at the core of

APCO’s    business.       The    Columbus    officers         handle    environmental

                                        19
permitting      for     work      at    APCO’s          West     Virginia    facilities      and

calculate and pay taxes owed on these facilities.                                    Moreover,

they   collect       and    disburse          revenues,          control    and     direct   the

filings made with the SEC and the FERC, determine human resource

policies and codes of conduct, and oversee APCO’s legal affairs.

            On the other hand, only five out of APCO’s 27 officers

are based in Charleston, West Virginia.                           The Charleston officers

are    responsible         for    implementing             the    large-scale       directives

received     from      Columbus         and        for     managing       APCO’s    day-to-day

operations      in     West      Virginia,         Virginia,        and    Tennessee.        For

example,     Patton        oversees       all           aspects    of     APCO’s    day-to-day

operations.           Wright         oversees       APCO’s        distribution      operations

group -- that is, “the guys in the line trucks and the service

trucks.”        J.A.    77.          Dempsey       interacts       with     state    and    local

government and monitors legislation, while LaFleur oversees the

operation of APCO’s power plants.                         And, finally, Potter oversees

the    regulatory       operations            in        West    Virginia,     Virginia,       and

Tennessee.

             The       responsibilities                  of      APCO’s     Charleston-based

officers are exactly the kinds of “day-to-day operations and

public interface” that we found insufficient in Mountain State

Carbon     to    support         a     finding           that     West    Virginia     is    the

corporation’s nerve center.                   See Mountain State Carbon, 636 F.3d

at 106.     Indeed, the corporation’s day-to-day operations are not

                                                   20
“relevant to the ‘nerve center’ test under Hertz.”                            Id. at 105.

When a corporation’s day-to-day operations are managed in one

state and its officers make significant corporate decisions and

set corporate policy in another, the corporation’s nerve center

and principal place of business is the latter.                           See id. at 106.

The record demonstrates that APCO’s day-to-day operations are

managed in Charleston, while its officers direct, control, and

coordinate APCO’s activities from Columbus.                            Therefore, APCO’s

principal place of business is in Columbus, Ohio.

               Appellants       further          contend         the     district       court

misapplied the nerve center test by looking to the location of

“ultimate”       control    over     APCO’s           activities,      rather    than     the

location       of   “actual”     control         over     APCO’s       activities.        See

Appellants’         Br.   13-14.          This     is     a    distinction      without     a

difference.         First, looking to the location of ultimate control

over a corporation’s activities is not inconsistent with Hertz.

This is because ultimate control is actual control, provided

that    ultimate      control    amounts         to     directing,      controlling,      and

coordinating the corporation’s activities.                         See Hertz, 559 U.S.

at     95-96    (explaining        that     some        corporations      “divide       their

command” among different locations but that the nerve center

test “points courts in a single direction, towards the center of

overall        direction,       control,          and         coordination”      (emphasis

supplied)).

                                             21
           Moreover, the Supreme Court’s use of the word “actual”

was   simply   in   the   context   of    distinguishing    a   nominal   nerve

center from a legitimate nerve center.                See Hertz, 559 U.S. at

93 (explaining that normally the corporation’s nerve center is

its headquarters, “provided that the headquarters is the actual

center of direction, control, and coordination . . . and not

simply an office where the corporation holds its board meetings”

(emphasis supplied)); id. at 97 (explaining that “if the record

reveals attempts at [jurisdictional] manipulation[,] . . . the

courts should instead take as the ‘nerve center’ the place of

actual    direction,       control,           and   coordination”   (emphasis

supplied)).     Therefore, under either phrasing, APCO’s principal

place of business is in Columbus, Ohio, because that is the

location where APCO’s officers direct, control, and coordinate

its activities -- actually and ultimately. 4




      4
        It is of no consequence that APCO’s parent company
maintains its headquarters in Columbus.      See Mountain State
Carbon, 636 F.3d at 107 (“[A]lmost all of Severstal Wheeling’s
own officers work out of Dearborn, Michigan, as do some of its
directors.    That they may do so from a building owned by
Severstal Wheeling’s parent company is irrelevant. And the fact
that they may also be engaged in affiliated companies’ business
activities is also of no import.”).       Of course, we do not
automatically impute a parent corporation’s principal place of
business to its subsidiary.   Instead, we focus on the location
of direction, control, and coordination of the subsidiary’s
activities.



                                         22
               Finally,    Appellants      argue      that     APCO’s      nerve     center

must be Charleston because some of APCO’s officers have referred

to the Charleston office as the company’s “headquarters.”                             And,

indeed,    APCO's    website       lists   Charleston        as    its     headquarters.

However, Dempsey’s Rule 30(b)(6) deposition clarified that the

use of the term “headquarters” to refer to APCO’s Charleston

office was a misnomer.              Rather, as Dempsey’s affidavit makes

clear, the “headquarters-type” decisions -- that is, setting the

overarching direction and control of APCO -- occur in Columbus.

To hold otherwise would run afoul of Hertz.

               As the Supreme Court in Hertz explained, “in practice

[a    corporation’s       nerve    center]      should   normally        be    the    place

where    the    corporation       maintains     its    headquarters           --   provided

that    the     headquarters       is    the    actual       center      of    direction,

control, and coordination.”              599 U.S. at 93 (emphasis supplied).

But “normally” does not mean “always,” and there is nothing in

Hertz to suggest that a company cannot refer to one office as

its    “headquarters”       while       maintaining      its      “nerve      center”   in

another office.       Cf. Mountain State Carbon, 636 F. 3d at 105 n.2

(considering a newspaper article, which referred to Wheeling,

West    Virginia,    as    the    corporation’s        headquarters,           and   citing

Hertz to explain that “[s]uch materials, however, do not convert

Wheeling, West Virginia into the place where the corporation’s



                                           23
high     level     officers       direct,        control,     and     coordinate      the

corporation’s activities” (internal quotation marks omitted)).

               Therefore,     the      focus      remains    on     the    location    of

direction,       control,        and     coordination       of    the      corporation’s

activities.            Because     the     record       demonstrates       that   APCO’s

Columbus    officers      are     responsible       for    directing,       controlling,

and coordinating APCO’s activities, we conclude that, pursuant

to the nerve center test, APCO’s principal place of business is

in Columbus, Ohio, and the parties are thus completely diverse.

                                            IV.

               Having concluded that the federal courts have subject

matter jurisdiction over this dispute, we must decide whether

the district court erred by granting APCO’s motion for summary

judgment.        The district court held that, as a matter of law,

APCO did not have actual or constructive knowledge that the bird

manure    on     its   premises        presented    a     potential       histoplasmosis

risk, and that APCO therefore did not owe Mr. Hoschar a duty to

protect against it.         We agree.

               Appellants    have      asserted     a     negligence      claim   against

APCO based on premises liability under West Virginia law.                              To

prevail on such a claim, a plaintiff must show: (1) the owner

owed a duty to the person injured; (2) that duty was breached;

and (3) the breach of the duty proximately caused (4) an injury.

Senkus v. Moore, 535 S.E.2d 724, 727 (W. Va. 2000).                               As the

                                            24
district court correctly concluded, APCO did not owe Mr. Hoschar

a duty of care as a matter of law.

                    Under West Virginia law, the question of whether a

duty       is   owed      turns   on    the   foreseeability      of    harm.      As    the

Supreme Court of Appeals of West Virginia has made clear, “[t]he

ultimate test of the existence of a duty to use care is found in

the foreseeability that harm may result if it is not exercised.”

Syl. Pt. 3, Sewell v. Gregory, 371 S.E.2d 82 (W. Va. 1988).5

“The       test       is,   would      the    ordinary     man   in    the    defendant’s

position, knowing what he knew or should have known, anticipate

that harm of the general nature of that suffered was likely to

result?”            Id.

                    In the employment context, an employer owes a duty to

provide         a    “reasonably       safe   place   to    work”      to    employees   of

independent contractors who are on the premises.                              Pasquale v.

Ohio Power Co., 418 S.E.2d 738, 751 (W. Va. 1992).                             “This duty

includes the duty to warn of latent defects existing before the

work is started that are known to the employer, but are not

readily observable by the employee.”                       Id.    It is well-settled

that “before [a premises] owner can be liable under a negligence


       5
       Pursuant to West Virginia’s Constitution, the Supreme
Court of Appeals of West Virginia articulates new points of law
through its syllabus.   See Walker v. Doe, 558 S.E.2d 290, 296
(W. Va. 2001) (citing W. Va. Const. art. VIII, § 4).



                                               25
theory, he must have had actual or constructive knowledge of the

defective condition which caused the injury.”                        Hawkins v. U.S.

Sports    Ass’n,      Inc.,     633    S.E.2d     31,    35    (W.   Va.    2006)        (per

curiam).

               In this case, Appellants argue that the existence and

availability       of     the    NIOSH      Publication         provided     APCO        with

knowledge of the danger of histoplasmosis, which gave rise to a

duty owed to Mr. Hoschar.              The NIOSH Publication, which appeared

on   OSHA’s     website     while     Mr.    Hoschar      was    working     at        Sporn,

explained that the histoplasma capsulatum fungus “seems to grow

best in soils having a high nitrogen content, especially those

enriched with bird manure or bat droppings.”                         J.A. 1052.            It

further noted that the fungus “can be carried on the wings,

feet, and beaks of birds and infect soil under roosting sites or

manure accumulations inside or outside buildings.”                          Id.        Aside

from   the     mere     existence     of    the   NIOSH       Publication    on     OSHA’s

website, however, Mr. Hoschar has offered zero evidence that

APCO     had    actual     or     constructive          knowledge     of     the       NIOSH

Publication      itself     or    that     APCO   had     actual     or    constructive

knowledge that the histoplasma capsulatum fungus was associated

with accumulations of bird manure.

               Turning    first       to    actual      knowledge,        there     is     no

evidence that APCO employees actually knew that the histoplasma

capsulatum      fungus     is    associated       with     accumulations          of     bird

                                            26
manure.         Of     course,       there       is    evidence       that       APCO       and   its

employees knew that birds were present at Sporn and that those

birds     left        accumulations         of    manure       at    Unit     5.            However,

knowledge of the existence of birds and their manure does not

mean that APCO actually knew that the histoplasma capsulatum

fungus was present at Sporn.                     See, e.g., Mowry v. Schmoll, 441

F.2d 1271, 1273 (8th Cir. 1971) (holding defendants’ general

knowledge       of     the     histoplasmosis          disease       “cannot       in       any   way

constitute       evidence        that      the    defendants        knew     or    should         have

known that the attic would contain spores from the fungus”);

Henderson v. Volpe-Vito, Inc., No. 266515, 2006 WL 1751832, at

*3   (Mich.      Ct.     App.    June      27,      2006)   (unpublished           per       curiam)

(determining that landowner’s acknowledgement of the presence of

geese     and    their        feces     did      not    “attenuate         into        an    implied

knowledge        of     the     fungus,       the      spores[,]      and        the    dangerous

condition       of     [landowner]’s          land”).          Indeed,       Appellants’           own

experts     could        not     definitively            say      that     the         histoplasma

capsulatum fungus actually existed at Sporn, and Appellants did

not conduct any tests to determine whether it was, in fact,

actually present there.                    Therefore, APCO did not have actual

knowledge       that     the    bird       manure      on   its     premises       presented        a

potential histoplasmosis risk.

              Turning         next    to    constructive            knowledge,         Appellants

argue     that        because     the      NIOSH       Publication         was     disseminated

                                                 27
through various means and was generally available to APCO, the

risk of histoplasmosis was foreseeable to APCO and gave rise to

a duty to at least warn Mr. Hoschar of the bird manure and the

risk   of    histoplasmosis.              The    mere    existence       of       the    NIOSH

Publication, however, is insufficient.                       Indeed, APCO cannot be

charged with knowledge of what is contained within the NIOSH

Publication     if      APCO   had   no     reason      to   even   be   aware          of   its

existence.      See Black’s Law Dictionary (9th ed. 2009) (defining

constructive knowledge as “[k]nowledge that one using reasonable

care or diligence should have, and therefore that is attributed

by law to a given person.”).                Without any evidence that APCO was

aware or should have been aware of the NIOSH Publication or its

contents, APCO could not have constructive knowledge that the

bird   manure      on   its    premises      may     have    presented        a    potential

histoplasmosis risk.

             Nevertheless, Appellants contend that the question of

whether     APCO    knew      or   should    have    known     of   a    histoplasmosis

hazard on its premises is necessarily a factual determination

that must be made by a jury in every instance.                                Contrary to

Appellants’        assertion,        however,        this      question           does       not

automatically go to a jury.                 The determination of whether APCO

had actual or constructive knowledge of a histoplasmosis risk

relates to whether a legal duty was owed to Mr. Hoschar in the

first place.       See Hawkins, 633 S.E.2d at 35 (“[B]efore an owner

                                            28
can be liable under a negligence theory, he must have had actual

or   constructive     knowledge      of     the     defective     condition    which

caused the injury.”).          It is true that often, whether or not an

individual has actual or constructive knowledge of a risk is a

question    of     fact     that   cannot      be   resolved    without     weighing

conflicting      evidence.         But    where,     as   here,     the   facts    are

undisputed, the district court can make this determination as a

matter of law.        See Fed. R. Civ. P. 56(a).                  Here, Appellants

failed to present any evidence to create a genuine issue of

material fact concerning whether APCO had actual or constructive

knowledge     of      the      histoplasmosis         risks       associated      with

accumulations of bird manure.                  Therefore, the district court

properly granted APCO’s motion for summary judgment. 6




     6
       In the alternative, APCO argues -- as it did in the
district court -- that its motion for summary judgment should be
granted because Appellants cannot satisfy the causation element
of their negligence claim.      See Senkus, 535 S.E.2d at 727
(explaining that to prevail on a negligence claim based on
premises liability, a plaintiff must show that the breach of a
duty proximately caused an injury). The district court found it
unnecessary to evaluate APCO’s causation argument, having
concluded that Mr. Hoschar could not satisfy the duty element of
his negligence claim.    While we note that there are serious
causation concerns here, we need not address APCO’s alternative
argument inasmuch as our conclusion that APCO owed no legal duty
to Mr. Hoschar is sufficient to affirm the district court’s
order granting APCO’s motion for summary judgment.



                                          29
                               V.

          Pursuant to the foregoing, the district court’s denial

of Appellants’ motion to remand and the district court’s grant

of APCO’s motion for summary judgment is

                                                       AFFIRMED.




                               30
