Browning v. Big Lots Stores, Inc.
MEMORANDUM OPINION AND ORDER granting in part and denying in part defendant Big Lots Stores, Inc.'s 4 MOTION to Dismiss Counts II and III, granting said motion with respect to Count II of the plaintiff's complaint and denying the motion with respect to Count III of the plaintiff's complaint. Signed by Judge Joseph R. Goodwin on 5/21/2012. (cc: attys; any unrepresented party) (taq)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
TINA M. BROWNING,
CIVIL ACTION NO. 2:11-cv-00786
BIG LOTS STORES, INC.,
MEMORANDUM OPINION AND ORDER
Pending before the court is the defendant, Big Lots Stores, Inc.’s Motion to Dismiss Counts
II and III of the Complaint [Docket 4]. For the reasons discussed below, this motion is DENIED
in part and GRANTED in part.
This action was originally filed in the Circuit Court of Kanawha County, West Virginia.
The complaint alleges that on August 3, 2010, the plaintiff fell over a rug or mat in the defendant’s
Store No. 378. Count One of the complaint asserts a claim for negligence. Count Two of the
complaint refers to gross negligence. Count Three of the complaint contains assertions labeled
“Negligence and/or Gross Negligence Imputed to Employer (Respondeat Superior.)”
The defendant removed the action to this court on the basis of 28 U.S.C. § 1441 and 28
U.S.C. § 1332. The defendant filed the instant motion, seeking to dismiss Counts Two and Three
of the plaintiff’s complaint. The plaintiff has not filed a response, and the time for doing so has
passed. This motion is now ripe for review.
A motion to dismiss filed under Rule 12(b)(6) tests the legal sufficiency of a complaint or
pleading. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil
Procedure 8 requires that a pleading contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” FED. R. CIV. P. 8. As the Supreme Court recently reiterated in
Ashcroft v. Iqbal, that standard “does not require ‘detailed factual allegations’ but ‘it demands
more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’” 129 S. Ct. 1937,
1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986) for the proposition
that Aon a motion to dismiss, courts >are not bound to accept as true a legal conclusion couched as a
factual allegation=@). A court cannot accept as true legal conclusions in a complaint that merely
recite the elements of a cause of action supported by conclusory statements. Iqbal, 129 S. Ct. at
1949-50. “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 1949 (quoting
Twombly, 550 U.S. at 570). To achieve facial plausibility, the plaintiff must plead facts that allow
the court to draw the reasonable inference that the defendant is liable, and those facts must be more
than merely consistent with the defendant=s liability to raise the claim from merely possible to
In determining whether a plausible claim exists, the court must undertake a
context-specific inquiry, “[b]ut where the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has allegedCbut it has not ‘show[n]’C’that
the pleader is entitled to relief.’” Id. at 1950 (quoting FED. R. CIV. P. 8(a)(2)). A complaint must
contain enough facts to “nudge [a] claim cross the line from conceivable to plausible.” Id.
In this case, the defendant asserts that Counts Two and Three of the plaintiff’s complaint
must be dismissed because they are pled in the form of hypothetical factual allegations.
a. Count Two
Count Two of the complaint alleges that “should information and evidence be obtained
throughout discovery in this matter prove that Defendant possessed prior knowledge of the
unreasonably dangerous hazard created by the subject rug, and nonetheless consciously opted not
to repair or otherwise provide notice to its patrons of this hazard, Plaintiff hereby reserves the right
to advance a theory of Gross Negligence in light of the same.” (Compl. ¶ 14 [Docket 1-1].)
Count Two goes on to state that “Should the conduct of Defendant be shown upon the conclusion
of discovery to have been willful, wanton, and reckless, so as to constitute gross negligence,
Plaintiff is entitled to punitive damages upon Defendants gross negligence.” (Compl. ¶ 17.)
The defendant asserts that this count must be dismissed because it is pled in the form of a
hypothetical factual allegation. The plaintiff has not provided a response to the motion to
dismiss, and a review of the complaint itself demonstrates that the facts pled in the complaint are
insufficient to nudge the claim across the line from conceivable to plausible. Iqbal, 129 S. Ct. at
1949-50. The plaintiff has provided only a formulaic recitation of the elements of the cause of
action. The complaint does not allege that the defendant’s conduct was willful, wanton, and
reckless, nor does it plead any facts that would support such an allegation. Accordingly, the court
FINDS that Count Two of the plaintiff’s complaint fails to state a claim upon which relief may be
granted, and ORDERS that Count Two is hereby DISMISSED.
b. Count Three
Count Three of the plaintiff’s complaint is labeled “Negligence and/or Gross Negligence
Imputed to Employer (Respondeat Superior)”, and alleges: “Plaintiff was injured as a result of
one or more of the following: 1) the improper placement of the subject rug/mat; 2) the improper
maintenance of the subject mat/rug; 3) the improper alteration and/or improper raising of the
subject rug/mat above floor level by the employee and/or manager of the subject Big Lots Store
No. 378 while said employee and/or manager was working within the scope of his or her
employment for Defendant.” (Compl. ¶ 19.) Count Three goes on to state that “should the
conduct and negligence of said employee/manager of Big Lots Stores No. 378 be shown to have
been conducted with prior knowledge or other factor rendering the same a willful, wanton, and or
reckless constitute rising to the level of gross negligence, Plaintiff hereby demands punitive
damages.” (Compl. ¶ 22.)
The Federal Rules of Civil Procedure explicitly permit alternative pleading. Federal Rule
8(d)(2) states: “A party may set out 2 or more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in separate ones. If a party makes alternative
statements, the pleading is sufficient if any one of them is sufficient.” FED. R. CIV. P. 8(d)(2).
In this case, the plaintiff has alleged that the plaintiff was injured in the defendant’s store.
She has asserted that her injury was caused by the defendants’ failure to properly maintain the rug
in the store’s entry way. She asserts that, as a result of the defendant’s failure, she fell and
seriously injured herself. She has further alleged that her injuries resulted from the negligence of
an employee of the defendant who was acting within the scope of his or her employment.
For the reasons discussed above, the court FINDS that the plaintiff’s complaint states a
claim upon which relief may be granted. The plaintiff has pled facts sufficient to nudge her
claims across the line from conceivable to plausible. Iqbal, 129 S. Ct. at 1949-50. Under the
federal rules, the fact that the plaintiff has pled alternative theories is not fatal to her complaint.
FED. R. CIV. P. 8(d)(2). Accordingly, the defendant’s motion to dismiss Count III is DENIED.
For the reasons discussed above, the Motion to Dismiss is GRANTED with respect to
Count II of the plaintiff’s complaint and DENIED with respect to Count III of the plaintiff’s
The court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
May 21, 2012