Gillespie v. Marriott International, Inc. et al
Filing
137
MEMORANDUM OPINION re Motion to Remand; Motion to Dismiss. Signed by District Judge James C. Cacheris on 12/14/15. (klau, ) Modified text on 12/14/2015 (klau, ).
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
SELENA GILLESPIE,
)
)
)
)
Plaintiff,
v.
)
)
MARRIOTT INTERNATIONAL, INC.,
ET AL.,
Defendants.
Case No. 1:15-cv-350 (JCC/IDD)
)
)
)
)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Plaintiff Selena
Gillespie’s Motion to Remand [Dkt. 77] and Defendant Cabling
Solutions of Rutherford County, LLC’s Motion to Dismiss for
Failure to State a Claim or for a More Definite Statement [Dkt.
96].
For the following reasons, the Court finds jurisdiction
proper and will deny the motion to remand.
Additionally, the
Court will deny Defendant Cabling Solution’s motion to dismiss
or for a more definite statement.
I.
Background
At the motion to dismiss stage, the Court must read
the complaint as a whole, construe the complaint in the light
most favorable to the plaintiff, and accept the facts alleged
therein as true.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
1
Accordingly, the following facts taken from the Second Amended
Complaint are accepted as true for purposes of the motion to
dismiss.
Defendants Ashford Hospitality Prime and Ashford
Gateway TRS Corp. (collectively “Ashford”) own and operate the
Marriott Crystal Gateway Hotel in Arlington, Virginia (“Hotel”).
(Sec. Am. Compl. [Dkt. 64] ¶ 10.)
Prior to the incident giving
rise to this lawsuit, Ashford “undertook significant
renovations” to the Hotel, including “substantial work to the
ceilings and lighting fixtures in the hotel’s ballrooms.”
¶¶ 11, 17.)
(Id.
All of the Defendants are alleged to have
“participated in the design, installation, and/or inspection of
the ballroom modifications,” although their individual
responsibilities varied.
(Id.)
Defendant Leo A. Daly (“Daly”) is an architectural
firm that was hired to select, design, and approve changes to
the lighting systems.
(Id. ¶ 14.)
Defendant Humphrey Rich
Construction Group, Inc. (“Humphrey Rich”) was the general
contractor hired to actually perform the renovations.
¶ 12.)
(Id.
Defendant Mambo Contractors, Inc. (“Mambo”) was
responsible for the installation of the lighting systems and
Defendant Onyx Construction (“Onyx”) is the successor in
interest to Mambo’s liabilities.
(Id. ¶¶ 15, 16.)
2
During these
renovations and after, Defendant Marriott Hotel Services
(“Marriott”) was responsible for the maintenance of the lighting
in the ballrooms through its management of the Hotel.
(Id.
¶ 13.)
According to the Second Amended Complaint, these
renovations resulted in the hanging of “large, heavy blocks of
Plexiglas” as decorative flourishes in the new lighting systems.
(Id. ¶ 18.)
These heavy Plexiglas blocks, however, were “held
up by minimal fasteners, with no framework or other supporting
structure.”
(Id.)
This design feature was allegedly defective
and created the risk the blocks would fall onto guests expected
to gather in the ballrooms below.
(Id.)
That risk was
allegedly heightened, when Defendant Cabling Solutions of
Rutherford County, LLC’s (“Cabling Solutions”) removed some of
the ballroom lighting “lenses” to perform work in the ceiling
and “negligently reinstalled” the lenses “without properly
securing them.”
(Id. ¶ 19.)
Two days after Cabling Solutions performed this work,
Plaintiff Selena Gillespie (“Gillespie”) was attending a family
reunion in the Hotel’s ballroom.
(Id. ¶ 21.)
Gillespie was
cradling her infant granddaughter when “without warning . . .
one of the lighting fixtures in the ballroom detached from the
ceiling” directly above her.
(Id.)
3
The falling fixture
“battered, struck and injured” the granddaughter and Gillespie
was similarly “battered, struck and injured by blood, brain and
other debris.”
(Id.)
“[A]s a direct and proximate result of
the negligence of the defendants . . . plaintiff has suffered
serve injury from the falling fixture incident, including
physical, mental and emotional harm.”
(Id. ¶ 22.)
Gillespie alleges that the design, installation, and
inspection of the lighting fixtures was negligent and in
disregard of the safety of guests that would certainly gather in
the ballroom below the lights.
Plaintiff requests $500,000 in
damages, jointly and severally, against Ashford, Marriott,
Humphrey Rich, Mambo, Onyx, Daly, and Cabling Solutions
(collectively “Defendants”).
Gillespie originally brought this suit by filing a
two-page complaint in Virginia state court against only Marriott
International, Inc., Ashford, and Humphrey Rich (collectively
“Original Defendants”).
After the case was removed to federal
court and transferred, this Court granted the Original
Defendants’ motions to dismiss.
The Court found the complaint
failed to sufficiently allege a cause of action for negligent
infliction of emotional distress (“NIED”) or intentional
infliction of emotional distress (“IIED”), but granted Gillespie
leave to amend.
(Mem. Op. [Dkt. 26] at 8.)
4
Four days after dismissal, Gillespie filed a threepage Amended Complaint.
to dismiss.
[Dkt. 28.]
Defendants again motioned
Although the Amended Complaint did little to
clarify Gillespie’s theory of relief, the Court found the
Amended Complaint sufficiently alleged a claim of negligence.1
(Am. Compl. Mem. Op. [Dkt. 40] at 11-12.)
Accordingly, the
Court denied the motions to dismiss the negligence claims, but
granted the motions to dismiss punitive damages.
(Id. at 13.)
As the case progressed toward trial, Gillespie learned
of several additional potential defendants.
Thus, in September
2015, the Court granted her motion to file a Second Amended
Complaint, which named the following new defendants: Daly,
Mambo, Onyx, Marriott, and Cabling Solutions.
The addition of
those new defendants, two of which are citizens of Virginia,
caused Gillespie to argue in the present remand motion that this
Court no longer has jurisdiction under 28 U.S.C. § 1332.
Defendants Cabling Solutions and Ashford oppose remand.
Additionally, Cabling Solutions motioned to dismiss or for a
more definite statement.
1
As jurisdiction is required before
Gillespie disclaimed any attempt to raise an IIED or
NIED claim at oral argument and in her brief in opposition to
the motion to dismiss her Amended Complaint. (Am. Compl. Mem.
Op. at 5.)
5
proceeding to the merits, the Court will first address the
motion to remand.
II.
A.
Analysis
Motion to Remand
A state court case is removable under 28 U.S.C.
§ 1441(a) only when “the district courts of the United States
have original jurisdiction.”
28 U.S.C. § 1441(a).
Because
removal raises “significant federalism concerns,” courts must
construe removal jurisdiction strictly.
Mulcahey v. Columbia
Organic Chems. Co., 29 F.3d 148, 151 (4th Cir. 1994).
Accordingly, “[i]f federal jurisdiction is doubtful, a remand is
necessary.”
Id.
The party seeking removal bears the burden of
demonstrating jurisdiction.
Id.
The basis of removal in this
case is the court’s jurisdiction to hear cases between
completely diverse parties in which the amount in controversy
exceeds $75,000.
28 U.S.C. § 1332(a).
In addition to demonstrating original jurisdiction, a
removing defendant must follow proper removal procedures.
See
28 U.S.C. § 1446 (listing procedure for removal of civil
actions).
When a plaintiff believes removal was procedurally
improper, she must motion to remand “within 30 days after the
filing of the notice of removal.”
28 U.S.C. § 1447(c).
A
motion for remand based on the court’s lack of subject matter
6
jurisdiction, by contrast, may be raised at any time.
See id.
(“If at any time before final judgment it appears that the
district court lacks subject matter jurisdiction, the case shall
be remanded.”)
Gillespie seeks to remand based on the belief that the
forum-defendant rule was violated.
The forum-defendant rule
prohibits removal based solely on diversity jurisdiction when
“any of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.”
28 U.S.C. § 1441(b)(2).
Gillespie argues that the
addition of two Virginia citizens in her Second Amended
complaint violates this rule.
The forum-defendant rule,
however, was not violated in this case and would not require
remand even if it were violated.
Therefore, the Court denies
Gillespie’s motion to remand.
The forum-defendant rule does not prevent the joinder
of forum-state defendants after the case is removed.2
The plain
text of the forum-defendant rule defines when a case “may not be
2
This case does not implicate the practice of forumstate defendants removing a case before being properly served.
A district court in this circuit recently thoroughly discussed
that issue and concluded that “in cases involving only resident
defendants, the forum-defendant rule bars resident defendants
from removing an action pursuant to diversity jurisdiction
before effectuation of service.” Phillips Constr., LLC v.
Daniels Law Firm, PLLC, 93 F. Supp. 3d 544, 556 (S.D.W. Va.
2015).
7
removed.”
Id. (emphasis added).
The rule does not discuss the
addition of completely new defendants after removal.
Carman v.
Bayer Corp., No. 5:08cv148, 2009 WL 1649715, at *3 (N.D.W. Va.
June 10, 2009) (“Removal jurisdiction is not disturbed if a
forum defendant is joined and served after the action has been
removed to federal court.”).
When this case was removed,
however, none of the named defendants was a citizen of Virginia.
Therefore, removal did not violate the forum-defendant rule.
Even if the post-removal addition of forum-state
defendants did violate § 1441(b)(2), that violation would not
affect this Court’s subject matter jurisdiction.
At least ten
courts of appeals have concluded that the forum-defendant rule
is purely procedural.
See Brazell v. Waite, 525 F. App’x 878,
884 (10th Cir. 2013) (“[T]he forum-defendant rule is not
jurisdictional and may therefore be waived.”); Morris v. Nuzzo,
718 F.3d 660, 665 (7th Cir. 2013); Young Kim v. Nat’l
Certification Comm’n for Acupuncture & Oriental Med., 888 F.
Supp. 2d 78, 82 (D.C. Cir. 2012); RFF Family P’ship, LP v.
Wasserman, 316 F. App’x 410, 411 (6th Cir. 2009); Lively v. Wild
Oats Market, Inc., 456 F.3d 933, 939 (9th Cir. 2006); Handelsman
v. Bedford Village Assoc. Ltd P’ship, 213 F.3d 48, 50 n.2 (2d
Cir. 2000); Blackburn v. United Parcel Serv., Inc., 179 F.3d 81,
90 n.3 (3d Cir. 1999); Pacheco de Perez v. AT&T Co., 139 F.3d
8
1368, 1372 n.4 (11th Cir. 1998); In re Shell Oil Co., 932 F.2d
1518, 1523 (5th Cir. 1991); Farm Constr. Servs. v. Fudge, 831
F.2d 18, 22 (1st Cir. 1987).
But see Horton v. Conklin, 431
F.3d 602, 605 (8th Cir. 2005) (adhering to interpretation of
forum-defendant rule as jurisdictional).
Although the Fourth
Circuit has not considered whether the forum-defendant rule is
procedural or jurisdictional, “it appears that if faced with the
issue . . . the Fourth Circuit would join the majority of
circuit courts in holding that the forum defendant rule is
merely procedural.”
Councell v. Homer Laughlin China Co., 823
F. Supp. 2d 370, 378 (N.D.W. Va. 2011).
This conclusion is
reasonable, because the Fourth Circuit has referred to the
failure of all defendants to join in a removal petition to be
“merely an error in the removal process,” which does not affect
the district court’s subject matter jurisdiction.
Payne ex rel.
Estate of Calzada v. Brake, 439 F.3d 198, 203 (4th Cir. 2006).
Although the Fourth Circuit has not opined on the
issue, district courts within this circuit have concluded that
“post-removal joinder of a forum defendant does not destroy
subject matter jurisdiction as long as diversity continues to
exist.”
Ada Liss Group v. Sara Lee Branded Apparel, No.
1:06cv610, 2007 WL 634083, at *4 (M.D.N.C. Feb. 26, 2007); see
also Carman, 2009 WL 1649715, at *3 (“Removal jurisdiction is
9
not disturbed if a forum defendant is joined and served after
the action has been removed to federal court.”).
Therefore, as
long as jurisdiction was proper at removal and remains proper,
there is no basis for remand.
Diversity jurisdiction was certainly proper at the
time of removal.
The amount in controversy in this case is
$500,000, well above the $75,000 amount in controversy required.
(Notice of Removal ¶ 15.)
Additionally, complete diversity
existed at the time of removal.
Plaintiff was, and remains, an
individual citizen of Pennsylvania.
The Original Defendants at
the time of removal were all corporations.
Therefore, they are
citizens of their states of incorporation and the states where
they maintain their principal places of business.
§ 1332(c).
28 U.S.C.
Defendant Marriott is a Maryland corporation with
its principal place of business in Maryland.
(Compl. ¶ 2.)
Defendants Ashford Hospitality Prime and Ashford Gateway are
Texas corporations with their principal places of business in
Texas.
(Id. ¶¶ 3-4.)
Lastly, Defendant Humphrey Rich is a
Maryland corporation with its principal place of business in
Maryland.
(Id. ¶ 5.)
As no Original Defendant is a citizen of
Plaintiff’s domicile of Pennsylvania, complete diversity of
citizenship existed at the time of removal.
10
The joinder of the new defendants in the Second
Amended Complaint did not defeat complete diversity of
citizenship.
Plaintiff’s Second Amended Complaint added the
following defendants: Marriott, a Delaware corporation with its
principal place of business in Maryland (Sec. Am. Compl. ¶ 5);
Daly, a Nebraska corporation with its principal place of
business in Nebraska (Id. ¶ 6); Mambo, a Virginia corporation
with its principal place of business in Virginia (Id. ¶ 7);
Cabling Solutions, a Tennessee limited liability company with
members residing in Tennessee (See Cabling Solutions Fin.
Disclosure [Dkt. 103]); and Onyx, a Virginia limited liability
company whose only known members reside in Virginia (see Onyx
Articles of Inc. [Dkt. 106-4].)
The addition of these
defendants did not affect complete diversity in this case
because none of them is a citizen of Pennsylvania, and no party
argues otherwise.
Therefore, diversity jurisdiction continues
to exist, despite the post-removal joinder of two forum-state
defendants.
Accordingly, the Court is “under a duty to exercise
the jurisdiction conferred on it by Congress unless there is
some other reason for the Court to abstain.”
Hatcher v. Lowe’s
Home Ctrs., Inc., 718 F. Supp. 2d 684, 689 (E.D. Va. 2010).
parties have presented no argument for abstention in this
11
The
personal injury case and the Court is not aware of any.
Therefore, Gillespie’s motion for remand is denied.
The Court turns now to Cabling Solutions’ motion to
dismiss.
B.
Motion to Dismiss
A court reviewing a complaint on a Rule 12(b)(6)
motion must accept well-pleaded allegations as true, and must
construe all allegations in the light most favorable to the
plaintiff.
See Randall v. United States, 30 F.3d 518, 522 (4th
Cir. 1994).
However, the court need not accept as true legal
conclusions disguised as factual allegations.
Iqbal, 556 U.S. 662, 679-81 (2009).
Ashcroft v.
Therefore, a pleading that
offers only a “formulaic recitation of the elements of a cause
of action will not do.”
550 U.S. 544, 557 (2007).
Id. at 678; Bell Atl. Corp. v. Twombly,
Nor will a complaint that tenders
mere “naked assertion[s]” devoid of “further factual
enhancement.”
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 557.
Defendant Cabling Solutions raises two primary
arguments in support of its motion to dismiss.
First, Cabling
Solutions argues that Gillespie’s allegations of injury are
insufficient to sustain a negligence claim.
Specifically,
Gillespie did not sufficiently plead a physical injury and her
emotional injuries are “special damages” that do not meet a
12
heightened pleading standard.
Second, Cabling Solutions argues
that the complaint primarily seeks compensation for Gillespie
observing the fixture falling and injuring her granddaughter.
Under Cabling Solutions’ interpretation of Hughes v. Moore, 214
Va. 27 (1973), observing injuries to a third party cannot
support a claim for emotional damages in Virginia.
Thus,
Cabling Solutions asks the Court to dismiss the complaint to the
extent it seeks relief for emotional distress for having
witnessed injuries to Gillespie’s granddaughter.
These arguments cause the Court to once again clarify
the nature of Gillespie’s theory of relief, an issue that
featured prominently in the Court’s prior memorandum opinion.
(See Am. Compl. Mem. Op. at 4-5.)
On at least two occasions,
the Court has noted in written opinions that Gillespie’s theory
of relief is unclear from the face of the complaint.
(See Mem.
Op. at 4 (“As an initial matter, the theory of relief is unclear
from the face of Plaintiff’s Complaint.”); Am. Compl. Mem. Op.
at 4 (stating that amended complaint “does little to resolve”
the lack of clarity).)
Despite the complaint’s ambiguity, it is
now resolved that Gillespie has raised only a claim of
negligence.
In her brief in opposition to the motion to dismiss
the Amended Complaint and the Second Amended Complaint,
Gillespie stated that she “does not make a claim for negligent
13
or intentional infliction of emotional distress” and those
claims are “not at issue” in this case.
35] at 4.)
(Mem. in Opp’n [Dkt.
Gillespie confirmed this express waiver of any NIED
or IIED claim at oral argument on July 8, 2015, when she
disavowed any claim based on those theories of relief.
(See Am.
Compl. Mem. Op. at 5 (noting Gillespie’s waiver at oral
argument).)
Accordingly, the Court’s prior memorandum opinion
interpreted the Amended Complaint to raise only a negligence
claim.
(See id. at 5.)
The Second Amended Complaint continues
to sound only in negligence.
(See Sec. Am. Compl. ¶ 22 (“[A]s a
direct and proximate result of the negligence of the
defendants . . . .”).)
The new complaint adds several
defendants and elaborates on each defendant’s role in the Hotel
renovation project, but it does not change the theory of relief.
Thus, only a claim of negligence is before the court.
With the theory of relief properly defined, the Court
turns to Defendant Cabling Solutions’ argument that Gillespie
has not sufficiently alleged injury.
“Virginia law . . .
generally recognizes that a plaintiff cannot recover for
emotional injury resulting from the defendant’s negligence
without proof of contemporaneous physical injury.”
Elrod v.
Busch Ent. Corp., 479 F. App’x 550, 551 (4th Cir. 2012); Hughes
v. Moore, 197 S.E.2d 214, 219 (Va. 1973) (“[W]here conduct is
14
merely negligent . . . and physical impact is lacking, there can
be no recovery for emotional disturbance alone.”).
When the
plaintiff does suffer a physical impact or injury, however,
emotional injuries are recoverable as damages “when fairly
inferred from injuries sustained.”
S.E.2d 181, 186 (Va. 2006).
Kondarurov v. Kerdasha, 629
Furthermore, it has been the law in
Virginia “for well over a century, that mental anguish may be
inferred from bodily injury and that it is not necessary to
prove it with specificity.”
Id.
Those general rules of negligence are distinct from
the exceptional circumstances of Hughes v. Moore, 197 S.E.2d 214
(1973) and Myseros v. Sissler, 387 S.E.2d 463 (1990).
Those
cases discussed when a plaintiff may recover for “emotional
disturbance And physical injury resulting therefrom . . .
notwithstanding the lack of physical impact.”
Hughes, 197
S.E.2d at 219; Myseros, 387 S.E.2d at 464 (interpreting Hughes).
Such a claim for emotional disturbance without physical impact
may proceed only if the plaintiff “properly pleads and proves by
clear and convincing evidence that his physical injury was the
natural result of fright or shock proximately caused by the
defendant’s negligence.”
Id.
Although courts sometimes
characterize Hughes as an exception to the negligence damages
requirements, it is best understood as stating the elements for
15
the independent tort of negligent infliction of emotional
distress.
See Delk v. Columbia/HCA Healthcare Corp., 523 S.E.2d
826, 833 (Va. 2000) (“In Hughes v. Moore, 214 Va. 27, 197 S.E.2d
214 (1973), we discussed the elements of a cause of action for
negligent infliction of emotional distress.”); Carter v. TimesWorld Corp., No. 09-1823, 1998 WL 276456, at *3 (4th Cir. 1998)
(citing Hughes for the proposition that a plaintiff must prove
physical injury to “prevail on a claim of negligent infliction
of emotional distress in Virginia”); Sykes v. Bayer Pharm.
Corp., 548 F. Supp. 2d 208, 217 (E.D. Va. 2008).
As mentioned above, Gillespie’s complaint need only
satisfy the negligence pleading standard, not the heightened
Hughes standard for an NIED claim.
The Court has already
concluded that Gillespie alleges a physical impact sufficient to
sustain her negligence claim.
In its prior memorandum opinion,
the Court found that the Amended Complaint’s allegations “are
just barley sufficient to allege a factual basis for a physical
injury.”
(Am. Compl. Mem. Op. at 11.)
In the Amended
Complaint, Gillespie alleged she “was battered, struck and
injured by blood, brain and other debris” caused by the falling
light fixture.
(Am. Compl. ¶ 11.)
Furthermore, she alleges
“suffer[ing] severe injury from the falling fixture incident,
including physical, mental and emotional harm.”
16
(Id. ¶ 12.)
Gillespie repeats the exact same allegations in her Second
Amended Complaint.
(See Sec. Am. Comp. ¶¶ 11, 12.)
Thus,
Gillespie again alleges being physically impacted and injured by
debris and other projectiles caused by the falling light
fixture.
The extent of the physical injuries she suffered
remains to be determined.
The Court has already expressed “its
doubts” about Gillespie’s ability to ultimately prove her case
on the merits.
But, as with the prior motion to dismiss, the
Court must accept Gillespie’s allegations as true and view them
in the light most favorable to her.
522.
See Randall, 30 F.3d at
Accordingly, the Court again finds that Gillespie has
sufficiently alleged a physical impact to support a claim for
damages under a theory of negligence.
Because she sufficiently alleges a physical injury or
impact, Gillespie need not plead emotional damages with
specificity.
The Virginia Supreme Court has made clear that
“mental anguish may be inferred from bodily injury and that it
is not necessary to prove it with specificity.”
S.E.2d at 186.
Kondaurov, 629
Gillespie has alleged suffering “severe injury”
including “emotional harm.”
(Sec. Am. Compl. ¶ 22.)
Although
this bare allegation would not satisfy the heightened IIED or
NIED pleading standard, it is sufficient in this negligence case
alleging physical impact.
See Kondaurov, 629 S.E.2d at 186
17
(“[T]he plaintiff suffered physical injury, albeit remarkably
slight under the circumstances, as a proximate result of the
defendants’ negligence.
Thus, mental anguish could be inferred
by the jury and would constitute an element of damages.”).
Cabling Solutions’ second argument to the availability
of emotional damages is that the bulk of Gillespie’s emotional
injuries likely arise from witnessing her granddaughter being
hit by the falling fixture.
Cabling Solutions cites Hughes and
a similar case of Goff v. Jones, 47 F. Supp. 2d 692 (E.D. Va.
1999), for the general proposition that a plaintiff may not
“recover damages from physical injuries resulting from fright or
shock caused by witnessing injury to another . . . or caused by
seeing the resulting injury to a third person after it has been
inflicted through defendant’s negligence.”
(citing Hughes, 197 S.E.2d at 220).)
(Mem. in Supp. at 4
Cabling Solutions
interprets this language to mean the Court should dismiss any
claim Gillespie has for emotional damages based on her
granddaughter’s injuries.
Cabling Solutions’ arguments, however, are misdirected
at a claim for negligent infliction of emotional distress that
does not exist in this case.
Both Hughes and Goff involved
claims of negligent infliction of emotional distress and did not
involve allegations that the defendant’s negligence caused a
18
physical impact to the plaintiff.
In Hughes, the plaintiff was
standing in her living room when she saw, through a window, a
car crash into her house’s front porch.
197 S.E.2d at 215.
There was no allegation of physical contact with the plaintiff.
Similarly in Goff, the plaintiff arrived on the scene of a car
accident that injured his wife and daughter.
694.
47 F. Supp. 2d at
But the plaintiff was not involved in, nor did he witness,
the actual accident.
The Hughes statement regarding damages for
observing injuries to others must be viewed in the context of
the NIED claim alleged in that case.
It is a different question altogether whether a
plaintiff’s emotional damages from an accident that caused her
physical injury may include the emotional distress of seeing
another person simultaneously injured.
Cabling Solutions cites
no cases demonstrating that such emotional damages are
categorically precluded in negligence actions involving the
contemporaneous physical injury of the plaintiff and another
person.
The Court, however, notes that several other courts
have considered this issue within motions in limine well after
discovery.
See Kristensen ex rel. Kristensen v. Spotnitz, No.
3:09-cv-00084, 2011 WL 4566239, at *3-4 (W.D. Va. Sept. 30,
2011) (admitting evidence of others’ contemporaneous injuries,
but excluding some evidence of emotional distress as too far
19
removed from any alleged physical injury); Umbel v. Crider, No.
CL 99-11618, 1999 WL 1114674, at *3 (Va. Cir. Ct. Oct. 22, 1999)
(finding the extent of other passengers’ injuries relevant to
“determining the pain, suffering and mental anguish which this
plaintiff suffered in this accident, an accident in which this
plaintiff also suffered what are alleged to have been severe
physical injuries”).
Accordingly, the Court finds it more
appropriate to address this question at a later proceeding,
after discovery further illuminates the exact emotional damages
Gillespie pursues in this case.
Therefore, the Court will deny
Cabling Solutions’ motion to dismiss.
C.
Motion for More Definite Statement
In the alternative, Defendant Cabling Solutions
motions for a more definite statement regarding Gillespie’s
claims of physical and emotional damages.
For the following
reasons, the Court will deny that motion.
Under Federal Rule of Civil Procedure 12(e), a party
may move for a more definite statement “if a pleading to which a
responsive pleading is permitted is so vague or ambiguous that a
party cannot reasonably be required to frame a responsive
pleading.”
Fed. R. Civ. P. 12(e).
statements are “not favored.”
1019, 1021 (E.D. Va. 1990).
Motions for more definite
Frederick v. Koziol, 727 F. Supp.
Rather, motions for more definite
20
statements are “designed to strike at unintelligibility rather
than simple want of detail.”
Id. (quoting Scarbrough v. R-Way
Furniture Co., 105 F.R.D. 90, 91 (E.D. Wis. 1985)).
Cabling Solutions has not surpassed the difficult Rule
12(e) showing in this case.
Cabling Solution’s arguments are
more consistent with a request for more details than a claim
that the complaint is unintelligible.
The Court has criticized
the barely sufficient allegations in the Second Amended
Complaint, but those allegations are not so vague as to prevent
a response.
Indeed, Defendants Ashford, Humphrey Rich, and Daly
have all individually filed answers to the Second Amended
Complaint.
(See Ashford Answer [Dkt. 65]; Humphrey Answer [Dkt.
67]; Daly Answer [Dkt. 94].)
The brevity of the complaint’s
allegations does not prevent Cabling Solutions from similarly
filing an answer.
In summary, this Court retains jurisdiction pursuant
to 28 U.S.C. § 1332, despite the Second Amended Complaint’s
addition of two forum-state defendants.
Even with the new
defendants, the parties in this suit remain completely diverse.
Having found jurisdiction proper, the Court proceeded to the
merits and found Gillespie sufficiently alleged a physical
impact to sustain a claim for physical and emotional injuries,
if properly proven.
Therefore, the Court will deny Cabling
21
Solutions’ motion to dismiss.
Additionally, a more definite
statement is not required to permit Defendant Cabling Solutions
to respond to the Second Amended Complaint’s allegations.
IV. Conclusion
For the foregoing reasons, the Court will deny
Plaintiff’s motion to remand and deny Defendant Cabling
Solutions’ motion to dismiss.
An appropriate order will follow.
December 14, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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