Diretto v. Country Inn & Suites by Carlson et al

Filing 12

MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 08/18/16. (pmil, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division

MELISSA DIRETTO,
Plaintiff,
v.
COUNTRY INN & SUITES BY
CARLSON, et al.,
Defendants.

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M E M O R A N D U M

1:16cv1037(JCC/IDD)

O P I N I O N

This matter is now before the Court on Plaintiff
Melissa Diretto’s (“Plaintiff”) Ex Parte Motion for Immediate
Hearing (“Plaintiff’s Motion for a TRO”) [Dkt. 2] seeking a
Temporary Restraining Order (“TRO”) enjoining Defendant Country
Inn & Suites and Defendant Sun Group Management, LLC (“Sun
Group”)(collectively, “Defendants”) from altering the state of
their water systems.

For the following reasons, the Court

requests clarification on the basis for its jurisdiction, upon
receipt of which, it will deny Plaintiff’s Motion for a TRO.
I. Background
The following facts are taken from Plaintiff’s
Complaint [Dkt. 1], Plaintiff’s Memorandum of Points and
Authorities (“Plaintiff’s Memorandum in Support”) [Dkt. 3], and
the Declaration of Christopher M. Day (“Plaintiff’s

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Declaration”) [Dkt. 4].
At all times during the events identified below and
continuing until Decedent Peter Neely’s (“Decedent”) death on
July 10, 2016, Plaintiff was Decedent’s wife.

(Compl., ¶ 7.)

Decedent was diagnosed with Acute Lymphocytic Leukemia in 2014
and underwent a stem cell transplant treatment in July of 2015.
(Id. at ¶ 13.)

From June 22-24, 2016, Decedent, along with two

of his minor children stayed at the Country Inn & Suites by
Carlson hotel located at 656 Warrenton Road, Fredericksburg,
Virginia 22406 (“Fredericksburg Country Inn & Suites”) as paying
guests.

(Id. at ¶14.)

During this time, the Fredericksburg

Country Inn & Suites furnished guests with showers, faucets, a
pool, a whirlpool tub or spa (“hot tub”), and other water
systems, the water of which was intended for use and consumption
by the guests generally.

(Id. at ¶ 15.)

During his stay at the

hotel, Decedent availed himself of the use of the water systems
in the hotel, including use of the hot tub on or about June 23,
2016.

(Id. at ¶ 16.)

The water in the hot tub was heated,

causing it to steam or vaporize, thus allowing it to be inhaled
and ingested by decedent.

(Id. at ¶ 17.)

On July 3, 2016, Decedent began to experience symptoms
consistent with Legionnaires’ disease.

(Id. at ¶ 20.)

On July

6, 2016, Decedent was admitted to the Hospital of the University
of Pennsylvania.

(Id. at ¶ 21.)

A bronchoalveolar test on July
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11, 2016 demonstrated that Decedent had contracted Legionnaires’
disease.

(Id.)

On July 10, 2016, Decedent died as a result of

Legionnaires’ disease.

(Id. at ¶ 22.)

Plaintiff alleges that

Decedent contracted his Legionnaires’ disease from the
negligently maintained hot tub at the Fredericksburg Country Inn
& Suites.

(Id. at ¶ 23.)
On July 20, 2016 and July 25, 2016, Environmental

Health Specialist Jennifer Davies of the Virginia Department of
Health inspected the pool and hot tub at the Fredericksburg
Country Inn & Suites.
9.)

(Id. at ¶ 18; Pl.’s Decl., Ex. A, at 5-

During both of these inspections, the chlorine levels of

the pool and the hot tub were found to be well below the
Virginia Department of Health’s minimum requirements.
¶ 19; Pl.’s Decl., Ex. A, at 5-9.)

(Compl.,

On July 25, 2016, the

Stafford County Environmental Health Department (“SCEHD”) issued
a “Notice of Alleged Violation” informing Peter Sun of Sun Group
that SCEHD had determined the conditions observed by Jennifer
Davies “may constitute threats to public health and the
environment” and directing Mr. Sun to take steps to remedy the
situation at the Fredericksburg Country Inn & Suites.

(Pl.’s

Decl., Ex. A, at 11.)
On August 12, 2016, Plaintiff filed this action
against Defendants alleging, generally, causes of action for
wrongful death by negligence and breach of contract.
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(Compl.,

¶¶ 25-72.)

Simultaneously, Plaintiff filed their Motion for a

TRO along with Plaintiff’s Memorandum in Support and Plaintiff’s
Declaration.

Plaintiff seeks a TRO preventing the potential

destruction of evidence by enjoining Defendants from taking any
action to alter the condition of their water systems.

Plaintiff

has refrained from serving Defendants with the Complaint or
attempting to contact Defendants regarding the TRO out of a
concern that informing Defendants of the existence of this
lawsuit may cause them to destroy evidence.

Oral argument on

Plaintiff’s Motion for TRO took place on August 18, 2016, and
the Motion is now ripe for decision.
II. Legal Standard
“The standard for granting either a TRO or a
preliminary injunction is the same.”

Moore v. Kempthorne, 464

F. Supp. 2d 519, 525 (E.D. Va. 2006) (citations omitted).

“A

plaintiff seeking a preliminary injunction must establish that
he is likely to succeed on the merits, that he is likely to
suffer irreparable harm in the absence of preliminary relief,
that the balance of equities tips in his favor, and that an
injunction is in the public interest.”

Winter v. Natural Res.

Def. Counsel, 555 U.S. 7, 20 (2008); see also Real Truth About
Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346 (4th Cir.
2009) (citing Winter, 129 S. Ct. at 374), vacated on other
grounds, 130 S. Ct. 2371 (2010), reinstated in relevant part,
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607 F.3d 355 (4th Cir. 2010).

The plaintiff bears the burden of

establishing that the court should grant a preliminary
injunction or a temporary restraining order.

Manning v. Hunt,

119 F.3d 254, 263 (4th Cir. 1997)(quoting Hughes Network
Systems, Inc. v. InterDigital Comm. Corp., 17 F.3d 691, 693 (4th
Cir. 1994)).
III. Analysis
A. Jurisdiction
Federal district courts are courts of limited
jurisdiction, possessing “only the jurisdiction authorized them
by the United States Constitution and by federal statute.”
United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th
Cir. 2009)(citing Bowles v. Russel, 551 U.S. 205, 211-12
(2007)).

“Subject matter jurisdiction cannot be forfeited or

waived, and can be raised by a party, or by the court sua
sponte, at any time prior to final judgment.”

In re Kirkland,

600 F.3d 310, 314 (4th Cir. 2010); accord McCulloch v. Velez,
364F.3d 1, 5 (1st Cir. 2004)(“It is blackletter law that a
federal court has an obligation to inquire sua sponte into its
own subject matter jurisdiction.”).
Plaintiff contends that this Court has jurisdiction
over this action pursuant to 28 U.S.C. § 1332(a), which confers
original jurisdiction over cases where diversity of citizenship
exists between the parties and the amount in controversy exceeds
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$75,000.00.

When invoking the jurisdiction of the federal

district courts pursuant to § 1332(a), “[t]he burden to show the
jurisdictional fact of diversity of citizenship [is] on
the . . . plaintiff.”

King v. Cessna Aircraft Co., 505 F.3d

1160, 1171 (11th Cir. 2007)(alteration and omission in
original)(quoting Slaughter v. Toye Bros. Yellow Cab Co., 359
F.2d 954, 956 (5th Cir. 1966)); accord Piney Run Pres. Ass’n v.
County Comm’rs of Carroll County, 523 F.3d 453, 459 (4th Cir.
2008).

Plaintiff has failed to allege facts which demonstrate

diversity of citizenship.
Plaintiff’s Complaint identifies Defendant Sun Group
Management, LLC, (“Sun Group”) as a “limited liability
corporation organized under the laws of the State of Virginia.”1
The Fourth Circuit has clarified that when determining the
citizenship of a limited liability company, the court must
recognize that “[a] limited liability company organized under
the laws of a state is not a corporation and cannot be treated
as such under section 1332 until Congress says otherwise.”

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Gen.

The phrase “limited liability corporation” is something of
a misnomer, as Virginia does not recognize any such entity. An
“LLC” under Virginia law is in fact a “limited liability
company.” This confusion is common, and understandable, with
even courts occasionally falling into this trap. See, e.g.
Geographic Network Affiliates-Intern., Inc. v. Enter. for
Empowerment Found. at Norfolk State Univ., No. CH05-263, 2005 WL
1514432 (Va. Cir. Ct. June 27, 2005)(alternatively using
“limited liability corporation” and “limited liability company”
to refer to the same entity, “Rise One LLC”).
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Tech. Applications, Inc. v. Exro Ltda, 388 F.3d 114, 121 (4th
Cir. 2004)(citing GMAC Commercial Credit LLC, 357 F.3d 827, 829
(8th Cir. 2004)).

Thus, a limited liability company “is an

unincorporated association, akin to a partnership for diversity
purposes, whose citizenship is that of its members.”

Id.

Plaintiff’s Complaint alleges that Sun Group has its “principal
place[] of business in Virginia,” but Plaintiff fails to
identify any of Sun Group’s members or their citizenship.
(Compl., ¶ 2.)

Plaintiff has therefore not met her burden of

demonstrating that complete diversity of citizenship exists.
Accordingly, the Court must dismiss this action unless Plaintiff
files an amendment to their Complaint alleging facts sufficient
to establish that this Court has jurisdiction.

See Brennan v.

Carolina Coach & Camper, LLC, No. 5:15-cv-00103, 2015 WL
6550770, *3 (W.D.N.C. October 28, 2015).
Although the Court cannot rule on Plaintiff’s Motion
for a Temporary Restraining Order until its jurisdiction is
clear, that Motion has been fully briefed by Plaintiff and the
Court will address the merits of the Motion below in the
interest of judicial economy.

See Settlers Crossing, L.L.C. v.

U.S. Home Corp., 383 F. App’x 286, 288 (4th Cir. 2010)(affirming
district court’s finding of lack of subject matter jurisdiction
and alternative dismissal on the merits).
B. Temporary Restraining Order
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1. Likelihood of Success on the Merits
Although a plaintiff seeking a TRO need not show a
certainty of success, the plaintiff must make a “clear showing”
that they are likely to succeed with their claims at trial.
Real Truth About Obama, 575 F.3d at 345.

The

Plaintiff’s Memorandum

in Support fundamentally misunderstands this requirement.
Plaintiff focuses on the “likelihood of finding Legionella at
the property.”

(Pl.’s Mem. in Sup. at 6.)

At no point does

Plaintiff address the likelihood that they will succeed in their
underlying action for breach of contract and wrongful death.
Accordingly, the Court cannot find that Plaintiff has made a
“clear showing” that they are likely to succeed with their
claims at trial.
2. Irreparable Harm
The plaintiff must “make a clear showing that it is
likely to be irreparably harmed absent preliminary relief.”
Real Truth About Obama, 575 F.3d at 347.

“[G]enerally

irreparable injury is suffered when monetary damages are
difficult to ascertain or are inadequate.”

Multi-Channel TV

Cable Co. v. Charlottesville Quality Cable Operating Co., 22
F.3d 546, 551 (4th Cir. 1994) (quoting Danielson v. Local 275,
479 F.2d 1033, 1037 (2d Cir. 1973)).

Irreparable harm must be

“neither remote nor speculative, but actual and imminent.”

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Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 812
(4th Cir. 1991) (quotation and citation omitted).
In the instant action, Plaintiff contends that without
a TRO enjoining Plaintiff from altering the conditions of their
water systems, Plaintiffs will suffer immediate and irreparable
harm via the destruction of evidence critical to proving their
case at trial.

First, Plaintiff has failed to show that a

Temporary Restraining Order is necessary here, as Defendants are
already under a duty to preserve material evidence during not
only the course of litigation, but also during the “period
before the litigation when a party reasonably should know that
the evidence may be relevant to anticipated litigation.”
Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir.
2001)(citing Kronisch v. United States, 150 F.3d 112, 126 (2d
Cir. 1998).

The TRO and the preliminary injunction are

“extraordinary remedies involving the exercise of very farreaching power to be granted only sparingly and in limited
circumstances.”

MicroStrategy Inc. v. Motorola, Inc., 245 F.3d

335, 339 (4th Cir. 2001).

Because Defendants are already under

an obligation to preserve material evidence, the unjustified
breach of which can be readily remedied with sanctions, a TRO is
unnecessary in this case to avoid irreparable harm to Plaintiff.
Several circuits have recognized that an ex parte TRO
may be appropriate to preserve evidence in rare circumstances,
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but merely “[s]howing that the adverse party would have the
opportunity to conceal evidence is insufficient to justify
proceeding ex parte” with a TRO.

First Technology Safety

Systems, Inc. v. Depinet, 11 F.3d 641, 651 (6th Cir. 1993).

The

Plaintiff must also show that “the adverse party is likely to
take the opportunity for such deceptive conduct,” through
evidence indicating the defendant’s past willingness to
disregard court orders or conceal evidence.

Id.

Plaintiff has

not demonstrated that Defendants are likely to improperly
conceal evidence in this case.
Accordingly, Plaintiff has failed to show that absent
a TRO, they will suffer irreparable harm through destruction of
evidence.
3. Balance of Equities
On the information presently before this Court, the
balance of equities tips in favor of Defendants.

Defendants

have been directed by SCEHD to “immediately take steps to
mitigate the potential public health and environmental threats
indicated,” including the low chlorination levels in the hot tub
and spa.

(Pl.’s Decl., Ex. A, at 11.)

That notice from SCEHD

goes on to inform Defendants that “failure to institute the
requirements above may affect further investigation and
potential enforcement by the Commissioner and [the Virginia
Department of Health].”

(Id.)

If this Court issues a TRO
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enjoining Defendants from altering the conditions of their water
systems, it will be impossible for Defendants to comply with
SCEHD’s directives, and may expose SCEHD to further enforcement
action by the Virginia Department of Health.

Additionally, a

TRO preventing Defendants from altering the condition of their
water systems would risk exposing Defendants’ employees, guests,
and curious passersby to the potentially hazardous water
therein.

Absent a TRO, Plaintiff may be unable to find a

smoking gun proving the existence of Legionella bacteria in the
hot tub now, but they will still have the ample circumstantial
evidence identified in their Complaint and their Memorandum in
Support that “[b]y far the most plausible source for the
Legionella that afflicted Peter Neely and led to his death is
defendants’ whirlpool tub.”

(Pl.’s Mem. in Sup. at 6-7.)

If

no TRO is issued, Plaintiff may lose a valuable, but not
invaluable piece of evidence, whereas if a TRO is issued,
Defendant will be unable to comply with an order from SCEHD,
suffer continued exposure to state disciplinary action, and
suffer the continued existence of a dangerous but attractive
nuisance on their property.

Accordingly, the Court finds that

the balance of equities weighs in Defendants’ favor and against
granting the TRO.
4. Public Interest

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The public interest weighs strongly against issuing a
TRO here.

Plaintiff argues that “any attempt at remediation of

the Legionella situation in the whirlpool tub in response to
this suit would endanger public health.”
8.)

(Pl.’s Mem. in Sup. at

The Court finds that on the contrary, the issuance of a TRO

preventing remediation of any Legionella situation would
endanger public health.

SCEHD has already declared that the

condition of the “swimming pool and spa waters constitute real
or potential threats to the health and safety of you [sic]
patrons as well as the public at large.”
11.)

(Pl.’s Decl., Ex. A at

There is no way in which a TRO forbidding the remediation

of a public health risk would further public health.

The

issuance of such a TRO would only serve to endanger public
health.

The public interest is clearly in remedying dangerous

or unhealthy situations and preventing the further spread of
disease.
In addition to the public health concerns, public
policy concerns also weigh against issuance of the TRO sought by
Plaintiff.

SCEHD has already directed Defendants to

“immediately take steps to mitigate the potential public health
and environmental threats indicated,” including the low
chlorination levels in the hot tub and spa.
4], Ex. A at 11.)

(Pl.’s Decl. [Dkt.

As a guiding principle, federal courts should

“exercise their discretionary power with proper regard for the
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rightful independence of state governments in carrying out their
domestic policy.”
(1943).

Burford v. Sun Oil Co., 319 U.S. 315, 318

By seeking a TRO which would directly conflict with the

direction of SCEHD, Plaintiff would bring this Court into
conflict with SCEHD and potentially the Virginia Department of
Health.

The general principles of federalism and comity counsel

against issuing such an order.

See Johnson v. Collins

Entertainment Co., Inc., 199 F.3d 710, 719 (4th Cir.
1999)(“Principles of federalism and comity require no less” than
“respect [for] the efforts of state government to ensure uniform
treatment of essentially local problems.”); Fralin and Waldron,
Inc. v. City of Martinsville, 493 F.2d 481, 483 (4th Cir.
1974)(Courts should “avoid needless friction in federal-state
relations over the administration of purely state affairs.”).
Accordingly, the Court finds that the public interest
weighs strongly against the issuance of the TRO sought by
Plaintiff.

Plaintiff has failed to establish any of the four

prerequisites to issuance of a TRO, and has further failed to
justify the necessity of proceeding ex parte rather than
notifying Defendants.

Accordingly, the Court will deny

Plaintiff’s Motion for a TRO once jurisdiction is clarified.
IV. Conclusion

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For the foregoing reasons, the Court will dismiss
Plaintiff’s Complaint if not amended to clarify jurisdiction
within 10 days and deny Plaintiff’s Motion for a TRO once
jurisdiction has been established. An appropriate Order shall
issue.

/s/
August 18, 2016
Alexandria, Virginia

James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE

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