Diretto v. Country Inn & Suites by Carlson et al
MEMORANDUM OPINION re: Pltf's Rule 72(a) Objection to the Magistrate Judge's Ruling (Dkt. 32) and Deft's Partial Motion to Dismiss (Dkt. 40). Signed by District Judge James C. Cacheris on 02/02/17. (pmil, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
COUNTRY INN & SUITES BY
CARLSON, et al.,
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’s Rule
72(a) Objection to the Magistrate Judge’s Ruling [Dkt. 32] and
Defendant’s Partial Motion to Dismiss [Dkt. 40].
reviewed the pleadings, the Court will overrule Plaintiff’s Rule
72(a) objection and grant Defendant’s Motion to Dismiss in part
and deny it in part.
The allegations of fact from Plaintiff’s Amended
Complaint are taken as true for purposes of Defendant’s Motion
See E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011).
From June 22 to June 24, 2016, Peter Neely and two of
his minor children stayed at Defendant Country Inns & Suites by
Carlson, a hotel owned by Defendant Sun Group Management, LLC.
Am. Compl. [Dkt. 18] ¶¶ 9, 10, 15.
During his stay, Mr. Neely
availed himself of the hotel’s amenities, including a shower, a
faucet, and most importantly, a whirlpool tub.
Id. ¶ 17.
tub’s water was heated, and Plaintiff inhaled the resulting
vapor while using it.
Id. ¶ 18.
On July 3, 2016, Mr. Neely began to experience the
symptoms of Legionnaires’ disease, id. ¶ 22, a form of pneumonia
that can be caused by the inhalation of waterborne bacteria.
Mr. Neely was particularly susceptible to the disease, having
undergone a stem cell transplant in 2015.
Id. ¶ 14.
admitted to the Hospital of the University of Pennsylvania on
July 6, 2016, and died four days later on July 10, 2016.
¶¶ 24, 25.
The following day, a bronchoalveolar test confirmed
that Mr. Neely’s death had been caused by Legionnaires’ disease.
Id. ¶ 24.
On July 20 and 25, 2016, an Environmental Health
Specialist with the Virginia Department of Health inspected the
whirlpool tub at the hotel where Mr. Neely and his children had
stayed the previous month.
Id. ¶ 19.
The Specialist found that
the tub’s water was substantially underchlorinated and that its
flow meters appeared non-functional.
Id. ¶ 20.
as an essential safeguard against the bacteria that causes
Id. ¶ 21.
After the inspections,
Defendants chlorinated their water system to bring it back into
compliance with Virginia’s public health standards.
On August 12, 2016, Plaintiff Melissa Diretto – Mr.
Neely’s widow and executrix of his estate, id. ¶ 7 – filed suit
against Defendants, contending that Defendants’ failure to
maintain their water system caused Mr. Neely’s death.
day, Plaintiff filed an Ex Parte Motion [Dkt. 2] seeking a
temporary restraining order preventing Defendants from
destroying any bacteria in their water system and permitting
Plaintiff to perform tests on that water.
The Court denied
Plaintiff’s Motion on August 18, 2016, see Memorandum Opinion
[Dkt. 12], and required Plaintiff to submit an amended complaint
clarifying the Court’s jurisdiction over this matter.
Plaintiff filed her Amended Complaint [Dkt. 18] on
August 30, 2016, and on September 9, 2016, renewed her request
for expedited testing of Defendants’ water system under Federal
Rule of Civil Procedure Rule 34.
See Rule 34 Mot. to Inspect
That Motion was referred to Judge Davis, who denied
it on September 16, 2016.
See Order [Dkt. 31].
later, Plaintiff filed a Rule 72(a) Objection [Dkt. 32] to Judge
Davis’ ruling, but did not include the notice of oral argument
required by Local Civil Rule 7(E).
Several days after that,
Plaintiff filed a waiver of oral argument.
The inspection of
Defendant’s water system took place shortly thereafter, on
October 20, 2016, without the Court having ruled on Plaintiff’s
On November 7, 2016, Defendants filed a Partial Rule
12(b)(6) Motion to Dismiss [Dkt. 40], directed at Counts I, II,
V, and VI of Plaintiff’s Amended Complaint.
however, also failed to file the notice of oral argument
required by Local Civil Rule 7(E).
Defendants did not do so
until December 5, 2016 – two days before the Motion would have
been deemed withdrawn under that Rule.
Plaintiff failed to
respond to Defendants’ Motion, and the time for any such
response has now elapsed.
II. Legal Standard
Federal Rule of Civil Procedure 72(a) authorizes
magistrate judges to enter final orders on non-dispositive
pretrial matters. If a party objects to a magistrate judge’s
ruling on a non-dispositive matter, a district court judge may
set it aside if it is “clearly erroneous or contrary to law.”
Id.; FEC v. Christian Coalition, 178 F.R.D. 456, 459 (E.D. Va.
This standard is deferential, and the magistrate judge’s
ruling will be affirmed unless the entire record leaves the
Court with “the definite and firm conviction that a mistake has
Harman v. Levin, 772 F.2d 1150, 1153 (4th
“The purpose of a Rule 12(b)(6) motion is to test the
sufficiency of a complaint; importantly, [a Rule 12(b)(6)
motion] does not resolve contests surrounding the facts, the
merits of a claim, or the applicability of defenses.”
v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999)
In reviewing a motion to dismiss for
failure to state a claim under Rule 12(b)(6), the Court “must
accept as true all of the factual allegations contained in the
complaint,” drawing “all reasonable inferences” in the
E.I. du Pont de Nemours & Co., 637 F.3d at
440 (citations omitted).
Generally, the Court may not look
beyond the four corners of the complaint in evaluating a Rule
See Goldfarb v. Mayor & City Council of
Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).
A. Plaintiff’s Rule 72(a) Objection
Plaintiff objects to Judge Davis’ Order denying her
Rule 34 Motion, pursuant to which she sought to test Defendant’s
water system for Legionella bacteria on an expedited basis.
an initial matter, it appears that Plaintiff’s Objection is now
Although Plaintiff was not able to inspect Defendants’
water system on the timetable she desired, the inspection did
eventually take place on October 20, 2016.
See Mot. for
Extension of Time to Complete Discovery [Dkt. 51].
Plaintiff seeks in her Objection – one requiring that the
inspection take place immediately – would at this point be of
The Court therefore cannot presently award
Plaintiff any meaningful relief.
The Court notes that Plaintiff is herself partly to
blame for this state of affairs.
representations of urgency, Plaintiff waited two weeks after the
entry of the Judge Davis’ Order to lodge her Objection.
failed to file the waiver of oral argument required by this
Court’s local rules until several days after that.1
spanned more than half the time between Judge Davis’ Order and
the ultimate date of the inspection.
The Court notes as well that Plaintiff’s
characterization of Judge Davis’ Order is not entirely accurate.
While Judge Davis largely denied Plaintiff’s Motion, he ordered
Defendants to retain an expert within three weeks of the hearing
and to confer with Plaintiff to set a date for the inspection of
Defendants’ water system.
Judge Davis therefore did permit
early discovery, but did so in a manner that accounted for the
possibility of prejudice to Defendants.
Based on the
representations of Plaintiff’s counsel at the hearing on this
The parties are advised that this Court generally does
not begin to consider a motion until the movant has filed a
notice of oral argument pursuant to Local Rule 7(E). Failure to
follow Local Rule 7(E) therefore results in delayed proceedings.
matter, this delayed Plaintiff’s desired inspection by only
about two weeks.
Regardless, the Court finds no error in Judge Davis’
The order of a magistrate judge with respect to a
discovery motion may only be set aside under Federal Rule of
Civil Procedure 72(a) if it is “clearly erroneous or is contrary
This is a deferential standard.
155 F.R.D. 546, 547 (S.D.W. Va. 1994).
See Clark v. Milam,
Here, Plaintiff was
entitled to inspect Defendant’s premises under Rule 34 on an
expedited basis only upon a showing of “good cause.”
v. Ozoeneh, No. 3:08CV614, 2009 WL 1383307, at *3 (W.D.N.C. May
14, 2009); ForceX, Inc. v. Tech. Fusion, LLC, No. 4:11CV88, 2011
WL 2560110, at *5 (E.D. Va. June 27, 2011).
determined that Plaintiff largely failed to meet that standard,
and found that Defendants should be permitted time to retain an
expert to observe Plaintiff’s tests.
This conclusion was well supported.
Judge Davis correctly noted that Plaintiff’s various arguments
rested upon speculation.
First, Plaintiff’s counsel contended
that if the test was not performed on an expedited basis,
Defendants might destroy evidence of bacteria in their water
system through “hyper-chlorination.”
The only reason
Plaintiff’s counsel gave for his concern, however, was a similar
experience in a past case.
He provided no reason for the Court
to believe that Defendants here would resort to such unlawful
Furthermore, Plaintiff’s counsel was unable to explain
why sanctions, such as adverse inferences, would be insufficient
to address Defendants’ hypothetical malfeasance.
counsel was similarly unable to explain why, if Defendants were
indeed willing to destroy evidence, expedited discovery would do
any good, as Defendants had ample opportunity to hyperchlorinate their water system before the hearing.
Court notes that the undersigned had, just weeks prior, rejected
the very same argument when it was presented in support of
Plaintiff’s Motion for a TRO.
See Mem. Op. [Dkt. 12] at 9-10.
Plaintiff’s argument that evidence of bacteria might
simply disappear from Defendants’ water system was similarly
As Judge Davis observed, Plaintiff did not
adequately explain why, if evidence of bacteria could survive
for more than a month after Defendants’ efforts at remediation,
it would suddenly disappear given a few additional weeks.
short, Plaintiff did not so clearly demonstrate “good cause” as
to render Judge Davis’ decision clearly erroneous or contrary to
The Court will therefore overrule Plaintiff’s Objection to
Judge Davis’ Order.
B. Defendants’ Motion to Dismiss
Defendants move to dismiss Counts I and II of
Plaintiff’s Complaint, which allege claims for breach of
contract, as well as Counts V and VI, which allege negligence
Plaintiff has failed to respond, conceding the points
raised in Defendants’ Motion.
See Brown-Henderson v. Capital
One, N.A., No. CIV.A. DKC 13-3324, 2014 WL 3778689, at *1 (D.
Md. July 29, 2014) (discussing the effect of failing to respond
to a motion to dismiss).
As to Plaintiff’s breach of contract claim, Plaintiff
identifies no contractual provision Defendants allegedly
breached by failing to adequately maintain their water system.
While there does appear to have been an express contract between
the Mr. Neely and Defendant Country Inns & Suites, see Opp. Exh.
1 [Dkt. 41-1], in includes no warranties regarding the hotel’s
Moreover, Plaintiff does not allege facts to
support the proposition that an implied contract existed between
Mr. Neely and Defendants.
“Like an express contract, an
implied-in-fact contract is created only when the typical
requirements to form a contract are present” as determined
through “‘consideration of [the parties’] acts and conduct.’”
Courts evaluating a Rule 12(b)(6) motion may consider
documents expressly or necessarily incorporated by reference
into a plaintiff’s complaint without converting the motion into
one for summary judgment. See, e.g., Norfolk Fed’n of Bus.
Districts v. Dep’t of Hous. & Urban Dev., 932 F. Supp. 730, 736
(E.D. Va.), aff’d sub nom. Norfolk Fed’n of Bus. Districts v.
City of Norfolk, 103 F.3d 119 (4th Cir. 1996). It seems that
Defendants’ Exhibit 1 is the only express contract to have
existed between Mr. Neely and either Defendant. The Court
therefore deems it to be the express contract relied upon by,
and therefore incorporated into, Plaintiff’s Complaint.
Spectra-4, LLP v. Uniwest Commercial Realty, Inc., 290 Va. 36,
45 (2015) (quoting City of Norfolk v. Norfolk Cty., 120 Va. 356,
362 (1917)) (alteration in original).
The Complaint includes no
allegations regarding the conduct of the parties tending to show
that Defendants’ water system was the subject of a bargain upon
which there was mutual assent and consideration.
The lack of a contract warranting the safety of
Defendants’ water system is unsurprising, as Defendants owed
Plaintiff a duty to maintain their water system independent of
any contractual provision.
As Defendants correctly point out,
this is a duty owed to the Defendants’ patrons under the common
As such, any action for breach of this duty sounds in tort
rather than in contract.
As the Supreme Court of Virginia has
If the cause of complaint be for an act of
omission or non-feasance which, without
proof of a contract to do what was left
undone, would not give rise to any cause of
action (because no duty apart from contract
to do what is complained of exists) then the
action is founded upon contract, and not
upon tort. If, on the other hand, the
relation of the plaintiff and the defendants
be such that a duty arises from that
relationship, irrespective of the contract,
to take due care, and the defendants are
negligent, then the action is one of tort.
Richmond Metro. Auth. v. McDevitt St. Bovis, Inc., 256 Va. 553,
558 (1998) (quoting Oleyar v. Kerr, Trustee, 217 Va. 88, 90
As for Plaintiff’s claim of negligence per se,
Defendants argue that Plaintiff cannot maintain both that claim
and a claim for ordinary negligence.
The Court disagrees.
A claim for ordinary negligence under the common law
requires that a plaintiff show “the existence of a legal duty,
violation of that duty, and proximate causation which results in
Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125,
Generally, where a claim of negligence is
concerned, the duty owed is one of ordinary care.
This is “‘a
relative term, and varies with the nature and character of the
situation to which it is applied,’” depending on the “‘degree of
care which an ordinarily prudent person would exercise under the
same or similar circumstances to avoid injury to another.’”
Perlin v. Chappell, 198 Va. 861, 864 (1957) (quoting Montgomery
Ward & Co. v. Young, 195 Va. 671, 673 (1954)).
Where a claim of
negligence per se is concerned, however, this flexible standard
is replaced by the “‘the requirements of a legislative
enactment’” relating to public safety.
Kaltman v. All Am. Pest
Control, Inc., 281 Va. 483, 496 (2011) (quoting Butler v.
Frieden, 208 Va. 352, 353 (1967)).
Here, Plaintiff contends
that the relevant legislative enactment is Virginia
Administrative Code sections 5-460 and 5-462, which govern the
maintenance of public water facilities.
Negligence and negligence per se constitute two
independent ways in which Plaintiff may prove her negligence
Plaintiff may show that the doctrine of negligence per
se applies in this instance, and that Defendants violated
Virginia Administrative Code sections 5-460 and 5-462.
Alternatively, she may prove her claim for ordinary negligence
by showing that Defendants, in maintaining their water system,
failed to exercise the “degree of care which an ordinarily
prudent person would exercise under the same or similar
circumstances to avoid injury to another.”
Perlin, 198 Va. at
While these are not entirely freestanding causes of
action, the Court can see no reason why Plaintiff is prohibited
from pleading both negligence and negligence per se.
Defendants point out that “the doctrine of negligence
per se does not create a cause of action where none otherwise
Williamson v. Old Brogue, Inc., 232 Va. 350, 355
This, however, is a non sequitur.
acknowledge in their Motion that there is a common law cause of
action for negligence here, such that might plausibly serve as a
basis for a claim of negligence per se.
The Court notes that it is unclear what Defendants
stand to gain from moving to dismiss Plaintiff’s claim for
negligence per se.
Defendants do not contend that Plaintiff is
precluded from simultaneously advancing both arguments discussed
Rather, they argue only that Plaintiff may not include
both in her Complaint.
This appears to be a cosmetic quibble
with Plaintiff’s pleadings that is irrelevant to the substance
of these proceedings.
For the foregoing reasons, the Court will overrule
Plaintiff’s Rule 72(a) Objection [Dkt. 32], and with grant in
part and deny in part Defendant’s Partial Motion to Dismiss
February 2, 2017
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
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