McNeilly v. Greenbrier Resort et al

Filing 39

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 34 Proposed Findings and Recommendations of the Magistrate Judge, and ORDERS that: Defendant Greenbrier Resort's 11 Motion to Dismiss as to Plaintiff's "Claim of Negligence of Right to Care of Choice" and "Claim of Failure to Pay for Medical Expenses" be GRANTED, but that Defendant's Motions to Dismiss be DENIED as to Plaintiff's "Claim of Negligence Pertaining to Premises Liability" and as to its request for costs and attorney's fees. Defendant Justice's 12 Motion to Dismiss be GRANTED to the extent he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys' fees. Defendant Miller& #039;s 13 Motion to Dismiss GRANTED to the extent she seeks dismissal of the action and DENIED to the extent he requests costs and attorneys' fees. Defendant Fogus' 14 Motion to Dismiss be GRANTED to the extent he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys' fees. Defendant Stacy's 15 Motion to Dismiss be GRANTED to the extent he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys' fees. This matter be REFERRED back to the Honorable R. Clarke VanDervort for prosecution of Plaintiff's surviving claim for negligence pertaining to premises liability. Signed by Judge Irene C. Berger on 4/3/2013. (cc: USMJ VanDervort; attys; any unrepresented party) (msa)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION

SCARLETT FAITH MCNEILLY,
Plaintiff,
v.

CIVIL ACTION NO. 5:12-cv-04609

THE GREENBRIER RESORT, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff, Scarlett F. McNeilly, proceeding pro se, initiated this civil action after allegedly
sustaining injuries when she fell in a bathtub while a guest at the Greenbrier Resort against the
following Defendants: (1) the Greenbrier Resort (“the Resort”); (2) James C. Justice, II, alleged
owner of the Resort; (3) Justice Family Group, LLC, alleged owner of the Resort; (4) Gallagher
Basset Services, Inc., alleged insurance company for the Resort; (5) Kathy Miller, Resort Nurse;
(6) Paul Fogus, Resort security guard; and (7) Tom Stacy, Resort security guard. The Court has
reviewed the Plaintiff=s August 22, 2012 Complaint (Document 1) and the amended pleading filed
on December 3, 2012 (see Basis for the Court’s Jurisdiction (“Amended Complaint”) (Document
20)), wherein she has asserted three claims: negligence pertaining to premises liability, negligence
of right to care of choice, and failure to pay for medical expenses. (Amended Compl. §§ 10-12).

On November 1, 2012, in separately filed motions, five of the Defendants1 sought the dismissal of
Plaintiff’s asserted claims on the grounds that she failed to demonstrate subject matter jurisdiction,
state a claim upon which relief could be granted or properly serve the Defendants. 2 (See
Defendants’ Motions to Dismiss (Documents 11, 12, 13, 14, and 15)).
By Standing Order (Document 3) entered on August 22, 2012, this action was referred to
the Honorable R. Clarke VanDervort, United States Magistrate Judge, for submission to this Court
of proposed findings of fact and recommendation for disposition, pursuant to 28 U.S.C. ' 636.
On March 1, 2013, the Magistrate Judge submitted a Proposed Findings and Recommendation
(Document 34), wherein it is recommended that this Court deny in part and grant in part
Defendants’ motions and refer the matter back to him for further proceedings. Specifically, the
Magistrate Judge found, as each Defendant asserted in their reply submissions, that the
Defendants’ challenge of Plaintiff’s subject matter jurisdiction allegation was rendered moot
based upon her amended pleading. The Magistrate Judge also found that each Defendant’s
request for attorney fees as a result of any dismissal should be denied.
However, the Magistrate Judge found that Plaintiff failed to effect service on Defendants
James C. Justice, II and Kathy Miller when she attempted service through a person who was not an
agent or attorney-in-fact authorized by appointment or statute to receive or accept service of the
summons and complaint on behalf of these Defendants and because the service did not occur at the
1
As of the date of this opinion, the record does not reflect that Plaintiff has effectuated service upon named
Defendants Justice Family Group LLC and Gallagher Basset Services, Inc. On March 1, 2013, the assigned
Magistrate Judge granted Plaintiff additional time, until April 5, 2013, to serve summons upon these Defendants.
(Order (Document 33)).
2
Only Defendants James C. Justice, II and Kathy Miller sought the dismissal of this civil action for Plaintiff’s
failure to properly serve them pursuant to Rule 12(b)(5) of the Federal Rules of Civil Procedure. The remaining
Defendants asserted a challenge focused on Plaintiff’s allegations in support of her negligence of right to care of
choice and failure to pay for medical expenses claims.

2

Defendants’ dwelling or usual place of abode.

Consequently, the Magistrate Judge

Recommended that Defendants Justice and Miller’s motions to dismiss Plaintiff’s Complaint be
granted in this regard.
Relative to the Plaintiff’s claim for “negligence of right to care of choice” against the
remaining moving Defendants, the Magistrate Judge found that this claim should be dismissed
because there is no such cause of action in West Virginia. Additionally, the Magistrate Judge
found that, to the extent Plaintiff merely alleged a claim of negligence, she failed to allege what
injuries she suffered as a proximate cause of the Defendants’ conduct in attempting to care for her
following her alleged slip and fall or that she suffered injuries as a result of being moved by staff of
the Resort. Accordingly, the Magistrate Judge recommended that Defendants Greenbrier Resort,
Fogus and Stacy’s motion to dismiss this claim should be granted.
Finally, with respect to Plaintiff’s claim that Defendant Greenbrier Resort failed to pay her
medical expenses, the Magistrate Judge found that Plaintiff failed to sufficiently allege factual
detail to plausibly state a claim for relief on this breach of contract claim. Consequently, the
Magistrate Judge recommended that Defendant Greenbrier Resort’s motion to dismiss this claim
be granted. The Magistrate Judge also found that the Resort appeared to acknowledge that
Plaintiff’s “Claim of Negligence Pertaining to Premises Liability” was adequately stated and, thus,
this claim survived the Defendants’ motions.
Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by
March 18, 2013. No party has timely filed objections to the Magistrate Judge=s Proposed
Findings and Recommendation. The Court is not required to review, under a de novo or any other
standard, the factual or legal conclusions of the magistrate judge as to those portions of the
findings or recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
3

150 (1985). Failure to file timely objections constitutes a waiver of de novo review and the
Plaintiff=s right to appeal this Court=s Order. 28 U.S.C. ' 636(b)(1); see also Snyder v. Ridenour,
889 F.2d 1363, 1366 (4th Cir. 1989); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
Accordingly, the Court ADOPTS and incorporates herein the findings and
recommendation of the Magistrate Judge as contained in the Proposed Findings and
Recommendation, and ORDERS that:
1.

Defendant Greenbrier Resort’s Motion to Dismiss (Document 11) as to Plaintiff’s

“Claim of Negligence of Right to Care of Choice” and “Claim of Failure to Pay for Medical
Expenses” be GRANTED, but that this Defendant’s Motion to Dismiss be DENIED as to
Plaintiff’s “Claim of Negligence Pertaining to Premises Liability” and as to its request for costs
and attorneys’ fees.
2.

Defendant Justice’s Motion to Dismiss (Document 12) be GRANTED to the extent

he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys’ fees.
3.

Defendant Miller’s Motion to Dismiss (Document 13) be GRANTED to the extent

she seeks dismissal of the action and DENIED to the extent she requests costs and attorneys’ fees.
4.

Defendant Fogus’ Motion to Dismiss (Document 14) be GRANTED to the extent

he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys’ fees.
5.

Defendant Stacy’s Motion to Dismiss (Document 15) be GRANTED to the extent

he seeks dismissal of the action and DENIED to the extent he requests costs and attorneys’ fees.
6.

This matter be REFERRED back to the Honorable R. Clarke VanDervort for

prosecution of Plaintiff’s surviving claim for negligence pertaining to premises liability.

4

The Court DIRECTS the Clerk to send a certified copy of this Order to Magistrate Judge
VanDervort, to counsel of record, and to any unrepresented party.
ENTER:

5

April 3, 2013