McNeilly v. Greenbrier Resort et al

Filing 91

MEMORANDUM OPINION AND ORDER: The Court ADOPTS the 72 Proposed Findings and Recommendation by Magistrate Judge and ORDERS that Defendant Gallagher Basset's 40 Motion to Dismiss for Failure to State a Claim and Defendant Justice Family Group 's 60 Motion to Dismiss for Failure to State a Claim be GRANTED to the extent they seek dismissal of the action and DENIED to the extent they request costs and attorneys' fees. Signed by Judge Irene C. Berger on 11/26/2013. (cc: attys; any unrepresented party) (slr)

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

GREENBRIER HOTEL CORPORATION, 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”)1; (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).
In a previous Opinion, the Court granted the Greenbrier Resort’s motion to dismiss the Plaintiff’s
1 By Stipulation and Agreed Order entered on September 10, 2013, Greenbrier Hotel Corporation was substituted as a
Defendant in place of The Greenbrier Resort. (Document 68.)

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claims for negligence of right to care of choice and for failure to pay medical claims, leaving only
the claim for negligence pertaining to premises. (Mem. Opn. (Document 39.) In addition, the
Court granted motions to dismiss from Defendants Justice, Miller, Fogus, and Stacy, leaving as
defendants the Greenbrier Hotel Corporation, the Justice Family Group, and Gallagher Basset
Services. On April 18, 2013, Defendant Gallagher Basset Services filed a Motion to Dismiss
(Document 40) in which it argues that the Plaintiff has failed to state a claim upon which relief may
be granted. On July 5, 2013, Justice Family Group, LLC filed a Motion to Dismiss (Document
60), also asserting that the Plaintiff failed to state a claim upon which relief may be granted. Each
Defendant included a claim for costs incurred in defending the matter. The Plaintiff filed a
Response in Opposition to Defendant Gallagher Basset’s motion (Document 47), but did not file a
Response to Defendant Justice Family Group’s Motion.
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 October 22, 2013, the Magistrate Judge submitted Proposed Findings and Recommendation
(PFFR) (Document 72), wherein it is recommended that this court deny in part and grant in part
Defendants’ motions. Specifically, the Magistrate Judge found that the Plaintiff had failed to state
the essential elements of any cause of action against Gallagher Basset Services, and failed to
respond to Defendant Justice Family Group’s motion to dismiss despite issuance of notice
advising her that her claims were subject to dismissal if she failed to respond. (PFFR at 10–14.)
The Magistrate Judge also found that each Defendant’s request for costs and attorney fees should
be denied. (PFFR at 14–15.)

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Objections to the Magistrate Judge=s Proposed Findings and Recommendation were due by
November 8, 2013.

No party has timely filed objections to the 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, 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 Defendant Gallagher Basset’s Motion to Dismiss
(Document 40) and Defendant Justice Family Group’s Motion to Dismiss (Document 60) be
GRANTED to the extent they seek dismissal of the action and DENIED to the extent they request
costs and attorneys’ fees.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to any
unrepresented party.
ENTER:

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November 26, 2013