Carter v. Big Lots Store, Inc., No. 5:2010cv00269 - Document 24 (E.D.N.C. 2011)
Court Description: ORDER granting 9 Motion to Dismiss plaintiff' second, third and fourth claims for relief; denying 15 Motion to Amend and denying 19 Motion to Amend. Remaining before the court is plaintiff's negligence claim. This matter is referred to United States Magistrate Judge David W. Daniel for a court-hosted settlement conference. Copy to pro se plaintiff and copy forwarded to Judge Daniel. Signed by Senior Judge Malcolm J. Howard on 1/10/2011. (Heath, D.)
Download PDF
<![CDATA[
Carter v. Big Lots Store, Inc. Doc. 24 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION No. 5:10-CV-269-H(2) GRETCHEL CARTER, plaintiff, v. ORDER BIG LOTS STORES, INC., Defendant. This matter is before the court on defendant's motion to dismiss plaintiff's second, third, and fourth claims for relief [DE #9] and plaintiff's motions to amend her complaint [DE #15 & 19] . The parties have filed responses to the motions, time for further filings has expired. and the This matter is ripe for ruling. STATEMENT OF THE CASE Plaintiff instituted this action in the Superior Court of Wake County, North Carolina, for injuries allegedly sustained by her while Carolina. shopping Defendant pursuant to 28 U.S.C. jurisdiction. dismiss the at a timely § third Lots removed 1446(b) On August 9, second, Bi9 the in action and 1332(a) 2010, and Store Raleigh, to this North court based on diversity defendant filed a motion to fourth claims of plaintiff's Dockets.Justia.com complaint for failure to state a claim upon which relief can be granted. third Plaintiff objects to the dismissal of claims' and has respects.' moved to amend her the second and complaint in certain (See DE #15 & 19.) STATEMENT OF THE FACTS On May 20, 2007, plaintiJ:f, Gretchel Carter, was shopping at a Big Lots store located on New Bern Avenue in Raleigh, North Carolina. While walking in pair a. of open-toed, high-heeled shoes, plaintiff alleges that Elhe tripped on a 2x4 piece of wood that was bolted to the floor. Plaintiff asserts that there were no signs posted or other warnings given to alert shoppers of the danger caused by the 2x4 was part of Plaintiff alleges 2x4 and that a that corral she was used to later told that the store shopping she was permanently injured as a carts. result of the incident and that she has lost her job and been unable to engage in certain activities. COURT'S DISCUSSION 'Plaintiff has consented claim. (See DE #19.) to the dismissal of her fourth 'Specifically, plaintiff moves to amend the title to her second claim for relief, add a title to her third claim for relief, amend paragraphs 159 and 160 to omit allegations of willful and wanton conduct and malice, delete paragraphs 158 (willful and wanton conduct), 161 (reckless and intentional behavior), and 169 (ultahazardous activities of defendant), as well as her fourth claim for relief (strict liability) (See Stip. Dismissal [DE #16]; Mot. Amend Compl. [DE #19] . ) 2 I. Motion to Dismiss Plaintiff's claims damages, for relief, complaint to-wit: purports (1) to negligence, (3) an untitled third claim for relief now refers safe,") original to as and (4) a claim for strict "failure (2) four punitive (which plaintiff to keep premise liability. consented to the dismissal assert Because [sic] has liability claim, of her strict plaintiff the court is concerned only with whether plaintiff's second or third claims state a claim for relief. A federal district court confronted with a motion to dismiss for failure to state a claim should view the allegations of the complaint in the light most favorable to the plaintiff. See The Ibarra v. United States, 120 F.3d 472, 474 intent of complaint. Rule 12 (b) (6) is to test the (4th Cir. 1997). sufficiency of Edwards v. City of Goldsboro, 178 F.3d 231, 243 Cir. 1999). A surrounding the a (4th Rule 12(b) (6) motion "'does not resolve contests the facts, applicabili ty of defenses.'" Martin, 980 F.2d 943, 952 been stated adequately, merits Id. of a claim, or the (quoting Republican Party v. (4th Cir. 1992)). "[0] nce a claim has it may be supported by showing any set of facts consistent with the allegations in the complaint." Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007). 3 Bell "[Aj complaint need not 'make a case' against a defendant or 'forecast evidence sufficient to prove an element' of the claim." Chao v. Rivendell Woods, Inc., 415 F.3d 342, 349 (4th Cir. 2005) (quoting Iodice v. 2002)) . However, United States, 289 F.3d 270, 281 it must provide more than "an unadorned, defendant-unlawfully-harmed-me accusation." 129 S. Ct. 1937, 1949 (2009). Ashcroft v. to face.'11 not 'state Id. accept A. claim to relief that is true legal Iqbal, conclusions accepted as plausible (quoting Twombly, 550 U.S. at 570). as allegations. a the- "To survive a motion to dismiss, a complaint must contain sufficient factual matter, true, (4th Cir. on its The court need couched as factual Twombly, 550 U.S. at 555. Punitive Damages Plaintiff's second "claim"] for relief seeking punitive damages fails to state a claim upon which relief can be granted. Punitive upon damages proof fraudulent, 1D-15(a) . that are the available under North Carolina defendant engaged in malicious or willful or wanton. conduct N.C. Gen. law only that was Stat. § Both plaintiff's original complaint and her proposed ]As defendant points out, there is no independently cognizable cause of action for punitive damages in North Carolina. Punitive damages are "a form of relief ancillary to a recognized cause of action, which is sought in addition to compensatory damages." Belton v. Dodson Bros. Exterminating Co--,-, No. 1:09CV106, 2009 WL 3200035, at *6 (M.D.N.C. Sept. 30, 2009) . 4 amended complaint finding. B. fail to allege any facts to support such a This claim must therefore be dismissed. Failure to Keep Premises Safe Plaintiff's third claim is also subj ect to dismissal. this claim, plaintiff asserts that defendant was In grossly negligent in operating its store with a 2x4 bolted to the floor and that defendant's conduct "demonstrate[s] a careless, reckless, heedless and wanton disregard of the rights and safety of others," including plainti ff . allegations are (Compl. ~I~I These 170-74.) "formulaic recitations and legal conclusions." See Iqbal, 129 S. Ct. at 1951 (no presumption of truth afforded "formulaic recitations and legal conclusions"). Assuming that defendant negligently operated or maintained its premises, there is simply no factual support for plaintiff's claim that defendant was grossly negligent that it acted purposefully with a conscious disregard of the safety of others. See Yancey v. Lea, rises level of to the 354 N.C. 48, 53 (2001) ("An act or conduct gross negligence when the act is done purposely and with knowledge that such act is a breach of duty to others, others.) . i.e., a Plaintiff's conscious third disregard claim dismissed. 5 for of relief the safety must also of be II. Motions to Amend Plaintiff's proposed amendments to her complaint do remedy the deficiencies with her second and third claims. not They provide no additional factual support for plaintiff's claims for punitive damages or gross negligence. Consequently, of plaintiff's complaint would be futile amended, would Harvey, still be 438 F.3d 404, 426 subject to (4th Cir. amendment since the claims, dismissal. 2006) See (en banc) Laber if v. (leave to amend should be denied where amendment would be futile) CONCLUSION For [DE the #9] is foregoing GRANTED. reasons, defendant's Plaintiff's second, claims for relief are hereby DISMISSED. amend her complaint motion to third, dismiss and fourth Plaintiff's motions to Remaining before [DE #15 & 19] are DENIED. the court is plaintiff's negligence claim. Pursuant to Local Civil Rule 101.1, EDNC, and Rule 16 of the Federal Rules of Civil Procedure, this matter is referred to United States hosted Magistrate settlement Judge David W. conference. Daniel Magistrate for Judge a court- Daniel is directed to meet with the parties and supervise negotiations, with an issues. aim toward Magistrate reaching Judge an Daniel amicable resolution is full establish such rules as he may desire, 6 given of authority the to which shall be binding upon the parties conference. place The and their conference selected by Magistrate counsel will during be Judge the conducted Daniel course at a of the time and upon notice to the parties. This /0 tJf day of January 2011. ~hQ>~,.~~/ MALCO~. HOWARi6 Senior United States District Judge At Greenville, NC #31 7 _
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
