Jarrell v. Kroger Limited Partnership I et al, No. 2:2014cv00057 - Document 29 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION AND ORDER denying 19 Motion to Dismiss for Failure to State a Claim. Copy of this order distributed to all parties on 6/6/14. Signed by Chief District Judge Rebecca Beach Smith on 6/6/14 and filed on 6/6/14. (Attachments: # 1 Exhibit A) (tbro)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Norfolk Division JULIE S. JARRELL, Plaintiff, v. CIVIL ACTION NO. KROGER LIMITED PARTNERSHIP 2:14cv57 I d/b/a Kroger Store #532, and CENTIMARK CORPORATION d/b/a QUESTMARK, a Division of Centimark Corporation, and WIMCO CORP., Defendants. MEMORANDUM OPINION AND ORDER This matter comes before the court on the Motion to Dismiss ("Motion"), Division of filed by Centimark Corporation d/b/a Corporation Federal Rule of reasons set forth herein, joint enterprise Plaintiff's Civil Centimark Procedure ("Questmark"), 12(b)(6). liability No. Motion Questmark's ECF to claim Questmark, a pursuant to 19. For the Dismiss the against it is DENIED. I. The instant suffered by the FACTUAL AND PROCEDURAL lawsuit arises Plaintiff, Julie out S. BACKGROUND of an accident Jarrell, at allegedly Kroger Store #532 in the City of Virginia Beach, Virginia. See Compl. HH 1-4, 7-16, City ECF No. of alleges 1-1 (records Norfolk, that permanent filed Virginia) . she In "tripped and injuries" while in the her fell shopping Circuit Court Complaint, the and sustained in Kroger for the Plaintiff serious Store and #532 on February 11, 2012. Compl. K 14. As a result, the Plaintiff sued Kroger Corp. Limited ("Wimco") Partnership I ("Kroger"); Questmark; (collectively, "Defendants"). See Compl. 1111 3-6. The Plaintiff's Complaint alleges the following claims against the Defendants: negligence claims against Kroger, Wimco (Counts One, superior claim gross and a Two, and Three, against negligence Five); and Wimco all claim joint of respectively) ; a respondeat the against Defendants all enterprise Questmark, and of the claim (Count Four); Defendants against all a (Count of the Defendants (Count Six). See Compl. %% 7-55. According to the Norfolk Circuit Court docket sheet attached to this Memorandum Opinion and Order as Exhibit A, the Plaintiff filed her Complaint in the Circuit Court for the City of Norfolk, Virginia, on January 6, 2014. See Ex. A. Questmark filed an Answer denying the substance of the Plaintiff's claims against it on February 3, 2014. See generally Def.'s Answer, No. 1-1. Questmark also filed a Demurrer on ECF February 3, 2014, arguing that the Complaint fails to allege a sufficient factual basis to plead a claim of joint enterprise liability upon which relief Dem., can be granted against Questmark. ECF No. See generally Def.'s 1-1. On February 12, 2014, Kroger filed a Notice of Removal to remove the action to this court from the Norfolk Circuit Court. See generally Notice of Removal, ECF No. 1. Questmark and Wimco consented to the removal, this court. See id. and the case was properly removed to Questmark then filed the instant Motion to Dismiss on April 29, 2014.1 In the Motion, Questmark moves to dismiss the Plaintiff's joint enterprise liability claim against it, pursuant to Federal Rule of Civil Procedure 12(b)(6). See Mot. at 1; Def.'s Mem. Supp. Mot. Dismiss at 2-4, ECF No. 20. In support of its Motion, Questmark argues that the Complaint fails to allege sufficient facts to support a claim for joint enterprise liability against it. See Def.'s Mem. the Plaintiff Motion, Supp. filed a arguing that Mot. Dismiss at Response to 2-4. On May 9, 2014, Questmark's Rule 12(b)(6) her Complaint alleges sufficient facts to state a claim for joint enterprise liability against Questmark, and also that Questmark's Motion is untimely. Def.'s Mot. to the Dismiss at 2-4, Plaintiff's ECF No. Response 23. See PL's Resp. to Questmark filed a Reply on May 12, 2014, arguing that its Motion is timely and reiterating its argument that the Complaint 1 Questmark initially filed the Motion Certificate of Service. Questmark filed a of Service on April 30, 2014. with an incomplete corrected Certificate fails to state a claim for joint enterprise liability against Questmark. See Def.'s Reply to PL's Resp. at 1-3, ECF No. 24. II. TIMELINESS OF QUESTMARK'S MOTION TO DISMISS As an initial matter, Rule 12(b)(6) Resp. Motion to Def.'s Mot. argues the Plaintiff argues that Questmark's should be denied Dismiss at 3-4. as untimely. See PL's In support, the Plaintiff that Questmark should be barred from making the instant Motion because it has in the Norfolk already filed an Answer to the Complaint Circuit Court. See id. The Plaintiff's argument is without merit. A Rule 12(b)(6) motion "must be made before pleading if a responsive pleading is allowed." Fed. R. Civ. P. 12(b). in order to be timely, "xThus, a defendant should assert the defense of failure to state a claim before the close of pleadings.'" Morgan v. *1 Wal-Mart Stores (E.D. Va. East, LP, Nov. 1, 2 010) No. 3:10CV669, 2010 WL 4394096, (quoting Williams v. at Equity Holding Corp., 498 F. Supp. 2d 831, 839 (E.D. Va. 2007)). Here, Questmark asserted its defense of failure to state a claim on the Plaintiff's joint enterprise claim before the close of pleadings. Virginia within Rule requires twenty-one 3:8 a of the defendant days after Rules to of file service the Supreme responsive of the Court of pleadings summons and complaint. The Plaintiff filed her Complaint in Norfolk Circuit Court on January 6, 2014. See Ex. A. She then served the Summons and Complaint on Questmark February 3, 2014, process, twenty-one Questmark Plaintiff's on days timely Complaint and January 13, 2014. after filed an id. On service receiving both a Demurrer See of Answer to the to Plaintiff's the joint enterprise claim against Questmark. See generally Def.'s Answer; Def.'s Dem.; Ex. A.2 On February 12, 2014, the Defendants removed the case to this court from the Norfolk Circuit Court. Federal " [a]fter orders Rule removal, it." Questmark 12(b)(6) demurrer of Civil repleading Although filed on Procedure the the is April 29, 2014. filed in state 2010 WL 4394096, Questmark's Demurrer to will unless the order Dismiss court repleading, under Rule removal, "after treated that, the as the federal for failure to state a claim." *2. Thus, the court See after removal a Rule to Rule 12(b)(6) federal Motion the substance of because Questmark timely filed its Demurrer in state court, Questmark's instant because and id. (granting the be provides same, considers and not Moreover, court at did Motion equivalent a motion to dismiss Morgan, unnecessary court instant 81(c)(2) 12(b)(6) motion court, where is the Motion filed the by timely. the defendant substance of the 2 The court notes that, like Rule 3:8 of the Rules of the Supreme Court of Virginia, Federal Rule of Civil Procedure 12(a) gives a defendant twenty-one days to serve a responsive pleading. See Fed. R. Civ. P. 12(a). Thus, had the case originally been filed in this court, Questmark's Answer and Demurrer/Motion to Dismiss would have been timely filed. motion was identical to the substance of a demurrer timely filed in the state court by the defendant). III. Federal pertinent must Rule part, contain of "[a] ... STANDARD Civil short REVIEW Procedure pleading a OF that 8(a)(2) states and plain a provides, claim statement showing that the pleader is entitled to relief." for of in relief the claim The complaint need not have detailed factual allegations, but Rule 8 "requires more than labels and conclusions, the elements of a formulaic recitation of cause of action will not do." v. Twombly, 550 dismiss, complaint a and a U.S. 544, 555 must Bell Atl. Corp. (2007) . "To survive a motion to contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft (quoting Twombly, that a to the reasonable the misconduct 556) . It facts is, U.S. at inference therefore, not a Id. U.S. Facial content that for a allows defendant Id. (2009) the court is 550 plaintiff possibility" conduct. 678 plausibility means that the 662, (citing Twombly, enough "sheer with unlawful 556 570). factual alleged." demonstrating consist[ency]" Iqbal, U.S. "plaintiff pleads draw for 550 v. or to liable U.S. at allege "mere[] (citing Twombly, 550 at 556-57). The Supreme Court, in Twombly and Iqbal, to courts evaluating a motion to dismiss: offered guidance In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. 556 U.S. at 679. That is, the court accepts facts alleged Iqbal, in the complaint as true and views those facts in the light most favorable to F.3d 418, 420 the plaintiff. (4th Cir. Venkatraman v. 2005). Overall, REI Sys. Inc., 417 " [d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679. IV. ANALYSIS A. Applicable Law A federal district court hearing a case based on diversity jurisdiction, such as the the which state Elec. Inc. in Mfg. v. 2003) . St. Co., Paul Virginia determining the Jones 313 the instant case, court U.S. Mercury 487, Ins. applies applicable and Assoc. , Inc. , 41 the sits. must apply the law of See Klaxon 496-97 Co. , 347 F.3d lex loci law in tort S.E.2d 33, Stentor Online, 89, 92 delicti actions. 34 v. America (1941); Co. (Va. (4th Cir. rule for Jones v. R.S. 1993); see also Garcia v. Pittsylvania Cnty. Cir. 1988) controls Serv. Auth., 845 F.2d 465, (stating that "the law of the State of the accident the remedy sought in that particular forum") McCann v. Newport News Shipbuilding & Dry Dock Co., 909, 913 467 (4th (E.D. Va. 1959)). Thus, (citing 177 F. Supp. because the Plaintiff's alleged accident took place in Virginia, Virginia law applies to this tort action. B. Adequacy of the Plaintiff's Joint Enterprise Claim Against Questmark The Supreme Court of Virginia defines "joint enterprise" as "xTo constitute a joint enterprise within the meaning follows: of the law, the parties must have a community of interest in the object and purpose of direct and govern the movements respect 67, 68 (Va. (1) thereto.'" (Va. 1980) community of satisfied by the 68. a The at *1 263 S.E.2d at 69; common "equal right to (2) business Sullins v. (4th Cir. Miller, and to each other in of test has purpose, Strother, "is 263 S.E.2d 110 S.E.2d 198, 201 of or No. two elements: the right to element may be some kind 87-3657, of 1988 (citing Alban Tractor, 110 S.E.2d at 201). element right interest" Aug. 2, 1988) control" equal Sheffield, equality "community of consideration or benefit. WL 83330, v. joint enterprise interest; an conduct Alban Tractor Co. Thus, Id. at and and (quoting Miller v. Query, 1959)). control. the undertaking, Additionally, analogous to the agency principles-each party in a joint enterprise is an agent of the other." Id. (citing Alban Tractor, 263 S.E.2d at 68; Miller, 110 S.E.2d at 201) . With respect to Complaint asserts accident, that, Questmark employment on the "community of at was behalf the time "acting interest" and place of within of element, the Kroger." the scope Compl. the alleged of [its] f 19. The Complaint further states that "Questmark was engaged in design, construction, maintenance, Kroger Store #532. Compl. repair, H 20. and other Finally, activities" at the Complaint alleges that Questmark and Wimco "were acting as agents, servants and/or employees of defendant Kroger." Compl. H 39. The allegation that Kroger employed Questmark satisfies the "community of interest" element of the joint enterprise test, because employment implies consideration. See Sullins, 1988 WL 83330, Tractor, 263 S.E.2d at 69; Miller, at *1 (citing Alban 110 S.E.2d at 201). Regarding the "equal right to direct" element of the joint enterprise test, the Complaint states that the Defendants were "mutual and the agents construction, principals maintenance and in repair of operation, Kroger store design, #532." Compl. H 54. The term "mutual agents" does imply an equal right to direct the operation. See Sullins, 1988 WL 83330, at *1; Alban Tractor, 263 S.E.2d at 68; Miller, 110 S.E.2d at 201.3 In her Response Plaintiff does point to Questmark's to paragraphs fifty-one the Complaint as "clearly alleg[ing] defendants." fifty-one PL's Resp. states the defendants Kroger, the operation, Kroger store Motion Dismiss, the and fifty-two of joint enterprise among the to Def.'s Mot. following: to Dismiss at 2. Paragraph "[a]t all times mentioned, Questmark and Wimco were jointly engaged in design, #532 construction, located in maintenance and repair of Virginia Beach, Virginia." See PL's Resp. to Def.'s Mot. Dismiss at 2; Compl. H 51. Paragraph fifty-two states its the following: grocery operations, remain open while at engaged in the design, the premises." K 52. the "[i]n operating the store and defendant the same Kroger time Questmark 3 While and store Wimco to were construction, maintenance and repair of PL's Resp. to Def.'s Mot. Dismiss at 2; Compl. While neither paragraph directly joint allowed the enterprise test, they this allegation arguably states again appears the imply elements the of "mutual" to be a bare legal conclusion, with no facts to support it, no discovery has occurred at this very early stage of the litigation. Additionally, given the overall factual allegations of the Complaint, in the context of the claims presented, the court "draw[s] on its judicial experience and common sense," Iqbal, 556 U.S. at 679, to allow the joint enterprise claim to go forward at this juncture. 10 relationship of the parties.4 Thus, has stated a claim of joint the Plaintiff sufficiently enterprise liability upon which relief can be granted against Questmark.5 V. For Dismiss the the reasons set Plaintiff's CONCLUSION forth claim above, of Questmark's joint enterprise Motion to liability against it is DENIED. The Clerk is DIRECTED to forward a copy of this Memorandum Opinion and Order to counsel for the parties. IT IS SO ORDERED. /S/ Rebecca Beach Smith Chief United States District Judge REBECCA BEACH CHIEF UNITED SMITH STATES DISTRICT JUDGE June [p , 2014 4 See supra note 3 and accompanying text. 5 Certainly, Questmark and any other Defendant may renew this issue at the appropriate time in the discovery process on a motion for summary judgment, or at trial. See supra note 3 and accompanying text. 11
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