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Jarrell v. Kroger Limited Partnership I

United States District Court, E.D. Virginia, Norfolk Division

June 6, 2014

JULIE S. JARRELL, Plaintiff,
v.
KROGER LIMITED PARTNERSHIP I d/b/a Kroger Store #532, and CENTIMARK CORPORATION d/b/a QUESTMARK, a Division of Centimark Corporation, and WIMCO CORP., Defendants

For Julie S. Jarrell, Plaintiff: Daniel Mark Schieble, LEAD ATTORNEY, Anne Catherine Lahren, Pender & Coward PC, Virginia Beach, VA.

For Kroger Limited Partnership I, doing business as Kroger Store #532, Defendant: C. Kailani Memmer, Victor Samuel Skaff , III, LEAD ATTORNEYS, Guynn Memmer & Dillon PC, Salem, VA.

For Centimark Corporation, doing business as Questmark, a Division of Centimark Corporation, Defendant: Megan Paulita Bradshaw,LEAD ATTORNEY, Alexander William Charters, Goodman Allen & Filetti PLLC (Norfolk), Norfolk, VA.

For Wimco Corp, Defendant: Jonathan Robert DeLoatche, LEAD ATTORNEY, Williams Deloatche PC, Chesapeake, VA.

Page 646

MEMORANDUM OPINION AND ORDER

REBECCA BEACH SMITH, CHIEF UNITED STATES DISTRICT JUDGE.

This matter comes before the court on the Motion to Dismiss (" Motion" ), filed by

Page 647

Centimark Corporation d/b/a Questmark, a Division of Centimark Corporation (" Questmark" ), pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 19. For the reasons set forth herein, Questmark's Motion to Dismiss the Plaintiff's joint enterprise liability claim against it is DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

The instant lawsuit arises out of an accident allegedly suffered by the Plaintiff, Julie S. Jarrell, at Kroger Store #532 in the City of Virginia Beach, Virginia. See Compl. ¶ ¶ 1-4, 7-16, ECF No. 1-1 (records filed in the Circuit Court for the City of Norfolk, Virginia). In her Complaint, the Plaintiff alleges that she " tripped and fell and sustained serious and permanent injuries" while shopping in Kroger Store #532 on February 11, 2012. Compl. ¶ 14. As a result, the Plaintiff sued Kroger Limited Partnership I (" Kroger" ); Questmark; and Wimco Corp. (" Wimco" ) (collectively, " Defendants" ). See Compl. ¶ ¶ 3-6. The Plaintiff's Complaint alleges the following claims against the Defendants: negligence claims against Kroger, Questmark, and Wimco (Counts One, Two, and Three, respectively); a respondeat superior claim against all of the Defendants (Count Four); a gross negligence claim against all of the Defendants (Count Five); and a joint enterprise claim against all 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, ECF No. 1-1. Questmark also filed a Demurrer on 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 can be granted against Questmark. See generally Def.'s Dem., ECF No. 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, and the case was properly removed to this court. See id. 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. Supp. Mot. Dismiss at 2-4. On May 9, 2014, the Plaintiff filed a Response to Questmark's Rule 12(b)(6) Motion, arguing that her Complaint alleges sufficient facts to state a claim for joint enterprise liability against Questmark, and also that Questmark's Motion is untimely. See Pl.'s Resp. to Def.'s Mot. Dismiss at 2-4, ECF No. 23. Questmark filed a Reply to the Plaintiff's Response on May 12, 2014, arguing that its Motion is timely and reiterating its argument that the Complaint 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.

Page 648

II. TIMELINESS OF QUESTMARK'S MOTION TO DISMISS

As an initial matter, the Plaintiff argues that Questmark's Rule 12(b)(6) Motion should be denied as untimely. See Pl.'s Resp. to Def.'s Mot. Dismiss at 3-4. In support, the Plaintiff argues that Questmark should be barred from making the instant Motion because it has already filed an Answer to the Complaint in the Norfolk 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). " 'Thus, in order to be timely, a defendant should assert the defense of failure to state a claim before the close of pleadings.'" Morgan v. Wal-Mart Stores East, LP, No. 3:10CV669, 2010 WL 4394096, at *1 (E.D. Va. Nov. 1, 2010) (quoting Williams v. 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. Rule 3:8 of the Rules of the Supreme Court of Virginia requires a defendant to file responsive pleadings within twenty-one days after service of the 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 on January 13, 2014. See id. On February 3, 2014, twenty-one days after receiving service of process, Questmark timely filed both an Answer to the Plaintiff's Complaint and a Demurrer to the Plaintiff's 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 Rule of Civil Procedure 81(c)(2) provides that, " [a]fter removal, repleading is unnecessary unless the court orders it." Although the court did not order repleading, Questmark filed the instant Motion to Dismiss under Rule 12(b)(6) on April 29, 2014. Moreover, " after removal, the demurrer filed in state court will be treated as the federal equivalent--a motion to dismiss for failure to state a claim." Morgan, 2010 WL 4394096, at *2. Thus, because the substance of Questmark's Demurrer and the instant Motion is the same, and because Questmark timely filed its Demurrer in state court, the court considers Questmark's Rule 12(b)(6) Motion timely. See id. (granting a Rule 12(b)(6) motion filed by the defendant after removal to federal court, where the substance of the motion was identical to the substance of a demurrer timely filed in the state court by the defendant).

III. STANDARD OF REVIEW

Federal Rule of Civil Procedure 8(a)(2) provides, in pertinent part, " [a] pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief." The complaint need not have detailed factual allegations, but Rule 8 " requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell ...


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