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Parker v. Wendy's Int'l, Inc.

United States District Court, E.D. Virginia, Newport News Division

August 22, 2014


For Teresa Ann Parker, Plaintiff: Benjamin McMullan Mason, LEAD ATTORNEY, Mason Mason Walker & Hedrick PC, Newport News, VA.

For Wendy's International, Inc., doing business as Wendy's Old Fashioned Hamburger, Defendant: Lindsey Anne Lewis, LEAD ATTORNEY, LeClair Ryan, A Professional Corporation, Richmond, VA; William Wiley Sleeth, LEAD ATTORNEY, LeClair Ryan PC (Williamsburg), Williamsburg, VA.

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This matter is before the Court on a motion to dismiss filed by Defendant Wendy's International, Inc. d/b/a Wendy's Old Fashioned Hamburger (" Defendant" ). After examining the briefs and the record, the Court determines that oral argument is unnecessary because the facts and legal contentions are adequately presented and oral argument would not aid in the decisional process. Fed.R.Civ.P. 78(b); E.D. Va. Loc. Civ. R. 7(J). For the reasons set

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forth below, Defendant's motion is GRANTED.


Teresa Ann Parker (" Plaintiff" ), a resident of Newport News, Virginia, alleges that, " on or about November 16, 2011," as she " was eating a bacon cheeseburger [that her husband] purchased from Defendant, she swallowed a foreign object which was on the bacon cheeseburger as a result of the preparation of the bacon cheeseburger at Defendant's restaurant." Compl. ¶ ¶ 4-5, ECF No. 1-1.[1] Plaintiff asserts that " the foreign object was a thin, square, hard piece of plastic used to seal the end of plastic bags containing rolls for serving cheeseburgers and other items at Defendant's restaurant." Id. ¶ 6. Plaintiff claims that, " as a result of swallowing the thin, square, hard plastic item, it became lodged in her throat and rendered her unable to breathe," which caused Plaintiff's husband " to perform life saving procedures to dislodge the thin, square, hard plastic item from Plaintiff's throat." Id. ¶ ¶ 7-8. Plaintiff's Complaint alleges that, after " Plaintiff sought medical treatment on the same evening," she " returned to Defendant's restaurant . . . to advise the Defendant's representative of her injury and to show the Defendant's representative the thin, square, hard plastic item which had become lodged in her throat." Id. ¶ ¶ 9-10.

Plaintiff filed a Complaint in the Newport News Circuit Court, alleging two Counts against Defendant. Count I advances a negligence claim, alleging that " Defendant was negligent in one or more of the following particulars:" (1) " negligently allow[ing] a foreign object to contaminate a food product that it offers for sale; " (2) " negligent[ly] failing to supervise its employees and to keep them from allowing foreign objects to be in its food products; " (3) " negligent[ly] failing to inspect its food products for foreign objects that may cause harm to its patrons, including Plaintiff; " and (4) " negligent[ly] serving or causing to be served to Plaintiff food items which were contaminated with foreign objects." Id. ¶ 12. Count II advances a claim of " Serving Adulterated Food," alleging that " Defendant served adulterated food to Plaintiff in one or more of the following particulars:" (1) " offer[ing] for sale a bacon cheeseburger which was adulterated; " and (2) " serv[ing] a bacon cheeseburger which was adulterated." Id. ¶ 17.

On May 22, 2014, Defendant filed a Notice and Petition for Removal with this Court, pursuant to 28 U.S.C. § 1332 and 1441, alleging diversity jurisdiction. ECF No. 1. Along with the Notice and Petition for Removal, Defendant filed a Demurrer/Motion to Dismiss, Answer and Affirmative Defenses. ECF No. 2. Defendant alleges that Count I of Plaintiff's Complaint, entitled " NEGLIGENCE", should be dismissed " to the extent (if any) that [Plaintiff] purports to allege negligent supervision,

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as no such cause of action exists under Virginia law." Id. ¶ 2. Defendant further alleges that Count II of Plaintiff's Complaint, entitled " SERVING ADULTERATED FOOD," should be dismissed entirely, " as no such cause of action exists under Virginia law (and, even if such did, Plaintiff failed to plead sufficient facts to support such cause of action)." Id. ¶ 3. Defendant filed a supporting brief on June 2, 2014. ECF No. 8. Plaintiff filed her responsive brief on June 16, 2014, ECF No. 9, and Defendant filed its reply brief on June 19, 2014, ECF No. 11. Accordingly, this matter is ripe for review.


" Federal courts sitting in diversity apply federal procedural law and state substantive law." Hartford Fire Ins. Co. v. Harleysville Mut. Ins. Co.,736 F.3d 255, 261 n.3 (4th Cir. 2013) (citing Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 135 L.Ed.2d 659 (1996)); see also Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109 (4th Cir. 1995) (observing that " a federal court is to apply state substantive law and federal procedural law in diversity cases" ). Accordingly, with respect to those claims on which the Court's jurisdiction is based upon diversity of the parties, the Court applies the substantive law of the forum state. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. ...

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