United States District Court, W.D. Virginia, Big Stone Gap Division
James Hamilton, Plaintiff, Pro se.
Melissa W. Robinson and C. Kailani Memmer, Glenn Robinson § Cathey PLC, Roanoke, Virginia, for Defendants.
OPINION AND ORDER
James P. Jones, United States District Judge.
In this personal injury case, removed from state court, the plaintiff claims that he became ill from a foreign substance in an iced tea purchased at a fast food restaurant. He asserts claims against the owner of the restaurant and its alleged parent company for negligence, gross negligence, breach of implied warranty, and state law violations under the Virginia Consumer Protection Act (" VCPA" ), Va. Code Ann. § 58.2-196 et seq. Jurisdiction exists in this court pursuant to diversity of citizenship and amount in controversy. See 28 U.S.C. § 1332(a).
The defendant Boddie Noell Enterprises, d/b/a Hardee's (" BNE" ) has moved to dismiss the plaintiff's VCPA and gross negligence claims and any resulting claim for punitive damages, on the ground that insufficient facts have been alleged to support these claims. The defendant CKE Restaurant Holdings, Inc. (" CKE" ), claimed by the plaintiff to be the parent company, moves for dismissal on the grounds that the facts alleged do not state a claim against it. In response, the plaintiff has moved for leave to file a first amended complaint. The motions have been briefed and orally argued and are ripe for decision.
For the following reasons, I will dismiss the plaintiff's VCPA and gross negligence claims as well as all of the plaintiff's claims against defendant CKE. I will deny the remaining defendant's motion to strike the claim for punitive damages and I will deny the plaintiff's motion to amend.
The facts alleged, taken as true only for purposes of the Motion to Dismiss, leave little doubt that December 5, 2012, was a highly distressing day for the plaintiff James Hamilton, who is a practicing lawyer in Kentucky. While driving his mother through Virginia for medical treatment, Hamilton stopped and purchased an iced tea and biscuit at a Hardee's restaurant. Upon consuming the iced tea, Hamilton immediately noticed a strange, disagreeable taste. Soon after, he felt the onset of a rapid allergic reaction as his throat tightened, making it difficult for him to breathe. His symptoms quickly escalated into an anaphylactic shock reaction, forcing him to pull off the highway and take medication. As Hamilton was temporarily incapacitated, Hamilton's mother, who only had use of one of her hands, drove him to a local hospital. There, Hamilton was treated for anaphylactic shock and allergic reaction. Subsequent laboratory tests of
the tea revealed high levels of mold, to which Hamilton is highly allergic.
" A motion filed under Rule 12(b)(6) challenges the legal sufficiency of a complaint, considered with the assumption that the facts alleged are true." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009) (internal citation omitted). The Supreme Court has held that " [t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This standard requires a plaintiff to demonstrate more than " a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. Rather, " [a] claim has facial ...