United States District Court, E.D. Virginia, Newport News Division
OPINION & ORDER
HENRY COKE MORGAN, JR. SENIOR UNITED STATES DISTRICT JUDGE
This matter was before the Court on Defendant Hullihen's Lawn Care's ("'Hullihen's, ") Motion to Dismiss. Doc. 115. Hullihen's moved to dismiss Randolph Lee Darnell's ("Plaintiff") new claims alleged in his Second Amended Complaint. Doe. 106. For the following reasons, the Court DENIES Defendant Hullihen's Motion to Dismiss, I. BACKGROUND
A. Factual Allegations
This is an action for recovery of money damages pursuant to Plaintiffs personal injury in an auto collision. Hullihen's employed Defendant Sam R. Lloyd ("Lloyd") as a landscaper. Second Am. Compl. ¶ 7. On May 25, 2012, Plaintiff was driving on 1-64 West in Newport News, Virginia, when Lloyd struck him from behind. Id. ¶¶ 20, 22. At the time, Lloyd was driving Hullihen's truck and towing its trailer, Id. ¶ 20, Lloyd had been involved in a previous collision with the same truck and trailer, and he believed that the "the da** [trailer] brakes failed again" when he hit Plaintiff, Id. ¶ 23. Due to the collision, Plaintiff suffered a traumatic brain injury which caused further injuries and damages, including medical expenses and lost wages. See Id. ¶ 25.
B. Procedural History
On July 25, 2014, this matter was removed to this Court from the Circuit Court for the City of Newport News. Doc. 1. The most recent procedural history is as follows.
In October 2015, Defendants filed eight (8) joint motions in limine to preclude Plaintiffs experts from testifying at trial. Docs. 69, 71, 73, 75, 77, 79, 81, 83." Plaintiff moved for leave to amend his complaint on February 16, 2016, Doc. 100, and the Court granted the motion from the bench on March 14. Doc. 107; see Doc. 108. Plaintiff filed his Second Amended Complaint on March 14, Doc. 106, Hullihen's filed its answer on March 22, Doc. 117, and Lloyd filed his answer on March 23, Doc. 122. On March 18, the Parties filed a stipulation permitting depositions to be used at trial for nine (9) expert witnesses and any others added by all Parties' agreement. Doc. 110. The Parties were to complete discovery, except as to expert witnesses, by March 25. Doc. 99 at 1-2.
On March 21, Plaintiff filed a Motion to Compel the disclosure of Lloyd's insurance policy, to which Lloyd never responded. Doc. 113. On March 22, Hullihen's filed the instant Motion to Dismiss for failure to state a claim. Doc. 115. On March 28, Hullihen's filed a Motion to Compel Plaintiff to respond to a second request for production. Doc. 125. On March 28, the Court entered an order allowing the Parties to take the depositions of four expert witnesses by April 22 for presentation in evidence in lieu of their appearance at trial. Doc. 129. On April 1, Defendants filed a Joint Motion in Limine to exclude opinions of Dr. Walker. Doc. 131. On April 5, Plaintiff filed its response to the instant motion. Doc. 133. On April 6, Defendants filed a Motion in Limine to exclude opinions of Dr. Ross. Doc. 135. On April 11, Hullihen's filed its response to the instant Motion. Doc. 137. The final pretrial conference is scheduled for April 14, 2016, and trial is scheduled to begin on May 3, 2016.
II. LEGAL STANDARDS
A. Rule 12(b)(6)
A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint; "it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of North Carolina v. Martin. 980 F.2d 943, 952 (4th Cir. 1992). "To 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 (2009) (quoting Bell Atl. Corp. v. Twomblv. 550 U.S. 544, 570 (2007)). Although a court must accept as true all well-pleaded factual allegations and construe them in the plaintiffs favor, Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), the same is not true for legal conclusions, Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
In deciding the motion, a court may consider the facts alleged on the face of the complaint as well as "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint" without converting a Rule 12(b)(6) motion into a Rule 56 motion for summary judgment. Moore v. Flaestar Bank, 6 F.Supp.2d 496, 500 (E.D. Va. 1997) (quoting 5A Charles A. Wright & Arthur R. Miller, Fed. Prac. & Proc. § 1357 (1990)); see Pueschel v. United States. 369 F.3d 345, 353 n.3 (4th Cir. 2004) (citations omitted). "Consideration of a document attached to a motion to dismiss ordinarily is permitted only when the document is integral to and explicitly relied on in the complaint." Zak v. Chelsea Therapeutics
Int'l Ltd.. 780 F.3d 597, 606-07 (4th Cir. 2015) (quoting Am. Chiropractic Ass'n v. Tricon Healthcare. Inc.. 367 F.3d 212, 234 (4th Cir. 2004)) (alteration in original).
B. Sufficiency of Negligent Entrustment Allegations Under Virginia Law
A plaintiff must carefully plead negligent entrustment under Virginia law. See Turner v. Lotts. 224 Va. 554, 558 (1992). A plaintiff alleging auto collision injuries due to negligent entrustment must plead sufficient facts to show that "the owner knew, or had reasonable cause to know, that he was entrusting his car to an unfit driver likely to cause injury to others" and that the negligent entrustment proximately caused the injury. Denbv v. Davis. 212 Va. 836, 838-39 (1972). To date, "[t]he Supreme Court of Virginia has allowed jury findings of negligent entrustment to stand only where the owner had notice of some physical or mental defect of the driver." O'Brien v. Glenn. 80 Va.Cir. 188 (2011) (citing Hack v. Nester.241 Va. 499 (1990) (vehicle owner knew of broken headlight) and Denbv. 21 ...