United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE
matter is now before the Court on Plaintiff Melissa
Diretto’s (“Plaintiff”) Ex Parte Motion for
Immediate Hearing (“Plaintiff’s Motion for a
TRO”) [Dkt. 2] seeking a Temporary Restraining Order
(“TRO”) enjoining Defendant Country Inn &
Suites and Defendant Sun Group Management, LLC (“Sun
Group”)(collectively, “Defendants”) from
altering the state of their water systems. For the following
reasons, the Court requests clarification on the basis for
its jurisdiction, upon receipt of which, it will deny
Plaintiff’s Motion for a TRO.
following facts are taken from Plaintiff’s Complaint
[Dkt. 1], Plaintiff’s Memorandum of Points and
Authorities (“Plaintiff’s Memorandum in
Support”) [Dkt. 3], and the Declaration of Christopher
M. Day (“Plaintiff’s Declaration”) [Dkt.
times during the events identified below and continuing until
Decedent Peter Neely’s (“Decedent”) death
on July 10, 2016, Plaintiff was Decedent’s wife.
(Compl., ¶ 7.) Decedent was diagnosed with Acute
Lymphocytic Leukemia in 2014 and underwent a stem cell
transplant treatment in July of 2015. (Id. at ¶
13.) From June 22-24, 2016, Decedent, along with two of his
minor children stayed at the Country Inn & Suites by
Carlson hotel located at 656 Warrenton Road, Fredericksburg,
Virginia 22406 (“Fredericksburg Country Inn &
Suites”) as paying guests. (Id. at ¶14.)
During this time, the Fredericksburg Country Inn & Suites
furnished guests with showers, faucets, a pool, a whirlpool
tub or spa (“hot tub”), and other water systems,
the water of which was intended for use and consumption by
the guests generally. (Id. at ¶ 15.) During his
stay at the hotel, Decedent availed himself of the use of the
water systems in the hotel, including use of the hot tub on
or about June 23, 2016. (Id. at ¶ 16.) The
water in the hot tub was heated, causing it to steam or
vaporize, thus allowing it to be inhaled and ingested by
decedent. (Id. at ¶ 17.)
3, 2016, Decedent began to experience symptoms consistent
with Legionnaires’ disease. (Id. at ¶
20.) On July 6, 2016, Decedent was admitted to the Hospital
of the University of Pennsylvania. (Id. at ¶
21.) A bronchoalveolar test on July 11, 2016 demonstrated
that Decedent had contracted Legionnaires’ disease.
(Id.) On July 10, 2016, Decedent died as a result of
Legionnaires’ disease. (Id. at ¶ 22.)
Plaintiff alleges that Decedent contracted his
Legionnaires’ disease from the negligently maintained
hot tub at the Fredericksburg Country Inn & Suites.
(Id. at ¶ 23.)
20, 2016 and July 25, 2016, Environmental Health Specialist
Jennifer Davies of the Virginia Department of Health
inspected the pool and hot tub at the Fredericksburg Country
Inn & Suites. (Id. at ¶ 18; Pl.’s
Decl., Ex. A, at 5-9.) During both of these inspections, the
chlorine levels of the pool and the hot tub were found to be
well below the Virginia Department of Health’s minimum
requirements. (Compl., ¶ 19; Pl.’s Decl., Ex. A,
at 5-9.) On July 25, 2016, the Stafford County Environmental
Health Department (“SCEHD”) issued a
“Notice of Alleged Violation” informing Peter Sun
of Sun Group that SCEHD had determined the conditions
observed by Jennifer Davies “may constitute threats to
public health and the environment” and directing Mr.
Sun to take steps to remedy the situation at the
Fredericksburg Country Inn & Suites. (Pl.’s Decl.,
Ex. A, at 11.)
August 12, 2016, Plaintiff filed this action against
Defendants alleging, generally, causes of action for wrongful
death by negligence and breach of contract. (Compl.,
¶¶ 25-72.) Simultaneously, Plaintiff filed their
Motion for a TRO along with Plaintiff’s Memorandum in
Support and Plaintiff’s Declaration. Plaintiff seeks a
TRO preventing the potential destruction of evidence by
enjoining Defendants from taking any action to alter the
condition of their water systems. Plaintiff has refrained
from serving Defendants with the Complaint or attempting to
contact Defendants regarding the TRO out of a concern that
informing Defendants of the existence of this lawsuit may
cause them to destroy evidence. Oral argument on
Plaintiff’s Motion for TRO took place on August 18,
2016, and the Motion is now ripe for decision.
standard for granting either a TRO or a preliminary
injunction is the same.” Moore v. Kempthorne,
464 F.Supp.2d 519, 525 (E.D. Va. 2006) (citations omitted).
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that he
is likely to suffer irreparable harm in the absence of
preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public
interest.” Winter v. Natural Res. Def.
Counsel, 555 U.S. 7, 20 (2008); see also Real Truth
About Obama, Inc. v. Fed. Election Comm’n, 575
F.3d 342, 346 (4th Cir. 2009) (citing Winter, 129
S.Ct. at 374), vacated on other grounds, 130 S.Ct.
2371 (2010), reinstated in relevant part, 607 F.3d
355 (4th Cir. 2010). The plaintiff bears the burden of
establishing that the court should grant a preliminary
injunction or a temporary restraining order. Manning v.
Hunt, 119 F.3d 254, 263 (4th Cir. 1997)(quoting
Hughes Network Systems, Inc. v. InterDigital Comm.
Corp., 17 F.3d 691, 693 (4th Cir. 1994)).
district courts are courts of limited jurisdiction,
possessing “only the jurisdiction authorized them by
the United States Constitution and by federal statute.”
United States ex rel. Vuyyuru v. Jadhav, 555 F.3d
337, 347 (4th Cir. 2009)(citing Bowles v. Russel,
551 U.S. 205, 211-12 (2007)). “Subject matter
jurisdiction cannot be forfeited or waived, and can be raised
by a party, or by the court sua sponte, at any time
prior to final judgment.” In re Kirkland, 600
F.3d 310, 314 (4th Cir. 2010); accord McCulloch v.
Velez, 364F.3d 1, 5 (1st Cir. 2004)(“It is
blackletter law that a federal court has an obligation to
inquire sua sponte into its own subject matter
contends that this Court has jurisdiction over this action
pursuant to 28 U.S.C. § 1332(a), which confers original
jurisdiction over cases where diversity of citizenship exists
between the parties and the amount in controversy exceeds
$75, 000.00. When invoking the jurisdiction of the federal
district courts pursuant to § 1332(a), “[t]he
burden to show the jurisdictional fact of diversity of
citizenship [is] on the . . . plaintiff.” King v.
Cessna Aircraft Co., 505 F.3d 1160, 1171 (11th Cir.
2007)(alteration and omission in original)(quoting
Slaughter v. Toye Bros. Yellow Cab Co., 359 F.2d
954, 956 (5th Cir. 1966)); accord Piney ...