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Diretto v. Country Inn & Suites By Carlson

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

August 18, 2016

COUNTRY INN & SUITES BY CARLSON, et al., Defendants.



         This 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.

         I. Background

         The 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. 4].

         At all 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.)

         On July 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.)

         On July 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.)

         On 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.

         II. Legal Standard

         “The 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)).

         III. Analysis

         A. Jurisdiction

         Federal 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 jurisdiction.”).

         Plaintiff 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 ...

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