United States District Court, E.D. Virginia, Alexandria Division
C. CACHERIS UNITED STATES DISTRICT COURT JUDGE.
matter is before the Court on Plaintiff's Rule 72(a)
Objection to the Magistrate Judge's Ruling [Dkt. 32] and
Defendant's Partial Motion to Dismiss [Dkt. 40]. Having
reviewed the pleadings, the Court will overrule
Plaintiff's Rule 72(a) objection and grant
Defendant's Motion to Dismiss in part and deny it in
allegations of fact from Plaintiff's Amended Complaint
are taken as true for purposes of Defendant's Motion to
Dismiss. See E.I. du Pont de Nemours & Co. v. Kolon
Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011).
June 22 to June 24, 2016, Peter Neely and two of his minor
children stayed at Defendant Country Inns & Suites by
Carlson, a hotel owned by Defendant Sun Group Management,
LLC. Am. Compl. [Dkt. 18] ¶¶ 9, 10, 15. During his
stay, Mr. Neely availed himself of the hotel's amenities,
including a shower, a faucet, and most importantly, a
whirlpool tub. Id. ¶ 17. The tub's water
was heated, and Plaintiff inhaled the resulting vapor while
using it. Id. ¶ 18.
3, 2016, Mr. Neely began to experience the symptoms of
Legionnaires' disease, id. ¶ 22, a form of
pneumonia that can be caused by the inhalation of waterborne
bacteria. Mr. Neely was particularly susceptible to the
disease, having undergone a stem cell transplant in 2015.
Id. ¶ 14. He was admitted to the Hospital of
the University of Pennsylvania on July 6, 2016, and died four
days later on July 10, 2016. Id. ¶¶ 24,
25. The following day, a bronchoalveolar test confirmed that
Mr. Neely's death had been caused by Legionnaires'
disease. Id. ¶ 24.
20 and 25, 2016, an Environmental Health Specialist with the
Virginia Department of Health inspected the whirlpool tub at
the hotel where Mr. Neely and his children had stayed the
previous month. Id. ¶ 19. The Specialist found
that the tub's water was substantially underchlorinated
and that its flow meters appeared non-functional.
Id. ¶ 20. Chlorine serves as an essential
safeguard against the bacteria that causes Legionnaire's
disease. Id. ¶ 21. After the inspections,
Defendants chlorinated their water system to bring it back
into compliance with Virginia's public health standards.
August 12, 2016, Plaintiff Melissa Diretto - Mr. Neely's
widow and executrix of his estate, id. ¶ 7 -
filed suit against Defendants, contending that
Defendants' failure to maintain their water system caused
Mr. Neely's death. The same day, Plaintiff filed an
Ex Parte Motion [Dkt. 2] seeking a temporary
restraining order preventing Defendants from destroying any
bacteria in their water system and permitting Plaintiff to
perform tests on that water. The Court denied Plaintiff's
Motion on August 18, 2016, see Memorandum Opinion
[Dkt. 12], and required Plaintiff to submit an amended
complaint clarifying the Court's jurisdiction over this
filed her Amended Complaint [Dkt. 18] on August 30, 2016, and
on September 9, 2016, renewed her request for expedited
testing of Defendants' water system under Federal Rule of
Civil Procedure Rule 34. See Rule 34 Mot. to Inspect
[Dkt. 20]. That Motion was referred to Judge Davis, who
denied it on September 16, 2016. See Order [Dkt.
31]. Two weeks later, Plaintiff filed a Rule 72(a) Objection
[Dkt. 32] to Judge Davis' ruling, but did not include the
notice of oral argument required by Local Civil Rule 7(E).
Several days after that, Plaintiff filed a waiver of oral
argument. The inspection of Defendant's water system took
place shortly thereafter, on October 20, 2016, without the
Court having ruled on Plaintiff's Objection.
November 7, 2016, Defendants filed a Partial Rule 12(b)(6)
Motion to Dismiss [Dkt. 40], directed at Counts I, II, V, and
VI of Plaintiff's Amended Complaint. Defendants, however,
also failed to file the notice of oral argument required by
Local Civil Rule 7(E). Defendants did not do so until
December 5, 2016 - two days before the Motion would have been
deemed withdrawn under that Rule. Plaintiff failed to respond
to Defendants' Motion, and the time for any such response
has now elapsed.
Rule of Civil Procedure 72(a) authorizes magistrate judges to
enter final orders on non-dispositive pretrial matters. If a
party objects to a magistrate judge's ruling on a
non-dispositive matter, a district court judge may set it
aside if it is “clearly erroneous or contrary to
law.” Id.; FEC v. Christian
Coalition, 178 F.R.D. 456, 459 (E.D. Va. 1998). This
standard is deferential, and the magistrate judge's
ruling will be affirmed unless the entire record leaves the
Court with “the definite and firm conviction that a
mistake has been committed.” Harman v. Levin,
772 F.2d 1150, 1153 (4th Cir.1985).
purpose of a Rule 12(b)(6) motion is to test the sufficiency
of a complaint; importantly, [a Rule 12(b)(6) motion] does
not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Edwards
v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir.
1999) (citation omitted). In reviewing a motion to dismiss
for failure to state a claim under Rule 12(b)(6), the Court
“must accept as true all of the factual allegations
contained in the complaint, ” drawing “all
reasonable inferences” in the plaintiff's favor.
E.I. du Pont de Nemours & Co., 637 F.3d at 440
(citations omitted). Generally, the Court may not look beyond
the four corners of the complaint in evaluating a Rule
12(b)(6) motion. See Goldfarb v. Mayor & City Council
of Baltimore, 791 F.3d 500, 508 (4th Cir. 2015).