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Diretto v. Country Inn & Suites By Carlson

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

February 2, 2017

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



         This 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 part.

         I. Background

         The 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).

         From 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.

         On July 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.

         On July 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.

         On 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 matter.

         Plaintiff 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.

         On 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.

         II. Legal Standard

         Federal 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).

         “The 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).

         III. ...

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