United States District Court, W.D. Virginia, Roanoke Division
MICHAEL G. MCCLARY, JR., et al., Plaintiffs,
GREYHOUND LINES, INC., Defendant.
Glen E. Conrad, United States District Judge.
and Anna McClary, individually and on behalf of their minor
son, I. McClary, filed this action in the Circuit Court of
Wythe County against Greyhound Lines, Inc.
("Greyhound"). Greyhound removed the action to this
court on the basis of diversity jurisdiction, and then moved
to dismiss the complaint pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. The case is presently
before the court on Greyhound's renewed motion to
dismiss, which seeks dismissal of the amended complaint filed
by the plaintiffs. The court held a hearing on the motion on
August 17, 2017. For the reasons that follow, the court will
grant Greyhound's motion.
following facts, taken from the plaintiffs' amended
complaint, are accepted as true for purposes of the
defendant's motion to dismiss. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) ("[W]hen ruling on a
defendant's motion to dismiss, a judge must accept as
true all of the factual allegations contained in the
morning of April 8, 2016, Mrs. McClary discovered that her
thirteen-year-old son, I. McClary, was not at the
family's residence. The McClary family lives
approximately two miles from the Greyhound bus station in Max
Meadows, Virginia. Unbeknownst to his parents, I. McClary
walked to the station at approximately 3:15 a.m. and
purchased a bus ticket to Brooklyn, New York. He boarded the
bus an hour later carrying his father's pistol.
to selling the bus ticket, the attendant asked I. McClary
whether someone had come with him to the bus station and if
he had driven there. I. McClary answered both questions in
the negative. Despite his answers to the attendant's
questions and his "obvious appearance, " the
attendant sold him the ticket without requiring him to
present an unaccompanied minor form, as required by company
policy. Am. Compl. ¶ 11, ECF No. 11.
learning that their son had boarded a bus to New York, Mr.
and Mrs. McClary notified the Wythe County Sheriffs Office
("Sheriffs Office"), and deputies went to the bus
station to speak to the attendant on duty. Although the
attendant admitted that he had sold I. McClary a ticket to
Brooklyn, New York, he refused to provide any additional
information, such as bus stops or numbers.
McClary subsequently realized that his pistol was missing
from his nightstand. He immediately notified the Sheriffs
Office that his son might be carrying a loaded pistol. The
Sheriffs Office worked all day trying to obtain information
from Greyhound. However, Greyhound refused to give Mr. and
Mrs. McClary or the Sheriffs Office information regarding bus
routes or stops. The company also refused to contact its own
drivers to assist in locating I. McClary.
McClary drove to New York, hoping to arrive before his son.
While en route, the New York City Police Department
("NYPD") joined in the efforts to locate I.
McClary. Around 7:30 p.m. that same day, the Sheriffs Office
advised Mr. and Mrs. McClary that NYPD officers had located
their son at a bus station in Manhattan. Because he was
carrying a loaded firearm, I. McClary was arrested and
immediately placed in the custody of the NYPD.
plaintiffs claim that Greyhound's actions caused them to
suffer "extreme stress." Id. ¶¶
47, 64, 81. The stress "manifested] ... in the form of
physical shaking, interrupted sleep, [and] panic attacks that
have caused them to alter and change [their] eating and
sleeping habits." Id. Additionally, Mr.
McClary's blood pressure has become "elevated and
erratic at times, which was not an issue before this
incident." Id. ¶ 47.
plaintiffs filed suit against Greyhound in February of 2017.
The original complaint, filed in state court, contained three
counts labeled as claims for "negligence/emotional
distress." See Compl. 3-4, 6, ECF 1-1. Upon
removing the case to this court, Greyhound moved to dismiss
the complaint under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. On May 19, 2017, the parties appeared before
the court for a hearing on Greyhound's motion. At the
conclusion of the hearing, the court took the motion under
advisement and granted the plaintiffs leave to file an
1, 2017, the plaintiffs filed an amended complaint, asserting
claims of "negligent infliction of emotional
distress" on behalf of each plaintiff. See Am. Compl.
¶¶ 3 8, 55, 72 ("This is an action for
negligent infliction of emotional distress.") In
response, Greyhound renewed its motion to dismiss.
Greyhound's motion has been fully briefed and is ripe for