United States District Court, E.D. Virginia, Richmond Division
Hannah Lauck United States District Judge
matter comes before the Court on Defendants Midlothian
Kroger, Kroger Grocery Store at 14101 Midlothian Turnpike,
Kroger Limited Partnership I, and The Kroger Company's
(collectively, "Kroger") Partial Motion to Dismiss
Plaintiffs Amended Complaint (the "Partial Motion to
Dismiss"). (ECFNo. 10.) Plaintiff Warren Hinton
responded in opposition (the "Opposition"), (ECF
No. 13), and Kroger replied, (ECF No. 14). This matter is
ripe for disposition. The Court dispenses with oral argument
because the materials before it adequately present the facts
and legal contentions, and argument would not aid the
decisional process. The Court exercises jurisdiction pursuant
to 28 U.S.C. § 1332(a)(1). For the reasons that follow, the
Court will grant the Partial Motion to Dismiss in part and
deny it in part.
Factual and Procedural Background
first filed this action in the Circuit Court for the City of
Richmond, Virginia. (See State Court Complaint, Ex.
3, ECF No. 1-3.) Kroger timely removed the case to this
Court. (Notice of Removal, ECF No. 1.) After removal and with
leave of this Court, Hinton filed the Amended Complaint.
(See ECF Nos. 8, 9.) Kroger filed the Partial Motion
to Dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), (ECF No. 12) and, on the same day, its Answer, (ECF
No. 11). Hinton responded to the Partial Motion to Dismiss
and Kroger replied.
Factual Background 
March 1, 2017, Hinton entered the Kroger grocery store at
14101 Midlothian Turnpike, Midlothian, Virginia 23113. While
in the store, Hinton allegedly fell to the ground when a
floor mat slipped from under him "due to the
insufficient traction on the bottom of the mat." (Am.
Compl. ¶ 12.) Hinton consequently suffered "serious
and permanent injuries" causing lost wages, pain and
suffering, and loss of enjoyment of life. (Id.
¶ 16.) Hinton brings two causes of action against
Kroger: (1) negligence, in which he includes allegations of
Kroger's "recklessness, gross negligence, and/or
negligence," (id.); and, (2) public nuisance.
He seeks $400, 000.00 in compensatory damages, his costs
expended in this action, and prejudgment interest.
Standard of Review: Rule 12(b)(6) Standard
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A
Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure § 1356 (1990)). To survive Rule 12(b)(6)
scrutiny, a complaint must contain sufficient factual
information to "state a claim to relief that is
plausible on its face." BellAtl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); see also
Fed. R. Civ. P. 8(a)(2) ("A pleading that states a claim
for relief must contain ... a short and plain statement of
the claim showing that the pleader is entitled to
relief."). Mere labels and conclusions declaring that
the plaintiff is entitled to relief are not enough.
Twombly, 550 U.S. at 555. Thus, "naked
assertions of wrongdoing necessitate some factual enhancement
within the complaint to cross the line between possibility
and plausibility of entitlement to relief." Francis
v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009)
(internal quotation marks omitted).
complaint achieves facial plausibility when the facts
contained therein support a reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556; see also Ashcroft v.
Iqbal, 556 U.S. 662 (2009). This analysis is
context-specific and requires "the reviewing court to
draw on its judicial experience and common sense."
Francis, 588 F.3d at 193 (citation omitted). The
Court must assume all well-pleaded factual allegations to be
true and determine whether, viewed in the light most
favorable to the plaintiff, they "plausibly give rise to
an entitlement to relief." Iqbal, 556 U.S. at
676-79; see also Kensington Volunteer Fire Dep%
Inc., 684 F.3d at 467 (finding that the court in
deciding a Rule 12(b)(6) motion to dismiss "'must
accept as true all of the factual allegations contained in
the complaint' and 'draw all reasonable inferences in
favor of the plaintiff" (quoting E.I. du Pont de
Nemours & Co. v. Kolon Indus., 637 F.3d 435, 440
(4th Cir. 2011))).
Court must first address which Kroger entity should remain in
this personal injury case as the correct defendant. The Court
will then speak to the heart of this motion: whether
Hinton's claims of gross negligence in Count I and his
public nuisance claim in Count II may proceed.
Kroger Limited Partnership I is the Proper
Hinton and Kroger maintain that Kroger Limited Partnership I
constitutes the owner or occupier of the Kroger store where
Hinton fell. Based on the record before it, the Court sees no
reason to find otherwise. Under Virginia law, the "owner
or occupier of real property owes to an invitee the
duty" of reasonable care at issue in a premises
liability case. Gauldin v. Va. Winn-Dixie, Inc., 370
F.2d 167, 169 (4th Cir. 1966). Indeed, before Kroger removed
the case to this Court, Hinton and Kroger stipulated to
nonsuit of this matter as to the following parties:
Midlothian Kroger; Kroger Grocery Store at 14101 Midlothian
Turnpike; and, The Kroger Company. But, Defendants removed
the case before the Circuit Court for the ...