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Hinton v. Kroger

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

August 28, 2019

MIDLOTHIAN KROGER, et al, Defendants.


          M. Hannah Lauck United States District Judge

         This 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).[1] For the reasons that follow, the Court will grant the Partial Motion to Dismiss in part and deny it in part.

         I. Factual and Procedural Background

         A. Procedural Background

         Hinton 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.

         B. Factual Background [2]

         On 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.

         II. Standard of Review: Rule 12(b)(6) Standard

         "A 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).

         A 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))).

         III. Analysis

         The 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.

         A. Kroger Limited Partnership I is the Proper Defendant

          Both 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 ...

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