Williams v. Preiss–Wal Pat III, LLC, Civil Action No. 4:13–1667–MGL.

• Decision Date: 29 April 2014
• Docket Number: Civil Action No. 4:13–1667–MGL.
• Court: U.S. District Court — District of South Carolina
• Parties: Gerald and Lora WILLIAMS as Personal Representatives of the Estate of Kendall Williams, Plaintiffs, v. PREISS–WAL PAT III, LLC d/b/a University Village at the Coast f/k/a Chanticleer Village, and Joe Woo, Defendants.

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Gerald and Lora WILLIAMS as Personal Representatives of the Estate of Kendall Williams, Plaintiffs
v.
PREISS–WAL PAT III, LLC d/b/a University Village at the Coast f/k/a Chanticleer Village, and Joe Woo, Defendants.

Civil Action No. 4:13–1667–MGL.

United States District Court, D. South Carolina, Florence Division.

Signed April 29, 2014.

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Stuart Hudson, Hughey Law Firm, Mt. Pleasant, SC, for Plaintiffs.

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Amy Ruth Holbrook, Brown Law, Raleigh, NC, for Defendants.

OPINION AND ORDER

MARY G. LEWIS, District Judge.

Before this Court is Defendant Preiss–Wal Pat III, LLC's (“Defendant”) Motion to Dismiss Plaintiffs' Amended Complaint brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 19.) Having considered the motion (ECF No. 19) and responses filed (ECF Nos. 20 & 22), the record, and the applicable law, the court GRANTS Defendant's Motion to Dismiss for the reasons set forth below.

FACTUAL AND PROCEDURAL BACKGROUND

This matter was removed from the Court of Common Pleas, County of Horry, South Carolina on June 18, 2013, by Defendant pursuant to 28 U.S.C. §§ 1441(a) and 1332 on the basis that this Court has jurisdiction based on the diversity of citizenship. (ECF No. 1.) Plaintiffs did not contest the removal. (ECF No. 13 at 2.) In their wrongful death complaint, Plaintiffs Gerald and Lora Williams as Personal Representatives of the Estate of Kendall Williams (“Plaintiffs”) assert several state law causes of action against Defendant and Joe Woo (“Defendant Woo”) relating to an incident that occurred at an apartment complex and resulted in the death of Plaintiffs' decedent. On July 16, 2013, Defendant moved to dismiss claiming that Plaintiffs' complaint failed to state a claim upon which relief can be granted. (ECF No. 7.) Plaintiffs opposed the motion but stated their consent to a dismissal of their negligent supervision, negligent retention, and spoliation causes of action. (ECF No. 13.) In an order dated October 11, 2013, 2013 WL 5603807, this Court dismissed these claims and granted Plaintiffs leave to amend their complaint to assert factual allegations, which, taken as true, state a plausible claim for relief. (ECF No. 16.) Plaintiffs amended their complaint on October 25, 2013 (ECF No. 18), and Defendant then filed the instant motion to dismiss. (ECF No. 19.)

STANDARD OF REVIEW

Defendant moves to dismiss this case under Rule 12(b)(6) of the Federal Rules of Civil Procedure on the basis that Plaintiffs' remaining claims as they are asserted in the amended complaint fail to state a claim upon which relief can be granted. (ECF No. 19.) “The purpose of a Rule 12(b)(6) motion is to test the sufficiency of a complaint.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999). To survive a motion to dismiss, the Federal Rules of Civil Procedure require that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).

Although Rule 8(a) does not require “detailed factual allegations,” it requires “more than an unadorned, the-defendant-unlawfully-harmed-me accusation,” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ), in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. In other words, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). A complaint

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alleging facts that are “ ‘merely consistent with’ a defendant's liability ... ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ” Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955 ).

In considering a motion to dismiss, a plaintiff's well-pled allegations are taken as true, and the complaint and all reasonable inferences are liberally construed in the plaintiff's favor. Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130 (4th Cir.1993). The court may consider only the facts alleged in the complaint, which may include any documents either attached to or incorporated in the complaint, and matters of which the court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). Although the court must accept the plaintiff's factual allegations as true, any conclusory allegations are not entitled to an assumption of truth, and even those allegations pled with factual support need only be accepted to the extent that “they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937. In sum, factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact). Twombly, 550 U.S. at 555, 127 S.Ct. 1955.

DISCUSSION

Because this matter is before the Court on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court assumes the truth of the facts as alleged in Plaintiffs' complaint. Fitzgerald v. Barnstable School Committee, 555 U.S. 246, 249, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009). Plaintiffs, as personal representatives of the Estate of Kendall Williams, bring this action against Defendants Preiss–Wal Pat III, LLC d/b/a University Village at the Coast (“University Village”) f/k/a Chanticleer Village and Joe Woo. Plaintiffs maintain that on April 10, 2011, Kendall Williams was an invitee of University Village where his cousin was a resident. (ECF No. 18 at 2.) Plaintiffs allege that Defendants market themselves as one of the best places students can live and represent to students and parents that the company employs well-trained staff. (ECF No. 18 at 2–3.) Plaintiffs also allege that Defendants were aware that University Village was actually a dangerous place to live and knew that residents often complained about the complex on public websites. (ECF No. 18 at 3–5.) Plaintiffs further contend that Defendants were on notice that the employees at University Village were not properly trained or capable of providing a safe atmosphere to the public and that Defendants had a duty to inform the public of the “actual operations and atmosphere of University Village.” (ECF No. 6.) Plaintiffs maintain that Kendall Williams suffered injuries, including his ultimate death, as a result of Defendants' acts and omissions. (ECF No. 18 at 7.) Plaintiffs state that on April 10, 2011, Kendall Williams was attacked and beaten to death by a 21–year old young man while he was visiting the University Village apartment complex. (ECF No. 18 at 5.)

Plaintiffs assert causes of action for negligence, maintaining inter alia, that Defendants owed a duty not to create or allow dangerous conditions on the property (ECF No. 18 at 8); negligent misrepresentation, in that Defendants owed a duty to protect the public and invitees from injury and falsely represented that the premises were safe (ECF No. 18 at 9); negligent hiring, maintaining that Defendants had a duty to hire professionals and experts (ECF No. 18 at 11); for violation of the South Carolina Unfair Trade Practices Act

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in making representations about the safety of the premises (ECF No. 18 at 12–13). Plaintiffs also maintain a claim for survivorship and wrongful death. (ECF No. 18 at 13–14.)

Fraudulent Joinder

Before addressing the substance and merits of Defendant's motion to dismiss, the Court considers whether Defendant Joe Woo was fraudulently joined as a defendant in this matter such that the claims against him should be dismissed. The complaint and amended complaint make no allegations concerning Defendant Woo other than an initial jurisdictional allegation which states that Defendant Woo is a resident and citizen of South Carolina like Plaintiffs. (ECF No. 1–1 at 2 & ECF No. 18 at 1.) Plaintiffs' allegation was challenged by Defendant in the removal papers. (ECF No. 1.) Specifically, Defendant contends that Defendant Woo was fraudulently joined to the suit in order to defeat federal diversity jurisdiction. Defendant attached an affidavit of Defendant Woo which indicates that Defendant Woo is in fact a citizen and resident of Wake County, North Carolina, and is therefore a diverse defendant. (ECF No. 1–2.) Plaintiffs did not file a motion to remand or otherwise raise any challenge to the allegation that Defendant Woo was fraudulently joined.¹ However, the Court has an independent duty...