United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court on Defendant's Motion to
Dismiss or, in the alternative, to Transfer Venue (Doc. No.
5). Because Plaintiff appears pro se, the Court
issued a Roseboro notice (Doc. No. 13) advising
Plaintiff of his right to respond to Defendant's motions.
The motions have been fully briefed by the parties (Docs.
Nos. 6, 16, 18) and are now ripe for disposition. For the
reasons stated herein, Defendant's Motion to Dismiss is
GRANTED IN PART and DENIED IN PART, and Defendant's
Motion to Transfer is GRANTED.
Richard Clemons, who is proceeding pro se, filed
this action on January 9, 2018, following his stay at an
Extended Stay America hotel (the “Hotel”) in
Manassas, Virginia. In his Complaint, Plaintiff asserts
claims against Defendant for negligence, intentional
infliction of emotional distress, violations of N.C. Gen.
Stat §§ 42-40(2) and 72-1, and violations of North
Carolina's and Virginia's consumer protection and
October 14, 2017, Plaintiff began his stay at the Hotel made
possible by an agreement between Defendant, Extended Stay
America (“ESA”) and the Artemis House, an
organization that provides services to victims of domestic
violence. (Doc. No. 1, p. 2). Plaintiff alleges that on or
about October 29 or 30, 2017, “intruder(s)” broke
into his room and stole several items. Id. Upon
discovering the theft, Plaintiff notified the police.
Id. Soon thereafter, Plaintiff allegedly asked the
Hotel manager to perform a “maintenance check on the
lock and room.” Id. The manager agreed.
Id. However, no security check occurred, according
to the Complaint, and no damage to Plaintiff's door from
the break-in was fixed. Id. at 3. On November 4,
2017, Plaintiff alleges the “intruder(s)”
returned to his room, drugged him while asleep, and sexually
assaulted him. Id. Plaintiff again notified the
police who arrived at the scene and allegedly “recorded
into evidence a point of entry in the ceiling bathroom where
an unsecured shaft space had been pried open.”
Id. On or about four days following this incident,
Plaintiff confronted the alleged “intruder” and
placed him under “citizen's arrest.”
Id. The Complaint then states the Hotel manager
notified the Artemis House of Plaintiff's conduct,
falsely “stating that plaintiff had assaulted the
suspect placed under arrest by him.” Id. As a
result, Plaintiff was suspended from the housing assistance
program. Id. at 4.
filed its Motion to Dismiss or in the alternative Transfer
Venue (Doc. No. 5) on February 9, 2018. In the motion,
Defendant seeks to dismiss all Plaintiff's claims
pursuant to Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim upon which relief can be granted or
in the alternative to transfer the case to the Eastern
District of Virginia, Alexandria Division. On February 27,
2018, the Court sua sponte issued a
Roseboro notice (Doc. No. 13) advising Plaintiff of
his right to respond to Defendant's motions. Plaintiff
filed his Response (Doc. No. 16) on March 16, 2018, to which
Defendant filed a Reply (Doc. No. 18) on March 22,
2018.As this matter is now ripe for review, the
Court addresses each motion in turn.
A. Motion to Dismiss
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
“legal sufficiency of the complaint” but
“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); Eastern Shore Markets, Inc. v. J.D.
Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir.
2000). A complaint attacked by a Rule 12(b)(6) motion to
dismiss will survive if it contains “enough facts to
state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)); see also Robinson v. American Honda Motor Co.,
Inc., 551 F.3d 218, 222 (4th Cir. 2009). “A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. The Supreme Court has also
Federal Rule of Civil Procedure 8(a)(2) requires only
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Specific facts are
not necessary; the statement need only “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” In addition, when ruling
on a defendant's motion to dismiss, a judge must accept
as true all of the factual allegations contained in the
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(quoting Twombly, 550 U.S. at 555-56) (internal
citations omitted). Conclusory allegations are "not
entitled to be assumed true." Iqbal, 556 U.S.
at 681. Rule 8(a) requires that a plaintiff's complaint
must contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R.
Civ. Pro. 8(a). While a high level of factual detail is not
required, a complaint needs more than "an unadorned,
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 555).
apply a more liberal standard to pro se complaints,
even holding complaints written by pro se plaintiffs
to "less stringent standards than formal pleadings
drafted by lawyers, " but nevertheless they are not
bound by a plaintiff's legal conclusions. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Randall v. United
States, 30 F.3d 518, 521; Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
Court gleans from the Complaint that Plaintiff purports to
bring claims against Defendant for (1) negligence, (2)
intentional infliction of emotional distress, (3) violations
of N.C. Gen. Stat. § 42-40(2) and § 72-1, (4)
violations of North Carolina's consumer protection laws,
(5) violations of Virginia's consumer protection laws,
(6) retaliation in violation of North Carolina's
landlord-tenant laws, and (7) retaliation in violation of
Virginia's landlord-tenant laws. (Doc. No. 1, p.
For the reasons stated herein, Plaintiff's claims for
violations of N.C. Gen. Stat. § 42-40(2) and §
72-1, violations of North Carolina's consumer protection
laws, and retaliation in violation of North Carolina's
and Virginia's landlord tenant laws are dismissed without
claims for negligence, intentional infliction of emotional
distress, and violation of Virginia's consumer protection
threshold matter, it is important to distinguish which
state's law governs Plaintiff's negligence claim.
North Carolina courts have consistently adhered to the
lex loci rule for matters affecting substantial
rights of the parties and the lex fori rule for
remedial or procedural rights. Boudreau v. Baughman,
322 N.C. 331, 335 (1988) (citations omitted). For actions
sounding in tort, the state where the injury occurred is
considered the situs of the claim, because an act has legal
significance only if the jurisdiction where it occurs
recognizes that legal rights and obligations ensue from it.
White v. Penske Truck Leasing Corp., 256 F.Supp.2d
440, 445 (M.D. N.C. 2003); Boudreau v. Baughman, 322
N.C. 331, 335 (1988); Terry v. Pullman Trailmobile, a
Div. of Pullman, Inc., 92 N.C.App. 687, 693 (1989).
Thus, under North Carolina law, the law of the state where
the injury to Plaintiff occurs governs the resolution of the
substantive issues in controversy. Boudreau 322 N.C.
at 335. Accordingly, in the case at bar, the law of Virginia,
the place Plaintiff's alleged injury occurred, governs
Plaintiff's negligence claim.
Virginia law, a plaintiff who seeks to establish a prima
facie showing of negligence must plead (1) the existence
of a legal duty, (2) a violation of that duty, and (3)
proximate causation which results in (4) injury. Didato
v. Strehler, 262 Va. 617, 627 (2001). Defendant contends
that Plaintiff fails to allege facts sufficient to establish
that any act or omission by Defendant proximately caused
Plaintiff's injury. (Doc. No. 6, p. 5). Defendant's
argument, however, is overly dismissive of Plaintiff's
Complaint. Plaintiff alleges that his sexual assault was
attributable to insufficient security measures taken by
Defendant to make safe Plaintiff's room. See
(Doc. No. 1, 2-3). The Supreme Court of Virginia has
recognized that the common law imposes a duty upon hotels to
protect guests against reasonably foreseeable injury from
criminal conduct. Taboada v. Daly Seven, Inc., 271
Va. 313, 326 (2006), on reh'g, 273 Va. 269 (2007)
(“Given the nature of the special relationship between
an innkeeper and a guest, we hold that it imposes on the
innkeeper the same potential elevated duty of ‘utmost
care and diligence' to protect a guest from the danger of
injury caused by the criminal conduct of a third person on
the innkeeper's property.”). Given that prior to
the sexual assault Plaintiff had already fallen victim to
criminal conduct in his Hotel room, it was reasonably
foreseeable that similar criminal conduct might occur in the
future; accordingly, Plaintiff's allegations allow the
Court to draw the inference that Defendant's failure to
take adequate safety measures to secure Plaintiff's room
was the proximate cause of Plaintiff's injury.
Defendant's motion to dismiss Plaintiff's claim for
negligence is accordingly denied.
Intentional Infliction of Emotional Distress
Similarly, pursuant to the lex loci rule
Plaintiff's claim for intentional infliction of emotional
distress (“IIED”) is also governed by Virginia
law. To succeed on a claim for IIED under Virginia law, four
elements must be proven: (1) the conduct was intentional or
reckless; (2) the behavior was outrageous and intolerable;
(3) the distress is casually linked to the defendant's
actions; and (4) the distress suffered was severe.
Magallon v. Wireless Unlimited Inc., 85 Va. Cir. 460
argues that Plaintiff fails to allege any element of IIED.
(Doc. 6, p. 7). Again the Court disagrees. Plaintiff alleges
that following the sexual assault the manager of the Hotel
“failed to move plaintiff to a new hotel room to
protect his identity and person from further
harassment.” (Doc. No. 1, p. 3-4). Furthermore,
Plaintiff alleges the Hotel manager falsely accused Plaintiff
of assaulting the alleged perpetrator of the theft and sexual
assault, which resulted in Plaintiff's suspension from
his housing assistance program. Id. Applying a
liberal standard and viewing the facts in a light most
favorable to Plaintiff, the Court determines that Plaintiff
alleges sufficient facts to support a plausible claim for
IIED. Defendant's motion to dismiss Plaintiff's claim
for IIED is denied.
N.C. Gen. Stat. § 42-40(2) and § 72-1
Complaint, Plaintiff purports to sue Defendant for violations
of N.C. Gen. Stat. §§ 42-40(2) and 72-1 (Doc. No.
1, p. 4); however, no cause of action exists under either
statute. Section 42-40 provides the definitions section of
the Residential Rental Agreements Act, codified at Chapter
42, Article 5 of the North Carolina General Statutes. Section
42-40(2) defines the term “premises.” It is not
readily apparent to the Court how Plaintiff can state a claim
for a violation of Section 42-40(2) as this section does not
provide a cause of action. Similarly, Section 72-1 merely
states the common law duties of an innkeeper. See Urbano
v. Days Inn of America, Inc., 58 N.C.App. 795, 799
(1982) (“G.S. 72-1(a) does no more than state the
common law duty of an innkeeper to provide suitable lodging
to guests, and carries with it no warranty of personal