MARK W. GRIMES
PATRICK DUNNIGAN, et al.
CATHERINE C. BLAKE, District Judge.
Plaintiff Mark Grimes ("Mr. Grimes") brings this action against Defendants Patrick Dunnigan ("Mr. Dunnigan") and Heidi Long ("Ms. Long"), Mr. Dunnigan's employer, asserting claims arising out of an incident in which Mr. Dunnigan allegedly assaulted Mr. Grimes while Mr. Grimes was performing work for Ms. Long's company. Now pending before the court is a motion to dismiss or, in the alternative, for summary judgment, filed by Ms. Long against Mr. Grimes. The issues in this case have been fully briefed and no hearing is necessary. See Local Rule 105.6. For the reasons stated below, Ms. Long's motion to dismiss, construed as a motion for summary judgment as to Count IV, will be denied. The motion to dismiss will be granted as to Count III.
Mark Grimes began working with Pennwood Shows in 2010. Pennwood Shows is owned and operated by Heidi Long and provides carnival rides, attractions and amusements, and carnival equipment for local county and private carnivals, fairs, and bazaars in the mid-Atlantic area, included in Maryland. On September 14, 2011, Mr. Grimes was parking Ms. Long's house trailer at the fairgrounds in Charles County, Maryland when Patrick Dunnigan, an employee of Ms. Long who was nearby eating dinner with other carnival workers, attempted to direct Mr. Grimes into the parking space. A heated verbal exchange between the two men ensued. Mr. Grimes exited his vehicle and approached Mr. Dunnigan. Shortly thereafter, Mr. Dunnigan struck Mr. Grimes several times, knocking him to the ground.
On September 13, 2012, Mr. Grimes filed suit in Baltimore City Circuit Court against Mr. Dunnigan and Ms. Long, trading as Pennwood Shows. Mr. Grimes alleges assault and battery against Mr. Dunnigan and respondeat superior and negligence against Ms. Long. On March 27, 2013, the action was removed to this court on the grounds of diversity of citizenship, pursuant to 28 U.S.C. §§ 1332 and 1446. On April 3, 2013, Ms. Long filed a motion to dismiss or, in the alternative, for summary judgment.
Standard of Review
This case comes before the court on a motion to dismiss pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment. "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (internal quotation marks and alterations omitted) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). When ruling on such a motion, the court must "accept the wellpled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). To survive a motion to dismiss, the factual allegations of a complaint "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)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and alterations omitted). Thus, the plaintiff's obligation is to set forth sufficiently the "grounds of his entitlement to relief, " offering more than "labels and conclusions." Id. (internal quotation marks and alterations omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Fed.R.Civ.P. 8(a)(2)).
Where matters outside the pleadings are considered by the court, a defendant's motion to dismiss will be treated as one for summary judgment under Rule 56. See Fed.R.Civ.P. 12(d); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). Federal Rule of Civil Procedure 56(a) provides that "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Whether a fact is material depends upon the substantive law. See id.
"A party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion, '" Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration in original) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks omitted).
Choice of law
A court sitting in a diversity case must apply the choice of law rules of the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 496 (1941). Despite a modern trend favoring alternative approaches, "Maryland adheres to the lex loci delicti rule" to determine the applicable law in tort actions. Philip Morris Inc. v. Angeletti, 358 Md. 689, 752 A.2d 200, 230 (2000); see also Erie Ins. Exch. v. Heffernan, 399 Md. 598, 925 A.2d 636, 651 (2007) ("We see no reason to discontinue our adherence to the principles of lex loci delicti. "). Under this rule, "the substantive tort law of the state where the wrong occurs governs." ...