United States District Court, D. Maryland
HARRY T. PALMER, et al., Plaintiffs,
URGO HOTELS, L.P., Defendant.
Xinis United States District Judge
before the Court is Defendant Urgo Hotels, L.P.'s motion
to dismiss Plaintiffs Harry and Diane Palmer's Complaint
under Federal Rule of Civil Procedure 12(b)(6), or, in the
alternative, for a more definite statement under Federal Rule
of Civil Procedure 12(e). ECF No. 15. Plaintiffs oppose the
motion to dismiss and request, in the alternative, leave to
file an amended Complaint. ECF No. 18. The issues are fully
briefed, and the Court now rules pursuant to Local Rule 105.6
as no hearing is necessary. For the reasons set forth below,
the Court grants the Palmers' request for leave to amend
the Complaint and denies Defendant's motion as moot and
without prejudice to refile.
August 29, 2017, Plaintiffs Harry T. Palmer and his wife
Diane Palmer (collectively, “the Palmers”), were
guests at the Cocodimama Resort (“the Resort”) in
Eleuthera, Bahamas. ECF No. 1 ¶¶ 6, 7, 15. Palmer
suffered severe and permanent injuries to his spinal cord
when he fell through the stairs leading to his hotel room.
ECF No. 1 ¶7. The Palmers thereafter filed this action
against Urgo Hotels, L.P. (“Urgo”), a Maryland
company, alleging negligence and loss of consortium. ECF No.
1 ¶¶ 5, 10, 16. Specifically with respect to Urgo,
the Complaint avers that Urgo “together with Eluethera
Hotels Ltd and Cocodimama Ltd, their agents and apparent
agents, ” owns, operates, manages or controls the
Resort. ECF No. 1 ¶¶ 6. The Palmers allege that
Urgo, as principal, breached its duty to maintain the Resort
in a safe condition, thereby leading to Palmer's
injuries. ECF No. 1 ¶¶ 10-13.
now seeks dismissal, contending that the Complaint does not
include sufficient facts to plausibly infer liability as to
Urgo for events occurring on Resort property. ECF No. 15.
Urgo alternatively requests that the Palmers provide a more
definite statement, pursuant to Federal Rule of Civil
Procedure Rule 12(e), in an Amended Complaint as to
Urgo's liability. The Palmers oppose the motion, but
request that, in the event the Court grants dismissal, they
be accorded leave to amend the Complaint. ECF No. 18.
Standard of Review
ruling on a motion to dismiss, a plaintiff's well-pleaded
allegations are accepted as true and the complaint is viewed
in the light most favorable to the plaintiff. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“However, conclusory statements or a ‘formulaic
recitation of the elements of a cause of action will not
[suffice].'” EEOC v. Performance Food Grp.,
Inc., 16 F.Supp.3d 584, 588 (D. Md. 2014) (quoting
Twombly, 550 U.S. at 555). “Factual
allegations must be enough to raise a right to relief above a
speculative level.” Twombly, 550 U.S. at 555.
“‘[N]aked 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) (quoting Twombly, 550 U.S. at 557).
purpose of a motion to dismiss under Rule 12(b)(6) “is
to test the sufficiency of the complaint.” Presley
v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir.
2006) (citation and internal quotation marks omitted). A
complaint need only satisfy the standard of Rule 8(a), which
requires a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a
‘showing,' rather than a blanket assertion, of
entitlement to relief.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must
consist of more than “a formulaic recitation of the
elements of a cause of action” or “naked
assertion[s] devoid of further factual enhancement.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
principally argues that the Complaint fails to aver plausibly
that Urgo maintains any relationship with the Resort
sufficient to confer liability for any claimed negligence
occurring on Resort property. ECF No. 15 at 4. It is
axiomatic that in premises liability cases, an entity wholly
uninvolved in the premises does not, without more, shoulder a
duty of reasonable care or safekeeping to its invitees.
See, e.g., Restatement (Third) Torts, § 51
(General Duty of Land Possessors) (setting forth
circumstances under which “a land possessor owes a duty
of reasonable care to entrants on the land”);
Colonial Stores, Inc. v. Pulley, 203 Va. 535, 537
(1962) (operator of store owes duty of ordinary care against
Plaintiff invitee); cf. Kreisler v. Goldberg, 478
F.3d 209, 213 (4th Cir. 2007) (holding judgment against
subsidiary does not render the parent corporation a
“real party defendant”); DiFederico v.
Marriott Int'l, Inc., No. RWT-11-1508, 130 F.Supp.3d
986, 992 (D. Md. Sept. 18, 2015) (franchisor only liable for
injuries sustained at hotel where franchisor “exercises
direct control over a particular activity causing
injury.”). Put differently, where a defendant exercises
no control over the premises, it cannot be said to assume
liability for injuries that occurred on the premises.
Stenlund v. Marriott Int'l, Inc., 172 F.Supp.3d
874, 884 (D. Md. 2016) (“the key element of control . .
. must exist in respect to the very thing from which the
injury arose.”) (quoting Schramm v. Foster,
341 F.Supp.2d 536, 546 (D. Md. 2004)).
Complaint on this matter is deficient as to Urgo's
relationship to the Resort. Although the Complaint states, in
conclusory fashion, that Urgo controlled the Resort Entities,
and the Resort Entities were the actual or apparent agents of
Urgo, ECF No. 1 ¶¶ 6, 8, 9, no facts support these
assertions. Without supplemental facts from which the Court
could plausibly infer that the Resort is an actual or
apparent agent of Urgo, liability against Urgo fails. See
Iqbal, 550 U.S. at 546.
Palmers, in response, contend that the rental agreement
through which they made their travel plans clearly reflects
Urgo as the “‘Owner' of the resort in
question.” ECF No. 18, ¶¶ 1, 5. Accordingly,
say the Palmers, Urgo is “fully aware of the
allegations against it and has more than enough information,
together with the complaint, to file an answer.” ECF
No. 18 ¶ 6. The Palmers may be correct as a practical
matter. But this does not alter the legal insufficiency of
the Complaint. This distinction is critical because a motion
to dismiss under Rule 12(b)(6) “tests the sufficiency
of the complaint” Presley, 464 F.3d
at 483 (citation and internal quotation marks omitted,
emphasis added); and the Complaint “may not be amended
by the briefs in opposition to the motion to dismiss.”
Mylan Labs., Inc. v. Akzo, N.V., 770 F.Supp. 1053,
1068 (D. Md. 1991) (citation and internal quotation marks
said, the Court notes that the case is in its infancy, and
the Palmers appear to have a sufficient factual predicate to
proceed against Urgo. The Court, therefore, grants the
Palmers fourteen days from the date of this Opinion to amend
the Complaint with facts supporting liability as to Urgo. The
Court denies Defendant's motion as moot and without