Virginia Lawyers Weekly VA Lawyers Weekly
A plaintiff who alleges she tripped and fell at defendant Kroger store has sufficiently alleged a “joint enterprise” in order to sue two additional defendants on a claim they allowed the store to remain open while at the same time defendants Questmark and Wimco were engaged in the design, construction, maintenance and repair of the premises; the Norfolk U.S. District Court denies defendants’ motion to dismiss.
Plaintiff argues Questmark should be barred from making this motion because it already has filed an answer to the complaint in Norfolk Circuit Court. This argument is without merit. Questmark asserted its defense of failure to state a claim on plaintiff’s joint enterprise claim before the close of pleadings.
Although the court did not order repleading, Questmark moved to dismiss under Rule 12(b)(6) on April 29, 2014. After removal, a demurrer filed in state court will be treated as the federal equivalent of a motion to dismiss for failure to state a claim. Thus, because the substance of Questmark’s demurrer and the instant motion is the same, and because Questmark timely filed its demurrer in state court, the court considers the 12(b)(6) timely.
Under Virginia law, the joint enterprise test has two elements: 1) community of interest; and 2) equality of the right to control. With respect to the “community of interest” element, the complaint asserts that, at the time and place of the alleged accident. Questmark was acting within the scope of its employment on behalf of Kroger. The complaint states Questmark was engaged in design, construction, maintenance, repair and other activities at Kroger. Finally, the complaint alleges Questmark and Wimco were acting as agents, servants and/or employees of defendant Kroger. The allegation that Kroger employed Questmark satisfies the “community of interest” element of the joint enterprise test, because employment implied consideration.
Regarding the second element, the complaint states defendants were mutual agents and principals in the operation, design, construction, maintenance and repair of Kroger store #532. The term “mutual agents” does imply an equal right to direct the operation.
Plaintiff alleges defendants allowed the store to remain open while at the same time Questmark and Wimco were engaged in the design, construction, maintenance and repair of the premises.
Plaintiff has sufficiently stated a claim of joint enterprise liability.
Motion to dismiss denied.
Jarrell v. Kroger LP I (Smith) No. 2:14cv57, June 6, 2014; Daniel M. Schieble for plaintiff; C. Kailani Memmer for defendant. VLW 014-3-297, 16 pp.
