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Hopkins v. Booth

United States District Court for the Western District of New York

November 20, 2017, Decided; November 20, 2017, Filed

16-CV-1020V(F)

Opinion

REPORT and RECOMMENDATION

DECISION and ORDER

JURISDICTION

This matter was referred to the undersigned by order of Hon. Lawrence J. Vilardo on August 21, 2017 (Dkt. 13) for all pretrial matters. It is presently before the court on Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) ("Rule 12(b)(6)") filed August 4, 2017 (Dkt. 10), and Defendant's request to strike Plaintiffs' counsel's declaration and other exhibits which were included in Defendant's Reply filed August 30, 217 (Dkt. 15).1

BACKGROUND

Plaintiffs' complaint, based on diversity, alleging negligence (Count I), negligence per se (Count II), wrongful death (Count III), survival damages (Count IV) and punitive damages (Count V), was filed December 21, 2016. In lieu of answer, Defendant filed, pursuant to Rule 12(b)(6), the instant motion on August 4, 2017 (Dkt. 10) to dismiss Plaintiffs' Counts II, III, IV, and V (Dkt. 10) ("Defendant's motion") [*2]  together with the Memorandum of Law In Support of Defendant's Motion to Dismiss Counts II, III, IV, and V of Plaintiffs' Complaint pursuant to Rule 12(b)(6) (Dkt. 10-1) ("Defendant's Memorandum"). On August 8, 2017, Plaintiffs filed a Memorandum of Law In Opposition To Defendant's Motion To Dismiss Counts II, III, IV and V Of Plaintiffs' Complaint (Dkt. 11) attaching as Exhibit 1, the Declaration of Jules Zacher, Esq. (Dkt. 11-1) ("Zacher Declaration"), and a volume of exhibits (Dkt. 11-2) containing, inter alia, Exhibit 2 (New York State Department of Health Record ("N.Y.S. Dep't of Health Record")), Exhibit 3 (Allegany County Department of Health Letter dated September 29, 2016 ("County Dep't of Health Letter")), Exhibit 4 (copy of a death certificate for Margaret D. Morris ("Morris Death Certificate"), Plaintiff Douglas Morris's decedent), and Exhibit 5 (copy of Plaintiffs' 1st Amended Complaint ("the Amended Complaint")) ("Plaintiffs' Exh(s).    "). On August 30, 2017, Defendant filed a Reply Memorandum Of Law In Further Support Of Defendant's Motion To Dismiss Portions Of Plaintiffs' Complaint Pursuant To Fed.R.Civ.P. 12(b)(6) (Dkt. 15) ("Defendant's Reply"). Oral argument was deemed unnecessary. Based on the [*3]  following, Defendant's motion should be GRANTED in part, and DENIED in part; Defendant's request to strike is GRANTED.

FACTS2

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2017 U.S. Dist. LEXIS 191687 *; 2017 WL 5574027

COLLEEN HOPKINS, KATHRYN DiSALVO, DOUGLAS MORRIS, Executor of the Estate of Margaret Morris, Plaintiffs, v. JOHN S. BOOTH, III, Defendant.

Subsequent History: Adopted by, Dismissed by, in part, Motion denied by, in part, Motion granted by, in part, Dismissed by, As moot, Remanded by Hopkins v. Booth, 2018 U.S. Dist. LEXIS 7517 (W.D.N.Y., Jan. 17, 2018)

Magistrate's recommendation at Hopkins v. Booth, 2019 U.S. Dist. LEXIS 27894 (W.D.N.Y., Feb. 20, 2019)

Motion granted by Hopkins v. Booth, 2019 U.S. Dist. LEXIS 174725 (W.D.N.Y., Oct. 8, 2019)

CORE TERMS

Plaintiffs', hot tub, Legionella, punitive damages, allegations, Sanitary, disease, negligence per se, bacteria, premises, water system, damages, regulations, spa, motion to dismiss, exhibits, public health, infection, exposure, guests, pools, failure of defendant, gross negligence, survival, claim for punitive damages, contaminated, violations, inspect, cases, moot