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Quezada v. Circle K Stores, Inc.

United States District Court for the Middle District of Florida, Fort Myers Division

July 7, 2005, Decided ; July 7, 2005, Filed

Case No. 2:04-cv-190-FtM-33DNF

Opinion

ORDER

This matter comes before the Court upon the filing of a Motion to Dismiss Negligent Retention and Intentional Infliction of Emotional Distress Counts (Doc. # 36) by the Defendant on November 9, 2004. On April 19, 2005, the Court entered an Order (Doc. # 45) directing the Plaintiffs to respond to the motion within eleven days. On May 2, 2005, Plaintiffs [*2]  requested a ten-day extension to enter a response to Defendant's motion to dismiss (Doc. # 48), which the Court granted (Doc. # 49). The Plaintiffs filed their response (Doc. # 51) on May 17, 2005.

I. Background

Plaintiffs Theresa Quezada and Tonya Paredes filed a Complaint in state court on January 29, 2004 alleging that Circle-K's negligence caused the Plaintiffs to contract tuberculosis. (Doc. # 3.) Circle-K removed the action to this Court on April 1, 2004 based on diversity jurisdiction under 28 U.S.C. § 1332(a). (Doc. # 1.) On October 21, 2004, the Plaintiffs filed an Amended Complaint (Doc. # 33) adding the other Plaintiffs and alleging negligence, negligent retention, and intentional infliction of emotional distress.

The Complaint alleges as follows. Plaintiff Theresa Quezada was an employee of Circle-K. (Doc. # 33 at 3.) While employed by Circle-K, Quezada worked with Emma Messer. (Doc. # 33 at 3.) Messer tested positive for tuberculosis during her employment with Circle-K. (Doc. # 33 at 3.) Circle-K was on notice that Messer tested positive for tuberculosis, but failed to take any action to protect Quezada, her family and friends, customers [*3]  of Circle-K, and the general public from exposure to tuberculosis by Messer. (Doc. # 33 at 5.)

Circle-K filed a Motion to Dismiss Negligent Retention and Intentional Infliction of Emotional Distress Counts (Doc. # 36) for failure to state a claim pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure.

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2005 U.S. Dist. LEXIS 20217 *; 18 Fla. L. Weekly Fed. D 795

THERESA QUEZADA, as the parent and legal guardian of REBECCA BOYD, a minor child, TONYA PAREDES, as the parent and legal guardian of TESSA PAREDES, a minor child, KIM BATTAGLIA, RHONDA QUEZADA, ROSENDO QUEZADA, LORI KESLING, as the parent and legal guardian of MEAGAN KESLING, a minor child, CRYSTAL BOYD, individually and as the parent and legal guardian of MARY-TERESA ROJAS-BOYD and ESPERANZA ANN DELGADO-BOYD, and DIANE DAVIDSON, individually and as the parent and legal guardian of SAMUEL MAYES, Plaintiffs, vs. CIRCLE K STORES, INC., doing business as Circle K, Defendant.

Subsequent History: Summary judgment granted by, in part Quezada v. Circle K Stores, 2005 U.S. Dist. LEXIS 34101 (M.D. Fla., Dec. 13, 2005)

CORE TERMS

retention, intentional infliction of emotional distress, tuberculosis, Counts, transmission, outrageous, cause of action, suffering, failure to state a claim, allegedly committed, contagious disease, infectious disease, test positive, common law, allegations, intolerable, contagious, infliction, recognizes, appears

Civil Procedure, Defenses, Demurrers & Objections, Motions to Dismiss, Failure to State Claim, Dismissal, Involuntary Dismissals, Failure to State Claims, Torts, Business Torts, Negligent Hiring, Retention & Supervision, General Overview, Negligent Hiring, Retention & Supervision, Negligence, Intentional Torts, Assault & Battery, Intentional Infliction of Emotional Distress, Elements