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Lula Fitzgerald v. Red Roof Inn

January 19, 2012


The opinion of the court was delivered by: Landya B. McCafferty United States Magistrate Judge


Lula Fitzgerald has filed a complaint (doc. no. 1) against defendants Red Roof Inn, Inc., and Westmont Hospitality Group, Inc., seeking damages for injuries arising out of a slip and fall accident that occurred at the Red Roof Inn in Salem, New Hampshire, on July 12, 2008. Because Fitzgerald is proceeding pro se and in forma pauperis, the matter is before the court for preliminary review, to determine whether the complaint states a claim upon which relief might be granted. See 28 U.S.C. § 1915(e); United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(1)(B).

Standard of Review

Under LR 4.3(d)(1)(B), when a plaintiff commences an action pro se, the magistrate judge conducts a preliminary review. The magistrate judge may issue a report and recommendation after the initial review, recommending that claims be dismissed if the court lacks subject matter jurisdiction, the defendant is immune from the relief sought, the complaint fails to state a claim upon which relief may be granted, the allegation of poverty is untrue, or the action is frivolous or malicious. See id. (citing 28 U.S.C. § 1915(e)(2) & Fed. R. Civ. P. 12(b)(1)). In conducting a preliminary review, the magistrate judge construes pro se pleadings liberally, to avoid inappropriately stringent rules and unnecessary dismissals. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (following Estelle v. Gamble, 429 U.S. 97, 106 (1976), to construe pleadings liberally in favor of pro se party); Castro v. United States, 540 U.S. 375, 381 (2003).

To determine if the complaint states any claim upon which relief could be granted, the court applies a standard analogous to that used in reviewing a motion to dismiss filed under Fed. R. Civ. P. 12(b)(6). The court decides whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, ___, 129 S. Ct. 1937, 1949 (2009).

To make this determination, the court employs a two-pronged approach. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The court first screens the complaint for statements that "merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action." Id. (citations, internal quotation marks and alterations omitted). A claim consisting of little more than "allegations that merely parrot the elements of the cause of action" may be dismissed. Id. The second part of the test requires the court to credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then to determine if the claim is plausible. Id. The plausibility requirement "simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence" of illegal conduct. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007). The "make-or-break standard" is that those allegations and inferences, taken as true, "must state a plausible, not a merely conceivable, case for relief." Sepulveda-Villarini v. Dep't of Educ., 628 F.3d 25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555-56 ("Factual allegations 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)." (internal citations and footnote omitted)).

Evaluating the plausibility of a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at ___, 129 S. Ct. at 1950 (citation omitted). In doing so, the court may not disregard properly pleaded factual allegations or "attempt to forecast a plaintiff's likelihood of success on the merits." Ocasio-Hernandez, 640 F.3d at 13. "The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint." Id.


On July 12, 2008, at 10:30 a.m., while she was a guest at the Red Roof Inn in Salem, New Hampshire,*fn1 Lula Fitzgerald was walking from the hotel to a car in the guest parking lot and tripped over a concrete parking barrier in the parking lot. Fitzgerald sustained significant injuries. Fitzgerald states that the concrete parking barrier was only a few inches high, and was colored very similarly to the color of the parking lot itself, and thus was inconspicuous and easy to trip over.

The Claim*fn2

Fitzgerald alleges that defendants, owners of the property where she was injured, are both liable to her in this negligence action for failing to properly operate, manage, and/or maintain the premises of the Red Roof Inn, which resulted in Fitzgerald falling on the premises and sustaining severe and permanent injuries.


I. Jurisdiction

This matter arises under this court's diversity jurisdiction, which grants federal district courts original jurisdiction over civil actions where the amount in controversy exceeds $75,000, and where the action is between parties who are citizens of different states, or between parties who are citizens of a state and citizens of a foreign state. See 28 U.S.C. ยง 1332(a)(1) and (2). For purposes of diversity jurisdiction, a corporation is deemed to be a citizen of any state by ...

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