Boyd v. Emerald Isle, L.L.C. et al

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
REJENA BOYD,
Plaintiff,
v. 	CIVIL ACTION NO. 2:25-CV-22
(KLEEH)
EMERALD ISLE, L.L.C. et al.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANTS’ MOTION TO DISMISS [ECF NO. 8]
Pending 	before 	the 	Court 	is 	Defendants 	VRBO 	Holdings, 	Inc.
and 	HomeAway.com, 	Inc.’s 	Motion 	to 	Dismiss 	[ECF 	No. 	8]. 	For 	the
reasons discussed herein, the Motion is DENIED IN PART and GRANTED
IN PART.
I. 	PROCEDURAL HISTORY
On August 1, 2025, Plaintiff Rejena Boyd (“Plaintiff”) filed
a 	Complaint 	for 	Damages 	against 	Defendants 	VRBO 	Holdings, 	Inc.
(“VRBO 	Holdings”) 	and 	HomeAway.com, 	Inc. 	(“HomeAway”) 	in 	the
Circuit 	Court 	of 	Upshur 	County, 	West 	Virginia. 	ECF 	No. 	1-2.
Plaintiff 	filed 	an 	Amended 	Complaint 	for 	Damages 	on 	September 	3,
2025. ECF No. 1-3. On September 5, 2025, Defendants VRBO Holdings
and HomeAway removed the instant case to the United States District
Court for the Northern District of West Virginia. ECF No. 1.
On October 9, 2025, Defendants then filed a Motion to Dismiss
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For Lack of Personal Jurisdiction and, Alternatively, For Failure
to 	State 	a 	Claim 	[ECF 	No. 	8] 	pursuant 	to 	Federal 	Rules 	of 	Civil
Procedure 12(b)(2) and 12(b)(6). Plaintiff filed a Response to the
motion. 	ECF 	No. 	20. 	Defendants 	filed 	their 	Reply 	in 	support 	of
their motion. ECF No. 15. Additionally, Defendants filed a motion
to 	have 	Plaintiff’s 	Response 	stricken 	due 	to 	untimeliness. 	[ECF
No. 	21]. 	Defendants’ 	Motion 	to 	Dismiss 	(“motion”) 	[ECF 	No. 	8] 	is
fully briefed and ripe for decision.
II. 	FACTUAL ALLEGATIONS 1
Plaintiff 	brings 	multiple 	claims 	against 	VRBO 	Holdings 	and
HomeAway, 	including 	(Count 	I) 	negligence, 	(Count 	II) 	breach 	of
warranties, 	(Count 	III) 	misrepresentation, 	(Count 	IV) 	joint
venture, 	(Count 	V) 	negligence 	per 	se, 	and 	(Count 	VI) 	grossly
negligent and reckless conduct. ECF No. 1-3.
Plaintiff alleges that on or about August 3, 2023, Plaintiff
drank 	a 	cup 	of 	coffee 	from 	a 	coffee 	maker 	at 	the 	rental 	property
in 	which 	the 	Plaintiff 	was 	residing. 	Id. 	at 	¶ 	22. 	After 	drinking
the cup of coffee, Plaintiff discovered cockroaches in the coffee
maker. 	Id. 	at 	¶ 	24. 	Within 	an 	hour 	of 	drinking 	the 	coffee,
Plaintiff “developed a tingling in her mouth and gums and began to
get 	hives.” 	Id. 	at 	¶ 	25 	Plaintiff 	alleges 	she 	ingested 	juvenile
cockroaches, cockroach eggs, and/or cockroach feces when drinking
1 The Court accepts all well-pled allegations as true at the motion to
dismiss stage.
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her coffee. Id. at ¶ 26. On August 7, 2023, Plaintiff was seen at
a 	medical 	facility 	for 	a 	rash 	“caused 	by 	an 	allergic 	reaction 	to
roach 	ingestion.” 	Id. 	at 	¶ 	27. 	For 	multiple 	days 	after 	drinking
the 	coffee, 	Plaintiff 	continued 	to 	feel 	“lethargic, 	itchy, 	achy,
and 	her 	face 	and 	eyes 	began 	to 	swell 	and 	she 	began 	to 	get 	hives
and 	was 	having 	difficulty 	breathing.” 	Id. 	at 	¶ 	28. 	Plaintiff
alleges that she was diagnosed with chronic urticaria, as a result
of the cockroach ingestion. Id. at ¶ 29.
Plaintiff 	requests 	judgment 	against 	all 	Defendants 	and
requests 	fair 	compensation 	for 	her 	injuries 	including 	special,
general, and punitive damages. Id. at ¶ 79.
III. MOTION TO STRIKE
The 	Court 	must 	first 	address 	the 	pending 	motion 	to 	strike.
Defendants 	moved 	to 	dismiss 	Plaintiff’s 	untimely 	response 	to
Defendants’ 	motion 	to 	dismiss 	pursuant 	to 	Local 	Rule 	7.02(b)(1).
ECF No. 21.
Local Rule 7.02(b)(1) states that “responses to motions shall
be 	filed 	and 	served 	within 	fourteen 	(14) 	days 	from 	the 	date 	of
service 	of 	the 	motion.” 	But 	“the 	judicial 	officer 	to 	whom 	the
motion 	is 	addressed 	may 	modify 	the 	times 	for 	serving 	memoranda.”
L.R. Civ. P. 7.02(b)(4).
Pursuant 	to 	Local 	Rule 	7.02(b)(1), 	Plaintiff 	should 	have
filed 	her 	response 	no 	later 	than 	October 	23, 	2025. 	Instead,
Plaintiff filed a Response in Opposition to Defendants’ Motion to
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Dismiss 	[ECF 	No. 	20] 	on 	November 	10, 	2025. 	Plaintiff 	has 	never
explained or addressed why their response was not filed within the
fourteen-day timeframe required by the local rules.
The Court finds that Plaintiff has not demonstrated excusable
neglect 	for 	failing 	to 	file 	her 	response 	within 	the 	fourteen-day
time period required by the local rules. Accordingly, Defendants’
motion to strike [ECF No. 21] is GRANTED.
IV. 	LEGAL STANDARDS
A. Motion to Dismiss for Lack of Personal Jurisdiction
When 	a 	defendant 	files 	a 	Federal 	Rule 	of 	Civil 	Procedure
12(b)(2) motion to dismiss for lack of personal jurisdiction, the
plaintiff 	bears 	the 	ultimate 	burden 	of 	showing 	that 	jurisdiction
exists 	by 	a 	preponderance 	of 	the 	evidence. 	New 	Wellington 	Fin.
Corp. 	v. 	Flagship 	Resort 	Dev. 	Corp., 	416 	F.3d 	290, 	294 	(4th 	Cir.
2005). However, where a court makes a Rule 12(b)(2) determination
without 	a 	hearing 	and 	based 	only 	on 	the 	written 	record, 	as 	the
Court 	does 	here, 	the 	plaintiff 	need 	only 	put 	forth 	a 	prima 	facie
showing 	of 	jurisdiction 	“by 	pointing 	to 	affidavits 	or 	other
relevant evidence.” Henderson v. Metlife Bank, N.A., No. 3:11-cv-
20, 	2011 	WL 	1897427, 	at 	*6 	(N.D. 	W. 	Va. 	May 	18, 	2011); 	see 	also
New 	Wellington 	Fin. 	Corp., 	416 	F.3d 	at 	294. 	The 	Court 	must 	then
“construe 	all 	relevant 	pleading 	allegations 	in 	the 	light 	most
favorable to the plaintiff, assume credibility, and draw the most
favorable 	inferences 	for 	the 	existence 	of 	jurisdiction.” 	New
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Wellington 	Fin. 	Corp., 	416 	F.3d 	at 	294; 	see 	also 	5B 	Wright 	&
Miller, Federal Practice and Procedure § 1351 (3rd. ed.).
B. Motion to Dismiss for Failure to State a Claim
Rule 	12(b)(6) 	allows 	a 	defendant 	to 	move 	for 	dismissal 	upon
the 	ground 	that 	a 	complaint 	does 	not 	“state 	a 	claim 	upon 	which
relief can be granted.” 	In ruling on a 12(b)(6) motion to dismiss,
a 	court 	“must 	accept 	as 	true 	all 	of 	the 	factual 	allegations
contained in the complaint.” 	Anderson v. Sara Lee Corp., 508 F.3d
181, 188 (4th Cir. 2007) (quoting Erickson v. Pardus, 551 U.S. 89,
94 	(2007)). 	A 	court 	is 	“not 	bound 	to 	accept 	as 	true 	a 	legal
conclusion 	couched 	as 	a 	factual 	allegation.” 	Papasan 	v. 	Allain,
478 U.S. 265, 286 (1986).
A 	court 	should 	dismiss 	a 	complaint 	if 	it 	does 	not 	contain
“enough facts to state a claim to relief that is plausible on its
face.” 	Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Plausibility 	exists 	“when 	the 	plaintiff 	pleads 	factual 	content
that 	allows 	the 	court 	to 	draw 	the 	reasonable 	inference 	that 	the
defendant 	is 	liable 	for 	the 	misconduct 	alleged.” 	Ashcroft 	v.
Iqbal, 	556 	U.S. 	662, 	678 	(2009). 	A 	motion 	to 	dismiss 	“does 	not
resolve contests surrounding the facts, the merits of a claim, or
the 	applicability 	of 	defenses.” 	Republican 	Party 	of 	N.C. 	v.
Martin, 	980 	F.2d 	943, 	952 	(4th 	Cir. 	1992). 	Dismissal 	is
appropriate 	only 	if 	“it 	appears 	to 	be 	a 	certainty 	that 	the
plaintiff would be entitled to no relief under any state of facts
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which 	could 	be 	proven 	in 	support 	of 	its 	claim.” 	Johnson 	v.
Mueller, 415 F.2d 354, 355 (4th Cir. 1969).
When a defendant moves to dismiss under Rule 12(b)(6), courts
are limited to considering the sufficiency of allegations set forth
in the complaint and the “documents attached or incorporated into
the 	complaint.” 	E.I. 	du 	Pont 	de 	Nemours 	& 	Co. 	v. 	Kolon 	Indus.,
Inc., 	637 	F.3d 	435, 	448 	(4th 	Cir. 	2011). 	“Consideration 	of
extrinsic 	documents 	by 	a 	court 	during 	the 	pleading 	stage 	of
litigation improperly converts the motion to dismiss into a motion
for 	summary 	judgment.” 	Zak 	v. 	Chelsea 	Therapeutics 	Int’l, 	Ltd.,
780 F.3d 597, 606 (4th Cir. 2015) (citing E.I. du Pont de Nemours
& Co., 637 F.3d at 448). 	“This conversion is not appropriate when
the 	parties 	have 	not 	had 	an 	opportunity 	to 	conduct 	reasonable
discovery.” 	Id. 	Courts 	may 	consider 	documents 	attached 	to 	a
motion 	to 	dismiss 	without 	converting 	it 	to 	a 	motion 	for 	summary
judgment 	only 	if 	the 	documents 	are 	“integral 	to 	and 	explicitly
relied on in the complaint,” and “the plaintiffs do not challenge
[the documents’] authenticity.” 	Zak, 780 F.3d at 606-07; see also
Goines 	v. 	Valley 	Cmty. 	Servs. 	Bd., 	822 	F.3d 	159, 	166 	(4th 	Cir.
2016).
V. 	DISCUSSION
Defendants 	argue 	Plaintiff’s 	Amended 	Complaint 	should 	be
dismissed 	for 	(1) 	lack 	of 	personal 	jurisdiction 	under 	Rule
12(b)(2), and (2) failure to state a claim under Rule 12(b)(6).
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A. Defendant’s 	Motion 	to 	Dismiss 	for 	Lack 	of 	Personal
Jurisdiction is Denied.
Plaintiff 	has 	met 	her 	burden 	to 	establish 	this 	Court’s
personal 	jurisdiction 	over 	Defendants, 	at 	this 	stage 	of 	the
litigation. 	Under 	Rule 	4(k)(1)(A) 	of 	the 	Federal 	Rules 	of 	Civil
Procedure, 	a 	federal 	district 	court 	may 	exercise 	personal
jurisdiction over a defendant to the same degree that a counterpart
state 	court 	could 	do 	so. 	See 	Diamond 	Healthcare 	of 	Ohio, 	Inc. 	v.
Humility 	of 	Mary 	Health 	Partners, 	229 	F.3d 	448, 	450 	(4th 	Cir.
2000). 	Importantly 	as 	a 	result, 	for 	a 	district 	court 	to 	have
jurisdiction 	over 	a 	nonresident 	defendant, 	the 	exercise 	of
jurisdiction 	(1) 	must 	be 	authorized 	under 	the 	state’s 	long-arm
statute, and (2) must comport with the due process requirements of
the 	Fourteenth 	Amendment. 	Carefirst 	of 	Md., 	Inc. 	v. 	Carefirst
Pregnancy 	Ctrs., 	Inc., 	334 	F.3d 	390, 	396 	(4th 	Cir. 	2003) 	(citing
Christian Sci. Bd. of Dirs. of the First Church of Christ v. Nolan,
259 	F.3d 	209, 	215 	(4th 	Cir. 	2001)). 	As 	West 	Virginia’s 	long-arm
statute 	provides 	jurisdiction 	to 	the 	full 	extent 	allowable 	under
the 	United 	States 	Constitution, 	see 	W. 	Va. 	Code 	§ 	56-3-33, 	the
Court 	need 	only 	consider 	whether 	the 	exercise 	of 	personal
jurisdiction would comport with the Due Process Clause.
West Virginia Code § 31D-15-1501 deems a foreign corporation
to be transacting business in West Virginia if:
(1) 	the 	corporation 	makes 	a 	contract 	to 	be
performed, 	in 	whole 	or 	in 	part, 	by 	any 	party
thereto, in West Virginia;
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(2) 	the 	corporation 	commits 	a 	tort, 	in 	whole
or in part, in West Virginia; or
(3) 	the 	corporation 	manufactures, 	sells,
offers 	for 	sale 	or 	supplies 	any 	product 	in 	a
defective 	condition 	and 	that 	product 	causes
injury 	to 	any 	person 	or 	property 	within 	West
Virginia.
For 	a 	district 	court 	to 	assert 	jurisdiction 	over 	a 	nonresident
defendant 	within 	the 	confines 	of 	due 	process, 	the 	defendant 	must
have 	“minimum 	contacts” 	with 	the 	forum 	state 	such 	that 	it 	is
consistent 	with 	“fair 	play 	and 	substantial 	justice.” 	Int’l 	Shoe
Co. 	v. 	Washington, 	326 	U.S. 	310, 	316 	(1945). 	The 	Fourth 	Circuit
states 	that 	an 	out-of-state 	defendant 	must 	have 	minimum 	contacts
that 	are 	purposeful 	to 	help 	“ensure 	that 	non-residents 	have 	fair
warning that a particular activity may subject them to litigation
within 	the 	forum.” 	In 	re 	Celotex 	Corp., 	124 	F.3d 	619, 	628 	(4th
Cir. 1997).
A 	court 	analyzes 	whether 	a 	defendant 	possesses 	such 	minimum
contacts 	by 	looking 	to 	whether 	the 	plaintiff 	seeks 	to 	establish
“specific” 	or 	“general” 	jurisdiction. 	Specific 	jurisdiction 	is
exercised when the defendant’s contacts with the forum state form
the basis of the suit. Carefirst, 334 F.3d at 397. In determining
whether 	a 	defendant’s 	contacts 	support 	the 	exercise 	of 	specific
jurisdiction, 	a 	district 	court 	considers 	the 	following: 	“(1) 	the
extent 	to 	which 	the 	defendant 	has 	purposefully 	availed 	itself 	of
the 	privilege 	of 	conducting 	activities 	in 	the 	state; 	(2) 	whether
the 	plaintiff’s 	claims 	arise 	out 	of 	those 	activities 	directed 	at
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the 	state; 	and 	(3) 	whether 	the 	exercise 	of 	personal 	jurisdiction
would be constitutionally ‘reasonable.’” Id. at 396.
In the business context, the purposeful availment evaluation
weighs 	a 	number 	of 	factors: 	(1) 	“whether 	the 	defendant 	maintains
offices or agents in the forum state;” (2) “whether the defendant
owns 	property 	in 	the 	forum 	state;” 	(3) 	“whether 	the 	defendant
reached into the forum state to solicit or initiate business;” (4)
“whether 	the 	defendant 	deliberately 	engaged 	in 	significant 	or
long-term 	business 	activities 	in 	the 	forum 	state;” 	(5) 	“whether
the 	parties 	contractually 	agreed 	that 	the 	law 	of 	the 	forum 	state
would govern disputes;” (6) “whether the defendant made in-person
contact with the resident of the forum in the forum state regarding
the business relationship;” (7) “the nature, quality and extent of
the parties’ communications about the business being transacted;”
and (8) “whether the performance of contractual duties was to occur
within 	the 	forum.” 	Universal 	Leather, 	LLC 	v. 	Koro 	AR, 	S.A., 	773
F.3d 553, 559 (4th Cir. 2014), (quoting Consulting Eng’rs Corp. v.
Geometric 	Ltd., 561 	F.3d 	273, 	278 	(4th 	Cir. 	2009) (citations
omitted)). Generally, 	a 	“foreign 	defendant 	has 	purposefully
availed itself of the privilege of conducting business in the forum
state 	when 	the 	defendant 	substantially 	collaborated 	with 	a 	forum
resident and that joint enterprise constituted an integral element
of the dispute.” Universal Leather, 773 F.3d at 559; (quoting Tire
Eng’g v. Shandong Linglong Rubber Co., 682 F.3d 292, 302 (4th Cir.
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2012) 	(internal 	quotations 	omitted)). 	In 	contrast, 	purposeful
availment 	is 	absent 	in 	cases 	where 	“the 	locus 	of 	the 	parties’
interaction 	was 	overwhelmingly 	abroad.” Tire 	Eng’g, 	682 	F.3d 	at
302.
Where the defendant’s contacts are unrelated to the basis of
the 	suit, 	a 	court 	must 	look 	to 	the 	requirements 	of 	general
jurisdiction. 	Id. 	at 	397. 	The 	standard 	for 	finding 	the 	existence
of 	general 	jurisdiction 	is 	high: 	the 	defendant 	must 	have
“continuous 	and 	systematic” 	contacts 	with 	the 	forum 	state.
Helicopteros 	Nacionales 	de 	Colombia, 	S.A. 	v. 	Hall, 	466 	U.S. 	408,
416(1984); 	see 	also 	ESAB 	Group, 	Inc. 	v. 	Centricut, 	126 	F.3d 	617,
623 	(4th 	Cir. 	1997) 	(“[T]he 	threshold 	level 	of 	minimum 	contacts
sufficient to confer general jurisdiction is significantly higher
than 	for 	specific 	jurisdiction.”). 	The 	hallmark 	of 	general
jurisdiction is that the defendant’s contacts with the forum state
are 	so 	extensive 	that 	it 	should 	reasonably 	foresee 	being 	haled
into court there. World-Wide Volkswagen Corp. v. Woodson, 444 U.S.
286, 297 (1980).
Plaintiff 	has 	met 	the 	prima 	facie 	burden 	of 	establishing
personal jurisdiction; therefore, the motion to dismiss is denied
on 	this 	ground. 	Fed. 	R. 	Civ. 	P. 	12(b)(2). 	Although 	Defendants
contend 	that 	HomeAway 	and 	VRBO 	Holdings 	are 	not 	a 	party 	to 	any
contract made between the property owner and the renter, the Court
finds HomeAway, a Delaware Corporation with its principal place of
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business in Texas, and VRBO Holdings, a Delaware corporation with
its 	principal 	place 	of 	business 	in 	Washington, 	have 	sufficient
contacts with West Virginia to render the exercise of jurisdiction
over Defendants constitutionally permissible.
Defendants 	argue 	the 	Court 	does 	not 	have 	personal
jurisdiction 	over 	them 	because 	there 	are 	insufficient 	minimum
contacts 	with 	the 	forum 	state. 	See 	ECF 	No. 	10. 	Defendants
continuously 	assert 	that 	they 	are 	not 	a 	party 	to 	any 	contractual
agreement 	between 	the 	property 	owner 	and 	renter. 	See 	id.
Specifically, 	Defendants 	argue 	that 	neither 	HomeAway 	or 	VRBO
Holdings 	“owned, 	possessed, 	operated, 	managed, 	controlled,
inspected, 	maintained, 	or 	rented 	the 	Property 	or 	any 	properties
listed 	by 	third 	parties 	on 	its 	websites.” 	Id. 	at 	p. 	4. 	Further,
Defendants 	argue 	that 	there 	is 	“no 	agent, 	employee, 	or 	joint-
venture 	relationship 	. 	. 	. 	between 	HomeAway 	and 	any 	of 	the 	other
named defendants.” Id.
Here, 	Defendants’ 	argument 	that 	neither 	HomeAway 	nor 	VRBO
Holdings 	have 	purposefully 	availed 	itself 	of 	the 	privilege 	of
conducting business in the forum state fails. While Defendants do
not 	maintain 	an 	address 	or 	different 	offices 	in 	the 	forum 	state,
the businesses advertise West Virginia rental residences on their
website. 	Defendants 	are 	correct 	in 	stating 	that 	simply 	having 	a
public 	website 	that 	is 	accessible 	in 	another 	jurisdiction 	is 	not
enough to establish personal jurisdiction. Id. at p. 12. However,
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Defendants have purposely availed themselves to the forum through
advertising various West Virginia residences to potential renters.
See 	ECF 	No. 	20, 	at 	pp. 	6-7. 	The 	property 	at 	issue 	was 	advertised
on Defendants’ websites, as well as many other West Virginia rental
properties. Defendants’ websites are not only accessible in other
jurisdictions; Defendant purposely advertises rental properties in
West Virginia in the hopes of drawing business in this State.
In their motion [ECF No. 8], Defendants place large emphasis
on 	the 	concept 	that 	neither 	HomeAway, 	nor 	VRBO 	Holdings,
intentionally 	advertise 	their 	websites 	to 	travelers 	from 	West
Virginia. ECF No. 9, at p. 10. It can hardly be argued that HomeAway
or VRBO Holdings are not availing their services to West Virginia
when 	their 	websites 	are 	advertising 	rental 	properties 	in 	West
Virginia. 	Put 	plainly, 	Defendants 	are 	engaging 	in 	business
activities 	directed 	at 	West 	Virginia 	and 	thus 	are 	purposely
availing 	themselves 	to 	the 	forum 	state. 	Moreover, 	Plaintiff’s
claims 	arise 	out 	of 	Defendants’ 	business 	activities 	in 	West
Virginia. 	Plaintiff 	rented 	the 	Property 	through 	Defendants’
website, where the property was advertised.
While 	neither 	Defendant 	has, 	nor 	had, 	any 	operations 	in 	the
state 	of 	West 	Virginia, 	Defendants 	have 	engaged 	in 	long-term
business 	activities 	in 	West 	Virginia. 	Allowing 	Defendants 	to
conduct 	business 	and 	advertise 	their 	services 	in 	West 	Virginia
without 	allowing 	Plaintiff 	to 	bring 	Defendants 	into 	this 	Court
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would plainly go against public policy. Because Plaintiff met her
prima facie burden in the specific personal jurisdiction inquiry,
the motion is DENIED. Fed. R. Civ. P. 12(b)(2).
B. Defendant’s Motion to Dismiss For Failure to State a Claim
is Denied in Part and Granted in Part.
The Court further denies in part and grants in part the motion
to dismiss pursuant to Rule 12(b)(6).
Defendants argue that Plaintiff fails to allege viable claims
for 	negligence, 	breach 	of 	warranties, 	misrepresentation, 	joint
venture, 	negligence 	per 	se, 	and 	grossly 	negligent 	and 	reckless
conduct. ECF No. 10, at p. 22. Defendants argue that Plaintiff is
unable 	to 	show 	that 	Defendants 	owed 	Plaintiff 	a 	duty 	as 	a 	matter
of 	law 	and 	does 	not 	allege 	any 	facts 	that 	could 	plausibly 	result
in such claims. Id. at pp. 22-23.
1. Negligence/Negligence 	Per 	Se/Grossly 	Negligent 	and
Reckless Conduct
To succeed in a claim for negligence, a plaintiff must prove,
by a preponderance of the evidence, that the defendant owed a duty,
the defendant breached the duty owed, and the negligent breach was
the proximate cause of the injury. Wheeling Park Comm'n v. Dattoli,
787 S.E.2d 546, 551 (W. Va. 2016). “No action for negligence will
lie without a duty broken.” Syl. Pt. 1, in part, Parsley v. General
Motors Acceptance Corp., 280 S.E.2d 703 (W. Va. 1981). Importantly,
“[t]he determination of whether a defendant ... owes a duty to the
plaintiff 	is 	not 	a 	factual 	question 	for 	the 	jury; 	rather 	the
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determination 	... 	must 	be 	rendered 	by 	the 	court 	as 	a 	matter 	of
law.” 	Syl. 	Pt. 	5, 	Eastern 	Steel 	Constructors, 	Inc. 	v. 	City 	of
Salem, 549 S.E.2d 266, 267-68 (W. Va. 2001) (citation omitted).
In 	their 	motion, 	Defendants 	argue 	that 	there 	is 	no 	way 	that
Defendants 	could 	have 	foreseen 	the 	alleged 	harm 	suffered 	by
Plaintiff. ECF No. 10, at p. 23. Defendants contend Plaintiff does
not 	allege 	any 	facts 	that 	Defendants 	had 	or 	should 	have 	had
knowledge 	concerning 	the 	conditions 	of 	the 	coffee 	maker 	and 	that
Plaintiff 	alleges 	no 	“affirmative 	conduct” 	on 	the 	part 	of 	the
Defendants that contributed to the condition of the coffee maker.
Id. at p. 24.
Plaintiff’s 	Complaint 	alleges 	that 	Defendants 	had 	a 	duty 	to
keep 	their 	premises 	in 	a 	reasonably 	safe 	condition 	and 	that
Defendants 	breached 	that 	duty 	when 	they 	failed 	to 	“fix 	hidden
dangers 	and/or 	defects 	on 	their 	property” 	that 	led 	to 	the 	roach
infestation. ECF No. 1-3, at ¶ 45(a)-(b). Additionally, Plaintiff
alleges 	that 	Defendants’ 	lack 	of 	pest 	control 	maintenance 	and
maintenance 	of 	the 	subject 	premises 	caused 	Plaintiff 	to 	ingest
“roaches 	and 	roach 	feces” 	and 	caused 	her 	“serious, 	permanent
injury.” Id. at ¶ 47.
In 	their 	motion 	to 	dismiss, 	Defendants 	appear 	to 	expect
Plaintiff to have fully developed legal arguments for each of the
negligence 	counts 	levied 	against 	the 	Defendants. 	See 	id. 	At 	this
stage, Plaintiff’s complaint must only be plausible. According to
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the 	facts 	alleged 	in 	the 	complaint, 	this 	Court 	can 	draw 	the
reasonable 	inference 	that 	Defendants 	could 	have 	acted 	in 	a
negligent manner which led to Plaintiff’s injuries. Further, since
Defendants 	are 	alleged 	to 	be 	heavily 	involved 	in 	the 	rental
agreement 	made 	between 	Plaintiff 	and 	the 	property 	owners, 	it 	is
premature 	to 	assume 	that 	Defendants 	owed 	no 	duty 	of 	care 	to
Plaintiff. 	While 	it 	is 	unclear 	whether 	Plaintiff 	will 	ultimately
prevail 	on 	each 	of 	the 	negligence 	claims 	alleged 	against
Defendants, 	it 	is 	logical 	to 	allow 	discovery 	to 	proceed 	at 	this
point.
Defendants’ 	motion 	to 	dismiss 	Counts 	I 	(Negligence), 	V
(Negligence 	Per 	Se), 	and 	VI 	(Grossly 	Negligent 	and 	Reckless
Conduct) is DENIED.
2. Breach of Warranties
Under the West Virginia Code,
(1) 	Express 	warranties 	by 	the 	seller 	are
created as follows:
(a) 	Any 	affirmation 	of 	fact 	or 	promise
made 	by 	the 	seller 	to 	the 	buyer
which 	relates 	to 	the 	goods 	and
becomes 	part 	of 	the 	basis 	of 	the
bargain creates an express warranty
that the goods shall conform to the
affirmation or promise.
(b) 	Any 	description 	of 	the 	goods 	which
is 	made 	part 	of 	the 	basis 	of 	the
bargain creates an express warranty
that the goods shall conform to the
description.
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(c) 	Any 	sample 	or 	model 	which 	is 	made
part 	of 	the 	basis 	of 	the 	bargain
creates an express warranty that the
whole of the goods shall conform to
the sample or model.
(2) It is not necessary to the creation of an
express 	warranty 	that 	the 	seller 	use 	formal
words such as “warrant” or “guarantee” or that
he 	have 	a 	specific 	intention 	to 	make 	a
warranty, 	but 	an 	affirmation 	merely 	of 	the
value 	of 	the 	goods 	or 	a 	statement 	purporting
to 	be 	merely 	the 	seller's 	opinion 	or
commendation 	of 	the 	goods 	does 	not 	create 	a
warranty.
W. Va. Code § 46-2-313. To establish a breach of express warranty,
a plaintiff must “show the existence of an express warranty, breach
of 	the 	express 	warranty, 	and 	damages 	proximately 	caused 	by 	the
breach.” 	Bishop 	v. 	Triumph 	Motorcycles 	(Am.) 	Ltd., 	No. 	3:18-CV-
186, 	2021 	WL 	4316810, 	at 	*9 	(N.D.W. 	Va. 	Sept. 	22, 	2021), 	aff'd,
No. 	21-2113, 	2022 	WL 	17103710 	(4th 	Cir. 	Nov. 	22, 	2022) 	(citation
omitted). Further, Under West Virginia law, “[w]here the seller at
the time of contracting has reason to know any particular purpose
for which the goods are required and that the buyer is relying on
the seller's skill or judgment to select or furnish suitable goods,
there 	is 	... 	an 	implied 	warranty 	that 	the 	goods 	shall 	be 	fit 	for
such purpose.” See W. Va. Code § 46-2-315.
West 	Virginia 	law 	provides 	for 	two 	types 	of 	implied
warranties: 	(1) 	the 	implied 	warranty 	of 	merchantability, 	and 	(2)
the 	implied 	warranty 	of 	fitness 	for 	a 	particular 	purpose. 	See 	W.
Va. Code §§ 46-2-314, 46-2-315.
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Defendants argue that Plaintiff provides no specific express
or implied warranties in her Complaint. ECF No. 10, at pp. 24-25.
Since 	Plaintiff 	does 	not 	give 	specific 	express 	or 	implied
warranties 	or 	allege 	how 	Defendants 	breached 	such 	warranties,
Defendants 	argue 	that 	Plaintiff’s 	claim 	for 	breach 	of 	warranties
lacks facial plausibility. Id.
The 	Court 	disagrees 	that 	Plaintiff 	does 	not 	allege
sufficiently 	specific 	express 	or 	implied 	warranties 	in 	the
Complaint. 	In 	the 	Complaint, 	Plaintiff 	alleges 	that 	Defendants
“expressly 	and 	impliedly 	warranted 	to 	Plaintiff 	that 	the 	rental
property 	was 	safe 	and 	posed 	no 	unreasonable 	hazards 	to 	life 	and
safety 	when 	the 	Defendants, 	by 	and 	through 	their 	agents 	and/or
employees, 	rented 	an 	apartment 	to 	Plaintiff.” 	ECF 	No. 	1-3, 	¶ 	61.
While Plaintiff does not give the specific contractual provisions
from 	the 	rental 	agreement, 	Plaintiff 	has 	alleged 	enough 	facts 	to
proceed at this stage.
Defendants’ motion to dismiss Count II (Breach of Warranties)
of Plaintiff’s Complaint is DENIED.
3. Misrepresentation
Under West Virginia law,
To 	state 	a 	claim 	for 	negligent
misrepresentation 	..., 	a 	plaintiff 	must
establish 	(1) 	that 	a 	defendant 	represented 	a
matter 	as 	being 	true, 	(2) 	that 	the 	defendant
had 	no 	knowledge 	of 	the 	truth 	of 	his
representation, 	(3) 	that 	the 	representation
was 	false, 	and 	(4) 	that 	the 	plaintiff 	relied
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on the false representation to his detriment.
Kerns 	v. 	Range 	Res. 	– 	Appalachia, 	LLC, 	No. 	1:10CV23, 	2011 	WL
3753117, 	at 	*7 	(N.D.W. 	Va. 	Aug. 	23, 	2011) 	(citations 	omitted 	and
numbers added). The Supreme Court of Appeals of West Virginia has
also 	held 	that 	a 	plaintiff 	must 	allege 	a 	“sufficient 	special
relationship or duty” toward a defendant. Kidd v. Mull, 595 S.E.2d
308, 317 (W. Va. 2004).
Defendants argue the Complaint fails to provide the specific
misrepresentations 	Defendants 	made 	to 	Plaintiff. 	ECF 	No. 	10, 	at
pp. 	24-25. 	The 	Court 	disagrees. 	Plaintiff 	alleges 	Defendants
misrepresented 	that 	the 	rental 	property 	posed 	no 	unreasonable
hazards and was safe when the property did 	allegedly pose hazards
to 	health 	and 	safety. 	ECF 	No. 	1-3, 	at 	¶¶ 	64-65. 	Plaintiff 	has
sufficiently pled enough specifics to proceed to discovery on the
allegation of misrepresentation.
Defendants’ motion to dismiss Count III (Misrepresentations)
of Plaintiff’s Complaint is DENIED.
4. Joint Venture
A joint venture is “an association of two or more persons to
carry 	out 	a 	single 	business 	enterprise 	for 	profit, 	for 	which
purpose 	they 	combine 	their 	property, 	money, 	effects, 	skill, 	and
knowledge. It arises out of a contractual relationship between the
parties. The contract may be oral or written, express or implied.”
Syl. 	pt. 	5, 	Armor 	v. 	Lantz, 	535 	S.E.2d 	737, 	739 	(W. 	Va. 	2000)
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(citation 	and 	quotation 	marks 	omitted). 	Under 	West 	Virginia 	law,
there is no independent cause of action for a joint venture. Farley
v. Phillips and Jordan, Inc., No. 2:20-CV-00163, 2020 WL 1677407,
at *3 (S.D.W. Va. Apr. 6, 2020). Rather, joint venture is a theory
of 	liability 	that 	must 	relate 	to 	a 	substantive 	cause 	of 	action.
Id.
Because 	a 	joint 	venture 	is 	not 	an 	independent 	basis 	for
liability in West Virginia, Defendants’ motion to dismiss Count IV
(Joint Venture) of Plaintiff’s complaint is GRANTED. To the extent
Plaintiff 	seeks 	to 	argue 	joint 	venture 	as 	a 	theory 	of 	liability
for any of the surviving causes of action, she may do so.
VI. 	CONCLUSION
For 	the 	reasons 	discussed 	above, 	Defendants’ 	Motion 	to
Dismiss for Lack of Personal Jurisdiction is DENIED and Motion to
Dismiss for Failure to State a Claim is GRANTED IN PART as to Count
IV (Joint Venture) and DENIED IN PART as to all other claims. ECF
No. 	8. 	Furthermore, 	Defendants’ 	motion 	to 	strike 	[ECF 	No. 	21] 	is
GRANTED.
It is so ORDERED.
The 	Clerk 	is 	directed 	to 	transmit 	copies 	of 	this 	Order 	to
counsel of record.
DATED: September 28, 2026
____________________________
THOMAS S. KLEEH, CHIEF JUDGE
NORTHERN DISTRICT OF WEST VIRGINIA
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