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Diamond v. Waffle House, Inc.

United States District Court, E.D. Kentucky, Northern Division, Ashland

September 14, 2018

PAUL DIAMOND, et al, PLAINTIFFS,
v.
WAFFLE HOUSE, INC., et al., DEFENDANTS.

          MEMORANDUM OPINION AND ORDER

          Henry R. Wllhoit Jr District Judge.

         This matter is before the Court upon Defendant WH Capital, L.L.C.'s Motion for Partial Dismissal [Docket No. 18] and Defendants Waffle House, Inc., Riverside Restaurant Group, LLC, and WH Capital, L.L.C.'s Motion for Partial Dismissal of the Amended Complaint [Docket No. 19]. The motions have been fully briefed by the parties [Docket Nos. 18-1, 19-1, 20, 21, 22 and 23], For the reasons set forth herein, the Court will sustain the motions.

         I.

         This class action is premised upon certain individuals' exposure to Hepatitis A "(HAV")[1] while dining at the Waffle House restaurants #1808 and 1657, located in Ashland and Catlettsburg, Kentucky, respectively. Plaintiffs allege that an employee of Waffle House was infected with HAV and worked at both locations between February 12 and 28, 2018, thereby exposing all individuals who dined there to Hepatitis A. [Amended Complaint, Docket No. 17, ¶ 1].

         Plaintiffs' filed a class action Complaint on March 20, 2018, in Boyd Circuit Court asserting negligence / negligence per se and strict liability against Waffle House, Inc., Riverside Restaurant Group, LLC and WH Capital, L.L.C. ("Defendants"). [Docket No. 1-1]. Defendants filed their Notice of Removal on April 16, 2018. [Docket No. 1], Upon motion of Defendants, this Court entered an order extending Defendants' time for filing a responsive pleading up to and including May 16, 2018, and extending Plaintiffs' time to file a Motion to Remand up to and including June 15, 2018. [Docket No. 7]. Following the filing of Defendants' dispositive motion but prior to any jurisdictional motion, Plaintiffs sought leave to file an Amended Complaint, which this Court granted. [Docket Nos. 15 and 16]. Plaintiffs' Amended Complaint asserts the aforementioned tort claims and adds a claim for breach of implied warranty for merchantability pursuant to KRS 355.2-314. [Docket No. 17].

         Plaintiffs name five subclasses in their Amended Complaint:

(1) those that were exposed to Defendants' Hepatitis A positive employee;
(2) those who consumed food or drink that was manufactured, served and/or sold by Defendants' restaurants between February 12, 2018, and February 28, 2018;
(3) those who obtained an Hepatitis A vaccination, an IG shot, or Hepatitis A blood test because of their exposure;
(4) individuals in (1), (2) and/or (3) above that suffered physical symptoms or sickness; and/c
(5) individuals in (1), (2), and/or (3) above that contracted HAV a result of their exposure .

[Docket No. 17, ¶22].

         Defendants seek dismissal of the tort claims of Subclasses 1, 2, 3 and 4, the breach of implied warranty of merchantability claims of Subclass 1, 4 and 5 as well as the breach of implied warranty of merchantability claims of all the Subclasses against Defendants Waffle House, Inc. and WH Capital, L.L.C. ("WH Capital"). ...


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