United States District Court, E.D. Kentucky, Northern Division, Ashland
MEMORANDUM OPINION AND ORDER
R. Wllhoit Jr District Judge.
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.
class action is premised upon certain individuals'
exposure to Hepatitis A "(HAV") 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].
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].
name five subclasses in their Amended Complaint:
(1) those that were exposed to Defendants' Hepatitis A
(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].
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"). ...