Negligence Claim Survives Motion, Remanded to State Court

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April 22, 2026 Get Citation Alerts Download PDF Add Note

Marcelli Pascal-Rodriguez v. Brittany Wells, et al.

District Court, E.D. Virginia

• Citations: None known
• Docket Number: 2:25-cv-00730

• Precedential Status: Unknown Status

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

MARCELLI PASCAL-RODRIGUEZ,
Plaintiff,
v.
Case No. 2:25-cv-730
BRITTANY WELLS, et al.,
Defendants.
OPINION & ORDER
Defendant Brittany Wells moves to dismiss Plaintiff Marcelli Pascal-
Rodriguez’s negligence claim against her under Fed. R. Civ. P. 12(b)(6) or, in the
alternative, moves for summary judgment pursuant to Fed. R. Civ. P. 56. ECF Nos.
6 (motion), 7 (memorandum). For the reasons stated herein, the motion will be
DENIED, and the case will be REMANDED to the Circuit Court for the City of
Virginia Beach.
I. BACKGROUND
At this stage, the Court assumes the facts alleged in the complaint are true.
Plaintiff Marcelli Pascal-Rodriguez and Defendant Brittany Wells are both
individuals residing in the Commonwealth of Virginia. ECF No. 1-5 ¶¶ 1–2.
Defendant Elaine Suderio is an individual residing in the State of New York.1Id. ¶ 4.

1 Elaine Suderio’s presence as a defendant in this case is only relevant for purposes
of the jurisdictional analysis. As such, facts specific to her conduct are not included
in this Opinion and Order, and any reference to “the defendant” pertains to Brittany
Wells.
On or about July 19, 2024, the plaintiff met with the defendant—an area sales
manager for InMode—in Virginia Beach, Virginia, to test a radiofrequency
microneedling device called the Morpheus8. ECF No. 1-5 ¶¶ 3, 8–9. The defendant

“encouraged” the plaintiff to receive a microneedling treatment using the Morpheus8
and “induced” him to do so “by proclaiming that [the treatment] was safe and effective
on all skin tones” without informing him of potential side effects. Id. ¶¶ 11–12, 14. As
a result, the plaintiff consented to the treatment. Id. ¶ 13.
The microneedling treatment injured the plaintiff. ECF No. 1-5 ¶¶ 19–20, 24.
After the microneedling treatment, the plaintiff noticed darkening under his eyes. Id.
¶ 15. Although the defendant and another InMode employee assured the plaintiff that

the darkened skin was normal and would self-resolve, the plaintiff was ultimately
diagnosed by a medical professional with hemosiderin staining, which has required
“extensive treatment.” Id. ¶¶ 16, 18–20.
As a result, the plaintiff sued the defendant in the Circuit Court for the City of
Virginia Beach on October 8, 2025. ECF No. 1-5. In the one-count complaint, the
plaintiff alleges that the defendant negligently breached a duty of care to the plaintiff,

resulting in his injury—including physical injury, medical expenses, lost wages, and
pain and suffering. Id. ¶¶ 21–29. The plaintiff seeks $3,000,000.00 in compensatory
damages. Id. at 5. Invasix, Inc., a Delaware corporation with its principal place of
business in California, and the defendant’s employer on the date of the incident at
issue, moved for leave to intervene in the state court action. ECF No. 4 ¶¶ 8, 11.
Thereafter, the defendant2 removed the case to this Court on the basis of
diversity jurisdiction. ECF No. 1. The defendant’s motion to dismiss or, in the
alternative, for summary judgment,followed. ECF Nos. 6 (motion), 7 (memorandum).

The motion has been fully briefed and is ripe for disposition. ECF Nos. 8 (opposition),
9 (reply).
II. LEGAL STANDARDS
A. Motions to Dismiss Under Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss” under Fed. R. Civ. P. 12(b)(6), “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In other words, a plaintiff must plead
sufficient “factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at
556). “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,” Twombly, 550 U.S. at 555, but the 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).

2 The notice of removal was joined by Intervenor-Defendant Invasix, Inc. ECF No. 1;
see also ECF No. 12 (Order granting motion to intervene).
B. Removal Based on Diversity of Citizenship
Title 28, United States Code, Section 1441 (a) provides that “any civil action
brought in a [s]tate court of which the district courts of the United States have

original jurisdiction, may be removed by the defendant . . . to the district court . . .
embracing the place where such action is pending.” The party seeking removal bears
the burden of establishing jurisdiction. Mulcahey v. Columbia Organic Chemicals Co.,
Inc., 29 F.3d 148, 151 (4th Cir. 1994). “If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447 (c).
Where subject matter jurisdiction is founded on diversity of citizenship

pursuant to 28 U.S.C. § 1332 (a), the amount in controversy must exceed $75,000, and
“diversity must be complete such that the state of citizenship of each plaintiff must
be different from that of each defendant.” Home Buyers Warranty Corp. v. Hanna, 750 F.3d 427, 433 (4th Cir. 2014) (quotation marks and citation omitted).
C. Fraudulent Joinder
The fraudulent joinder doctrine “effectively permits a district court to

disregard, for jurisdictional purposes, the citizenship of certain nondiverse
defendants, assume jurisdiction over a case, dismiss the nondiverse defendants, and
thereby retain jurisdiction.” Mayes v. Rapoport, 198 F.3d 457, 461 (4th Cir. 1999). “To
show fraudulent joinder, the removing party must demonstrate either outright fraud
in the plaintiff's pleading of jurisdictional facts, or that there is no possibility that the
plaintiff would be able to establish a cause of action against the in-state defendant in
state court.”Hartley v. CSX Transp. Inc., 187 F.3d 422, 424 (4th Cir. 1999) (quotation
marks and citation omitted). In determining whether the removing party has met
this “heavy burden,” id., “all doubts about the propriety of removal should be resolved

in favor of remanding the case to state court.” Skidmore v. Schinke, 171 F.4th 319,
324 (4th Cir. 2026) (citing Marshall v. Manville Sales Corp., 6 F.3d 229, 232 (4th Cir.
1993)).
Importantly, “a jurisdictional inquiry is not the appropriate stage of litigation
to resolve . . . uncertain questions of law and fact,” and a district court errs by “delving
too far into the merits” in deciding a claim of fraudulent joinder. See Hartley, 137 F.3d
at 424–26 (“Because all legal uncertainties are to be resolved in the plaintiff’s favor

in determining whether fraudulent joinder exists, a truly ‘novel’ issue [of state law]
cannot be the basis for finding fraudulent joinder.”); Schinke, 171 F.4th at 324 (“At
this stage, a district court shouldn’t wrestle with thorny state-law questions.”)
(citation omitted). “Instead, if [the district court] ‘cannot predict with certainty how
a state court . . . would resolve the legal issues’ implicated by the case, it should leave
those issues for a state court to decide.” Schinke, 171 F.4th at 324 (citing Hartley, 137

F.3d at 425–26).
III. ANALYSIS
The defendant removed this suit on the basis of diversity jurisdiction. ECF No.
1 ¶ 2; ECF No. 7 ¶ 7. Although the plaintiff and the defendant are both citizens of
Virginia, the defendant contends that her citizenship should be ignored because she
was fraudulently joined to defeat diversity jurisdiction. ECF No. 7 ¶ 7. The defendant
does not allege any “outright fraud” by the plaintiff, so the issue for this Court is
whether there is any possibility that the plaintiff can maintain a negligence claim
against the defendant under Virginia law. Hartley, 187 F.3d at 424. Because the

Court finds it is possible that the plaintiff can do so, the fraudulent joinder doctrine
does not permit the Court to retain jurisdiction, and the case must be remanded.
Whether the plaintiff can maintain a negligence claim against the defendant
under Virginia law turns on whether the plaintiff has alleged conduct by the
defendant that constitutes misfeasance or nonfeasance. In Virginia, “[a]n employee
may be liable for [their] own misfeasance (i.e., performance of an affirmative act done
improperly), but not for [their] own nonfeasance (i.e., omission to do some act which

ought to be performed).” Harris v. Morrison, Inc., No. LU–4504, 1993 WL 13029825,
at *1 (Va. Cir. 1993) (citing Miller v. Quarles, 410 S.E.2d 639 (Va. 1991) and Turner
v. Corneal, 159 S.E. 72 (Va. 1931)). “[A] plaintiff who alleges only an employee’s
failure to detect, remove, or warn of a danger has failed to state a claim of misfeasance
for which the employee may be personally liable.” Hall v. Walters, No. 3:13-cv-210, 2013 WL 3458256, at *4 (E.D. Va. July 9, 2013) (citation omitted).

The defendant argues that the plaintiff has failed to allege any affirmative act
by the defendant and that, instead, the plaintiff alleges only nonfeasance in the form
of failure to warn of potential negative side effects. ECF No. 7 ¶¶ 14–21. It is true
that the complaint alleges that the defendant failed to inform the plaintiff of the
potential risks of the microneedling treatment. ECF No. 1-5 ¶ 14. But the complaint
also alleges that the plaintiff was injured because the defendant “encouraged” the
plaintiff to receive the treatment and “induced” him to do so “by proclaiming that [the
treatment] was safe and effective.” Id. ¶¶ 11–12.
The Virginia Supreme Court has not addressed whether proclaiming a product

or treatment safe and effective constitutes an affirmative action,3and it is not for this
Court to predict how the Virginia Supreme Court would answer that question. See
Harris v. Webster, No. 3:08-cv-397, 2008 WL 4396231, at *4 (E.D. Va. 2008) (“It is not
the function of this Court to examine the sufficiency of the claim, or its likelihood of
success in the state Court, but only to determine if a plausible claim can be asserted
against the non-diverse defendant in state court.”); see also Marshall v. Manville
Sales Corp., 6 F.3d 229, 232–33 (“A claim need not ultimately succeed to defeat

3 The Court has considered the defendant’s argument that such allegations are
insufficient because the affirmative act must have “create[d] a dangerous condition,”
and it was the alleged failure to warn that induced the plaintiff to undergo treatment
rather than the proclamation of the treatment’s safety. ECF No. 7 ¶ 20. But the
complaint expressly states that the defendant “induced [the plaintiff] to undergo the
services by proclaiming that it was safe and effective,” and that the plaintiff
“consented to the services proposed and provided” based on his “rel[iance] on these
representations.” ECF No. 1-5 ¶¶ 12–13. Taking thefacts alleged in the complaint as
true, the Court cannot conclude at this juncture that it was only failure to warn, and
not affirmative misrepresentations of safety and effectiveness, that induced the
plaintiffs to undergo the treatment, resulting in his harm.

Contrary to the defendant’s argument, Sayegh is not “remarkably similar,” ECF No.
7 ¶ 18, to this case and does not change the Court’s analysis. In Sayegh, the plaintiff
brought a count for negligent design, manufacturer, assembly, and also for negligent
failure to warn. Second Amended Complaint ¶¶ 29–33, Sayegh, Administrator of the
Estate of George Demian v. The Raymond Corp., No. 7:15-cv-688, 2016 WL 6477008 (W.D. Va. Nov. 1, 2016). The district court found that there was no possibility of
recovery because it was undisputed that the defendant did not design, manufacture,
or assemble the product at issue, and allegations of failure to warn describe acts of
nonfeasance. Sayegh, 2016 WL 6477008, at *3. There are no allegations of negligent
design here, and the plaintiff alleges more than mere failure to warn.
removal; only a possibility of a right to relief need be asserted.”). Therefore, it is at
least possible that the state court would find that the plaintiff’s allegation is one of
misfeasance that states a claim for relief under Virginia law.

The defendant also argues that although the complaint alleges that she was
“negligent in injuring [the plaintiff] in the course of providing him with services,”
ECF No. 1-5 ¶ 24, evidence in the record indicates that the defendant did not
participate in the design of the microneedling tool, nor did she perform the treatment
on the plaintiff.4 ECF No. 7 ¶ 19; ECF No. 9 ¶¶ 3–4. But whether the defendant
participated in designing the device or performing the treatment is not relevant to
the analysis because it is possible that Virginia law would recognize the defendant’s

alleged proclamation of the device’s safety in the process of selling the treatment as
an affirmative act of negligence.5

4In support of this argument, the defendant submitted an affidavit attesting that her
“responsibilities . . . [were] limited to the marketing and sale” of the microneedling
device used on the plaintiff. ECF No. 7-1 ¶ 2. The Court did not consider this extrinsic
evidence in its substantive analysis, as it declines to convert the defendant’s motion
to dismiss into a motion for summary judgment. But the Court notes that
consideration of the affidavit would not have changed the outcome.
5 Additionally, while not relevant to the Court’s ultimate conclusion, the plaintiff
appears to also allege that the affirmative act of declaring the microneedling device
safe and effective, while simultaneously omitting important information about
potential side effects, rendered the defendant’s statement about the device false and
misleading and led to his physical and pecuniary harm. Those allegations could
potentially give rise to negligent misrepresentation. In Virginia, negligent
misrepresentation is not an independent cause of action but instead falls under the
cause of action for constructive fraud. See Richmond Metropolitan Auth. v. McDevitt
Street Bovis, Inc., 507 S.E.2d 344, 295 (Va. 1998) (“The essence of constructive fraud
is negligent misrepresentation.”). A plaintiff alleging constructive fraud must plead
that there was “a false representation of a material fact,” “made innocently or
IV. CONCLUSION
For the foregoing reasons, Defendant Brittany Wells’s motion to dismiss (ECF
No. 6) is DENIED.
This case is REMANDED to the Circuit Court for the City of Virginia Beach
and is hereby CLOSED.
IT IS SO ORDERED. GY
/s/
Jamar K. Walker
United States District Judge
Norfolk, Virginia
April 22, 2026

negligently,” that the plaintiff relied on the false representation, and that his reliance
resulted in damages. Sales v. Kecoughtan Housing Co., Ltd., 690 S.E.2d 91, 94 (Va.
2010). Such a claim could exist here.