Bingham et al v. Insight Communications Midwest, LLC
MEMORANDUM OPINION & ORDER; 1)Pla's 23 Motion to Alter, Amend or Vacate is denied; 2)Pla's 24 Motion to file a First Amened Complaint is denied. Signed by Judge David L. Bunning on 11/5/2012.(LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 12-113-DLB-CJS
DEBORAH S. BINGHAM, et al.
MEMORANDUM OPINION & ORDER
INSIGHT COMMUNICATIONS MIDWEST, LLC
*** *** *** ***
On October 12, 2012, the Court entered its Memorandum Opinion & Order granting
Insight Communications’ Motion to Dismiss the Binghams’ Complaint (Doc. # 21). The
Binghams now move the Court to alter, amend or vacate its Order pursuant to Federal Rule
of Civil Procedure 59(e) because the Order contains “several factual inaccuracies” and
legal errors (Doc. # 23 at 1). Notably, however, the Binghams’ Motion acknowledges that
any potential factual inaccuracies “may be due to [their own] . . . inartful pleading, briefing,
or oral argument.” (Id.). Furthermore, in the event the Court denies the Bingham’s Rule
59(e) Motion, the Binghams have also moved for leave to amend their Complaint. (Doc.
# 24). Both motions have been fully briefed (Docs. 25, 28; 24, 26) and are ripe for
consideration. For the reasons set forth below, the Binghams’ motions are DENIED.
The Binghams’ Motion to Alter, Amend or Vacate (Doc. # 23) pursuant to
Federal Rule of Civil Procedure 59(e) is Denied
The Binghams allege that the Court erred in concluding that their Complaint failed
to state a viable claim of negligence or respondeat superior. Specifically, the Binghams
contend that the Court erred in the following ways: (1) by failing to consider, in its 12(b)(6)
analysis, Shelly Mueller’s deposition testimony from a related state-court suit; (2) in
concluding that Insight did not owe the Binghams a duty of care because their injuries were
not foreseeable; (3) by conflating negligence and proximate cause; (4) by refusing to rely
on the law of other jurisdictions; and (5) relying on erroneous facts. However, for the
following reasons none of the alleged errors compel the Court to alter, amend or vacate its
prior Memorandum Opinion and Order pursuant to Rule 59(e).
Standard of Review
Rule 59(e) is intended to allow the district court to correct its own errors, sparing the
parties and appellate courts the burden of unnecessary appellate proceedings. Gritton v.
Disponett, 332 F. App’x 232, 238 (6th Cir. 2009). “Rule 59(e) motions serve a limited
purpose and should be granted for one of three reasons: (1) because of an intervening
change in controlling law; (2) because evidence not previously available has become
available; or (3) because it is necessary to correct a clear error of law or prevent manifest
injustice.” Id. (quoting General Truck Drivers, Chauffeurs, Warehousemen & Helpers, Local
No. 957 v. Dayton Newspapers, Inc., 190 F.3d 434, 445 (6th Cir. 1999)). They should not
be granted based on legal arguments or evidence that the movant failed to raise prior to
the original entry of judgment. Dayton Newspapers, Inc., 190 F.3d at 445; Martinez v.
McGraw, No. 3:08-0738, 2010 WL 1493846, at *2 (M.D. Tenn. Apr. 14, 2010).
The Court did not err in refusing to consider Mueller’s deposition
In its Memorandum Opinion and Order (“Opinion”), the Court stated: “Realizing that
she was too intoxicated to drive, [Mueller] asked Scott Justice, a “business invitee” of
Insight, to drive her home.” (Doc. # 21 at 2). The Binghams acknowledge that this
statement is consistent with paragraph eight of the Complaint, which states: “Realizing that
she was in no condition to drive home because of consuming alcoholic beverages,
defendant allowed a business invitee, one Mr. Scott W. Justice, to drive Ms. Mueller’s
Mercedes Benz automobile for the stated purpose of taking Ms. Mueller to her home
residence in Crescent Springs, Kentucky.” (Doc. # 1 at ¶ 8). Despite this consistency, the
Binghams argue that the Court erred in making this statement because it is refuted by
Mueller’s deposition testimony from the related state-court suit, which Plaintiffs’ counsel
cited during oral argument. In that testimony, Mueller stated that “. . . we kind of agreed
earlier in the day that he would drive my car to my house for me.” (Doc. # 23-1 at p. 21).
The Court did not err in refusing to consider Mueller’s deposition testimony.
“The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter
of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is
true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). To achieve this purpose, the
court is generally limited to considering the facts pled in the complaint. Amini v. Oberlin
College, 259 F.3d 493, 502 (6th Cir. 2001). The court is also required to defer to the
plaintiff’s recitation of the facts by accepting all facts alleged in the complaint as true.
Boland v. Holder, 682 F.3d 531, 534 (6th Cir. 2012). Pursuant to this standard, the Court
properly considered only the facts contained in the complaint. In fact, it would have
defeated the purpose of Rule 12(b)(6) for the Court to consider Mueller’s deposition
testimony. A plain reading of the Complaint suggests Mueller asked Justice to drive her
home at the end of the event. The Court accepted that fact as true. See Boland, 682 F.3d
at 534. Had it considered contradictory materials outside of the Complaint, the Court would
not have tested the sufficiency of the Complaint, as it was required to do.
Additionally, the Binghams attempt to fault the Court for refusing to consider
contradictory materials at the 12(b)(6) stage is not well received. As previously noted, the
Court is required to give the plaintiff deference regarding the facts when considering a
12(b)(6) motion. In turn, the plaintiff is bound by the facts pled in its complaint. If the
Complaint misrepresented the facts, which the Binghams now recognize, the Binghams
had the ability to file an amended complaint pursuant to Rule 15(a) which contained facts
consistent with Mueller’s deposition testimony. Having failed to do so, the Court properly
considered only the facts contained in the Complaint.
The Court did not err in concluding that the Binghams failed to state a
viable negligence claim against Insight
In its October 12, 2012 Opinion, the Court recognized that while Kentucky law is
sparse in this area of negligence jurisprudence, it sufficiently addresses the liability of an
employer who serves alcohol to its employees. (Doc. # 21 at 6). As the Court previously
held, an employer may be negligent in Kentucky for serving alcohol to an intoxicated
employee who later causes a foreseeable injury to a third party. (Id. at 7-8) (citing Grand
Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 850-52 (Ky. 2005);
Wilkerson v. Williams, 336 S.W.3d 919, 923 (Ky. App. 2011); Martin v. Elkins, – S.W.3d –,
No. 2011-CA-862-MR, 2012 WL 3762419, at *1 (Ky. App. Aug. 31, 2012)). However, the
Court held that the facts pled in the original Complaint do not support a negligence claim
under this rule. Specifically, the Court held that the Insight did not owe the Binghams a
duty of care here because the Binghams’ injuries were not foreseeable. (Doc. # 6 at 8-9).
The Binghams contend that the Court’s holding on their direct negligence claim is
erroneous for several reasons. First, the Binghams maintain that their injuries were
foreseeable. Relying on Martin v. Elkins, – S.W.3d –, No. 2011-CA-862-MR, 2012 WL
3762419 (Ky. App. Aug. 31, 2012), the Binghams suggest that “it should have been
foreseeable to Insight that the employees it was serving alcohol to would become
intoxicated and act negligently in making driving decisions.” (Doc. # 23 at 5). However,
the Binghams’ reliance on Martin does not entitle them to relief under Rule 59(e).
As an initial matter, the Binghams failed to cite Martin in briefing the Motion to
Dismiss. And because the Kentucky Court of Appeals reached its decision in Martin on
August 31, 2012, the law announced therein was certainly well-settled while the Motion to
Dismiss was being briefed. As a result, the Binghams cannot now rely on Martin to raise
an argument they should have raised in responding to the Motion to Dismiss. Martinez v.
McGraw, No. 3:08-0738, 2010 WL 1493846, at *2 (M.D. Tenn. Apr. 14, 2010). Instead, the
Binghams’ reliance on Martin can only entitle them to relief under Rule 59(e) if the case
demonstrates that the Court’s holding amounted to a clear error of law. See Gritton, 332
F. App’x at 238.
Although the Binghams failed to address Martin in briefing the Motion to Dismiss,
the Court appropriately addressed the decision in its previous Opinion. In fact, the Court
previously cited Martin for the proposition that a supplier of alcohol is liable for the actions
of its intoxicated guests only if those actions are foreseeable. (See Doc. # 21 at 8). In
Martin, a homeowner allowed minors to consumer alcohol at his residence. Martin, 2012
WL 3762419, at *1. One of the minors became intoxicated and left the premises. Id. A
short time later, the intoxicated minor assaulted another minor, causing injury. Id. The
Kentucky Court of Appeals held that the homeowner was not liable to the injured minor
because the ensuing fight was not the foreseeable result of serving alcohol. Id.
This Court then applied Martin’s foreseeability analysis to the facts presented here
and found that the Binghams’ injuries were not foreseeable. Specifically, the Court stated:
The Complaint alleges that Insight served or encouraged Mueller to become
intoxicated. Once intoxicated, Mueller asked an unlicensed driver to take her
home; however she was unable to appreciate the dangers of allowing the
unlicensed driver to drive her home because of her intoxication. In turn, the
unlicensed driver failed to yield the right-of-way and collided with the
plaintiffs’ vehicle, causing injuries. Despite the Binghams’ contentions, this
injury was certainly not the foreseeable result of Insight’s failure to monitor
Mueller’s alcohol consumption. Because a duty only applies when the injury
is foreseeable, Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky. 1999), and the
manner in which the Binghams were injured was not foreseeable, Insight
owed no duty to the Binghams in this case.
(Doc. # 21 at 8-9). The Binghams now contend that this decision is erroneous in light of
Martin. The Court disagrees.
In Martin, the Kentucky Court of Appeals listed several injuries that a provider of
alcohol should foresee when serving alcohol to minors. The court stated, “[m]any ugly
outcomes may be foreseeable when minors consume alcohol, including . . . drunk driving
accidents . . . .” Martin, 2012 WL 3762419, at *3. Applying the logic of this statement, the
Binghams argue that “it should have been foreseeable to Insight that the employees it was
serving alcohol to would have become intoxicated and act negligently in making driving
(Doc. # 23 at 5).
However, the Martin decision does not compel this
conclusion. The Kentucky Court of Appeals said that it was foreseeable that a minor who
consumes alcohol might be involved in a drunk driving accident. Here, there was no drunk
driving accident – Mueller was not driving the vehicle, and the Complaint does not suggest
that the Justice, the driver, was intoxicated. Accordingly, the Court’s prior holding was not
inconsistent with Martin.
The Binghams raise an additional argument concerning the Court’s discussion of
foreseeability. The Binghams suggest that the Court “conflated” negligence and proximate
cause by discussing the foreseeability of their injuries in the duty analysis. However, under
Kentucky law, both the duty and proximate cause elements of negligence include a
foreseeability analysis. Martin recognizes this rule of law. Martin, 2012 WL 3762419, at
*2-3. Specifically, the Martin Court quoted its prior decision in Wilkerson v. Williams, 36
S.W.3d 919 (Ky. App. 2011), in stating that “the foreseeability of the injury defines the
scope and character of a defendant’s duty.” Martin, 2012 WL 3762419, at *3 (emphasis
Pursuant to Martin and Wilkerson, the Court appropriately considered
foreseeabilty in its duty analysis, and did not conflate negligence and proximate cause.
The Binghams offer a third reason why the Court’s holding on their direct negligence
claim was erroneous. As they asserted in their briefing on the Motion to Dismiss, the
Binghams continue to argue that the Court should have applied the “employer liability” law
of Washington, Ohio, North Carolina, and Michigan. However, the Court addressed this
concern in its October 12, 2012 Opinion, stating “[a]lthough Kentucky law is sparse in this
area of negligence jurisprudence, it does address the issues presented in this case.” (Doc.
# 21 at 6). While the Binghams are dissatisfied with this conclusion, they have failed to
demonstrate that Kentucky law does not adequately address the issues presented in this
case or that the Court misapplied Kentucky law. Accordingly, for the reasons previously
stated, the Court will not apply the law of other jurisdictions here.
In their final claim of error, the Binghams assert that the Court misread the facts of
the Complaint in stating that Mueller did not become intoxicated until 6:00 p.m. and that
there were no allegations that Insight served Mueller alcohol knowing she was intoxicated.
However, this alleged error does not entitle the Binghams to Rule 59(e) relief. As
previously stated, the Court refused to apply the law of the other jurisdictions because it
held that Kentucky law was sufficient. The Court also found that the facts of this case did
not support liability in those jurisdictions. The timing of Mueller’s intoxication was relevant
to that alternative analysis. For example, the Court stated:
According to the Chastain Court, an employer is liable “if it failed to exercise
ordinary care in furnishing, or permitting its employees to furnish, alcoholic
beverages to [an employee] knowing that [she] has become intoxicated.”
[Chastain v. Litton Systems, Inc., 694 F.2d 957, 962 (4th Cir. 1982)]. Here,
the Complaint does not allege that Insight served Mueller alcohol knowing
that she had become intoxicated. Instead, the Complaint states that Mueller
was intoxicated at 6:00 p.m. and left Barleycorn’s at 6:10 p.m. There are no
allegations that Mueller was served a drink during the ten minute interval, or
at any time when Insight knew Mueller was intoxicated. Therefore, these
allegations are insufficient to hold Insight liable under the law announced in
(Id. at 10). The Court is not convinced that this was a misreading of the Complaint.
The Binghams’ argument concerning the timing of Mueller’s intoxication also has no
bearing on the Court’s ultimate reason for dismissing the negligence claim. Applying
Kentucky law, the Court’s primary justification for dismissing the negligence claim was that
the Binghams’ injuries were not foreseeable to Insight. The timing of Mueller’s intoxication
does not affect that conclusion. Accordingly, the Binghams have not shown an error that
requires the Court to alter or amend its October 12, 2012 Opinion.
The Binghams’ are not entitled to file an amended complaint after an
unfavorable judgment has been entered
Accompanying their Rule 59(e) motion, the Binghams also move the Court for leave
to file a first amended complaint. (Doc. # 24). The Binghams seek to add allegations to
bolster both their negligence and respondeat superior claims. Specifically, the Binghams
propose amendments to:
1. Directly allege that Shelly Mueller claimed to become intoxicated in the
furtherance of her duties as a host to Insight’s advertising clients on the date
of the Plaintiff’s injury;
2. Specifically allege that Muller conceived of and executed this plan earlier
in the day on the date of injury;
3. Specifically allege that Mueller was sober at the time she conceived of this
plan and at the time she made the decision to ask Justice to be her
4. Specify the chronological time line alleged by the Plaintiffs due to the
confusion over whether or not Mueller was intoxicated a) before 6:00 p.m.
and b) at any time while Insight was furnishing drinks to employees and
(Doc. # 24 at 1-2). However, the Binghams’ motion is denied because they are not
permitted to amend their Complaint now that a judgment has been entered.
When a plaintiff files a motion to amend after a judgment is entered, the district court
is not required to “freely give leave when justice so requires” as Rule 15(a)(2) otherwise
dictates. Leisure Caviar, LLC v. U.S. Fish and Wildlife Service, 616 F.3d 612, 615 (6th Cir.
2010). Instead, the plaintiff is only entitled to leave if it can “shoulder a heavier burden” and
“meet the requirements for reopening a case established by Rule 59 or 60.” Id. at 616.
The Sixth Circuit requires plaintiffs to meet this higher burden in the post-judgment context
to “protect[ ] the finality of judgments and the expeditious termination of litigation.” Id. at
615. As the Leisure Court noted, “[i]f a permissive amendment policy applied after
judgments, plaintiffs could use the court as a sounding board to discover holes in their
arguments, then ‘reopen the case by amending their complaint to take account of the
court’s decision.’” Id. (quoting Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)).
Moreover, freely granting leave after a judgment is entered would “sidestep the narrow
grounds for obtaining post-judgment relief under Rule 59 or 60, make the finality of
judgments an interim concept and risk turning Rule 59 and 60 into nullities.” Id.
As the Court has previously held, the Binghams have failed to meet the higher
burden of Rule 59(e). Specifically, they have failed to demonstrate that the Court made
any clear error of law or that an intervening change in the law dictates a different result.
Additionally, none of the new allegations in the proposed amended complaint are based on
facts that were not previously available to the Binghams. Instead, each of the allegations
are based on Mueller’s deposition testimony from a related state court case which was
available to the Binghams while the motion to dismiss was pending. As a result, the
Binghams have failed to meet the Rule 59(e) burden, and their Motion to File a First
Amended Complaint is denied.
Accordingly, for all of the reasons, IT IS ORDERED as follow:
Plaintiffs’ Motion to Alter, Amend, or Vacate (Doc. # 23) is hereby denied;
Plaintiffs’ Motion to File a First Amended Complaint is hereby denied.
This 5th day of November, 2012.
G:\DATA\Opinions\Covington\2012\12-113 MOO denying mtn to reconsider and mtn for leave to amend.wpd
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