Glenn et al v. Imperial Palace of Mississippi, LLC et al
Filing
52
ORDER denying Defendants' 15 Motion to Dismiss. Signed by District Judge Halil S. Ozerden on 5/15/2013. (Brown, T.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
JOANNE GLENN, ET AL.
§
PLAINTIFFS
§
v.
§
Civil No. 1:12CV227HSO-RHW
§
IMPERIAL PALACE OF MISSISSIPPI, §
LLC, ET AL.
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DEFENDANTS
MEMORANDUM OPINION AND ORDER DENYING DEFENDANTS’
MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
BEFORE THE COURT is a Motion to Dismiss [15] Plaintiffs’ First Amended
Complaint filed September 17, 2012, pursuant to FED. R. CIV. P. 12(b)(6), by
Defendants Imperial Palace of Mississippi, LLC, IP Holdings, Inc., Engelstad
Family Foundation, and Boyd Gaming Corporation. Plaintiffs have filed a Response
[29] in Opposition and Defendants have filed a Reply [35]. After consideration of
the parties’ submissions, the record, and relevant legal authorities, and for the
reasons discussed below, the Court finds that Defendants’ Motion should be denied.
I. FACTS AND PROCEDURAL HISTORY
On August 6, 2009, Joanne Glenn and her sons Christopher and Bryan Glenn
checked into the Imperial Palace Casino Resort and Spa [“IP”]. Later that
morning, the three visited a law office where Bryan executed a legal settlement
release and received a check for approximately $15,000.00. Am. Compl. [4] ¶¶ 3236, at p. 9. According to the First Amended Complaint, Bryan had previously
suffered a traumatic brain injury and severe physical and psychological injuries as
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a result of a four-wheeler accident. Joanne and her two sons, along with Pam
Roger-Seamster, a family friend, had breakfast after the meeting and then returned
to the IP at approximately 10:30 a.m. Id. at p. 10. Bryan began playing black-jack.
Id.
Plaintiffs contend that Bryan was served two cocktails at a time throughout
the day while he continued to gamble. The First Amended Complaint alleges that
Joanne, Chris, and Pam continually and repeatedly pleaded with IP Casino staff to
stop serving Bryan alcohol:
Between 5:30 and 6:30 p.m. the IP Casino continued to serve Bryan free
drinks, two at a time. Almost as soon as Bryan would finish the two
drinks, the Casino would have two more at the table for him. During this
hour, Bryan twice fell out of his chair to the floor. The second time,
Bryan knocked the lady sitting next to him out of her chair. The Casino
did nothing.
Id. , ¶47, at p. 11.
According to Plaintiffs, it was not until 10:00 p.m. that evening when the
gaming area staff stopped serving Bryan alcohol. Id. at p. 15. However, Bryan
then entered the IP Chill Lounge, located inside the casino, where he presumably
ordered and was served a number of alcoholic drinks. The First Amended
Complaint states that the bartender who served Bryan stated that “he’s already had
three drinks and he’s only been in here 15 minutes, I can see how intoxicated he is
and I’m not going to serve him much more.” Id., ¶ 70, at p. 16.
According to the First Amended Complaint, approximately two hours later,
Joanne, her son Chris, and Pam began looking for Bryan and were told by a
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doorman that due to his intoxicated state, security guards had escorted Bryan out of
the Chill Lounge and to his room. When Joanne, Chris, and Pam arrived at the
room, they discovered Bryan lying on the bathroom floor. Bryan was “pronounced
dead at 3:19 a.m. on December 7, 2009,” and “the autopsy revealed that he died
from alcohol poisoning combined with his medications.” Am. Compl. [4], ¶¶ 76-77,
at p. 17.
On July 25, 2012, Daniel Glenn and Joanne Glenn, in her capacity as
Administratrix of the Estate of Christopher Thomas Glenn and Bryan Leen Glenn
[“Plaintiffs”], filed a Complaint [1] against Defendants. The First Amended
Complaint [4] was also filed on July 25, 2012, asserting the following claims: 1)
negligence causing injury and wrongful death; 2) negligent failure to render aid
causing injury and wrongful death; 3) negligent infliction of mental distress by the
Estate of Christopher Thomas Glenn; 4) negligent infliction of mental distress by
Joanne Glenn; and 5) breach of fiduciary duties. Plaintiffs seek compensatory and
punitive damages as well as an accounting, disgorgement, and imposition of a
constructive trust. Am. Compl. [4] ¶¶ 83-130 at pp. 19-26. In lieu of Answers,
Defendants filed the instant Motion to Dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6).
II. DISCUSSION
A.
Legal Standard
A motion to dismiss under FED. R. CIV. P. 12(b)(6) “is viewed with disfavor
and is rarely granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards,
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677 F.2d 1045, 1050 (5th Cir. 1982). FED. R. CIV. P. 8(a) provides in relevant part
that
[a] pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction,
unless the court already has jurisdiction and the claim needs no new
jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is
entitled to relief; and
(3) a demand for the relief sought, which may include relief in the
alternative or different types of relief.
FED. R. CIV. P. 8(a).
Under Rule 8(a)(2), the statement need only “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)(quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)). The Court’s analysis is “generally confined to a review of the complaint and
its proper attachments.” Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief that is
plausible on its face.” A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a “probability requirement,” but it
asks for more than a sheer possibility that a defendant has acted
unlawfully. Where a complaint pleads facts that are “merely consistent
with” a defendant's liability, it “stops short of the line between possibility
and plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (U.S. 2009) (quoting Twombly, 550 U.S. at 55657, 570).
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff must provide the “grounds” of his “entitlement
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to relief,” which requires more than labels and conclusions or formulaic recitations of
the elements of a cause of action. See Twombly, 127 S. Ct. at 1964-65. “Factual
allegations must be enough to raise a right to relief above the speculative level.” Id.
“[O]nce a claim has been stated adequately, it may be supported by showing any set
of facts consistent with the allegations in the complaint.” Id. at 1969. Further, “a wellpleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and ‘that a recovery is very remote and unlikely.’” Id.
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)(overruled on other grounds)).
B.
Analysis
Defendants move to dismiss on the grounds that under Mississippi law “it is
abundantly clear that one injured as a result of his own voluntary intoxication has no
viable claim against a casino which served him alcohol.” Mem. in Support of Mot. to
Dismiss [16], at p. 6. In support of their Motion, Defendants rely on the following
Mississippi statute:
(1) The Mississippi Legislature finds and declares that the consumption
of intoxicating beverages, rather than the sale or serving or furnishing of
such beverages, is the proximate cause of any injury, including death and
property damage, inflicted by an intoxicated person upon himself or upon
another person.
(2) Notwithstanding any other law to the contrary, no holder of an
alcoholic beverage, beer or light wine permit, or any agent or employee of
such holder, who lawfully sells or serves intoxicating beverages to a
person who may lawfully purchase such intoxicating beverages, shall be
liable to such person or to any other person or to the estate, or survivors
of either, for any injury suffered off the licensed premises, including
wrongful death and property damage, because of the intoxication of the
person to whom the intoxicating beverages were sold or served.
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(3) Notwithstanding any other law to the contrary, no social host who
serves or furnishes any intoxicating beverage to a person who may
lawfully consume such intoxicating beverage shall be liable to such
person or to any other person or to the estate, or survivors of either, for
any injury suffered off such social host's premises, including wrongful
death and property damage, because of the intoxication of the person to
whom the intoxicating beverages were served or furnished. No social host
who owns, leases or otherwise lawfully occupies a premises on which, in
his absence and without his consent, intoxicating beverages are consumed
by a person who may lawfully consume such intoxicating beverage shall
be liable to such person or to any other person or to the estate, or
survivors of either, for any injury suffered off the premises, including
wrongful death and property damage, because of the intoxication of the
person who consumed the intoxicating beverages.
MISS.CODE ANN.§ 67-3-73 (1)-(3).
Defendants further seek dismissal of Plaintiffs’ claims inasmuch as “it is clear from the
face of the first amended complaint that Bryan was not non compos mentis.” Id., at p.
3.
Section 67-3-73 also contains the following provision:
[t]he limitation of liability provided by this section shall not apply to ...
any holder of an alcoholic beverage, beer or light wine permit, or any
agent or employee of such holder when it is shown that the person
making a purchase of an alcoholic beverage was at the time of such
purchase visibly intoxicated.
MISS.CODE ANN. § 67-3-73(4).
The Court, after review of relevant legal authorities and decisions as they
pertain to this particular Mississippi statute, concludes that in order for Plaintiffs to
plausibly state a claim, among other things they must show that Bryan did not
“voluntarily” become intoxicated, see MISS.CODE ANN. § 67-3-73(1), and/or that Bryan
was “visibly intoxicated” at the time he was served alcoholic beverages, see MISS.CODE
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ANN. § 67-3-73(4); see also Estate of White v. Rainbow Casino-Vicksburg P'ship, 910 So.
2d 713, 717-18 (Miss. Ct. App. 2005).
The Court is of the opinion that Plaintiffs’ First Amended Complaint establishes
that Bryan voluntarily consumed alcohol throughout the day on December 6, 2009.
In addition to the numerous references in the First Amended Complaint to Bryan’s
alcohol consumption, are allegations that Defendants were aware of and observed
Bryan in a state of visible intoxication during the day and evening of December 6,
2009, yet they continued to serve him alcoholic beverages.
The Court finds that
Plaintiffs have stated sufficient facts in support of their claims for relief to survive a
motion to dismiss. See Finnegan v. Ameristar Casinos, Inc., 2008 WL 244340 * 1, (S.D.
Miss. Jan. 25, 2008).
The pertinent question for the Rule 12(b)(6) inquiry is whether Plaintiffs have
alleged sufficient facts to support the elements of the claims asserted. Because
Plaintiffs have satisfactorily pled their claims, Defendants’ Motion to Dismiss should
be denied.
III. CONCLUSION
The Court is not persuaded that, at this stage of the proceedings, Defendants
have met their FED. R. CIV. P. 12(b)(6) burden. Plaintiffs’ claims should not be
dismissed. For the foregoing reasons, the Court concludes that Defendants’ Motion to
Dismiss should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, for the reasons
stated herein, the Motion to Dismiss filed by Defendants, Imperial Palace of
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Mississippi, LLC, IP Holdings, Inc., Engelstad Family Foundation, and Boyd Gaming
Corporation [15], pursuant to FED. R. CIV. P. 12(b)(6), is DENIED.
SO ORDERED AND ADJUDGED, this the 15th day of May, 2013.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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