Radoncic et al v. Pinnacle Entertainment, Inc. et al

Filing 50

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Casino Defendant' Motion to Dismiss Plaintiffs' Complaint (ECF No. 6 ) is GRANTED in part and DENIED in part, in accordance with the foregoing. Signed by District Judge Jean C. Hamilton on 01/28/2016. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SALKO RADONCIC, et al.,
Plaintiffs,
v.
PINNACLE ENTERTAINMENT, INC.,
et al.,
Defendants.

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No. 4:15CV1194 JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Pinnacle Entertainment, Inc. (“Pinnacle”),
Casino One Corp., Inc., now known as Tropicana St. Louis LLC (“Casino One”) 1, Tropicana
Entertainment Inc. (“Tropicana”), and Four Seasons Hotels Limited’s (“Four Seasons”)
(collectively, “Casino Defendants”) Motion to Dismiss Plaintiffs’ Complaint, filed August 7,
2015. (ECF No. 6). The motion is fully briefed and ready for disposition.
BACKGROUND
On or about March 24, 2015, Plaintiffs Salko Radoncic, Adis Radoncic, and Halil Todic
filed a Petition for Damages against Casino Defendants, the Missouri Gaming Commission
(“MGC”)2, Trooper Barbara Collins, and John Does 1-6 in the Circuit Court of the City of St.
Louis, Missouri. (Petition for Damages (hereinafter “Complaint” or “Compl.”), ECF No. 3).
With respect to Casino Defendants, Plaintiffs’ Complaint includes claims for battery, assault,
intentional infliction of emotional distress, respondeat superior liability, negligence, false arrest,

1 As of May 1, 2015, Casino One Corp. has merged into Tropicana St. Louis LLC, and is now
known as Tropicana St. Louis LLC. (Memorandum in Support of the Casino Defendants’ Joint
Motion to Dismiss Plaintiffs’ Complaint (“Casino Defendants’ Memo in Support”), P. 1 n. 1).
2 In a Memorandum and Order entered January 4, 2016, MGC was dismissed as a Defendant in
this matter. (ECF No. 49).
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false imprisonment, discrimination under 42 U.S.C. § 1981, civil rights violations under 42
U.S.C. § 1983, and attorneys’ fees pursuant to 42 U.S.C. § 1988. (Id., ¶¶ 85-260). All of
Plaintiffs’ claims stem from an alleged incident in the early morning hours of November 19,
2013, in which Defendants and/or their employees or agents violently attacked Plaintiffs as they
attempted to enter Lumiere Place Casino, and then falsely imprisoned them for several hours.
(Id., ¶¶ 32-84).
On August 4, 2015, Casino Defendants removed the case to this Court on the basis of
federal question jurisdiction. (ECF No. 1). Defendants Trooper Barbara Collins and MGC filed
their consents to removal on August 10 and September 21, 2015, respectively. (ECF Nos. 9, 21).
Casino Defendants filed the instant Motion to Dismiss on August 7, 2015, asserting that
Tropicana, Pinnacle and Four Seasons must be dismissed as Casino One is the only proper
Casino Defendant in this case, and that a number of Plaintiffs’ claims must be dismissed for
failure to state a claim upon which relief may be granted. (ECF No. 6).
STANDARD FOR MOTION TO DISMISS
In ruling on a motion dismiss, the Court must view the allegations in the complaint in the
light most favorable to plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008).
The Court, “must accept the allegations contained in the complaint as true and draw all
reasonable inferences in favor of the nonmoving party.” Coons v. Mineta, 410 F.3d 1036, 1039
(8th Cir. 2005) (citation omitted). The complaint’s factual allegations must be sufficient “to raise
a right to relief above the speculative level,” however, and the motion to dismiss must be granted
if the complaint does not contain “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (abrogating the “no set of
facts” standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Furthermore, “the tenet that a court must accept as true all of the allegations contained in a
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complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009) (citing Twombly, 550 U.S. at 555 (pleading offering only “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action” will not do)).
DISCUSSION
I.

Is Casino One The Only Proper Casino Defendant In This Case?

In their motion Casino Defendants first claim Tropicana, Pinnacle and Four Seasons must be
dismissed, as Casino One is the only proper Casino Defendant in this case. (Casino Defendants’
Memo in Support, P. 4). As support for this position, Casino Defendants assert that at all
relevant times Casino One owned and operated Lumiere Place, including the casino and points
where the incident at issue allegedly occurred. (Id.). Casino Defendants thus maintain that
although Casino One is a wholly owned, indirect subsidiary of Tropicana, Casino One alone was
responsible for hiring and supervising all Lumiere Place employees, including those allegedly
involved here. (Id.). Casino Defendants further assert Tropicana had no affiliation with Casino
One at the time of the incident3, and Four Seasons was in no way involved, as it operates a hotel
tower managed separately from where the alleged incident occurred. (Id.).
In response, Plaintiffs request that the Court defer its ruling on this issue, in order to
permit them time to engage in discovery with respect to “the exact nature of each named
defendant[’]s particular responsibility to the injuries sustained.”

(Plaintiffs’ Opposition to

Defendants’ Motion to Dismiss Plaintiffs’ Complaint (“Plaintiffs’ Opp.”), PP. 3-4).

Upon

consideration the Court will grant Plaintiffs’ request, and deny this portion of Casino
Defendants’ Motion to Dismiss without prejudice.

3 According to Casino Defendants, Tropicana acquired Casino One months after the alleged
incident, in a transaction consummated April 1, 2014. (Casino Defendants’ Memo in Support, P.
4).
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II.

Assault
Casino Defendants next assert Plaintiffs’ assault claims against them must be dismissed,

as they merely duplicate Plaintiffs’ claims for battery. (Casino Defendants’ Memo in Support,
PP. 4-5). Under Missouri law, an assault is “any unlawful offer or attempt to injure another with
the apparent present ability to effectuate the attempt under circumstances creating a fear of
imminent peril.” Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 335 (Mo.
banc 2011) (internal quotations and citation omitted). In order to plead an assault, Plaintiffs
must allege: “(1) defendant[s’] intent to cause bodily harm or offensive contact, or apprehension
of either; (2) conduct of the defendant[s] indicating such intent, and (3) apprehension of bodily
harm or offensive contact on the part of the plaintiff[s] caused by defendant[s’] conduct.” Id.
(internal quotations and citation omitted).

By way of contrast, a battery is “an intended,

offensive bodily contact with another.” Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo. App.
1998) (citation omitted).

The Missouri Supreme Court has explained that an assault “is

sometimes described as an inchoate battery,” while a battery “is considered the consummation of
an assault.” Devitre, 349 S.W.3d at 335 (internal quotations and citations omitted).
Liberally construing the Complaint in Plaintiffs’ favor, as it must for purposes of this
motion, the Court finds Plaintiffs sufficiently have alleged the essential facts necessary to state
claims for assault. See Elgin v. McKay, 2014 WL 294424, at *5 (E.D. Mo. Jan. 27, 2014). For
example, with respect to Salko Radoncic Plaintiffs claim Defendants “intentionally, willfully,
wantonly and maliciously threatened to strike Plaintiff SALKO and did raise open hands to and
at him in such a manner as to cause Plaintiff to reasonably believe he was about to be struck in a
harmful and offensive manner.” (Compl., ¶ 104; see also Id., ¶ 110 (same allegation with respect
to Adis Radoncic); ¶ 116 (same allegation with respect to Halil Todic)). Furthermore, while the
Court recognizes that the majority of the claimed injuries in Plaintiffs’ assault counts are more
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consistent with actual physical contact, it further notes that Plaintiffs additionally claim
emotional and psychological injuries as a result of Casino Defendants’ actions. (See Compl., ¶
84, incorporated into Plaintiffs’ assault claims in ¶¶ 103, 109, and 115). Thus, at this early stage
of the proceedings the Court will permit Plaintiffs’ assault claims to go forward, and deny this
portion of Casino Defendants’ Motion to Dismiss.
III.

Intentional Infliction Of Emotional Distress

Casino Defendants next assert Plaintiffs’ claims for intentional infliction of emotional
distress must be dismissed. (Casino Defendants’ Memo in Support, PP. 5-7). “In Missouri, to
state a claim of intentional infliction of emotional distress, a plaintiff must plead: (1) the
defendant acted intentionally or recklessly; (2) the defendant’s conduct was extreme and
outrageous; and (3) the conduct caused severe emotional distress resulting in bodily harm.”
Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 321 (Mo. App. 2010) (citations omitted). “The
conduct must have been so outrageous in character and so extreme in degree that it is beyond all
possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a
civilized community.” Id. (citations omitted).
Furthermore, “Missouri courts have held that where one’s conduct amounts to the
commission of a traditional tort and was not intended only to cause extreme emotional distress to
the victim, the tort of intentional infliction of emotional distress will not lie and recovery must be
had under the appropriate traditional tort action.” Diehl, 309 S.W.3d at 322 (citation omitted).
“The rationale behind this rule is that the tort of intentional infliction of emotional distress….was
intended to supplement existing forms of recovery, not swallow them.” K.G. v. R.T.R., 918
S.W.2d 795, 799 (Mo. banc 1996) (citation omitted). Thus, “[w]hile recovery for emotional
distress caused by battery may be allowable as an element of damages in a battery action, there is

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no independent action for intentional infliction of emotional distress where the existence of the
claim is dependent upon a battery.” Id.
Upon consideration, the Court finds Plaintiffs’ claims for intentional infliction of emotional
distress are predicated on their claims for battery and assault.4

“Thus, their claims for

[intentional infliction of emotional distress] must be dismissed, lest they ‘swallow’ Plaintiffs’
predicate tort claims.” White v. Jackson, 2015 WL 1189963, at *8 (E.D. Mo. Mar. 16, 2015)
(quoting K.G., 918 S.W.2d at 799-800). Casino Defendants’ Motion to Dismiss Plaintiffs’
claims for intentional infliction of emotional distress will therefore be granted. Id.
IV.

42 U.S.C. § 1981

Casino Defendants next assert Plaintiffs fail to state claims under 42 U.S.C. § 1981, because
their claims for discrimination on the basis of national origin are not cognizable under that
statute. (Casino Defendants’ Memo in Support, PP. 7-9). Specifically, Casino Defendants note
Plaintiffs’ § 1981 claims are premised on the fact that they were denied access to the casino
because they were wearing Bosnian National Soccer Team paraphernalia, claims clearly
sounding in national origin discrimination. (Id., P. 8, citing Compl., ¶¶ 41, 54, 219).
42 U.S.C. § 1981 provides in relevant part as follows: “All persons within the jurisdiction of
the United States shall have the same right in every State and Territory to make and enforce
contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white citizens.” Section
4 Plaintiffs’ attempt to base their claims for intentional infliction of emotional distress on
conduct that occurred prior to the alleged assault and battery fails, as the Court finds as a matter
of law that such conduct was not extreme and outrageous. See Leavitt v. Bank of Cairo and
Moberly, 2006 WL 1479502, at *5 (E.D. Mo. May 23, 2006). In other words, Defendants’
actions in refusing Plaintiffs admission to the casino, even assuming they were carried out
without any reasonable basis, justification or provocation on the part of Plaintiffs, “do not rise to
the outrageous and extreme level required to demonstrate intentional infliction of emotional
distress.” Id.; see also Bailey v. Bayer CropScience L.P., 563 F.3d 302, 310 (8th Cir. 2009)
(internal quotations and citations omitted) (“Missouri case law reveals very few factual scenarios
sufficient to support a claim for [intentional infliction of emotional distress].”).
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1981 thus has a specific function; it “protects ‘identifiable classes of persons who are subjected
to intentional discrimination solely because of their ancestry or ethnic characteristics.’”
Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir.) (quoting St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)), cert. denied, 132 S.Ct. 513
(2011). “Section 1981 does not authorize discrimination claims based on national origin.” Id. at
1053 (citation omitted)5; see also Central America Health Sciences University, Belize Medical
College v. Norouzian, 236 S.W.3d 69, 81 (Mo. App. 2007) (internal quotations and citation
omitted) (“Courts have consistently held that 42 U.S.C. section 1981 is by its very terms limited
to acts of racial discrimination.”).
In their response, Plaintiffs attempt to tie their discrimination claims to ancestry or ethnic
characteristics, by asserting they belong to an ethnic group called “Bosniaks,” “characterized by
their ties to the Bosnian historical region, identification with the Islamic faith since the 15th and
16th centuries and association with a common culture and/or traditions.” (Plaintiffs’ Opp., PP. 89).

Upon review, however, the Court notes that nowhere in their Complaint do Plaintiffs

mention this asserted association, nor do they include allegations regarding Defendants’
supposed discrimination on the basis thereof. The Court therefore will grant this portion of
Casino Defendants’ Motion to Dismiss, as Plaintiffs’ Complaint as stated asserts only claims for
discrimination based on national origin.6

See Zar v. South Dakota Bd. of Examiners of

5 The Eighth Circuit has explained the distinction as follows: “For example, if an individual is
subjected to intentional discrimination based on the fact that he was born an Arab, rather than
solely on the place or nation of his origin…[then] he will have made out a case under § 1981.”
Torgerson, 643 F.3d at 1052-53 (internal quotations and citation omitted).
6 In their response, Plaintiffs reference both a Second Amended Complaint and a
contemporaneously filed Motion to Amend. (Plaintiffs’ Opp., P. 8). Neither of these documents
appear in the Court’s record of the case.
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Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) (“This claim of discrimination based upon
national origin is insufficient to state a § 1981 claim.”).7
V.

42 U.S.C. § 19838

Casino Defendants finally assert that Plaintiffs’ claims under 42 U.S.C. § 1983 must be
dismissed for failure to state a claim because, even assuming they were acting under color of
state law, “[a] corporation acting under color of state law will only be held liable under § 1983
for its own unconstitutional policies.” Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d
588, 590 (8th Cir. 2004) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978))).
The test is whether there exists a policy, custom or action by those who represent
official policy which inflicts an injury actionable under § 1983. In other words, to
prove a policy, custom or action, [Plaintiffs] must show a continuing, widespread,
persistent pattern of unconstitutional misconduct by [Casino Defendants’]
employees; deliberate indifference to or tacit authorization of such conduct by
[Casino Defendants’] policymaking officials after notice to the officials of that
misconduct; and [Plaintiffs were] injured by acts pursuant to [Casino
Defendants’] custom, i.e., that the custom was the moving force behind the
constitutional violation.
Id. at 590-91 (internal quotations and citations omitted).
7 In light of the above ruling, the Court need not address Casino Defendants’ contention that
Plaintiffs’ § 1981 claims fail because they fail to allege sufficient facts identifying any direct
contractual relationship allegedly impaired by Casino Defendants’ actions. (Casino Defendants’
Memo in Support, PP. 9-11). The Court notes without deciding, however, that under Eighth
Circuit law, “§ 1981 offers relief ‘when racial discrimination blocks the creation of a contractual
relationship’ that does not yet exist, such as those contracts that might exist in the retail context
under certain circumstances.” Withers v. Dick’s Sporting Goods, Inc., 636 F.3d 958, 963 (8th
Cir.) (quoting Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S.Ct. 1246, 163
L.Ed.2d 1069 (2006)), cert. denied, 132 S.Ct. 821 (2011). Thus, while this Court recognizes that
“[m]erely entering a retail establishment is not a protected activity under § 1981,” Id., Plaintiffs’
assertions that they were denied admittance in the first instance may state claims. Morris v.
Office Max, Inc., 89 F.3d 411, 414 (7th Cir. 1996).
8 Casino Defendants attempt to have Plaintiffs’ § 1983 claims against the individual John Doe
Defendants dismissed, for failure to assert sufficient facts to establish they acted under color of
state law. (Casino Defendants’ Memo in Support, PP. 11-12). Casino Defendants’ attorneys
have not entered an appearance on behalf of the John Doe Defendants, however, nor did they file
the instant motion on their behalf. The Court therefore will not consider this portion of Casino
Defendants’ Motion to Dismiss.
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In the instant case, the Court finds Plaintiffs’ Complaint fails to include any “allegations,
reference, or language by which one could begin to draw an inference that the conduct
complained of…resulted from an unconstitutional policy or custom.” Crumpley-Patterson, 388
F.3d at 591 (internal quotations and citation omitted). Instead, Plaintiffs refer solely to Casino
Defendants’ employees’ alleged actions in this instance.9 Under these circumstances, the Court
cannot find “any language or facts from which an inference could be drawn that [Casino
Defendants] had a policy or custom” of behaving in the manner alleged, and so this portion of
their Motion to Dismiss must be granted. Id. See also Sanders v. Sears, Roebuck & Co., 984
F.2d 972, 975 (8th Cir. 1993) (holding corporations may not be held liable under § 1983 under a
theory of respondeat superior).10
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Casino Defendants’ Motion to Dismiss Plaintiffs’
Complaint (ECF No. 6) is GRANTED in part and DENIED in part, in accordance with the
foregoing.
Dated this 28th Day of January, 2016.

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE
9 Even in their response to Casino Defendants’ motion, Plaintiffs express consternation solely
over alleged conduct on the night in question, as follows: “The Casino defendants that night did
not admit Plaintiffs to the Casino because of their Bosnian ethnicity as it was clearly
demonstrated by the ‘Bosnia’ sports apparel the Plaintiffs were wearing….In this case
Defendants were letting patrons in with Argentina apparel while prohibiting those with ‘Bosnia’
apparel entrance….Denying people who appear Bosnian entrance into the Casino while allowing
people who appear Argentinian reflected a custom or action by Defendants that inflicted
actionable injury (excessive force, false arrest, denial of civil rights) to Plaintiffs under § 1983.”
(Plaintiffs’ Opp., PP. 9-10).
10 In light of the above rulings, the Court agrees with Casino Defendants that Plaintiffs’ claim
against them pursuant to 42 U.S.C. § 1988 must be dismissed as well.
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