Lipp et al v. Ginger C, L.L.C. et al

Filing 177

ORDER entered by Judge Nanette Laughrey. Plaintiffs' Motion to Reconsider Dismissal of Defendant Pi Kappa Phi National Fraternity [Doc. 148 ] is denied. (Rosenbaum, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
JOHN P. LIPP and STEPHANIE S.
LIPP,
Plaintiffs,
v.
GINGER C, L.L.C., et al.,
Defendants.

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Case No. 2:15-cv-04257-NKL

ORDER
Before the Court is Plaintiffs’ Motion to Reconsider Dismissal of Defendant Pi
Kappa Phi National Fraternity [Doc. 148]. For the following reasons, the motion is
denied.

I.

Background
Plaintiffs, the surviving parents of Jack Lipp, filed suit under Missouri’s wrongful

death statute, Mo. Rev. Stat. § 537.080, alleging negligence against Defendants Ginger C,
L.L.C., American Campus Communities (ACC), Pi Kappa Phi Fraternity, Inc. (PKP
National), and Pi Kappa Phi Fraternity Missouri Beta Epsilon Chapter (PKP Chapter).
The suit stems from Lipp’s death, which occurred when he fell off a balcony at 507 South
Fourth Street in Columbia, Missouri while attending a fraternity party allegedly hosted by
PKP Chapter, the local chapter of PKP National.
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In their Second Amended Complaint, Plaintiffs alleged negligence against PKP
National under theories of premise and vicarious liability. In their proposed Fourth
Amended Complaint, Plaintiffs further asserted claims against PKP National for
negligent supervision, training, and retention. On January 28, 2016, PKP National filed a
motion to dismiss. [Doc. 43]. Plaintiffs argued in response that they had sufficiently
pled their negligence claims, or, in the alternative, that they should be granted leave to
file their proposed Fourth Amended Complaint.
In an order entered on April 19, 2015, the Court dismissed all pending and
proposed claims against PKP National. [Doc. 144]. The Court dismissed the premise
liability claim because “Plaintiffs have not offered any allegations that PKP National
controlled the property at 507 South Fourth Street.” Id. at 20. The Court further found
that Plaintiffs had not alleged PKP National controlled PKP Chapter such that it could be
held vicariously liable for PKP Chapter’s alleged premise liability or provision of alcohol
at the party. The Court wrote:
When deciding whether to assess liability against a national fraternity for
injuries stemming from chapter events, the Missouri Supreme Court has
asked whether the national fraternity “participate[d] in the day-to-day
management of its chapters.” Andres v. Alpha Kappa Lambda Fraternity,
730 S.W.2d 547, 553 (Mo. 1987).
In an effort to satisfy this standard, Plaintiffs offer only the conclusory
allegation that “PKP National actually asserted supervision and control
over the day-to-day functions of [PKP Chapter].” [Doc. 129-1, p. 33, ¶
149]. This threadbare recital is insufficient to carry Plaintiffs’ negligence
claim. Nowhere in Plaintiffs’ complaints is there any factual content from
which the Court can reasonably infer that PKP National participated in the
daily operation of PKP Chapter. Ashcroft v. Iqbal, 556 U.S. 662, 678
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(2009). In fact, in their proposed Fourth Amended Complaint, Plaintiffs
repeatedly stress that PKP Chapter violated policies adopted by PKP
National, held a fraternity party despite being suspended from campus, and
promoted at this fraternity party a scene of “general mayhem.” See [Doc.
129-1, p. 41, ¶ 175]. These allegations do not describe a chapter over
which PKP National exercised active control.
[Doc. 144, pp. 20-21].
Additionally, the Court dismissed the negligent supervision, training, and retention
claims. Regarding the supervision and training claims, the Court found that Plaintiffs had
not alleged a duty recognized by law that PKP National owed to Jack Lipp. As to the
negligent retention claim, the Court found Plaintiffs did not plead the existence of an
employer-employee relationship.
Consequently, the Court dismissed PKP National from this suit and denied as
futile Plaintiffs’ request to file the added allegations against PKP National contained in
their proposed Fourth Amended Complaint. Plaintiffs’ Motion to Reconsider followed.

II.

Discussion
A motion to reconsider serves the limited purpose of “correct[ing] manifest errors

of law or fact or [presenting] newly discovered evidence.” Hagerman v. Yukon Energy
Corp., 839 F.2d 407, 413 (8th Cir. 1998). Therefore, a motion to reconsider is proper
when addressing errors in the underlying order or offering evidence that was not
previously available. It is not proper as a “vehicle simply to reargue the case.” Fongwo

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v. Gonzales, 430 F.3d 944, 948 (8th Cir. 2005). 1 “A district court has broad discretion to
reconsider an order granting dismissal.” In re Charter Commc'ns, Inc., Sec. Litig., 443
F.3d 987, 993 (8th Cir. 2006).
Plaintiffs argue that the Court should reconsider its dismissal of PKP National.
First, Plaintiffs maintain that their proposed Fourth Amended Complaint sufficiently sets
forth plausible negligence claims against PKP National.

Second, in the alternative,

Plaintiffs argue they should be granted leave to file an amended complaint that contains
added factual allegations against PKP National, including facts recently ascertained in
discovery. The Court addresses each argument in turn.
A. The Court’s Order of Dismissal
In their motion, Plaintiffs contend they have pled that “PKP National actually
asserted supervision and control over the day-to-day functions of PKP Chapter.” [Doc.
148, p. 8]. In making this argument, Plaintiffs appear to challenge the Court’s dismissal
of their vicarious liability claim asserted against PKP National.
Yet neither Plaintiffs’ Motion to Reconsider [Doc. 148] nor Additional
Suggestions in Support [Doc. 149] offer any arguments the Court has not already
considered and dismissed. Plaintiffs first argue that Andres v. Alpha Kappa Lambda
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The Court notes that “[t]he Federal Rules of Civil Procedure do not provide for a “motion to
reconsider.”” Humphreys v. Roche Biomedical Labs., Inc., 990 F.2d 1078, 1081 (8th Cir. 1993).
Consequently, when a party files a motion of this nature without tying it to a federal rule, a court may
“deny what amounts to a motion to reconsider because it is procedurally improper.” Carroll v. Sisco,
2007 WL 1594051, at *1 (E.D. Mo. May 30, 2007). A court may also construe the motion as
procedurally-compliant under Rules 52, 59, or 60. See Humphreys, 990 F.2d at 1081; In re Trout, 984
F.2d 977, 978 (8th Cir. 1993) (“While we were able to construe the trustee's motion as one that comports
with the Federal Rules of Civil Procedure in this particular situation, we warn counsel of the danger of
failing to follow and to cite the appropriate procedural rule in the first instance.”). For present purposes,
the Court merely observes that Plaintiffs have not stated any grounds to reconsider the Court’s dismissal
of PKP National, regardless of how such motion is construed.
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Fraternity, the case relied upon by the Court in its supervisor liability analysis, is “law
from a different era.” [Doc. 148, p. 4]. Regardless of the year it was decided, however,
Andres remains valid Missouri law. Plaintiffs do not suggest otherwise. While they have
cited a more recent case from another jurisdiction, the Court is obligated to apply
Missouri substantive law in this diversity suit. See In re Charter Commc'ns, Inc., Sec.
Litig., 443 F.3d 987, 993 (8th Cir. 2006) (a district court properly denied a motion to
reconsider where the moving party relied on non-controlling cases).
In fact, despite dismissing Andres as “old,” Plaintiffs proceed to apply its standard
nevertheless. Pointing to their proposed Fourth Amended Complaint, Plaintiffs argue
they have pled sufficient facts establishing that PKP National participated in the day-today management of PKP Chapter. See Andres, 730 S.W.2d at 553 (asking whether the
national fraternity “participate[d] in the day-to-day management of its chapters”). The
Court has already considered this argument as well. In its order, the Court examined
Plaintiffs’ proposed Fourth Amended Complaint and concluded that it lacked “any
factual content from which the Court [could] reasonably infer that PKP National
participated in the daily operation of PKP Chapter.” [Doc. 144, p. 21].
Plaintiffs do not offer any new reasons to challenge this conclusion. 2 Instead, they
merely restate a series of allegations made against PKP Chapter in their proposed Fourth

2

In their reply brief, however, Plaintiffs also argue that “failure to act is just as meaningful, in
terms of “participating” in the day-to-day management of the chapter, as affirmative conduct. In other
words, Plaintiffs allege that PKP National had a role in the day-to-day activities of the local chapter (i.e.,
it was “participating”), and its failure to properly fulfill that role is what caused, or contributed to cause,
Jack Lipp’s death.” [Doc. 162, p. 8]. In making this argument, Plaintiffs appear to claim that PKP
National did not participate in PKP Chapter’s daily management—but that they should have participated
because they had a duty to participate. This circular argument is unpersuasive. While parties, in some
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Amended Complaint. After removing all legal conclusions from these allegations, see
Iqbal, 556 U.S. at 678, the Court finds only three possible facts asserted by Plaintiffs: (1)
“PKP National actually asserted supervision and control over the day-to-day functions of
PKP Chapter;” (2) PKP Chapter “had recent open sanctions violations,” “had lost its oncampus housing,” and “was hosting fraternity functions at 507 South Fourth Street;” and
(3) PKP National had adopted an FIPG Risk Management Manual. [Doc. 148, pp. 6-7].
The Court has already found these allegations deficient. First, Plaintiffs’ claim
that PKP National actually asserted supervision is conclusory absent some additional
support. Second, facts alleged about PKP Chapter—especially facts suggesting PKP
Chapter was noncompliant with university or fraternity policies—do not indicate PKP
National’s day-to-day participation in these functions. Third, as discussed in the Court’s
prior order, PKP National did not assume a duty to Lipp merely by adopting the FIPG
Risk Management Manual. While the Court must accept Plaintiffs’ allegations as true
when considering a motion to dismiss, these allegations must still be supported by some
factual content. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
facts highlighted in Plaintiffs’ motion do not satisfy this low bar.
In their reply brief, Plaintiffs also dispute PKP National’s assertion that “Plaintiffs
have abandoned their ‘direct negligence claims’ (i.e., premises liability and negligent
supervision, training and retention claims) and only seek reconsideration of their
vicarious liability claim.” [Doc. 162, p. 3]. Rather, according to Plaintiffs, they are
contexts, are placed under an affirmative duty to act, this duty must first be established. The lack of a
relationship between two parties does not create a duty for one to act on behalf of the other. As such,
Plaintiffs’ argument only lends credence to the Court’s conclusion that they have not alleged PKP
National’s vicarious liability under the standard set forth in Andres.
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seeking “reconsideration of the Court’s order dismissing all of their claims against PKP
National, or leave to amend all of their claims against PKP National.” Id. (emphasis in
original). Yet the Court finds that Plaintiffs did not raise this broad challenge in either
their Motion to Reconsider or Additional Suggestions in Support, both of which focus on
PKP National’s control of PKP Chapter and thus appear only to address the vicarious
liability claim.

Plainly, despite filing two documents supporting their motion to

reconsider, Plaintiffs did not put the Defendants on notice that they intended to address
the direct premise liability claim or the negligent supervision, training, and retention
claims.
Even if these issues are properly before the Court, however, Plaintiffs still have
not shown that PKP National owed Lipp a duty regarding any of these claims and,
therefore, that the Court erred in dismissing them. The Court will briefly address the
points raised by Plaintiffs in their reply brief.
1. Direct Premise Liability
Plaintiffs argue that the Court applied an incorrect standard in dismissing their
direct premise liability claim. They assert:
[T]he Court dismissed the premises liability claim because it believed
Plaintiffs “have not offered any allegations that PKP National controlled
the property.” But, the Missouri case relied upon by PKP National for this
issue states that the question is not whether the national fraternity
“controlled” the chapter’s activities, but whether the national fraternity
“participate[d] in the day-to-day management of its chapters.”
[Doc. 162, p. 5] (quoting Andres, 730 S.W.2d at 553) (emphasis in original).

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In making this argument, Plaintiffs have confused the standards between a direct
premise liability claim and a vicarious liability claim conditioned on a local chapter’s
premise liability. Under the first claim, a party is liable for injuries suffered on a property
only if it possessed that property at the time of injury. Adams v. Badgett, 114 S.W.3d
432, 436 (Mo. Ct. App. 2003). Missouri has adopted the Restatement (Second) of Torts,
which defines the term “possessor” as a party “who is in occupation of the land with
intent to control it.” Restatement (Second) of Torts § 328E(a).
In none of Plaintiffs’ complaints or briefings is there any suggestion that PKP
National occupied 507 South Fourth Street with the intent to control it. Accordingly, the
Court properly dismissed Plaintiffs’ direct premise liability claim.
2. Negligent Supervision
Regarding their negligent supervision claim, Plaintiffs argue:
[T]he Court held that Plaintiffs need only “allege” ‘the existence of a
relationship between the plaintiff and defendant that the law recognizes as
the basis of a duty of care,” but nevertheless found that Plaintiffs had failed
to adequately allege such a duty. However, Plaintiffs plead specific facts
demonstrating that PKP National undertook a duty to, and did, supervise
the local chapter. Moreover, the existence of a duty is determined by
considering whether the risk of injury to a certain person or class of persons
was the foreseeable result of careless conduct by the defendant. . . PKP
National had specific knowledge that ‘fall from heights’ was a leading
cause of loss and a driver of claim severity against college fraternities.
[Doc. 162, p. 6] (emphasis in original).
The Court has already addressed this argument in its prior order.

While

foreseeability is the “paramount” factor in assessing a party’s duty of care, Lopez v. Three
Rivers Elec. Co-op., Inc., 26 S.W.3d 151, 156 (Mo. 2000), “[f]oreseeability alone is not
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enough to establish a duty,” Pippin v. Hill-Rom Co., 615 F.3d 886, 890 (8th Cir. 2010)
(quoting Stitt by Stitt v. Raytown Sports Ass'n, Inc., 961 S.W.2d 927, 930 (Mo. Ct. App.
1998)). Plaintiffs argue that Lipp’s injury was foreseeable, but even if so, Plaintiffs
concede that negligent supervision also requires “the existence of a relationship between
the plaintiff and defendant that the law recognizes as the basis of a duty of care.” Hill ex
rel. Hill v. Herbert Hoover Boys Club, 990 S.W.2d 19, 22 (Mo. Ct. App. 1999). This
relationship is critical to establish because “[t]he duty to supervise is a narrow one.” Id.
Again, Plaintiffs have not shown, in any of their complaints or briefings, the
existence of a relationship between PKP National and Lipp recognized by Missouri law.
Missouri courts have found that certain persons—for example, grandparents, teachers,
and babysitters—owe a duty to supervise, A.R.H. v. W.H.S., 876 S.W.2d 687, 689 (Mo.
Ct. App. 1994) (citing cases), but no court has extended this duty to national fraternities.
Plaintiffs have not offered even a colorable argument for such extension.
3. Negligent Training
Plaintiffs also argue that the Court erred in dismissing their negligent training
claim. Plaintiffs state:
The Court found the negligent training claim failed because Plaintiffs had
not “shown or alleged that PKP National’s risk policies created a duty, and
that there was no duty of care owed to “social guests” like Jack Lipp. But
Jack Lipp was not a “social guest.” Plaintiffs alleged him to be an invitee
at the premises at the request of the fraternity and the direction of PKP
National. As an invitee, Jack Lipp was owed a duty.
[Doc. 162, p. 7] (emphasis added).

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Contrary to Plaintiffs’ assertion, a person’s entrance status upon a property is a
question of law, and therefore the Court is not obligated to accept as true Plaintiffs’
allegation that Lipp was an invitee. See Carter v. Kinney, 896 S.W.2d 926, 928 (Mo.
1995).

But even assuming Lipp was an invitee, this status pertains only to the

Defendants’ premise liability. See Medley v. Joyce Meyer Ministries, Inc., 460 S.W.3d
490, 495-96 (Mo. Ct. App. 2015) (“Generally, the status of an entrant on the land, i.e.,
whether the entrant is a trespasser, licensee, or an invitee, determines the specific duty of
care owed by the possessor of land.”). Whether Lipp was a licensee or invitee at 507
South Fourth Street has no bearing on Plaintiffs’ negligent training claim because, as
explained above, Plaintiffs have not alleged that PKP National possessed the property.
Rather, the dispositive question is whether PKP National owed a duty to Lipp to train
PKP Chapter on his behalf.
Plaintiffs have not established that PKP National owed such a duty. In its order,
the Court found that PKP National’s adoption of a risk management manual did not
create a duty of care owed to Lipp. Plaintiffs have offered no other theory in their motion
to reconsider.
4. Negligent Retention
Although Plaintiffs also seek reconsideration of their negligent retention claim,
they have offered no argument challenging the Court’s dismissal of it. “To sustain a
claim based on the theory of negligent hiring and retention, the plaintiff must plead and
prove that an employer-employee relationship existed.”

Storey v. RGIS Inventory

Specialists, LLC, 466 S.W.3d 650, 657 (Mo. Ct. App. 2015). Plaintiffs have not shown,
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in any of their complaints or briefings, the existence of an employer-employee
relationship in this case.
Accordingly, Plaintiffs have not offered a persuasive basis to reconsider any of
their negligence claims against PKP National.
B. Leave to File an Amended Complaint
In the alternative, Plaintiffs seek leave to file an amended complaint that augments
their claims against PKP National. In their Additional Suggestions in Support, moreover,
Plaintiffs offer several new facts disclosed recently during discovery. Plaintiffs argue
that these facts support their request to amend.
When a plaintiff requests leave to amend his complaint, “[t]he court should freely
give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Yet this liberal allowance is
not a mandatory right. “[P]ermission to amend may be withheld if the plaintiff . . . is
guilty of undue delay, bad faith, dilatory motive, or if permission to amend would unduly
prejudice the opposing party.” Williams v. Little Rock Mun. Water Works, 21 F.3d 218,
224 (8th Cir. 1994).
Further, “[a]lthough a pretrial motion for leave to amend one’s complaint is to be
liberally granted, different considerations apply to motions filed after dismissal.” Dorn v.
State Bank of Stella, 767 F.2d 442, 443 (8th Cir. 1985). “After a complaint is dismissed,
the right to amend under Fed.R.Civ.P. 15(a) terminates.” Id. A party may still seek leave
to amend its complaint, but “such a motion would be inappropriate if the court has clearly
indicated . . . that no amendment is possible.” Hawks v. J.P. Morgan Chase Bank, 591
F.3d 1043, 1050 (8th Cir. 2010).
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In its order dismissing PKP National and granting Plaintiffs leave to amend other
sections of their complaint, the Court did not fully foreclose the possibility of a future
amendment. The Court stated, however, that “[n]o further amendments will be granted
absent extraordinary circumstances.” [Doc. 144, p. 7].
Having examined Plaintiffs’ new factual allegations, the Court finds they present
no extraordinary circumstances justifying an amendment. Plaintiffs now seek to allege
that PKP Chapter paid fees to PKP National, that PKP National asked PKP Chapter in
September 2014 to prepare a recruitment program, and that PKP Chapter sent a one-page
“Recruitment Plan” in response to this request. See [Docs. 149-1, 149-2]. These facts, if
true, do not constitute extraordinary new evidence demanding the Court’s reconsideration
of its dismissal order. Indeed, Plaintiffs do not even argue why these facts show PKP
National’s day-to-day participation in PKP Chapter, for purposes of the vicarious liability
claim—or why they show PKP National owed a duty to Lipp for purposes of the
negligent training and supervision claims. In discussing these facts, Plaintiffs merely
contend that the one-page Recruitment Plan, which was not fully responsive to PKP
National’s request, “should have immediately triggered PKP National to further supervise
and control its local chapter.” [Doc. 149, p. 3]. Plaintiffs cite no authority for why PKP
Chapter’s poor recruitment plan renders PKP National liable under any theory of
negligence.
Moreover, considering the procedural history of this case, justice does not require
granting Plaintiffs an opportunity to amend their claims against PKP National. This
lawsuit was filed on November 9, 2015 and the parties began conducting discovery in
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December 2015. Since then, Plaintiffs have filed three amended complaints, a proposed
Fourth Amended Complaint, and a total of five requests seeking leave to amend their
complaint. See [Docs. 60, 61, 72, 89, 129]. Plaintiffs are now requesting an additional
amendment more than four months after the deadline set in the Court’s Scheduling Order.
See [Doc. 157]. See also Popoalii v. Corr. Med. Servs., 512 F.3d 488, 497 (8th Cir.
2008) (district court did not abuse its discretion in denying motion to amend filed five
months after scheduling order deadline). Given that the trial date has already been
postponed once, [Doc. 33], permitting Plaintiffs to repeatedly amend their deficient
pleadings will serve only to prejudice the Defendants and further delay this litigation.
See Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065-66
(8th Cir. 2005) (affirming denial of motion to amend because plaintiff had already filed
two amended complaints and further amendments would prejudice defendant and delay
the case).
Even so, despite the amendments already granted in this case, Plaintiffs argue they
“have not been permitted to amend the Complaint, even once, for the allegations against
PKP National.” [Doc. 148, p. 8]. While the Court has not granted Plaintiffs leave to add
factual allegations against PKP National, this is only because, in its prior order, the Court
closely examined Plaintiffs’ proposed Fourth Amended Complaint and found that the
additional allegations asserted against PKP National were futile. Accordingly, the Court
has already explained why Plaintiffs cannot amend their claims against PKP National.
The Court declines to revisit this analysis.
Plaintiffs’ request for leave to amend their complaint is denied.
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III.

Conclusion
For the foregoing reasons, Plaintiffs’ Motion for Reconsideration [Doc. 148] is

denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 8, 2016
Jefferson City, Missouri

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