RESNICOFF v. DONALDSON et al

Filing 26

MEMORANDUM ORDER granting 20 Third-Party Defts Brian Hart, James Fris, and Robert Platzer's Motion to Dismiss; that the third-party claims against Third-Party Defts Brian Hart, James Fris and Robert Platzer are hereby DISMISSED. Signed by Judge Anne E. Thompson on 9/17/2012. (gxh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Zachary RESNICOFF,
Plaintiff,
Civ. No. 11-6473
v.
MEMORANDUM ORDER
Conway K. DONALDSON et al.,
Defendants.
THOMPSON, U.S.D.J.
This matter has come before the Court on Third-Party Defendants Brian Hart, James Fris,
and Robert Platzer’s Motion to Dismiss pursuant to Federal Rule of Civil Procedure Rule
12(b)(6) [docket # 20]. To date no opposition has been filed. The Court therefore deems this
motion unopposed. The Court has decided the motion upon the submissions of the parties and
without oral argument pursuant to Federal Rule of Civil Procedure 78(b). For the reasons set
forth below, the Third-Party Defendants’ motion will be granted.
I.

BACKGROUND

This matter arises out of injuries sustained during a high school reunion. Plaintiff
Zachary Resnicoff and Defendant/Third-Party Plaintiff Conway K. Donaldson engaged in a
physical altercation in the parking lot of Treno’s Restaurant, located in Collingswood, New
Jersey. As a result of the altercation, Plaintiff alleges that he suffered facial lacerations when he
was struck without provocation with a glass that Defendant/Third-Party Plaintiff Donaldson took
from the restaurant into the parking lot. See (Compl. ¶ 7) [1]. Plaintiff further alleges that as a
direct result of the altercation he was permanently injured. (Id. ¶ 8). Plaintiff brought suit
against Defendant/Third-Party Plaintiff Donaldson, his alleged co-conspirator Defendant Harry
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Joseph McCollough, as well as defendants John Doe and XYZ Corp. (fictitious names), which
allegedly were co-conspirators in the assault on the Plaintiff and other acts of negligence. See
(id. at 1–5).
In response, Defendant/Third-Party Plaintiff Donaldson counterclaims for battery,
conspiracy, and negligence alleging that he sustained permanent injuries in his ill-fated attempt
to break up the fight between Plaintiff Resnicoff and Defendant McCollough. See (Donaldson
Countercl. ¶¶ 1–21) [12] . Defendant/Third-Party Plaintiff Donaldson has additionally asserted
claims against the restaurant Third-Party Defendant, P.J.W. Restaurant Group t/a Treno, its
corporate owner Haddon Enterprises, Inc., as well as three executives of these entities: Hart, the
Manager of the Treno Restaurant; Fris, the Chief Operating Officer of P.J.W. Restaurant Group
t/a Treno; and Platzer, the President of P.J.W. Restaurant Group t/a Treno. See (Donaldson
Third Party Compl. ¶¶ 1–29) [12]. The individual Third-Party Defendants have now moved to
dismiss the claims asserted against them.
II.

DISCUSSION

On a motion to dismiss for failure to state a claim, a “defendant bears the burden of
showing that no claim has been presented.” Hedges v. United States, 404 F.3d 744, 750 (3d Cir.
2005). Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a
plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), meaning enough factual allegations “‘to raise a
reasonable expectation that discovery will reveal evidence of’” each necessary element, Phillips
v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556); see
also Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (requiring a complaint to set forth
information from which each element of a claim may be inferred).

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When considering a Rule 12(b)(6) motion, a district court should conduct a three-part
analysis. See Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘take
note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Ashcroft v. Iqbal, 56
U.S. 662, 675 (2009)). Second, the court must accept as true all of a plaintiff’s well-pleaded
factual allegations and construe the complaint in the light most favorable to the plaintiff. Fowler
v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). But, the court should disregard any
conclusory allegations proffered in the complaint. Id. Finally, once the well-pleaded facts have
been identified and the conclusory allegations ignored, a court must next determine whether the
“facts are sufficient to show that plaintiff has a ‘plausible claim for relief.’” Id. at 211 (quoting
Iqbal, 556 U.S. at 679). This requires more than a mere allegation of an entitlement to relief. Id.
“A complaint has to ‘show’ such an entitlement with its facts.” Id. A claim is only plausible if
the facts pleaded allow a court reasonably to infer that the defendant is liable for the misconduct
alleged. Id. at 210 (quoting Iqbal, 556 U.S. at 678). Facts suggesting the “mere possibility of
misconduct” fail to show that the plaintiff is entitled to relief. Id. at 211 (quoting Iqbal, 556 U.S.
at 679).
Third-Party Defendants argue, inter alia, that the claims against them should be
dismissed as the allegations in the Third-Party Complaint do not rise above the “speculative
level” as required to survive a Rule 12(b)(6) dismissal motion. (Third-Party Defs.’ Br. at 3). The
Court agrees. Although Defendant/Third-Party Plaintiff Donaldson states that “[a]s a result of
the conduct of [Hart, Fris, and Platzer] . . . including but not limited to the failure to provide
adequate security and a safe environment, [he] sustained multiple and serious permanent
injuries,” at no point in the Third-Party Complaint does Defendant/Third-Party Plaintiff
Donaldson allege any facts suggesting that Third-Party Defendants could be liable for the claims

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alleged. Defendant/Third-Party Plaintiff Donaldson has not pled sufficient facts to suggest that
the Third-Party Defendants maintained the premises so as to allow the restaurant and its parking
lot to become and or remain in an unsafe and/or dangerous condition. Moreover, the Third-Party
Complaint merely recites the elements of several types of negligence actions without
demonstrating how the specific conduct of the Third-Party Defendants rises to the level of these
allegations. See Twombly 550 U.S. at 555 (“[A] plaintiff’s obligation to provide the grounds of
his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of a
cause of action’s elements will not do.”). Nor has the Third-Party Complaint plead sufficient
facts that would suggest that Third-Party Defendants could be held liable under the Dram Shop
Act, N.J.S.A. 2A:22A–1, et seq. The operative subsection of the Dram Shop Act, states:

a. A person who sustains personal injury or property damage as a result of the negligent
service of alcoholic beverages by a licensed alcoholic beverage server may recover
damages from a licensed alcoholic beverage server only if:
(1) The server is deemed negligent pursuant to subsection b. of this section; and
(2) The injury or damage was proximately caused by the negligent service of alcoholic
beverages; and
(3) The injury or damage was a foreseeable consequence of the negligent service of
alcoholic beverages.
b. A licensed alcoholic beverage server shall be deemed to have been negligent only
when the server served a visibly intoxicated person, or served a minor, under
circumstances where the server knew, or reasonably should have known, that the person
served was a minor.
N.J.S.A. 2A:22A–5. Defendant/Third-Party Plaintiff has not set forth facts suggesting that the
Third-Party Defendants individually and specifically acted in a way that meets any of these
criteria. Consequently, the Motion will be granted and the claims against the individual ThirdParty Defendants will be dismissed.

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III.

CONCLUSION

For the reasons stated above, and for good cause shown,
IT IS on this 17th day of September, 2012,
ORDERED that Third-Party Defendants Brian Hart, James Fris, and Robert Platzer’s
Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)
[docket # 20] is GRANTED; and it is further
ORDERED that the third-party claims against Third-Party Defendants Brian Hart, James
Fris, and Robert Platzer are hereby DISMISSED.

/s/ Anne E. Thompson
_
ANNE E. THOMPSON, U.S.D.J.

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