United States District Court, S.D. Mississippi, Southern Division
JASON JORDAN; ALYSSA JORDAN, Individually and on behalf of the Estate of Unborn Baby Jordan, Deceased, and on behalf of all the heirs and law and Wrongful death beneficiaries of Unborn Baby Jordan, Deceased; and CHRISTOPHER SOUKUP, Plaintiffs,
PREMIER ENTERTAINMENT BILOXI, LLC, doing business as Hard Rock Hotel & Casino Biloxi; THE CITY OF BILOXI, MISSISSIPPI; DOE DEFENDANT ONE; JOSHUA HAMILTON, in his official and individual capacities; DOE DEFENDANT THREE; DOE DEFENDANT FOUR; DOE DEFENDANT FIVE; and DOE DEFENDANTS 6-10, Defendants.
MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR PARTIAL DISMISSAL
LOUIS GUIROLA, Jr., Chief District Judge.
BEFORE THE COURT is the  Motion for Partial Dismissal filed by Defendant Premier Entertainment Biloxi, LLC, doing business as Hard Rock Hotel & Casino Biloxi (hereinafter "Hard Rock Hotel & Casino") pursuant to Federal Rule of Civil Procedure 12(b)(6). The plaintiffs, Jason Jordan, Alyssa Jordan, who sues individually and on behalf of her deceased unborn child, and Christopher Soukup, have filed a response in opposition to the Motion. Hard Rock Hotel & Casino has filed a rebuttal. Having reviewed the pleadings and the relevant law, it is the opinion of the Court that the Motion should be granted.
Jason Jordan, Alyssa Jordan, and Christopher Soukup claim that they were injured by Hard Rock Hotel and Casino security guards and officers of the Biloxi Police Department during an altercation that occurred at the casino on November 27, 2011. The plaintiffs also allege that the unborn child of Jason and Alyssa Jordan died as a result of the altercation. In their First Amended Complaint, the plaintiffs attempt to assert the following claims: (1) premises liability, (2) wrongful death, (3) negligence and negligence per se, (4) gross negligence, (5) negligent hiring, retention, supervision, and control, (6) res ipsa loquitur, (7) respondeat superior, (8) agency, (9) loss of consortium, (10) a general allegation of violation of civil rights pursuant to 42 U.S.C. § 1983, (11) failure to implement appropriate policies, customs, and practices in violation of 42 U.S.C. § 1983, (12) negligent infliction of emotional distress, (13) intentional infliction of emotional distress, (14) breach of non-delegable fiduciary duty, (15) the common law tort of outrage, (16) reckless disregard for the rights and safety of others, (17) negligent failure to discipline or take necessary corrective action; (18) civil conspiracy; (19) malicious prosecution; (20) false arrest and false imprisonment; (21) civil assault; (22) civil battery; and (23) abuse of process. The plaintiffs seek economic damages, noneconomic damages, and punitive damages.
Hard Rock Hotel & Casino moves to dismiss the complaint in part. Specifically, it seeks dismissal of the plaintiffs' negligence per se claim, the § 1983 claims, and the intentional tort claims.
The Legal Standard
In reviewing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court accepts as true all well-pleaded facts and views them in the light most favorable to the plaintiff. Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). However, a court is not bound to accept legal conclusions couched as factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). The plaintiff must plead sufficient facts to state a claim for relief that is facially plausible. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570.)
Negligence Per Se
Hard Rock Hotel & Casino moves to dismiss the plaintiffs' negligence per se claim on the grounds that the claim "fails as a matter of law as the Plaintiff has not identified a statute or regulation that was violated by this Defendant." (Mot. for Partial Dismissal 2, ECF No. 9). Count III of the First Amended Complaint alleges claims of negligence and negligence per se. (First Am. Compl. 13-15 (¶¶56-64), ECF No. 1-1). The plaintiffs allege that the defendants were negligent in that they failed "to exercise reasonable care to protect invitees from reasonably foreseeable injuries, " and "to provide adequate security" and "security personnel" at the Hard Rock, and "by failing to take or implement reasonable measures for the personal security and safety of the Plaintiffs, ... to warn [them] of the foreseeable harm they suffered, and by failing to reasonably inspect and make safe the premises[.]" ( Id. at 14 (¶62)). With respect to the claim of negligence per se, the First Amended Complaint states:
To the extent that one of [sic] more of these Defendants, through their act(s) and/or omission(s) violated a Mississippi statute in the operation of the casino, night club and police department at issue, and (i) the Plaintiffs were in the class of persons the statute was designed to protect and (ii) the injuries they sustained were of a type the statue [sic] was designed to prevent, then these Defendants are per se negligent.
( Id. at 14-15 (¶63)). As Hard Rock Hotel & Casino submits, however, the plaintiffs do not cite a specific statute that is alleged to have been violated. In response to the Motion, the plaintiffs argue that "[i]n order to set forth the full extent of the violation of a Mississippi statute, including the violation as well as the statutory authority, requires proof outside of the four corners of the Plaintiff's complaint." (Pls. Mem. 7, ECF No. 15). The plaintiffs do not submit any other argument regarding the negligence per se claim; nor do they point to which Mississippi statute they contend has been violated by the defendants.
The Mississippi Court of Appeals has explained that "[n]egligence per se is founded on the violation of a statutory standard, usually a penal one." Moore v. K & J Enter., 856 So.2d 621, 624 (¶5) (Miss. Ct. App. 2003). To prevail on such a claim, the plaintiffs must show that: (1) they are "member[s] of the class sought to be protected under the statute;" (2) that their "injuries were of a type sought to be avoided by the statute;" and (3) "that the violation of the statute proximately caused or contributed to [their] injuries." Id. (citing Brennan v. Webb, 729 So.2d 244, 249 (Miss. Ct. App. 1998)). The Court finds that, even when viewing the complaint in the light most favorable to the plaintiffs, the plaintiffs have not sufficiently plead their claim of negligence per se under Mississippi law. They have not pointed to, or even alleged, a violation of any particular statute, and ...