Gray v. Derderian

389 F.Supp.2d 308

Albert L. GRAY, Administrator, et al., Plaintiffs, v. Jeffrey DERDERIAN, et al., Defendants. Estate of Jude B. Henault, et al., Plaintiffs, v. American Foam Corporation; et al., Defendants.

In Re Motion to Dismiss of Defendants Clear Channel Broadcasting, Inc., and Capstar Radio Operating Company, successor-in-interest to WHJY, Inc.

No. 04-312L.

No. 03-483L.

United States District Court, D. Rhode Island.

September 21, 2005.

Patrick T. Jones, Cooley Manion Jones LLP, Boston, MA, Mark S. Mandell, Mandell, Schwartz & Boisclair, Providence, RI, Max Wistow, Stephen E. Breggia, Esq., Breggia, Bowen & Grande, Providence, RI, Michael A. St. Pierre, Esq., Revens, Revens & St. Pierre, Warwick, RI, Eva Marie Mancuso, Hamel, Waxler, Allen & Collins, Steven A. Minicucci, Esq., Calvin Law Associates, Charles N. Redihan, Jr., Esq., Kiernan, Plunkett & Redihan, Providence, RI, for Plaintiff.

Cozen O'Connor, Philadelphia, PA, Anthony F. Demarco, Esq., Reynolds, Demarco & Boland, Providence, RI, James T. Murphy, Esq., Edwin F. Mcpherson, Esq., Mcpherson & Kalmansohn, Los Angeles, CA, Ian C. Ridlon, Nixon Peabody LLP, Providence, RI, James H. Reilly, III, Kelly, Kelleher, Reilly, Donald J. Maroney, Kristin E. Rodgers, Providence, RI, Deborah G. Solmor, Esq., Edward M. Crane, Esq., Skadden, Arps, Slate, Meagher, Chicago, IL, Joseph V. Cavanagh, Jr., Eric M. Sommers, Vetter & White, Incorporated, Providence, RI, Howard A. Merten, Esq., James J. Restivo, Esq., W. Thomas Mcgough, Jr., Esq., Reed Smith LLP, Pittsburg, PA, Andrew J. Trevelise, Esq., Reed Smith LLP, Philadelphia, PA, Stephen J. MacGillivray, Esq., Edwards & Angell, Providence, RI, Stephen M. Prignano, Marc Desisto, Desisto Law, James R. Lee Attorney General's Office, Providence, RI, Earl H. Walker, Esq., Jackson Walker L.L.P., Houston, TX, Nancy W. Hamilton, Charles L. Babcock, Esq., Richard W. MacAdams, Macadams & Wieck, Inc., Ronald P. Langlois, Esq., Smith & Brink, P.C., Providence, RI, Curtis R. Diedrich, Esq., Sloane & Walsh, Boston, MA, Mark T. Nugent, Esq., Morrison Mahoney LLP, Thomas C. Angelone, Hodosh, Spinella & Angelone, Providence, RI, George Wolf, Ann M. Songer, Shook, Hardy & Bacon, Kansas City, MO, Thomas W. Lyons, III, Strauss, Factor & Lopes, Providence, RI, Gerald C. Demaria, Georgia Sullivan, Mathis & Associates, Hartford, CT, C. Russell Bengtson, Carroll, Kelly & Murphy, Mark C. Hadden, Esq., Providence, RI, Eric Bradford Hermanson, Choate, Hall & Stewart, Boston, MA, Mark D. Cahill, Esq., John R. Mahoney, Asquith, Mahoney & Robinson, Anthony R. Leone, Rice Dolan & Kershaw, Mark P. Dolan, Gregory L. Boyer, Esq., Providence, RI, Stephen Fogerty, Halloran & Sage LLP, Westport, CN, Michael R. Deluca, Esq., Gidley, Sarli & Marusak, LLP, Providence, RI, Joseph J. McGair, Esq., Patrarca & McGair, Warwick, RI, T. Dos Urbanski, Melick, Porter & Shea LLP, Providence, RI, Allen J. McCarthy, Melick, Porter & Shea LLP, Boston, MA, Michael J. Mazurczak, Esq., Stephen J. Macgillivray, Esq., Stephen M. Prignano, James R. Lee, for Defendant.

DECISION AND ORDER

LAGUEUX, Senior District Judge.

On February 20, 2003, a deadly fire destroyed a nightclub in West Warwick, Rhode Island, known as The Station. The fire started as the featured rock band, Great White, began its live performance and the club was crowded with spectators, staff and performers. The opening featured stage fireworks, ignited by the band's tour manager, as the band took the stage.

According to eyewitnesses, the fireworks created sparks behind the stage which ignited polyurethane foam insulation on the club's ceiling and walls. In minutes, the entire building was on fire and over 400 people were struggling to escape the crowded, dark and smoky space. The final toll: One hundred people dead and over 200 injured.

Numerous lawsuits, both criminal and civil, were filed throughout southern New England in both state and federal courts. Last year, in Passa v. Derderian, 308 F.Supp.2d 43 (D.R.I.2004), this Court asserted jurisdiction over several of the civil cases that had been removed here from Rhode Island Superior Court, and asserted jurisdiction as well over the cases that had originally been filed in this Court. The Court's exercise of original federal jurisdiction is based upon the Multiparty, Multiforum, Trial Jurisdiction Act of 2002, 28 U.S.C. § 1369. Since that time, to the best of this Court's knowledge, all civil lawsuits resulting from the nightclub fire have been consolidated in this Court, pursuant to a First Amended Master Complaint (hereinafter "the Master Complaint") filed and adopted jointly by about 250 plaintiffs, against over 50 defendants. Although this Court's jurisdiction relies upon federal law, Rhode Island provides the substantive law for these cases. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Ticketmaster-New York v. Alioto, 26 F.3d 201, 204 (1st Cir.1994); Passa v. Derderian, 308 F.Supp.2d 43 (D.R.I.2004). As of this writing, discovery has been stayed to permit an adequate time for service of, and response to, the new Master Complaint and for the Court to deal with a number of motions to dismiss. To date, the Court has addressed two other motions to dismiss, which may be found under this same caption at 371 F.Supp.2d 98 (D.R.I.2005) and 365 F.Supp.2d 218 (D.R.I.2005).

Presently before the Court is the Motion to Dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), brought by Clear Channel Broadcasting, Inc., and its wholly-owned subsidiary Capstar Radio Operating Company. Capstar Radio Operating Company is the successor-in-interest to WHJY, Inc. At the time of the fire, WHJY, Inc., operated radio station WHJY-FM, which was a sponsor of the Great White concert. The corporations will be identified collectively in this opinion as "WHJY" or as Defendants.

Defendants move for the dismissal of the counts asserted against them stemming from WHJY-FM's activities in connection with its sponsorship of the concert. These include allegations of negligence brought by all plaintiffs in the Master Complaint, as well as allegations based on a joint venture theory brought by a small subset of plaintiffs known as the "Henault" Plaintiffs. For the reasons set forth below, the Court denies the Motion to Dismiss the allegations in the Master Complaint, but grants it as to the joint venture allegations.

Standard of Review

Defendants move to dismiss the claims against them pursuant to Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief may be granted. F.R.C.P. Rule 12(b) states that as to subpart (6), if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56." In connection with the present Motion to Dismiss, Plaintiffs have presented additional material with their memoranda. However, because discovery has been and remains stayed in this litigation, neither side has had an opportunity to develop a complete record in support of its allegations or defenses. Consequently, the Court has chosen to exclude all extraneous information and affidavits, as well as all arguments in reliance thereon, in ruling on the present Motion to Dismiss.

At present, the Court adheres to the narrow and limited focus appropriate to a Motion to Dismiss, analyzing only the well-pleaded complaint for allegations necessary to support the claims. In the course of its analysis, the Court will assume that all allegations are true. The allegations and all reasonable inferences to be drawn from them will be construed in the light most favorable to the Plaintiffs. Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir.1996). As stated by the United States Supreme Court, "the accepted rule [is] that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Defendants' motion will fail if "the well-pleaded facts, taken as true, justify recovery on any supportable legal theory." Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir.2000).

The First Circuit has also stated:

Nevertheless, minimal requirements are not tantamount to nonexistent requirements. The threshold may be low, but it is real — and it is the plaintiff's burden to take the step which brings his case safely into the next phase of the litigation. The court need not conjure up unpled allegations or contrive elaborately arcane scripts in order to carry the blushing bride through the portal.

Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). Gooley holds that the plaintiff is required "to set forth factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory." 851 F.2d at 515. See also DM Research v. College of Am. Pathologists, 2 F.Supp.2d 226, 228 (D.R.I.1998).

The Master Complaint

The Master Complaint, which all plaintiffs have adopted, sets forth allegations against Defendants in paragraphs 395 through 410. The Master Complaint alleges that, by January 2003, WHJY had decided to sponsor the upcoming concert at The Station, and those sponsorship activities included:

• advertising its sponsorship on the radio and in print;

• hanging a banner outside The Station, which invited patrons to "party with WHJY;"

• distributing free tickets to the concert;

• staffing the concert with several of the radio station's interns to help out with the concert and its promotion;

• providing a WHJY disc jockey to serve as master of ceremonies at the concert; and

• meeting with other corporate sponsors to coordinate promotional activities.

Plaintiffs...