Cleek v. Ameristar Casino Kan. City, LLC

• Decision Date: 24 August 2022
• Docket Number: 21-3067
• Parties: James C. CLEEK; Carol Cleek, Plaintiffs - Appellants v. AMERISTAR CASINO KANSAS CITY, LLC, Defendant - Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

47 F.4th 629

James C. CLEEK; Carol Cleek, Plaintiffs - Appellants
v.
AMERISTAR CASINO KANSAS CITY, LLC, Defendant - Appellee

No. 21-3067

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2022
Filed: August 24, 2022

Thomas E. Hankins, Hankins & Conklin, Gladstone, MO, for Plaintiffs-Appellants.

Joseph Edward Bant, Robert Tormohlen, Scott Andrew Wissel, Lewis & Rice, Kansas City, MO, for Defendant-Appellee.

Before LOKEN and KELLY, Circuit Judges, and MENENDEZ,¹ District Judge.

MENENDEZ, District Judge.

47 F.4th 633

James and Carol Cleek appeal the district court's² denial of their motion to remand and adverse grant of summary judgment in this diversity action arising out of a slip-and-fall on Ameristar Casino Kansas City, LLC's property. For the reasons that follow, we affirm.

I. Background

Ameristar owns and operates a casino in Clay County, Missouri. James Cleek had visited the casino on several occasions over many years and patronized it again on February 26, 2019. He arrived at the casino that evening, ate dinner, and then briefly left the premises. He returned a short time later, parked his car, and reentered the casino.

Earlier that evening, a winter weather advisory had been issued for the Kansas City area, including Clay County, lasting overnight and into the next morning. When Mr. Cleek returned to the casino, the storm had not yet begun but he noticed salt in the parking lot and on uncovered driveways. After he reentered the building, freezing rain began to fall, causing icy conditions throughout the greater Kansas City area, including at Ameristar's property. Mr. Cleek left the casino again shortly before midnight. On an exterior walkway near the casino entrance, Mr. Cleek slipped on a patch of ice, fell, and was injured. Ameristar had neither treated the walkway where Mr. Cleek fell with salt or ice melt, nor otherwise removed the ice.

The Cleeks filed suit against Ameristar in state court, alleging that its negligence caused Mr. Cleek's injuries. Ameristar removed the case to federal court invoking diversity jurisdiction under 28 U.S.C. § 1332(a) because the amount in controversy exceeded $75,000 and the parties were citizens of different states.

The Cleeks moved to remand the case to state court. They argued that the parties were not completely diverse because Ameristar, a limited liability company, was organized under Missouri law, and therefore, was a citizen of Missouri. Because the Cleeks are Missouri citizens, they claimed the court lacked jurisdiction over the dispute. The district court denied the motion, finding that complete diversity existed because Ameristar is a citizen of the State of Nevada. The district court applied GMAC Comm. Credit LLC v. Dillard Dept. Stores, Inc. , 357 F.3d 827, 829 (8th Cir. 2004), which held that courts look to the citizenship of each member of an LLC to determine its citizenship for purposes of diversity jurisdiction. The district court found that Ameristar's sole member, Boyd TCIV, LLC ("Boyd"), was itself a limited liability company. As a result, the district court considered the citizenship of Boyd's members and found its sole member is Boyd Gaming Corporation ("BGC"). The court found that BGC is incorporated in Nevada and has its principal place of business in Nevada, making it a Nevada citizen for purposes of diversity jurisdiction. In turn, the court concluded that BGC's Nevada citizenship passed through to Boyd, and ultimately, to Ameristar.

Following discovery, Ameristar filed a motion for summary judgment. Ameristar argued that Missouri courts have adopted the so-called "Massachusetts Rule" of premises liability. Ameristar conceded that it had done nothing to treat the accumulation of ice on the walkway where Mr. Cleek fell, but because the storm affected the greater Kansas City area, it argued

47 F.4th 634

that it owed no duty to remove the ice under the Massachusetts Rule. The Cleeks opposed Ameristar's motion, arguing that the record supported application of one or more exceptions to the Massachusetts Rule. The district court concluded that the undisputed material facts established that Ameristar owed no duty under the Massachusetts Rule, that the Cleeks failed to establish that any exception was applicable, and that Ameristar was entitled to judgment as a matter of law.

II. Analysis

On appeal, the Cleeks argue that the district court's judgment must be reversed for two reasons. First, they argue that the district court erred in concluding that it had subject-matter jurisdiction because Ameristar and the Cleeks are both citizens of Missouri. Second, they argue that the district court erred in concluding that Ameristar owed no duty to remove or treat the ice that accumulated on the walkway where Mr. Cleek fell because a reasonable jury could conclude that Ameristar had assumed such a duty through its course of conduct or through an implied contract with Mr. Cleek. We find no error in either decision of the...