Hoff v. Elkhorn Bar, Case No. 1:08-cv-071.

• Citation: 613 F.Supp.2d 1146
• Decision Date: 12 May 2009
• Docket Number: Case No. 1:08-cv-071.
• Parties: Haley HOFF and Raquel Flaaen, as parent and natural Guardian of decedent Randall Hoff's Minor Children, Hanah Hoff and Hevyn Hoff, individually, Plaintiffs, v. The ELKHORN BAR and Ray Schmidt, Defendants.
• Court: U.S. District Court — District of North Dakota

613 F.Supp.2d 1146

Haley HOFF and Raquel Flaaen, as parent and natural Guardian of decedent Randall Hoff's Minor Children, Hanah Hoff and Hevyn Hoff, individually, Plaintiffs, v. The ELKHORN BAR and Ray Schmidt, Defendants.

Case No. 1:08-cv-071.

United States District Court, D. North Dakota, Southwestern Division.

May 12, 2009.

COPYRIGHT MATERIAL OMITTED

Timothy Q. Purdon, Vogel Law Firm, Bismarck, ND, H. Patrick Weir, Jr., Robert G. Manly, Vogel Law Firm, Moorhead, MN, for Plaintiffs.

Mitchell D. Armstrong, Smith Bakke Porsborg & Schweigert, Bismarck, ND, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

DANIEL L. HOVLAND, Chief Judge.

Before the Court is the Defendants' Motion for Judgment on the Pleadings filed on October 13, 2008. See Docket No. 16. The Plaintiffs filed a brief in opposition to the motion on November 17, 2008. See Docket No. 23. The Defendants filed a reply brief on November 26, 2008. See Docket No. 25. Oral argument was held on May 5, 2009, in Bismarck, North Dakota. Representing the Plaintiffs at the hearing was attorney Timothy Q. Purdon, and the Defendants were represented by Mitchell D. Armstrong. The Court grants in part and denies in part the Defendants' motion.

I. BACKGROUND

On the evening of February 5, 2007, the decedent, Randall Hoff, consumed a number of alcoholic beverages in the Elkhorn Bar in Richardton, North Dakota. Defendant Ray Schmidt is the owner and operator of the bar. Hoff became disruptive and was physically ejected from the bar, but he was allowed to re-enter after a short period of time. Upon his re-entry, Hoff was served additional alcoholic beverages. At approximately midnight, Hoff again became disruptive and was physically ejected from the bar a second time. The doors to the Elkhorn Bar were then locked to prevent him from re-entering.

Hoff was wearing a cloth jacket and jeans and the temperature outside was below zero. As Hoff was walking away from the bar, he slipped and fell, striking his head on the pavement. Hoff fell at a location north of the Elkhorn Bar and died as a result of the injuries sustained from the fall.

On July 28, 2008, plaintiff Haley Hoff, the natural child of Randall Hoff, and plaintiff Raquel Flaaen, as the parent and natural guardian of Randall Hoff's minor children, Hanah Hoff and Hevyn Hoff, individually, filed this action in federal district court. See Docket No. 1. In the Plaintiffs' second amended complaint, they allege a wrongful death claim and a claim pursuant to the Dram Shop Act, N.D.C.C. § 5-01-06.1. The Plaintiffs contend the Defendants knowingly sold and served alcoholic beverages to Randall Hoff after he was obviously intoxicated, and they ejected him from the Elkhorn Bar in a manner and under circumstances which were negligent.

Pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, the Defendants request judgment on the pleadings and a dismissal of the action in its entirety. The Defendants argue the Dram Shop Act does not apply to benefit the intoxicated person or the intoxicated person's relatives, and they had no legal duty to refrain from ejecting Randall Hoff.

II. DIVERSITY JURISDICTION

It is well-established that federal courts are courts of limited jurisdiction. Unlike state courts, federal courts have no "inherent" or "general" subject matter jurisdiction. Federal courts can only adjudicate those cases which the Constitution and Congress authorize them to adjudicate. Those types of cases generally involve diversity of citizenship (28 U.S.C. § 1332) or a federal question (28 U.S.C. § 1331). Pursuant to 28 U.S.C. § 1332, district courts have original jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $75,000 and the parties are citizens of different states.

The Plaintiffs contend the Court has jurisdiction to hear the matter pursuant to 28 U.S.C. § 1332. The Plaintiffs seek relief in excess of $75,000. Plaintiff Haley Hoff is a resident of Kenai, Alaska. Plaintiff Raquel Flaaen is a resident of Kenai, Alaska, and is the mother and natural guardian of decedent Randall Hoff's minor children, Hanah Hoff and Hevyn Hoff. Defendant Elkhorn Bar is a business located in Richardton, North Dakota, and is owned by defendant Ray Schmidt, a resident of Richardton, North Dakota.

The Court finds that it has jurisdiction to hear the action pursuant to 28 U.S.C. § 1332. The Court will apply the substantive law of North Dakota. Paracelsus Healthcare Corp. v. Philips Med. Sys., 384 F.3d 492, 495 (8th Cir.2004). In the absence of controlling North Dakota law, the Court is obligated to predict what North Dakota law is based upon "`relevant state precedent, analogous decisions, considered dicta, ... and any other reliable data.'" Bockelman v. MCI Worldcom, Inc., 403 F.3d 528, 531 (8th Cir.2005) (quoting Bass v. Gen. Motors Corp., 150 F.3d 842, 846-47 (8th Cir.1998)).

III. STANDARD OF REVIEW

Rule 12(c) of the Federal Rules of Civil Procedure establishes that "[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings." "Judgment on the pleadings is appropriate where no material issue of fact remains to be resolved and the movant is entitled to judgment as a matter of law." Faibisch v. Univ. of Minn., 304 F.3d 797, 803 (8th Cir.2002) (citing United States v. Any & All Radio Station Transmission Equip., 207 F.3d 458, 462 (8th Cir.2000)). When presented with a motion for judgment on the pleadings, a district court must "accept as true all factual allegations set out in the complaint" and "construe the complaint in the light most favorable to the plaintiff[s], drawing all inferences in [their] favor." Ashley County, Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.2009) (quoting Wishnatsky v. Rovner, 433 F.3d 608, 610 (8th Cir.2006)). The standard for judgment on the pleadings is the same as that for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Ashley County, Ark., 552 F.3d at 665. "When considering a motion for judgment on the pleadings (or a motion to dismiss under Fed.R.Civ.P. 12(b)(6)), the court generally must ignore materials outside the pleadings, but it may consider `some materials that are part of the public record or do not contradict the complaint,' as well as materials that are `necessarily embraced by the pleadings.'" Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.1999) (quoting Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir.1999); Piper Jaffray Companies, Inc. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 967 F.Supp. 1148, 1152 (D.Minn.1997)).

IV. LEGAL DISCUSSION

A. DRAM SHOP LAW

Dram shop laws are sui generis. Hurt v. Freeland, 589 N.W.2d 551, 555 (N.D.1999). In establishing dram shop laws, the North Dakota Legislative Assembly intended to create a new type of liability for the wrongful sale of alcohol. Zueger v. Carlson, 542 N.W.2d 92, 95 (N.D.1996). "`The liability created by the Civil Damage Act¹ has no relation to any common law liability, or to any theory of tort. It was the intention of the legislature to create liability in a class of cases where there was no liability under the common law.'" Id. (quoting Aanenson v. Bastien, 438 N.W.2d 151, 153 (N.D.1989)).

Under Sections 5-01-06.1 and 5-01-09 of the North Dakota Century Code, North Dakota established a statutory duty for persons providing alcohol to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person. N.D.C.C. § 5-01-06.1 provides:

Every spouse, child, parent, guardian, employer, or other person who is injured by any obviously intoxicated person has a claim for relief for fault under section 32-03.2-02² against any person who knowingly disposes, sells, barters, or gives away alcoholic beverages to a person under twenty-one years of age, an incompetent, or an obviously intoxicated person, and if death ensues, the survivors of the decedent are entitled to damages defined in section 32-21-02. No claim for relief pursuant to this section may be had on behalf of the intoxicated person nor on behalf of the intoxicated person's estate or personal representatives, nor may a claim for relief be had on behalf of an adult passenger in an automobile driven by an intoxicated person or on behalf of the passenger's estate or personal representatives.

N.D.C.C. § 5-01-09(1) provides:

Any individual knowingly delivering alcoholic beverages to an individual under twenty-one years of age, except as allowed under section 5-02-06, or to a habitual drunkard, an incompetent, or an obviously intoxicated individual is guilty of a class A misdemeanor, subject to sections 5-01-08, 5-01-08.1, and 5-01-08.2.

The primary goal in construing a statute is to ascertain legislative intent. Hoffman v. North Dakota Workers Comp. Bureau, 651 N.W.2d 601, 608 (N.D.2002). In ascertaining legislative intent, the court must look to the plain language of the statute and give each word its ordinary meaning. State ex rel. Clayburgh v. Am. West Cmty. Promotions, Inc., 645 N.W.2d 196, 205 (N.D.2002). "Although courts may resort to extrinsic aids to interpret a statute if it is ambiguous," the court should "look first to the statutory language, and if the language is clear and unambiguous, the legislative intent is presumed clear from the face of the statute." State v. Norman, 660 N.W.2d 549, 554 (N.D.2003) (quoting Overboe v. Farm Credit Services of Fargo, 623 N.W.2d 372, 375 (N.D.2001)).

As stated above, N.D.C.C. § 5-01-06.1 provides, in relevant part, "[e]very spouse, child, parent, guardian, employer, or other person who is injured by any obviously intoxicated person has a claim for relief ... against any person who knowingly disposes, sells, barters, or gives away alcoholic beverages to ... an obviously intoxicated person...." Chapter 5 of the North Dakota Century Code does not define the...