Schulman v. Saloon Beverage, Inc.
| Decision Date | 14 January 2014 |
| Docket Number | Civil Action No. 2:13–cv–193. |
| Citation | 991 F.Supp.2d 501 |
| Court | U.S. District Court — District of Vermont |
| Parties | Norman H. SCHULMAN, M.D., Susan Schulman, Plaintiffs, v. SALOON BEVERAGE, INC. d/b/a Sirloin Saloon, DWH I, LLC, Susan Schulze–Claasen, Defendants. |
OPINION TEXT STARTS HERE
Michael J. Regan, Esq., Burlington, VT, for Plaintiffs.
Barbara E. Cory, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT, for Defendants.
On July 3, 2013, Plaintiffs Norman H. Schulman, M.D. and Susan Schulman filed this action against the above-captioned Defendants under Vermont's Dram Shop Act (DSA), 7 V.S.A. § 501, and Vermont common law theories, alleging that Defendants' sale of intoxicating liquor to Mark R. Clarke caused the February 18, 2011 collision between the vehicle that Mr. Clarke was operating and the Plaintiffs' vehicle. (Docs. 1, 13.) 1 Plaintiffs allege that they were severely injured in the head-on collision and seek damages in the amount of $1 million, plus an award of punitive damages as well as interest and costs. (Doc. 13 at 6, 11.)
Defendants have filed a Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c), asserting that Plaintiffs' DSA claim is barred by the two-year statute of limitations set forth at 7 V. S.A. § 501(d) and that Plaintiffs' common-law claims are preempted by the DSA. (Doc. 15.) All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 2, 3, 7.) On January 8, 2014, the Court heard oral argument on the Motion. For the reasons that follow, Defendants' Rule 12(c) Motion is GRANTED IN PART and DENIED IN PART.
Plaintiffs allege the following facts in their Amended Complaint. Throughout the day on February 18, 2011, Mark R. Clarke consumed alcohol while on a ski trip with friends at the Sugarbush Ski Resort. He consumed alcohol while on the ski lifts, and at the conclusion of skiing, he consumed alcohol at a saloon at the base of the ski resort and in the resort parking lot. He consumed at least one margarita and one more beer at a Mexican restaurant before beginning his trip back to Connecticut. On his way to Connecticut, Mr. Clarke stopped at the Sirloin Saloon in Manchester, Vermont. He sat at the bar alone, where he ate and drank three or four more beers. In the hours leading up to the time he entered the Sirloin Saloon, Mr. Clarke had consumed in excess of 20 beers and at least one margarita.
Mr. Clarke left the Sirloin Saloon, entered his vehicle, and continued driving south on U.S. Route 7. After traveling for less than ten miles, Mr. Clarke fell asleep behind the wheel of his vehicle, which, while traveling at approximately 55 miles per hour, moved into the northbound lane and collided head-on with Plaintiffs' vehicle. The collision occurred between 9 and 10 p.m. in the town of Sunderland, Vermont. Plaintiff Susan Schulman was operating the Plaintiffs' northbound vehicle, and her husband Norman Schulman was the passenger. Both Plaintiffs were severely injured as a result of the collision. Both Plaintiffs are citizens of New York.
At all relevant times, Defendants DWH I, LLC (“DWH”) and Saloon Beverage, Inc. (Saloon Beverage) conducted business as Sirloin Saloon. DWH was an Idaho limited liability company that owned 100% of the stock of Saloon Beverage. DWH created Saloon Beverage—a Vermont corporation—in order to procure a Vermont liquor license. Defendant Susan Schulze–Claasen, a California resident, was the President and sole owner of both DWH and Saloon Beverage, which she administered and operated as one company.
On April 21, 2011, Saloon Beverage and DWH both filed voluntary petitions under Chapter 11 in the United States Bankruptcy Court, District of Idaho. The petitions were converted to Chapter 7 on April 11, 2012. In September 2012, the Bankruptcy Court issued Orders granting Plaintiffs relief from the automatic stay imposed by 11 U.S.C. § 362(a) to commence action against Saloon Beverage and DWH. On February 8, 2013, Plaintiffs commenced an action in the New York State Supreme Court based upon the same operative facts that form the basis of the present action. ( See Doc. 20–2.) On June 17, 2013, the New York State Supreme Court dismissed the action based upon the lack of personal jurisdiction over the defendants. In June 2013, the Bankruptcy Court issued Orders closing the bankruptcy cases of Saloon Beverage and DWH. As noted above, Plaintiffs filed the present action in this Court on July 3, 2013.
Defendants have moved to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Rule 12(c) provides that “[a]fter the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.” Fed.R.Civ.P. 12(c). The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006). Accordingly, the Court accepts Plaintiffs' factual allegations as true and draws all inferences in their favor. Id. However, a claim will be dismissed where it fails to set forth sufficient facts to state a claim for relief that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Where the facts on the face of a complaint and related documents are sufficiently clear, resolution of a statute-of-limitations issue is appropriate on a motion to dismiss. LC Capital Partners, LP v. Frontier Ins. Grp., Inc., 318 F.3d 148, 157 (2d Cir.2003).
Because this is a diversity action, the Vermont Dram Shop Act provides the governing law. Mercier v. Peterson, No. 2:95–CV–285, 1996 WL 192921, at *2 & n. 1 (D.Vt. Jan. 9, 1996) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The DSA provides, in pertinent part:
[A] person who is injured ... by an intoxicated person, or in consequence of the intoxication of any person, shall have a right of action ... against any person or persons who have caused in whole or in part such intoxication by selling or furnishing intoxicating liquor: ...
(2) to a person apparently under the influence of intoxicating liquor; ... [or]
(4) to a person whom it would be reasonable to expect would be under the influence of intoxicating liquor as a result of the amount of liquor served by the defendant to that person.
7 V.S.A. § 501(a)(2), (4). Section 501(d) of the DSA states:
Two other Vermont statutes concerning limitation of actions are implicated in this case. Section 558(a)(2) is one of several tolling provisions that appear in chapter 23 of Title 12, and provides as follows:
The plaintiff may commence a new action for the same cause within one year after the determination of the original action, when the original action has been commenced within the time limited by any statute of this state, and the action has been determined for any of the following reasons: ...
(2) Where the action is dismissed for lack of jurisdiction of the subject matter or person, improper venue, or failure to join an indispensable party....
12 V.S.A. § 558(a). Section 464 of Title 12 states: “The provisions of this chapter [chapter 23] shall not affect an action otherwise specially limited by law.”
In their Amended Complaint, Plaintiffs specify four causes of action: (1) violation of Vermont's Dram Shop Act, 7 V.S.A. § 501; (2) negligence; (3) negligent hiring or supervision; and (4) gross negligence. ( See Doc. 13 at 8–11.) Defendants assert that Plaintiffs' negligence claims are preempted by the DSA. (Doc. 15 at 5.) In their Opposition, Plaintiffs assert that Defendants' Motion “should be denied in its entirety” (Doc. 20 at 6), but at oral argument on January 8, 2014 they conceded that the DSA preempts the common-law claims. See Rodrigue v. VALCO Enters., Inc., 169 Vt. 539, 542, 726 A.2d 61, 64 (1999) (mem.) ( that the DSA “provides the exclusive remedy for cases falling within its scope, and preempts a cause of action in common law negligence.”) (internal quotation marks omitted). All of Plaintiffs' common-law claims are therefore preempted and are DISMISSED.
Plaintiffs filed this case on July 3, 2013—more than two years after the February 18, 2011 collision. Plaintiffs advance three arguments as to why their claim is not barred under the DSA's two-year statute of limitations. First, they suggest that their cause of action accrued on or after July 3, 2011—or at least that it is impossible at present to conclude otherwise. Second, they argue that the statute of limitations was tolled under 12 V.S.A. § 558. Finally, they assert that they are entitled to equitable tolling.
In Vermont, the discovery rule applies to the limitations period under the DSA. Pike v. Chuck's Willoughby Pub, Inc., 2006 VT 54, ¶ 17, 180 Vt. 25, 904 A.2d 1133, 1138. Thus an action under the DSA does not accrue until the plaintiff discovered or should have discovered both the injury and its cause. Id. ¶ 14. Here, Plaintiffs concede that they knew of their injury on the date of the collision, but assert that there are insufficient factual allegations in their Amended Complaint to establish when they learned the identity of the driver who caused the collision, or when they learned that driver had been drinking at Defendants' establishment. Defendants, however, assert that the Court may take judicial notice of Plaintiffs' submissions in other courts, and that those filings establish that Plaintiffs knew that Mr. Clarke had consumed alcohol at Defendants' establishment by mid-July...
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