Tolbert-Boyd v. MGM Nat'l Harbor, LLC, Civil Action No. DKC 19-3020

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtDEBORAH K. CHASANOW United States District Judge
PartiesTHERESA TOLBERT-BOYD, Individually and as Personal Representative of the Estate of Donald Franice Boyd v. MGM NATIONAL HARBOR, LLC, et al.
Docket NumberCivil Action No. DKC 19-3020
Decision Date17 August 2020

Individually and as Personal Representative of the Estate of Donald Franice Boyd

Civil Action No. DKC 19-3020


August 17, 2020


Presently pending and ready for resolution in this wrongful death and survival action is the motion to dismiss filed by Defendants MGM National Harbor, LLC ("MGM") and National Harbor Grand, LLC ("National Harbor Grand") (collectively, "Defendants"). (ECF No. 14). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion to dismiss will be granted in part and denied in part.

I. Background

Unless otherwise noted, the facts outlined here are set forth in the amended complaint and construed in the light most favorable to Plaintiff.

In April 2013, shortly after Maryland legalized table games in casinos, Defendants MGM and National Harbor Grand entered a hotel and casino ground lease together. (ECF No. 12, ¶ 7). The

Page 2

lease outlined that MGM would open and operate the hotel and casino on the premises which would be owned by National Harbor Grand. (Id., ¶ 8). It was not until the fall of 2016 that the MGM National Harbor, including a 125,000 square foot casino and 24-story hotel, was open to the public. (Id., ¶ 9). Both Defendants owned, operated, controlled and maintained the premises on July 9, 2017, the day in question. (Id., ¶¶ 10-11). The resort was equipped with multiple security cameras that produce live feeds which run and are monitored by staff twenty-four hours a day, seven days a week. (Id., ¶¶ 12-13). Further, the staff on site were trained and certified in Cardiopulmonary Resuscitation ("CPR"). (Id., ¶ 20).

On July 9, 2017, Mr. Donald Franice Boyd ("Mr. Boyd" or "Decedent") visited the MGM National Harbor resort to patronize the casino. (ECF No. 12, ¶ 17). Around 10:30 p.m., Mr. Boyd went into cardiac arrest. (Id., ¶ 18). Mr. Boyd was left lying unattended on the floor of the casino's South Lounge as staff moved in to keep other patrons away. (Id., ¶ 22). At that time, staff did not provide resuscitative assistance to Mr. Boyd in the form of CPR or use an automated external defibrillator ("AED"). (Id., ¶ 23). Mr. Boyd remained unattended until 10:50 p.m., at which time law enforcement arrived, and an "Officer Proctor" made a call to the Prince George's County Public Safety Communication (911) at approximately 10:50:51 p.m. (Id., ¶¶ 25-

Page 3

26). In response to this call, emergency response personnel arrived on the scene at 10:58:53 p.m. and began resuscitative measures, including the use of an AED. (Id., ¶ 27). Mr. Boyd was eventually transported to INOVA Hospital in Alexandria, Virginia where he was diagnosed with an "anoxic brain injury." (Id., ¶ 31). He was subsequently transferred to Bridgepoint Hospital Capitol Hill in Washington, D.C., where he remained until his death on September 4, 2017. (Id., ¶ 31). His cause of death was "Respiratory Failure, Anoxic Brain Injury, Ventricular Fibrillation and Coronary Artery Disease." (Id., ¶ 32). In particular, Plaintiff credits the oxygen deprivation of the cardiac arrest as the ultimate cause of death. (Id., ¶ 28).

On August 29, 2019, Ms. Theresa Tolbert-Boyd, both individually and as personal representative of the estate of Decedent, filed her Complaint against Defendants in the Circuit Court for Prince George's County, Maryland. On October 16, 2019, Defendants removed the case to this court based on diversity jurisdiction. On October 25, 2019, Defendants filed a Motion to Dismiss. On November 8, 2019, Plaintiff filed her Amended Complaint, thus mooting the initial Motion to Dismiss.

The Amended Complaint asserts a wrongful death claim and a survival action and advances three theories of Defendants' negligence as the direct and proximate cause of Mr. Boyd's death. (Id., ¶ 35).

Page 4

On November 22, 2019, Defendants moved to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim and/or for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (ECF No. 14, at 2). On December 6, 2019, Ms. Tolbert-Boyd responded (ECF No. 15), and Defendants replied on December 20, 2019 (ECF No. 16).

II. Standard of Review

A motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). As this court has previously stated, Fed.R.Civ.P. 12(c) does not provide an independent ground for dismissal but should be read in conjunction with other rules authorizing pretrial motions including Fed.R.Civ.P. 12(b). Geoghegan v. Grant, No. 10-11137-DKC, 2011 WL 673779, at *3 (Feb. 17, 2011) (citing 5C Wright & Miller, Federal Practice & Procedure § 1369 (3d.ed. 2010)). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation omitted). At this stage, a court must consider all well-pleaded allegations in a complaint as true, see Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe factual allegations in the light most favorable to the plaintiff, see Lambeth v. Bd. of Comm'rs of Davidson Cty.,

Page 5

407 F.3d 266, 268 (4th Cir. 2005). In evaluating the complaint, unsupported legal allegations need not be accepted. Revene v. Charles Cty. Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989). Legal conclusions couched as factual allegations are insufficient, Iqbal, 556 U.S. at 678 (2009), as are conclusory factual allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979); see also Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not 'show[n]' - 'that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). Thus, "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

III. Analysis

As surviving spouse to Decedent, Ms. Tolbert-Boyd brings a wrongful death action ("Count I") in her personal capacity, as well as a survival action as personal representative of his estate ("Count II"). The Maryland Wrongful Death Act expressly provides a potential remedy "for the benefit of the wife, husband, parent[,] and child" of the deceased person. Md.Code Ann., Cts. & Jud. Proc. § 3-904(a)(1) (emphasis added); see also

Page 6

Spangler v. McQuitty, 449 Md. 33, 53-54 (2016). Under the Maryland survivorship statute, the personal representative of a decedent's estate may bring "a personal action which the decedent might have commenced or prosecuted . . . against a tortfeasor for a wrong which resulted in the death of the decedent." Beynon v. Montgomery Cablevision Ltd. P'ship, 351 Md. 460 (1998); Md.Code Ann., Cts. & Jud. Proc. § 6-401. Wrongful death and survivor actions form distinct claims, but, in arising from the same set of facts and from the same theories of negligence on behalf of the Defendants, they will be analyzed together. See Munger v. United States, 116 F.Supp.2d 672, 676 (D.Md. 2000) (discussing that while wrongful death actions and survival actions are distinct claims in Maryland, they arise from the same facts with the same witnesses under the same standards of law).

As the basis for both counts, Ms. Tolbert-Boyd asserts three theories of Defendants' alleged negligence which she argues caused her late husband's death, i.e. that Defendants: (1) failed to provide CPR despite being licensed in these measures, (2) failed to have an AED or portable defibrillation equipment on site, and (3) did not summon emergency medical personnel until approximately 20 minutes after Mr. Boyd experienced cardiac arrest. (ECF No. 12, ¶ 35). In turn, Defendants argue that: "(1) Defendants did not owe [Decedent] a

Page 7

legal duty to administer resuscitative assistance, (2) Defendants did not owe [Decedent] a legal duty to have an on-site AED or portable defibrillation equipment, and (3) the Amended Complaint contains insufficient factual allegations to support the conclusory assertion that Defendants failed to summon emergency personnel in a timely manner." (ECF No. 14-1, at 3). As will be discussed, the Amended Complaint fails to state a claim for negligence against Defendants based on a specific duty to provide on-site resuscitative equipment and resuscitative measures, neither of which Maryland law recognizes, but survives dismissal in alleging sufficient facts to establish a breach of their general duty to care for Decedent as a business invitee, and to establish this breach as the proximate cause of his death.

To prove negligence under Maryland law, a plaintiff must show: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty."...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT