PHILADELPHIA – Marina District Development Company has said that a settlement is in the making for a woman who slipped on the floor of the Borgata casino in Atlantic City, N.J. and argued that the facility’s negligence caused the incident.
Donnetta Holmes of Philadelphia first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Feb. 17, 2021 versus MGM Resorts International.
According to the complaint, Holmes was dining at the buffet in February 2019 when she slipped on an unattended buttery surface on the floor. The suit added that the restaurant’s management failed to warn diners of the slip hazard.
Holmes filed one count of premises liability negligence against the hospitality company, alleging MGM picked an improper flooring type for the premises and the probability of slip hazards, failed to monitor the floor for slip hazards and failed to place cautionary signs warning of the danger to diners like Holmes.
After MGM Resorts International was dismissed from the suit (as it was not the owner of the property) and Marina Development Company, LLC was substituted as a defendant in an amended version filed on Aug. 6 of last year – the defendant filed a motion on Jan. 18 to dismiss the case for improper venue or alternatively, transfer it to the U.S. District Court for the District of New Jersey’s Camden Vicinage.
The defendant’s rationale for this was that the fall took place in a casino located in New Jersey and the named defendant is also based there – while, in its view, there was no connection to a Pennsylvania court outside of the fact that the plaintiff is based in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania Judge Juan R. Sanchez denied the defendant’s motion in an order issued May 17, and gave the defendant 21 days to answer the amended complaint.
“The instant motion is Marina District Development Company’s first Rule 12 motion. The only defense raised in the motion and accompanying brief is improper venue. The arguments for improper venue do not discuss personal jurisdiction, either as a separate defense or as the basis for venue being improper under Section 1391(c)(2). Marina District Development Company merely argues venue is improper because it is a resident of New Jersey,” Sanchez said.
“It is possible, however, that a business entity defendant can be a resident of multiple states for purposes of a venue analysis – simply put, being a resident of New Jersey does not mean Marina District Development Company is not also a resident of Pennsylvania. Marina District Development Company’s waiver constitutes consent to personal jurisdiction and therefore, this district is a proper venue for this action and dismissal under Rule 12(b)(3) would be improper.”
Sanchez added that after extensive review of the private and public factors mandated by Section 1404(a) and explained in Jumara, he found that transfer was “not warranted.”
“Holmes’s choice of venue in this district ‘should not be lightly disturbed,’ and Marina District Development Company has not met its burden for establishing the need for transfer. The motion to transfer is therefore denied,” Sanchez concluded.
Per judicial order, Marina District Development Company answered the amended complaint on June 7, denying the plaintiff’s allegations and countering that her own negligence was at fault in this matter.
“If this answering defendant is found to be negligent, which negligence is specifically denied, it is asserted that plaintiff’s negligence was greater than the negligence of the answering defendant and accordingly, plaintiff is barred from recovery. If the answering defendant is found to be negligent, which negligence is specifically denied, it is asserted that plaintiff’s negligence was equal to or less than that of the answering defendant and accordingly, plaintiff’s damages are mitigated,” the answer stated, in part.
“Defendant pleads the Comparative Negligence Act of the Commonwealth of Pennsylvania. The answering defendant in no way breached any duty owed to the plaintiff. The accident and injuries, if any, resulting therefrom, were caused by and through the sole and/or contributory negligence of the plaintiff. The accident, injuries and damages, if any, resulting therefrom, were caused by and arose out of risks of which the plaintiff had full knowledge and assumed. The answering defendant was in no way negligent.”
The answering defendant added that it performed each and every duty owed to the plaintiff, that the complaint failed to state a claim upon which relief can be granted, that it is barred by the applicable statute of limitations, by the doctrine of laches and barred as a result of plaintiff’s own actions and/or inactions.
UPDATE
Defense counsel authored a letter sent to the Court on Aug. 30, explaining that a settlement in the case had been reached.
“I am pleased to advise you that plaintiff’s counsel and I have been able to resolve this matter. At this time, I would ask that the Court enter a 60-day order to provide counsel with sufficient time to complete the documentation of the settlement. Thank you for your attention to this matter,” the letter from defense counsel Joseph D. Deal stated.
For a lone count of negligence, the plaintiff is seeking compensatory damages in excess of $75,000, plus interest, costs and such further relief as the Honorable Court deems just.
The plaintiff is represented by Tobias Hamal Brown of Brown & Associates, in Philadelphia.
The defendant is represented by Joseph D. Deal of Cooper Levenson, in Atlantic City, N.J.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-00722
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com