United States District Court, D. New Jersey
Scott P. Sigman, Esq., Law Offices of A. Charles Peruto, Jr., Philadelphia, PA, Attorney for Plaintiffs Illson Molla and Mimoza Molla.
Domenic B. Sanginiti, Esq., Cooper Levenson, Atlantic City, NJ, Attorney for Defendants Adamar of New Jersey, Inc., and, Adamar of N.J. in Liquidation, LLC.
Domenic B. Sanginiti, Esq., Russell L. Lichtenstein, Esq., Cooper Levenson, Atlantic City, NJ, Attorneys for Defendants Tropicana Entertainment Holdings, LLC; Tropicana Entertainment; and Tropicana Entertainment, Inc.
David W. Sufrin, Esq., Zucker, Steinberg, Sonstein, & Wixted, PA, Camden, NJ, Attorney for Defendant and Third-Party Plaintiff Dave, Willard.
Darren T. Hibbs, Esq., Law Office of Debra Hart, Mount Laurel, NJ, Attorney for Third-Party Defendant Plymouth Rock Management, Company of New Jersey.
JOROME B. SIMANDLE, District Judge.
This matter comes before the Court on the motion to dismiss filed by Defendant Tropicana Atlantic City Corp. d/b/a Tropicana Casino and Resort ("Tropicana Corp.") [Docket Item 32] and the unopposed motion for summary judgment filed by Third-Party Defendant High Point Preferred Insurance Company (improperly pled as Plymouth Rock Management Company of New Jersey) ("High Point") [Docket Item 42].
Plaintiff Illson Molla alleges that he was assaulted by security guards, including Defendant Dave Willard, while visiting Tropicana casino on November 5, 2009. He asserts tort claims and his wife, Plaintiff Mimoza Molla, asserts loss of consortium claims. Defendant Adamar of New Jersey, Inc., ("Adamar") owned Tropicana hotel and casino at the time that Molla visited. Adamar had filed for bankruptcy on April 29, 2009, before the alleged assault. Tropicana Corp. purchased the hotel and casino on March 8, 2010, after the alleged assault. Tropicana Corp.'s motion to dismiss will be granted because Tropicana Corp. purchased the hotel and casino after the assault, and the purchase was free and clear of all claims, interests, and encumbrances.
Defendant Dave Willard filed a Third-Party Complaint against High Point alleging that High Point must represent him in this lawsuit and indemnify him pursuant to his homeowner's insurance policy. High Point seeks summary judgment arguing that Willard's homeowner's insurance policy excluded liability for business or workplace conduct. The Court will grant Plymouth Rock's motion because Willard's altercation with Mr. Molla occurred during Willard's employment as a casino security guard, and the business exclusion in the insurance policy was clear, specific, and prominent.
On November 5, 2009, Plaintiffs visited Tropicana Casino and Entertainment Resort. (Am. Compl. ¶ 7.) Mr. Molla alleges that casino employees, including Defendant Dave Willard, grabbed him from behind, threw him to the ground, struck him in the face, handcuffed him, and unlawfully detained him in a holding cell. (Am. Compl. ¶ 7.) Mr. Molla alleges that he suffered severe and permanent injuries. (Am. Compl. ¶ 8.)
Plaintiffs filed this action on November 4, 2011. They asserted diversity jurisdiction under 28 U.S.C. § 1332. Mr. Molla asserts tort claims, including assault, battery, and negligent hiring, training, and retention. (Id. ¶ 22.) Mrs. Molla asserts loss of consortium claims. (Id. ¶ 42.)
Defendant Willard filed a Third-Party Complaint [Docket Item 10] against Third-Party Defendant High Point seeking declaratory judgment that High Point must indemnify Willard pursuant to his homeowner's insurance policy and asserting claims for breach of contract, breach of fiduciary duty, and breach of the obligation of good faith and fair dealing.
III. MOTION TO DISMISS
A. Factual Bankground: Adamar's Bankruptcy Proceedings
Adamar of New Jersey, Inc., ("Adamar") f/k/a Tropicana Casino and Resort filed for Chapter 11 bankruptcy on April 29, 2009.
The Bankruptcy Court issued an order on November 4, 2009 approving the sale of the debtors' assets "free and clear of all Encumbrances, claims and interests" pursuant to 11 U.S.C. § 363(f). (Def. Mot. Dismiss Ex. B at 24 ¶ Q.) The November 4, 2009 order noted that "[a]s a condition to the purchase.. [purchasers]... require that the Debtors' Acquired Assets and the Reorganized Tropicana Stock be sold free and clear of all Encumbrances, claims and interests, except ...