« Courts - Gay marriage in Utah not stayed; Ohio federal judge says that state's ban is unconstitutional | Main | Ind. Decisions - "Judge rules against Notre Dame in health care suit" »

Monday, December 23, 2013

Ind. Decisions - Spierers' lawsuit survives motion to dismiss hurdle

In a 24-page order today, federal Judge Tanya Walton Pratt has denied a motion to dismiss, concluding:

A motion to dismiss pursuant to Rule 12(b)(6) does not test whether the plaintiff will prevail on the merits but instead whether the claimant has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). For the foregoing reasons, the Court finds the Spierers’ claims of negligence per se and Dram Shop liability have survived the initial hurdle of a motion to dismiss. Whether or not these claims can survive summary judgment is a matter for another day. Accordingly, the Court GRANTS Rossman’s and Rosenbaum’s motions to dismiss Count I of the Spierers’ Complaint for common law negligence brought under the Child Wrongful Death Statute and for common law loss of a child’s service. The Court DENIES Rossman’s and Rosenbaum’s motions to dismiss on Counts II and III of the Spierers’ Complaint for negligence per se and Dram Shop liability.
As described in the introduction to the opinion:
In the early morning hours of June 3, 2011, Lauren Elizabeth Spierer (“Lauren”) disappeared from the streets of downtown Bloomington Indiana. Her parents, Robert Evan Spierer and Mary Charlene Spierer (“the Spierers”) brought this action alleging the negligent actions and omissions of the Defendants caused Lauren’s disappearance, injury and death. The Defendants Corey E. Rossman (“Rossman”), Jason Isaac Rosenbaum (“Rosenbaum”) and Michael B. Beth (“Beth”) each filed Motions to Dismiss (Dkts. 20, 22 and 24). All three motions were the subject of a hearing and oral argument held on Monday, December 2, 2013. Following oral argument, the Court issued a ruling from the bench granting the Motion to Dismiss filed by Beth, and took the motions filed by Rossman and Rosenbaum under advisement (Dkt. 36). The Court, having considered the parties’ arguments, now GRANTS in part and DENIES in part Rossman’s and Rosenbaum’s motions to dismiss.

Posted by Marcia Oddi on December 23, 2013 05:26 PM
Posted to Ind Fed D.Ct. Decisions