Changing Dealers? MGM Resorts Sues The Victims In The Mandalay Bay Massacre

220px-The_ScreamMGM Resorts International has gone to an extraordinary point to forum shop for more sympathetic judges: it is actually suing the victims of last year’s Las Vegas concert mass shooting.  The move has outraged many as MGM shamelessly sues grieving families and individuals to get before the more conservative federal bench. It is a move that is a stark reminder of how corporations openly forum shop for judges as well as the view of the federal bench as being more sympathetic to corporate defendants.  What is all the more unsettling is that MGM and Mandalay Bay could well succeed.

MGM Resorts International is trying to get federal judges in Nevada and California to take the cases away from state courts in resolving the more than 1000 shooting victim claims.  It is arguing that all such claims must be dismissed and that “Plaintiffs have no liability of any kind to defendants.”

MGM’s spokeswoman made only a feeble effort to deny forum shopping: “The Federal Court is an appropriate venue for these cases and provides those affected with the opportunity for a timely resolution. Years of drawn out litigation and hearings are not in the best interest of victims, the community and those still healing.”

The federal bench has a high number of former prosecutors and former law firm partners (often from corporate defense firms). The result is that it is viewed as generally more conservative and sympathetic to corporate defendants.  This move however is so blatant that it should make the most sympathetic jurist blush.  In that sense, it could backfire with some judges who, while accepting the transfer, may be sensitive about being shopped.

There is obviously grounds for legitimate negligence claims against MGM and Mandalay Bay that should go to a jury.  In their filings, the victims allege that Stephen Paddock’s huge arsenal of weapons should have been detected and that the hotel did not respond properly.  I believe that the hotel has equally legitimate defenses.  There is a limit in how much a hotel can do when guests secretly bring weapons in their luggage.  The fact is that Paddock could have brought in the weapons in smaller amounts rather than large bags with the help of hotel staff.  Moreover, it is hard to see how the hotel is responsible for a madman shooting randomly at people below the hotel.  As a juror, therefore, I would start with some skepticism. However, these are facts not legal questions that are properly left to the fact finder in either a jury or bench trial.

The question is the court and MGM resort has decided to take an extremely unpopular tactical move to get to what it clearly expects to be a more sympathetic court.  For a casino used to playing the odds (and the house), the federal courts are clearly viewed as a better bet.

45 thoughts on “Changing Dealers? MGM Resorts Sues The Victims In The Mandalay Bay Massacre”

  1. How many of the plaintiffs against the hotel left the safety of their rooms, the inside of the hotels where armed security guards could see about providing protection and went running hysterically into the streets …. adding to a target rich environment? Check the video tapes to identify who was running the wrong way.. When people are determined to commit suicide or worse trying to edge closer for TV time they are on their own. Once they left the safe areas they were completely at fault.

    As for baggage check in we already got TSA and their 70% failure rate……So check the baggage. It isn’t hard. I would come in through the staff or service doors with a stolen badge anyway and if I wasn”t suicidal map out an escape route.

    People go their to gamble. Well well well so now they want to sue because they only came close to losing the bet?

  2. I too, agree that this is merely good lawyering. While the optics may be bad, the gambit is worth a shot when weighed against MGM’s exposure in hundreds of state court lawsuits. They always say that a jury trial is a roll of the dice; that’s a game that MGM would prefer to just take their rake from–not to play.

  3. In a civil suit for damages the most important aspect is the panel of jurors one might get. Sometimes a federal panel is more conservative because it is wide based including rural areas whereas a circuit court jury panel in a city might be more disposed in favor of a plaintiff. Judges differ. Some places have more liberal federal judges than do the state circuit courts. In St. Louis City one would prefer a state judge and certainly a city jury. But one county to the outskirts, called St. Louis County, one may get a more conservative judge and a more conservative jury than the result in the Eastern District of Missouri. I had a products case where the secretarial chair was made by an out of state company. The plaintiff lived in St. Louis County. But the chair was sold by a bookstore located in the City of St. Louis. We sued the bookstore and the manufacturer in the City and won a fight to remove it to federal court. The case settled for a lot of money to the guy who was back broken by the bad chair. Federal court though would have been better than that suburban county next door in state court.

  4. It’s also interesting that MGM isn’t concerned about public reaction. They’ve undoubtedly factored that in, and decided that any bad publicity and loss of business is a risk worth taking.

    1. TIN,…..
      -I was just about to comment on the bad PR aspect of this when I saw that you beat me to it.
      My only other comment is that the painting accompanying the column looks like one of many “street people” to be found on The Strip.

  5. Don’t be too fast to accuse MGM of forum shopping. True, federal judges are more likely than state court judges to dismiss a case, however, these cases will probably be decided by juries, not judges. So, filing a lawsuit on the chance that a randomly selected federal judge will rule favorably in your case is a risky business, especially when your business is located in the 9th Circuit.

    There are legitimate legal, practical, and logistical reasons for MGM’s lawsuit. Plaintiffs can sue MGM wherever MGM is located, that is, throughout the country. This leads to multiple lawsuits, expensive litigation, and a drain on judicial resources. All of these cases should logically be tried together, one time, and MGM’s lawsuit does just that. Moreover, principles of issue and claim preclusion work against defendants in mass tort cases. If one plaintiff prevails against MGM, subsequent plaintiffs can use that plaintiff’s success against MGM in subsequent lawsuits. However, this is a one way street. If MGM prevails on one case, it cannot use that success to preclude a judgment by another plaintiff in a subsequent lawsuit.

    In addition, as I read the available literature, the MGM lawsuit simply asks the court to rule that a lawsuit against MGM is barred by some federal statute. If MGM loses on this point, a point that should be decided by a federal court, they will know a weakness in their defenses early in the litigation and will facilitate settlement. If MGM wins the point, there will be no lawsuits against MGM. In either case, the litigation proceeds more efficiently than if numerous judges and juries are deciding the same issues and possibly reaching contradictory results.

    So, MGM’s legal maneuvering may be pretty smart. If successful, it will consolidate all claims in one forum. There will be one decision, up or down, assuming the case is not settled. There will be a limit to litigation expenses and judicial resources will not be unnecessarily stretched.

    Maybe MGM is forum shopping, but maybe not. Maybe it is just good, solid lawyering.

    1. Vince:
      Forum shopping is “good solid lawyering”; it’s just borderline unethical. BTW lots more 12(b)(6) motions denied in state court than in federal court where torts cases are an anathema.

      1. I must respectfully disagree. Although by absolute numbers state courts summarily dismiss more lawsuits that do federal courts, that is a function of there being many more state court lawsuits filed. The percentage of federal lawsuits dismissed on motion is much higher than in state courts. This makes sense in Rule 12(b)(6) motions because federal courts are courts of limited jurisdiction. However, it is also true that federal judges are more likely to grant summary judgment than are state court judges which, I agree, may point to forum shopping, but barring a dismissal on the grounds that the federal statute bars the lawsuits, this will not be a summary judgment case. Each side will have an expert which will support their respective positions and the case will be submitted to the jury. So, I question whether this is forum shopping.

        If my analysis is correct, MGM is initially only seeking a ruling on whether the federal statute bars plaintiffs’ lawsuits. Since it is a federal statute, it should be decided by a federal court – nothing unethical or forum shopping there. If MGM loses the point, the cases will be efficiently consolidated for trial and, I suspect, MGM will be in a settlement posture. If there is no settlement, the case will be decided by a jury. It will not matter too much whether the judge is state or federal. I would not be too quick to call this forum shopping.

        1. The statute they raise vests exclusive jurisdiction in the federal court. Arguably a Declaratory relief action prevents multiple legal actions being initiated in the wrong court, with the associated costs of getting them moved/re-filed. However, in reading the statute it seems to be a pretty long stretch. It limits actions where anti-terrorism technology was deployed and the “seller” might be liable, and is clearly intended to encourage the development of new anti-terrorism technologies by limiting actions against the seller/developer when a terrorist act results in damage in spite of the technology. Arguing that it immunizes the buyer of the technology from all liability under any theory because it purchased such technology goes much further than a fair reading of the statute seems to allow. From the press coverage, they don’t seem to be arguing that they purchased such technology which would, if it worked as it was presented, have prevented the attack. That, at least, would tie it back to potential liability on the seller and therefore to the statute.

          1. I confess that I have neither the time nor the desire to analyze the statute. Thanks for your elucidation. It would appear that, if your analysis is correct, MGM’s lawsuit will be bounced out and with no other ground to remain in federal court they will be left with multiple lawsuits to defend in state courts. Back to the professor’s original point, if all of that is true, it was not forum shopping at all. Rather, it was where MGM had to go in order to get a ruling on their defense.

          2. Thanks, Richard. Like Vince Jankowski, Esq., I appreciate your research. Seems to me making this about terrorism, 9-11 style, is a stretch since we have no idea what his motive was when he engaged his victims.

  6. MGM had a management restructure….Firing CEO Gary Barber

    Now new MGM CEO James Murren says investors don’t care…So you don’t feel safe with MGM’s customers in the hospitality business?

  7. Aside from the staggering death toll, the Mandalay Bay massacre has half-a-dozen other odd features. No one seems to have a clue why he did it. He was an eccentric but had no history of violent, thieving, or even obtrusively disconcerting behavior. After it was over, the media dropped the story almost immediately, perhaps because it lacked some crucial element they could use to push their agendas.

    Mr. Spinnelli might chime in to educate us. Hotels have long employed house detectives and have security cameras everywhere. Just to the layman, it’s deeply troubling that someone transporting an arsenal can get past them in a place that must have an extensive and professional security operation.

    1. “Mr. Spinnelli might chime in to educate us.”

      That is hilarious! Especially given the rest of your paragraph:

      “Hotels have long employed house detectives and have security cameras everywhere … someone transporting an arsenal can get past them …”

      and you want an opinion from the horse’s mouth!

      You are the first in line now, SOT/DSS/NII/TSTD.

      1. “You are the first in line now, SOT/DSS/NII/TSTD.”

        Also “Around and Around We Go” — or something like that — and who knows how many other silly names.

        And guys like Spinelli are part of the problem.

    2. If there were any real oversight of our intelligence agencies, we might have the answer — but most Americans are clueless about some of the things that are taking place on U.S. soil.

    3. “Aside from the staggering death toll, the Mandalay Bay massacre has half-a-dozen other odd features. ”

      Probably more than that. Looking at some analyses of the siege video proves many. Don’t know if we’ll ever know what that was really about. ???

  8. Ive a vision of Keith Morrison interviewing someone from MGM, reading glasses in one hand, brow furrowed and mouth agape. “Whaa. The optics are terrible!”

  9. If MGM wasn’t worried about the claims they wouldn’t have taken this extraordinary step. They’ve planned this maneuver for months. I think having your hotel staff haul huge bags of heavy equipment up their own service elevator to a guest’s room might make a reasonable hotelier suspect something is afoot and impose a duty to inquire. It’s certainly a debatable issue before a jury and not to pawned off to some ex-prosecutor turned jurist who can impose his will by granting a motion to dismiss.

  10. ‘The hotel is not responsible for a madman bringing in an arsenal of weapons.’ However, somehow, sometime, somewhere, a madman obtained that arsenal. The lawsuit should target the sources and their controls. The lawsuit should target the stores, venues of sale, government agencies responsible for background checks, etc. This will not necessarily result in any compensation for the victims and victims’ families, but will establish the structure of responsibility. The performance of the control systems in place as well as the inadequacies of those control systems are partially to blame.

    The issue at hand is how to verify mental stability when addressing the right to bear arms. The NRA and the gun industry have historically advocated for little to no regulations, restraint, and restrictions which hamstrings any system that might reduce the carnage. Suing the hotel is nothing more than a legal exercise hoping for financial compensation via fat legal fees. The NRA and the gun industry would like nothing more than to be taken out of the crosshairs and have the blame laid elsewhere. The issue at hand here is how do crazy people obtain arsenals. Why doesn’t a red flag pop up when an individual is recorded owning more than one or two weapons? The issue at hand here is how do weapons of military demands get in the hands of any individual outside of the military. The answer is there is little or no regulation requiring red flags. There is nothing infringing the individual’s right to bear arms in verifying if that individual is crazy or not. There is nothing that infringes the individual’s right to bear arms in recording the results of that right and acting in the best interests of the right of life, liberty, and the pursuit of happiness of all.

    The second amendment, in spite of the perverse interpretation of the second half and the almost complete ignoring of the first half, would still represent this ‘sacred’ freedom if the people were limited to reasonable ‘arms’ and ammunition. The second amendment was created by the people through their representatives. The adapting of that right to this time in the history of the US should be carried out by the people through a plebiscite that sees a vote of every person on a national basis. The second amendment was created by the founders of the nation as a whole, not the states individually. At the time the second amendment was fashioned there was not the degree of near total oligarchy that exists today. Under our present oligarchy, the representatives are owned if not severely influenced by the NRA and the gun industry. Therefore the only conceivable way for this to represent the ‘people’ is for the ‘people’ to vote nationwide on a form of regulation that would certainly have some effect in reducing the carnage. The vehicles exist today to allow the people of the country to express their desires and demands almost immediately to the government. The more democratic and less oligarchical nations use this vehicle; why not the US, the so called cradle and defender of modern democracy, this republic, this land of freedoms for all.

    1. “The performance of the control systems in place as well as the inadequacies of those control systems are partially to blame.”

      **********************

      As a Canadian you probably don’t know that here in America, the government doesn’t “control” the citizenry’s rights to speak or to bear arms. The citizenry controls the government. “Control systems” are euphemisms authoritarians use to manipulate the weak to do their bidding. In the vernacular of the street, here in America, “Homey don’t play that game.” We fought a war or two to keep authoritarians at bay. We’re still up for the fight. See ISIS.

      1. As a person of dual nationality and common sense, it is increasingly apparent to me that your comments have little to no grounding in said common sense or for that matter anything coherently American, Canadian, British, French…..; perhaps some third world hardscrabble wanna be nation somewhere else, but not here.

      2. I’ll try one last time.

        ‘the government doesn’t “control” the citizenry’s rights to speak or to bear arms. The citizenry controls the government.’

        The government is the citizenry, the same citizenry that created the government created the citizenry’s rights to speak or to bear arms. The citizen controls the government which enforces upon the citizenry the desires/demands of the citizenry through said controls, etc….

        The government is an instrument of the citizenry. The vast majority of the citizenry demand stricter controls of those arms the citizenry demands a right to bear. Those stricter controls do not adversely affect the rights of the citizenry to bear arms. They may, however, reduce the carnage by restricting access by mentally deranged, or socially unacceptable persons. ”

        The foundation for any people is self preservation. That self preservation pertains to the unique ideologies and traits peculiar to a people as a work in progress. The rights to arm oneself is, at this moment, fixed. At one time property included people and slavery was therefore fixed. The greatest aspect of America is that it is and remains a ‘work in progress’, alive, and responsive to its faults as well as reveling in its achievements. Those that refer to a self serving perception of a sacred text without understanding this, are doomed to wear blinders as they trot down the road of this country’s, and indeed this world’s, history in the making. As an American and as well as as a Canadian, Canada having much the same desires/demands, I see those that take refuge in non sensical arguments firstly engaging but then, as with this case, frustrating.

        That you expound your freedom from the government that is, in essence, you, stands as your legacy to this encounter.

        1. “The government is the citizenry”
          ************
          Another civics-free statement. The government is the servant of the citizenry. They are not the same just like Amazon isn’t the same as Jeff Bezos. The government is bound by the wishes of the citizenry AND by the inalienable rights secured by the Constitution of which the individual right to keep and bears arms is just one — albeit the most important one since it secures the rest of them. You claim to be an American and a Canadian but judging by your comments your have no concept of the former but maybe in defense of the latter’s status, you can pull off a slap shot.

        2. “The government is the citizenry, the same citizenry that created the government created the citizenry’s rights to speak or to bear arms.”

          You are absolutely wrong. The right to free speech and to defend ones self exist without the govt. The govt. did not create something that is unalienable. This is the problem you just can’t deal with.

          1. Jimm22:

            That’s what I mean by “civics-free.” Ivan knows as much about political theory as an onion but the onion is more useful since its a constituent of french onion soup.

          2. You are correct, Jim. Foreigners do not get the concept that the government does not create rights. It acknowledges that the rights exist.

            1. FFS:

              Bingo! And you wonder why I vehemently oppose unvetted, uneducated, oppressed illegals from entering the US. All they know is government oppression.

              1. ‘Government oppression’ (aside from malfeasance by street-level police officers and tax inspectors) isn’t such a problem for Central Americans. The problem is an insufficiency of law and order manifest in two ways: street crime and poorly delineated and secured land titles.

          3. Jim22

            The right to free speech and to defend one’s self was created by the/a/the first government and has been interpreted and amended since its inception. The source of all this began with ‘the people’, ‘When a people….’. The government is there to protect the rights and serve the people. To go further away from the reality of the situation takes one into the realm of the religious, something that was designed to be prevented in those very first sacred documents.

            It was the government in the form of the Supreme Court that interpreted the 2nd amendment to be what it became under Scalia, a judge appointed by an elected official; an elected official that was chosen by the oligarchs that rule America. The people were given the choice between candidates chosen and owned by the oligarchs.

            The word inalienable is quasi religious. It infers a power greater than mankind. If you are into that then it is not an issue about whether or not one was born here or naturalized. It is an issue of religious perception. A ‘Good Catholic’ or a ‘Good Muslim’ believes what they believe subject to the authority of a supreme being. However, the supreme being was created by man and is always interpreted by man. The supreme schtick allows some men to have supreme authority, until people wise up. America was started as an exercise in people being the last word on stuff. The separation between religion and state makes that clear enough. However, if you are a religious type then ‘under god’ flips all this back to the religious mumbo jumbo sanctioned schtick. Yeah-But.

            One advantage that ‘foreigners’ as well as naturalized Americans who have had the advantage of seeing and experiencing the forest as well as the trees, unlike most ‘born in the USA’, enjoy, to the utter frustration of those ‘born in the USA’ is that very balance of perspectives which illustrates the intent of the founding fathers/government/who penned these inalienable rights, and the present iteration of all this. The boys that thought this up would be ashamed of what has transpired.

            One of the principle ingredients of this perversity is that very quasi religious adherence to this inalienable authority that seems to be interpreted to mean whatever suits whomever. The second amendment as well as the freedom of speech are prime examples. The ambiguity of the second amendment demands the interpretation of the government which is the product of an oligarchy. The people have little to no say. If the people had any say in the interpretation of the 2nd amendment-understand that there is no such thing as an absolute but only that which is perceived by a people at a specific time and under those circumstances, the right to bear arms would be substantially more regulated than it is now, not curtailed or indeed, simply governed by the people, the intent of those that crafted these inalienable rights. The vast majority of Americans have been calling for stricter restrictions on guns. The freedom of speech will always come into conflict with the protection of life, liberty, happiness, the pursuit of money, etc. etc.etc. One person’s freedom can sometimes be another’s demise. That is why the government interprets this sacred freedom.

            Perhaps the problem of perception lies not with these ‘foreigners’ but with those who have never really stepped back and viewed reality. Separate religion from reality.

            If all you have to retort is that this response comes from a Canadian, a foreigner, then you illustrate more clearly than I, what is wrong with this country.

            1. Isaac,

              You can blather all you want about religion (Which by the way, there is no “separation of church and state” in the constitution. All it says is there will be no established religion. This doesn’t mean people in public have to hide their religion, it means just the opposite. But that is another discussion).

              My retort is simply this: The final version of the Declaration of Independence declares: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” They use the words “unalienable rights”. These rights exist regardless of country or our existence, much like 1+1=2 (even if liberal govt. monopoly public education teaches that or not). Once you open your mind to this, the rest of the Bill of Rights makes sense.

              It is interesting that you feel the need to have a fallible human entity hand you your rights.

              1. Jim22

                ‘It is interesting that you feel the need to have a fallible human entity hand you your rights.’

                You illustrate a fundamental difference between the American ideal and the ideal of the religious extremist. The religious extremist believes that what they fight, kill, and die for-you know blowing up market goers and getting dozens of virgins in paradise-was given them from an other than ‘fallible human entity’. Most religious extremism stems from that very concept, that what one sect believes was handed out by an other than fallible human entity.

                The non-other than fallible entities, known as the founding fathers were fallible and knew that they were fallible. That’s why they crafted the structure of the government to have a check and balance format. They knew that any system, regardless of whether it laid claim to an omnipotent source or royal lineage, or attempted to be somewhat representative of some part or all of a people, could and probably would be perverted in some way. Corruption will find a way. You believe what makes life better for you.

                That is why these unalienable rights are interpreted by the highest representatives of the people and not ordinary types like you or myself. Even then they are perversely interpreted sometimes. Fallible people created the sacred texts and fallible people interpret them on a regular basis. From time to time, these rights are said to mean one thing and from time to time another. It took an extremely fallible Scalia to omit the first entire half of the 2nd amendment and let the second half alone to mean whatever the NRA and the gun industry could force down the people’s throats. The right to bear arms could mean anything from the right of a socially acceptable and/or not mentally challenged person to own a fire arm sanctioned by the state as reasonable to, as some perverts demand, machine guns and rocket launchers. It follows logically that the more arms and the greater the capacity for killing demanded, the less likely the citizen will be to pass the mentally challenged part of the approval process.

                Life, Liberty, and the Pursuit of Happiness are easily interpreted to mean many and diverse things; some at odds with others. Believe in an omnipotent being if you feel so inclined, however, realize that America is an experience of people attempting to govern themselves, always has been, and always will be so. The proof of this is the protection and separation of religion from politics, or at the very least the open inclination to do so.

                1. i think i agree with the canadian that a lot of religious talk is hokum, but, what’s that got to do with the second amendment? you know atheists like guns too, yeah isaac? gosh i never get over how much canadians are afraid of americans owning guns. please stay in canada isaac, it’s not safe here! you are better off up there.

                  1. Mr.:
                    “i think i agree with the canadian that a lot of religious talk is hokum, but, what’s that got to do with the second amendment?”
                    *******************

                    issac considers himself a master of deflection. We, on the other hand, consider him dunce-like in his feeble attempts at it. It’s kismet.

  11. BTW, I do think they have their bottom line to look at so judge shopping is what I would do if I was them.

  12. I was at the Luxor a month before this shooting and you could have brought in a small tank and no one would have noticed. There were ten lines of people checking in, each line with about 20 people and people leaving. We had to park a block away from the hotel after unloading everything onto two mobile carts to take to our rooms. Unless you are scanning the baggage, everything is getting in the door.

      1. mespo – I was at Mandalay Bay, but they were just as busy. I am not sure what their security features are now, but they were zero then as far as the hotel went.

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