MGM 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.