United States District Court, W.D. Texas, Austin Division
ROSEMARY CLAUS SULLIVAN, et al.
THE CITY OF ROUND ROCK, et al.
W. AUSTIN UNITED STATES MAGISTRATE JUDGE.
the Court is RCI Dining Services (Round Rock), Inc.'s
Motion for Summary Judgment (Dkt. No. 202); Plaintiffs'
Response (Dkt. No. 254); RCI's Objections and Reply (Dkt.
No. 258); Plaintiffs' Response to RCI's Objections
(Dkt. No. 260); and RCLIs Reply on the Objections (Dkt. No.
261). The City of Round Rock also responded to the motion for
summary judgment (Dkt. No. 256) and RCI has replied to that.
(Dkt. No. 259).
facts underlying this case have been set out in numerous
previous orders and will not be repeated here. By way of the
motion, RCI Dining Services (Round Rock), Inc.,
seeks summary judgment on all of the Plaintiffs' claims
against it. Plaintiffs make two claims against
Rick's-Round Rock: (1) a common law "negligent
undertaking" claim; and (2) a claim brought under the
Texas Dram Shop Act, TEX. Alc. BEV. CODE § 2.02. In
support of its motion, Rick's-Round Rock contends: (1)
there is no evidence that it undertook a duty to Sullivan,
and if it did have any duty to Sullivan, it fulfilled that
duty; (2) the Round Rock officers' conduct was an
intervening cause of Sullivan's injuries; (3) there is no
evidence it continued to serve Sullivan after he was
obviously intoxicated or that his intoxication was the
proximate cause of his injuries; (4) it is not liable under
the Dram Shop Act because it falls within the statute's
"safe harbor;" and (5) it is entitled to summary
judgment on Plaintiffs' exemplary damages claims, because
there is no evidence of gross negligence and exemplary
damages are not available under the Dram Shop Act.
Rick's entity was named as a party to this suit when it
was filed on April 23, 2014. Rather, when the Plaintiffs'
amended their complaint on August 11, 2014, they added as a
party Rick's Cabaret International, Inc. a/k/a RCI Dining
Services (Round Rock), Inc. a/k/a RCI Hospitality Holdings,
Inc." (Dkt. No. 6). In its initial responsive pleading,
Rick's noted that it had been incorrectly named, and
indicated its correct name was RCI Hospitality Holdings, Inc.
f/k/a Rick's Cabaret International, Inc. (Dkt. No. 11).
Consistent with this, when Plaintiffs filed their Second
Amended Complaint on September 25, 2014, they named as a
party RCI Hospitality Holdings, Inc. f/k/a Rick's Cabaret
International, Inc. (Dkt. No. 15). In June 2015, Plaintiffs
moved for leave to amend the complaint again to, among other
things, add as a party Rick's-Round Rock, asserting it
was the subsidiary of Rick' s-Holding which operated the
club at which William Sullivan was injured. (Dkt. No. 41).
Judge Yeakel granted Plaintiffs leave to file that amendment
on August 17, 2015. (Dkt. No. 70).
time Rick's-Round Rock was added as a party, the deadline
to file dispositive motions had passed. It thus sought leave
to file a motion for summary judgment after the deadline.
Judge Yeakel denied that motion on December 10, 2015. Dkt.
No. 143 at 6-7. However, Rick's-Holding had timely filed
a motion for summary judgment on July 24, 2015. Dkt. No. 55.
In addition to asserting an entitlement to summary judgment
because it was not the entity that operated the Rick's
where the injury occurred, it raised essentially the same
arguments that are raised in the motion now before the Court.
See Id. at 2-3. Judge Yeakel denied the motion in
December 2015, finding that there were fact questions
precluding summary judgment. Dkt. No. 143. In that same
order, Judge Yeakel denied the individual Round Rock Police
Department officers' motion for summary judgment on the
basis of qualified immunity. The RRPD officers informed the
court of their intention to file an interlocutory appeal of
that order, and the Defendants asked Judge Yeakel to stay the
case pending that appeal. Judge Yeakel denied that motion on
December 22, 2015, and, based on the parties' consent to
trial before a magistrate judge, transferred the case to the
undersigned. Dkt.Nos. 167, 168.
trial date was set for March 2016. In the weeks after
reassignment of the case, numerous motions were filed with
the Court, among them Rick's-Round Rock's request
that the Court reconsider Judge Yeakel's order denying it
the opportunity to file a motion for summary judgment, given
that there was now a new trial date further out into the
future. On February 16, 2016, the undersigned granted that
request, and the motion was docketed. Dkt. Nos. 201, 202. Not
long thereafter (March 7, 2016) the Fifth Circuit stayed the
case pending the officers' interlocutory appeal, and thus
no response to that motion was filed, and no order was
entered on it. The stay was not fully lifted until April 13,
2017, after the Supreme Court denied certiorari on the Fifth
Circuit's decision on the qualified immunity issue. The
Plaintiffs have now responded to the motion, and it is ripe
Summary Judgment Standard
judgment is proper when the evidence shows "that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law." FED. R.
ClV. P. 56(a). The main purpose of summary judgment is to
dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, Ml U.S. 317, 323-24
moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Id.
at 323. If the moving party meets this burden, the non-moving
party must come forward with specific facts that establish
the existence of a genuine issue for trial. ACE Am. Ins.
Co. v. Freeport Welding & Fabricating, Inc., 699
F.3d 832, 839 (5th Cir. 2012). The function of summary
judgment is to allow for parties to preempt litigation by
demonstrating that "one or more of the essential
elements of a claim or defense before the court is not in
doubt and that, as a result, judgment should be entered on
the basis of purely legal considerations." Fontenot
v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986). In
deciding whether a fact issue exists, "the court must
draw all reasonable inferences in favor of the nonmoving
party, and it may not make credibility determinations or
weigh the evidence." Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000). "Where the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving part, there is no
'genuine issue for trial' " Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 415 U.S. 574, 587
(1986) (quoting First Nat'l Bank of Ariz. v. Cities
Serv. Co., 391 U.S.253, 389 (1968)).
noted above, Rick's-Holding raised essentially the same
arguments that are raised here in a previous summary judgment
motion. Judge Yeakel denied that motion, stating:
Having considered the arguments and evidence presented by the
parties, the court finds that a genuine issue of material
fact exists regarding whether Rick's employees or
agents' affirmative acts created a duty of reasonable
care and whether it was breached; whether the officer's
actions constituted an intervening, superseding cause of
harm; whether Sullivan continued to be served after he was
obviously intoxicated; and whether exemplary damages for
gross negligence are warranted. At the summary judgment
stage, the court must "refrain from making credibility
determinations or weighing the evidence." Delta
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