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Darago v. Live Nation Entertainment, Inc.

United States District Court, N.D. Ohio, Eastern Division

July 15, 2019




         There are presently several motions pending before the Court. Specifically, the Court shall address herein: (1) the motion of plaintiff Kevin Darago (“Darago”) to remand this matter to state court (Doc. No. 18 [“MTR”]); (2) the motion of defendant James Grant Group Ltd. (“James Grant”) to dismiss Darago's complaint (Doc. No. 15 [“James Grant MTD Darago”]); (3) the motion of James Grant to dismiss the complaint of plaintiff Ohio Bureau of Workers' Compensation (“BWC”) (Doc. No. 14 [“James Grant MTD BWC”]); (4) the motion of defendant AM LV PR LLC (“AM LV PR”) to dismiss Darago's complaint (Doc. No. 8 [“AM LV PR MTD Darago”]); (5) the motion of AM LV PR to dismiss BWC's complaint (Doc. No. 12 [“AM LV PR MTD BWC”]); and (6) the motion of Darago to amend his complaint. (Doc. No. 33 [“MTA”].)

         All the pending motions are fully briefed. (See Doc. No. 20 (Response of defendants Live Nation Worldwide, Inc., Mark Hoppus, Travis Barker, and Matt Skiba (collectively “Live Nation defendants”) in opposition to Darago's motion to remand [“MTR Opp'n”]); Doc. No. 24 (Darago's reply in support of remand [“MTR Reply”]; Doc. No. 27 (Darago's response to James Grant's motion to dismiss [“James Grant MTD Darago Opp'n”]); Doc. No. 31 (James Grant's reply in support of dismissing Darago's complaint [“James Grant MTD Reply”]); Doc. No. 28 (BWC's opposition to James Grant's motion to dismiss [“James Grant MTD BWC Opp'n”]); Doc. No. 32 (James Grant's reply in support of dismissal of BWC's complaint [“James Grant MTD BWC Reply”]); Doc. No. 22 (Darago's opposition to AM LV PR's motion to dismiss [“AM LV PR MTD Darago Opp'n”]); Doc. No. 25 (AM LV PR's reply in support of dismissal of Darago's complaint [“AM LV PR MTD Darago Reply”]); Doc. No. 23 (BWC's opposition to LV PR motion to dismiss [“AM LV PR MTD BWC Opp'n”]); Doc. No. 26 (AM LV PR's reply in support of dismissal of BWC's complaint [“AM LV PR MTD BWC Reply”]); Doc. No. 34 (James Grant and AM LV PR's opposition to Darago's motion to amend [“MTA James Grant/AM LV PR Opp'n”]); Doc. No. 35 (Live Nation defendants' opposition to Darago's motion to amend [“MTA Live Nation defendants Opp'n”]); Doc. No. 37 (Darago's reply in support of his motion to amend [“MTA Reply”]). Accordingly, the motions are ripe for resolution.

         For the reasons to follow, the motion to remand is DENIED, the motions to dismiss are GRANTED, and the motion to amend is GRANTED IN PART.

         I. Background

         The present lawsuit concerns injuries Darago sustained on August 9, 2016, at Blossom Music Center (“Blossom”) during a concert involving the band Blink-182.[1] Blossom is an outdoor music venue in Cuyahoga Falls, Ohio, that contains a pavilion with permanent seating, a lawn area with standing room seating, a pit area, and a stage. (Doc. No. 1-1, Darago Complaint [“Darago Compl.”] ¶¶ 17, 19, 31.) Prior to the injury giving rise to this litigation, Darago, a resident of Ohio, was employed full-time as a Senior Staff Accountant at nonparty Coleman Professional Services. (Id. ¶ 14.) Darago was also employed part-time for nonparty C and C WD Studio Productions LLC (“C and C”). (Id. ¶ 13.) C and C is in the business of providing staffing to venues “where musical groups and bands perform.” (Id.) On August 9, 2016, Darago was providing security, through C and C, at Blossom for the Blink-182 concert. (Id. ¶ 30.)

         Defendant Viking Wizard Eyes, LLC (“Viking”) was doing business as Blink-182, “a musical band that played pop-punk rock music[.]” (Id. ¶ 17.) The band's members included defendants Mark Hoppus (“Hoppus”), Travis Barker (“Barker”), and Matt Skiba (“Skiba”). (Id. ¶ 18.) James Grant was the management company that managed Blink-182. (Id. ¶ 22.) Live Nation Worldwide, Inc. (“Live Nation”) “was an entity that arranged musical performances at Blossom, including promoting musical groups and bands.” (Id. ¶ 21.)

         According to Darago's complaint, defendants collectively arranged for Blink-182 to perform at Blossom on August 9, 2016. (Id. ¶ 25.) As with all the band's venues, defendants ensured that there would be a “standing room only area for some patrons.” (Id. ¶ 24.) Specifically, the pit area was arranged to accommodate approximately 600 standing patrons. (Id. ¶ 33.) Darago alleges that, prior to the concert, defendants “instructed the crowd management members and other staff members to allow patrons to ‘crowd surf' and ‘mosh,' because [d]efendants wanted the patrons to ‘have fun.'” (Id. ¶ 35.) “Crowd surfing” or “moshing” involves “lifting and passing around a patron overhead by other patrons during a rock concert.” (Id. ¶ 36.) Blossom does not permit crowd surfing or moshing at its events. (Id. ¶ 19.)

         During the performance, several patrons began to crowd surf in the pit area. The crowd would pass the “surfers” around overhead toward the barricaded area in front of the stage. When a “surfer” reached the barricaded area, crowd management personnel would help the patron to the ground. (Id. ¶ 43.) Darago was one of the members of the security detail assisting patrons in the pit area. One particular patron, a female concertgoer, repeatedly crowd surfed her way to the barricaded area. On one occasion, she began kicking her feet as she was helped to the ground. In doing so, her foot struck Darago's left eye, causing Darago “to suffer permanent eye damage, including permanent loss of sight.” (Id. ¶ 44.) Darago eventually lost his full-time job, as his loss of sight in one eye left him unable to perform the essential functions of his accounting position. (Id. ¶ 45.)

         On July 17, 2018, Darago filed the present lawsuit in the Summit County Court of Common Pleas. In addition to the aforementioned named defendants, Darago also named several John Doe individuals and entities. The parties agree that AM LV PR was one of the John Doe entities identified in Darago's complaint.

         The complaint raised claims for negligence, negligent hiring, and vicarious liability. Darago also brought a claim for declaratory judgment, seeking a declaration determining the rights and obligations of Darago and BWC regarding the benefits conferred for and on behalf of Darago. As such, Darago's complaint identified BWC as a party defendant. (See id. ¶ 8.)

         While the case was still in state court, BWC moved for realignment of the parties, citing the fact that Darago's claims were directed solely at other defendants and not BWC, and that Darago and BWC had similar interests. The state court agreed, and on August 28, 2018, the state court granted the motion and ordered BWC to intervene as a named party plaintiff. On September 4, 2018, BWC filed its intervening complaint against all the remaining defendants. (Doc. No. 1-1 [“BWC Compl.”], beginning at 62.[2])

         On November 15, 2018, Live Nation removed this action to federal court on the basis of diversity jurisdiction. (Doc. No. 1 (Notice of Removal).) Shortly thereafter, James Grant and AM LV PR moved to dismiss for want of personal jurisdiction. Darago responded with a motion to remand to state court, challenging the realignment of BWC as a party plaintiff, and suggesting that, properly aligned, the parties lack complete diversity. Darago also sought to amend his complaint to identify the names of certain John Does learned during discovery in state court. Because Darago's motion to remand challenges the Court's jurisdiction to hear this matter, the Court begins with that motion.

         II. Motion to Remand

         Darago insists that this case was improperly removed because there is a lack of complete diversity between the parties. He requests that the Court realign the parties so that BWC is treated as a party defendant, which would have the effect of destroying diversity jurisdiction. “A defendant removing a case has the burden of proving the diversity jurisdiction requirements.” Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). “Diversity of citizenship . . . exists only when no plaintiff and no defendant are citizens of the same state.” Curry v. U.S. Bulk Transp., Inc., 462 F.3d 536, 540 (6th Cir. 2006) (quotation marks and citation omitted). “In order for a defendant to remove a case to federal court based upon diversity jurisdiction, there must be complete diversity of citizenship both at the time that the case is commenced and at the time the notice of removal is filed.” Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir. 1999).

         It is true that, “[f]ollowing removal, the federal court ‘takes the case up where the [s]tate court left it off.'” Flowers v. Oglebay Norton Co., No. 1:09CV697, 2009 WL 10689432, at *1 (N.D. Ohio Nov. 17, 2009) (quoting Granny Goose Foods v. Bhd. of Teamsters & Auto Truck Drivers, 415 U.S. 423, 436, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974)). It is equally true, however, that it is the district “court's responsibility to ensure that the parties are properly aligned according to their interests in the litigation.” Cleveland Hous. Renewal Project v. Deutsche Bank Tr. Co., 621 F.3d 554, 559 (6th Cir. 2010). To accomplish this task, the district court looks to the primary purpose or primary dispute in the controversy, see id., and the parties agree that this inquiry guides the Court's analysis.

         For example, in Cleveland Housing, the property owner, an Ohio resident, brought a public nuisance action against Deutsche Bank and several affiliated companies. The plaintiff also named the City of Cleveland (“the city”) as a defendant as a precaution in order to avoid the problem of a potential buyer taking the property subject to the city's lien for unrecorded assessments. The court found that the primary dispute “stem[med] from the [property owner's] demand that [the defendants] abate the alleged nuisances relating to [the] properties[.]” Id. The city's interest in its liens was ancillary or secondary to this primary controversy. Accordingly, the court held that the city was properly aligned as a party plaintiff and, as such, there was complete diversity between the plaintiffs and defendants. Id. at 560.

         Live Nation defendants argue that the primary dispute or the primary purpose of the present lawsuit is to determine whether any of the defendants are liable for Darago's injuries, and that BWC's lien or subrogation interest for the benefits it paid to Darago is ancillary or secondary to this primary controversy. (MTR Opp'n at 335.) Case law supports their position. In Winkler v. Win Aviation, the administrator of an estate brought suit against the deceased's employer over the accident that claimed the deceased's life. The administrator also named BWC as a defendant and sought a declaration as to BWC's right to any monies the administrator might recover for the estate. See Winkler v. Win Aviation, No. 2:16-cv-629, 2016 WL 8224827, at *1 (S.D. Ohio Dec. 29, 2016), report and recommendation adopted, 2017 WL 543253 (S.D. Ohio Feb. 9, 2017). Notwithstanding the fact that BWC was asserting its ...

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