The opinion of the court was delivered by: James F. McClure, Jr. United States District Judge
Plaintiffs Grace Jiminez, administratrix of the estate of Salvador Peter Serrano, and Brooke E. Morgan, Serrano's fiancée, initiated this action by filing a complaint on August 25, 2004. An amended complaint was filed on October 4, 2004. Plaintiffs filed a second amended complaint on August 11, 2005. The second amended complaint added defendant Associated Property Management Inc., d/b/a Associated Realty Property Management ("ARPM") to the previously named defendants.
On September 27, 2005, we granted plaintiffs' motion to dismiss defendant Bluebird Entertainment Enterprise, d/b/a The Dark Horse, and dismissed all claims and cross-claims against Bluebird Entertainment Enterprise.
Now before the court is defendant ARPM's "Motion to Dismiss/Motion for Summary Judgment" filed on November 14, 2005. The matter is fully briefed and ripe for our decision. Also before the court is ARPM's praecipe requesting oral argument on the motion. For the following reasons we will deny ARPM's motion to dismiss/motion for summary judgment and we will address why oral argument on the issue would be fruitless.
I. Motion to Dismiss Standard
As we stated in our April 1, 2005 order:
When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on a motion to dismiss the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).
The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327. (Order, Rec. Doc. No. 65, at 3-4.)
II. Statement of Relevant Facts
As we stated in our April 1, 2005 order:
Plaintiff, Grace Jiminez, is the administratirix of the estate of the decedent, Salvador Peter Serrano. Plaintiff, Brooke E. Morgan, was Serrano's fiancée. On the night of Serrano's death, October 26, 2003, he was walking along Calder Way with two friends and his fiancée, Morgan. A confrontation occurred between Serrano and several employees of the Rathskeller, as well as an employee of Bluebird, in the parking lot area near the Rathskeller. Timothy Padalino, a friend of Serrano, had stopped to urinate publically in the lot. The confrontation led to Serrano's being restrained by several employees of the Rathskeller. John Bellum, an employee of Bluebird, also was present during the confrontation. Plaintiffs allege that Jason Rosengrant, with the aid of Chris Rosengrant, caused the death of Serrano by kneeling on his chest and/or back.
Plaintiffs aver that Gentzel spoke to Gastiger, the president of the Rathskeller, prior to October 26, 2003, about monitoring and patrolling the parking lot area. Plaintiffs allege that Gentzel and Gastiger agreed that the Rathskeller employees would patrol the parking lot area because of the ongoing problems with vandalism and acts ...