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Margaret Okane v. Tropicana Entertainment

January 3, 2013

MARGARET OKANE
v.
TROPICANA ENTERTAINMENT, INC.



The opinion of the court was delivered by: Sanchez, J.

MEMORANDUM

In her amended complaint, plaintiff Margaret Okane asserts claims of negligent and intentional infliction of emotional distress against Tropicana Entertainment, Inc. ("Tropicana"), which owns and operates the Tropicana Casino in Atlantic City, New Jersey, based on Tropicana's refusal to remove a security record from its files. For the following reasons, the Court will dismiss the amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

I. FACTS*fn1

On February 16, 1999, while plaintiff was at the Tropicana Casino in Atlantic City, New Jersey, she removed two gaming chips worth a total of $5.00 from a roulette table, apparently as a result of her paranoid schizophrenia. Plaintiff was ejected from the casino, but no criminal charges were filed. In accordance with its normal course of operations, Tropicana's Security Department made an "ejection report" for Tropicana's files. (Am. Compl. Ex. 1.)

In a December 12, 2003 letter, Tropicana informed plaintiff that it was restoring her gaming privileges at the casino. The letter also informed plaintiff that the ejection report was part of Tropicana's "very extensive security record system" and that Tropicana would not destroy the record "at the request of a patron." (Am. Compl. Ex. 1.) Plaintiff alleges that, since receiving that letter, she has suffered from considerable emotional distress. She further alleges that the record of the 1999 incident remains in Tropicana's files despite her efforts "through the course of many years and many pleadings" to remove it. (Am. Compl. ¶ 7.) In August or September of 2012, plaintiff made a "final plea" to Tropicana through an intermediary, but Tropicana again refused to remove the record. (Id. ¶ 8.)

Plaintiff apparently believes that the record should be removed because the incident occurred over 13 years ago, and because it resulted from her schizophrenia, which is now under control. She contends that the "ongoing existence of [the] security record at the Tropicana Casino" is causing her "severe emotional distress," and alleges that she is suffering from diverticulitis in connection with that distress. (Am. Compl. ¶ 9.) She asserts claims for negligent and intentional infliction of emotional distress, and seeks $1 million in damages.

II. STANDARD OF REVIEW*fn2

As plaintiff has been granted leave to proceed in forma pauperis, 28 U.S.C. § 1915(e)(2)(B) applies. That provision requires the Court to dismiss the amended complaint if it is frivolous or malicious, fails to state a claim, or seeks monetary relief from a defendant who is immune. Whether an amended complaint fails to state a claim under § 1915(e) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the pleading contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Additionally, the Court may consider documents attached to or submitted with the amended complaint. Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Furthermore, if an affirmative defense is obvious from the face of the amended complaint, and if no development of the record is necessary, the Court may dismiss any facially invalid claims sua sponte. See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002).

III. DISCUSSION*fn3

A. Plaintiff's Claims Are Time-Barred

"Under Pennsylvania law, the statute of limitations for both negligent and intentional infliction of emotional distress is two years from the date of accrual." Vaughan v. Pathmark Stores, Inc., Civ. A. No. 99-0018, 1999 WL 299576, at *3 (E.D. Pa. May 10, 1999); see also 42 Pa. Cons. Stat. § 5524(2) & (7). New Jersey also imposes a two-year statute of limitations on claims for negligent and intentional infliction of emotional distress. Campanello v. Port Auth. of N.Y. & N.J., 590 F.

Supp. 2d 694, 699 (D.N.J. 2008); see also N.J. Stat. Ann. § 2A:14-2. In general, a statute of limitations begins to run when the plaintiff "is aware, or reasonably should be aware, of facts indicating that she has been injured through the fault of another." Baird v. Am. Med. Optics, 713 A.2d 1019, 1026 (N.J. 1998); see also Pocono Int'l Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa. 1983) (explaining that "the statute of limitations begins to run as soon as the right to institute and maintain a suit arises" because "a party asserting a cause of action is under a duty to use all reasonable diligence to be properly informed of the facts and circumstances upon which a potential right of recovery is based").

It is apparent from plaintiff's amended complaint and the attachments thereto that, in a December 12, 2003 letter, Tropicana informed plaintiff that it would not remove the ejection report from its security files at her request. Additionally, plaintiff alleges that she has been suffering from inordinate emotional distress "since that time," and that she and the defendant have been communicating about the situation for "many years." (Am. Compl. ¶ 7; see also id. ¶ 14 ("Defendant has had sufficient notice, for many years now, of either [its] intentional or reckless conduct . . . .").) Accordingly, it is evident that plaintiff was aware of the facts giving rise to her claims in December 2003. However, she did not file suit until ...


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