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Schulman v. Saloon Beverage, Inc.

United States District Court, D. Vermont

January 14, 2014

Norman H. Schulman, M.D., Susan Schulman, Plaintiffs,
Saloon Beverage, Inc. d/b/a Sirloin Saloon, DWH I, LLC, Susan Schulze-Claasen, Defendants

Page 502

For Norman H. Schulman, M.D., Susan Schulman, Plaintiffs: Michael J. Regan, Esq., Burlington, VT.

For Saloon Beverage, Inc., doing business as Sirloin Saloon, DWH I, LLC, Susan Schulze-Claasen, Defendants: Barbara E. Cory, Esq., Dinse, Knapp & McAndrew, P.C., Burlington, VT.


Page 503


(Doc. 15)

John M. Conroy, United States Magistrate Judge.

On July 3, 2013, Plaintiffs Norman H. Schulman, M.D. and Susan Schulman filed this action against the above-captioned Defendants under Vermont's Dram Shop Act (DSA), 7 V.S.A. § 501, and Vermont common law theories, alleging that Defendants' sale of intoxicating liquor to Mark R. Clarke caused the February 18, 2011 collision between the vehicle that Mr. Clarke was operating and the Plaintiffs' vehicle. (Docs. 1, 13.)[1] Plaintiffs allege that they were severely injured in the head-on collision and seek damages in the amount of $1 million, plus an award of punitive damages as well as interest and costs. (Doc. 13 at 6, 11.)

Defendants have filed a Motion for Judgment on the Pleadings pursuant to Fed.R.Civ.P. 12(c), asserting that Plaintiffs' DSA claim is barred by the two-year statute of limitations set forth at 7 V.S.A. § 501(d) and that Plaintiffs' common-law claims are preempted by the DSA. (Doc. 15.) All parties have consented to direct assignment to the undersigned Magistrate Judge. (Docs. 2, 3, 7.) On January 8, 2014, the Court heard oral argument on the Motion. For the reasons that follow, Defendants' Rule 12(c) Motion is GRANTED IN PART and DENIED IN PART.

Factual Background and Procedural History

Plaintiffs allege the following facts in their Amended Complaint. Throughout the day on February 18, 2011, Mark R. Clarke consumed alcohol while on a ski trip with friends at the Sugarbush Ski Resort. He consumed alcohol while on the ski lifts, and at the conclusion of skiing, he consumed alcohol at a saloon at the base of the ski resort and in the resort parking lot. He consumed at least one margarita and one more beer at a Mexican restaurant before beginning his trip back to Connecticut. On his way to Connecticut, Mr. Clarke stopped at the Sirloin Saloon in Manchester, Vermont. He sat at the bar alone, where he ate and drank three or four more beers. In the hours leading up to the time he entered the Sirloin Saloon, Mr. Clarke had consumed in excess of 20 beers and at least one margarita.

Mr. Clarke left the Sirloin Saloon, entered his vehicle, and continued driving south on U.S. Route 7. After traveling for less than ten miles, Mr. Clarke fell asleep behind the wheel of his vehicle, which, while traveling at approximately 55 miles per hour, moved into the northbound lane and collided head-on with Plaintiffs' vehicle. The collision occurred between 9 and 10 p.m. in the town of Sunderland, Vermont. Plaintiff Susan Schulman was operating the Plaintiffs' northbound vehicle, and her husband Norman Schulman was the passenger. Both Plaintiffs were severely injured as a result of the collision. Both Plaintiffs are citizens of New York.

At all relevant times, Defendants DWH I, LLC (" DWH" ) and Saloon Beverage, Inc. (Saloon Beverage) conducted business as Sirloin Saloon. DWH was an Idaho limited liability company that owned 100% of the stock of Saloon Beverage. DWH created Saloon Beverage--a Vermont corporation--in order to procure a Vermont liquor license. Defendant Susan Schulze-

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Claasen, a California resident, was the President and sole owner of both DWH and Saloon Beverage, which she administered and operated as one company.

On April 21, 2011, Saloon Beverage and DWH both filed voluntary petitions under Chapter 11 in the United States Bankruptcy Court, District of Idaho. The petitions were converted to Chapter 7 on April 11, 2012. In September 2012, the Bankruptcy Court issued Orders granting Plaintiffs relief from the automatic stay imposed by 11 U.S.C. § 362(a) to commence action against Saloon Beverage and DWH. On February 8, 2013, Plaintiffs commenced an action in the New York State Supreme Court based upon the same operative facts that form the basis of the present action. ( See Doc. 20-2.) On June 17, 2013, the New York State Supreme Court dismissed the action based upon the lack of personal jurisdiction over the defendants. In June 2013, the Bankruptcy Court issued Orders closing the bankruptcy cases of Saloon Beverage and DWH. As noted above, Plaintiffs filed the present action in this Court on July 3, 2013.


I. Legal Standard and Applicable Law

Defendants have moved to dismiss pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Rule 12(c) provides that " [a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted. Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006). Accordingly, the Court accepts Plaintiffs' factual allegations as true and draws all inferences in their favor. Id. However, a claim will be dismissed where it fails to set forth sufficient facts to state a claim for relief that is " plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Where the facts on the face of a complaint and ...

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