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Broady v. Zanzibar on the Waterfront

September 15, 2008

GREGORY BROADY, PLAINTIFFS,
v.
ZANZIBAR ON THE WATERFRONT, LLC, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff, Gregory Broady, brings the above-captioned action alleging that he incurred significant injuries when he was struck by an unidentified security guard at the Zanzibar on the Waterfront ("Zanzibar") nightclub on June 4, 2004. Plaintiff's Complaint identifies the security guard as "John Doe" and alleges that John Doe was employed either by Zanzibar or by Allen Iverson, a professional basketball player who was at Zanzibar on the night Plaintiff was allegedly injured. Plaintiff's Complaint names both Zanzibar and Iverson as Defendants to this action, along with John Doe, and Plaintiff has not identified John Doe's employer during the course of discovery in this matter.

Currently pending before the Court is Defendant Allen Iverson's [25] Motion for Summary Judgment, which Plaintiff opposes. Defendant Zanzibar has not moved for summary judgment in this case. Upon a searching review of Defendant Iverson's Motion for Summary Judgment, Plaintiff's Opposition thereto,*fn1 the exhibits attached to each party's brief, and the relevant statutes and case law, the Court shall DENY Defendant Iverson's [25] Motion for Summary Judgment. In particular, the Court finds that a genuine issue of material fact exists as to whether Defendant Iverson had an agency relationship with John Doe when Doe allegedly struck and injured Plaintiff. As Defendant Iverson's Motion for Summary Judgment is primarily based upon a claim that Defendant Iverson did not have an agency relationship with John Doe, the existence of a question of material fact in that respect precludes the entry of summary judgment in favor of Defendant Iverson. Further, as discussed below, Plaintiff's Complaint does not delineate specific claims against each Defendant or set out specific legal cause(s) of action. In addition, Plaintiff's filings in connection with his Opposition to Defendant Iverson's Motion include a number of factual assertions that are entirely unsupported by the record. The Court therefore identifies the most egregious of Plaintiff's unsupported assertions below, in order to frame the future litigation of this case, and shall order Plaintiff to file a Notice setting forth his precise legal claims against each Defendant.

I. BACKGROUND

The Court begins its discussion of the facts by noting that this Court strictly adheres to the text of Local Civil Rule 7(h)(1), which requires that each party submitting a motion for summary judgment attach a statement of material facts as to which that party contends there is no genuine issue, with specific citations to those portions of the record upon which the party relies in fashioning the statement. See LvR 7(h)(1). The party opposing such a motion must, in turn, submit a statement of genuine issues enumerating all material facts which the party contends are at issue and thus require litigation. See id. Where the opposing party fails to discharge this obligation, a court may take all facts alleged by the movant as admitted. Id. As the District of Columbia Circuit has emphasized, "[LCvR 7(h)(1)] places the burden on the parties and their counsel, who are most familiar with the litigation and the record, to crystallize for the district court the material facts and relevant portions of the record." Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 151 (D.C. Cir. 1996) (citing Twist v. Meese, 854 F.2d 1421, 1425 (D.C. Cir. 1988); Guarino v. Brookfield Township Trustees, 980 F.2d 399, 406 (6th Cir. 1992)). "Requiring strict compliance with the local rule is justified both by the nature of summary judgment and by the rule's purposes." Id. (quoting Gardels v. CIA, 637 F.2d 770, 773 (D.C. Cir. 1980). As such, in resolving the instant summary judgment motion, this Court "assume[s] that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." LCvR 7(h)(1).

The facts set forth below are taken from Defendant Iverson's Statement of Undisputed Material Facts ("Iverson's Statement"), Plaintiff's Statement of Disputed Material Facts ("Plaintiff's Statement"), and the factual record in this case. The Court notes that both parties' Statements contain factual assertions that are not supported by the record in this case, and in many instances, no citation to the record is provided. Accordingly, in this Background section the Court only sets forth the minimal factual background required to resolve Defendant Iverson's Motion for Summary Judgment. In the Discussion section below, the Court explains the genuine issue of material fact that precludes the entry of summary judgment in favor of Defendant Iverson and then, in an attempt to frame this case as it proceeds towards trial, continues to note the significant factual assertions made by Plaintiff in his Opposition and Responsive Statement that are unsupported by the factual record.

A. Relevant Factual Background

The events at issue in this case took place on the night of June 4, 2004 at Zanzibar on the Waterfront, a nightclub located on the waterfront in Southwest Washington, DC. Iverson Stmt. ¶ 1; Pl.'s Stmt. ¶ 1. Both Plaintiff and Mr. Iverson were present at Zanzibar as patrons on the night in question. Id. While neither party provides deposition testimony describing the circumstances that led Plaintiff to be at Zanzibar on the night in question, Defendant Iverson does proffer a transcript of a recorded telephone statement regarding the events at issue in this case, which Plaintiff provided to Scottsdale Insurance Company on August 16, 2005. See Iverson Ex. C. The Court refers to Plaintiff's statements therein solely by way of background. According to Plaintiff, on the night of June 4, 2004, he met a group of friends at Zanzibar for a birthday celebration. See id. at 3. Plaintiff stated that everyone in his group received a "VIP" wristband that allowed them to enter the "Sky Club," located on the top floor of Zanzibar. Id. Inside the Sky Club was another, more secluded, area referred to as the "MJ Room" or the "VIP area." Iverson Stmt. ¶¶ 32-34; Pl.'s Stmt. ¶¶ 32-34. The VIP Area is separated from the rest of the Sky Club by two metal curtains and is occasionally cordoned off for use by celebrities or other individuals hosting private events at Zanzibar. Id.

In his recorded statement, Plaintiff explained that he and his friends were seated in the VIP Area when a group of people entered, including basketball star Allen Iverson. Iverson Ex. C (Pl.'s 8/16/05 Stmt.) at 3.*fn2 According to Plaintiff, at about the same time as Iverson entered the VIP Area, a man appeared wearing black jeans and a T-shirt that read "Security." Iverson Ex. B (5/2/07 Broady Dep.) at 57:2-7. Plaintiff's Complaint identifies this individual as "John Doe." Compl. ¶ 5. During his deposition in this case, Plaintiff testified that John Doe and two other individuals dressed in similar clothing blocked off the VIP Area by posting themselves at the entrances to the VIP Area. Iverson Ex. B (5/2/07 Broady Dep.) at 57:13:58-20.

Plaintiff also testified that approximately 30 or 45 minutes after Iverson entered the VIP Area, Plaintiff left to use the restroom, which was located outside of the VIP Area in the Sky Club. Id. at 60:17-61:10. According to Plaintiff, he left his cell phone with a female friend inside the VIP Area. Iverson Ex. C (Pl.'s 8/16/05 Stmt.) at 3. Both Plaintiff and Zanzibar's Rule 30(b)(6) witness testified that the Sky Club was crowded and that many people were attempting to enter the VIP Area. Iverson Ex. B (5/2/07 Broady Dep.) at 61:17-62:5; Pl.'s Ex. 1 (2/7/07 Daley Dep.) at 61:4-62:12.*fn3 Plaintiff testified that he approached John Doe to ask to re-enter the VIP Area and showed John Doe his VIP wristband. Iverson Ex. B (5/2/07 Broady Dep). at 62:2-63:3. According to Plaintiff, John Doe directed Plaintiff to the security guard posted at the other entrance to the VIP Area, but that security guard directed Plaintiff back to John Doe. Id. at 63:1-11. Plaintiff further testified that when he returned to first entrance, John Doe told him to speak with an individual that Plaintiff identified as Doe's "supervisor or manager." Id. at 63:22-64:10. Plaintiff describes the alleged supervisor/manager as a man with dreadlocks who was dressed differently than the security guards posted at the entrances to the VIP Area. Id. at 64:6-65:5, 65:16-66:3. Plaintiff does not know who the alleged supervisor/manager was or whom he worked for, and testified that the individual was not the Zanzibar owner known to Plaintiff as "Foots". Id.

According to Plaintiff, he explained to the alleged supervisor/manager that he needed to re-enter the VIP Area because he had left his cell phone with a friend. Id. at 65:6-12. The supervisor/manager, however, told Plaintiff that the VIP Area was now too crowded and that the supervisor/manager would go into the VIP Area and retrieve Plaintiff's cell phone for him. Id. at 65:9-13. Plaintiff testified that he remained near the entrance to the VIP Area, which was still guarded by John Doe, while the alleged supervisor/manager entered the VIP Area. Id. at 66:4-9, 66:20-67:4. According to Plaintiff, the alleged supervisor/manager turned in the wrong direction upon entering the VIP Area and Plaintiff signaled to him by raising his hand. Id. at 67:3-8; Iverson Ex. C (Pl.'s 8/16/05 Stmt.) at 4. During his deposition, Plaintiff testified, "[w]hen I put my hand back down that is when I noticed being hit on the right side of my face. I turned around and I got hit straight on. The next thing I remember I woke up in the elevator with a white towel on my face with blood all over my face." Iverson Ex. B (5/2/07 Broady Dep.) at 67:9-13; see also Iverson Ex. C (Pl.'s 8/16/05 Stmt.) at 4. Plaintiff identified the individual that hit him as "the same gentleman that [he] had been talking to earlier," i.e., John Doe. Iverson Ex. B (5/2/07 Broady Dep.) at 67:18-22.

B. Plaintiff's Complaint

Plaintiff's Complaint alleges that he "suffered and continues to suffer from a brain bleed, surgery, pain and suffering, scarring, inconvenience, lost time from employment, mental anguish and discomfort, and will continue to suffer that in the future." Compl. ¶ 23. Plaintiff seeks judgment against Defendants--Allen Iverson, Zanzibar, and the unidentified John Doe--in the amount of $750,000. Id. at 4. Plaintiff's Complaint--which the Court notes was filed by counsel--does not delineate particular legal claims against each Defendant. The Court's review of the factual allegations in the Complaint suggests an intentional tort claim of assault and battery against John Doe and a respondeat superior claim against Iverson and/or Zanzibar based on Plaintiff's allegation that "John Doe was acting as the agent/employee and with the apparent authority of Zanzibar on the Waterfront, LLC, and Allen Iverson." Id. ¶ 17. It is not clear from the four ...


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