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Hicock v. Casino One Corporation

United States District Court, E.D. Missouri, Eastern Division

August 14, 2014

WILLIAM A. HICOCK II, Plaintiff,
v.
CASINO ONE CORPORATION, Defendant.

MEMORANDUM AND ORDER

E. RICHARD WEBBER, Senior District Judge.

This matter comes before the Court on "Defendant's Motion for Summary Judgment" [ECF No. 22].

I. BACKGROUND

On October 27, 2013, Plaintiff William A. Hicock II ("Plaintiff") filed a Petition against Defendant Casino One Corporation ("Casino One") in the Twenty-Second Judicial Circuit Court of the City of St. Louis, Missouri, alleging Casino One violated Missouri's Service Letter Statute, Missouri Revised Statutes § 290.140 ("the Service Letter Statute") [ECF Nos. 1-3, 6]. Thereafter, Casino One timely filed a Notice of Removal, removing the matter to this Court on the basis of federal diversity jurisdiction, pursuant to 28 U.S.C. § 1331, 1441 and 1446 [ECF Nos. 1 through 1-6]. Casino One filed its Answer to Plaintiff's Complaint on December 3, 2013 [ECF No. 9].

Plaintiff filed a Motion to Remand, which the Court denied on January 27, 2014 [ECF Nos. 13, 15]. However, the Court granted the parties twenty (20) days to submit a joint stipulation, substantially similar in all respects to the stipulation approved in Workman v. Kawasaki Motors Corp., U.S.A., 749 F.Supp 1010 (W.D. Mo. 1990), and indicated the Court would reconsider the remand motion if the parties submitted such a stipulation [ECF Nos. 13, 15]. No stipulation was filed.

Plaintiff subsequently filed an Amended Complaint, to which Casino One filed an Answer and asserted several affirmative defenses, including failure to comply with the requirements of the Service Letter Statute [ECF Nos. 16, 17]. On July 8, 2014, Casino One filed its Motion for Summary Judgment [ECF Nos. 22 through 24-1]. Plaintiff filed his Memorandum in Opposition, and Casino One filed its Reply [ECF Nos. 26, 28]. The matter was referred to Alternative Dispute Resolution on August 4, 2014 [ECF No. 27].

II. LEGAL STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure 56(c) provides that "[a] party asserting that a fact cannot be, or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record, ... or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "All matters set forth in the statement of the movant shall be deemed admitted for purposes of summary judgment unless specifically controverted by the opposing party." E.D. Mo. L.R. 7-4.01(E).

"Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment will not lie if a genuine dispute about a material fact is shown; "that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In ruling on a motion for summary judgment, the Court may not make credibility determinations, weigh the evidence, or draw inferences from the facts. Torgerson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011).

To satisfy his initial responsibility, the summary judgment movant must inform the court of the basis for his motion and must identify those portions of the record that he believes demonstrate the absence of a genuine issue of material fact. Id. at 1042. Once the moving party has discharged the requisite evidentiary burden, the nonmovant must respond by submitting evidentiary materials that set out "specific facts showing that there is a genuine issue for trial." Id. (citations omitted). If the nonmovant fails to produce such evidence, summary judgment in favor of the moving party is proper. Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).

III. STATEMENT OF UNCONTROVERTED MATERIAL FACTS

The following statement of undisputed or uncontroverted material facts is derived from the Statement of Uncontroverted Material Facts [ECF No. 24], Plaintiff's Statement of Material Facts Which Plaintiff Contends a Genuine Issue Exists [ECF No. 26], Defendant's Reply Memorandum in Support of Motion for Summary Judgment [ECF No. 28], the parties' pleadings and responses thereto [ECF Nos. 16, 17], and uncontroverted exhibits of record [ECF Nos. 24-1, 26-1, 26-2, 26-3].

Casino One does business in St. Louis City, Missouri, under the fictitious name, "Lumiere Place Casino & Hotels." Plaintiff was employed by Casino One as a table games dealer from December 3, 2007, until May 14, 2013. On May 11, 3013, Plaintiff was suspended due to a violation of Casino One's Zero Tolerance Harassment and Discrimination Policy, and he was terminated on May 14, 2013, due to his violation of Casino One's Zero Tolerance Harassment and Discrimination Policy. Plaintiff thereafter requested an internal review of the decision to terminate his employment. The internal review application was denied.

On July 23, 2013, Casino One received a letter, dated July 19, 2013, from the law firm of Flesner & Associates, LLC, signed by Ericka Wentzel, Attorney at Law, requesting a service letter pursuant to Missouri Revised Statutes § 290.140. The July 19, 2013 letter is not addressed to "a ...


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