Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge R. Brooke Jackson Civil Action No. 12-cv-02514-RBJ-MEH DENISE N. AXELROD (f/k/a Denise Traynom), and BRANDON K. AXELROD, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ________________________ Civil Action No. 12-cv-02517-RBJ-MEH JOSHUA R. NOWLAN, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. _________________________ Civil Action No. 12-cv-02687-RBJ-MEH DION ROSBOROUGH, RYAN LUMBA, TONY BRISCOE, JON BOIK, next friend of Alexander Boik, LOUIS DURAN, SHIRLEY CLARK, MARY THERESA HOOVER, EVAN FARIS, and Deadline.com RICHELE HILL, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ___________________________ Civil Action No. 12-cv-02704-RBJ-MEH JERRI JACKSON, Plaintiff, 1 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 2 of 17 v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 12-cv-02705-RBJ-MEH GREGORY MEDEK, and RENA MEDEK, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 12-cv-02900-RBJ-MEH IAN SULLIVAN, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ______________________________ Civil Action No. 13-cv-00045-RBJ-MEH CHICHI SPRUEL and DERICK SPRUEL, Plaintiffs, v. CINEMARK HOLDINGS,Deadline.com INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 13-cv-00046-RBJ-MEH MUNIRIH F. GRAVELLY, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., 2 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 3 of 17 Defendants. ____________________________ Civil Action No. 13-cv-00114-RBJ-MEH LYNN JOHNSON, MACHAEL SWEENEY, MALIK SWEENEY by and through his parents and next friends of Machael Sweeney and Lynn Johnson, MALACHI SWEENEY, and MACHI SWEENEY, Plaintiffs, v. CENTURY THEATERS, INC., Defendant. _______________________________ Civil Action No. 13-cv-01842-RBJ-MEH ZACKARY GOLDITCH, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 13-cv-01995-RBJ-MEH ASHLEY MOSER, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. Deadline.com ____________________________ Civil Action No. 13-cv-02060-RBJ-MEH JARELL N. BROOKS, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ 3 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 4 of 17 Civil Action No. 13-cv-02239-RBJ-MEH KATHLEEN LARIMER, and SCOTT LARIMER Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 13-cv-02988-RBJ-MEH NICK GALLUP, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 13-cv-02992-RBJ-MEH BROOKE COWDEN, KRISTIAN COWDEN, and WESTON COWDEN, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ____________________________ Civil Action No. 13-cv-03316-RBJ-MEHDeadline.com STEFAN MOTON, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ___________________________ Civil Action No. 14-cv-01729-RBJ-MEH ALLEEN YOUNG, 4 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 5 of 17 Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ___________________________ Civil Action No. 14-cv-01923-RBJ-MEH CHANTEL L. BLUNK, MAXIMUS T. BLUNK, and HAILEY M. BLUNK, Plaintiffs, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ___________________________ Civil Action No. 14-cv-01976-RBJ-MEH JAMISON TOEWS, Plaintiff, v. CINEMARK HOLDINGS, INC., CINEMARK USA, INC., and CENTURY THEATERS, INC., Defendants. ___________________________ Civil Action No. 14-cv-01986-RBJ-MEH MARCUS WEAVER, Plaintiff, Deadline.com v. CENTURY THEATERS, INC., CINEMARK, USA, INC., AND CINEMARK HOLDINGS, INC. Defendants. ___________________________ ORDER DENYING MOTION FOR SUMMARY JUDGMENT 5 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 6 of 17 These cases, which have been consolidated for purposes of discovery and motions practice,1 are before the Court on a motion for summary judgment filed by the defendants Cinemark Holdings, Cinemark USA, and Century Theaters. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1332. For the following reasons, the motion is denied. BACKGROUND These cases arise from the shootings that occurred at the Century Aurora 16 theater complex in Aurora, Colorado on July 20, 2012. James Holmes purchased a ticket for the midnight premiere showing of The Dark Knight Rises and took a seat in Auditorium 9. During the previews he left the auditorium through the exit door to the outside, leaving it propped open with a plastic clip. He went to his car, which he had parked immediately behind the auditorium, donned body armor and a gas mask, and armed himself with a tear gas canister, a shotgun, a rifle, at least one handgun, and extra ammunition. Twenty minutes after the movie started Holmes reentered the auditorium through the exit door, disbursed tear gas, and began randomly shooting patrons. After killing 12 individuals and wounding many others, Holmes returned to his car, again through the exit door, and waited there until he was arrested by police. The plaintiffs in the present cases are people who were injured and survivors of those who were killed. The lawsuitsDeadline.com were initially filed only against Century Theatres, Inc., but based on facts that have been learned during pretrial discovery, all but one of the complaints have been amended to join Cinemark Holdings, Inc. and Cinemark USA, Inc. as additional defendants. Cinemark, USA and Century Theatres, Inc. are wholly owned subsidiaries of Cinemark Holdings, Inc., and I will refer to them collectively as “Cinemark” or “defendants.” 1 The cases have been consolidated such that all filings can be found in the docket for the lowest numbered (and earliest filed) case: 12-cv-02514-RBJ-MEH. All references to docket numbers are references to 12-cv-02514-RBJ-MEH. 6 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 7 of 17 Plaintiffs’ contention is that the injuries and deaths could have been prevented had the defendants taken reasonable steps to provide security for the theater on that evening. Defendants’ response is that the shootings, which were carefully planned and carried out, were so unprecedented as to be legally unforeseeable. The ultimate question posed by the pending motion is whether the dispute should be dismissed by the Court as a matter of law or should be resolved by a jury trial. This is not the first time in the case that this question has been presented to me. Early on the defendants filed a motion to dismiss the case on the legal ground that the complaints failed to state a claim on which relief could be granted. On April 17, 2013 the Court, agreeing with a recommendation by United States Magistrate Judge Michael E. Hegarty, denied that motion. At that stage of the case the Court was required to accept the plaintiffs’ allegations of fact as true, and having done so, I determined that the plaintiffs had alleged enough to avoid immediate dismissal. Since that time the parties, primarily the plaintiffs, have conducted extensive pre-trial discovery in an effort to develop more information about what the defendants knew about security risks and when they knew it. The defendants contend that the plaintiffs did not uncover any facts that create enough of a dispute that a trial is required and now seek summary judgment dismissing the case. Deadline.com SUMMARY JUDGMENT STANDARD The purpose of a trial, whether by the court or a jury, is to resolve disputed issues of fact. Summary judgment simply means that the Court can decide the case, for either party, if there is no genuine dispute of fact that needs to be resolved at a trial. “Summary judgment is appropriate ‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a 7 Case 1:12-cv-02514-RBJ-MEH Document 245 Filed 08/15/14 USDC Colorado Page 8 of 17 matter of law.’” Utah Lighthouse Ministry v. Found. for Apologetic Info. & Research, 527 F.3d 1045, 1050 (10th Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). When deciding a motion for summary judgment, the Court considers “the factual record, together with all reasonable inferences derived therefrom, in the light most favorable to the non- moving party . .” Id. The moving party has the burden of producing evidence showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In challenging such a showing, the non-movant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “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). A dispute about a material fact is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.