Buchanan v. Ameristar Casino Vicksburg, Inc.
| Docket Number: | 2005-CA-01924-SCT Linked Case(s): 2005-CA-01924-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 03-15-2007 Opinion Author: EASLEY, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Corporations - Alter ego - Motion to strike - Discovery violation - M.R.C.P. 26(f) - M.R.C.P. 26(b)(4)(A)(I) - M.R.C.P. 37 - M.R.C.P. 56 Judge(s) Concurring: SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, DICKINSON AND RANDOLPH, JJ. Concurs in Result Only: DIAZ AND GRAVES, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 09-30-2005 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Frank G. Vollor Disposition: Granted Appellee's Motion for Summary Judgment & Motion to Dismiss Case Number: 99-0169-CI(V) |
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| Party Name: | Attorney Name: | |||
| Appellant: | KATHERINE L. BUCHANAN
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DAVID M. SESSUMS
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| Appellee: | AMERISTAR CASINO VICKSBURG, INC. | TIMOTHY D. MOORE EDWARD J. CURRIE, JR. JAMES J. PISANELLI |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Corporations - Alter ego - Motion to strike - Discovery violation - M.R.C.P. 26(f) - M.R.C.P. 26(b)(4)(A)(I) - M.R.C.P. 37 - M.R.C.P. 56 |
| Summary of the Facts: | Katherine Buchanan was employed by Ameristar Casino Vicksburg, Inc. She claimed that she injured her left knee in the course and scope of her employment. Buchanan went to the emergency room for treatment, and Ameristar-Vicksburg and its workers’ compensation carrier, Legion Insurance Company, paid the emergency room expenses. Thereafter, Ameristar-Vicksburg and Legion refused to pay additional medical expenses for costs incurred with other medical visits and surgery. Buchanan filed a petition to controvert with the Mississippi Workers’ Compensation Commission. The Administrative Law Judge found that Buchanan had received a work-related injury to her left knee. The ALJ ordered Ameristar-Vicksburg and Legion to pay temporary total benefits, penalties, and interest on any unpaid compensation benefits, and to provide medical services and supplies as required by Buchanan in accordance with Mississippi statutes. The defendants appealed to the full Commission which affirmed the ALJ’s order. The defendants appealed to circuit court which affirmed. The defendants waited almost six months to begin payment as ordered by the trial court. Buchanan filed suit against Ameristar-Vicksburg and Legion, alleging bad faith for its refusal to pay, bad faith for its delay in payment, and improper and inadequate investigation. During the discovery process, Buchanan learned that Ameristar-Vicksburg did not have separate financial statements from its parent company Ameristar Casinos,Inc. (Ameristar-Las Vegas). The court granted Buchanan’s motion to amend to bring Ameristar-Las Vegas into the lawsuit as a party defendant. Buchanan filed a third amended complaint adding Ameristar-Las Vegas as a party defendant more than four years after the complaint was originally filed in the circuit court, alleging that Ameristar-Las Vegas was the alter ego of Ameristar-Vicksburg. Ameristar-Las Vegas filed a motion for summary judgment and a motion to strike the expert report and affidavit contained in Buchanan’s response in opposition to the motion for summary judgment. The trial court granted the motion for summary judgment and the motion to strike. Buchanan appeals. |
| Summary of Opinion Analysis: | Issue 1: Motion to strike Buchanan argues that the court erred by striking her expert’s affidavit and report as being untimely. Discovery responses are to be supplemented seasonably pursuant to M.R.C.P. 26(f). Seasonableness must be determined on a case by case basis looking at the totality of the circumstances surrounding the supplemental information the offering party seeks to admit. In its request for production of documents, Ameristar-Las Vegas sought the production of any report received from an expert and all documents used by the expert to form his or her opinion instead of filing an interrogatory request for expert information pursuant to M.R.C.P. 26(b)(4)(A)(I). Buchanan produced no documents in response to the eight requests for production of documents. In her response, she stated that she objected to the requested information. Her objection was not appropriate as it stated no grounds or basis for the objection. The response amounted to a waiver of any alleged objection. After Ameristar-Las Vegas received Buchanan’s response, it filed a motion for summary judgment. Ameristar-Las Vegas then received the expert report and affidavit the day before the hearing on the motion for summary judgment. Ameristar-Las Vegas immediately filed a motion to strike Buchanan’s expert report and affidavit as being untimely, rather than a motion to compel discovery. The language of M.R.C.P. 37 does not mandate that a party must file a motion to compel unanswered or incomplete discovery. At trial and on appeal, Buchanan’s position was that the expert report was timely submitted to Ameristar-Las Vegas pursuant to M.R.C.P. 56. Buchanan did not argue that M.R.C.P. 26 does not specifically require that the expert’s information listed under M.R.C.P. 26(b)(4)(A)(I) be provided in the form of a report. This issue does not involve whether summary judgment was appropriate. Because Buchanan did not timely file the expert report within the sixty-day discovery deadline order, the judge did not abuse its discretion by granting Ameristar-Las Vegas’s motion to strike the expert report and affidavit. Issue 2: Summary judgment Buchanan argues that Ameristar-Las Vegas is the alter ego of Ameristar-Vicksburg. To support her position, Buchanan relies upon the alter ego factors used by the federal courts. At the time of the summary judgment motion, Buchanan argued that Ameristar-Las Vegas was the parent company and owned all of the capital stock of its subsidiary, Ameristar-Vicksburg. Ameristar - Las Vegas did not deny this relationship between the two companies. Ameristar-Las Vegas was incorporated in Nevada and had at least six directors and seven officers. In contrast, Ameristar-Vicksburg was incorporated in Mississippi, and had only one director and five officers. Craig H. Neilsen was the president and one of six directors of Ameristar-Las Vegas and the president and sole director of Ameristar-Vicksburg. In addition, Thomas M. Steinbauer was the senior vice-president of finance, chief financial officer, treasurer, and secretary for Ameristar-Las Vegas. Other than Neilsen and Steinbauer’s positions, no other officer or director was the same for the two corporations. Corporations are considered to be separate and distinct entities even if the same individuals are the incorporators of, or own stock, in the several corporations, and although such corporations may have the same persons as officers. Therefore, the corporate veil cannot be pierced merely because there was a commonality of ownership and directors or officers of Ameristar-Las Vegas and Ameristar-Vicksburg. In addition to maintaining separate corporate documents and records, the two corporations also had separate board meetings, minutes, corporate books, accounting records and payrolls. Additionally, the two companies had separate articles of incorporation and bylaws. Ameristar-Las Vegas was incorporated in Nevada, whereas Ameristar-Vicksburg was incorporated in Mississippi. Both companies had an independent accounting firm audit the annual financial statements for Ameristar-Las Vegas and its six subsidiaries, including Ameristar-Vicksburg. While there is a significant connection between Ameristar-Las Vegas and Ameristar-Vicksburg, Buchanan failed to demonstrate that Ameristar-Las Vegas was the alter ego of Ameristar-Vicksburg. Buchanan did not show any frustration of contractual expectations regarding the party to whom she looked for performance. Buchanan had no contractual expectation regarding Ameristar-Las Vegas. In addition, Buchanan failed to show any flagrant disregard of corporate formalities by the Ameristar-Vicksburg and its principal, Ameristar-Las Vegas. |
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