2014 weapons arrest could tilt Mandalay Bay litigation for plaintiff

Plaintiffs' attorneys in a federal negligence lawsuit over last year's Mandalay Bay hotel mass shooting are hoping a 2014 weapons arrest in the same hotel where Stephen Paddock killed 58 people will tilt the case in their favor.

Authorities arrested Kye Aaron Dunbar in November 2014 after finding six weapons inside his 24th floor Mandalay Bay hotel room, an incident attorneys for the 2017 victims' families say proves casino owner MGM Resorts International could have thwarted the deadliest mass shooting in modern U.S. history.

In the 2014 case, a scoped rifle was found pointed from a hotel room window toward crowds on the Las Vegas Strip, according to federal court filings. At the time of his arrest Dunbar was on probation for a previous conviction which barred him from possessing weapons.

Dunbar, now 32, pleaded guilty to one count of felony possession of a firearm and was sentenced in 2016 by Nevada District Court Judge James C. Gallo to 40 months in federal prison, according to court filings.

A record of the incident surfaced in a procedural motion filed July 5 by plaintiffs' attorneys seeking to remand the 2017 case to state court. The motion for extension asks a judge to grant more time to respond to MGM's motion to dismiss in light of the 2014 arrest.

The motion also said 28 other suspicious incidents happened at the casino, but did not elaborate any further.

Casino defense attorneys alleged in court documents that MGM had no liability for last year's shooting because Paddock's conduct was an unforeseeable act without precedent.

Kevin Boyle, a Panish Shea & Boyle name partner who, with partner Rahul Ravipudi, filed the motion for the victims' families, said the 2014 arrest shows that last year's shooting could have been stopped.

"I don't know what could have put MGM on notice more than finding a felon with multiple rifles in his Mandalay room in 2014, including one with a scope that was pointing down at the Vegas Strip," said Boyle. "You would think after that they would have taken at least some measures to enforce their 'no guns' policy and prevent people from getting assault rifles up into their rooms. Instead, in 2017, they literally carried the 23 guns and 5,000 rounds of ammo and tripods and body armor up for the guy."

Plaintiffs are also represented by Eglet Prince and Robinson Calcagnie Inc.

"MGM claims that they had no reason to be concerned that something like this could ever happen. But it already happened at least once in one of their very own hotels. Of course they knew," said plaintiffs' attorney Mark Robinson in an email.

Attorneys for Dunbar said the cache of weapons was intended for a shooting range.

In its sentencing memorandum, the U.S. attorney's office in Nevada argued otherwise. The conduct "strongly suggests that the defendant was not merely in possession of these weapons to engage in 'target shooting.' ... [T]he defendant had apparently positioned a scoped rifle so that it was pointed out of his hotel room window at the Mandalay Bay and towards the Las Vegas Strip," the sentencing document said.

Debra DeShong, an MGM spokesperson, declined to comment on the record. The company is represented by Brad Brian of Munger, Tolles & Olson LLP and Nevada firm Pisanelli Bice PLLC.

In their motion to dismiss the lawsuit, MGM's attorneys said, "Nothing at Mandalay Bay or in Las Vegas resembles [the shooter's] extraordinarily vicious assault on concert goers a quarter-mile away. That nothing like this ever had happened anywhere -- let alone at Mandalay Bay or the Las Vegas Village -- precludes as a matter of law the existence of a legal duty."

In their request for an extension, the plaintiffs accused the defense of hiding information about the 2014 event.

Courts have repeatedly ruled in favor of businesses with regard to negligence claims in shootings, from Aurora to the Colorado Planned Parenthood shooting, saying they cannot be held liable for the uncontrollable acts of a deranged third party. But the unearthing of the previously thwarted incident at Mandalay Bay could change that. Even if a previous attack didn't take place, that's still enough to put MGM on notice, according to Robert Simon of the Simon Law Group.

"If they were able to stop it, then why didn't they this time? It is a very low standard at this stage in the game," said Simon, who is not involved with the case.

"A business' duty to protect customers versus what is reasonably foreseeable is the balancing act courts apply," Simon said. "If there is a prior similar incident a court cannot say this isn't foreseeable. That should get them over the legal hurdle of MSJ. Then it will be up to a jury if they could have done something."

Neama Rahmani, who is representing some of the victims in the state court case, said the 2014 incident doesn't not play well for the defense.

"In this case not only should they have known but did they have actual knowledge. In this case you had both. They should have known. It definitely helps the plaintiff," said Rahmani, president of West Coast Trial Lawyers.