MEMORANDUM AND ORDER

JEAN C. HAMILTON, District Judge.

This matter is before the Court on Defendants Pinnacle Entertainment, Inc. ("Pinnacle"), Casino One Corp., Inc., now known as Tropicana St. Louis LLC ("Casino One")1, Tropicana Entertainment Inc. ("Tropicana"), and Four Seasons Hotels Limited's ("Four Seasons") (collectively, "Casino Defendants") Motion to Dismiss Plaintiffs' Complaint, filed August 7, 2015. (ECF No. 6). The motion is fully briefed and ready for disposition.

BACKGROUND

On or about March 24, 2015, Plaintiffs Salko Radoncic, Adis Radoncic, and Halil Todic filed a Petition for Damages against Casino Defendants, the Missouri Gaming Commission ("MGC")2, Trooper Barbara Collins, and John Does 1-6 in the Circuit Court of the City of St. Louis, Missouri. (Petition for Damages (hereinafter "Complaint" or "Compl."), ECF No. 3). With respect to Casino Defendants, Plaintiffs' Complaint includes claims for battery, assault, intentional infliction of emotional distress, respondeat superior liability, negligence, false arrest, false imprisonment, discrimination under 42 U.S.C. § 1981, civil rights violations under 42 U.S.C. § 1983, and attorneys' fees pursuant to 42 U.S.C. § 1988. (Id., ¶¶ 85-260). All of Plaintiffs' claims stem from an alleged incident in the early morning hours of November 19, 2013, in which Defendants and/or their employees or agents violently attacked Plaintiffs as they attempted to enter Lumiere Place Casino, and then falsely imprisoned them for several hours. (Id., ¶¶ 32-84).

On August 4, 2015, Casino Defendants removed the case to this Court on the basis of federal question jurisdiction. (ECF No. 1). Defendants Trooper Barbara Collins and MGC filed their consents to removal on August 10 and September 21, 2015, respectively. (ECF Nos. 9, 21). Casino Defendants filed the instant Motion to Dismiss on August 7, 2015, asserting that Tropicana, Pinnacle and Four Seasons must be dismissed as Casino One is the only proper Casino Defendant in this case, and that a number of Plaintiffs' claims must be dismissed for failure to state a claim upon which relief may be granted. (ECF No. 6).

STANDARD FOR MOTION TO DISMISS

In ruling on a motion dismiss, the Court must view the allegations in the complaint in the light most favorable to plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008). The Court, "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). The complaint's factual allegations must be sufficient "to raise a right to relief above the speculative level," however, and the motion to dismiss must be granted if the complaint does not contain "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007) (abrogating the "no set of facts" standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Furthermore, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 555 (pleading offering only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action" will not do)).

DISCUSSION

I. Is Casino One The Only Proper Casino Defendant In This Case?

In their motion Casino Defendants first claim Tropicana, Pinnacle and Four Seasons must be dismissed, as Casino One is the only proper Casino Defendant in this case. (Casino Defendants' Memo in Support, P. 4). As support for this position, Casino Defendants assert that at all relevant times Casino One owned and operated Lumiere Place, including the casino and points where the incident at issue allegedly occurred. (Id.). Casino Defendants thus maintain that although Casino One is a wholly owned, indirect subsidiary of Tropicana, Casino One alone was responsible for hiring and supervising all Lumiere Place employees, including those allegedly involved here. (Id.). Casino Defendants further assert Tropicana had no affiliation with Casino One at the time of the incident3, and Four Seasons was in no way involved, as it operates a hotel tower managed separately from where the alleged incident occurred. (Id.).

In response, Plaintiffs request that the Court defer its ruling on this issue, in order to permit them time to engage in discovery with respect to "the exact nature of each named defendant[']s particular responsibility to the injuries sustained." (Plaintiffs' Opposition to Defendants' Motion to Dismiss Plaintiffs' Complaint ("Plaintiffs' Opp."), PP. 3-4). Upon consideration the Court will grant Plaintiffs' request, and deny this portion of Casino Defendants' Motion to Dismiss without prejudice.

II. Assault

Casino Defendants next assert Plaintiffs' assault claims against them must be dismissed, as they merely duplicate Plaintiffs' claims for battery. (Casino Defendants' Memo in Support, PP. 4-5). Under Missouri law, an assault is "any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt under circumstances creating a fear of imminent peril." Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 335 (Mo. banc 2011) (internal quotations and citation omitted). In order to plead an assault, Plaintiffs must allege: "(1) defendant[s'] intent to cause bodily harm or offensive contact, or apprehension of either; (2) conduct of the defendant[s] indicating such intent, and (3) apprehension of bodily harm or offensive contact on the part of the plaintiff[s] caused by defendant[s'] conduct." Id. (internal quotations and citation omitted). By way of contrast, a battery is "an intended, offensive bodily contact with another." Geiger v. Bowersox, 974 S.W.2d 513, 516 (Mo. App. 1998) (citation omitted). The Missouri Supreme Court has explained that an assault "is sometimes described as an inchoate battery," while a battery "is considered the consummation of an assault." Devitre, 349 S.W.3d at 335 (internal quotations and citations omitted).

Liberally construing the Complaint in Plaintiffs' favor, as it must for purposes of this motion, the Court finds Plaintiffs sufficiently have alleged the essential facts necessary to state claims for assault. See Elgin v. McKay, 2014 WL 294424, at *5 (E.D. Mo. Jan. 27, 2014). For example, with respect to Salko Radoncic Plaintiffs claim Defendants "intentionally, willfully, wantonly and maliciously threatened to strike Plaintiff SALKO and did raise open hands to and at him in such a manner as to cause Plaintiff to reasonably believe he was about to be struck in a harmful and offensive manner." (Compl., ¶ 104; see also Id., ¶ 110 (same allegation with respect to Adis Radoncic); ¶ 116 (same allegation with respect to Halil Todic)). Furthermore, while the Court recognizes that the majority of the claimed injuries in Plaintiffs' assault counts are more consistent with actual physical contact, it further notes that Plaintiffs additionally claim emotional and psychological injuries as a result of Casino Defendants' actions. (See Compl., ¶ 84, incorporated into Plaintiffs' assault claims in ¶¶ 103, 109, and 115). Thus, at this early stage of the proceedings the Court will permit Plaintiffs' assault claims to go forward, and deny this portion of Casino Defendants' Motion to Dismiss.

III. Intentional Infliction Of Emotional Distress

Casino Defendants next assert Plaintiffs' claims for intentional infliction of emotional distress must be dismissed. (Casino Defendants' Memo in Support, PP. 5-7). "In Missouri, to state a claim of intentional infliction of emotional distress, a plaintiff must plead: (1) the defendant acted intentionally or recklessly; (2) the defendant's conduct was extreme and outrageous; and (3) the conduct caused severe emotional distress resulting in bodily harm." Diehl v. Fred Weber, Inc., 309 S.W.3d 309, 321 (Mo. App. 2010) (citations omitted). "The conduct must have been so outrageous in character and so extreme in degree that it is beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community." Id. (citations omitted).

Furthermore, "Missouri courts have held that where one's conduct amounts to the commission of a traditional tort and was not intended only to cause extreme emotional distress to the victim, the tort of intentional infliction of emotional distress will not lie and recovery must be had under the appropriate traditional tort action." Diehl, 309 S.W.3d at 322 (citation omitted). "The rationale behind this rule is that the tort of intentional infliction of emotional distress. . . . was intended to supplement existing forms of recovery, not swallow them." K.G. v. R.T.R., 918 S.W.2d 795, 799 (Mo. banc 1996) (citation omitted). Thus, "[w]hile recovery for emotional distress caused by battery may be allowable as an element of damages in a battery action, there is no independent action for intentional infliction of emotional distress where the existence of the claim is dependent upon a battery." Id.

Upon consideration, the Court finds Plaintiffs' claims for intentional infliction of emotional distress are predicated on their claims for battery and assault.4 "Thus, their claims for [intentional infliction of emotional distress] must be dismissed, lest they `swallow' Plaintiffs' predicate tort claims." White v. Jackson, 2015 WL 1189963, at *8 (E.D. Mo. Mar. 16, 2015) (quoting K.G., 918 S.W.2d at 799-800). Casino Defendants' Motion to Dismiss Plaintiffs' claims for intentional infliction of emotional distress will therefore be granted. Id.

IV. 42 U.S.C. § 1981

Casino Defendants next assert Plaintiffs fail to state claims under 42 U.S.C. § 1981, because their claims for discrimination on the basis of national origin are not cognizable under that statute. (Casino Defendants' Memo in Support, PP. 7-9). Specifically, Casino Defendants note Plaintiffs' § 1981 claims are premised on the fact that they were denied access to the casino because they were wearing Bosnian National Soccer Team paraphernalia, claims clearly sounding in national origin discrimination. (Id., P. 8, citing Compl., ¶¶ 41, 54, 219).

42 U.S.C. § 1981 provides in relevant part as follows: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens." Section 1981 thus has a specific function; it "protects `identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics.'" Torgerson v. City of Rochester, 643 F.3d 1031, 1052 (8th Cir.) (quoting St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987)), cert. denied, 132 S.Ct. 513 (2011). "Section 1981 does not authorize discrimination claims based on national origin." Id. at 1053 (citation omitted)5; see also Central America Health Sciences University, Belize Medical College v. Norouzian, 236 S.W.3d 69, 81 (Mo. App. 2007) (internal quotations and citation omitted) ("Courts have consistently held that 42 U.S.C. section 1981 is by its very terms limited to acts of racial discrimination.").

In their response, Plaintiffs attempt to tie their discrimination claims to ancestry or ethnic characteristics, by asserting they belong to an ethnic group called "Bosniaks," "characterized by their ties to the Bosnian historical region, identification with the Islamic faith since the 15th and 16thcenturies and association with a common culture and/or traditions." (Plaintiffs' Opp., PP. 8-9). Upon review, however, the Court notes that nowhere in their Complaint do Plaintiffs mention this asserted association, nor do they include allegations regarding Defendants' supposed discrimination on the basis thereof. The Court therefore will grant this portion of Casino Defendants' Motion to Dismiss, as Plaintiffs' Complaint as stated asserts only claims for discrimination based on national origin.6 See Zar v. South Dakota Bd. of Examiners of Psychologists, 976 F.2d 459, 467 (8th Cir. 1992) ("This claim of discrimination based upon national origin is insufficient to state a § 1981 claim.").7

V. 42 U.S.C. § 19838

Casino Defendants finally assert that Plaintiffs' claims under 42 U.S.C. § 1983 must be dismissed for failure to state a claim because, even assuming they were acting under color of state law, "[a] corporation acting under color of state law will only be held liable under § 1983 for its own unconstitutional policies." Crumpley-Patterson v. Trinity Lutheran Hosp., 388 F.3d 588, 590 (8th Cir. 2004) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978))).

Id. at 590-91 (internal quotations and citations omitted).

In the instant case, the Court finds Plaintiffs' Complaint fails to include any "allegations, reference, or language by which one could begin to draw an inference that the conduct complained of . . . resulted from an unconstitutional policy or custom." Crumpley-Patterson, 388 F.3d at 591 (internal quotations and citation omitted). Instead, Plaintiffs refer solely to Casino Defendants' employees' alleged actions in this instance.9 Under these circumstances, the Court cannot find "any language or facts from which an inference could be drawn that [Casino Defendants] had a policy or custom" of behaving in the manner alleged, and so this portion of their Motion to Dismiss must be granted. Id. See also Sanders v. Sears, Roebuck & Co., 984 F.2d 972, 975 (8th Cir. 1993) (holding corporations may not be held liable under § 1983 under a theory of respondeat superior).10

CONCLUSION

Accordingly,

IT IS HEREBY ORDERED that Casino Defendants' Motion to Dismiss Plaintiffs' Complaint (ECF No. 6) is GRANTED in part and DENIED in part, in accordance with the foregoing.