Nyland v. Rooke LLC

Filing 28

ORDER denying 8 Motion for Summary Judgment without prejudice to renew after adequate discovery has taken place. Signed by Judge John W Sedwick on 2/18/16.(JWS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF ARIZONA

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MELISSA NYLAND,

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Plaintiff,
vs.
ROOKE, LLC, d/b/a RIOT
HOSPITALITY GROUP,

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Defendant.
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2:15-cv-01670 JWS
ORDER AND OPINION
[Re: Motion at Docket 8]

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I. MOTION PRESENTED
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At docket 8, Defendant Rooke, LLC, d/b/a Riot Hospitality Group (“Rooke” or
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“Defendant”) filed a motion for summary judgment. Plaintiff Melissa Nyland (“Plaintiff”)
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filed a response at docket 15, requesting that the court deny the motion for summary
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judgment as premature pursuant to Rule 56(d) of the Federal Rules of Civil Procedure.
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Defendant’s reply is at docket 17. Oral argument was not requested and would not be
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of assistance to the court.
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II. BACKGROUND
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Plaintiff alleges she worked at a restaurant, El Hefe Super Macho Taqueria (“El
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Hefe”), in Scottsdale, Arizona, and that Rooke was her employer because it “owns and
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operates” El Hefe.1 Plaintiff brings two Title VII sexual harassment claims against

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Rooke.

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The complaint was filed in late August of 2015. On November 4, 2015, the

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parties submitted their Rule 26(f) report to the court. On that same day, before the

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court filed its scheduling and planning order, and therefore before any deadlines had

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been set or any discovery had taken place, Defendant filed the motion for summary

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judgment. In the motion, Defendant argues that summary judgment is warranted

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because it is not Plaintiff’s employer and that Plaintiff knew as much based on her

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personal experience with El Hefe. Defendant alternatively argues that it cannot be an

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employer liable under Title VII because it has less than fifteen employees. In support of

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its motion, Defendant submitted a declaration of Justin Cohen, Rooke’s Director of

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Operations. The declaration alleges that Rooke is only one of several members of the

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limited liability corporation 4425 Saddlebag, LLC (“Saddlebag”), which is the entity that

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actually owns El Hefe. The declaration asserts that Saddlebag is a separate entity, with

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separate employees, separate employee handbooks, and separate management. It

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asserts that Saddlebag alone makes employment decisions for El Hefe. It asserts that

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the manager at El Hefe, whose actions form the basis of Plaintiff’s complaint, was

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Saddlebag’s employee. It asserts that Plaintiff knew her employer was Saddlebag and

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not Rooke because the restaurant’s employee handbook and her payroll records reflect

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Saddlebag as her employer.

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Plaintiff argues in her response that ruling in favor of summary judgment would

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be premature because the issue of which entity could be deemed her employer is an

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issue of fact and law that cannot be resolved without discovery. She requests that the

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court deny the motion pursuant to Rule 56(d) to allow her adequate time to develop her

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theory of the case as it relates to which entity can be considered her employer. As

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required under the Rule 56(d), Plaintiff attached a declaration to her response

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Doc. 1 at ¶ 4.

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explaining that her attorney has not had an opportunity to conduct discovery and

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therefore cannot present facts essential to oppose the motion for summary judgment at

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this time. Her response also indicates that she plans to f ile a motion to amend the

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complaint to add other allegedly related entities as defendants. Indeed, at docket 19

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Plaintiff has filed such a motion, along with a proposed amended complaint that seeks

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to add Saddlebag and three other corporate entities as defendants. She alleges in the

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proposed amended complaint that all the corporate entities, including Rooke, operate

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identically and all do business under the name Riot Hospitality Group.2

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III. STANDARD OF REVIEW
Rule 56(d) of the Federal Rules of Civil Procedure applies “‘where the

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non-moving party has not had the opportunity to discover information that is essential to

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its opposition.’”3 It permits a party to resist a summary judgment motion by “show[ing]

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by affidavit or declaration that, for specified reasons, it cannot present facts essential to

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justify its opposition” to the motion.4 The declaration must put forth “the specific facts

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that [the party] hope[s] to elicit from further discovery” and must indicate that the “facts

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sought exist” and are “essential” to oppose summary judgment.5 However, when a

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party has not “had any realistic opportunity to pursue discovery relating to its theory of

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the case” courts grant Rule 56(d) motions “fairly freely.”6

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See doc. 19-1. The proposed amended complaint also seeks to add an individual,
Ryan Hibbert, as a defendant and seeks to bring a claim for assault and battery against him.
Defendant opposes the request to amend. The motion only recently became ripe and has not
yet been ruled on by the court.
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Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (quoting Metabolife Int'l,
Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)).
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Fed. R. Civ. P. 56(d).

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California ex rel. Cal. Dep’t of Toxic Substances v. Campbell, 138 F.3d 772, 779 (9th
Cir.1998)
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Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck
Reservation, 323 F.3d 767, 773 (9th Cir.2003).

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IV. DISCUSSION
As required by Rule 56(d), Plaintiff’s attorney submitted a declaration in support

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of Plaintiff’s request to deny summary judgment pending further discovery. In the

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declaration, the attorney asserts that he needs time to discover information about the

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corporate relationships between Rooke and other affiliated corporate entities; whether

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Rooke or any of its affiliated corporate entities had the ability to hire, fire, or discipline

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Plaintiff; and whether Rooke or any of its affiliated corporate entities had the ability to

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monitor or control Plaintiff’s work environment or dictate the terms and conditions of her

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employment. The declaration also states that Plaintiff has not had time to discover

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facts to contest the number of employees Rooke has for purposes of establishing

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whether Rooke can be liable under Title VII.

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Rooke argues that the declaration lacks specifics or any indication that such

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facts actually exist. While it is proper for a court to deny a Rule 56(d) application

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“where it is clear that the evidence sought is almost certainly nonexistent or is the object

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of pure speculation,” 7 here the court cannot conclude that such f acts are clearly

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nonexistent at such an early stage of litigation. Indeed, at the time the motion was filed

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Plaintiff had not had any time to develop affirmative evidence that could oppose

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summary judgment by showing that Rooke could be considered Plaintiff’s employer for

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purposes of Title VII. Rooke brought this motion for summary judgment the same day

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the parties filed their Rule 26(f) report and before the court could issue a scheduling

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and planning order. Thus, at the time the motion was filed, there had been no

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discovery exchanged between the parties. Therefore, the situation here is one where

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Plaintiff has not “had any realistic opportunity to pursue discovery relating to its theory

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of the case” and the court should therefore more freely grant the request to deny

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summary judgment pending further discovery.8

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Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).
Burlington N. Santa Fe R.R. Co., 323 F.3d at 773.

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Defendant also argues that Plaintiff failed to allege in the complaint that it was

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her employer and therefore contends she has not adequately stated the elements of

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her claim. However, paragraph 7 of Plaintiff’s complaint clearly alleges that Rooke was

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her employer.9 Rooke argues that her theory as to why it would be liable as her

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employer even though it is simply an investor in the company that actually owns El Hefe

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is not adequately pled in her complaint. Even if such a deficiency were fatal to her

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complaint, the case is still in the early stages of litigation, and Plaintiff has timely filed a

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motion to amend, which is currently pending before the court. The proposed amended

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complaint more clearly sets forth her theory of employment. She has not had any

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realistic opportunity to pursue such a theory. Therefore, summary judgment is not

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appropriate at this time.

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V. CONCLUSION

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Based on the preceding discussion, pursuant to Rule 56(d)(1), Defendant’s

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motion for summary judgment at docket 8 is DENIED without prejudice to renew after

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adequate discovery has taken place.

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DATED this 18th day of February 2016.

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/s/ JOHN W. SEDWICK
SENIOR UNITED STATES DISTRICT JUDGE

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Doc. 1 at ¶ 7.

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