Coleman v. Apple Eight Overland Park, LLC et al
MEMORANDUM AND ORDER granting in part 30 Motion for Extension of Time to File. Response deadline 3/22/2017. Signed by Chief Judge J. Thomas Marten on 3/13/2017. (sz)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
Case No. 6:16-cv-01343-JTM-TJJ
APPLE EIGHT OVERLAND PARK, LLC;
APPLE EIGHT HOSPITALITY MANAGEMENT, INC.;
APPLE EIGHT SERVICES OVERLAND PARK, INC.;
APPLE EIGHT HOSPITALITY MIDWEST, LLC;
TRUE NORTH HOTEL GROUP, INC.,
MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s motion to extend the time to respond
to a motion to dismiss or for summary judgment by several defendants. After reviewing
the record, the court finds the motion for extension of time should be granted in part.
This case is simple enough at its core – a “slip and fall” in legal parlance. The
accident occurred at a Fairfield Inn hotel in Overland Park, Kansas, on August 19, 2014.
Plaintiff filed suit in state court, naming various defendants as entities that allegedly
owned, occupied, operated or controlled the hotel and its premises. Dkt. 1-1. The
defendants removed the case based upon federal diversity jurisdiction. Dkt. 1.
Since the case was removed, the parties have engaged in a fair amount of
procedural wrangling without making significant progress, with the exception that
True North Hotel Group, Inc., has been substituted as a defendant in place of two
Marriott entities named in the initial complaint.
On December 14, 2016, three of the four Apple Eight defendants (all but Apple
Eight Hospitality Management, Inc.) joined in a motion to dismiss the claims or,
alternatively, for summary judgment. Dkt. 22. These entities denied that they owned,
occupied or controlled the hotel premises. Shortly thereafter, plaintiff’s counsel sought
to extend the deadline for adding or dismissing parties and for amending the pleadings,
asserting that more time was needed to review defendants’ disclosures. Dkt. 25.
Defendants opposed the motion. Dkt. 26. Plaintiff also moved to amend the complaint
and to extend the time to respond to defendants’ motion, arguing discovery was needed
to address the latter issue. Defendants opposed the extension. Dkt. 33. Plaintiff’s motion
to amend has now been granted and an amended complaint was filed (Dkt. 58). The
Amended Complaint includes the same four Apple Eight entities and contains the same
allegations against them as the initial complaint.
Defendants argue that plaintiff’s request for more time should be denied because
plaintiff has had all of the relevant information and the information shows that three of
the four Apple Eight entities have no legal responsibility for the accident. Out of an
abundance of caution, however, the court will grant plaintiff until March 22, 2017, to
respond to defendants’ motion. The preference for resolution of litigation on the merits
rather than through procedural default weighs in favor of an extension. Moreover,
although plaintiff’s motion fails to include the affidavit required by Rule 56(d), the
circumstances surrounding the Apple Eight entities’ relationship with each other and
with the hotel are sufficiently convoluted that plaintiff can legitimately claim a need for
additional time to investigate and verify defendants’ explanations. For example,
defendants explain that a property deed shows that “the Hotel is owned by Defendant
Apple Eight Hospitality Midwest, LLC”; that a “Relicensing Franchise Agreement
between Marriott International, Inc. and the Hotel’s lessee, Defendant Apple Eight
Hospitality Management, Inc., show[s] that Marriott International, Inc.’s only
connection to the Hotel is that of a franchisor”; that the evidence shows an “Owner
Agreement between Marriott International, Inc., as franchisor, Apple Eight Hospitality
Midwest, LLC, as Hotel owner/lessor, and Apple Eight Hospitality Management, Inc.,
as franchisee/lessee, wherein the parties agreed to certain terms and conditions
regarding future transfers of the Property”; and that a Management Agreement was
entered between Apple Eight Hospitality Management, Inc. and True North Hotel
Group Inc. under which the latter “agreed to provide property management services for
the Hotel, staffing and handling day-to-day operation and maintenance.” Dkt. 26 at 2-3.
Defendants further explain that the lease agreement and franchise agreement provide
that “AEH-Midwest” and “AEH-Mgt.” have various distinct responsibilities with
respect to the hotel, that the two Apple Eight Overland Park entities have no
ownership, control, or possessory right to the hotel, and that all four of the Apple Eight
entities are subsidiaries of Apple Hospitality REIT, Inc. Dkt. 23, 23-1.
The court acknowledges (as defendants assert) that plaintiff may have had access
to the relevant information for some time. Moreover, it appears that plaintiff’s counsel
made less than overwhelming efforts to communicate on the issue. The identification of
the appropriate defendant(s) in this case is a matter that probably should have been
resolved between counsel without motions and extensive briefing. Even at this late
date, a simple phone call between counsel ought to be sufficient to resolve the issues
raised by defendants’ motion. Nevertheless, for the reasons indicated above the court
will grant plaintiff an extension of time to respond to the motion.
IT IS THEREFORE ORDERED this 13th day of March, 2017, that plaintiff’s
Motion for Extension of Time (Dkt. 30) is GRANTED IN PART. Plaintiff has until March
22, 2017, to respond to defendants’ motion to dismiss or for summary judgment (Dkt.
___s/ J. Thomas Marten_______
J. THOMAS MARTEN, JUDGE
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