Errico v. Rosa et al

Filing 64

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER "In accordance with the foregoing, 1) plaintiff's motion for default judgment and amended motion for default judgment (Docket Nos. 29 and 33 ) are DENIED but Wyndham Worldwi de Corporation, WYN Orlando Lessee LLC and WHM LLC are deemed properly served and will, if they have not already done so, file responsive pleadings on or before May 31, 2011; 2) the defendants' motions to dismiss (Docket Nos. 56 and 57 ) are, with respect to WHR, ALLOWED, and, with respect to Wyndham Worldwide Corporation, WHM LLC and WYN Orlando Lessee LLC, DENIED; 3) plaintiff's motions to strike (Docket Nos. 37 , 46 , 60 , 63 ) are DENIED. To clarify this Court's Order o f December 3, 2010, the Court confirms that Counts VI and VII remain pending against Wyndham Worldwide Corporation, WYN Orlando Lessee LLC and WHM LLC (named in complaint as 'Wyndham Hotel') and Count VI remains pending against the individual defendants Rosa and Connors." Copy mailed to plaintiff (Duong, Diep)

United States District Court
District of Massachusetts
________________________________
)
CHRISTOPHER ERRICO,
)
Plaintiff,
)
)
v.
)
Civil Action No.
)
10-10337-NMG
DANIEL ROSA, ET AL.,
)
Defendants.
)
________________________________ )
MEMORANDUM & ORDER
GORTON, J.
Pro se plaintiff Christopher Errico (“Errico”) brings suit
against five police officers of the Billerica, Massachusetts
Police Department (Chief of Police Daniel Rosa and Patrolmen
William Conners, Joseph Smith, Daniel O’Leary and Parker),
“Wyndham Hotel”, Wyndham Hotel employee Brandon Peterson and
certain unknown defendants.

Plaintiff claims violations of his

Fourth Amendment right to be free from unreasonable search and
seizure, pursuant to 42 U.S.C. § 1983, negligent supervision,
intentional infliction of emotional distress, malicious
prosecution and negligence.
I.

Factual Background
This case arises out Errico’s arrest on March 7, 2006 at the

Wyndham Hotel in Billerica, Massachusetts, where he was staying
(“the Billerica Wyndham”).

Errico claims that certain Billerica

police officers unlawfully entered and searched his hotel room
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and that the Wyndham Hotel and its employee, Brandon Peterson,
contributed to that violation of his civil rights by allowing the
police to enter his room.
II.

Procedural History
Errico filed his complaint in federal court on February 23,

2010.

On June 4, 2010, the police officer defendants moved to

dismiss the complaint for failure to state a claim upon which
relief can be granted.

On October 13, 2010, Magistrate Judge Leo

Sorokin issued a Report and Recommendation (“the R&R”) on the
motion to dismiss and further recommended that the claims against
two of the defendants who did not move to dismiss, i.e. the
Wyndham Hotel and Peterson, be dismissed because of plaintiff’s
failure to perfect service.
On December 3, 2010, the Court issued an Order accepting and
adopting the R&R except with respect to defendant Wyndham Hotel.
Accordingly, 1) Counts I-V and VII were dismissed with respect to
the moving defendants, 2) Count VI was dismissed with respect to
Officers O’Leary, Parker and Smith only and 3) all claims against
defendant Peterson were dismissed for failure to perfect service.
Because the Court found that Wyndham Hotel had been properly
served with process, the Court declined to dismiss all claims
against it as recommended in the R&R.

Those claims, i.e. Counts

VI for malicious prosecution and VII for negligence, and claims
against Chief Rosa and Patrolman Connors for malicious

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prosecution remain viable.
The following motions have been filed, are opposed and
remain pending:
1)

Plaintiff’s amended motion for default judgment as to
Wyndham Worldwide Corp (“WWC”) (Docket No. 33);

2)

WWC’s motion to strike plaintiff’s motion for default
(Docket No. 37);

3)

plaintiff’s motion to strike WHM LLC’s answer and
application for an order of contempt (Docket No. 46);
and

4)

motions of WWC, WHM LLC and WYN Orlando Lessee LLC to
dismiss the complaint (Docket Nos. 56 & 57).

Thereafter, plaintiff moved to strike answers to the
complaint by Peterson and WWC (Docket Nos, 60 & 63).

Those

motions are unopposed.
III. Motion for Default Judgment and Motions to Dismiss
A.

Background

Errico moved for a default judgment against WWC on the
grounds that WWC was served at its headquarters in Dallas, Texas
on June 28, 2010 and never responded.

Four separate entities

affiliated in some way with the Wyndham Hotel chain did respond:
1)

Wyndham Hotels and Resorts, LLC (“WHR”) is a franchisor

of certain Wyndham hotels.

Counsel for WHR submitted a letter to

the Court stating that it was not the owner or operator of the
Billerica Wyndham, is not aware of or affiliated with an entity
called Wyndham Hotel or Wyndham Hotel Corp. and was never served
with process at its headquarters in Delaware or its principal
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place of business in New Jersey.
2)

WYN Orlando Lessee LLC (“WYN Orlando”) previously

operated the Billerica Wyndham.

WYN Orlando opposes the motion

on the grounds that it is not affiliated with the entity “Wyndham
Hotel”, is not named in this action and was never served.

WYN

Orlando states that it first learned of the lawsuit on January
20, 2011.
3)

WHM LLC (“WHM”) previously conducted daily operations at

the Billerica Wyndham and employed its staff.

WHM opposes the

motion on the same grounds as WYN Orlando and states that it
first learned of the lawsuit on January 20, 2011.
4)

Wyndham Worldwide Corporation (“WWC”) is the parent

company of WHR and opposes the motion on the same grounds as WYN
Orlando and WHM.
The four Wyndham entities have also filed motions to dismiss
the complaint.

WWC and WHR move to dismiss on the grounds that

Errico failed to serve the proper party.

WYN Orlando and WHM

move to dismiss because they were not named in the complaint nor
served with process.
B.

Analysis

With respect to WWC, a returned summons (Docket No. 31)
demonstrates that process was properly served on its corporate
headquarters in Dallas, Texas on June 28, 2010.

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With respect to WYN Orlando and WHM, it appears that a
summons sent to the Billerica Wyndham was returned unexecuted on
May 26, 2010.

It is an understandable error by a pro se

plaintiff to name “Wyndham Hotel” in the complaint instead of the
correct corporate entity or entities which operate and manage the
Billerica Wyndham.

In fact, the hotel’s corporate structure is

so complicated and convoluted that it seems designed to obfuscate
responsibility and even trained attorneys would have had a hard
time ascertaining the appropriate party upon which to serve
process.
Given that 1) Errico tried to serve WYN Orlando and WHM at
the Billerica Wyndham’s address and 2) the only other available
address listed for the public was WWC’s headquarters in Dallas,
Texas, the Court finds that Errico has effectively served WYN
Orlando and WHM through WWC.

Therefore, the Court will deny the

motions to dismiss with respect to those parties.

Because WWC,

WYN Orlando and WHM were not named in the complaint, however, and
because they have all appeared and answered since being notified
of this lawsuit, Errico’s motion for a default judgment will be
denied.
With respect to WHR there is no evidence that it was served
with process or is affiliated with the Billerica Wyndham in any
way.

Moreover, it was not named in the complaint.

Court will allow the motion to dismiss that entity.

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Thus, the

IV.

Motions to Strike Answers
Errico moves for an order imposing sanctions against WWC,

WHR and “WWH LLC” (presumably, Errico intends to refer to WHM
LLC) for obstructing his access to Brandon Peterson and his
attempts to serve the summons and complaint.

Errico also notes

that, on February 10, 2011, he sent defense counsel for the
various Wyndham entities an offer of settlement which was
rejected.

Because 1) it is unclear whether the various Wyndham

entities intentionally confounded the service of process and 2)
they ultimately responded to Errico’s complaint after being
notified of the motion to default, Errico’s motion for sanctions
will be denied.

The corporate defendants are forewarned,

however, that any further obfuscation as to what entity (or
entities) are responsible for the operation of the subject hotel
will result in the imposition of substantial sanctions.
Errico’s motion to strike Brandon Peterson’s answer will be
denied as moot because all claims against Peterson were dismissed
in December, 2010.

The remaining motions to strike will be

denied because they are rendered moot by the Court’s findings
with respect to the motion for default judgment and the motions
to dismiss.

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ORDER
In accordance with the foregoing,
1)

plaintiff’s motion for default judgment and amended
motion for default judgment (Docket Nos. 29 and 33) are
DENIED but Wyndham Worldwide Corporation, WYN Orlando
Lessee LLC and WHM LLC are deemed properly served and
will, if they have not already done so, file responsive
pleadings on or before May 31, 2011;

2)

the defendants’ motions to dismiss (Docket Nos. 56 and
57) are, with respect to WHR, ALLOWED, and, with
respect to Wyndham Worldwide Corporation, WHM LLC and
WYN Orlando Lessee LLC, DENIED;

3)

plaintiff’s motions to strike (Docket Nos. 37, 46, 60,
63) are DENIED.

To clarify this Court’s Order of December 3, 2010, the Court
confirms that Counts VI and VII remain pending against Wyndham
Worldwide Corporation, WYN Orlando Lessee LLC and WHM LLC (named
in complaint as “Wyndham Hotel”) and Count VI remains pending
against the individual defendants Rosa and Connors.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated May 17, 2011

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