Fay et al v. Namou et al
ORDER Granting Plaintiff's 40 Motion Pursuant to Federal Rule of Civil Procedure 56(d) and Denying Defendant Namou's 32 Motion for Summary Judgment. Signed by District Judge George Caram Steeh. (BSau)
Case 2:19-cv-10902-GCS-MKM ECF No. 46, PageID.747 Filed 11/18/20 Page 1 of 8
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JOHN FAY and JANICE FAY,
Case No. 19-CV-10902
HON. GEORGE CARAM STEEH
AKRAM NAMOU, d/b/a NAMOU
HOTEL GROUP, et al.,
ORDER GRANTING PLAINTIFFS’ MOTION PURSUANT TO
FEDERAL RULE OF CIVIL PROCEDURE 56(d) [ECF No. 40]
AND DENYING DEFENDANT NAMOU’S MOTION FOR
SUMMARY JUDGMENT WITHOUT PREJUDICE [ECF No. 32]
Plaintiffs John and Janice Fay filed this negligence action, alleging
that they suffered carbon monoxide poisoning from an uncontrollable fire in
the hotel’s HVAC system while staying at the Hawthorne Suites hotel
located at 30180 North Civic Boulevard, Warren, Michigan (the “Subject
Hotel”). The matter is before the court on the motion for summary
judgment filed by defendant Akram Namou, d/b/a Namou Hotel Group
(“NHG”). Namou argues that he is entitled to summary judgment because
plaintiffs have not produced any evidence that he or NHG actively
Case 2:19-cv-10902-GCS-MKM ECF No. 46, PageID.748 Filed 11/18/20 Page 2 of 8
participated in the alleged tortious acts alleged in the complaint that would
subject him to liability.
Plaintiffs filed their complaint in this court on March 27, 2019. The
parties appeared for a scheduling conference on September 23, 2019 and
a scheduling order was entered on that date. Thereafter, Atain Insurance
Company (“Atain”) filed a declaratory action in Michigan state court seeking
a determination that Atain has no duty to provide insurance coverage for
Warren under the terms of an insurance policy. The parties agreed to
extend all dates in the scheduling order by six months (ECF No. 27). On
April 9, 2020, the court entered a stipulated scheduling order setting
discovery cutoff on May 3, 2021 and a dispositive motion deadline of July
1, 2021. The order also stayed discovery until July 7, 2020 due to the
challenges and disruptions caused by the COVID-19 pandemic (ECF No.
On July 10, 2020, three days after the stay on discovery ended,
defendant Namou filed the pending motion for summary judgment. In an
affidavit attached to his motion for summary judgment, Namou states that
he is the President and a 50% shareholder of defendant Warren Hospitality
Suites, Inc. (“Warren”). (Namou Aff. ¶¶ 2, 3; ECF No. 32-1, PageID.233).
Namou avers that Warren has owned, managed and operated the Subject
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Hotel since 2007. Id. at ¶ 5. With regard to NHG, Namou states that NHG
is a Michigan for-profit corporation, incorporated on September 15, 2015, of
which he is the President and a 50% shareholder. Id. at ¶ 6 (Articles of
Incorporation, Exhibit 2). He states that NHG does not own, operate,
manage or have any involvement with the Subject Hotel. Id. at ¶ 9.
Namou asserts that neither he nor NGH actively participated in the alleged
tortious conduct that gave rise to plaintiff’s lawsuit, and therefore he should
be dismissed as a defendant from this case.
With the permission of the Court, plaintiffs responded to Namou’s
motion by filing a motion under Fed. R. Civ. P. 56(d), requesting additional
discovery prior to the court’s consideration of Namou’s motion. “A party
invoking the protections of Rule 56(d) must do so in good faith by
affirmatively demonstrating how postponement of a ruling on the motion will
enable him to rebut the movant’s showing of the absence of a genuine
issue of fact.” Doe v. City of Memphis, 928 F.3d 481, 490 (6th Cir. 2019).
A motion under Rule 56(d) must be supported by an affidavit or declaration
setting forth the specific reasons that it cannot present facts essential to
justify its opposition to the motion. Comerica Bank v. Esshaki, No. 17-cv11016, 2017 WL 3913102, at *4 (E.D. Mich. Sept. 7, 2017) (“a court need
not delay adjudication of a summary judgment motion to afford the parties
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additional time for discovery, where the non-moving party fails to submit an
affidavit, as required by Rule 56(d) . . . which sets forth ‘a description of the
information needed and an affirmative demonstration of how the requested
discovery will permit the non-moving party to rebut the grounds alleged for
summary judgment’”) (quoting Cunningham v. Osram Sylvania, Inc., 221
Fed.Appx. 420, 423 (6th Cir. 2007)).
The plaintiffs allege in their Complaint that on July 25, 2016, they
were guests at the Subject Hotel and were exposed to “a toxic level of
carbon monoxide while sleeping in the hotel room.” Complaint, at ¶¶ 2223. Plaintiffs further allege that “a cause of the carbon monoxide poisoning
in the Subject Hotel Room was an uncontrollable fire in the Subject HVAC
System.” Id., at ¶ 23. Plaintiffs make the following allegations in the
complaint as it relates to Namou: (1) Mr. Namou personally undertook the
management of the Subject Hotel and, therefore, is personally liable for all
acts and omissions of any employees, agents and apparent agents done at
the Subject Hotel (Id., at ¶ 4); and (2) Mr. Namou used NHG, an
unincorporated business, as a d/b/a in connection with managing the
Subject Hotel (Id.). In their Rule 56(d) motion, plaintiffs assert that a lack of
discovery about who made the decisions concerning capital improvements,
purchasing carbon monoxide alarms, paying bills, hiring, training and
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supervising maintenance personnel at the Subject Hotel, prevents them
from adequately defending Namou’s motion for summary judgment.
Plaintiffs’ counsel, Joseph Gorman, attaches his affidavit to the Rule
56(d) motion. In the affidavit, Mr. Gorman recites information uncovered in
his investigation and early discovery. This includes the fact that Mr. Namou
is President and a 50% owner of Warren; that Dean Jamoua was the
manager of Warren at the time of the incident and he reported to Warren
co-owner Maher Abdulnoor (Jamoua dep., pp. 19, 36-37); that the chief
mechanical inspector for the City of Warren, Kurt Davis, conducted a postfire inspection with an owner of Warren; and that NHG failed to comply with
Michigan’s filing requirements to maintain its status as a corporation in
2017, 2018 and 2019 (Gorman Affidavit, ¶ 3). Gorman avers that the
foregoing information suggests that Warren’s owners are actively involved
in the supervising, inspecting and maintaining the Subject Hotel, including
the heating and HVAC systems (Gorman Affidavit, ¶ 4).
Attorney Gorman sets forth the discovery he seeks in order to
respond to Namou’s motion for summary judgment. This includes:
• Taking the depositions of Mr. Namou and Warren’s other coowner, Mr. Maher Abdulnoor, concerning their level of
involvement, or their knowledge of who is involved, in the
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decision making, operating and maintaining of the Subject
Hotel. This discover is relevant to a material issue in the case
regarding potential liability of Mr. Namou.
• Conducting Rule 30(b)(6) depositions of Warren’s and NHG’s
• Deposing Heather Kanona, the regional manager for Warren.
• Deposing Laith Sawa of Sawas Mechanical regarding his
inspection and testing of HVAC equipment at the Subject Hotel
following the incident.
• Serving discovery requests seeking identification of all
individuals involved in daily maintenance and decision-making
concerning capital improvements at the Subject Hotel, as well
as information about the corporate structure and finances of
NHG and Warren. Deposing identified individuals concerning
The witnesses sought to be deposed by plaintiffs are likely to have
relevant insight on the issue of whether Namou was involved in the
management, maintenance and repairs at the Subject Hotel, such that he
would have potential liability for the alleged tortious conduct giving rise to
plaintiffs’ lawsuit. Furthermore, given the contradiction between Namou’s
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statement in his affidavit that NHG is a corporation and plaintiffs’ early
discovery indicating that NHG did not timely file multiple annual reports,
discovery is relevant to plaintiffs’ theory that Namou may be improperly
attempting to use NHG to shield himself from personal liability.
Though Gorman’s affidavit might not be the most artfully drawn, it
meets the minimum requirement of 56(d) by describing the materials he
hopes to obtain with further discovery and explaining how he expects those
materials to help in opposing summary judgment. See Everson v. Leis,
556 F.3d 484, 493 (6th Cir. 2009); Cunningham, 221 Fed.Appx. at 423.
Where a motion for summary judgment is filed “early in the litigation, before
a party has had any realistic opportunity to pursue discovery relating to its
theory of the case,” a district court should “fairly freely” grant the relief
authorized under Rule 56(d). Tossa v. Tardif, No. 14-12319, 2015 WL
5679871, at *13 (E.D. Mich. Sept. 28, 2015) (citing Burlington Northern
Santa Fe Railroad Co. v. Assiniboine & Sioux Tribes of Fort Peck
Reservation, 323 F.3d 767, 773 (9th Cir. 2003)).
For the reasons stated above,
IT IS HEREBY ORDERED that defendant Namou’s motion for
summary judgment [ECF NO. 32] is DENIED without prejudice.
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IT IS HEREBY FURTHER ORDERED that plaintiffs’ Rule 56(d)
motion [ECF NO. 40] is GRANTED.
It is so ordered.
Dated: November 18, 2020
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 18, 2020, by electronic and/or ordinary mail.
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