Cram et al v. Burger King Corporation et al

Filing 45

///ORDER granting 19 Motion for Summary Judgment; denying without prejudice 30 Motion to Compel. So Ordered by Chief Judge Landya B. McCafferty.(gla)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Elizabeth Cram and John Cram
v.

Civil No. 18-cv-394-LM
Opinion No. 2019 DNH 142

Burger King Corporation, et al.

O R D E R
Elizabeth Cram tripped and fell while at a Burger King
restaurant in Claremont, New Hampshire.

She and her husband

John Cram sued defendants, Burger King Corporation (“Burger
King”), the lessor of the Burger King restaurant where Elizabeth
was injured, Northeast Foods, LLC d/b/a Northeast Fast Foods
(“Northeast Foods”), the lessee of the restaurant, and Shoukat
Dhanani, the managing member of Northeast Foods, alleging claims
sounding in negligence and seeking damages arising out of
Elizabeth’s fall.1

Burger King and Dhanani move for summary

judgment on all plaintiffs’ claims against them.2
Plaintiffs object.

Doc. no. 19.

Plaintiffs also move for an order compelling

Dhanani to appear for a deposition in New Hampshire or

Plaintiffs also sued Houston Foods, Inc., but later
voluntarily dismissed that defendant pursuant to Federal Rule of
Civil Procedure 41(a)(1). Doc. no. 10.
1

Northeast Foods does not join in Burger King and Dhanani’s
motion. For ease of reference, the court refers to Burger King
and Dhanani collectively as “defendants.”
2

Massachusetts.

Doc. no. 30.

For the following reasons, the

court grants defendants’ motion for summary judgment and denies
plaintiffs’ motion to compel without prejudice.3

STANDARD OF REVIEW
A movant is entitled to summary judgment if it “shows that
there is no genuine dispute as to any material fact and [that
it] is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In reviewing the record, the court construes all

facts and reasonable inferences in the light most favorable to
the nonmovant.

Kelley v. Corr. Med. Servs., Inc., 707 F.3d 108,

115 (1st Cir. 2013).
BACKGROUND
The following facts are drawn from the summary judgment
record and are construed in the light most favorable to
plaintiffs.

In January 2018, plaintiffs ate at the Burger King

restaurant in Claremont, New Hampshire.
intended to use the women’s restroom.

After eating, Elizabeth
As Elizabeth opened the

door to the restroom, her right foot got caught in the rungs of
a child’s highchair that had been improperly placed next to the

Defendants requested a hearing on their summary judgment
motion. Upon review of the relevant pleadings, the court is not
convinced that oral argument would “provide assistance to the
court.” LR 7.1(d).
3

2

entrance door to the restroom.

When Elizabeth’s foot got

caught, she took an overextended step with her left leg to
prevent herself from falling on the floor.

As she stepped with

her left leg, she felt pain in that leg and fell against the
bathroom wall.
Immobilized, Elizabeth waited until her husband, John, came
looking for her in the women’s restroom.

After being helped up

by John, Elizabeth completed an incident report with the onsite
restaurant manager.

Shortly thereafter, Elizabeth sought

medical care at Valley Regional Hospital in Claremont.

She was

diagnosed with a “nearly full tear” of her left Achilles tendon.
Doc. no. 21-1 at 3.
The Burger King restaurant where Elizabeth’s injury
occurred is located at 324 Washington Street in Claremont, New
Hampshire (“the subject restaurant”).

At all times relevant to

this suit, Burger King owned the subject restaurant and the land
upon which it sits.

Burger King is a corporation engaged in the

business of operating and granting franchises of Burger King
restaurants.
At all times relevant to this suit, Burger King leased the
subject restaurant to Northeast Foods, which operated the
subject restaurant as Burger King’s franchisee.

Northeast Foods

is a limited liability company formed for the purpose of
operating franchised Burger King restaurants.
3

It is the

franchisee of numerous Burger King restaurants throughout New
England.

Dhanani is the managing member of Northeast Foods.

Northeast Foods’s relationship with Burger King is governed
by the lease and the Franchise Agreement, both of which Dhanani
signed on Northeast Foods’s behalf.

Doc. nos. 19-9, 19-10.4

Under the lease, Northeast Foods agreed to be responsible for
maintaining the subject restaurant “in good order and condition”
and making all necessary repairs and using all reasonable
precaution “to prevent waste, damage or injury.”
at 15.

Doc. no. 19-10

The lease also states that Burger King is not liable

“for any . . . injury occurring on the Premises” and that
Northeast Foods would indemnify Burger King from liabilities and
lawsuits arising out of the condition, maintenance, or repair of
the premises, and any injury occurring on the premises.

Id. at

14, 23.
The Franchise Agreement provides Northeast Foods the right
to operate the subject restaurant in exchange for the payment of
royalties to Burger King.

The Franchise Agreement makes clear

that Northeast Foods as franchisee is “an independent contractor

The parties separately move to seal the copies of the
lease and the Franchise Agreement submitted with their summary
judgment pleadings. As more fully explained in the order on the
motions to seal, issued this same day, the court denies that
request to the extent portions of the lease and the Franchise
Agreement are quoted and referred to in public documents—in the
parties’ pleadings and in this order. The motion to seal is
otherwise granted.
4

4

and is not an agent, partner, joint venture, joint employer, or
employee of [Burger King], and no fiduciary relationship between
the parties exists.”

Doc. no. 19-9 at 9.

As such, Northeast

Foods is responsible for hiring and training its own employees,
purchasing insurance, and maintaining and repairing the subject
restaurant.

In the Franchise Agreement, Northeast Foods also

promised to indemnify Burger King from any losses or liabilities
arising out of possession and operation of the subject
restaurant, including claims of injury.

Id. at 10.

Despite Northeast Foods’s status as an independent
contractor, the Franchise Agreement requires it, as franchisee,
to comply with certain standards and policies to ensure
uniformity of operation among Burger King restaurants.

To

ensure compliance with these standards, Burger King maintains
the right to enter and inspect the subject restaurant.

Burger

King also retains the right to terminate the Franchise Agreement
if Northeast Foods engages in conduct constituting a “default,”
including failing to comply with any terms of the Franchise
Agreement or any other agreement between the parties regarding
the subject restaurant.

Doc. no. 21-8 at 7.

In May 2018, following Elizabeth’s fall, plaintiffs brought
this suit, asserting claims of negligence against all
defendants, negligence under a theory of vicarious liability

5

against Burger King, and loss of consortium against all
defendants.
DISCUSSION
Burger King and Dhanani move for summary judgment on all
plaintiffs’ claims asserted against them.

Northeast Foods does

not join in the motion for summary judgment, and has not, at
this time, moved for summary judgment.

The court addresses the

claims alleged against Burger King and Dhanani below.

I.

Claims against Burger King
Plaintiffs assert three claims against Burger King: (A)

negligence; (B) vicarious liability for the negligent conduct of
its agents; and (C) loss of consortium.

The court addresses

each in turn.

A. Negligence
To prevail on a negligence claim, a plaintiff “must show:
(1) the defendants owed [her] a duty; (2) the defendants
breached this duty; and (3) the breach proximately caused [her]
injuries.”

Macie v. Helms, 156 N.H. 222, 224 (2007).

Defendants argue that Burger King, as the franchisor and owner
of the subject restaurant, did not breach any duty owed to
Elizabeth, a patron of the subject restaurant.

6

In response,

plaintiffs assert that Burger King owed Elizabeth, as a patron
of the subject restaurant, a “non-delegable duty” to ensure that
the highchairs were stored in a safe location, and that Burger
King breached that duty.

In other words, plaintiffs claim that

Burger King—based purely on its status as the owner and lessor
of the restaurant—owed Elizabeth a duty to make sure the subject
restaurant was free from hazards.
New Hampshire law does not impose such an absolute duty
on landowners and landlords, particularly where, as here, the
premises are controlled by another entity.

See Sargent v. Ross,

113 N.H. 388, 397-98 (1973); see also Lussier v. New Meditrust
Co., LLC, No. CIV. 00-074-B, 2001 WL 821534, at *2-3 (D.N.H.
July 10, 2001).

Rather, under New Hampshire law, courts

consider several factors to determine whether a landlord is
liable in negligence for injuries suffered by a third party
while using a leased premises.

See Sargent, 113 N.H. at 398;

Lussier, 2001 WL 821534, at *2-3.
Historically, New Hampshire law protected landlords from
liability for injuries arising on the leased premises unless the
injury resulted from: “(1) a hidden danger in the premises of
which the landlord but not the tenant [was] aware, (2) premises
leased for public use, (3) premises retained under the
landlord’s control, such as common stairways, or (4) premises
negligently repaired by the landlord.”
7

Sargent, 113 N.H. at

392.

But in Sargent, the New Hampshire Supreme Court abolished

this rule protecting landlords and held that “landlords as other
persons must exercise reasonable care not to subject others to
an unreasonable risk of harm.”

Id. at 397.

The Court explained

that the factors listed above “which formerly had to be
established as a prerequisite to even considering the negligence
of a landlord” are no longer a prerequisite for landlord
liability.

Id. at 398.

Instead, those same factors are now

considered in determining whether the landlord exercised
reasonable care under all the circumstances.

Id.

Lussier provides an instructive application of these
factors.

In Lussier, one of the plaintiffs slipped and fell on

steps at a rehabilitations center.
*1.

Lussier, 2001 WL 821534, at

The plaintiffs brought suit against the defendant, who

owned the property and leased it to the rehabilitation center,
asserting negligence and loss of consortium claims.

Id.

The district court granted the defendant’s motion for
summary judgment as to the negligence claim.

Id. at *3.

The

court noted that the defendant had leased the property to the
rehabilitation center, which had “assumed the primary duty under
the lease to maintain the property in a reasonably safe
condition.”

Id.

The court further found that the defendant was

not involved in the facility’s maintenance, did not have “actual
notice” of the rehabilitation center’s failure to maintain the
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steps in a safe condition, and that the defendant relinquished
possession of the facility before the problem with the steps
developed.

Id.

Lussier is on all fours with this case.

Burger King leased

the subject restaurant to Northeast Foods, which assumed the
primary duty under the lease to maintain the subject restaurant
in good order and condition and to take reasonable precaution to
prevent injury.

There is no evidence in the record that Burger

King was involved in the maintenance of the subject restaurant
or that Burger King had any notice of Northeast Foods’s
placement of the highchairs.

And the allegedly negligent

placement of the highchairs obviously did not occur until after
Northeast Foods took control of and began operating the subject
restaurant.
As in Lussier, plaintiffs here point to no facts from which
a reasonable jury could infer that Burger King was negligent
with regard to the placement of the highchairs.

Plaintiffs’

sole argument raised in their objection—that Burger King had a
“non-delegable” duty to ensure that the highchairs were properly
stored—is contrary to New Hampshire law.

Therefore, defendants

are entitled to summary judgment as to plaintiffs’ direct
negligence claim against Burger King in Count 1.

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B. Vicarious Liability
In Count 2, plaintiffs claim that Burger King should be
held vicariously liable for the negligent conduct of its agents,
Northeast Foods and Dhanani, in failing to properly store the
highchairs in the subject restaurant.

The court addresses

plaintiffs’ vicarious liability claim against Burger King
separately as to each allegedly negligent agent: Northeast Foods
and Dhanani.

1. Northeast Foods
Defendants argue that Burger King is entitled to summary
judgment on the vicarious liability claim as to Northeast Foods
because Burger King did not exercise control over the location
and placement of highchairs in the subject restaurant.

In

VanDeMark v. McDonald’s Corp., 153 N.H. 753 (2006), the New
Hampshire Supreme Court encountered the same legal question
before this court: whether a restaurant franchisor and property
owner could be held vicariously liable for the alleged
negligence of its franchisee and tenant.

See id. at 761-63.

The plaintiff in that case, an employee of the franchisee who
worked as an overnight custodian, was assaulted by intruders at
the franchised McDonald’s restaurant.

Id. at 755.

He claimed

that McDonald’s as the franchisor should be held vicariously

10

liable for its franchisee’s failure to implement security
measures that would have prevented his injuries.

Id. at 756.

The New Hampshire Supreme Court affirmed the grant of
summary judgment to McDonald’s because no agency relationship
existed between McDonald’s and its franchisee.

Id. at 763.

The

Court reasoned that no such agency relationship existed because,
under the parties’ agreements, McDonald’s did not retain control
over the specific “instrumentality” that caused the harm: the
franchisee’s security policies.

Id.

Defendants argue that Burger King, like McDonald’s in
VanDeMark, cannot be held vicariously liable because it did not
control the instrumentality that purportedly caused plaintiffs’
harm—the location of the highchairs at the subject restaurant.
In support, defendants cite to Dhanani’s affidavit, which states
that the placement of highchairs within the subject restaurant
“is a matter of routine maintenance that is handled by
[Northeast Foods’s] onsite Managers.”

Doc. no. 19-4 at 2.

Defendants also note that nothing in the lease or the Franchise
Agreement suggests that Burger King has any control over or
input into the placement of restaurant furniture at the subject
restaurant.
Plaintiffs do not respond to defendants’ reliance on
VanDeMark or otherwise argue that Burger King somehow controlled
the placement of the highchairs.
11

Instead, plaintiffs point to a

case, Valenti v. NET Properties Management, Inc., 142 N.H. 633
(1998), that they assert supports the proposition that Burger
King owed plaintiffs a “non-delegable duty to maintain safe
premises” at the subject restaurant.
Plaintiffs are mistaken.

Valenti stands for the

proposition that—where a landlord still retains possession of
the premises—the landlord can be held vicariously liable for the
negligence of an independent contractor over whom the landlord
maintains control.

Valenti, 142 N.H. at 636.

Indeed, in

Lussier, the court rejected the very same argument that
plaintiffs assert here.

See Lussier, 2001 WL 821534, at *4.

As

the court in Lussier explained:
[A] lease transfers the landowner’s right to possess
its property to the tenant during the term of the
lease. Because a landowner loses the right to possess
its property when it executes a lease, it has far less
ability to oversee its tenant’s maintenance activities
than it does to oversee an independent contractor who
is working on property within the landowner’s
possession.
Id.

Unlike the defendant in Valenti, Burger King did not retain

possession or control of the subject restaurant.

To subject a

landlord to liability for its tenant’s negligence under these
circumstances would, as the court in Lussier explained, “be
extending the doctrine of vicarious liability in a manner
contemplated by neither the New Hampshire Supreme Court nor the
drafters of the Restatement (Second) of Torts.

12

Such an

extension of state common law is not an appropriate activity for
a federal court.”

Id.

In short, the rule in Valenti does not

apply here.
Plaintiffs do not respond to defendants’ reliance on
VanDeMark or point to any evidence in the record to suggest that
Burger King controlled the placement of the highchairs in the
subject restaurant.

Under these circumstances, even viewed in

the light most favorable to plaintiffs, there is no genuine
dispute of material fact over whether Burger King controlled the
instrumentality that caused plaintiffs’ harm.

See VanDeMark,

153 N.H. at 763; see also Murphy v. Holiday Inns, Inc., 219
S.E.2d 874, 878 (Va. 1975) (granting summary judgment to
franchisor on vicarious liability claim when franchisor had “no
power to control daily maintenance of the premises”).5

Burger

King is entitled to summary judgment on Count 2 as it relates to
Burger King’s relationship with Northeast Foods.

Although not raised by plaintiffs, the court notes that
this conclusion is not undermined by the fact that Burger King
retained a general right to inspect the subject restaurant and
terminate the Franchise Agreement for noncompliance. See, e.g.,
Wendy Hong Wu v. Dunkin’ Donuts, Inc., 105 F. Supp. 2d 83, 88
(E.D.N.Y. 2000)(observing that “most courts” have concluded that
retaining the right to enforce uniform standards, reserving a
right to reenter and inspect the premises, or having a right to
terminate an agreement for failure to meet standards does not
exhibit sufficient control to subject franchisors to vicarious
liability) aff’d sub nom. Wu v. Dunkin’ Donuts, Inc., 4 F. App’x
82 (2d Cir. 2001); Kerl v. Dennis Rasmussen, Inc., 682 N.W.2d
328, 341 (Wis. 2004) (describing same as “majority approach”).
5

13

2. Dhanani
Plaintiffs allege that Burger King is vicariously liable
for Dhanani’s negligent acts.

See doc. no. 1 at ¶ 25.

Because,

as the court explains in detail infra at part II, Dhanani is not
liable for negligence, there is no basis for finding that Burger
King could be vicariously liable for his actions.

See

Restatement (Third) of Torts: Apportionment Liab. § 13
(describing vicarious liability as the imputation of liability
to one person “based on the tortious acts of another”).

Burger

King is therefore entitled to summary judgment on Count 2 in its
entirety.

C. Loss of Consortium
Finally, plaintiffs assert a claim of loss of consortium
against Burger King on John’s behalf.

Because the court concludes

that Burger King is entitled to summary judgment on both of
plaintiffs’ negligence claims against it, John cannot recover for
loss of consortium.

See RSA 507:8-a (spouse entitled to recover

damages for loss or impairment of right of consortium caused by
intentional or negligent injury to spouse); LaBonte v. Nat’l Gypsum
Co., 110 N.H. 314, 319 (1970) (describing wife’s loss of consortium
claim as “separate and distinct” cause of action from husband’s
personal injury claim that “results . . . from the negligent injury
14

to her husband”), superseded by statute on other grounds as stated
in Young v. Prevue Prods., Inc., 130 N.H. 84, 86 (1987); see also
Lussier, 2001 WL 821534, at *4 n.3 (dismissing husband’s loss of
consortium claim because court concluded defendant was not liable
to wife for negligence).

Burger King is therefore entitled to

summary judgment as to Count 3.

II.

Claims against Dhanani
Plaintiffs allege two claims against Dhanani: (A)

negligence; and (B) loss of consortium.
A. Negligence
In Count 1, plaintiffs assert that Dhanani should be held
personally liable for his own negligent conduct in operating the
subject restaurant.

They allege that his negligent acts

include, but are not limited to, failing to “ensure that the
[subject restaurant] was regularly inspected for physical
dangers to restaurant patrons and code violations, and failing
to adequately hire, train, and supervise employees to know and
comply with all applicable codes affecting the restaurant.”
Doc. no. 1 at ¶ 20.

Defendants argue that Dhanani is entitled

to summary judgment on this claim for two reasons.

First,

defendants argue that there is no evidence demonstrating that
Dhanani personally engaged in tortious conduct.

15

Second, they

argue that Dhanani cannot be held personally liable for any
alleged negligence of Northeast Foods, a limited liability
company (“LLC”), simply because he entered into the Franchise
Agreement on Northeast Foods’s behalf.
Under New Hampshire law, “a member of an LLC generally is
not liable for torts committed by, or contractual obligations
acquired by, the LLC.”
(2012).

Mbahaba v. Morgan, 163 N.H. 561, 566

RSA 304-C:23, which governs the liability of an LLC’s

members and managers to third parties, states that, except as
elsewhere provided:
(a) The debts, obligations, and liabilities of a
limited liability company, whether arising in
contract, tort, or otherwise, shall be solely the
debts, obligations, and liabilities of the limited
liability company; and
(b) No member or manager of a limited
company shall be obligated personally
debt, obligation, or liability of the
liability company solely by reason of
or acting as a manager of the limited
company.
RSA 304-C:23, I.

liability
for any such
limited
being a member
liability

This statute protects LLC members and managers

from being held vicariously liable for the LLC’s debts,
obligations, or liabilities.

See Mbahaba, 163 N.H. at 565.

Thus, when a manager or member of an LLC acts within his
authority to bind the LLC in making a contract, he is protected
from personal liability for breach of that contract.

Id.; see

id. at 566 (“LLC members and managers who disclose that they are

16

contracting on an LLC’s behalf are not liable for a breach
because they are not parties to the contract—only the LLC itself
is.”).
RSA 304-C:23 does not, however, always protect an LLC
manager or member from personal liability.

See id. at 565.

If

a manager or member “commits or participates in the commission
of a tort, whether or not he acts on behalf of his LLC, he is
liable to third persons injured thereby.”

Id.

Thus, RSA 304-

C:23 allows for personal liability of LLC managers or members
“if that liability is not based simply on the member’s
affiliation with the company.”

Id. (internal quotation marks

omitted); see also 17 Outlets, LLC v. Healthy Food Corp., No.
15-CV-101-JD, 2016 WL 1273925, at *3 (D.N.H. Mar. 30, 2016)
(holding that LLC manager could be held personally liable for
fraud if he intentionally made material misrepresentations to
induce plaintiff to sign lease agreement with LLC).

1. Dhanani’s personal involvement
In the complaint, plaintiffs allege that Dhanani is
personally liable because he failed to make sure that the
highchairs were stored in a safe location.

Dhanani argues that

there is no evidence that he personally participated in the
alleged negligent placement of the highchairs and that,
therefore, he was not negligent.
17

The New Hampshire Supreme

Court has recognized that a tort duty may arise if, under the
circumstances, a reasonable person would exercise a certain
degree of care for the protection of the plaintiff.
Mbahaba, 163 N.H. at 567.

See

For example, in a tort case brought

against the owner of a property management LLC, the New
Hampshire Supreme Court held that the owner could be personally
liable for harm to the tenant from lead paint where the owner
personally managed the property and had actual knowledge of the
presence of lead paint.

See id. at 567-68.

Here, there is uncontradicted evidence in the record that
Dhanani is not personally involved in the day-to-day operation
of the subject restaurant and that decisions regarding where to
store highchairs are made at other levels of management.
Indeed, the evidence shows that Northeast Foods hires other
employees who directly manage the day-to-day operations of the
subject restaurant.
Dhanani submitted a sworn affidavit that prior to
Elizabeth’s injury he “had no personal knowledge of the location
of highchairs within” the subject restaurant.
2.

Doc. no. 19-4 at

In his answers to interrogatories, Dhanani stated that, to

his knowledge, all inspections were conducted according to the
relevant guidelines.

This evidence supports Dhanani’s argument

that he had no personal control of or knowledge about the
placement of the highchairs.
18

Plaintiffs do not identify any evidence to the contrary.
They do not cite any evidence in the record that could give rise
to the inference that Dhanani participated in the placement of
the highchairs, had knowledge of their location, or otherwise
contributed to plaintiffs’ injury.

In fact, plaintiffs appear

to concede that Dhanani had no knowledge of the day-to-day
operations of the subject restaurant.

See doc. nos. 21 at 8, 22

at 1 (noting that defendants’ motion “admits that [Dhanani] has
no knowledge of the day-to-day operations of the restaurant”).
Under these circumstances, even viewing the evidence in the
light most favorable to plaintiffs, there is no genuine dispute
of material fact bearing on Dhanani’s personal liability.
Plaintiffs attempt to use the uncontroverted record
evidence showing that Dhanani had no knowledge of day-to-day
operations of the subject restaurant as a sword, arguing that
this fact demonstrates negligent dereliction of his personal
obligations under the Franchise Agreement.
flawed in several respects.

This argument is

First, Dhanani did not sign the

Franchise Agreement in his individual capacity; he signed it on
Northeast Foods’s behalf.

See Mbahaba, 163 N.H. at 566.

Therefore, he did not incur any personal obligations under the
Franchise Agreement that could give rise to a duty to
plaintiffs.

19

Second, Dhanani’s distance from day-to-day operations is
consistent with the terms of the Franchise Agreement.

The

Franchise Agreement requires Northeast Foods to employ a
“Restaurant Manager” who “is responsible for the direct,
personal supervision of the” subject restaurant.

Id.

Consistent with this language, Northeast Foods employs an
“onsite Manager responsible for day-to-day operation of the
restaurant, including interior and exterior maintenance of the
building and grounds.”

Doc. no. 19-4 at 2.6

Thus, Dhanani’s

lack of day-to-day involvement at the subject restaurant does
not show that he failed to fulfill his “personal obligations”
under the Franchise Agreement, but, rather, supports the
conclusion that he had no personal knowledge of, or involvement
with, the condition that gave rise to plaintiffs’ injury such
that he should be held personally liable.
In sum, the summary judgment record is devoid of evidence
showing that Dhanani should be held personally liable, such as
evidence that he had personal knowledge of a dangerous condition

The Franchise Agreement requires that Northeast Foods
empower the Managing Director (Dhanani) with “the authority to
direct any action necessary” to ensure that day-to-day
operations comply with the parties’ agreements. Doc. no. 21-8
at 5 (emphasis added). This provision ensures Dhanani would
have the power to oversee operations when necessary. This
provision does not mean that Dhanani is responsible for
directing and controlling day-to-day operations.
6

20

or lax maintenance practices at the subject restaurant, or that
he personally managed the property such that he should have
known of the purportedly dangerous condition.

Cf. Mbahaba, 163

N.H. at 567-68.

2. Franchise Agreement
Plaintiffs’ second theory in favor of Dhanani’s personal
liability relies on the language of the Franchise Agreement.
Specifically, plaintiffs argue that Dhanani is personally liable
based on his failure to “fulfill his contractual duty to Burger
King,” which resulted in the presence of a hazardous condition
at the subject restaurant.
The court is not convinced.

As explained above, Dhanani

did not sign the Franchise Agreement in his individual capacity,
but on behalf of the LLC.

See Mbahaba, 163 N.H. at 566.

The

Franchise Agreement, therefore, did not give rise to any
personal obligations on his part.

Even assuming for the sake of

argument that Dhanani did incur personal obligations to Burger
King by signing the Franchise Agreement, plaintiffs’ argument
still falls short.

Plaintiffs fail to explain how Dhanani’s

alleged breach of contractual obligations to a third party

21

them.

Dhanani is therefore entitled to summary judgment on

Count 1.7

B. Loss of Consortium
Plaintiffs assert a claim of loss of consortium against
Dhanani on John’s behalf.

Given the court’s conclusion that

Dhanani is entitled to summary judgment on plaintiffs’
negligence claim, John cannot recover for loss of consortium.
See RSA 507:8-a; LaBonte, 110 N.H. at 319 (describing wife’s
loss of consortium claim as “separate and distinct” cause of
action from husband’s personal injury claim that “results . . .
from the negligent injury to her husband”); see also Lussier,
2001 WL 821534, at *4 n.3 (dismissing husband’s loss of
consortium claim because court concluded defendant was not
liable to wife for negligence).

Accordingly, Dhanani is

entitled to summary judgment on Count 3.

The court notes that although plaintiffs have filed a
motion to compel Dhanani to appear for a deposition, they have
not argued that certain facts are unavailable to them and
therefore they “cannot present facts essential to justify
[their] opposition” to defendants’ summary judgment motion.
Fed. R. Civ. P. 56(d) (stating that a nonmovant may show by
affidavit or declaration that it needs additional discovery to
respond properly to a summary judgment motion). On the
contrary, as discussed above, plaintiffs argue that Dhanani was
not involved in the subject restaurant’s day-to-day operations
and attempt to use that fact in their favor.
7

22

In sum, the court grants Burger King and Dhanani’s motion
for summary judgment on all claims asserted against them.

The

only claims remaining in this suit are plaintiffs’ claims
against Northeast Foods.

III. Motion to Compel Deposition
Finally, the court addresses plaintiffs’ pending motion to
compel Dhanani to be subject to deposition in New Hampshire or
Massachusetts.

Doc. no. 30.

Plaintiffs’ and defendants’

briefing on this issue focuses largely on the location of
Dhanani’s deposition: plaintiffs seek to depose Dhanani in New
Hampshire or Massachusetts, while defendants seek to have
Dhanani’s deposition taken in Texas, where he resides and works.8
Plaintiffs assert that Dhanani should be compelled to
appear for deposition in New Hampshire or Massachusetts because
it is “well settled” that the deposition of a corporation by its
agents and officers should ordinarily be taken at its principal
place of business.

This rule, see 8A Wright & Miller, Federal

Practice and Procedure § 2112, is inapposite here.

Plaintiffs’

motion to compel does not seek to depose Northeast Foods, the

Defendants also state in their objection that Dhanani’s
deposition should be delayed until after the parties have
engaged in mediation. The timing of Dhanani’s deposition is a
matter best left to the parties to negotiate.
8

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“corporate” entity.

And, even if it did, Northeast Foods would

be entitled to designate one or more officers to testify on its
behalf.

See Fed. R. Civ. P. 30(b)(6).

There is no indication

in the record that Northeast Foods has designated Dhanani as its
Rule 30(b)(6) representative.

To the contrary, defendants aver

that they are in the process of scheduling depositions of
several other individuals (Stephan Gay, Roger Campbell, and
George Hiou) who Northeast Foods has designated to testify on
its behalf under Rule 30(b)(6).

Doc. no. 36 at 2.

Given these

facts, the court construes plaintiffs’ motion to compel as
seeking to depose Dhanani in his individual capacity.
Regarding an individual defendant or witness, the general
rule is that the person “should be deposed in the district of
his residence or principal place of business.”

Foley v. Loeb,

No. 06-53S, 2007 WL 132003, at *1 (D.R.I. Jan. 16, 2007)
(internal quotation marks omitted); Fed. R. Civ. P. 45(c)(1).
Plaintiffs offer no justification to discard this general rule.
Without more, the court sees no reason to disregard the normal
presumption that Dhanani should be deposed in Texas.
Therefore, plaintiffs’ motion is denied without prejudice.
To the extent plaintiffs still seek to depose Dhanani on issues
that remain relevant to the case after this order, they may
either do so in Texas or move for an order from this court, with

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sufficient justification, compelling Dhanani to appear for a
deposition in Massachusetts or New Hampshire.

CONCLUSION
For the foregoing reasons, the court grants Burger King and
Dhanani’s motion for summary judgment (doc. no. 19).

The court

denies without prejudice plaintiffs’ motion to compel (doc. no.
30).
SO ORDERED.

__________________________
Landya McCafferty
United States District Judge
August 29, 2019
cc: Counsel of Record

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