Sandonato v. Days Inn Worldwide, Inc. et al

Filing 78

OPINION AND ORDER granting in part and denying in part 53 Motion for Summary Judgment; adopting 70 Report and Recommendations. So Ordered by Judge William E. Smith on 3/5/12. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
DAYS INN WORLDWIDE, INC.,
)
)
Defendant.
)
___________________________________)
VINCENT SANDONATO,

C.A. No. 07-451 S

OPINION AND ORDER
WILLIAM E. SMITH, United States District Judge.
Before the Court is Defendant Days Inn Worldwide, Inc.’s
(“Days Inn”) limited objection to Magistrate Judge Lincoln D.
Almond’s Report and Recommendation (“R & R”) dated July 21,
2010 (ECF No. 70), recommending that Days Inn’s motion for
summary judgment (ECF No. 53) be granted in part and denied
in part.

Days Inn has also moved to strike the expert report

of Kenneth Esch, Plaintiff Vincent Sandonato’s expert.

For

the reasons set forth below, the Court accepts the R & R,
thereby

granting

in

part

and

denying

in

part

Defendant’s

motion for summary judgment, and grants Defendant’s motion to
strike.
I.

Facts and Procedural History
This action arises from a dispute between Days Inn and

its former franchisee, Vincent Sandonato.

In 2006, Days Inn

and

Sandonato

entered

into

a

franchise

agreement

(the

“agreement”) pursuant to which Sandonato was to convert a
hotel

he

owned

apparently

into

a

operated

Days

by

Inn

SAVI

hotel.

The

International

hotel

was

Corporation

(“SAVI”), Sandonato’s operating company, of which he was the
sole owner.
implement

From the beginning, Sandonato was reluctant to

some

of

the

changes

required

by

the

agreement,

including, but not limited to, replacing fractured sinks and
changing the wallpaper.

Three inspections conducted by Days

Inn personnel in November 2006, June 2007, and October 2007
found the hotel to be in non-compliance with the agreement.
In addition, Sandonato failed to make the franchise payments
required under the agreement.
Inn

increased

hotel’s

Sandonato’s

Central

intervals,

and

Due to these problems, Days

franchise

Reservation
threatened

fees,

shut

System

(“CRS”)

termination

of

down

for
the

the

various
franchise

agreement in the event of continued non-compliance.

In the

end, Sandonato terminated the agreement in April 2008.
Sandonato sued Days Inn asserting a variety of claims
related

to

counterclaimed.

their

failed

relationship.

Days

Inn

Days Inn has filed a motion for summary

judgment on Sandonato’s claims and Days Inn’s counterclaims.
Magistrate Judge Lincoln Almond issued an R & R, to which
Days

Inn

has

filed

a

limited
2

objection,

contending

that

summary judgment should have been granted in its favor as to
all claims and counterclaims.
II.

Discussion
A.

Standing to Assert Count 4

Days Inn first objects to the R & R’s recommendation
that summary judgment should not enter on Days Inn’s behalf
on Count 4.

Days Inn argues that it was SAVI, not Sandonato,

that operated the hotel (though Sandonato entered into the
agreement

with

Days

Inn)

and

that

Sandonato

did

not

personally incur any damages related to the instant claim.
Because Sandonato did not suffer any damages as a result of
Days Inn’s actions alleged in Count 4, Days Inn argues that
he does not have standing to assert this breach of contract
claim.
The Court accepts the R & R with respect to Count 4;
however, it does appear that Sandonato may have only incurred
nominal damages from Days Inn’s alleged breach.

See Nappe v.

Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 45-46, 477
A.2d 1224, 1228 (1984) (“The general rule is that whenever
there is a breach of contract, . . . or an invasion of a
legal right, the law ordinarily infers that damage ensued,
and, in the absence of actual damages, the law vindicates the
right

by

awarding

nominal

damages.”

(internal

citations

omitted)); see also City of Trenton v. Cannon Cochran Mgmt.
3

Servs., Inc., Docket No. L–1169–08, 2011 WL 3241579, at *4
(N.J. Super. Ct. App. Div. Aug. 1, 2011) (quoting Nappe, 97
N.J. at 45–46, 477 A.2d at 1228; citing Karcher v. Phila.
Fire & Marine Ins. Co., 19 N.J. 214, 217 (1955)).

To make a

claim for compensatory damages, Plaintiff will need to add
SAVI as a party to this suit.

Sandonato, therefore, may have

thirty (30) days to move to amend the Complaint to add SAVI.1
B.

Sandonato’s Expert and the CRS Shutdown
1.

Defendant’s Motion to Strike the Report of Mr.
Esch

Days Inn filed a motion to strike, which was heard by
Magistrate Judge Almond with its motion for summary judgment.
Judge Almond denied the motion as moot from the bench, in
light

of

Plaintiff’s

counsel’s

statements

that

he

would

produce the expert for deposition without advance payment.
In Days Inn’s limited objection to the R & R, it renewed its
motion

to

strike,

noting

that,

despite

Plaintiff’s

representations at the hearing before Judge Almond, Plaintiff
had

not

made

Mr.

Esch

available

for

a

deposition.

(See

Def.’s Limited Obj. to the M.J.’s R & R 10, ECF No. 73.)
During

the

September

30,

2010

hearing

on

the

instant

objection, the Court stated that, if Plaintiff did not make

1

Days Inn may, of course, object to any motion to amend,
as discussed at oral argument on the instant matters.
4

Mr. Esch available for deposition, Defendant may proceed with
his motion to strike.
After

the

hearing

on

these

motions,

the

parties

undertook settlement negotiations, which occurred off and on
for

close

to

a

year.

Thereafter,

Days

Magistrate Judge Almond with a status update.

Inn

contacted

(See generally

Letter from Jeffrey S. Brenner to the Hon. Lincoln D. Almond
(May 23, 2011).)
behalf

of

both

In that letter, Defendant proposed, on
parties,

that

they

conduct

Mr.

Esch’s

deposition on or before July 1, 2011, in Rhode Island as
previously
until

ordered,

August

5,

and

that

the

parties

2011

to

file

would

supplemental

addressing the issues currently before the Court.
at 1-2.)

then

have

memoranda
(See id.

In accordance with this suggestion, in a scheduling

order dated May 23, 2011, the Court ordered that the parties
depose Mr. Esch by July 1, 2011.
23, 2011, ECF No. 75.)

(See Scheduling Order, May

Plaintiff failed to comply with this

order and to present Mr. Esch for his deposition.

Plaintiff

has been provided with more than enough time to make Mr. Esch
available, and Plaintiff has received ample notice that his
failure to make Mr. Esch available for a deposition would
result in the expert report being stricken.
Defendant’s

motion

to

strike

Mr.

granted.
5

Esch’s

Accordingly,

report

is

hereby

2.

The CRS Shutdown

Days Inn also asserts in its limited objection that, if
Mr. Esch’s report is stricken, the Court should also grant
summary judgment in its favor on each and every one of its
counterclaims.

Plaintiff counters that, even in the absence

of Mr. Esch’s report and testimony, he has demonstrated a
material issue of fact as to who is to blame for the CRS
shutdown.

In opposition to Days Inn’s motion for summary

judgment, Sandonato attached the deposition transcript of the
hotel’s front desk clerk, Tiffanie Clauer-Janelle.

Clauer-

Janelle testified that she did not shut down the CRS and that
the Days Inn technical support team would, at times, log in
to the system under her username and password and “perform
all of the actions that need[ed] to be completed as [if] it
were me . . . .”

(Clauer-Janelle Dep. 37:20-22, 38:11-39:4,

June 12, 2009, ECF No. 64-11.)

This is enough to create a

material

in

testimony

factual
on

the

dispute,
issue,

even
and

the

absence

accordingly,

the

of
R

expert
&

R

is

accepted and Defendant’s limited objection is denied in this
respect.

6

III. Conclusion2
The Court hereby GRANTS Defendant’s motion to strike,
DENIES Defendant’s limited objection to the R & R, ACCEPTS
the R & R, and now makes the following orders:






Defendant’s Motion for Summary Judgment (ECF No. 53) on
Plaintiff’s Complaint (ECF No. 1) is GRANTED as to
Counts 1 and 5, but DENIED as to Count 4.
Counts 2 and 3 have been abandoned by Plaintiff and,
therefore, Defendant’s Motion is GRANTED as to those
Counts.
Defendant’s Motion for Summary Judgment (ECF No. 53) on
its Second Amended Counterclaim (ECF No. 42) is GRANTED
as to Counterclaim I, but DENIED as to Counterclaims II,
III, and IV.
With respect to Counterclaims V, VI, and VII, the
Defendant’s Motion is GRANTED in part (the $14,500.00
rental fees), and DENIED in part (the $2,500.00
liquidated damages).

(See R & R 18-19.)

Moreover, the Court GRANTS Sandonato

leave to move, within thirty (30) days from the filing of

2

In Sandonato’s supplemental response to Days Inn’s
limited objection, he argues that Days Inn “may not recover
liquidated damages as a matter of law” on its counterclaims.
(Pl.’s Supplemental Resp. to Def.’s Limited Obj. to the
M.J.’s R & R 3, ECF No. 77.)
The R & R recommended that
Defendant’s motion be denied insofar as it seeks liquidated
damages, because the issue is factually intertwined with the
issues of what constitutes a material breach of the
agreement, which party committed the breach, and when the
breach occurred.
While it is not clear whether Plaintiff
intended this argument to serve as an objection to the R & R
(though the R & R does not appear to be inconsistent with his
position) or a half-hearted attempt to move for summary
judgment on his own behalf, either way, he is clearly out of
time.
See Fed. R. Civ. P. 72(b); LR Cv 72 (requiring an
objection be lodged within fourteen days of the filing of an
R & R); see also United States v. Valencia-Copete, 792 F.2d
4, 6 (1st Cir. 1986) (holding that failure to file a timely
objection to an R & R may constitute waiver).
7

this Opinion and Order, to amend the Complaint.
will be set down for the May 2012 trial calendar.

IT IS SO ORDERED.

/s/ William E. Smith
William E. Smith
United States District Judge
Date: March 5, 2012

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This case