United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
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.
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.
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.
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.
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.
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
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 ...