United States District Court, N.D. Georgia, Atlanta Division
ANDERSON MANGHAM, as surviving spouse of Carolyn Robinson Mangham, deceased, and as proposed administrator of the Estate of Carolyn Robinson Mangham, Plaintiff,
WESTIN HOTEL MANAGEMENT, LP, and SLC ATLANTA, LLC, Defendants.
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.
matter is before the Court on Defendants Westin Hotel
Management, LP's (“Westin”) and SLC Atlanta,
LLC's (“SLC”) (together,
“Defendants”) Motion for Summary Judgment ,
Plaintiff Anderson Mangham's (“Plaintiff”)
Motion to Strike the Affidavit of Michael Hsiang 
(“Motion to Strike”), Plaintiff's Motion for
Oral Argument on its Motion to Strike the Affidavit of
Michael Hsiang , Plaintiff's Motion for Leave to File
Certain Documents Designated Confidential by Defendants Under
Seal  (“Motion to Seal”), Plaintiff's
Motion for Partial Summary Judgment , and Plaintiff's
Motion for Oral Argument on its Motion for Partial Summary
March 22, 2016, Plaintiff's wife, Carolyn Robinson
Mangham (“Mrs. Mangham”), “was found dead
and partially frozen in a walk-in freezer” at the
Westin Peachtree Plaza Hotel (the “Hotel”) where
she worked. (Defendants' Statement of Undisputed Material
Facts [29.6] (“DSMF”) ¶ 1; [29.1] at 11).
Mrs. Mangham “enter[ed] the freezer alone during her
normal evening shift” and “was found [the next
morning] in a collapsed position inside the freezer.”
([29.11] at 11). Mrs. Mangham was employed by Starwood Hotels
& Resorts Worldwide, Inc. (“Starwood”) at the
time of her death. (DSMF ¶¶ 1-2).
owns and controls Defendant SLC, which owns the Hotel and the
fixtures inside the Hotel. (DSMF ¶¶ 3, 6).
“SLC operates the Hotel through the employees of its
parent company, [Starwood], ” and “does not have
any employees other than the employees of [Starwood].”
(DSMF ¶¶ 4-5). All of SLC's officers and
directors are employees of Starwood. (DSMF ¶ 7). All
Hotel employees are Starwood employees. (DSMF ¶ 8). In
March 2016, “all personnel, payroll[, ] accounting[, ]
[managerial, and administrative] functions relative to SLC
and the operation of the Hotel were performed by [Starwood]
personnel.” (DSMF ¶¶ 9-10). SLC does not have
offices separate from [Starwood] offices. (DSMF ¶ 11).
“[Starwood] can unilaterally make the decision to sell
the Hotel and fixtures at the Hotel, including the subject
freezer.” (DSMF ¶ 12). Starwood receives the
proceeds of any sale of the Hotel's fixtures. (DSMF
Westin also is a wholly-owned subsidiary of Starwood. (DSMF
¶ 15). It has “nothing to do with the Hotel,
” and “does not own, operate, maintain or
otherwise control the Hotel or the fixtures therein.”
(DSMF ¶¶ 14-15).
September 1, 2016, Plaintiff's Complaint [1.2] was filed
in the State Court of Fulton County, alleging that Mrs.
Mangham died in the Hotel freezer because “the door
release mechanism failed to function properly, causing [her]
to become trapped in the freezer.” (Compl. ¶¶
13-15). The Complaint asserts claims for “negligence -
premises liability” (Count 1) and wrongful death (Count
October 5, 2016, Defendants filed their Notice of Removal
. On October 20, 2016, and November 4, 2016, Defendants
filed amended notices of removal to cure jurisdictional
defects in their removal notice. (, ). On May 1, 2017,
Defendants filed their Motion for Summary Judgment on the
grounds that (1) Plaintiff's claims against SLC are
barred by Georgia's Workers' Compensation Act, and
(2) Westin “owed no duty to [Mrs. Mangham] since it had
absolutely nothing to do with the Hotel.” ( at 3).
On May 23, 2017, Plaintiff moved to strike the affidavit of
Michael Hsiang, which Defendants submitted in support of
their summary judgment motion. (). On June 13, 2017, more
than three weeks after the due date, Plaintiff filed his
Response to Defendants' Statement of Undisputed Material
Facts and Statement of Additional Facts. (). Plaintiff
did not file a memorandum in opposition to Defendants'
Motion for Summary Judgment. On October 10, 2017, more than
five months after the deadline for filing summary judgment
motions in this case, Plaintiff filed his Motion for Partial
Summary Judgment and his Motion for Oral Argument on the
Motion for Partial Summary Judgment. (See 
(requiring summary judgment motions to be filed on or before
May 1, 2017)). Plaintiff's partial summary judgment
motion argues that his claims are not barred by Georgia's
Workers' Compensation Act.
PLAINTIFF'S MOTION TO STRIKE
ruling on summary judgment, the Court may consider pleadings,
depositions, answers to interrogatories, admissions on file,
and affidavits submitted by the parties.” Tishcon
Corp. v. Soundview Communciations, Inc., No.
1:04-CV-524-JEC, 2005 WL 6038743, at *3 (N.D.Ga. Feb. 15,
2005) (citing Fed.R.Civ.P. 56(c)). “An affidavit or
declaration used to support or oppose a motion must be made
on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is
competent to testify on the matters stated.”
1, 2017, the Hotel's Director of Finance, Michael Hsiang,
executed and notarized his three-page affidavit, offering
testimony about the ownership and operation of the Hotel. On
May 1, 2017, Defendants submitted Mr. Hsiang's affidavit
in support of their summary judgment motion. On May 23, 2017,
one day after his summary judgment response was due,
Plaintiff moved to strike Mr. Hsiang's affidavit on the
grounds that “1) Hsiang did not signal his
understanding that the statements were made under penalty of
perjury; 2) the Affidavit contains generalized, conclusory
statements that are outside of the scope of Hsiang's
personal knowledge and competency; and 3) portions of the
Affidavit are inconsistent with Hsiang's prior deposition
testimony.” ( at 1-2).
Motion to Strike was filed after his response to
Defendants' summary judgment motion was due, and
Plaintiff did not request the Court to allow the motion to be
filed after the response deadline. For this reason alone,
Plaintiff's Motion to Strike should not be considered.
Even if it was considered, Plaintiff did not show that Mr.
Hsiang's affidavit should be struck. First, because Mr.
Hsiang's statements in his affidavit were
“subscribed and sworn to before” a notary public,
he was not required to certify that the statements were made
under penalty of perjury. ([29.2] at 3); see Tishcon
Corp., 2005 WL 6038743, at *3 (“An affidavit is a
voluntary declaration of facts written down and sworn to by
the declarant before an officer authorized to administer
oaths, such as a notary public.”). Only “unsworn
declarations[s]” must be “subscribed by [the
declarant] as true under penalty of perjury.” 28 U.S.C.
Plaintiff did not show that Mr. Hsiang's statements are
outside his knowledge or competency. Mr. Hsiang has been the
Hotel's Director of Finance for approximately twelve
years, and was designated, during discovery, as
Defendants' Federal Rule of Civil Procedure 30(b)(6)
representative. ( at 3, 7). Mr. Hsiang expressly stated
in his affidavit that, in his capacity as the Hotel's
finance director, he has “knowledge of all the facts in
this affidavit, and [that] all the facts stated herein are
true and correct to the best of [his] knowledge.”
([29.] ¶ 1).
Plaintiff identifies only three sentences in Mr. Hsiang's
affidavit that he claims are required to be struck as
impermissibly “general” or
“conclusory.” ( at 2). Plaintiff first
challenges paragraph 4 of Mr. Hsiang's affidavit, which
states that “[Starwood] formed SLC for the purpose of
entering into a land lease with the State of Georgia for the
land where the [Hotel] sits.” ([29.2] ¶ 4).
Plaintiff argues this statement should be struck on the
grounds that SLC was formed several years after the land
lease was executed in 1972. ( at 4-5). The record is
clear, however, that SLC is the successor in interest to the
corporate entity that entered into the land lease with
Georgia. ( at 9;  at 5). Mr. Hsiang's statement
is not inaccurate in light of this fact and, even if it was,
the statement is not material to Defendants' summary
also challenges paragraph 5 of Mr. Hsiang's affidavit,
which states that “SLC has no employees, other than
employees of [Starwood], and SLC was, at all relative times,
under the exclusive control of [Starwood].” ([29.2] at
¶ 5). Plaintiff claims this statement should be struck
because the phrase “at all relative times” is
unclear and the phrase “exclusive control” calls
for a legal conclusion. ( at 5). The word
“relative” appears to be a typographical error
and Mr. Hsiang likely intended to use the word
“relevant” instead. Even if he did not, Mr.
Hsiang's assertion that SLC was under the
“exclusive control” of Starwood clearly applies
to March 22, 2016, the date on which Mrs. Mangham died and
the only date relevant to this lawsuit. Plaintiff's
assertion that SLC was under the “exclusive
control” of Starwood also is a permissible statement of
fact, not a legal conclusion that must be ignored at the
summary judgment stage. See Heaton v. Home Transp.
Co., 659 F.Supp. 27, 30, 33 (N.D.Ga. 1986) (accepting as
true, at the summary judgment stage of a workers'
compensation case, an affiant's assertion that one entity
“was under the exclusive control” of another
also claims that paragraph 8 of Mr. Hsiang's affidavit
constitutes “inadmissible hearsay” because it
“fails to provide adequate detail about which
‘managerial and administrative functions relative to
SLC and the operation of the Hotel were performed by
[Starwood] personnel.” ( (quoting paragraph 8 of
Mr. Hsiang's affidavit)). Mr. Hsiang explicitly
testified, however, that “all” managerial and
administrative functions were performed by Starwood
personnel. ([29.2] ¶ 8). Even if he had not, Plaintiff
fails to offer any explanation or citation to authority for
his conclusory assertion that Mr. Hsiang's statement
constitutes “inadmissible hearsay.” Plaintiff has
not shown that Mr. Hsiang's affidavit, including the only
three sentences he specifically challenges, should be struck
as impermissibly “general” or
“conclusory.” ( at 2).
Plaintiff identifies a single sentence in Mr. Hsiang's
affidavit that he claims is contradicted by Mr. Hsiang's
deposition testimony. That sentence, in paragraph 3 of Mr.
Hsiang's affidavit, states: “[Westin] does not own,
operate, maintain or otherwise control the Hotel or fixtures
therein.” ([29.2] ¶ 3). The Court has reviewed Mr.
Hsiang's deposition testimony and finds that it is
consistent with paragraph 3 of his affidavit. Mr. Hsiang
testified at his deposition that Westin “never operated
the [Hotel], ” never “owned equipment that is
located at the [Hotel], ” and never “conducted
business in any form at the [Hotel].” ([31.3] at 8).
Mr. Hsiang further testified that “there is no
relationship between the hotel and Westin Hotel Management,
LP, ” that Westin “do[es] not own [the Hotel]
fixtures or the [Hotel] building, ” that Westin never
“paid for anything in the . . . hotel related to
ownership or maintenance of the building or fixtures, ”
and that Westin “operates other hotels . . .
as an operating management company.” ([31.3] at 4, 8,
22, 23; see also [31.3] at 19). Plaintiff has not
identified any material statements in the affidavit that are
directly contradicted by Mr. Hsiang's deposition
testimony. Plaintiff's Motion to Strike is
DEFENDANTS' MOTION ...