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Mangham v. Westin Hotel Management, L.P.

United States District Court, N.D. Georgia, Atlanta Division

October 11, 2017

ANDERSON MANGHAM, as surviving spouse of Carolyn Robinson Mangham, deceased, and as proposed administrator of the Estate of Carolyn Robinson Mangham, Plaintiff,
v.
WESTIN HOTEL MANAGEMENT, LP, and SLC ATLANTA, LLC, Defendants.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE.

         This 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 [29], Plaintiff Anderson Mangham's (“Plaintiff”) Motion to Strike the Affidavit of Michael Hsiang [31] (“Motion to Strike”), Plaintiff's Motion for Oral Argument on its Motion to Strike the Affidavit of Michael Hsiang [34], Plaintiff's Motion for Leave to File Certain Documents Designated Confidential by Defendants Under Seal [39] (“Motion to Seal”), Plaintiff's Motion for Partial Summary Judgment [41], and Plaintiff's Motion for Oral Argument on its Motion for Partial Summary Judgment [42].

         I. BACKGROUND

         A. Facts

         On 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).

         Starwood 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 ¶ 13).

         Defendant 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).

         B. Procedural History

         On 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 2).

         On October 5, 2016, Defendants filed their Notice of Removal [1]. On October 20, 2016, and November 4, 2016, Defendants filed amended notices of removal to cure jurisdictional defects in their removal notice. ([5], [7]). 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.” ([29] 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. ([31]). 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. ([37]). 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 [24] (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.

         II. PLAINTIFF'S MOTION TO STRIKE

         “When 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.” Fed.R.Civ.P. 56(c)(4).

         On May 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.” ([31] at 1-2).

         Plaintiff's 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. § 1746.[1]

         Second, 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. ([36] 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).

         Third, Plaintiff identifies only three sentences in Mr. Hsiang's affidavit that he claims are required to be struck as impermissibly “general[]” or “conclusory.” ([31] 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. ([31] 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. ([36] at 9; [37] 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 judgment motion.

         Plaintiff 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. ([31] 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 entity).

         Plaintiff 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.” ([31] (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.” ([31] at 2).

         Finally, 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).[2] 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 denied.[3]

         III. DEFENDANTS' MOTION ...


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