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Jose Colon v. Ashford Buck County

August 9, 2012

JOSE COLON,
PLAINTIFF,
v.
ASHFORD BUCK COUNTY, LLC D/B/A SHERATON BUCKS COUNTY HOTEL AND ASHFORD TRS SAPPHIRE VI, LLC D/B/A SHERATON BUCKS COUNTY HOTEL AND REMINGTON LODGING AND HOSPITALITY LP AND OTIS ELEVATOR COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge

MEMORANDUM AND ORDER

Presently before the Court is Plaintiff's Motion to Compel Deposition of Corporate Designee of Ashford TRS. (Doc. No 27). On July 23, 2012, Defendant Ashford TRS filed a response in opposition to the motion to compel. (Doc. No. 30). On July 30, 2012, Plaintiff filed a reply. (Doc. No. 32). Thus, the matter is now ripe for determination.

I. BACKGROUND

On April 17, 2008, a fire occurred at the Sheraton Bucks County Hotel ("Hotel") where Plaintiff worked. (Doc. No. 27, ¶2). As a result of the fire, the Hotel elevators, including the service elevator, stopped operating. (Doc. No. 27, ¶2). Defendant Otis Elevator Company ("Otis") was called to put the elevators back into working condition, and Otis apparently performed some work on the Hotel elevators at that time. (Doc. No. 30, ¶2). The next day, on April 18, 2008, in the course of his employment, Plaintiff was using the Hotel service elevator, when the elevator doors allegedly closed on Plaintiff's arm, causing injury. (Doc. No. 27, ¶3). Plaintiff received Workers' Compensation ("WC") benefits from his employer for those injuries. (Doc. No. 30, Ex. B-4).

At all relevant times, Ashford Bucks County, LLC ("Ashford Bucks") was the owner and lessor of the Hotel; Ashford TRS Sapphire VI, LLC ("Ashford TRS") was the lessee and operator of the Hotel; and Remington Hotel and Lodging LP("Remington"*fn1 ) was the entity responsible for managing the Hotel operations, including maintenance. Plaintiff was an employee of Remington. (Doc. No. 27, ¶¶ 1, 4-7) (Doc. No. 30, Ex. B-4).

On March 2, 2011, Plaintiff filed suit against the Hotel owner (Ashford Bucks), the Hotel operator (Ashford TRS), and the elevator repair company (Otis), for negligence. Plaintiff has also named "Remington Lodging and Hospitality LP" as a Defendant. (Doc. No. 1). However, as noted below, Defendant "Remington Hotel and Lodging LP," is actually "Remington Lodging & Hospitality, LLC." It also appears that this Remington Defendant was Plaintiff's employer, not the non-party "Remington Hotel Corporation" incorrectly identified in the underlying worker's compensation documents. (Doc. No. 7, ¶ 10)(Doc. No. 30, Ex. B-4, ¶¶ 7-10).

On March 21, 2011, Otis filed an Answer to the Complaint and a Cross-claim against the Ashford Bucks, Ashford TRS, and Remington. On March 23, 2011, Ashford Bucks, Ashford TRS, and Remington filed an Answer to the Complaint and a Cross-claim against Otis. Answers to the crossclaims were filed on March 28, 2011 and July 12, 2011. The cross-claimants each assert liability based on an elevator maintenance contract between Otis and the former owner of the Hotel, "Household OPEB 1 Inc. d/b/a Sheraton Bucks County Hotel" ("Maintenance Contract"). The Maintenance Contract was assumed by Ashford Bucks upon purchase of the Hotel, and the obligations and liabilities associated with that Maintenance Contract were later transferred to the Hotel lessee, Ashford TRS. (Doc. No. 30, Ex. D, 19:14-24)(Doc. No. 30, Ex. B-4, ¶ 6).

As part of his case, Plaintiff claims that Ashford Bucks had a non-delegable duty to keep the elevator in good repair. Plaintiff also argues that the Ashford TRS bears responsibility, because the elevator Maintenance Contract, which was assumed by Ashford TRS as part of its lease agreement, requires "surveillance." (Doc. No. 27). As stated above, the Maintenance Contract was assumed by Ashford Bucks upon purchase of the Hotel, and the obligations and liabilities associated with that Maintenance Contract were later transferred to the Hotel lessee, Ashford TRS. (Doc. No. 30, Ex. D, 19:14-24)(Doc. No. 30, Ex. B-4, ¶ 6).

A. Relevant Discovery

On March 9, 2012, Plaintiff served a Notice of Deposition of Corporate Designee upon Ashford TRS ("Notice of Deposition"). (Doc. No. 27, Ex. B). The Notice of Deposition listed seven matters for examination. (Doc. No. 27, Ex. B). In general, Plaintiff sought a corporate representative from Ashford TRS to testify about: the Hotel management agreement, the elevator Maintenance Contract, the surveillance agreement, and the identity of the person responsible for decisions about elevator maintenance and repair. (Doc. No. 27, ¶ 9). In response to the Deposition Notice, Defendants produced for deposition James L. Cowen (General Counsel of Remington), Scott Hagen (General Manager of the Hotel), and Albert Granholm (Vice-President of Facilities and Engineering of Remington). (Doc. No. 30, at 2). Defendants also designated, but Plaintiff has not deposed, David Kimichik, an officer of Ashford TRS. (Doc. No. 30, Ex. C).

On June 20, 2012, just before the close of fact discovery,*fn2 Plaintiff's counsel requested the Court's assistance in resolving corporate designee issues between the parties. The Court held a telephone conference with counsel for both parties, and instructed counsel to continue trying to work out the matter. (Doc. No. 26). On July 10, 2012, after efforts to resolve this dispute proved fruitless, Plaintiff filed this motion to compel. (Doc. No. 27).

As stated above, Plaintiff served a timely Deposition Notice upon Ashford TRS. The areas of examination, and Defendants' response, is outlined as follows:

1. the Maintenance Contract between Ashford TRS and Otis;

RESPONSE: Scott Hagen and James Cowen testified about the Otis ...


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