Opinion
NO. 03-0051, SECTION "C" (3)
May 15, 2003
ORDER AND REASONS
This case involves the alleged assault of Plaintiff, Elijah Jones ("Plaintiff" "Jones"), a registered guest at the Sheraton Hotel, at 500 Canal Street, New, Orleans, Louisiana (the "Hotel"). Plaintiff alleges he was attacked in his hotel room by an unknown assailant or assailants while staying as a guest at the Hotel. Before the Court is Plaintiff's Motion to Remand filed March 10, 2003. For the following reasons Plaintiff's motion is DENIED.
On or around January 28, 2003, Plaintiff delivered this motion to chambers, however, Plaintiff never tendered it to the Clerk's Office for filing. Nonetheless, the defense was served with the motion sometime in late January or early February 2003. Subsequently, the Defendants filed their response on February 11, 2003. At some point in late February 2003, the Court became aware that the motion had never been filed. Consequently, Plaintiff was instructed to file the motion to remand and set it for hearing. Hearing was set for April 2, 2003, and on March 26, 2003, the motion was submitted on the briefs. (Rec. Doc. 10).
On January 13, 2003, the Court ordered the parties to supply memorandum addressing the minimum jurisdictional amount. Defendants filed a supplement on January 28, 2003 (Rec. Doc. 6) and Plaintiff included addressed this issue in his Motion to Remand. Upon review of this issue, the Court is satisfied that the minimum jurisdictional amount is met. Defendants have provided a thorough and detailed memorandum establishing the seriousness of Plaintiff's injuries and the extent of his medical treatment, including multiple surgeries and hospitalization lasting over a month.
Although the Court appreciates the thoroughness of Defendants' supplemental memorandum addressing the amount in controversy, the Court also finds Defendants errant comments referring to Plaintiff as an employee of "television personality and fitness guru Richard Simmons" and to "x-rated homosexual pornographic videotapes" found in Plaintiff's hotel room to be uninformative in assessing whether Plaintiff's injuries exceeded $75,000. ( See Rec. Doc. ¶ at 2). Even if Plaintiff were homosexual as Defendants appear to suggest, he is no less deserving than any other party before this Court of our unbiased professional and ethical administration of the law.
I. Background
On January 7, 2003, Defendants, Sheraton Operating Corporation ("Sheraton Operating"), Starwood Hotels Resorts Worldwide, Inc. ("Starwood"), and Metropolitan Life Insurance Company ("MetLife") (collectively "Defendants") filed a Notice of Removal alleging fraudulent joinder of the other three named non-diverse defendants in plaintiff's state court petition, namely, 520 Canal Street Limited Partnership ("520 Canal Street"), Sheraton Riverside Hotel Partners ("Sheraton Riverside") and CSM Associates ("CSM") (collectively) ("Non-Diverse Defendants"). (Rec. Doc. 1) Specifically, the Defendants contend that the Non-Diverse Defendants only connection to this matter is their ownership interests in the Hotel and they are not involved in the Hotel's day to day operations, including security. Defendants submit that there is no possibility of recovery against the Non-Diverse Defendants under Louisiana law, because "Louisiana courts have consistently recognized that a hotel owner, who does not actually operate the hotel, can only be liable for injuries or losses sustained if it knew or reasonably should have known of the defective or dangerous conditions that caused the injuries or losses." (Rec. Doc. 7 at 4 citing Banks v. Hyatt Corp., 722 F.2d 214 (5th Cir. 1984). Also, Defendants rely on Landry v. St. Charles Inn, 446 So.2d 1246 (La.App. 4th Cir. 1984), for the proposition that "a hotel owner who does not operate the hotel owes no duty to protect the hotel guests." (Rec. Doc. 7 at 4)
II. Standard of Review
"The burden of persuasion placed upon those who cry `fraudulent joinder' is indeed a heavy one." B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir. 1981). The removing party must establish the existence of federal jurisdiction. Dodson v. Spiliada Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992). The removing party must demonstrate that there is no possibility that the plaintiffs would be able to establish a cause of action against the non-diverse defendants in state court. Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994)
A claim of fraudulent joinder is akin to a motion for summary judgment. Badon v. RJR Nabisco, Inc., 224 F.3d 382, 393 (5th Cir.), op. after certified question declined, 236 F.2d 282 (5th Cir. 2000). Disputed questions of fact are resolved in favor of the nonremoving party; if no proof of contradictory facts is submitted, the court does not assume that the nonmoving party could or would prove the necessary facts. Id. All disputed questions of fact and all ambiguities in controlling state law are resolved in favor of the nonremoving plaintiffs. Ford, supra. The Court should not pre-try the case, but can pierce the pleadings and consider summary judgment-type evidence to determine fraudulent joinder. Carriere v. Sears, Roebuck Co., 893 F.2d 98 (5th Cir. 1990), cert. denied, 498 U.S. 817, 112 L.Ed.2d 35, 111 S.Ct. 60 (1990)
The court determines whether there is any possibility of recovery against the non-diverse party. Id. If the court determines that recovery is possible, "then a good faith assertion of such an expectancy in state court is not a sham . . . and is not fraudulent in fact or in law." Dodson, 951 F.2d at 43. "There can be no fraudulent joinder unless it be clear that there can be no recovery under the law of the state on the cause alleged." Parks v. New York Times Co., 308 F.2d 474, 478 (5th Cir. 1962), cert. denied, 376 U.S. 949, 11 L.Ed.2d 969, 84 S.Ct. 964 (1964).
III. Analysis
A business or property owner's duty towards invitees is well established under Louisiana law. "In general, the owner or operator of a facility has the duty of exercising reasonable care for the safety of persons on his premises and the duty of not exposing such persons to unreasonable risks of injury or harm. Peterson v. Gibraltar SL, 733 So.2d 1198 (La. 1999). Further, [t]his duty does not extend, however, to unforeseeable or unanticipated criminal acts by an independent third person. "Only when the owner or management of a business has knowledge, or can be imputed with knowledge, of a third person's intended criminal conduct which is about to occur, and which is within the power of the owner or management to protect against, does such a duty towards a guest arise.'" Banks, 722 F.2d at 220 quoting, Davenport v. Nixon, 434 So.2d 1203, 1205 (La.App. 1st Cir. 1983)
In contrast, under Louisiana law an innkeeper, or hotel operator must provide "a high degree of care and protection," and "has a duty to take reasonable precautions against criminals." Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048, 1053 (La. 1982) (creating special standard applied to innkeepers akin to that owed by common carriers). Here, none of the Non-Diverse Defendants are involved in the day-to-day operations of the Hotel. (Rec. Doc. 7, Exs. A-D). Thus, none are required to provide the "special" duty of care owed by innkeepers or hotel operators under Louisiana law. See Landry, 446 So.2d at 1249; Kraaz, 410 So.2d at 1053.
Plaintiff contends that at issue is whether the Non-Diverse Defendants had actual or constructive knowledge of the dangerous conditions at the Hotel. Relevant caselaw, however, does not attribute a duty on a hotel owner (and/or any business or property owner) to protect against generalized conditions of dangerousness created by possible third party tortfeasors. Instead, the more specific inquiry concerns whether a proprietor has actual or constructive knowledge of a particular risk and has reasonable opportunity to protect against it. See Banks, 722 F.2d at 220 ("Because there is no evidence in this case that [hotel owner's] employees knew, or can be imputed with the knowledge, that Dr. Banks and his companion were about to be assaulted at the Poydras Street entrance to the mall, [hotel owner] cannot be held to have violated its duty of care to Dr. Banks."); see also Cangiano v. Forte Hotels, Inc., 772 So.2d 879 (La.App. 5th Cir. 2000) (no breach of duty absent evidence that hotel employees knew of the existence of a hidden camera in particular plaintiff's room); Davenport v. Nixon, 434 So.2d 1203, 1205 (La.App. 1st Cir. 1983) (duty breached where innkeeper ignored a specific threat to patron). This particularized inquiry holds true even for locations prone to a high incidence of criminal activity. See Banks, at 218-19.
Plaintiff contends that what the individual partners of the resident defendants "actually knew or should have known" is an issue of fact unresolved by the affidavits submitted by the Defendants. (Rec. Doc. 9 at 6-7). The Court disagrees. The affidavits submitted by Defendants establish that the Non-Diverse Defendants were not involved in the daily management or operations of the Hotel, including the provision of security to Hotel guests. Further, these affidavits establish that the Non-Diverse Defendants did not have actual or constructive knowledge of the particular danger to Plaintiff nor were they in a position to reasonably protect against the specific harm.
Amaury Piedra, employed by Sheraton Operating Corporation as the Manager of the Hotel at the time of the November 2001 incident, states that at that time, and today, Sheraton Operating Corporation was exclusively responsible for the day-to-day management and operations of the Hotel, including the providing of security to "Hotel guests." (Rec. Doc. 7, Ex. A, ¶¶ 1-5). Piedra states that CSM and 520 Canal Street "were not involved in November 2001 and are not now involved in the day-to-day operations or management of the Hotel, including the providing of security to Hotel guests." ( Id. at ¶ 6). Also, Piedra states that Sheraton Riverside is not affiliated in any manner with the Hotel. ( Id. at ¶ 10)
Defendants also submit the affidavit of Don E. Perkins, Jr., Vice President of Canal Street Holdings, Inc. ("CS Holdings"), one of three general partners of Non-Diverse Defendant, 520 Canal Street. ( Id., Ex. B). Perkins states that as vice president of CS Holdings, he is the person most knowledgeable of 520 Canal Street's structure and operations. ( Id. at ¶ 7). Further, Perkins states that the two other general partners of 520 Canal Street, Joseph Mancuso and Carl Clayton are not today, nor were they on November 4, 2001 involved in the daily operations of 520 Canal Street or the Hotel. ( Id. at ¶¶ 4-6) Perkins states "520 Canal Street is not today and was not on November 4, 2001, involved in the day-to-day operations or management of the Hotel, including security provided to Hotel guests." ( Id. at ¶ 8) Also, Perkins states the 520 Canal Street had no knowledge that Plaintiff was a guest at the Hotel, nor that Plaintiff was involved in an incident at the Hotel. Finally, Perkins states that 520 Canal Street "has no knowledge that this Hotel poses a high crime risk to guests in their rooms." ( Id. at ¶ 15).
Also, Perkins states that Non-Diverse Defendant, CSM is a partnership between 520 Canal Street and MetLife and that as vice president of the general partner of 520 Canal Street, he is familiar with the operations of CSM. Perkins states that CSM "is not today and was not on November 4, 2001, involved with the day-to-day operations or management of the Hotel, including security provided to Hotel guests." ( Id. at ¶ 8) Perkins reiterated that like 520 Canal Street, CSM had no specific knowledge that Plaintiff was a guest at the Hotel or that the Hotel posed a high crime risk to guests in their rooms. ( Id. at ¶¶ 21 26).
The fact that CSM is domiciled at the Hotel does not create a genuine issue of fact that CSM had actual or constructive knowledge of this particular incident. CSM's duty extends solely to the exercise of reasonable care for the safety of persons on the premises and of not exposing such persons to unreasonable risk of harm. Peterson, supra. A non-operating owner of a hotel has no duty to protect guests from the tortious acts of third parties, unless it is aware of such imminent intended criminal conduct and is in a position to reasonably protect against it. Banks, 722 F.2d at 220. The affidavit of Perkins establishes that despite being domiciled at the Hotel, CSM had no actual or constructive knowledge of the attack on Plaintiff and that it was in no position to reasonably protect against such attack.
Defendants also submit the affidavit of Rebecca Nyahay, employed as a legal assistant by Starwood Hotels and Resorts Worldwide, Inc. ("Starwood") Nyahay states that she is familiar with the corporate structure of Starwood and its subsidiaries, including the hotels owned and/or operated by Starwood, which include the Hotel at issue in New Orleans. ( Id., Ex. C at ¶¶ 1 2). She states that Sheraton Operating, CSM and 520 Canal Street are all subsidiaries of Starwood, that CSM is the owner of the Hotel and that 520 Canal Street is a partner in CSM. ( Id. at ¶¶ 3-5) Further, Nyahay confirms that in November 2001, Sheraton Operating "was the sole operator of the Hotel" (id. at ¶ 6), and "exclusively responsible for the day-to-day management and. operations of the Hotel, including the providing of security." ( Id. at ¶ 7) Finally, Nyahay states that Sheraton Riverside "is not affiliated in any manner whatsoever with [Starwood]," or the Hotel. ( Id. at ¶ 17).
There are two consecutive paragraphs numbered as Paragraph 17.
IV. Conclusion
Upon review of the motions, memorandum, the record as a whole and the applicable law, the Court finds that the Non-Diverse Defendants were not involved in the daily operations of the Hotel, including security and had no actual or constructive knowledge of the attack that occurred to plaintiff in his hotel room. Therefore, there is no possibility that plaintiff can establish a cause of action against and recover from any of the Non-Diverse Defendants. As such, the Non-Diverse Defendants are fraudulently joined.
On April 24, 2003, the Non-Diverse Defendants were dismissed without prejudice for Plaintiff's failure to prosecute, however, that dismissal has no bearing on the Court's decision herein. In considering whether removal was proper, the Court considers the jurisdictional elements as they existed at the time of removal. St. Paul Mercury Indemnity, Co. v. Red Cab Co., 303 U.S. 283, 289, 82 L.Ed. 845, 58 3. Ct. 586 (1938) (holding elements viewed at time or removal).
Accordingly, IT IS ORDERED that plaintiff's Motion to Remand is DENIED.