Brown v. Sierra 76 Inc, No. 3:2007cv00308 - Document 37 (D. Nev. 2009)

Court Description: ORDER denying 32 Motion to Dismiss. Signed by Judge Edward C. Reed, Jr on 06/24/09. (Copies have been distributed pursuant to the NEF - LG)
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Brown v. Sierra 76 Inc Doc. 37 1 2 3 4 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA RENO, NEVADA 5 6 7 SYLVESTER BROWN, 8 Plaintiff, 9 vs. 10 TA OPERATING LLC, dba TRAVEL 11 CENTERS OF AMERICA; and DOES I-X inclusive, 12 Defendants. 13 ) ) ) ) ) ) ) ) ) ) ) ) ) 3:07-CV-308-ECR-VPC Order 14 15 In the case presently before the Court, the plaintiff filed 16 suit against the wrong defendant. After learning of the error, the 17 plaintiff amended his complaint and served the proper defendant. 18 The proper defendant contends that the plaintiff’s attempt to amend 19 his complaint is time-barred. 20 Now pending before the Court is a motion (#32) to dismiss, or 21 in the alternative, for summary judgment, filed by Defendant TA 22 Operating LLC d.b.a. Travel Centers of America (“TA Operating”). 23 The plaintiff, Sylvester Brown, opposed (#35) the motion, and TA 24 Operating replied (#36). The motion is ripe, and we now rule on it. 25 26 27 I. Background TA Operating, which does business under the name Travel Centers 28 of America, owns facilities that house a casino, a truck stop, and a 1 restaurant. TA Operating leases out part of these facilities. 2 Sierra 76, the originally named defendant in this action, for 3 example, leases the casino. 4 TA Operating runs the restaurant. Mr. Brown worked for the restaurant on the premises, and he 5 alleges that his former manager discriminated against him based on 6 his race. He filed a complaint with the Nevada Equal Rights 7 Commission (“NERC”). The NERC found that Mr. Brown was 8 discriminated against and issued him a right to sue letter. 9 Prior to filing his federal complaint, Mr. Brown’s counsel, Mr. 10 Jeffrey Blanck, contacted the city of Sparks to determine the 11 identity of the resident agent for the business operating at the 12 address of 200 West McCarran, which was Mr. Brown’s employment 13 address. “Someone” apparently informed Mr. Blanck that the business 14 license for that address was Sierra 76, Inc., dba Sierra Sid’s. 15 (See P.’s Opp. 2, 3 (#19).) Mr. Blanck did not determine whether 16 there was more than one business license for that address. As it 17 turns out, both Sierra 76 and TA Operating have 200 West McCarran 18 listed as their address on their business licenses. (D.’s Mtn. Exs. 19 8, 9 (#18-2).) 20 Mr. Brown filed suit in federal court against Sierra 76, Inc., 21 on July 9, 2007. Mr. Brown’s proposed summons (#4) issued on July 22 9, 2007, but was never returned. On November 20, 2007, the Clerk of 23 Court filed a Notice (#6) of Intent to Dismiss Pursuant to Federal 24 Rule of Civil Procedure 4(m). In response, on November 26, 2007, 25 Mr. Brown filed an Affidavit (#7) of Brent Pierce, which indicated 26 that personal service had been effected on Sierra 76’s registered 27 agent on July 16, 2007. 28 2 1 Sierra 76 did not file an answer or otherwise respond to Mr. 2 Brown’s complaint. The clerk of court entered default (#10) as to 3 Sierra 76 on December 28, 2007. The Court held a hearing on the 4 entry of default on January 22, 2008, and default judgment was 5 entered (#17) against Sierra 76 on February 1, 2008. 6 Sierra 76 contends that it told Mr. Brown that he had named the 7 wrong defendant in his original complaint. Ms. Marcy Barba, the 8 president of Sierra 76, asserts by way of affidavit that she 9 initially contacted Mr. Blanck shortly after July 19, 2007, and 10 informed him that Sierra 76 was the wrong defendant in Mr. Brown’s 11 case. Mr. Blanck denies that Ms. Barba ever contacted him before 12 February 20, 2008, when she called him to discuss the default 13 judgment that had been entered. 14 Ms. Barba also states that “very shortly [after July 19, 2007,] 15 I contacted TA Operating regarding the Plaintiff’s complaint and 16 [told TA Operating] that Plaintiff had sued the wrong entity. At 17 that time, I was assured by TA Operating that TA Operating would 18 respond to the allegations in the complaint.” Moreover, she “spoke 19 personally with an employee of TA Operating [in 2007] who informed 20 me that Sylvester Brown . . . had filed charges of employment 21 discrimination against TA Operating with the [EEOC] regarding his 22 employment with TA Operating.” Ms. Barba was then “informed” by TA 23 Operating that it “had responded to the Plaintiff’s charges and that 24 the EEOC had found against TA Operating.” 25 After the entry of default judgment, Sierra 76 filed a motion 26 (#18) to set aside the default on June 12, 2008. The Court granted 27 (#21) the motion (#18) on October 20, 2008, but granted the 28 3 1 plaintiff leave to file an amended complaint. Mr. Brown filed his 2 amended complaint (#24) on November 7, 2008, this time naming “TA 3 Operating LLC, dba Travel Centers of America” as a defendant. A 4 summons was issued (#26) as to TA Operating’s registered agent on 5 November 14, 2008. 6 TA Operating filed the present motion to dismiss (#32) on 7 December 22, 2008. TA Operating contends that Mr. Brown’s amended 8 complaint is time-barred. Mr. Brown argues that his amended 9 complaint relates back to his original complaint and thus is not 10 time-barred. 11 12 13 II. Amendment under Rule 15 Rule 15 governs when an amendment to a pleading relates back to 14 the date of the original pleading. The test for when an amendment 15 relates back when a new party is added to the action is more 16 stringent than that for relating back to add a new claim. Union 17 Pac. R.R. Co. v. Nev. Power Co., 950 F.2d 1429, 1432 (9th Cir. 1991) 18 (“Amendments seeking to add claims are to be granted more freely 19 than amendments adding parties.”). Under Rule 15, when adding a new 20 party, the amendment relates back if (1) the amendment asserts a 21 claim or defense that arose out of the same conduct, transaction or 22 occurrence set out in the original pleading, (2) the party to be 23 added received notice of the action such that it will not be 24 prejudiced in defending on the merits, (3) “the party to be added 25 knew or should have known that the action would have been brought 26 against it[] but for a mistake concerning the proper party’s 27 identity,” and (4) the notice and knowledge elements must have been 28 4 1 satisfied within 120 days of the filing of the suit. FED . R. CIV . P. 2 15(c); Louisiana-Pacific Corp. v. ASARCO, Inc., 5 F.3d 431, 434 (9th 3 Cir. 1993); see FED . R. CIV . P. 4(m). 4 Here, the requirements are met for amending a complaint to add 5 a new party, and the amended complaint relates back to the date of 6 the timely filed original complaint. First, Mr. Brown’s amended 7 complaint arises from the same conduct set out in the original 8 pleading; TA Operating does not dispute this. 9 Second, TA Operating received notice of the action such that it 10 will not be prejudiced in defending the case on the merits. For 11 purposes of the rule, “notice” may either be formal or informal. 12 Honeycutt v. Long, 861 F.2d 1346, 1350 (5th Cir. 1988); JAMES WM . 13 MOORE, 3 FEDERAL PRACTICE § 15.19[3][c] (3d. ed. 2009) (collecting 14 cases). The notice, however, must be sufficient such that the new 15 party is not prejudiced in maintaining a defense. 16 15(c)(1)(C)(i). FED . R. CIV . P. Actual notice of the complaint is not required, but 17 the added party must have been “made aware of the issues in the 18 complaint.” 3 FEDERAL PRACTICE § 15.19[3][c]. But cf. Cooper v. U.S. 19 Postal Serv., 740 F.2d 714, 717 (9th Cir. 1984) (notice of 20 administrative claim is not sufficient for showing notice of 21 institution of action). 22 TA Operating had notice of the action. Ms. Barba’s affidavit 23 establishes that she contacted TA Operating “shortly after” July 19, 24 2007, and was “assured by TA Operating that TA Operating would 25 respond to the allegations in the complaint.” TA Operating does not 26 dispute that Ms. Barba informed it of the action. Had TA 27 Operating’s only notice of the action been Mr. Brown’s EEOC 28 5 1 complaint, under Cooper, that notice would not have been sufficient. 2 But here TA Operating received actual notice from a lessee that an 3 action was pending. TA Operating informed the lessee that it (TA 4 Operating) knew of the pendency of the action and that it would 5 respond to the complaint. 6 Further, TA Operating will not be unduly prejudiced in 7 defending the action. While the case has been pending for almost 8 two years, TA Operating points to no unique circumstances that show 9 how it will be prejudiced. Any difficulties in locating witnesses 10 with knowledge about the events giving rise to this case will be 11 equally burdensome on both parties. 12 Third, TA Operating either knew or should have known that it 13 would have been sued but for a mistake of identity. 14 matter, there was a mistake of identity here. As an initial Mr. Brown’s counsel 15 contacted the City of Sparks and was only informed of one of the 16 operators of a business license at Sierra Sid’s address. He did not 17 know, however, that more than one business had a business license at 18 that address. Nor did he discover the mistake after serving the 19 wrong defendant. Sierra 76, according to Mr. Blanck, never 20 contacted anyone on the plaintiff’s side about the matter. 21 Next, Mr. Brown’s mistake appears to stem from confusion 22 surrounding the corporate structure of TA Operating. In his 23 original suit, he named “Sierra 76 Inc. dba Travel Centers of 24 America” as the defendant. His amended complaint seeks to name “TA 25 Operating dba Travel Centers of America” as the primary defendant. 26 It is clear that Mr. Brown was familiar with the “dba” designation 27 28 6 1 of the defendant; he simply misnamed the proper corporate entity, 2 which supports his claim that he made a mistake of identity. 3 Also related to this third element is that TA Operating knew — 4 or at least should have known — of the mistake as it was informed by 5 Ms. Barba that Sierra 76 was not the proper defendant. TA Operating 6 even confirmed to Ms. Barba that it knew that it was the proper 7 defendant in the action when it assured her that it would respond to 8 the complaint. Thus, Mr. Brown made a mistake as to the identity of 9 the proper defendant, and TA Operating either knew or should have 10 known that it would have been sued but for this mistake. Accord 11 Centuori v. Experian Information Solutions, Inc., 329 F. Supp. 2d 12 1133, 1139-40 (D. Ariz. 2004) (stating that even if plaintiff 13 “and/or his counsel might have been negligent, careless, or even 14 arguably at fault for not naming MIS as the [appropriate defendant, 15 MIS has] not shown that the failure to name MIS was a strategic 16 decision and not the result of a mistake concerning identity”). 17 Fourth, the notice and knowledge factors above were satisfied 18 within the 120 day period set forth by Rule 4(m). 19 original complaint was filed on July 9, 2007. Here, the Ms. Barba told TA 20 Operating of the lawsuit “very shortly” after being served sometime 21 around July 16, 2007. While the exact date is not known, “very 22 shortly” after July 16, 2007, likely is within 120 days of July 8, 23 2007. 24 25 III. Conclusion Mr. Brown did not initially bring TA Operating into the case as 26 he should have; nevertheless, his amended complaint meets the 27 requirements of Rule 15, and as such his amended complaint relates 28 7 1 back to the filing of his original complaint. Therefore, TA 2 Operating was timely served with the action. 3 4 IT IS HEREBY ORDERED THAT Defendants’ Motion to Dismiss or in 5 the Alternative for Summary Judgment (#32) is DENIED. 6 7 DATED: June 24, 2009. 8 ____________________________ UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8