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Scherr v. Marriott International

November 19, 2009


The opinion of the court was delivered by: Matthew F. Kennelly United States District Judge



Marjorie Friedman Scherr has sued Courtyard Management Corporation (Courtyard Management), Courtyard II Associates, L.P. (Courtyard II), Marriott International Design and Construction Services, Inc. (MIDCS), and Tri-South Construction, Inc. (Tri-South), along with other defendants, claiming negligence for personal injuries she allegedly suffered while staying as a guest at a Marriott Courtyard hotel in Overland Park, Kansas. These defendants have moved to dismiss Scherr's complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that her claims against them are time-barred.


The Court takes the following facts from the allegations in Scherr's third amended complaint. In March 2006, Scherr, who at the time was seventy-six years old, stayed at the Marriott Courtyard hotel in Overland Park, Kansas while on a family trip to the area. Because she was able to walk only with a walker, she reserved a room at the hotel reserved for disabled guests. On March 19, 2006 at approximately 1:00 a.m., Scherr attempted to leave the bathroom in her room while using her walker. She exited the bathroom through a spring-hinged door. As she rolled her walker and tried to exit, the door closed quickly, striking her and causing her to fall to the floor. As a result of the fall, she broke her right wrist and was required to go to the hospital, where she underwent surgery. The impact also injured her right hip, "causing her to lose what little mobility she [had] left." 3rd Am. Compl. ¶14.

Scherr filed this suit in Illinois state court on March 17, 2008, naming initially Marriott International, Inc. as the only defendant. Marriott removed the case to this Court. Scherr learned on June 15, 2008 (via another motion in this case) that Courtyard Management was the entity that managed the hotel. In late January 2009, Scherr learned that the door appeared to have been installed as part of an overall "reinvention" of the hotel and that the general contractor was Tri-South Construction. On February 17, 2009, she filed an amended complaint, naming Courtyard Management and Tri-South as additional defendants.

Scherr later learned of the involvement of other entities in the design or installation of the door. On June 10, 2009, she filed a second amended complaint, adding Leo Daly Co. and Duranotic Door Inc. as defendants. Scherr filed her third amended complaint on July 24, 2009, adding MIDCS, Courtyard II Associates, and Duranotic Door Installation as defendants. Scherr alleges that Marriott owns the hotel; Courtyard Management and Courtyard II, both wholly owned Marriott subsidiaries, operate it; MIDCS helped planned the renovation project that included installation of the door in question; Tri-South was the general contractor for the project; Leo A. Daly Co. prepared designs and plans for disability-accessible rooms; Duranotic Door supplied the door; and Duranotic Door Installation installed it.

Scherr asserts negligence claims against all the defendants. Among other things, she alleges that the spring-hinged bathroom door was unsafe in that its automatic closing device was set to close too quickly and with too much force and that the defendants failed to exercise reasonable care in designing, installing, calibrating, inspecting, and servicing the door.


When considering a motion to dismiss a complaint, the Court accepts the facts stated in the complaint as true and draws reasonable inferences in favor of the plaintiff. Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7, 570 F.3d 811, 820 (7th Cir. 2009). To survive a motion to dismiss under Rule 12(b)(6), the complaint must include enough facts to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009); Bissessur v. Ind. Univ. Bd. of Trs., No. 08-3504, 2009 WL 2902076, at *2 (7th Cir. Sept. 11, 2009). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

A. Service of Process on Courtyard

On September 8, 2008, the Court set a deadline of January 30, 2009 for amending pleadings and adding parties. On that date, Marriott filed a motion for leave to file a third-party complaint against Tri-South, and two weeks later, Scherr filed a motion to file an amended complaint adding Tri-South and Courtyard Management as defendants. The Court granted both motions on February 17, 2009. Because the motions had been filed at what the Court saw as a point late in the process, the Court directed Marriott to serve Tri-South with a summons, not a waiver, and to do so within seven days. Marriott complied, serving Tri-South with summons on February 23, 2009. The Court does not believe that it imposed a similar time limit on Scherr's service of Courtyard Management. That, however, is of no consequence; one way or the other, the Court did not intend to modify the provisions of Rule 4(m), which gave Scherr 120 days to serve Courtyard Management. Rather, the Court was simply hoping to move the proceedings along.

It appears that Scherr caused Courtyard Management to be served on June 18, 2009, 121 days after the filing of the amended complaint that first named Courtyard as a defendant. Courtyard Management asks the Court to dismiss the complaint for that reason. It relies on a technical application of Rule 4(m) and "does not show any actual harm in its ability to defend the suit as a consequence of the delay in service." Coleman v. Milwaukee Bd. of Sch. Dirs., 290 F.3d 932, 934 (7th Cir. 2002) (district court did not abuse discretion in dismissing lawsuit, even though "most district judges probably would . . . allow a late service" where defendant is not harmed). "When delay in service causes zero prejudice to the defendant or third parties (or the court itself), the granting of extensions of time for service, whether before or after the 120-day period has expired, cannot be an abuse of discretion." United States v. McLaughlin, 470 F.3d ...

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