1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

MELISSA NYLAND, )

)

Plaintiff, ) 2:15-cv-01670 JWS

)

vs. ) ORDER AND OPINION

)

ROOKE, LLC, d/b/a RIOT )

HOSPITALITY GROUP, ) [Re: Motion at Docket 8]

)

Defendant. )

)

I. MOTION PRESENTED

At docket 8, Defendant Rooke, LLC, d/b/a Riot Hospitality Group (“Rooke” or

“Defendant”) filed a motion for summary judgment. Plaintiff Melissa Nyland (“Plaintiff”)

filed a response at docket 15, requesting that the court deny the motion for summary

judgment as premature pursuant to Rule 56(d) of the Federal Rules of Civil Procedure. 

Defendant’s reply is at docket 17. Oral argument was not requested and would not be

of assistance to the court.

II. BACKGROUND

Plaintiff alleges she worked at a restaurant, El Hefe Super Macho Taqueria (“El

Hefe”), in Scottsdale, Arizona, and that Rooke was her employer because it “owns and

Case 2:15-cv-01670-JWS Document 28 Filed 02/18/16 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

operates” El Hefe.1 Plaintiff brings two Title VII sexual harassment claims against

Rooke. 

The complaint was filed in late August of 2015. On November 4, 2015, the

parties submitted their Rule 26(f) report to the court. On that same day, before the

court filed its scheduling and planning order, and therefore before any deadlines had

been set or any discovery had taken place, Defendant filed the motion for summary

judgment. In the motion, Defendant argues that summary judgment is warranted

because it is not Plaintiff’s employer and that Plaintiff knew as much based on her

personal experience with El Hefe. Defendant alternatively argues that it cannot be an

employer liable under Title VII because it has less than fifteen employees. In support of

its motion, Defendant submitted a declaration of Justin Cohen, Rooke’s Director of

Operations. The declaration alleges that Rooke is only one of several members of the

limited liability corporation 4425 Saddlebag, LLC (“Saddlebag”), which is the entity that

actually owns El Hefe. The declaration asserts that Saddlebag is a separate entity, with

separate employees, separate employee handbooks, and separate management. It

asserts that Saddlebag alone makes employment decisions for El Hefe. It asserts that

the manager at El Hefe, whose actions form the basis of Plaintiff’s complaint, was

Saddlebag’s employee. It asserts that Plaintiff knew her employer was Saddlebag and

not Rooke because the restaurant’s employee handbook and her payroll records reflect

Saddlebag as her employer. 

Plaintiff argues in her response that ruling in favor of summary judgment would

be premature because the issue of which entity could be deemed her employer is an

issue of fact and law that cannot be resolved without discovery. She requests that the

court deny the motion pursuant to Rule 56(d) to allow her adequate time to develop her

theory of the case as it relates to which entity can be considered her employer. As

required under the Rule 56(d), Plaintiff attached a declaration to her response

1Doc. 1 at ¶ 4.

-2-

Case 2:15-cv-01670-JWS Document 28 Filed 02/18/16 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

explaining that her attorney has not had an opportunity to conduct discovery and

therefore cannot present facts essential to oppose the motion for summary judgment at

this time. Her response also indicates that she plans to file a motion to amend the

complaint to add other allegedly related entities as defendants. Indeed, at docket 19

Plaintiff has filed such a motion, along with a proposed amended complaint that seeks

to add Saddlebag and three other corporate entities as defendants. She alleges in the

proposed amended complaint that all the corporate entities, including Rooke, operate

identically and all do business under the name Riot Hospitality Group.2 

III. STANDARD OF REVIEW

Rule 56(d) of the Federal Rules of Civil Procedure applies “‘where the

non-moving party has not had the opportunity to discover information that is essential to

its opposition.’”3 It permits a party to resist a summary judgment motion by “show[ing]

by affidavit or declaration that, for specified reasons, it cannot present facts essential to

justify its opposition” to the motion.4 The declaration must put forth “the specific facts

that [the party] hope[s] to elicit from further discovery” and must indicate that the “facts

sought exist” and are “essential” to oppose summary judgment.5 However, when a

party has not “had any realistic opportunity to pursue discovery relating to its theory of

the case” courts grant Rule 56(d) motions “fairly freely.”6 

2See doc. 19-1. The proposed amended complaint also seeks to add an individual,

Ryan Hibbert, as a defendant and seeks to bring a claim for assault and battery against him.

Defendant opposes the request to amend. The motion only recently became ripe and has not

yet been ruled on by the court.

3Roberts v. McAfee, Inc., 660 F.3d 1156, 1169 (9th Cir. 2011) (quoting Metabolife Int'l,

Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001)).

4Fed. R. Civ. P. 56(d).

5California ex rel. Cal. Dep’t of Toxic Substances v. Campbell, 138 F.3d 772, 779 (9th

Cir.1998)

6Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck

Reservation, 323 F.3d 767, 773 (9th Cir.2003).

-3-

Case 2:15-cv-01670-JWS Document 28 Filed 02/18/16 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV. DISCUSSION

As required by Rule 56(d), Plaintiff’s attorney submitted a declaration in support

of Plaintiff’s request to deny summary judgment pending further discovery. In the

declaration, the attorney asserts that he needs time to discover information about the

corporate relationships between Rooke and other affiliated corporate entities; whether

Rooke or any of its affiliated corporate entities had the ability to hire, fire, or discipline

Plaintiff; and whether Rooke or any of its affiliated corporate entities had the ability to

monitor or control Plaintiff’s work environment or dictate the terms and conditions of her

employment. The declaration also states that Plaintiff has not had time to discover

facts to contest the number of employees Rooke has for purposes of establishing

whether Rooke can be liable under Title VII. 

Rooke argues that the declaration lacks specifics or any indication that such

facts actually exist. While it is proper for a court to deny a Rule 56(d) application

“where it is clear that the evidence sought is almost certainly nonexistent or is the object

of pure speculation,”7 here the court cannot conclude that such facts are clearly

nonexistent at such an early stage of litigation. Indeed, at the time the motion was filed

Plaintiff had not had any time to develop affirmative evidence that could oppose

summary judgment by showing that Rooke could be considered Plaintiff’s employer for

purposes of Title VII. Rooke brought this motion for summary judgment the same day

the parties filed their Rule 26(f) report and before the court could issue a scheduling

and planning order. Thus, at the time the motion was filed, there had been no

discovery exchanged between the parties. Therefore, the situation here is one where

Plaintiff has not “had any realistic opportunity to pursue discovery relating to its theory

of the case” and the court should therefore more freely grant the request to deny

summary judgment pending further discovery.

8

7Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991).

8Burlington N. Santa Fe R.R. Co., 323 F.3d at 773.

-4-

Case 2:15-cv-01670-JWS Document 28 Filed 02/18/16 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defendant also argues that Plaintiff failed to allege in the complaint that it was

her employer and therefore contends she has not adequately stated the elements of

her claim. However, paragraph 7 of Plaintiff’s complaint clearly alleges that Rooke was

her employer.9 Rooke argues that her theory as to why it would be liable as her

employer even though it is simply an investor in the company that actually owns El Hefe

is not adequately pled in her complaint. Even if such a deficiency were fatal to her

complaint, the case is still in the early stages of litigation, and Plaintiff has timely filed a

motion to amend, which is currently pending before the court. The proposed amended

complaint more clearly sets forth her theory of employment. She has not had any

realistic opportunity to pursue such a theory. Therefore, summary judgment is not

appropriate at this time. 

V. CONCLUSION

Based on the preceding discussion, pursuant to Rule 56(d)(1), Defendant’s

motion for summary judgment at docket 8 is DENIED without prejudice to renew after

adequate discovery has taken place. 

DATED this 18th day of February 2016.

 /s/ JOHN W. SEDWICK

SENIOR UNITED STATES DISTRICT JUDGE

9Doc. 1 at ¶ 7.

-5-

Case 2:15-cv-01670-JWS Document 28 Filed 02/18/16 Page 5 of 5