Lewkowitz v. Intercontinental Hotels Group Resources LLC

Background

Jerry Lewkowitz alleged that he fell on a staircase at the Aquapura Douro Valley SA hotel, also called the Six Senses Douro Valley Hotel, in Portugal. He claimed that the absence of handrails violated building codes and New York and Portuguese negligence laws. He alleged that InterContinental Hotels Corporation (IHC) and InterContinental Hotels Group Resources LLC (IHGR) owned, operated, maintained, or controlled the hotel. He sought damages for his injuries, medical expenses, and pain and suffering.

Lewkowitz alleged that IHC purchased Sustainable Luxury, which had owned the Six Senses brand. The court noted, however, that IHGR was not identified in the relevant purchase agreement, annual statement, or press release. The press release stated that the transaction involved the Six Senses brands and operating businesses but did not include real estate assets. Documents obtained in limited discovery also indicated that IHC did not purchase lease or tenancy agreements connected to the hotel property.

IHC’s Motion to Dismiss

IHC argued that it could not be held liable for the acts of its subsidiary, Sustainable Luxury, and that it had never owned or operated the hotel. Under New York law, a parent company generally is not liable for a subsidiary’s torts unless the plaintiff can pierce the corporate veil. That requires allegations that the parent completely dominated the subsidiary, used that control to commit a fraud or other wrong, and caused the plaintiff an unjust injury.

The court held that Lewkowitz had not adequately alleged the control needed for veil-piercing. His complaint did not allege that Sustainable Luxury lacked corporate formalities, was inadequately funded, or was used as IHC’s personal financing vehicle. It also did not allege other facts supporting the required degree of control. The court described the control allegations as conclusory.

The court also rejected Lewkowitz’s alternative theory that IHC was liable because it supposedly had notice of the missing handrail. Liability for a dangerous property condition depends on ownership, occupancy, control, or special use of the property. The court concluded that Lewkowitz had not adequately alleged that IHC purchased, possessed, or controlled the hotel property. The documents instead indicated that IHC purchased the brand and operating group, not the hotel’s real estate.

IHGR’s Motion to Dismiss

The court held that the allegations against IHGR were also insufficient. The complaint did not adequately allege that IHGR owned an interest in Sustainable Luxury, Six Senses, or the hotel. IHGR was not mentioned in the purchase agreement, annual statement, or press release. Lewkowitz’s allegation that IHGR had a duty to maintain the hotel safely was not enough to state a plausible claim.

Lewkowitz did not oppose IHGR’s motion. Because he continued to pursue claims against IHC while not responding to IHGR’s motion, the court concluded that he had abandoned his claims against IHGR as well.

Leave to Amend

The court considered whether Lewkowitz should be allowed to amend or refile his claims against IHC and IHGR. It denied that opportunity because amendment would be futile. Lewkowitz had received the limited discovery he requested, and he identified no additional facts that would establish liability. The court also noted that he had previously had multiple opportunities to identify the proper defendants and had received notice of the deficiencies in his claims.

Claims Against the Unserved Defendants

Aquapura Douro Valley SA and Sustainable Luxury Mauritius Limited had not appeared and had not been served. Under Federal Rule of Civil Procedure 4(m), a court may dismiss claims against a defendant who is not served within the required period unless the plaintiff shows good cause for the failure. Lewkowitz had not shown good cause or attempted to do so. The court therefore dismissed the claims against those two defendants without prejudice.

Disposition

The court granted IHC’s and IHGR’s motions to dismiss with prejudice. It dismissed the claims against Aquapura Douro Valley SA and Sustainable Luxury Mauritius Limited without prejudice under Rule 4(m). The Clerk was directed to terminate the pending motions and close the case.