Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 1 of 6 PageID #: 310 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS MARSHALL DIVISION VARIANT HOLDINGS, LLC AND VARIANT, INC. Plaintiffs, v. HILTON HOTELS HOLDINGS LLC; ACCOR NORTH AMERICA, INC. D/B/A MOTEL 6 D/B/A STUDIO 6 D/B/A NOVOTEL HOTELS; ALAMO RENT A CAR, LLC; BAYMONT FRANCHISE SYSTEMS, INC. D/B/A BAYMONT INN & SUITES; BENCHMARK HOSPITALITY INTERNATIONAL D/B/A HOTEL CONTESSA; DAYS INNS WORLDWIDE, INC.; DOLLAR RENT A CAR, INC.; DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.; ENTERPRISE HOLDINGS, INC.; ENTERPRISE RENT-A-CAR CO.; FERTITTA HOSPITALITY, INC. D/B/A HILTON GALVESTON ISLAND RESORT; Civil Action No.: 2:11-cv-00427 HAWTHORN SUITES FRANCHISING, INC.; HILTON GOLBAL HOLDINGS LLC; HILTON WORLDWIDE HOLDINGS, INC.; HILTON WORLDWIDE, INC. F/K/A HILTON HOTELS CORP. D/B/A CONRAD HOTELS & RESORTS D/B/A DOUBLETREE BY HILTON D/B/A EMBASSY SUITES HOTELS D/B/A HAMPTON INN D/B/A HAMPTON INN & SUITES D/B/A HILTON HOTELS & RESORTS D/B/A HILTON GARDEN INN D/B/A HOME2 SUITES BY HILTON D/B/A HOMEWOOD SUITES BY HILTON D/B/A WALDORF ASTORIA HOTELS & RESORTS D/B/A HILTON GRAND VACATIONS; HOWARD JOHNSON INTERNATIONAL, INC.; HYATT CORPORATION; HYATT HOTELS CORPORATION D/B/A PARK HYATT D/B/A ANDAZ D/B/A GRAND HYATT HOTELS D/B/A HYATT REGENCY HOTELS D/B/A HYATT Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 2 of 6 PageID #: 311 SUMMERFIELD SUITES D/B/A HYATT RESORTS D/B/A HYATT VACATION CLUB; HYATT HOTELS MANAGEMENT CORPORATION; HYATT PLACE FRANCHISING, L.L.C.; KNIGHTS FRANCHISE SYSTEMS, INC. D/B/A KNIGHTS INN; MICROTEL INNS AND SUITES FRANCHISING, INC. D/B/A MICROTEL INN & SUITES; NATIONAL CAR RENTAL SYSTEM, INC.; NORTH AMERICA SOFITEL CORP.; OMNI HOTELS CORP.; PAYLESS RENTAL CAR SYSTEM, INC.; RAMADA WORLDWIDE INC.; RED LION HOTELS CORP.; RED LION HOTELS HOLDINGS, INC.; RED LION HOTELS MANAGEMENT, INC.; RED LION PROPERTIES, INC.; SELECT HOTELS GROUP, L.L.C D/B/A HYATT PLACE; SUPER 8 WORLDWIDE, INC.; THRIFTY, INC. D/B/A THRIFTY CAR RENTAL; TRAVELODGE HOTELS, INC.; TRT DEVELOPMENT CO.; TRT HOLDINGS, INC.; TRYP HOTELS WORLDWIDE, INC.; U.S. FRANCHISE SYSTEMS, INC.; VANGUARD CAR RENTAL USA, LLC D/B/A ALAMA RENT A CAR D/B/A NATIONAL CAR RENTAL; WESTHEIMER HOTEL LP D/B/A HOTEL DEREK; WINGATE INNS INTERNATIONAL, INC.; WYNDHAM HOTEL GROUP, LLC; WYNDHAM HOTELS AND RESORTS, LLC; WYNDHAM VACATION RESORTS, INC. and WYNDHAM WORLDWIDE CORP. Defendants. Defendants Hyatt Corporation, Hyatt Hotels Corporation, Hyatt Hotels Management Corporation, Hyatt Place Franchising, L.L.C., and Select Hotels Group, L.L.C.’s1 Reply to Plaintiffs’ Response to Motion To Dismiss In its Response to Hyatt’s Motion to Dismiss (Dkt. No. 60), Variant argues that its Amended Complaint (Dkt. No. 67) moots Hyatt’s motion because the 1 Hereinafter, Defendant moving parties are referred to collectively as “Hyatt” or the “Hyatt movants.” 2 Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 3 of 6 PageID #: 312 Amended Complaint adequately meets the federal pleading requirements. (Dkt. No. 68 at 1). Whether the Amended Complaint is sufficiently pled is immaterial to the present motion to dismiss because the amended complaint should not be entitled to the filing date of the original complaint. Variant’s Response does not dispute a basic premise of Hyatt’s motion, namely that the original complaint was wholly inadequate to support a cause of action. As such, it should not be entitled to a filing date. In essence, the filing of the original complaint was nothing more than a placeholder, filed in the hours before the America Invents Act (“AIA”) was to go into effect. The law does not permit such activity. Cf. Braud v. Transp. Serv. Co. of Ill., 445 F.3d 801, 804-05 (5th Cir. 2006) (holding that the Class Action Fairness Act (“CAFA”) removal provisions governed an amended complaint filed post-enactment of the CAFA where an amended complaint provided the first opportunity for a defendant to defend against the cause of action; by analogy the amended complaint in the instant case, if sufficiently pled, provides the Hyatt movants with the first proper notice of the alleged cause of action and corresponding opportunity to defend). Since the original complaint was insufficient to state a cause of action, the Amended Complaint should not be entitled to the filing date of that document, particularly under the circumstances of this case, where the misjoinder provisions of the intervening America Invents Act prohibits the very type of complaint plaintiff now seeks to pursue. 3 Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 4 of 6 PageID #: 313 Variant cites to a number of cases to support the proposition that an amended complaint supersedes an original complaint. See Resp. at 1-2. Those cases, however, do not address the issue raised by Hyatt’s motion. In each of Variant’s relied upon cases, unlike the present situation, the sufficiency of the original pleading was never at issue. Moreover, none of these cases addressed the situation where the enactment of a new law explicitly changing the joinder requirements intervenes between the insufficient originally filed complaint and the amended complaint. The same holds true with Variant’s reliance on the Ganas, LLC v. Sabre Holdings Corp. slip opinion (Dkt. No. 405). See Resp. at 5. In Ganas, the sufficiency of the originally filed complaint was never challenged. Thus, the Court’s discussion of the AIA in Ganas is distinguishable from the present case. The Hyatt movants are not suggesting that the AIA’s joinder provision should be applied retroactively to pending cases where a cause of action was sufficiently pled at the time the AIA became effective. However, it would be fundamentally improper to permit Variant to skirt Congress’ express intent in passing the AIA and in identifying an effective date, by filing a paper that is deficient on its face solely to save a “place in time” until it is ready to proceed with a properly pled complaint.2 2 For purposes of this motion only, Hyatt will not dispute the sufficiency of the pleadings in the Amended Complaint. That question is premature in light of the pending motion to dismiss. Hyatt expressly reserves the right to challenge the sufficiency of the Amended Complaint in the event that the Court denies Hyatt’s current motion to dismiss. 4 Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 5 of 6 PageID #: 314 Accordingly, Hyatt Corporation, Hyatt Hotels Corporation, Hyatt Hotels Management Corporation, Hyatt Place Franchising, L.L.C., and Select Hotels Group, L.L.C. respectfully request that the Court dismiss Variant’s Amended Complaint as against the Hyatt movants, and require that any new complaint filed against these entities comply with the current provisions of the AIA. Date: December 21, 2011 Respectfully submitted, /s/ David P. Lindner Laura Beth Miller (Admitted Pro Hac Vice) Illinois Bar No.: 6191408 [email protected] David P. Lindner (Admitted Pro Hac Vice) Illinois Bar No.: 6283382 [email protected] Joseph S. Hanasz (Admitted Pro Hac Vice) Illinois Bar No.: 6292951 [email protected] BRINKS HOFER GILSON & LIONE NBC Tower – Suite 3600 455 N. Cityfront Plaza Dr. Chicago, Illinois 60611 Telephone: (312) 321-4200 Facsimile: (312) 321-4299 Attorneys for Defendants Hyatt Corporation, Hyatt Hotels Corporation, Hyatt Hotels Management Corporation, Hyatt Place Franchising, L.L.C., and Select Hotels Group, L.L.C. 5 Case 2:11-cv-00427-JRG Document 69 Filed 12/21/11 Page 6 of 6 PageID #: 315 CERTIFICATE OF SERVICE I hereby certify that on the 21st day of December, 2011, I electronically filed the foregoing document with the Clerk of Court using the CM/ECF system, which transmits a notification of such filing (NEF) to all counsel of record. /s/ David P. Lindner David P. Lindner .