Estate of Anderson v. Denny's Inc. (987 F. Supp. 2d 1113, 2013)

MEMORANDUM OPINION

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Motion for Summary Judgment of Denny’s, Inc., filed October 26, 2012 (Doc. 40)(“MSJ”); and (ii) the Motion to Continue Defendant Denny’s Inc. Summary Judgement [sic] Hearing, filed January 29, 2013 (Doc. 60)(“Motion to Continue”). The primary issues are: (i) whether Plaintiff Estate of Stephanie Anderson (“Anderson Estate”) properly requested the Court to continue the MSJ hearing; and (ii) whether Defendant Denny’s, Inc. as the franchisor is vicariously liable for the failure of Defendant Barreras Enterprises, Inc., the franchisee, to provide a safe working environment. The Court held hearings on February 8, 2013, and November 5, 2013. The Court will deny the Motion to Continue and will deny the MSJ. Counsel for the Anderson Estate did not follow proper procedure in requesting the Court to continue the hearing; however, the Court allowed the Anderson Estate to supplement with discovery on the MSJ. The Court will deny the MSJ, because the facts do not establish as a matter of law that Denny’s, Inc. is not involved in the day-to-day operations of the franchisee restaurant.

FACTUAL BACKGROUND

On June 20, 2009, Stephanie Anderson was working at a Denny’s restaurant located at 1602 Coors Boulevard, N.W. in Albuquerque, New Mexico. See MSJ 11, at 2 (setting forth this fact); Response to Defendant Denny’s Inc. Motion for Summary Judgment ¶ 1, at 1, filed January 10, 2013 (Doc. 55)(“Response”)(stipulating to this fact); Response of Plaintiff Estate of Stephanie Anderson to Defendant Denny’s Inc. Motion for Summary Judgment ¶ 1, at 3 (Doc. 75)(“Seeond Response”)(stipulating to this fact). Three El Salvadoran nationals, Defendants Jose Humberto MelgarCabrera, Marvin Antonio Aguilar-Lopez, and Pablo De Leon Ortiz, shot and killed Anderson during an armed robbery at the restaurant. See MSJ ¶¶ 1, 4, at 2, 3 (setting forth this fact); Response ¶¶ 1, 4, at 1, 2 (stipulating to this fact); Second Response ¶¶ 1, 4, at 3, 4 (stipulating to this fact). Anderson was acting in the scope and course of her employment as an employee of Barreras Enterprises, a Denny’s, Inc. franchisee, at the time of her death; she was not a Denny’s, Inc. employee. See MSJ ¶ 22, at 6 (setting forth this fact); Response ¶22, at 4 (stipulating to this fact); Second Response ¶ 22, at 6 (stipulating to this fact).

1. Defíning the Franchisor and Franchisee Relationship.

On July 13, 1989, Denny’s, Inc., or its predecessor in interest, entered into a Franchise Agreement with Frank H. and June R. Barreras, the Barreras Enterprises’ predecessor in interest, to operate the Denny’s Restaurant at 1602 Coors Boulevard in Albuquerque. See Franchise Agreement Greenfield [sic] at 5, filed October 26, 2012 (Doc. 40-1 at 5)(“Franchise Agreement”); MSJ ¶ 2, at 3 (setting forth this fact); Response ¶ 2, at 2 (stipulating to this fact); Second Response 12, at 3 (stipulating to this fact). On October 23, 1998, Denny’s, Inc. or its predecessor in interest entered into a “Consent to Assignment of Franchise Agreement,” which assigned all rights and obligations under the 1989 Agreement from Defendants Frank H. Barreras and June R. Barreras to Barreras Enterprises. See Franchise Agreement at 38; MSJ ¶ 3, at 3 (setting forth this fact); Response ¶ 3, at 2 (not controverting this fact); Second Response ¶ 3, at 3 (not controverting this fact). The Franchise Agreement was in full force and effect on June 20, 2009, when Anderson was shot and killed. See Affidavit of Arthur “Arp Boudaki.a. [sic] ¶ 6, at 2, filed October 26, 2012 (Doc. 40-1 at l)(“Boudakian Aff.”); MSJ ¶ 4, at 3 (setting forth this fact); Response ¶4, at 2 (stipulating to this fact); Second Response ¶ 4, at 3 (stipulating to this fact).

Under the Franchise Agreement, the parties agreed:

It is expressly understood and agreed by the parties that Franchisee is [n]ot for any purpose an employee or agent of [Denny’s], is not for any purpose an employee or agent of [Denny’s], and that all of the personnel employed by Franchisee at the Restaurant will be empl[o]yees or agents of the Franchisee as an independent contractor and will not be employees or agents of [Denny’s]. Franchisee understands and agrees that, as an independent contractor, [i]t does not have the authority to do anything for or on behalf of the Company, including, but not limited to, holding itself [o]ut as the Company, signing contracts, notes or other [¡Instruments, acquiring or disposing of any property, or making purchases or [i]ncurring any other obligation or liability.

Franchise Agreement § 1.3, at 6; MSJ ¶ 7, at 3^1 (setting forth this fact); Response ¶7, at 2 (stipulating to this fact). Denny’s, Inc. and Barreras Enterprises are “completely separate companies.” Boudakian Aff. ¶ 8, at 2; MSJ ¶ 17, at 5 (setting forth this fact); Response ¶ Í7, at 4 (stipulating to this fact). The Franchise Agreement states:

Franchisee agrees that in all public records, [i]n its relationship with other persons or companies, and [i]n any offering eircu[l]ar, prospectus or similar document, Franchisee [s]hall indicate clearly the independent ownership of the Franchisee’s business and that the operations of said business are separate and distinct from the operation of [Denny’s] business.

Franchise Agreement § 2.4, at 7; MSJ ¶ 8, at 4 (setting forth this fact); Response ¶ 8, at 3 (stipulating to this fact). Denny’s, Inc. does not own the building, real property, or the restaurant located at 1602 Coors Boulevard in Albuquerque. See Boudakian Aff. ¶ 5, at 2; MSJ ¶ 9, at 4 (setting forth this fact); Response ¶ 9, at 3 (stipulating to this fact).

In exchange for allowing Barreras Enterprises the right to operate a restaurant using the Denny’s, Inc.’s Marks, Barreras Enterprises must pay a franchise fee and other consideration, see Franchise Agreement § 6, at 11-12; MSJ ¶ 12, at 5 (setting forth this fact); Response ¶ 12, at 3 (stipulating to this fact), including four percent of weekly gross sales in exchange for using Denny’s, Inc.’s Marks and other company-provided supervision and training, and two percent of weekly gross sales for institutional advertising, public relations, and promotion, see Franchise Agreement §§ 6.1.b. and 6.1.C, at 11. The Franchise Agreement requires Barreras Enterprises to send Denny’s, Inc. a cumulative cash register tape to show the weekly sales. See Franchise Agreement § 7.3, at 12; Response ¶ 16, at 3^1 (setting forth this fact); Reply at 3 (not disputing this fact). For purposes of the Barreras Enterprises’ obligations of royalty payments under the Franchise Agreement, Denny’s, Inc. tracks sales, but does not control Barreras Enterprises’ net cash deposits. See Boudakian Depo. at 28-29; Second Reply ¶ 26, at 9 (setting forth this fact). Denny’s, Inc. assists Barreras Enterprises market its restaurant, in part because of its financial interest in Barreras Enterprises’ success, through royalties based on sales. Boudakian Depo. at 149-50; Second Reply ¶ 38, at 12 (setting forth this fact).

2. The “Denny’s System” and “Denny’s Marks”.

The Franchise Agreement states Denny’s, Inc. has a unique and particular plan for the operation of family style restaurants. See Franchise Agreement at § 1.4, at 5; MSJ ¶ 5, at 3 (setting forth this fact); Response 115, at 2 (stipulating to this fact). The Franchise Agreement describes the “Denny’s Marks” and the “Denny’s System”:

The Company owns the trademark, service mark and trade name “Denny’ s” [sic] and other related trademarks, service marks, trade names, copyrights, labels, designs, symbols, and distinctive logotypes (the “Denny’s Marks”) and the Company has a unique [a]nd particular plan for the operation of family style restaurants, including, but not limited to the Denny’s Marks, the Operations Manual, policies, standards, procedures, em[p]loyee uniforms, signs, menus, and related [i]tems, and the reputation and goodwill of the company’[s] chain of restaurants (the “Denny’s System”). The Company desires to have the Restaurant operated as a Denny’s restaurant utilizing the Denny’s System and the Denny’s Marks. Franchisee understands and agrees that strict adherence to these standards, policies, procedures and requirements is essential to the value of the Denny’s Sy[s]tem and the Denny’s Marksf.]

Franchise Agreement § 1.4, at 5. Barreras Enterprises must strictly adhere to all standards, policies, procedures, and requirements for the operation, maintenance or improvement of Denny’s, Inc.’s restaurants using the Denny’s System and .the Denny’s Marks. See Franchise Agreement § 6, at 3; MSJ ¶ 6, at 3 (setting forth this fact); Response ¶ 6, at 2 (stipulating to this fact).

To protect its brand and marks, Denny’s, Inc. controls various aspects restaurant site development, including construction and remodeling, which must be done at.Barreras Enterprises’ sole expense. See Franchise Agreement § 5, at 8-11; MSJ ¶ 10, at 4 (setting forth this fact); Response ¶ 10, at 3 (not disputing this fact). Denny’s, Inc. has the right to “enter the premises to make any [m]odifications necessary to protect the Denny’s Marks and related proprietary rights,” among other things. Franchise Agreement § 4.3.E, at 8; MSJ ¶ 11, at 4 (setting forth this fact); Response ¶ 11, at 3 (stipulating to this fact). The Franchise Agreement also sets forth detailed provisions requiring Barreras Enterprises to comply with Denny’s, Inc.’s operations manual, food service standards, restaurant maintenance and repair, hours of operation, personnel standards, inspections, and training. See Franchise Agreement §§ 11-16; MSJ ¶ 14, at 5 (setting forth this fact); Response ¶ 14, at 3 (stipulating to this fact).

Arthur Boudakian, the regional director of franchise operations for Denny’s, Inc., is responsible for oversight and operations of certain franchisees. Boudakian Aff. ¶ 1, at 1. Denny’s, Inc.’s oversight and training of franchisees and their employees is necessary “to ensure brand integrity and a uniform application of the Denny’s system.” Boudakian Aff. ¶¶ 1-2, at 1. See MSJ ¶ 15, at 5 (setting forth this fact); Response ¶ 15, at 3 (stipulating to this fact). The Denny’s, Inc.’s brand is “the service standards, the food quality, the timing standards, making sure that we’re providing across the United States an experience to the guests that’s as consistent as — as possible.” Boudakian Depo. at 35:20-24. See Second Response at 11 (setting forth this fact); Second Reply ¶ 29, at 10 (setting forth this fact). Denny’s Marks are “[o]ur signs, our menus, our service standards, our — we have a number of menu items that are specifically, you know, copywrited, our Denny’s Marks: Grand Slam Breakfast, Grand Slam Slugger, Moon’s over my Hammy.” Boudakian Depo. at 35:12-16. See Second Reply ¶ 28, at 10 (setting forth this fact). The Denny’s, Inc. System is “a system in regards to food handling, in regards to menu items, in regards to recipes, in regards to what we offer the guests in terms of, you know, service standards and timing standards in protecting our Marks and that’s — that’s the system, in my opinion.” Boudakian Depo. at 121:20-25. See Second Reply ¶ 34, at 11 (setting forth this fact). The Core Values Workshop, designed to teach a Denny’s System which is uniform, is “[hjow our guests are treated, the service they receive, the food they receive is very important to us, so we do anything we can to help make sure we’re consistent across the country.” Boudakian Depo. at 120:22-25. See Second Response at 16 (setting forth this fact); Second Reply ¶ 33, at 11 (setting forth this fact). The Denny’s, Inc. philosophy concerning the Franchise Agreement requirements with respect to various services, quality control and other standards is that it is important to have a “consistent environment across the United States” without which the Denny’s brand could be “hurt.” Boudakian Depo. at 147-149; Second Reply ¶ 37, at 11 (setting forth this fact).

3. Denny’s, Inc’s Requirements for Training and Inspections.

Barreras Enterprises and its managers must attend training to learn the Denny’s System. See Franchise Agreement § 16, at 22-24; Response at 6-7 (setting forth this fact); Reply ¶ C, at 6 (not disputing this fact). Denny’s, Inc. does not allow Barreras Enterprises’ restaurant to open until it is satisfied that Barreras Enterprises and its managers have been adequately trained. See Franchise Agreement § 16.1.C, at 23; Response at 6-7 (setting forth this fact); Second Reply ¶ C.2., at 4 (setting forth this fact). As new developments in the Denny’s System occur, Denny’s, Inc. may require Barreras Enterprises and its personnel to attend refresher or additional training, at Barreras Enterprises’ expense. See Franchise Agreement § 16.2, at 19; Second Response at 7-8 (setting forth this fact); Second Reply ¶ C.3, at 5 (admitting this fact). Denny’s, Inc. also may offer optional training programs and seminars for Barreras Enterprises, and Barreras Enterprises’ managers or other personnel. See Franchise Agreement § 16.3, at 19; Response at 7 (setting forth this fact); Second Response at 8 (setting forth this fact); Reply ¶ C, at 6 (not disputing this fact); Second Reply ¶ C.3 (admitting this fact).

Denny’s, Inc. inspects Barreras Enterprises for quality control, hazard analysis and other matters through its “HACCP” inspections, a hospitality, quality enhancement review on all restaurants, “[t]o make sure that we protect our brand and our mark, to make sure that we’re offering the products that we should offer, we have the service that we should offer, that the restaurant is clean and that we’re following health department regulations.” Boudakian Depo. at 31:18-24, 32:14-18. See Second Response at 11 (setting forth this fact); Second Reply ¶ 27, at 10 (setting forth this fact). Denny’s, Inc. conducts this inspection on all Denny’s, Ine.’s restaurants, both franchisee-owned and company-owned. See Boudakian Depo. at 31; Second Reply ¶ 27, at 10 (setting forth this fact). The review’s purpose is “to make sure that we protect our brand and our mark and make sure that we’re offering the products we should offer and the service that we should offer, that the restaurant is clean and that we’re following health department regulations.” Boudakian Depo. at 32-24. See Second Reply ¶ 27, at 10 (setting forth this fact). For example, Denny’s, Inc. requires employees to wash their hands before putting on a new pair of gloves. Boudakian Depo. at 57:9-23; Second Response at 12 (setting forth this fact); Second Reply at 6-7 (not disputing this fact). On the Hospitality, Quality & HACCP Review form, Denny’s, Inc. reviews Barreras Enterprises’ service standards, including standards such as: “Immediate friendly greeting,” “Seating according to standards,” “Silverware rolled and delivered with menu or table is preset,” “Friendly server introduction,” “Beverage order taken,” “Items suggestively sold,” “Plate presentation,” “Pre-bussing of tables,” “Timely cash out, food, service, or dining experience inquiry made,” “Tables-clean and reset promptly,” “Guests made to feel welcomed when entering our restaurant,” “Managers/employees have sense of urgency,” “Guests thanked when leaving,” “guests invited to return to Denny’s,” “Dumpster/Grease containers— clean/hds closed/good repair,” “Exterior lighting-functioning/good repair,” “Exteri- or lighting-functioning/good repair,” “Cleanliness/temperature is set for guest comfort,” “Carpet/floor/baseboards-clean/ good repair,” “Ice bins/cover-clean/scoop used and stored properly/lid closed when not in use,” “Salad refrigerators/gaskets-clean/good repair (40° F or below),” and “Pots/pans/inserts/shelves/raeks used to hold, store equipment or utensils-clean/ good repair.”. Hospitality, Quality & HACCP Review at 2, filed May 14, 2013 (Doc. 75-2). See Second Response ¶ 13, at 21 (setting forth the fact by referring to the evaluation form); Second Reply ¶ 3, at 8 (admitting the evidence’s authenticity). “[Fjollowing food safety laws is something we’re concerned about,” without which it could “be detrimental to the brand.” Boudakian Depo. at 90-91. See Second Reply ¶ 31, at 10-11 (setting forth this fact). Further, “creating a clean environment is part of what we need to do to protect our brand and our marks and make sure that we provide a consistent environment for our guests.” Boudakian Depo. at 98-99. See Second Reply ¶31, at 10-11 (setting forth this fact). “[Ajll of the food handling, absolutely is covered in our training so that we protect our brand, make sure we’re consistent, we offer the same recipes and same food across the United States....” Boudakian Depo. at 107-108. See Second Reply ¶ 32, at 11 (setting forth this fact). Boudakian inspects, as the regional director of franchise operations, several different aspects of the restaurants:

We make sure that they are providing the food that they should provide; that they buy it from the right place they need to buy it, approved vendors; that the recipes are being used; that the service standards are being followed in the restaurants; we make sure that they use the Denny’s signs correctly, and that they follow — let’s see, what else, there’s prep and pull for food — for food product that we look at; the cleanliness of the restaurant we look at. Those are the things we look at.

Boudakian Depo. at 18:-19. See Second Reply ¶23, at 9 (setting forth this fact).

The Franchise Agreement states that Denny’s, Inc. has the option to terminate the agreement if: (i) Barreras Enterprises fails, within ten days after notification of non-compliance, to comply with any federal, state, or local law applicable to the operation and maintenance of the restaurant, including but not limited to, public health and safety requirements; (ii) Denny’s, Inc. reasonably determines that Barreras Enterprises’ continued operation of the restaurant will result in an imminent danger to public health or safety; or (iii) Barreras Enterprises fails after having received a reasonable opportunity, no more than thirty days, to correct a deficiency or unsatisfactory condition referenced in an inspection report. See Franchise Agreement § 12.1, at 19-20; Response at 6 (setting forth this fact); Reply ¶ B, at 5 (not disputing this fact); Second Response at 9 (setting forth this fact); Second Reply ¶ C.8 (not disputing this fact). Denny’s, Ine.’s right under the Franchise Agreement to terminate a franchise through a “default process” include “[n]ot paying their royalties, not remodeling when they’re dated to remodel. If they have ... repeated issues with ... health departments or any government agencies.” Boudakian Depo. at 59:2-5. See Second Reply ¶ 30 (setting forth this fact).

If Denny’s, Inc. terminates the agreement, whether Barreras Enterprises agrees or defaults or otherwise, Denny’s, Inc. reserves the right, at its option, to

elect to purchase the franchisee’s interest in the leasehold in the leasehold improvements and furniture, fixtures, equipment, and any or all of the other tangible restaurant assets at purchase price equal to the lesser of franchisee’s costs or the fair market value of such leasehold improvements, furniture, fixtures, equipment and other assets, and to purchase franchisee’s inventory at franchisee’s cost thereof.

Franchise Agreement § 19.1.d. See Response at 6 (setting forth this fact); Reply ¶ B, at 6 (not disputing this fact); Second Reply at ¶6.1, at 3-4 (setting forth this fact).

4. Required Insurance.

The Franchise Agreement requires Barreras Enterprises to obtain various forms of comprehensive general liability insurance. See Franchise Agreement § 9, at 16-17; MSJ ¶ 13, at 5 (setting forth this fact); Response ¶ 13, at 3 (stipulating to this fact). Denny’s, Inc. requires Barreras Enterprises to obtain and maintain insurance of at least one million dollars, combined single limit; to name Denny’s, Inc. as an additional insured on such policies; and to defend, indemnify, and hold harmless Denny’s, Inc. against any and all loss, costs, “expenses (including attorney’s fees), damages and liabilities, however caused, resulting directly or indirectly from or pertaining to the use, condition, ... or operation of the Restaurant____” Franchise Agreement §§ 9.1, 9.3, at 16, 17. See Response at 7 (partially setting forth this fact); Second Response at 8 (partially setting forth this fact); Reply ¶ D, at 6 (not disputing this fact) Second Reply ¶ C.5, at 5 (partially setting forth this fact).

5. Employee Oversight.

The Franchise Agreement requires Barreras Enterprises to ensure that the employees are neat, clean, and adequately trained and supervised; that they wear neat, clean, and uniform attire; and that they serve the public in a courteous, efficient, and skilled manner, all in accordance with the Operations Manual. See Franchise Agreement §§ 14.1-14.2, at 20-21; Response at 8 (setting forth this fact); Second Response at 9 (setting forth this fact); Reply ¶F, at 6 (not disputing this fact); Second Reply ¶ C.9 (not disputing this fact).

It is mutually understood and agreed by the parties that Franchisee retains the responsibility and independent authority, notwithstanding any provision of this Agreement, to maintain and enforce personnel policies and procedures, [including, but not limited to, hiring, firing and disciplining [i]ts employees. Nothing contained in this Agreement shall be construed or interpreted [so] that any employee of Franchisee becomes or is -deemed to be an employee or agent of the Company. Franchisee shall be solely responsible for the maintenance and handling of all employee[ ] matters....

Franchise Agreement § 14.5, at 21. Denny’s, Inc. does not hire or fire Barreras Enterprises’ employees. See Boudakian Aff. ¶ 9-10, at 3; MSJ ¶ 18, at 6 (setting forth this fact); Response ¶ 18, at 4 (not controverting this fact). Denny’s, Inc. is “not involved in hiring, firing or counseling employees or managers. We’re not involved in what wages they pay employees.” Boudakian Depo. at 150-51. See Second Reply ¶ 39 (setting forth this fact). Further, Denny’s, Inc. is not involved in Barreras Enterprises’ employee handbooks, what benefits are offered, whether discounts are given for employee meals, health insurance, or bonuses. See Boudakian Depo. at 150-51; Second Reply ¶ 39 (setting forth this fact). Barreras Enterprises obtains its own liability insurance and is responsible for its own liabilities, such as discrimination cases. See Boudakian Depo. at 152-53; Second Reply ¶ 39 (setting forth this fact). Barreras Enterprises is responsible for its own building maintenance, building utilities, and taxes. See Boudakian Depo. at 152-54; Second Reply ¶ 39 (setting forth this fact).

6. Hours of Operation.

The Franchise Agreement requires Barreras Enterprises’ restaurant to operate twenty-four hours a day and seven days a week. See Franchise Agreement § 13.1, at 20; Response at 7 (setting forth this fact); Second Response at 8 (setting forth this fact); Second Response ¶ 1, at 20 (setting forth this fact); Reply ¶ E, at 6 (not disputing this fact); Second Reply ¶ C.6, at 5 (admitting this fact); Second Reply ¶ 1 at 7 (admitting this fact). “If the franchisee, or if it’s a company restaurant, feels that it’s a danger to the employees or the guests, they can go through a process ... at which our assets protection folks determine whether the restaurant can close or not close.” Boudakian Depo. at 21:14-19. See Second Response at 9 (setting forth this fact); Second Reply ¶ D.l, at 7 (setting forth this fact). Before changing the operating-hours requirement, Barreras Enterprises must produce evidence of 911 calls, incidents when police were involved, and what Barreras Enterprises did to solve the problem without closing, such as adding extra managers, extra employees, or security. See Boudakian Aff. at 21:14-23:15; Second Response at 9-10 (setting forth this fact); Second Reply at 6-7 (not disputing this fact).

7. Security.

Denny’s, Inc. provides security for its corporate-owned restaurants. See Boudakian Depo. at 27; Second Response ¶ 2, at 20 (setting forth this fact); Second Reply ¶ D.2, at 7 (not disputing this fact). Corporate-owned restaurants are separate and apart from franchisee-owned restaurants. See Boudakian Depo. at 27; Second Reply ¶25 (setting forth this fact). For corporate-owned restaurants, Denny’s, Inc. trains the managers on security issues related to cash, such as “cash control” and “how to go to the bank.” Boudakian Depo. at 106:16-21. See Second Response at 14 (setting forth this fact); Second Reply at 6-7 (not disputing this fact). Denny’s, Inc. has policies for hiring security guards at corporate-owned restaurants, but does not get involved in Barreras Enterprises’ security. See Boudakian Depo. at 135:11-14, 137:1-3; Second Response at 17-18 (setting forth this fact); Second Reply at 6-7 (not disputing this fact). Regarding security measures, Denny’s, Inc. may hire security guards only in corporate-owned stores, not franchisee-owned stores. Boudakian Depo. at 133-137; Second Reply ¶ 35 (setting forth this fact).

Denny’s, Inc. does not have the right to control decisions regarding security at Barreras Enterprises’ restaurant, such as employing security guards, security warning or alarm systems, or security cameras. See Boudakian Aff. ¶ 11, at 3; MSJ ¶ 19, at 6 (setting forth this fact); Response 19, at 4 (not controverting this fact). Barreras Enterprises, not Denny’s, Inc., has the sole discretion to provide security, the nature of that security, its cost, and any other issue involving measures to prevent criminal activity on or about the franchisee’s premises. See Boudakian Aff. ¶ 12, at 3; MSJ ¶ 20, at 6 (setting forth this fact); Response ¶ 20, at 4 (not controverting this fact). Denny’s, Inc. is not involved in Barreras Enterprises’ security, because Barreras Enterprises’ employees

don’t work for [Denny’s, Inc.]. They’re an independent operator and they can other than protecting the marks and the brands and the food and the service ... they can have security or not have security. That’s up to them. We don’t get involved ... because their employees work for the franchise not the corporation. So the franchisee does ... what they want to protect their employees.

Boudakian Depo. at 23:8-24:9; Second Response at 10 (setting forth this fact); Second Reply ¶ 24, at 9 (setting forth this fact).

Denny’s, Inc. does not receive information from franchisees when owners, operators, or employees are victims of crime because “they do not work for us.” Boudakian Depo. at 29:16-19; Second Response at 11 (setting forth this fact). Denny’s, Inc. did not know of any criminal activity in or around the 1602 Coors Boulevard Denny’s restaurant before June 20, 2009. See Boudakian Aff. ¶¶ 14-15, at 4; MSJ ¶21, at 6 (setting forth this fact); Response ¶ 21, at 4 (not controverting this fact). Denny’s, Inc. was not aware of any series of armed robberies taking place at Denny’s franchised restaurants in Albuquerque before Anderson’s death. See Boudakian Depo. at 139-142; Second Reply ¶ 36 (setting forth this fact).

PROCEDURAL BACKGROUND

The Anderson Estate is bringing a suit for wrongful death against Denny’s, Inc., Barreras Enterprises, F. Barreras, J.R. Barreras, and J.A. Barreras (collectively, “Barreras”), alleging that their “intentional act or omission proximately caused Stephanie Anderson’s death.” Amended Complaint ¶ 34, at 6. The Anderson Estate argues that Denny’s, Inc. and the Barreras caused Anderson’s death, through failing to properly train personnel on emergency procedures, failing to implement adequate security measures, failing to exercise due care in respect to Anderson, and willfully ignoring the foreseeability of the crime which took place on June 20, 2009. See Amended Complaint ¶ 28-31, at 5-6.

1. Motion for Summary Judgment.

Denny’s, Inc. filed its MSJ on October 26, 2012, arguing that it does not owe a duty to Barreras Enterprises or to Barreras Enterprises’ employees “to safeguard the work premises from the criminal acts of third parties,” and that the Court should thus dismiss the Anderson Estate’s claims against Denny’s, Inc. MSJ at 2.

Denny’s, Inc. frames the issue as “whether the franchisor should be held vicariously liable for any negligence committed by the franchisee in failing to provide appropriate security measures, which results in personal injury or death to business invitees or employees.” MSJ at 7. According to Denny’s, Inc., the clear majority rule, and the rule in New Mexico,.is that the “franchisor is not subject to vicarious liability for such claims.” MSJ at 7-8. It provides the legal backdrop for vicarious liability, identifying itself as the principal and Barreras Enterprises as the agent, but says that the Court may impose liability only if it finds that Denny’s, Inc. had the right of control over Barreras Enterprises, making Barreras Enterprises its “servant.” MSJ at 8. Denny’s, Inc. argues that, under New Mexico law, unless there is a special relationship between itself and Anderson, it did not have a duty to protect her from harm that the third parties’ criminal acts caused. MSJ at 8 (citing Rummel v. Edgemont Realty Partners, Ltd., 1993-NMCA-085, 116 N.M. 23, 26, 859 P.2d 491, 494). Whether that special relationship exists depends on “the degree to which Denny’s controls the operations of the restaurant owned by Barreras,” specifically the control over day-to-day operations. MSJ at 9.

Denny’s, Inc. cites Ciup v. Chevron U.S.A., Inc., 1996-NMSC-062, 122 N.M. 537, 928 P.2d 263, as the leading case in New Mexico for franchisor vicarious liability to franchisee employees and business invitees for third parties’ criminal acts. See MSJ at 9. In that case, a third party shot and injured a gas station attendant and a customer at a Chevron gas station during the course of an armed robbery. See MSJ at 9. The Supreme Court of New Mexico affirmed the trial court’s decision to grant Chevron U.S.A, Ine.’s motion for summary judgment, because it franchisor “did not have the necessary control or right of control governing the gas station’s operations to create a duty,” MSJ at 9, even though the plaintiffs demonstrated that Chevron U.S.A.: (i) sent inspectors to the gas station twice a year to inspect, among other things, the gasoline and oil products, (ii) provided a toll-free number for customers to voice concerns regarding the station’s operations, and (iii) prohibited the station from selling or providing pornographic material, see MSJ at 10. The Supreme Court of New Mexico said those activities did not provide Chevron U.S.A. sufficient control over the station to create a jury question on the right of control, because Chevron U.S.A. was simply protecting its trademark. See MSJ at 10. Dennys, Inc. argues that this represents the majority rule, in which a “franchisor’s ‘control’ to ensure the franchisee upholds the quality and operations standards of the brand or marks does not alone establish a franchisor’s vicarious liability for injuries to invitees or employees of the franchisee. ...” MSJ at 11. Citing a case with facts that it says are similar to the current case, Denny’s, Inc. argues that, when a franchisor requires the franchisee to remain open twenty-four hours a day and makes recommendations for security, rather than mandatory requirements, the franchisor is not exposed to vicarious liability for the franchisee’s negligence resulting in death or injury to employees or invitees. See MSJ at 12 (citing Wendy Hong Wu v. Dunkin’ Donuts, Inc., 105 F.Supp.2d 83 (E.D.N.Y.2000)). Denny’s, Inc. explains that these cases are in contrast to a small minority of courts that have held franchisors vicariously liable for a franchisee’s negligence. See MSJ at 13.

Denny’s, Inc. argues that the franchise agreement with Barreras Enterprises allows Denny’s, Inc. to protect its brand and marks, but the agreement does not give Denny’s, Inc. control over the restaurant’s day-to-day operations or security. See MSJ at 14. Those decisions, in its view, “are solely within the authority and control of Barreras.” MSJ at 14. Denny’s, Inc. acknowledges that it has the ability to review the criminal activity history if a franchisee requests a waiver of the twenty-four-hour operating requirement, but it says that Barreras Enterprises did not make such a request and that it was not aware of criminal activity at the restaurant before Anderson’s death. See MSJ at 14-15. Denny’s, Inc. attached the Boudakian Affidavit and Franchise Agreement to the MSJ.

As of November 26, 2012, the Anderson Estate had not responded to the MSJ. See Notice of Completion of Briefing at 1, filed November 26, 2012 (Doc. 43). Instead, the Anderson Estate moved the Court to strike the Notice of Completion of Briefing. See Motion to Strike Notice of Completion of Briefing on Summary Judgment filed by Denny’s Inc., filed November 27, 2012 (Doe. 44)(“Motion to Strike”). The Court indicated at a hearing on January 7, 2013, and then formalized its ruling in a Memorandum Opinion and Order, filed February 7, 2013, 291 F.R.D. 622 (D.N.M. 2013) (Doc. 65)(“Motion to Strike MOO”), that it would not strike the Notice of Completion of Briefing, but it would construe the Motion to Strike as a request for extension of time to respond to the MSJ. See Clerk’s Minutes at 1-2, filed January 7, 2013 (Doc. 63); Motion to Strike MOO, 291 F.R.D. at 624-25. The Court noted that it was “bound to adjudicate motions for summary judgment on their merits____” Motion to Strike MOO, 291 F.R.D. at 624.

On January 10, 2013, the Anderson Estate filed its initial response to the MSJ. See Response. The initial Response points out that the Franchise Agreement that Denny’s, Inc. attached to its MSJ has numerous typographical mistakes and errors, uses different typefaces throughout the document, and inconsistently shows a two-hole punch photocopied onto some copied pages but not others. See Response at 4-5. The Anderson Estate argues that “[i]t appears on examination that provisions and pages in the Franchise Agreement were changed or modified after execution.” Response at 5.

Turning to the substance of the Franchise Agreement, the Anderson Estate argues that the agreement gives Denny’s, Inc. “extensive control ... over the day-today operations of a Denny’s restaurant.” MSJ at 5. For example, “[t]he Franchise Agreement is elaborate concerning the procedures to be followed to implement ‘The Denny’s System.’” Response at 5.

The Company owns the trademark, service mark and trade name “Denny’s” [sic] and other related trademarks, service marks, trade names, copyrights, labels, designs, symbols, and distinctive logotypes (the “Denny’s Marks”) and the Company has a unique end [sic] particular plan for the operation of family style restaurants, including, but not limited to the Denny’s Marks, the Operations Manual, policies, standards, procedures, emPloyee [sic] uniforms, signs, menus, and related Items [sic], and the reputation and goodwill of the company'3 [sic] chain of restaurants (the “Denny’s System”). The Company desires to have the Restaurant operated as a Denny’s restaurant utilizing the Denny’s System and the Denny’s Marks.

Franchise Agreement ¶ 1.4, at 5. The Anderson Estate points to other provisions in the Franchise Agreement to demonstrate the “control” Denny’s, Inc. has over Barreras Enterprises: (i) Denny’s, Inc. may terminate the agreement if Barreras Enterprises fails to comply with the agreement’s standards and requirements, see Response at 6 (citing Franchise Agreement § 18.2, at 28-29); (ii) Denny’s, Inc. can purchase the franchisee’s restaurant after terminating the agreement, see Response at 6 (citing Franchise Agreement § 19, at 29-30); (iii) Barreras Enterprises and its managers must attend training to learn the Denny’s System, see Response at 6-7 (citing Franchise Agreement § 16, at 22-24); (iv) Barreras Enterprises and its managers or other personnel may attend optional training programs, see Response at 7 (citing Franchise Agreement § 16.3, at 23-24); (v) Barreras Enterprises must provide Denny’s, Inc. with full general liability insurance coverage, and must hold Denny’s, Inc. “harmless for claims by any employee concerning training” that Denny’s, Inc. provided, Response at 7 (citing Franchise Agreement § 9.0, at 16-17); (vi) the restaurant must be open twenty-four hours a day and seven days a week, see Response at 7 (citing Franchise Agreement § 13.1, at 20); (vii) the Franchise Agreement requires the employees to provide service to the public in a courteous, efficient, and skilled manner, see Response at 8 (citing Franchise Agreement § 14.2, at 21); and (viii) Denny’s, Inc. can inspect Barreras Enterprises’ restaurant, see Response at 8 (citing Franchise Agreement § 12, at 19-20).

The Anderson Estate draws several distinctions between this case and the facts in Ciup v. Chevron U.S.A., Inc. to support its argument that Denny’s, Inc. has control over the Barreras Enterprises’ day-to-day operations. In Ciup v. Chevron U.S.A., Inc., the agreement between Chevron U.S.A. and the franchisee limited Chevron U.S.A.’s control of the daily operations; there is no such limitation in the agreement between Denny’s, Inc. and Barreras Enterprises. See Response at 9. Chevron U.S.A. did not train Barreras Enterprises’ employees or managers; Denny’s, Inc. trains the managers on how to implement the Denny’s System. See Response at 9. Further, Denny’s, Inc. inspects Barreras Enterprises’ restaurant, and requires Barreras Enterprises to operate its restaurant twenty-four hours a day and seven days a week. See Response at 9. The Anderson Estate argues that all of these distinctions taken together create factual issues that preclude summary judgment. See Response at 9-10. The Anderson Estate did not attach any evidence to its initial Response, but stated that “Denny’s Inc. has not provided a copy of the Denny’s Operations Manual, has not described the Denny’s System or detailed the subjects and substance of the thirty day training all managers of a Denny’s Franchise are required to complete to the Company’s Satisfaction.” Response at 9. The Anderson Estate argues that these additional facts will control Denny’s, Inc.’s liability. See Response at 9.

Denny’s, Inc. replies that the “Plaintiff largely responds through factual interpretation,” noting that the Anderson Estate did not move to strike Denny’s, Inc.’s exhibits nor did it offer any new evidence. Reply at 2. Denny’s, Inc. also points out that the Anderson Estate requested further discovery, but failed to attach a sworn affidavit under rule 56(d) of the Federal Rules of Civil Procedure, which would have allowed the Court to defer ruling on the MSJ until discovery is complete. See Reply at 2-3. It is unclear, from Denny’s, Inc.’s perspective, how additional discovery will change the Court’s analysis when the Anderson Estate has stipulated to the Franchise Agreement, and for most of the facts it disputed, did so only by denying the facts without any support or evidence. See Reply at 3-4. “The responding party may not rely on conclusory allegations or unsubstantiated statements of denial but, rather must come forth with admissible evidence, such as affidavits, documents and the like, in order to properly carry its burden of rebutting the moving party’s prima facie case.” Reply at 4 (citing Scot to v. Almenas, 143 F.3d 105, 114 (2d Cir.1998)).

Although the Anderson Estate highlighted specific aspects of the Franchise Agreement “apparently in an effort to demonstrate support for the conclusion that Denny’s control is greater than that necessary merely for the protection of its brand and marks,” Denny’s, Inc. argues that the terms in the Franchise Agreement, including those relating to the appearance and cleanliness of the franchisee restaurants, are necessary to protect the Denny’s brand, and are typical in the trade. Reply at 5. Denny’s, Inc. argues that it does not control aspects beyond what is necessary to protect its brand, such as hiring and firing employees; construction, remodeling, and other improvements; and whether Barreras Enterprises provides security or otherwise tries to prevent criminal activity on its premises. Reply at 6-7. Denny’s, Inc. urges the Court to consider the out-of-jurisdiction cases on which the Supreme Court of New Mexico relied on in Ciup v. Chevron USA Inc., which explored the limits of franchisor control. See Reply at 8-11 (citing Wood v. Shell Oil Co., 495 So.2d 1034 (Ala.1986); Murphy v. Holiday Inns, Inc., 216 Va. 490, 219 S.E.2d 874 (1975); Cislaw v. Southland Corp., 4 Cal.App.4th 1284, 6 Cal.Rptr.2d 386 (1992)). For example, in Murphy v. Holiday Inns, Inc., the agreement between the franchisor and franchisee described the “Holiday Inn ‘system’ which was designed to provide ‘to the public ... an inn service ... of distinctive nature, of high quality, and of other distinguishing characteristics.’ ” Reply at 9 (quoting Murphy v. Holiday Inns, Inc., 219 S.E.2d at 876). The Supreme Court of Virginia referenced the Lanham Act, 15 U.S.C. §§ -1051-1141, which requires a trademark owner to regulate the licensees’ activities, because the owner may lose its mark by abandonment if the mark is used in a manner which causes the mark to lose its significance. See Reply at 10 (citing Murphy v. Holiday Inns, Inc., 219 S.E.2d at 877). In ruling as a matter of law that the franchise agreement did not create a principal/agent relationship between the franchisor Holiday Inns and the franchisee, the Supreme Court of Virginia said “the purpose of those provisions was to achieve a system wide standardization of business identity, uniformity of commercial service, and optimum public good will, all for the benefit of both contracting parties.” Reply at 10-11 (citing Murphy v. Holiday Inns, Inc., 219 S.E.2d at 878). In Cislaw v. Southland Corp., the California Court of Appeals affirmed summary judgment for the franchisor even though, among other things, the franchisor could terminate the franchise agreement and required the franchisee to attend an operations training program, keep the store clean and equipment in good repair, open the gas station from 7 a.m. to 11 p.m., 364 days a year, and make daily deposits into accounts the franchisor designated. See Reply at 11 (citing Cislaw v. Southland Corp., 6 Cal.Rptr.2d at 393). “Because the franchise agreement ‘withheld from the franchisor control over decisions relating to employment, inventory and day to day operations of the 7-Eleven store,’ there was no agency relationship, as a matter of law, sufficient to impose vicarious liability against Southland....” Reply at 11 (quoting Cislaw v. Southland Corp., 6 Cal.Rptr.2d at 394). Denny’s, Inc. argues that, especially in light of the cases upon which the Supreme Court of New Mexico relied in Ciup v. Chevron USA Inc., the Anderson Estate has not pointed to any factual disputes on the agency issue in this case. See Reply at 12.

Denny’s, Inc. emphasizes that recent cases have narrowed the inquiry to whether the franchisor controls the specific aspect of the franchisee business that is alleged to have caused the injuries and notes that, for this case, the proper inquiry is whether Denny’s, Inc. had control over the security measures at the franchisee restaurant. See Reply at 12. The Anderson Estate alleges that Denny’s, Inc. failed to provide a secure work environment, ensure adequate procedures for employees’ safety, operate the business in a reasonable and safe manner, and react to the foreseeability of violent crimes, see Reply at 13-14 (citing Complaint ¶ 32); yet, as Denny’s, Inc. points out, the Anderson Estate ignores the evidence that the Barreras, not Denny’s, Inc., had sole control over security measures, see Reply at 13. For example, Boudakian said that

Denny’s does not make or require decisions on whether premises security is provided, the nature of any premises security, its cost, or any other issue involving measures to prevent criminal activity on or about the franchisee’s premises. These matters are within the sole control of the franchisee, specifically in this case Barreras.

Reply at 13. Denny’s, Inc. argues that it did not take on any duties to provide security at the Barreras Enterprises restaurant. See Reply at 14.

2. Motion to Continue.

One day after Denny’s, Inc. filed its Reply, the Anderson Estate filed a Motion to Continue Defendant Denny’s Inc. Summary Judgement [sic] Hearing, filed January 29, 2013 (Doc. 60)(“Motion to Continue”). The Anderson Estate asked the Court to continue the hearing for the MSJ that was set for February 8, 2013, because it requested discovery from Denny’s, Inc. that it believed would better allow the parties and the Court to determine Denny’s, Inc.’s involvement in the franchisee restaurant. See Motion to Continue ¶¶ 1, 7, at 1-2. For example, the Anderson Estate wanted to complete its deposition with Boudakian, Denny’s, Inc.’s compliance officer, and wanted more information on the Denny’s System and the Denny’s Operating Manual. See Motion to Continue ¶¶ 2, 3, 6, at 1-2.

Denny’s, Inc. responded that the Anderson Estate did not make its requests for discovery until after it filed its Response and that it did not request more time to respond within the Response, nor did it file a rule 56(d) affidavit outlining the need for further discovery. See Response in Opposition of Denny’s, Inc. to Plaintiffs Motion to Continue Summary Judgment Hearing ¶¶ 3, 5, at 1-2, filed February 5, 2013 (Doc. 61)(“Motion to Continue Response”). Denny’s, Inc. argues that the Anderson Estate’s efforts to continue the hearing are untimely and that the pleadings are ready for the Court’s consideration. See Motion to Continue Response ¶ 6, at 2.

3. February 8, 2013 Hearing.

At a hearing on February 8, 2013, the Court first turned to the Motion to Continue. The Anderson Estate re-urged the arguments it made in its motion, namely that it needed more discovery to determine Denny’s, Inc.’s involvement in the franchisee restaurant. See Transcript of Hearing at 4:14-5:14, taken February 8, 2013 (“Feb. Tr.”)(Robinson). The Court asked why the Anderson Estate did not file a rule 56(d) affidavit, see Feb. Tr. at 6:9-10 (Court); the Anderson Estate said it thought it had accomplished the same objective as a rule 56(d) affidavit through its Response, see Feb. Tr. at 6:22-25 (Robinson). Denny’s, Inc. argued that, while it did not oppose the Anderson Estate’s request for discovery, it did take issue with the Anderson Estate’s failure to follow the correct procedure. See Feb. Tr. at 7:12-25 (Hatcher). In Denny’s, Inc.’s view, the Anderson Estate filed a response on the motion’s merits and did not request more time for discovery until after the parties finished briefing the MSJ; thus, the MSJ record should be closed, and the Court should hear arguments on the MSJ. See Feb. Tr. at 8:9-23 (Hatcher). The Court said that, without a rule 56(d) affidavit, there was no sound basis for continuing the MSJ hearing, and so it would hear arguments on the MSJ but would allow the Anderson Estate to submit supplemental briefing after the hearing if it found additional relevant information during discovery. See Feb. Tr. at 11:7-25 (Court).

Turning to the MSJ, Denny’s, Inc. argued that the franchisee controlled the day-to-day operations, such as the right to hire and fire employees, and Denny’s, Inc. was nothing more than a franchisor protecting its brands and its marks. See Feb. Tr. at 13:5-21 (Hatcher). Denny’s, Inc. said that all of the control that it had over the franchisee, such as the right to train managers and control hours of operation, signage, menus, and food, was insufficient to impose vicarious liability. See Feb. Tr. at 14:1-19 (Hatcher). “But the overriding area that — and this is absolutely undisputed on the record before the Court — is that Denny’s has absolutely no control over security measures.” Feb. Tr. at 14:20-22 (Hatcher). Looking to Ciup v. Chevron USA Inc., Denny’s, Inc. argued that, although the case was from 1996, the trend since then has been to focus on whether the franchisor controls the specific aspect of the operation alleged to have caused the harm. See Feb. Tr. at 17:22-18:16 (Hatcher). The cases on which the Supreme Court of New Mexico relied in Ciup v. Chevron USA, Inc. were also more detailed, in Denny’s, Inc.’s view, revealing that franchisors may train franchisee managers or employees and control the hours of operation without risking vicarious liability. See Feb. Tr. at 20:14-22:4 (Hatcher). Denny’s, Inc. argued that, although each case depends on its facts, Denny’s, Inc. exercised control over Barreras Enterprises to the extent necessary to protect its brand. See Feb. Tr. at 22:14-23:8 (Hatcher). The Court asked at what point Denny’s, Inc.’s control over the franchisee would lead to vicarious liability under New Mexico law. See Feb. Tr. at 23:10-15 (Court). Denny’s, Inc. said that, if it had analyzed all the franchisee operations, determined that it needed to implement security measures to protect franchisee employees, and then designed security measures or protocols and required the franchisees to adopt those measures, then it would be an easy case to establish vicarious liability. See Feb. Tr. at 23:16-24:3 (Hatcher). Denny’s, Inc. argued that, because Denny’s, Inc. was not aware of criminal activity at the Barreras Enterprises’ franchise, and did not attempt to implement security measures there, Denny’s, Inc. argued that the Court should not hold it vicariously liable for the Barreras Enterprises’ failure to provide proper security. See Feb. Tr. at 26:8-11 (Hatcher).

The Court asked why the Franchise Agreement had so many typographical errors and inconsistent fonts, see Feb. Tr. at 15:19-20 (Court); Denny’s, Inc. said it did not know, but contended that the errors did not take away from the substance, see Feb. Tr. at 15:23-16:5 (Hatcher). When the Court asked the Anderson Estate whether it disputed the authenticity of the Franchise Agreement, see Feb. Tr. at 27:8-13 (Court), the Anderson Estate said it questioned its authenticity, because the document differed from • the Franchise Agreement that Denny’s, Inc. provided in the initial disclosures, see Feb. Tr. at 28:22-29:10 (Robinson). Denny’s, Inc. said it did not compare the Franchise Agreement it attached to its MSJ and the one it produced in discovery, but it was not aware that there were any differences between the documents; even if there were, Denny’s, Inc. argues, the Anderson Estate did not point to any altered provisions and so the differences were probably not material to agreement’s substance. See Feb. Tr. at 43:22-45:3 (Hatcher).

The Anderson Estate argued that Denny’s, Inc. was aware of the criminal activity at the Barreras Enterprises’ restaurant: Denny’s, Inc. required it to be open twenty-four hours a day and seven days a week; the Franchise Agreement required Barreras Enterprises to report gross receipts to Denny’s, Inc.; and when Barreras Enterprises reported its weekly gross receipts, it would have told Denny’s, Inc. that it was robbed, explaining the lower gross receipts. See Feb. Tr. at 29:12-30:9 (Robinson). According to the Anderson Estate, the Franchise Agreement provided Denny’s, Inc. control over security: if Barreras Enterprises failed inspections relating to health and safety requirements, Denny’s, Inc. could terminate the agreement. See Feb. Tr. at 31:22-32:13 (Robinson). The Anderson Estate reiterated its arguments that it needed more discovery to know the full relationship between Denny’s, Inc. and the Barreras Enterprises’ franchise, specifically indicating that the operating manual and inspections might reveal that Denny’s, Inc. was involved in security at the franchisee restaurant. See Feb. Tr. at 33:2-14 (Robinson). The Court asked, if it froze the record at that time without allowing further discovery, whether Ciup v. Chevron USA, Inc. would control and require it to grant the MSJ. See Feb. Tr. at 39:21-40:1 (Court). The Anderson Estate said that the Franchise Agreement raised many questions that would preclude summary judgment, such as what the inspections involved and that, further, the Franchise Agreement shows that Denny’s, Inc. had more control over Barreras Enterprises than what Chevron U.S.A. had in Ciup v. Chevron USA, Inc. See Feb. Tr. at 40:4-25 (Robinson). The Anderson Estate agreed that the Court would need to analyze and apply Ciup v. Chevron USA, Inc. See Feb. Tr. at 41:11-18 (Robinson).

Denny’s, Inc. discussed Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla.App.1991), a case which it identified in its MSJ as in the minority of jurisdictions, holding the franchisor liable for its own direct negligence for failing to provide proper security. See Feb. Tr. at 45:9-15 (Hatch-er). Denny’s, Inc. argued that, unlike that case, it did not do anything to directly cause Anderson’s death, and further, that case found the franchisor liable based on apparent authority, which would not apply in this case, because the injured plaintiff is an employee rather than a customer. See Feb. Tr. at 45:14-46:11 (Hatcher). Although the Anderson Estate argued that Denny’s, Inc. would have had knowledge of prior crimes at the Barreras Enterprises’ franchise restaurant, Denny’s, Inc. points out that the Anderson Estate raised that argument for the first time at the hearing and did not support it with evidence; there is thus no evidence to dispute Boudakian’s testimony in his affidavit that Denny’s, Inc. did not have knowledge of any prior crimes. See Feb. Tr. at 47:1-14. Of the remaining points that the Anderson Estate raised — that Denny’s, Inc. could inspect Barreras Enterprises’ restaurant for health and safety, could terminate the Franchise Agreement, and required the restaurant operate twenty-four hours a day and seven days a week — Denny’s, Inc. argued that it identified cases where that level of control did not create a factual question on agency and that the Anderson Estate did not point to any authority in its Response that would indicate otherwise. See Feb. Tr. at 47:15-49:22 (Hatcher).

The Court noted that the record included only the Franchise Agreement and the Boudakian Aff., but it would allow the Anderson Estate to conduct additional discovery and submit additional evidence to the Court. See Feb. Tr. at 51:9-25.

4. Additional Briefing and Oral Arguments.

The Anderson Estate filed its Second Response to the MSJ on May 14, 2013, and repeats many of its same arguments regarding what the Franchise Agreement requires. Second Response at 6-9. The Anderson Estate said it deposed Boudakian and described his testimony, but the Anderson Estate failed to attach the deposition transcript to its Second Response. See Second Response at 9-18. It described several times in the deposition where Boudakian said that Denny’s, Inc. does not inspect or require security at the franchisee restaurants, see Second Response at 10, 12, and that the franchisee employees do not work for Denny’s, Inc., see Second Response at 11, but detailed what Denny’s, Inc. examines during inspections, such as the temperature of food serviced, whether the restaurant carpet bunched up, whether there was a thermometer in the bütter cooler, and how long it took for employees to bus the tables after guests left the restaurant, see Second Response at 11-12. The Anderson Estate explained that Denny’s, Inc. teaches its managers of corporate-owned restaurants certain security measures, such as how to manage cash and make bank deposits securely. See Second Response at 14. Denny’s, Inc. also provides the corporate-owned restaurants with “Best Practices” in dealing with security issues, such as a disruptive guest, but it directs the franchisee managers to talk to the franchisee about how to deal with those situations rather than requiring adherence to the “Best Practices.” Second Response at 15-16.

The Anderson Estate notes that Ciup v. Chevron USA Inc. controls this case, but that the control Denny’s, Inc. has over the franchisee restaurant is much greater than what Chevron had over the franchisee gas station. See Second Response at 20. It argues that Denny’s, Inc. requires security at the company-owned restaurants, but instructs franchisee employees “not to provide the answers that are available to corporate employees.” Second Response ¶ 2, at 20. The Anderson Estate attached several documents to its Second Response, including the security policy for corporate-owned restaurants, see Denny’s, Inc. Policy Security Service Agency Policy for Security Guards, filed May 14, 2013 (Doc. 75-1 at 1); Best Practice Learning Aid: Disruptive Guest, filed May 14, 2013 (Doc. 75-1 at 8); Hospitality, Quality & HACCP Review, filed May 14, 2013 (Doc. 75-2); and Food Safety, Standards & Regulatory Review, filed May 14, 2013 (Doc. 75-3).

Denny’s, Inc. argues that the Anderson Estate has not demonstrated any qualitative distinction between this case and Ciup v. Chevron USA Inc., and that the Anderson Estate has failed to respond to the argument that Denny’s, Inc. does not have control over Barreras Enterprises’ security measures. See Second Reply at 13. Denny’s, Inc. argues that ensuring uniformity in customer experience does not open up the company to vicarious liability: “ ‘The clear trend in the case law in other jurisdictions is that the quality and operational standards and inspection rights do not establish a franchisor’s control or right of control over the franchisee sufficient to ground a claim for vicarious liability as a general matter.’” Second Reply at 14 (quoting Allen v. Greenville Hotel Partners, Inc., 409 F.Supp.2d 672, 677 (D.S.C.2006)). It says that the Anderson Estate has not provided any authority to support the argument that what Denny’s, Inc. has done goes beyond protecting its trademark. See Second Reply at 14. Denny’s, Inc. attached portions of Boudakian’s deposition to its Second Reply. See Boudakian Depo.

The Court held a hearing on November 5, 2013. See Transcript of Hearing, taken November 5, 2013 (“Nov. Tr.”). The Court opened the hearing by asking the parties what law should apply to determine Denny’s, Inc.’s and the Barreras’ relationship: the Franchise Agreement included a provision stating that California law governs the agreement, but the parties had been analyzing the issue using New Mexico law. See Nov. Tr. 3:16-25 (Court). Denny’s, Inc. acknowledged the provision in the Franchise Agreement choosing California law, but said that it would not apply in this case, because the incident arose in New Mexico, with a New Mexico restaurant and a New Mexico resident. See Nov. Tr. 11:15-12:5 (Hatcher). The Court said that its first reaction was likewise to apply New Mexico law, because “this is a tort case,” and the agreement that the corporation entered into with another party does not govern a New Mexico resident bringing a tort case against the corporation; but its second thought is that this question involves a determination of agency law and how the agreement governs the relationship of the parties. Nov. Tr. 12:6-24 (Court). Denny’s, Inc. argued that, even if California law should apply, the analysis remains the same, because the leading New Mexico case, Ciup v. Chevron USA Inc., cites and relies on a California case, Cislaw v. Southland, indicating that applying New Mexico law or California law would bring the Court to the same conclusion. See Nov. Tr. 13:1-14 (Hatcher). Going on to analyze the facts of that case, Denny’s, Inc. argued that, even when the franchisor has authority to terminate a franchise agreement and require the franchisee to participate in a training program, keep the store clean and equipment in good repair, operate from 7:00 a.m. to 11 p.m., 364 days a ye