ORDER ON PLAINTIFF'S MOTION TO STRIKE DECLARATION OF THOMAS BLOOMER
ORDER ON DEFENDANT UNIVERSITY OF THE NATIONS, INC.'S MOTION FOR SUMMARY JUDGMENT OR PARTIAL SUMMARY JUDGMENT
This is an action for damages for injuries suffered by Plaintiff Jaco Van Maanen ("Plaintiff") while using a zip line near Mammoth Lakes, California. As a result of this incident, Plaintiff suffered permanent spinal cord injuries and paralysis. Plaintiff has entered into good faith settlement agreements with Defendant Youth With a Mission-Bishop and Defendant Youth With a Mission-Ahualani, formerly known as Youth with a Mission-International, Inc. See Court's Docket, Doc. Nos. 147, 148. Defendant University of the Nations, Inc. ("University" or "Defendant") is the sole remaining defendant. Plaintiff is a resident of the Netherlands, and University is incorporated and headquartered in Hawaii. This Court has jurisdiction*fn1 over the subject matter of this case pursuant to 28 U.S.C. § 1332. Pursuant to 28 U.S.C. § 1391, venue is proper in the Eastern District of California because a substantial part of the events giving rise to Plaintiff's claims occurred in this judicial district. Plaintiff alleges five causes of action against University, all of which sound in negligence. Specifically, Count II alleges negligence based on common carrier liability; Count III alleges negligent misrepresentaton, training, and hiring; Count IV alleges negligence based on vicarious liability arising from an actual agency relationship; Count V alleges negligence based on vicarious liability arising from an ostensible agency relationship; and Count VIII alleges negligence based on alter ego liability.University now movesfor partial or complete summary judgment on all remaining claims against it.Plaintiff has filed a motion to strike the declaration of Dr. Thomas Bloomer, submitted by Defendant in support of its motion for summary judgment. For the reasons that follow, Plaintiff's motion to strike will be denied, and University's motion for summary judgment will be granted.
I. PLAINTIFF'S MOTION TO STRIKE
Plaintiff objects to University's use of the Thomas Bloomer declaration in support of its motion for summary judgment. Dr. Bloomer is the International Provost and Vice President for Academic Affairs of non-party University of the Nations-International ("International"), a global network of educational programs and ministries that are operated independently by some 450 YWAM entities around the world. International publishes the University of Nations catalog, which lists courses that independent YWAM entities pay to register in the network. Defendant contends International is a separate and distinct entity from University of the Nations, Inc.
Plaintiff argues that University did not include Dr. Bloomer in its initial disclosures under Federal Rule of Civil Procedure 26, and it should therefore be stricken. Rule 26(a) requires that a party disclose "the name and, if known, the address and telephone number of each individual likely to have discoverable information - along with the subjects of that information -that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment." Fed. R. Civ. P. 26(a)(1)(A)(i). Rule 26(e) requires a party to supplement its initial disclosures, "in a timely manner if the party learns that in some material respect the disclosure . . . is incomplete, or incorrect, and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing." See Fed. R. Civ. P. 26(e)(1)(A). Rule 37 states:
If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at trial, unless the failure was substantially justified or was harmless.
See Fed. R. Civ. P. 37(c).
University claims it did not include Dr. Bloomer in its Rule 26(a) initial disclosures because the International entity was not named in the Complaint. This argument is unavailing. The plain language of Rule 26(a) required University to disclose the identity of each individual, whether a party representative or not, who was likely to have discoverable information that may be used to support that University's claims or defenses. University further contends Plaintiff elicited extensive testimony about Dr. Bloomer in the May 4-5, 2011 deposition of David Fairley and the June 1-2, 2011 deposition of Loren Cunningham. University argues this testimony encompassed the information required by Rule 26(a) and therefore no supplementation was required under Rule 26(e). A review of the deposition excerpts submitted by University reveals that Dr. Bloomer's name and position were mentioned several times. Mr. Fairley and Mr. Cunningham testified that Dr. Bloomer serves as the provost of International, a non-legal entity, separate from University, that publishes the University of the Nations catalog and offers accreditation to YWAM courses. The deposition testimony also revealed that Dr. Bloomer resides somewhere in Switzerland, and his office rents space from University in Kona, Hawaii.
Thus, although Dr. Bloomer was not identified in University's Rule 26(a) disclosures, his identity, position, location, and the subject of the information he possessed were made known to Plaintiff through the Fairley and Cunningham Depositions. See Fed. R. Civ. P. 26(e). The discovery cut-off in this case was July 23, 2011, which gave Plaintiff ample time after the Cunningham deposition to issue further written discovery or notice Dr. Bloomer's deposition. The Court therefore finds that University's failure to include Dr. Bloomer in the initial disclosures was harmless. Plaintiff's motion to strike will be denied.
II. FACTUAL BACKGROUND*fn2
Youth With a Mission ("YWAM") is an international non-denominational Christian ministry movement founded by Loren Cunningham, and his wife, Darlene, in the 1960s. See Cunningham Decl. ¶¶ 26-27. It consists of 20,000 volunteers, located at approximately 1,000 different independently owned and operated entities, often referred to as "bases" or "branch locations," throughout the world. See Cunningham Decl. ¶ 45. All defendants in this case are engaged in the YWAM movement.
Youth With a Mission-Bishop
Youth With a Mission-Bishop, doing business as Sea and Summit Expeditions ("YWAM-Bishop"), is a California religious corporation with a business address in Bishop, California. See DUMF No. 3. YWAM-Bishop is governed by its own Board of Directors that is independently selected, and meets regularly and operates pursuant to the requirements of its corporate bylaws. Its officers are appointed by the Board of Directors of Sea and Summit Expeditions. See DUMF No. 3. David Fairley is the Director of YWAM-Bishop. See Fairley Decl. ¶ 2. Plaintiff incurred the injuries that are the subject of this litigation while he was enrolled in a wilderness leadership training course at YWAM-Bishop. See Fairley Decl. ¶¶ 14-15.
Youth With a Mission International, Inc.
Youth With a Mission-Ahualani, formerly known as Youth with a Mission-International, Inc., ("YWAM-Ahualani") is a domestic nonprofit corporation incorporated in Hawaii. See Court's Docket, Doc. No. 105, Ex. F. Loren Cunningham, the founder of the YWAM movement, currently serves as the President of YWAM-Ahualani. See Cunningham Depo. at 36. The Hawaii Department of Commerce and Consumer Affairs and a recent tax return list YWAMAhualani's address as 75-5851 Kuakini Highway, Ste. 210, Kailua Kona, Hawaii. See Court's Docket, Doc. No. 105, Exs. F, G. Mr. Cunningham has testified that those documents were completed erroneously, and the true address of YWAM-Ahualani is on Mamalahoa Highway, Kealakekua, Hawaii 96750. See Cunningham Depo. at 44.
University of the Nations, Inc.
Defendant University of the Nations, Inc.,*fn3 is a not-for-profit public benefit corporation incorporated in Hawaii, providing education services to students. See DUMF No. 1. Defendant's mailing address is 75-5851 Kuakini Hwy, Kailua Kona, Hawaii - the same address listed by the Hawaii Department of Commerce and Consumer Affairs for Youth With a Mission-Ahualani. See Cunningham Depo. at 95, 286. University is governed by its own Board of Directors that is independently selected, and meets regularly and operates pursuant to the requirements of its corporate bylaws. See DUMF No. 2. The officers of University are appointed by the Board of Directors of University, and Loren Cunningham currently serves as President. See DUMF No. 2. Mr. Cunningham has testified that University of the Nations, Inc. was formerly known as Pacific and Asia Christian University, Inc. ("PACU"). See Cunningham Depo. at 238-240.
University of the Nations-International
In the moving papers, the parties also refer to a non-defendant, non-legal entity known as University of the Nations-International ("International"), or the "virtual" or "global" University of the Nations. Defendant contends International is an unincorporated global network distinct from University of the Nations, Inc. See Cunningham Depo. at 197-198. According to Defendant, International does not own, operate, or administer any campus, branch or other location. See Bloomer Decl. ¶ 15. YWAM entities may choose to list one or more of their training programs in the catalog published by International, and International grants degrees and diplomas certifying the accumulation of credits from registered courses. See Bloomer Decl. ¶¶ 18-19. Defendant maintains International does not provide any educational services, and does not have the power to direct the manner or method of the program, the tuition or fees, the teachers, or any other operational aspect of the registered courses.See Bloomer Decl. ¶¶ 23, 28-29, 38; Cunningham Decl. ¶¶ 76-82. Defendant contends University of the Nations, Inc., on the other hand, is merely another YWAM base that offers courses in the International network. See Fairley Decl. ¶ 33; Cunningham Decl. ¶ 65.
Plaintiff argues that although Mr. Cunningham testified that the University of the Nations course catalogis published by International, the course catalog states:
University of the Nations: History
Eighteen years after its inception in 1960, Youth With a Mission founded the Pacific & Asia Christian University (PACU) in Kona, Hawaii . . . The Board of Regents unanimously adoped the new name, University of the Nations (U of N), at their meeting in 1988. The name change took place officially in 1989 The U of N is unique in its international missionary training scope with school locations in 140 nations on all continents. . . .The University of Nations [sic] is unique. It is global, cross-cultural, and adaptable. Approximately 15,000 students a year take one or more registered courses in 60 languages in 400 locations.
See Court's Docket, Document 105, Ex. J. Plaintiff argues that this, along with the fact that the address for University and International are the same, no legal documents exist for International, and the course catalog does not differentiate between University and International suggests that University and International are a single entity. See PSDF No. 3; Cunningham Depo. at 95, 255, 286, 298, 314; Court's Docket, Doc. No. 105, Exs. I, K, L. The Court views the facts in the light most favorable to Plaintiff and will therefore assume, for purposes of summary judgment, that University and International are the same entity.
The parties largely agree on the facts surrounding the injury giving rise to this litigation. In 2007, Plaintiff Jaco Van Maanen, who was 21 years old at the time, enrolled in a Youth With a Mission Discipleship Training School ("DTS") course at Youth With a Mission Heidebeek, a YWAM base in the Netherlands. See Pl.'s Depo. at 41. In January 2008, as he was nearing the end of his DTS course, he began researching other opportunities within the YWAM movement to develop his Christian missionary skills while participating in outdoor activities. See Pl.'s Depo. at 280. He turned to the online catalog of the University of the Nations, and found a course entitled School of Outdoor Adventure and Recreation ("SOAR") located at YWAM-Bishop (doing business as Sea and Summit Expeditions) in the United States. See Pl.'s Depo. at 147-50. Plaintiff made the decision to enroll in the SOAR course in reliance on his belief that Sea and Summit Expeditions was an entity that was part of and subscribed to the values of the YWAM movement. See DUMF No. 11. Plaintiff consulted the Sea and Summit website, applied for the SOAR course, and was accepted in August 2008. See Court's Docket, Doc. No. 105, Ex. O. In late November 2008, after enrolling in the SOAR course, Plaintiff emailed Sea and Summit Expeditions asking for more information on how SOAR is part of the University of the Nations, because he thought he might qualify for government financial assistance in the Netherlands if he were enrolled in a college course. See Court's Docket, Doc. No. 104, Ex. 18. Ultimately, Plaintiff concluded he could not get government aid for the SOAR course, and Plaintiff did not enroll in the SOAR course in order to earn credits toward a University degree. See DUMF No. 12; Pl.'s Depo. at 135-36.
In March 2009, Plaintiff traveled from his home in the Netherlands to the YWAM-Bishop campus and began the SOAR course. See Pl.'s Depo. at 217. After successfully completing the first portion of the course, Plaintiff, the other students, and the SOAR instructors traveled to a YWAM-Bishop campsite in the Inyo National Forest near Mammoth, California. On June 17, 2009, while at this campsite, Plaintiff, the other students, and one of the SOAR course instructors hiked a short distance to a zip line that had been erected for the campers. See Cokely Depo. at 20, 49-50; Fairley Depo. at 129; Fairley Decl. ¶ 15. The zip line was not open to the public at large,*fn4 and no admission was charged. See DUMF No. 10. Plaintiff was the first student to ride the zip line. When he propelled from the top of the zip line, he accelerated rapidly and collided with a tree connected to the base of the zip line, as well as a metal ladder placed near that tree. See Pl.'s Depo. at 196. Plaintiff was taken to a hospital in Mammoth, California, and was ultimately diagnosed with a spinal cord injury resulting in paralysis known as quadriplegia or tetraplegia. See Pl.'s Depo. at 301.
On March 17, 2010, Plaintiff filed the instant action against YWAM-Bishop, YWAMAhualani, and University. Plaintiff alleged that YWAM-Bishop had negligently failed to provide adequate supervision of the zip line and had breached its duty to use due care in erecting the zip line. Plaintiff alleged direct negligence, as well as negligence based on actual agency, ostensible agency, and alter ego against YWAM-Ahualani and University. Plaintiff also alleged negligence based on common carrier liability against all three Defendants. As discussed above, Plaintiff has settled his claims against YWAM-Bishop and YWAM-Ahualani, leaving only the claims against University.
C. Relationship Between University of the Nations, Inc. and YWAM-Bishop University and YWAM-Bishop are separate and independent entities, and they have not commingled funds; shared revenue; shared assets; shared or had in common directors, officers, staff members, offices, real or personal property or professional service providers. Neither University nor YWAM-Bishop has appointed or participated in the appointment or supervision of the other's officers or staff. See Fairley Decl. at ¶¶ 5-19, 19-26; Cunningham Decl. at ¶¶ 5, 7-10, 11-24; Bloomer Decl. at ¶¶ 2-44. However, Plaintiff asserts the following facts suggest that University does have the right to control certain aspects of YWAM-Bishop, including matters of mission, staff members, admission of students and other important decisions as to the manner or means of conducting the operation:
* In order for the SOAR course to be registered with University of the Nations, the course needs to contain the YWAM foundational values and the branch location must submit a form and registration fee to University. See PRDUMF No. 5; Fairley Depo. at 51, 52, 63, 317.
* YWAM-Bishop is required to register the SOAR course every couple of years to let the university know what they are doing in the course. See PRDUMF No. 5; Fairley Depo. at 51, 52, 63, 317, 318, 325.
* Radical course changes must be submitted by the branch locations, including YWAM-Bishop, to the university for approval. See ...