Dunn v. Eagle Holdings, LLC, et al.

Filing 62

MEMORANDUM OPINION AND ORDER directing as follows: (1) Plaintiff's motions to strike (Docs. 32 & 52 ) are GRANTED to the extent that the exhibits will not be permitted as expert testimony or for any other purpose than that discussed supra; (2 ) To the extent that Plaintiff's second motion to strike (Doc. 52 ) requests leave of court to file a reply brief in support of his motion for summary judgment, that request is MOOT as Plaintiff subsequently filed such a brief; (3) Defendants&# 039; motion to dismiss or, in the alternative, motion for summary judgment (Doc. 26 ) and motion for a hearing (Doc. 27 ) are DENIED; (4) The court DEFERS ruling on Plaintiff's motion for summary judgment (Doc. 33 ) until subject matter juris diction over this action can be assured; (5) The parties are ORDERED to refrain from filing a motion for attorney's fees under the theory that the party is a prevailing party until final judgment has been entered by the court; (6) Defendants 9; request for attorney's fees and costs based on allegations of bad faith by Plaintiff's counsel are not properly before the court in that they have not been submitted in the form of a separate motion, but are embedded in the body of brief ing related to the motion to dismiss and motion for summary judgment; as such, the request will not be considered; (7) Consistent with the court's inherent authority to control the pretrial management of litigation in accordance with Fed. R. Civ . P. 16 and on consideration of the material issues presented in this case and Defendants' renewed challenge to the court's subject matter jurisdiction, a short period of limited discovery to ascertain the effects of Defendants' ADA re mediation efforts at Liberty is appropriate and necessary, as further set out; Plaintiff and his retained expert are granted leave to inspect Liberty by March 16, 2015, for the purpose of determining what, if any, ADA violations remain at issue in th is litigation in light of Defendants' counsels' representations that the property is ADA compliant and that all relief requested by Plaintiff has been satisfied, as further set out; if the parties cannot agree on a date and time for the ins pection, the parties are ORDERED to inspect Liberty at 10:00 a.m. on March 16, 2015; (8) The parties are ORDERED to confer face-to-face and to file a joint status report, by March 30, 2015, setting forth their areas of agreement, if any, regarding th e ADA compliance status of Liberty as it relates to Plaintiff's Title III ADA claim and his requests for injunctive relief, as further set out. Signed by Honorable Judge Paul W. Greene on February 23, 2015. (Attachments: # 1 Civil Appeals Checklist)(scn, )

IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
PATRICK DUNN,
Plaintiff,
v.
EAGLE HOLDINGS, LLC,
et al.,
Defendants.

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Case No. 2:14-cv-539-PWG

MEMORANDUM OPINION AND ORDER
This is an action for declaratory and injunctive relief under Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. Plaintiff Patrick
Dunn, through his counsel of record, seeks redress from Defendants Eagle Holdings,
LLC, and S&S Eagles, LLC,1 for architectural barrier violations of the ADA. The
property at issue in this litigation is located in Prattville, Alabama, and does business
as Liberty Gas Station and Bama Package Store (hereinafter “Liberty”). It is
undisputed that Defendants own and operate Liberty. Plaintiff alleges that he is a
person with a qualifying disability who travels to Prattville every two weeks to visit
his child, and that he desires to visit Liberty in the future. (Doc. 1 at ¶ 3). Plaintiff
1

On July 24, 2014, Defendant Auro Swamy was dismissed as a party to these
proceedings. (Doc. 19).
1

asserts that he is disabled within the meaning of the ADA because he “requires a
wheelchair for mobility[] as well as suffering other disabilities ....”2 (Doc. 1 at ¶ 3).
He avers that he is barred from patronizing Liberty because of “barriers” that deny
him “full, safe and equal access because of [Defendants’] continuous refusal to
remove the barriers.”3 (Id.).
The period for discovery and dispositive motions has expired, and the parties
were unsuccessful in their attempts to settle their dispute through mediation. Before
the court are the following motions: (1) Defendants’ motion to dismiss or, in the
alternative, motion for summary judgment4 and for a hearing (Doc. 26); (2) Plaintiff’s
motion to strike pursuant to Fed. R. Civ. P. 26(a)(2) “Exhibit G”5 to Defendants’
motion to dismiss or, alternatively, for summary judgment (Doc. 32); (3) Plaintiff’s

2

It is undisputed that Plaintiff is paralyzed below his C-7 vertebra, and relies on a
wheelchair for mobility. (Doc. 33 at p. 3 (citing Exhibit D thereto)). Defendants do not
challenge that Plaintiff is a disabled individual under the ADA.
3

Defendants assert a general denial to Plaintiff’s claim in their Answer. (Doc. 6).

4

In this motion, Defendants assert only that this action is due to be dismissed or judgment
entered in Defendants’ favor because Plaintiff’s claim is moot. For the reasons discussed infra,
the motion is construed as a motion to dismiss for lack of subject matter jurisdiction. See Sheely
v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) (reiterating that a motion
raising mootness is properly construed as a motion to dismiss for lack of subject matter
jurisdiction and not as a motion for summary judgment pursuant to Fed. R. Civ. P. 56)).
5

See Doc. 26-7. This exhibit was also filed as “Exhibit J” in opposition to Plaintiff’s
motion for summary judgment and can be found in the court’s record at Docs. 39-10, 39-11 &
39-12. For clarity, the exhibit will be referred to as “Exhibit G.”
2

motion for summary judgment (Doc. 33); and (4) Plaintiff’s motion to strike expert
testimony offered by Defendants and for leave to file a reply in opposition to
“Defendant’s Brief in Opposition to Plaintiff’s Motion for Summary Judgment and
Supplement to Defendants’ Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment”6 (Doc. 52). Plaintiff and Defendants also request an award of
attorneys’ fees and costs, but neither party has filed a motion to that end.
On January 29, 2015, with the written consent of the parties, this case was
assigned to the undersigned to exercise jurisdiction over all matters pursuant to 28
U.S.C. § 636(c) and Fed. R. Civ. P. 73. (Doc. 55). The aforementioned motions are
deemed under submission on the record and without oral argument. Neither party
contests Plaintiff’s standing to bring this action, and the court finds sufficient
allegations and evidence to support standing. Subject matter jurisdiction over this
controversy, however, is in doubt.
I.

DISCUSSION
A.

Motions to Strike — Evidentiary Matters

Prior to proceeding to a discussion of the parties’ motions, certain evidence of
record must be properly cabined. Defendants submitted a limited report and a written
form by an engineer purporting to address the condition of the Liberty property.
6

See Doc. 39.
3

Those exhibits speak directly to the engineer’s impressions about the property’s
compliance or lack thereof with the ADA. Those submissions are referred to in
Plaintiff’s motions to strike as Exhibit G and the “ADA Checklist for Readily
Achievable Barrier Removal,”7 which Defendants filed in opposition to Plaintiff’s
motion for summary judgment. (Docs. 26-7, 39-10, 39-11 & 39-12).
Plaintiff moves to strike both exhibits as improper expert testimony. The crux
of Plaintiff’s argument is that Defendants neglected to disclose the identity of the
expert who prepared the documents in accordance with Federal Rule of Civil
Procedure 26 and the court’s scheduling order. In a manner inconsistent with
Defendants’ reliance on those exhibits in support of its argument that all ADA
barriers at Liberty are remedied, Defendants respond to Plaintiff’s motions to strike
by conceding that they are not offering the evidence as expert testimony or evidence
under Rule 702, Federal Rules of Evidence. (Doc. 53 at p. 3).
In Defendants’ opposition to the motions to strike, Defendants expressly clarify
that they offer Exhibit G to show only that an inspection of Liberty took place at
Defendants’ direction, “not for the information, opinions, or facts contained therein.”
(Doc. 53 at p. 3). The ADA Checklist for Readily Achievable Barrier Removal is

7

Defendants assert this form was prepared by an engineer but there is no indication on
the exhibit itself of the identity of the person who created the document or the date it was
completed nor is there any evidence of record to clarify those omissions.
4

offered as evidence of “facts relating to physical conditions” at Liberty with respect
to certain measurements and physical conditions.8 (Doc. 53 at pp. 4-7).
Defendants do not dispute that they did not timely disclose an expert in keeping
with Fed. R. Civ. P. 26 and the scheduling order. Accordingly, and in light of
Defendants’ concession that they are not offering the evidence as expert testimony,
Plaintiffs’ motions to strike are due to be GRANTED IN PART. The exhibits at
issue will not be admitted as expert testimony establishing that Defendants are in
compliance with the ADA.
B.

Defendants’ Motion to Dismiss Due to Mootness

Defendants’ motion seeks dismissal for lack of subject matter jurisdiction
based on mootness. While the motion is brought as a motion for summary judgment
in the alternative, the Eleventh Circuit has “repeatedly said that when a district court
disposes of a case on justiciability (mootness) grounds we will treat the district
court’s determination as if it was ruling on a motion to dismiss for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1), even if the district court mistakenly
has labeled its ruling a grant of summary judgment.” Sheely v. MRI Radiology

8

Plaintiff submitted evidence in the form of an expert’s report and Plaintiff’s own
affidavit that conditions at Liberty are not as Defendants’ assert; specifically, Plaintiff challenges
the “measurements and physical conditions” as evidenced by the ADA Checklist for Readily
Achievable Barrier Removal” and Defendants’ contention that all ADA barriers of which
Plaintiff complains have been removed.
5

Network, P.A., 505 F.3d 1173, 1182 (11th Cir. 2007). Therefore, Defendants’ motion
will be assessed under the framework for a Rule 12(b)(1) challenge to subject matter
jurisdiction due to mootness.
This district recently set forth the appropriate standard of review for a Rule
12(b)(1) motion as follows:
A Rule 12(b)(1) motion to dismiss may assert either a factual attack or
a facial attack to jurisdiction. McElmurray v. Consol. Gov't of
Augusta–Richmond Cnty., 501 F.3d 1244, 1251 (11th Cir. 2007);
Fed.R.Civ.P. 12(b)(1). Facial attacks challenge subject matter
jurisdiction based on the complaint’s allegations. Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir.1990). On the other hand, a factual attack
challenges “the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings, such as
testimony and affidavits, are considered.” Id.
Professional Helicopter Pilots Ass’n Local 102 v. U.S. Dep’t of the Army, 2013 WL
6837555, at *4 (M.D. Ala. Dec. 26, 2013). This case presents a factual attack such
that examination of evidence and matters outside the pleadings is appropriate.
The Eleventh Circuit’s holding in Sheely, an ADA case on the issue of
mootness, is binding and directly on point to Defendants’ motion. In Sheely, a district
court granted summary judgment on the basis that the defendant voluntarily ceased
activities that were alleged to be in violation of the ADA. See id. at 1177. The
district court held that the voluntary cessation rendered the action moot and, thus,
deprived the court of subject matter jurisdiction. Id. at 1182. The Eleventh Circuit
6

reversed the district court’s holding, and articulated the legal standard and burden of
proof a defendant must navigate to succeed on a mootness challenge. Id. at 1177.
“Whether a case is moot is a question of law[.]” Sheely, 505 F.3d at 1182. A
“case is moot when it no longer presents a live controversy with respect to which the
court can give meaningful relief. If events that occur subsequent to the filing of a
lawsuit ... deprive the court of the ability to give the plaintiff ... meaningful relief,
then the case is moot and must be dismissed.” Id. at 1183 (quoting Troiano v.
Supervisor of Elections in Palm Beach County, Fla., 382 F.3d 1276, 1281-82 (11th
Cir. 2004)).
However, “[t]he doctrine of voluntary cessation provides an important
exception to the general rule that a case is mooted by the end of the
offending behavior,” [Troiano, 832 F.3d] at 1282 ... It is well settled that
a defendant’s voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the
practice. If it did, the courts would be compelled to leave the defendant
free to return to his old ways. In accordance with this principle, the
standard we have announced for determining whether a case has been
mooted by the defendant’s voluntary conduct is stringent: A case might
become moot if subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.
Sheely, 505 F.3d at 1183-84 (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)) (emphasis in original).
“The ‘formidable,’ ‘heavy burden of persuading the court that the challenged
conduct cannot reasonably be expected to start up again lies with the party asserting
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mootness.’” Id. at 1184 (quoting Laidlaw, 528 U.S. at 189, 190). “A defendant’s
assertion that it has no intention of reinstating the challenged practice does not suffice
to make a case moot and is but one of the factors to be considered in determining the
appropriateness of granting an injunction against the now-discontinued acts.” Id.
(internal citations and marks omitted).
Defendants miss their heavy burden by a wide margin. In the motion to
dismiss, Defendants assert and provide evidence that they employed a contractor to
“remove the alleged architectural barriers”; however, Defendant explains that those
barriers were not removed at the time of the filing of the motion and were not
expected to be remediated for some months. (Doc. 26 at ¶¶ 22-24). Defendants have
not met their basic burden under Sheely to show that the “challenged conduct cannot
reasonably be expected to start up again” as they had not yet remedied the conduct
that Plaintiff complains of at the time the motion was filed.9 As it was absolutely
clear that this action was not moot at the time the motion was brought, Defendants’
motion to dismiss for lack of subject matter jurisdiction is due to be DENIED.
C.

Plaintiff’s Motion for Summary Judgment

Plaintiff moves for summary judgment on his claim that Defendants have

9

In a subsequent filing, Defendants’ counsel contends that, as of December 30, 2014, the
remediation efforts were completed. (Doc. 39 at p. 4). That issue will be addressed infra.
8

violated and continue to violate Title III of the ADA at Liberty. Plaintiff addresses
the merits of his claim, seeks entry of summary judgment declaring Defendants in
violation of the ADA, and requests the entry of an injunction to bring Liberty into
compliance.
Title III of the ADA provides that:
No individual shall be discriminated against on the basis of disability in
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or operates a place of
public accommodation.
42 U.S.C. § 12182(a). “Congress enacted the ADA in 1990 to remedy widespread
discrimination against disabled individuals.” PGA Tour, Inc. v. Martin, 531 U.S. 661,
674 (2001). The purpose of the ADA is, therefore, remedial and not punitive.
In light of Defendant’s decision not to oppose the motion for summary
judgment on its merits, Plaintiff’s evidence in support of the motion, and Defendants’
admissions and evidence of record that they have sought to remove architectural
barriers at Liberty in an effort to provide Plaintiff all the relief he seeks in this
litigation, there is quite probably not a dispute of material fact that Defendants were
not in compliance with the ADA at the time Plaintiff filed this case or his motion for
summary judgment. However, because Defendants’ opposition to Plaintiff’s motion
for summary judgment challenges the subject matter jurisdiction of this court, the
9

merits of Plaintiff’s motion are not reached herein.
Defendants only challenge to Plaintiff’s motion for summary judgment is a
repetition that this case is moot. Defendants assert that, as of December 30, 2014,
they are satisfied that “all of the Plaintiff’s alleged barriers to entry” have been
remediated. (Doc. 39 at p. 4). According to Plaintiff, Defendants did not notify
Plaintiff’s counsel of the completion of remediation efforts until December 31, 2014.
(Doc. 43). All discovery in this action was due to be completed that same day, and
this matter was previously set for a final pretrial conference on January 23, 2015. The
timing of Defendants’ determination that Liberty is presently ADA compliant did not
allow Plaintiff an opportunity to make an independent assessment of conditions at the
property within the discovery deadline.10
The evidence Defendants rely upon in support of their assertion that they
removed or repaired all barriers at Liberty is the aforementioned Exhibit G and ADA
Checklist, which are limited to providing measurements and photographs purporting
to represent conditions at Liberty, and an affidavit from the store manager at Liberty.
Plaintiff notes that the ADA Checklist and photographs are inconsistent with his
10

The undersigned previously denied Plaintiff’s motion for additional discovery out of
time to inspect Liberty for the purpose of identifying and assessing Defendants’ remedial efforts.
(Docs. 43 & 45). At that time, this case was set for a final pretrial conference and trial before
U.S. District Judge Myron H. Thompson, who was then the presiding judge. Because of the
parties’ consent to magistrate judge jurisdiction, the court is no longer bound by the district
judge’s settings and can revisit scheduling and discovery issues.
10

evidence of record, which includes Plaintiff’s expert’s opinions and Plaintiff’s
affidavit that ADA violations at Liberty have not been remediated.
Despite the disputed evidence and the court’s reservations that Defendants can
meet their high burden to show mootness on the record at this juncture, because
subject matter jurisdiction is a threshold matter, the court must first assure itself of
jurisdiction before reaching the merits of the Plaintiff’s claim. See Sweet Pea Marine,
Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir. 2005); Univ. of S. Ala. v.
The Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Moreover, as the purpose
of the ADA is remedial and the presumed goal of this case is to bring Liberty into
compliance with the ADA, the proper course of action is to defer ruling on Plaintiff’s
motion for summary judgment to allow an assessment of the present conditions at
Liberty. This course of action is necessary so that the court can satisfy itself of
subject matter jurisdiction over this controversy before reaching the merits. To that
end, discovery will be reopened for the limited purpose of gathering evidence on the
issue of mootness.
II.

CONCLUSION AND ORDER
Consistent with the foregoing, it is ORDERED as follows:
(1)

Plaintiff’s motions to strike (Docs. 32 & 52) are GRANTED to the

extent that the exhibits will not be permitted as expert testimony or for any other
11

purpose than that discussed supra.
(2)

To the extent that Plaintiff’s second motion to strike (Doc. 52) requests

leave of court to file a reply brief in support of his motion for summary judgment, that
request is MOOT as Plaintiff subsequently filed such a brief.
(3)

Defendants’ motion to dismiss or, in the alternative, motion for summary

judgment (Doc. 26) and motion for a hearing (Doc. 27) are DENIED.
(4)

The court DEFERS ruling on Plaintiff’s motion for summary judgment

(Doc. 33) until subject matter jurisdiction over this action can be assured.
(5)

The Plaintiff’s and Defendants’ requests for an award of prevailing

party’s attorney’s fees and costs are premature. The parties are ORDERED to refrain
from filing a motion for attorney’s fees under the theory that the party is a prevailing
party until final judgment has been entered by the court.11
(6)

Defendants’ request for attorney’s fees and costs based on allegations of

bad faith by Plaintiff’s counsel are not properly before the court in that they have not

11

Based on the pleadings, motions, and briefs in this case, the parties are seemingly
operating under the misapprehension that whichever party is the prevailing party in this litigation
is entitled to an award of attorney’s fees and costs. That is not so. See 42 U.S.C. § 12205 (“[T]he
court ..., in its discretion, may allow the prevailing party ... a reasonable attorney’s fee, including
litigation expenses, and costs”) (emphasis added); Buckhannon Bd. and Care Home, Inc. v. West
Virginia Dept. of Health and Human Resources, 532 U.S. 598, 610 (2001), superseded in part by
statute, OPEN Government Act of 2007, Pub.L. No. 110–175, 121 Stat. 2524 (2007) (codified at
5 U.S.C. § 552(a)(4)(E)) (amending the fee-shifting provision of the Freedom of Information Act
but not the ADA).
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been submitted in the form of a separate motion, but are embedded in the body of
briefing related to the motion to dismiss and motion for summary judgment.12 As
such, the request will not be considered.
(7)

Consistent with the court’s inherent authority to control the pretrial

management of litigation in accordance with Fed. R. Civ. P. 16 and on consideration
of the material issues presented in this case and Defendants’ renewed challenge to the

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Defendants’ argument that the Plaintiff in this case is nothing more than an instrument
for Plaintiff’s counsel to generate attorney’s fees not novel. A court that previously examined a
similar accusation by a defendant in a Title III ADA case made the following observation:
The Court is not persuaded by Defendant’s assertion that Plaintiff, by filing
multiple lawsuits, is “pervert[ing]” the ADA and is a “pawn” for the generation of
attorney’s fees .... Instead, the Court notes that filing suit to remedy architectural
barriers constitutes a “legal recourse to redress [ ]discrimination” and allows the
disabled to “fully participate in all aspects of society” 42 U.S.C. § 12101(a)(1) and
(4). Furthermore, the ADA authorizes a court, in its discretion, to “allow the
prevailing party, other than the United States, a reasonable attorney's fee ...” 42
U.S.C. § 12205 (emphasis added). Should Plaintiff prevail, Defendant is not
prevented from arguing that Plaintiff should not recover attorney’s fees.
Segal v. Rickey’s Restaurant and Lounge, Inc., 2012 WL 2393769 at *7 n.7 (S.D. Fla. June 25,
2012) (bracketed text in original). This court is likewise not persuaded for the same reasons.
Moreover, Defendants’ contention that, after Defendants’ counsel informed Plaintiff’s counsel
that any ADA violations at Liberty were going to be remedied at some point in the future,
Plaintiff’s counsel should have halted all prosecution of his client’s claim in this lawsuit and
committed a sanctionable offense by not doing so, is contrary to the litigation process in general
and the scheduling order issued in this case. Plaintiff was bound by a court order to gather
evidence and prosecute his claim within set deadlines. Defendants did not move to stay this
litigation or otherwise seek court intervention to minimize their exposure to the continued costs
and requirements of active lawsuit on the basis that they recognized potential ADA violations at
Liberty and planned to make repairs. Plaintiff’s counsel was bound by the scheduling order in
this case to prosecute his client’s claim within the deadlines set by the court. An attorney who
abandons the prosecution of a civil action without a settlement agreement in place, a judgment in
the client’s favor, or a court imposed stay would do himself and his client a disservice.
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court’s subject matter jurisdiction, a short period of limited discovery to ascertain the
effects of Defendants’ ADA remediation efforts at Liberty is appropriate and
necessary. Such discovery, in addition to assuring the court’s subject matter
jurisdiction, may very well limit the matters in dispute between the parties or could
lead to the resolution of this case altogether. Plaintiff and his retained expert are
granted leave to inspect Liberty by March 16, 2015, for the purpose of determining
what, if any, ADA violations remain at issue in this litigation in light of Defendants’
counsels’ representations that the property is ADA compliant and that all relief
requested by Plaintiff has been satisfied. Defendants shall attend the inspection, and
shall make the subject property available at a time mutually convenient and agreeable
to the parties, Plaintiff’s counsel, and counsel of record. If the parties cannot agree
on a date and time for the inspection, the parties are ORDERED to inspect Liberty
at 10:00 a.m. on March 16, 2015.
(8)

The parties are ORDERED to confer face-to-face and to file a joint

status report, by March 30, 2015, setting forth their areas of agreement, if any,
regarding the ADA compliance status of Liberty as it relates to Plaintiff’s Title III
ADA claim and his requests for injunctive relief. Where the parties disagree, they
shall set forth, in separate sections, their points of disagreement and the factual and
legal basis of that party’s position. The parties shall also state whether they believe
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further mediation efforts will assist them to resolve any remaining issues presented
in this litigation. If a party wishes to submit additional briefing on the issue of
mootness, the party must file a motion seeking leave from the court to submit such
a brief.
After the joint status report is filed, the court will issue a separate order on the
issue of subject matter jurisdiction.
DONE and ORDERED this 23rd day of February, 2015.

/s/ Paul W. Greene
United States Magistrate Judge

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