Nekouee v. Captain D's, LLC (CONSENT)

Filing 44

MEMORANDUM OPINION AND ORDER: it is hereby ORDERED as follows: 1) The 32 MOTION for Summary Judgment is GRANTED to the extent that the violations in the Amended Complaint identified as a-i, k-l, o-v, y-ee, and hh are DISMISSED as moot; 2) The [3 2] Motion for Summary Judgment is held in abeyance as to the violations in the Amended Complaint identified as ff, gg, j, n, m, w, and x; 3) The 37 Objection to, or in the Alternative, Motion to Strike or Exclude Plaintiff's 10/11/2018 Inspect ion Report is OVERRULED and DENIED; 4) The Plaintiff has until 2/28/2019 to file a second amended complaint complete unto itself which includes only the violations identified as ff, gg, j, n, m, w, and x in the Amended Complaint, along with the new v iolations stated on page 6, 9, and 13 of Doc. 36 -1; 5) Once a second amended complaint is filed, discovery is permitted on those claims to conclude by 4/5/2019; 6) Captain D's has until 4/15/2019 to file any supplementation of its Motion for S ummary Judgment. Nekouee has two weeks to respond, and Captain D's has one week to reply. The motion for summary judgment will be finally resolved at that time; 7) The pretrial hearing set for 3/19/2019 and the non-jury trial of this case set for 4/15/2019 are CONTINUED GENERALLY. Signed by Honorable Judge Gray M. Borden on 2/21/2019. (furn: calendar, cb)(kr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
FRED NEKOUEE,
Plaintiff,
v.
CAPTAIN D’S, LLC,
Defendant.

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CASE NO. 2:18cv107-GMB
[wo]

MEMORANDUM OPINION AND ORDER
Now before the court are a Motion for Summary Judgment filed by Captain D’s,
LLC (“Captain D’s”) (Doc. 32), and Captain D’s Objection to, or in the Alternative, Motion
to Strike or Exclude Plaintiff’s October 11, 2018 Inspection Report. Doc. 37.
Fred Nekouee filed this lawsuit on February 12, 2018 and amended his complaint
on August 13, 2018. Docs. 1 & 26. He brings a single count setting out separate denials of
access to a public accommodation in violation of the Americans with Disabilities Act
(“ADA”). After Nekouee filed his initial complaint, he sought to amend the complaint to
add additional violations which were revealed in an expert witness report submitted after
the deadline to amend the complaint had passed. The court allowed the amendment in part
because the prejudice to Captain D’s was minimized by the fact that discovery was ongoing
at the time. Doc. 25.
Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties
have consented to the jurisdiction of the undersigned United States Magistrate Judge. Docs.
11 & 12. After careful consideration of the parties’ submissions and the applicable law,

for reasons to be discussed below, the motion for summary judgment is due to be
GRANTED in part, and the objection is due to be OVERRULED.
I.

JURISDICTION AND VENUE

The court has subject-matter jurisdiction over the claims in this action pursuant to
28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the court
finds adequate allegations to support both.
II.

FACTS

The facts viewed in a light most favorable to the nonmovant are as follows:
Nekouee is mobility impaired and uses a wheelchair. Doc. 36-2 at 1. He visited the
Captain D’s property at 2674 Zelda Road in Montgomery, Alabama and found violations
of the ADA. Doc. 1 at 1–3. After he set forth these violations in a complaint (Doc. 1),
Captain D’s engaged an ADA expert, Kirk Tcherneshoff, who made recommendations to
make the facility ADA-compliant. Doc. 34-1 at 2. Based on these recommendations,
Captain D’s made structural renovations to bring the facility into compliance with the
ADA. Doc. 34-1 at 3. In its motion for summary judgment, Captain D’s takes the position
that it remedied all of the deficiencies identified by Nekouee. Doc. 33 at 2. It offers the
affidavit of Larry Jones, the Vice President of Construction for Captain D’s, to demonstrate
that Captain D’s made the recommended renovations. Doc. 34-1. Captain D’s also deposed
Nekouee’s expert, David Nekouee, and asked whether renovations would remediate the
ADA violations identified. Doc. 34-2.
Nekouee again visited the Captain D’s property on October 11, 2018. Doc. 36-1.
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He states in a declaration that he discovered continuing violations, which were confirmed
by his retained expert, including defective alterations and repairs. Doc. 36-2.
III.
A.

STANDARDS OF REVIEW

Rule 37 Objection
“If a party fails to provide information . . . as required by Rule 26(a) or (e), the party

is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or
at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P.
37(c)(1). In determining whether the failure to disclose was justified or harmless, courts
consider the non-disclosing party’s explanation for its failure to disclose, the importance
of the information, and any prejudice to the opposing party. Romero v. Drummond Co.,
552 F.3d 1303, 1321 (11th Cir. 2008).
B.

Summary Judgment
Summary judgment is proper “if there is no genuine issue as to any material fact

and . . . the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion,” relying
on submissions “which it believes demonstrate the absence of a genuine issue of material
fact.” Id. at 323. Once the moving party has met its burden, the nonmoving party must “go
beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials
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in the record,” or by “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c)(1)(A)–(B). Acceptable materials under Rule
56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that
there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the
nonmovant must be believed and all justifiable inferences must be drawn in its favor.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the
court shall grant summary judgment if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a).
IV. DISCUSSION
A.

Mooted Claims
Captain D’s has moved for summary judgment arguing that it is now ADA-

complaint with respect to every violation identified in the complaint, making the
allegations in the complaint moot. For this proposition, Captain D’s relies on Kennedy v.
Omegagas & Oil, LLC, 748 F. App’x 886 (11th Cir. 2018), which set forth the following
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factors for a mootness inquiry: (1) whether the challenged conduct was isolated or
unintentional, as opposed to a continuing and deliberate practice; (2) whether the
defendant’s cessation of the offending conduct was motivated by a genuine change of heart
or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has
acknowledged liability. Much of the evidence cited by Captain D’s relates to structural
modifications to the premises.
Nekouee has responded that summary judgment is not due to be granted because he
disputes as a matter of fact that items ff, gg, j, n, m, w, and x, as pleaded in the Amended
Complaint (Doc. 26), have been remedied. He does not, however, dispute that the other
ADA violations identified in his complaint have been remedied.
Other courts examining evidence of remedied ADA violations have reasoned that
structural modifications to comply with the ADA—in contrast with procedural changes—
are likely to support a finding of mootness. See Kennedy, 748 F. App’x at 886; Thornton
v. R&L Foods, LLC, 2016 WL 4216786, at *5 (M.D. Ala. Aug. 9, 2016). Given Captain
D’s evidence of remediation, and without any evidence in opposition regarding violations
a–i, k–l, o–v, y–ee, and hh, the court concludes that the motion for summary judgment is
due to be granted as to these aspects of Nekouee’s claims because these allegations have
been mooted by structural modification.
B.

Additional Claims Pleaded in the Amended Complaint
Nekouee’s remaining claims as pleaded in the Amended Complaint are based on

alleged ADA violations that, according to Nekouee, have not been remedied—items ff, gg,
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j, n, m, w, and x. In support of his position, Nekouee offers his own declaration, a
declaration of expert David Nekouee, and an inspection report dated October 11, 2018.
Docs. 36-1, -2 & -3.
The inspection report is the subject of Captain D’s Rule 37 objection. Captain D’s
notes that the report was not disclosed within the discovery deadline, which expired in
August 2018, and also that Nekouee did not provide the new report until November 6 even
though the inspection occurred on October 11. Nekouee explains away his late disclosure
by noting that Captain D’s disclosed certain information relevant to the current state of its
premises on October 17—also well past the discovery deadline. On this record, and
mindful of the ADA’s goal of unfettered access, the court is not convinced that it would be
improper or inequitable to consider an expert’s report based on an up-to-date inspection of
the premises. See Gaylor v. Greenbriar of Dahlonega Shopping Ctr., Inc., 975 F. Supp. 2d
1374, 1389 (N.D. Ga. 2013) (declining to exclude plaintiff’s expert report made after the
close of discovery because “it was not improper for Plaintiff to have his expert re-inspect
the property to assess the validity of that claim so that he could adequately respond to
Defendant’s motion for summary judgment”). For this reason, the objection to Nekouee’s
expert disclosure is overruled.1

Moreover, regardless of the propriety of Nekouee’s expert disclosure or its timing, Nekouee has submitted
a declaration establishing that he personally witnessed the seven violations in his Amended Complaint that
have not, in his opinion, been remedied. Doc. 36-2. For example, as to item ff, Captain D’s provided nonexpert evidence that the access aisle serving the van accessible parking space on its premises has a running
slope of less than 1:48 or 2%. Doc. 34-1 at 9. However, Nekouee asserts that he personally observed a
running slope exceeding 1:48 when he inspected the premises in October 2018. See Doc. 36-2 at 1
(incorporating the attached expert report). The court may consider Nekouee’s observations. See Norkunas
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Rather than finding that Nekouee’s newly disclosed evidence creates a dispute of
material fact at this time, however, the court is persuaded by Captain D’s argument that it
would be unduly prejudiced if the court were to accept the inspection report without
allowing Captain D’s an opportunity to question Nekouee’s expert or otherwise to develop
evidence rebutting the assertions in that report. The court therefore will establish new
deadlines for conducting supplemental discovery relating to these claims and for
supplementing the motion for summary judgment.
B.

New Violations
Nekouee also has identified new violations in response to Captain D’s motion for

summary judgment, but these violations do not appear in his operative complaint. See
Docs. 26 & 36. According to Nekouee, these violations did not exist when he filed his
lawsuit, but instead were created during Captain D’s efforts to repair the premises in
response to his claims. Doc. 36 at 2. Captain D’s apparently concedes that these new
violations resulted from remediation efforts. Doc. 43 at 2.
The court is reluctant to engage in an endless cycle of allegations and remediation.
The motion for summary judgment, however, is premised on the argument that Captain
D’s has complied with the ADA so that Nekouee’s claims are moot. In light of the state of
the record which points to evidence of existing violations, the court concludes that the more
prudent course is to allow Nekouee an opportunity to amend his complaint to add the new

v. Seahorse NB, LLC, 444 F. App’x 412, 417–18 (11th Cir. 2011) (considering lay testimony regarding
ADA compliance issue consisting of facts within the witness’ personal knowledge).
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violations identified during the October 2018 inspection, but also to reopen discovery, as
described above.
V. CONCLUSION
For these reasons, it is hereby ORDERED as follows:
1.

The Motion for Summary Judgment (Doc. 32) is GRANTED to the extent

that the violations in the Amended Complaint identified as a–i, k–l, o–v, y–ee, and hh are
DISMISSED as moot.
2.

The Motion for Summary Judgment (Doc. 32) is held in abeyance as to the

violations in the Amended Complaint identified as ff, gg, j, n, m, w, and x.
3.

The Objection to, or in the Alternative, Motion to Strike or Exclude

Plaintiff’s October 11, 2018 Inspection Report (Doc. 37) is OVERRULED and DENIED.
4.

The Plaintiff has until February 28, 2019 to file a second amended

complaint complete unto itself which includes only the violations identified as ff, gg, j, n,
m, w, and x in the Amended Complaint, along with the new violations stated on page 6, 9,
and 13 of Doc. 36-1.
5.

Once a second amended complaint is filed, discovery is permitted on those

claims to conclude by April 5, 2019.
6.

Captain D’s has until April 15, 2019 to file any supplementation of its

Motion for Summary Judgment. Nekouee has two weeks to respond, and Captain D’s has
one week to reply. The motion for summary judgment will be finally resolved at that time.
7.

The pretrial hearing set for March 19, 2019 and the non-jury trial of this case
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set for April 15, 2019 are CONTINUED GENERALLY.
DONE this 21st day of February, 2019.

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