Cygnus Systems, Inc. v. Microsoft Corporation, et al

Filing 282

Cygnus Systems, Inc. v. Microsoft Corporation, et al

Doc. 282

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LAW OFFICE OF DAVID J. DON, PLLC 301 E. Bethany Home Rd., Suite B-100 Phoenix, Arizona 85012 Tel: [phone] Fax: [phone] Email: [e-mail] David J. Don (016462) Attorney for Plaintiff David Normann IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA DAVID NORMANN; Plaintiff, vs. RAEDON ENTERPRISES, INC., an Arizona corporation, DBA Burger King; ACF PROPERTY MANAGEMENT INC, a California corporation, Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CV06-2934-PHX-SMM AMENDED COMPLAINT (Temporary and Permanent Injunctive Relief Demanded)

Plaintiff, David Normann ("Plaintiff"), sues the Defendant, Raedon Enterprises, Inc., an Arizona corporation, DBA Burger King and ACF PROPERTY MANAGEMENT INC ("Defendants"), for injunctive relief, compensatory damages, attorneys' fees and costs pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. ("ADA") and the Arizona Civil Rights Act (ACRA), A.R. S. § 41- 1492, et seq. JURISDICTION AND VENUE 1. This action arises from a violation of Title III of the Americans with Disabilities Act, 42

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U.S.C. § 12181, et seq. and the Arizona Civil Rights Act (ACRA), A.R. S. § 41- 1492, et seq. This Court has original jurisdiction pursuant to 28 U.S.C.§ 1331 and 28 U.S.C. § 1343 and supplemental jurisdiction under 28 U.S.C. § 1367. 2. Defendant Raedon Enterprises, Inc. is an Arizona Corporation doing business in Maricopa

County, Arizona. Defendant ACF PROPERTY MANAGEMENT INC, is a California corporation doing business in Maricopa County, Arizona. 3. Defendants received notice of its obligation to comply with the ADA. Defendants have

had actual and constructive notice of its obligations under the ADA since 1993: actual notice by virtue of notification provided by the Arizona Department of State, and constructive notice by virtue of the enactment of the ADA and the associated publicity. 4. Defendant Raedon Enterprises, Inc. either owns, operates, leases or leases to others a

Burger King restaurant located at 13838 N. Scottsdale Road, Arizona, Maricopa County, Arizona. Defendant ACF PROPERTY MANAGEMENT INC either owns, operates, leases or leases to others the parking area and common areas at the East Thunderbird shopping mall on the corner of Thunderbird and Scottsdale Road, Arizona, Maricopa County, Arizona 5. 6. Defendants' restaurant and/or shopping mall are places of public accommodation. Venue is proper as the property which is the subject matter of this claim is located in

Scottsdale, Arizona, Maricopa County, Arizona and the Defendants are doing business in Scottsdale, Arizona, Maricopa County, Arizona. THE PARTIES AND STANDING 7. Plaintiff, David Normann, is an Arizona resident, sui juris, and disabled; suffering from

multiple sclerosis requiring the use of a wheelchair for mobility. 8. Plaintiff visited the Defendants' property on or about October 30, 2006 to enjoy its

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services. 9. Plaintiff resides in Maricopa County, Arizona and travels to Defendants' property and

plans to return to the Defendants' property to avail himself of the goods, services, privileges, advantages or accommodations offered to the public at the Defendants' shopping mall and restaurant. STATEMENT OF THE CLAIM 10. While at the Defendants' property, Plaintiff has been, among other things, unable to gain

equal access to areas in the shopping mall and restaurant. 11. The barriers to access encountered by Plaintiff in the restaurant are, among other things,

violations of ADA Accessibility Guidelines (ADAAGs) including: a. The entrances to Burger King are without any accessible parking or an accessible route to the entrance. Regulations require at least 50 % of entrances to be accessible. Reference: ADAAG 4.1.2(5), 4.6.1 A curb ramp is not located at this entrance where the "accessible" route crosses the sidewalk curb. Reference: ADAAG 4.7.l Several barriers exist within the Men's restroom at this facility. Clear maneuvering space at the restroom sink is not provided. The urinal in this restroom does not have a rim height below 17-inches A.F.F. as is required for the urinal to be accessible. The "accessible" toilet stall does not meet many of the minimum requirements of ADAAG for accessible toilet stalls. Reference: ADAAG 4.17.3, 4.18.2, 4.19.4

b. c.

12.

The barriers to access encountered by Plaintiff in the shopping mall are, among other

things, violations of ADA Accessibility Guidelines (ADAAGs) including: a. b. c. 13. The area between the Subway and the Burger King has no accessible route. The area designated for an accessible parking space near the Dazzle store has an excessive running slope of 5% where a 2% maximum slope is required. The accessible route from the designated accessible parking space near the Dazzle store leads to a series of steps at the Taco del Mar.

As a result of the aforementioned barriers Plaintiff was denied access to the full and equal

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enjoyment of the goods, services, facilities, privileges, advantages or accommodations which are

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available at Defendant's restaurant. 14. The Defendants are obligated to remove barriers which impair a disabled person's access

to the use and enjoyment of the Defendants' shopping mall and restaurant. 15. The elimination by the Defendants of the aforementioned barriers to access is readily

achievable. 16. Plaintiff will suffer continued discrimination if the barriers to access existing at

Defendants' shopping mall and restaurant are not removed. 17. Plaintiff is without adequate remedy at law and is suffering irreparable harm. WHEREFORE, Plaintiff respectfully requests: a. b. c. d. e. A temporary injunction and a permanent injunction prohibiting Defendants from conducting business at the restaurant until such time as the existing barriers to Plaintiff's access to the property are removed. An order directing Defendants to remove existing barriers to access and to make the Defendants' shopping mall and restaurant accessible to and usable by individuals with disabilities as required by the ADA. An award of attorney's fees, costs and litigation expenses pursuant to 42 U.S.C. 12205. Compensatory damages, pursuant to ACRA. Such other relief as the Court deems just and proper. RESPECTFULLY SUBMITTED THIS 5th day of April, 2007. By: /s/ David J. Don David J. Don Attorney for Plaintiff David Normann

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