Wiele v. Zenith Arizona Incorporated

Filing 21

ORDER: 15 Plaintiff's Motion to Compel Discovery is granted to the extent the Plaintiff may conduct a more comprehensive inspection of the property, but exclusive of non-public areas and areas specifically designated for the hotels male guests. See order for complete details. Signed by Judge Neil V Wake on 1/10/12. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jill Wiele, an individual,

No. CV 11-01598-PHX-NVW

Plaintiff,

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vs.

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Zenith Arizona,
corporation,

ORDER

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Inc.,

a

Minnesota

Defendant.

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Before the Court is Plaintiff’s Motion to Compel Discovery (Doc. 15). The Court
will grant the motion in part for the following reasons.

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Plaintiff suffers from cerebral palsy and requires the use of a wheelchair for

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mobility. In August 2011, Plaintiff was a guest at Defendant’s Pima Inn & Suites hotel in

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Scottsdale, Arizona.

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discriminatory architectural barriers, including that (1) several ramps at the property are

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excessively steep; (2) an exterior ramp is built-up and projects into vehicular traffic; (3)

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her allegedly accessible room did not have sufficient clearance between the foot of her

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bed and the restroom; and (4) the bathroom toilet seat in her room is too low. Plaintiff

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now seeks property-wide discovery from Defendant to determine the full scope of the

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property’s architectural barriers to accessibility which are in violation of the Americans

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with Disabilities Act, 42 U.S.C. § 12181 et seq. and the Arizonans with Disabilities Act,

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A.R.S. § 41-1492 et seq. Specifically, Plaintiff requests a “comprehensive site inspection

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of Defendant’s hotel and related written discovery[,]” including:

During her stay, Plaintiff claims to have encountered several

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all of the guest rooms alleged to be “accessible” under ADAAG 9.2, a
representative sampling of other guest rooms to determine compliance with
ADAAG 9.2.2(3), all interior and exterior common areas and amenities open to
guests of the hotel, including, but not limited to, pool area, dining areas, outdoor
patios and seating, ramps, routes, parking and lobby areas.
(Doc. 15 at 2.)
Defendant opposes Plaintiff’s request for a property-wide discovery on the basis
that (1) Plaintiff’s claims are moot because Defendant has corrected the architectural
barriers that were specifically named in Plaintiff’s complaint; (2) the Ninth Circuit’s
decision in Oliver v. Ralph’s Grocery Co., 654 F.3d 903 (9th Cir. 2011) limits
speculative discovery of potential barriers not enumerated in the complaint; and (3) if the
Court orders additional discovery, Plaintiff’s request should be narrowed.
As an initial matter, the Court is not inclined to deny a discovery motion on
grounds of mootness; rather, such argument is more properly raised in a motion to
dismiss, which has not been filed. Further, for the reasons outlined in Plaintiff’s reply
(Doc. 19), it does not appear that a mootness argument would be well-taken.
Turning to the substance of Plaintiff’s request, the Court will grant Plaintiff’s
request in part. Under Doran v. 7-Eleven, 524 F.3d 1034, 1043-44 (9th Cir. 2008), the
Ninth Circuit held
...where a disabled person has Article III standing to bring a claim for injunctive
relief under the ADA because of at least one alleged statutory violation of which
he or she has knowledge and which deters access to, or full use and enjoyment of,
a place of public accommodation, he or she may conduct discovery to determine
what, if any, other barriers affecting his or her disability existed at the time he or
she brought the claim.
This holding fits the facts of this case directly: Plaintiff encountered and was deterred by
the architectural barriers enumerated in her Complaint; accordingly, she is permitted to
conduct discovery to determine what other barriers existed at the time she brought her
claim. Id. (permitting discovery beyond Plaintiff’s encountered barriers to “allow[] the
plaintiff to obtain by formal means the information about the scope of the defendant’s
violations that he may have been unable to safely ascertain himself because of those same

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violations”). The Ninth Circuit’s decision in Oliver does not compel a contrary result;

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that case dealt with pleading standards under Fed. R. Civ. P. 8, not the scope of

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permissible discovery. Oliver does not provide a basis, in this circumstance, to limit the

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scope of Plaintiff’s discovery to which she is otherwise entitled under Doran.

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While Plaintiff is therefore entitled to conduct additional discovery of the

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property, Defendant will not be compelled to allow a full-site inspection. Plaintiff has

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requested generally “property-wide” discovery, including a full-site inspection of

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Defendant’s property (Doc. 5 at 2). However, Plaintiff is only permitted to conduct

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discovery of barriers which actually “affect[]...her disability[.]” Doran, 524 F.3d at

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1044. Plaintiff’s discovery will therefore be limited to the areas of the property which

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potentially have barriers that could affect Plaintiff’s disability. Accordingly, the Court

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will limit Plaintiff’s discovery by excluding non-public areas of the property, as well as

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areas specifically designated for the hotel’s male guests. The Court notes that Plaintiff

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has agreed to Defendant’s proposals to narrow the scope of discovery, with a few “minor

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exceptions” (Doc. 19 at 7). As stated above, the Court will not require Defendant to

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allow Plaintiff access to non-public areas of the property; otherwise, the Court is

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confident the parties will be able to reach an agreement on the permissible scope of the

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inspection in light of this order.

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IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel Discovery

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(Doc. 15) is granted to the extent the Plaintiff may conduct a more comprehensive

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inspection of the property, but exclusive of non-public areas and areas specifically

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designated for the hotel’s male guests.

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Dated this 10th day of January, 2012.

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