Brown v. Berhndt et al
ORDER granting 30 Motion for Summary Judgment as to Mr. Brown's claims under the ADA and the FHA. The Court declines to exercise supplemental jurisdiction over Mr. Brown's state-law claims. Signed by Judge Kristine G. Baker on 4/10/13. (kpr)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
Case No. 1:12-cv-00024-KGB
PAUL BERHNDT, CROWN POINT TIME SHARING, INC.,
CROWN POINT COUNCIL OF CO-OWNERS, VICKI WHITED,
CROWN POINT CONDOMINIUM OWNER’S ASSOCIATION
OPINION AND ORDER
Plaintiff David Brown brings this action against defendants Paul Berhndt, Crown Point
Time Sharing, Inc. (“Time Sharing”), the Crown Point Council of Co-Owners, Inc. (“the
Council”), Vicki Whited, and Crown Point Condominium Owner’s Association (“CPCOA”). He
alleges causes of action under Title III of the Americans with Disabilities Act of 1990 (“ADA”),
42 U.S.C. § 12101, et seq.; the Fair Housing Act (“FHA”), 42 U.S.C. § 3604; the Arkansas Fair
Housing Act (“AFHA”), Ark. Code Ann. § 16-123-201, et seq.; the Arkansas Civil Rights Act of
1993 (“ACRA”), Ark. Code Ann. § 16-123-101, et seq.; and state-law negligence.
This case is currently before the Court on the defendants’ motion for summary judgment
(Dkt. No. 30). Mr. Brown has responded (Dkt. No. 35), and the defendants have replied (Dkt.
No. 38). For the reasons set out below, defendants’ motion for summary judgment is granted as
to Mr. Brown’s claims under the ADA and the FHA, and the Court declines to exercise
supplemental jurisdiction over Mr. Brown’s state-law claims.
Mr. Brown previously filed and nonsuited this lawsuit against Time Sharing, Vicki
Whited, and Amy Billingsly. See Case No. 1:11-cv-00022-JMM (“Brown I”). The complaint in
Brown I was filed on March 14, 2011 (Brown I, Dkt. No. 1).
In Brown I, Mr. Brown asserted causes of action under Title III of the ADA, the ACRA,
and state-law negligence. On December 8, 2011, Mr. Brown moved to amend his complaint to
add claims under the FHA and the AFHA (Brown I, Dkt. No. 27). He also sought to add as
parties Mr. Berhndt, the Council, and CPCOA. The Brown I defendants responded in opposition
(Brown I, Dkt. No. 28).
The Court denied the motion to amend based on Mr. Brown’s undue
delay and the prejudice to the defendants (Brown I, Dkt. No. 30). The Court explained that Mr.
Brown became aware of the existence of Mr. Berhndt, the Council, and CPCOA on August 15,
2011, conveyed the need to add additional parties to the defendants on October 21, 2011, yet
waited until December 8, 2011, to move to amend his complaint to include the additional
On December 20, 2011, the same day the Court denied Mr. Brown’s motion to amend,
Mr. Brown moved to dismiss his case without prejudice under Rule 41 of the Federal Rules of
Civil Procedure (Brown I, Dkt. No. 31). The Court granted Mr. Brown’s motion to dismiss
without prejudice on December 28, 2011 (Brown I, Dkt. No. 34).
The case at bar (“Brown II”) began on February 28, 2012, when Mr. Brown refiled his
lawsuit against Mr. Berhndt, Time Sharing, the Council, Ms. Whited, and CPCOA (Brown II,
Dkt. No. 1). For the first time, the Brown II complaint alleged against defendants claims under
the FHA and the AFHA and added as parties Mr. Berhndt, the Council, and CPCOA. That is,
the Brown II complaint alleged the additional causes of action and named the additional
defendants that Mr. Brown sought unsuccessfully to add in Brown I.
By prior Order in the present case, the Court stayed this proceeding as to the Council
pursuant to 11 U.S.C § 362 because the Council is currently a debtor in Chapter 11 bankruptcy.
See Case No. 1:11-bk-17617-ARE (pending in the United States Bankruptcy Court for the
Eastern District of Arkansas). That stay remains in effect.
Mr. Brown was on a family vacation at the Crown Point Condominiums, a private resort
in Horseshoe Bend, Arkansas, when his feet were allegedly burned by hot bath water. Mr.
Brown has a form of spina bifida. As a result, he cannot use his legs and cannot feel his legs
below the mid-thigh. On the family vacation, Mr. Brown was traveling with several family
members, including his mother, Cynthia Brown, his father, Asa Brown, Jr., his younger sister,
Kara, and his niece, Kaiya. 1
The family secured the week at the Crown Point Condominiums by trading a timeshare
owned by Irene Snow, Mr. Brown’s maternal grandmother. Ms. Snow could permit certain
family members to use her timeshare through her membership in “RCI,” 2 which is a third-party
exchange market that allows timeshare owners to trade shares in one resort for shares in other,
affiliated resorts. (Dkt. No. 30-1, at 3-6, 8). The parties agree that, in order to gain access to the
Crown Point Condominiums, one must be (1) a member of RCI and a timeshare owner or (2) an
owner at the property.
After reviewing availability for vacation destinations online, Mr. Brown’s mother booked
Unit 305 at the Crown Point Condominiums, where the events in question took place.
Defendants submit that the booking confirmation indicated that Unit 305 was not wheelchair
accessible and also submit that Ms. Whited, who scheduled RCI exchanges for the Crown Point
Condominiums and other properties at Horseshoe Bend, told Mr. Brown’s mother on March 9,
These are the individuals identified by name and relationship in the record. This may not
be an exhaustive list of every person on the vacation.
The record does not indicate what the acronym “RCI” stands for. The Court simply
identifies the entity as RCI, as the parties have.
2009, that Unit 305 was not wheelchair accessible. Mr. Brown admits this but asserts that Ms.
Whited “also stated that she would determine if the room reserved would be accessible” (Dkt.
No. 37, at 5). Mr. Brown also asserts that his mother “expected to receive an accessible room”
(Dkt. No. 37, at 5). Mr. Brown’s mother testified at her deposition that she told Ms. Whited
when booking the condo that “the doorway had to be 36 inches and the bathroom had to be
accessible” (Dkt. No. 30-1, at 14). The family checked in to the condo on the evening of March
14, 2009. When they arrived at Unit 305, maintenance removed the bathroom door from its
hinges at Mr. Brown’s parents’ request. The family checked out on March 21, 2009.
Both Mr. Brown’s mother and father testified by deposition that they each experienced
“fluctuation” with the water temperature in the bathroom of the condo. During the family’s stay,
however, neither Mr. Brown’s mother nor his father notified management of the unexpected
changes in the water temperature.
In order to bathe, Mr. Brown checks the water temperature with his hands or elbows as
the water fills the bathtub and makes adjustments to the water temperature as necessary. Mr.
Brown alleges that defendants caused him personal injury while he was staying at the Crown
Point Condominiums. He claims that, as a result of statutory violations and common-law
negligence, his legs were burned by bath water, he now has MRSA, and he has incurred past and
future medical expenses. He also claims he has suffered mental and emotional distress.
Mr. Brown claims that the injury occurred on March 17, 2009. On that same day, both of
Mr. Brown’s parents had previously taken showers in the bathroom in question. Mr. Brown’s
father had taken a shower right before Mr. Brown took his bath. When Mr. Brown’s father
finished his shower, he left the water temperature where it was comfortable and where it would
be about right for Mr. Brown.
Mr. Brown had wheeled himself into the bathroom, undressed, and transferred himself
from his wheelchair to the side of the bathtub. Mr. Brown’s mother observed him wheel himself
into the bathroom and begin drawing water. At this point, she warned Mr. Brown to check
continually the water temperature, and if the temperature changed suddenly, she warned him to
turn it to cold. Mr. Brown admits that his mother gave him this warning, but he submits that he
is “easily confused and has short term memory loss” (Dkt. No. 37, at 2). At this point, Mr.
Brown’s mother left the condo and went to the nearby lake.
Once Mr. Brown had maneuvered into the bathroom, gotten undressed, and transferred
himself to the side of the bathtub, his feet were in the bathtub, and he was sitting on the ledge of
the bathtub, where he operated the water before lowering himself into the bathtub to bathe. He
alleges that his feet were burned when he was drawing water for a bath inside the condo. Mr.
Brown later told his mother that he had checked the water three or four times, and the last time,
the water was very hot, so he turned it all the way to cold. He lowered himself down in the water
to take a bath when the water was cool. Mr. Brown admits this but asserts that he “had already
burned his feet before he got completely into the bathtub” (Dkt. No. 37, at 3).
According to his mother, once Mr. Brown had finished his bath, he wheeled himself out
of the condo and joined his parents at the lake. At this point, Mr. Brown’s father realized that the
soles of Mr. Brown’s feet were injured. In the early afternoon of March 17, 2009, Mr. Brown
was admitted to the emergency room of the White River Medical Center, where he was
diagnosed with second-degree burns to his feet. The Browns did not notify condo management
during their stay that Mr. Brown had been injured.
In a letter written to RCI shortly after Mr. Brown’s alleged injuries, and based on Mr.
Brown’s mother’s account of the events, Ms. Snow confirmed that Unit 305 was not represented
as wheelchair accessible prior to check-in.
The Council declared bankruptcy on November 30, 2011.
The Crown Point
Condominiums are no longer standing; they were demolished before the Council declared
bankruptcy. The land on which the condominiums were located currently is in receivership with
the United States Bankruptcy Court for the Eastern District of Arkansas. (Dkt. No. 30-4, at 1011).
TITLE III OF THE ADA
Title III of the ADA prohibits any person who owns, leases, or operates a place of public
accommodation from discriminating against an individual on the basis of the individual’s
disability. See 42 U.S.C. § 12182(a); Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000)
(“Title III of the ADA proscribes discrimination in places of public accommodation against
persons with disabilities.”). “It is well established that individual claims for damages based on
alleged disability discrimination in violation of Title III of the ADA are precluded, and
injunctive relief is the only available remedy.” Woods v. Wills, 400 F. Supp. 2d 1145, 1163
(E.D. Mo. 2005) (citing Steger, 228 F.3d at 892 (“The ADA grants a private right of action for
injunctive relief to, inter alia, ‘any person who is being subjected to discrimination on the basis
of disability.’”) (citing 42 U.S.C. § 12188(a)(1)).
As an initial matter, Mr. Brown concedes that “injunctive relief cannot be given since the
condos have been torn down” but asserts that his complaint “asks for restitution in addition to
injunctive relief” (Dkt. No. 36, at 1).
This Court concludes that restitution is not a remedy that is available to Mr. Brown under
Title III of the ADA. In Steger, the Eighth Circuit stated that the “ADA grants a private right of
action for injunctive relief . . . .” 228 F.3d at 892 (emphasis added). As other courts have
recognized, there is an “unbroken skein of cases [that] makes manifest that money damages are
not an option for private parties suing under Title III of the ADA.” Goodwin v. C.N.J., Inc., 436
F.3d 44, 50 (1st Cir. 2006) (citing Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 86 (2d Cir.
2004); Bowers v. NCAA, 346 F.3d 402, 433 (3d Cir. 2003); Am. Bus Ass’n v. Slater, 231 F.3d 1,
5 (D.C. Cir. 2000); Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir.1999); Jairath v.
Dyer, 154 F.3d 1280, 1283 n.7 (11th Cir. 1998)). Specifically, as to restitution, “[a]t bottom,
restitution is a retrospective remedy. It is designed to restore funds previously taken. So viewed,
restitution does not fit into the taxonomy of ‘preventive relief,’ which is the only type of relief
authorized by section 12188(a)(1). Restitution is, therefore, unavailable in a Title III claim.”
Goodwin, 436 F.3d at 51 (internal citation omitted). See also Barbosa v. Am. Osteopathic Bd. of
Surgery, No. 3:07-CV-338, 2008 WL 2468483 (S.D. Ohio May 23, 2008) (“The words
‘preventive relief’ clearly indicate that the relief afforded a person under Title III is proscriptive
or forward-looking in nature. Such relief does not include relief meant to compensate for past
wrongs such as: restitution, compensatory damages, or punitive damages.”).
Mr. Brown has not cited any authority demonstrating that restitution is available under
Title III of the ADA. He claims that restitution is a form of equitable relief and cites in support
Frigillana v. Frigillana, 584 S.W.2d 30 (Ark. 1979). The case Mr. Brown cites is not an ADA
case; it is a contract case in which a former wife asked that her former husband be required to
compensate her in lieu of providing to her the civil service survivor’s benefits to which she was
entitled under their property settlement. Her former husband failed to pay her the benefits at the
time of his retirement and instead kept the benefits for himself in violation of their property
settlement agreement. Based on the caselaw cited above, the reasoning articulated by other
courts that have examined this issue, and the caselaw cited by Mr. Brown, the Court concludes
that restitution is not available on Mr. Brown’s claims under Title III of the ADA.
Because there is no remedy available to Mr. Brown on his claims under Title III of the
ADA, he lacks standing to pursue such claims. “Federal jurisdiction is limited by Article III, § 2,
of the U.S. Constitution to actual cases and controversies. Therefore, the plaintiff’s standing to
sue ‘is the threshold question in every federal case, determining the power of the court to
entertain the suit.’” Steger, 228 F.3d at 892 (quoting Warth v. Seldin, 422 U.S. 490, 502 (1975)).
“To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an
‘injury-in-fact,’ (2) a causal relationship between the injury and the challenged conduct, and (3)
that the injury likely will be redressed by a favorable decision.” Id. (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560-61 (1992)). Moreover, “[r]elief that does not remedy the injury
suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the
redressability requirement.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 107 (1998).
Here, Mr. Brown’s injury cannot be redressed by a favorable decision because there is no
remedy available to him on his claims under Title III of the ADA. He has conceded that
injunctive relief is not possible because the Crown Point Condominiums no longer exist.
Although “injunctive relief is encouraged where compliance is readily achievable,” there is no
dispute that injunctive relief is impossible in this situation. Stated differently, by conceding that
injunctive relief is not possible, Mr. Brown has eliminated the only available remedy, meaning
there is no way to redress his injuries with a favorable decision on his claims under Title III of
the ADA. Mr. Brown’s attempt to save his claims under Title III of the ADA by seeking
restitution is unavailing, as injunctive relief is the sole remedy available to an individual
pursuing a claim under Title III of the ADA.
For these reasons, Mr. Brown lacks standing to pursue his claims under Title III of the
ADA, and defendants are entitled to summary judgment in their favor on those claims. The
Court declines to address the remaining arguments raised by the parties as to Mr. Brown’s claims
under Title III of the ADA.
Mr. Brown also alleges that defendants violated the FHA, 42 U.S.C § 3604. The FHA
has a two-year statute of limitations. According to 42 U.S.C. § 3613(a)(1)(A), “[a]n aggrieved
person may commence a civil action in an appropriate United States district court or State court
not later than 2 years after the occurrence or the termination of an alleged discriminatory housing
practice . . . .”
As discussed above, Mr. Brown in his complaint filed in Brown I did not assert a cause of
action under the FHA. Although Mr. Brown attempted to amend his complaint in Brown I to add
claims under the FHA, the Court denied that motion. On February 28, 2012, Brown II began
with Mr. Brown filing a complaint that asserted a cause of action under the FHA. There is no
dispute that the alleged wrongful conduct took place in March 2009.
Thus, the alleged
discrimination took place almost three years before the filing of Brown II. The plain language of
the FHA requires that FHA actions be brought “not later than 2 years after the occurrence or the
termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A). Mr.
Brown’s FHA claims were thus asserted beyond the two-year limitations period.
Mr. Brown asserts that his FHA claim in this case is timely because it “relate[s] back to
the filing of his original lawsuit” (Dkt. No. 35, at 1). In support of this contention, Mr. Brown
cites White v. City of Chicago, 631 F. Supp. 2d 1073 (N.D. Ill. Jul. 7, 2009). The decision in
White, however, does not carry the day because there is controlling caselaw from the Eighth
Circuit that is on point. As a starting point, Rule 15(c) of the Federal Rules of Civil Procedure
provides the circumstances in which “[a]n amendment to a pleading relates back to the date of
the original pleading . . . .” The text of the Rule indicates that relation back applies to an
amendment to a pleading, not a new, distinct pleading.
In Morgan Distributing Co. v.
Unidynamic Corp., the Eighth Circuit determined that Federal Rule of Civil Procedure 15(c)’s
“plain language makes clear that it applies not to the filing of a new complaint, but to the filing
of an amendment stating a claim which arose out of the conduct set forth in the original
pleading.” 868 F.2d 992, 994 (8th Cir. 1989).
Although Morgan Distributing dealt with state-law contract claims, the Eighth Circuit’s
interpretation of Rule 15(c) of the Federal Rules of Civil Procedure is applicable in this case. As
another district court in this circuit has concluded, “Rule 15 cannot apply to a previously
dismissed case.” Farr v. Designer Phosphate & Premix Int’l, Inc., 804 F. Supp. 1190, 1195 (D.
Neb. 1992) (citing Morgan Distributing Co., 868 F.2d at 994). “This is true because the text of
the Rule makes clear that the Rule applies to amendments and not new cases.” Id. (internal
quotation omitted). The relation back doctrine “has application only in instances in which the
original pleading is amended; if the amendment satisfies the requirements of the rule, the
amended pleading relates back to the original pleading for statute-of-limitations purposes, but the
amendment does not relate back to any prior proceeding which is not part of the action in
question.” Charles Alan Wright, et al., 6A Fed. Prac. & Proc. Civ. § 1496 n.2 (citing Rayo v.
State of N.Y., 882 F. Supp. 37 (N.D.N.Y. 1995)). Further, this application of Rule 15(c) is in
keeping with the Eighth Circuit’s determination that, once a dismissal without prejudice is
entered and the pending suit is dismissed, it is as if no suit had ever been filed. Smith v. Dowden,
47 F.3d 940, 943 (8th Cir. 1995) (“The effect of a voluntary dismissal without prejudice. . . ‘is to
render the proceedings a nullity and leave the parties as if the action had never been brought.’”)
Moreover, since there is a federal statute of limitations, Arkansas state law tolling and savings
statutes are inapplicable. See Victor Foods, Inc. v. Crossroads Economic Dev. of St. Charles
County, Inc., 977 F.2d 1224, 1227 (8th Cir. 1992) (“state tolling and savings provisions do not
apply when Congress has provided a federal statute of limitation for a federal claim”).
Mr. Brown’s invocation of the relation-back doctrine does not save his otherwise
untimely FHA claims. Because Mr. Brown’s FHA claims are barred by the FHA’s two-year
statute of limitations, defendants are entitled to summary judgment on those claims.
In addition to the federal claims discussed above, Mr. Brown brings several claims under
Arkansas law, including negligence, discrimination under the ACRA, and discrimination under
the AFHA. This Court declines to exercise supplemental jurisdiction over Mr. Brown’s statelaw claims. Under 28 U.S.C. § 1367(c)(3), a district court “may decline to exercise supplemental
jurisdiction” over a related state-law claim if “the district court has dismissed all claims over
which it has original jurisdiction.” In Birchem v. Knights of Columbus, the Eighth Circuit stated
that “[i]n most cases, when federal and state claims are joined and the federal claims are
dismissed . . . the pendent state claims are dismissed without prejudice to avoid ‘[n]eedless
decisions of state law . . . as a matter of comity and to promote justice between the parties.’” 116
F.3d 310, 314 (8th Cir. 1997).
The period of limitations on Mr. Brown’s state-law claims is tolled under 28 U.S.C. §
1367(d) for 30 days after entry of judgment in this case, unless Arkansas gives a longer tolling
For these reasons, defendants’ motion for summary judgment is granted as to Mr.
Brown’s claims under Title III of the ADA and the FHA, and those claims are dismissed with
As to Mr. Brown’s AFHA, ACRA, and state-law negligence claims, the Court
declines to exercise supplemental jurisdiction over those claims. The period of limitations on
Mr. Brown’s state-law claims is tolled under 28 U.S.C. § 1367(d) for 30 days after entry of
judgment in this case, unless Arkansas gives a longer tolling period. Judgment will be entered
SO ORDERED this the 10th day of April, 2013.
Kristine G. Baker
United States District Judge
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