Feezor v. Patterson et al

Filing 50

ORDER signed by Judge Frank C. Damrell, Jr on 4/15/2011 ORDERING that the court hereby GRANTS plaintiff's 32 motion for continuance of defendants' 30 32 motions for summary judgment. Defendants may refile their motions for summary judgment once plaintiff has had a reasonable opportunity to conduct the discovery set forth in his motion. (Duong, D)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARY FEEZOR,

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Civ. No. S-10-1165 FCD/GGH
Plaintiff,

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v.

MEMORANDUM AND ORDER

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GARRY L. PATTERSON; PENDLETON
WOOLEN MILLS dba PENDLETON;
FUSION PIT a GENERAL
PARTNERSHIP dba FUSION PIT;
HANESBRANDS DIRECT, LLC dba
L’EGGS/HANES/BALI/PLAYTEX
STORE #103; THE GAP, INC. dba
GAP OUTLET #7713; PHILLIPS-VAN
HEUSEN CORPORATION dba VAN
HEUSEN FACTORY STORE #264; VF
OUTDOOR, INC. dba VANS #044;
EDDIE BAUER a DELAWARE, LLC
dba EDDIE BAUER OUTLET #R-463,

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Defendants.

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This matter is before the court on (1) Lary Feezor’s

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(“plaintiff”) motion to amend the complaint, pursuant to Federal

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Rule of Civil Procedure (“FRCP”) 16(b) and (2) plaintiff’s motion

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for continuance, pursuant to FRCP 56(d),1 of defendants’

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HanesBrands Direct LLC and Eddie Bauer LLC (collectively,

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“defendants”) motions for summary judgment, pursuant to FRCP

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56(d).

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reasons set forth below, (1) plaintiff’s motion to amend the

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complaint is GRANTED and (2) plaintiff’s motion for continuance

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of defendants’ motions for summary judgment is GRANTED.2

Based upon the submissions of the parties and for the

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BACKGROUND
Plaintiff brings this discrimination action pursuant to the

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Americans with Disabilities Act (“ADA”), the Unruh Civil Rights

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Act (“UCRA”), and the Disabled Persons Act (“DPA”).

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discrimination took place at the structure and/or property at the

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following businesses: Shasta Outlets and Common Parking Area

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(“Shasta Facility”), Pendelton Woolen Mills (“Pendleton”),

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HanesBrands Direct, LLC (“HanesBrand”), The Gap, Inc. (“Gap”),

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Philips-Van Heusen Corporation (“Van Heusen”), J.C. Penney

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Company, Inc. (“J.C. Penney”), VF Outdoor Inc.(“Vans”), and Eddie

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Bauer, LLC (“Eddie Bauer”).

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The alleged

Plaintiff alleges that he visited these stores and

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encountered several barriers at each establishment, which

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interfered with his ability to use and enjoy the goods, services,

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privileges, and accommodations offered at these facilities.

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(Compl., filed May 12, 2010 [Docket # 1], ¶ 24.)

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specifically, plaintiff alleges that at the Eddie Bauer facility

More

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Plaintiff improperly cites to FRCP 56(f) in his motion.
The court, however, construes the motion under FRCP 56(d).
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Because oral argument will not be of material
assistance, the court orders these matters submitted on the
briefs. E.D. Cal. L.R. 230(g).
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(1) there is no signage posted at the entrance to indicate

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accessibility to disable persons; (2) the dressing room bench is

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not 24 inches wide by 48 inches long; (3) the entrance door does

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not have accessible panel handles; and (4) the dressing room

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bench is not affixed to the wall. (Compl. ¶ 39.)

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Plaintiff further alleges that at the HanesBrand facility

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(1) there is no signage posted at the entrance to indicate

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accessibility to disable persons; (2) the entrance door does not

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have accessible panel handles; (3) the check-out counter is too

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high with no portion lowered to sufficiently accommodate a patron

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in a wheel chair; and (4) the pay point machine is too high

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(Compl. ¶ 31.)

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Plaintiff alleges these barriers constitute violations of
the ADA, UCRA, and DPA.
Plaintiff filed his complaint on May 12, 2010.

On January

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7, 2011, the Ninth Circuit, in an en banc decision, altered the

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pleading standard for claims under the ADA.

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One Imports, Inc., 631 F.3d 939 (9th Cir. 2011).

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HanesBrand and Eddie Bauer subsequently filed nearly identical

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motions for summary judgment on March 8, 2011, alleging that

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plaintiff’s complaint failed to allege facts sufficient to

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constitute “injury-in-fact” under the Chapman standard, and thus,

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plaintiff does not have standing to bring his ADA claims.

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Plaintiff then filed the two motions that are the subject of this

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order: plaintiff filed a motion to amend the complaint on March

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14, 2011 and a motion for continuance of defendants’ motions for

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summary judgment on March 18, 2011.

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See Chapman v. Pier
Defendants

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ANALYSIS
A.

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Motion to Amend the Complaint
In light of the Ninth Circuit’s recent holding in Chapman,

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which altered the pleading standard for claims under the ADA,

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plaintiff filed a motion to amend his complaint to comport with

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that standard.

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must plead with particularity the specific barriers that he or she

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encountered “and how [plaintiff’s] disability was affected by them

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so as to deny him the ‘full and equal’ access that would satisfy

In Chapman, the court held that an ADA plaintiff

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the injury-in-fact requirement” of the standing inquiry.

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954.

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requirement, he should be granted leave to amend his complaint to

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explain how each barrier he encountered impaired his full and

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equal access to defendants’ facilities.

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Mar. 14, 2011 [Docket #32], at 1:21–2:4.)

Id. at

Plaintiff argues that, based on this new pleading

(Pl.’s Mot. to Am., filed

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Defendants oppose the motion, arguing that leave to amend

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should be denied because plaintiff cannot show good cause to amend

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pursuant to FRCP 16(b).

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amend does not exist because: (1) defendants have filed a motion

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for summary judgment; (2) plaintiff cannot amend his complaint

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after the deadline for amendment to the pleadings has expired; and

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(3) plaintiff’s proposed amendments are futile--defendants

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maintain plaintiff cannot satisfy the Chapman standard because he

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cannot show that he was “deprived” of the “same full and equal

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access as a person who is not wheelchair bound.”

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Mot. to Am., filed Mar. 25, 2011, [Docket ## 36 & 37], at 4:3–5.)

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The pretrial scheduling order, issued September 1, 2010,

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Defendants allege that good cause to

(Defs.’ Opp’n to

precludes further amendment to the pleadings “without leave of
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court, good cause having been shown.”

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filed Sept. 1, 2010 [Docket #26], at 1:22–25.)

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plaintiff’s motion to amend can only be granted pursuant to FRCP

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16(b).

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607–608 (9th Cir. 1992).

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inquiry is upon the moving party’s reasons for seeking

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modification.”

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(See Am. Scheduling Order,
Therefore,

See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604,
Under FRCP 16(b), “the focus of the

Id.

In this case, plaintiff’s reason for seeking modification is
based on the Ninth Circuit decision in Chapman, which “created new

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pleading standards that simply did not exist before that opinion

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was published.”

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[“Reply”], filed Apr. 1, 2011 [Docket #44], at 2:10–12.)

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district courts sitting in the Ninth Circuit have recently granted

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plaintiffs asserting ADA claims leave to amend their complaints to

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adhere to the Chapman standard.

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Enterprises, Inc., Civ. No. S-10-730 IEG/NLS, 2011 WL 666899 (S.D.

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Cal. Feb. 17, 2011) (recognizing that failure to adhere the

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complaint to the standard articulated in Chapman would result in

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dismissal of the complaint); accord Kohler v. Presidio Intern.,

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Inc., Civ. No. S-10-4680 PSG/PJW, 2011 WL 686060 (C.D. Cal. Feb.

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16, 2011) (holding that leave to amend should be granted to permit

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the plaintiff to comply with Chapman’s standard); Rush v. CPG

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Partners, LP, Civ. No. S-10-4662, 2011 WL 561079 (C.D. Cal. Feb.

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14, 2011) (same).

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(Pl.’s Reply. in Support of Mot. to Am.
Numerous

See e.g., Kohler v. Flava

Here, defendants have not provided justification to deviate

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from these decisions granting leave to amend so that plaintiffs

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asserting ADA claims can amend their complaints to comply with

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Chapman.

The cases defendants rely on for their contention that
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leave to amend should be denied because they have filed motions

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for summary judgment are distinguishable.

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General Tel., 936 F.2d 435, 443 (9th Cir. 1991); M/V American

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Queen v. San Diego Marine Constr. Corp., 708 F.2d 1483, 1492 (9th

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Cir. 1983).

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summary judgment in denying leave to amend, those courts also

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relied on other, more substantial factors that are not present in

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this case.

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held that the district court, in its discretion, appropriately

See Schlacter-Jones v.

While both courts considered pending motions for

For example, in Schlacter-Jones, the Ninth Circuit

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denied relief because discovery had concluded, the complaint was

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filed more than a year before the motion to amend, and the

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proposed amendment would have been futile.

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Similarly, in American Queen, the district court appropriately

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denied leave to amend because plaintiff attempted to amend a year

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and one-half after filing the complaint and the new allegations

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would have substantially altered the basis of the action.

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1492.

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Id. at 443.

Id. at

Conversely, in this case, plaintiff’s justification for

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amendment--the Chapman holding--emerged only three months ago;

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discovery does not close until September 2011; plaintiff does not

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seek to alter the nature of his ADA claims; and, as discussed

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below, amendment would not be futile.

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defendants have filed motions for summary judgment3 at this early

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stage of the litigation does not provide a sufficient basis for

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denying plaintiff leave to amend.

The mere fact that

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The deadline for filing dispositive motions is not
until January 13, 2012. (See Am. Scheduling Order at 3:13–14.)
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Similarly, defendants’ contention that leave to amend should

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be denied because plaintiff was not diligent is unavailing.

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mere fact that Chapman was decided three months ago does not

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warrant denying plaintiff the opportunity to amend his complaint

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to allege facts sufficient to comply with the Chapman standard.

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Indeed, denial of leave to amend would subject plaintiff’s

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complaint to sua sponte dismissal pursuant to FRCP 12(b)(1).

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Kohler, 2011 WL 666899 at *1 (noting that failure to comply with

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the Chapman pleading standard subjects a plaintiff's ADA claims to

The

See

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dismissal for lack of subject matter jurisdiction).

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above, multiple district courts sitting in the Ninth Circuit have

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recently granted leave to amend to permit plaintiffs to harmonize

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their complaints with Chapman.

As set forth

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Finally, defendants’ contention that amendment would be

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futile because the alleged barriers plaintiff encountered did not

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deprive him of “entry or full use of the facility,” and thus, he

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did not suffer an injury-in-fact, is a misapplication of the

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standard articulated in Chapman.

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5:14–15.)

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which acknowledges that plaintiff was not actually prevented from

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entering or using the facilities; therefore, defendants argue,

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plaintiff did not suffer an injury-in-fact.

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Chapman, however, only requires plaintiff to allege that he

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encountered a barrier that “affect[ed] [his] full and equal

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enjoyment of the facility on account of his particular

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disability.”

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for standing purposes that the barrier completely preclude the

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plaintiff from entering or from using a facility in any way.”)

(Defs.’ Opp’n to Mot. to Am. at

Defendants rely on plaintiff’s deposition testimony,

(Id. at 4:10–13.)

See Chapman, 631 F.3d at 947 (“it is not necessary

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Based on the standard articulated in Chapman, it is

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immaterial that plaintiff was able to access the facility, as long

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as he encountered a noncompliant barrier related to his particular

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disability, and that barrier affected his access in a manner that

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would not affect a patron without a similar disability.

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Plaintiff proposes to amend his complaint4 simply “to add

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jurisdictional language generally averring why each barrier

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relates to [plaintiff’s] disability to avoid . . . dismissal.”

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(Pl.s’ Mot. to Am. at 4:14–17.)

Id.

Since failure to amend the

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complaint may result in dismissal of the complaint under Chapman,

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denial of plaintiff’s motion would cause plaintiff extreme

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prejudice at this early stage of the litigation.

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granting leave to amend is proper.

Accordingly,

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Based on the foregoing, plaintiff’s motion to amend his

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complaint to add allegations explaining how each barrier relates

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Plaintiff’s proposed amended complaint appropriately
addresses the Chapman requirement that plaintiff allege how the
specific barrier relates to plaintiff’s particular disability.
(See Pl.’s Mot. to Am., Ex. A.) However, plaintiff’s proposed
amended complaint still contains a jurisdictional flaw. A
plaintiff seeking injunctive relief under the ADA must
demonstrate “a ‘real and immediate threat of repeated injury in
the future.” Chapman, 631 F.3d at 946. Plaintiff can satisfy
this standard either by demonstrating that the barriers he
encountered deterred him from returning to the store or that he
intends to return to a noncompliant facility. Id. at 950
(emphasis added). Plaintiff’s proposed amended complaint
attempts to comply with the standard by stating that he was
deterred from returning to the facilities where he allegedly
encountered barriers; however, plaintiff admitted in his sworn
deposition testimony that he was not deterred from returning to
the facilities. Indeed, he specifically stated that he returned
to those facilities on a number of occasions. (See Defs.’ Opp’n
to Application for Continuance, filed Mar. 25, 2011, [Docket ##
38 & 39], at 6:15–7:25.) Therefore, plaintiff must, in his
amended complaint, allege facts sufficient to demonstrate an
immediate threat of future harm or the complaint will be subject
to sua sponte dismissal pursuant to FRCP 12(b)(1).
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to his specific disability is GRANTED.

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B.

Motion for Continuance of Summary Judgment Motions

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Plaintiff requests this court grant a continuance of

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defendants’ motions for summary judgment because he has not had

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an opportunity to conduct sufficient discovery to satisfy the

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standard for asserting ADA claims under Chapman.

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Under FRCP 56(d), the court must deny or continue a motion

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for summary judgment if an opposing party can show that “for

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specified reasons, it cannot present facts essential to justify

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its opposition.”

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“requir[es], rather than merely permit[s], discovery where the

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nonmoving party has not had the opportunity to discover

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information that is essential to its opposition.” Metabolife

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Int’l Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001).

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opposing party “must identify the specific facts that further

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discovery would reveal and explain why these facts would preclude

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summary judgment.”

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(9th Cir. 2006).

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forth in affidavit form the specific facts that he hope[s] to

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elicit from further discovery, (2) that the facts sought exist,

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and (3) that these sought-after facts are ‘essential’ to resist

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the summary judgment motion.”

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138 F.3d 772, 779 (9th Cir. 1998).

Fed. R. Civ. P. 56(d).

Indeed, Rule 56(d)

The

Tatum v. San Francisco, 441 F.3d 1090, 1100

Plaintiff “must show (1) that [he] ha[s] set

State of California v. Campbell,

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In this case, discovery does not close until September 2011

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--approximately six months from the date of this order. (See Am.

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Scheduling Order at 2:1–7.)

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56(d), plaintiff has identified information that he has not had

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the opportunity to discover which is relevant to his opposition

Pursuant to the mandates of FRCP

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to defendants’ motions for summary judgment.

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plaintiff asserts that he must conduct the following discovery:

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(1) inspect Eddie Bauer’s and HanesBrand’s stores; (2) identify

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and document the barriers alleged in plaintiff’s complaint; (3)

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obtain expert testimony on those barriers; and (4) obtain

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building records demonstrating when/how the stores were designed.

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Plaintiff asserts that such discovery is required to support his

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claims regarding the alleged barriers on defendants’ premises.

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As such, plaintiff must have some opportunity to pursue the

Specifically,

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necessary discovery in order to make a proper response.

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Burlington Northern Santa Fe R. Co. v. Assiniboine and Siouz

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Tribes, 323 F.3d 767, 774 (9th Cir. 2003) (finding the district

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court’s denial of the defendants’ Rule 56(d) motion was an abuse

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of discretion because the plaintiff’s summary judgment motion was

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filed so early in the litigation that no discovery had yet taken

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place; thus, the defendants did not have a reasonable opportunity

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to uncover facts before their opposition to the motion was due).

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Here, in opposition to plaintiff’s motion to continue,

See e.g.

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defendants offer arguments that are essentially duplicative of

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their arguments in opposition to plaintiff’s motion to amend.

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Defendants’ arguments are unpersuasive in the context of

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plaintiff’s Rule 56(d) motion for the same reasons they do not

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compel the court to deny plaintiff leave to amend.

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Moreover, the Chapman decision in and of itself provides

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sufficient justification for granting plaintiff’s motion for

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continuance of defendants’ motions for summary judgment to permit

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plaintiff to conduct discovery.

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a plaintiff has suffered an injury-in-fact, he has standing to

The Chapman court held that when

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seek injunctive relief addressing not only barriers that

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plaintiff encountered, but also “existing barriers that he is

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reasonably likely to encounter.”

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this end, if further discovery reveals barriers that relate to

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plaintiff’s disability that he did not encounter, he would have

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standing to seek injunctive relief based on those ADA violations

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as well as those he actually encountered.

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good cause to continue defendants’ motions for summary judgment

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to permit plaintiff time to conduct the requested discovery.

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Chapman, 631 F.3d at 953.

To

Therefore, there is

Based on the foregoing, the court hereby GRANTS plaintiff’s

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motion for continuance of defendants’ motions for summary

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judgment.

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judgment5 once plaintiff has had a reasonable opportunity to

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conduct the discovery set forth in his motion.

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Defendants may refile their motions for summary

IT IS SO ORDERED.
DATED: April 15, 2011

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FRANK C. DAMRELL, JR.
UNITED STATES DISTRICT JUDGE

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Since the court directs defendants to refile their
motions at a future time, the court hereby vacates the hearing on
defendants’ motions for summary judgment set for May 13, 2011.
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