Feezor v. Patterson et al

Filing 65

ORDER signed by Magistrate Judge Gregory G. Hollows on 5/16/11 ORDERING that defendants' motions for protective order 51 52 are DENIED; The inspections shall be conducted outside of the stores' business hours, and may take place on two separate days if necessary; attendance at the inspection shall be limited to plaintiff's counsel, plaintiff, plaintiff's expert, and the expert's assistant. (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LARRY FEEZOR,

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Plaintiff,

CIV. NO. S-10-1165 FCD GGH

vs.

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GARY L. PATTERSON, et al.,
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Defendants.
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ORDER
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Previously pending on this court’s law and motion calendar for May 12, 2011,

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were two motions for protective order, filed by defendants Hanesbrands Inc. and Eddie Bauer

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LLC on April 18, 2011. Scott Hubbard appeared telephonically on behalf of plaintiff.

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Defendants were represented by Myra Villamor. After hearing oral argument and having

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reviewed plaintiff’s papers, the court now issues the following order.

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Plaintiff Freezor initiated this action on May 12, 2010, for ADA violations in

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regard to attempt to access a shopping mall. This case is proceeding on the first amended

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complaint, filed April 26, 2011. Defendants are various shops and businesses at a shopping mall

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known as Shasta Factory Outlets in Anderson, California. Plaintiff alleges that defendant outlets

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have incorrect tow away signage, disabled parking spaces with slopes greater than 2%, incorrect

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signage at van accessible parking spaces, improper location of parking spaces, lack of accessible

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route from the parking spaces to the facility entrance, sidewalks with slopes greater than 2%, and
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improperly configured public restrooms, as well as barriers inside the named stores. Plaintiff

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seeks injunctive relief and damages.

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Plaintiff seeks to compel inspection of defendants’ facility pursuant to his March,

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2011 notices of inspection. There are two requests for inspection noticed, one for Hanesbrands

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store and one for the Eddie Bauer store, both to have occurred on April 26, 2011. The requests

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are to “photograph, videotape, document, measure, and survey barriers (both policy and

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architectural) relating to plaintiff’s specific disability.” Defendants seek a protective order,

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claiming that plaintiff lacks standing to pursue his claims, and therefore lacks standing to

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conduct the site inspection. In sum, defendants argue that plaintiff’s request is an improper

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fishing expedition. Defendants seek to either prohibit the inspection or to stay the inspection

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until plaintiff establishes standing to pursue his claims. If plaintiff can establish standing,

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defendants seek to limit the scope of the inspection to those barriers specifically identified in the

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first amended complaint. Defendants also request that the inspection take place outside of

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business hours, and seek to limit the individuals who can attend the inspection to plaintiff,

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plaintiff’s counsel, and plaintiff’s expert witness.

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The issue of standing was previously raised in the district court. The undersigned

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can only adjudicate the discovery matters raised here. Accordingly, based on Judge Damrell’s

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memorandum and order, issued April 18, 2011, the site inspection will be permitted.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motions for protective order, filed April 18, 2011, (dkt. #s 51, 52), are
denied;

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2. The inspections shall be conducted outside of the stores’ business hours, and may take

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place on two separate days if necessary; attendance at the inspection shall be limited to plaintiff’s

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counsel, plaintiff, plaintiff’s expert, and the expert’s assistant.

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DATED:

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05/16/11

/s/ Gregory G. Hollows
______________________________
U.S. MAGISTRATE JUDGE
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