Mortland v. YMCA of the Rockies

Filing 25

MINUTE ORDER granting in part and denying in part 17 Motion Regarding Limited Discovery. By Magistrate Judge Michael J. Watanabe on 3/12/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03340-WJM-MJW
DEREK MORTLAND,
Plaintiff(s),
v.
YMCA OF THE ROCKIES, a Colorado Non-Profit,
Defendant(s).

MINUTE ORDER

Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that Plaintiff’s Motion Regarding Limited Discovery
(docket no. 17) is GRANTED IN PART AND DENIED IN PART. The subject motion
(docket no. 17) is GRANTED insofar as Plaintiff shall be permitted to take a Rule
30(b)(6) deposition of Defendant, and such Rule 30(b)(6) deposition shall be limited in
scope to the nine factors listed in the LeBoon case below. In addition, on or before
March 27, 2015, Plaintiff may serve 20 interrogatories upon Defendant which shall be
limited in scope to the nine factors listed below in the LeBoon case. Defendant shall
designate one or more Representatives to respond to the nine factors listed below in the
LeBoon case. These nine factors are the topics for the Rule 30(b)(6) deposition. The
parties shall meet and confer and set the Rule 30(b)(6) deposition on or before May 8,
2015. The remainder of the relief sought in the subject motion (docket no. 17) is
DENIED. Each party shall pay their own attorney fees and costs for this motion.
It is FURTHER ORDERED that the parties shall meet and confer, and if a
protective order is needed for this “limited discovery,” a motion for protective order
should be filed pursuant to Fed. R. Civ. P. 26(c) on or before March 23, 2015.
It is FURTHER ORDERED that Plaintiff is granted leave to file, with District
Judge Martinez, a motion for extension of time to respond to Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint (docket no. 22) since this motion is currently
pending before District Judge Martinez and since this court is allowing some “limited
discovery.”
This is a Title III of the Americans With Disabilities Act of 1990 (ADA) and a
Colorado Anti-Discrimination Act (CADA) case which was originally set for a Rule 16

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Scheduling Conference on February 5, 2015. See docket no. 5. At the Scheduling
Conference, this court vacated the Scheduling Conference. See docket no. 16.
Currently pending before District Judge Martinez is Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint (docket no. 22) filed on March 10, 2015. The
thrust of Defendant’s argument in this motion (docket no. 22), is that Defendant is a
“religious organization” and is exempt from the requirements of Title III of the ADA and
therefore Plaintiff has failed to state a claim upon which relief can be granted. Further,
Defendant argues in this motion (docket no. 22) that Plaintiff’s claim under the CADA
should likewise be dismissed as the facilities at issue are specifically excluded from the
definition of a “place of public accommodation” under the CADA and therefore Plaintiff
has failed to state a claim upon which relief can be granted. Accordingly, a decision on
the pending motion (docket no. 22) would serve judicial economy and is consistent with
Fed. R. Civ. P. 1.
At issue in the subject motion (docket no. 17) is whether “limited discovery” is
needed in order for Plaintiff to prepare and fairly respond to Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint (docket no. 22).
Plaintiff argues that he needs “limited discovery” in order to respond to
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint (docket no. 22). Plaintiff
requests the following “limited discovery:”
1.

Deposition of the Corporate Representative of the Defendant who is most
knowledgeable of the Defendant’s operation;

2.

Designation of the General Manager of the Estes Park Center;

3.

Designation of the Chief Financial Officer of the Defendant who is most
knowledgeable of the finances of the Defendant;

4.

Request for Production of (a) Defendant’s tax returns for the last three
years to determine whether Defendant is operating at a profit and to
determine the source and use of Defendant’s funds; (b) tax returns for the
Estes Park Center for the last three years, which are different than the
Defendant’s tax returns; (c) members of the Board of Directors for the last
three years; and (d) interrogatories not to exceed 25 including sub-parts to
identify how the Defendant is a religious organization or is affiliated with a
religious organization, and information on any training in the Christian
religion that its employees receive, and to determine whether the
Defendant receives federal funding.

Plaintiff is willing to enter into a mutually agreeable Confidentiality Agreement
with Defendant [i.e., Protective Order] for the “limited discovery” that Plaintiff requests in
his subject motion (docket no. 17).

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In support of Plaintiff subject motion (docket no. 17), Plaintiff contends that the
determination of whether Defendant is exempt from the ADA and CADA as outlined in
his Amended Complaint is a mixed question of law and fact that requires adequate
discovery to develop the record. In support of such contention, Plaintiff relies on the
cases of Doe v. Abington Friends School, 480 F.3d 252 (3rd Cir. 2007); LeBoon v.
Lancaster Jewish Community Center, Ass’n, 503 F.3d 217, 226-27 (3rd Cir. 2007); and
Defiore v. City Rescue Mission of New Castle, 995 F. Supp.2d 413 (W.D. Penn. 2013).
In LeBoon, the Third Circuit suggested numerous factors to determine whether a
Jewish Community Center could be considered a “religious organization” under Title II
of ADA. Those factors are: (1) whether the entity operates for a profit; (2) whether it
produces a secular product; (3) whether the entity’s articles of incorporation or other
pertinent documents state a religious purpose; (4) whether it is owned, affiliated with or
financially supported by a formally religious entity such as a church or synagogue; (5)
whether a formally religious entity participates in the management, for instance of
having representatives on the Board of Trustees; (6) whether the entity holds itself out
to the public as secular or sectarian; (7) whether the entity regularly includes prayer or
other forms of worship in its activities; (8) whether it includes religious instruction in the
curriculum, to the extent it is an educational institution; and (9) whether its membership
is made up by co-religionists. LeBoon, 503 F.3d at 226.
Defendant argues that Plaintiff’s “limited discovery” requests, as outlined above
in the subject motion (docket no. 17), are vague, over broad, and unnecessary.
Moreover, Defendant argues that it recently provided Plaintiff with the tax returns
requested, which include the names of the members of Defendant’s Board of Directors,
as well as its Amended Articles of Incorporation (which were not requested), all of which
are public records and were available to Plaintiff prior to and after the filing of his
Complaint. Further, Defendant asserts that Plaintiff already has the BAA Order which
addresses Defendant’s activities. Defendant further argues that there is no Rule
30(b)(6) Notice as to the Corporate Representative of Defendant and that the scope and
inquiry of the depositions of Defendant’s CFO and General Manager of the Estes Park
Center as requested by Plaintiff is over broad and vague.
Here, the court finds that Plaintiff has already received (1) the requested tax
returns from Defendant which includes the names of the members of the Defendant’s
Board of Directors, (2) the Defendant’s Amended Articles of Incorporation, and (3) the
BAA Order. I further find that some “limited discovery” should be permitted in order for
Plaintiff to prepare and fairly respond to Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint (docket no. 22). Plaintiff shall be permitted to take a Rule 30(b)(6)
deposition of Defendant, and such Rule 30(b)(6) deposition shall be limited in scope to
the nine factors listed above in the LeBoon case. In addition, Plaintiff may serve 20
interrogatories upon Defendant which shall be limited to the scope of the nine factors
listed above in the LeBoon case. Defendant shall designate one or more
Representatives to respond to the nine factors listed above in the LeBoon case. The
remainder of the relief sought in the subject motion (docket no. 17) is denied.

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Date: March 12, 2015