Wagner v. Sobik et al

Filing 22

ORDER granting 21 Motion for Reconsideration. The Court's Order 20 granting Defendant's Motion to Dismiss is VACATED. The Clerk of Court is DIRECTED to re-open the case. Plaintiff is permitted to inspect the premises on or before July 18, 2018, for purposes of responding to 16 Defendants' Motion to Dismiss. Signed by Judge Paul G. Byron on 6/16/2018. (JRJ)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TAVIA WAGNER,
Plaintiff,
v.

Case No: 6:17-cv-1783-Orl-40KRS

IZABELA B. SOBIK and
SANDWICH SHOPS, INC.,

SOBIK’S

Defendants.
/
ORDER
This cause comes before the Court on Plaintiff’s Motion for Reconsideration of
Order on Defendants’ Motion to Dismiss (Doc. 21), filed May 24, 2018. Defendants did
not file a response, and the time for doing so has now passed. Upon review, Plaintiff’s
Motion for Reconsideration is due to be granted.
I.

BACKGROUND
On October 13, 2017, Plaintiff, Tavia Wagner, initiated this suit against

Defendants, Izabela B. Sobik and Sobik’s Sandwich Shops, Inc. (“Sobik’s”), alleging
violations of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181
et seq. (Doc. 1 (“Complaint”)). The Complaint averred that Plaintiff encountered ADA
violations on a September 25, 2017, visit to premises owned and operated by
Defendants—located at 1905 South French Avenue, Sanford, Florida, 32771 (the
“Subject Property”). (Id. ¶¶ 4–5, 19). Upon learning of the alleged violations, Defendants
undertook to bring the Subject Property into compliance with the ADA. (See Doc. 16-1,
¶¶ 6, 8). After making numerous modifications to the Subject Property, Defendants

retained “ADA Compliance Specialist” David Goldfarb, who inspected the property and
submitted a report attesting that the ADA violations alleged in the Complaint had been
remedied. (Docs. 16-1, 16-2).
Thereafter, Defendants moved to dismiss the Complaint as moot, maintaining that
the alleged violations had been repaired. (Doc. 16). Plaintiff opposed the motion, but
failed to offer any meaningful rebuttal to Defendants’ assertions that the claims were
mooted. (Doc. 19). The Court therefore granted Defendants’ motion. (Doc. 20). Plaintiff
now moves for reconsideration. (Doc. 21).
II.

DISCUSSION
A court may grant a motion for reconsideration on three grounds: “(1) an

intervening change in controlling law; (2) the availability of new evidence; and (3) the need
to correct clear error or manifest injustice.” Moton v. Cowart, No. 8:06-cv-2163-T-30EAJ,
2007 WL 1876036, at *1 (M.D. Fla. Feb. 20, 2007) (citations omitted). Reconsideration of
a previous order is an extraordinary remedy, one that is reserved for those instances
where the facts or law are so strongly convincing as to induce the court to reverse its prior
decision. Ludwig v. Liberty Mut. Fire Ins. Co., No. 03-cv-2378-T-17-MAP, 2005 WL
1053691, at *3 (M.D. Fla. Mar. 30, 2005) (citation omitted).
Plaintiff now asserts that reconsideration is appropriate because of new evidence.
(Doc. 21). Namely, Plaintiff visited the Subject Property on May 22, 2018, and attests by
affidavit that she encountered some of the same ADA violations named in the Complaint.
(Doc. 21-1). Moreover, Plaintiff contends the Court misapprehended Plaintiff’s position as
to whether she agreed that the alleged ADA violations had been remedied. (Doc. 21, pp.
4–5). Plaintiff requests the Court vacate its earlier Order and grant leave to Plaintiff’s

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expert to inspect the Subject Property. (Doc. 21, p. 5). Accordingly, and in light of the
caselaw identified by Plaintiffs, the Court’s Order granting Defendants’ dismissal motion
is due to be vacated. See, e.g., Wagner v. Nason, Case No. 6:17-cv-1863-Orl-31DCI,
Docs. 23, 25 (M.D. Fla. 2017).
III.

CONCLUSION
Because of the foregoing, it is ORDERED and ADJUDGED as follows:
1. The Court’s Order granting Defendants’ Motion to Dismiss (Doc. 20) is
VACATED.
2. The Clerk of Court is DIRECTED to re-open the case.
3. Plaintiff shall have until July 18, 2018 to perform an inspection of the Subject
Property and notify the Court whether she agrees that the remediation has
cured all of the ADA compliance issues raised in her Complaint. If she does
not agree, Plaintiff shall file an affidavit or other evidence supporting her
position.
DONE AND ORDERED in Orlando, Florida on June 16, 2018.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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