Access for the Disabled, Inc. et al v. Associated Out-Door Clubs Inc

Filing 24

ORDER: Plaintiffs Access for the Disabled, Inc. and Denise Payne's Motion to Dismiss the action 20 is GRANTED. This case is DISMISSED without prejudice. The Clerk is DIRECTED to terminate any remaining pending motions and to close this case. Signed by Judge Virginia M. Hernandez Covington on 5/3/2013. (LRM)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ACCESS FOR THE DISABLED, INC.
and DENISE PAYNE,
Plaintiffs,
v.

Case No. 8:13-cv-100-T-33TBM

ASSOCIATED OUT-DOOR CLUBS, INC.,
Defendant.
_____________________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Plaintiffs Access for the Disabled, Inc. and Denise Payne’s
Motion to Dismiss the action (Doc. # 20), filed April 13,
2013. Defendant Associated Out-Door Clubs, Inc. filed its
response to the motion on April 22, 2013, stating that “the
Motion to Dismiss should be granted, but only upon the
condition

that

Plaintiffs

pay

the

attorneys’

fees

and

expert witness fees and costs incurred by [Defendant] in
litigating

this

action,

or

upon

other

appropriate

conditions, pursuant to Fed. R. Civ. P. 41(a)(2).” (Doc. #
21

at

1).

Anticipating

oppose

the

award

of

this

request,

attorneys’

fees

Access
or

Motion to Dismiss. (Doc. # 20 at 6-10).

costs

and

Payne

in

their

For the reasons

stated below, the Court grants Access and Payne’s Motion to

Dismiss and declines to grant attorneys’ fees and costs to
Associated Out-Door.
I.

Background
On January 10, 2013, Access and Payne initiated this

action

pursuant

Disabilities

to

Act,

Title

42

III

U.S.C.

of

§

the

12181,

Americans
et

seq.,

with
suing

Associated Out-Door for injunctive relief, attorneys’ fees,
litigation expenses, and costs. (Doc. # 1). Access is a
non-profit

Florida

corporation

and

its

purpose

is

“to

represent the interest of its members by assuring places of
public accommodation are accessible to and usable by the
disabled . . . .” (Id. at ¶ 3). The Access member alleging
injury is Denise Payne. (Id. at ¶ 4).
Associated
Track

at

8300

Out-Door
North

owns

Nebraska

and

operates

Avenue

in

a

Greyhound

Tampa,

Florida.

(Doc. # 1 at ¶ 2; Doc. # 11 at ¶¶ 2, 8). Access and Payne
allege

that

Payne

“visited

the

property,

encountered

barriers for access, and engaged and tested those barriers.
She suffered legal harm and injury and will continue” to do
so. (Doc. # 1 at ¶ 6).
In accordance with Federal Rule of Civil Procedure 16,
the Court filed an ADA Scheduling Order on January 14,
2013. (Doc. # 4). The Scheduling Order stayed all discovery

2

until further Order of this Court (Id. at 2) and directed
Access and Payne to provide Associated Out-Door “with a
copy of any expert report upon which Plaintiffs intend to
rely,

consistent

with

the

provisions

of

Rule

26(a)(2).”

(Id. at ¶ 4). Access and Payne were to provide their report
to Associated Out-Door by March 15, 2013. (Id.).
On February 3, 2013, Associated Out-Door filed a Motion
to Modify ADA Scheduling Order. (Doc. # 10). Specifically,
Associated
permitted

Out-Door
“on

the

requested
issue

of

that

limited

Plaintiffs’

discovery

standing

and

be
to

defer the requirements for exchanging expert reports until
the standing issue is resolved . . . .” (Id. at 1). Access
and Payne filed a response in opposition to the motion on
February

19,

2013.

(Doc.

#

12).

The

Court

granted

the

Motion on March 29, 2013, and amended the ADA Scheduling
Order. (Doc. # 19).
Access and Payne claim that they furnished a copy of
their

“preliminary

report”

to

Associated

Out-Door

on

February 22, 2013 – before the report was due and before
the

Court

Associated
report

did

amended

the

Out-Door
not

meet

ADA

Scheduling

informed
the

Access

Order

and

requirements

of

–

Payne
Rule

but

that

that

the

26(a)(2).

(Doc. # 13 at ¶ 2). On March 1, 2013, Access and Payne

3

filed their own Motion to Modify Scheduling Order (Doc. #
13), requesting that modification be made “to allow the
Plaintiffs
premises

to
in

provisions

conduct
order

of

[the

an

inspection

of

the

Defendant’s

to

facilitate

compliance

with

the

ADA

Scheduling

Order]

requiring

the

Plaintiffs to provide a report to the Defendant.” (Doc. #
13

at

1).

Associated

Out-Door

filed

a

response

in

opposition on March 4, 2013. (Doc. # 14).
After obtaining leave of Court (Doc. # 17), Associated
Out-Door

filed

a

supplemental

response

in

opposition

to

Access and Payne’s Motion to Modify ADA Scheduling Order on
March 18, 2013. (Doc. # 18). In its supplemental response,
Associated

Out-Door

claimed

that

in

addition

to

the

“preliminary report,” Access and Payne had also served a
“supplemental

report”

with

accompanying

Associated

Out-Door,

and

information

regarding

their

had

photographs

furnished

expert’s

to

additional

publications

and

testimonial experience. (Doc. # 18 at 2). Associated OutDoor stated that while “Tampa Greyhound disagrees with the
substance

of

the

Supplemental

Report,

it

does

at

least

ostensibly address the matters required by Rule 26(a)(2)(B)
. . . .” (Id.).

4

Associated
Payne

had,

requirements

Out-Door

in

fact,

of

claimed

that

produced

Rule

a

because

report

26(a)(2)(B),

Access

that

met

“Plaintiffs

and
the
have

undermined their claim that an inspection is necessary in
order to produce their report.” (Id.). The Court agreed,
stating, “Access and Payne have now provided the report;
therefore a modification to allow an inspection intended to
facilitate in preparing the report is no longer necessary.”
(Doc. # 19 at 13).
Access and Payne filed the Motion to Dismiss Complaint
(Doc. # 20) on April 13, 2013, and Associated Out-Door
filed its response (Doc. # 21) on April 22, 2013.
II.

Legal Standard
Under Federal Rule of Civil Procedure 41(a)(2), the

action may be dismissed “on terms that the court considers
proper.” Fed. R. Civ. P. 41(a)(2). As stated in Pontenberg
v. Boston Scientific Corp., 252 F.3d 1253 (11th Cir. 2001),
“The district court enjoys broad discretion in determining
whether

to

allow

41(a)(2).”

Id.

dismissal

should

a

at

voluntary

1255.

be

“In

granted

dismissal

most
unless

cases,
the

under
a

Rule

voluntary

defendant

will

suffer clear legal prejudice, other than the mere prospect
of

a

subsequent

lawsuit,

as

5

a

result.”

Id.

at

1256

(internal citations omitted) (emphasis in original);

see

also First Fin. Bank v. CS Assets, LLC, 434 F. App'x 897,
898 (11th Cir. 2011).
The

Eleventh

exercising

Circuit

equitable

has

discretion

further
under

noted
Rule

that,

in

41(a)(2),

a

district court must “weigh the relevant equities and do
justice between the parties in each case, imposing such
costs and attaching such conditions to the dismissal as are
deemed appropriate.”

McCants v. Ford Motor Co., Inc., 781

F.2d 855 (11th Cir. 1986); see also Inman v. Am. Paramount
Fin., No. 12-12049, 2013 WL 1729801, at * 4 (11th Cir. Apr.
22, 2013).
III. Analysis
In

the

instant

case,

the

Court

finds

dismissal

pursuant to Rule 41(a)(2) is appropriate. Nonetheless, the
Court takes this opportunity to address several claims made
by Access and Payne in their Motion to Dismiss. This Court
has

previously

first

Order

issued

was

the

three
ADA

Orders

Scheduling

in

this

Order

action.
stating

The
that

“Plaintiffs shall provide Associated Out-Door with a copy
of any expert report upon which Plaintiffs intend to rely”
and making no ruling regarding Plaintiff’s entitlement to
conduct

a

formal

expert

investigation.

6

(Doc.

#

4).

The

Court’s second Order granted Associated Out-Door leave to
file

a

Modify

supplemental

response

Scheduling

Order;

to

Plaintiff’s

again,

Motion

formal

to

expert

investigations were not considered. (Doc. # 17). In its
third

Order,

this

Court

granted

Associated

Out-Door’s

Motion to Modify the ADA Scheduling Order and denied as
moot Access and Payne’s Motion to Modify Scheduling Order.
(Doc. # 19).
Although Access and Payne state, “This Court’s ruling
that plaintiffs are to produce their Rule 26(a)(2) report
without the benefit of a formal inspection deprives them of
any ability to fairly prosecute this action,” the Court did
not so rule. (Doc. # 20 at 5). Access and Payne claimed in
their Motion to Modify Scheduling Order that an inspection
of

Associated

Out-Door’s

premises

would

“facilitate

compliance with provisions of [the ADA Scheduling Order]
requiring Plaintiffs to provide a report to the Defendant.”
(Doc. # 13 at 1).

Associated Out-Door

then

advised the

Court that Access and Payne had, in the meantime, provided
Associated

Out-Door

with

an

additional

fulfilling

the

provisions

of

the

ADA

expert

Scheduling

report,
Order.

(Doc. # 18). Access and Payne brought no information to the
contrary to the Court’s attention.

7

Accordingly,

this

Court

held,

“Therefore,

because

Access and Payne have timely produced the expert report
required by this Court’s original Scheduling Order, their
Motion for Modification of the Scheduling Order to allow
for an inspection to assist in the preparation of an expert
report is denied as moot.” (Doc. # 19 at 14) (emphasis
added).
Access and Payne now move for dismissal. (Doc. # 20).
As stated above, a voluntary dismissal should be granted
unless

the

defendant

will

suffer

clear

legal

prejudice.

Pontenberg, 252 F.3d at 1256. There is no evidence before
the Court that Associated Out-Door will so suffer in the
instant case and, therefore, the Court grants Access and
Payne’s Motion to Dismiss the case.
Associated

Out-Door

points

out

that

the

Court

has

“ample authority to impose an award of . . . attorneys’
fees

and

other

litigation

expenses

as

a

condition

of

granting the Plaintiffs’ Motion to Dismiss.” (Doc. # 21 at
5) (citing Yoffe v. Keller Indus., Inc., 580 F.2d 126 (5th
Cir. 1978)). Although Associated Out-Door claims that “the
equities compel a requirement that Plaintiffs reimburse”
Associated Out-Door for litigation expenses (Doc. # 21 at
5),

the

Court

has

weighed

the

8

relevant

equities

to

do

justice between the parties in this case, McCants, 781 F.2d
at 857, and the Court is not inclined to award attorneys’
fees or costs to Associated Out-Door at this time.
This

action

is

still

in

the

very

early

stages

of

discovery,1 no dispositive motions have been filed other
than the instant one, and the Court is not persuaded by
Associated Out-Door’s claims that Access and Payne acted
improperly by bringing the instant case. (Doc. # 21 at 58).

Accordingly,

the

Court

declines

to

award

attorneys’

fees to Associated Out-Door. Furthermore, the Court finds
that

Associated

Out-Door’s

expenses

do

not

constitute

sufficient prejudice to warrant denial of the Rule 41(a)(2)
Motion for Dismissal.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Plaintiffs Access for the Disabled, Inc. and Denise
Payne’s Motion to Dismiss the action (Doc. # 20) is
GRANTED.

(2)

This case is DISMISSED without prejudice. The Clerk is
DIRECTED

to

terminate any remaining pending motions

and to close this case.
Associated Out-Door has served interrogatories and
requests to produce on Payne and Access, but responses are
not yet due.
1

9

DONE and ORDERED in Chambers, in Tampa, Florida, this
3rd day of May, 2013.

Copies: All Counsel of Record

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