Access 4 All, Inc. et al v. Starbucks Corporation
ORDER denying 32 Motion for Partial Summary Judgment; denying 34 Motion for Summary Judgment. Signed by Judge James I. Cohn on 1/4/2012. (prd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO.: 11-61010-CIV-COHN/Seltzer
ACCESS 4 ALL, INC., a Florida non-profit
Corporation, PETER DIPALMA, individually,
and WILLIAM NORKUNAS, individually,
STARBUCKS CORPORATION, a Washington
corporation, d/b/a STARBUCKS COFFEE
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Plaintiffs’ Motion for Partial Summary
Judgment [DE 32], Defendant’s Response in Opposition [DE 38], Plaintiffs’ Reply [DE 42],
Defendant’s Motion for Summary Judgment [DE 34], Plaintiffs’ Response [DE 39] and
Defendant’s Reply [DE 43]. The court has carefully considered all of these filings and the
record in this case, and is otherwise fully advised in the premises.
Plaintiffs filed this action alleging various violations of the Americans with
Disabilities Act (“ADA”) in many of Defendant’s retail locations within the State of
Florida. The Complaint alleged specific ADA violations in 18 locations within the
Southern District of Florida, but also listed approximately 300 other locations within
Florida as containing similar violations. Complaint, ¶¶ 10, 13. Plaintiffs later moved to
amend the Complaint to include 20 additional stores in the section of the proposed
Amended Complaint that contained the more specific allegations found during the Rule
34 inspections. Amended Complaint, ¶ 13 [DE 41]. The Court granted this motion over
Defendant’s opposition.1 In the meantime, the parties each moved for summary
A. Summary Judgment Standard
The Court may grant summary judgment “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The movant “always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To
discharge this burden, the movant must point out to the Court that “there is an absence
of evidence to support the non-moving party’s case.” Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts and the non-moving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Federal
Rule of Civil Procedure 56(e), “[i]f a party fails to properly support an assertion of fact or
fails to properly address another party’s assertion of fact [the Court may] grant
summary judgment if the motion and supporting materials – including the facts
considered undisputed – show that the movant is entitled to it.” Fed. R. Civ. P. 56(e)(3).
This Order also allowed Defendants additional time to pursue discovery on the
At the summary judgment stage, the judge’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In
making this determination, the Court must decide which issues are material, and “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. at 248.
B. Cross-Motions – Standing
Plaintiffs’ motion seeks partial summary judgment on the issue of liability for the
ADA violations, relying upon their Amended Complaint and their experts’ inspections of
the property. Exhibits 1 to 6 to Plaintiffs’ Motion [DE 32-1 to 32-6]. In opposition to the
motion, Defendants contend that “a genuine issue of material fact exists as to whether
Plaintiffs personally encountered any of the alleged barriers identified in either [the
expert’s] reports or in Plaintiffs’ Complaint.” Defendant’s Response in Opposition at 5
[DE 38]. However, Defendant separately filed a motion seeking summary judgment on
the grounds that Plaintiffs lacked standing because they had “no evidence to
substantiate their contention that they personally encountered any barriers to access at
any of the 304 locations identified in their Complaint.” Defendant’s Motion at 2.
Both motions raise the issue of standing. In order to have standing to bring a
lawsuit, an ADA plaintiff must suffer injury in fact from the alleged forms of
discrimination. Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1365
(S.D. Fla. 2001). In order to suffer injury in fact, a plaintiff must have actual knowledge
of the discrimination, either through personal experience or actual notice that the
discrimination occurs in a defendant’s facility. Id. Such knowledge normally must be
determined at the time of the filing of the complaint. Brother v. CPL Investments, Inc.,
317 F.Supp.2d 1358, 1368 (S.D. Fla. 2004). However, a private litigant need not
“engage in a futile gesture if the person has actual notice that a person or organization
covered by [Title III of the ADA] . . . does not intend to comply with its provisions.” 42
U.S.C. § 12188(a)(1); 28 C.F.R. § 36.501(a). “A plaintiff may have ‘actual notice’ under
this provision by either having ‘encountered discrimination or [having] learned of the
alleged violations through expert findings or personal observation.’” Resnick v. Magical
Cruise Co., 148 F. Supp. 2d 1298, 1302 (M.D. Fla. 2001) (quoting Parr v. L & L DriveInn Rest., 96 F. Supp. 2d 1065, 1081 (D. Haw. 2000)) (alteration in original).
Additionally, “a plaintiff lacks standing to seek injunctive relief unless he alleges facts
giving rise to an inference that he will suffer future discrimination by the defendant.”
Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001).
Plaintiffs attempt to rebut Defendant’s argument that no standing has been
proven by submitting affidavits in opposition to Defendant’s motion for summary
judgment. Affidavit of Peter DiPalma [DE 39-1] and William Norkunas [DE 39-2].
Plaintiffs then rely on these affidavits in their reply memorandum in support of their own
motion for partial summary judgment as to liability. Neither side references a deposition
of either Plaintiff.2
The Court recognizes that discovery was extended until January 13, 2012, as
to Plaintiffs’ standing under the ADA for the violations alleged as to the additional 20
locations included in ¶ 13 of the Amended Complaint. Order Granting Plaintiffs’ Motion
for Leave to Amend at 4 [DE 40].
1. Personal Knowledge and Chain Locations
Defendant argues that Plaintiffs have failed to provide sufficient evidence of
actual knowledge of physical barriers at many of its locations listed in the Amended
Complaint. Plaintiff DiPalma’s affidavit only mentions four specific locations that he has
visited. DiPalma Affidavit, ¶ 4. However, he also states that he has “personally
observed at these locations, as well as other Starbucks locations in Florida,” particular
ADA violations. Id., ¶ 5. Plaintiff Norkunas’ affidavit lists 14 locations that he has
personally visited (all different than the four DiPalma listed). Norkunas Affidavit, ¶ 4. He
also states that he has visited “other Starbucks locations in Florida,” as well as the
additional statement that he “frequently travel[s] to Starbucks locations throughout
Florida.” Id., ¶¶ 2, 5.
In addition to these factual assertions, Plaintiffs contend that ADA case law does
not require a plaintiff to prove actual knowledge of violations as to other locations of the
same national chain, particularly where alleged discriminatory policies apply to all
locations, such as the failure to have in place and enforce a corporate policy to provide
wheelchair disabled customers with access to an accessible table when that table is in
use by an able bodied person. Plaintiffs rely upon certain United States District Court
cases from California and Hawaii for this proposition. See Celano v. Marriott Int’l, Inc.,
Case No. C-05-4004-PJH, 2008 WL 239306 (N. D. Cal. January 28, 2008); Castaneda
v. Burger King Corp., 597 F.Supp.2d 1035 (N.D. Cal. 2009); and Parr v. Kapahulu
Investments, Inc., Case No. Civ. 98-00329-FIY, 2000 WL 687646 (D. Hawaii May 16,
2000). None of these cases are sufficient precedent for this Court to accept Plaintiffs’
argument at this time regarding the amount of evidence required to prove a claim of
ADA discrimination against a chain location not visited by a plaintiff or expert.
Defendant responds to the chain location argument by noting that at least one
district court has declined to follow the decisions relied upon by Plaintiffs. In Equal
Rights Center v. Abercrombie & Fitch Co., 767 F.Supp.2d 510, 527-28 (D. Md. 2010),
the court noted that the Castaneda decision appeared to be based upon a class action
claim, and that the Celano decision appeared to be based upon those plaintiffs
contacting numerous golf courses by telephone to reserve a single rider cart that none
of the Marriott courses kept on site. On the sparse record before this Court at this time
in this action, and given the lack of precedent from courts within the states covered by
the United States Court of Appeals for the Eleventh Circuit, the Court is not prepared to
accept Plaintiffs’ argument that standing can be found to assert ADA claims as to
Starbucks locations never visited by a plaintiff or expert. This conclusion is reached in
this case where the primary ADA issue is a policy regarding Starbucks’ employees’
obligation to ask patrons to move from a wheelchair accessible table, as opposed to the
policy in Celano regarding Marriott’s acknowledged failure to have single rider golf carts
at its golf courses. The Court will not grant summary judgment to either side at this
2. Personal Knowledge – Actual Notice
Defendant contends that Plaintiffs have failed to meet their burden to create a
genuine issue of material fact regarding their standing. However, unlike in this Court’s
Should this case proceed to a bench trial, both sides are encouraged to further
brief the issue of standing in the context of chain locations, with an emphasis on case
law from any United States Circuit Court of Appeals or United States District Courts
within Florida, Alabama or Georgia.
decision in Campbell v. Moon Palace, Inc., – F.Supp.2d –, 2011 WL 4389894 (S.D.
Fla. Sept. 21, 2011), Plaintiffs in this action have provided expert inspection reports
detailing particular violations, and have submitted affidavits that do create a genuine
issue of material fact regarding standing.4 In Campbell, the plaintiff identified only five
alleged ADA violations in his deposition, out of 37 alleged in his Complaint. The Court
concluded that Campbell had presented “no evidence that he had actual notice of all of
the violations alleged in his complaint.” Id. at *4. In the present action, Plaintiffs argue
that their actual notice as to violations at locations they did not visit was gained through
the expert’s inspection reports.
The Court concludes that both motions for summary judgment should be denied.
The case shall proceed following the amended deadlines previously entered
by this Court in its November 23, 2011 Order [DE 40].
Accordingly, it is ORDERED AND ADJUDGED as follows:
Plaintiffs’ Motion for Partial Summary Judgment [DE 32] is hereby DENIED;
Defendant’s Motion for Summary Judgment [DE 34] is hereby DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 4th day of January, 2012.
counsel of record listed on CM/ECF
The Court notes that it entered an order vacating the summary judgment and
reconsidering the standing decision in Campbell on December 15, 2011. Campbell v.
Moon Palace, Inc., Case No. 11-60274-Civ-JIC, Docket Entry 77.
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