Haynes v. Panda Express, Inc.

Filing 40

ORDER ON MOTION FOR RECONSIDERATION. Defendant's Motion for Reconsideration, ECF No. 34 , is GRANTED. The Complaint is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction due to mootness. Any scheduled hearings are CANCELLED, all pending mo tions are DENIED as moot, and all deadlines are TERMINATED. The Clerk of Court is directed to CLOSE this case. Signed by Judge Beth Bloom on 1/23/2018. (mc) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 17-cv-61567-BLOOM/Valle
DENNIS HAYNES,
Plaintiff,
v.
PANDA EXPRESS, INC.,
Defendant.
_____________________________________/
ORDER ON MOTION FOR RECONSIDERATION
THIS CAUSE is before the Court upon Defendant Panda Express, Inc. (“Panda”)’s
Motion for Reconsideration of the Court’s December 21, 2017 Order [DE 33] on Defendant’s
Motion to Dismiss Plaintiff’s Complaint [DE 13], filed under seal. ECF No. [34] (“Motion for
Reconsideration”).

The Court has carefully reviewed the Motion for Reconsideration, the

record, the parties’ briefs, and the applicable law. For the reasons set out below, the Motion is
granted and this matter is dismissed without prejudice.
I.

BACKGROUND
On August 7, 2017, Haynes filed a Complaint against Panda asserting violations of the

Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181. et seq., based on his claim that a
website owned and operated by Panda—located at www.pandaexpress.com (the “Website”)—is
inaccessible to visually impaired individuals such as himself.

See ECF No. [1].

In his

Complaint, Haynes requests a declaratory judgment that Defendant’s Website is not in
compliance with Title III of the ADA, an injunction that would require Defendant to alter its
website to make it fully accessible to the visually impaired, an order requiring evaluation of

Case No. 17-cv-61567-BLOOM/Valle
Defendant’s polies towards persons with disabilities, and an order requiring Defendant to
monitor its ongoing compliance with such polies and applicable law. See id. at 9–10.
On September 28, 2017, Defendant moved to dismiss the Complaint for lack of subject
matter jurisdiction, arguing that the case should be dismissed because Panda has already settled a
similar lawsuit in which Panda has agreed to modify its website to ensure that vision-impaired
persons can access the website. See ECF No [13] (“Motion to Dismiss”); see also Andres Gomez
v. Panda Express, No. 16-cv-24273 (S.D. Fla. 2017). Because the relief Plaintiff seeks here is
identical to the relief attained in the Gomez suit, Defendant argues that this case should be
dismissed because it is moot.
Plaintiff opposed the Motion to Dismiss on October 20, 2017. In his Opposition, Plaintiff
argues that the Gomez settlement cannot moot Plaintiff’s case because (1) Plaintiff was not a
party to that agreement; and (2) Defendant has failed to provide a copy of the settlement to the
Court and Plaintiff. On December 8, 2017, the Court ordered Defendant to file a copy of the
settlement agreement that formed the basis of its Motion to Dismiss by December 15, 2017.
Having not complied, on December 21, 2017, the Court denied Defendant’s Motion to Dismiss.
ECF No. [33]. Defendant subsequently filed the instant Motion for Reconsideration. Having
reviewed the settlement agreement and Plaintiff’s response to the motion, ECF No. [38], the
Court agrees with Panda and finds that Haynes’ Complaint is moot.
II.

DISCUSSION
A. Motion for Reconsideration
A motion for reconsideration requests the Court to grant “an extraordinary remedy to be

employed sparingly.” Burger King Corp. v. Ashland Equities, Inc., 181 F. Supp. 2d 1366, 1370
(S.D. Fla. 2002). A party may not use a motion for reconsideration to “relitigate old matters,

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raise argument or present evidence that could have been raised prior to the entry of judgment.”
Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quoting Michael Linet,
Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)). “This prohibition
includes new arguments that were ‘previously available, but not pressed.’ ” Id.(quoting Stone v.
Wall, 135 F.3d 1438, 1442 (11th Cir. 1998)) (per curiam) (motion to alter judgment properly
denied where plaintiffs waited until after case was dismissed to raise argument that Virginia law
applied, rather than Florida law).
Within this framework, however, a court may grant reconsideration when there is (1) an
intervening change in controlling law, (2) the availability of new evidence, and (3) the need to
correct clear error or prevent manifest injustice. See Hood v. Perdue, 300 Fed App’x 699, 700
(11th Cir. 2008).1 Thus, a motion to reconsider is “appropriate where, for example, the Court
has patently misunderstood a party, or has made a decision outside the adversarial issues
presented to the Court by the parties, or has made an error not of reasoning but of apprehension.”
Kapila v. Grant Thornton, LLP, No. 14-61194-CIV, 2017 WL 3638199, at *1 (S.D. Fla. Aug. 23,
2017) (quoting Z.K. Marine Inc. v. M/V Archigetis, 808 F. Supp. 1561, 1563 (S.D. Fla. 1992))
(internal quotation marks omitted).
In its Motion, Defendant requests reconsideration of the Court’s denial of its Motion to
Dismiss, explaining that counsel for Defendant failed to file the settlement agreement under seal
pursuant to the Court’s order due to administrative error. See ECF No. [34] at 2. The Motion
argues that “reconsideration is warranted to correct a clear error.” Id. at 3. In support,
Defendant notes that “due to an administrative error, the Gomez settlement agreement was
inadvertently filed under seal in the closed Gomez case on December 15, 2017.” Id. Defendant
1

The Court recognizes that, according to the Rules of the United State Court of Appeals for the Eleventh Circuit,
“[u]npublished opinions are not considered binding precedent, but they may be cited as persuasive authority.” 11th
Cir. R. 36-2.

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further states that counsel “only became aware of the oversight when she received the Court’s
Order in the instant case stating that the Defendant had failed to file the settlement agreement.”
Id. at 4.
Court disagrees that entry of its Order Denying the Motion to Dismiss was clear error on
the part of the Court. Defendant failed to comply with this Court’s Orders and states so clearly
in its Motion. However, a court may grant reconsideration to “prevent manifest injustice.” See
Hood, 300 Fed App’x at 700. Accordingly, the Court will review the Motion, and its decision on
the underlying Motion to Dismiss, under this lens.
B. The Motion to Dismiss for Lack of Jurisdiction Based on Mootness
“[A] case is moot when it no longer presents a live controversy with respect to which the
court can give meaningful relief. Al Najjar v. Ashcraft, 273 F.3d 1330, 1336 (11th Cir. 2001).
In ADA cases, “[a]n action becomes moot when ‘the challenged conditions have been remedied’
and there is no basis to conclude the plaintiff ‘will again be subjected to the same wrongful
conduct by [that particular] defendant.’ ” Haynes v. Outback Steakhouse of Florida, LLC, No.
0:17-CV-60851, 2017 WL 4284487, at *2 (S.D. Fla. Aug. 17, 2017) (dismissing for mootness
when prior identical action was already filed and settled in the Southern District of New York)
(quoting Access 4 All, Inc. v. Casa Marina Owner, LLC, 458 F. Supp. 2d 1359, 1365 (S.D. Fla.
2006), vacated and remanded on other grounds, 264 Fed. App’x 795 (11th Cir. 2008).
The circumstances of this case are on all fours with the circumstances of two recent cases
that, like this one, were filed by Plaintiff in this District. In Haynes v. Hooters of Am., LLC,
Haynes alleged that the website at issue was inaccessible to the blind and therefore operating in
violation of the ADA. No. 17-60663-CIV, 2017 WL 2579044, at *1 (S.D. Fla. June 14, 2017).
There, Defendant argued that the case was moot because of a “pre-existing remediation

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plan . . . [that it was] in the process of implementing[] as a result of a settlement between [the
defendant] and a different plaintiff in an earlier-filed suit.” Id. Judge Scola agreed with the
defendant and dismissed Haynes’ complaint for lack of jurisdiction due to mootness, and in
doing so, observed that Haynes’ complaint was “identical” to the complaint in the earlier-filed
case. Id. Similarly, in Haynes v. Brinker Int’l, Inc., this Court found Judge Scola’s reasoning
equally applicable and dismissed Haynes’ complaint for lack of jurisdiction due to mootness.
No. 17-CV-61265, 2017 WL 4347204, at *3 (S.D. Fla. Sept. 29, 2017). The Court observed:
As was the case in Hooters, Brinker has agreed to remedy, in accordance with the
binding settlement agreement reached in Gil, the inaccessibility issue Haynes
complains of in this lawsuit. In turn, nothing is left for this Court to determine.
Even if this lawsuit were successful, the Court could only order Brinker to do that
which it has already agreed and undertaken to do.
Id. at *2.
Having reviewed the settlement agreement filed under seal, the same reasoning applies
here. Haynes complains of lack of accessibility of Defendant’s website, and Defendants have
already agreed to remedy that non-compliance. In response to the Motion, Plaintiff argues that
certain terms of the settlement agreement fail to satisfy the more robust relief that Plaintiff’s
counsel might have attempted to negotiate. In particular, Plaintiff argues that the conditions of
compliance and ongoing monitoring are unsatisfactory because they do not provide requirements
which, in Plaintiff’s view, are specific enough to guarantee remediation of Defendant’s website.
While Plaintiff may believe that it might have been able to negotiate different terms upon
settlement, allowing this successive case to proceed would “sanction copycat lawsuits mimicking
cases that have already been concluded” and pave the way for the possibility of multiple—and
potentially conflicting—settlement agreements governing the same non-compliance. See Haynes
v. Outback Steakhouse of Florida, LLC, No. 0:17-CV-60851, 2017 WL 4284487, at *3 (S.D. Fla.

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Aug. 17, 2017). As observed by Judge Middlebrooks in Outback, “[t]he ADA’s drafters surely
did not intend such an absurd result.” Id. at *3.
The Court is sympathetic to Haynes’ experience accessing Defendant’s website. The
Defendant admits the website is noncompliant because Defendant has not yet completed
remediation per the settlement agreement. However, where, as here, the injunctive relief sought
by Plaintiff mirrors the relief already agreed to in the prior settlement, the second-filed complaint
must be dismissed as moot since Defendant “has agreed to remedy, in accordance with a binding
settlement agreement in the Gomez case, all of the website inaccessibility issues Haynes
complains of in this suit.” Hooters, 2017 WL 2579044, at *1; see also Al Najjar, 273 F.3d at
1336.
III.

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:
1.

Defendant’s Motion for Reconsideration, ECF No. [34], is GRANTED;

2. The Complaint is DISMISSED WITHOUT PREJUDICE for lack of jurisdiction
due to mootness;
3. To the extent not otherwise disposed of, any scheduled hearings are CANCELED, all
pending motions are DENIED as moot, and all deadlines are TERMINATED.
4. The Clerk of Court is directed to CLOSE this case.
DONE AND ORDERED in Chambers at Miami, Florida, this 23rd day of January, 2018.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

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Case No. 17-cv-61567-BLOOM/Valle
Copies to:
Counsel of Record

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