Gaylor v. Arbor Place II, LLC et al
Filing
37
ORDER AND OPINION denying without prejudice 17 Motion to Dismiss. If Sears wishes to re-file a motion to dismiss, it is ordered to do so by Monday, November 4, 2013. Signed by Judge Julie E. Carnes on 9/30/13. (ekb)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
GARY GAYLOR,
Plaintiff,
CIVIL ACTION NO.
v.
1:13-cv-00068-JEC
ARBOR PLACE, II, LLC, ARBOR
PLACE LIMITED PARTNERSHIP,
BELK, INC., SEARS, ROEBUCK and
COMPANY, and DILLARD’S, INC.,
Defendants.
ORDER & OPINION
This case is before the Court on defendant Sears, Roebuck, and
Company’s (“Sears”) Motion to Dismiss, or, Alternatively, for Summary
Judgment (“Motion to Dismiss”) [17].
The Court has reviewed the
record and the arguments of the parties, and, for the reasons set out
below, concludes that Sears’s Motion to Dismiss [17] should be DENIED
WITHOUT PREJUDICE.
BACKGROUND
This is an action for declaratory judgment and injunctive relief
against defendants pursuant to Title III of the Americans with
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Disabilities Act (“ADA”).
[21] at ¶ 1).
42 U.S.C. §§ 12181 et seq.; (Am. Compl.
Plaintiff Gary Gaylor is a resident of White County,
Georgia who has multiple sclerosis and is disabled as a result. (Id.
at ¶ 3-4.)
Plaintiff’s multiple sclerosis affects his ability to
walk, requiring him to use a cane or a wheelchair for mobility,
depending on how badly his disability affects him on a particular
day.
(Id. at ¶ 5.)
On May 2, 2012 plaintiff filed a lawsuit against
multiple defendants, Sears among them, in the Eastern District of
Tennessee (the “Tennessee Action”) alleging violations of Title III
of the ADA.
(Pl.’s Resp. to Def.’s Undisputed Statement of Material
Facts [29-1] at ¶ 2); Gaylor v. Knoxville Ctr., LLC et al., Civil
Action No. 3:12-cv-00213 (E.D. Tenn. May 2, 2012).
On January 8, 2013 plaintiff filed a complaint in this Court
against defendants (the “Georgia Action”) alleging violations of
Title III of the ADA, including inaccessible parking, excessively
sloped curb cuts, and inaccessible routes through the property (the
“Georgia Action”).
(Compl. [1] at ¶ 17.)
On January 14, 2013
plaintiff and Sears settled the Tennessee Action by entering into a
confidential Settlement Agreement. (Pl.’s Resp. to Def.’s Undisputed
Statement of Material Facts [29] at ¶ 4 and Settlement Agreement
[18].)
Pursuant to the terms of the Settlement Agreement, plaintiff
dismissed the Tennessee Action with prejudice.
(Pl.’s Resp. to
Def.’s Undisputed Statement of Material Facts [29] at ¶ 8.)
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Sears
subsequently moved to dismiss the Georgia action.
(Def.’s Motion to
Dismiss [17].) Plaintiff filed a response [29] and amended complaint
[21].
DISCUSSION
I.
MOTION TO DISMISS STANDARD
In deciding a motion to dismiss, the Court assumes that all of
the allegations in the complaint are true and construes the facts in
favor of the plaintiff.
Randall v. Scott, 610 F.3d 701, 705 (11th
Cir. 2010). That said, in order to avoid dismissal a complaint “must
contain sufficient factual matter, accepted as true, to ‘state a
claim [for] relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
A claim is “facial[ly] plausib[le]” when
it is supported with facts that “allow[] the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.”
II.
Id.
JURISDICTION & APPLICABLE LAW
The Court has federal question jurisdiction over this action
because plaintiff alleges violations of the ADA.
28 U.S.C. § 1331
(1980); Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807-10
(1986).
Although plaintiff’s complaint is founded upon an alleged
violation of federal law, at issue in Sears’s Motion to Dismiss is a
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section of the Settlement Agreement that states that
Plaintiff hereby releases Defendant . . . from any and
all claims, causes, damages, demands, liabilities,
equities and any and all other claims, whether known or
unknown, from the beginning of the world to the date of
this Settlement Agreement, including, without limitation,
any and all claims pursuant to Title III of the ADA
regarding the property . . . such as the claims that were
asserted, or could have been asserted in the abovecaptioned action, provided that, this release shall in no
way limit Plaintiff’s or the Court’s ability to monitor
and enforce Defendant’s compliance with the terms of the
Settlement Agreement.
(Settlement Agreement [18] at ¶ 13.)
The nub of Sears’s argument is
that the Settlement Agreement’s release included plaintiff’s Georgia
Action, as he filed it before he executed the Settlement Agreement
with Sears and the Settlement Agreement covers all claims “from the
beginning of the world to the date of the Settlement Agreement.”
(See Mot. to Dismiss [17] at 4-8.) Plaintiff disagrees, arguing that
the release only applies to claims related to the property at issue
in the Tennessee Action.
(See Pl.’s Resp. in Opp’n [29] at 4-8.)
Because this Court sits in Georgia, it must apply Georgia’s
conflict-of-laws rules.
Trans Caribbean Lines, Inc. v. Tracor
Marine, Inc., 748 F.2d 568, 570 (11th Cir. 1984); Klaxon v. Stentor
Elec. Mfg. Co., Inc., 313 U.S. 487, 496 (1941); Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938).
Georgia applies the traditional
lex loci contractus rule, which “provides that when a contract is
made
and
to
be
performed
in
one
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state,
its
validity,
nature,
construction, and interpretation are governed by the substantive law
of that state.” Convergys Corp. v. Keener, 276 Ga. 808, 811-12
(2003); Farm Credit of Nw. Florida, ACA v. Easom Peanut Co., 312 Ga.
App. 374, 381 (2011).
Plaintiff
and
Sears
executed
the
Settlement
Agreement
in
Tennessee in order to settle litigation filed in the Eastern District
of Tennessee.
(See, e.g., Resp. in Opp’n [29] at Aff. of Att’y
Darren Ridenour.)
And while the Settlement Agreement’s release may
or may not apply to actions in other states, the contract references
the Tennessee property and dictates repairs to be performed upon it.
(See, e.g. Settlement Agreement [18] at ¶¶ 1, 13.)
For these
reasons, the Settlement Agreement is governed by Tennessee law.1
Despite Tennessee law governing the Settlement Agreement, Sears
relies upon Georgia law in its Motion to Dismiss.
(See, e.g., Mot.
to Dismiss [17] at 5-6 (citing Norfolk S. Corp. V. Chevron, U.S.A.,
Inc., 371 F.3d 1285 (11th Cir. 2004), Farese v. Scherer, 297 F.App’x
923 (11th Cir. 2008), and W.J. Perryman & Co. v. Penn. Mut. Fire Ins.
Co., 324 F.2d 791 (5th Cir. 1963).)
Resolution of this action
depends upon a determination whether the release–-particularly the
phrase “Plaintiff hereby releases Defendant . . . from any and all
1
The Settlement Agreement does not include a choice of law
provision.
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claims . . . whether known or unknown, from the beginning of the
world to the date of the Settlement Agreement, including, without
limitation, any and all claims pursuant to Title III of the ADA
regarding the Property”-–applies to claims unrelated to the Tennessee
Action.
(Settlement Agreement [18] at ¶ 13) (emphasis supplied).
This determination requires application of Tennessee law, which
Sears has not provided.
See, e.g., In re Girton, Oakes & Burger,
Inc., 326 B.R. 901, *6 (B.A.P. 6th Cir. 2005) (“Because ‘including’
‘means
the
same
thing’
as
‘including
without
limitation,’
the
sentence does in fact provide that the list is nonexclusive.”);
Capitol Indem. Corp. v. Braxton, 24 F.App'x 434, 442 (6th Cir. 2001)
(“Instead, the term ‘includes’ indicates a partial or incomplete
list, in which ‘operation’ and ‘loading and unloading’ are only two
possible examples of what the term ‘use’ encompasses.”); Black's Law
Dictionary 931 (9th ed. 2009) (“The participle including typically
indicates a partial list.”); and Black's Law Dictionary 1120 (9th ed.
2009) (“The term [namely] indicates what is to be included by name.
By contrast, including implies a partial list and indicates that
something
is
not
listed.”).
To
maintain
a
Motion
to
Dismiss
regarding the Settlement Agreement, Sears must cite to Tennessee law.
If Sears wishes to re-file a motion to dismiss, it may do so by
Monday, November 4, 2013.
Plaintiff will then have until Wednesday,
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November 20, 2013 to file a response.
CONCLUSION
For the foregoing reasons, the Court DENIES WITHOUT PREJUDICE
Sears’s Motion to Dismiss [17].
If Sears wishes to re-file a motion
to dismiss, it is ordered to do so by Monday, November 4, 2013.
SO ORDERED, this 30th day of September, 2013.
/s/ Julie E. Carnes
JULIE E. CARNES
CHIEF UNITED STATES DISTRICT JUDGE
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