Reimer v. Kuki'o Golf And Beach Club, Inc. et al

Filing 53

ORDER GRANTING 45 DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT: "On the basis of the foregoing, Defendants' Motion for Partial Summary Judgment, filed on March 11, 2013, is HEREBY GRANTED. Summary judgment is GRANTED as to Cou nt I of the Complaint. IT IS SO ORDERED." Signed by JUDGE LESLIE E. KOBAYASHI on April 11, 2013. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JEFFREY REIMER, an
individual,

)
)
)
Plaintiff,
)
)
vs.
)
)
KUKI’O GOLF AND BEACH CLUB,
)
INC., a Hawaii corporation;
)
MELANIE AIONA, an individual; )
DOES 1-10; and ROE
)
CORPORATIONS 1-10,
)
)
Defendants.
)
_____________________________ )

CIVIL 12-00408 LEK-BMK

ORDER GRANTING DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT
Before the Court is Defendants Kuki’o Golf and Beach
Club, Inc. (“the Club”), and Melanie Aiona’s (collectively,
“Defendants”) Motion for Partial Summary Judgment (“Motion”),
filed on March 11, 2013.

[Dkt. no. 45.]

Plaintiff

Jeffrey Reimer (“Reimer”) filed a memorandum in opposition to the
Motion on March 27, 2013, [dkt. no. 49,] and the Club filed its
reply on March 29, 2013.

[Dkt. no. 51].1

The Court finds this

matter suitable for disposition without a hearing pursuant to
Rules LR7.2(d) and LR74.2 of the Local Rules of Practice of the
United States District Court for the District of Hawai`i (“Local
1

In their reply, Defendants move to strike Reimer’s
declaration, attached as Exhibit 1 to Reimer’s memorandum in
opposition to the Motion. [Dkt. no. 51.] The Court denies
Defendants’ request to strike the declaration.

Rules”).

After careful consideration of the Motion, supporting

and opposing memoranda, and the relevant legal authority, the
Court HEREBY GRANTS the Motion for the reasons set forth below.
BACKGROUND
The relevant factual and procedural background in this
case is set forth in this Court’s February 7, 2013 Order Granting
in Part and Denying in Part Plaintiff’s Motion for Summary
Judgment.

2013 WL 504866.
In the instant Motion, Defendants argue that Reimer’s

claim for violation of the Americans with Disabilities Act
(“ADA”) (Count I of the Complaint) should be dismissed because
the Club is a private club and thus not subject to the ADA.
STANDARD
Summary judgment shall be granted if the evidence
supporting the motion for summary judgment shows that “there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.”
Civ. P. 56(c).

Fed. R.

A party moving for summary judgment may carry its

initial burden by pointing out to the district court that there
is an absence of a genuine issue of material fact.
v. Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp.

“The plain language of

Rule 56(c) mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an

2

element essential to that party’s case, and on which that party
will bear the burden of proof at trial.”

Id. at 322.

If the

non-moving party bears the burden of proof at trial, the moving
party may carry its burden by showing an absence of evidence to
support the non-moving party’s case.

Id. at 323.

Here, Reimer

bears the burden of producing evidence sufficient to defeat
summary judgment regarding Defendants’ alleged ADA violation, as
he would bear the burden of proving that violation at trial.
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1048 (9th Cir. 2008).
To avoid summary judgment, the non-movant must set
forth specific facts showing that there remains a genuine issue
of material fact for trial.

Celotex, 477 U.S. at 324.

The

non-movant “may not rest upon the mere allegations or denials of
the adverse party's pleading.”

A factual dispute is “genuine” if

a reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

The

evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in the non-movant’s favor.
255.

Id. at

If the nonmoving party’s evidence is merely colorable or is

not significantly probative, then summary judgment may be
granted.

Id. at 249–50.
DISCUSSION
Title III of the ADA provides:
No individual shall be discriminated against on
the basis of disability in the full and equal
enjoyment of the goods, services, facilities,
3

privileges, advantages, or accommodations of any
place of public accommodation by any person who
owns, leases (or leases to), or operates a place
of public accommodation.
42 U.S.C. § 12182(a).

Defendants seek dismissal of Reimer’s

Title III claim because they claim that the Club is not a “place
of public accommodation.”

This Court agrees.

Title III includes an exhaustive list of private
entities that are nevertheless considered “places of public
accommodation” for purposes of the ADA.

The list includes, inter

alia:
(A) an inn, hotel, motel, or other place of
lodging . . .;
(B) a restaurant, bar, or other establishment
serving food or drink;
(C) a motion picture house, theater, concert hall,
stadium, or other place of exhibition or
entertainment;
(D) an auditorium, convention center, lecture
hall, or other place of public gathering;
. . .
(L) a gymnasium, health spa, bowling alley, golf
course, or other place of exercise or recreation.
42 U.S.C. § 12181(7)(L).
Section 12187 of the ADA states that “[t]he provisions
of [Title III] shall not apply to private clubs or establishments
exempted from coverage under Title II of the Civil Rights Act.”
42 U.S.C. § 12187.

Title II of the Civil Rights Act, in turn,

exempts from coverage any “private club or other establishment
4

not in fact open to the public.”

42 U.S.C. § 2000a(e); see also

Clegg v. Cult Awareness Network, 18 F.3d 752, 755 n. 3 (9th Cir.
1994) (“Only when the facilities are open to the public at large
does Title II govern.”).

As such, the determination of whether a

facility is a “public accommodation,” rather than a “private
club,” for purposes of coverage by the ADA turns on whether the
facility is open “indiscriminately to other members of the
general public.”

Jankey v. Twentieth Century Fox Film Corp., 14

F. Supp. 2d 1174, 1178 (C.D. Cal. 1998), aff’d 212 F.3d 1159 (9th
Cir. 2000); see also 42 U.S.C. § 12181(10) (covered public
transportation is that which “provides the general public with
general or special service . . .”); 28 C.F.R. §
36.308(a)(1)(ii)(B) (covered assembly areas must “provide lines
of sight and choice of admission prices comparable to those for
members of the general public”).
Among the factors courts consider in determining
whether a facility is genuinely “private,” and therefore exempt,
are the following: the selectivity of the group in admitting
members, the membership’s control over the operations of the
club, the history of the organization, the use of the facilities
by nonmembers, the purpose of the club’s existence, whether the
club advertises for members to the public, the club’s for-profit
or non-profit status, and the formalities observed by the club
(the existence of bylaws, meetings, membership cards, etc.).

5

Jankey, 14 F. Supp. 2d at 1179 (citing United States v. Lansdowne
Swim Club, 713 F. Supp. 785, 796–97 (E.D. Pa. 1989)).
In applying these factors to the Club here, the Court
concludes that it is a private club for purposes of Title III of
the ADA.

First, the Club’s membership process is selective.

Membership is by invitation only and the membership fee is quite
substantial; members must own a home in the Club community, as
well as pay quarterly fees.

In the Complaint, Reimer states that

he was required to contribute “over $180,000.00" to become a
member, and paid quarterly dues for the first quarter of 2012 in
the amount of $9,500.00.

[Compl. at ¶¶ 21-22.]

Further, the Club facilities are not available for use
by the general public.

[Motion, Affidavit of Michael Meldman

(“Meldman Aff.”) at ¶ 9.]

Only members, their spouses, and their

immediate families (children, parents, grandchildren, and
children’s spouses) are permitted to use the facilities.
Meldman Aff., Exh. 1 (Membership Plan) at 5-6.]

[Id.,

Members are

permitted to invite guests to use the Club facilities, but they
must pay a guest fee, and the Club has the authority to limit the
total number of guests permitted for each member per year.

[Id.

at 6.]
Reimer argues that the Club cannot be private because
nonmembers are invited onto the Club property “on a regular
basis.”

[Mem. in Opp., Decl. Of Jeffrey Reimer (“Reimer Decl.”)

6

at ¶ 8.]

Reimer further alleges that Club Management routinely

invites nonmembers onto the Club premises for various functions,
including golf tournaments, political speeches, fundraisers, and
parties.

[Id. at ¶¶ 12, 14.]

Reimer bears the burden of showing

a violation of the ADA; the unsupported claims made in his
declaration, absent more, cannot support a finding that nonmember
use of the Club is so pervasive as to make it a place of public
accommodation.

See Doran, 524 F.3d at 1148 (finding that a

plaintiff’s own testimony regarding defendant’s ADA compliance,
absent more, was insufficient to establish a factual issue and
overcome summary judgment).

Further, even taking Reimer’s

statements as true, occasional use of the Club facilities by
nonmembers invited by Club Management or Club members does not
convert the Club into a place of public accommodation under the
ADA.

See Jankey, 14 F. Supp. 2d at 1178 (“A private club with a

‘limited guest policy,’ in which guests are not permitted
‘unfettered use of facilities,’ is not a public accommodation for
purposes of the ADA, despite evidence of ‘isolated incidents’ in
which the limited guest policy was not followed.”)(citing Kelsey
v. University Club of Orlando, 845 F. Supp. 1526, 1529 (M.D. Fla.
1994)).
The other factors relevant to a determination as to
whether the Club is a place of public accommodation likewise
weigh in favor of a finding that the Club is private for purposes

7

of the ADA.

The Club is a non-profit entity offering equity

membership to those invited.
on Club business.
Plan) at 5.]

Equity members are entitled to vote

[Motion, Meldman Aff., Exh. 1 (Membership

Further, the Club does not appear to advertise its

facilities to the general public.

[Id., Meldman Aff. at ¶ 10.]

As such, the Court FINDS that the Club is not a place of public
accommodation for purposes of Title III of the ADA.
Under Celotex, 477 U.S. at 322, summary judgment is
proper against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at
trial.

That is the case here.

On this basis, the Court GRANTS

the Motion and FINDS that the Club is not a “place of public
accommodation” covered by the ADA.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Partial Summary Judgment, filed on March 11, 2013, is HEREBY
GRANTED.

Summary judgment is GRANTED as to Count I of the

Complaint.
IT IS SO ORDERED.

8

DATED AT HONOLULU, HAWAII, April 11, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

JEFFREY REIMER V. KUKI’O GOLF AND BEACH CLUB, INC., ET AL; CIVIL
NO. 12-00408 LEK-BMK; ORDER GRANTING DEFENDANTS’ MOTION FOR
PARTIAL SUMMARY JUDGMENT

9