Snyder v. Third Street Dive
Filing
48
MEMORANDUM AND OPINION by Senior Judge Charles R. Simpson, III on 8/18/14; A separate order will be entered in accordance with this opinion.cc:counsel (TG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
HOWARD STEPHEN SNYDER
v.
PLAINTIFF
CIVIL ACTION NO. 3:12-CV-00659-CRS
LADY SLINGS THE BOOZE, LLC
DEFENDANT
MEMORANDUM OPINION
This matter is before the Court on the following motions:
1) a renewed motion for partial summary judgment (DN 37) filed by
Plaintiff Howard Stephen Snyder (“Plaintiff”) against Defendant Lady
Slings the Booze, LLC (“Defendant”);
2) a motion to strike the renewed motion for partial summary judgment (DN
38) filed by Defendant;
3) a motion filed by Defendant for extension of time (DN 39) to file a
response to Plaintiff’s motion for partial summary judgment;
4) a motion to revise his original motion for partial summary judgment (DN
46) filed by Plaintiff.
For the reasons set forth below, the court will grant the motion for extension of time and hold the
renewed motion for partial summary judgment in abeyance pending receipt of Defendant’s
response thereto. All of the other motions submitted for decision will be denied as moot.
BACKGROUND
Unless otherwise indicated, the following facts are undisputed. Plaintiff suffers from
muscular dystrophy, a neurological disease which has caused him to suffer significant mobility
impairment requiring that he use a motorized wheelchair. On June 8, 2012, Plaintiff attempted to
gain access to “Third Street Dive,” a bar owned by Defendant, but was unable to negotiate the
four-inch step barrier separating the sidewalk from the saloon. Upon inquiry of the manager,
Plaintiff was informed that there was no ramp he could use to enter the premises. Although
Plaintiff had a portable ramp in his vehicle which he could have used to enter the bar, the
manager refused to allow him to enter. While Plaintiff claims that he was refused entry due to his
allegation that the step barrier violated the Americans with Disabilities Act (“ADA”), Defendant
claims that Plaintiff was refused entry because he appeared intoxicated, behaved belligerently,
and refused to pay the bar’s cover charge.
PROCEDURAL HISTORY
On October 15, 2012, Plaintiff filed the present action alleging discrimination and
retaliation in violation of the ADA. On September 15, 2013, Plaintiff moved for partial summary
judgment (DN 27) on his ADA discrimination claim, arguing that there was no genuine dispute
that the step barrier violated the ADA. On October 22, 2013, Defendant moved for summary
judgment on both the discrimination and the retaliation claim, arguing that: 1) the step barrier did
not violate the ADA to the extent that its removal was not readily achievable; and 2) Plaintiff
was not retaliated against because he was not denied admission to the bar because of his
disability or his allegation that the step barrier violated the ADA, but rather because of his
refusal to pay a cover charge and his allegedly intoxicated and belligerent behavior.
On May 21, 2014, we denied both motions for summary judgment. (DN 34). With respect
to the motion for summary judgment filed by Defendant, we held that there remained a genuine
dispute of material fact regarding whether the alternative accommodation of having a temporary,
portable ramp for use by wheelchair-bound patrons was “readily achievable” within the meaning
of the ADA. (DN 34 at 6). With respect to the motion for partial summary judgment filed by
Plaintiff, we held that summary judgment was inappropriate because Plaintiff had failed to
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support his motion with citations to materials contained in the record as required by FED. R. CIV.
P. 56(c). (DN 34 at 9).
On June 3, 2014, Plaintiff filed a renewed motion for partial summary judgment
supported by citations to the record. (DN 37). On June 9, 2014, Defendant filed a motion to
strike the renewed motion for summary judgment on the grounds that Plaintiff had failed to
obtain the Court’s permission to do so in accordance with FED. R. CIV. P. 56(e). (DN 38).
Alternatively, Defendant filed a motion for an extension of time to file its response to the
renewed motion for summary judgment. (DN 39). Apparently in response to Defendant’s
argument that Plaintiff was required to obtain the Court’s permission prior to submitting a
renewed motion for summary judgment, on July 6, 2014, Plaintiff filed a motion to amend his
original motion for summary judgment to permit the addition of citations to materials contained
in the record. (DN 46).
Having considered the parties’ briefs and being otherwise sufficiently advised, the Court
will now address the motions submitted for decision.
STANDARD
Before granting a motion for summary judgment, the Court must find that there is no
genuine issue of material fact such that the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of
establishing the nonexistence of any issue of material fact, Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986), a burden which may only be satisfied by “citing to particular parts of materials
in the record...” or “showing that the materials cited do not establish the absence or presence of a
genuine dispute.” Fed. R. Civ. P. 56(c)(1). If the moving party satisfies this burden, the burden of
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production shifts to the non-moving party, who must then identify evidence demonstrating the
existence of a genuine issue of material fact. See Celotex, 477 U.S. at 322.
In resolving a motion for summary judgment, the Court must view the evidence in a light
most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). However, 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).
Thus, “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). If the nonmoving party fails to satisfy its burden of counterproduction, the court must grant the motion for
summary judgment.
DISCUSSION
Once a dispositive motion has been ruled upon, it is within the court’s discretion whether
to consider a second motion concerning the same subject matter and seeking the same relief. See
Siemens Westinghouse Power Corp. v. Dick Corp., 219 F.R.D. 552, 554 (S.D. N.Y. 2004) (citing
Wechsler v. Hunt Health Sys., Ltd., 198 F.Supp.2d 508, 514 (S.D. N.Y. 2002)). Generally,
however, “A party may renew its motion for summary judgment as long as it is supported by
new material.” Wechsler v. Hunt Health Sys., Ltd., 198 F.Supp.2d 508, 514 (S.D. N.Y. 2002)).
Here, because Plaintiff’s renewed motion for partial summary judgment is supported by new
material to the extent that it contains citations to the record which were absent from his original
motion from summary judgment, the Court will exercise its discretion in favor of considering the
renewed motion for partial summary judgment. Accordingly, the Court will accept the filing of
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Plaintiff’s renewed motion for summary judgment and will therefore deny as moot Defendant’s
motion to strike and Plaintiff’s motion to amend his original motion for summary judgment.
Given that Defendant has yet to substantively respond to the motion for summary
judgment, the Court will grant Defendant’s motion for an extension of time to respond.
Accordingly, the renewed motion for partial summary judgment will be held in abeyance
pending the receipt of Defendant’s response thereto and Plaintiff’s reply, if any.
A separate order will be entered in accordance with this opinion.
C al R Smpo I , ei J d e
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August 18, 2014
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