Carrier v. Alvena, L.L.C. et al
ORDER & REASONS denying 28 Motion for Summary Judgment. Signed by Chief Judge Kurt D. Engelhardt on 6/5/2017. (mmm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NON-FLOOD PROTECTION ASSET
as successor to the former
BOARD OF COMMISSIONERS OF
THE SOUTHEASTERN LOUISIANA FLOOD
ROBERT RESOURCES, L.L.C;
ALVENA F. LUPO; ALVENA, L.L.C.;
M&O REALTY, INC.; AND
RICE & BRACKLEY PROPERTY, L.L.C.
SECTION: “N” (4)
ORDER AND REASONS
In this action, Plaintiff Stephen Carrier has sued various defendants under Titles II
and III of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. Specifically, Plaintiff,
who requires a wheelchair for mobility, seeks injunctive and other relief relative to architectural
sidewalk barriers allegedly precluding his access to the Subway restaurant and Goodwill store
located at 115 and 123 Robert E. Lee Boulevard, in New Orleans, Louisiana.
Presently before the Court is a motion for summary judgment (Rec. Doc. 28) filed
by the owner of those properties, Defendant M&O Realty, Inc. In support of its motion, M&O
maintains that Plaintiff's claims against it should be dismissed because it does not own, lease, or
operate the sidewalks adjoining its properties. Rather, M&O contends, the Board of Levee
Commissioners of Orleans Levee District is the owner of the sidewalks and, thus, is responsible for
ensuring their accessibility. For the reasons stated herein, IT IS ORDERED that the M&O's instant
motion for summary judgment is DENIED.1
I. Summary Judgment Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment
shall be granted "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 materiality of
facts is determined by the substantive law's identification of which facts are critical and which facts
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L.
Ed.2d 202 (1986). A fact is material if it "might affect the outcome of the suit under the governing
If the dispositive issue is one on which the nonmoving party will bear the burden of
proof at trial, the moving party may satisfy its summary judgment burden by merely pointing out
that the evidence in the record contains insufficient proof concerning an essential element of the
nonmoving party's claim. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325,
106 S. Ct. 2548, 2554, 91 L. Ed. 2d 265 (1986); see also Lavespere v. Liberty Mut. Ins. Co., 910
F.2d 167, 178 (5th Cir. 1990). Once the moving party carries its burden pursuant to Rule 56(a), the
nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the 'depositions,
answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a
genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S. Ct. 2553; see also Matsushita Elec. Indus.
Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed.2d 538 (1986);
Auguster v. Vermillion Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
As suggested by Plaintiff in opposing M&O's motion, if M&O and Non-Flood Protection
Asset Management Authority (as the successor to the Board of Levee Commissioners of Orleans Levee
District) were to agree that it is one of them that is responsible for any relief owed Plaintiff, the Court would
consider entertaining cross motions for summary judgment submitted for the purpose of determining that
issue. See Rec. Doc. 30, p. 5; see also Rec. Docs. 37 and 46.
When considering a motion for summary judgment, the Court views the evidence in
the light most favorable to the nonmoving party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th Cir.
2002), and draws all reasonable inferences in favor of that party. Hunt v. Rapides Healthcare
System, L.L.C., 277 F.3d 757, 764 (2001). Factual controversies are to be resolved in favor of the
nonmoving party, "but only when there is an actual controversy, that is, when both parties have
submitted evidence of contradictory facts." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (citations omitted). The Court will not, "in the absence of any proof, assume that the
nonmoving party could or would prove the necessary facts." See id. (emphasis in original) (citing
Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S. Ct. 3177, 3188, 111 L. Ed.2d 695 (1990)).
Although the Court is to consider the full record in ruling on a motion for summary
judgment, Rule 56 does not obligate it to search for evidence to support a party's opposition to
summary judgment. See Fed. R. Civ. P. 56(c)(3)("court need consider only the cited materials");
Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)("When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it in the response to the motion for
summary judgment, that evidence is not properly before the district court."). Thus, the nonmoving
party should "identify specific evidence in the record, and articulate" precisely how that evidence
supports his claims. Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871, 115
S. Ct. 195 (1994).
The nonmovant's burden of demonstrating a genuine issue is not satisfied merely by
creating "some metaphysical doubt as to the material facts," "by conclusory allegations," by
"unsubstantiated assertions," or "by only a scintilla of evidence." Little, 37 F.3d at 1075. Rather,
a factual dispute precludes a grant of summary judgment only if the evidence is sufficient to permit
a reasonable trier of fact to find for the nonmoving party. Smith v. Amedisys, 298 F.3d 434, 440 (5th
Considering the parties' submissions in light of the foregoing legal principles, the
Court finds that M&O, on the present showing made, has failed to bear its summary judgment
burden. Specifically, it is not sufficiently apparent to the Court, from a review of the entirety of the
transactional documents provided by the parties, that M&O necessarily is completely insulated from
any legal responsibility for the two sidewalk areas in question. In particular, the Court notes
language in Section III of the "Building Restrictions Applying to Lakeshore Subdivision" stating:
PUBLIC PARKING ADJOINING SQUARE No. 1
All of the parking areas surround and adjoining Square No.1 are
designated for the specific use of the public for parking and of the owners
of the commercial property known as Square No.1.  In consideration for
this designation, the owners of the Commercial property, known as Square
No. 1, will keep the improvements in these parking areas in repair and this
dedication shall run under covenant with the ownership title of Square No.
The document excerpt included in M&O's submission as page 22 of 25 also provides:
As part of the consideration hereof the vendor agrees to
complete all improvements, utilities, streets, sidewalks and paving
thereof . . . and more particularly in the front and rear of Square
Number 1 the public parking areas adjoining same[.] Thereafter, the
See Rec. Doc. 28-6 (emphasis added). The Building Restrictions (Rec. Doc. 28-6, pp. 1-2)
are attached, in M&O's submission, to the acts dated January 3, 1967 by which M&O obtained the properties
bearing municipal addresses 115 and 123 Robert E. Lee Boulevard, New Orleans, Louisiana. See Rec. Doc.
28-4, pp. 1-7; see also Rec. Doc. 28-3, pp. 2-3, ¶¶ VI and VIII; Rec. Doc. 53, ¶¶ III-IV.
purchaser herein in accordance with the restrictions applying to
Lakeshore Subdivision annexed hereto under the paragraph entitled
"Public Parking Adjoining Square Number 1," will keep the
improvements in these parking areas in repair."3
Although M&O ultimately may be able to demonstrate the merit of its position and obtain summary
relief, it has not thus far done so. Accordingly, its request for summary dismissal is denied.
New Orleans, Louisiana, this 5th day of June 2017.
KURT D. ENGELHARDT
United States District Judge
See Rec. Doc. 28-6, p. 22 (emphasis added); see also Rec. Doc. 29-4, p. 4.
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