Smith v. Board of Commissioners of the Louisiana Stadium and Exposition District
Filing
87
ORDER AND REASONS - IT IS ORDERED that the [40, 41] motions for summary judgment, filed by Plaintiff Nancy Smith be and hereby are GRANTED IN PART with respect to Plaintiff's standing to seek injunctive relief under Title II of the ADA against D efendants the Louisiana Stadium and Exposition District and Kyle France, sued in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, and under Title III of the ADA against Defendant SMG. IT IS FURTHER ORDERED that the 45 motion for summary judgment, filed by Defendants SMG, the Louisiana Stadium and Exposition District, and France, be and hereby is DENIED IN PART with respect to Plaintiff's standing to sue for injunctive relief. Signed by Judge Susie Morgan. (bwn)
Case 2:17-cv-07267-SM-JCW Document 87 Filed 03/06/19 Page 1 of 15
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
NANCY SMITH,
Plaintiff
CIVIL ACTION
VERSUS
NO. 17-7267
BOARD OF COMMISSIONERS OF THE
LOUISIANA STADIUM AND EXPOSITION
DISTRICT, ET AL.,
Defendants
SECTION: “E” (1)
ORDER AND REASONS
Before the Court are (1) a motion for summary judgment, filed by Plaintiff Nancy
Smith, on her claims against Defendant SMG;1 (2) a motion for summary judgment, filed
by Smith, on her claims against Defendants the Louisiana Stadium and Exposition
District (“LSED”) and Kyle France;2 and (3) a motion for summary judgment, filed by the
LSED, France, and SMG.3 The motions are opposed.4 In this order, the Court addresses
only the parties’ arguments regarding Plaintiff’s standing to sue for injunctive relief.5 For
the reasons that follow, the Court GRANTS Plaintiff’s motions for summary judgment,
finding she has standing to seek injunctive relief under Title II of the ADA against the
LSED and France and under Title III of the ADA against SMG6 and DENIES Defendants’
R. Doc. 40.
R. Doc. 41. In her Amended Complaint, Plaintiff named the Board of Commissioners of the Louisiana
Stadium and Exposition District as a defendant based on her belief that the Board owned the MercedesBenz Superdome. R. Doc. 5. The Court granted her motion to substitute the Louisiana Stadium and
Exposition District as a defendant in place of the Board of Commissioners of the Louisiana Stadium and
Exposition District. R. Doc. 82.
3 R. Doc. 45.
4 R. Docs. 56, 57, 59.
5 The motions also address Plaintiff’s standing to sue for declaratory relief. At the pretrial conference in this
matter, Plaintiff’s counsel did not include a claim for declaratory relief when he listed the claims remaining
in the case. R. Doc. 70. As a result, the Court does not address Plaintiff’s standing to sue for declaratory
relief herein.
6 The motions also address Plaintiff’s claim for injunctive relief against SMG under the Louisiana Human
Rights Act, LA. REV. STAT. 51:2231 et seq. At the pretrial conference in this matter, Plaintiff’s counsel
represented Plaintiff seeks injunctive relief against SMG only under Title III. R. Doc. 70.
1
2
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motion for summary judgment on the same issues. The Court will address the remaining
portions of the motions in a separate order.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed. Plaintiff is an amputee who is disabled within
the meaning of the ADA.7 On April 2, 2016, she attempted to call the box office of the
Mercedes-Benz Superdome (“Superdome”) to purchase tickets for a Guns N’ Roses
concert, to be held on July 31, 2016.8 In reality, she contacted a representative of Box
Office Ticket Center LLC, who assured her the tickets she was purchasing were accessible
seats compliant with the ADA.9
The Superdome is owned by LSED and operated and managed by Defendant
SMG.10 SMG is responsible for coordinating events, including creating seating charts for
concerts.11 Ticketmaster LLC, not Box Office Ticket Center LLC, has the sole and exclusive
right to sell and distribute tickets for concerts at the Superdome. 12 SMG identifies
accessible seats in its seating chart for music concerts and submits that information to
Ticketmaster.13 SMG’s usual practice is to reserve additional ADA-accessible seats in case
a customer with a disability, but without a ticket for an accessible seat, requests to be
moved to an accessible seat.14 For the Guns N’ Roses concert, SMG reserved
approximately one hundred fifty-one accessible seats for this purpose.15
R. Doc. 69 at 9, ¶ 7(a) (uncontested material facts in pretrial order).
Id. at 10, ¶¶ 7(f)–(g).
9 Id. at ¶¶ 7(g)–(h).
10 Id. at ¶ 7(c).
11 Id. at ¶ 7(c)–(e).
12 Id. at 11, ¶ 7(k).
13 Id. at ¶ 7(m).
14 R. Doc. 45-2 at 4, ¶ 19; R. Doc. 59-1 at 5, ¶ 19.
15 R. Doc. 45-2 at 4, ¶ 24; R. Doc. 59-1 at 6, ¶ 24.
7
8
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Plaintiff’s ticket originally was bought from Ticketmaster LLC and resold on the
secondary market by Box Office Ticket Center LLC. The seat for which Plaintiff purchased
a ticket had not been designated by SMG as accessible.16 When Plaintiff and her daughter
arrived at the Superdome on the night of the concert, they sought assistance from a SMG
staffer to locate their seats.17 Plaintiff asked the staffer to remove the existing chair in the
space of her ticketed seat to permit her to park her wheelchair in its place.18 The staffer
told her the existing chair could not be removed.19 Plaintiff expressed safety concerns
about her being transferred out of her wheelchair into the existing chair, but eventually
agreed to do so.20 The SMG staffer took her wheelchair, which was returned to her after
the concert.21
Plaintiff resides in Hinds County, Mississippi, about 180 miles from the
Superdome.22 At deposition, Plaintiff testified she had been to the Superdome ten to
fifteen times and that the last time she went to the Superdome before the Guns N’ Roses
concert was in 2009.23 She has not returned to the Superdome since the concert.24
Plaintiff testified she bought tickets to a Bruno Mars concert at the Smoothie King Center,
but decided not to go because of her experience at the Guns N’ Roses concert.25 She
testified she “would like to” return to the Superdome if she were interested in an event,
but there had been no events since the Guns N’ Roses concert that had interested her.26
R. Doc. 69 at 10, ¶ 7(i).
Id. at 12, ¶ 7(t).
18 Id. at ¶ 7(u).
19 Id.
20 Id. at ¶ 7(v).
21 Id. at ¶¶ 7(w)–(x).
22 Id. at 9, ¶ 7(b); 13, ¶ 7(ff).
23 R. Doc. 40-4 at 45–46.
24 Id. at 115.
25 Id.
26 Id. at 118.
16
17
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On July 28, 2017, Plaintiff filed a complaint.27 She filed an amended complaint on
August 20, 2017.28 The Defendants remaining in the case are SMG, the LSED, and France,
in his official capacity as Chairman of the Board of Commissioners of the LSED. Plaintiff
brings (1) a claim for injunctive relief under Title II of the ADA against the LSED and
France, (2) a claim for injunctive relief under Title III of the ADA against SMG, (3) a claim
for damages under Title II of the ADA against the LSED and France, and (4) a claim for
damages under the LHRA against SMG.29 In this order, the Court addresses only the first
and second claims, under which Plaintiff seeks injunctive relief.
On December 24, 2018, Plaintiff filed a motion for partial summary judgment as
to SMG30 and a motion for partial summary judgment as to the LSED and France.31 She
argues she is entitled to judgment as a matter of law that she has standing to seek
injunctive relief.32 Defendants oppose.33 On December 26, 2018, Defendants SMG, the
LSED, and France filed a cross-motion for summary judgment on all of Plaintiff’s claims,
arguing they are entitled to judgment as a matter of law that Plaintiff does not have
standing to seek injunctive relief.34 Plaintiff opposes.35 With respect to the issue of
Plaintiff’s standing to seek injunctive relief under Title II of the ADA against the LSED
and France and Title III of the ADA against SMG, Plaintiff moves the Court to find she
has standing. Defendants move the Court to find she does not.36
R. Doc. 1.
R. Doc. 5.
29 R. Doc. 70 at 1–2.
30 R. Doc. 40.
31 R. Doc. 41.
32 R. Docs. 40, 41.
33 R. Docs. 56, 57.
34 R. Doc. 45.
35 R. Doc. 59.
36 Plaintiff and Defendants both cite the transcript of Plaintiff’s deposition testimony. R. Docs. 40-4, 45-2.
There are no material facts in dispute on the issue of standing.
27
28
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SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”37 “An issue is material if its resolution could affect the outcome of the action.”38
When assessing whether a material factual dispute exists, the Court considers “all of the
evidence in the record but refrain[s] from making credibility determinations or weighing
the evidence.”39 All reasonable inferences are drawn in favor of the non-moving party.40
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.41
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material fact.”
To satisfy Rule 56’s burden of production, the moving party must do one of two things:
“the moving party may submit affirmative evidence that negates an essential element of
the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the
nonmoving party’s evidence is insufficient to establish an essential element of the
nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must
be denied. If the moving party successfully carries this burden, the burden of production
then shifts to the non-moving party to direct the Court’s attention to something in the
FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
39 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see
also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
40 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
41 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy,
Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
37
38
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pleadings or other evidence in the record setting forth specific facts sufficient to establish
that a genuine issue of material fact does indeed exist. 42
If the dispositive issue is one on which the non-moving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the non-movant’s
claim, or (2) affirmatively demonstrating that there is no evidence in the record to
establish an essential element of the non-movant’s claim.43 If the movant fails to
affirmatively show the absence of evidence in the record, its motion for summary
judgment must be denied.44 Thus, the non-moving party may defeat a motion for
summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.” 45 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”46
Celotex, 477 U.S. at 322–24.
Id. at 331–32 (Brennan, J., dissenting).
44 See id. at 332.
45 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the
evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving
party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce
additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit
an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3.
46 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324;
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d
909, 915–16 & n.7 (5th Cir. 1992)).
42
43
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LAW AND ANALYSIS
Plaintiff brings claims for injunctive relief against the LSED and France under Title
II of the ADA and against SMG under Title III of the ADA. Plaintiff argues she has
standing to bring these claims.47 Defendants argue that, to establish standing to seek
injunctive relief, Plaintiff must show she “will once again purchase non-ADA accessible
tickets and then again fail to make a request to SMG to exchange or relocate her tickets to
an ADA accessible location.”48 Defendants also argue that, because Plaintiff lives
approximately 180 miles away from the Superdome and has admitted she has no concrete
or specific plans to return, she cannot show a “likelihood of substantial and immediate
irreparable injury,” meaning a likelihood she will be denied the benefits of future
Superdome events.49
The Court notes that, in opposition to Plaintiff’s motions for summary judgment
on standing, Defendants raise questions concerning the merits of Plaintiff’s ADA claims.50
When determining whether a plaintiff has Article III standing, the Court “must assume
arguendo the merits of his or her legal claim.”51 The merits of the claim include
substantive questions of liability.52 In the standing inquiry in this case, the Court does not
address the issue of whether Plaintiff can prove her case at trial. The Court assumes the
R. Doc. 41-1 at 12. In her motion for summary judgment on her claims against the LSED and France,
Plaintiff incorporates by reference her motion for summary judgment on her claims against SMG, in which
she argues she has standing to seek injunctive relief against SMG under Title III of the ADA, R. Doc. 40-1
at 12–18. Her motion on her claims against SMG does not analyze standing under Title II of the ADA or
address whether the analysis under Title II differs from the analysis under Title III.
48 Id. at 13.
49 R. Doc. 57 at 12.
50 R. Doc. 56 at 6–9, R. Doc. 57 at 6–11.
51 North Cypress Med. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (quoting Cole
v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007)); see also Parker v. D.C., 478 F.3d 370, 377 (D.C.
Cir. 2007), aff’d sub nom. D.C. v. Heller, 554 U.S. 570 (2008) (“[I]n reviewing the standing question, the
court must be careful not to decide the questions on the merits for or against the plaintiff, and must
therefore assume that on the merits the plaintiffs would be successful in their claims.”).
52 See North Cypress, 781 F.3d at 191 (not addressing liability in the standing inquiry).
47
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merits of Plaintiff’s ADA claims and confines its inquiry to whether she has established
the elements of standing. As a result, the Court will not address Defendants’ arguments
with respect to the merits of Plaintiff’s ADA claims.53
To survive a motion for summary judgment on standing, a plaintiff must “submit
affidavits or other evidence showing, through specific facts,” that each element of
standing is satisfied.54 In this case, Plaintiff attaches the transcript of her deposition
testimony in support of her argument that she has standing to seek injunctive relief. 55
Defendants do not offer evidence contradicting Plaintiff’s deposition testimony, and in
fact attach the same transcript to their motion for summary judgment.56 As a result, the
Court consults the transcript of Plaintiff’s deposition to determine whether she has
demonstrated she has standing to seek injunctive relief.
In Lujan v. Defenders of Wildlife, the Supreme Court laid out the general
requirements for plaintiffs, whether seeking damages or injunctive relief, to establish
standing under Article III of the Constitution.57 “To satisfy Article III’s standing
requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete
and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”58
R. Doc. 45-1 at 9–10, R. Doc. 56 at 6–9, R. Doc. 57 at 7 – 11.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992).
55 R. Doc. 40-4.
56 R. Doc. 45-6.
57 504 U.S. at 560–61.
58 Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing
Lujan, 504 U.S. at 560–61).
53
54
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“The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing
these elements.”59
The only prong at issue in this case is the first prong, injury-in-fact.60 A plaintiff
seeking injunctive relief, unlike a plaintiff seeking damages, must establish more than the
existence of a “past wrong” to satisfy the injury-in-fact requirement.61 Instead, a plaintiff
must “show that he has sustained or is immediately in danger of sustaining some direct
injury as the result of the challenged conduct.”62
Title II of the ADA authorizes plaintiffs to seek injunctive relief against public
entities generally,63 and Title III of the ADA authorizes plaintiffs to seek injunctive relief
against places of public accommodation operated by private entities.64 The Supreme
Court has not addressed the injury-in-fact requirement under either title. The Fifth
Circuit addressed the legal standard for establishing an injury-in-fact for a Title II ADA
claim in Frame v. City of Arlington.65 Rather than laying out a separate legal standard for
analyzing the injury-in-fact prong of claims for injunctive relief under the ADA, the Fifth
Circuit applied prior Supreme Court and Fifth Circuit caselaw regarding the injury-in-fact
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016).
Defendants base their argument that Plaintiff does not have standing to seek injunctive relief on their
argument that she has not shown a “likelihood of substantial and immediate irreparable injury or any
realistic intent to return.” R. Doc. 56 at 9, R. Doc. 57 at 12. The Fifth Circuit has analyzed the likelihood of
irreparable injury and intent to return to a public accommodation under the “injury in fact” prong of the
Lujan test. See, e.g., Deutsch v. Travis Cty. Shoe Hosp., Inc., 721 F. App’x 336, 341 (5th Cir. 2018)
(unpublished); Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011).
61 Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir. 1998) (“Past wrongs do not in themselves
amount to that real and immediate threat of injury necessary to make out a case or controversy.””)(quoting
City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)) (internal ellipsis omitted).
62 Id. (quoting Lyons, 461 U.S. at 109) (internal ellipsis omitted).
63 42 U.S.C. § 12133 (incorporating into Title II of the ADA the remedial scheme of the Rehabilitation Act,
29 U.S.C. § 794a, which permits claims for damages and injunctive relief).
64 42 U.S.C. § 12188 (incorporating into Title III of the ADA the remedial scheme of Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a-3, which permits only actions for injunctive relief).
65 657 F.3d at 235–36 n.100–03. The Fifth Circuit had previously addressed standing in the ADA context in
Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir. 1997). The plaintiff in Plumley died before the
suit was resolved. Id. at 310. The court held the plaintiff could not establish standing to seek injunctive relief
because he could not be wronged again. Id. at 312.
59
60
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prong in general. Although Frame was a Title II case, it relies for its reasoning on Title III
cases from other circuits without suggesting a different standard applies under Title II or
Title III.66 As a result, in this case, the Court relies on Frame to analyze Plaintiff’s standing
to seek injunctive relief under both Title II and Title III.67
Plaintiff urges the Court not to rely solely on Frame,68 but instead to follow the
Second Circuit’s decision in Kreisler v. Second Ave. Diner Corp., which lays out a test for
analyzing the injury-in-fact prong for injunctive claims specific to Title III of the ADA.69
The Kreisler court stated that standing under the ADA exists in cases in which “(1) the
plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the
discriminatory treatment would continue; and (3) it was reasonable to infer, based on the
past frequency of plaintiff’s visits and the proximity of defendants’ restaurants to
plaintiff’s home, that plaintiff intended to return to the subject location.”70 As noted, the
Supreme Court has not addressed the legal standard for plaintiffs to establish standing to
seek injunctive relief against a public accommodation under Title II or Title III of the
ADA, and the federal courts of appeal addressing the issue have adopted varying
approaches. Some courts, including the Second Circuit in Kreisler, apply an “intent to
return” test, requiring plaintiffs to show they intend to return to the place of public
accommodation.71 Others apply a “deterrent effect” test, which is a “broader conception
657 F.3d at 236 n.104 (citing Disabled Americans For Equal Access, Inc. v. Ferries Del Caribe, Inc., 405
F.3d 60, 64 (1st Cir. 2005) (Title III case); Pickern v. Holiday Quality Foods, Inc. 293 F.3d 1133, 1136–37
(9th Cir. 2002) (same)).
67 In its unpublished opinion in Deutsch, which was a Title III case, the Fifth Circuit stated that Frame was
not controlling because it was a Title II case, but proceeded to cite the legal standard from Frame and
distinguish the facts of Frame. 721 F. App’x at 340–41. The Deutsch court did not address whether or how
the legal standard for standing under Title II differs from the standard under Title III. Id.
68 R. Doc. 40-1 at 13.
69 731 F.3d 184, 187–88 (2d Cir. 2013).
70 Id.
71 See Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (holding ADA plaintiffs challenging
architectural barriers in a building not compliant with the ADA “must at least prove knowledge of the
66
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of injury”72 under which plaintiffs need only show they were deterred from visiting the
public accommodation.73 Still other courts apply a hybrid of the two approaches.74 The
Fifth Circuit has not clearly adopted either test. The Fifth Circuit has not cited Kreisler,
and only one district court in the circuit has adopted the Kreisler test.75
In Frame, plaintiffs were wheelchair users who alleged certain inaccessible
sidewalks “ma[d]e it dangerous, difficult, or impossible for them to travel to a variety of
public and private establishments.”76 They sought injunctive relief from the City of
Arlington, Texas under Title II.77 The City argued plaintiffs lacked standing to challenge
sidewalks they had not personally encountered.78
The Fifth Circuit in Frame explained:
Mere “some day” intentions to use a particular sidewalk, “without any
description of concrete plans,” does not support standing. But “imminence”
is an “elastic concept” that is broad enough to accommodate challenges to
at least some sidewalks that a disabled person has not personally
encountered. For example, a plaintiff may seek injunctive relief with respect
to a soon-to-be-built sidewalk, as long as the plaintiff shows a sufficiently
high degree of likelihood that he will be denied the benefits of that sidewalk
once it is built. Similarly, a disabled individual need not engage in futile
gestures before seeking an injunction; the individual must show only that
an inaccessible sidewalk actually affects his activities in some concrete
way. On remand, the district court will be able to apply established standing
doctrine to weed out any hypothetical claims. At this point, however, the
plaintiffs have alleged in detail how specific inaccessible sidewalks
barriers and that they would visit the building in the imminent future but for those barriers”).
72 Jones v. My Investments LLC of MS, No. CV 16-1850, 2016 WL 4131284, at *3 (E.D. La. Aug. 3, 2016).
73 See Pickern, 293 F.3d at 1136–37 (“[O]nce a plaintiff has actually become aware of discriminatory
conditions existing at a public accommodation, and is thereby deterred from visiting or patronizing that
accommodation, the plaintiff has suffered an injury.”)). The First Circuit also has adopted this approach.
Ferries Del Caribe, Inc., 405 F.3d at 64 (“‘[A] disabled individual who is currently deterred from patronizing
a public accommodation due to a defendant’s failure to comply with the ADA’ and ‘who is threatened with
harm in the future because of existing or imminently threatened noncompliance with the ADA’ suffers
actual or imminent harm sufficient to confer standing.”) (quoting id.).
74 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011) (holding a plaintiff can establish
standing to sue by either demonstrating he was deterred from returning to a facility or demonstrating he
suffered an injury by being denied the benefits of a facility, coupled with an intent to return).
75 Fultz v. Par., No. CV 16-001, 2016 WL 4479517, at *3 (E.D. La. Aug. 25, 2016).
76 657 F.3d at 221.
77 Id.
78 Id. at 235.
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negatively affect their day-to-day lives by forcing them to take longer and
more dangerous routes to their destinations. This is sufficient to support
their right to sue.79
The Frame court did not explicitly adopt either the “deterrent effect” test or the
“intent to return” test. However, the Fifth Circuit cited with approval First Circuit and
Ninth Circuit cases standing for the proposition that a showing of a deterrent effect is
sufficient to establish standing to seek injunctive relief.80 In light of Frame, district courts
in the Fifth Circuit have generally adopted the “deterrent effect” test in Title III cases
under the ADA.81 Because the Fifth Circuit has not clearly adopted either test, the Court
analyzes whether Plaintiff has standing to seek injunctive relief under Title II and Title
III of the ADA under both tests.
I.
“Deterrent Effect” Test
At deposition, Plaintiff testified that she had bought two tickets for a concert at the
Smoothie King Center, adjacent to the Superdome.82 She intended to go to the concert
with her daughter, and she was told over the phone the tickets were for accessible seats.83
She testified she chose not to go because she was “fearful.”84 When asked to be more
specific about what she feared would happen, she responded: “The exact same thing that
had happened with Guns N’ Roses. It would be hard getting in and out of; the crowd; I
would get to a spot, they would take my wheelchair away; the exact same thing that
Id. at 235–36 (citations omitted).
Id. at 236 n.104.
81 See, e.g., Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 584 (S.D. Tex. 2014) (“The Fifth Circuit
appears to have endorsed [the deterrent effect] theory.”) (quoting Kramer v. Lakehills S., LP, No. A-13-CA591 LY, 2014 WL 51153, at *4 (W.D. Tex. Jan. 7, 2014)). Cf. Jones v. My Investments LLC of MS, No. CV 161850, 2016 WL 4131284, at *3 (E.D. La. Aug. 3, 2016) (stating the deterrent effect test is a “broader
conception of injury in fact in the ADA context [that] is consistent with the express language of the ADA”).
82 R. Doc. 40-4 at 117.
83 Id.
84 Id.
79
80
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happened at Guns N’ Roses or any portion of it.”85 This is sufficient to show Plaintiff was
deterred from visiting the Superdome, which has concretely affected her life decisions.
Plaintiff cites the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., in support of the proposition that she need not “articulate a
specific date of expected future injury to have standing for prospective relief.” 86 In Friends
of the Earth, environmental organizations brought suit against the operator of a
wastewater treatment plant, alleging the defendant had illegally discharged pollutants
into waterways and seeking injunctive relief.87 The Supreme Court found the plaintiffs
had established an injury in fact sufficient to seek injunctive relief because members of
the plaintiff organizations had testified that they had used the area close to defendant’s
facility for recreational purposes, but no longer did so because of the discharges from the
facility.88 The Court held that the defendant’s pollution affected the plaintiffs’
“recreational, aesthetic, and economic interests.”89 The Court found “nothing
‘improbable’ about the proposition that a company’s continuous and pervasive illegal
discharges of pollutants into a river would cause nearby residents to curtail their
recreational use of that waterway and would subject them to other economic and aesthetic
harms” and further found this sufficient to establish injury in fact.90 Like in Friends of the
Earth, Plaintiff in this case has standing because the alleged discrimination affects her
recreational interests by deterring her from going to concerts at the Superdome. The
Court finds Plaintiff has standing to seek injunctive relief under the deterrent effect test.
Id.
R. Doc. 40-1 at 17.
87 528 U.S. at 176.
88 Id. at 182–83.
89 Id. at 184.
90 Id.
85
86
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II.
“Intent to Return” Test
Even under the “intent to return” test, Plaintiff has standing to seek injunctive
relief under Title II and Title III of the ADA. It is uncontested Plaintiff resides about 180
miles from the Superdome and that she has no concrete or specific plans to return to the
Superdome.91 However, she testified at deposition she had been to the Superdome ten to
fifteen times.92 She also testified she “would like to” return to the Superdome if she were
interested in an event, but there had been no events since the Guns N’ Roses concert that
had interested her.93 This is sufficient to show Plaintiff had more than “mere some day
intentions” to return.94
Defendants cite the Fifth Circuit’s unpublished decision in Deutsch v. Travis Cty.
Shoe Hosp., Inc.95 in support of their argument that Plaintiff does not have standing
because she has not shown she intends to return to the Superdome.96 In Deutsch, the Fifth
Circuit found the plaintiff did not have standing to sue because he had “not provided a
description of any concrete plans to return” to the shoe store, and he had not “shown how
the alleged ADA violations negatively affect his day-to-day life.”97 Noting the plaintiff’s
testimony that he had never been to the shoe store prior to the visit in question and had
not returned since, the court found he “‘perhaps’ had an intention of returning to the
business but had no specific intention of doing so.” 98 Defendants argue the Fifth Circuit
endorsed the “intent to return” approach in Deutsch. Unlike the plaintiff in Deutsch,
R. Doc. 69 at 9, ¶ 7(b); 13, ¶ 7(ff).
R. Doc. 40-4 at 45–46.
93 Id. at 118.
94 Frame, 657 F.3d at 236.
95 721 F. App’x 336 (5th Cir. 2018)
96 R. Doc. 57 at 12.
97 721 F. App’x at 340.
98 Id. at 340–41.
91
92
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Plaintiff in this case had visited the Superdome on multiple occasions prior to the Guns
N’ Roses concert and, although she has not made any definite plans to return to the
Superdome, she expressed a clear intent to do so. As a result, the Court finds Plaintiff also
has standing to seek injunctive relief under the “intent to return” test. 99
CONCLUSION
IT IS ORDERED that the motions for summary judgment, filed by Plaintiff
Nancy Smith be and hereby are GRANTED IN PART with respect to Plaintiff’s standing
to seek injunctive relief under Title II of the ADA against Defendants the Louisiana
Stadium and Exposition District and Kyle France, sued in his official capacity as
Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition
District, and under Title III of the ADA against Defendant SMG.100
IT IS FURTHER ORDERED that the motion for summary judgment, filed by
Defendants SMG, the Louisiana Stadium and Exposition District, and France, be and
hereby is DENIED IN PART with respect to Plaintiff’s standing to sue for injunctive
relief.101
New Orleans, Louisiana, this 6th day of March, 2019.
________________________ _______
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
Because the Court finds Plaintiff has standing to seek injunctive relief, the Court does not address her
argument regarding her standing to sue because she is allegedly an ADA tester, R. Doc. 40-1 at 18.
100 R. Docs. 40, 41. Although Plaintiff has standing to seek injunctive relief, the Court has found the LSED
and France are entitled to sovereign immunity. R. Doc. 88.
101 R. Doc. 45.
99
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