MISSION WORKING DOGS et al v. BROOKFIELD PROPERTIES RETAIL INC et al

Filing 45

ORDER ON SUMMARY JUDGMENT granting in part and dismissing in part 34 Motion for Summary Judgment By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MISSION WORKING DOGS, et al.,
Plaintiffs,
v.
BROOKFIELD PROPERTIES
RETAIL, INC., et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 2:23-cv-00230-JAW

ORDER ON SUMMARY JUDGMENT
Disabled and non-disabled individuals and an organization sued both the
owner and the operator of a public accommodation, alleging disability discrimination
in violation of the Americans with Disabilities Act (ADA) and the Maine Human
Rights Act (MHRA), false imprisonment, and retaliation. The defendants jointly
moved for summary judgment on all claims. The court grants in part and dismisses
in part the defendants’ motion, concluding genuine disputes of material fact remain
and a reasonable jury could find in favor of the plaintiffs on the ADA, MHRA, and
false imprisonment claims, but dismissing the retaliation claim because defendants
have shown there is no genuine dispute as to any material fact and the movants are
entitled to judgment as a matter of law.
I.

PROCEDURAL HISTORY
On June 5, 2023, Mission Working Dogs (MWD), Christina Gardner, Andre

Beaudoin, Trina Beaudoin, Colleen Landry, Angelica Dwyer, Jolee Beattie, Anastasia
Ames, Joshua Gould, Theresa Brilliant, and Melanie Sparks (collectively, the

Plaintiffs) filed a four-count complaint 1 against Brookfield Properties Retail, Inc. and
GGP-Maine Mall, LLC (collectively, the Defendants) for public accommodation
discrimination in violation of the Americans with Disabilities Act (ADA) and the
Maine Human Rights Act (MHRA), false imprisonment, and retaliation under the
MHRA. Compl. (ECF No. 1). The Defendants answered the complaint on July 5,
2023. Defs.’ Answer to Compl. (ECF No. 6) (Answer).
On November 15, 2024, the Defendants filed a motion for summary judgment
and an accompanying statement of undisputed material facts. Def[s].’[] Mot. for
Summ. J. (ECF No. 34) (Defs.’ Mot.); Def[s].’[] Supporting Statement of Material Facts
in Support of [Their] Mot. for Summ. J. (ECF No. 35) (DSMF). On December 13,
2024, the Plaintiffs filed their joint opposition to the motion and their response to the
Defendants’ statement of material facts as well as their own statement of additional
facts. Pls.’ Opp’n to Defs.’ Mot. for Summ. J. (ECF No. 40) (Pls.’ Opp’n); Pls.’ Opp’n to
Defs.’ Statement of Material Facts in Support of Their Mot. for Summ. J. and
Additional Statement of Material Facts (ECF No. 41) (PRDSMF, PSAMF 2). The
Defendants filed their reply to the Plaintiffs’ opposition and their response to the
Plaintiffs’ statement of additional material facts on January 3, 2025. Defs.’ Reply to

Plaintiffs’ complaint describes the false imprisonment and retaliation claims as separate
causes of action but labels both as Count III. Compl. (ECF No. 1) at 15. The Court assumes this was
a typographical error and refers to the retaliation claim as the complaint’s Count IV.

1

The Plaintiffs included both their response to the Defendants’ Statement of Material Facts
(PRDSMF) and their statement of additional facts (PSAMF) in the same filing, which is proper. The
Court uses PRDSMF to refer to paragraphs 1-96 in ECF No. 41, and PSAMF to refer to paragraphs
97-154 within the same.

2

2

Pl.’s Obj. to Defs.’ Mot. for Summ. J. (ECF No. 42); id., Attach. 1, Defs.’ Reply to Pls.’
Statement of Additional Material Facts (DRPSAMF).
II.

STATEMENT OF FACTS
A.

The Parties

Defendant Brookfield Properties, Retail, Inc., is the property management
company responsible for operating the Maine Mall, a place of public accommodation
as defined by 42 U.S.C. § 12181(7)(E) and 5 M.R.S. § 4592. 3 DSMF ¶ 1; PRDSMF ¶

3
DSMF ¶ 1 says: “Defendant Maine Mall . . . is a private entity that owns a place of public
accommodation as defined under 42 U.S.C. § 12181(7)(E) and 5 M.R.S. §[ ]4592.” DSMF ¶ 1. The
PRDSMF concedes “that Defendants own and operate the Maine Mall, which [is] a place of public
accommodation as defined by both State and Federal law.” PRDSMF ¶ 1.

However, the Plaintiffs further qualify DSMF ¶ 1: “There is no Defendant in this case that
bears the name ‘Maine Mall.’ There are two Defendants in this case: Brookfield Properties, Retail,
Inc., which is the corporate entity that owns the real property that houses the ‘Maine Mall’ and GGPMaine Mall, LLC, which is a property management company that operates the ‘Maine Mall.’” Id.
The confusion over what should be an undisputed fact continues. PSAMF ¶ 125 says
“Brookfield Properties Retail, Inc. (BPR) is the Maine Mall’s property management company.” Id.
PSAMF ¶ 126 says “GGP-Maine Mall, LLC is the corporate entity that owns the real property in which
the Maine Mall . . . operates.” Id. The Defendants admit both facts. DRPSAMF ¶¶ 126, 127.
The record confirms the identity of the two Defendants in this case: Brookfield Properties
Retail, Inc. and GGP-Maine Mall, LLC; Maine Mall is not a Defendant. However, the Court is now
faced with facts in one filing asserting that BPR manages the Maine Mall and GGP owns the Maine
Mall, and facts in another filing asserting the opposite control structure.
To resolve the contradiction for purposes of the motion for summary judgment, the Court
looked to the Defendant’s answer to the complaint, which the Plaintiffs cite in support of their factual
assertions regarding the Defendants’ respective roles at the Maine Mall. PSAMF ¶¶ 125, 126. The
Defendants’ answer supports the Plaintiffs’ statement that BPR operates the Maine Mall and GGP
owns the real property known as the Maine Mall. Answer ¶¶ 11, 12. The Court takes the Defendants
at their word that they know their own identities and functions and recounts these facts as stated by
PSAMF ¶¶ 125, 126 and supported by the Defendants’ answer. “Ordinarily, statements in a complaint
are not part of the summary judgment record.” Doherty v. Donahoe, 985 F.Supp.2d 190, 195 (D. Mass.
2013) (citing Sheinkopf v. Stone, 927 F.2d 1259, 1262-63 (1st Cir. 1991)). Here, however, the Court
refers to the Defendant’s answer only to ensure that crucial background—such as who the Defendants
are—is provided. If the Court is wrong that the roles of the Defendants is reversed, the parties are
free to correct the record.

3

1; PSAMF ¶¶ 125-126, 128; DRPSAMF ¶¶ 126-127, 129. Defendant GGP-Maine
Mall, LLC, owns the real property that houses the Maine Mall. Id.
Plaintiff Mission Working Dogs is a nonprofit corporation with seven board
members, one paid employee (an administrative assistant), and fifty-three active
volunteers. DSMF ¶ 2; PRDSMF ¶ 2. MWD was founded in July of 2020 to address
the need for service and therapy dog training in Maine. PSAMF ¶ 98; DRPSAMF ¶
98. MWD’s mission is to support the community by training service dogs for veteran
and non-veteran individuals with mental and physical disabilities so that those
individuals can live more independently. 4 PSAMF ¶ 99; DRPSAMF ¶ 99.
Plaintiff Christina Gardner is the founder and President of MWD. DSMF ¶ 3;
PRDSMF ¶ 3.

Prior to starting MWD, Ms. Gardner was a dog trainer for

approximately ten years, training service animals, therapy dogs, and some pets.
PSAMF ¶ 97; DRPSAMF ¶ 97. Ms. Gardner has worked with service dog trainers in
multiple states as well as Walter Reed National Military Medical Center’s Warrior
Canine Connections. Id. Although universities in the United States offer service dog
training degrees, there is no official service dog training credential in the United
States and Ms. Gardner thus does not possess one. 5 Id. Ms. Gardner herself has
DRPSAMF ¶ 99 seeks to qualify this statement, noting at her deposition Ms. Gardner testified
MWD’s mission was to train service dogs for “those in need,” and not simply for anyone with a mental
or physical disability. Id. (citing DSMF, Attach. 1, Christina Gardner Dep. Tr. at 16:3-12 (Gardner
Dep. Tr.)). Ms. Gardner’s deposition transcript does use the language “those in need,” but it is clear
from the context of her statement that she is referring to those in need of service animals—in other
words, individuals with a mental or physical disability. The Court deems the statement as proffered
by PSAMF ¶ 99 admitted.
4

PSAMF ¶ 97 says, in disputed part, that Ms. Gardner “has no official service dog training
credential, but there isn’t one in the United States.” Id. (citing Gardner Dep. Tr. at 13:9-22, 40:1441:14). Defendants qualify that Ms. Gardner testified that while there is no accreditation, “different
Universities offer service dog training degrees.” DRPSAMF ¶ 97 (citing Gardner Dep. Tr. at 41:95

4

multiple disabilities and a disability rating from the United States Department of
Veterans Affairs (VA) of 100%. PSAMF ¶ 108; DRPSAMF ¶ 108. Her disabilities
include a traumatic brain injury (TBI), post-traumatic stress disorder (PTSD),
epilepsy, loss of several fingers, a spinal cord injury, and a double amputation below
the knee. Id. Ms. Gardner was wearing shorts on May 7, 2022, the day of the incident
giving rise to this case, so at least one of her disabilities was open and obvious to the
Maine Mall’s employees and agents.

PSAMF ¶ 109; DRPSAMF ¶ 109.

Since

approximately 2008 or 2009, Ms. Gardner has had a service dog. PSAMF ¶ 110;
DRPSAMF ¶ 110. Ms. Gardner’s first service dog was named Moxie; Douglas is her
current service dog and performs mobility assistance and PTSD-related tasks for Ms.
Gardner. Id.
Plaintiff Anastasia Ames is a disabled individual whose disabilities include
cyclical vomiting syndrome, anxiety, Ehlers-Danlos syndrome, and postural
orthostatic tachycardia syndrome (POTS). PSAMF ¶ 111; DRPSAMF ¶ 111. These
medical issues substantially limit Ms. Ames’s ability to move, endure temperature
swings, and leave her home, and she has two service dogs she generally takes with
her when she goes out. Id. The first, Kia, performs tasks for Ms. Ames that mitigate
the effects of her disabilities, including picking up items for her, finding things for
her, alerting her to heartrate spikes, making her sit down until she is safe, and
performing deep pressure therapy when Ms. Ames is anxious or undergoing an

41:7). Ms. Gardner’s deposition transcript reflects both statements and the Court amends PSAMF ¶
97 slightly to reflect the Defendants’ qualification.

5

episode of cyclical vomiting syndrome, and alerting Ms. Ames, who also has celiac
disease, to the presence of gluten. Id. Her second dog, Madrid, performs a majority
of the same tasks and additionally alerts Ms. Ames to chest pain before it occurs. Id.
Plaintiff Trina Beaudoin is a disabled individual whose disabilities include
memory challenges from a TBI, anxiety, and chronic depression. PSAMF ¶ 115;
DRPSAMF ¶ 116.
Plaintiff Andre Beaudoin is not disabled under the ADA or MHRA. DSMF ¶
7; PRDSMF ¶ 7.
Plaintiff Jolee Beattie is a disabled individual diagnosed with level 1 autism,
attention-deficit/hyperactivity disorder (ADHD), and an intellectual disability which
limit her major life activities. PSAMF ¶ 117; DRPSAMF ¶ 118.
Plaintiff Theresa Brilliant is a disabled individual with diagnosed disabilities
of ADHD, PTSD, anxiety, and depression. PSAMF ¶ 121; DRPSAMF ¶ 122. She has
a service dog, Buddy, who performs a number of disability-related tasks for her. Id.
Plaintiff Angelica Dwyer is Ms. Beattie’s Behavioral Health Professional
(BHP). PSAMF ¶ 118; DRPSAMF ¶ 119.
Plaintiff Joshua Gould has multiple disabilities, including PTSD, migraines,
and lateral instability of his knees. PSAMF ¶ 122; DRPSAMF ¶ 123. He has a
disability rating from the VA of 100%. Id.
Plaintiff Colleen Landry is not disabled under the ADA or MHRA. DSMF ¶
12; PRDSMF ¶ 12.

6

Plaintiff Melanie Sparks is not disabled under the ADA or MHRA. DSMF ¶
28; PRDSMF ¶ 28.
B.

The Maine Mall

The Maine Mall is a shopping center open to the public and located in South
Portland, Maine. PSAMF ¶ 127; DRPSAMF ¶ 128. Since 2019, the Maine Mall has
had a policy that individuals with both service dogs and service dogs in training are
permitted at the Maine Mall. 6 PSAMF ¶ 124A; DRPSAMF ¶ 124A. This policy was
in effect on May 7, 2022. Id.
The Maine Mall’s then Senior General Manager, Craig Gorris, understood that
it was important to follow the law and not discriminate against individuals with
disabilities. PSAMF ¶ 127A; DRPSAMF ¶ 127A. BPR’s legal or human resources
department set the company’s policies in accordance with state and federal law. Id.
Between 2009 and 2023, Maine Mall employees received no training on the MHRA,
although they did receive an annual training on discrimination which included the
ADA. 7 Id.
As an initial note, on citations, both PSAMF and DRPSAMF revert to ¶ 123 after, respectively,
PSAMF ¶ 129 and DRPSAMF ¶ 130. This means that PSAMF includes two different statements of
fact each labeled paragraphs 123-129 and DRPSAMF includes two different statements of fact each
labeled paragraphs 124-130. To avoid confusion, the Court differentiates the second appearance of
these duplicate citations with an A (for example, PSAMF ¶ 124A and DRPSAMF ¶ 124A).

6

Turning to the substance of this factual statement, PSAMF ¶ 124A says the Maine Mall’s
policy regarding service dogs and service dogs in training is consistent with federal and state law;
DRPSAMF ¶ 124A qualifies that the mall’s policy is only consistent with Maine state law because
“service animals in training are not protected under Federal law.” DRPSAMF ¶ 124A. At the
summary judgment stage, the Court accepts facts but disregards “[c]onclusory allegations.” Mancini
v. City of Providence ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v. Shinseki, 629
F.3d 49, 54 (1st Cir. 2010)).The Court thus amends this fact to remove the legal conclusion that the
Maine Mall’s policy to permit service dogs in training is in accordance with either state or federal law.
In disputed part, PSAMF ¶ 127A says that Maine Mall employees received no “general training
about the ADA.” Id. (citing Craig Gorris Dep. Tr. at 12:1-18, 15:11-19:8 (ECF No. 44) (Gorris Dep.

7

7

Since 2018, the Maine Mall and its security contractor, Professional Security
Consultants, Inc. (PSC), has known that only two questions may be asked of
individuals with service dogs pursuant to the ADA: (1) is this service animal required
because of a disability? and (2) what work or task has the animal been trained to
perform? 8 PSAMF ¶ 123A; DRPSAMF ¶ 123A.
It was not the Maine Mall’s policy in October of 2021 that individuals with
service animals in training could only visit the mall with a prior appointment.
PSAMF ¶ 125A; DRPSAMF ¶ 125A. The Maine Mall’s policy permitting the presence
of both service animals and service animals in training is stated on their website.
PSAMF ¶ 126A; DRPSAMF ¶ 126A.
C.

Christina Gardner’s Experiences with Service Animals at the
Maine Mall Ahead of the May 7, 2022 Training

Prior to May 7, 2022, Ms. Gardner visited the Maine Mall with a service dog
multiple times. 9 PSAMF ¶ 130; DRPSAMF ¶ 130A. In March or April of 2021, Ms.

Tr.)). The Defendants contend that Mr. Gorris’s testimony reflects that he and employes have annual
discrimination training. DRPSAMF ¶ 127A (citing Gorris Dep. Tr. at 15:16-24). Defendants are
correct that Mr. Gorris testified Maine Mall employees have “annual training that we are required to
take about in general . . . discrimination, which . . . would include the ADA, but it’s not . . . really
specific about the ADA.” Gorris Dep. Tr. at 15:18-21. The Court amended PSAMF ¶ 127A slightly to
reflect this general training on discrimination which includes the ADA.
DRPSAMF ¶ 123A seeks to qualify this statement, asserting it is not supported by the record.
The Court reviewed the deposition transcripts cited in support by Plaintiffs, Gorris Dep. Tr. at 22:223:18, 37:20-38:5 and DSMF, Attach. 17, Bruce Barber Dep. Tr. at 17:21-24 (Barber Dep. Tr.). Mr.
Gorris states that, pursuant to the ADA, only two questions may be asked of individuals at the Mall
with a dog. He does not, however, list the two questions, nor does Mr. Barber in his deposition.
Plaintiffs are, however, clearly correct that these are the two questions which the ADA permits, as
addressed in the legal discussion section below, and the Court, to make all reasonable inferences in
their favor, accepts PSAMF ¶ 123A with the slight modification that these questions are pursuant to
the ADA.
8

PSAMF ¶ 130 begins by asserting that before May 7, 2022, Ms. Gardner “experienced multiple
instances of being discriminated against at the Maine Mall because she had a service dog.” Id. (citing
Gardner Aff. ¶ 6). PSAMF ¶ 130 proceeds to describe one such prior experience, which the rest of this

9

8

Gardner was at the Maine Mall with a disabled friend; each individual was
accompanied by a service dog. Id. A Maine Mall security guard came over to the pair
while they were eating, and yelled at them because they had service dogs, both laying
under the table at the time. Id. The Security Guard told Ms. Gardner and her friend
that no dogs were allowed in the Maine Mall. Id. When Ms. Gardner and her friend
explained that their dogs were service animals, the Security Guard indicated it did
not matter because no dogs were allowed in the mall. Id. Ms. Gardner told the
security guard that they were not leaving the mall; however, when the security guard
departed, Ms. Gardner and her friend finished their meal and then left to avoid
further confrontation. Id.
Several months later, on October 16, 2021, Ms. Gardner was at the Maine Mall
with her service dog, Douglas, and a small group of individuals from MWD when a
Security Guard detained them for twenty minutes and asked a number of questions
Ms. Gardner perceived as rude and inappropriate about her health and her service
dog. 10 PSAMF ¶ 131; DRPSAMF ¶ 131. At no point during this interaction was Ms.
paragraph recounts above the line. DRPSAMF ¶ 130A admits that Ms. Gardner’s affidavit supports
these statements but denies the conclusory statement that there were multiple instances of
discrimination at Ms. Gardner. Id. The Court removed the conclusory statement that Ms. Gardner
experienced discrimination before May 7, 2022 at the Maine Mall, but included the rest of the
Plaintiffs’ statement at PSAMF ¶ 130, given that, as Defendants acknowledge, it is supported by the
record. Mancini, 909 F.3d at 38 (quoting Ahern, 629 F.3d at 54. The Defendants additionally qualify
that Ms. Gardner did not report this incident; however, this qualification is outside the scope of
PSAMF ¶ 130.
10
The Defendants seek to qualify PSAMF ¶ 131 on the same grounds as PSAMF ¶ 130, asserting
while Ms. Gardner made these statements in her affidavit, Defendants deny the conclusory statement
that there were multiple instances of discrimination against her, or that she notified anyone of any
such incidents. DRPSAMF ¶ 131. First, PSAMF ¶ 131 neither asserts this was an instance of
discrimination nor that Ms. Gardner reported this incident, and the Defendants’ qualification is thus
outside the scope. Second, as with PSAMF ¶ 130, Defendants acknowledge the Plaintiffs’ statement
is supported by the record. The Court recounts this statement as indicated by the Plaintiffs.

9

Gardner asked if Douglas was a service animal which Ms. Gardner required due to
her disability, or what work or task Douglas had been trained to perform. Id. The
Maine Mall security guard told Ms. Gardner that if she wanted to be in the mall with
her service dog, she would need to call Maine Mall Security in advance to schedule a
time when they could visit the Mall to shop. Id. Ms. Gardner stated they were legally
allowed to be in the Maine Mall and that she was not obligated to make an
appointment to shop because this was not a requirement imposed on the general
public. Id. Even after Ms. Gardner asserted her rights and explained the state of the
law, including the two above-referenced questions the Security Guard was permitted
to ask about her service animal, the Security Guard continued to detain the
individuals until the guard received an emergency radio call and left. Id.
D.

The Mission and Work of Mission Working Dogs

MWD trains and provides mobility assistance service dogs and PTSD service
dogs and is participating in a pilot program with the VA to provide psychiatric service
dogs to veterans diagnosed with anxiety and depression. 11 PSAMF ¶ 101; DRPSAMF
¶ 101. Service dogs which provide mobility assistance to disabled individuals perform
a variety of tasks based on the needs of the individual with whom they work, such as
help fetching things and reaching items where an individual cannot. PSAMF ¶ 102;

11
DRPSAMF ¶ 101 seeks to qualify this statement “[MWD] provides mobility assistance service
dogs to individuals who have been referred by their doctor and have sufficient medical records to have
a significant mobility impairment. Furthermore, [MWD] provides PTSD service dogs to individuals
who have been diagnosed with PTSD and in treatment for a year.” Id. (citing Gardner Dep. Tr. at
25:22-26:20). The Court reviewed the portion of Ms. Gardner’s deposition transcript cited by both
parties and concludes PSAMF ¶ 101 is supported by the deposition and is additionally not controverted
by DRPSAMF ¶ 101.

10

DRPSAMF ¶ 102. Specifically, PTSD service dogs perform a variety of tasks based
on the needs of the individual with whom they work, often related to anxiety and
depression, including a maneuver called “bracing” where the dog braces between that
person’s legs targeting pressure points, watching an individual’s back, alerting an
individual when someone approaches them from behind, and inserting themselves
between their individual and someone who gets close or aggressive. PSAMF ¶ 103;
DRPSAMF ¶ 103.
MWD’s training standards for service dogs meet international accreditation
standards, and in order to “graduate” as an MWD service dog, an animal must have
at least 120 hours of training, master more than sixty commands, pass a fourteenpart public access test, pass a skills test, and pass a restaurant test. PSAMF ¶ 100;
DRPSAMF ¶ 100. MWD’s training typically starts when the dogs are three days old,
and by six or seven months of age, most dogs in MWD’s training program have
mastered at least four or five tasks. 12 Id.
E.

The Purpose of the May 7, 2022 Training at the Maine Mall

MWD scheduled a training session for its “novice” service dogs in training at
the Maine Mall on May 7, 2022, from 10:00 to 11:30 a.m. DSMF ¶ 32; PRDSMF ¶ 32.
12
DRPSAMF ¶ 100 seeks to qualify this statement and claims the training logs show that MWD
dogs present at the Maine Mall on May 7, 2022 were five or seven months old and yet “had just begun
their training.” Id. “Furthermore, the training logs show that some of the tasks being trained were
basic obedience training, such as ‘sit’ and ‘potty,’ further evidenced by one of the dogs defecating on
the Mall floor having been taken out not two hours prior.” Id. (citing DSMF, Attach. 27, Center Ct.
NW at 1:00-3:00). The Court does not accept the Defendants’ qualification as outside the scope of
PSAMF ¶ 100. PSAMF ¶ 100 makes the general statement that “by six or seven months of age, most
dogs in MWD’s training program have mastered at least for our five tasks”; the statement does not
seek to comment on the level of skill of the specific dogs present at the May 7, 2022 training. In
addition, the Court addresses the MWD dog’s defecation referenced by Defendants in its discussion of
DSMF ¶ 94 and PRDSMF ¶ 94 below.

11

The training goal on May 7, 2022 was to acclimate the dogs to the general public so
they could go through different elements of public settings and thus practice tasks
that are required for accessing public spaces. 13 DSMF ¶ 37; PRDSMF ¶ 37. The term
“novice” described the dogs, not the trainers. DSMF ¶ 33; PRDSMF ¶ 33. The
“novice” categorization was based on a dog’s age, not skill level; older dogs were only
put into this group if they were “owner-trained” rather than owned by MWD. 14 DSMF
¶ 34; PRDSMF ¶ 34.
F.

The Service Dogs Present at the May 7, 2022 Training

The dogs present at the Maine Mall for the May 7, 2022 training were named,
respectively: Moxie, Abigail Adams, Gator Girl, Lady Hope, Andre Rush, Sherman
Tank, Urban Ghost, Lady Eleanor, and Biscuit. 15 PSAMF ¶ 105; DRPSAMF ¶ 105.

13
DSMF ¶ 37 says the training goal on May 7, 2022 was “to acclimate the dogs to the general
public.” DSMF ¶ 37 (citing Gardner Dep. Tr. at 68:15-69:1). The Plaintiffs qualify this statement,
admitting they accessed the Maine Mall on May 7, 2022 with service dogs from MWD to “go through
different elements of public settings” so the service dogs can practice tasks that are required for
accessing public spaces. PRDSMF ¶ 37 (citing Gardner Dep. Tr. at 68:15-70:22). The clarifying detail
provided by the Plaintiffs is consistent with Ms. Gardner’s deposition, and the Court recounts this fact
in the light most favorable to the non-moving party.

The Plaintiffs deny and qualify DSMF ¶ 34, which says “[t]he term ‘novice’ meant a lack of
skill or nine months or younger, and in relation to the dogs.” DSMF ¶ 34 (citing Gardner Dep. Tr. at
58:10-59:23). PRDSMF ¶ 34 contends that “[t]he ‘novice’ categorization was based on age, not skill
level. Older dogs were only put in this group if they were ‘owner-trained’ and not animals that were
owned by MWD.” PRDSMF ¶ 34 (citing Gardner Dep. Tr. at 58:6-59:3).
14

At her deposition, Ms. Gardner was asked about the all-novice training scheduled to take place
from 10:00 to 11:30 a.m. on May 7, 2022. Gardner Dep. Tr. at 58:6-10. She responded “[t]hey were
basically separated by age, not necessarily skill level. So anybody under nine months isn’t usually
considered in the novice group. International standard is that they can’t graduate until they’re at
least a year[ ]old. So it’s just by age. Like, for example, Tundra only finally just graduated. He was
older. He was in the advanced group at this point; but skill level, he was not.” Id. at 58:11-19. She
adds that older dogs might be in the novice group “if they were owner-trained and newer to us meaning
they haven’t got the skills.” Id. at 58:25-59:3. The Court agrees with the Plaintiffs that Ms. Gardner’s
deposition transcript supports PRDSMF ¶ 34 and recounts this fact as stated by the Plaintiffs.
Defendants admit these were the dogs present on May 7, 2022, but deny that the dogs present
were service animals. DRPSAMF ¶ 105. In support, Defendants cite these dogs’ training logs,
15

12

All dogs present at the Maine Mall on May 7, 2022, except for Biscuit, were owned by
MWD; Lady Eleanor was in the process of transitioning from MWD’s ownership to
Mr. Gould. 16 DSMF ¶ 31; PRDSMF ¶ 31; PSAMF ¶ 105; DRPSAMF ¶ 105.
MWD’s service dogs present at the Mall were in the process of being trained in
a task called “deep pressure therapy,” a scientifically backed task whereby a dog is
trained to press on certain pressure points in order to release positive hormones in
their individual. 17 PSAMF ¶ 104; DRPSAMF ¶ 104. Similarly, the service dogs
present on May 7, 2022 were practicing mobility assistance and/or PTSD service and
had already mastered some of these initial skills. 18 PSAMF ¶ 106; DRPSAMF ¶ 106.
Not all MWD’s dogs in training become service animals; some become facility
or therapy dogs. 19 DSMF ¶ 35; PRDSMF ¶ 35. One of the dogs present at the May
attached by the Defendants to their reply, and DSMF ¶¶ 32, 33, 39, 90, 91, 94. The training logs and
portions of the DSMF cited by the Defendants indicate these animals were service dogs in training
and the Court amended PSAMF ¶ 105 slightly to reflect the service dogs were present at the Maine
Mall on the day in question for the purpose of being trained.
DSMF ¶ 31 says “[o]n May 7, 2022, all dogs present at the Mall, except for Veronica and her
dog Biscuit, were owned by MWD.” DSMF ¶ 31. The Plaintiffs admit this statement except as it
relates to Eleanor, who they classify as “Plaintiff Gould’s service animal.” PRDSMF ¶ 31. The Court
addressed and responded to this contention above, and now modifies DSMF ¶ 34 slightly to indicate
that Eleanor was in the process of transitioning from MWD’s ownership to Mr. Gould.
16

17
PSAMF ¶ 104 says, in relevant part, “MWD’s service dogs at the Mall were all trained [in] a
task called ‘deep pressure therapy.’” Id. Defendants deny this statement, claiming instead that the
dogs were in the process of being trained to perform deep pressure therapy on May 7, 2022. DRPSAMF
¶ 104. The Defendants are correct that the service dogs present at the training were in the process of
learning to perform deep pressure therapy and rewords PSAMF ¶ 104 slightly to reflect this fact.

PSAMF ¶ 106 emphasizes that the service animals present at the May 7, 2022 training had
already mastered skills to support mobility assistance and/or PTSD service; DRPSAMF ¶ 106 instead
underlines that these service animals were in training and thus had not fully mastered the training
needed to perform mobility assistance and/or PTSD service. For purposes of this motion, this is a
purely semantic difference. Viewed in the light most favorable to the non-movants, the Court states
this fact as recounted by the Plaintiffs.
18

19
DSMF ¶ 35 says “[n]ot all MWD’s dogs in training become service animals.” DSMF ¶ 35 (citing
Gardner Dep. Tr. at 17:1-19:5). The Plaintiffs qualify this statement, saying:

13

7, 2022 training, Abigail, failed out of training and was not ultimately certified as a
service animal by MWD, but as of May 7, 2022, had mastered several disabilityrelated tasks, including mobility support and emotional support. 20 DSMF ¶ 36;
PRDSMF ¶ 36.
G.

The Individual Plaintiffs’ Arrival at the Maine Mall on May 7,
2022

Not all of the dogs that MWD trains graduate its service animal program to receive
certificates stating that they have met MWD’s standards to graduate their program;
some are more suited to be therapy or facility dogs. MWD is an internationally
accredited organization [and] MWD’s rigorous and high standards for receipt of a
MWD certificate exceed that of State and Federal Law. Thus, the statement is denied
to the extent that it implies or otherwise contends that the dogs at the Maine Mall on
May 7, 2022 were not qualified as service animals because they had not yet received
their certificates from MWD. They were, and none of the Defendants’ agents asked
whether or not they were before detaining and ejecting the Plaintiffs.
PRDSMF ¶ 35. PRDSMF ¶ 35 does not contradict DSMF ¶ 35 and the Court recounts this fact as
asserted by the Defendants.
20
DSMF ¶ 36 claims that “[o]ne of the dogs present on May 7, 2022, Abigail, failed out of training
and was not certified as a service animal by MWD and is not a service animal, and now lives with Tina
and Andy Beaudoin.” DSMF ¶ 36 (citing Gardner Dep. Tr. at 62:23-63:6). The Plaintiffs qualify and
deny this statement. They contend, “[i]t is admitted that Lady Abigail did not complete MWD’s
rigorous service animal training program (Gardner Depo. [at] 62:23-63:6), but as of May 7, 2022,
Abigail had already mastered several disability-related tasks, including one for mobility support, as
well as one for emotional support[] (Beaudoin, T. Depo. at [at] 63:21-65:5). Thus, this fact is denied
insofar as it states that Abigail was not a service animal at all times relevant to this matter.” PRDSMF
¶ 36. Ms. Gardner’s deposition transcript confirms that “Abigail failed out of training” because,
although “[s]he’s a great dog[,] [s]he just failed to meet my standards.” Gardner Dep. Tr. at 63:2-6.
Ms. Beaudoin’s deposition states that in May of 2022, Abigail had been trained to “sit, stay, leave it,
stepping up stairs. She . . . had skills of support where she would go in the middle, you tell her middle,
and she would go between your legs and sit, and she would push her body into your legs, so she had
that down; she still does . . .. [s]he really had a lot of skills. It was just that she was nervous.” DSMF,
Attach. 3, Trina Beaudoin Dep. Tr. at 63:21-64:7 (T. Beaudoin Dep. Tr.).

Both Ms. Gardner’s and Ms. Beaudoin’s depositions state that Abigail did not graduate from
MWD training, but do not confirm whether Abigail would nevertheless be considered a service dog,
given that MWD’s graduation requirements place a higher bar for certification than federal and state
law. The Court acknowledges the undisputed fact that Abigail did not graduate from MWD but, to
present the disputed matter in the light most favorable to the Plaintiffs as non-movants, adds that
Abigail had mastered several specific disability-related tasks on the day in question.
This controversy begs the question of whether the legal definition of a service dog is more
expansive than the MWD’s requirements for service dog designation, a legal question the Court
addresses in its discussion below.

14

On May 7, 2022, Ms. Gardner transported all MWD dogs from the MWD
facility to the Maine Mall using MWD’s bus. DSMF ¶ 38; PRDSMF ¶ 38.

All dogs

present at the Maine Mall on the day in question wore vests that read “service dog in
training” or “in training.” DSMF ¶ 39; PRDSMF ¶ 39.
Volunteers arrived on their own and met Ms. Gardner and the MWD dogs at
the Maine Mall between 9:30 and 9:45 a.m. on May 7, 2022. DSMF ¶ 40; PRDSMF ¶
40. Volunteers were then assigned dogs based on the experience of the volunteer;
however, Mr. Gould and Veronica, a MWD volunteer present on May 7, 2022 but not
a party to this case, were respectively paired with their service animals, Lady Eleanor
and Biscuit. 21 DSMF ¶ 41; PRDSMF ¶ 41. Once assigned, the volunteers took all the
dogs to walk around outside before entering the Maine Mall. DSMF ¶ 42; PRDSMF
¶ 42.
Plaintiffs and MWD’s dogs entered the mall as a group from the side entrance
near the Best Buy at approximately 10:00 a.m. DSMF ¶ 43; PRDSMF ¶ 43. Plaintiffs
conducted their training session by walking around the Maine Mall and into stores.
DSMF ¶ 44; PRDSMF ¶ 44; PSAMF ¶ 133; DRPSAMF ¶ 133.
H.

The Individual Plaintiffs’ Capacities at the May 7, 2022 Training

21
DSMF ¶ 41 asserts: “[v]olunteers were then assigned dogs based on the experience of the
volunteer.” The Plaintiffs qualify this statement on the ground that it does not apply to Mr. Gould,
who they say arrived at the Maine Mall accompanied by his service dog Eleanor, and Veronica, who
brought her service dog, Biscuit, to the May 7, 2022 training. PRDSMF ¶ 41. Consistent with its
obligation to recount the factual record in the light most favorable to the non-moving party, the Court
has slightly modified DSMF ¶ 41 to reflect these two details.

15

All individual Plaintiffs besides Ms. Gardner were volunteers on May 7, 2022. 22
DSMF ¶ 4; PRDSMF ¶ 4. MWD’s volunteers receive training before they work with
the organization’s service dogs, including first aid, CPR, grooming, hygiene and
etiquette training, and learning the task and skill vocabulary for commands. PSAMF
¶ 107; DRPSAMF ¶ 107. After completing training, volunteer trainers are expected
to commit to volunteering consistently and if they miss significant time, they will
have to re-train. Id. Ms. Gardner supervises volunteers at MWD trainings. 23 Id.
Ms. Gardner’s service dog, Douglas, was not present at the Maine Mall on May
7, 2022; however, other MWD service dogs were present if Ms. Gardner had needed
their assistance. 24 DSMF ¶¶ 5-6; PRDSMF ¶¶ 5-6; PSAMF ¶ 132; DRPSAMF ¶ 132.
22
DSMF ¶ 4 says “[a]ll Plaintiffs besides Gardner and MWD were volunteers on May 7.” Id.
(citing Gardner Dep. Tr. at 16:13-17:10; 57:16-58:9). PRDSMF ¶ 4 seeks to qualify the Defendants’
statement, averring “[t]he record citations cited by Defendants do not support the Statement for which
they are cited.” PRDSMF ¶ 4. The Court reviewed Ms. Gardner’s transcript and agrees it stands for
the proposition the Defendants assert. At 16:13-23, Ms. Gardner’s deposition transcript states that
MWD has one paid employee (an administrative assistant) and fifty-three volunteers; from this, it
stands to reason that all Plaintiffs appeared at the May 7, 2022 training not as employees, but in a
volunteer capacity. Gardner Dep. Tr. at 16:13-23. Later in her deposition testimony, Ms. Gardner
responded in the affirmative that the May 7, 2022 training “included both people who would be
assigned dogs when they arrived as volunteer, but also people who bring their own dog as part of the
training.” Id. at 57:16-21.

In relevant part, the Defendants qualify PSAMF ¶ 107 by admitting that volunteers receive
on-boarding training, and the Plaintiffs note, but adding that they are “always supervised by Ms.
Gardner or another member of the leadership team.” DRPSAMF ¶ 107 (citing, e.g., Gardner Dep. Tr.
at 41:22-42:8). The Defendants also contend that various Plaintiffs’ training was limited to their
volunteering with MWD. Id. The Court amends PSAMF ¶ 107 to reflect the Defendants’ proper
qualification, supported by Ms. Gardner’s transcript, that she was present and supervised MWD
trainings. The Court does not amend the statement to reflect the Plaintiffs’ prior volunteer experience
as the Court addresses this issue elsewhere in the factual record.
23

24
DSMF ¶ 6 says: “Gardner was not handling a dog during the training at the Mall on May 7,
2022.” DSMF ¶ 6 (citing Gardner Dep. Tr. at 75:5-75:20). The Plaintiffs qualify this statement,
asserting “Plaintiff Gardner testified that she did not bring her own service animal, Douglas, with her
to the Maine Mall on the date in question, but she had all of MWD’s service dogs available to her for
support at the Maine Mall because they were trained to assist her with tasks for which she requires
assistance based on her disabilities and that she may have had one or several of MWD’s service dogs
while at the Maine Mall.” PRDSMF ¶ 6.

16

Mr. Beaudoin was assigned a MWD dog to handle on May 7, 2022. DSMF ¶ 8;
PRDSMF ¶ 8.

Prior to May 7, 2022, Mr. Beaudoin’s service animal training

experience was limited to prior volunteering with MWD. DSMF ¶ 9; PRDSMF ¶ 9.
Ms. Beaudoin was assigned a MWD dog to handle on May 7, 2022. DSMF ¶
10; PRDSMF ¶ 10. Before May 7, 2022, Ms. Beaudoin’s service animal training was
limited to prior volunteering with MWD. DSMF ¶ 11; PRDSMF ¶ 11.
Ms. Landry was assigned a MWD dog to handle at the May 7, 2022 training.
DSMF ¶ 14; PRDSMF ¶ 14. Ms. Landry’s prior service animal training experience
was limited to her volunteering with MWD. DSMF ¶ 13; PRDSMF ¶ 13.
Ms. Beattie has the support of a BHP, Ms. Dwyer, due to her disabilities.
PSAMF ¶ 118; DRPSAMF ¶ 119. Ms. Beattie and Ms. Dwyer volunteered with MWD
together as part of this work. Id. Both had volunteered with MWD before May 7,
2022. 25 DSMF ¶ 16; PRDSMF ¶ 16. Prior to May 7, 2022, Ms. Beattie’s service

The Court reviewed Ms. Gardner’s deposition transcript and agrees with Ms. Gardner’s
interpretation. When asked at the deposition if she recalled whether she had a dog of her own present
at the May 7 training, Ms. Gardner responded, “I did not, but I had the other seven or whatever [dogs],”
Gardner Dep. Tr. at 75:17-20, adding, “If I had needed anything assistance-wise, these dogs could have
done it for me in that case,” id. at 75:23-25. She further explained during her deposition that “it’s best
as an observer to not have [her own dog with her] so [she] can properly teach; devote my attention to
everyone else.” Id. at 75:14-16. As the Court is required to view disputed matters in the light most
favorable to the Plaintiffs as nonmovant, the Court accepts Ms. Gardner’s version.
The parties raise a similar dispute in PSAMF ¶ 132 and DRPSAMF ¶ 132, and the Court
determines it resolved.
DSMF ¶ 16 says: “Prior to May 7, 2022, Dwyer’s service animal training experience was limited
to her volunteering with MWD.” DSMF ¶ 16 (citing id., Attach. 6, Angelica Dwyer Dep. Tr. at 10:2311:22 (Dwyer Dep. Tr.)). The Plaintiffs assert that “[t]he record citation cited by Defendants does not
support the Statement for which it is cited.” PRSMF ¶ 16. The Court reviewed Ms. Dwyer’s deposition
transcript and agrees with the Plaintiffs that it does not support the Defendants’ statement that Ms.
Dwyer’s prior service animal training experience was limited to her volunteering with MWD. See
Dwyer Dep. Tr. at 10:23-11:22. While this portion of the transcript confirms Ms. Dwyer had
volunteered with MWD before the May 7, 2022 training at the Maine Mall, it does not say that this
25

17

animal training experience was limited to her volunteering with MWD. DSMF ¶ 18;
PRDSMF ¶ 18. Ms. Beattie was assigned a MWD dog to handle on May 7, 2022, and
Ms. Dwyer was not. DSMF ¶¶ 15, 17; PRDSMF ¶¶ 15, 17; PSAMF ¶ 132; DRPSAMF
¶ 132.
Ms. Ames was not initially assigned a MWD dog to handle at the May 7, 2022
training but was accompanied by MWD’s service dog Sherman Tank during the
interaction with mall security. 26

DSMF ¶ 19; PRDSMF ¶ 19; PSAMF ¶ 113;

DRPSAMF ¶ 113. Prior to May 7, 2022, Ms. Ames gained service animal training
experience by training her own service animal, Kia, with the assistance of a service
dog trainer and through volunteering with MWD. DSMF ¶ 20; PRDSMF ¶ 20;
PSAMF ¶ 111; DRPSAMF ¶ 111.

She has a Good Citizen certificate from the

American Kennel Club. PSAMF ¶ 112; DRPSAMF ¶ 112. Ms. Ames did not bring
Kia with her to the Maine Mall on May 7, 2022. 27 DSMF ¶ 21; PRDSMF ¶ 21.

was Ms. Dwyer’s only experience with service animal training. The Court amends DSMF ¶ 16 slightly
to reflect only that Ms. Dwyer had prior experience volunteering with MWD before May 7, 2022.
DSMF ¶ 19 says Ms. Ames “was not assigned a MWD dog to handle on May 7, 2022.” DSMF
¶ 19 (citing id., Attach. 8, Anastacia Ames Dep. Tr. at 36:3-37:7 (Ames Dep. Tr.)). The Plaintiffs qualify
that Ms. Ames “was not initially assigned one of MWD’s service dogs when the group entered the
Maine Mall (Ames Depo. [at] 36:3-37:7), but she was accompanied by MWD’s service dog, ‘Tank,’
during the period after the individual Plaintiffs were detained by Defendants[] (Ames Depo. [at] 40:741:8).” PRSMF ¶ 19. Ms. Ames’s transcript supports the Plaintiffs’ more detailed account and, as the
Court is required to view disputed matters in the light most favorable to the Plaintiffs as non-movants,
accepts their version of events.
26

The parties raise the same dispute in PSAMF ¶ 113 and DRPSAMF ¶ 113. Having already
resolved the dispute, the Court does not restate their positions here.
PRDSFM ¶ 21 qualifies the Defendants’ statement that “Ames did not have her own service
animal with her at the Mall,” DSMF ¶ 21, adding that “Plaintiff Ames testified that she did not bring
her own service animal, Kia, with her to the Maine Mall on the date in question, but Tank acted as
her service animal on May 7, 2022, as he was trained to assist her with tasks for which she requires
assistance based on her disabilities and performed those services while the Plaintiffs were being
detained by the Defendants.” PRSMF ¶ 21. Having acknowledged the Plaintiffs’ qualification that
27

18

Mr. Gould was assigned an MWD dog, Lady Eleanor, to handle on May 7, 2022.
DSMF ¶ 22; PRDSMF ¶ 22. At the time of the May 7, 2022 training, Eleanor was
already a trained service animal and was in the process of being specifically trained
to pair with Mr. Gould. 28 Id. As of May 7, 2022, Eleanor had not completed specific
task training for Mr. Gould. 29 DSMF ¶ 24; PRDSMF ¶ 24; PSAMF ¶ 124; DRPSAMF
¶ 125. Eleanor was owned by MWD but had begun living with Mr. Gould at the time
of the training. 30 DSMF ¶ 25; PRDSMF ¶ 25. Mr. Gould is a veteran and during his

Tank provided periodic support to Ms. Ames on May 7, 2022, the Court states this fact as recounted
by the Defendants.
28
DSMF ¶ 22 says that Mr. Gould “was assigned a MWD dog (‘Eleanor’) to handle on May 7,
2022, and Eleanor was in the process of being trained to pair specifically with Gould.” DSMF ¶ 22.
The Plaintiffs admit this statement, but add that, “at the time of the incident, Eleanor was already a
trained service animal who was proficient with several tasks that directly related to [Mr. Gould’s]
disabilities, which include PTSD and lateral and bilateral knee instability. Thus, this fact is denied
to the extent it contends that Lady Eleanor was not a service animal as defined by State and Federal
law on May 7, 2022.” PRDSMF ¶ 22. The Court does not read DSMF ¶ 22 to say that Eleanor was
not a trained service animal as of May 7, 2022; however, it includes the Plaintiffs’ qualification to
clarify this fact and to view the disputed matter in the light most favorable to the non-movants.

DSMF ¶ 24 says “[o]n May 7, 2022, Eleanor did not have specific task training for Gould.”
DSMF ¶ 24 (citing id., Attach. 9, Joshua Gould Dep. Tr. at 15:1-12 (Gould Dep. Tr.)). The Plaintiffs
deny this statement, directing the Court to their response to DSMF ¶ 22.
29

The Court reviewed Mr. Gould’s deposition transcript. Mr. Gould was asked: “So as of May
7th, 2022, Eleanor had undergone some of the training to be certified . . .. she had had some of the
training; but she hadn’t been fully trained yet as a service animal. Is that accurate?” Gould Dep. Tr.
at 14:19-25. Mr. Gould responded, “Yes. She had her obedience training and task training; but she
hadn’t had specific task training for her person, me. So once they’re paired with a person, that’s when
they work on that person’s individual task . . .. She was proficient in three out of the four tasks I need
her, now and still, she was proficient in three of them as of that date.” Id. at 15:1-5; 15:10-12. The
Court amended DSMF ¶ 24 to reflect that Eleanor was in the process of completing specific task
training to be paired with Mr. Gould, as his deposition transcript states.
The parties engage in the same dispute in PSAMF ¶ 124 and DRPSAMF ¶ 125, and the Court
determines it resolved.
30
DSMF ¶ 25 says that “[o]n May 7, 2022, Eleanor was owned by MWD.” DSMF ¶ 25 (citing
Gardner Dep. Tr. at 74:12-15). As qualification, the Plaintiffs say, “[o]n May 7, 2022, Eleanor was
already living with Plaintiff Gould as his service animal, although her ownership papers had not been
formally transferred. The record citation indicates that Plaintiff Gardner already considered Eleanor
to be Plaintiff[] Gould’s dog at that time from a practical perspective.” PRDSMF ¶ 25.

19

service he worked, in part, as a military police officer training bomb and drug dogs.
PSAMF ¶ 123; DRPSAMF ¶ 124. Mr. Gould has experience training service dogs in
general obedience but his training experience was limited to his volunteering with
MWD ahead of May 7, 2022. DSMF ¶ 23; PRDSMF ¶ 23; PSAMF ¶ 123; DRPSAMF
¶ 124.
Ms. Brilliant was assigned a MWD dog to handle on May 7, 2022. DSMF ¶ 26;
PRDSMF ¶ 26. Prior to May 7, 2022, Ms. Brilliant was self-taught and her formal
service animal training experience was limited to her volunteering with MWD. 31
DSMF ¶ 27; PRDSMF ¶ 27.
Ms. Sparks’s service animal training experience prior to May 7, 2022 was
limited to her volunteering with MWD, and she was assigned a MWD dog to handle
at the Maine Mall training. DSMF ¶¶ 29-30; PRDSMF ¶¶ 29-30.
I.

The Maine Mall’s Response to the May 7, 2022 Training
1.

The Call from Bath & Body Works

In response to an inquiry at her deposition as to whether “there [were] any dogs that were not
. . . Mission dogs” present at the May 7, 2022 training, Ms. Gardner said, “I guess it would depend how
you classify [Mr. Gould] at that point with Eleanor, because she was living with him already, but still
owned by us.” Gardner Dep. Tr. at 74:12-15. The Court does not agree with the Plaintiffs that this
deposition statement establishes Ms. Gardner “considered Eleanor to be Plaintiff[] Gould’s dog at that
time from a practical perspective.” Instead, the statement confirms the Defendants’ statement that
Eleanor was owned by MWD on May 7, 2022. DSMF ¶ 25. To view the disputed matter in the light
most favorable to the Plaintiffs, however, the Court adds the Plaintiffs’ qualification that Eleanor was
already living with Mr. Gould on the day in question.
31
The Defendants say “[p]rior to May 7, 2022, Brilliant’s service animal training experience was
limited to her volunteering with MWD.” DSMF ¶ 27 (citing id., Attach. 10, Theresa Brilliant Dep. Tr.
at 19:24-24:4 (Brilliant Dep. Tr.)). PRSMF ¶ 27 contends Ms. Brilliant’s deposition transcript does not
support this statement. PRSMF ¶ 27. In response to a question at her deposition about her prior
experience training service animals, Ms. Brilliant said, “Well, it’s . . . self-taught . . .. I have a very big
faith in God, and I feel that that is my gift.” Brilliant Dep. Tr. at 19:20-20:3. The Court modified
DSMF ¶ 27 to reflect that, prior to May 7, 2022, Ms. Brilliant had self-taught service animal
experience.

20

During the training, but prior to any direct interaction between the dogs and
mall security, Maine Mall’s security dispatch received a complaint that two dogs were
off leash in Bath & Body Works and were being allowed to “run around in the store.” 32
DSMF ¶ 45; PRDSMF ¶ 45; PSAMF ¶¶ 133-134; DRPSAMF ¶¶ 133-134. The staff
at Bath & Body Works appeared happy to see the Plaintiffs.

PSAMF ¶ 134;

DRPSAMF ¶ 134. At no point on May 7, 2022 did a Maine Mall representative
suggest or mention to Ms. Gardner there had been a complaint made by an employee
of Bath & Body Works about MWD. PSAMF ¶ 135; DRPSAMF ¶ 135.
2.

The Arrival of Mall Security and Mall
Interactions with Ms. Beattie and Ms. Dwyer

Security’s

At some point during the training, while inside JCPenney, the dog assigned to
Ms. Beattie was not cooperating and needed a break. DSMF ¶ 46; PRDSMF ¶ 46.
Ms. Beattie and Ms. Dwyer exited JCPenney, walked down the hallway, and were
confronted by a Mall security guard. DSMF ¶ 47; PRDSMF ¶ 47. The security guard
asked Ms. Dwyer if the dog that Ms. Beattie was assigned to handle was a service
animal. DSMF ¶ 48; PRDSMF ¶ 48. In response, Ms. Dwyer told the security guard
that the dog was a service animal in training, and that the dog has a right to be at

DSMF ¶ 45 alleges: “At some point during the training, but prior to any interaction by Mall
security, Mall security received a complaint from employees at Bed, Bath, and Beyond that there were
several dogs running around freely in their store.” DSMF ¶ 45 (citing Barber Dep. Tr. at 60:12-62:17).
The Plaintiffs deny this statement, contending “Mr. Barber testified that Maine Mall’s security
dispatch received a call complaining about two dogs being off leash in Bath and Body Works that
were being allowed to ‘run around the store.’” PRDSMF ¶ 45 (emphasis in original). The Court
reviewed Mr. Barber’s deposition transcript and agrees it reflects the Plaintiffs’ version of events, and
amends DSMF ¶ 45 accordingly.
32

The parties raise a similar dispute in PSAMF ¶¶ 133-134 and DRPSAMF ¶¶ 133-134; the
Court reviewed these statements of fact, and the sources the parties cite in support of each, and
concludes them resolved based on DSMF ¶ 45 and PRDSMF ¶ 45.

21

the Maine Mall regardless of whether they were in training or not. 33 DSMF ¶ 49;
PRDSMF ¶ 49; PSAMF ¶ 136; DRPSAMF ¶ 136. The Mall security guard then told
Ms. Dwyer and Ms. Beattie that they were not allowed to be inside the Maine Mall
with a service dog in training and informed them that they had to leave. 34 DSMF ¶
50; PRDSMF ¶ 50 PSAMF ¶ 137; DRPSAMF ¶ 137. Ms. Dwyer told the security
guard that they could not leave with the dog because it belonged to the training group,
not to Ms. Beattie or Ms. Dwyer. DSMF ¶ 51; PRDSMF ¶ 51. She additionally
informed the security guard that the training group was inside JCPenney. DSMF ¶
52; PRDSMF ¶ 52. At some point during this conversation, the security guard tried
to reach for Ms. Dwyer, indicating he was going to put his hands on her, and she
asked him not to touch her; the guard initiated physical contact with Ms. Dwyer by
grabbing her shoulder. PSAMF ¶ 138; DRPSAMF ¶ 138.

DSMF ¶ 49 states: “Dwyer told the Mall security guard that the dog was in training.” DSMF
¶ 49 (citing Dwyer Dep. Tr. at 30:3-6). PRDSMF ¶ 49 counters that “Ms. Dwyer told the Mall’s security
guard that Tank was a service animal, that he was in training, and that service dogs had a right to be
at the Mall whether they were training or not.” PRDSMF ¶ 49 (emphasis in original). At her
deposition, Ms. Dwyer said she told the Mall security guard, when asked if Sherman Tank was a
service animal, “yes, he’s in training.” Dwyer Dep. Tr. at 30:3-6. The Court slightly amended DSMF
¶ 49 to reflect that Ms. Dwyer in fact told the security guard that Tank was a service animal who was
in training. The Court rejects the Plaintiffs’ additional qualification as being outside the scope of the
fact asserted. This resolves the same dispute raised by PSAMF ¶ 136 and DRPSAMF ¶ 136.
33

34
The Plaintiffs qualify and deny DSMF ¶ 50 on the ground that “[t]he Mall’s security guard told
Ms. Dwyer and Ms. Beattie that they were not allowed to be at the Maine Mall and asked them to
leave after she said that Tank was a service dog and asserted her right to be at the Maine Mall with
Ms. Beattie.” PRDSMF ¶ 50 (emphasis in original). The Court does not accept this denial. First, the
Court does not read PRDSMF ¶ 50 as disputing DSMF ¶ 50; on the contrary, the Court sees no
difference between DSMF ¶ 50 and PRDSMF ¶ 50, insofar as it recounts what the Mall security guard
told Ms. Beattie and Ms. Dwyer. Second, the Plaintiffs’ qualifications are outside the scope of the fact
asserted and, additionally, addressed in DSMF ¶ 49. This resolves the dispute raised by PSAMF ¶
137 and DRPSAMF ¶ 137.

22

Ms. Dwyer and Ms. Beattie walked away from the Mall security guard, and
Ms. Dwyer proceeded to call Ms. Gardner. DSMF ¶ 53; PRDSMF ¶ 53. On their
phone call, Ms. Dwyer told Ms. Gardner that she and Ms. Beattie were approached
by a security guard and told to leave, and that the Mall’s security guard touched Ms.
Dwyer’s body without her permission. 35 DSMF ¶ 54; PRDSMF ¶ 54. Ms. Gardner
told Ms. Dwyer to come back to the group and meet in the hallway outside of
JCPenney. DSMF ¶ 55; PRDSMF ¶ 55. Ms. Dwyer and Ms. Beattie walked to the
entrance of JCPenney and met Ms. Gardner and the rest of the group. DSMF ¶ 56;
PRDSMF ¶ 56. Ms. Dwyer explained her encounter with the Mall security guard to
Ms. Gardner and handed the dog that Ms. Beattie was assigned to handle to Ms.
Gardner. DSMF ¶ 57; PRDSMF ¶ 57.
3.

Mall Security’s Interactions with Ms. Gardner

At this point, Ms. Gardner was approached by the Mall’s security guard.
DSMF ¶ 58; PRDSMF ¶ 58. She instructed the group to find a spot to sit and wait
while she talked to security. 36 DSMF ¶ 59; PRDSMF ¶ 59; PSAMF ¶¶ 119, 149;

The Plaintiffs qualify DSMF ¶ 54, adding that, while on the phone with Ms. Gardner, Ms.
Dwyer additionally told Ms. Gardner that the Mall’s security guard touched her body without
permission. PRDSMF ¶ 54 (citing Dwyer Dep. Tr. at 33:10-35:4; Gardner Dep. Tr. at 78:2-78:6). To
make all reasonable inferences in favor of the non-moving party, the Court amends DSMF ¶ 54 to
reflect the additional detail raised by Plaintiffs, as supported by the deposition transcripts of Ms.
Dwyer and Ms. Gardner. The Court also notes the Defendants admit this statement in DRPSAMF ¶
138, discussed above.
35

36
The Plaintiffs admit DSMF ¶ 59, but in PRDSAMF ¶ 119 claim “Ms. Beattie was told to sit
down with the group of Plaintiff[s] during the exchange with the Defendants’ employees and agents
by the Security Guard.” PSAMF ¶ 119. The Defendants deny this statement, asserting it was Ms.
Gardner, not security, who initially told the group to find a spot to sit down and wait. DRPSAMF ¶
120. The Court accepts the Defendants’ denial and includes DSMF ¶ 59, which the Plaintiffs admitted.
PRDSAMF ¶ 59. This also resolves the same dispute raised in PSAMF ¶ 149 and DRPSAMF ¶ 149.

23

DRPSAMF ¶¶ 120, 149. The group sat against the wall while Ms. Gardner spoke
with the security guard. DSMF ¶ 60; PRDSMF ¶ 60.
The Mall security guard asked Ms. Gardner for the “certification papers” for
the service dogs, which Ms. Gardner told him was illegal and that she had a legal
right to be at the Maine Mall under the ADA “with our service dogs”; the security
guard told Ms. Gardner that service animals in training were not allowed inside the
Mall and that the group needed to leave. 37 DSMF ¶ 61; PRDSMF ¶ 61; PSAMF ¶
140; DRPSAMF ¶ 140. Ms. Gardner additionally explained the dogs did not yet have
certification papers because they had not graduated from MWD’s program. PSAMF
¶ 139; DRPSAMF ¶ 139. Ms. Gardner told the Mall security guard that they were
not leaving and had a legal right to be there. DSMF ¶ 62; PRDSMF ¶ 62.
4.

Mall Security Involves Management

The mall security guard then radioed the security director, Bruce Barber.
DSMF ¶ 63; PRDSMF ¶ 63. Mr. Barber walked to the JCPenney area where the
Plaintiffs were. DSMF ¶ 65; PRDSMF ¶ 65. Mr. Barber called the Maine Mall’s
operations manager, Paul Pettingill, and informed him “there were ten service dogs

37
DSMF ¶ 61 says: “[t]he Mall security guard told Gardner that service dogs in training were
not allowed inside the Mall and that they needed to leave.” DSMF ¶ 61 (citing Gould Dep. Tr. at 27:415). The Plaintiffs qualify and deny this statement, averring Mr. Gould in fact stated that the entire
group was not allowed in the Mall and needed to leave. PRDSMF ¶ 61 (citing Gardner Dep. Tr. at
79:15-80:21. The Plaintiffs further say, “[i]n addition, the security guard started his interaction with
Gardner by asking for the ‘certification papers’ for the service dogs, which Gardner told him was illegal
and she told him that they had a legal right to be at the Maine Mall under the ADA ‘with our service
dogs.’” Id. The Plaintiffs are correct that Mr. Gould’s deposition transcript reflects their version of
events; the Court amended DSMF ¶ 61 to reflect that the Mall security officer told Mr. Gould that the
service animals, as well as the training group members themselves, needed to leave the Maine Mall.
To view the fact in the light most favorable to the non-moving party, the Court also includes the
Plaintiffs’ addition regarding the certification papers, as it is supported by Ms. Gardner’s deposition
transcript. In addition, this resolves the dispute raised in PSAMF ¶ 140 and DRPSAMF ¶ 149.

24

in a group, that they had received a complaint that the dogs had been set free in some
of the stores and were just running around and asked me what I wanted to do with
that.” 38 DSMF ¶ 64; PRDSMF ¶ 64. Mr. Barber additionally told Mr. Pettingill that
the group was refusing to leave. DSMF ¶ 71; PRDSMF ¶ 71. Mr. Pettingill arrived
at the JCPenney area where the group was and told Ms. Gardner that the group was
trespassing. 39 DSMF ¶¶ 72-73; PRDSMF ¶¶ 72-73. Ms. Gardner was specifically
threatened that she and the group would be arrested for trespassing upon the arrival
of law enforcement. PSAMF ¶ 147; DRPSAMF ¶ 147.
Mr. Gorris, the general manager of the Maine Mall, was not present at the
Mall on May 7, 2022, but Mr. Pettingill communicated with Mr. Gorris during this

DSMF ¶ 64 asserts “Barber called operations manager Paul Pettingill . . . and informed him
of the situation.” DSMF ¶ 64 (citing DSMF, Attach. 19, Paul Pettingill Dep. Tr. at 20:1-7 (Pettingill
Dep. Tr.)). The Plaintiffs seek to qualify this statement: “It is admitted that Barber called Mr.
Pettingill, but the fact does not accurately and completely relay what Barber said. Pettingill told him
‘there were ten service dogs in a group, that they had received a complaint that the dogs had been
set free in some of the 6 stores and were just running around and asked me what I wanted to do with
that.” PRDSMF ¶ 64 (citing Pettingill Dep. Tr. at 20:1-7) (emphasis added by Plaintiffs). Mr.
Pettingill’s deposition, at the section cited by both parties, reflects the Plaintiffs’ qualified statement
of fact and the Court accepts PRDSMF ¶ 64.
38

39
DSMF ¶ 73 says “Pettingill told Gardner that she was trespassing and that they would wait
for the police to arrive.” DSMF ¶ 73 (citing Pettingill Dep. Tr. at 23:7-16). PRDSMF ¶ 73 claims Mr.
Pettingill in fact told Ms. Gardner that the group, and not just Ms. Gardner, was trespassing and
“ordered a security guard to keep his eyes on the group and not let them leave.” PRDSMF ¶ 73 (citing
Gardner Dep. Tr. at 85:13-88:22, 146:16-25; Pettingill Dep. Tr. at 23:12-16).

When asked at his deposition whether he told Ms. Gardner that she alone, or the entire group,
was trespassing, Mr. Pettingill said, “I don’t think I was specific.” Pettingill Dep. Tr. at 23:17-20.
However, when asked soon after “[w]as the group free to leave at the point where you were waiting for
the South Portland police?,” Mr. Pettingill said, “They were asked to leave, yes. I was hoping they
would leave.” Id. at 24:3-6. First, the Court amends DSMF ¶ 73 to reflect that Mr. Pettingill told Ms.
Gardner that the group was trespassing.
The second point of contention between the parties is whether the group was instructed to wait
for the police or told they were not allowed to leave. Compare DSMF ¶ 73 with PRDSMF ¶ 73. This
dispute is more directly raised by DSMF ¶ 76 and PRDSMF ¶ 76 and the Court addresses it below.

25

incident and relayed the information to Mr. Barber. PSAMF ¶ 128A; DRPSAMF ¶
128A; DSMF ¶ 95; PRDSMF ¶ 95. Mr. Barber claims he overheard Mr. Gorris tell
Mr. Pettingill over the phone that the Mall’s policy was not to allow entry of service
animals in training, only service animals that were “fully trained,” but Mr. Gorris did
not provide that information to Mr. Pettingill and that was not the Mall’s policy. 40
Id.

On his phone call with Mr. Pettingill during the incident, Mr. Gorris also

recommended that he call Vice President of Brookfield Properties Retail, Inc., Janell
Vaughan, which Mr. Pettingill did.

PSAMF ¶ 129A; DRPSAMF ¶ 129A.

Ms.

Vaughan agreed that ten dogs in training on a busy Saturday was inappropriate and
that the Mall would accommodate service animals in training if MWD let them know
ahead of time. 41 Id.
5.

Management’s Interactions with Plaintiffs

Approximately three or four individuals, including two security guards
wearing yellow shirts and two men in civilian clothes (the latter the Court assumes
to be Mr. Barber and Mr. Pettingill), were present in the area of the Mall where the
PSAMF ¶ 128A says “Mr. Gorris was not at the Maine Mall when the incident involving
Plaintiffs occurred, but Bruce Barber . . . claims that Mr. Gorris said the Mall’s policy was not to allow
service animals in training, only those that were ‘fully trained.’ That was not true; Mr. Gorris did not
provide that information and that was not the Mall’s policy.” Id. Defendants qualify this statement
slightly to clarify that Mr. Barber was informed of Mr. Gorris’s position by way of Mr. Pettingill, who
was present on site with Mr. Barber. DRPSAMF ¶ 128A. They clarify that Mr. Barber was standing
near Mr. Pettingill and overheard parts of his conversation with Mr. Gorris. Id. The Court amends
PSAMF ¶ 128A to clarify these points.
40

41
PSAMF ¶ 129A says, in disputed part, that “Ms. Vaughan supported ejecting the Plaintiffs
from the Maine Mall.” Id. (citing Pettingill Dep. Tr. at 9:6-10:20, 27:14-30:6). DRPSAMF ¶ 129A
counters that Ms. Vaughan, upon learning from Mr. Pettingill about the incident over the phone,
“agreed that ten dogs in training on a busy Saturday was inappropriate and that the Mall would
accommodate service animals in training in MWD let them know ahead of time.” Id. (citing Pettingill
Dep. Tr. at 29:20-30:6). The Court reviewed Mr. Pettingill’s deposition transcript at the lines cited by
both parties and agree it, word for word, supports the Defendants’ version of events.

26

Plaintiffs were located. 42 PSAMF ¶ 142; DRPSAMF ¶ 142. Mr. Barber told Ms.
Gardner that the group was not allowed in the Mall with their service dogs in
training. DSMF ¶¶ 65-66; PRDSMF ¶¶ 65-66. Mr. Barber told Ms. Gardner that the
group had to leave. 43 DSMF ¶ 67; PRDSMF ¶ 67; PSAMF ¶ 141; DRPSAMF ¶ 141.
Ms. Gardner responded that service animals and service animals in training are
protected by Maine state law. 44 DSMF ¶ 68; PRDSMF ¶ 68. She asserted the group
was legally allowed to be in the Maine Mall on the same terms as the general public;
however, it appeared to Ms. Gardner that the Mall’s representatives did not care what
she said, and they again ordered the group to leave. PSAMF ¶ 143; DRPSAMF ¶ 143.

42
The Defendants assert a qualification of this statement, but the Court cannot identify any
disagreement between the parties and thus accepts PSAMF ¶ 142. Compare PSAMF ¶ 142, with
DRPSAMF ¶ 142.

The Plaintiffs admit that “Barber . . . told Gardner the Plaintiffs had to leave,” PRDSMF ¶ 67,
but qualify DSMF ¶ 67: “after Gardner said the Plaintiffs had a legal right to be there, Pettingill then
told her the group was now trespassing and ordered a security guard to keep his eyes on the group
and not let them leave.” PRDSMF ¶ 67. This qualification is outside the scope of DSMF ¶ 67. All
DSMF ¶ 67 says is that Mr. Barber told Ms. Gardner the Plaintiffs had to leave, and PRDSMF ¶ 67
explicitly admits this statement’s truth. PRDSMF ¶ 67. In addition, DSMF ¶ 73 says “Pettingill told
Gardner that she was trespassing and that they would wait for the police to arrive” and thus addresses
the Plaintiffs’ qualification of DSMF ¶ 67. The parties raise the same dispute in PSAMF ¶ 141 and
DRPSAMF ¶ 141, which is now resolved.
43

44
DSMF ¶ 68 says: “Gardner stated that service animals in training are protected by Maine state
law.” DSMF ¶ 68 (citing Gardner Dep. Tr. at 121:1-5; Barber Dep. Tr. at 40:13-41:2). Plaintiffs say:
“It is admitted that Gardner told Defendants’ agents numerous times during the incident that both
service animals and service animals in training were allowed by Maine law and the ADA, as well as
the Maine Mall’s own policy.” PRDSMF ¶ 68 (citing Gardner Dep. Tr. at 80:7-14, 118:16-121:5, 143:25144:8) (emphasis in original). The Court reviewed the provisions of Ms. Gardner’s deposition
transcript and Mr. Barber’s deposition transcript cited by the parties. While Ms. Gardner’s transcript
reflects that she told Mr. Barber that both service animals and service animals in training are
protected by Maine law, Mr. Barber’s transcript confirmed Ms. Gardner told him service animals in
training were allowed in the Maine Mall under state law. However, Mr. Barber was asked the narrow
question of whether the Plaintiff told him Maine law covered service animals in training; he was not
asked whether she also told him state law protects service animals and the Court thus cannot conclude
from his deposition transcript that Ms. Gardner did not make this point more fully as she claims. In
line with its obligation to view the factual record in the light most favorable to the non-moving party,
the Court amends DSMF ¶ 68 slightly to reflect that Ms. Gardner told Mr. Barber that Maine law
protects both service animals and service animals in training.

27

No one looked up the laws that Ms. Gardner provided, including Maine’s White Cane
Laws, 17 M.R.S. § 1312, as the basis for MWD’s right to be present in the Mall. 45 Id.
Ms. Gardner additionally explained that the Maine Mall’s own policy
permitted the group to be there, and showed the Defendants’ representatives the
Mall’s website, stating both service animals and service animals in training were
allowed. PSAMF ¶ 144; DRPSAMF ¶ 144. A security guard told Ms. Gardner that
the Maine Mall is private property and thus it can “make [its] own rules,” and said
the Mall’s representatives know their rights and “do this all the time,” which Ms.
Gardner inferred to mean the Mall ejected individuals without certificates for their
service animals. 46 PSAMF ¶¶ 145-146; DRPSAMF ¶¶ 145-146.
6.

The Parties Call the South Portland Police

Based on Ms. Gardner’s refusal to leave, Mall personnel called the South
Portland police. DSMF ¶ 74; PRDSMF ¶ 74. While waiting for the South Portland
police to arrive, Ms. Gardner also called the police. DSMF ¶ 75; PRDSMF ¶ 75.
7.

Developments While The Parties Waited for the Police

As the parties waited for the police to arrive, Mr. Pettingill ordered a mall
security guard to keep his eyes on the group and not let them leave; Mr. Barber told

The Court includes the Defendants’ minor qualification of PSAMF ¶ 143 that Ms. Gardner
cited Maine’s White Cane Law, 17 M.R.S. § 1312, to the Mall representatives. DRPSAMF ¶ 143.
45

46
Defendants seek to qualify this statement on the ground that Ms. Gardner’s inference as to
the security guard’s statement’s meaning is unsupported. DRPSAMF ¶ 146. The Court amends
PSAMF ¶ 146 slightly to reflect this interpretation of the statement was made by Ms. Gardner, and
not stated by the guard explicitly.

28

mall security to not allow the group to come any further into the Maine Mall. 47 DSMF
¶ 76; PRDSMF ¶ 76; PSAMF ¶ 147; DRPSAMF ¶ 147. A Mall security guard was
initially positioned in between the group and the main foyer of the Mall; no guards
were positioned to block the nearby exit. 48 DSMF ¶¶ 77-78; PRDSMF ¶¶ 77-78. Mr.
Gould told the security guard that they did not have a legal right to detain anyone,
and the guard responded that they “do it all the time”; Mr. Gould interpreted this to
mean they detained people regularly. 49 PSAMF ¶ 148; DRPSAMF ¶ 148.
During the interaction between Mall security and Ms. Gardner, Ms. Ames
texted her father, “[w]e got stopped by security and are holding our ground.” DSMF
¶ 69; PRDSMF ¶ 69. At the same time, one of the MWD volunteers messaged in the

47
DSMF ¶ 76 says “Barber told the Mall security guard to not allow the group to come any
further into the mall until South Portland police arrived.” DSMF ¶ 76 (citing Barber Dep. Tr. at 46:2147:11). PRDSMF ¶ 76 denies this statement and contends “[a]fter Gardner said the Plaintiffs had a
legal right to be there, Pettingill ordered a security guard to keep his eyes on the group and not let
them leave.” PRDSMF ¶ 76 (citing Gardner Dep. Tr. at 85:13-88:22, 146:16-25; Gould Dep. Tr. at 32:833:5; Pettingill Dep. Tr. at 23:12-16). As an initial matter, the parties accurately reflect the contents
of Mr. Barber’s deposition and Ms. Gardner’s deposition. Next, given that the Defendants’ statement
of fact and the Plaintiffs’ statement of fact are not actually in opposition (DSMF ¶ 76 concerns a
direction Mr. Barber gave to Mall security, while PRDSMF ¶ 76 discusses an order Mr. Pettingill gave
to the same), and that both are supported by the record, the Court includes DSMF ¶ 76 and PRDSMF
¶ 76. This resolves the same dispute raised in PSAMF ¶ 147 and DRPSAMF ¶ 147.

DSMF ¶ 77 says “[t]he Mall security guard was positioned in between the group and the main
foyer of the Mall,” id. (citing Barber Dep. Tr. at 47:8-48:6), while the Plaintiffs say “[t]he Mall security
officer who was ordered to guard the Plaintiffs so that they could not leave until the South Portland
Police arrived walked back and forth into the hallway where the Plaintiffs were sitting and standing,
as well as standing in the foyer of the mall.” PRDSMF ¶ 77 (citing DSMF, Attach. 22, JC Penney Int.
Bus Stop Fixed Video). The Court reviewed the JCPenney security footage, which does not include a
security guard on screen, and thus does not support the inference that the security guard paced back
and forth. Mr. Barber’s deposition transcript, however, supports DSMF ¶ 77 and the Court recounts
this fact as stated by the Defendants.
48

49
The Defendants deny that Mall security officers have the right to detain individuals, or that
they do this regularly. DRPSAMF ¶ 148. The Court amended PSAMF ¶ 148 to reflect Mr. Gould’s
deposition transcript, cited by Plaintiffs in support, which clarifies this was Mr. Gould’s interpretation
of his conversation with Mall security. Gould Dep. Tr. at 32:8-33:8.

29

MWD Scheduling/RSVP group chat, “[w]e will be late for the 2nd class as we are
waiting for the police as security asked us to leave and we are within Maine state
law. @ChristyGardner asks that you Wait . . . in your cars, or by the bus, walk around
but it might be a while . . .[.] We are holding our ground and educating the public.”
DSMF ¶ 70; PRDSMF ¶ 70. The Plaintiffs waited for the South Portland police to
arrive for approximately one hour. PSAMF ¶ 150; DRPSAMF ¶ 150.
Mr. Barber and Mr. Pettingill left the group and walked back to the Mall’s
management office as they waited for the police to arrive. DSMF ¶ 79; PRDSMF ¶
79. Mr. Gould, with the dog he was handling, followed Mr. Barber and Mr. Pettingill
on their walk back to the office, recording them while doing so, before returning to
the group. DSMF ¶ 80; PRDSMF ¶ 80. No one stopped Mr. Gould from following Mr.
Barber and Mr. Pettingill. DSMF ¶ 81; PRDSMF ¶ 81. Ms. Gardner witnessed Mr.
Gould walk away from the group and follow Mr. Barber and Mr. Pettingill. DSMF ¶
82; PRDSMF ¶ 82. The rest of the group waited for the police to arrive. DSMF ¶ 83;
PRDSMF ¶ 83.
As the group waited for the police, Ms. Ames felt as if the Mall security guard
“loomed over [her] from a couple of feet away and watched her every move,” making
her feel scared and as if the group was not free to leave. 50 PSAMF ¶ 114; DRPSAMF

50
As an initial matter, the Defendants accidentally label their response to PSAMF ¶ 113 as
DRPSAMF ¶ 114, and thus proceed to mislabel the paragraph number of the Plaintiffs’ statements of
additional material facts. Thus, DRPSAMF ¶ 115 addresses PSAMF ¶ 114.

PSAMF ¶ 114 says that while the Plaintiffs waited for the South Portland police to arrive, the
security guard “loomed over Ms. Ames from a couple of feet away and watched her every move, making
her scared . . ..” Id. (citing Ames Dep. Tr. at 48:14-23, 62:1-8, 67:10-22). Defendants deny this
statement, asserting “[s]ecurity footage shows no Maine Mall security guard, who wear yellow
uniforms, was ever ‘a couple feet away’ [from Ms. Ames], watch[ing] her every move.” DRPSAMF ¶

30

¶ 115. Ms. Landry did not feel free to leave the Maine Mall while the Plaintiffs waited
for the police to arrive, and worried that if she tried to leave, the guard, who she
believed were watching the group’s movements, would stop her. 51 PSAMF ¶ 120;
DRPSAMF ¶ 121.
After the initial confrontation with the security guard, and while waiting for
the police to arrive, Ms. Beaudoin stood up and exited the Mall with the dog she was
handling after receiving permission from the security guard; the guard initially told
Ms. Beaudoin that she could not go outside but allowed her to exit, so long as she
returned, when she explained that Ghost would have an accident if she was not
permitted to leave. 52 DSMF ¶ 84; PRDSMF ¶ 84; PSAMF ¶ 116; DRPSAMF ¶ 117.
115 (citing JCPenney Int. Bus Stop Fixed Video). The Defendants are correct that the JCPenney
security footage does not include an individual the Court can identify as a security guard, but the
Plaintiffs are correct that Ms. Ames’s deposition transcript reflects that this is how she perceived the
security guard’s presence. To view the fact in the light most favorable to the Plaintiffs, the Court
amends PSAMF ¶ 114 to reflect that it recounts Ms. Ames’s perception.
PSAMF ¶ 120 said that Ms. Landry did not feel free to leave the mall while the Plaintiffs
waited for the police because the guard “was standing over them watching them,” and she felt as if she
tried to leave, the guard would stop her. Id. (citing DSMF, Attach. 4, Colleen Landry Dep. Tr. at 36:637:9 (Landry Dep. Tr.)). The Defendants deny the statement insofar as it says that the Security Guard
was standing over the group and watching them. DRPSAMF ¶ 121 (citing JCPenney Int. Bus Stop
Fixed Video). As noted, the Court cannot determine the position of the security guard from the video
cited by the Defendants. Ms. Landry’s deposition transcript confirms the Plaintiffs’ version of events
and, as it is required to view disputed facts in the light most favorable to the non-movants, the Court
recounts this fact as stated by the Plaintiffs.
51

52
DSMF ¶ 84 says “[a]fter the initial confrontation with the security guard, while waiting for the
police to arrive, Trina stood up and exited the nearby exit with the dog she was handling without being
stopped by security.” Id. (citing JCPenney Int. Bus Stop Fixed Video at 17:00-32:00). The Plaintiffs
admit that Ms. Beaudoin was allowed to exit the Maine Mall so that her service dog, Ghost, could go
to the bathroom, but that was only after she received permission from the security guard, who the
Plaintiffs report “initially told her that she could not go outside . . . and then allowed her when she
said [Ghost] would have an accident. The security guard told her she had to ‘go out and come back
in.’” PRDSMF ¶ 84 (citing T. Beaudoin Dep. Tr. at 41:1-20).

The parties dispute the same fact at PSAMF ¶ 116 and DRPSAMF ¶ 117. PSAMF ¶ 116 says,
in relevant part, “When the group was detained while the South Portland Police came, Ms. Beaudoin
asked if she could take Ghost outside to the bathroom, and the Defendants’ Security Guard told her to
go out through a specific exit and ‘You’d better come back in.’ Ms. Beaudoin took Ghost outside to go

31

Specifically, the security guard told Ms. Beaudoin, “You’d better come back in.”
PSAMF ¶ 116; DRPSAMF ¶ 117. Ms. Beaudoin returned to the group through the
same exit approximately thirteen minutes later. DSMF ¶ 85; PRDSMF ¶ 85. At this
point, Abigail sat with Ms. Beaudoin, who was upset and anxious, to give her
support. 53 PSAMF ¶¶ 115-116; DRPSAMF ¶¶ 116-117. Veronica told Ms. Gardner
she needed to leave, and then exited the Maine Mall by way of the unblocked, nearby
exit without being stopped by security.

DSMF ¶¶ 86-87; PRDSMF ¶¶ 86-87.

Veronica later apologized for her “inability to stand in solidarity” with the group.
DSMF ¶ 88; PRDSMF ¶ 88.
At no point during the period the Plaintiffs waited for the police to arrive did
any Maine Mall representative ask the only two permitted questions under Maine
and federal law: (1) is the animal necessary because of a disability? and (2) what task
or service has the animal been trained to perform? 54 PSAMF ¶ 153; DRPSAMF ¶
153.
8.

Arrival of South Portland Police and Plaintiffs’ Exit

to the bathroom.” Id. The Defendants admit this statement “except for the conclusory statement that
the group was detained,” which they deny. DRPSAMF ¶ 117. The Court recounts PSAMF ¶ 116 with
the slight qualification sought by DRPSAMF ¶ 117.
PSAMF ¶ 115 says, in relevant part, “[d]uring the Plaintiffs’ detention by the Mall’s Security
Guards, Abigail performed the task of deep pressure therapy to alleviate Ms. Beaudoin’s anxiety.” Id.
(citing T. Beaudoin Dep. Tr. at 64:13-65:5). DRPSAMF ¶ 116 seeks to qualify this statement, saying
“Security Footage shows no deep pressure therapy performed.” Id. (citing JCPenney Int. Bus Stop
Fixed Video). The Court is unable to determine from the security footage whether it reflects that
Abigail performed deep pressure therapy on Ms. Beaudoin. However, Ms. Beaudoin’s transcript states
only that Abigail sat with her and gave her support; it does not say Abigail provided deep pressure
therapy and the Court amends the Plaintiffs’ statement of fact to reflect her testimony.
53

54
PSAMF ¶ 153 additionally says that these questions were not asked at any point “when
Plaintiffs were illegally discriminated against and detained.” Id. The Defendants correctly reject this
portion of the factual statement as a conclusory statement not supported by the record.

32

Soon after, South Portland police arrived and told Ms. Gardner that the group
had to leave and, “if we failed to do so, we were going to be trespassed. .” 55 DSMF ¶
89; PRDSMF ¶ 89; PSAMF ¶ 151; DRPSAMF ¶ 151.
In front of police and Maine Mall management, while on the phone, Ms.
Gardner said that the Mall is “asking us to leave at this point because it[’]s private
property and they don’t allow service animals in training, but Maine State Law 1312 is that service dogs in training with their trainer are allowed anywhere the public
is allowed.” DSMF ¶ 90; PRDSMF ¶ 90. In MWD’s board member group chat, in a
text message recounting the event, Ms. Gardner wrote, “[Mall security] came down
and I tried to politely explain that service animals in training are protected by
[M]aine state law (apparently there are only four states now that don’t acknowledge
trainees) . . .[.] Under the ADA, individuals can owner [sic] train and work their
dogs.” DSMF ¶ 91; PRDSMF ¶ 91 (all alterations made by Defendants).
The Plaintiffs waited for approximately fifty-two minutes from the initial
confrontation with the security guard to when they left their place on the wall and
headed for the mall’s exit. DSMF ¶ 92; PRDSMF ¶ 92; PSAMF ¶ 150; DRPSAMF ¶

55
PSAMF ¶ 151 additionally states the South Portland police, on the Defendants’ instruction,
threatened the Plaintiffs with arrest and criminal charges if they did not leave the Mall. Id. (citing
Gardner Dep. Tr. at 99:7-14). Defendants contest this portion of the statement. DRPSAMF ¶ 151.
The Court reviewed Ms. Gardner’s deposition transcript at the lines indicated by Plaintiffs and largely
agrees with the Defendants that it does not confirm that the police threatened the group with arrest
and criminal charges; her testimony instead says the “police . . . request[ed] that we leave because the
mall staff had requested that we leave or that we were going to be trespassed; and then we were asked
to leave and paraded out.” Gardner Dep. Tr. at 99:7-14. Even though the police comment that they
would be “trespassed” could be interpreted as threatening arrest and criminal charges if they did not
leave the Mall, the Court construes PSAMF ¶ 151 as alleging what South Portland Police said to
Plaintiffs, not what the police may have implied by what they said. The Court, therefore, amends
PSAMF ¶ 151 to reflect only that the police indicated the group may be trespassing if they did not
leave.

33

150. The group was escorted out of the Maine Mall by a security guard. 56 DSMF ¶
93; PRDSMF ¶ 93; PSAMF ¶ 152; DRPSAMF ¶ 152.
On their way towards the exit, one of the dogs defecated on the floor. DSMF ¶
94; PRDSMF ¶ 94.
J.

Developments After May 7, 2022

In the days following May 7, 2022, Mr. Gorris reached out to MWD via email
and voicemail to discuss setting up a training at the Mall; MWD did not respond. 57
DSMF ¶ 95; PRDSMF ¶ 95; PSAMF ¶ 154; DRPSAMF ¶ 154.
Ms. Gardner and Ms. Ames have been back to the Maine Mall with service dogs
in training since May 7, 2022, and have not been asked to leave by security. DSMF
¶ 96; PRDSMF ¶ 96.
The Plaintiffs filed their complaint with the Maine Human Rights Commission
(MHRC) alleging disability discrimination and MHRA retaliation on August 19, 2022,

56
DSMF ¶ 93 says the group was allowed to exit the mall through the same way they entered.
Id. (citing Gardner Dep. Tr. at 100:4-100:13). The Plaintiffs contend they were instead “allowed to
walk through the Mall in order to comply with the Defendants’ order to leave . . ., but they were
escorted out by the Maine Mall security guard.” PRDSMF ¶ 93 (citing Gould Dep. Tr. at 38:23-39:2;
DSMF, Attach. 12, Melanie Sparks Dep. Tr. at 28:6-10 (Sparks Dep. Tr.); Center Ct. NW Video). Mr.
Gould’s transcript says the group exited the Maine Mall escorted by police officers, Gould Dep. Tr. at
38:23-39:2; Ms. Sparks says the group exited while escorted by a Mall security guard, Sparks Dep. Tr.
at 28:8-10. It is not clear from the Center Court NW Video who escorted the Plaintiffs on their exit.
Consistent with its obligation to view the facts in the light most favorable to the Plaintiffs as the nonmovants, the Court amends DSMF ¶ 93 to reflect the Plaintiffs’ contention, supported by Ms. Spark’s
deposition transcript, that a Mall security officer escorted the Plaintiffs out of the mall.

PSAMF ¶ 152 and DRPSAMF ¶ 152 raise a similar dispute, largely resolved above. However,
PSAMF ¶ 152 additionally contends the Plaintiffs agreed to leave the Mall because they “fear[ed]
further unlawful arrest.” Id. The Court agrees with the Defendants that the deposition transcripts of
Ms. Gardner, Ms. Ames, Ms. Landry, Ms. Sparks, and Mr. Gould, all cited by Plaintiffs, do not support
this part of PSAMF ¶ 152 and amends the statement accordingly.
57
DSMF ¶ 95, admitted by Plaintiffs at PRDSMF ¶ 95, resolves the dispute raised in PSAMF ¶
154 and DRPSAMF ¶ 154.

34

and the MHRC issued right to sue letters on March 31, 2023.

PSAMF ¶ 129;

DRPSAMF ¶ 130.
III.

THE PARTIES’ POSITIONS
A.

The Defendants’ Motion for Summary Judgment

Defendants move the Court to grant summary judgment on each of the four
claims advanced by the Plaintiffs in their complaint. Defs.’ Mot. at 1-2.
1.

MHRA and ADA Claims

Defendants assert their entitlement to summary judgment on Plaintiffs’ claims
that they were discriminated against on account of their disabilities when the
Defendants failed to provide a public accommodation in violation of the MHRA and
ADA. Id. at 6-7 (citing 42 U.S.C. § 12112; 5 M.R.S. § 4591). Defendants acknowledge
the ADA prohibits individual discrimination on the basis of disability “in the full and
equal enjoyment of the goods . . . of any place of public accommodation” and the
MHRA similarly provides that it is a civil right “for every individual to have equal
access to places of public accommodation without discrimination because of . . .
physical or mental disability.” Id. at 7 (quoting 42 U.S.C. § 12182(a); 5 M.R.S. § 4591).
They also note that the MHRA provides that it is unlawful “[f]or any public
accommodation or any person who is the owner, lessor, lessee, proprietor, operator,
manager, superintendent, agent, or employee of any place of public accommodation
to refuse to permit the use of a service animal or otherwise discriminate against an
individual with a physical or mental disability who uses a service animal at the public
accommodation.” Id. (quoting 5 M.R.S. § 4592(8)). Defendants concede that the

35

Maine Mall is a place of public accommodation, as defined by state and federal law.
DSMF ¶ 1.
However, Defendants contend the Plaintiffs’ ADA and MHRA claims fail for
three reasons: (1) the dogs were not “service animals”; (2) Plaintiffs failed to establish
a prima facie case of discrimination based on disability; and (3) Plaintiffs lack
standing to bring claims pursuant to the ADA and MHRA. Id.
a.

Service Animal Classification

Defendants report that it is Plaintiffs’ burden to establish their dogs qualify as
“service animals” under the ADA and MHRA. Id. at 8 (citing Riley v. Bd. of Comm’rs,
No. 4:14-cv-063-JD, 2017 U.S. Dist. LEXIS 153737, at *11 (N.D. Ind. Sept. 21, 2017)
(citation amended)). Both statutes define a “service animal” as “any dog that is
individually trained to do work or perform tasks for the benefit of an individual with
a disability . . .[.] [t]he work or tasks performed by a service animal must be directly
related to the individual’s disability.” Id. (quoting 28 C.F.R. § 36.104; 5 M.R.S. §
4553(9-E)(B)) (emphasis added by Defendants). Defendants contend these laws “only
protect the right to take service animals—as opposed to, e.g., untrained or emotional
support animals—into public facilities,” and a service animal in training is not
afforded the same protections as a fully trained service animal. Id. (first quoting and
then citing Riley, 2017 U.S. Dist. LEXIS 153737, at *12).

Defendants say this

distinction is supported by Department of Justice policy clarifying the scope of the
ADA.

Id. (quoting U.S. Dep’t of Justice, Civil Rights Div.: Frequently Asked

Questions

About

Service

Animals

36

and

the

ADA,

https://www.ada.gov/regs2010/service animal qa.html) (last updated Feb. 28, 2020)
(“[u]nder the ADA, the dog must already be trained before it can be taken into public
places”)). Defendants proceed to cite cases from other federal district courts and the
Tenth Circuit Court of Appeals granting and affirming summary judgment,
respectively, where the implicated service animal was still in training. Id. at 8-9
(citing Riley, 2017 U.S. Dist. LEXIS 153737, at *14; Davis v. Ma, 848 F. Supp. 2d
1105, 1116 (C.D. Cal. 2012); Lewis v. Burger King, 398 Fed. Appx. 323, 325 (10th Cir.
2010)).
Turning to the case at hand, Defendants argue “the record convincingly
establishes that MWD’s dogs were still ‘in training’ on the day of the incident,”
pointing to the admitted facts, among others, that the MWD dogs present at the May
7, 2022 training wore vests identifying them as “service dogs in training” or “in
training,” the training was for “novice” dogs, one of the dogs present at the training
defecated on the Mall floor, and Ms. Gardner argued on the day in question that
service dogs in training were allowed in places of public accommodation. Id. at 9
(citing DSMF ¶¶ 39, 32-34, 94, 90).
Defendants alternatively assert that even if Plaintiffs can establish these dogs
had sufficient training to be classified as service animals within the meaning of the
ADA and MHRA, “all the tasks claimed to have been, or could have been, provided
were emotional,” and emotional support animals are not protected under the federal
and state statutes. Id. at 9-10 (citing 5 M.R.S. § 4553(9-E)(B); 28 C.F.R. § 35.104)
(then collecting cases). They additionally aver that when Mall security confronted

37

the Plaintiffs, the dogs only provided “emotional support and comfort related tasks.”
Id. at 10.
Defendants also contest Plaintiffs’ ADA and MHRA claims because “neither
the volunteers nor Gardner owned the dogs—the non-profit did.” Defs.’ Mot. at 10.
Defendants insist that “[t]here is a possessory element when qualifying a service
animal; an individual is only allowed to bring into a public place of accommodation a
service animal which belongs to him.” Id. (citing Grill v. Park, No: 6:18-cv-1159-Orl22KRS, 2018 U.S. Dist. LEXIS 249358, at *11-12 (M.D. Fla. Oct. 29, 2018) (holding
that when the plaintiff brought three service animals—one plaintiff’s actual service
dog, another belonging to plaintiff’s friend, and a third in-training—into a place of
public accommodation, the ADA did not require the defendant to permit entry to the
two dogs not belonging to plaintiff) (citation corrected) (emphasis added by
Defendants); 28 C.F.R. § 36.302(c)(7)). Relying on Grill, Defendants emphasize that
“[w]hile an individual is permitted to have more than one service dog for herself, a
service animal may not have multiple owners” because “service animals are not akin
to support devices . . . and cannot be swapped among those with disabilities.” Id. at
10-11 (citing Grill, 2018 U.S. Dist. LEXIS 249358, at *11-12; Lewis, 398 Fed. Appx.
at 325 (“[u]nlike wheelchairs, the dogs are not interchangeable parts of [their] ADA
claim”).
Returning to the instant case, the Defendants apply these holdings to Mr.
Gardner and Ms. Ames by pointing out that both owned a service animal not present
at the May 7, 2022 training. Id. at 12 (citing DSMF ¶¶ 5, 20-21). They additionally

38

state that all remaining Plaintiffs did not have a service dog which belonged to them,
and thus do not have a viable claim under the ADA and MHRA. Id. (citing DSMF ¶¶
22, 24, 25). Defendants contend this applies equally to Mr. Gould; while he was living
with Lady Eleanor on May 7, 2022, she was still owned by MWD. Id. On this point,
the Defendants emphasize that Ms. Gardner “stated that dogs were not assigned
volunteers based on their disability, some of whom have none, but based on the
experience of the handler.” Id. (citing DSMF ¶ 41).
b.

Prima Facie Case of Discrimination

To establish a prima facie case of discrimination on the basis of disability
pursuant to Title III of the ADA, Defendants report that a plaintiff must establish:
(1) that the plaintiff is disabled within the meaning of the ADA; (2) that the defendant
is a private entity that owns, leases, or operates a place of public accommodation; (3)
that the defendant took adverse action against the plaintiff that was based on the
plaintiff’s disability; and (4) that the defendant failed to make reasonable
modifications

that

would

accommodate

the

plaintiff’s

disability

without

fundamentally altering the nature of the public accommodation. Id. at 12-13 (citing
Cutting v. Down E. Orthopedic Assocs., P.A., 278 F. Supp. 3d, 485, 496 (D. Me. 2017)
(in turn quoting Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999)
(amended to provide pin citation)). Defendants note that, except for the availability
of damages, “[i]t is settled law that the MHRA should be construed and applied along
the same contours as the ADA.” Id. at 13 (quoting Dudley v. Hannaford Bros. Co.,
333 F.3d 299, 312 (1st Cir. 2003)).

39

Defendants focus on the third element to argue, first, that they did not take
adverse action against Ms. Gardner, Ms. Ames, and Ms. Dwyer on the basis of a
disability because these three Plaintiffs were not handling dogs at the time of the
incident. Id. Defendants add, “[t]he dogs were also owned by MWD, and not any of
the other Plaintiffs,” id. (citing DSMF ¶ 31), and “[a]s such, these Plaintiffs were not,
and could not be, denied a public accommodation because they had no service animal
to be denied.” Id.
Second, Defendants contest that the Plaintiffs were denied a public
accommodation on the basis of their disabilities, emphasizing that Defendants “told
Plaintiffs to leave,” not because they are disabled, but in response to a report that
there were “several dogs running around freely in their stores.” Id. (citing DSMF ¶¶
45, 50, 61). Upon learning that these were service animals in training, Defendants
note that their representatives told the Plaintiffs that they do not allow service dogs
in training in the Mall. Id. (citing DSMF ¶ 67). They also argue that Plaintiffs have
failed to establish the third element because “Plaintiffs with disabilities and
Plaintiffs without disabilities were treated similarly—both being told to leave and for
the same reason.” Id. Defendants insist that “[t]here is no competent evidence here
that contradicts the fact that Plaintiffs were told to leave because they had an animal
‘in training’ and for no other reason.” Id.
c.

Standing

For a party to invoke federal jurisdiction, Defendants state they must
establish: (1) an injury that is concrete and particularized, and actual or imminent;

40

(2) causation; and (3) redressability. Id. at 14 (citing Cutting, 278 F. Supp. 3d at 492
(in turn citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992))). Plaintiffs
emphasize that a particularized injury “must affect the plaintiff in a personal and
individual way.” Id. (quoting Lujan, 504 U.S. at 606).
i.

Plaintiff Mission Working Dogs

Defendants argue MWD, a non-profit organization, lacks standing to sue
pursuant to the ADA or MHRA because those statutes “provide[] a remedy only to an
individual ‘who is being subjected to discrimination on the basis of a disability.’” Id.
(quoting Shuper v. Pine Tree Legal Assistance, No. 2:14-cv-00478-GZS, 2014 U.S.
Dist. LEXIS 175276, at *6 (D. Me. Dec. 19, 2014)) (citation corrected) (emphasis added
by Defendants).
They additionally contend that MWD cannot claim organizational standing for
the ADA, MHRA, and false imprisonment claims, as they are all “of the nature” that
requires the participation of individual members. Id. at 14 n.1 (citing Parent/Pro.
Advocacy League v. City of Springfield, 934 F.3d 13, 42 (1st Cir. 2019) (“stating that
an ‘organization lacks standing to assert claims of injunctive relief on behalf of its
[constituents] where ‘the fact and extent’ of the injury that gives rise to the claims for
injunctive relief ‘would require individualized proof’”) (in turn quoting Warth v.
Seldin, 422 U.S. 490, 515-16 (1975))).
ii.

Plaintiffs Andre Beaudoin, Colleen Landry,
and Melanie Sparks

Next, Defendants argue Mr. Beaudoin, Ms. Landry, and Ms. Sparks lack
standing to sue pursuant to the ADA and MHRA claims because “they had no legally
41

protected interest under the ADA and MHRA to be violated as they are not disabled.”
Id. at 15 (citing DSMF ¶¶ 7, 12, 28).
iii.

Redressability as to All Plaintiffs

Noting that the only redress available for a Title III ADA claim is injunctive
relief, Defendants argue all Plaintiffs have failed to establish their standing pursuant
to the ADA because the Court cannot provide redress. Id. at 15 (citing Cutting, 278
F. Supp. at 4927). “[I]n the ADA Title III context, the standing inquiry focuses more
‘upon whether the barrier remains in place’ than ‘upon how many attempts a plaintiff
has made to overcome a discriminatory barrier,” they say. Id. (quoting Cutting v.
Down E. Orthopedic Assocs., P.A., No. 1:16-cv-00582-JCN, 2019 U.S. Dist. LEXIS
74086, at *15 (D. Me. May 2, 2019) (citation amended)).
Turning to the instant case, they argue that the Plaintiffs’ argument that
injunctive relief is necessary to prevent irreparable, future harm is inapposite
because “Gardner and Ames have since returned to the Mall with service animals in
training and had not been asked to leave.” Id. (citing DSMF ¶ 96). In addition, they
point out that the Maine Mall contacted MWD via email and voicemail in the days
after May 7, 2022 to discuss setting up a training session. Id. (citing DSMF ¶ 95).
They quote this Court as holding in a prior case that “an injunction is intended to
forestall future violations, not to punish past ones. Accordingly, plaintiffs in Title III
cases are generally required to show ‘some ongoing harm (or, at least, a colorable
threat of future harm).’” Id. (quoting Cutting, 278 F. Supp. at 497)). Defendants
conclude that the Plaintiffs have failed to meet this burden here.

42

d.

Maine’s Model White Cane Law and the MHRA

Defendants next take issue with what they characterize as Plaintiffs attempt
to conflate the MHRA and Maine’s Model White Cane Law. Id. Defendants argue
that a violation of Maine’s Model White Cane Law, which affords disability status
and special rights and privileges to those who are “blind, visually impaired, or
otherwise physically or mentally disabled,” does not allow for the filing of an MHRA
claim. Id. at 15-16. They say that Maine’s Model White Cane Law does not include
a private right of action and “certainly does not create a path by which to generate a
cause of action under the MHRA.” Id. at 16.
Furthermore, Defendants contend that Plaintiffs do not qualify as “specially
trained service dog trainer[s],” proffering both that a “trainer” is an individual, which
MWD is not, and that all Plaintiffs besides MWD and Ms. Gardner are volunteers
and thus not “specially trained service dog trainers.” Id. (emphasis in original) (citing
DSMF ¶ 4).

“All volunteers besides Ames—who gained general experience by

training her own service animal with the help of a service dog trainer—had no
specialized training experience other than through volunteering with MWD.” Id.
(citing DSMF ¶¶ 9, 11, 13, 16, 18, 20, 23, 27, 29). They also contend that Ms. Gardner
was not handling a dog at the time of the incident, and “there is no evidence that this
statute provides an umbrella of protection to every individual working with the
trainer.” Id. (citing DSMF ¶ 6).
2.

False Imprisonment Claim

43

Defendants define false imprisonment as “the unlawful restraint of an
individual’s personal freedom,” and submit that to establish a false imprisonment
claim, Plaintiffs must show: (1) Defendants acted intending to confine Plaintiffs
within boundaries fixed by the actor; (2) Defendants’ act directly or indirectly resulted
in such a confinement of Plaintiffs; and (3) Plaintiffs were conscious of the
confinement or harmed by it. Id. (quoting and then citing Restatement (Second) of
Torts § 35).
a.

Standing as to Mission Working Dogs

Defendants argue that, as a non-profit, MWD lacks standing to claim false
imprisonment because it is not an individual and, by definition, only an individual
can be falsely imprisoned. Id.
b.

Prima Facie Case with Respect to the Individual
Plaintiffs

At bottom, Defendants argue the individual Plaintiffs have failed to establish
a prima facie case of false imprisonment because they cannot demonstrate that they
were confined, given that they remained in the Maine Mall due to their “refus[al] to
leave during the ejection process.” Id. at 17. Thus, the Defendants’ acts did not result
in the Plaintiffs’ confinement. Id. (citing O’Neil v. DaimlerChrysler Corp., 538 F.
Supp. 2d 304 (D. Mass. 2008); McCann v. Wal-Mart Stores, Inc., 210 F.3d 51, 53 (1st
Cir. 2000)).

Distinguishing McCann, wherein the First Circuit determined

reasonable people would believe they would be physically restrained if they
attempted to leave when the defendant’s employees directed the plaintiffs to come
with them back inside the store, referenced the police, stood guard over the plaintiffs,
44

and did not permit one plaintiff to leave to go to the bathroom, Defendants point out
there, here, “Plaintiffs were not ushered back inside the Mall[;] instead they were
repeatedly requested to leave.” Id. (citing McCann, 210 F. 3d at 54; DSMF ¶¶ 50, 61,
67). Defendants add that it was Ms. Gardner, not the Mall security guard, who
directed Plaintiffs to wait for the police’s arrival. Id. (citing DSMF ¶¶ 59, 69, 70).
“Moreover, the record is clear in showing that Plaintiffs did not believe that they
would be restrained physically if they sought to leave as some Plaintiffs had in fact
left the group at different periods without being physically restrained.” Id. (citing
DSMF ¶¶ 80-82, 84-88). Instead, Defendants contend, Plaintiffs stayed in the Mall
voluntarily, taking a “stand in solidarity,” “holding [their] ground,” and “educating
the public.” Id. (quoting DSMF ¶¶ 69, 70, 88). They additionally point out that Mr.
Gould was permitted to follow Mall security personnel and management further into
the Mall with his camera, id. at 18 (citing DSMF ¶¶ 80-82); Mall security did not stop
Veronica from leaving from a nearby exit, id. (citing DSMF ¶ 87), and Ms. Beaudoin
was allowed to leave the Mall with the dog she was handling and return some twelve
minutes later, id. (citing DSMF ¶¶ 84-85). Throughout the encounter, Defendants
say, the security guard was not stationed by or blocking the nearby exit. Id. (citing
DSMF ¶ 87). The facts of this case are similar to those in Crossett v. Campbell, 122
La. 659 (La. 1908), Defendants say, in which the Louisiana Supreme Court
determined there had been no false imprisonment. Id. at 18-19.
3.

Retaliation Claim

45

To establish a claim of retaliation pursuant to the MHRA, Defendants say, a
plaintiff must show they engaged in a protected activity and were discriminated
against for engaging in that activity. Id. at 19. They state that the MHRA also
provides that it “is unlawful for a person to coerce, intimidate, threaten or interfere
with any individual in the exercise or enjoyment of the rights granted or protected by
this Act or because that individual has exercised or enjoyed, or has aided or
encouraged another individual in the exercise or enjoyment of, those rights.” Id.
(quoting 5 M.R.S. § 4633). Here, Defendants say, Plaintiffs’ claim arises out of the
alleged violation of their public accommodation rights and “there was no further
interactions or alleged retaliatory, intimidation, or interference[] of their rights after
the May 7, 2022 incident.” Id. at 19-20. Thus, Defendants say, this claim fails. Id.
at 20.
4.

MHRA Civil Penal Damages

Defendants argue Plaintiffs’ claim for civil penal damages pursuant to the
MHRA is capped at $20,000, not $20,000 per plaintiff, pursuant to 5 M.R.S. § 4613.
Id.
B.

The Plaintiffs’ Opposition

Plaintiffs urge the Court to reject the motion for summary judgment because
a reasonable factfinder could determine the Plaintiffs experienced public
accommodation discrimination in violation of the ADA and MHRA, that the Plaintiffs
were falsely imprisoned by the Defendants agents, and that Defendants engaged in
retaliation. Pls.’ Opp’n at 1-23.

46

1.

MHRA and ADA Claims
a.

Standing
i.

Plaintiff Mission Working Dogs

Plaintiffs contend MWD has standing both because it suffered an injury in its
own right and because it can assert organizational or associational standing. Id. at
10 (citing Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181, 199 (2023) (“In cases like these, where the plaintiff is an organization,
the standing requirements of Article III can be satisfied in two ways. Either the
organization can claim that it suffered an injury in its own right or, alternatively, it
can assert ‘standing solely as the representative of its members’”) (internal citation
omitted))). To establish organizational standing, Plaintiffs say, an organization must
demonstrate: “(a) that its members would otherwise have standing to sue in their own
right; (b) the interests it seeks to protect are germane to the organization’s purpose;
and (c) neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.”

Id. at 10-11 (quoting Students for Fair

Admissions, Inc., 600 U.S. at 199)).
Plaintiffs tell the Court that it previously concluded that an organization which
associates with individuals with disabilities has standing to challenge a municipal
regulation alleged to have a discriminatory effect based on a disability under Title II
of the ADA, and insist “[t]he same reasoning applies to the present cases that arises
under Title III and the MHRA, as the statutes are materially similar in this respect.”
Id. at 11 & n. 5, 6 (citing Metro Treatment of Me., LP v. City of Bangor, No. 1:16-cv-

47

00433-JAW, 2016 U.S. Dist. LEXIS 157619, at *20 (D. Me. Nov. 15, 2016) (“The Court
agrees that Penobscot Metro has standing to bring an ADA claim on its own behalf
under the unique language of Title II”)). On this point, the Plaintiffs note that both
Title II and Title III of the ADA provide relief, respectively, to “any person alleging
discrimination” and “any person who is being subjected to discrimination on the basis
of disability,” and the MHRA similarly provides that complaints filed under the Act
may be brought by “any other person.” Id. at 11 n. 6 (quoting 42 U.S.C. § 12133; 42
U.S.C. § 12188; 5 M.R.S. § 4613(2)). “Person,” in turn, is defined in the MHRA as
“one or more individuals, partnerships, associations, organizations, corporations,
municipal corporations, [or] legal representatives.” Id. (quoting 5 M.R.S. § 4553(7)).
Turning to the present case, Plaintiffs argue MWD has standing either in its
own right or on behalf of its members. Id. at 11. MWD has organizational standing
because its mission of training service animals for disabled individuals, including
support in accessing public spaces, is germane to the present suit, and individual
Plaintiffs’ participation would not be required for MWD to pursue relief against the
Defendants. Id. at 11-12. Other federal district courts have determined that nonprofit advocacy and service organizations have standing where a private entity’s
policies or actions violate disability laws, Plaintiffs say. Id. at 12 (collecting cases).
ii.

Plaintiffs Andre Beaudoin, Colleen Landry,
and Melanie Sparks

Turning to the Defendants’ contention that Mr. Beaudoin, Ms. Landry, and Ms.
Sparks lack standing under the MHRA and ADA because they are not disabled
individuals, Plaintiffs counter that both the state and federal statute define unlawful
48

public accommodation discrimination to include those who are excluded or denied
access “because of the known protected class status of an individual with whom the
individual or entity is known to have a relationship or association.” Id. at 12-13
(quoting 5 M.R.S. § 4592(6)). The MHRA similarly defines “aggrieved person” to
include “any person who claims to have been subject to unlawful discrimination on
the basis of . . . discrimination based on the person’s known relationship or association
with a member of a protected class.” Id. at 13 (quoting 5 M.R.S. § 4553(1-D)). The
ADA includes the same extension, Plaintiffs insist.

Id. (citing 42 U.S.C. §

12182(b)(1)(E) (it is “discriminatory to exclude or otherwise deny equal goods,
services, facilities, privileges, advantages, accommodations, or other opportunities to
an individual or entity because of the known disability of an individual with whom
the individual or entity is known to have a relationship or association”); 28 C.F.R. §
36.205).
For a disabled person’s companion to have associational standing, Plaintiffs
acknowledge they must still show that the relief sought —here, injunctive relief and
civil penal damages—would directly benefit them.

Id. (citing Lorenzo Font v.

Francisco, 260 F. Supp. 2d 394, 400-01 (D.P.R. 2003)). That is met here, they say,
because the non-disabled Plaintiffs were at the Maine Mall with Ms. Gardner, “a
plainly disabled individual as she was wearing shorts at the time that exposed her
prosthetics, advocating for disabled persons,” and all Plaintiffs, not only those with
disabilities, were detained in violation of the Mall’s policy. Id. at 13-14.
iii.

Redressability

49

Addressing the Defendants’ arguments that Plaintiffs have not established
their alleged injury is redressable through judicial intervention, Plaintiffs respond,
first, that “[t]heir decision not to put themselves back in harm[]’[s] way does not
deprive them of standing; there is no requirement that individuals repeatedly subject
themselves to mistreatment.” Id. at 14 (citing Dudley, 333 F.3d at 305 (“We do not
believe that establishing a private right of action under Title III requires a plaintiff
to perform such heroic measures”); Cutting, 2019 U.S. Dist. LEXIS 74086, at *15 (“A
plaintiff’s abstention from desired opportunities based on knowledge of potentially
harmful conduct from others can sometimes be sufficient to establish standing for
prospective relief”). They note that a defendant’s voluntary cessation of challenged
conduct does not deprive a plaintiff of standing when “nothing precludes that
defendant from returning to its presuit ways, in the absence of a court order.” Id. at
15 (quoting Alumni Cruises, LLC v. Carnival Corp., 987 F. Supp. 2d 1290, 1302 (S.D.
Fla. 2013)). Here, they say, the Defendants’ apology to Plaintiffs after the fact and
“single email” sent to employees in May 2022, absent more, do not meet the “heavy
burden of demonstrating that [their] cessation of the challenged conduct renders the
controversy moot.” Id. (quoting Carnival Corp., 987 F. Supp. 2d at 1302)).
Second, Plaintiffs say, they seek not only injunctive relief under the MHRA
and ADA, but also civil penal damages pursuant to the MHRA, which do not require
a threat of future harm. Id.
b.

Prima Facie Case of Discrimination

Plaintiffs proffer they have established a prima facie case of discrimination.

50

i.

Service Animal

First, Plaintiffs say the MHRA and ADA define “service animal” as:
a dog that is individually trained to do work or perform tasks for the
benefit of an individual with a disability, including a physical, sensory,
psychiatric, intellectual or other mental disability . . .. The work or tasks
performed by a service animal must be directly related to the
individual’s disability. Examples of such work or tasks include, but are
not limited to, assisting an individual who is totally or partially blind
with navigation and other tasks, alerting an individual who is deaf or
hard of hearing to the presence of people or sounds, providing nonviolent
protection or rescue work, pulling a wheelchair, assisting an individual
during a seizure, alerting an individual to the presence of allergens,
retrieving items such as medicine or a telephone, providing physical
support and assistance with balance and stability to an
individual with a mobility disability and helping a person with
a psychiatric or neurological disability by preventing or
interrupting impulsive or destructive behaviors.
Id. at 16-17 (quoting 5 M.R.S. § 4553(9-E) (emphasis added by Plaintiffs); 28 C.F.R. §
36.104).
Plaintiffs aver that there is no state or federal standard that must be met
before a dog qualifies as a service animal, nor any requirement that they be trained
in a specific manner or by a professional trainer. Id. at 17 (citing Miller v. Ladd, No.
CV 08-05595 NJV, 2010 U.S. Dist. LEXIS 73050, at *12-13 (N.D. Cal. July 20, 2010)
(“Courts that have considered the training requirement for service animals recognize
that federal regulations do not set forth any standards or requirements specifying the
amount or type of training that an animal must receive to qualify as a service animal,
nor the type or amount of work a service animal must provide for the disabled person.
The relevant question for the court is whether the animal helps the disabled person
perform tasks to ameliorate the ADA disability”) (citation amended); C.L. v. Del Amo

51

Hosp., Inc., 992 F.3d 901, 910-11 (9th Cir. 2021) (“The [ADA] regulations do not
specify by whom the dog must be trained”).
Turning to the instant case, Plaintiffs insist that, while the dogs’ service
training classification is a disputed material fact, the record establishes MWD’s dogs
present at the May 7, 2022 training attained legal status as service animals even
though they had not yet completed MWD’s “exceedingly high certification
requirements.” Id. These dogs were specifically trained to, and did, perform specific
tasks that ameliorated the effects of both physical and mental disabilities of those
individuals with whom they were paired while at the Maine Mall, Plaintiffs say. Id.
at 17-18.

These were not “service animals in training” or “emotional support

animals,” as defined by the ADA. Id. at 18 (citing C.L., 992 F.3d at 911).
Plaintiffs also reject Defendants’ contention that the MHRA and ADA claims
must fail because the Plaintiffs have not established their ownership over the service
animals with whom they were paired on May 7, 2022. Id. at 18. “[T]here is no
statutory requirement under the MHRA or the ADA that a disabled individual prove
an exclusive ownership interest in a service dog in order for them to have the right to
access public spaces with the support of that service dog,” they say, urging to Court
to “not create such a requirement through judicial interpretation [which] would
contravene the plain language . . . and legislative purpose of both the ADA and the
MHRA,” which aimed to assure “equality of opportunity, full participation,
independent living, and economic self-sufficiency.” Id. (first citing 42 U.S.C. § 12191,
then quoting 42 U.S.C. § 12101). Turning to this plain language, Plaintiffs report

52

that the ADA provides that public accommodations shall “permit the use of a service
animal by an individual with a disability,” id. at 18-19 (quoting 28 C.F.R. § 36.302(c)
(emphasis added by Plaintiffs)), and the ADA adopts the word “handler,” not “owner.”
Id. at 19 (citing 28 C.F.R. § 3602 (“A service animal shall be under the control of its
handler”)). The MHRA uses the same language, they say. Id. (citing 5 M.R.S. §
4592(8) (permitting an individual to use “a service animal at the public
accommodation”) (emphasis added by Plaintiffs); Public Accommodation Regulations
of the Maine Human Rights Commission, Ch. 7, 7.04(E) (referring to an individual
with a service animal as a “handler”)). Conceding the statutes at times use the word
“their” in relation to the service animals, Plaintiffs say that while this adjective “has
a possessive meaning, it does not mean ‘owner.’” Id. The cases Defendants cite to
the contrary, Plaintiffs say, are dicta, come from courts outside the First Circuit, and
do not directly address the issue of “ownership” for which Defendants use them. Id.
at 19-20 (collecting cases).
Based on the foregoing, Plaintiffs urge the Court to dismiss the motion for
summary judgment as to their ADA and MHRA claims.
2.

False Imprisonment Claim
a.

Plaintiff Mission Working Dogs

As an initial matter, Plaintiffs respond to Defendants’ contention that the
MWD, an entity, cannot bring a false imprisonment claim on its own behalf;
Defendants misread Plaintiffs’ complaint, they say, because the complaint only brings
this count on behalf of the individual Plaintiffs. Id. at 11 n. 5, 20 n.10.

53

b.

Prima Facie Case with Respect to the Individual
Plaintiffs

Turning to the Defendants’ opposition to the false imprisonment claim brought
by the individual Plaintiffs, Plaintiffs aver that, considering the facts in the light
most favorable to them as the non-moving parties, they have established a prima
facie case and disputes of material fact preclude granting summary judgment on this
claim. Id. at 21. Plaintiffs contend the relevant facts, as follows, evidence their claim:
first, they were ordered to leave the Maine Mall based on an incorrect and illegal
interpretation of the establishment’s policy regarding service animals. Id. When
they asserted their legal right to remain, pointing to the Mall’s own policy,
Defendants’ agents ordered them to remain where they were in the Mall while the
South Portland police were called “for them to be trespassed and arrested.” Id. For
almost an hour, Plaintiffs say, they were guarded by a Mall security officer and
confined to a hallway where the guard instructed the one person he permitted to take
a dog outside to use the bathroom that she “better come right back.” Id. at 21-22.
Based on these facts, Plaintiffs say, they “reasonably understood that at that point
they were not free to leave even if one member of their group was able to quickly
escape.” Id. at 22. The Plaintiffs maintain that the First Circuit does not require
Plaintiffs to have “test[ed] the bounds of their confinement” in order to establish a
prima facie case of false imprisonment. Id.
3.

Retaliation Claim

To establish a claim of retaliation pursuant to 5 M.R.S. § 4633, Plaintiffs say,
the moving parties must show that (1) they engaged in protected conduct; (2) they
54

thereafter suffered an adverse reaction; and (3) there is a causal link between the
protected activity and the adverse action. Id. (citing Doyle v. Dep’t of Hum. Servs.,
2003 ME 61, ¶ 20, 824 A.2d 48) (citation amended). “[P]rotected activity” is broadly
defined as conduct by the plaintiff that is in opposition to an unlawful employment
practice of the defendant, Plaintiffs aver. Id. (citing Thompson v. MaineHealth, 656
F. Supp. 3d 251, 257-58 (D. Me. 2023)). They clarify that an MHRA retaliation claim
does not require there to have in fact been an underlying unlawful activity; a
reasonable person’s perception of such activity suffices.

Id. (citing Porietis v.

Tradesmen Int’l, LLC, 227 F. Supp. 3d 126, 137-38 (D. Me. 2017)).
Plaintiffs contend the Defendants incorrectly frame the retaliation claim
advanced in the complaint, and argue that they have established a prima facie case
that they engaged in protected conduct in several ways: (1) accessing the Maine Mall
with service animals; (2) several of the named Plaintiffs (Ms. Gardner, Mr. Gould,
and Ms. Dwyer) asserted their right to access the Mall on the same terms and
conditions as non-disabled individuals to the Defendants’ representatives, vocally
opposing their detention and ejection; (3) disabled Plaintiffs exercised their right to
be at the Maine Mall with service animals; and (4) all of the individual Plaintiffs
aided and encouraged the other Plaintiffs in their assertion of rights and opposition
to unlawful actions. Id. at 23. As a result of these actions, Plaintiffs say they were
detained and then ejected from the Mall under threat of criminal action—both actions
they define as adverse. Id. Further, they say that “Defendants’ retaliatory motive is
evidenced by their agents’ refusal to follow the Mall’s own written policy when it was

55

shown to them or to look up the laws that were cited to them by Ms. Gardner as
protecting the Plaintiffs.” Id. Plaintiffs characterize the Defendants’ actions as
“intentional and malicious actions over the course of more than an hour to penalize a
group of marginalized individuals who dared assert their rights and speak out in the
face of discriminatory practices.” Id. at 23-24.
4.

MHRA Civil Penal Damages

Plaintiffs dispute the Defendants’ characterization that their civil penal
damages pursuant to the MHRA are capped at $20,000, insisting this amount is
awardable to each Plaintiff. Id. at 24. In support, they reason that civil penal
damages are not remedial; they are punitive, with a goal of deterrence. Id. (citing
Doran v. Univ. of Me. at Farmington, No. CV-83-134, 1986 Me. Super. LEXIS 112, at
*3-4 (Me. Super. Ct. May 12, 1986) (“civil penal damages are what the statute
suggests, an award to penalize wrongdoing”) (collecting cases). Plaintiffs’ recovery is
not limited merely because they elected to consolidate their claims together for the
sake of judicial efficiency, they argue, and to hold otherwise would “elevate form over
function” and fly in the face of the spirit of the MHRA, which is to remedy and deter
unlawful discrimination. Id. at 25.
Based on the foregoing, Plaintiffs move the Court to dismiss the motion for
summary judgment.
C.

The Defendants’ Reply

At bottom, Defendants allege that the Plaintiffs have not met their burden to
demonstrate “through submissions of evidentiary quality, that a ‘trial worthy issue’

56

persists” on any of their claims, such that the Court should grant summary judgment.
Defs.’ Reply at 1 (quoting Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1,
9 (1st Cir. 2012)).
1.

The Factual Record

As an initial matter, Defendants argue that the Plaintiffs, in their response to
the Defendants’ statement of material facts (PRDSMF) and their additional material
facts (PSAMF), submit Ms. Gardner’s “own subjective beliefs and unsupported factual
assertions,” cited only by Ms. Gardner’s own affidavit, “in an effort to create issues of
fact.” Id. at 2 (citing PSAMF ¶¶ 104, 106, 130, 131, 145, 149). They also contend the
Plaintiffs make “numerous arguments in their facts, which are not supported by the
record,” and manufacture issue with the Defendants’ factual statements.

Id.

Defendants argue that the material facts essential to this case are undisputed and
uncontradicted. Id. at 2-4 (citing DSMF ¶¶ 32, 33, 38-43, 58-60, 62, 63, 66, 69-72, 74,
75, 77-82, 86-92, 94, 96).
2.

MHRA and ADA Claims
a.

Standing
i.

Plaintiff Mission Working Dogs

Defendants reiterate their argument that MWD cannot assert organizational
standing without showing that “neither the claim asserted nor the relief requested
requires the participation of individual members in the lawsuit.” Id. at 4 (quoting
Pls.’ Opp’n at 11). First, Defendants say that Plaintiffs rely on the testimony of
various volunteers, and their claims for relief are all “of the nature” that requires the

57

participation of individual members.
League, 934 F.3d at 42).

Id. (quoting Parent/Professional Advocacy

Defendants further aver that the organization’s

participation in this suit is “improper” because “the individual [Plaintiffs] are already
parties to the case.” Id.
ii.

Redressability as to All Plaintiffs

Defendants reassert that Plaintiffs lack the capacity for redress under the ADA
because “an injunction would prove futile, as there exists no irreparable, future
harm.” Id. Plaintiffs’ attempt to “weave a web of wrongdoing” by submitting facts
indicating otherwise “is nothing more than a trojan horse in the face of summary
judgment,” Defendants claim. Id. at 5.
b.

Prima Face Case of Discrimination
i.

Service Animal Classification

Defendants continue to insist the Plaintiffs have not established the dogs
present at the May 7, 2022 training were “service animals” rather than “service
animals in training.” Id. In response to the Plaintiffs’ argument that the Defendants
cited caselaw outside the First Circuit to address the question of ownership,
Defendants respond that the caselaw surrounding this issue is “scant” and that
Plaintiffs provided no additional citations of their own. Id. Defendants further insist
their citations support their interpretation of the ADA. The U.S. District Court for
the Central District of California in Davis v. Ma, 848 F. Supp. 2d 1105, they say,
noted that “[t]he ADA does not create unlimited license for disabled customers to
enter facilities of public accommodation with their pets. The federal regulations limit

58

protected entry to trained service animals that help ameliorate their owner’s
qualifying disability.” Id. at 5-6 (quoting Davis, 848 F. Supp. 2d at 1116 (C.D. Cal.
2012)) (emphasis added by Defendants). In Grill, they continue, the District of
Florida agreed with Davis’s interpretation of the ADA, holding that:
If Congress or the DOJ intended for the ADA to allow service animal
trainers to train animals in places of public accommodation, they could
have drafted a provision stating so as [other states have] done . . .. the
ADA allows disabled individuals to bring their service animals into
places of public accommodation. The ADA regulations define service
animal as a “dog that is individually trained to do work or perform tasks
for the benefit of an individual with a disability.”
Id. at 6 (quoting Grill, 2018 U.S. Dist. LEXIS 249358, at *13 (in turn quoting 28
C.F.R. § 36.104)) (emphasis added by Defendants).
Defendants insist that the service animals present at the training “were
neither individually trained nor were they the volunteers’ service animals.” Id. They
further aver that “the record demonstrates that the volunteers were paired with the
dogs based on their volunteer experience, and not because of their disability.” Id.
(citing DSMF ¶ 41). Defendants add that Mr. Beaudoin, Ms. Landry, and Ms. Sparks
“are not even disabled,” and Ms. Gardner and Ms. Dwyer were not handling dogs on
May 7, 2022 to ameliorate any disability. Id. at 6-7.
Further, Defendants again argue that the record does not establish the dogs
had already attained legal status as service animals; “[t]he record is clear that these
were dogs in training by any standard,” and thus do not qualify for protection under
the ADA. Id. at 7-8. Defendants specifically resume their argument that the record,
including the JCPenney security footage, does not show the animals performing “deep

59

pressure therapy” on the day in question. Id. at 8 (citing PSAMF ¶¶ 113, 115).
“Instead, the video shows volunteers who are smiling, talking, and petting [MWD]’s
arbitrarily assigned puppies.” Id.
ii.

Adverse Action by Reason of Disability

Defendants reiterate that “Plaintiffs have failed to show that the ejection from
the Mall ‘was by reason of [their] disabilit[ies].’” Id. at 8 (alterations made by Court).
They contend that the Mall’s employees did not exclude or otherwise discriminate
against Plaintiffs on the basis of disability; rather, the Mall ejected the group because
the dogs were service animals in training. Id. Defendants argue further that even if
Plaintiffs could establish that MWD’s dogs were fully trained service animals able to
ameliorate an individual’s particularized disability, “the Mall had no reason to
believe or know that the dogs were anything other than in training, as indicated by
vests that read ‘in training’ or ‘service animals in training.’” Id. at 8-9. Ms. Gardner
did not attempt to persuade the security guard otherwise on May 7, 2022, Defendants
say. Id. at 8 (citing DSMF ¶¶ 90, 91).
3.

False Imprisonment Claim

Defendants again reject Plaintiffs’ assertion that established facts support
their claim that they were falsely imprisoned.

Id. at 9.

“The record is clear,”

Defendants say: “Ms. Gardner instructed the group to sit against the wall while she
spoke with [] security, various Mall personnel told the group to leave the Mall and
Plaintiffs refused to do so, the security guard was not blocking the nearby exit, Mr.
Gould walked deeper into the Mall without being stopped, one volunteer left without

60

being stopped, and several of the volunteers sent text messages demonstrating the
choice to ‘stand in solidarity’ to ‘educate the public.’” Id. at 9-10.
4.

Retaliation Claim

Defendants proffer that Plaintiffs “confuse and combine” their claims for public
accommodation and retaliation, implying that every public accommodation claim
would lead to a retaliation claim. Id. at 10. This is incorrect, Defendants say: “[t]here
is no viable retaliation claim under the MHRA for public accommodation [and]
[r]etaliation claims apply to employment, not public accommodation.” Id. In the
alternative, Defendants say, Plaintiffs cannot establish they engaged in any protected
conduct so as to have a viable claim for retaliation pursuant to the MHRA. Id.
5.

Civil Penal Damages

Defendants maintain that section 4613(2)(B)(7) of the MHRA caps the total
award of civil penal damages at $20,000. Id. (quoting 5 M.R.S. § 4613(2)(B)(7) (“an
order to pay to the victim, the commission, or both, civil penal damages not in excess
of $20,000 in the case of the first order under this Act against the respondent”)).
“Absurd results” would transpire if Plaintiffs were permitted to “circumvent” this cap
by “target[ing] a non-accessible facility” as a group and “file a massive claim.” Id.
Defendants maintain that the purpose of the MHRA is to remedy public
accommodation issues, not enrich those who bring claims. Id.
Defendants conclude by urging the Court to grant their motion for summary
judgment as to all counts in Plaintiffs’ complaint. Id. at 11.

61

IV.

LEGAL STANDARD
Summary judgment is proper when “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.” FED. R. CIV. P. 56(a). “Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are those whose ‘existence or
nonexistence has the potential to change the outcome of the suit.’” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de P.R.,
Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011)).
When the movant “has made a preliminary showing that there is no genuine
issue of material fact, the nonmovant must ‘produce specific facts, in suitable
evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.
City of Newburyport, 252 F. App’x 328, 332 (1st Cir. 2007) (alteration in original)
(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
The nonmoving party must provide “‘enough competent evidence’ to enable a
factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294
F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d
1113, 1116 (1st Cir. 1993)). Then, a “court views the facts and draws all reasonable
inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex,
Inc., 632 F.3d 31, 35 (1st Cir. 2011), disregarding “[c]onclusory allegations,
improbable inferences, acrimonious invective, or rank speculation.” Mancini v. City
of Providence ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v.
Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)).

62

“[T]he plain language of Rule 56(c)

mandates entry of summary judgment . . . 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.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
V.

DISCUSSION
A.

MHRA and ADA Claims

In enacting the ADA, Congress provided a broad mandate to eliminate
disability discrimination nationwide. PGA Tour, Inc. v. Martin, 532 U.S. 661, 674-75
(2001).

In doing so, Congress expressly found that “[d]iscrimination against

individuals with disabilities persists in such critical areas as . . . public
accommodations” among others. 42 U.S.C. § 12101(a)(3). Title III of the Act forbids
discrimination against disabled individuals in public accommodations, including a
“bakery, grocery store, clothing store, hardware store, shopping center, or other sales
or rental establishment.” Id. §§ 12181(7)(E), 12182. “It sends a bluntly worded
message to those establishments that fall within its purview: you may not
discriminate against an individual in the full and equal access to goods and services
on the basis of a disability.” Dudley, 333 F.3d at 303.
Section 12182(a) of the ADA defines discrimination to include “failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally alter the nature

63

of such goods, services, facilities, privileges, advantages, or accommodations.” 42
U.S.C. § 12182(a). Like Title III, the MHRA is designed to ensure equal access to
public accommodations. See 5 M.R.S. §§ 4552, 4591, 4592. Ordinarily, “the MHRA
should be construed and applied along the same contours as the ADA.” Dudley, 333
F.3d at 312. Following this well-established precedent, the Court largely treats the
MHRA and ADA claims together. 58
In Dudley, the First Circuit cited Amir v. St. Louis University, 184 F.3d 1017
(8th Cir. 1999) for its recitation of what a plaintiff must show in a Title III case.
Dudley, 333 F.3d at 307. In Amir, the plaintiff alleged that a university discriminated
against him on the basis of his obsessive-compulsive disorder when it assigned him a
failing grade in a psychiatry clinic and expelled him after he filed a grievance. The
Amir Court expounded, “[a] person alleging discrimination under Title III must show
(1) that he is disabled within the meaning of the ADA, (2) that the defendant is a
private entity that owns, leases, or operates a place of public accommodation, (3) that
the defendant took adverse action against the plaintiff that was based upon the
plaintiff’s disability, and (4) that the defendant failed to make reasonable
modifications

that

would

accommodate

the

plaintiff’s

disability

without

fundamentally altering the nature of the public accommodation.” 184 F.3d at 1027
(citing 42 U.S.C. § 12182(a) and (b)(2)(A)(ii)).
Defendants argue that summary judgment is warranted on the Plaintiffs’ Title
III and MHRA claims because (1) Plaintiffs lack prudential standing to seek relief
As discussed elsewhere in this order, the MHRA and ADA diverge in the relief they afford, and
the Court addresses this distinction as regards the issue of Plaintiffs’ standing.
58

64

pursuant to the ADA; (2) the factual record does not support that Plaintiffs
experienced an adverse action on account of disability; and (3) it exceeds the
requirement of a reasonable accommodation for the Maine Mall to allow entry to
service animals in training.
It is undisputed that the Maine Mall is a place of public accommodation as
defined by 42 U.S.C. § 12181(7)(E) and 5 M.R.S. § 4592. DSMF ¶ 1; PRDSMF ¶ 1;
PSAMF ¶¶ 125-126, 128; DRPSAMF ¶¶ 126-127, 129.
1.

Standing

As an application of the United States Constitution’s limitation of the Article
III courts’ jurisdiction to “Cases” and “Controversies,” U.S. CONST. art. III, § 2, cl. 2,
the United States Supreme Court has developed the doctrine of constitutional
standing. In Lujan v. Defenders of Wildlife, the Supreme Court elucidated the three
elements of the “irreducible constitutional minimum of standing” that a party
invoking federal jurisdiction must establish: (1) an injury in fact that is concrete and
particularized, and actual or imminent; (2) a causal connection between the injury
and conduct complained of; and (3) a likelihood that the court could redress the injury
with a favorable decision. 504 U.S. at 560-61.
Defendants do not appear to contest that Plaintiffs have Article III standing to
bring their claims pursuant to the ADA and MHRA. Rather, they challenge standing
on prudential grounds and assert that (1) all Plaintiffs have failed to establish that
the injunctive relief afforded by the ADA will redress their past injury; (2) MWD, as
a non-profit organization, lacks standing to seek relief pursuant to the ADA and

65

MHRA; and (3) the three non-disabled Plaintiffs do not have a cause of action under
the federal or state statute.
a.

Injunctive Relief under Title III

“[M]oney damages are not an option for private parties suing under Title III of
the ADA.” Goodwin v. C.N.J., Inc., 436 F.3d 44, 50 (1st Cir. 2006). Title III provides
that both private litigants and the Attorney General may seek injunctive relief. 42
U.S.C. § 12188(a)-(b); 42 U.S.C. § 2000a-3; see Goodwin, 436 F.3d at 50. However,
only the latter can seek such relief solely on the basis of past harm. Id. “Title III is
not intended to provide redress [to individuals] for past discrimination that is
unlikely to recur . . .,” Dudley, 333 F. 3d at 304, and an injunction is intended to
forestall future violations, not to punish past ones. Accordingly, plaintiffs in Title III
cases are generally required to show “some ongoing harm (or, at least, a colorable
threat of future harm).” Id. (citing 42 U.S.C. § 2000a–3(a) (permitting a civil action
for injunctive relief whenever “there are reasonable grounds to believe that any
person is about to engage in any [prohibited] act or practice”) (emphasis in original));
see Fiedler v. Ocean Props., Ltd., 683 F.2d 57, 73 (same). This corresponds with the
axiomatic need, in the context of injunctive relief more generally, for a plaintiff to
show that an injunction is necessary to prevent irreparable harm. See Nat’l Tank
Truck Carriers, Inc. v. Burke, 608 F.2d 819, 824 (1st Cir.1979).
As the First Circuit noted, the standard for Title III plaintiffs to show a real
and immediate threat of future harm “has been adapted from” the constitutional
standing injury-in-fact inquiry. Dudley, 333 F.3d at 305-06. An injury in fact is the

66

invasion of a legally protected interest which is neither conjectural nor hypothetical.
Lujan, 504 U.S. at 560. Such invasion must affect the plaintiff in a personal and
individual way.

Id.

The plaintiff must show that he or she “sustained or is

immediately in danger of sustaining some direct injury as the result of the challenged
. . . conduct and [that] the injury or threat of injury [is] both real and immediate . . ..”
City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983). “[A] plaintiff seeking
injunctive relief premised upon an alleged past wrong must demonstrate a ‘real and
immediate threat’ of repeated future harm to satisfy the injury in fact prong of the
standing test.” Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1333 (N.D. Cal. 1994)
(quoting Lyons, 461 U.S. at 111).
In the instant case, Defendants argue that all Plaintiffs lack standing pursuant
to Title III because they have failed to show injunctive relief will redress “some
ongoing harm (or, at least, a colorable threat of future harm).” Defs.’ Mot. at 15
(quoting Cutting, 278 F. Supp. at 497). They contend Plaintiffs’ argument that
injunctive relief is necessary to prevent irreparable, future harm is inapposite
because, subsequent to the incident on May 7, 2022, “Gardner and Ames have . . .
returned to the Mall with service animals in training and ha[ve] not been asked to
leave.” Id. (citing DSMF ¶ 96). In addition, they point out that the Maine Mall
contacted MWD via email and voicemail in the days after May 7, 2022 to discuss
setting up a training session, and did not receive a response. Id. (citing DSMF ¶ 95).
Plaintiffs counter that “[t]heir decision not to put themselves back in harm[]’[s]
way does not deprive them of standing,” as “there is no requirement that individuals

67

repeatedly subject themselves to mistreatment.” Pls.’ Opp’n at 14 (citing Dudley, 333
F.3d at 305 (“We do not believe that establishing a private right of action under Title
III requires a plaintiff to perform such heroic measures”); Cutting, 2019 U.S. Dist.
LEXIS 74086, at *15 (“A plaintiff’s abstention from desired opportunities based on
knowledge of potentially harmful conduct from others can sometimes be sufficient to
establish standing for prospective relief”). Plaintiffs note further that a defendant’s
voluntary cessation of challenged conduct does not deprive a plaintiff of standing
when “nothing precludes that defendant from returning to its presuit ways, in the
absence of a court order.” Id. at 15 (quoting Carnival Corp., 987 F. Supp. 2d at 1302).
Plaintiffs aver that “Defendants have done nothing to ensure something like this
never happens against except that Mr. Gorris sent a single email in May of 2022
reminding its employees and Security personnel that both service animals and
service animals in training are allowed in the Maine Mall under State law and the
Mall’s policy.” Id. at 9. Plaintiffs’ say this remedial conduct, absent more, does not
meet the “heavy burden of demonstrating that [Defendants’] cessation of the
challenged conduct renders the controversy moot.” Id. at 15 (quoting Carnival Corp.,
987 F. Supp. 2d at 1302)) (alteration made by Court).
Plaintiffs are correct that to demonstrate a likelihood of future harm pursuant
to Title III, a person with a disability need not “engage in a futile gesture if such
person has actual notice that a person or organization covered by this subchapter
does not intend to comply with its provisions.” 42 U.S.C. § 12188(a)(1). “[T]he
existence of private right of action under section 12188(a)(1) does not depend upon

68

how many attempts a plaintiff has made to overcome a discriminatory barrier, but,
rather, upon whether the barrier remains in place.” Dudley, 333 F.3d at 305. Here,
Plaintiffs challenge the Defendants’ corrective action as insufficient to ameliorate the
risk of future harm.
In addition, while courts have determined a disabled individual has suffered
an injury pursuant to Title III once he has “become aware of discriminatory
conditions existing at a public accommodation . . . and is thereby deterred from
visiting or patronizing that accommodation,” Dudley, 333 F.3d at 305 (quoting
Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 2002)), here, two
Plaintiffs returned to the Maine Mall after May 7, 2022 and were not asked to leave.
DSMF ¶ 96; PRDSMF ¶ 96.

Plaintiffs stress that “only two” of the individual

Plaintiffs have since returned, and they only visited the Mall’s food court, Pls.’ Opp’n
at 9; Defendants insist that this indicates no threat of future harm exists and
injunctive relief is thus unwarranted as to any Plaintiff. Defs.’ Reply. at 4.
Although this is a close call, the Court concludes Plaintiffs have sufficiently
pleaded a colorable threat of future harm and thus demonstrated the possibility of
redress pursuant to Title III. “[I]t is elementary that at summary judgment a court
must view the record in the light most favorable to the nonmoving party and draw all
reasonable inferences in favor of the same.” Chadwick v. WellPoint, Inc., 561 F.3d
38, 40 (1st Cir. 2009). If such facts and inferences could support a favorable verdict
for the nonmoving party, then there is a trial-worthy controversy and summary

69

judgment should not be granted. Azimi v. Jordan’s Meats, Inc., 456 F.3d 228, 241
(1st Cir. 2006).
Here, the factual record supports that only two of the ten individual Plaintiffs
in this suit have returned to the Maine Mall after May 7, 2022. What distinguishes
the events of May 7, 2022 from these subsequent visits seems obvious. The Mall does
not find it objectionable when a few disabled people appear with their service
animals. But by its actions on May 7, 2022, the Mall draws the line when ten disabled
persons enter its premises en masse and use it to train service animals. The Mall’s
response to this lawsuit has given no assurance that if as many as ten disabled people
came to the Mall in the future and used it to train their multiple service animals, the
Mall would not again instruct them to leave and call the police to oust them on pain
of criminal charges for trespassing.
Furthermore, based on this record and the absence of sufficient corrective
action by the Mall, the Court reasonably infers that the remainder have not returned
because they fear the violations are ongoing and it would be futile to again seek, and
potentially be denied, access because the Defendants have not taken sufficient action
to make it unlikely their injury would not recur. See Pls.’ Opp’n at 9 (“Defendants
have done nothing to ensure something like this never happens against except that
Mr. Gorris sent a single email in May of 2022 reminding its employees and Security
personnel that both service animals and service animals in training are allowed in
the Maine Mall under State law and the Mall’s policy”).

70

The District of Puerto Rico recently concluded there was no credible threat of
future harm where, after an allegedly discriminatory incident, “signs were posted at
the entrance of all [public accommodation] localities, stating that service animals
specifically trained to help disabled persons are allowed on the premises,” and “that
same month, a memorandum was issued to all employees detailing management’s
policy with respect to the ADA compliance as to service animals, instructing
personnel on the ADA requirements and the way employees should address visitors
who are accompanied by service animals.” Roman v. Hatillo Cash & Carry, 2019 U.S.
Dist. LEXIS 230960, at *11-12 (D.P.R. June 24, 2019).

In addition, the public

accommodation “required all employees to sign an acknowledgment receipt of said
memorandum, which was then placed on each employee file, and the memorandum
is provided to any new employee, who likewise is required to sign.” Id. at *12. The
entity also gave all employees training regarding patrons with service animals. Id.
at *14. The record in this case does not show the nearly the same degree of remedial
measures undertaken by the Defendants. See Pls.’ Opp’n at 9.
The Court’s conclusion that Plaintiffs have pleaded enough at this stage is
consistent with the Supreme Court’s instruction for courts to take a broad view of
standing in civil rights cases, especially were, as under the ADA, “complaints by
private persons are the primary method of obtaining compliance with the Act.”
Fiedler, 683 F.2d at 65 (quoting Trafficante v. Metropolitan Life Ins. Co., 409 U.S.
205, 209 (1972)). It is also consistent with Congress’ intent for the ADA to provide
broad protections for individuals with disabilities. Dudley, 333 F.3d at 307 (“Limiting

71

Title III relief to instances in which a future violation appears certain to occur would
create a standard far more demanding than that contemplated by the congressional
objectives that influenced the ADA”).
The Court proceeds to consider Defendants’ challenge to the prudential
standing of MWD and the three non-disabled Plaintiffs.
b.

Plaintiff Mission Working Dogs

In essence, Defendants argue that MWD, a non-profit organization, cannot
obtain redress pursuant to the MHRA and ADA because the statutes “provide[] a
remedy only to an individual ‘who is being subjected to discrimination on the basis of
a disability.’” Defs.’ Mot. at 13 (quoting Shuper, 2014 U.S. Dist. LEXIS 175276, at *6)
(emphasis added by Defendants).

They additionally contend that MWD lacks

organizational standing because the ADA and MHRA claims are all “of the nature”
that requires the participation of individual members.

Id. at 14 n.1 (citing

Parent/Professional Advocacy League, 934 F.3d at 42 (“stating that an ‘organization
lacks standing to assert claims of injunctive relief on behalf of its [constituents] where
‘the fact and extent’ of the injury that gives rise to the claims for injunctive relief
‘would require individualized proof’”)).

Plaintiffs counter that MWD has both

individual and organizational standing and direct the Court to its recent holding that
an organization that associates with disabled individuals has standing to challenge a
municipal regulation pursuant to Title II of the ADA. Pls.’ Opp’n at 10-11 (citing
Metro Treatment of Me., LP, 2016 U.S. Dist. LEXIS 157619, at *20).

72

The Court in Metro Treatment of Me., LP concluded that an organization had
standing to bring an ADA claim on its own behalf “under the unique language of Title
II.” Metro Treatment of Me., LP, 2016 U.S. Dist. LEXIS 157619, at *20. Plaintiffs
acknowledge they bring suit pursuant to a different provision of the ADA, but proffer
“[t]he same reasoning applies to the present case . . . as the statutes are materially
similar in this respect.” Pls.’ Opp’n at 11. They compare the plain language of Title
II, which provides relief to “any person alleging discrimination on the basis of
disability,” id. at 11 n. 6 (quoting 42 U.S.C. § 12133) (emphasis added by Plaintiffs),
with Title III, which similarly extends to “any person who is being subjected to
discrimination on the basis of disability in violation of this subchapter or who has
reasonable grounds for believing that such person is about to be subjected to
discrimination in violation of section 12183 of this title,” id. (quoting 42 U.S.C. §
12188) (emphasis added by Plaintiffs). They also point out that the MHRA broadly
defines “person”

as

“one

or more

individuals,

partnerships,

associations,

organizations, corporations, municipal corporations, [or] legal representatives”)
(quoting 5 M.R.S. § 4553(7)). Id.
The Court agrees with Plaintiffs that an organization, such as MWD, can seek
relief on its own behalf pursuant to the ADA and MHRA. The statutes define “person”
broadly

to

encompass

not

only

natural

persons,

but

“associations”

and

“organizations,” 5 M.R.S. § 4553(7), thus appearing to expressly contemplate
standing for a nonprofit entity like MWD.

73

In addition, Title III of the ADA goes further than Title II in defining
discrimination to include conduct directed at an entity based on its relationship or
association with disabled persons.

See 42 U.S.C. § 12182(b)(1)(E) (“It shall be

discriminatory to exclude or otherwise deny equal goods, services, facilities,
privileges, advantages, accommodations, or other opportunities to an individual or
entity because of the known disability of an individual with whom the individual or
entity is known to have a relationship or association”); Innovative Health Sys., 117
F.3d at 47. MWD’s undisputed mission is to support the community by training
service dogs for individuals with mental and physical disabilities, PSAMF ¶ 99;
DRPSAMF ¶ 99, such that the Court readily concludes it is an “entity . . . known to
have a relationship or association” with disabled individuals.

42 U.S.C. §

12182(b)(1)(E).
The next question is whether MWD’s Title III standing authorizes it to seek
injunctive relief. The issue is complicated by the conclusion that in pursuing a Title
III claim, a service animal training organization is not merely suing on behalf of its
volunteers, but also on its own behalf. MX Grp., Inc. v. City of Covington, 293 F.3d
326, 335 (6th Cir. 2002) (“Plaintiff is not an association suing solely on behalf of its
members. Instead, it is an entity suing primarily on its own behalf, because of injury
it suffered as a result of its association with individuals with disabilities”). While
Defendants contend all Plaintiffs lack standing to pursue injunctive relief for a past
violation, an issue resolved above, they do not specifically allege MWD lacks standing
to pursue injunctive relief due to its organizational status. Therefore, the Court

74

assumes MWD’s status as an organization does not prevent it from obtaining
injunctive relief on behalf of its volunteers. Accord Gniewkowski v. Lettuce Entertain
You Enters., 251 F. Supp. 3d 908, 914 (W.D. Pa. 2017) (concluding that a non-profit
organization providing advocacy services for blind individuals had standing where
the organization sought an injunction to remedy allegation that a bank’s website was
not accessible to blind individuals and violated the ADA); see also Me. Human Rights
Comm’n v. Sunbury Primary Care, P.A., 770 F. Supp. 2d 370, 399-400 (D. Me. 2011)
(concluding a government agency had standing to seek injunctive relief on behalf of
those it was statutorily authorized to represent even though the agency itself did not
suffer an injury). This is consistent with the Supreme Court’s directive for lower
courts to take a broad view of standing in civil rights cases, including those
addressing the ADA. Trafficante, 409 U.S. at 209.
In sum, the Court concludes MWD has standing to seek injunctive relief
pursuant to Title III of the ADA and the MHRA.
c.

Plaintiffs Andre Beaudoin, Colleen Landry, and
Melanie Sparks

A similar question arises with regards to Mr. Beaudoin, Ms. Landry, and Ms.
Sparks, three individual Plaintiffs in this suit who are not disabled. To have an
actionable claim under Title III, a plaintiff must establish, among other things, that
“he is disabled within the meaning of the ADA.” Amir, 184 F.3d at 1027 (citing 42
U.S.C. § 12182(a) and (b)(2)(A)(ii)). Defendants argue Mr. Beaudoin, Ms. Landry, and
Ms. Sparks lack standing pursuant to the ADA and MHRA because “they had no
legally protected interest under the ADA and MHRA to be violated as they are not
75

disabled.” Defs.’ Mot. at 15 (citing DSMF ¶¶ 7, 12, 28). Plaintiffs contend these three
individuals have standing because unlawful public accommodation discrimination in
violation of Title III and the MHRA includes those who are excluded or denied access
“because of the known protected class status of an individual with whom the
individual or entity is known to have a relationship or association.” Pls.’ Opp’n at 1213 (quoting 5 M.R.S. § 4592(6)) (later citing 42 U.S.C. § 12182(b)(1)(E) for the same
proposition).
Plaintiffs are correct that Title III plainly permits associational standing. See
42 U.S.C. § 12182(b)(1)(E). Further, the factual record supports that on May 7, 2022,
Mr. Beaudoin, Ms. Landry, and Ms. Sparks volunteered at a service animal training
session, DSMF ¶ 4; PRDSMF ¶ 4, held by an organization that specifically serves that
purpose, DSMF ¶ 32; PRDSMF ¶ 32. At the May 7, 2022 training, Mr. Beaudoin, Ms.
Landry, and Ms. Sparks handled dogs wearing vests identifying them as service
animals in training, DSMF ¶ 39; PRDSMF ¶ 39, and volunteered alongside plainly
disabled individuals, including Ms. Gardner, who is a double below-the-knee amputee
and was wearing shorts exposing her prosthetics on the day in question. PSAMF ¶
109; DRPSAMF ¶ 109. Based on this record, it is readily apparent that the three
non-disabled Plaintiffs were “known to have a relationship or association” with
individuals with a “known disability” on May 7, 2022. 42 U.S.C. § 12182(b)(1)(E).
Thus, the Court concludes that Mr. Beaudoin, Ms. Landry, and Ms. Sparks have
standing to seek redress pursuant to Title III, despite the uncontested fact that none
are disabled within the meaning of the ADA.

76

Having determined all Plaintiffs have prudential standing, the Court considers
the Defendants’ arguments that summary judgment is appropriate because Plaintiffs
do not have a viable Title III and MHRA claim.
2.

Viability of Title III ADA and MHRA Claims

As noted, “[a] person alleging discrimination under Title III must show (1) that
he is disabled within the meaning of the ADA, (2) that the defendant is a private
entity that owns, leases, or operates a place of public accommodation, (3) that the
defendant took adverse action against the plaintiff that was based upon the plaintiff's
disability, and (4) that the defendant failed to make reasonable modifications that
would accommodate the plaintiff’s disability without fundamentally altering the
nature of the public accommodation.” Amir, 184 F.3d at 1027 (citing 42 U.S.C. §
12182(a) and (b)(2)(A)(ii)). Defendants allege they are entitled to summary judgment
on the ADA and MHRA claims in the complaint because the record does not support
the third and fourth prongs of the Plaintiffs’ prima facie case.
a.

Adverse Action on Account of Disability

Under Title III, a public accommodation is liable for disability discrimination
if it excludes someone “on the basis of disability.” 42 U.S.C. § 12182(a). This language
requires a causal connection between a plaintiff’s disability and the defendant’s
discriminatory action. It also necessarily requires an adverse action against the
plaintiff. Here, Defendants contend the Maine Mall did not take adverse action
against Ms. Gardner, Ms. Ames, and Ms. Dwyer because none handled a service
animal at the time of the incident and, “[a]s such, these Plaintiffs were not, and could

77

not be, denied a public accommodation because they had no service animal to be
denied.” Defs.’ Mot. at 13. Defendants also posit that any adverse action was not on
account of disability because (1) the Maine Mall’s employees instructed Plaintiffs to
leave not on account of their disability but in response to a call that there were
“several dogs running around freely in their stores,” id. (citing DSMF ¶¶ 45, 50, 61),
and (2) “Plaintiffs with disabilities and Plaintiffs without disabilities were treated
similarly—both being told to leave and for the same reason,” and thus allegations of
adverse action were not taken on account of disability. Id.
On Defendants’ adverse action argument, the Court concludes all Plaintiffs,
including Ms. Gardner, Ms. Ames, and Ms. Dwyer, experienced an adverse action
when the Defendants’ representatives asked the group to leave the Maine Mall on
May 7, 2022. 59 DSMF ¶ 50; PRDSMF ¶ 50 PSAMF ¶ 137; DRPSAMF ¶ 137; DSMF
¶ 61; PRDSMF ¶ 61; PSAMF ¶ 140; DRPSAMF ¶ 140; PSAMF ¶ 143; DRPSAMF ¶
143. On this threshold question of whether an adverse action occurred, the Court
sees no reason why these individuals should be required to have been handling a
service animal when Defendants’ representatives asked them to leave a place of
public accommodation. Although the Defendants’ request was directed at the entire

59
Defendants insist their representatives asked Plaintiffs to leave the Maine Mall on May 7,
2022; Plaintiffs contend they were instead detained and forced to stay in the Mall as they awaited the
police’s arrival. The Court addresses the merits of the Plaintiffs’ false imprisonment claim below;
however, the factual record (viewed in the light most favorable to the non-movants) supports the
conclusion that Plaintiffs, on several instances, were told to leave because they could not be present in
the Mall with their service animals. DSMF ¶ 50; PRDSMF ¶ 50 PSAMF ¶ 137; DRPSAMF ¶ 137;
DSMF ¶ 61; PRDSMF ¶ 61; PSAMF ¶ 140; DRPSAMF ¶ 140.

78

group, the Court notes that three such requests were specifically communicated to
Ms. Dwyer and Ms. Gardner. Id.
The next question is whether Defendants’ adverse action was predicated on
disability. Although a closer call, the Court concludes that Plaintiffs have presented
sufficient evidence from which a reasonable jury could conclude that Defendants’
adverse action was on account of disability for purposes of ruling on this summary
judgment motion. Defendants oppose this conclusion in part based on their mistaken
belief that the connection between a report of two service animals running loose in a
store, and Defendants’ subsequent request that the group of disabled and nondisabled individuals handling these service animals leave the Maine Mall, is too
attenuated to constitute causation.

The Court disagrees.

First, the two dogs

purportedly running loose in Bath & Body Works wore vests identifying them as
“service dog in training” or “in training.” DSMF ¶ 39; PRDSMF ¶ 39. It is common
knowledge that service animals are used by individuals with disabilities; indeed, this
is the primary purpose for which they are trained. The record further supports that
Defendants’ representatives knew these were service animals. DSMF ¶ 64; PRDSMF
¶ 64 (stating that Mr. Barber called operations manager Mr. Pettingill and informed
him “there were ten service dogs in a group, that they had received a complaint that
the dogs had been set free in some of the stores and were just running around and
asked me what I wanted to do with that”).
Second, the temporal proximity between the phone call that service animals in
training were loose in a store, and the request that MWD leave the Mall, is

79

instructive; the record indicates the group entered the Maine Mall around 10:00 a.m.
and suggests they were first asked to leave soon after Mall Security received a phone
call from a Bath & Body Works employee. DSMF ¶ 43; PRDSMF ¶ 43; DSMF ¶ 47;
PRDSMF ¶ 47. Although the record does not indicate at what time Mall Security
received a call from the Bath & Body Works employee or at what time Mall Security
first interacted with Plaintiffs, the novice training session was scheduled for only an
hour and a half, from 10:00 a.m. to 11:30 a.m., DSMF ¶ 32; PRDSMF ¶ 32, thus
imposing a relatively short outer limit on the period that may have passed between
these two events. Compare DSMF ¶ 45 (“At some point during the training, but prior
to any interaction by Mall security, Mall security received a complaint from
employees at [Bath & Body Works] that there were several dogs running around
freely in their store”) with DSMF ¶¶ 46-47 and PRDSMF ¶¶ 46-47 (describing how,
at some point during the training while the group was inside JCPenney, the dog
assigned to Ms. Beattie was not cooperating and needed a break; when Ms. Beattie
and Ms. Dwyer exited JCPenney, they walked down the hallway and were confronted
by a Mall security guard).
The Court is equally unpersuaded by Defendants’ final contention that the
Plaintiffs were not asked to leave “on the basis of disability” because both disabled
and non-disabled individuals were told to follow this instruction. As noted above,
Title III defines disability discrimination to include associational discrimination. 42
U.S.C. § 12182(b)(1)(E) (“It shall be discriminatory to exclude or otherwise deny equal
goods, services, facilities, privileges, advantages, accommodations, or other

80

opportunities to an individual or entity because of the known disability of an
individual with whom the individual or entity is known to have a relationship or
association”). For the same reasons the Court determined the three non-disabled
Plaintiffs have standing to seek relief pursuant to Title III, the Court also concludes
the non-disabled Plaintiffs’ open and obvious association with identified service
animals in training, as well as with individuals with plainly apparent disabilities, is
sufficient to conclude that the request they leave was on account of disability.
At trial, Defendants could conceivably establish facts allowing a jury to
determine that their representatives asked Plaintiffs to leave because animals
running freely in a store is a public safety hazard, particularly on a busy Saturday
morning. However, a court’s obligation on a motion for summary judgment is to
“view[] the facts and draw[] all reasonable inferences in favor of the nonmoving party.
Ophthalmic Surgeons, Ltd., 632 F.3d at 35. Here, the Court concludes a jury could
reasonably find Plaintiffs experienced an adverse action on account of disability when
Defendants asked Plaintiffs to leave a place of public accommodation minutes after
receiving a phone call that two service animals were running around a store.
b.

Reasonable Modification

Discrimination in violation of Title III of the ADA includes “a failure to make
reasonable modifications in policies, practices, or procedures, when such
modifications are necessary to afford such goods, services, facilities, privileges,
advantages, or accommodations to individuals with disabilities, unless the entity can
demonstrate that making such modifications would fundamentally alter the nature

81

of such goods, services, facilities, privileges, advantages, or accommodations.” 42
U.S.C. § 12182(b)(2)(A)(ii). To succeed on such a claim, “the plaintiff must show that
the defendant has a discriminatory policy or practice in effect; that he (the plaintiff)
requested a reasonable modification of that policy which, if granted, would have
afforded him access to the desired goods[, services, facilities, privileges, advantages,
or accommodations]; that the requested modification—or a modification like it—was
necessary to afford that access; and that the defendant nevertheless refused to modify
the policy or practice.” Dudley, 333 F.3d at 307.
Federal regulations generally require Title III public accommodations to
“modify policies, practices, or procedures to permit the use of a service animal by an
individual with a disability.” 28 C.F.R. § 35.302(c)(1). There are, however, exceptions
to the reasonable modification rule; per 28 C.F.R. § 35.302(c)(2), “Exceptions,” “[a]
public accommodation may ask an individual with a disability to remove a service
animal from the premises if: (i) [t]he animal is out of control and the animal’s handler
does not take effective action to control it; or (ii) [t]he animal is not housebroken.” 28
C.F.R. § 35.302(c)(2). “The plaintiff bears the burden of establishing that the desired
accommodation is reasonable and necessary, while the defendant bears the burden of
showing that it would fundamentally alter the nature of the program.” Matheis v.
CSL Plasma, Inc., 936 F.3d 171, 178 (3d Cir. 2019) (citing Berardelli v. Allied Servs.
Inst. of Rehab. Med., 900 F.3d 104, 124 (3d Cir. 2018)).
Here, the parties’ disagreement centers on the Plaintiffs’ first required
showing: that the Defendants’ practice of asking Plaintiffs and their dogs to leave the

82

Maine Mall on May 7, 2022 was discriminatory. It is not disputed that Plaintiffs
requested they be allow to stay in the Maine Mall with their service animals in
training, and thus satisfied the requirement in 42 U.S.C. § 12182(b)(2)(A)(ii) of
“request[ing] a reasonable and necessary modification, thereby informing the
operator of a public accommodation about the disability.” Dudley, 333 F.3d at 307;
see also Laboy-Febo v. Arcos Dorados P.R., LLC, No. 21-1245 (GMM), 2024 U.S. Dist.
LEXIS 65219, at *16 (D.P.R. Mar. 31, 2024) (“The Court underscores that the element
of requesting accommodations to an allegedly discriminatory policy, practice, or
procedure is crucial, if not an outright prerequisite”) (emphasis in original)). In this
case, Defendants instead challenge whether (1) they were legally required to
accommodate service animals in training, (2) these service animals were equivalent
to emotional support animals, and thus not protected by the statutes; and (3) an
individual is entitled to enter a place of public accommodation with an animal they
handle but do not own. Plaintiffs resist all three contentions and argue their request
was reasonable and that the Maine Mall’s practice did not fall within a recognized
exception and thus is in violation of the ADA’s rules regarding service animals.
i.

Plaintiffs’ Requested Modification
aa.

Service Animals in Training

First, Defendants assert the Plaintiffs’ modification request was unreasonable
within the meaning of the ADA because the service animals present on May 7, 2022
were still in training. Conceding the MHRA requires public accommodations to
permit entry to service animals in training, DRPSAMF ¶ 124A, Defendants argue the

83

ADA’s protective scope only extends to service animals, and not service animals in
training, and point to 28 C.F.R. § 36.104, which defines “service animal” as “any dog
that is individually trained to do work or perform tasks for the benefit of an individual
with a disability, including a physical, sensory, psychiatric, intellectual, or other
mental disability.” 28 C.F.R. § 36.104. The statute further states that such tasks
include “providing physical support and assistance with balance and stability to an
individual with a mobility disability and helping a person with a psychiatric or
neurological disability by preventing or interrupting impulsive or destructive
behavior.”

Id.

Defendants insist this statutory language indicates the ADA’s

requirement that service animals have completed their training in order to be
protected pursuant to the federal statute.
The question becomes whether the Plaintiffs’ request that the Maine Mall
employees permit the presence of service dogs in training was reasonable under the
ADA. While the ADA and MHRA are, in many respects, analogous provisions and
courts review them as such, Defendants are correct that the MHRA explicitly
mandates protections for service animals in training while Title III is less clear,
defining “service animal” as “any dog that is individually trained to do work or
perform tasks for the benefit of an individual with a disability, including a physical,
sensory, psychiatric, intellectual, or other mental disability.” 28 C.F.R. § 36.104.
Defendants insist MWD’s animals present on May 7, 2022 do not meet this statutory
definition because, by virtue of attending a training session, they were still in the
process of being trained. Plaintiffs contend that the animals present at the Maine

84

Mall had already received some training, that the ADA contains no official
certification standard and, further, that such a requirement would be illusory as
there is no universal federal standard to be a service animal. See Del Amo Hosp., Inc.,
992 F.3d at 912 (“The district court’s ruling that Aspen was not a service animal in
part because she could not be certified under ADI standards is contrary to multiple
aspects of the . . . regulations . . .. As other courts have noted, a dog can be trained to
aid a person with a disability without formal schooling”); Bronk v. Ineichen, 54 F.3d
425, 430-31 (7th Cir. 1995) (holding that the district court erred as a matter of law by
providing a jury instruction from which the “jury could logically infer . . . that without
school training, a dog cannot be a reasonable accommodation,” where a reasonable
accommodation is defined by statute as ‘facilitat[ing] a [person with a disability’s]
ability to function . . . The federal statute does not say any of these things, and there
is no basis for imputing them into a text that is silent on the subject”); Green v.
Housing Auth., 994 F. Supp. 1253, 1256 (D. Or. 1998) (“The only requirements to be
classified as a service animal under federal regulations are that the animal be (1)
individually trained, and (2) work for the benefit of a disabled individual. There is
no requirement as to the amount of training a service animal must provide for the
benefit of the disabled person”); Rose v. Springfield-Greene Cnty. Health Dep’t, 668 F.
Supp. 2d 1206, 1214-15 (W.D. Mo. 2009) (“There are no requirements as to the
amount or type of training that a service animal must undergo, nor the type of work
or assistance that a service animal must provide, but the animal be trained to perform
tasks or do work for the benefit of a [person with a disability]”); Riley v. Bd. of

85

Comm’rs, 2017 U.S. Dist. LEXIS 153737, at *5 (same); Cordoves v. Miami-Dade
County, 92 F. Supp. 3d 1221, 1230 (S.D. Fla. 2015) (same).
“To flesh out the details of [Title III’s] general rule, Congress charged the
Attorney General with the task of promulgating regulations clarifying how public
accommodations must meet those statutory obligations.” United States v. AMC Ent.,
Inc., 549 F.3d 760, 763 (9th Cir. 2008). “DOJ regulations and commentary make clear
that individuals may self-train animals without obtaining formal certification.” Del
Amo Hosp. Inc., 992 F.3d at 911. The Ninth Circuit, examining the rulemaking,
observed that the DOJ “considered but specifically rejected a recommendation
submitted by multiple commenters to adopt ‘formal training requirements for service
animals.’” Id. at 912 (citing Final Rule, 75 Fed. Reg. at 56272 (rejecting this approach
and concluding that DOJ “will not impose any type of formal training requirements
or certification process”). The DOJ justified this decision by noting that a certification
requirement would increase the cost of acquiring a service animal, which could have
the effect of limiting access, and that suggested training standards were too “lengthy”
and “detailed.” Id. (citing Final Rule, 75 Fed. Reg. at 56272). The Ninth Circuit,
considering these regulations, concluded “[i]t is enough if a service dog had been
trained to perform specific tasks that will consistently aid a person with a disability
by making them more able to perform necessary tasks and enjoy activities of daily
living.” Id.
Absent clear guidance from the First Circuit on the challenging question of
whether the ADA protects service animals in training, the Court concludes the

86

guidance from the Ninth and Seventh Circuits, and fellow district courts, is wellreasoned, persuasive, and aligns with Congress’ broad mandate that the ADA
eliminate disability discrimination nationwide, and will not deviate from this
precedent. PGA Tour, Inc., 532 U.S. at 674-75.
It is undeniably the case that the service animals present on May 7, 2022 were
in training. MWD’s dogs, and all individual Plaintiffs, accessed the Maine Mall on
May 7, 2022 for the explicit purpose of preparing Moxie, Abigail Adams, Gator Girl,
Lady Hope, Andre Rush, Sherman Tank, Urban Ghost, Lady Eleanor, and Biscuit to
be “individually trained to do work or perform tasks for the benefit of an individual
with a disability, including a physical, sensory, psychiatric, intellectual, or other
mental disability.” 28 C.F.R. § 36.104; PSAMF ¶ 105; DRPSAMF ¶ 105. These dogs
were, more specifically, attending a “novice” service dog training with the specific goal
of acclimating them to the general public so they could go through different elements
of public settings and thus practice tasks that are required for accessing public
spaces. DSMF ¶ 32; PRDSMF ¶ 32; DSMF ¶ 37; PRDSMF ¶ 37. Public access
training is part of MWD’s exacting training standards for service dogs: in order to
graduate as an MWD service dog, an animal must have at least 120 hours of training,
master more than sixty commands, pass a fourteen-part public access test, pass a
skills test, and pass a restaurant test. PSAMF ¶ 100; DRPSAMF ¶ 100. MWD’s
training typically starts when the dogs are three days old, and by six or seven months
of age, most dogs in MWD’s training program have mastered at least four or five
tasks. Id. MWD’s dogs present on May 7, 2022 had already received individual

87

training to assist individuals with disabilities, and were continuing to receive such
training on the day in question. They were, in short, service animals in training.
Consistent with precedent and Congress’ broad directive in promulgating the
ADA, the Court concludes that the fact that MWD’s dogs present at the Maine Mall
on May 7, 2022 were in training does not stand in the way of the Court deeming them
“service animals” under the ADA and the MHRA.
bb.

Emotional Support

Defendants also challenge Plaintiffs’ request on the grounds that the MWD
service animals present at the training provided only emotional support, and thus do
not fall within the definition of “service animal.” As noted, 28 C.F.R. § 36.104 defines
a “service animal” as “any dog that is individually trained to do work or perform tasks
for the benefit of an individual with a disability, including a physical, sensory,
psychiatric, intellectual, or other mental disability,” and further states that such
tasks include “providing physical support and assistance with balance and stability
to an individual with a mobility disability and helping a person with a psychiatric or
neurological disability by preventing or interrupting impulsive or destructive
behavior.” Id.
The Court does not accept the Defendants’ argument that MWD’s service
animals in training were merely emotional support animals. Put differently, based
on the summary judgment record, there is a genuine issue of material fact as to
whether the animals were emotional support or service animals in training sufficient
to preclude summary judgment in favor of the Defendants.

88

In making this determination, the Court agrees with its fellow district court in
the Northern District of California that “[t]he relevant question for the court is
whether the animal helps the disabled person perform tasks to ameliorate the ADA
disability.” Miller, 2010 U.S. Dist. LEXIS 73050, at *12-13. As an initial matter, the
record supports that MWD’s dogs on the day in question were paired with and
handled by individuals with ADA disabilities including TBIs, PTSD, epilepsy, a
spinal cord injury, amputations, cyclical vomiting syndrome, anxiety, Ehlers-Danlos
syndrome, POTS, anxiety, chronic depression, and autism. PSAMF ¶ 108; DRPSAMF
¶ 108; PSAMF ¶ 111; DRPSAMF ¶ 111; PSAMF ¶ 115; DRPSAMF ¶ 116; PSAMF ¶
117; DRPSAMF ¶ 118; PSAMF ¶ 121; DRPSAMF ¶ 122; PSAMF ¶ 122; DRPSAMF ¶
123. From the Court’s perspective, the record also supports that on the day in
question, the MWD dogs performed tasks, among others, to “help[] a person with a
psychiatric or neurological disability by preventing or interrupting impulsive or
destructive behavior.” 28 C.F.R. § 36.104. The record also establishes that MWD’s
service dogs present at the Mall were in the process of being trained in a task called
“deep pressure therapy,” a scientifically backed task whereby a dog is trained to press
on certain pressure points in order to release positive hormones in their individual.
PSAMF ¶ 104; DRPSAMF ¶ 104. Similarly, these dogs were being trained to provide
mobility assistance and/or PTSD service and had already mastered some of these
initial skills. PSAMF ¶ 106; DRPSAMF ¶ 106. All these animals thus “help[ed] the
disabled person perform tasks to ameliorate [an] ADA disability” on May 7, 2022. See
Miller, 2010 U.S. Dist. LEXIS 73050, at *12-13.

89

Abigail does not sway the Court’s conclusion that a genuine issue of material
fact remains. Although Abigail was present at the May 7, 2022 training and later
failed out of MWD’s training program, and thus was not ultimately certified as a
service animal by MWD’s high standards, as of May 7, 2022, she had mastered several
disability-related tasks, including one for mobility support as well as for emotional
support. DSMF ¶ 36; PRDSMF ¶ 36. The record additionally establishes that Abigail
sat with Ms. Beaudoin, a disabled individual diagnosed with memory challenges from
a TBI, anxiety, and chronic depression, to provide support for her anxiety while the
group waited the police’s arrival. PSAMF ¶¶ 115-116; DRPSAMF ¶¶ 116-117. The
Court could thus conclude that Abigail “help[ed] [a] disabled person perform tasks to
ameliorate [an] ADA disability,” Miller, 2010 U.S. Dist. LEXIS 73050, at *12-13, and
that she was a service animal within the meaning of the ADA and MHRA on May 7,
2022. The U.S. District Court for the District of Puerto Rico recently came to the
same conclusion regarding a dog “trained to carry out tasks directly related to [her
handler’s mental conditions],” of severe anxiety disorder and panic disorder. LaboyFebo, 2024 U.S. Dist. LEXIS 65219, at *20-21. In that case, the service animal’s
training included “detect[ing] the Plaintiff’s panic attacks, get[ting] close to and
distract[ing] her to help her out of the panic attack[s] quicker,” and thus “provide[]
indispensable emotional support.” Laboy-Febo, 2024 U.S. Dist. LEXIS 65219, at *21.
Here, Abigail was trained to serve the same purposes and the record reflects she
indeed provided these services to her handler during the incident underlying this
dispute; the Court thus concludes she, like MWD’s other service dogs present on May

90

7, 2022, could satisfy the regulatory definition of service animal. Based on the
foregoing, Plaintiffs have shown that a genuine dispute of material fact remains as
to whether the dogs present on May 7, 2022 were service animals within the meaning
of the ADA and MHRA.
In short, the Court does not credit the Defendants’ argument that Plaintiffs’
modification

request

was

unreasonable

because

they

asked

Defendants’

representatives to modify their practice so as to permit entry to emotional support
animals. Plaintiffs asked the Maine Mall employees to allow continued access to their
service animals, clearly a reasonable request under the ADA and MHRA, and, in
addition, one consistent with the Maine Mall’s official policy.
cc.

Ownership

Finally, Defendants argue Plaintiffs’ modification request was unreasonable
because the majority of individual Plaintiffs did not own the service animals they
handled at the May 7, 2022 training. This argument is unavailing. Plaintiffs are
correct that the law does not require individuals to own a service animal in order to
access a public accommodation; the regulation instead employs the language
“handler.” 28 C.F.R. § 36.302(c)(4) (“Animal under handler’s control. A service
animal shall be under the control of its handler. A service animal shall have a
harness, leash, or other tether, unless either the handler is unable because of a
disability to use a harness, leash, or other tether, or the use of a harness, leash, or
other tether would interfere with the service animal’s safe, effective performance of
work or tasks, in which case the service animal must be otherwise under the handler’s

91

control (e.g., voice control, signals, or other effective means”). It is not disputed that
Moxie, Abigail, Gator Girl, Lady Hope, Andre Rush, Sherman Tank, Urban Ghost,
Lady Eleanor, and Biscuit were each paired with individual volunteers and handled
at the Maine Mall on May 7, 2022. DSMF ¶ 8; PRDSMF ¶ 8; DSMF ¶ 10; PRDSMF
¶ 10; DSMF ¶ 14; PRDSMF ¶ 14; DSMF ¶¶ 15, 17; PRDSMF ¶¶ 15, 17; DSMF ¶ 19;
PRDSMF ¶ 19; PSAMF ¶ 113; DRPSAMF ¶ 113; DSMF ¶ 22; PRDSMF ¶ 22; DSMF
¶ 26; PRDSMF ¶ 26; DSMF ¶¶ 29-30; PRDSMF ¶¶ 29-30.
Taking all reasonable inferences in favor of the non-moving party, the Court
concludes that Plaintiffs have met their burden at this stage to establish that their
request that Defendants’ representatives modify their practice was reasonable.
The Court proceeds to consider whether the Defendants’ denial of Plaintiffs’
request falls within an exception recognized by the ADA.
ii.

Exceptions

Although “[g]enerally a public accommodation shall modify policies, practices,
or procedures to permit the use of a service animal by an individual with a disability,”
28 C.F.R. § 36.302(c)(1), this directive is not without limits.

“[A] public

accommodation may ask a disabled individual to remove a service animal when (1)
‘the animal is out of control and the animal’s handler does not take effective action to
control it’ or (2) ‘the animal is not housebroken.’” Ortiz v. Caparra Ctr. Assocs., LLC,
261 F. Supp. 3d 240, 247 (D.P.R. March 21, 2016) (quoting 28 C.F.R. § 36.302(c)(2)(i)(ii)). Defendants submit that both exceptions apply in this case because Mall Security
received a report from an employee that there were two dogs off leash in Bath & Body

92

Works that were being allowed to “run around in the store,” DSMF ¶ 45; PRDSMF ¶
45; PSAMF ¶¶ 133-134; DRPSAMF ¶¶ 133-134, and that one of the dogs defecated
on the floor as the Plaintiffs proceeded towards the Mall’s exit after the South
Portland police arrived. DSMF ¶ 94; PRDSMF ¶ 94. As an initial matter, the Court
concludes the second exception is unavailable, as the record plainly establishes that
Defendants asked Plaintiffs to leave long before an animal defecated on the floor of
the Mall; thus, this cannot have influenced the Defendants’ decision to deny the
Plaintiffs’ reasonable modification request.
Turning to the Defendants’ first argument, the ADA regulations do not define
what it means for a service animal to be “out of control.” However, the regulations
dictate that an animal is “under the handler’s control” if it “ha[s] a harness, leash, or
other tether, unless either the handle is unable because of a disability to use a
harness, leash, or other tether, or the use of a harness, leash, or other tether would
interfere with the service animal’s safe, effective, performance of work or tasks, in
which case the service animal must be otherwise under the handler’s control (e.g.,
voice control, signals, or other effective means).” 28 C.F.R. § 36.302(c)(4). ADA
regulations do not further define the word “handler,” and, as other district courts
have recognized, “case[]law sheds little insight.” Ahlschlager v. Imhof, No. 24-CV8267 (OEM) (JMW), 2024 U.S. Dist. LEXIS 229970, at *14 (E.D.N.Y. Dec. 19, 2024)
(citing Alboniga v. Sch. Bd. of Broward Cnty. Fla., 87 F. Supp. 3d 1319, 1342 (S.D.
Fl. 2015) (“Unfortunately, there is very little in the way of case-law guidance as to
what constitutes a ‘handler’ with ‘control’ over a service animal for purposes of these

93

regulations”)). In Alboniga, the Southern District of Florida concluded that the
regulations “‘specifically prohibit[s] the practice of leaving a service animal
unattended[]’ which implies that an animal being out of control ‘is its being
unattended.’” Ahlschlager, 2024 U.S. Dist. LEXIS 229970, at *14 (quoting Alboniga,
87 F. Supp. 3d at 1342 (“[N]ormally, tethering a service animal to the wheelchair of
a disabled person constitutes ‘control’ over the animal by the disabled person”)).
In the absence of well-established precedent, the Eastern District of New York
closely considered the relevant Department of Justice regulations. Ahlschlager, 2024
U.S. Dist. LEXIS 229970, at *16-17.

That court observed that the regulation’s

Appendix states that “misbehavior in response to provocation is not always
unreasonable. In circumstances where a service animal misbehaves or responds
reasonable to a provocation or injury, the public entity must give the handler a
reasonable opportunity to gain control of the animal.” Id. (quoting 28 C.F.R. § Pt. 35,
App. A).

The Eastern District of New York deduced that “[t]he Appendix

contemplates that a dog’s behavior, even a well-trained service dog, is not always
predictable and consistent with the regulatory language, [and] provides that a public
entity must give the handler a reasonable opportunity to get the animal under
control.” Id. at *17.
The Court determines this reading of the regulation persuasive and in line
with the congressional mandate that the ADA broadly protect the right of disabled
individuals to access public accommodations. Here, based on the factual record
presented, the Court is unable to conclude whether the MWD service dogs in the Bath

94

& Body Works were “out of control” within the meaning of the ADA. The factual
record only provides that two animals were off leash. DSMF ¶ 45; PRDSMF ¶ 45;
PSAMF ¶¶ 133-134; DRPSAMF ¶¶ 133-134. The record does not indicate for how
long the two dogs were off leash, or whether they were off leash and still within the
control of their handlers (through, for example, voice control).
In addition, for this exception to apply, the animal must be “out of control and
the animal’s handler does not take effective action to control it.” 28 C.F.R. §
36.302(c)(2)(i)-(ii)) (emphasis added by Court). In the event these two animals did
become “out of control,” the record does not indicate whether or not the two animals’
respective handlers took or alternatively failed to take effective action to “control”
their animals. The record establishes that, at another moment in the training, while
the group was inside JCPenney, the dog assigned to Ms. Beattie was not cooperating
and needed a break; Ms. Beattie and Ms. Dwyer then exited JCPenney and walked
down the hallway. DSMF ¶¶ 46-47; PRDSMF ¶¶ 46-47. Although not conclusive,
this suggests the reasonable inference that MWD volunteers took steps to maintain
control of their animals when needed. See 28 C.F.R. § 36.302(c)(2)(i)-(ii)).
Further, the record does establish that no employee at the Maine Mall told or
suggested to Ms. Gardner that there had been a complaint made by an employee of
Bath & Body Works, PSAMF ¶ 135; DRPSAMF ¶ 135, and thus it is clear the public
entity did not give the handler a “reasonable opportunity to get the animal under
control.” Ahlschlager, 2024 U.S. Dist. LEXIS 229970, at *17.

95

Both on these disputed material facts, and on the undisputed fact that
Plaintiffs were not given a reasonable opportunity to get their animals under control
before being asked to leave, the Court rejects the Defendants’ request to grant
summary judgment on the ADA and MHRA claims.
B.

False Imprisonment Claim

Individual Plaintiffs bring a claim of false imprisonment against Defendants,
arguing a Mall security guard unlawfully confined them while they waited for the
arrival of the South Portland police. 60 Pls.’ Opp’n at 21-22. Defendants contend the
individual Plaintiffs have failed to establish a prima facie case of false imprisonment
because they remained in the Maine Mall voluntarily by refusing the Mall’s
representatives requests that Plaintiffs leave the premises. Defs.’ Mot. at 17. They
further state that it was Ms. Gardner, and not the Mall’s representatives, who
directed Plaintiffs to wait for the police’s arrival, id. (citing DSMF ¶¶ 59, 69, 70), and
“the record is clear in showing that Plaintiffs did not believe that they would be
restrained physically if they sought to leave as some Plaintiffs had in fact left the
group at different periods without being physically restrained.” Id. (citing DSMF ¶¶
80-82, 84-88).
Under Maine law, a claim of false imprisonment may be brought when an
actor, without authority, “(1) intends to, and does in fact, confine another[,] (2) within

60
Defendants challenge MWD’s standing to claim false imprisonment, Defs.’ Mot. at 16; however,
Plaintiffs clarify that the false imprisonment count is brought only on behalf of the individual
Plaintiffs. Pls.’ Opp’n at 11 n.5, 20 n.10. The Court thus considers this claim with regard to the
individual Plaintiffs only.

96

boundaries fixed by the actor, and (3) the victim is conscious of the confinement or is
harmed by it.” Smith v. Heritage Salmon, Inc., 180 F. Supp. 2d 208, 220 (D. Me.
2002). “While confinement can be imposed by physical barriers or physical force,
much less will do—although how much less becomes cloudy at the margins. It is
generally settled that mere threats of physical force will suffice . . . and it is also
settled—although there is no Maine case on point—that the threats may be implicit
as well as explicit, and that confinement can also be based on a false assertion of legal
authority to confine. Indeed, the Restatement provides that confinement may occur
by other unspecified means of ‘duress.’” McCann, 210 F.3d at 53 (citing Restatement
(Second) of Torts §§ 40, 40A, 41 (Am. Law Inst. 1965) (citation amended).
As an initial matter, in response to Defendants’ argument that they are
entitled to summary judgment because their representatives initially asked the
individual Plaintiffs to leave, Plaintiffs clarify their position that they were falsely
imprisoned after the South Portland police had been called. Pls.’ Opp’n at 21-22.
Plaintiffs are correct that the Defendants’ earlier instruction that they should leave
does not resolve the question of whether they were subsequently falsely imprisoned.
See Forgie-Buccioni v. Hannaford Bros., Inc., 413 F.3d 175, 181 (“Although Plaintiff
testified he voluntarily returned to the store, he later explained that he did not feel
free to leave the store any time thereafter”). Defendants are, however, correct that
the record reflects it was Ms. Gardner, not Defendants’ representatives, who
instructed the group to find a spot to sit and wait while she spoke with security.
DSMF ¶ 59; PRDSMF ¶ 59; PSAMF ¶¶ 119, 149; DRPSAMF ¶¶ 120, 149.

97

The record additionally provides that Mr. Pettingill specifically threatened Ms.
Gardner that she and the MWD group would be arrested for trespassing upon the
arrival of law enforcement. PSAMF ¶ 147; DRPSAMF ¶ 147. However, after this
communication, Mr. Barber told Ms. Gardner that the group should leave the Maine
Mall. DSMF ¶ 67; PRDSMF ¶ 67; PSAMF ¶ 141; DRPSAMF ¶ 141. Ms. Gardner
responded that service animals in training are protected by Maine state law, DSMF
¶ 68; PRDSMF ¶ 68, and that the group was legally allowed to be in the Maine Mall
on the same terms as the general public; the Mall’s representatives again ordered the
group to leave. PSAMF ¶ 143; DRPSAMF ¶ 143. Both Mall personnel and Ms.
Gardner then called the South Portland police. DSMF ¶¶ 74-75; PRDSMF ¶¶ 74-75.
The record supports that as the parties waited for the police to arrive, Mr.
Pettingill ordered a Mall security guard to keep his eyes on the Plaintiffs and not let
them leave, and Mr. Barber told Mall security to not allow the group to come any
further into the mall. DSMF ¶ 76; PRDSMF ¶ 76; PSAMF ¶ 147; DRPSAMF ¶ 147.
As already addressed, the Mall security guard was not blocking the group’s pathway
to the nearby exit. DSMF ¶¶ 77-78; PRDSMF ¶¶ 77-78. Mr. Gould told the security
guard that they did not have a legal right to detain anyone, and the guard responded
that they “do it all the time,” which Mr. Gould interpreted to mean they detained
people regularly. PSAMF ¶ 148; DRPSAMF ¶ 148.
By the Court’s reading, the factual record presented is unclear as to whether
Plaintiffs remained in the Mall voluntarily or because they reasonably did not feel
free to leave. The record indicates both that some Plaintiffs stayed to “hold[] [their]

98

ground,” and “educat[e] the public,” DSMF ¶¶ 69-70; PRDSMF ¶¶ 69-70, while
others “f[elt] scared and as if the group was not free to leave,” and worried that if they
did try to leave, the guard would stop them. PSAMF ¶¶ 114, 120; DRPSAMF ¶¶ 115,
121. The record also indicates that Ms. Beaudoin was first told she could not leave
so that the service animal she was handling could use the bathroom and even when
she was subsequently given permission to leave temporarily, the guard told Ms.
Beaudoin “you’d better come back in.” DSMF ¶ 84; PRDSMF ¶ 84; PSAMF ¶ 116;
DRPSAMF ¶ 117. When she returned, Ms. Beaudoin was upset and anxious, and
Abigail sat with her to provide support. PSAMF ¶¶ 115-116; DRPSAMF ¶¶ 116-117.
As noted, Mr. Pettingill specifically threatened Ms. Gardner that she and the MWD
group would be arrested for trespassing upon the arrival of law enforcement. PSAMF
¶ 147; DRPSAMF ¶ 147. A reasonable person could interpret this statement to mean
that they needed to wait for the arrival of the police and if they did not, they might
be evading an arrest warrant.
Viewing conflicting evidence in the light most favorable to the non-movants,
the Court concludes a reasonable jury could find the Defendants unlawfully
restrained or confined the individual Plaintiffs. The First Circuit held that “[w]hile
‘confinement’ can be imposed by physical barriers or physical force, much less will
do—although how much less becomes cloudy at the margins.” McCann, 210 F.3d at
53 (citing Restatement (Second) of Torts §§ 40, 40A, 41). In McCann, the First Circuit
noted that “[t]he evidence, taken favorably to the [plaintiffs], showed that Wal-Mart
employees stopped the [plaintiffs] as they were seeking to exit the store, said that the

99

children were not allowed in the store, told the [plaintiffs] that they had to come with
the Wal-Mart employees and that Wal-Mart was calling the police, and then stood
guard over the [plaintiffs] while waiting for a security guard to arrive.” Id. at 54. The
McCann Court concluded that a reasonable jury could find that Wal-Mart’s
employees intended to “confine” the plaintiffs “within boundaries fixed by” the
retailer, that the employees’ acts did result in such confinement, and that the
plaintiffs were conscious of the confinement. Id. The Court of Appeals underlined
that “[t]he direction to the [plaintiffs], the reference to the police, and the continued
presence of the Wal-Mart employees (who at one point told [an individual plaintiff]
that he could not leave to go to the bathroom) were enough to induce reasonable
people to believe either that they would be restrained physically if they sought to
leave, or that the store was claiming lawful authority to confine them until the police
arrived, or both.” Id.
Defendants attempt to differentiate McCann from the instant case, noting,
among other factors, that at no point in McCann did the defendants inform the
plaintiffs that they could leave. Id. at 53. While this is a distinguishing feature,
Plaintiffs assert they were falsely imprisoned after the South Portland police had
been called, and the record supports that they were not instructed to leave or told
they were free to leave after this point. In Forgie-Buccioni, the First Circuit held that
a reasonable jury could conclude a grocery store’s employees falsely imprisoned the
plaintiff, a customer suspected of shoplifting, when two employees escorted him back
into the store with a hand on his arm, an employee sat with the plaintiff “the entire

100

time” and then “personally escorted him and stood outside the restroom door,” and
the plaintiff began to feel “shaky and nervous and lightheaded” during his thirty-toforty-minute detention. Forgie-Buccioni, 413 F.3d at 181-82. The detention in ForgieBuccioni is similar to the present case, where a Mall security was directed to stay
with the group and the record demonstrates the emotional effects of the Mall
security’s directives on the Plaintiffs. Although neither McCann nor Forgie-Buccioni
is a perfect analogy, McCann in particular contains strikingly similar facts to those
of this case.
Viewing the facts and drawing all reasonable inferences in favor of the
Plaintiffs as the non-moving party, the Court concludes a reasonable jury could find
that Defendants’ representatives intended to confine the individual Plaintiffs within
fixed boundaries, that these actions did result in such confinement, and that
Plaintiffs were conscious of the confinement. See Opthalmic Surgeons, Ltd., 632 F.3d
at 35. The Court declines to grant summary judgment on the Plaintiffs’ claim of false
imprisonment.
C.

MHRA Retaliation Claim

The MHRA prohibits retaliation “against any individual because that
individual has opposed any act or practice that is unlawful under this Act or because
that individual made a charge, testified, assisted or participated in any manner in an
investigation, proceeding or hearing under this Act.” 5 M.R.S. § 4633(1). Plaintiffs
claim they established a prima facie case of retaliation by showing (1) they engaged
in protected conduct; (2) they thereafter suffered an adverse reaction; and (3) there is

101

a causal link between the protected activity and the adverse action. Pls.’ Opp’n at 22
(citing Doyle., 2003 ME 61, ¶ 20, 824 A.2d 48) (citation amended). Defendants argue
they are entitled to summary judgment on this count because Plaintiffs “confuse and
combine” their claims for public accommodation and retaliation and because
“[r]etaliation claims apply to employment, not public accommodation.” Defs.’ Reply
at 10. Defendants argue in the alternative that Plaintiffs do not have a viable claim
for retaliation pursuant to the MHRA because they have not engaged in any protected
conduct. Id.
5 M.R.S. § 4633(1) says, in relevant part, that “[a] person may not discriminate
against any individual because that individual has opposed any act or practice that
is unlawful under this Act.” Id. 5 M.R.S. § 4553(7) defines “person” broadly as
meaning “one or more individuals, partnerships, associations, organizations,
corporations, municipal corporations, legal representatives, trustees, trustees in
bankruptcy, receivers and other legal representatives, labor organizations, mutual
companies, joint-stock companies and unincorporated organizations and includes the
State and all agencies thereof.” Id. The statute, in short, does not say that retaliation
is only available in the employment context; to the contrary, it states a retaliation
claim can be brought against “[any] person,” a broad definition which encompasses
both Defendants. 5 M.R.S. § 4633(1). The Court also notes that 5 M.R.S. § 4633
appears in the “miscellaneous” section of the MHRA, not the employment
discrimination title. See Roy v. Correct Care Sols., LLC, 914 F.3d 52, 66 (1st Cir.

102

2019) (distinguishing 5 M.R.S. § 4633 from the employment discrimination section of
the MHRA, 5 M.R.S. § 4572).
Defendants cite no caselaw in support of their proposition that a retaliation
claim pursuant to 5 M.R.S. § 4633 can only be brought against employers. Defs.’
Reply at 10.

Plaintiffs, for their part, support their argument that they have

established a prima facie case of retaliation against Defendants by citing caselaw
from the employment context, despite no employment relationship with Defendants.
Pls.’ Opp’n at 22 (citing Doyle, 2003 ME 61, ¶ 20, 824 A.2d 48; Thompson, 656 F.
Supp. 3d at 257-58; Porietis, 227 F. Supp. 3d at 137-38). These cases hold that “[t]o
establish a prima facie claim of retaliation, the employee must show that she engaged
in statutory protected activity; her employer made an employment decision that
adversely affected her; and that ‘there was a causal link between the protected
activity and the adverse employment action.’” See, e.g., Doyle, 2003 ME 61, ¶ 20, 824
A.2d 48.
The Court searched for caselaw applying or discussing the MHRA’s retaliation
provision outside the employment context but could not locate any. The caselaw the
Court reviewed suggests that 5 M.R.S. § 4633 is only available in the employment
context. See, e.g., Taghavidinani v. Riverview Psychiatric Ctr., No. 1:16-cv-00208JDL, 2018 U.S. Dist. LEXIS 35403, at *10 (D. Me. March 5, 2018) (“To establish a
prima facie case of retaliation in violation of the MHRA, an employee must
demonstrate that he engaged in a statutorily protected activity, that [the employer]
made an employment decision that adversely affected him, and that there was a

103

causal link between the two”); Briggs v. City of Portland, No. 2:16-cv-00374-JDL,
2017 U.S. Dist. LEXIS 68008, at *34 (same); Ferrante v. MAS Med. Staffing, 2:13-cv00211-JAW, 2015 U.S. Dist. LEXIS 38399, at *123-24 (D. Me. March 25, 2015) (same).
In Roy v. Correct Care Solutions, LLC, 914 F.3d 52 (1st Cir. 2019), the First
Circuit held that the “key distinction between § 4633 and § 4572, the MHRA provision
that prohibits unlawful employment discrimination,” is that § 4572 “addresses
discriminatory conduct by an employer, or employees or agents of the employer, that
occurs within the scope of a traditional employment relationship,” while § 4633
“targets actions by third parties (not the employer, its employees, or agents) that
hinder employees’ MHRA-protected rights to work free from discrimination.” Roy,
914 F.3d at 66 (citing Me. Human Rights Comm’n v. Saddleback, Inc., No. CV-06-219,
2008 Me. Super. LEXIS 198 (Me. Super. Ct. Oct. 31, 2008)). Thus, while an employeremployee relationship was not required, the First Circuit nonetheless considered 5
M.R.S. § 4633 to protect an employee’s workplace rights from third-party
interference.
The Court concludes Defendants are entitled to summary judgment on
Plaintiffs’ claim of retaliation pursuant to the MHRA. This is not an employment
dispute, Defendants are not Plaintiffs’ employers or third-parties associated with
Plaintiffs’ respective employers, and Plaintiffs do not allege they experienced
retaliation for protected action in the course of their employment. Consistent with
precedent, particularly the First Circuit’s determination that 5 M.R.S. § 4633 “targets
actions by third parties (not the employer, its employees, or agents) that hinder

104

employees’ MHRA-protected rights to work free from discrimination,” Roy, 914 F.3d
at 66, the Court concludes Plaintiffs do not have an avenue to relief against
Defendants on their claim for MHRA retaliation.
D.

The Statutory Cap of Civil Penal Damages under the MHRA

Finally, Defendants ask the Court to rule on the amount of civil penal damages
available under 5 M.R.S. § 4613. 61 Defendants argue Plaintiffs’ claim for civil penal
damages is capped at a total amount of $20,000, Defs.’ Mot. at 20; Defs.’ Reply at 10,
while Plaintiffs insist each Plaintiff is entitled to seek $20,000. Pls.’ Opp’n at 24.
5 M.R.S. § 4613(2) says, in relevant part:
B. If the court finds that unlawful discrimination occurred, other than
employment discrimination in the case of a respondent who has more
than 14 employees . . .. [t]he remedies may include, but are not limited
to:
....
(7) An order to pay to the victim of unlawful discrimination . . .
civil penal damages not in excess of $20,000 in the case of the first
order under this Act against the respondent, not in excess of
$50,000 in the case of a 2nd order against the respondent arising
under the same subchapter of this Act and not in excess of
$100,000 in the case of a 3rd or subsequent order against the
respondent arising under the same subchapter of this Act, except
that the total amount of civil penal damages awarded in any
action under this Act may not exceed the limits contained in this
subparagraph.
5 M.R.S. § 4613(2)(B)(7).

61
It is not disputed that Defendants met their burden of raising the statutory cap on punitive
damages as an affirmative defense in their answer. See Answer to Compl. at 10; Tourangeau v. Nappi
Distribs., No. 2:20-cv-00012-JAW, 2022 U.S. Dist. LEXIS 105623, at *12-15 (D. Me. June 14, 2022).

105

The Court concludes, based on the plain language of the statute, that the
MHRA caps civil penal damages “to the victim.” Id. Section 4613(2)(B)(7) states that
a victim can recover a maximum of $20,000 in punitive damages for a respondent’s
first violation, a maximum of $50,000 for a respondent’s second violation, and a
maximum of $100,000 for any further violations. Id. Here, this means that the
statutory cap on damages is, as the Plaintiffs say, per each individual plaintiff.
The Court’s reading of the statute is internally consistent with Section
4613(2)(B)(8)(e), which caps compensatory and punitive damages in intentional
employment discrimination cases “for each complaining party” based on the
employer’s number of employees. See 5 M.R.S. § 4613(2)(B)(8)(e)(i)-(iv). Thus, in the
employment discrimination context, each plaintiff’s statutory damages is capped at
$100,000 when the respondent has more than fourteen and fewer than 101
employees. 5 M.R.S. § 4613(2)(B)(8)(e)(i).
This interpretation also reflects the purpose of punitive damages. Defendants
reason the relevant cap cannot be per plaintiff, because “[t]he point of the MHRA . . .
is to remedy public accommodation issues, not enrich those who bring claims.” Defs.’
Reply at 10. Plaintiffs insist “civil penal damages are not remedial in nature; they
are punitive with a goal of deterrence” and this purpose will be better served through
a statutory damages cap that is per plaintiff. Pls.’ Opp’n at 24 (collecting cases).
Plaintiffs are correct that “[p]unitive damages are directed at deterring and
punishing defendants; they are not designed to compensate plaintiffs for losses.”
Sanchez v. P.R. Oil Co., 37 F.3d 712, 725 (1st Cir. 1994) (emphasis in original)

106

(collecting cases). “As such,” the First Circuit continued, “the considerations that
operate to bar multiple recoveries are conceptually and legally inapplicable to
punitive damages,” although “potential punitive liability may be limited by legislative
intent or due process.” Id. (collecting cases). On this point, the Supreme Court has
held due process “prohibits the imposition of grossly excessive or arbitrary
punishments,” and “does not permit a State to classify arbitrariness as a virtue
[because] the point of due process—of the law in general—is to allow citizens to order
their behavior.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17
(2003) (first quoting Cooper Indus. v. Leatherman Tool Grp., Inc., 532 U.S. 424, 433
(2001) (then quoting Pac. Mut. Life Ins. Co. v. Haslip, 449 U.S. 1, 59 (1991) (O’Connor,
J., diss.)). Here, 5 M.R.S. § 4613(2)(B)(7) limits the maximum amount of punitive
damages and is consistent with 5 M.R.S. § 4613(2)(B)(8), thus avoiding arbitrary
punishment and providing litigants with clear notice.
In sum, the Court agrees with the Plaintiffs that 5 M.R.S § 4613(2)(B)(7) sets
the maximum punitive damages at $20,000 per plaintiff for a respondent’s first time
offense.
VI.

CONCLUSION
The Court GRANTS in part and DISMISSES in part Defendants’ Motion for

Summary Judgment (ECF No. 34). The Court grants summary judgment on the
retaliation claim (Count IV) and denies summary judgment on the claims Plaintiffs

107

bring pursuant to the ADA (Count I), MHRA (Count II), and false imprisonment
(Count III). 62
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2025

62
As noted, Plaintiffs’ complaint labels the false imprisonment and retaliation claims a separate
Count III. Compl. at 15. The Court assumes this was a typographical error and refers to the
retaliation claim as the complaint’s Count IV.

108