Innes et al v. The Board of Regents of the University System of Maryland et al

Filing 95

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/6/2015. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JOSEPH INNES, et al.
:
v.

:

Civil Action No. DKC 13-2800

:
THE BOARD OF REGENTS OF THE
UNIVERSITY SYSTEM OF MARYLAND,
et al.

:
:

MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

disability discrimination case is a motion for reconsideration
filed by Defendants Board of Regents of the University System of
Maryland

(“the

Maryland

Board

College

of

Park

Regents”)
(“the

(collectively, “Defendants”).

and

the

University

(ECF No. 83).

University
of

of

Maryland”)

The issues have

been fully briefed, and the court now rules, no hearing being
deemed necessary.

Local Rule 105.6.

For the following reasons,

Defendants’ motion for reconsideration will be denied.
I.

Background
The facts and procedural history have been set forth in

prior opinions and need not be repeated here.
& 80).
who

Plaintiffs, three deaf or hard of hearing individuals

attend

contend

(See ECF Nos. 64

sporting

that

events

Defendants

at

the

failed

University
to

of

provide

Maryland,
effective

communication

for

deaf

or

hard

Stadium and Comcast Center1
After

discovery

summary

concluded

judgment,

the

of

hearing

patrons

Byrd

and on the website, UMTerps.com.
and

court

the

parties

issued

a

cross

memorandum

order on March 16, 2015 denying both motions.
81).

at

moved

for

opinion

and

(ECF Nos. 80 &

More facts will be provided in the analysis section below.
Defendants

moved

(ECF No. 83).

for

reconsideration

on

March

27,

2015.

Plaintiffs requested several extensions of time

to pursue settlement, and ultimately filed an opposition on July
13, 2015 when settlement discussions apparently failed.
No. 93).
II.

Defendants replied.

(ECF

(ECF No. 94).

Standard of Review
As

the

parties

reconsideration
motion
54(b)

is

of

properly

provides

that

a

acknowledge,
non-final,

analyzed
“any

under

order

because

Defendants

seek

interlocutory

order,

their

Fed.R.Civ.P.

54(b).

Rule

or

other

decision,

however

designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . . may
be

revised

at

any

time

before

the

entry

of

a

judgment

adjudicating all the claims and all the parties’ rights and
liabilities.”

Fed. R.Civ.P. 54(b).

1

In the United States Court

Defendants indicated that Byrd Stadium now is named
Capital One Field at Byrd Stadium and Comcast Center now is
named Xfinity Center, but for consistency purposes, the parties
refer to the stadiums as Byrd Stadium and Comcast Center. (ECF
No. 83-1, at 4).
2

of

Appeals

for

the

Fourth

Circuit,

the

precise

standard

governing a motion for reconsideration of an interlocutory order
is

unclear.

Fayetteville

Investors

v.

Commercial

Builders,

Inc., 936 F.2d 1462, 1472 (4th Cir. 1991).

While the standards

articulated

not

in

Rules

59(e)

and

60(b)

are

binding

in

an

analysis of Rule 54(b) motions, Am. Canoe Ass'n v. Murphy Farms,
Inc., 326 F.3d 505, 514 (4th Cir. 2003), courts frequently look
to these standards for guidance in considering such motions.
Akeva,

LLC

v.

Adidas

Am.,

Inc.,

385

F.Supp.2d

559,

565–66

(M.D.N.C. 2005).
Public policy favors an end to litigation
and recognizes that efficient operation
requires
the
avoidance
of
re-arguing
questions that have already been decided.
Most courts have adhered to a fairly narrow
set of grounds on which to reconsider their
interlocutory orders and opinions. Courts
will reconsider an interlocutory order in
the following situations: (1) there has been
an intervening change in controlling law;
(2) there is additional evidence that was
not previously available; or (3) the prior
decision was based on clear error or would
work manifest injustice.
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft
Foods., Inc., No. PJM–08–409, 2010 WL 3059344, at *1–2 (D.Md.
Aug.4, 2010) (applying this three-part test when evaluating a
motion

for

reconsideration

under

Rule

54(b)).

Importantly,

a

motion for reconsideration under Rule 54(b) may not be used

3

merely to reiterate arguments previously rejected by the court.
Beyond Sys., Inc., 2010 WL 3059344, at *2.
III. Analysis
Defendants raise the following arguments in their motion
for reconsideration: (1) Plaintiffs now lack standing to pursue
equitable and declaratory relief regarding the stadiums; (2) the
claims for equitable and declaratory relief as to the stadiums
now are moot; (3) the demanded accommodation by Plaintiffs as to
the stadiums poses an undue burden as a matter of law; (4) all
of Plaintiffs’ claims concerning the stadiums are barred by the
statute of limitations; and (5) Plaintiffs waived all claims for
monetary damages as to the website.
Defendants

represent

that

(ECF No. 83-1).
since

the

summary

judgment

briefing, the University has installed fully functional ribbon
boards in both stadiums.

(See ECF No. 83-2 ¶ 9, Kaplan Aff.

(“The installation of the ribbon boards was completed at Byrd
Stadium in August 2014, in time for the season’s first home
football game, and at the Xfinity Center in October 2014, in
time for the season’s first home basketball game.”)).
Kaplan,

an

Associate

Athletic

Director

for

Joshua

Facilities,

Operations, and Events at the University of Maryland College
Park, submitted an affidavit, which states in relevant part:
10.
The
ribbon
boards
have
provided
captioning of the aural content broadcasted
for football games at Byrd Stadium and men’s
4

and women’s basketball games at the Xfinity
Center since the beginning of the 2014-15
academic year. In addition, post-game press
conferences for both football and men’s and
women’s basketball games were captioned
beginning with the final home football game
on November 29, 2014.
Captioning for
lacrosse, wrestling, and gymnastics events
held in these athletic venues is available
if requested on-line two weeks in advance of
the event.
11. Beginning with the first home football
game in August 2014, the ribbon board
captioning has been provided by Home Team
Captions, a vendor that uses a ‘caption
writer.’
The
caption
writer
is
an
individual who types the captions in real
time as the aural content is broadcasted,
rather
than
relying
on
speech-to-text
software to generate captions.
The cost to
the University for Home Team Captions’
services is $325.00 per basketball game and
$565 per football game.
Captioning for
post-game press conferences is an additional
cost.
(ECF No. 83-2 ¶¶ 10-11).
A.

Standing

Defendants

argue

that

Plaintiffs

now

lack

standing

to

pursue equitable relief because, by installing the ribbon boards
at both stadiums, the University “essentially [has] remedied the
alleged

discriminatory

complained.”

conditions

(ECF No. 83-1, at 12).

of

which

the

plaintiffs

Defendants further contend

that Plaintiffs are not entitled to injunctive or declaratory
relief as to the stadiums because the changes sought recently
have been implemented and Plaintiffs cannot show that they will

5

“suffer

[an]

imminent.”

injury

which

is

concrete,

(ECF No. 83-1, at 15).

particularized

and

Defendants cite an affidavit

from Mr. Kaplan, in which he attests that “[t]he University
Athletic

Department

will

not

remove,

deactivate,

or

significantly alter the ribbon boards at Byrd Stadium and the
Xfinity

Center,

or

discontinue

providing

captioning

ribbon boards, in the near or foreseeable future.”
2 ¶ 13).
and

on

those

(ECF No. 83-

Plaintiffs counter that Defendants conflate standing

mootness,

and

that

because

standing

is

measured

at

the

commencement of litigation, they have standing.
As an initial matter, the March 16 opinion did not even
reach the issue of the propriety of the various forms of relief
sought

in

the

second

amended

complaint

(e.g.,

compensatory

damages and injunctive and declaratory relief) because liability
could not be determined as a matter of law.

The court stated:

“With the denial of summary judgment, [] it is premature to
address questions of damages or other remedies.”
at 31).

(ECF No. 80,

Second, Defendants in Feldman v. Pro Football, Inc.,

579 F.Supp.2d 697 (D.Md. 2008), raised a similar standing issue.
Specifically, defendants in Feldman, a case involving alleged
violations of Title III, argued that plaintiffs lacked standing
because:

“(1)

Plaintiffs

cannot

establish

an

injury

in

fact

because the alleged discrimination is no longer occurring and
because there is no real and immediate threat that they will be
6

discriminated

against

by

Defendants

in

the

future;

and

(2)

Plaintiffs’ allegations of prior injury cannot be redressed by
this Court’s grant of injunctive or declaratory relief because
Defendants’ actions have remedied any prior injury.”
704-05.

Id. at

Judge Williams rejected defendants’ standing argument

and his rationale applies here:
“[T]he core component of standing is an
essential and unchanging part of the caseor-controversy requirement of Article III.”
Lujan v. Defenders of Wildlife, 504 U.S.
555, 560 (1992).
Standing is “[t]he
requisite personal interest that must exist
at the commencement of the litigation.”
Friends of the Earth, Inc., v. Laidlaw
Environ. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000).
See also Johnson v. Bd. of
Regents of the Univ. of Georgia, 263 F.3d
1234, 1267 (11th Cir. 2001) (“[S]tanding to
sue is generally measured at the time of the
Complaint, with the effects of subsequent
events generally analyzed under mootness
principles.”); Equal Access Educ. v. Merten,
325 F.Supp.2d 655, 667 (E.D.Va. 2004) (“It
is clear that standing must exist at the
time suit is filed.”); Richmond Medical
Center for Women v. Gilmore, 55 F.Supp.2d
441, 472 (E.D.Va. 1999) (noting that actions
taken after commencement “do not affect the
standing inquiry at all because standing is
measured at the time the action is filed.”).
To establish standing, Plaintiffs must
show that: (1) they “suffered an injury in
fact – an invasion of a legally protected
interest
which
is
(1)
concrete
and
particularized, and (b) actual or imminent,
not conjectural or hypothetical”; (2) “there
[is] a causal connection between the injury
and the conduct complained of”; and (3) “it
[is]
likely,
as
opposed
to
merely
speculative,
that
the
injury
will
be
7

redressed by a favorable decision.”
Lujan,
504 U.S. at 560-61 (citations and internal
quotation
marks
omitted).
“The
party
invoking federal jurisdiction has the burden
of establishing these elements.”
Id. at
561.
When Plaintiffs filed the present suit,
they were clearly suffering an injury in
fact. Plaintiffs did not have access to any
of the aural content available to hearing
Redskins fans at FedExField.
Moreover,
Plaintiffs were likely to suffer harm in the
future, as they planned to attend future
Redskins games.
Defendants caused this
harm, and declaratory and injunctive relief
by
this
Court
would
have
redressed
Plaintiffs’ injury.
In addition, Plaintiffs certainly have
standing to litigate the issues regarding
music captioning and line of sight issues.
At the time of the Complaint, Plaintiffs
suffered injuries because they did not have
access to music captioning and because
information
allegedly
was
not
being
effectively
communicated
to
them.
Defendants’ actions clearly caused these
injuries, and injunctive or declaratory
relief
by
this
Court
would
redress
Plaintiffs’ injuries.
As such, Plaintiffs
had standing to file this action.
Id. at 705-06.
Here, too, at the time Plaintiffs filed their complaint,
they could not hear the aural content projected at Byrd Stadium
and

the

Comcast

Center

and

argued

that

the

communication

provided by a tablet or handheld device was not timely and did
not ensure that deaf or hard of hearing fans have equal access
to games.

The

cases

that

Defendants

8

cite

are

factually

dissimilar
instance,

and
in

inapplicable
Proctor

v.

under

Prince

these

circumstances.

George’s

Hosp.

Center,

For
32

F.Supp.2d 830, 832 (D.Md. 1998), plaintiff could not establish
that he himself faced a real and immediate threat of future harm
from

defendant

threat.

and

not

Plaintiff

in

merely

a

Proctor

conjectural

or

relied

the

on

hypothetical
fact

that

“conditions still exist[ed] at [Prince George’s Hospital Center]
that ma[de] it unlikely deaf patients [were] being provided with
equal and effective communication.”
Gregory

v.

OTAC,

Inc.,

247

Id. at 832-33; see also

F.Supp.2d

764,

771

(2003)

(“In

opposing defendants’ motion for summary judgment, plaintiff has
not

offered

evidence

establishing

that

he

has

visited

the

Restaurant in recent months, that he has not been able to use
the ramp in place and that he has therefore been unable to gain
safe access to the Restaurant because of the location of the
ramp.

It is apparent that plaintiff has not on this record

shown that he will suffer future discrimination at the hands of
the defendants in violation of the ADA.”).

That is not the

situation here where Plaintiffs alleged in their complaint that
they continue to frequent sporting events at the University and
challenged the adequacy of the hand-held devices provided by
Defendants.

Accordingly, Defendants have not provided a basis

to reconsider the March 16 opinion on standing grounds.

9

B. Mootness
Next,

Defendants

argue

that

Plaintiffs’

claims pertaining to the stadiums now are moot.
at

21).

Plaintiffs

counter

that

their

discrimination
(ECF No. 83-1,

claims

for

damages

regarding the football stadium and basketball arena remain live
regardless

of

the

outcome

of

Defendants’

motion

for

reconsideration, and for purposes of injunctive or declaratory
relief, Defendants cannot prove mootness for two reasons: (1)
Defendants may cease providing the captioning service at any
time; and (2) a dispute exists regarding whether the captioning
currently provided constitutes effective communication.

(ECF

No. 93, at 19).
“The requisite personal interest that must exist at the
commencement of the litigation . . . must continue throughout
its existence.”

United States Parole Comm’n v. Geraghty, 445

U.S. 388, 397 (1980).

A “case is moot when the issues presented

are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.”

Powell v. McCormack, 395 U.S. 486,

496 (1969).

Defendants carry a heavy burden when asserting

mootness

are

and

required

to

demonstrate:

(1)

there

is

no

reasonable expectation that the alleged violation will recur;
and (2) interim relief or events have completely and irrevocably
eradicated

the

effects

of

the

alleged

violation.

Baltimore

Neighborhoods, Inc. v. LOB, Inc., 92 F.Supp.2d 456, 461 (D.Md.
10

2000) (citing County of Los Angeles v. Davis, 440 U.S. 625, 631
(1979)).

If

both

elements

are

satisfied,

the

case

is

moot

“because neither party has a legally cognizable interest in the
final

determination

law.”

of

the

underlying

Davis, 440 U.S. at 631.

questions

of

fact

and

The Fourth Circuit explained in

Feldman v. Pro Football, Inc., 419 F.App’x 381, 387 (4th Cir.
2011):
A case may remain live even if the
events giving rise to the lawsuit cease.
The “voluntary discontinuance of challenged
activities
by
a
defendant
does
not
necessarily moot a lawsuit.”
United States
v. Jones, 136 F.3d 342, 348 (4th Cir. 1998).
The exception to this general rule is when
there is “no reasonable expectation that the
wrong will be repeated.” Lyons P’Ship, L.P.
v. Morris Costumes, Inc., 243 F.3d 789, 800
(4th Cir. 2001) (quoting United States v.
W.T. Grant Co., 345 U.S. 629, 633 (1953)
(emphasis added)).
“But this exception is
just that – an exception – and defendants
‘face a heavy burden to establish mootness
in such cases because otherwise they would
simply be free to return to [their] old
ways[] after the threat of a lawsuit has
passed.” Id.
Defendants argue that there is no reasonable expectation
that they will return to their prior conduct “because[] having
made a multi-million dollar capital investment in technology to
provide ribbon boards and captioning, the Defendants have no
incentive
public

or

bodies

reason

to

undo

answerable

to

that
the

investment.
citizenry

Moreover,
and

the

as

media,

Defendants would have considerable explaining to do if, after
11

making

the

large

expenditure

for

this

arbitrarily decided to pull the plug on it.”
24-25).

equipment,

they

(ECF No. 83-1, at

As stated above, Mr. Kaplan submitted an affidavit

attesting

that

the

“University

Athletic

Department

will

not

remove, deactivate, or significantly alter the ribbon boards . .
. or discontinue providing captioning on those ribbon boards, in
the near or foreseeable future.”
added).

Plaintiffs

counter

(ECF No. 83-2 ¶ 5) (emphasis

that

“[t]he

possibility

of

the

recurrence of a violation is a real possibility here given that
Defendants could either cease scheduling the captioner to save
money,

and/or

could

then

use

the

additional advertising revenue.”

ribbon

boards

to

generate

(ECF No. 93, at 20).

The analysis from Feldman, 419 F.App’x at 387-88, applies
here:
While
we
commend
defendants
for
providing most of the relief that plaintiffs
requested and for engaging with plaintiffs
on the benefits and burdens of particular
auxiliary aids, we agree with the district
court that defendants have not discharged
their heavy burden of showing no reasonable
expectation that they will repeat their
alleged wrongs.
Although defendants were
investigating possible auxiliary aids years
before plaintiffs’ lawsuit, they did not
actually provide captioning until after
plaintiffs filed their complaint.
See
Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1184 (11th Cir. 2007) (noting that
“whether the defendant’s cessation of the
offending conduct was motivated by a genuine
change of heart or timed to anticipate suit”
is relevant to the voluntary cessation
12

analysis).
Further, this is not a case in
which plaintiffs “control[] [their] own
fate.” Incumaa [v. Ozmint], 507 F.3d [281,]
Defendants maintain
289 [4th Cir. 2007].
complete control over the captioning.
They
hired one stenographer, Stephen Clark, as an
independent
contractor
to
provide
the
captioning. If Clark for some reason cannot
provide his services at a Redskins home
game, he arranges for another certified
stenographer to take his place.
Given the
ease
with
which
defendants
could
stop
providing captioning, we simply cannot say
that they have made an affirmative showing
that the continuation of their alleged ADA
violations is nearly impossible.”
Lyons,
243 F.3d at 800; see also Tandy v. City of
Wichita, 380 F.3d 1277, 1291 (10th Cir. 2004)
(observing in an ADA case that defendants’
heavy burden under the voluntary cessation
doctrine is “typically . . . met only by
changes that are permanent in nature and
that
foreclose
a
reasonable
chance
of
recurrence”).
(emphases added).2

Defendants did not install ribbon boards and

provide captioning until after the lawsuit was filed, although
they

offered

measure.

captioning

on

hand-held

devices

as

an

interim

Cf. Ruggier v. Go Mart, Inc., Civ. Action No. 2:15-cv-

2

Defendants contend that “Feldman is distinguishable as a
case brought under Title III of the ADA, which imposes stricter
standards that Title II.” (ECF No. 83-1, at 18). The fact that
Feldman was a disability discrimination case brought under Title
III is inapposite to the mootness analysis, however. Moreover,
many of the cases on which Defendants rely in challenging
standing and mootness also arise under Title III of the ADA.
See, e.g., Proctor, 32 F.Supp.2d 830; Burleson v. Edisto Village
Orangeburg, LLC, C/A No. 5:09-1065-MBS, 2011 WL 744733 (D.S.C.
Feb. 23, 2011); Norkunas v. Tar Heel Capital Wendy’s LLC, Civ.
Action No. 5:09-CV-00116, 2011 WL 2940722 (W.D.N.C. July 19,
2011); Ruggier v. Go Mart, Inc., Civ. Action No. 2:15-cv-03412,
2015 WL 3466312 (S.D.W.Va. June 1, 2015).
13

03412, 2015 WL 3466312, at *3 (S.D.W.Va. June 1, 2015) (“Both
parties in this matter agree that Go-Mart altered its restroom
facilities to correct the ADA violations prior to Mr. Ruggier’s
initiation

of

this

lawsuit.

As

a

result,

Mr.

Ruggier

has

already obtained the sole relief available under the ADA[.]”)
(emphasis

added).

could

potentially

point

out,

Moreover,
cease

unlike

as

in

providing

many

of

the

Feldman,

Defendants

captioning.

cases

cited

by

As

also

Plaintiffs

Defendants

to

support mootness, here, they “have not installed or implemented
some

permanent

structure

that

serves

only

to

cure

discrimination and that would be costly to remove.”

the

(ECF No.

93, at 20); Cf. Norkunas v. Tar Heel Capital Wendy’s LLC, Civ.
Action No. 5:09-CV-00116, 2011 WL 2940722, at *4 (W.D.N.C. July
19, 2011) (“Structural changes to a commercial building and its
grounds are generally considered permanent.
the

alterations

persuaded

that

are

literally

there

is

no

set

in

Here, as many of

stone,

reasonable

the

Court

expectation

that

is
the

alleged violation will recur – satisfying the first element of
the

Davis

test.”).

Plaintiff

in

Norkunas

disputed

the

compliance with the ADA of only one of five properties and the
district court concluded that the claims were moot as to the
four

properties

structural

changes

Plaintiffs

dispute

for

which

to

comply

that

the

Defendants
with

the

changes
14

undisputedly

ADA.
adopted

Here,
by

made

however,

Defendants

provide “effective communication.”

Cf. Steelman v. Executive

Suites of Stuart, Inc., No. 2:12-cv-14019-KMM, 2012 WL 4896820,
at

*2

(S.D.Fla.

Facility

on

Oct.

August

14,

15,

2012)

2012

(“Plaintiff

and

compliant with the ADA. . . .

found

the

inspected
Facility

the
fully

Since it is undisputed that

Defendant has complied with the ADA, summary judgment in favor
of Defendant is warranted.”).
shown

that

a

Rehabilitation

Accordingly, Defendants have not

continuation
Act

of

their

alleged

is

nearly

impossible.

violations

ADA

and
See

Feldman, 419 F.App’x at 388 (“Because we agree with the district
court that defendants have not shown that a continuation of
their alleged ADA violations is nearly impossible, we likewise
treat all of plaintiffs’ requested relief as presenting a live
claim.”).
Defendants also have not established that subsequent events
“completely

and

irrevocably

alleged violation.”
that

Defendants

eradicated

the

Davis, 440 U.S. at 631.

have

submitted

regarding

effects

of

the

The “new evidence”

the

installation

of

ribbon boards at both stadiums still does not enable the court
to adjudicate Plaintiffs’ failure to accommodate claims under
the Rehabilitation Act and the ADA as a matter of law.

The

parties continue to dispute the adequacy of Defendants’ proposed
accommodation – installation of ribbon boards at the stadiums
and provision of captioning through Home Team Captions – and
15

whether
for

such

deaf

installed

accommodations

patrons.
the

provide

Defendants

ribbon

boards

“effective

assert
after

that

communication”
the

engaging

University
in

on-site

consultations with Plaintiffs and their representatives.
No. 83-2 ¶ 7).

(ECF

Plaintiffs contend that any agreement from them

regarding the sufficiency of the installation of ribbon boards
and

captioning

happened

in

the

context

of

settlement

negotiations and “was contingent on other steps to be taken by
Defendants.
23).

Those settlement talks failed.”

(ECF No. 93, at

Irrespective of any admissibility issues with statements

made during the course of settlement, there is a genuine dispute
of material fact concerning whether the provided accommodation
ensures effective communication for deaf patrons at Byrd Stadium
and the Comcast Center.

Plaintiffs have submitted affidavits

stating

boards

that

the

ribbon

football stadium only.

appear

on

one

side

of

the

With regard to the ribbon boards at

Comcast Center, Plaintiffs aver that “[b]ecause of the size of
the screens, the text had to move very quickly in order to keep
up with the announcements.

It moved so quickly that I had a

hard time following it, and therefore did not find the captions
to be effective at communicating information.”
at 3, Markel Aff.).

(ECF No. 93-2,

Accordingly, the second element of the

Davis test also has not been satisfied and a live controversy
exists.
16

C. Undue Burden
Defendants also argue that putting aside any justiciability
issues, they are entitled to summary judgment on the disability
discrimination claims pertaining to the stadiums because “new
evidence
burden.”
time

of

confirms

the

demanded

accommodation

(ECF No. 83-1, at 28).
[the]

installation

of

original
the

ribbon

posed

an

undue

Defendants explain: “At the

summary
boards

judgment
was

still

briefing,
a

future

the
and

therefore arguably uncertain event, but now the installation,
and its actual cost, are established fact.”

(Id.).

Defendants

argue – much like they did during the course of summary judgment
–

that

the

$3.75

million

incurred

in

connection

with

the

purchase and installation of the captioning boards constitutes
an undue hardship.
Kaplan Aff.).

(ECF No. 83-1, at 29-30; ECF No. 83-2 ¶ 8,

Defendants further highlight that “t]he cost to

the University for Home Team Captions’ Services is $325.00 per
basketball game and $565.00 per football game.

Captioning for

post-game press conferences is an additional cost.”

(ECF No.

83-2 ¶ 11, Kaplan Aff.).
Defendants have the burden to establish the undue burden
affirmative defense.

Without any additional information about

the applicable budget and/or financial realities, the fact that
the purchase and installation of the captioning boards cost a
total of $3.75 million does not establish undue burden as a
17

matter

of

law.

reconsideration

that

Defendants
the

argue

$3.75

in

million

their

expended

motion

for

exceeds

the

amount that the court found constituted undue hardship as a
matter of law in Reyazuddin v. Montgomery County, Maryland, 7
F.Supp.3d

526

reversed

that

(D.Md.

2014),

decision,

but

finding

the

Fourth

that

Circuit

genuine

recently

disputes

of

material fact precluded summary judgment on the County’s undue
hardship affirmative defense.

The Fourth Circuit stated that

“while cost is important, it cannot be viewed in isolation.
Rather, it is the relative cost, along with other factors, that
matter.”

Reyazuyddin v. Montgomery County, Maryland, 789 F.3d

407, 418 (4th Cir. 2015).
A Rule 54(b) motion may not be used to rehash previous
arguments.

Evidence presented by both parties concerning “undue

hardship” was discussed in the March 16 opinion, and the court
determined that “there is a genuine dispute of material fact as
to whether providing ‘line of sight captioning,’ regardless of
when Defendants first received notice, would have constituted an
undue burden and whether Defendants violated Title II of the ADA
and Section 504 of the Rehabilitation Act by not implementing
Plaintiffs’ requested accommodation when the request was made.”
(ECF No. 80, at 24).3

3

In their opposition to Defendants’ motion for summary
judgment, Plaintiffs misrepresent the discussion of undue burden
18

Defendants have not shown that the “additional evidence”
warrants reconsideration of the March 16 opinion as to undue
burden.
D. Statute of Limitations
Citing to an unpublished decision from the Fourth Circuit
issued on August 5, 2014 - Hill v. Hampstead Lester Morton Court
Partners LP, 581 F.App’x 178 (4th Cir. Aug. 5, 2014) - Defendants
next argue that “the statute of limitations bars all claimed
denials

of

requested

accommodations

and

auxiliary

aids

and

services in this case preceding September 24, 2010 (three years
before the filing of this action), which form the vital core of
Plaintiffs’ case regarding the Stadiums.”

(ECF No. 83-1, at

32).
Defendants

first

motion to dismiss.

raised

statute

of

limitations

in

their

The court issued a memorandum opinion on

July 1, 2014, which explained, in relevant part:
The parties disagree as to when a cause
of action under the Rehabilitation Act and
the ADA accrues.
Defendants view this
in the March 16, 2015 opinion, however. Plaintiffs incorrectly
state that “[t]his Court has already considered and rejected
that [the $3.75 million] expenditure constitutes an undue burden
as a matter of law.” (ECF No. 93, at 27). Indeed, the opinion
stated that “the fact that Defendants have now contracted for
ribbon board installation from Daktronics, Inc. and purportedly
spent approximately $3.75 million on this endeavor does not
establish that this could or should have been done earlier.”
(ECF No. 80, at 23).
As explained in the opinion, there is a
genuine dispute as to whether the requested accommodation
constitutes an undue burden.
19

dispute as an architectural barrier case and
argue that the statute of limitations begins
to run upon completion of the structure of
completion of its most recent and relevant
alteration.
Defendants
believe
that
Plaintiffs have known – or as regular
patrons of the University’s facilities,
should have known – “since 2007 and 2002
respectively, that [Byrd Stadium and the
Comcast Center] did not have the ‘line-ofsight’
and
‘hands-free’
display
of
information they now demand.”
(ECF No. 341, at 17). . . .
Contrary to Defendants’
assertions, Plaintiffs are not alleging that
they are unable to access the athletic
facilities at Byrd Stadium or the Comcast
Center, nor are they necessarily arguing
that architectural barriers preclude their
participation in the programs and activities
at the University of Maryland. . . .
.
.
.
Here,
Plaintiffs
assert
communication
barriers
to
their
participation in athletic events held at the
University of Maryland.
“In general, to
establish
a
continuing
violation
the
plaintiff
must
establish
that
the
unconstitutional or illegal act was a . . .
fixed and continuing practice.”
Nat’l
Adver. Co. v. City of Raleigh, 947 F.2d
Cir.
1991)
(internal
1158,
1166
(4th
citations omitted). “[I]f the plaintiff can
show that the illegal act did not occur just
once, but rather ‘in a series of separate
acts[,] and if the same alleged violation
was committed at the time of each act, then
the limitations period begins anew with each
violation.’”
A Soc’y Without A Name, 655
F.3d at 348 (quoting Nat’l Adver. Co., 947
F.2d at 1167). Continuing unlawful acts are
distinguishable from the continuing ill
effects of an original violation because the
latter does not constitute a continuing
violation. Id.
Here, Plaintiffs assert that every time
they attend athletic events at Byrd Stadium
20

or the Comcast Center, Defendants fail to
provide the auxiliary aids and services
necessary to ensure effective communication
for Plaintiffs. . . .
Plaintiffs assert
that the violation did not happen only once;
according
to
Plaintiffs,
Defendants
regularly
fail
to
provide
them
with
effective
communication
during
athletic
events.
For instance, Dr. Innes cites an
incident on October 12, 2013, when captions
on his handheld device were unavailable
during a game.
(ECF

No.

64,

at

10-13)

(emphases

added).

Accordingly,

Defendants’ motion to dismiss on statute of limitations grounds
was denied.
shown

as

The opinion explained that Defendants have not
a

matter

of

law

that

Plaintiffs’

disability

discrimination claims concerning Byrd Stadium and the Comcast
Center are time-barred.4
The

analysis

in

(Id. at 15).
Hill,

581

F.App’x

at

180-181,

which

involved a request for structural modifications, does not alter
the previous conclusion that Defendants have not shown that the
failure

to

accommodate

claims

as

to

barred.

the

stadiums

are

time-

The Fourth Circuit explained:
The
limitations
period
for
a
Rehabilitation Act claim commences “when the
plaintiff ‘knows or has reason to know of
the injury which is the basis of the
action.’”
A Soc’y Without A Name v.
Virginia, 655 F.3d 342, 348 (4th Cir. 2011)

4

At the summary judgment stage, Defendants’ arguments
regarding statute of limitations mirrored those made at the
motion to dismiss stage, thus it was unnecessary to reiterate
the analysis on statute of limitations in the March 16 opinion
adjudicating the cross motions for summary judgment.
21

(quoting Cox v. Stanton, 529 F.2d 47, 50 (4th
Cir. 1975)). When an individual “engages in
a
series
of
acts
each
of
which
is
intentionally discriminatory, then a fresh
violation takes place when each act is
committed.”
Ledbetter v. Goodyear Tire &
Rubber Co., 550 U.S. 618, 628 (2007),
superseded
in
part
by
statute,
Lilly
Ledbetter Fair Pay Act of 2009, Pub.L. No.
111-2, 123 Stat. 5. In those circumstances,
“[e]ach discrete discriminatory act starts a
new clock for filing charges alleging that
act. . . .
The existence of past acts and
the [plaintiff’s] prior knowledge of their
occurrence . . . does not bar [a plaintiff]
from filing charges about related discrete
acts so long as the acts are independently
discriminatory.” Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 113 (2002). Thus,
a plaintiff who renews a request for a
previously denied accommodation “may bring
suit based on a new ‘discrete act’ of
discrimination if the [defendant] again
denies [the] request.”
Tobin v. Liberty
Mut. Ins. Co., 553 F.3d 121, 131 (1st Cir.
2009), and the subsequent denial carries its
own,
independent
limitations
period.
Cherosky v. Henderson, 330 F.3d 1243, 1248
(9th Cir. 2003) (explaining that if a
plaintiff’s
“new
[accommodation]
request
results in a denial, the time period begins
to run anew”).
Hill,

581

F.App’x

at

180-181.

Notably,

at

no

point

did

Defendants argue that all of the allegedly discriminatory acts
fell outside the limitations period, and it is their burden to
prove statute of limitations by a preponderance of the evidence.
In any event, Plaintiffs do not appear to be seeking damages
beyond the three-year time frame.
about

the

Fourth

Circuit’s

(ECF No. 93, at 33 (“Nothing

opinion

22

in

Hill

changes

anything

about the Court’s prior holding and Order because Plaintiffs are
not seeking damages for acts of discrimination that go back more
than three years from the date of the filing of the Complaint on
September 24, 2013.”)).
E. Website
Finally,

Defendants

argue

again

that

Plaintiffs

have

expressly waived all claims for monetary damages in connection
with their failure to accommodate claims as to the University’s
website.

(ECF

No.

83-1,

at

34).

It

has

already

been

acknowledged in two separate opinions that Plaintiffs do not
seek monetary damages for alleged violations of the disability
laws with respect to the athletic website.
33 & ECF No. 80, at 31).

(See ECF No. 64, at

Curiously, Defendants still maintain

that they are entitled to “partial summary judgment as to all
such formally abandoned claims.”

(ECF No. 83-1, at 34).

It is

not necessary to enter judgment on any claim for compensatory
damages pertaining to the website because Plaintiffs are not
seeking such damages here.
IV.

Conclusion
For

the

foregoing

reasons,

reconsideration will be denied.

Defendants’

motion

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge
23

for