Smith v. Bradley Pizza, Inc. et al

Filing 228

OPINION AND ORDER: Defendants' motion for summary judgment and to exclude expert testimony 166 is GRANTED IN PART for lack of subject matter jurisdiction and in all other respects is DENIED as moot, Plaintiff's motion for summary judgmen t and to exclude evidence 184 is DENIED as moot, Plaintiff's objection 165 to the 11/13/18 Order 159 is OVERRULED and that Order is AFFIRMED, Plaintiff's objection 226 to the 2/04/2019 Order 221 is OVERRULED and that Order is AFFIRMED, and the action is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. (Written Opinion). Signed by Judge Eric C. Tostrud on 6/12/2019. (RMM) Modified text on 6/12/2019 (RMM).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Scott Smith,

File No. 17-cv-02032 (ECT/KMM)
Plaintiff,

v.
OPINION AND ORDER
Bradley Pizza, Inc., and
Pamela M. Dahl,
Defendants.

Padraigin Browne, Browne Law LLC, Lake Elmo, MN, for Plaintiff Scott Smith.
Edward P. Sheu and Brian J. Linnerooth, Best & Flanagan, LLP, Minneapolis, MN, for
Defendants Bradley Pizza, Inc. and Pamela M. Dahl.

Plaintiff Scott Smith has a disability that requires him to use a wheelchair.
Defendant Bradley Pizza owned and operated a Domino’s Pizza franchise in Red Wing,
Minnesota, and Defendant Pamela Dahl owns the commercial property in which the
Domino’s is located. Smith alleges that Defendants violated and are violating Title III of
the Americans with Disabilities Act (“ADA”) and the Minnesota Human Rights Act
(“MHRA”) by failing to make the Domino’s Pizza “fully accessible to and independently
usable by individuals with disabilities.” Under both the ADA and MHRA, Smith seeks
declaratory and injunctive relief and attorney’s fees. Under just the MHRA, he seeks
damages and an order requiring Defendants to pay a civil penalty to the State of Minnesota.
The Parties have presented several matters for decision. Defendants move for summary

judgment and the exclusion of expert testimony relied on by Smith. Smith moves for
summary judgment and the exclusion of fact and expert testimony relied on by Defendants.
Smith also objects to and seeks review of orders concerning non-dispositive pretrial matters
entered by Magistrate Judge Katherine Menendez.

Defendants’ summary-judgment

motion will be granted because the record evidence construed most favorably to Smith
does not show that he suffered an injury sufficient to give him Article III standing.
Magistrate Judge Menendez’s orders will be affirmed because they are very reasonable.
I
Defendants’ summary-judgment motion is premised on several arguments.
Defendants argue Smith lacks standing to sue at all because he has suffered no Article III
injury. Defs.’ Mem. in Supp. at 15–22 [ECF No. 178]. They argue Smith lacks standing
to seek injunctive relief in particular because he cannot show he faces a threat of future
injury. Id. at 18–22. Assuming Smith has standing, Defendants argue that some of Smith’s
alleged ADA violations are not ADA violations as a matter of law. Id. at 23–30. To the
extent Smith has identified bona fide ADA violations, Defendants argue that those
violations either have been remedied or cannot be remedied because remediation is not
“readily achievable,” a defense to ADA liability. Id. Defendants argue that summary
judgment should be entered against Smith’s claims under the MHRA for these same
reasons and because Smith failed to provide a pre-suit notice required by the MHRA. Id.
at 31–32.

2

A
The basic rules governing consideration of a summary-judgment motion are settled
but worth repeating here. Summary judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A fact is “material” only if its resolution “might
affect the outcome of the suit” under the governing substantive law. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a fact is “genuine” only “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“The evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in his favor.” Id. at 255 (citation omitted).
Rule 56(c)(1) requires parties “asserting that a fact cannot be or is genuinely
disputed” either to “support the assertion by . . . citing to particular parts of materials in the
record” or to “show[] that the materials cited [by an adverse party] do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ P. 56(c)(1)(A)–(B). A district court
“need consider only the cited materials, but it may consider other materials in the record.”
Fed. R. Civ. P. 56(c)(3). A federal court facing a party’s failure to cite “particular parts of
materials in the record,” Fed. R. Civ. P. 56(c)(1)(A), may elect from several options in the
reasonable exercise of discretion. These include “consider[ing] the fact undisputed for
purposes of the motion,” “grant[ing] summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled to
it,” or “issu[ing] any other appropriate order.” Fed. R. Civ. P. 56(e)(2)–(4).
3

B
Defendants’ argument that Smith cannot establish standing as a matter of law
implicates subject-matter jurisdiction, so it must be considered first. And Defendants’
decision to challenge subject-matter jurisdiction via a summary-judgment motion raises
procedural issues that deserve explanation. There are material—and perhaps dispositive—
differences between challenging subject-matter jurisdiction through a “factual-attack”
dismissal motion under Rule 12(b)(1) and a summary-judgment motion under Rule 56. In
a Rule 12(b)(1) motion asserting a factual attack, the district court considers matters
outside the pleadings and resolves disputed facts, applying no presumption of truth to the
non-moving party’s allegations or evidence (or, for that matter, to the moving party’s
evidence). Branson Label, Inc. v. City of Branson, 793 F.3d 910, 914–15 (8th Cir. 2015);
Osborn v. United States, 918 F.2d 724, 729–30 (8th Cir. 1990). And while a district court’s
ultimate decision whether there is subject-matter jurisdiction in response to a factual-attack
Rule 12(b)(1) motion is reviewed de novo on appeal, a district court’s factual findings are
reviewed for clear error. Branson Label, 793 F.3d at 915 (citation omitted). In a
summary-judgment motion, as noted above, the court generally must believe the nonmovant’s evidence and draw all reasonable inferences from the evidence in the nonmovant’s favor. Tolan v. Cotton, 572 U.S. 650, 651 (2014) (per curiam). And a district
court’s order granting summary judgment for want of subject-matter jurisdiction is
reviewed de novo in its entirety. U.S. ex rel. Minn. Ass’n of Nurse Anesthetists v. Allina
Health Sys. Corp., 276 F.3d 1032, 1040 (8th Cir. 2002). The nature of the subject-matter
jurisdiction inquiry and the functions served by Rule 12(b)(1) and Rule 56 have prompted
4

courts to conclude that the question of subject-matter jurisdiction should not be resolved
on summary judgment. See, e.g., Capitol Leasing Co. v. Fed. Deposit Ins. Corp., 999 F.2d
188, 191 (7th Cir. 1993) (per curiam) (“In short, the question of jurisdiction is inappropriate
for summary judgment, and discussing the interplay of Rule 12(b)(1) and Rule 56 verges
on non sequitur.” (citations omitted)).
It seems nonetheless appropriate here to adjudicate Defendants’ challenge to
subject-matter jurisdiction under Rule 56 for three reasons. First, the United States
Supreme Court has at least implied (and perhaps said outright) that summary judgment is
an appropriate process by which to assess the presence of subject-matter jurisdiction.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561–62 (1992). Second, though our Eighth
Circuit Court of Appeals has approved of a district court recharacterizing a
summary-judgment motion challenging subject-matter jurisdiction as a motion to dismiss
under Rule 12(b)(1), Osborn, 918 F.2d at 728, it has not announced a general rule requiring
that to be done and, in fact, has reviewed district-court orders entering summary judgment
for want of subject-matter jurisdiction without questioning the propriety of that procedure,
see, e.g., Hillesheim v. Holiday Stationstores, Inc., 900 F.3d 1007, 1009–10 (8th Cir. 2018).
Third, on the record presented here, the result would be the same if the question of
subject-matter jurisdiction were adjudicated under Rule 12(b)(1).
C
The general rules governing Article III standing are settled:
Federal jurisdiction is limited by Article III, § 2, of the U.S.
Constitution to actual cases and controversies. Therefore, the
plaintiff’s standing to sue “is the threshold question in every
5

federal case, determining the power of the court to entertain the
suit.” Warth v. Seldin, 422 U.S. 490, 498 (1975). To show
Article III standing, a plaintiff has the burden of proving:
(1) that he or she suffered an “injury-in-fact,” (2) a causal
relationship between the injury and the challenged conduct,
and (3) that the injury likely will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–
61 (1992).
Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000). An injury-in-fact is the “invasion
of a legally protected interest” that is “concrete and particularized” and “actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560 (citations and internal
quotation marks omitted). Moreover, to have standing to obtain injunctive relief, the
plaintiff also must show that he is likely to suffer future injury by the defendant and that
the sought-after relief will prevent that future injury. See City of L.A. v. Lyons, 461 U.S.
95, 102–03 (1983). “[S]tanding is based on the facts as they existed at the time the lawsuit
was filed.” Steger, 228 F.3d at 893. Standing “must exist not only at the time the complaint
is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (citations and internal quotation marks omitted). By the summary judgment
stage, a plaintiff must set forth “specific facts” establishing standing. Lujan, 504 U.S. at
561.
Eighth Circuit cases describe what a plaintiff must show to establish that he suffered
an injury-in-fact to assert disability-discrimination claims under the ADA and MHRA. “To
meet the injury-in-fact requirement, ‘the party seeking review [must] be himself among the
injured.’” Steger, 228 F.3d at 893 (alteration in original) (quoting Lujan, 504 U.S. at 560).
To show injury, there must be a connection between the nature of a plaintiff’s disability
6

and the alleged violations; granting an individual with a particular disability or class of
disabilities “standing to seek relief on behalf of all disabled individuals would expand the
standing doctrine beyond the limits of Article III.” Steger, 228 F.3d at 893 (citation
omitted). To be injured, as a general rule a plaintiff must have entered or visited the facility
where the violations are alleged to have occurred. Davis v. Morris-Walker, Ltd., 922 F.3d
868, 871 (8th Cir. 2019). Where a facility contains “known barriers that the owner has no
intention of remedying,” a plaintiff “need not engage in the ‘futile gesture’ of visiting [the]
building, [but] must at least prove knowledge of the barriers and that [he] would visit the
building in the imminent future but for those barriers.” Steger, 228 F.3d at 892 (quoting
42 U.S.C. § 12188(a)(1)); see also Hillesheim, 900 F.3d at 1011 (recognizing that a
plaintiff “was not required to have a go of it” by attempting to traverse an allegedly
inaccessible ramp to establish Article III standing). Having visited a building or facility, a
plaintiff “need not encounter” every challenged barrier “to obtain effective relief.” Steger,
228 F.3d at 894 (citation omitted). Thus, in Steger, the court permitted a blind plaintiff
who had encountered at least one ADA violation in one part of a building to challenge
several alleged “violations that could injure blind persons” in parts of the building the
plaintiff never had been. Id. at 893–94.
Hillesheim is particularly instructive regarding what is necessary to establish
injury-in-fact stemming from disability discrimination in the summary-judgment context.
There, a wheelchair-using plaintiff alleged that three parking lot defects—the absence of
vertical signs marking two handicap-accessible parking spaces, the lack of an adjacent
access aisle in one of the spaces, and the presence of a garbage can near the top of an access
7

ramp—violated the ADA and the MHRA. Hillesheim, 900 F.3d at 1009–11. On appeal,
the plaintiff challenged the district court’s entry of summary judgment against his MHRA
claims for lack of injury-in-fact. Id. at 1010. The Eighth Circuit determined that the
plaintiff’s evidence of injury with respect to the access-aisle and vertical-signage claims
was insufficient because it “did little more than describe the alleged violations, other than
stating [the plaintiff] was deterred from visiting the store in the future.” Id. (footnote
omitted). The plaintiff “did not explain how the lack of an access aisle or insufficient
vertical signage injured him. [He] made no mention, for example, of whether he had
difficulty identifying which spots were handicap accessible or even whether the alleged
defects caused him to leave without entering the store.” Id. The court reached a different
result with respect to the plaintiff’s garbage-can claim:
Hillesheim’s garbage-can claim is a different story. In contrast
to the other claims, Hillesheim’s declaration connected the
placement of the garbage can to his decision to leave. It stated
that he could not safely navigate the ramp without risking
injury because the garbage can blocked his path of travel and
trying to maneuver around it could have caused his wheelchair
to tip over. By offering specific evidence that the allegedly
dangerous circumstances caused him not to enter the store,
Hillesheim did enough to establish an injury-in-fact.
Id. at 1011. The lessons of Hillesheim seem clear. A disabled individual does not suffer a
cognizable injury merely by observing alleged barriers the individual thinks violate the
ADA or MHRA; “specific evidence” must be identified explaining how the barrier or
barriers injured that individual, and that evidence must show something more than that the
individual was “deterred from visiting the store in the future.” Id. at 1010 & n.1 (citing
Davis v. Anthony, Inc., 886 F.3d 674, 678 (8th Cir. 2018)).
8

As mentioned earlier, a plaintiff who seeks injunctive relief must also—to establish
standing—show a “real and immediate threat of future injury by the defendant.” Lyons,
461 U.S. at 107 n.8; see also Meuir v. Greene Cty. Jail Emps., 487 F.3d 1115, 1119 (8th
Cir. 2007). “‘Past exposure to illegal conduct’ is not enough absent present adverse
effects.” Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th Cir. 2006) (quoting Lyons,
461 U.S. at 102). “Intent to return to the place of injury ‘some day’ is insufficient.” Steger,
228 F.3d at 893 (citing Lujan, 504 U.S. at 564). As the Supreme Court explained in Lujan,
“‘some day’ intentions—without any description of concrete plans, or indeed any
specification of when the some day will be—do not support a finding of the ‘actual or
imminent’ injury that our cases require.” Lujan, 504 U.S. at 564 (citation omitted); see
also Disability Support All. v. Heartwood Enters., LLC, 885 F.3d 543, 546 (8th Cir. 2018)
(recognizing that an ADA plaintiff must prove barriers both caused him actual injury at the
time he commenced the action and that he would visit the building in the “imminent future”
but for those barriers). To determine whether a plaintiff faces the real and immediate threat
of future injury in an accessibility suit under the ADA, district courts within the Eighth
Circuit have analyzed four factors to ascertain whether the plaintiff will return to the
business: “(1) the plaintiff’s proximity to the [business]; (2) the frequency of plaintiff’s
nearby travel; (3) the plaintiff’s past patronage; and (4) the definiteness of plaintiff’s plans
to return.” Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108, 1112 (D. Minn.
2014) (citing Steelman v. Rib Crib No. 18, Nos. 11-3433-CV-S-RED, et al., 2012 WL
4026686, at *2 (W.D. Mo. Sept. 12, 2012)); see also Indep. Project, Inc. v. Elm Grove
LLC, No. 4:18-CV-1779-AGF, 2019 WL 498870, at *3 (E.D. Mo. Feb. 8, 2019); White v.
9

Coin Laundry, No. 8:16CV42, 2017 WL 2656101, at *2 (D. Neb. June 20, 2017); Barfield
v. Am. Enter. Props. Neb., No. 8:16CV19, 2016 WL 4684106, at *2 (D. Neb. Aug. 17,
2016).
D
Smith has failed to support his claim of injury-in-fact with “[citations] to particular
parts of materials in the record” as required by Rule 56(c)(1)(A). Smith commenced this
action in federal court, so ultimately it is his burden to establish the existence of
subject-matter jurisdiction and, as part of that, his standing. Brooks v. City of Des Moines,
844 F.3d 978, 979 (8th Cir. 2016).

Smith addressed injury-in-fact in his opening

summary-judgment brief beginning at the top of page six and ending in the middle of page
eight. Pl.’s Mem. in Supp. at 6–8 [ECF No. 187].1 This section includes, by a rough count,
more than twenty discrete fact assertions. The section does not, however, include any
citation to a particular part or parts of materials in the record. The section does include one
general reference to materials in the record. That appears in a sentence asserting that
“Smith’s deposition testimony and Declarations show that he has visited the property on a
trip between his home in Burnsville and Winona on May 25, 2017.” Id. at 7 (emphasis
added). It is not clear whether or to what extent Smith intends to rely on the reference to
his “deposition testimony and Declarations” to support other fact assertions in his brief
beyond the quoted sentence. Regardless, mentioning “deposition testimony” generally is
not the same thing as citing to particular parts of materials in the record. That reference

1

Smith does not address standing in his reply memorandum. See ECF No. 215.
10

might suffice if a deposition transcript was very short, but here the transcript of Smith’s
deposition runs to 160 pages. See Nov. 30, 2018 Sheu Decl. Ex. A (“Smith Dep.”) [ECF
No. 172-1]. Smith’s reference to “his Declarations” is not particular, either. The docket
in this case contains 227 entries.

A review of those docket entries shows many

declarations, but only one executed by Smith himself. Smith Decl. [ECF No. 41]. Perhaps,
despite his reference to “Declarations” (plural), Smith intends to refer only to that
declaration. He does cite the declaration several times in a paragraph appearing earlier in
the “factual background” section of his brief. Pl.’s Mem. in Supp. at 2, 4. The declaration
is two pages in length. In the declaration, Smith described several facts under penalty of
perjury concerning his visit to the Bradley-Pizza-owned Domino’s in May 2017, the ADA
violations he believed he encountered, and how those alleged violations affect him
generally.

Smith Decl. ¶¶ 4–12.

But relying only on this declaration would be

unconventional. The declaration is dated December 1, 2017, id. at 2, more than nine
months before his deposition, Smith Dep. at 1, and as will be explained, Smith’s deposition
in some respects arguably contradicted, in others added important details to, and in still
others described new and significant facts not mentioned in, Smith’s December 1
declaration. Perhaps Smith’s citation to “his Declarations” intends to refer to some number
of declarations that have been filed on his behalf in this case, if not all of them. But Smith
identifies neither a particular declaration nor, just as important, a particular part of any
declaration to establish injury-in-fact.
The question, then, is what to do about Smith’s violation of Rule 56(c)(1).
Rule 56(c)(3) requires a district court to consider only the particular parts of materials cited
11

in compliance with Rule 56(c)(1)(A).

If unsupported facts were excluded from

consideration here, then it would seem likely appropriate to enter summary judgment in
Defendants’ favor on that basis on the issue of subject-matter jurisdiction. Fed. R. Civ. P.
56(e)(2)–(3). At the same time, Rule 56(c)(3) permits a district court discretion to consider
materials in the record that are not cited in compliance with Rule 56(c)(1). Here, it makes
better sense to do that. Defendants neither identified nor objected to Smith’s violation of
Rule 56(c)(1). Much of Smith’s deposition was cited by Defendants, resulting in a review
of it. Though the absence of citations in Smith’s briefing prompted a much more in-depth
review—line-by-line—of Smith’s deposition, the thoroughness of that review was
prompted also by the imprecise nature of some of Defendants’ citations to the transcript.2
E
Even accounting for all of Smith’s deposition testimony, his December 1
declaration, and all other record evidence, Smith has not shown injury-in-fact stemming
from his May 25, 2017 visit to the Defendants’ property. (For ease of reference, the
property will be referred to from now on simply as “Bradley Pizza.”) The record facts

2

For example, at page seven of their opening brief, Defendants assert that Smith
“testified he had no intent to patronize the 12 businesses he eventually sued after his May
25, 2017, trip.” Defs.’ Mem. in Supp. at 7 [ECF No. 178]. For this assertion, Defendants
cited parts of Smith’s deposition testimony where counsel introduces himself to Smith
(Smith Dep. at 8:13–19), where Smith admits there “were about ten other places in Red
Wing and Winona that [he] sued [in addition to the businesses represented by Defendants’
counsel in this and other cases brought by Smith] all kind of based on that same May 25,
2017 visit” (id. at 41:13–16), and where Smith acknowledges that apart from scrutinizing
these businesses, there was nothing else that brought him to Red Wing and Winona that
day (id. at 42:11–15). How these citations, whether considered separately or together,
support the assertion that Smith “had no intent to patronize the 12 businesses he eventually
sued after his May 25, 2017, trip” is not clear.
12

regarding Smith’s May 25, 2017 visit to and inspection of Bradley Pizza are clear and
undisputed. Smith resides in Burnsville, Minnesota. Smith Dep. at 13:13–15. Smith is
represented in this case by attorney Padraigin Browne of Browne Law LLC. Peter
Hansmeier works at Browne Law as a paralegal and “access specialist.” Nov. 30, 2018
Sheu Decl. Ex. B (“Hansmeier Dep.”) at 9:13–10:19 [ECF No. 172-2]. On May 25, 2017,
Smith and Hansmeier drove together to and around the cities of Winona and Red Wing,
Minnesota, to scrutinize businesses for ADA compliance. Smith Dep. at 31:12–18, 39:2–
20, 42:11–15. When Smith and Hansmeier arrived at Bradley Pizza, it was not open; it is
undisputed that the restaurant opens for business every day at 10:30 a.m. Schwarzhoff
Decl. ¶ 5 [ECF No. 34]. (Though Smith first testified in his deposition that the restaurant
was open when he and Hansmeier arrived, Smith Dep. at 33:12–14, he later acknowledged
that photographs taken during their site visit were time-stamped several minutes before
10:00 a.m., and he acknowledged that meant Bradley Pizza “wasn’t quite open yet that
day,” id. at 105:9–16.) Smith conceded in his deposition that “when [he] decide[s] to sue
businesses like [Bradley Pizza], it’s kind of based on some obvious violations you can see
from the street,” such as the absence of parking signs or striping. Id. at 32:16–23. Smith
did not, however, describe if this is how Bradley Pizza drew his attention. Smith also
conceded that when he scrutinizes businesses for ADA compliance, he does not typically
look to patronize the business. Id. at 39:2–6. Smith and Hansmeier stopped in the area of
Bradley Pizza for only a brief time; Smith acknowledged that he and Hansmeier arrived at
another nearby business to scrutinize it for ADA compliance around 10:00 a.m. Id. at
128:18–21. Smith remained inside the vehicle throughout. Id. at 87:2–4; Nov. 30, 2018
13

Sheu Decl. Ex. A at Ex. 11, Resp. to Interrog. No. 5 [ECF No. 172-1 at 84]; Pl.’s Mem. in
Supp. at 7. Smith observed what he believed to be two ADA violations in the parking lot:
an absence of accessible parking spaces, and an absence of any signs identifying and
reserving accessible parking spaces. Compl. ¶ 24(a)–(b) [ECF No. 1]. Smith also observed
what he believed to be an ADA violation with the entrance door: it appeared to have a
threshold higher than one-half inch. Id. ¶ 24(c).3
When asked if he might “try to patronize” a business like Bradley Pizza, Smith
explained that he “would not even attempt to do that because I’ve had too many times that
I would go to get out of my car and there may not have been someone there when I got out,
but I come back and someone is parked perfectly within the lines or perfectly adjacent to
me that a normal able-bodied [person] could get in, but I couldn’t.” Smith Dep. at 32:24–
33:7. When asked what damages Smith believes he has experienced as a result of Bradley
Pizza’s violations, Smith testified “it’s like in the cost and just the going out there,” which
he identified to be the “gas and wear and tear” on his vehicle, and “not being able to go in
and then having to go somewhere else.” Id. at 100:6–19. Smith also testified:
It’s frustrating to go out in public and see places that I can’t get
into, it’s a very common occurrence in my life that it gets really
old going out and wanting to go to some place and then not

3

In an amended complaint, Smith alleges that the “maneuvering clearance at the
entrance to” Bradley Pizza and the parking lot had slopes greater than permitted by the
ADA. Am. Compl. ¶¶ 19–20, 25–27 [ECF No. 118]. Smith alleges that these alleged
violations were discovered during “later collected measurements” and a “September 13,
2017 site inspection.” Id. Smith neither alleges nor cites evidence showing that he was
involved with, or ever encountered or suffered injury owing to, these alleged violations.
14

being able to because of some kind of barrier of some sort, be
it a step, no parking, a steep incline.
Id. at 101:12–17.
These facts, construed reasonably in a light most favorable to Smith, do not permit
the conclusion under controlling Supreme Court and Eighth Circuit law that Smith suffered
Article III injury-in-fact from his brief stop at Bradley Pizza. This is a drive-by ADA case.
Reduced to their essence, the undisputed facts are that Smith parked in the vicinity of a
closed business for a very short time, observed what he believed to be ADA violations,
took pictures while seated in the vehicle in which he was traveling, never exited the vehicle,
and drove away.4 He did not stay to attempt to enter or visit the business. It is true that
Smith might be excused from such an attempt if the restaurant was open and if the facts
showed that known barriers would have prevented it or posed a risk, but Smith did not
introduce evidence to show that was the case during his brief stop. It also is true that Smith
testified he is reluctant to park in a lot lacking a space with an access aisle for fear that he
might be prevented from reentering his vehicle if someone were to park in an adjacent spot,
id. at 33:1–11, and this concern is absolutely understandable. He has, however, identified
no facts to show that this was a reasonable concern during his short stop at Bradley Pizza.
In other words, he has not explained how the lack of an access aisle (or, for that matter, the

4

See Straw v. City of South Bend, No. 3:16-CV-342-JD, 2016 WL 6996047, at *4
(N.D. Ind. Nov. 30, 2016) (“[M]erely taking photographs on Memorial Day (when the
government buildings were closed) for the sake of documenting the status of the parking
spots [for ADA compliance] clearly does not grant Straw Article III standing—as he does
not allege that in attempting to park, South Bend failed to accommodate his disability such
that he suffered a personal injury or encountered barriers in violation of the ADA.”)
15

lack of signage or threshold) injured him on this occasion. Unlike the plaintiff’s Article
III-worthy garbage-can claim in Hillesheim, Smith has drawn no connection here between
the violations he observed and his decision to leave. Smith’s damages testimony falls short,
also. His position that Bradley Pizza should pay as damages for the gas he purchased and
the wear and tear on his car associated with his May 25, 2017 travel to Red Wing and
Winona, id. at 100:6–19, is not advanced in his briefs. Smith’s frustrations with the fact
that ADA non-compliance is “a very common occurrence in [his] life that gets really old,”
id. at 101:12–17, is—again—absolutely understandable. But the law is clear that an
individual’s frustrations with widespread non-adherence to the law are not injury-in-fact.5
Nor has Smith identified evidence, necessary for his pursuit of injunctive relief, that
reasonably may be construed to show he faces a threat of future injury by Defendants that
is immediate and real. Smith testified that he purchases Domino’s Pizza usually from “the
local Burnsville Domino’s.” Id. at 33:22–23. He also testified that he had never been to
Bradley Pizza before his May 25, 2017 stop, though he seemed to say that he had “driven
past” it before. Id. at 41:9–12. Smith acknowledged that there are “quite a few” Domino’s

5

Defendants argue that three Eighth Circuit cases “read together . . . provide that in
order to establish Article III standing under the ADA, [Smith] must allege he was
attempting to patronize Domino’s and was somehow injured in attempting to do so.”
Defs.’ Mem. in Supp. at 17 (emphasis added). In this context, to “patronize” means “[t]o
go to as a customer, especially on a regular basis.” The American Heritage Dictionary of
the English Language 1290 (4th ed. 2009). Therefore, Defendants are understood to argue
at least that Smith cannot establish his standing to pursue this case unless he went to the
Bradley Pizza-owned Domino’s “as a customer.” The three cases Defendants cite as
establishing this rule are Steger, Davis, and Hillesheim. Defs.’ Mem. in Supp. at 17. It is
not necessary here to determine whether Defendants’ characterization of Eighth Circuit
law is correct because, regardless of his intentions, Smith has failed to identify facts
sufficient to permit a reasonable conclusion that he suffered injury-in-fact.
16

closer to his Burnsville residence and that Red Wing is roughly fifty miles from Burnsville.
Id. at 39:9–15. Smith testified that he has a brother who lives in Stockton, Minnesota,
which Smith testified is near Winona, and that he “go[es] down to that area fairly
frequently,” id. at 42:19–21, but when asked if he had any specific plans to visit Bradley
Pizza or even the Red Wing area generally, Smith testified that he did not, id. at 98:22–24
(Q: “Do you know the next time you’re going to go to the Red Wing area?” A: “No.”).
Smith did testify that he had since been to Red Wing to observe changes that had been
made at various businesses he sued, including Bradley Pizza. Id. at 52:13–23. But he also
acknowledged that he merely “[drove] into the parking lots” of these businesses and did
not exit his vehicle at any time. Id. at 53:17–54:3. In his opening brief, Smith asserts
(without citation) that he “plans to visit Winona (going through Re d Wing) [sic] in 2019,”
Pl.’s Mem. in Supp. at 8, but a careful read of Smith’s deposition reveals no support for
this assertion. Smith also supports his claim of future injury by pointing out (again without
citation) that “Red Wing touts itself as a scenic and historic tourist destination and
advertises its desirability within the Twin Cities.” Id. This is no doubt true, but the same
could be said of many cities in Minnesota, and Smith makes no attempt to link the fact that
Red Wing may be a “tourist destination” to his activities. These facts show, at most, “some
day” intentions, Lujan, 504 U.S. at 564 (citation omitted), insufficient to permit a
reasonable person to conclude that Smith faces a real and immediate threat of future injury
by Bradley Pizza. Smith does not know when he will next be in Red Wing, much less
Bradley Pizza. He describes no concrete, imminent plans. He lacks standing to seek
injunctive relief.
17

II
Smith objects to and seeks review of two non-dispositive discovery orders issued
by Magistrate Judge Katherine Menendez.

ECF Nos. 165, 226.

On review of a

non-dispositive order, a district judge must “modify or set aside any part of the order that
is clearly erroneous or is contrary to law.” Local Rule 72.2(a)(3); see also 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a). “A ruling is clearly erroneous when the reviewing
court is left with the definite and firm conviction that a mistake has been committed. A
decision is contrary to law when a court fails to apply or misapplies relevant statutes, case
law or rules of procedure.” Smith v. Bradley Pizza, Inc., 314 F. Supp. 3d 1017, 1026 (D.
Minn. 2018) (cleaned up). Smith’s objections will be overruled. Magistrate Judge
Menendez’s orders correctly describe the law and could not reflect a more thorough,
thoughtful exercise of discretion in response to the Parties’ many motions.
A
Smith raises seven objections [ECF No. 165] to Magistrate Judge Menendez’s order
[ECF No. 159] entered on a series of discovery-related motions filed by him [ECF No. 138]
and Defendants [ECF No. 144]. Smith’s objections amount to a wholesale appeal of this
order; there is not a decision he does not challenge.
First, Smith objects to Magistrate Judge Menendez’s denial of his motion to compel
Dahl to sign initial responses to interrogatories (that subsequently were supplemented and
signed by Dahl) and her award of fee shifting against Smith on this motion. Nov. 13, 2018
Order at 2–4. The facts relevant to this aspect of Smith’s motion are straightforward. Smith
served a set of interrogatories on Dahl. Oct. 12, 2018 Browne Decl. Ex. A [ECF
18

No. 142-1]. Dahl provided initial responses, but Dahl did not sign the initial responses as
required by Rule 33(b)(5). Id. Ex. B [ECF No. 142-2]. Dahl, however, subsequently served
amended and supplemental responses to the interrogatories and signed them. Id. Ex. C
[ECF No. 142-3]. Dahl’s amended and supplemental responses were complete. In other
words, they did not merely add to or clarify particular information in her original responses;
they replaced those original responses entirely.

Smith nonetheless sought an order

compelling Dahl to sign her original responses. Pl.’s Mem. in Supp. of Mot. to Compel at
2 [ECF No. 139]. Magistrate Judge Menendez’s decision to deny Smith’s motion seeking
this relief and her decision to shift fees against Smith in connection with this request were
neither clearly erroneous nor contrary to law. Dahl was under an affirmative duty to
supplement her interrogatory responses if they were “incomplete or incorrect, and if the
additional or corrective information ha[d] not otherwise been made known to the other
parties.” Fed. R. Civ. P. 26(e)(1)(A). As a practical matter, once Dahl served her amended
and supplemental responses, she effectively announced her intention not to stand on her
initial responses. Perhaps her initial responses were inaccurate, incomplete, or both. That
happens. Regardless, the same reason or reasons that motivated Dahl to serve amended
and supplemental responses likely motivated her reluctance to sign her original responses.
A litigant reasonably should be reluctant to sign a pleading that turns out to be incomplete
or inaccurate and requires amendment and supplementation. In his objections, Smith

19

identifies no legal or practical justification to require Dahl to sign her original responses.
Smith asserts only:
The undersigned does not believe that there is such a thing as
superseding discovery responses—for good policy-based
reasons which are beyond the scope of this objection. Contrary
to the Magistrate Judge’s order, there is no such thing as a
superseding discovery response.
Pl.’s First Obj. at 3. Alluding to unspecified policies does not identify applicable law or
error, and it would make no sense to guess what policies Smith believes are relevant. The
absence of a justification for Smith’s position on this issue gave Magistrate Judge
Menendez sufficient justification to order fee-shifting. As to the fee-shifting award, it also
deserves mention that Magistrate Judge Menendez is seriously familiar with this case,
having ruled on multiple pretrial disputes, placing her in the best position to determine
whether a discretionary award of fees is warranted. See, e.g., Sept. 22, 2017 Order [ECF
No. 17]; Jan. 24, 2018 Order [ECF No. 72]; June 4, 2018 Order [ECF No. 107]; June 14,
2018 Order [ECF No. 117].
Second, Smith objects to Magistrate Judge Menendez’s denial of his motion to
compel Dahl to identify and produce “all documents substantiating [Dahl’s] financial
position for each of the past six years to the present” and her decision to shift fees against
Smith in connection with this motion. Pl.’s First Obj. at 4–7. Magistrate Judge Menendez
denied Smith’s motion because she understood the Parties to have reached an agreement
regarding the production of some responsive information and because Dahl’s responses to
additional requests served by Smith for similar information that were not subject to the
Parties’ agreement were not due at the time Smith brought his motion to compel, making
20

the motion “premature and unnecessary.” Nov. 13, 2018 Order at 3–4. Smith argues that
his motion was based on discovery requests served July 24, 2018, and that Magistrate Judge
Menendez erred in concluding the motion was premature. Pl.’s First Obj. at 6–7. Smith
also asserts that “[t]here was no agreement to extend the time for responses to the subject
discovery.” Id. at 6. Dahl describes things differently. Dahl says she provided financial
information responsive to Smith’s July 24 requests before her October 5, 2018 deposition
and agreed to provide additional records after discussing the issue with Smith and gaining
clarification regarding the scope of Smith’s request during her deposition. Defs.’ Resp. to
First Obj. at 5–6 [ECF No. 181]. After the deposition, Smith served additional
interrogatories regarding Dahl’s finances, responses to which would not have been due
until after Smith filed his motion to compel. Defendants argue:
[T]o the extent there was confusion on which request for
financial records plaintiff moved to compel (or how they
differed from the ones plaintiff later requested and obtained),
such confusion was solely plaintiff’s own doing. Because
defendants agreed to provide plaintiff, and did provide
plaintiff, all requested financial records for Ms. Dahl, plaintiff
lacked good faith under Rule 37 for bringing his motion before
the records were due, and plaintiff’s motion was not
substantially justified.
Id. at 6. The record reflects that Dahl produced financial information prior to her
deposition. See Nov. 30, 2018 Sheu Decl. Ex. C (“Dahl Dep.”) at 13:16–18 [ECF No. 173]
(referencing “financial information . . . [Dahl has] provided”). In response to Smith’s
October 9, 2018 discovery request, Dahl disclosed sixty-three pages of financial documents
to Smith on November 9, 2018. Dec. 11, 2018 Sheu Decl. ¶ 2 [ECF No. 182]. Smith
identifies no deficiencies with Dahl’s response. He identifies no financial information that
21

Dahl should have produced but did not. It would be improper to reverse an order denying
a motion to compel documents that have, so far as can be discerned from the record, been
produced. And again, the Parties’ apparent disputes about what documents were produced
when in response to which requests or agreements serve to highlight why Magistrate Judge
Menendez’s fee-shifting order deserves deference. Magistrate Judge Menendez had a
front-row seat to a fact-intensive discovery dispute. Smith has identified no error that is
clear in, or law that is contrary to, Magistrate Judge Menendez’s decision to shift fees
against Smith in connection with this motion.
Third, Smith objects to Magistrate Judge Menendez’s determination that Bradley
Pizza’s financial position is irrelevant. Pl.’s First Obj. at 7–9. Smith argues that Magistrate
Judge Menendez exceeded her power by purportedly determining that “that Bradley Pizza
would ultimately bear no liability in this case due to [its] lease agreement” with Dahl. Id.
at 8. That’s not what Magistrate Judge Menendez did or said. Magistrate Judge Menendez
explained:
Mr. Smith suggests that finding this information is irrelevant
based on the terms of the lease intrudes on merits decisions that
are the ultimate province of the District Court on a dispositive
motion. . . . Here the Court does not determine the merits of the
readily-achievable affirmative defense asserted by the
Defendants in this litigation. Rather the Court has concluded,
based on the specific facts of this case and the clear language
of the lease, that Bradley Pizza’s financial condition has no
bearing on the outcome of the readily-achievable defense.
Nov. 13, 2018 Order at 6–7. No clearer explanation why Smith’s position is wrong could
or need be provided here.

22

Fourth, Smith objects that Magistrate Judge Menendez did not rule on her motion
to require Bradley Pizza to sign answers to Smith’s second set of interrogatories. Pl.’s First
Obj. at 9–10; see also Pl.’s Mem. in Supp. of Mot. to Compel at 1–2.

Smith’s

interrogatories were dated July 24, 2018. Oct. 12, 2018 Browne Decl. ¶ 3, Ex. A [ECF
Nos. 142, 142-1]. Defendants responded on August 27, 2018, but the responses were
signed only by Defendants’ counsel. Id. Ex. B. Defendants submitted supplemental and
amended responses on October 4, 2018, which were signed by Defendants’ counsel and
Dahl. Id. Ex. C. Smith objected to Bradley Pizza’s failure to sign the responses, and a
representative of Bradley Pizza signed the responses on October 18, 2018. Defs.’ Resp. to
Mot. to Compel at 1–2 [ECF No. 152]; Oct. 19, 2018 Sheu Decl. ¶¶ 5–6 [ECF No. 153]. In
other words, Smith had the signed responses he sought via his motion to compel before the
hearing on the motion. Smith does not explain why it is necessary for a ruling to have been
issued requiring Bradley Pizza to do something it had done already.
Fifth, Smith objects to Magistrate Judge Menendez’s order that he produce
non-confidential settlement agreements in prior ADA cases and documents evidencing the
total compensation he has received from prior ADA cases for the period October 30, 2016,
to October 30, 2018. Pl.’s First Obj. at 10–11. Specifically, he argues that the settlement
information is irrelevant.

Id.

Magistrate Judge Menendez’s order reflects careful

consideration of a host of related factors bearing not only on relevance, but also
proportionality and the interests of non-parties. Nov. 13, 2018 Order at 8–10. Smith
identifies no law contrary to this ruling. Citing Fed. R. Evid. 408(a), Smith argues that this
information would be inadmissible at trial. Pl.’s First Obj. at 11. But “[i]nformation within
23

[the] scope of discovery need not be admissible in evidence to be discoverable.” Fed. R.
Civ. P. 26(b)(1).
Smith’s sixth and seventh objections will be addressed together. Smith objects to
Magistrate Judge Menendez’s order requiring him to reimburse Defendants for their
prepayment of expert fees and expenses in connection with Hansmeier’s deposition; Smith
argues this order is improper under Rule 26(b)(4)(E). Pl.’s First Obj. at 11–13. Smith also
objects to being ordered to pay the outstanding costs of the deposition of Defendants’
designated expert, Julee Quarve-Peterson; Smith argues that Defendants did not satisfy
their burden of establishing the reasonableness of their expert witness’s fees. Id. at 13–14.
These objections do not address the substance or thoughtfulness of Magistrate Judge
Menendez’s order with respect to these issues and provide no basis to find the order clearly
erroneous or contrary to law. Nov. 13, 2018 Order at 10–17.
Defendants request permission “to submit, as part of their fee petition [before
Magistrate Judge Menendez], those fees incurred in defending against plaintiff’s
objection.” Defs.’ Resp. to First Obj. at 15. Citing Marrocco v. Hill, 291 F.R.D. 586
(D. Nev. 2013), Defendants argue that “[f]ees incurred in responding to a Rule 72 objection
are embodied in the term ‘reasonable expenses incurred in’ a discovery motion” under
Rule 37. Defs.’ Resp. to First Obj. at 15. This request will be denied. Defendants have
cited no controlling or intra-district authorities approving of a request like this.

If

Defendants were to seek sanctions for Smith’s pursuit of this appeal or any part of it, it
seems at least at first glance that the motion more appropriately should be addressed to the
judicial officer responsible for adjudicating and resolving the appeal, here the district
24

judge. And though federal law apart from Rule 37 might provide a reasonable basis upon
which to seek sanctions here, see 28 U.S.C. § 1927, determining whether Smith’s appeal
multiplied these proceedings “unreasonably and vexatiously” or is sanction-worthy under
some other applicable standard would entail costly collateral litigation with no predictable
outcome.
B
Smith also objects to and seeks review of [ECF No. 226] an order [ECF No. 221]
requiring Defendants’ counsel to pay $500 to the United States District Court for the
District of Minnesota as a sanction for violating the protective order [ECF No. 123] in this
case. Smith takes issue with three of Magistrate Judge Menendez’s findings in this order:
(1) that some of Defendants’ counsel’s actions, though violations of the protective order,
were substantially justified; (2) that an award of attorney’s fees to Smith would be unjust
under the circumstances; and (3) that $500 payable to the Court was the appropriate
sanction. See generally Pl.’s Second Obj. Smith argues that Magistrate Judge Menendez’s
order should be reviewed de novo because it “resolved all of the [sic] Smith’s claims
against that non-party with respect to the non-party’s misconduct.” Id. at 3.
A majority of circuits treat sanctions as non-dispositive matters unless the sanction
awarded by a magistrate judge disposes of a claim. Syntel Sterling Best Shores Mauritius
Ltd. v. TriZetto Grp., 328 F.R.D. 100, 118 (S.D.N.Y. 2018) (“Motions seeking Rule 37(b)
sanctions for noncompliance with the Court’s discovery orders are ordinarily considered
non-dispositive, and therefore fall within the grant of Rule 72(a), unless the sanction
employed disposes of a claim.” (citation and internal quotation marks omitted));
25

Augustyniak Ins. Grp., Inc. v. Astonish Results, L.P., No. CA 11-464S, 2013 WL 998770,
at *6 (D.R.I. Mar. 13, 2013) (“[O]nly the Seventh Circuit has blanketly held that motions
for sanctions are to be treated as dispositive. Every other circuit . . . has held that motions
for sanctions are generally non-dispositive.” (citing Cleversafe, Inc. v. Amplidata, Inc.,
287 F.R.D. 424, 426–30 (N.D. Ill. 2012))). Here, Smith requests attorney’s fees pursuant
to Rule 37(b)(2)(C), Pl.’s Second Obj. at 4, and requests sanctions for violation of a
protective order, id. at 12, which is also authorized by Rule 37(b), Life Techs. Corp. v.
Biosearch Techs., Inc., No. C-12-00852 WHA (JCS), 2012 WL 1600393, at *8 (N.D. Cal.
May 7, 2012) (footnote omitted) (“Rule 37 of the Federal Rules of Civil Procedure grants
courts the authority to impose sanctions where a party has violated a discovery order,
including a protective order.” (footnote omitted) (citing Fed. R. Civ. P. 37(b)(2)));
Sandoval v. Am. Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 264 (D. Minn. 2007) (“Rule
37(b) of the Federal Rules of Civil Procedure provides for sanctions for the violation of
discovery orders, which include protective orders issued under Federal Rule of Civil
Procedure 26(c).” (citation omitted)). Magistrate Judge Menendez’s order will be reviewed
under the “clearly erroneous or contrary to law” standard set forth in Rule 72(a) and
28 U.S.C. § 636(b)(1)(A).
According to Rule 37(b)(2)(C): “[T]he court must order the disobedient party, the
attorney advising that party, or both to pay the reasonable expenses, including attorney’s
fees, caused by the failure [to obey an order], unless the failure was substantially justified
or other circumstances make an award of expenses unjust.” Substantially justified means
“justified to a degree that could satisfy a reasonable person.”
26

Bah v. Cangemi,

548 F.3d 680, 683 (8th Cir. 2008) (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)). “A substantially justified position need not be correct so long as ‘a reasonable
person could think it correct, that is, if it has a reasonable basis in law and fact.’” Bah,
548 F.3d at 683–84 (quoting Pierce, 487 U.S. at 566 n.2). “An eligible party ‘should
ordinarily recover an attorney’s fee unless special circumstances would render such an
award unjust.’” North Dakota v. Lange, 900 F.3d 565, 569 (8th Cir. 2018) (quoting
Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)). The definition of “unjust”
in the context of Rule 37 is unclear. Some courts focus on the conduct of the moving party:
“Circumstances may be unjust ‘where the prevailing party . . . acted unjustifiably.’”
Lorillard Tobacco Co. v. Elston Self Serv. Wholesale Groceries, Inc., 259 F.R.D. 323, 328
& n.1 (N.D. Ill. 2009) (quoting Fed. R. Civ. P. 37(a)(4) advisory committee’s note to 1970
amendments) (noting that the “‘unjust circumstances’ standard focuses on conduct of the
moving party; the ‘substantial justification’ standard is not so limited”).
Smith does not appear to argue that Magistrate Judge Menendez’s order is contrary
to law. His objections focus instead on her factual determinations. On that issue, a review
of her order reveals that Magistrate Judge Menendez’s determinations are not clearly
erroneous.

She reasonably concluded—over fourteen single-spaced pages—that

Defendants’ counsel was substantially justified in his initial filing of the settlement
documents in the Golden China case, though not later in the Bierstube case. See Feb. 4,
2019 Order at 6. She just as reasonably determined that an award of fees to Smith would
be unjust given the lack of prejudice, her knowledge of the “history of this litigation,” and
her concern that Smith may have filed the motion in “an attempt to monetize a
27

misunderstanding between the parties about the propriety of defense counsel’s outside use
of the settlement agreements and to make defense counsel’s management of the cases more
difficult”—a concern made all the more justified by Smith’s untethered request for a
$20,000 fine. Id. at 13. Notably, Smith does not object to that part of Magistrate Judge
Menendez’s order amending the protective order to permit Defendants’ counsel to use the
settlement documents in the Golden China and Bierstube cases going forward. If Smith’s
concern regarding the actual merits of the underlying discovery dispute were genuine, one
would think he would have objected to that.
Finally, Smith objects to the amount of the sanction ordered by Magistrate Judge
Menendez—$500. Id. at 12–13. Smith seeks an increase in that sanction amount to
“appropriately reflect[] the seriousness” of the violation, though he does not say how much.
Id. at 12. Smith’s objection is based on what he argues are “at least two cases that illustrate
that the Magistrate Judge abused her discretion”: NutriQuest, LLC v. Ameriasia Imps. LLC,
No. 18-cv-00390 (NEB/KMM), 2018 WL 5785952 (D. Minn. Nov. 5, 2018), and U.S. ex
rel. Johnson v. Golden Gate Nat. Sr. Care, L.L.C., No. 08-cv-1194 (DWF/JJK), 2013 WL
1182905 (D. Minn. Mar. 21, 2013). Pl.’s Second Obj. at 12. Not so. In NutriQuest,
Magistrate Judge Menendez ordered a “modest” $500 sanction for an unintentional
disclosure of confidential documents from a non-party, where plaintiff’s counsel shared
documents marked “attorney’s eyes only” with the client. 2018 WL 5785952, at *1.
Counsel took responsibility for the mistake and undertook efforts to ensure the documents
were destroyed. Id. In Golden Gate, Magistrate Judge Jeffrey Keyes ordered a $5,000
sanction for defense counsel’s disclosure of confidential documents to defense counsel in
28

a related state-court action, leading to the documents’ use in the state-court litigation.
2013 WL 1182905, at *1–4.

Magistrate Judge Keyes found that counsel was not

forthcoming about what occurred and provided “frivolous and insincere” excuses for the
disclosure, so much that he concluded the violation was intentional. Id. at *5–6. If these
cases stand for anything, it is that appropriate sanctions orders are intensely fact-dependent
and unique to the circumstances of each case. When you have seen one sanctions order,
you have not seen them all. You have seen one sanctions order. Here, Magistrate Judge
Menendez exercised her discretion, provided a thoughtful recitation of the relevant facts
and the basis for her decision, and awarded sanctions of a type and in an amount that is
eminently reasonable. Smith provides no justification for second-guessing this order, much
less finding it to be clearly erroneous or contrary to law.
ORDER
Based on the foregoing, and all of the files, records, and proceedings herein, IT IS
HEREBY ORDERED THAT:
1.

Defendants’ motion for summary judgment and to exclude expert testimony

[ECF No. 166] is GRANTED IN PART for lack of subject-matter jurisdiction and in all
other respects is DENIED as moot;
2.

Plaintiff’s motion for summary judgment and to exclude evidence

[ECF No. 184] is DENIED as moot;
3.

Plaintiff’s objection [ECF No. 165] to the November 13, 2018 Order

[ECF No. 159] is OVERRULED and that Order is AFFIRMED;  

29

4.

Plaintiff’s objection [ECF No. 226] to the February 4, 2019 Order

[ECF No. 221] is OVERRULED and that Order is AFFIRMED; and 
5.

The action is DISMISSED WITHOUT PREJUDICE for lack of

subject-matter jurisdiction. 
LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: June 12, 2019

s/ Eric C. Tostrud
Eric C. Tostrud
United States District Court

30