Womble v. MPH Investments of Mississippi, Inc.

Filing 13

ORDER granting in part and denying in part 9 Motion for Summary Judgment: granted as to plaintiff's monetary damages claim; denied without prejudice as to plaintiff's "failure to train" claim. Signed by Honorable David C. Bramlette, III on 7/14/2014 (ECW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
WENDY WOMBLE

PLAINTIFF

VS.

3:13-CV-882(DCB)(MTP)

MPH INVESTMENTS OF MISSISSIPPI, INC.
d/b/a LADY LUCK HOTEL & SUITES

DEFENDANT

MEMORANDUM OPINION AND ORDER
This cause is before the court on the defendant (“MPH”)’s
motion for summary judgment (docket entry 9).

Having carefully

considered the motion and the plaintiff’s response, as well as the
memoranda and the applicable law, the Court finds as follows:
The plaintiff, Wendy Womble (“Womble”) filed her Complaint on
May 30, 2013, under Title III of the Americans with Disabilities
Act, 42 U.S.C. § 12181, et seq. (“ADA”).

Womble, a resident of

Warren County, Mississippi, is paralyzed from the chest down, uses
a wheelchair for mobility, and is considered an individual with a
disability under 42 U.S.C. § 12101.

Complaint, ¶¶ 5-6.

On March

13, 2013, Womble checked into a room at the defendant’s hotel, Lady
Luck Hotel & Suites, and attempted to access the hotel’s swimming
pool through use of the pool lift.
Womble was unable to utilize the pool.

The lift malfunctioned and
Complaint, ¶¶ 11-19.

The

hotel’s maintenance staff repaired the pool lift the following day.
However, Womble claims that she experienced severe discomfort,
embarrassment, and emotional distress as a result of the lift
malfunctioning on March 13, 2013.

Complaint, ¶ 20.

The plaintiff further alleges that the pool lift was not
maintained in operable, working condition so that persons with
disabilities would have access to the pool.

Complaint, ¶ 28.

She

also alleges “on information and belief,” that MPH failed to
properly train the hotel’s staff to ensure that the pool would be
available to disabled individuals whenever the pool was open.
Complaint, ¶ 31.
Womble states that she desires to visit the Lady Luck Hotel &
Suites in the future, “once its policies, practices, and procedures
come into compliance with the ADA.”

Complaint, ¶ 34.

She seeks a

declaratory judgment that MPH is in violation of Title III of the
ADA; injunctive relief against MPH, including an order to require
MPH

to

make

the

pool

readily

accessible

to

and

usable

by

individuals with disabilities to the extent required by Title III
of the ADA; and attorney’s fees, costs, and litigation expenses.
Complaint, Prayer for Relief, ¶¶ (a)-(c).
MPH moves for summary judgment on all claims.

Under Federal

Rule of Civil Procedure 56, summary judgment is proper if the
record discloses no genuine issue as to any material fact such that
the moving party is entitled to judgment as a matter of law.

In

evaluating a summary judgment motion, the Court must read the facts
in the light most favorable to the non-moving party.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, no genuine
issue of fact exists if the record taken as a whole could not lead

2

a

rational

trier

of

fact

to

find

for

the

non-moving

party.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586
(1986); see also Anderson, 477 U.S. at 248 (a genuine issue of fact
exists only “if the evidence is such that a reasonable jury could
return a verdict for the non-moving party”).

The mere argued

existence of a factual dispute does not defeat an otherwise
properly supported motion.

Id.

“If the evidence is merely

colorable, or is not significantly probative,” summary judgment is
appropriate.

Id. at 249-50.

Summary judgment is also proper if

the party opposing the motion fails to establish
element of her case.
23 (1986).

an essential

Celotex Corp. v. Catrett, 477 U.S. 317, 322-

The non-moving party must do more than simply deny the

allegations raised by the moving party. Donaghey v. Ocean Drilling
& Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992).

Instead, she

must come forward with competent evidence, such as affidavits or
depositions, to buttress her claims.

Id.

Hearsay evidence and

unsworn documents do not qualify as competent opposing evidence.
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th
Cir. 1987).
MPH first moves for summary judgment on the plaintiff’s
monetary

damages

claim.

The

ADA

contains

provisions

for

enforcement of Title III by both a private right of action and a
right of action by the Attorney General.
12188(a).

See, e.g., 42 U.S.C. §

Monetary damages are not available in private suits

3

under Title III.

Id.

Instead, the only remedies available in

private actions are declaratory relief, injunctive relief, attorney
fees and costs.

Id.

The plaintiff does not address monetary

damages in her response to the summary judgment motion.

It is not

clear to the Court that the plaintiff is seeking monetary damages
in the first place; however, by her silence she acknowledges that
she is either not seeking monetary damages or is not entitled to
them.
The defendant next argues that the plaintiff is not entitled
to injunctive relief because there are no current alleged barriers
to accessibility.

The pool lift was repaired the day after the

plaintiff’s incident, as the plaintiff acknowledges.

Since the

pool was accessible the next day, the defendant contends that
injunctive relief is unnecessary, and that the plaintiff therefore
lacks standing to bring this action.

In response, the plaintiff

states that she seeks declaratory and injunctive relief to require
the defendant to adopt proper policies and procedures for training
the hotel’s staff to ensure that the pool lift is functional
whenever the pool is open.
The party invoking federal jurisdiction bears the burden of
establishing the elements of standing and “each element must be
supported in the same way as any other matter on which the
plaintiff bears the burden of proof, i.e., with the manner and
degree of evidence required at the successive stages of the

4

litigation.”
(1992).
filed.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

A plaintiff must have standing at the time a lawsuit is
Id. At 569 n.4.

Events occurring after the lawsuit has

been filed may be relevant to whether the claim has become moot,
but are not relevant to whether a plaintiff has standing in the
first instance.

Friends of the Earth, Inc. v. Laidlaw Envtl.

Servs. (TOC), Inc., 528 U.S. 167, 190-91 (2000).
In this case, the defendant contends that the plaintiff’s
incident at the pool was the result of an isolated malfunction of
the lift; the plaintiff, on the other hand, alleges that it was the
result of the defendant’s failure to train its employees. See Stan
v. Wal-Mart Stores, Inc., 111 F.Supp.2d 119, 127 (N.D. N.Y.
2000)(“under the ADA, [d]efendants can and must ensure that they
adopt the proper policies and procedures to train their employees
on dealing with disabled individuals and make reasonable efforts to
ensure that those policies and procedures are properly carried out
and enforced”).
In her Complaint, the plaintiff alleges:
On March 13th, 2013, WOMBLE checked into a room at the
Hotel, accompanied by her daughter and two friends. On
that date, WOMBLE desired to use the Hotel’s pool, which
she had noticed was equipped with a fixed pool lift.
.

.

.

When WOMBLE inquired about using the lift, the Hotel’s
front desk clerk responded that she would not be able to
assist WOMBLE because she didn’t know how the lift
operated.

5

WOMBLE then returned to the pool to examine the lift
and saw that it needed a key. She obtained the key from
the front desk clerk and attempted to turn on the lift,
but [] it was not in working condition.
Thereafter, the manager attempted to repair the lift.
As a result of this effort, the pool [] lift operated to
swing WOMBLE out over the water, but did not lower WOMBLE
into the pool.
Because the lift was not in proper working condition,
WOMBLE was suspended in midair, dangling over the water
in front of a crowd of onlookers. WOMBLE endured this
humiliation for approximately thirty (30) minutes.
When she was finally placed over the ground, the lift
would not operate to raise her back into her wheelchair.
WOMBLE’s friend had to use a sliding board to help WOMBLE
back into her wheelchair.
Thereafter, the Hotel’s manager informed WOMBLE that
there was nothing she could do if the lift was broken and
that WOMBLE’s disability was “not her problem.”
Complaint, ¶¶ 11, 13-18.
The defendant’s Answer asserts that “Plaintiff’s requested
modifications

of

policies,

practices,

and

procedures

are

not

necessary to Plaintiff’s equal access to the portions of the hotel
that operate as a place of public accommodation and/or are not
reasonable modifications to policies, practices, and procedures.”
Answer, ¶ 9. No further elaboration is presented. The defendant’s
motion for summary judgment does not address the plaintiff’s
“failure to train” claim.

Furthermore, following the plaintiff’s

response to the motion for summary judgment, the defendant did not
file a rebuttal brief.
Both parties’ submissions are inadequate.

6

Neither side has

submitted
positions.

competent

evidence

in

support

of

their

respective

Federal Rule of Civil Procedure 56(c) provides:

(1) Supporting Factual Positions. A party asserting that
a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the
record, including depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other
materials; or
(B) showing that the materials cited 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).
The original discovery deadline in this case was January 3,
2014. On January 3, 2014, MPH sought an extension of the discovery
deadline, and on January 10, 2014, the deadline was extended to
March 4, 2014.

The defendant’s motion did not refer to any

specific discovery requests.

Absent the submission of competent

record evidence, the Court cannot evaluate whether the record
discloses disputed issues of material fact. The defendant’s motion
shall therefore be granted as to the plaintiff’s monetary damages
claim, and denied without prejudice as to the plaintiff’s failure
to train claim.
This case is scheduled for a pretrial conference on July 15,
2014.

The Court suggests that the parties discuss with Magistrate

Judge Parker whether, in light of this Memorandum Opinion, they

7

desire

to

conduct

further

briefing

and/or

engage

in

further

discovery, and whether either party desires a trial continuance.
Accordingly,
IT IS HEREBY ORDERED that the defendant MPH Investments of
Mississippi, Inc.’s motion for summary judgment (docket entry 9) is
granted in part and denied in part as follows: GRANTED as to the
plaintiff’s monetary damages claim, and DENIED WITHOUT PREJUDICE as
to the plaintiff’s “failure to train” claim.
SO ORDERED, this the 14th day of July, 2014.

/s/ David Bramlette
UNITED STATES DISTRICT JUDGE

8