Stewart v. Precise Properties, LLC et al

Filing 55

MEMORANDUM AND ORDER granting Precise Properties' and Harold's MOTION for Summary Judgment 49 ; the plaintiff's complaint is dismissed and a separate judgment will be entered. Ordered by Judge John M. Gerrard. (CCB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MELISA STEWART,
Plaintiff,

8:15-CV-376

vs.
MEMORANDUM AND ORDER
PRECISE PROPERTIES, LLC;
HAROLD'S KOFFEE HOUSE, INC.;
and JOHN DOES 1-2 INCLUSIVE,
Defendants.
This matter is before the Court on the defendants' motion for summary
judgment (filing 49). The Court will grant the defendants' motion.
BACKGROUND
The plaintiff, Melisa Stewart, alleges that she is a qualified individual
with a disability under the American with Disabilities Act, 42 U.S.C. § 12101
et seq. (ADA). Filing 22 at 1.1 Defendant Precise Properties, LLC owns
property in Omaha, Nebraska, which it leases to defendant Harold's Koffee
House. See filing 50 at 2. Harold's operates as a restaurant, and is a "place of
public accommodation" as defined by the ADA. Filing 50 at 2. For clarity, the
Court will refer to the defendants collectively as "Harold's."
In September 2015, Stewart visited Harold's to "utilize [the] goods and .
. . services offered" therein. Filing 50 at 2. However, Stewart had trouble
entering the coffee shop, she claims, because the building was not in
compliance with ADA Accessibility Guidelines. Filing 50 at 3. Specifically,
Stewart alleges numerous statutory violations pertaining to van accessible
parking, regular disabled parking, van accessible aisles, signage, bathroom

Pursuant to NECivR 56.1, a party moving for summary judgment must include in its brief
a statement of material facts about which the movant contends there is no dispute, and the
party opposing summary judgment must include in its brief a concise response to that
statement of facts, noting any disagreement. Properly referenced material facts in the
movant's statement are considered admitted unless controverted in the opposing party's
response. NECivR 56.1(b)(1). Because Stewart did not controvert any of the defendants’
statement of material facts, see filing 53, the defendants’ statement of undisputed material
facts are admitted. See Jones v. United Parcel Serv., Inc., 461 F.3d 982, 991 (8th Cir. 2006).
1

signage, and restroom grab bars. Filing 50 at 3-4. Stewart seeks injunctive
relief directing Harold's to make its facility accessible. Filing 22 at 6-7.
Following the initiation of this litigation, Harold's hired an architect to
inspect its property for ADA compliance. Filing 50 at 5. That inspection
resulted in a series of structural changes which, the defendants contend,
remedy nearly all of the violations alleged by Stewart. For example, with
respect to parking, Harold's has presented evidence that it created a van
accessible parking space that is at least 96 inches wide with a 96-inch access
aisle that is "marked with yellow cross hatchings and which does not slope in
excess of two percent." Filing 50 at 8. Harold's installed a van accessible sign
mounted more than 60 inches above the ground that is visible from the
parking space, created a curb ramp connecting the access aisle to the
accessible route to the building, repaved the accessible route to the entrance,
and removed an awning to provide the full 54 inches of clear maneuvering
space. Further, regarding bathroom accessibility, Harold's remounted grab
bars around its toilet, retrofitted its bathroom sink to provide compliant knee
space, remounted the sink so it is no more than 34 inches above the ground,
remounted the mirror so the bottom of the reflecting surface was no higher
than 40 inches, and added a sign to the bathroom door noting that it is
accessible. Filing 50 at 8-9.
But one issue remains: the restroom at Harold's provides
approximately 59 1/4 inches of clear turning diameter, as opposed to the 60
inches required under the ADA Guidelines. Filing 50 at 9. As Harold's points
out, though, remedying this issue would require the relocation of a load
bearing wall, which it claims is not "readily achievable." Filing 50 at 10.
Based on this fact, and in light of the changes described above, Harold's
claims that it is in compliance with the ADA, and is therefore entitled to
judgment as a matter of law. Filing 49.
STANDARD OF REVIEW
Summary judgment is proper if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a). The movant bears the
initial responsibility of informing the Court of the basis for the motion, and
must identify those portions of the record which the movant believes
demonstrate the absence of a genuine issue of material fact. Torgerson v. City
of Rochester, 643 F.3d 1031, 1042 (8th Cir. 2011) (en banc). If the movant
does so, the nonmovant must respond by submitting evidentiary materials
that set out specific facts showing that there is a genuine issue for trial. Id.
On a motion for summary judgment, facts must be viewed in the light
most favorable to the nonmoving party only if there is a genuine dispute as to
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those facts. Id. Credibility determinations, the weighing of the evidence, and
the drawing of legitimate inferences from the evidence are jury functions, not
those of a judge. Id. But the nonmovant must do more than simply show that
there is some metaphysical doubt as to the material facts. Id. In order to
show that disputed facts are material, the party opposing summary judgment
must cite to the relevant substantive law in identifying facts that might
affect the outcome of the suit. Quinn v. St. Louis County, 653 F.3d 745, 751
(8th Cir. 2011). The existence of a mere scintilla of evidence in support of the
nonmovant's position will be insufficient; there must be evidence on which
the jury could conceivably find for the nonmovant. Barber v. C1 Truck Driver
Training, LLC, 656 F.3d 782, 791-92 (8th Cir. 2011). Where the record taken
as a whole could not lead a rational trier of fact to find for the nonmoving
party, there is no genuine issue for trial. Torgerson, 643 F.3d at 1042.
DISCUSSION
Harold's contends that because it is now in compliance with the ADA,
and because the only relief sought by Stewart is injunctive relief, Stewart’s
complaint should be dismissed as moot.2 Stewart has presented no evidence
to the contrary. Instead, Stewart simply reiterates that she has alleged
"blatant non-compliance with the American[s] with Disabilities Act in
numerous paragraphs of the amended complaint, as well as the adverse effect
[of the non-compliance]." Filing 53 at 1. But that is not how summary
judgment works: a party opposing summary judgment "may not rest upon the
mere allegation or denials of h[er] pleading, but must set forth specific facts
showing that there is a genuine issue for trial, and must present affirmative
evidence in order to defeat a properly supported motion for summary
judgment." Ingrassia v. Schafer, 825 F.3d 891, 896 (8th Cir. 2016) (quoting
Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986)) (quotations omitted);
see Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-60 (1970).
Stewart further contends that the Court cannot rely on Harold's
"unilateral statement of compliance." Filing 53 at 1. To this end, Stewart
suggests that whether Harold's has actually corrected the alleged violations
is a "question of fact for th[e] Court to decide," and relatedly, that Stewart
should have the opportunity "to conduct discovery in order to determine the
Harold's also questions whether Stewart has sufficiently alleged standing. Filing 50 at 11.
The Court does not consider this issue. The Court recognizes that standing is a
jurisdictional prerequisite that should be resolved before reaching the merits of a suit. City
of Clarkson Valley v. Mineta, 495 F.3d 567, 569 (8th Cir. 2007). But Article III mootness has
been characterized as "the doctrine of standing set in a time frame[,]" Doe v. LaFleur, 179
F.3d 613, 615 (8th Cir. 1999), and it is also jurisdictional, Ali v. Cangemi, 419 F.3d 722,
723-24 (8th Cir. 2005).
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exact nature of the violations." Filing 53 at 3, 4. But these arguments fail for
two reasons. First, as mentioned above, Stewart has offered no substantive
response to Harold's statement of facts, so those facts—including the
defendants' statements regarding ADA compliance—are admitted. NECivR
56.1(b)(1). Second, regarding discovery, that deadline has passed. Filing 32.
And to the extent that Stewart seeks additional time under Fed. R. Civ. P.
56(d) to gather such facts, she has failed to submit a declaration or affidavit
to support that request. See Fed. R. Civ. P. 56(d). In any event, even if the
Court were to entertain such a request (which Stewart has not made),
Stewart "cannot state with specificity what evidence further discovery would
uncover." Anzaldua v. Northeast Ambulance and Fire Protection Dist., 793
F.3d 822, 837 (8th Cir. 2015); see also Robinson v. Terex Corp., 439 F.3d 465,
467 (8th Cir. 2006) (the party seeking delay must, in good faith, make a
showing that discovery has been inadequate).3
Pursuant to the ADA and its implementing regulations, a parking lot
with 10 spaces must have 1 van accessible space with an access aisle. 36
C.F.R. Pt. 1191, App. D § 502, see 36 C.F.R. Pt. 1191 App. B § 208.2. An
accessible space must be at least 96 inches wide, and the accessible aisle
must be at least 60 inches wide. §§ 502.2, 502.3.1. A van-accessible space
must be 132 inches wide, except that a van-accessible space may be 96 inches
wide if the adjacent access aisle is at least 96 inches wide. § 502.2. The access
aisles must not slope in excess of 2 percent. § 503.4. And the parking space
must display the symbol of accessibility and an additional sign for vanaccessibility must be least 60 inches above the ground. § 502.6. There must
be an accessible route to the building entrance. § 402. And there must be no
abrupt level changes or excessive sloping on the accessible route to the
entrance. § 403.3. The entrance must provide 54 inches of clear maneuvering
space. § 404.2.4.1. Further, and relevant to this dispute, grab bars around the
toilet must be on the side wall closest to the water closet and rear wall. §
604.5. The bathroom sink must provide compliant knee space and the sink
must be no more than 34 inches above the floor. §§ 606.2, 606.3. There must
be a sign noting the restroom is accessible located at least 48 inches, but no
more than 60 inches, from the ground. § 703.4.1. And a mirror located in a
restroom must be no higher than 40 inches above the ground. § 603.3. The
affidavits submitted by Harold's, see, filing 50-2, filing 50-3, and filing 50-5,
and the accompanying photographs of the location, establish compliance with
these requirements.
Nor, frankly, is it clear why the discovery process would be necessary at all for the
plaintiff to find evidence of ADA-related deficiencies in public accommodations which are,
by definition, public.
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Thus, the only remaining ADA-related deficiency pertains to the
turning diameter of Harold's restroom, which is 59 1/4 inches as opposed to
the required 60 inches. But as Harold's points out, Title III of the ADA—at
least in this context—requires barrier removal only if it is "readily
achievable," which the statute defines as "easily accomplishable and able to
be carried out without much difficulty or expense." See, §§ 12182(b)(2)(A)(iv),
12181(9). And here, the only evidence before the Court establishes that the
60-inch turning diameter is not readily achievable as defined by the ADA.
Indeed, as architect Larry Fleming averred, the only way to provide the
additional 3/4 of an inch would be to relocate a load bearing wall, which is
neither easily accomplishable nor able to be carried out without difficulty or
expense. Filing 50-5 at 5.
Stewart does not contradict any of the factual representations in the
affidavits submitted by Harold's, nor does she identify (much less present
evidence of) any specific way in which Harold's remains deficient. See filing
53. Moreover, she fails to provide any evidence to rebut Fleming’s opinion
that the modifications were not readily achievable. Her claim for injunctive
relief is, therefore, moot, and the case must be dismissed.4
As a final matter, Stewart has also sued two unnamed defendants.
Because these defendants are both unnamed and unserved, the motion for
summary judgment filed by Harold's does not extend to them. But Stewart
alleges no claim against the unnamed defendants that is separate from her
claim against Harold's—it is apparent from the evidence that her claim is
also moot as to the unnamed defendants. And because mootness relates to
the justiciability of a case, the Court is obliged to invoke it sua sponte. Olin
Water Servs. v. Midland Research Labs., Inc., 774 F.2d 303, 306 n.3 (8th Cir.
1985). Accordingly, the Court will dismiss the case in its entirety.
IT IS ORDERED:

Stewart also sought attorney fees, which may be awarded to a prevailing party in an ADA
case. 42 U.S.C. § 12205. The record is clear that Harold's retained Larry Fleming to conduct
an inspection of property to bring it into ADA compliance, however, it is unclear precisely
what prompted that action. And a defendant's voluntary change in conduct, although
perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the
necessary judicial imprimatur on the change to make the plaintiff a "prevailing party" for
these purposes. Buckhannon Bd. & Care Home, Inc. v. W. Virginia Dep't of Health &
Human Res., 532 U.S. 598, 603-04 (2001). Without a judgment on the merits or a consent
decree to create an "alteration in the legal relationship of the parties," an award of attorney
fees is unauthorized. Id.
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1.

Precise Properties' and Harold's motion for summary
judgment (filing 49) is granted.

2.

The plaintiff's complaint is dismissed

3.

A separate judgment will be entered.

Dated this 13th day of March, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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