White v. Coin Laundry et al

Filing 64

STRICKEN - MEMORANDUM AND ORDER - THEREFORE, IT IS ORDERED THAT: Plaintiff's motion for summary judgment, Filing No. 57 , is denied. Defendants' objection to attachments, Filing No. 62 , is denied as moot. Ordered by Senior Judge Joseph F. Bataillon. (TCL) Modified on 6/20/2017 to strike per Order 65 (TCL ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

LELIA WHITE,
Plaintiff,

8:16CV42

v.
MEMORANDUM AND ORDER
CHINESE RESTAURANT, MAYNE
PLACE, LLC, and DOES 1-5, Inclusive;
Defendants.

This matter is before the court on plaintiff’s motion for summary judgment, Filing
No. 57, pursuant to Fed. R. Civ. P. 56. This case arises under Title III of the Americans
with Disabilities Act (ADA), 42 U.S.C. § 12182, et seq.

Plaintiff contends that

defendants’ property contains “architectural barriers” in violation of the law.
On a motion for summary judgment, the question before the court is whether the
record, when viewed in the light most favorable to the nonmoving party, shows that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(c); Woods v. DaimlerChrysler Corp.,
409 F.3d 984, 990 (8th Cir. 2005). “Where the unresolved issues are primarily legal
rather than factual, summary judgment is particularly appropriate.” Mansker v. TMG
Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir. 1995).
The burden of establishing the nonexistence of any genuine issue of material fact
is on the moving party. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S.
144, 157 (1970). Therefore, if defendant does not meet its initial burden with respect to
an issue, summary judgment must be denied notwithstanding the absence of opposing

affidavits or other evidence. Adickes, 398 U.S. at 159-60; Cambee’s Furniture, Inc. v.
Doughboy Recreational Inc., 825 F.2d 167, 174 (8th Cir. 1987).
Once defendant meets its initial burden of showing there is no genuine issue of
material fact, plaintiff may not rest upon the allegations of his or her pleadings but rather
must set forth specific facts, by affidavit or other evidence, showing that a genuine issue
of material fact exists. See Fed. R. Civ. P. 56(e)(2); Chism v. W.R. Grace & Co., 158
F.3d 988, 990 (8th Cir. 1998). The party opposing the motion must do more than simply
show that there is some metaphysical doubt as to the material facts; he or she must
show there is sufficient evidence to support a jury verdict in his or her favor. Id. “Rule
56(c) mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“Although we view the facts in a light most favorable to the non-moving party, in order to
defeat a motion for summary judgment, the non-moving party cannot simply create a
factual dispute; rather, there must be a genuine dispute over those facts that could
actually affect the outcome of the lawsuit.” Carter v. St. Louis Univ., 167 F.3d 398, 401
(8th Cir. 1999). “In ruling on a motion for summary judgment a court must not weigh
evidence or make credibility determinations.” Kenney v. Swift Transp., Inc., 347 F.3d
1041, 1044 (8th Cir. 2003).
Plaintiff states she has a disability and receives Social Security Disability
benefits.

Defendant Mayne Place is the owner of the real property or landlord of

defendant, Coin Laundry. This is a business of public accommodation under the ADA.
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Plaintiff sets forth numerous violations located on this property.1 See also Filing No. 58,
Ex. A. White alleges that on or about January 21, 2016, she “attempted to enter the
subject premises of the defendants herein to utilize goods and/or services offered by
defendant COIN LAUNDRY. When (sic) Plaintiff attempted to enter the commercial
building she had difficulty entering and using the facility because it failed to comply with
federal ADA Access Guidelines For Building and Facilities [hereinafter ‘ADAAG’].”
(Filing No. 1 at ¶ 7).
Title III of the ADA is concerned with discrimination that occurs in places of public
accommodation. See 42 U.S.C. § 12182(a). A private right of action under Title III is
available to any person who is “being subjected to discrimination on the basis of
disability” or who has “reasonable grounds for believing that such person is about to be
subjected to discrimination . . . .” 42 U.S.C. §12188(a)(1). Discrimination includes, “a
failure to remove architectural barriers, and communication barriers that are structural in

1

These violations include:

a. Designated disabled parking spaces are insufficient and in violation of ADAAG section 4.6.
b. Failure to provide adequate access aisle in violation of (ADAAG 4.6.3)
c. Failure to provide disabled parking space signage at proper height. (ADAAG 4.6.4)
d. Failure to provide unobstructed view of disabled parking signage in violation of ADAAG 4.6.4
e. Failure to provide Parking Space Emblem - Proper Size (ADAAG 4.6.4)
f. Failure to provide Designated Disabled "VAN ACCESSIBLE" Parking- Space (ADAAG
4.1.2(5)(b))
g. Failure to provide Designated Disabled "VAN ACCESSIBLE" Parking Space- Signage (ADAAG
4.1.2(5)(b)); and
h. Failure to provide Signage Installed -(Each Space) (ADAAG 4.6.4)

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nature, in existing facilities…. where such removal is readily achievable.” 42 U.S.C.
§12182(b)(2)(A)(iv). To prove a violation, plaintiff must show:
(1) that he is disabled within the meaning of the ADA, (2) that the
defendant is a private entity that owns, leases, or operates a place of
public accommodation, (3) that the defendant took adverse action against
the plaintiff that was based upon the plaintiff's disability, and (4) that the
defendant failed to make reasonable modifications that would
accommodate the plaintiff's disability without fundamentally altering the
nature of the public accommodation.
See 42 U.S.C. § 12182(a) and (b) (2)(A)(ii); Amir v. St. Louis University, 184 F.3d 1017,
1027 (8th Cir.1999)
Defendant contends that plaintiff must first show she has standing to bring these
claims. Warth v. Seldin, 422 U.S. 490, 498 (1975). To establish standing the plaintiff
must have suffered a concrete and particularized injury-in-fact, the injury must be
traceable to defendants' conduct, and the injury must be redressable. Allen v. Wright,
468 U.S. 737, 755-57 (1984).

Where the plaintiff seeks injunctive relief "he must

demonstrate a real and immediate threat of future injury by the defendant.'" Sawczyn v.
BMO Harris Bank Nat. Ass'n, 8 F. Supp. 3d 1108, 1111 (D. Minn. 2014) (quoting City of
Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). "[C]ourts often consider factors
such as (1) the plaintiff's proximity to the accommodation; (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, 8 F. Supp. 3d at 1112 (internal citations omitted).
Plaintiff contends: she is disabled, although defendants dispute this; that
defendants operation a laundry that is a place of “public accommodation; that there
exist architectural barriers, although defendants dispute that it did not have a proper
handicap parking space; and that such barriers are removable. The estimated cost of
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repairs according to the plaintiff is $1,136.88. See Filing No. 58-1 at 1. Defendant also
disputes the cost of the remedial action.
Defendants ask this court to deny the motion for summary judgment as “plaintiff
lacks standing as she has shown no injury in fact”; failed to offer any admissible
evidence of a “real and immediate threat of injury”; and failed to show discrimination
against her because defendant failed to remove “architectural barriers” that are readily
achievable, as material facts exists as to this issue.2
According to defendants, plaintiff in her answers to admissions admitted she did
not use a wheelchair for mobility, would not admit or deny that she has stairs at her
personal residence, did not admit or deny that she owns a van, and refused to admit or
deny that she came to the subject premises on January 21, 2016, in a van, and refused
to admit or deny whether she could have accessed any good services or
accommodations offered by Coin Laundry, in spite of the “architectural barriers”.
Defendants hired E&A to inspect their property and made certain retrofits to their
property following this complaint. Defendant contends that the concrete in the parking
lot must be replaced, but it is a bigger job than alleged by plaintiff.

Defendant is

attempting to see if he can make these changes or not.
Defendants also contend that plaintiff makes no allegations regarding where she
lives relative to the defendant, whether she is often in the area, whether she has been
to the business on prior occasions. Mere intent to return is insufficient.

Steger v.

Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000) (quoting Lujan, 504 U.S. at 564).

2

The court notes that the issue of standing is not squarely before it. Defendants raise the issue
in defense of the summary judgment motion.

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Defendants point out that plaintiff also has failed to attach any affidavits
regarding her evidence, her expert, and the unsigned exhibit of remedial costs. See
NeCivR 7.1 and Fed. R. Civ. P. 56. Thus, argue defendants, plaintiff has not met her
initial burden of showing the lack of an issue of material fact. Defendants argue that
plaintiff has not asserted in her Complaint that she was unable to access any and all
goods, services, facilities, privileges, advantages, or accommodations offered by Mayne
Place because of alleged “barriers,” that she has a handicapped sticker, or that she has
a van for her disability. See Barfield v. American Enterprise Properties Nebraska, 2016
WL 4684106 (D. Neb. Aug. 17, 2016) (Magistrate Judge’s Finding, Recommendation,
adopted in Barfield v. Midtown Gas and Grocery, Case No. 2016 WL 4688431 (D. Neb.
Sept. 7, 2016) (where the Court determined that failure to plead issuance of a
handicapped permit prohibited standing to assert a “barrier removal” claim).
Defendants also argue that plaintiff has failed to articulate a likelihood of future
injury. ““In evaluating whether an ADA plaintiff has established a likelihood of future
injury, courts have been guided by: (1) the proximity of the place of public
accommodation to plaintiff’s residence, (2) plaintiff’s past patronage of defendant’s
business, (3) the definitiveness of plaintiff’s plans to return, and (4) plaintiff’s frequency
of travel near defendant.”” Brown v. Grandmother's, Inc., 2010 WL 611002, at *6 (D.
Neb. Feb. 16, 2010), quoting Molski v. Kahn Winery, 405 F. Supp. 2d 1160, 1163 (C.D.
Cal. 2005). Recently Judge Zwart stated:
(1) the plaintiff’s proximity to the accommodation; (2) the frequency
of plaintiff’s nearby travel; (3) the plaintiff's past patronage; and (4) the
definiteness of plaintiff’s plans to return.

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While the burden of pleading the threat of a real and immediate
threat of future injury is not especially onerous in ADAAG cases, Plaintiff’s
skeletal description of the alleged future harm is insufficient to
demonstrate he has standing. He has not indicated where he lives
relative to Defendants' business, how often he visits the area where
Defendants' business is located, or whether he has visited Defendants'
business on prior occasions. Such information is necessary to determine
whether Plaintiff has properly established standing to bring this suit.

Barfield v. American Enterprise Properties Nebraska, supra, quoting, Sawczyn, 8
F. Supp. 3d at 1112 (internal citations omitted).
Finally, defendants argue that plaintiff has failed to submit any evidence that
removal of a barrier is “readily achievable.” 42 U.S.C. § 12181(9).3 On the contrary,
contends defendant, Mayne Place has described the extensive time and expense
associated with the removal, repair and re-striping of the parking lot at the Subject
Property.
The court finds there exist material issues of fact on most of the issues in this
case. The parties do not even agree if plaintiff is disabled. Defendants dispute whether
plaintiff has standing to raise these ADA issues. The parties disagree whether the

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The factors to consider in determining if an action is “readily achievable” include:

a. the nature and cost of the action needed under this chapter;
b. the overall financial resources of the facility or facilities involved in the action; the number of
persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such
action upon the operation of the facility;
c. the overall financial resources of the covered entity; the overall size of the business of a
covered entity with respect to the number of its employees; the number, type, and location of its facilities;
and
d. the type of operation or operations of the covered entity, including the composition, structure,
and functions of the workforce of such entity; the geographic separateness, administrative or fiscal
relationship of the facility or facilities in question to the covered entity.
42 U.S.C. § 12181(9).

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remedial costs are prohibitive. Accordingly, the court will deny the motion for summary
judgment and the case will proceed accordingly.
THEREFORE, IT IS ORDERED THAT:
1. Plaintiff’s motion for summary judgment, Filing No. 57, is denied;
2. Defendants’ objection to attachments, Filing No. 62, is denied as moot.
Dated this 20th day of June, 2017.

BY THE COURT:
s/ Joseph F. Bataillon
Senior United States District Judge

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