Smith v. Italian Village et al

Filing 22

MEMORANDUM DECISION AND ORDER granting in part and denying in part 12 Motion to Dismiss Defendant Louis Boyer. Plaintiff's claim for intentional infliction of emotional distress is dismissed as the claim relates to Defendant Louis Boyer in his individual capacity. Signed by Judge Dale A. Kimball on 10/23/2017. (eat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, NORTHERN DIVISION
G. BRENT SMITH,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:17-cv-00666

BOYFIELD, INC., a Utah corporation, d.b.a.
ITALIAN VILLAGE, LOUIS BOYER, and
JOHN DOES I-V,

District Judge Dale A. Kimball

Defendant.
This matter is before the court on Defendant Louis Boyer’s (Boyer) Motion to Dismiss.
Boyer filed the motion seeking to dismiss the claims against him in his individual capacity. On
September 27, 2017, the court held a hearing on the motion. At the hearing, the Plaintiff G. Brent
Smith (Smith) was represented by Jordan D. Haycock and Boyer was represented by Brian R.
Barnhill. The court took the motion under advisement. Based on the briefing filed by the parties
and the law and facts relevant to the pending motion, the court issues the following
Memorandum Decision and Order GRANTING in part and DENYING in part Louis Boyer’s
Motion to Dismiss.
BACKGROUND
Smith previously underwent lap-band surgery. Because of the surgery Smith has trouble
properly eating and digesting food. Often times Smith will regurgitate his food during or soon
after eating.
On June 21, 2017, Smith, as he often does, began regurgitating his food while eating
alone at the Italian Village restaurant. The waiter noticed him frequently regurgitating his food in
the view of other patrons and raised her concerns that other patrons were noticing. The waitress
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asked Smith to regurgitate his food in the bathroom. Smith asserts that the waitress made an
unnecessarily loud spectacle out of the ordeal in an attempt to embarrass him.
Smith asked to speak to the waitress’ manager about his health problems. The waitress
told Smith that she was acting under the manager’s orders. Smith asserts that the manager
refused to speak to him and ordered an employee to ask him to leave.
Smith claims that his issue with properly eating and digesting food constitutes a disability
under the ADA. Smith filed suit alleging that: 1. Defendants unlawfully discriminated against
him because of his disability; 2. Defendants retaliated against Smith by kicking him out of the
restaurant after he informed the staff about his disability; and 3. Italian Village is liable for
intentional infliction of emotional distress because they embarrassed him in front of other
customers.
LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure
when the complaint, standing alone, is legally insufficient to state a claim on which relief may be
granted. Sutton v. Utah State Sch. For the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).
When considering a motion to dismiss for failure to state a claim, all well-pleaded facts are
presumed to be true, but conclusory allegations need not be considered. Cory v. Allstate Ins., 583
F.3d 1240, 1244 (10th Cir. 2009).
DISCUSSION
Boyer’s motion to dismiss seeks to dismiss the claims against Boyer in his individual
capacity. Boyer is an owner of the Italian Village restaurant, however, according to the
complaint the only action he allegedly took was ordering a restaurant employee to ask Smith to
leave. Boyer argues that dismissal is appropriate because: 1. Title III of the ADA only allows for

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a cause of action against an entity and not against an owner of an entity; 2. Smith fails to state a
claim for intentional infliction of emotional distress against Boyer in his individual capacity; and
3. Boyer is entitled to attorneys’ fees. For the reasons that follow, the court grants in part and
denies in part the defendant’s motion to dismiss.
1. Title III of the ADA Allows for a Claim Against an Individual If That Individual is
the Owner of the Entity.
Boyer asserts that the plain language of Title III of the ADA only provides for a cause of
action against an entity and not an individual. Specifically, 42 U.S.C. § 12182 provides as
follows:
(a) General Rule. No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities,
privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a
place of public accommodation. (emphasis added).
(b)(1)(A) Activities.
(i) Denial of participation. It shall be discriminatory to subject an
individual or class of individuals on the basis of a disability or
disabilities of such individual or class, directly, or through
contractual, licensing, or other arrangements, to a denial of the
opportunity of the individual or class to participate in or benefit
from goods, services, facilities, privileges, advantages, or
accommodations of an entity.
Boyer focuses on the last word of Section (b)(1)(A) and argues that the statute specifies that an
entity is a requirement for a Title III lawsuit. Boyer therefore asserts that only an entity can be
liable. The court disagrees. §12182(a) specifically states who can be liable under Title III of the
ADA. This includes any person who owns, leases (or leases to), or operates a place of public
accommodation. The plain language suggests that an owner of a place of public of
accommodation may be liable under Title III of the ADA.

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Neither party has cited case law on the issue of whether, and under what circumstances,
an owner may be liable under Title III of the ADA. The court has identified a case from the
Third Circuit that is persuasive. See Emerson v. Thiel College, 296 F. 3d 184 (3d Cir. 2002).
In Emerson, the plaintiff alleged that Thiel College discriminated against him in violation
of Title III of the ADA. In addition to suing the college, the plaintiff also sued a number of
individuals. The court in Emerson stated “[w]hether individuals may be liable under Title III of
the ADA, which prohibits discrimination in places of public accommodation is an issue of first
impression in the court of appeals.” Id. at 188. Although the court in Emerson found that the
Defendants in that suit did not own or operate the college, the court held that “the individual
college defendants… may be liable under Title III if they own, lease, or operate Thiel, a place of
public accommodation.” Id. at 189.
Title III of the ADA is different from both Title I and Title II in that the only available
remedy is injunctive relief and attorneys’ fees, not monetary damages. See Goodwin v. C.N.J.,
436 F.3d 44 (1st Cir. 2006) (holding that money damages are not an option for private parties
suing under Title III of the ADA). With the understanding that Title III only provides for
injunctive relief, there are good reasons why an owner may be liable. Namely, an owner of a
place of a public accommodation may be in a position to implement the requested injunctive
relief.
The court therefore finds that Boyer has not met his burden to dismiss the Title III claim
as it relates to him as an owner. Boyer’s only grounds for seeking dismissal is his assertion that
an owner may not be liable under Title III of the ADA. Because an owner may under some
circumstances be liable under Title III, this argument fails.1

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This is not to say that an owner may always be liable under Title III of the ADA. If, for example, a minority
shareholder is sued under Title III of the ADA then it is possible that they may not be in a position to implement the

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Boyer further argues that Utah’s Revised Corporation Act provides protection to
shareholders against the acts and obligations of the corporation. As the moving party, it is
Boyer’s burden to prove that he is entitled to judgment as a matter of law. Boyer provides no
authority for the proposition that Utah’s Revised Corporation Act bars Title III claims against
him as an owner. Boyer has therefore not met his burden.2 Title III of the ADA specifically
imposes an obligation on owners of places of public accommodation to remain compliant.
Remaining compliant with Title III of the ADA is therefore is an obligation that both the entity
and owner must comply with.
2. Smith Has Failed to State a Claim for Intentional Infliction of Emotional Distress
Against Louis Boyer.
Boyer asserts that Smith fails to state a claim for intentional infliction of emotional
distress against Boyer in his individual capacity. Smith does not oppose the dismissal of his
emotional distress claim as it relates to Boyer. In fact, Smith did not even argue in his opposition
that the claim should not be dismissed. Nonetheless, Smith has not stated a claim for intentional
infliction of emotional distress against Boyer.
To state a claim for intentional infliction of emotional distress the plaintiff must show
“(a) that the defendant intentionally engaged in some conduct toward the plaintiff considered
outrageous and intolerable in that it offends the generally accepted standards of decency and
morality (b) with the purpose of inflicting emotional distress or where any reasonable person
would have known that such would result, and (c) that severe emotional distress resulted as a

requested injunctive relief because they lack control over the operations of the business. Because Boyer only argues
that an individual may never be sued under Title III of the ADA, the court is not required to answer whether
exceptions exists.
2
If an entity shielded an owner from a Title III lawsuit then an owner could essentially never be liable under Title
III because Title III only relates to places of public accommodations, which are typically entities.

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direct result of the defendant’s conduct.” Russell v. Thomson Newspapers, Inc., 842 P.2d 896,
905 (Utah 1992).
Here, the only fact Smith alleges against Boyer is that he ordered an employee to ask
Smith to leave the restaurant. This act does not rise to the level of offending generally accepted
standards of decency and morality. Accordingly, Smith’s claim against Boyer for intentional
infliction of emotional distress fails.
3. Neither Party is Entitled to Attorneys’ Fees.
Both parties argue that they are entitled to an award of attorneys’ fees because the other
parties’ arguments are baseless. It is within the court’s discretion to award attorneys’ fees
pursuant to 42 U.S.C. § 12205. The court declines to award attorneys’ fees.
CONCLUSION
Based on the above reasoning, Defendant’s Motion to Dismiss (Dkt. No. 12) is
GRANTED in part and DENIED in part. Accordingly, Plaintiff’s claim for intentional infliction
of emotional distress is dismissed as the claim relates to Defendant Louis Boyer in his individual
capacity.
Dated this 23rd day of October, 2017.
BY THE COURT:

____________________________________
DALE A. KIMBALL,
United States District Judge

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