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Stewart v. Precise Properties, LLC

United States District Court, D. Nebraska

March 13, 2017

MELISA STEWART, Plaintiff,
v.
PRECISE PROPERTIES, LLC; HAROLD'S KOFFEE HOUSE, INC.; and JOHN DOES 1-2 INCLUSIVE, Defendants.

          MEMORANDUM AND ORDER

          JOHN M. GERRARD, UNITED STATES DISTRICT JUDGE

         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 l.[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 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 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. CI 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 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 van-accessibility 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 ...


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