United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge
Zach Hillesheim filed a Motion for Discovery Under Federal
Rule of Civil Procedure 56(d) (see Filing No. 23),
asking the court to extend the response deadline for the
pending motion for summary judgment (Filing No. 10).
In response, Defendant, RVD Real Estate Properties LLC (RVD)
filed a motion for protective order, (Filing No.
29). For the reasons stated below, Hillesheim's
motion will be granted, and Defendant's motion will be
basic facts of this case, as stated in Judge Smith Camp's
Memorandum and Order filed on February 14, 2019, (Filing
No. 22, internal citations omitted), are as follows:
On July 7, 2018, Plaintiff Zach Hillesheim visited Fort
Street Plaza, a multi-tenant commercial building owned by RVD
and located in Omaha, Nebraska. Hillesheim uses a wheelchair
for mobility and, during his July 7, 2018, visit, he
encountered several architectural barriers in Fort Street
Plaza's parking lot which impeded his ability to access
the building. Specifically, Hillesheim alleged that Fort
Street Plaza's forty-space parking lot lacked at least
two ADAAG compliant accessible parking spaces.
As of July 7, 2018, three of Fort Street Plaza's forty
parking spaces were designated as accessible by a painted
symbol on the surface of each space. Hillesheim's
Complaint alleged none of the three designated accessible
spaces complied with ADAAG vertical-signage and slope
regulations in violation of the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq.
After Hillesheim filed his Complaint, RVD repainted the lines
and symbols and added vertical signage on two of its
accessible parking spaces. RVD also hired a construction
company to measure the slope of these parking spaces, and the
construction company determined that neither of the spaces
exceeded the ADAAG's slope restrictions.
court found that the evidence Hillesheim submitted was
“insufficient to support a finding of an ADAAG slope
violation” and allowed Hillesheim time to respond to
RVD's motion for summary judgment. (Filing No. 22 at
CM/ECF p. 5).
purposes of this lawsuit and similar litigation,
Hillesheim's counsel employs an agent, Peter Hansmeier,
who is a Certified Accessibility Specialist in the State of
Minnesota. (Filing No. 33). Hansmeier has taken
slope measurements for Hillesheim in several other cases,
(Id., Filing No. 24 at CM/ECF p. 3), and he
planned to travel to Omaha on the morning of February 26,
2019, to take measurements of the accessible parking spaces
at Fort Street Plaza. However, that measurement did not occur
because RVD's counsel indicated that Hansmeier would not
be permitted access to RVD's premises absent a court
order. (Filing No. 25-1 at CM/ECF p. 2)
March 3, 2019, RVD moved for a protective order in accordance
with Rule 26(c)(A), asserting that “a site
inspection” by Peter Hansmeier would be an “undue
burden on Defendant and this court.” (Filing No.
Motion for Rule 56(d) Discovery
seeks an order under Rule 56(d) of the Federal Rules of Civil
Procedure, requiring RVD “to allow Hillesheim's
agent to take measurements of Defendant's parking lot so
that Hillesheim may properly respond to Defendant's
pending motion for summary judgment.” (Filing No.
23 at CM/ECF p. 1). In his brief, Hillesheim argues that
Hansmeier, acting as his agent, should have access to the
property for the limited purpose of collecting slope
measurements. (Filing No. 24 at CM/ECF p. 4). RVD
opposes the motion, arguing Hansmeier is “not Mr.
Hillesheim's agent. He is, instead ...