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Hillesheim v. RVD Real Estate Properties LLC

United States District Court, D. Nebraska

April 29, 2019

ZACH HILLESHEIM, Plaintiff,
v.
RVD REAL ESTATE PROPERTIES LLC, Defendant.

          MEMORANDUM AND ORDER

          Cheryl R. Zwart United States Magistrate Judge

         Plaintiff 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 denied.

         BACKGROUND

         The 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.

         The 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).

         For the 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)

         On 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. 29).

         ANALYSIS

         A. Motion for Rule 56(d) Discovery

         Hillesheim 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 ...


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