United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Smith Camp Senior United States District Judge.
matter is before the Court on the Motion for Entry of
Judgment Against Defendant, ECF No. 24, filed by Defendant
BNA Properties, LLC (BNA). For the reasons stated below, the
Motion will be granted.
Zach Hillesheim brought this action against BNA under Title
III of the Americans with Disabilities Act, 42 U.S.C. §
12181 et seq., and alleged the commercial property
owned by BNA in Omaha, Nebraska, is in violation of the
Americans with Disabilities Act Access Guidelines (ADAAG).
Compl., ECF No. 1. BNA filed an Answer, ECF No. 5, but failed
to respond to any discovery requests, see Order, ECF Nos. 18
& 26. BNA now asks the Court to enter judgment against
it, Motion, ECF No. 24, and Hillesheim does not oppose that
motion, Response, ECF No. 25.
consent decree ‘embodies an agreement of the
parties' and is also ‘an agreement that the parties
desire and expect will be reflected in, and be enforceable
as, a judicial decree that is subject to the rules generally
applicable to other judgments and decrees.'”
Frew v. Hawkins, 540 U.S. 431, 437 (2004) (quoting
Rufo v. Inmates of Suffolk Cty. Jail, 502
U.S. 367, 378 (1992)). “[A] federal consent decree must
spring from, and serve to resolve, a dispute within the
court's subject-matter jurisdiction; must come within the
general scope of the case made by the pleadings; and must
further the objectives of the law upon which the complaint
was based.” Hawkins, 540 U.S. at 437 (citing
Firefighters v. Cleveland, 478 U.S. 501, 525
(1986)); see also E.E.O.C. v. Prod. Fabricators,
Inc., 666 F.3d 1170, 1172 (8th Cir. 2012).
III of the ADA prohibits discrimination on the basis of
disability in a place of ‘public accommodation,
'” Disability Support All. v. Heartwood
Enters., 885 F.3d 543, 545 (8th Cir. 2018) (quoting 42
U.S.C. § 12182(a)), and “‘[d]iscrimination
includes ‘failure to remove architectural barriers . .
. in facilities . . . where such removal is readily
achievable, '” id. “The ADAAG is a
comprehensive set of structural guidelines that articulates
detailed design requirements to accommodate persons with
disabilities.”Davis v. Anthony, Inc., 886 F.3d
674, 676 n.2 (8th Cir. 2018) (quoting Daubert v. Lindsay
Unified Sch. Dist., 760 F.3d 982, 986 (9th Cir. 2014)).
The ADA provides a private right of action for injunctive
relief to any person being subjected to discrimination on
this basis. Steger v. Franco, Inc., 228 F.3d 889,
892 (8th Cir. 2000) (citing 42 U.S.C. § 12188).
Section 12188(a)(2) provides that
injunctive relief shall include an order to alter facilities
to make such facilities readily accessible to and usable by
individuals with disabilities to the extent required by this
subchapter. Where appropriate, injunctive relief shall also
include requiring the provision of an auxiliary aid or
service, modification of a policy, or provision of
alternative methods, to the extent required by this
42 U.S.C. § 12188(a)(2).
parties request a judgment declaring that BNA's property
is not ADA compliant and ordering it to
(1) remove all barriers to the maximum extent feasible or in
the alternative make all readily achievable alterations to
its facilities so as to remove physical barriers to access
and make its facilities fully accessible to an independently
usable by individuals with disabilities to the extent
required by the ADA; and (2) make all reasonable
modifications in policies, practices, or procedures necessary
to afford all offered goods, services, facilities,
privileges, advantages or accommodations to individuals with
disabilities on a full and equal basis.
Motion ¶ 4, ECF 24, Page ID 109; Compl., ECF No. 1, Page
ID 12. In its Motion, BNA represents that the architectural
barriers referenced in Hillesheim's Complaint will be
removed by August 15, 2019.
Court finds that the parties' requested consent judgment
“spring[s] from, and serve[s] to resolve, a dispute
within [its] subject-matter jurisdiction;”
“come[s] within the general scope of the case made by
the pleadings;” and “further[s] the objectives of
the law upon which the complaint was based.”
Hawkins, 540 U.S. at 437. It will, therefore, ...