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Hillesheim v. BNA Properties, LLC

United States District Court, D. Nebraska

June 18, 2019

ZACH HILLESHEIM, Plaintiff,
v.
BNA PROPERTIES, LLC, Defendant.

          MEMORANDUM AND ORDER

          Laurie Smith Camp Senior United States District Judge.

         This 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.

         BACKGROUND

         Plaintiff 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.

         DISCUSSION

         “A 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).

         “Title 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.”[1]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 subchapter.

42 U.S.C. § 12188(a)(2).

         The 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.

         The 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, ...


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