Martinez v. CPG Finance II, LLC et al
Filing
98
ORDER signed by Judge Garland E. Burrell, Jr. on 06/15/11 ORDERING that dft New Balance's #71 Motion to Dismiss is DENIED; the #77 Motion to Continue is DENIED; #71 Motion for Summary Judgment is GRANTED; Clerk to issue Judgment in favor of dft New Balance Athletic Shoe, Inc. This case shall NOT be closed. (Benson, A.)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Tony Martinez,
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Plaintiff,
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v.
Columbia Sportswear USA Corp.
dba Columbia Sportswear Company
#446; Eddie Bauer, a Delaware
LLC dba Eddie Bauer Outlet
#R-867; New Balance Athletic
Shoe, Inc. dba New Balance
#0015,
Defendants.*
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2:10-cv-01333-GEB-KJN
ORDER DENYING MOTION TO
DISMISS, DENYING REQUEST FOR
CONTINUANCE, AND GRANTING
MOTION FOR SUMMARY JUDGMENT
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Defendant New Balance Athletic Shoe, Inc. dba New Balance
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#0015 (“Defendant”) moves for dismissal of Plaintiff’s First Amended
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Complaint (“FAC”), arguing it “fails to satisfy the [standing] pleading
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requirements”
applicable
to
lawsuits
under
the
Americans
with
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*
The caption has been amended to reflect Plaintiff’s dismissal
of Defendants Adidas America, Inc. dba Adidas #6128, Reebok
International Ltd dba Reebok/Rockport #20, and Guess?, Inc. dba Guess
Factory Store #3224. (ECF Nos. 76, 80.)
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Disabilities Act (“ADA”) “set forth by the Ninth Circuit in Chapman v.
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Pier 1 Imports (U.S.) Inc.,” 631 F.3d 939 (9th Cir. 2011); and fails to
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state his claims with the specificity required. (ECF No. 71; Mot. 1:10-
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11.)
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dismissal motion. Therefore, Defendant’s dismissal motion is DENIED.
However,
Plaintiff’s
claims
are
sufficient
to
withstand
the
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Defendant moves in the alternative for summary judgment on all
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claims against it. (Mot. 4:16-18.) Plaintiff failed to respond to this
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motion with an opposition or statement of non-opposition as required by
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Local Rule 230(c); instead, Plaintiff filed a request for continuance of
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the motion. (ECF No. 77.) This continuance request is governed by
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Federal Rule of Civil Procedure (“Rule”) 56(d).
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I. REQUEST FOR CONTINUANCE
Plaintiff’s
continuance
request
is
based
solely
on
his
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counsel’s declaration in which his counsel declares he has “not had an
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opportunity to obtain . . . essential evidence[; that] this evidence is
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necessary to oppose [Defendant’s] motion[;] and . . . the instant
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lawsuit is in the early stages of litigation[.]” (Pl.’s Appl. for
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Continuance,
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counsel declares:
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Decl.
of
Hubbard
2:19-21.)
Specifically,
Plaintiff’s
Before I can respond to [the] motion for summary
judgment, . . . I will need to conduct the
following discovery, and obtain the following
essential facts:
a. Inspect New Balance’s facility;
b. Identify and document the barriers alleged
in [the] plaintiff’s complaint;
c. Obtain expert testimony on those barriers;
and
d. Depose Russell Shirley and Cesar Rodriguez,
whose testimony lays the foundation for the
defendant’s motion.
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Id. ¶ 3. Defendant counters “Plaintiff has had ample time to conduct
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discovery and has no genuine excuse.” (Def.’s Opp’n to Continuance 2:2.)
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To obtain a continuance under Rule 56(d) the movants “must
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show (1) that they have set forth in affidavit form the specific facts
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that they hope to elicit from further discovery, (2) that the facts
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sought exist, and (3) that these sought-after facts are ‘essential’ to
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resist the summary judgment motion.” State of Cal., on Behalf of
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California Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772,
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779 (9th Cir. 1998). Moreover, the movants “must make clear what
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information is sought and how it would preclude summary judgment.”
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Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (citation and
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internal
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application is proper where it is clear that the evidence sought is
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almost certainly nonexistent or is the object of pure speculation.”
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Campbell, 138 F.3d at 779-80 (citation and internal quotation marks
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omitted). In addition,“[t]he burden is on the party seeking additional
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discovery to proffer sufficient facts to” satisfy the requirements of
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Rule 56(d). Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th
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Cir. 1996) (citation omitted). Further, a Rule 56(d) motion will not be
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granted
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discovery diligently before summary judgment.” Brae Transp., Inc. v.
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Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).
quotation
“if
[the
marks
party
omitted).
requesting
“[D]enial
a
of
continuance]
a
Rule
fails
to
56([d])
pursue
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Here, the evidence Plaintiff seeks “is almost certainly . . .
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the object of pure speculation.” Campbell, 138 F.3d at 780. Plaintiff’s
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continuance request is based solely on his assumption and/or “mere hope”
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that Plaintiff will discover evidence sufficient to defeat Defendant’s
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motion. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th
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Cir. 1978). Therefore, Plaintiff has not shown he is entitled to a
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continuance for the purpose of conducting this discovery.
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///
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Further, Plaintiff has not shown that he diligently pursued
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the discovery he seeks to conduct. Plaintiff filed his Complaint in this
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action on May 29, 2010. (ECF No. 1.) The parties filed a joint status
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report on October 4, 2010, in which Defendant stated:
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Defendant New Balance asserts that Plaintiff’s
claims are meritless. Defendant New Balance does
not believe that plaintiff has any good faith basis
for this litigation and that the matters in
controversy can be resolved as a matter of law. To
avoid the significant potential costs associated
with protracted litigation, Defendant New Balance
intends to file a motion for summary judgment
within the next several months.
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(ECF No. 49, 4:8-13 (emphasis added).) Defendant filed its dismissal and
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summary judgment motion on March 4, 2011; this filing occurred nine
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months
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Defendant warned Plaintiff that it would seek to terminate the action by
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motion.
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explanation as to why he “fail[ed] to pursue discovery diligently before
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summary judgment” in light of having been duly alerted that he would
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have to face the pending motion. Brae Transp., Inc., 790 F.2d at 1443.
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Therefore, Plaintiff’s request for a Rule 56(d) continuance is
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after
(ECF
Plaintiff
No.
71.)
filed
his
Plaintiff
Complaint
fails
to
and
five
provide
months
a
after
sufficient
DENIED.
II. MOTION FOR SUMMARY JUDGMENT
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Defendant argues in its summary judgment motion that “the
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factual record demonstrates that New Balance has fully complied with the
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applicable federal, state and local obligations to ensure accessibility
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to all its customers.” (Mot. 4:20-21.)
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Plaintiff alleges in his FAC the following claims against
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Defendant, all of which are based on Plaintiff’s allegations that he
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encountered architectural barriers at the New Balance Store which
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prevented him “from enjoying full and equal access at the New Balance”
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Store: 1) Violations of the ADA, 42 U.S.C. §§ 12182, 12183; 2) Violation
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of the Disabled Persons Act (“DPA”), Section 54 of the California Civil
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Code; 3) Violation of the Unruh Civil Rights Act (“Unruh Act”), Section
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51.5 of the California Civil Code; and 4) Denial of Full and Equal
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Access to Public Facilities in violation of Section 19955(a) of the
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California Health and Safety Code. (FAC ¶¶ 25, 126-162.)
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A. LEGAL STANDARD
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“The . . . party [seeking summary judgment] initially bears
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the burden of proving the absence of a genuine issue of material fact.”
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In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir.
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2010). If this burden is sustained, “the burden then shifts to the
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non-moving party to designate specific facts demonstrating the existence
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of genuine issues for trial.” Id. “[W]e must draw all reasonable
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inferences supported by the evidence in favor of the non-moving party
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. . . .” Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 827
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(9th Cir. 2001). However, “[t]o defeat a summary judgment motion . . .
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the non-moving party may not rest upon the mere allegations . . . in the
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pleadings. The non-moving party must establish the existence of a
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genuine factual dispute on the basis of admissible evidence; bare
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allegations without evidentiary support are insufficient to survive
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summary
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Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008) (citation and
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internal quotation marks omitted).
judgment.”
Estate
of
Tucker
ex
rel.
Tucker
v.
Interscope
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Local Rule 260(b) requires that “[a]ny party opposing a motion
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for summary judgment . . . [must] reproduce the itemized facts in the
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[moving party’s] Statement of Undisputed Facts and admit those facts
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that are undisputed and deny those that are disputed[.]” E.D. Cal. R.
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260(b). A party failing to specifically “challenge the facts identified
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in the [movant’s] statement of undisputed facts, . . . is deemed to have
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admitted
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statement.” Beard v. Banks, 548 U.S. 521, 527 (2006) (finding that a
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party opposing summary judgment who “fail[s] [to] specifically challenge
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the facts identified in the [movant’s] statement of undisputed facts .
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. . is deemed to have admitted the validity of [those] facts[.]”). Since
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Plaintiff failed to oppose Defendant’s statement of undisputed facts as
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required by Local Rule 260(b), the facts in Defendant’s statement of
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undisputed facts “are admitted to exist without controversy.” Farrakhan
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v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) (“If the moving party’s
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statement of facts are not controverted in this manner, ‘the Court may
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assume that the facts as claimed by the moving party are admitted to
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exist without controversy.’”).
the
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validity
of
the
facts
contained
in
the
[movant’s]
B. AMERICANS WITH DISABILITIES ACT CLAIMS
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Defendant argues its summary judgment motion must be granted
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on Plaintiff’s ADA claims since “[P]aintiff does not have adequate
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admissible evidence to show that any barriers actually exist on [the New
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Balance Store’s] premises.” (Mot. 6:15-17.)
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Defendant presents evidence, including photographs, directly
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refuting
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demonstrated in the following table.
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the
factual
allegations
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in
Plaintiff’s
FAC,
which
is
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Plaintiff’s
Allegations against
Defendant in FAC, all
of which are set forth
in ¶ 25
Defendant’s
Established Undisputed
Facts
ADA Accessibility
Guidelines 28 C.F.R.
Part 36, Appendix A
“There
is
no
ISA
moun t e d
at
the
entrance [of the New
Balance facility] that
would
indicate
to
Plaintiff whether or
not the Facility is
inte n d e d
to
be
accessible . . . .”
“The international
symbol of
accessibility (“ISA”)
is mounted at the
front entrance, next
to the right hand
door, on the front
window.” (SUF ¶ 15.)
“Facilities . . .
required to be
identified as
accessible . . .
shall use the
international symbol
of accessibility.
The symbol shall be
displayed as shown
in Fig. 43(a) and
(b).” Section
4.30.7(1).
“Many of the aisles
through the store are
blocked by merchandise
and are thus too
narrow making them
difficult-if not
impossible-for
Plaintiff to use . . .
.”
“The aisles of the NB
Store are maintained
with sufficient space
and merchandise is
positioned to ensure
the aisles do not
block access to
disabled persons.”
(SUF ¶ 16.)
“All . . . aisles. .
. that are part of
an accessible route
shall comply with
4.3.” 4.3.1. “The
minimum clear width
of an accessible
route shall be 36 in
(915 mm) . . . .”
Section 4.3.3.
“The dressing room
bench is not 24 inches
wide by 48 inches
long.”
“The dressing room . .
. benches are 24
inches wide by 48
inches long.” (SUF ¶
17.)
“Every accessible
dressing room shall
have a 24 in by 48
in (610 mm by 1220
mm) bench fixed to
the wall along the
longer dimension.”
Section 4.35.4
“The clothing hook on
the dressing room door
is too high, thus
Plaintiff is unable to
use it . . . .”
“The clothing hooks in
the dressing rooms are
positioned at 44
inches from the
ground.” (SUF ¶ 18.)
“If the clear floor
space only allows
forward approach to
an object, the
maximum high forward
reach allowed shall
be 48 in (1220 mm)
(see Fig. 5 and Fig.
5(a)).” Section
4.2.5.
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“The pay point machine
is too high and/or at
too steep of an angle
making it difficult-if
not impossible-for
Plaintiff to use . . .
.”
“There is no angle to
access the pay point
machine.” (SUF ¶ 21.)
“The credit card/debit
card swipe machine is
a separate component
from the Point Of Sale
(“POS”) computer
system.” Id. ¶ 22.
“The register counters
are 34 inches tall . .
. .” Id. ¶ 24.
“In . . . retail
stores where
counters have cash
registers and are
provided for sales
or distribution of
goods or services to
the public, at least
one of each type
shall have a portion
of the counter which
is at least 36 in
(915mm) in length
with a maximum
height of 36 in (915
mm) above the finish
floor.” Section
7.2(1).
“Due to merchandise
displayed, there is
insufficient clear
floor space at the
check out counter.
Without sufficient
clear space, Plaintiff
has difficulty access
the counter and thus,
the services provided
there . . . .”
“The clear floor space
around the register
counters measures more
than 30 inches by 48
inches.” (SUF ¶ 19.)
“The spaces between
the gondola fixtures
and the walls are at
least 36 inches wide.”
Id. ¶ 25.
“There is at least 36
inches of clearance
space in between
apparel four-way
displays.” Id. ¶ 26.
The lowered counter
“shall be on an
accessible route
complying with 4.3.”
Section 7.2(1).
“The minimum clear
width of an
accessible route
shall be 36 in (915
mm) . . . .” Section
4.3.3.
“The check out counter
is too high with no
portion lowered to
accommodate a patron
in a wheelchair . . .
and/or [t]he check out
counter is cluttered
with merchandise and
thus lacks the
required depth.”
“This is untrue.” (ECF
No. 74 ¶ 10.) “The
register counters are
34 inches tall, well
over 36 inches long,
and 24 inches [deep].”
(SUF ¶ 24.)
The register counter
“shall have a
portion of the
counter which is at
least 36 in (915mm)
in length with a
maximum height of 36
in (915 mm) above
the finish floor.”
Section 7.2(1).
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For the stated reasons, Defendant’s summary judgment motion on
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Plaintiff’s ADA claims is GRANTED.
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C. STATE CLAIMS
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Defendant also seeks summary judgment on Plaintiff’s state
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claims, arguing those claims fail “for the same reasons the [Plaintiff]
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cannot sustain a claim under the ADA.” (Mot. 7:20-21.)
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Plaintiff has not controverted the undisputed facts showing he
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has not been subject to architectural or other barriers proscribed by
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the
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Defendant’s summary judgment motion on Plaintiff’s state claims is
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GRANTED.
state
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laws
on
which
his
state
claims
are
based.
Therefore,
III. FINAL JUDGMENT UNDER RULE 54(b)
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In light of the above rulings, the Court sua sponte reaches
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the issue of whether to enter final judgment in favor of Defendant under
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Rule 54(b). Since “there is no just reason for delay[,]” THE CLERK OF
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THE COURT SHALL ENTER JUDGMENT IN FAVOR OF DEFENDANT NEW BALANCE
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ATHLETIC SHOE, INC. Fed.R.Civ.Proc. 54(b). This action shall not be
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closed.
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Dated:
June 15, 2011
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GARLAND E. BURRELL, JR.
United States District Judge
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