Suarez-Torres v. Funeraria Asencio et al, No. 3:2016cv02296 - Document 107 (D.P.R. 2018)
Court Description: OPINION AND ORDER: Granting 75 motion for summary judgment; denying 93 Motion for Leave to File. Signed by Judge Gustavo A. Gelpi on 3/28/2018. (MET)
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Suarez-Torres v. Funeraria Asencio et al 1 2 3 4 5 Doc. 107 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO MARIA SUAREZ-TORRES, Plaintiff, CASE NO. 16-2296 (GAG) v. 6 FUNERARIA ASENCIO AND MARIA HERNANDEZ, 7 Defendants. 8 9 OPINION AND ORDER 10 On July 5, 2016, Maria Suarez-Torres (“Plaintiff”) filed a complaint against Maria 11 Hernandez and Funeraria Asencio (“Defendants”) for violating Title III of the Americans with 12 Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. (Docket No. 1). Before the Court is 13 Defendants’ motion for summary judgment. (Docket No. 75). Plaintiff’s original complaint 14 included claims under the Puerto Rico Civil Rights Act, P.R LAWS ANN. tit. 1 § 13, and Article 15 1802 of as the Puerto Rico Civil Code, P.R LAWS ANN. tit. 1, § 13. Plaintiff later moved to 16 voluntarily dismiss the Puerto Rico state law claims with prejudice. (Docket No. 90). The Court 17 granted said dismissal on July 21, 2017. (Docket No. 92). Plaintiff then moved for leave to file an 18 amended complaint. (Docket No. 93). For the reasons below, the Court GRANTS the Defendants’ 19 motion for summary judgement, and DENIES Plaintiff’s motion for leave to file an amended 20 complaint. 21 I. 22 Due to an automobile accident in 1992, Plaintiff is disabled and requires a wheelchair for 23 mobility. (Docket Nos. 74 ¶ 4; 83-1 ¶ 4). Plaintiff requires a modified car to drive. (Docket Nos. 74 Factual Procedural Background 24 Dockets.Justia.com Civil No. 16-2296 (GAG) 1 ¶ 5; 83-1 ¶ 5). She is able to transfer in and out of traditional cars as a passenger without specific 2 modifications. Id. Plaintiff owned two modified SUVs; she was able to fully operate, drive, park, 3 and enter and exit both vehicles. (Docket Nos. 74 ¶ 6; 83-1 ¶ 6). In November 2009, Plaintiff visited 4 the Funeraria Asencio funeral home to attend a wake. (Docket Nos. 74 ¶ 7; 83-1 ¶ 7). She spent 5 approximately fifteen minutes at Funeraria Asencio before leaving. (Docket Nos. 74 ¶ 10; 83-1 ¶ 6 10). Plaintiff states that she left the facility in order to find a restroom because the restroom at 7 Funeraria Asencio was inaccessible and not ADA compliant. (Docket No. 83 ¶ 12). Defendants, 8 however, assert that Plaintiff left to answer a phone call and drove to a family member’s home. 9 (Docket No. 74 ¶ 11). Later that same day, Plaintiff returned to Funeraria Asencio. (Docket Nos. 10 74 ¶ 12; 83-1 ¶ 12). Seven years later, on May 14, 2016, Plaintiff states that she returned to Funeraria 11 Asencio and encountered similar barriers due to Defendants’ non-compliance with ADA 12 regulations. (Docket Nos. 83 ¶ 24; 75). 13 Plaintiff alleges ADA non-compliance in the form of a dangerously-sloped parking lot, an 14 excessively steep ramp, and an inaccessible bathroom. (Docket No. 83-1 ¶ 5- l, m, o). Defendants 15 argue that Plaintiff has failed to provide evidence that Plaintiff did, in fact, visit the funeral home 16 on May 14, 2016. (Docket No. 74 ¶ 24). 17 II. Summary Judgement Standard of Review 18 Summary judgment is appropriate when “the pleadings, depositions, answers to 19 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no 20 genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter 21 of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see FED. R. CIV. P. 56(a). “An issue is 22 genuine if ‘it may reasonably be resolved in favor of either party’ at trial . . . and material if it 23 24 2 Civil No. 16-2296 (GAG) 1 ‘possess [es] the capacity to sway the outcome of the litigation under the applicable law.’“ Iverson 2 v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006) (alteration in original) (internal citations omitted). 3 The moving party bears the initial burden of demonstrating the lack of evidence to support 4 the non-moving party’s case. Celotex, 477 U.S. at 325. “The burden then shifts to the nonmovant 5 to establish the existence of at least one fact issue which is both genuine and material.” Maldonado- 6 Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994). The nonmovant may establish a fact 7 is genuinely in dispute by citing particular evidence in the record or showing that either the 8 materials cited by the movant “do not establish the absence or presence of a genuine dispute, or that 9 an adverse party cannot produce admissible evidence to support the fact.” FED. R. CIV. P. 10 56(c)(1)(B). If the Court finds that a genuine issue of material fact remains, the resolution of which 11 could affect the outcome of the case, then the Court must deny summary judgment. See Anderson 12 v. Liberty Lobby, Inc., 477 U.S. at 248. 13 When considering a motion for summary judgment, the Court must view the evidence in 14 the light most favorable to the nonmoving party and give that party the benefit of any and all 15 reasonable inferences. Id. at 255. Moreover, at the summary judgment stage, the Court does not 16 make credibility determinations or weigh the evidence. Id. Summary judgment may be appropriate, 17 however, if the nonmoving party’s case rests merely upon “conclusory allegations, improbable 18 inferences, and unsupported speculation.” Forestier Fradera v. Municipality of Mayaguez, 440 F.3d 19 17, 21 (1st Cir. 2006) (quoting Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003)). 20 A Defendant’s failure to respond to a motion for summary judgment means that the Court 21 may consider the motion to be unopposed. Velez v. Awning Windows, Inc., 375 F.3d 35, 41 (1st 22 Cir. 2004). In addition, the Court will take as true any uncontested statements of fact. Id. at 41-42; 23 see L. CV. R. 56; see also Morales v. A.C. Orssleff’s EFTF, 246 F.3d 32, 33 (1st Cir. 2001) 24 3 Civil No. 16-2296 (GAG) 1 (“[P]arties ignore [Local Rule 56] at their own peril, and . . . failure to present a statement of 2 disputed facts, embroidered with specific citations to the record, justifies deeming the facts 3 presented in the movant’s statement of undisputed facts admitted.”) (internal citations and 4 quotations omitted). This does not, however, result in automatic entry of summary judgment on 5 behalf of the moving party. The Court “still has the obligation to test the undisputed facts in the 6 crucible of the applicable law in order to ascertain whether judgment is warranted.” Velez, 375 F.3d 7 at 42. 8 9 III. Discussion A. Standing 10 Defendants move for summary judgment based on Plaintiff’s alleged lack of standing and 11 time-barred claims. For the reasons discussed below, the Court disagrees with Defendants on the 12 issue of standing, but agrees on the matter involving the statute of limitations. 13 Defendants assert that Plaintiff lacks constitutional standing because she has not suffered 14 an injury in fact, is not at risk of a future injury, and is not deterred from visiting the facility. (Docket 15 No. 75 at 10). In addition, Defendants contend that Plaintiff does not possess tester standing. Id. at 16 12. Standing requires three elements: (1) Plaintiff must demonstrate an actual injury, or immediate 17 threat of injury, (2) said injury, or threat of injury, is directly caused by the challenged conduct, and 18 (3) an available legal remedy. McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 67 (1st Cir. 2003); 19 See also Alvarez-Vega on behalf of E.A.L. v. Cushman & Wakefield Prop. Concepts Commer., 20 2017 No. 17-1601, 2017 U.S. Dist. LEXIS 188783 (D.P.R. 2017). Plaintiff can prove an actual or 21 immediate threat of injury by demonstrating: (1) she is deterred from patronizing the facility, (2) 22 she is deterred as a direct result of the Defendants’ failure to comply with the ADA, and (3) she 23 will face a similar harm in the future as a result of said noncompliance. See Medina-Rodriguez v. 24 4 Civil No. 16-2296 (GAG) 1 Fernandez Bakery, Inc., 255 F. Supp. 3d 334, 338 (D.P.R. 2017); see also Disabled Ams. For Equal 2 Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005). The ADA does not require 3 that a Plaintiff be deterred from returning to a facility. Rather, a Plaintiff may establish standing by 4 demonstrating deterrence or an injury-in-fact. See Chapman v. Pier 1 Imps. (U.S.), Inc., 631 F. 5 Supp 3d 939, 944 (9th Cir. 2011). “[D]isabled individuals suffer a concrete and particularized injury 6 when they visit an establishment that does not comply with ADA standards.” Medina-Rodrigez. 7 255 F. Supp. 338 (D.P.R. 2017); see also Disabled Ams. For Equal Access 405 F.3d 60 (1st Cir. 8 2005). “A disabled individual may invoke Title III to demand that a building be brought into 9 compliance with the ADA even though [they] only entered the building once.” Dudley v. Hannaford 10 Bros. Co., 333 F.3d 299, 301 (1st Cir. 2003). 11 Defendants aver that Plaintiff has stated that she does not recall visiting Funeraria Asencio 12 on May 14, 2016, and that she cannot affirmatively demonstrate that she was in fact at the funeral 13 home on said date. (Docket No. 75 at 10). Defendants contend that Plaintiff thus cannot demonstrate 14 that an injury occurred on that specific date. Id. Plaintiff and Defendants agree, however, that 15 Plaintiff visited Funeraria Asencio in November 2009 while attending the wake of Roberto Acosta 16 Cardona. (Docket Nos. 83; 74). Defendants also point to statements by Plaintiff where she notes 17 that her return to Funeraria Asencio is conditional on an acquaintance’s passing. (Docket No. 75 at 18 11-12). 19 Defendants claim that because any future visit is dependent on an event that has yet to 20 occur—such as the death of an acquaintance—Plaintiff is not deterred from visiting the funeral 21 home in the future. Id. Simply because a future visit is conditioned upon the death of an 22 acquaintance does not mean Plaintiff would not be deterred from visiting the facility. Assuming all 23 architectural barriers that Plaintiff alleges are present, it is likely that she would feel deterred from 24 5 Civil No. 16-2296 (GAG) 1 attending another funeral at Funeraria Asencio. Typically death is the primary reason to visit a 2 funeral home. The fact that a future visit is dependent upon death does not negate deterrence. 3 Moreover, deterrence is not an absolute requirement under the ADA. 4 Plaintiff has pointed to the dangerously-sloped parking lot, the excessively steep ramp, and 5 the inaccessible bathroom at the funeral home, (Docket No. 83-1 ¶ 5- l, m, o), to show that 6 Defendant’s failure to comply with the ADA is the direct reason she is deterred from patronizing 7 the facility. See Medina-Rodriguez, 255 F. Supp. 3d at 338. Furthermore, she has shown that 8 because the conditions still exist at Funeraria Asencio, if she were to return to the establishment, 9 she would likely face a similar harm as a result of Defendants’ noncompliance. Id. Thus, Plaintiff 10 has shown an actual or immediate threat of injury. Id. 11 Defendants’ failure to address the conditions at Funeraria Asencio is the direct cause of 12 Plaintiff’s alleged injury, or threat of injury. McInnis-Misenor, 319 F.3d at 67. Finally, a legal 13 remedy for the injury is available in the form of an injunction or damages. Id. Because Plaintiff has 14 shown constitutional standing by way of actual or immediate threat of injury, there is no need to 15 make a determination as to the validity of tester standing. 16 B. Time Barred 17 Defendant alleges the statute of limitations defeats Plaintiff’s claim. In response, Plaintiff 18 claims the continuing violation doctrine applies. The Court holds that the statute of limitations time- 19 bars Plaintiff’s claims and the continuing violation doctrine does not apply. 20 i. Statute of Limitations 21 Defendants contend that Plaintiff’s action is time barred. (Docket No. 75 at 16). Where a 22 federal statute, like the ADA, does not specify a statute of limitations, “federal courts must adopt 23 the most analogous state statute of limitations.” Wilson v. Garcia, 471 U.S. 261, 266, 268 (1985). 24 6 Civil No. 16-2296 (GAG) 1 Defendants argue that the applicable statute of limitations in Puerto Rico is that of a personal injury 2 claim, which is one year. (Docket No. 75 at 17). This argument is inapposite. The First Circuit has 3 determined that a four year “‘catch all’ limitations period” is appropriate for claims arising under 4 the ADA. See Mercado v. Puerto Rico, 814 F.3d 581, 582 (1st Cir. 2016). In Mercado the First 5 Circuit noted that 28 U.S.C. § 1658 sets a four year catch all statute of limitations period for federal 6 statutes enacted after December 1990 that do not offer their own. While the ADA was passed prior 7 to 1990, the Court found that amendments to the ADA in 2008 made new claims available under 8 subject to the extended statute of limitations. Id.; see also Jones v. R.R. Donelley & Sons Co., 541 9 U.S. 369, 373 (2004) (“In the context of 28 U.S.C. § 1658, an amendment to an existing statute is 10 no less an ‘Act of Congress’ than a new, stand-alone statute.”). The Supreme Court in Jones 11 highlighted that one must analyze the substantive impact of the amendment. When such an 12 amendment leads to the “creation of new rights of action and corresponding liabilities,” the 28 13 U.S.C. § 1658 sets a four year catch all statute of limitations period would be appropriate as opposed 14 to a statute of limitations borrowed from a state statute. Id. Thus making available actions under the 15 ADA that may have been time barred under the original version of the ADA. 16 In any case, Plaintiff’s action would be time bared regardless of which limitations period 17 applied because the initial injury occurred nine years ago. Plaintiff concedes that her first visit to 18 Funeraria Asencio was in November 2009, well over four years prior to the filing of her complaint 19 on July 5, 2016. The statute of limitations begins to run when a party is aware, or should be aware 20 that they are being unlawfully discriminated against. See Mendez v. Scotiabank of P.R., Inc., 321 21 F. Supp. 2d 273, 282 (D.P.R. 2004). Here, the clock began to run in November 2009, more than six 22 years before Plaintiff filed her complaint. Id. at 276. 23 24 7 Civil No. 16-2296 (GAG) 1 ii. Continuing Violation Doctrine 2 Assuming Plaintiff argued that the continuing violation doctrine allowed her to bring her 3 claims, this argument would fail. To determine the sufficiency of such a claim, the Court must first 4 ask if “the subject matter of the discriminatory acts [was] sufficiently similar that there is a 5 substantial relationship between the otherwise untimely acts and the timely acts. . . .” O’Rourke v. 6 City of Providence, 235 F.3d 713, 717 (1st Cir. 2001) (internal citations omitted); see also Tobin v. 7 Liberty Mut. Ins. Co., 553 F.3d 121, 130 n.7 (1st Cir. 2009) (the continuing violation doctrine 8 applicable to discrimination claims under Title VII is “equally applicable in the ADA context.”). 9 Next, the Court will inquire whether “the acts [were] isolated and discrete or d[id] they occur with 10 frequency or repetitively or continuously. . . .” O’Rourke, 235 F.3d at 717. Finally, the Court will 11 examine the acts to see if they were “of sufficient permanence that they should trigger an awareness 12 of the need to assert one's rights. . . .” Id. Furthermore, the First Circuit has found that the continuing 13 violation doctrine refers to “series of separate acts that collectively constitute one ‘unlawful 14 employment practice.’” Tobin, 553 F.3d at 130 (quoting Natl R.R. Passenger Corp. v. Morgan, 536 15 U.S. 101, 117 (2002)). The continuing violation doctrine is appropriate for claims that “by ‘[t]heir 16 very nature involve repeated conduct,’ and ‘a single act […] may not be actionable on its own.’” 17 Id. (alteration in original) (quoting Nat’l RR, 536 U.S. at 115). The First Circuit has distinguished 18 between the application of the continuing violation doctrine as applied to a hostile work 19 environment claim and a claim based on a discrete discriminatory act. “A discrete discriminatory 20 act . . . does not require repeated conduct to establish an actionable cause,” as a hostile work 21 environment claim would. Id. Thus, the continuing violation doctrine would not be applicable. Id. 22 (holding that “the denial of a disabled employee’s request for accommodation starts the clock 23 running on the day it occurs” as it is a discrete discriminatory act). 24 8 Civil No. 16-2296 (GAG) 1 In this case, while the subject matter of the allegedly discriminatory acts—the architectural 2 barriers—are the same, they are by no means a discriminatory action which the Plaintiff faces 3 continuously or with high frequency. (Docket Nos. 1; 83). These alleged discriminatory acts 4 were/are isolated and discrete because several years passed between Plaintiff’s visits. Id. Therefore, 5 while she may have faced the same discriminatory act on separate occasions, they are have not 6 occurred frequently enough or consistently enough to constitute a continuing violation. Thus, the 7 statute of limitations began to run in 2009 and not on May 14, 2016,1 Plaintiff’s most recent visit 8 to the funeral home. (Docket No. 83). At the time of her first visit Plaintiff was aware of the alleged 9 discrimination. Furthermore, Plaintiff’s assertion that she is a tester who frequently visits facilities 10 to ensure they comply with the ADA’s provisions makes it even more compelling that Plaintiff 12 was/should have been aware. As such, Plaintiff’s action is time barred. 13 sixty-two complaints in this District Court that contain parallel allegations, which Defendants 14 characterize as “boiler-plate complaints.” (Docket No. 74). Plaintiff objected to the inclusion of this 15 fact under Local Rule 56(b). While the Court will not take this fact into account while making its 16 determination, the motion in opposition to summary judgment contains a revealing error that would 17 debilitate Plaintiff’s case if the Court did consider Defendant’s request. The motion incorrectly 18 refers to Panadería España as the non-compliant establishment, as opposed to Funeraria Asencio. 19 See Docket No. 83 at 3. Plaintiff should be more careful in the future. 11 Finally, Defendants ask that the Court take judicial notice that Plaintiff previously filed 20 21 22 23 24 1 Defendants note their skepticism as to whether the May 14, 2016 visit actually occurred. Because Plaintiff agrees that her first visit was in 2009, however, this alleged second visit does not impact the Court’s determination as to whether the action is time barred. See Docket No. 74; 83 9 Civil No. 16-2296 (GAG) C. Motion to File Amended Complaint 1 2 Plaintiff sought to amend her complaint on July 19, 2017. (Docket No. 90). The Court 3 denied the motion without prejudice to Plaintiff refiling her request. (Docket No. 92). On July 31, 4 2017, Plaintiff moved again to file an amended complaint, which only states a cause of action under 5 Title III of the ADA and seeks prospective relief with no claims for compensatory damages. 6 (Docket No. 93). 7 The First Circuit has held that “consent to file amended pleadings shall be freely given when 8 justice so requires[,] unless the amendment would be futile or reward undue delay.” Adorno v. 9 Crowley Towing and Transp. Co., 443 F.3d 122, 126 (1st Cir. 2006). As discussed above Plaintiff’s 10 action is time barred. The amended complaint does not address the statute of limitations issue. 11 Rather, the amended complaint again confirms that Plaintiff’s first visit to Funeraia Asencio was 12 back in 2009, well over four years ago. See Docket No. 93-1. Thus, the dispositive issue is 13 unaffected. As such, the action is still time barred and the amended complaint is rendered futile. 14 Consequentially, the Court DENIES the motion for leave to an amended complaint. (Docket No. 15 93). 16 IV. 17 For the reasons stated above, the Defendants’ motion for summary judgment at Docket No. 18 CONCLUSION 75 is GRANTED. Plaintiff’s motion for leave to file an amended complaint is DENIED. 19 SO ORDERED. 20 In San Juan, Puerto Rico this 28th day of March, 2018. 21 s/ Gustavo A. Gelpí GUSTAVO A. GELPI United States District Judge 22 23 24 10
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