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BOTOSAN v. FITZHUGH

August 3, 1998

KORNEL BOTOSAN, Plaintiff,
v.
DOROTHY H. FITZHUGH, Defendant.



The opinion of the court was delivered by: RHOADES

ORDER DENYING MOTION TO DISMISS; GRANTING IN PART AND DENYING IN PART MOTION TO STRIKE; AND DENYING MOTION FOR SUMMARY JUDGMENT

 I. Overview

 Defendant has filed three motions: a Motion to Dismiss Plaintiff's first cause of action; a Motion to Strike portions of Plaintiff's First Amended Complaint; and a Motion for Summary Judgment. For the reasons stated below, the Court denies the Motion to Dismiss. The Court grants the Motion to Strike in part and denies it in part. The Court denies the Motion for Summary Judgment.

 II. Background1

 Plaintiff Kornel Botosan has a disability and uses a wheelchair. In September of 1997, Plaintiff went to the Cojita Mexican Food Restaurant. The restaurant is located on land leased from the Dorothy H. Fitzhugh Separate Property Trust. Defendant Dorothy H. Fitzhugh is the trustee of the trust.

 Plaintiff alleges that the restaurant fails to accommodate handicapped people. For example, Plaintiff alleges that the restaurant does not provide handicapped parking, wheelchair ramps, or handicapped-accessible restroom accommodations. Plaintiff also alleges that the restaurant does not provide "disabled accessibility signage." (1st Am. Compl. P 17(b)).

 Plaintiff sued Fitzhugh. Plaintiff's first cause of action alleges numerous violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12101 et seq. Plaintiff's other causes of action allege violations of California law.

 III. Discussion

 Defendant has now filed three motions: A Motion to Dismiss the ADA claim for lack of jurisdiction, pursuant to Federal Rule of Civil Procedure 12(b)(1); a Motion to Strike portions of the First Amended Complaint, pursuant to Federal Rule of Civil Procedure 12(f); and a Motion for Summary Judgment, pursuant to Federal Rule of Civil Procedure 56.

 The Court will discuss each motion in turn.

 A. The Motion To Dismiss

 Defendant argues that the Court should dismiss the ADA claim because Plaintiff failed to exhaust his administrative remedies before suing.

 The ADA prohibits discrimination in public accommodations on the basis of disability. See 42 U.S.C. § 12182. The ADA incorporates some of the remedies and procedures of Title VII of the Civil Rights Act of 1964. Specifically, the ADA provides that "the remedies and procedures set forth in section 2000a-3(a) of [Title VII] are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability . . . ." 42 U.S.C. § 12188(a)(1) (emphasis added). Section 2000a-3(a), in turn, provides that an aggrieved person can bring "a civil action for preventive relief." 42 U.S.C. § 2000a-3(a).

 In ordinary Title VII cases, however, an aggrieved person must sometimes exhaust administrative remedies before suing. Section 2000a-3(c) provides:

 
In the case of an alleged act or practice prohibited by this subchapter which occurs in a State . . . which has a . . . law prohibiting such act or practice . . . , no civil action may be brought . . . before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority . . . .

 42 U.S.C. § 2000a-3(c). Defendant argues that this state administrative exhaustion requirement also applies in ADA cases, and that Plaintiff failed to comply with this requirement. Plaintiff counters by arguing that the ADA does not incorporate Title VII's administrative exhaustion requirement.

 The Court agrees with Plaintiff. The ADA does not purport to adopt § 2000a-3(c), or § 2000a-3 in its entirety. By its clear, express terms, the ADA adopts only § 2000a-3(a), which says nothing about exhausting administrative remedies. This unambiguous statutory language defeats Defendant's argument. See Continental Cablevision, Inc. v. Poll, 124 F.3d 1044, 1049 (9th Cir. 1997) (holding that clear statutory "language must ordinarily be regarded as conclusive").

 Moreover, the legislative history of the ADA does not indicate that Congress intended to adopt subsection (c). The "Joint Explanatory Statement of the Committee of Conference" stated that the ADA "specifies that the remedies and procedures of Title VII of the 1964 Civil Rights Act" apply in ADA cases. See H.R. Conf. Rep. No. 101-596, at 80 (1990). Although one could read this statement as claiming that the ADA incorporates all the procedures of Title VII cases, the statement does not explicitly say that the ADA adopts all such procedures. Also, during a floor debate, Senator Harkin stated that the ADA only imposes an administrative exhaustion requirement in employment contexts. See 135 Cong. Rec. 10734-02, 10759-60 (1989). *fn2"

 In addition, Congress obviously knew how to adopt provisions of Title VII because it expressly adopted subsection (a). It seems unlikely that Congress would absentmindedly forget to adopt a provision that appears a mere two paragraphs below the subsection it adopted. See Bercovitch v. Baldwin Sch., 964 F. Supp. 597, 605 (D. P.R. 1997) (holding that because "Congress specifically referred to [subsection (a)] when outlining the available remedies under [the ADA], . . . had it wanted to adopt [subsection (c)], it would have explicitly done so"), rev'd on other grounds, 133 F.3d 141 (1st Cir. 1998); see also Sperling v. Hoffmann-La Roche, Inc., 24 F.3d 463, 470 (3d Cir. 1994) (holding that "incorporation of selected provisions into [a statute] indicates that Congress deliberately left out those provisions not incorporated"); cf. Jablon v. Dean Witter & Co., 614 F.2d 677, 681 (9th Cir. 1980) (finding it "highly improbable that Congress absentmindedly forgot to mention an intended [remedy]" when Congress expressly provided for other remedies within a statutory scheme) (internal quotation marks and citation omitted).

 Case law confirms the above analysis. See Bercovitch, 964 F. Supp. at 605 (holding that because the ADA's express terms only adopt subsection (a), the ADA does not adopt subsection (c)); Doukas v. Metropolitan Life Ins. Co., 1997 U.S. Dist. LEXIS 21757, No. CIV-4-478-SD, 1997 WL 833134, at *3 (D.N.H. Oct. 21, 1997) (holding that "reading Congress's designation of 2000a-3(a) to include the other paragraphs of section 2000a-3 would render the designation of paragraph (a) superfluous"); Soignier v. American Bd. of Plastic Surgery, 1996 U.S. Dist. LEXIS 86, No. 95- C-2736, 1996 WL 6553, at *1 (N.D. Ill. Jan. 8, 1996) (holding that because Congress expressly adopted only subsection (a), it did not intend to adopt subsection (c)), aff'd, 92 F.3d 547 (7th Cir. 1996), cert. denied, 136 L. Ed. 2d 716, 117 S. Ct. 771 (1997).

 Three cases, however, have held to the contrary. Daigle v. Friendly Ice Cream Corp., 957 F. Supp. 8, 9-10 (D.N.H. 1997) and Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148, 1149-50 (D. Colo. 1996) reached the contrary conclusion without any analysis. The Court declines to follow these cases precisely because they engaged in no analysis.

 Mayes v. Allison, 983 F. Supp. 923 (D. Nev. 1997) also held that the ADA imposes an administrative exhaustion requirement. Mayes reached this holding because Mayes found the statutory language to be unclear. Mayes found the language to be unclear "primarily because the . . . courts [that] have addressed the issue are . . . split on its resolution." Id. at 925. As discussed above, however, the two other cases that found an administrative exhaustion requirement did so without any analysis. Moreover, despite any split in authority, the Court fails to see how the statutory language is unclear.

 Accordingly, the Court holds that the ADA does not incorporate § 2000a-3(c). Plaintiff therefore did not have to exhaust any administrative remedies. The ...


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