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Oliver v. KFC Corp.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


January 25, 2008

A. J. OLIVER, PLAINTIFF,
v.
KFC CORPORATION D/B/A KFC #Y450025; PURCELL WEBB, TRUSTEE OF THAT CERTAIN REVOCABLE TRUST DATED NOVEMBER 10, 1982, DEFENDANT.

The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge

ORDER (1) GRANTING RULE MOTIONS FOR SUMMARY JUDGMENT and (2) DENYING DEFENDANT'S ORIGINAL MOTION FOR SUMMARYJUDGMENT (Doc. Nos. 26, 45) 56(f) CONTINUANCE OF CROSS-

Presently before the Court is the declaration of Lynn Hubbard, III, counsel for A. J. Oliver ("plaintiff"). Defendant KFC Corporation previously filed a motion for summary judgment on September 24, 2007. (Doc. No. 26.) Plaintiff filed his cross-motion on October 1, 2007. (Doc. No. 35.) The case was then reassigned from the Hon. John A. Houston to the Hon. Janis L. Sammartino on October 5, 2007, and the hearing date on the motion was subsequently reset. On January 4, 2008, defendant KFC Corporation ("KFC") filed, without warning, a much larger "amended motion" for summary judgment. (Doc. No. 41.) The amended motion includes factual allegations that KFC re-modeled its restaurant and legal arguments that plaintiff's Americans with Disabilities Act claim now fails for mootness. Plaintiff seeks relief under Rule 56(f) to allow additional time for his expert to return to KFC's restaurant to conduct an inspection of the remodeled restaurant. KFC and co-defendant Purcell Webb have filed oppositions to the request. (Doc. Nos. 46-47.)

Having reviewed the declaration of plaintiff's counsel and defendants' oppositions, the Court hereby ORDERS the following: -KFC's original motion for summary judgment (Doc. No. 26) is denied as moot. KFC's amended motion is now the operative motion. -The Court grants plaintiff's request and orders plaintiff's expert to conduct a site inspection of KFC's restaurant within four (4) weeks of the date this Order is docketed. -Plaintiff shall file his opposition to KFC's amended motion no later than Friday, March 7, 2008. -KFC shall file its reply in support of its amended motion no later than Friday, March 14, 2008. -The Court hereby vacates the hearing on the cross-motions previously set for Friday, February 8, 2008. When the Court has received KFC's reply, the Court shall set a new hearing date at that time.

IT IS SO ORDERED.

20080125

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