IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
June 15, 2011
TONY MARTINEZ, PLAINTIFF,
COLUMBIA SPORTSWEAR USA CORP. DBA COLUMBIA SPORTSWEAR COMPANY EDDIE BAUER, A DELAWARE LLC DBA EDDIE BAUER OUTLET NEW BALANCE ATHLETIC SHOE, INC. DBA NEW BALANCE DEFENDANTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER DENYING MOTION TO ) DISMISS, DENYING REQUEST FOR CONTINUANCE, AND GRANTING MOTION FOR SUMMARY JUDGMENT #446; #R-867; #0015,*fn1
Defendant New Balance Athletic Shoe, Inc. dba New Balance #0015 ("Defendant") moves for dismissal of Plaintiff's First Amended Complaint ("FAC"), arguing it "fails to satisfy the [standing] pleading requirements" applicable to lawsuits under the Americans with Disabilities Act ("ADA") "set forth by the Ninth Circuit in Chapman v. Pier 1 Imports (U.S.) Inc.," 631 F.3d 939 (9th Cir. 2011); and fails to state his claims with the specificity required. (ECF No. 71; Mot. 1:10- 11.) However, Plaintiff's claims are sufficient to withstand the dismissal motion. Therefore, Defendant's dismissal motion is DENIED.
Defendant moves in the alternative for summary judgment on all claims against it. (Mot. 4:16-18.) Plaintiff failed to respond to this motion with an opposition or statement of non-opposition as required by Local Rule 230(c); instead, Plaintiff filed a request for continuance of the motion. (ECF No. 77.) This continuance request is governed by Federal Rule of Civil Procedure ("Rule") 56(d).
I. REQUEST FOR CONTINUANCE
Plaintiff's continuance request is based solely on his counsel's declaration in which his counsel declares he has "not had an opportunity to obtain . . . essential evidence[; that] this evidence is necessary to oppose [Defendant's] motion[;] and . . . the instant lawsuit is in the early stages of litigation[.]" (Pl.'s Appl. for Continuance, Decl. of Hubbard 2:19-21.) Specifically, Plaintiff's counsel declares:
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.
Id. ¶ 3. Defendant counters "Plaintiff has had ample time to conduct discovery and has no genuine excuse." (Def.'s Opp'n to Continuance 2:2.)
To obtain a continuance under Rule 56(d) the movants "must show (1) that they have set forth in affidavit form the specific facts that they hope to elicit from further discovery, (2) that the facts sought exist, and (3) that these sought-after facts are 'essential' to resist the summary judgment motion." State of Cal., on Behalf of California Dept. of Toxic Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Moreover, the movants "must make clear what information is sought and how it would preclude summary judgment." Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998) (citation and internal quotation marks omitted). "[D]enial of a Rule 56([d]) application is proper where it is clear that the evidence sought is almost certainly nonexistent or is the object of pure speculation."
Campbell, 138 F.3d at 779-80 (citation and internal quotation marks omitted). In addition,"[t]he burden is on the party seeking additional discovery to proffer sufficient facts to" satisfy the requirements of Rule 56(d). Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1996) (citation omitted). Further, a Rule 56(d) motion will not be granted "if [the party requesting a continuance] fails to pursue discovery diligently before summary judgment." Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986). Here, the evidence Plaintiff seeks "is almost certainly . . the object of pure speculation." Campbell, 138 F.3d at 780. Plaintiff's continuance request is based solely on his assumption and/or "mere hope" that Plaintiff will discover evidence sufficient to defeat Defendant's motion. Neely v. St. Paul Fire & Marine Ins. Co., 584 F.2d 341, 344 (9th Cir. 1978). Therefore, Plaintiff has not shown he is entitled to a continuance for the purpose of conducting this discovery.
Further, Plaintiff has not shown that he diligently pursued the discovery he seeks to conduct. Plaintiff filed his Complaint in this action on May 29, 2010. (ECF No. 1.) The parties filed a joint status report on October 4, 2010, in which Defendant stated:
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.
(ECF No. 49, 4:8-13 (emphasis added).) Defendant filed its dismissal and summary judgment motion on March 4, 2011; this filing occurred nine months after Plaintiff filed his Complaint and five months after Defendant warned Plaintiff that it would seek to terminate the action by motion. (ECF No. 71.) Plaintiff fails to provide a sufficient explanation as to why he "fail[ed] to pursue discovery diligently before summary judgment" in light of having been duly alerted that he would have to face the pending motion. Brae Transp., Inc., 790 F.2d at 1443.
Therefore, Plaintiff's request for a Rule 56(d) continuance is DENIED.
II. MOTION FOR SUMMARY JUDGMENT
Defendant argues in its summary judgment motion that "the factual record demonstrates that New Balance has fully complied with the applicable federal, state and local obligations to ensure accessibility to all its customers." (Mot. 4:20-21.) Plaintiff alleges in his FAC the following claims against Defendant, all of which are based on Plaintiff's allegations that he encountered architectural barriers at the New Balance Store which prevented him "from enjoying full and equal access at the New Balance" Store: 1) Violations of the ADA, 42 U.S.C. §§ 12182, 12183; 2) Violation of the Disabled Persons Act ("DPA"), Section 54 of the California Civil Code; 3) Violation of the Unruh Civil Rights Act ("Unruh Act"), Section 51.5 of the California Civil Code; and 4) Denial of Full and Equal Access to Public Facilities in violation of Section 19955(a) of the California Health and Safety Code. (FAC ¶¶ 25, 126-162.) A. LEGAL STANDARD "The . . . party [seeking summary judgment] initially bears the burden of proving the absence of a genuine issue of material fact."
In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010). If this burden is sustained, "the burden then shifts to the non-moving party to designate specific facts demonstrating the existence of genuine issues for trial." Id. "[W]e must draw all reasonable inferences supported by the evidence in favor of the non-moving party . . . ." Guidroz-Brault v. Missouri Pacific R. Co., 254 F.3d 825, 827 (9th Cir. 2001). However, "[t]o defeat a summary judgment motion . . the non-moving party may not rest upon the mere allegations . . . in the pleadings. The non-moving party must establish the existence of a genuine factual dispute on the basis of admissible evidence; bare allegations without evidentiary support are insufficient to survive summary judgment." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1033 n.14 (9th Cir. 2008) (citation and internal quotation marks omitted).
Local Rule 260(b) requires that "[a]ny party opposing a motion for summary judgment . . . [must] reproduce the itemized facts in the [moving party's] Statement of Undisputed Facts and admit those facts that are undisputed and deny those that are disputed[.]" E.D. Cal. R. 260(b). A party failing to specifically "challenge the facts identified in the [movant's] statement of undisputed facts, . . . is deemed to have admitted the validity of the facts contained in the [movant's] statement." Beard v. Banks, 548 U.S. 521, 527 (2006) (finding that a party opposing summary judgment who "fail[s] [to] specifically challenge the facts identified in the [movant's] statement of undisputed facts . . is deemed to have admitted the validity of [those] facts[.]"). Since Plaintiff failed to oppose Defendant's statement of undisputed facts as required by Local Rule 260(b), the facts in Defendant's statement of undisputed facts "are admitted to exist without controversy." Farrakhan v. Gregoire, 590 F.3d 989, 1002 (9th Cir. 2010) ("If the moving party's statement of facts are not controverted in this manner, 'the Court may assume that the facts as claimed by the moving party are admitted to exist without controversy.'").
B. AMERICANS WITH DISABILITIES ACT CLAIMS
Defendant argues its summary judgment motion must be granted on Plaintiff's ADA claims since "[P]aintiff does not have adequate admissible evidence to show that any barriers actually exist on [the New Balance Store's] premises." (Mot. 6:15-17.) Defendant presents evidence, including photographs, directly refuting the factual allegations in Plaintiff's FAC, which is demonstrated in the following table.
Plaintiff's Defendant's ADA Accessibility Allegations against Established Undisputed Guidelines 28 C.F.R. Defendant in FAC, all Facts Part 36, Appendix A of which are set forth in ¶ 25
"There is no ISA "The international "Facilities . . . mounted at the symbol of required to be entrance [of the New accessibility ("ISA") identified as Balance facility] that is mounted at the accessible . . . would indicate to front entrance, next shall use the Plaintiff whether or to the right hand international symbol not the Facility is door, on the front of accessibility. intended to be window." (SUF ¶ 15.) The symbol shall be accessible . . . ." displayed as shown in Fig. 43(a) and (b)." Section 4.30.7(1).
"Many of the aisles "The aisles of the NB "All . . . aisles. . through the store are Store are maintained . that are part of blocked by merchandise with sufficient space an accessible route and are thus too and merchandise is shall comply with narrow making them positioned to ensure 4.3." 4.3.1. "The difficult-if not the aisles do not minimum clear width impossible-for block access to of an accessible Plaintiff to use . . . disabled persons." route shall be 36 in ." (SUF ¶ 16.) (915 mm) . . . ."
"The dressing room "The dressing room . . "Every accessible bench is not 24 inches . benches are 24 dressing room shall wide by 48 inches inches wide by 48 have a 24 in by 48 long." inches long." (SUF ¶ in (610 mm by 1220
17.) mm) bench fixed to the wall along the longer dimension." Section 4.35.4
"The clothing hook on "The clothing hooks in "If the clear floor the dressing room door the dressing rooms are space only allows is too high, thus positioned at 44 forward approach to Plaintiff is unable to inches from the an object, the use it . . . ." ground." (SUF ¶ 18.) maximum high forward reach allowed shall be 48 in (1220 mm) (see Fig. 5 and Fig. 5(a))." Section 4.2.5.
"The pay point machine "There is no angle to "In . . . retail is too high and/or at access the pay point stores where too steep of an angle machine." (SUF ¶ 21.) counters have cash making it difficult-if "The credit card/debit registers and are not impossible-for card swipe machine is provided for sales Plaintiff to use . . . a separate component or distribution of ." from the Point Of Sale goods or services to ("POS") computer the public, at least system." Id. ¶ 22. one of each type "The register counters shall have a portion are 34 inches tall . . of the counter which . ." Id. ¶ 24. 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 "The clear floor space The lowered counter displayed, there is around the register "shall be on an insufficient clear counters measures more accessible route floor space at the than 30 inches by 48 complying with 4.3." check out counter. inches." (SUF ¶ 19.) Section 7.2(1). Without sufficient "The spaces between "The minimum clear clear space, Plaintiff the gondola fixtures width of an has difficulty access and the walls are at accessible route the counter and thus, least 36 inches wide." shall be 36 in (915 the services provided Id. ¶ 25. mm) . . . ." Section there . . . ." "There is at least 36 4.3.3. inches of clearance space in between apparel four-way displays." Id. ¶ 26.
"The check out counter "This is untrue." (ECF The register counter is too high with no No. 74 ¶ 10.) "The "shall have a portion lowered to register counters are portion of the accommodate a patron 34 inches tall, well counter which is at in a wheelchair . . . over 36 inches long, least 36 in (915mm) and/or [t]he check out and 24 inches [deep]." in length with a counter is cluttered (SUF ¶ 24.) maximum height of 36 with merchandise and in (915 mm) above thus lacks the the finish floor." required depth." Section 7.2(1).
For the stated reasons, Defendant's summary judgment motion on Plaintiff's ADA claims is GRANTED.
C. STATE CLAIMS
Defendant also seeks summary judgment on Plaintiff's state claims, arguing those claims fail "for the same reasons the [Plaintiff] cannot sustain a claim under the ADA." (Mot. 7:20-21.)
Plaintiff has not controverted the undisputed facts showing he has not been subject to architectural or other barriers proscribed by the state laws on which his state claims are based. Therefore, Defendant's summary judgment motion on Plaintiff's state claims is GRANTED.
III. FINAL JUDGMENT UNDER RULE 54(b)
In light of the above rulings, the Court sua sponte reaches the issue of whether to enter final judgment in favor of Defendant under Rule 54(b). Since "there is no just reason for delay[,]" THE CLERK OF THE COURT SHALL ENTER JUDGMENT IN FAVOR OF DEFENDANT NEW BALANCE ATHLETIC SHOE, INC. Fed.R.Civ.Proc. 54(b). This action shall not be closed.