The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT; MOTIONS TO STRIKE
Columbia Sportswear USA Corp. ("Columbia") and Eddie Bauer LLC ("Eddie Bauer") each seek summary judgment on the claims in Plaintiff's First Amended Complaint ("FAC"). (ECF Nos. 125, 126.) Plaintiff opposes each motion and also seeks summary judgment on the claims against each Defendant. (ECF Nos. 131, 133.) Plaintiff seeks injunctive relief under Title III of the Americans with Disabilities Act ("ADA"), and injunctive relief and damages under California law.
Plaintiff has not clearly specified any state law claim which is different from his federal ADA claims. Rather, Plaintiff generally references Title 24 of the California Code of Regulations without showing that a particular provision of Title 24 applies to his claims. In light of the manner in which Plaintiff pleaded and argued his state claims, the Court will first decide whether Plaintiff prevails on any ADA injunctive relief claim.
Plaintiff is a paraplegic and therefore uses a wheelchair for mobility. (Pl.'s Statement of Undisputed Facts No. 2.) Plaintiff sued twenty-one retailers in the Vacaville Premium Outlet Mall in Vacaville, California for discrimination against him based on his mobility impairment disability. Plaintiff voluntarily dismissed eighteen defendants during the course of this litigation; the amended caption reflects these dismissals. Defendant New Balance Athletic Shoe, Inc., one of the sued twenty-one retailers, was granted summary judgment on Plaintiff's claims on June 16, 2011, and final judgment was entered in its favor under Federal Rule of Civil Procedure ("Rule") 54(b); Plaintiff appealed the ruling on June 20, 2011.
Each Defendant also seeks an order striking evidence Plaintiff submits in support of his arguments. However, the merits of these motions to strike need not be reached since the controverted evidence does not create a triable issue of fact on Plaintiff's ADA claims. Therefore, the motions to strike are denied as moot.
Further, Plaintiff requests a continuance of Eddie Bauer's summary judgment motion under Federal Rule of Civil Procedure 56(d), arguing he needs additional time "to inspect and photograph the remaining barriers" in Eddie Bauer's store. (Pl.'s Opp'n and Cross-Mot. against Eddie Bauer 18:7-9.) Eddie Bauer responds that "Plaintiff cannot reasonably argue that nearly two years [after Plaintiff initiated this action] he has still not had the opportunity to gather sufficient facts to oppose [its summary judgment] motion." (Eddie Bauer's Opp'n to Pl.'s Mot. 2:3-5.)
Whether a Rule 56(d) request should be granted depends in part on whether the party requesting a continuance "pursue[d] discovery diligently before summary judgment." Brae Transp., Inc. v. Coopers & Lybrand, 790 F.2d 1439, 1443 (9th Cir. 1986).
Plaintiff filed his Complaint in this action on May 29, 2010. The parties filed a joint status report on October 4, 2010, in which each Defendant stated:
Plaintiff's claims are meritless. Defendants Eddie Bauer and Columbia do not believe that plaintiff has any good faith basis for this litigation. Defendants Eddie Bauer and Columbia intend to file a motion for summary judgment within the next several months.
Plaintiff has not shown that he has been diligent in pursuing the discovery he seeks to conduct, in light of the notice he received from Eddie Bauer fourteen months ago that he would have to litigate the pending summary judgment motion. Therefore, Plaintiff's request for a Rule 56(d) continuance is denied.
When deciding cross-motions for summary judgment, each motion is evaluated on its own merits, "giving the nonmoving party in each instance the benefit of all reasonable inferences." ACLU v. City of Las Vegas, 466 F.3d 784, 790-791 (9th Cir. 2006) (internal citations and quotations omitted). A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case." Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of material fact is "genuine" when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The moving party's burden "may be met by 'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000) (internal quotation and citation omitted).
If the movant satisfies its initial burden, "the nonmoving party must set forth, by affidavit or as otherwise provided in [Federal] Rule [of Civil Procedure] 56, specific facts showing that there is a genuine issue for trial." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citation and internal quotation marks omitted). The nonmoving party "cannot rest upon the mere allegations or denials of the adverse party's pleading but must instead produce evidence that sets forth specific facts showing that there is a genuine issue for trial." Estate of Tucker ex rel. Tucker v. Interscope Records, Inc., 515 F.3d 1019, 1030 (9th Cir. 2008) (citation and internal quotation marks omitted).
Further, Local Rule 260(b) requires: Any party opposing a motion for summary judgment or summary adjudication [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, including with each denial a citation to the particular portions of any pleading, affidavit, deposition, interrogatory answer, admission, or other document relied upon in support of that denial.
If the non-movant does not "specifically . . . [controvert duly supported] facts identified in the [movant's] statement of undisputed facts," the non-movant "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).
Because a district court has no independent duty to scour the record in search of a genuine issue of triable fact, and may rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment, . . . the district court . . . [is] under no obligation to undertake a cumbersome review of the record on the [nonmoving party's] behalf.
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1017 (9th Cir. 2010) (citation and internal quotation marks omitted).