United States District Court, D. Utah, Central Division
ORDER AND MEMORANDUM DECISION
CAMPBELL, U.S. DISTRICT COURT JUDGE.
claims under the Americans with Disability Act (ADA) and
state common law, Plaintiff Carolyn Ford alleges that
Defendant Good Earth Natural Foods denied her access to its
grocery store because the access ramp and the sign posts
designating disabled parking spaces do not meet ADA
specifications. Good Earth filed two motions: (1) a motion
for judgment on the pleadings regarding the state claims,
(2) a motion for summary judgment on the ADA
court grants Good Earth's motion for summary judgment on
Ms. Ford's ADA claims for the reasons set forth below.
But the court declines to exercise supplemental jurisdiction
on the remaining state law claims. Accordingly, the court
dismisses the motion for judgment on the pleadings as moot.
Ford, who alleges that she is disabled, has recently sued
over one hundred local businesses. She typically follows four
steps in each of these suits. First, Ms. Ford visits a
business's parking lot. While in the parking lot, she
notices that the disabled parking signs are not posted at
ADA-specified heights. And she finds, as in all of her
filings, that she cannot enter the building because the slope
of the access ramp is too steep.
Adam Ford, her attorney,  visits the parking lots of these
businesses and takes measurements of the height at which the
signs designating accessible parking spaces are posted. Also,
he measures the steepness of the access ramp. He apparently
measures along the wing of the ramp where it meets the
sidewalk. In other words, his measurements appear to show the
steepest slope possible between the parking lot surface and
the top of the ramp, rather than measuring along the surface
of the parking lot from which the ramp begins to rise. He
takes pictures of these measurements.
he drafts a complaint alleging that (1) the parking lot has
“slopes exceeding the maximum allowed” by the
ADA, (2) the business has denied Ms. Ford physical access to
the building because the slope of the disabled access ramps
does not meet ADA specifications, and (3) “removal of
the architectural barriers to access is readily achievable
and could be completed by Defendants without significant
difficulty or expense.” (Pl.'s Compl. 6, ECF No.
2.) He then files the complaint.
Ms. Ford threatens the business with an injunction. It
appears that most businesses settle these suits rather than
face expensive litigation. In exchange for collecting
attorney's fees, Ms. Ford drops all of her claims.
Earth did not settle. Instead, it challenged Ms. Ford's
complaint. Ms. Ford, in response, moved the court for a Rule
34 inspection allowing her to find ADA violations
within the premises. (See Mot. to Compel,
ECF No. 19.) The chief magistrate judge denied that motion,
reasoning that even though Ms. Ford “shops at the store
. . . ‘regularly, '” she “does not
allege that she encountered any accessibility issues in the
interior of [Good Earth]. Bare speculation is not enough for
the court to order a Rule 34 inspection.” (Order 1, ECF
Ford objected to the chief magistrate judge's order
because the order limited her to pursuing only the
“allegations in her complaint.” (See
Pl.'s Obj. to Magistrate's Order Denying Pl.'s
Motion to Compel, ECF 29.) The court overruled her objection.
(See Corrected Order and Mem. Decision Denying
Objection, ECF 38.)
several discovery deadlines tolled. The last day to serve
discovery closed January 13, 2017. Fact discovery closed
February 17, 2017. The time for presenting expert witnesses
and reports closed March 17, 2017. (See Scheduling
Order 3, ECF No. 17.) Good Earth moved for summary judgment
on June 19, 2017.
judgment is appropriate “if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c)(1)(B); see
also Justice v. Crown Cork & Seal Co., Inc., 527 F.3d
1080, 1085 (10th Cir. 2008). Examining that evidence, the
court must construe all facts and reasonable inferences in
the light most favorable to the nonmoving party.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Seegmiller v. LaVerkin
City, 528 F.3d 762, 766 (10th Cir. 2008).
judgment should be granted “against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“The mere existence of a scintilla of evidence in
support of plaintiff's position will be insufficient [to
overcome a motion for summary judgment]; there must be
evidence upon which the jury could reasonably find for the
plaintiff.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986).
If the party seeking summary judgment carries its initial
burden, the nonmovant that would bear the burden of
persuasion at trial may not simply rest upon its pleadings;
the burden shifts to the nonmovant to go beyond the pleadings
and set forth specific facts that would be admissible in
evidence in the event of trial from which a rational trier of
fact could find for the nonmovant. To accomplish this, the
facts must be identified by reference to affidavits,
deposition transcripts, or specific exhibits incorporated
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671
(10th Cir. 1998) (emphasis added) (internal quotation marks
and citations omitted).
III of the ADA
III of the ADA defines an individual as
“disabled” if that individual: “(A) [has] a
physical or mental impairment that substantially limits one
or more major life activities of such individual; (B) [has] a
record of such impairment; or (C) [is] being regarded as
having such an impairment.” 42 U.S.C. § 12102(1).
Standing, walking, and lifting are examples of major life
activities. Id. § 12102(2).
ADA, moreover, provides remedies for a disabled person
against places of public accommodation: “no individual
shall be discriminated against on the basis of disability in
the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any
place of public accommodation by any person who owns, leases
(or leases to), or operates a place of public
accommodation.” Id. § 12182(a).
“Discrimination” specifically includes
“failure to remove architectural barriers . . . in
existing facilities . . . where such removal is readily
achievable.” Id. §
12182(b)(2)(A)(iv) (emphasis added).
defines “readily achievable” as “easily
accomplishable and able to be carried out without much
difficulty or expense.” Id. § 12181(9).
The ADA further sets out several factors to be considered in
determining whether removal of architectural barriers is
(1) nature and cost of the action; (2) overall financial
resources of the facility or facilities involved; (3) number
of persons employed at such facility; (4) effect on expenses
and resources; (5) impact of such action upon the operation
of the facility; (6) overall financial resources of the
covered entity; (7) overall size of the business of a covered
entity with respect to the number of its employees; (8) the
number, type, and location of its facilities; (9) type of
operation or operations of the covered entity, including
composition, structure, and functions of the workforce of