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Ford v. H Unit Five, Inc.

United States District Court, D. Utah, Central Division

September 25, 2017

CAROLYN FORD, an individual, Plaintiff,
v.
H UNIT FIVE, INC., a Utah Corporation d/b/a GOOD EARTH NATURAL FOODS; T. HUMPHREY FAMILY LIMITED PARTNERSHIP, a Utah limited partnership; and John Does I-X, XYZ corporations and /or limited liability companies I-X, Defendants.

          ORDER AND MEMORANDUM DECISION

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE.

         Asserting claims under the Americans with Disability Act (ADA) and state common law, Plaintiff Carolyn Ford alleges that Defendant Good Earth Natural Foods[1] 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] and (2) a motion for summary judgment on the ADA claims.[3]

         The 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.

         PROCEDURAL BACKGROUND

         Ms. 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.

         Second, Adam Ford, her attorney, [4] 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.

         Third, 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.

         Fourth, 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.

         Good Earth did not settle. Instead, it challenged Ms. Ford's complaint. Ms. Ford, in response, moved the court for a Rule 34 inspection[5] 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 No. 28.)

         Ms. 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.)

         Meanwhile, 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.

         STANDARD OF REVIEW

         Summary Judgment Standard

         Summary 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).

         Summary 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 therein.

Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (emphasis added) (internal quotation marks and citations omitted).

         Title III of the ADA

         Title 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).

         The 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).

         The ADA 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 readily achievable:

(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 ...

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