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Ford v. Jalisco Market, LLC

United States District Court, D. Utah, Central Division

October 12, 2017

CAROLYN FORD, Plaintiff,
v.
JALISCO MARKET, LLC, a Utah Limited Liability Company, MARK A. WILSON, an individual, and JOHN DOES, I-X, XYZ Corporations and/or Limited Liability Companies I-X. Defendants.

          MEMORANDUM DECISION AND ORDER DENYING OBJECTION TO MAGISTRATE'S ORDER, DENYING DEFENDANTS' RENEWED MOTION TO QUASH, AND GRANTING MOTION TO DISMISS

          CLARK WADDOUPS, UNITED STATES DISTRICT COURT JUDGE

         Before the court are Jalisco Market, LLC and Mark A. Wilsons' (“Defendants”) Motion to Dismiss for Mootness, or in the Alternative to Dismiss the Second, Third and Fourth Causes of Action (“Motion to Dismiss”) (ECF No. 26.), and Plaintiff's Objection to Magistrate's Order Denying Defendants' Renewed Motion to Quash (“Objection to Motion to Quash”). (ECF No. 55.) For the reasons set forth below, the Court DENIES the Objection to Motion to Quash and GRANTS the Motion to Dismiss with prejudice.

         FACTUAL AND PROCEDURAL HISTORY

         On June 14, 2016, Plaintiff Carolyn Ford (“Ford”) brought this action against Defendants for alleged violations of Title III of the Americans with Disabilities Act (“ADA”). (ECF No. 2.) Ford's Complaint contains four causes of action: 1) injunction for violation of Title III of the ADA; 2) declaratory relief; 3) nuisance under §78B-6-1101 of the Utah Code; and 4) unjust enrichment. Ford alleges she “visited the Premises on several occasions, using her wheel chair, and has encountered barriers to access.” (Id. at ¶ 23.) Ford's claims regarding barriers to access refer only to the exterior of the premises. Specifically, Ford avers the following six architectural barriers to access:

1) no van accessible space, access aisle or sign as required by ADA Accessibility Guidelines (“ADAAG”);
2) no space includes a sign located sixty (60) inches above the ground surface so that it is not obscured by a vehicle parked in the space;
3) no space includes a sign with the International Symbol of Accessibility as required by ADAAG;
4) handicapped spaces have surface areas with slopes exceeding the 1:48 (2010) and 1:50 (1991) maximum allowed ADAAG (with slopes as great as 4.8%);
5) the ramps leading to the entrances exceed the maximum allowable slope of 1:12 under ADAAG (with slopes as high as 15.3%); and
6) there is no accessible route to the entrance of the business in violation of ADAAG.
7) any accessible route would have to cross barriers to access that would violate ADAAG requirements regarding permissible changes in level.

(ECF No. 2 at ¶¶ 25-31.) Ford only references the interior of the premises through the supposition she “believes the Premises have additional violations of the ADAAG including, but not limited to, accessibility problems with the bathrooms.” (Id. at ¶ 37.)

         On August 18, 2016, a Scheduling Order was entered; the Amended Pleadings deadline was October 4, 2016, and the expert report deadline for the party bearing the burden of proof was January 6, 2017. (ECF No. 21.) On September 7, 2016, Defendants issued their first written discovery request, asking Ford, among other things, to “Identify specifically any and all items which in your opinion remain to be undertaken to make [Defendants'] property ADA compliant and which are readily achievable, as defined by law.” See Defendants' First Set of Discovery Requests to Plaintiff, Interrogatory No. 3. (ECF No. 32 at 6-10.)

         Also, on September 7, 2016, Ford issued a Request for Entry Upon Land for Inspection pursuant to Rule 34(a)(2) (“Rule 34 Request”). (Dkt. No. 23-1.) The Rule 34 Request sought entry to the Defendants' Premises on October 26, 2016 at 10:00 a.m. and “shall be conducted by Plaintiff's counsel.” (ECF No. 23-1.)

         On September 21, 2016, Defendants' counsel sent a “meet and confer letter” concerning the Rule 34 Request. (ECF No. 23-2.) In the letter, Defendants' counsel expressed concern about Ford's counsel conducting the inspection, stating that is “the role of an expert.” (Id.) Likewise, Defendants' counsel clarified the market only has one bathroom, and attached “photos of the interior aisles of the store as well as photos of the bathroom available to the customers of the Market.” (ECF No. 23-2 at 5-10.)

         A week later, on September 27, 2017, Defendants filed a Motion to Quash. (ECF No. 23.) Defendants opposed the Rule 34 Request on the following grounds: 1) by conducting the inspection Plaintiff's counsel would become a witness and thus need to be disqualified; 2) Plaintiff's counsel was not qualified as an expert to conduct the inspection; 3) Ford's Complaint did not identify any ADA violations in the interior of the Premises; 4) in the Doran v. 7-Eleven case cited by Ford, the inspection was conducted by an expert; and 5) Ford's counsel had visited the market on September 22, 2017, and chose not to enter the interior of the premises. (ECF No. 23-2 at 12.)

         On October 4, 2016, the deadline to amend the pleadings, Ford did not amend her Complaint to include any allegations pertaining to ADA violations in the interior of the premises. On that date, however, Defendants filed a Motion to Dismiss, arguing they had remedied the ADA violations alleged in Ford's Complaint. (ECF No. 26.) The motion was accompanied by declarations. The declarations, however, lacked the perjury language required by 28 U.S.C. § 1746 and are thus inadmissible.

         Defendants' Motion to Dismiss also contained the following averments:

Defendants have been named in one of 72 cases brought by Carolyn Ford and her attorney son since April 2016. Nearly every Judge and Magistrate Judge for the District of Utah currently presides over at least one of their lawsuits. . . Of the 19 lawsuits filed in June, this case and 17 others were against businesses and property owners operating within the same five blocks on State Street in American Fork. The premises at issue also ascend in order by address, as if the attorneys for Ford simply drove down State Street searching for potential businesses to sue.

(ECF No. 26 at 4-5.)

         Four days later, on October 8, 2016, Ford responded to Defendants' first discovery request. Ford's response to Interrogatory No. 3 was as follows: “Plaintiff objects to Interrogatory No. 3 as it asks her to offer an expert opinion.” (ECF No. 32 at 17.) In the discovery responses, Ford also admitted she has not visited the Defendants' property since the commencement of the instant litigation. (Id.)

         On October 14, 2016, Defendants' counsel sent another “meet and confer” letter to Ford's counsel. (ECF No. 32 at 22.) This letter states in relevant part:

Interrogatory No. 3 did not ask for an expert opinion, but rather the opinion of Mrs. Ford. She claims in her complaint . . . that she “believes” there are problems in the interior of the Market. If there are problems of which she has knowledge, we need to know. . . We are entitled to know all the ADA violations she is claiming. You have admitted she has not been in the Market since filing the complaint. Therefore, any problems she “believes” are present must have been there on the several prior visits she is claiming to the inside of the Market. We are entitled to know what she is claiming.

(Id.) On October 18, 2016, Judge Wells denied Defendants' Motion to Quash. (ECF No. 29.) Judge Wells' Order explained:

the scope of said inspection shall be limited to the allegations in the Complaint, and thus, can include inspecting any ‘accessibility problems with the bathrooms' and ‘architectural barriers to access, ' and therefore can include parts of both the exterior and interior of the premises.

(ECF No. 29.) Judge Wells' Order, however, advised Ford's counsel as follows:

Plaintiff's counsel are cautioned, that while the Court will permit counsel to conduct said inspection, such actions may have ramifications on this case in the future. Plaintiff's counsel are not qualified experts, and while they are permitted to undertake this inspection, they should consider whether they will become necessary witnesses at trial, whether proper foundation can be laid for the measurements, photographs, or other information they glean at the inspection, and whether the findings can be independently authenticated.

(Id.)

         On October 27, 2016, Ford provided a Supplemental Response to Plaintiff's First Set of Discovery Requests. (ECF No. 32 at 25-34.) In response to Interrogatory No. 3, Ford stated:

Plaintiff restates her objection to Interrogatory No. 3 to the extent it asks her to offer an expert opinion as to what violations of the ADA exist on the Defendants' Premises. Plaintiff objects to Defendants' attempt to compel her to identify all ADA violations remaining on Defendants' Premises before Plaintiff and her counsel have had the opportunity to conduct the Rule 34 inspection of the Premises authorized by Magistrate Wells in her Order of October 18, 2016[.]

(Id. at 30-31.) Thereafter, on November 1, 2016, Ford's counsel filed an Ex-Parte Motion for Extension of Time to Respond to the Motion to Dismiss. (ECF No. 30.) The basis for seeking an extension was that the response to the Motion to Dismiss was now due on the same day as the scheduled inspection, Friday, November 4, 2016. (Id. at 2-4.) According to Ford's counsel, without the inspection Ford could not confirm what barriers to access alleged in the complaint had been remedied. (Id.)

         Defendants opposed an extension, arguing Ford should respond to the motion with respect to claims two, three and four. (ECF No. 32.) Defendants also expressed concerns that Ford would improperly use the inspection as a “witch hunt” to seek ADA violations exceeding the scope of the Complaint. (Id.) To alleviate that fear, Judge Wells again directed Ford to answer Interrogatory No. 3 prior to allowing the Rule 34 inspection to proceed. Judge Wells specifically required Ford to identify “what ‘accessibility problems with bathrooms' and what ‘architectural barriers to access' . . . remain on the premises.” See Order on Motion for Extension of Time to Respond to Motion to Dismiss. (ECF No. 35.)

         Ford again supplemented her response to Interrogatory No. 3. This time, however, Ford's supplementation consisted of a generic list of 29 potential ADA violations that included “toilet, ” “handrails, ” and “toilet compartments.” (ECF No. 36-1.) The photographs of the market's bathroom attached to the “meet and confer letter” sent by Defense counsel on September 21, 2016, clearly show a toilet, two handrails and toilet compartments. (ECF No. 23-2.) Defendants thus renewed their motion to quash on November 4, 2016. (ECF No. 36.)

         Judge Wells heard arguments on the motion for extension of time on January 18, 2017. (ECF No. 49.) She deferred ruling on the motion for 14 days, and ordered Ford to provide a complete and correct response to Interrogatory No. 3, explaining as follows:

Here, however, the Plaintiff's Complaint and response to Defendants' Interrogatory No. 3 fail to convey Plaintiff's actual knowledge of the barriers she has actually encountered on her alleged visits to the market. Instead, the Complaint and Plaintiff's response to Defendants' Interrogatory No. 3, are notably vague and lack identification of specific barriers inside Defendants' premises that Plaintiff came across during her alleged visits to the premises. The only detailed allegations in Plaintiff's Complaint are those relating to the parking lot, which were measured by Plaintiff's son, who is also her attorney. Even those allegations come across calculated and don't really describe Plaintiff's experience using Defendants' parking lot and what actual challenges she encountered getting to and from the market. The general vagueness of Plaintiff's responses call into question whether she has actually suffered an injury-in-fact.
Contrary to counsel's concerns expressed at the hearing, the Court does not expect Plaintiff to be an expert in ADA compliance, but the Court does expect the Plaintiff to be able to give a genuine explanation, in lay-person terms, about what barriers she actually encountered when she visited the market. Once the barriers she encountered are sufficiently identified and standing is established, an inspection, if approved by the Court, can take place to see if those barriers are in fact violations of the ADA.

(ECF No. 48 at 3-4.) Ford proceeded to provide a Third Supplemental Response to Plaintiff's First Set of Discovery Requests--the fourth response to Interrogatory No. 3. This time Ford responded to Interrogatory No. 3 as follows:

The aisles were difficult to navigate with a walker due to product displays and product placement. For instance, a long meat counter was innaccessable[sic] to Plaintiff due to products being stacked in front of the counter. Carts are located far away from the entrance next to a furnace located in the main shopping area and Plaintiff had to walk through the store to retrieve a cart. . . . The seating area was difficult to navigate with her walker and she struggled to sit and rise after sitting. The counters for ordering food and for grocery checkout were also difficult for her to lean against while making order/payment and she didn't believe she could have navigated the areas sitting in her walker or in her wheelchair.

(ECF No. 51-1 at 8-9.) Judge Wells reviewed Ford's response and the parties' additional briefing related to Defendants' Renewed Motion to Quash, and again denied Defendants' Motion to Quash on February 21, 2017. (ECF No. 54.) This time, however, Judge Wells limited the inspection to the “allegations in the Complaint, which are further limited by Plaintiff's response to Defendants' Interrogatory No. 3.” (Id. at 3.) Accordingly, she allowed Ford to conduct an inspection in the “store aisles, the meat counter area, the area between the entrance and shopping carts, the seating area near the hot food service, the ordering counter at the hot food service, and the checkout counter for groceries.” (Id. at 3-4.)

         On March 7, 2017, Ford filed Plaintiff's Objection to Magistrate's Order Denying Defendant's Renewed Motion to Quash (“Objection to Motion to Quash”), asserting she is entitled to inspect the full premises, not just the areas enumerated in Judge Wells' Order, pursuant to Steger v. Franco, 228 F.3d 889 (8th Cir. 2000) and Doran v. 7-Eleven, 524 F.3d 1034 (9th Cir. 2008). (ECF No. 55.) Ford's counsel, her son, inspected the premises on March 15, 2017, without filing a motion to expedite the Objection to Motion to Quash. (Id. at 6.)

         On April 26, 2017, the court issued an Order to Show Cause. (ECF No. 60.) In the Order to Show Cause the court noted that in reviewing Ford's Complaint “it is not apparent” the Defendants are subject to the ADAAG. (Id.) Ford filed a response with the following statements: 1) Ford is “not a tester;” 2) Defendants as property owners are subject to the ADA; 3) Defendants' premises violate both the 1991 and 2010 Standards of the ADAAG; and 4) Defendants must comply with the 2010 Standards pursuant to 28 C.F.R. 36.406 (a)(3). (ECF No. 61.)

         On May 19, 2017, Defendants filed a Response to Order to Show Cause asserting that since the ADA violations alleged in Ford's Complaint had been rectified the court should dismiss the action for lack of standing. (ECF No. 62.) Defendants attached county records showing the premises were constructed in 1965, as well as six photographs and an invoice from 801-Asphalt for $6, 530.00 to support their position that they had rectified the ADA violations. (ECF Nos. 62-1 through 62-4.) Neither the photographs nor the invoice, however, were authenticated.

         The court held a hearing on the Motion to Dismiss and the Objection to Motion to Quash on May 26, 2017. (ECF No. 63.) The court concluded “it needs the record to be supplemented with admissible and authenticated material as to whether defendants are in compliance with the relevant standards and/or whether compliance is readily achievable including the financial factors required by ADA law.” (Id.)

         On June 29, 2017, Defendants filed a Submission of ADA Compliance (“ADA Submission”), including four declarations. (ECF No. 64.) The Declaration of Guillermo ...


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