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Paterson v. SK5 Wolverine Crossing LLC

United States District Court, D. Utah

May 1, 2018

KRISTINE PATERSON, an individual, EDWARD SPREEN, an individual, MCCALL SCADLOCK, an individual, UTAH ASSOCIATION OF THE DEAF, and organization, and DOES I-X, Plaintiffs,
SK5 WOLVERINE CROSSING, LLC, an organization, ANDREA AUSTIN, an individual, JORDAN HANKS, an individual, and DOES I-X. Defendants.


          Ted Stewart Judge

         This matter is before the Court on Defendants' Motion to Strike Opposition to Defendants' Motion for Summary Judgment, Defendants' Motion for Summary Judgment, and Plaintiffs' Amended Motion to Amend Complaint.[1] For the following reasons, the Court will grant Defendants' Motions and deny Plaintiffs' Motion.

         I. BACKGROUND

         Kristine Paterson, Edward Spreen, and McCall Scadlock are individuals who are deaf and bilingual in English and American Sign Language. They, along with the Utah Association of the Deaf (collectively, “Plaintiffs”), brought this action under Title III of the Americans with Disabilities Act (“ADA”) against SK5 Wolverine Crossing and two individuals involved in managing Wolverine Crossing (collectively, “Defendants”). The Complaint asserts four causes of action under the ADA.

         On January 31, 2018, Defendants filed a Motion for Summary Judgment, asserting that Wolverine Crossing is a residential housing community and not a “place of public accommodation, ” and, therefore, does not fall under Title III of the ADA. Forty-four days later, on March 16, 2018, Plaintiffs filed their response to Defendants' Motion for Summary Judgment (the “Response”) without seeking leave to file later than the twenty-eight day deadline set out in the Court's local rules. As a result of this untimely filing, Defendants request that the Court strike Plaintiffs' Response, “deem the facts in Defendants' Motion as admitted, and grant Defendants' Motion for Summary Judgment.”[2] Plaintiffs also filed a Motion to Amend Complaint and an Amended Motion to Amend Complaint between the filing of the Motion for Summary Judgment and the Response. The Court will consider all of these Motions together.


         A. Defendants' Motion to Strike

          “A memorandum opposing motions filed pursuant to Fed.R.Civ.P. 12(b), 12(c), and 56 must be filed within twenty-eight (28) days after service of the motion or within such time as allowed by the court.”[3] “Failure to respond timely to a motion for summary judgment may result in the court's granting the motion without further notice, provided the moving party has established that it is entitled to judgment as a matter of law.”[4]

         Plaintiffs filed their Response 16 days after the deadline, and have not requested additional time to file from the Court. Strict application of the local rules results in a violation by Plaintiffs as they filed their response outside of the 28-day deadline. Plaintiffs had the option of seeking additional time to file under Federal Rule of Civil Procedure 6(b)(1), [5] but Plaintiffs failed to seek an extension under this rule. Plaintiffs are, therefore, in violation of the local filing rules, and the Court may find that the facts in Plaintiffs' Motion for Summary Judgment should be considered undisputed and grant the Motion “without further notice, provided the moving party has established that it is entitled to judgment as a matter of law.”[6] However, in light of the potentially severe implications of striking the Response, the Court will consider whether Plaintiffs' untimeliness was a result of excusable neglect.

         “Under Rule 6(b), the court may, in its discretion, accept late filings because the failure to file on time was excusable neglect. . . . [T]he demonstration of excusable neglect is the greatest ‘substantive obstacle' under Rule 6(b).”[7] Elaborating “on the meaning of ‘excusable neglect, ' in the context of the courts' discretionary powers to excuse certain failures, ” the Supreme Court held that, “‘Congress plainly contemplated that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.'”[8] In making this determination, the Court must consider all of the relevant circumstances surrounding Plaintiffs' untimely filing, “including ‘the danger of prejudice to the [non-moving party], the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.'”[9]Finally, “[c]ontrol over the circumstances of the delay is ‘the most important single . . . factor . . . in determining whether neglect is excusable.'”[10]

         Plaintiffs argue that their delay was the result of a reasonable mistake and out of their control. Allegedly, “counsel for Plaintiffs was experiencing a significant amount of chaos in his life, including being in the midst of preparation for the California Bar Examination.”[11] This preparation included hiring a Bar preparation specialist and staying on a very tight schedule, which “made it exceedingly difficult to deal with the demands that the instant matter placed upon him.”[12]

         While these arguments show that Plaintiffs' counsel was busy, a busy schedule does not establish excusable neglect.[13] Further, Plaintiffs' counsel was able to file two motions to amend the Complaint, that were a combined fifty pages, before filing the Response.

         Plaintiffs also argue that, “[a]s further indication of Counsel for Plaintiffs exercising his due diligence . . . Counsel for Plaintiffs did a thorough review of Federal Rule of Civil Procedure 56(f), which contains language that a response to a summary judgment motion can be given within a reasonable time.”[14] Plaintiffs' counsel alleges that he and his paralegal then contacted the court clerk “and it was confirmed that the response to the Motion for Summary Judgment could be given within a reasonable time and that no hard and fast deadline was given for the timing of the opposition to the Motion for Summary Judgment.”[15] Finally, Plaintiffs argue that this proves that no prejudice has occurred and “the actions of Counsel for Plaintiffs (as well as any oversight regarding deadlines) were made in good faith based on a reasonable mistake based on the language of Federal Rule of Civil Procedure 56(f) as well as representations made by the clerk of this Court.”[16]

         First, Rule 56(f), entitled “Judgment Independent of the Motion, ” provides rules governing the actions a court may take in the absence of a motion for summary judgment and requires the court to give “notice and a reasonable time to respond” before proceeding. This rule simply has no application here. The clear intent of this section, along with the clearly outlined time requirement in DUCivR 7-1(b)(3)(A), leaves no excuse for Plaintiffs' reliance on this rule in determining when to file the Response. Moreover, ignorance of the rules and mistakes construing the rules generally do not constitute excusable neglect.[17]

         Second, counsel's claim that a court clerk represented to him that there was no hard and fast deadline for filing the Response is an unsupported attempt by counsel to shift the blame to someone else, and the Court strongly doubts its veracity. In the unlikely chance this did occur, it was likely the result of a misunderstanding between counsel and the clerk, and counsel's alleged reliance on the clerk's representation would still offer no excuse for counsel's failure to read the local rules.[18]

         Finally, Plaintiffs argue that they “should not be punished for their attorney's reasonable mistake that was made in good faith and has caused no prejudice.”[19] The Tenth Circuit has held, however, that “it is a fundamental principle of our representational legal system . . . that a party acts through chosen counsel, whose carelessness or ignorance, therefore, generally does not constitute grounds for relief for his client.”[20] For example, “a party is not ‘punished' for commencing an action beyond the applicable statute of limitations, filing a late notice of appeal, or asserting an issue on appeal not preserved below; the action, appeal, or argument is simply deemed unavailable . . . .”[21]

         The same is true here. The Court's enforcement of its rules governing filing times is not a punishment, but a consequence of a failure to comply with the rules or seek other remedies for untimeliness.[22] And, while striking the Response may ultimately result in the granting of Defendants' Motion for Summary Judgment, “deeming facts admitted is not the same as imposing the harsh and conclusive sanction of an adverse judgment on the noncomplying party.”[23]

         Therefore, because Plaintiffs filed the Response over two weeks after the deadline, the reasons for delay were within Plaintiffs' full control, and Plaintiffs still have not sought an extension of time under Rule 6(b), the Court finds that Plaintiffs failed to show excusable neglect and strikes Plaintiffs' Response. The Court will now address Defendants' Motion for Summary Judgment.

         B. Defendants' Motion for Summary Judgment

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”[24] In considering whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury could return a verdict for the nonmoving party in the face of all the evidence presented.[25] The Court is required to construe all facts and reasonable inferences in the light most favorable to the nonmoving party.[26] When a party fails to file a response within the time set out in the local rules, “[t]he court should accept as true all material facts asserted and properly supported in the summary judgment motion. But only if those facts entitle the moving party to judgment as a matter of law should the court grant summary judgment.”[27] “To summarize, a party's failure to file a response to a summary judgment motion is not, by itself, a sufficient basis on which to enter judgment against the party. The district court must make the additional determination that judgment for the moving party is ‘appropriate' under Rule 56.”[28]

         Defendants' list the following as undisputed material facts: (1) all of Plaintiffs' causes of action arise under the ADA; (2) 28 C.F.R. § 36.104 defines “public accommodations” under the ADA; and (3) Wolverine Crossing is a residential apartment complex. The Court shall accept these facts as true as supported by the relevant statutes and the following facts to be addressed as the Court determines whether Defendants are entitled to judgment as a matter of law.

         The ADA states that “[n]o 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.”[29]

Place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories-
(1) Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this part, a facility is a “place of lodging” if it is-
(i) An inn, hotel, or motel; or
(ii) A facility that-
(A) Provides guest rooms for sleeping for stays that primarily are short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and
(B) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following-
(1) On- or off-site management and reservations service;
(2) Rooms available on a walk-up or call-in basis;
(3) Availability of housekeeping or linen service; and
(4) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check-in, and without a prior lease or security deposit.[30]

         Defendants argue that Wolverine Crossing, as a residential apartment complex, does not fall under the ADA definition of a “public place of accommodation.” Thus, since Defendants are comprised of Wolverine Crossing and its managers, none of Plaintiffs' claims, which are all brought under Title III of ...

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