CATHY ANN BENCIVENGO, District Judge.
This matter comes before the Court on Plaintiff Brenda Moore's Motion for Summary Judgment [Doc. No. 111]. The motion has been briefed and the Court held oral argument on March 19, 2019. For the reasons explained below, the Court denies the motion and dismisses this action as moot.
Plaintiff filed her original pro se complaint in May 2015. Moore asserted claims against Defendants Greyhound Bus Lines, Inc. ("Greyhound") and U.S. Security Associates, Inc. ("U.S. Security"), for violation of the Rehabilitation Act, 29 U.S.C. § 794; violation of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131, et seq.; intentional infliction of emotional distress; negligent infliction of emotional distress; breach of contract; and "violation of the California Consumer Protection Act." [Doc. No. 1.]
On November 25, 2015, Plaintiff filed the First Amended Complaint ("FAC") for violation of Title III of the ADA, 42 U.S.C. § 12181; violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq; violation of the California Consumer Legal Remedies Law Act; "deceptive advertisements unfair business practices;" and "negligent intentional infliction of emotion distress." [Doc. No. 34.] On April 22, 2016, this Court granted defendants' motions to dismiss, ordering that Plaintiff may file a motion, no later than May 23, 2016, with the Court requesting leave to file a second amended complaint. [Doc. No. 46.]
On May 19, 2016, Plaintiff filed her motion for leave to file a second amend complaint [Doc. No. 47] that was opposed by both defendants [Doc. Nos. 48, 49.] On August 24, 2016, this Court, finding that amending would be futile and prejudicial to defendants, denied Plaintiff's request for leave. [Doc. No. 50.] Plaintiff appealed this Court's decision to the Ninth Circuit. [Doc. No. 52.] The Court of Appeals held that Ms. Moore should be granted
On December 4, 2017, Plaintiff filed a Second Amended Complaint ("SAC") which she signed under penalty of perjury. [Doc. No. 60.] The SAC asserts a claim for violation of Title III of the ADA, 42 U.S.C. §§ 12181-89, for discrimination Plaintiff allegedly encountered during a bus journey she made from Oceanside, California to Fort Riley, Kansas in December 2014. [Doc. No. 60.] It is generally alleged in the SAC that Plaintiff, an individual with a disability, was denied boarding and de-boarding assistance on more than one occasion while stopped at a Greyhound Bus Station in Denver, Colorado. [Id.] The refusal to aid Ms. Moore resulted in her being separated from her travelling companion, left her unable to board a subsequent bus, and culminated in her being "forced out of the bus station" into the cold in a snowstorm where she suffered a concussion and frostbite. [See generally, Doc. No. 60.] The prayer for relief seeks an injunction, an award of compensatory damages, and the assessment of a civil penalty. [Id. at 15-16.]
On December 14, 2017, Defendant Greyhound filed a Motion to Strike Request for Monetary Damages as Set Forth in Second Amended Complaint and for a Mandatory Settlement Conference. [Doc. No. 61.] The Court granted the unopposed motion on the grounds that the compensatory damages and civil penalties requested by Plaintiff are unavailable to her as a private plaintiff under Title III of the ADA. [Doc. No. 68 at 3.] Ms. Moore's appeal of this ruling [Doc. Nos. 71, 74] was dismissed by the Court of Appeals for lack of jurisdiction. [Doc. No. 82.]
On June 5, 2018, Plaintiff submitted a filing that was construed by the Court as a request for reconsideration and a request for leave to amend. [Doc. No. 80.] On July 10, 2018, the Court denied Plaintiff's request to file a Third Amended Complaint to add a claim for violation of California Civil Code section 51(f) ("UNRUH") to the current action. [Doc. No. 93.] In response to the Court's order, Plaintiff filed an "Ex-Parte Application for Reconsideration of Interlocutory Order Pursuant to F.R.C.P. 54(b); Reconsider the Matter and Modify Amend, or Revoke the Prior Order F.R.C.P. 60(b)." [Doc. No. 94.] On August 14, 2018, this Court denied Plaintiff's request. [Doc. No. 103.] Ms. Moore's appeal of this ruling [Doc. No. 104] was dismissed by the Court of Appeals for lack of jurisdiction. [Doc. No.107.]
On December 4, 2018, Plaintiff filed a motion for summary judgment with a noticed hearing date of December 16, 2018. [Doc. No. 111 at 1-8.
Because the hearing date was incorrectly calculated, the Court issued a briefing schedule on December 6, 2018, setting Defendant's opposition due date as December 20, 2018, with Plaintiff having up to and including January 10, 2019 to file her reply. [Doc. No. 112.]
On December 20, 2018, Defendant filed its Response in Opposition [Doc. No. 113], along with: (1) Request for Judicial Notice [Doc. No. 114]
On January 29, 2019, the Court, wishing to make a determination based on the merits, issued an order requesting additional briefing on the summary judgment order because Defendant Greyhound's opposition is silent regarding the admissibility of the evidence presented in Ms. Moore's verified second amended complaint. [Doc. No. 119.] On February 6, 2019, Greyhound filed its supplemental briefing with the Court. [Doc. No. 122.] As of the date of this order, Plaintiff has not filed any further briefing related to the summary judgment motion.
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Entry of summary judgment is proper "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 moving party has the initial burden of "identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323. If the nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the moving party wins. Id.
In evaluating a motion for summary judgment, a court may only consider admissible evidence. See Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). A party may not create a triable issue of fact merely by presenting argument in its legal memoranda. See S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235 (9th Cir. 1982); see also Estrella v. Brandt, 682 F.2d 814, 891-20 (9th Cir. 1982) ("Legal memorandum and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid summary judgment.").
However, if a pro se plaintiff has signed his pleadings and or motions under penalty of perjury a district court is required to treat them as evidence for the purpose of summary judgment. See Lopez v. Country Ins. & Fin. Serv., 252 Fed. App'x 142, 144 n.2 (9th Cir. 2007); Lew v. Kona Hosp., 754 F.2d 1420, 1423 (9th Cir. 1985) (a verified complaint may be treated as an affidavit to the extent that the complaint is based on personal knowledge and sets forth facts admissible in evidence and to which the affiant is competent to testify.") (citing Runnels v. Rosendale, 499 F.32d 733, 734 n.1 (9th Cir. 1974)). See also Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (a court must consider as evidence in opposition to summary judgment all contentions "offered in motions and pleadings, where such contentions are based on personal knowledge and set forth facts that would be admissible in evidence, and where [the party appearing pro se] attested under penalty of perjury that the contents of the motions or pleadings are true and correct."); Schroeder v. McDonald, 55 F.3d 454, 460 n.10 (9th Cir. 1995) (pleading counts as "verified" if the drafter states under penalty of perjury that the contents are true and correct.)
The Court begins by noting that Plaintiff moves for summary judgment on both an ADA and UNRUH claim, but the only cause of action currently before the court is the Title III of the ADA claim pled in the SAC. Plaintiff's requests to add an UNRUH claim were denied by the Court, and Plaintiff's appeal of the denial was dismissed by the Ninth Circuit. See Doc. Nos. 93, 103, 107. Thus, despite Plaintiff's continued attempt to litigate an UNRUH claim, she may only seek summary judgment on her violation of Title III of the ADA claim.
To establish a violation of Title III of the ADA, a plaintiff must show that: (1) she is a qualified individual with a disability; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of her disability. 42 U.S.C. §§ 12182(a)-(b); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007).
Notwithstanding Defendant's objections, when ruling on this motion the Court has considered the portions of the verified SAC which Ms. Moore has personal knowledge of and sets forth facts admissible in evidence. Even taking into account the SAC, Ms. Moore has failed to meet the evidentiary burden required of her when moving for summary judgment and demonstrated that there are no material facts in dispute. Ms. Moore has personal knowledge to claim that she is a qualified individual with a disability under the ADA, and despite Greyhound's half-hearted attempt to argue to the contrary, it is undisputed that Greyhound is a public accommodation within the meaning of 42 U.S.C § 12181. However, Ms. Moore has not provided any facts or necessary evidence to support the third element of her claim — that she was denied public accommodations by the defendant because of her disability. For example, Ms. Moore lacks the personal knowledge to assert that the supervisors and security guards, who are the individuals she alleges denied her public accommodations, were employees of Greyhound. [See Doc. No. 60 at 5.] Ms. Moore's assertion that these individuals are employees of Greyhound is a legal conclusion and there are no facts nor evidence in the record to support this. Similarly, Ms. Moore lacks personal knowledge to assert that anyone at the Colorado bus depot who purportedly refused her boarding assistance knew of her disability and denied her boarding assistance on that basis. [See id. at 5, 7, and 11.] Again, this is a legal conclusion, unsupported by either facts or evidence in the record.
Moreover, within the documents filed as part of the motion for summary judgment Plaintiff has not identified for the Court portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, "which [she] believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Plaintiff included with her motion a Statement of Uncontroverted Facts [Doc. No. 111 at 12-14] wherein she purportedly identifies 11 undisputed material facts and cites and attaches as sources several her own pleadings, proposed orders, and the Court's earlier orders [Doc. No. 111 at 12-16, 21-92], but such documents are not evidence. See, e.g., U.S. v. Zermeno, 66 F.3d 1058, 1062, (9th Cir. 1995) (assertions made in pleadings are not considered evidence); Singh v. I.N.S., 213 F.3d 1050,1054 n.8 (9th Cir. 2000) ("statements in motions are not evidence and are therefore not entitled to evidentiary weight") (citing Matter of Ramirez-Sanchez, 17 I. & N. Dec. 503 (BIA 1980); S. Pac. Co. v. Conway, 115 F.2d 746, 750 (9th Cir. 1940) ("[T]he office of a pleading is to state ultimate facts and not evidence of such facts."). Finally, the affidavit offered by Plaintiff simply informs the dates on which defendant was served with copies of certain documents in this litigation [see Doc. No. 111 at 9-11], does not contain facts specific to the Title III claim and is, therefore, not relevant to adjudication of the summary judgment motion.
In short, all that is contained in the papers filed as a summary judgment motion are Plaintiff's conclusory, general statements with no supporting citations to evidence. See Allen v. City of Santa Monica, No. CV 11-10139-R (SH), 2013 WL 6731789 at *14 (C.D. Cal. Dec. 18, 2013) ("conclusory, general statements with no supporting citations to the evidence do not meet the initial burden on summary judgment."). And while the SAC is signed under penalty of perjury and therefore acts as an affidavit, Plaintiff has not identified what portions of it demonstrate that there are no genuine issues for trial and the facts contained within it do not support all of the necessary elements of the ADA claim. Because there is not sufficient evidence currently before the Court to ascertain that there are no genuine issues of material fact, Plaintiff's motion for summary judgment is
Within its papers Defendant Greyhound requests, the Court, pursuant to Federal Rule of Civil Procedure 56(f), enter summary judgment in its favor, on the grounds that the injunctive relief sought by Plaintiff is rendered moot by the explicit language of paragraph 7 of the Consent Decree it entered into with the Department of Justice in The United Stated of America v. Greyhound Lines, Inc. [Doc. Nos. 114-1.]
Rule 56(f) allows the Court to sua sponte grant summary judgment for a nonmovant, so long as "the losing party has reasonable notice that the sufficiency of his or her claim will be in issue." Norse v. City of Santa Cruz, 629 F.3d 966, 971 (9th Cir. 2010). The Ninth Circuit's guidance on Rule 56's notice requirements states, "[b]efore sua sponte summary judgment against a party is proper, that party must be given reasonable notice that the sufficiency of his or her claim will be in issue: Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment." Albino v. Baca, 747 F.3d 1162, 1176 (9th Cir. 2014) (internal quotation marks and citation omitted). Ms. Moore has been on notice that the sufficiency of her claim will be an issue [Doc. Nos. 113, 114, 114-1], the Court requested additional briefing on the summary judgment to which Greyhound submitted supplemental briefing [Doc. Nos. 119, 122], and held a hearing on the summary judgment motion, at which time Ms. Moore acknowledged the existing consent decree in the Delaware action, and did not dispute that she has a claim pending in accordance with that injunction. Accordingly, the Court concludes that Ms. Moore had sufficient notice that Greyhound would be challenging the sufficiency of her claim.
"The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Ruiz v. City of Santa Maria, 160 F.3d 543, 549 (9th Cir. 1998). The party asserting mootness bears the heavy burden of establishing that there is no effective relief that the court can provide. Forest Guardians v. Johanns, 450 F.3d 455, 461 (9th Cir. 2006). "An action `becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'" Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (2017) (quoting Chafin v. Chafin, 568 U.S. 165, 172)). "The question is not whether the precise relief sought at the time the case was filed is still available, but whether there can be any effective relief." Bayer, 861 F.3d at 862 (quoting McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015)). The only remedy available under the ADA is injunctive relief and injunctive relief claims are moot "if it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur." Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., 528 U.S.167, 189 (2000).
Here, the gravamen of Ms. Moore's complaint is that because of her disability she did not receive assistance from Greyhound employees boarding and deboarding a Greyhound bus, she did not receive help with her luggage, she was refused service, and was denied travel. [Doc. No. 60 at 5, 11.] Ms. Moore asserts that Greyhound failed to provide the full and equal enjoyment of its transportation services to passengers with disabilities by:
The SAC's prayer for relief requests the Court enjoin Greyhound, its officers, agents and employees from "engaging in discrimination against individuals with disabilities, and specifically from failing to comply with Title III of the ADA. [Doc. No. 60 at 15.] Further, Plaintiff asks the Court to order Defendant to comply with the requirements of Title III and revise its policies, practices and its implementing regulations. [Id. at 15.]
The consent decree that Greyhound entered into with the Department of Justice obligates Greyhound:
Upon careful examination of the alleged failures Plaintiff asserts she experienced in 2014 and the relief she seeks compared with the corrective behavior Greyhound obligated itself to undertake in 2016, the Court is unable to find any violation that is not covered by the consent decree and provides training to remedy all the behaviors Plaintiff complains of. As set forth above, the decree covers: providing boarding and deboarding assistance, including at intermediate and rest stops; giving luggage assistance and providing priority seating; allowing travel companions to render assistance; operating and maintenance of lifts and "kneeling" of buses; assisting passengers to use the lifts, if such assistance is required; providing reservation services; contains provisions regarding not rescheduling travel; and mandates that Greyhound personnel be given instruction on how to sensitively and appropriately interact with individuals with disabilities. At the hearing Greyhound represented to the Court it is compliant with the requirements of the consent decree — it has been three years since the decree was entered, Greyhound has been subject to regular compliance testing [see Doc. No. 114-1 at ¶ 25] and the United States is continuing to monitor Greyhound's adherence to the terms of the decree.
Thus, because of the training Greyhound employees have subsequently undergone as a result of the consent decree Greyhound entered into with the Department of Justice neither Ms. Moore, or any other passenger, is reasonably likely to be subjected to the conduct Ms. Moore complains of. See Ruiz, 160 F.3d at 549 (a claim for injunctive relief becomes moot once subsequent events have made clear the conduct alleged as the basis for the requested relief "could not reasonably be expected to recur."). Ms. Moore's protestations at the hearing that Greyhound will ignore the obligations of the consent decree is not sufficient to demonstrate a reasonable likelihood of future non-compliance. See Bayer, 861 F.3d at 865 ("absent any indicia of concreteness, a [plaintiff's] declaration is insufficient to support a finding that an actual or imminent injury exists") (citing Lujan v. Defenders of Wildlife, 504, U.S. 555, 564 (1992)). See also O'Neal v. City of Seattle, 66 F.3d 1064, 1066 ("Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.").
In sum, Greyhound is already complying with the requirements of Title III and has revised its policies, practices and its implementing regulations. Therefore, the Court is left with the inescapable conclusion that the 2016 consent decree
For the reasons set forth above, Plaintiff's motion for summary judgment [Doc. No. 111] is
It is
