AVERN COHN, District Judge.
This a public accommodation disability discrimination case. Plaintiff Efrem Walker, is suing defendant 9912 East Grand River Associates, LP claiming that defendant's facility fails to comply with Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, et. seq.
Before the Court is plaintiff's motion for summary judgment and defendant's cross motion for summary judgment. Plaintiff's motion is based on an expert report which describes several alleged ADA violations at defendant's facility. Defendant's motion is based on (1) plaintiff's lack of standing and (2) failure to exhaust. Defendant also contends that even if plaintiff has standing and the record shows ADA violations, there is a genuine issue of material facts as to whether the removal of the barriers is readily achievable such that plaintiff's motion should be denied.
For the reasons that follow, defendant's motion will be granted, plaintiff's motion will be denied and the case will be dismissed.
The material facts as gleaned from the record follow.
Defendant owns a property known as Charrington Square, which is a place of public accommodation under the ADA. Charrington Square is located in Brighton, Michigan.
At some point in 2011, plaintiff was driven by an unidentified male friend to Brighton, which is about 40 miles from plaintiff's home. Plaintiff testified he did not know where they were going or what they were going to do. Plaintiff also testified that he had never been to Brighton before and does not know the route from his home to Charrington Square.
When they arrived at Charrington Square, plaintiff testified that his friend parked in a handicap parking space and they went to get something to eat and. Plaintiff, however, could not recall the name of the store where he parked. He further testified that he ate at an "oriental" restaurant, but could not recall the name.
Regarding barriers, plaintiff testified that he encountered "cracks in the parking lot" and "the ramp was kind of steep." Plaintiff, however, testified that he was able to travel across the cracks and the ramp. Plaintiff says he purchased an egg roll inside the restaurant. He also testified that he recalled the tables were too close together and did not remember any other barriers.
Plaintiff also testified that they went to a "pie shop" at Charrington Square. However, plaintiff could not describe the location of the pie shop relative to the restaurant. He also testified that he looked at the pies, but did not buy one because they did not look appealing to him.
Plaintiff and his friend left Charrington Square and went home. Plaintiff has not returned to Charrington Square or Brighton since the visit he describes.
Plaintiff admitted that there are several Chinese food restaurants that he has eaten at in Pontiac and Auburn Hills. Plaintiff also testified that these restaurants are located within minutes of his home.
Although defendant moved under Fed. R. Civ. P. 56, the more appropriate rule for its standing argument is Fed. R. Civ. P. 12. Rule 12(b)(1) provides for a motion to dismiss for lack of jurisdiction and applies when a party argues a lack of standing. As an Article III court, this Court only has the power to resolve actual cases and controversies. U.S. Const. art. III, § 2;
Defendant's argument regarding the sufficiency of plaintiff's proofs falls under Rule 56. Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party."
The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not enough; "the mere existence of a scintilla of evidence" in support of the nonmoving party is not sufficient to show a genuine issue of material fact.
Before addressing whether plaintiff has standing or other arguments, the Court must consider how to deal with the conflict between plaintiff's deposition testimony and as reflected in (1) an "Errata Sheet" he submitted regarding his deposition testimony (Doc. 27-4) and (2) an affidavit he signed after his deposition testimony (Doc. 27-2).
As to the errata sheet, Fed. R. Civ. P. 30(e) governs a deponent's right to review and make changes to a deposition transcript. The rule states as follows:
Fed. R. Civ. P. 30(e).
Defendant argues that the errata sheet is improper because it contradicts plaintiff's answers at deposition. Several courts of appeals have offered differing views on whether Rule 30(e) permits a deponent to change deposition testimony where the changes contradict the original answers. A discussion of these differing views can be found in
Applying this standard to the errata sheet, it is clear that plaintiff is attempting to make material changes to his deposition. He is not attempting to correct typographical or transcription errors. The following examples demonstrate this:
Plaintiff now attempts to change his answer to "I have been in Brighton several times before, but cannot recall with specificity when those times were."
Plaintiff also attempts to change his deposition testimony regarding the alleged architectural barriers he encountered at Charrington Square.
Plaintiff now wants to change his answer to "I remember thee were no access aisles at the parking place."
Plaintiff also attempts to change his answer regarding using the bathroom at the restaurant:
Plaintiff now wants to say "Yes."
Plaintiff now says his answer should be "I remember the toilet paper being too high and the pipes in under the sink being bare."
Simply stated, plaintiff's errata sheet attempts to make material changes to his deposition testimony far beyond what is allowed in this circuit, much less under Rule 30(e) in general. As one court put it,
Regarding plaintiff's affidavit, defendant says that it cannot be considered because it contradicts or otherwise attempts to change his deposition testimony. "A party may not create a factual issue by filing an affidavit, after a motion for summary judgment has been made, which contradicts her earlier deposition testimony."
Here, plaintiff's affidavit contradicts his deposition testimony in several respects. For instance, in the affidavit plaintiff sets forth architectural barriers that he encountered on defendant's property which he did not testify about, including that there was no seating at the pie place and barriers at the bathroom at the oriental restaurant. Moreover, while plaintiff testified at deposition that there was no reason for him to go back to Charrington Square, he now states in his affidavit that it would be "futile" to return there until the property is ADA compliant. As such, the Court will not consider the affidavit in determining whether plaintiff has standing.
The party seeking federal court action has the burden of establishing standing.
To establish standing, a plaintiff must demonstrate: 1) he has suffered an "injury in fact," that is, "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; 2) a causal connection between the injury and the challenged conduct, that is, "the injury has to be fairly . . . traceable to the challenged action of the defendant, and not . . . the result [of] the independent action of some third party not before the court"; and 3) the injury's redressability by a favorable judicial decision.
Where, as here, a plaintiff seeks injunctive relief, he must demonstrate that there is a non-speculative, imminent threat of repeated injury to establish that there is an injury in fact.
"Congress enacted the ADA in 1990 to remedy widespread discrimination against individuals."
42 U.S.C. § 12188(a). It is not disputed that Charrington Square is a place of public accommodation as defined by Title III. Private litigants suing under Title III are entitled only to injunctive and declaratory relief.
In the ADA context, courts have held that a plaintiff must establish a likelihood of returning to the defendant's business to demonstrate a real threat of future harm.
To this end, courts have considered: "(1) the proximity of defendant's business to plaintiff's residence, (2) the plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near defendant."
Defendant argues that plaintiff does not have standing in light of these factors. The Court agrees.
Considering the first factor regarding the proximity of Charrington Square to plaintiff's residence, it is not likely that plaintiff will return to defendant's business. Plaintiff resides over 40 miles away. He testified he only went to Brighton once in 2011 because his friend took him there, and he did not know where they were going or how they got there. Plaintiff's patronage of Charrington Square was limited to buying an egg roll at one business and going inside another. As to his plans to return, plaintiff testified that he had no reason to return. He testified he has no friends, family, business or social reason that would bring him to Brighton. Plaintiff even acknowledged that there are restaurants closer to his home where he can purchase an egg roll. Plaintiff offered no evidence of frequent travel near Charrington Square, much less the city of Brighton. Rather, it is clear that plaintiff's contact with the area was limited to one visit at sometime in 2011. This is insufficient. Because the balance of the factors in this case weigh against a finding that plaintiff is likely to return to defendant's property, plaintiff lacks standing to bring this suit.
Moreover as defendant points out, plaintiff has failed to establish actual knowledge of any barriers he encountered to show he suffered an actionable injury. Plaintiff testified he was able to navigate defendant's property. At best, he said that he saw tables which were too close together, cracks in the sidewalk, and an undisclosed ramp that was "kind of steep." Moreover, the expert report, for all its details in alleged violations, does not identify where plaintiff parked or his route while at Charrington Square. On this record, plaintiff has failed to show the minimum standing requirement by showing a barrier he actually encountered.
Defendant also argues that even if plaintiff had established standing, plaintiff is not entitled to summary judgment because there is a genuine issue of material fact as to whether the removal of barriers described in the expert report is readily achievable. Given the determination that plaintiff lacks standing, it is not necessary to address this argument. The Court also declines to address defendant's exhaustion argument, but notes that it rejected a similar argument in
While the Court is mindful of an ADA challenge under Article III, plaintiff has failed on the record to establish that he has the requisite standing to challenge the ADA compliance of defendant's property.
Accordingly, defendant's motion for summary judgment is GRANTED. Plaintiff's motion for summary judgment is DENIED. This case is DISMISSED.
SO ORDERED.
