DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this disability discrimination case is a motion for reconsideration filed by Defendants Board of Regents of the University System of Maryland ("the Board of Regents") and the University of Maryland College Park ("the University of Maryland") (collectively, "Defendants"). (ECF No. 83). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants' motion for reconsideration will be denied.
The facts and procedural history have been set forth in prior opinions and need not be repeated here. (See ECF Nos. 64 & 80). Plaintiffs, three deaf or hard of hearing individuals who attend sporting events at the University of Maryland, contend that Defendants failed to provide effective communication for deaf or hard of hearing patrons at Byrd Stadium and Comcast Center
Defendants moved for reconsideration on March 27, 2015. (ECF No. 83). Plaintiffs requested several extensions of time to pursue settlement, and ultimately filed an opposition on July 13, 2015 when settlement discussions apparently failed. (ECF No. 93). Defendants replied. (ECF No. 94).
As the parties acknowledge, because Defendants seek reconsideration of a non-final, interlocutory order, their motion is properly analyzed under Fed.R.Civ.P. 54(b). Rule 54(b) provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). In the United States Court of Appeals for the Fourth Circuit, the precise standard governing a motion for reconsideration of an interlocutory order is unclear. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir.1991). While the standards articulated in Rules 59(e) and 60(b) are not binding in an analysis of Rule 54(b) motions, Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.2003), courts frequently look to these standards for guidance in considering such motions. Akeva, LLC v. Adidas Am., Inc., 385 F.Supp.2d 559, 565-66 (M.D.N.C.2005).
Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft Foods, Inc., No. PJM-08-409, 2010 WL 3059344, at *1-2 (D.Md. Aug. 4, 2010) (applying this three-part test when evaluating a motion for reconsideration under Rule 54(b)). Importantly, a motion for reconsideration under Rule 54(b) may not be used merely to reiterate arguments previously rejected by the court. Beyond Sys., Inc., 2010 WL 3059344, at *2.
Defendants raise the following arguments in their motion for reconsideration: (1) Plaintiffs now lack standing to pursue equitable and declaratory relief regarding the stadiums; (2) the claims for equitable and declaratory relief as to the stadiums now are moot; (3) the demanded accommodation by Plaintiffs as to the stadiums poses an undue burden as a matter of law; (4) all of Plaintiffs' claims concerning the stadiums are barred by the statute of limitations; and (5) Plaintiffs waived all claims for monetary damages as to the website. (ECF No. 83-1).
Defendants represent that since the summary judgment briefing, the University has installed fully functional ribbon boards in both stadiums. (See ECF No. 83-2 ¶ 9, Kaplan Aff. ("The installation of the ribbon boards was completed at Byrd Stadium in August 2014, in time for the season's first home football game, and at the Xfinity Center in October 2014, in time for the season's first home basketball game.")). Joshua Kaplan, an Associate Athletic Director for Facilities, Operations, and Events at the University of Maryland College Park, submitted an affidavit, which states in relevant part:
(ECF No. 83-2 ¶¶ 10-11).
Defendants argue that Plaintiffs now lack standing to pursue equitable relief because, by installing the ribbon boards at both stadiums, the University "essentially [has] remedied the alleged discriminatory conditions of which the plaintiffs complained." (ECF No. 83-1, at 12). Defendants further contend that Plaintiffs are not entitled to injunctive or declaratory relief as to the stadiums because the changes sought recently have been implemented and Plaintiffs cannot show that
As an initial matter, the March 16 opinion did not even reach the issue of the propriety of the various forms of relief sought in the second amended complaint (e.g., compensatory damages and injunctive and declaratory relief) because liability could not be determined as a matter of law. The court stated: "With the denial of summary judgment, [ ] it is premature to address questions of damages or other remedies." (ECF No. 80, at 31). Second, Defendants in Feldman v. Pro Football, Inc., 579 F.Supp.2d 697 (D.Md.2008), raised a similar standing issue. Specifically, defendants in Feldman, a case involving alleged violations of Title III, argued that plaintiffs lacked standing because: "(1) Plaintiffs cannot establish an injury in fact because the alleged discrimination is no longer occurring and because there is no real and immediate threat that they will be discriminated against by Defendants in the future; and (2) Plaintiffs' allegations of prior injury cannot be redressed by this Court's grant of injunctive or declaratory relief because Defendants' actions have remedied any prior injury." Id. at 704-05. Judge Williams rejected defendants' standing argument and his rationale applies here:
Id. at 705-06.
Here, too, at the time Plaintiffs filed their complaint, they could not hear the aural content projected at Byrd Stadium and the Comcast Center and argued that the communication provided by a tablet or handheld device was not timely and did not ensure that deaf or hard of hearing fans have equal access to games. The cases that Defendants cite are factually dissimilar and inapplicable under these circumstances. For instance, in Proctor v. Prince George's Hosp. Center, 32 F.Supp.2d 830, 832 (D.Md.1998), plaintiff could not establish that he himself faced a real and immediate threat of future harm from defendant and not merely a conjectural or hypothetical threat. Plaintiff in Proctor relied on the fact that "conditions still exist[ed] at [Prince George's Hospital Center] that ma[de] it unlikely deaf patients [were] being provided with equal and effective communication." Id. at 832-33; see also Gregory v. Otac, Inc., 247 F.Supp.2d 764, 771 (2003) ("In opposing defendants' motion for summary judgment, plaintiff has not offered evidence establishing that he has visited the Restaurant in recent months, that he has not been able to use the ramp in place and that he has therefore been unable to gain safe access to the Restaurant because of the location of the ramp. It is apparent that plaintiff has not on this record shown that he will suffer future discrimination at the hands of the defendants in violation of the ADA."). That is not the situation here where Plaintiffs alleged in their complaint that they continue to frequent sporting events at the University and challenged the adequacy of the hand-held devices provided by Defendants. Accordingly, Defendants have not provided a basis to reconsider the March 16 opinion on standing grounds.
Next, Defendants argue that Plaintiffs' discrimination claims pertaining to the stadiums now are moot. (ECF No. 83-1, at 21). Plaintiffs counter that their claims for damages regarding the football stadium and basketball arena remain live regardless of the outcome of Defendants' motion for reconsideration, and for purposes of injunctive or declaratory relief, Defendants cannot prove mootness for two reasons: (1) Defendants may cease providing the captioning service at any time; and (2) a dispute exists regarding whether the captioning currently provided constitutes effective communication. (ECF No. 93, at 19).
"The requisite personal interest that must exist at the commencement of the litigation ... must continue throughout its existence." United States Parole Comm'n v. Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). A "case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome."
Defendants argue that there is no reasonable expectation that they will return to their prior conduct "because[ ] having made a multi-million dollar capital investment in technology to provide ribbon boards and captioning, the Defendants have no incentive or reason to undo that investment. Moreover, as public bodies answerable to the citizenry and the media, Defendants would have considerable explaining to do if, after making the large expenditure for this equipment, they arbitrarily decided to pull the plug on it." (ECF No. 83-1, at 24-25). As stated above, Mr. Kaplan submitted an affidavit attesting that the "University Athletic Department will not remove, deactivate, or significantly alter the ribbon boards ... or discontinue providing captioning on those ribbon boards, in the near or foreseeable future." (ECF No. 83-2 ¶ 5) (emphasis added). Plaintiffs counter that "[t]he possibility of the recurrence of a violation is a real possibility here given that Defendants could either cease scheduling the captioner to save money, and/or could then use the ribbon boards to generate additional advertising revenue." (ECF No. 93, at 20).
The analysis from Feldman, 419 Fed. Appx. at 387-88, applies here:
(emphases added).
Defendants also have not established that subsequent events "completely and irrevocably eradicated the effects of the alleged violation." Davis, 440 U.S. at 631, 99 S.Ct. 1379. The "new evidence" that Defendants have submitted regarding the installation of ribbon boards at both stadiums still does not enable the court to adjudicate Plaintiffs' failure to accommodate claims under the Rehabilitation Act and the ADA as a matter of law. The parties continue to dispute the adequacy of Defendants' proposed accommodation — installation of ribbon boards at the stadiums and provision of captioning through Home Team Captions — and whether such accommodations provide "effective communication" for deaf patrons. Defendants assert that the University installed the ribbon boards after engaging in on-site consultations with Plaintiffs and their representatives. (ECF No. 83-2 ¶ 7). Plaintiffs contend that any agreement from them regarding the sufficiency of the installation of ribbon boards and captioning happened in the context of settlement negotiations and "was contingent on other steps to be taken by Defendants. Those settlement talks failed." (ECF No. 93, at 23). Irrespective of any admissibility issues with statements made during the course of settlement, there is a genuine dispute of material fact concerning whether the provided accommodation ensures effective communication for deaf patrons at Byrd Stadium and the Comcast Center. Plaintiffs have submitted affidavits stating that the ribbon boards appear on one side of the football stadium only. With regard to the ribbon boards at Comcast Center, Plaintiffs aver that "[b]ecause of the size of the screens, the text had to move very quickly in order to keep up with the announcements. It moved so quickly that I had a hard time following it, and therefore did not find the captions to be effective at communicating information." (ECF No. 93-2, at 3, Markel Aff.). Accordingly, the second element of the Davis test also has not been satisfied and a live controversy exists.
Defendants also argue that putting aside any justiciability issues, they are entitled to summary judgment on the disability discrimination claims pertaining to the stadiums because "new evidence confirms the demanded accommodation posed an undue burden." (ECF No. 83-1, at 28). Defendants explain: "At the time of [the] original summary judgment briefing, the installation of the ribbon boards was still a future and therefore arguably uncertain event, but now the installation, and its actual cost, are established fact." (Id.). Defendants argue — much like they did during the course of summary judgment — that the $3.75 million incurred in connection with the purchase and installation of the captioning boards constitutes an undue hardship. (ECF No. 83-1, at 29-30; ECF No. 83-2 ¶ 8, Kaplan Aff.). Defendants further highlight that "[t]he cost to the University for Home Team Captions' Services is $325.00 per basketball game and $565.00 per football game. Captioning for post-game press conferences is an additional cost." (ECF No. 83-2 ¶ 11, Kaplan Aff.).
Defendants have the burden to establish the undue burden affirmative defense.
A Rule 54(b) motion may not be used to rehash previous arguments. Evidence presented by both parties concerning "undue hardship" was discussed in the March 16 opinion, and the court determined that "there is a genuine dispute of material fact as to whether providing `line of sight captioning,' regardless of when Defendants first received notice, would have constituted an undue burden and whether Defendants violated Title II of the ADA and Section 504 of the Rehabilitation Act by not implementing Plaintiffs' requested accommodation when the request was made." (ECF No. 80, at 24).
Defendants have not shown that the "additional evidence" warrants reconsideration of the March 16 opinion as to undue burden.
Citing to an unpublished decision from the Fourth Circuit issued on August 5, 2014 — Hill v. Hampstead Lester Morton Court Partners LP, 581 Fed.Appx. 178 (4th Cir.2014) — Defendants next argue that "the statute of limitations bars all claimed denials of requested accommodations and auxiliary aids and services in this case preceding September 24, 2010 (three years before the filing of this action), which form the vital core of Plaintiffs' case regarding the Stadiums." (ECF No. 83-1, at 32).
Defendants first raised statute of limitations in their motion to dismiss. The court issued a memorandum opinion on July 1, 2014, which explained, in relevant part:
(ECF No. 64, at 10-13) (emphases added). Accordingly, Defendants' motion to dismiss on statute of limitations grounds was denied. The opinion explained that Defendants have not shown as a matter of law that Plaintiffs' disability discrimination claims concerning Byrd Stadium and the Comcast Center are time-barred.
The analysis in Hill, 581 Fed.Appx. at 180-181, which involved a request for structural modifications, does not alter the previous conclusion that Defendants have not shown that the failure to accommodate claims as to the stadiums are time-barred. The Fourth Circuit explained:
Hill, 581 Fed.Appx. at 180-181. Notably, at no point did Defendants argue that all of the allegedly discriminatory acts fell outside the limitations period, and it is their burden to prove statute of limitations by a preponderance of the evidence. In any event, Plaintiffs do not appear to be seeking damages beyond the three-year time frame. (ECF No. 93, at 33 ("Nothing about the Fourth Circuit's opinion in Hill changes anything about the Court's prior holding and Order because Plaintiffs are not seeking damages for acts of discrimination that go back more than three years from the date of the filing of the Complaint on September 24, 2013.")).
Finally, Defendants argue again that Plaintiffs have expressly waived all claims for monetary damages in connection with their failure to accommodate claims as to the University's website. (ECF No. 83-1, at 34). It has already been acknowledged in two separate opinions that Plaintiffs do not seek monetary damages for alleged violations of the disability laws with respect to the athletic website. (See ECF No. 64, at 33 & ECF No. 80, at 31). Curiously, Defendants still maintain that they are entitled to "partial summary judgment as to all such formally abandoned claims." (ECF No. 83-1, at 34). It is not necessary to enter judgment on any claim for compensatory damages pertaining to the website because Plaintiffs are not seeking such damages here.
For the foregoing reasons, Defendants' motion for reconsideration will be denied. A separate order will follow.