ORDER GRANTING IN PART AND DENYING IN PART RENEWED MOTION FOR SUMMARY JUDGMENT ORDER DENYING MOTION TO STRIKE AS MOOT
THIS CAUSE is before the Court upon Defendant's Renewed Motion for Summary Judgment as to Standing [DE 46], Plaintiffs' Response [DE 48] and Defendant's Reply [DE 51], as well as Defendant's Motion to Strike Plaintiffs' Notice of Filing Signed Inspection Reports [DE 54]. The court has carefully considered all of these filings and the record in this case, and is otherwise fully advised in the premises.
Plaintiffs filed this action alleging various violations of the Americans with Disabilities Act ("ADA") in many of Defendant's retail locations within the State of Florida. The Complaint alleged specific ADA violations in 18 locations within the Southern District of Florida, but also listed approximately 300 other locations within Florida as containing similar violations. Complaint, ¶¶ 10, 13. Plaintiffs later moved to amend the Complaint to include 20 additional stores in the section of the proposed Amended Complaint that contained the more specific allegations found during the Rule 34 inspections. Amended Complaint, ¶ 13 [DE 41]. The Court granted this motion over Defendant's opposition. Order of November 23, 2011 [DE 40].*fn1 After discovery, the parties each moved for summary judgment. On January 4, 2012, this Court denied both sides' motions [DE 45]. Pursuant to the Court's Order of November 23, Defendant has filed a renewed motion for summary judgment as to Plaintiffs' standing.
A. Summary Judgment Standard
The Court may grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To discharge this burden, the movant must point out to the Court that "there is an absence of evidence to support the non-moving party's case." Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production shifts and the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). According to the plain language of Federal Rule of Civil Procedure 56(e), "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact [the Court may] grant summary judgment if the motion and supporting materials -- including the facts considered undisputed -- show that the movant is entitled to it." Fed. R. Civ. P. 56(e)(3).
At the summary judgment stage, the judge's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this determination, the Court must decide which issues are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.
Defendant contends that Plaintiffs lack standing because they have "no evidence to substantiate their contention that they personally encountered any barriers to access at any of the 304 locations identified in their Complaint." Defendant's Motion at 2. In order to have standing to bring a lawsuit, an ADA plaintiff must suffer injury in fact from the alleged forms of discrimination. Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357, 1365 (S.D. Fla. 2001). In order to suffer injury in fact, a plaintiff must have actual knowledge of the discrimination, either through personal experience or actual notice that the discrimination occurs in a defendant's facility. Id. "A plaintiff may have 'actual notice' under this provision by either having 'encountered discrimination or [having] learned of the alleged violations through expert findings or personal observation.'" Resnick v. Magical Cruise Co., 148 F. Supp. 2d 1298, 1302 (M.D. Fla. 2001) (quoting Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1081 (D. Haw. 2000)) (alteration in original). In addition to the injury in fact, "a plaintiff lacks standing to seek injunctive relief unless he alleges facts giving rise to an inference that he will suffer future discrimination by the defendant." Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). Therefore, "the question of whether the plaintiff has constitutional standing to pursue a Title III claim depends on whether the plaintiff is likely to return to the defendant's place of public accommodation in the immediate future." Rasmussen v. Cent. Fla. Council Boy Scouts of Am., Inc., 2009 WL 320855, at *7 (M.D. Fla. Feb. 9, 2009). "[C]courts have generally focused on four factors when deciding the likelihood that a plaintiff will return to the defendant's facility and suffer a repeat injury: (1) the proximity of the place of public accommodation to plaintiff's residence, (2) plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plan to return, and (4) the plaintiff's frequency of travel near defendant." Norkunas v. Seahorse NB, LLC, 720 F. Supp. 2d 1313, 1316 (M.D. Fla. 2010) (internal quotation marks omitted); see Rasmussen, 2009 WL 320855, at *7 ("Courts consider such factors as the plaintiff's proximity to the facility, the plaintiff's past use of the facility, and the certainty and sincerity of the plaintiff's intent to visit the facility in the future.").
Plaintiffs rebut Defendant's argument that no standing has been proven by submitting portions of the deposition testimony of Plaintiff William Norkunas [DE 48-1] and a supplemental affidavit of William Norkunas [DE 49-1/50-1]. Plaintiffs also rely upon the deposition testimony of Peter DiPalma [DE 47-4] and the previously submitted affidavits in opposition to Defendant's motion for summary judgment. Affidavit of Peter DiPalma [DE 39-1] and William Norkunas [DE 39-2]. However, as Defendant argues, this evidence shows that Plaintiffs personally experienced discrimination in only some of the Starbucks locations listed in the Amended Complaint. In addition, Plaintiffs have not met their burden to show that they are entitled to injunctive relief as the vast majority of the locations are not located near where Plaintiffs live, nor have Plaintiffs visited those locations in the past.
1. Personal Knowledge and Chain Locations
Defendant argues that Plaintiffs have failed to provide sufficient evidence of actual knowledge of physical barriers at many of its locations listed in the Amended Complaint. As discussed in the Court's prior Order Denying Motions for Summary Judgment [DE 45], Plaintiffs contend that ADA case law does not require a plaintiff to prove actual knowledge of violations as to other locations of the same national chain, particularly where alleged discriminatory policies apply to all locations. Plaintiffs again rely upon certain United States District Court cases from California and Hawaii for this proposition. See Celano v. Marriott Int'l, Inc., Case No. C-05-4004-PJH, 2008 WL 239306 (N. D. Cal. January 28, 2008); Castaneda v. Burger King Corp., 597 F.Supp.2d 1035 (N.D. Cal. 2009); and Parr v. Kapahulu Investments, Inc., Case No. Civ. 98-00329-FIY, 2000 WL 687646 (D. Hawaii May 16, 2000). Defendant responds to the chain location argument by noting that at least one district court has declined to follow the decisions relied upon by Plaintiffs. In Equal Rights Center v. Abercrombie & Fitch Co., 767 F.Supp. 2d 510, 527-28 (D. Md. 2010), the court noted that the Castaneda decision appeared to be based upon a class action claim, and that the Celano decision appeared to be based upon those plaintiffs contacting numerous golf courses by telephone to reserve a single rider cart that none of the Marriott courses kept on site.
Defendant also cites to Gutherman v. 7-Eleven, Inc., 278 F.Supp. 2d 1374, 1378 (S.D. Fla. 2003), in which the District Court relied upon the standing test described above in an action against multiple locations of a retail chain. It is ...