United States District Court, S.D. Florida
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
L. ROSENBERG, UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court on Plaintiff's Motion
for Summary Judgment at docket entry 38. Defendant has filed
a “Response in Opposition and Cross-Motion for Summary
Judgment.” DE 45. The Court struck Defendant's
Cross-Motion for Summary Judgment as untimely because it was
filed well after the deadline for dispositive motions. DE 49.
The Court has considered Defendant's filing, however, as
a response to Plaintiff's Motion for Summary Judgment.
Plaintiff has filed a Reply. DE 48. The Court has carefully
considered these filings, the record, and is otherwise fully
advised in the premises. Because there are genuine disputes
of material fact in the record, Plaintiff's Motion for
Summary Judgment is DENIED.
result of a spinal injury caused by an automobile accident,
Plaintiff Patricia Kennedy is mobility impaired, uses a
wheelchair, and is disabled within the meaning of the
American with Disabilities Act, 42 U.S.C. § 12181,
et seq. (“ADA”). DE 39 at ¶ 1.
Plaintiff considers herself to be a “tester”-she
visits various places of public accommodation to assess
compliance with the ADA. Id. at ¶ 3.
January 14, 2017, Plaintiff visited a Chevron service station
owned and operated by Defendant Omega Gas & Oil, LLC.
Id. at ¶¶ 4, 5. The property is located at
1974 South Congress Avenue, West Palm Beach, Florida.
Id. On January 27, 2017, she filed this suit,
alleging that she was denied access to the Chevron service
station because of her disability and seeking injunctive
relief pursuant to the ADA. See DE 1.
Complaint alleges Defendant is operating the Chevron service
station in a discriminatory manner and identifies various ADA
violations, including: an obstructed handicap parking space;
an unsecured floor mat at the entranceway; restroom amenities
mounted outside of acceptable reach ranges; proper grab bars;
an improperly mounted flush control; non-compliant door
hardware; encroachments on required clear floor space in the
restroom; a non-compliant pedestal sink; and non-compliant
faucets. See DE 1.
has moved for summary judgment, arguing that she is entitled
to judgment as a matter of law. Defendant's Response in
Opposition contests Plaintiff's standing-specifically,
whether she has concrete and specific plans to revisit the
Chevron service station. Defendant also asserts that the case
is moot in light of intervening alterations to the property.
SUMMARY JUDGMENT STANDARD
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.”
Fed.R.Civ.P. 56(a). The existence of a factual dispute is not
by itself sufficient grounds to defeat a motion for summary
judgment; rather, “the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986). A dispute is genuine if “a reasonable
trier of fact could return judgment for the non-moving
party.” Miccosukee Tribe of Indians of Fla. v.
United States, 516 F.3d 1235, 1243 (11th Cir. 2008)
(citing Anderson, 477 U.S. at 247-48). A fact is
material if “it would affect the outcome of the suit
under the governing law.” Id. (citing
Anderson, 477 U.S. at 247-48).
deciding a summary judgment motion, the Court views the facts
in the light most favorable to the non-moving party and draws
all reasonable inferences in that party's favor. See
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
The Court does not weigh conflicting evidence. See Skop
v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir.
2007). Thus, upon discovering a genuine dispute of material
fact, the Court must deny summary judgment. See id.
moving party bears the initial burden of showing the absence
of a genuine dispute of material fact. See Shiver v.
Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the
moving party satisfies this burden, “the nonmoving
party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.'”
Ray v. Equifax Info. Servs., LLC, 327 F. App'x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “[t]he non-moving party must make
a sufficient showing on each essential element of the case
for which he has the burden of proof.” Id.
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986)). Accordingly, the non-moving party must produce
evidence, going beyond the pleadings, to show that a
reasonable jury could find in favor of that party. See
Shiver, 549 F.3d at 1343.
argues she is entitled to summary judgment. Defendant
responds that Plaintiff lacks Article III standing to pursue
her claims and that her claims are moot. The Court analyzes
(a) Defendant's arguments on standing and (b) whether
there are any disputes of material fact that preclude entry
of summary judgment below, however, the Court first addresses
Defendant's arguments on mootness. Defendant's
Cross-Motion for Summary Judgment (premised upon the doctrine
of mootness) was stricken as untimely by the Court. As a
result, Defendant cannot be granted any affirmative relief
and this Court construes Plaintiff's Cross-Motion and
Response as simply a response to Plaintiff's Motion for
Summary Judgment and, as such, a partial denial of
Plaintiff's facts in support of her Motion for Summary
Judgment. Thus, Plaintiff's contention that the
property is non-compliant with the ADA is supported by
evidence in the record-DE 39-2-and Defendant's contention
that portions of the property have been brought into
compliance is construed as a denial that the property is
non-compliant with the ADA-a contention supported by evidence
in the record. DE 44 at 4-8. The Court has conflicting record
evidence as to whether the property complies with the ADA.
For this reason, and for reasons discussed below, this means
that Plaintiff's Motion for Summary Judgment must be
denied due to disputes of material fact.
Whether Plaintiff has Article III standing to ...