Opinion
Case No. C-1-00-700
May 8, 2001
ORDER
This motion is before the Court on defendants' motion to dismiss (Doc. 20), plaintiff s memorandum in opposition (Doc. 21), and defendant's reply. (Doc. 22). The parties have consented to the entry of final judgment by the undersigned United States Magistrate Judge. (Doc. 15). For the reasons set forth more fully below, defendant's motion to dismiss will be granted.
Plaintiff initiated this action with the filing of a complaint in Federal District Court for the Middle District of Alabama on June 30, 2000. (Doc. 1). The complaint alleges that the Omni Netherland Plaza Hotel in Cincinnati, Ohio (the Hotel) violated Title III of the Americans with Disability Act (ADA), 29 U.S.C. 12181, et. seq., by failing to provide plaintiff with accessible public accommodations during her stay at the Hotel for a conference in July 1998. By order dated August 18, 2000, defendant's motion to change venue was granted and the case was transferred to this judicial district (Doc. 14). The parties came before the undersigned for a scheduling conference on November 2, 2000, and the Court issued a calendar order on November 6, 2000. (Doc. 18). Plaintiff filed a second amended complaint on November 30, 2000. (Doc. 19). The second amended complaint alleges that defendants discriminated against plaintiff based on her disability as follows:
Ms. Love's special needs were not accommodated during her stay at the Defendant hotel as she was not provided accessible transportation from the airport to the Hotel by the Hotel shuttle service, was delayed from receiving a room for a long period of time, was placed in a room with an inaccessible bathroom with no access to the shower or hair dryer, inaccessible air conditioning controls, inaccessible closets, inaccessible doorways, and the ice bucket was placed in an inaccessible location. When Ms. Love was moved, the second room she received was also inaccessible and the Hotel management failed to respond to her continued requests for provision of accessibility, causing her to not be able to shower, rest comfortably, dress easily, or otherwise enjoy her stay at the Hotel.
(Doc. 19, second amended complaint, p. 3, ¶ 8). The complaint also set forth two state law claims, one alleging a violation of the Ohio Civil Rights Act, Ohio Rev. Code § 4112 et. seq., and the other asserting a claim captioned "Public Policy Tort" ostensibly raised under Ohio common law. (See Id., p. 5, ¶¶ 19-20).
Defendants contend that plaintiff's complaint should be dismissed because: (1) plaintiff has failed to comply with S.D. Ohio Civ. R. 83.5 which requires that plaintiff be represented by a trial attorney who is a member of the bar of this Court; (2) plaintiff has failed to exhaust her administrative remedies; therefore, this Court lacks jurisdiction over her ADA claim; (3) plaintiff's state law claims are barred by a six month statute of limitations; (4) because plaintiff's federal claim should be dismissed, the Court should decline to exercise supplemental jurisdiction over plaintiff's state law claims; and (5) plaintiff has failed to state a claim upon which relief can be granted. In support of its motion brought pursuant to Fed.R.Civ.P. 12(b)(6), defendants attached plaintiff's affidavit.
DEFENDANTS' MOTION TO DISMISS WILL BE GRANTED
Dismissal is Appropriate for Lack of Compliance with Local Rule 83.5
The Court will address each of defendants' arguments in turn, starting with the issue of plaintiff's failure to comply with S.D. Ohio Civ. R. 83.5. The Court's local rules provide:
Unless otherwise ordered, in all actions filed in, transferred to or removed to this Court, all parties not appearing in propria persona shall be represented of record by a "trial attorney" who is both a permanent member of the bar of this Court in good standing and a member in good standing of the bar of the Supreme Court of Ohio. Unless such designation is changed pursuant to Section (e) of this Rule, the trial attorney shall attend all hearings, conferences and the trial itself, unless otherwise excused.
S.D. Ohio Civ. R. 83.5(a). In the present case, plaintiff's attorney is apparently a member of the bar of Alabama, but has not demonstrated that she is either a member of the Bar of Ohio, nor a member of the Bar of this Court. The rules further provide that:
All pleadings and motions filed on behalf of a party represented by counsel shall be signed by one attorney in his or her individual names as the trial attorney referred to in Section (a) of this rule, followed by the designation "Trial Attorney" together with his or her typed name, office address, zip code, and telephone number and area code. When one attorney signs on behalf of another, the full signature of each must appear; signatures followed by initials are unacceptable because the Court must determine who has actually signed the document. (E.g. "/s/ Joan Doe by /s/ Richard Roe per telephone authorization.") Firm names and the names of co-counsel may appear on the pleadings and motions for information as "of counsel." In addition, all attorneys representing parties in actions before this Court shall include their Ohio Supreme Court Registration Number immediately after their typed name in the signature and address block on all pleadings and motions.
S. D. Ohio Civ. R. 83.5(b). Similarly, the pleadings, memoranda, and other papers filed by plaintiff in this case have not been signed by a person acting as trial attorney as described in section (a) of the Rule. Moreover, while the Court's rules would permit plaintiff's Alabama counsel to participate as co-counsel in this case, she has failed to comply with the requirements for doing so as set forth in S.D. Ohio Civ. R. 83.5(d):
Any member in good standing of the bar of the highest court of any state, who is not otherwise eligible to become a member of the bar of this Court, may be permitted to appear and participate as counsel or co-counsel, upon motion of the trial attorney for any party. A motion for permission to appear pro hac vice shall be accompanied by a current certificate of good standing by the highest court of any state, and the tender of a $50 fee to the Clerk of the Courts. Should the application not be granted, the tendered fee will be returned. Permission to appear pro hac vice may be withdrawn at any time. Such motion is not required for the purpose of having participating counsel's name appear on the pleadings as permitted by Section (b) of this Rule.
Defendant contends that the Court informed the parties at the November 2, 2000 scheduling conference that plaintiff was required to obtain local counsel. Plaintiff does not dispute this assertion, for which there is no record proof. Rather, plaintiff's only response to defendant's assertion that the case should be dismissed for failing to comply with Rule 83.5 is that "Ms. Love has not been able to secure local counsel to represent her due to the great distance between Alabama and Ohio and her unfamiliarity with local counsels available." (Doc. 21, p. 2).
The Court's Local Rules require that all pleadings be signed either by the party him or herself if proceeding pro se, or by a trial attorney who is both a member of the Bar of Ohio and a member of the Bar of this Court, unless otherwise ordered by the Court. In this case, plaintiff has not sought leave to proceed without local counsel, nor additional time within which to secure local counsel. The case was transferred to this judicial district in August 2000, approximately ten months ago. Plaintiff's only excuse for failing to designate a trial attorney is the "great distance" between Alabama and Ohio and her "unfamiliarity with local counsels." In this day and age of Internet access, nationwide telephone directory assistance, local bar association referral services and the like, plaintiff's "great distance" excuse rings hollow. There are myriad resources available from which to contact local attorneys and secure their services in this and similar cases. Consequently, all plaintiff's filings in this Court should be stricken, including the second amended complaint which though filed within the time frame set forth by the Court's scheduling order for amendment of the pleadings, was not filed with leave of the Court as required under Fed.R.Civ.P. 15(a). For these reasons, dismissal is appropriate. However, as set forth more fully below, alternate and more compelling grounds exist for dismissing plaintiff's complaint.
Failure to Exhaust Administrative Remedies Is Not a Jurisdictional Bar
Next, defendants contend that the Court lacks subject matter jurisdiction because plaintiff has failed to exhaust her administrative remedies. Under a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, defendants can attack the complaint's jurisdictional allegations even though they are formally sufficient Baker v. Siemens Energy and Automation, Inc., 838 F. Supp. 1227, 1229 (S.D. Ohio 1993) (Spiegel, J.). When the Court reviews a factual attack on subject matter jurisdiction, no presumption of truthfulness applies to the factual allegations of the complaint. United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). The Court may rely on affidavits or any other evidence properly before it and has wide latitude to collect evidence to determine the issue of subject matter jurisdiction. Rogers v. Stratton Industries, Inc., 798 F.2d 913, 915 (6th Cir. 1986). The Court is entitled to resolve factual disputes and is free to weigh the affidavits, documents and other evidentiary matters presented and satisfy itself as to its power to hear the case. Ritchie, 15 F.3d at 598. The Court must consider factual issues in a manner that is fair to the nonmoving party. Rogers, 798 F.2d at 915. Plaintiff must demonstrate jurisdiction in order to survive the motion. Moir v. Greater Cleveland Regional Transit Authority, 895 F.2d 266, 269 (6th Cir. 1990). "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action." Fed.R.Civ.P. 12(h)(3).
Defendants contend that dismissal is proper because plaintiff failed to exhaust administrative remedies before filing suit and therefore her action is barred. Defendants assert that plaintiff was obliged to file an administrative complaint with the Ohio Civil Rights Commission before she was free to bring her Title Ill ADA claim in federal court. In support of this position, defendants cite the Court to various district court decisions from sister jurisdictions, including Howard v. Cherry Hills Cutters, Inc., 935 F. Supp. 1148 (D.C. Colo. 1996) and Snyder v. San Diego Flowers, 21 F. Supp.2d 1207 (S.D. Cal. 1998). Unfortunately for defendants, the law in both this District, and the Northern District of Ohio contradicts their position.
The ADA's enforcement provisions state that "[t]he remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability in violation of this subchapter," and thereby explicitly incorporates the enforcement provisions of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 12188. Under section 2000a-3(a), an aggrieved party may seek injunctive relief. However, this section is further limited by 42 U.S.C. § 2000a-3 (c), which requires an aggrieved party to first seek relief from the appropriate state or local body before filing a lawsuit in federal court, where state or local laws prohibit the same alleged discriminatory practices prohibited by federal law. Defendants argue that because the Ohio Civil Rights Commission (OCRC) prohibits the same discrimination in public accommodation alleged in this case to violate the ADA, plaintiff is required to seek redress from the OCRC before bringing a case before this Court. There exists a split of authority among the district courts on the question of whether the statute's specific reference to § 2000a-3(a) incorporates the provisions of § 2000a-3(c) and thereby requires exhaustion. Compare Burriola v. Greater Toledo YMCA, 133 F. Supp.2d 1034 (N.D. Ohio 2001) (Title III does not have administrative exhaustion requirement); Iverson v. Comsage, Inc., 132 F. Supp.2d 52 (D. Mass. 2001) (same); Botosan v. Fitzhugh, 13 F. Supp.2d 1047 (S.D. Cal. 1998) (same); Doukas v. Metropolitan Life Ins. Co., No. CIV. 4-478-SD, 1997 WL833134 (D. N.H. Oct. 21, 1997) (same), with Howard v. Cherry Hills Cutters. Inc., 935 F. Supp. 1148 (D. Colo. 19960) (applying § 2000a-3(c) exhaustion requirements to ADA case without comment); Snyder v. San Diego Flowers, 21 F. Supp.2d 1207 (S.D. Cal. 1998) (finding the ADA statutory provisions to b ambiguous and looking to legislative history to conclude that administrative exhaustion applies to ADA Title III cases). However, the law of this district is clear: "the exhaustion requirement of § 2000a-3(c) is not a part of Title III of the ADA." Guzman v. Denny's Inc., 40 F. Supp.2d 930, 933 (S.D. Ohio 1999) (Dlott, J.). Under traditional canons of statutory construction, the plain language of Title III explicitly adopts § 2000a-3(a) and to read that as incorporating any other section would render the specific textual reference superfluous. Id. at 934. See also Iverson, 132 F. Supp.2d at 55 ("The plain language of § 12188(a)(1) is clear and unambiguous, and it can be understood without reference to any other statutory provision, Section 12188(a)(1) is devoid of any reference to § 2000a-3(c)."). This Court agrees with the District Court in Guzman, and the majority of its sister jurisdictions, and finds that plaintiff is not required to exhaust her administrative remedies before commencing a suit under Title III of the ADA. While there may exist "good reasons for wishing that Congress had read a notice provision into Title III," see Iverson, 132 F. Supp.2d at 55, if a notice requirement is to be instituted, it must be done so by the Congress and not by this Court. For these reasons, defendants' motion to dismiss for failure to exhaust administrative remedies is denied.
Plaintiff has Failed to Present Evidence Establishing A Prima Facie Case of Disability Discrimination under Title III of the ADA
Defendants also argue that plaintiff's claims are moot because her affidavit demonstrates that all her needs for accommodation were met during her stay at the Hotel in July, 1998. In essence, defendants assert that plaintiff has failed to present sufficient factual materials to support a prima facie case of disability discrimination in public accommodation. By relying on plaintiff's affidavit, defendants ask the Court to consider their motion brought under Fed.R.Civ.P. 12(b)(6) as a motion for summary judgment raised pursuant to Fed.R.Civ.P. 56. Plaintiff has not objected to converting defendants' motion to one for summary judgment. Rather, plaintiff responds to defendants' arguments in her memorandum in opposition which is likewise supported by her affidavit. Because plaintiff was given an opportunity to present material evidence made pertinent by defendants' motion, and because the Court, like the parties, relies on the affidavit to resolve this motion, it will be shall be treated as one for summary judgment under Rule 56.
A motion for summary judgment should be granted if the evidence submitted to the court demonstrates that there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The moving party has the burden of showing the absence of genuine disputes over facts which, under the substantive law governing the issue, might affect the outcome of the action. Celotex, 477 U.S. at 323.
A party may move for summary judgment on the basis that the opposing party will not be able to produce sufficient evidence at trial to withstand a motion for judgment as a matter of law. In response to a summary judgment motion properly supported by evidence, the non-moving party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. Sixty Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th Cir. 1987); Harris v. Adams, 873 F.2d 929, 931 (6th Cir. 1989). Conclusory allegations, however, are not sufficient to defeat a properly supported summary judgment motion. McDonald v. Union Camp Corp., 898 F.2d 1155, 1162 (6th Cir. 1990). The non-moving party must designate those portions of the record with enough specificity that the Court can readily identify those facts upon which the nonmoving party relies. Karnes v. Runyon, 912 F. Supp. 280, 283 (S.D. Ohio 1995) (Spiegel, J.). "[A]fter a motion for summary judgment has been filed, thereby testing the resisting party's evidence, a factual issue may not be created by filing an affidavit contradicting [one's own] earlier deposition testimony." Davidson Jones Dev. Co. v. Elmore Dev. Co., 921 F.2d 1343, 1352 (6th Cir. 1991).
The trial judge's function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine factual issue for trial. Anderson, 477 U.S. at 249-50. In so doing, the trial court does not have a duty to search the entire record to establish that there is no material issue of fact. Karnes, 912 F. Supp. at 283. See also Street v. J.C. Bradford Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989); Frito-Lay, Inc. v. Willoughby, 863 F.2d 1029, 1034 (D.C. Cir. 1988). The inquiry is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Anderson, 477 U.S. at 249-50.
If, after an appropriate time for discovery, the opposing party is unable to demonstrate a prima facie case, summary judgment is warranted. Street, 886 F.2d at 1478 (citing Celotex and Anderson). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The ADA's general prohibition against discrimination in public accommodation provides that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.42 U.S.C. § 12182 (a). The Act further provides that it is a discriminatory practice to provide to an individual, on the basis of disability, with "a good, service, facility, privilege, advantage, or accommodation that is not equal to the afforded other individuals." 42 U.S.C. § 12182 (b)(1)(A)(ii). In order to establish a prima facie case of disability discrimination under Title III of the ADA, plaintiff must show that: (1) she has a disability; (2) that defendants' business is a place of public accommodation; and (3) that she was discriminated against by being refused full and equal enjoyment of goods, services, or accommodations on the basis of her disability, or that defendant failed to make reasonable modifications when such modifications are necessary to provide the goods, services, and accommodations to individuals with disabilities and defendant has not shown that such modifications are unreasonable or would fundamentally alter the nature of its services. Mayberry v. Von Valtier, 843 F. Supp. 1160, 1164 (N.D. Ohio 1994). See also Lessman v. City of Dearborn, 1996 WL 633060, *1 (N.D. Ohio April 30, 1996). The Hotel is clearly a place of public accommodation as defined by the Act, and the parties do not dispute that plaintiff is an individual with a disability. Thus, the question is whether plaintiff was denied equal accommodations or whether defendant failed to make modifications necessary for her equal enjoyment of defendants' accommodations.
The ADA defines disability as "a physical or mental impairment that substantially limits one or more of the major life activities of [an] individual." 42 U.S.C. § 12102 (2)(A).
Both plaintiff and defendants rely on plaintiff's affidavit in support of their arguments. Plaintiff alleges that she was denied equal treatment with respect to her transportation from the airport to the Hotel on the day she arrived at the Omni Netherland. However, there is no evidence that the defendants operate a shuttle service from the airport. Moreover, Title II of the ADA, which addresses discrimination in transportation, only applies to public transportation owned by units of government. Consequently, plaintiff has failed to state a claim with respect to her allegations that she was not afforded equal transportation from the airport. Nest we consider plaintiff's claims regarding her stay at the Hotel. According to her affidavit, plaintiff was initially registered for and assigned to a room on the eleventh floor that was not fully accessible. (Doc. 20, Affidavit of Cynthia Love, ¶¶ 9, 10, 11, attached). Plaintiff checked into this room to find that the light fixtures, closet, temperature controls, and shower facilities, among other things, were not accessible to her in her wheelchair. (Id.). When plaintiff informed the hotel's management later that evening that the room did not meet her needs, the Hotel's night manager went to plaintiff's room to discuss her needs and then found her another room in the hotel to which she was transferred. According to plaintiff this room did not have a "roll in" shower as she had requested; rather, it has a bathtub. (Id., ¶ 15). Plaintiff states in her affidavit that she informed the hotel that the room "would be fine, IF they had a chair that fit in the tub." (Id.) (emphasis in original). While they hotel did not have a chair to fit in the bathtub in the room to which plaintiff was transferred, her affidavit makes clear that the Hotel obtained such a chair and provided it to her the very next day. (Id., ¶ 20). Thus, there is no dispute that the Hotel made the modifications requested by plaintiff to enable her to enjoy defendants' goods, services, and accommodations. It is clear that plaintiff was temporarily inconvenienced by the Hotel's poor room assignment upon her arrival. However, a claim for injunctive relief to require defendant to make modifications can hardly be maintained under the ADA when the requested modifications were made during plaintiff's stay. The ADA's governing regulations "regulate the availability of goods and services the place of accommodation offers as opposed to the contents of the goods and services offered by the public accommodation." Parker v. Metropolitan Ins. Co., 121 F.3d 1006, 1012 (6th Cir. 1997). In other words, the purpose of the s accommodation requirements is to ensure accessibility to the goods and services offered, not to alter the goods and services themselves. Id., quoting 28 C.F.R. pt. 36, app. B at 630. Because plaintiff has failed to demonstrate that she was either discriminated against by being refused full and equal enjoyment of the Hotel's accommodations, or that defendant failed to make reasonable modifications when such modifications were necessary to provide accommodations to her, summary judgment is appropriate and her ADA claim will be dismissed.
Having dismissed plaintiff's federal claim on summary judgment grounds and alternatively, for failing to comply with the Court's Local Rules, the Court declines to exercise supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367 (c). For all these reasons, defendants' motion to dismiss is hereby GRANTED and this case is terminated on the docket of this Court.