Opinion
Civil Action No. 03-1122 (JBS).
January 25, 2005
Pasquale Picariello, Esq., MATTLEMAN, WEINROTH MILLER, P.C., Cherry Hill, NJ, Attorney for Plaintiff.
L. Oliver Frey, Esq., Michele L. Weckerly, Esq., FREY, PETRAKIS, DEEB, BLUM, BRIGGS MITTS, Cherry Hill, NJ, Attorneys for Defendant.
OPINION
This action under the Americans With Disabilities Act and New Jersey Law Against Discrimination pertains to claims of denial of access to branch banking facilities. Now before the Court are cross-motions for partial summary judgment by Plaintiff Dean V. Marcovecchio and Defendant Commerce Bancorp, Inc. For the reasons discussed below, this Court will grant Defendant's motion for partial summary judgment, limiting Plaintiff's claims to Commerce's Barnegat, New Jersey branch only, and deny that of Plaintiff.
BACKGROUND
Plaintiff Dean V. Marcovecchio initiated the instant lawsuit on March 13, 2003 against Defendant Commerce Bancorp, Inc. ("Commerce"), alleging violations of the Americans With Disability Act ("ADA") of 1990, 42 U.S.C. § 12101 et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Plaintiff seeks wheelchair access to the Defendant's bank branches under the mandates of the ADA.
The ADA explicitly prohibits discrimination by public accommodations 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 operates a place of public accommodation. 42 U.S.C. § 12182(a). Discrimination is defined in 42 U.S.C. § 12182(b)(2)(A)(ii-iv) for the purposes of 42 U.S.C. § 12182(a) to include failure to modify practices and facilities.
Plaintiff alleges that Commerce violated the ADA by:
(a) Designing and constructing bank branches for new branches built after January 26, 1993 which failed to provide ADA compliant service counters for the preparation of deposit and withdraw slips;
(b) Designing and constructing bank branches for new branches built after January 26, 1993 which failed to provide ADA compliant teller counter;
(c) Designing and constructing bank branches for new branches built after January 26, 1993 which fail to provide ADA compliant entry doors, not meeting the weight specification required under the act;
(d) Failure to comply with the Act by not having ADA compliant signs for disabled parking;
(e) Failure to comply with the Act by not having ADA compliant signs for disabled assistance for disabled persons at the bank branches;
(f) Failure to comply with the Act by not having ADA compliant disabled parking places and marked travel routes [from] the disabled spaces to the entrance to the Defendant's bank branches;
(g) Failure to provide disabled after hours access to the Automatic Teller Machine locations at its branches including but not limited to the Barnegat New Jersey Commerce Bank Branch;
(h) Failure to make the readily achievable modifications to bank branches built before January 26, 1992 to comply with the disabled access requirements for the Act;
(I) Failure to have a customer service policy in place at its branches to provide alternative assistance to disabled persons consistent with the Act;
(j) Otherwise failed to make its premises disability accessible in accordance with the ADA.
(See Compl. at ¶ 9(a)-(j).)
Plaintiff seeks the entry of partial summary judgment finding that Plaintiff is disabled under the ADA, that Defendant is a place of public accommodation under the ADA, and that the design and construction of the Barnegat, New Jersey branch of Commerce Bancorp, Inc. fails to meet the access requirements of the ADA.
Defendant does not oppose Plaintiff's first two contentions (i.e., that Plaintiff is disabled under the ADA and that Defendant is a place of public accommodation under the ADA). (See Def.'s Brief in Opposition to Pl.'s Motion for Summary Judgment, p. 1.)
Defendant seeks partial summary judgment as to Plaintiff's claim that Commerce violated the ADA, arguing that Plaintiff lacks standing to challenge the conditions at any branch other than Commerce's Barnegat, New Jersey branch and also that the Barnegat branch itself is ADA compliant.
DISCUSSION
Summary Judgment Standard
Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law.Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.
In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party."Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).
The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.
The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions. Weissman v. United States Postal Serv., 19 F. Supp. 2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia House Auth., 834 F. Supp. 794, 797 (E.D. Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Is Plaintiff a Disabled Individual Under the ADA?
Plaintiff seeks partial summary judgment holding, first, that Plaintiff is disabled under the ADA. Defendants do not oppose the entry of partial summary judgment as to this contention and this Court agrees that Plaintiff is disabled. Is Commerce Bank a Place of Public Accommodation?
Plaintiff suffers from multiple sclerosis ("MS"), a degenerative neuro-muscular disease, and requires the use of some sort of aid for mobility. (See Deposition of Dean V. Marcovecchio, pp. 16-18.)
A person with a disability is defined under 42 U.S.C. § 12102 as having "a physical or mental impairment that substantially limits one or more of the major life activities of such individual." The Department of Justice Regulations, 28 C.F.R. § 36.104 ("Regulations"), specifically include the life activity of walking as a major life activity as well as caring for one's self, performing manual tasks, seeing, hearing, speaking, breathing, learning and working. The term "substantially limits" moreover does not mean that the individual is completely unable to perform the defined major life activity, but rather that the individual is "significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity." 29 C.F.R. § 1630.02(j)(1)(ii).
This Court is satisfied that Plaintiff's ability to perform a major life activity, namely walking, is significantly restricted, as he requires the use of some auxiliary aid to assist him in this daily task. (See Marcovecchio Dep. at pp. 17-19.) Therefore, the Court holds Plaintiff to be a disabled individual within the meaning of the ADA.
Next Plaintiff seeks partial summary judgment holding that Commerce is a place of public accommodation or operates a place of public accommodation. Defendants also do not oppose the entry of partial summary judgment as to this contention. This Court agrees that Commerce qualifies as a place of public accommodation. Do Commerce's Facilities Meet the ADA's Access Requirements?
The ADA specifically includes "banks" in its definition of a "public accommodation." 42 U.S.C. § 12181(7)(F). A "place of public accommodation" means a facility operated by a private entity, whose operations affect commerce and fall within at least one of the stated categories, one of which includes a "bank." 28 C.F.R. § 36.104. Furthermore, it is clear that Defendant's activities affect and participate in interstate commerce. Thus, this Court concludes that Commerce is a place of public accommodation under the ADA.
Plaintiff's Complaint is worded to suggest that it challenges the accommodations of a number of Commerce's bank branches in New Jersey under the ADA. Defendant thus first seeks entry of summary judgment, finding that Plaintiff lacks standing to bring an ADA claim against Commerce for all bank branches, with the exception of the branch located in Barnegat, New Jersey.
Plaintiff, in his cross-motion for summary judgment, focuses solely on the Barnegat, New Jersey branch of Commerce and argues that Defendant has not met the standards for an ADA accessible design. Defendant opposes this motion, arguing that the Barnegat Commerce Bank currently complies with the ADA.
Plaintiff's Standing
Defendant argues that Plaintiff lacks standing to bring an ADA, Title III claim against any branch other than that located in Barnegat, New Jersey.
Whether a plaintiff has standing to bring a claim depends on whether he or she is entitled to have the court decide the merits of a dispute or particular issue. See Warth v. Seldin, 422 U.S. 490, 498 (1992). The standing doctrine has two principal components: the prudential, which embraces "judicially self-imposed limits on the exercise of federal jurisdiction, such as the rule that bars adjudication of generalized grievances, and the constitutional, which limits federal jurisdiction to cases or controversies, mandating that the plaintiff demonstrate his or her personal stake in the lawsuit as to warrant invocation of federal court jurisdiction and to justify exercise of the court's remedial power on his or her behalf." Allen v. Wright, 468 U.S. 737, 751 (1984).
To satisfy the constitutional component of the standing doctrine, the plaintiff must prove that (1) he or she has suffered an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical, (2) the injury is traceable to the challenged action of the defendant, and (3) it is likely, not merely speculative, that the injury will be redressed by a favorable decision.See Friends of the Earth, Inc. v. Laidlaw Envtl. Srvcs., 528 U.S. 167, 180-81 (2000).
Title III of the ADA is not immune from the "irreducible constitutional minimum of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992); see also Clark v. Burger King Corp., 255 F. Supp. 2d 334, 342 (D.N.J. 2003) (invoking standing requirement to preclude individual plaintiff from suing defendant public accommodation under Title III of the ADA); W.G. Nichols, Inc. v. D. Ferguson, 2002 WL 1335118, *10 (E.D. Pa. June 7, 2002) (applying standing doctrine to determine whether plaintiff could sue public accommodation under Title III of ADA).
As Plaintiff's Complaint makes clear, Plaintiff alleges that multiple Commerce branches are in violation of the ADA. However, the evidence adduced by Plaintiff neither shows that he suffered disability discrimination at multiple Commerce branches nor demonstrates that he is likely to suffer other disability discrimination in the future. To establish standing, Plaintiff must demonstrate, inter alia, that his injury is actual or imminent. See Lujan, 504 U.S. at 560. Plaintiff testified in his deposition that he patronized only the Barnegat and Paramus branches, and that he encountered what he deemed to be disability discrimination only at the Barnegat branch. (Marcovecchio Dep. at 62:22-63:20; 28:10-16.) As such, it is initially clear to this Court that if Plaintiff is to have standing to sue Commerce, the scope of his claim is limited to Defendant's Barnegat branch; summary judgment will be entered against Plaintiff's claims directed at all other Commerce branches. Plaintiff's ADA Claim as to Commerce's Barnegat Branch
Even if Plaintiff had demonstrated standing to complain of the conditions at other Commerce Bank branches, it is clear that Plaintiff could not prevail on such claims. Discovery has ended before these cross-motions were filed, and the Barnegat branch is the only location addressed in the report of Plaintiff's expert witness, Architect Robert M. Skaler. In opposition to Defendant's motion, Plaintiff has offered no factual evidence of ADA violations at any other Commerce Bank location. Thus, Defendant would be entitled to summary judgment for lack of a prima facie case at all other branches, since he is unable to carry his burden at trial upon the facts proffered in his opposition and cross-motion.
Having determined that Plaintiff lacks standing to allege ADA violations at any branch of Commerce Bank other than that in Barnegat, New Jersey, the Court now turns its attention to Plaintiff's limited claim that the design and construction of the Barnegat branch fails to meet the access requirements of the ADA, upon which Plaintiff seeks summary judgment of liability in his favor.
Plaintiff alleges in his Complaint that the ATM at the Barnegat Commerce Bank was not accessible to disabled customers after hours. Specifically, Plaintiff contends that he had no access to the ATM after regular business hours as the design and construction, or alteration of the facilities, rendered access to the ATM impossible due to Plaintiff's reliance on a wheel chair for mobility. In support of his claim, Plaintiff has submitted a report from an architectural expert, Robert M. Skaler, that states that the original design and construction of the facilities violates the ADA. (See Pl.'s Ex. C, Decl. of Robert M. Skaler.)
Plaintiff's Complaint was filed on March 13, 2003. At that time, the ATM machine was allegedly inaccessible to Plaintiff after hours because the sole entrance to the ATM after the lobby was closed was through the rear door of the bank. The curbing to the parking lot at that location had no curb-cut, and the sidewalk was not joined to the front lobby entrance where the disabled parking and curb-cut were provided. An individual parking near the ATM machine after-hours entrance thus had no wheelchair access to the ATM. The parties appear to be in agreement on this point.
Commerce, in the deposition testimony of Steven Talbott, Vice President of Construction, admits that it made changes to the Barnegat branch in response to Plaintiff's Complaint to remedy the inaccessibility of the ATM after hours to disabled customers. (See Pl.'s Ex. B, Deposition of Stephen Talbott, at 27:5-19.) This work was performed, and new disabled parking spaces near the ATM were created, in August and September, 2003, as shown by the invoices for the work. (Talbott Dep., Exs. T-2 and T-3.) Talbott also testified that a curb ramp was installed to remedy the accessibility problem. (Talbott Dep. at 27:5-19.) Plaintiff Marcovecchio testified that he has used the new Barnegat branch ATM parking and curb-cut without impairment or difficulty in accessibility. (Marcovecchio Dep. at 58:17-24.)
Plaintiff alleges, however, that the curb ramp is still not compliant with the ADA. Plaintiff does not allege that the ATM is still inaccessible to him, only that it does not comply with the ADA, in his opinion. Indeed, Plaintiff does not allege or evidence his desire to return to Commerce's Barnegat branch and testified instead that he has since switched banks. (See Marcovecchio Dep. at 20:1-5.)
Even assuming that Plaintiff has standing to bring his claim for injunctive relief, in light of the remedial action undertaken by Defendant, Plaintiff's claim must fail. In support of Plaintiff's allegation that the curb ramp currently installed at the Barnegat branch is not compliant with the ADA, Plaintiff cites to the expert opinion of Robert M. Skaler. In his report, Mr. Skaler admits that he never visited the Barnegat branch and his opinions are based upon pictures and diagrams only. (See Pl.'s Ex. C) ("I reviewed the site photographs received from your office, and plans and documents received from the Commerce Bancorp, Inc . . . As of the date of this report, I have not made a site inspection."). Mr. Skaler opines, "The photographs taken in October 2003 show the quality of the construction of the subject parallel curb ramp to the ATM side of the bank, is, in my professional opinion, to be substandard and not done [in] a workmanlike manner." (Id.) This opinion is not directed to the accessibility of the curb ramp or its ADA compliance, however. Instead, it is directed at aesthetics and craftsmanship. In addition, Mr. Skaler gives no reason why the curb ramp is substandard or not in compliance with the ADA. No measurements are made and no subjective impediment to Plaintiff is reported. He offers nothing more than a blanket conclusion and states, in his opinion, how the curb-cut could have been better constructed. Moreover, Plaintiff himself admits in his deposition that changes have been made to the Barnegat branch, and that he is aware of no continuing ADA violation.
"Then they made changes. They brought it [the handicapped parking space] around to the ATM after they made the ATM. They cut the curb and they made kind of a small curbing, a little ramp into that area. They marked it. I believe it's marked well now, the access. They have alleviated or bettered the access to it, to the ATM." (Marcovecchio Dep. at 58:17-24.)
As this discussion makes clear, Plaintiff will have difficulty establishing that the Barnegat branch of Commerce Bank is not currently ADA-compliant. At the very least, Plaintiff's motion for summary judgment must be denied regarding the current status of this branch under the ADA; since Defendant did not seek summary judgment extinguishing Plaintiff's claim of an ongoing ADA violation, this Court cannot entertain doing so in the absence of notice to Plaintiff.
Likewise, the availability of injunctive relief appears highly doubtful upon the facts discussed herein, due to Defendant's post-Complaint remedial action. The existence of an ADA non-compliant ATM facility at Barnegat prior to the August-September 2003 remedial construction also appears to be conceded by Defendant. The parties are directed to attempt to arrive at suitable stipulations in this regard and to clearly identify any matters that remain for hearing or trial. If, after suitable stipulations are made, the matter of counsel fees and costs remains in dispute, an appropriate motion shall be made before the undersigned or (if consent be given pursuant to 28 U.S.C. § 636(c)) before the Honorable Ann Marie Donio, U.S. Magistrate Judge.
CONCLUSION
For the reasons discussed above, Plaintiff's motion for partial summary judgment will be denied and Defendant's cross-motion will be granted. The accompanying Order is entered.ORDER
This matter having come before the Court upon cross-motions for partial summary judgment by Plaintiff Dean V. Marcovecchio and Defendant Commerce Bancorp, Inc.; and the Court having considered the parties' submissions in support of and in opposition thereto; and for the reasons stated in the Opinion of today's date; and for good cause shown;
IT IS this 25th day of January, 2005, hereby
ORDERED that Plaintiff Dean V. Marcovecchio's motion for summary judgment [Docket Item No. 20-1] shall be, and hereby is, DENIED ; and
IT IS FURTHER ORDERED that Defendant Commerce Bancorp, Inc.'s motion for partial summary judgment [Docket Item No. 18-1] shall be, and hereby is, GRANTED ; and
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff's claims challenging the conditions at any branch other than Defendant's Barnegat, New Jersey branch are DISMISSED for lack of standing, and alternatively upon the merits by partial summary judgment.
Counsel shall appear for the Final Pretrial Conference before the Honorable Ann Marie Donio, U.S. Magistrate Judge, on Wednesday, February 23, 2005 at 11:00 a.m.