ADAPT, Salt Lake Chapter v. Skywest Airlines, Inc.

• Decision Date: 17 April 1991
• Docket Number: Civ. No. 90-C-0044-S.
• Parties: AMERICANS DISABLED FOR ACCESSIBLE PUBLIC TRANSPORTATION (ADAPT), SALT LAKE CHAPTER, on behalf of its members, and Barbara G. Toomer, Plaintiffs, v. SKYWEST AIRLINES, INC., and Salt Lake Airport Authority, Defendants.
• Court: U.S. District Court — District of Utah

762 F. Supp. 320

AMERICANS DISABLED FOR ACCESSIBLE PUBLIC TRANSPORTATION (ADAPT), SALT LAKE CHAPTER, on behalf of its members, and Barbara G. Toomer, Plaintiffs, v. SKYWEST AIRLINES, INC., and Salt Lake Airport Authority, Defendants.

Civ. No. 90-C-0044-S.

United States District Court, D. Utah, C.D.

April 17, 1991.

Brian M. Barnard, Utah Legal Clinic, Salt Lake City, Utah, Robert E. Richardson, Douglas L. Parker, Institute for Public Representation, Timothy M. Cook, The Nat. Disability Action Center, Washington, D.C., for plaintiffs.

Randall N. Skanchy, Michael Patrick O'Brien, Andrew H. Stone, Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah, G. Rand Beacham, Jones, Waldo, Holbrook & McDonough, St. George, Utah, for defendants.

MODIFICATION OF JANUARY 28, 1991 ORDER AND MEMORANDUM DECISION SUPPORTING PARTIAL SUMMARY ADJUDICATION

SAM, District Judge.

This matter is before the court on the objection of defendant SkyWest Airlines, Inc. (SkyWest) to the magistrate's Report and Recommendation (R & R) which recommends denying SkyWest's motion for partial summary judgment. The court determined that oral argument was not necessary to resolve the issues briefed and, accordingly, exercised its discretion pursuant to Local Rule 5(g) to decide the matter on the pleadings. An order granting summary judgment for SkyWest was entered on January 28, 1991. This memorandum decision supplements and modifies that order.

I. BACKGROUND

On June 9, 1989, plaintiff Barbara Toomer, a disabled person confined to a wheelchair, was refused permission to board a SkyWest flight from Salt Lake to Boise where she was to give a speech that morning in connection with her responsibilities as the Executive Director of the Salt Lake Citizens' Congress. Amended Complaint at 6-7. SkyWest claims it refused Ms. Toomer permission to board based on its policy that persons confined to wheelchairs must travel with an attendant capable of rendering assistance during flight. Answer p. 5, para. 23.

In January of 1990, plaintiff Americans Disabled for Accessible Public Transportation and Barbara Toomer filed a multiple-count complaint against SkyWest as the result of SkyWest's refusal to allow Ms. Toomer to board the flight. The separate counts contained in plaintiffs' complaint allege the following: (1) violation of Ms. Toomer's civil rights under the Air Carrier Access Act (ACAA), 49 U.S.C. § 1374(c)(1) (Count I); (2) violation of Ms. Toomer's civil rights under section 504 of the Rehabilitation Act of 1973 (Rehabilitation Act), 29 U.S.C. § 794 (Count II); (3) violation of pendent state law claims for breach of contract (Count III); and (4) violation of pendent state law claims for negligence (Count IV).

On or about March 9, 1990, SkyWest filed a motion for partial summary judgment seeking dismissal of plaintiffs' claims based on the Rehabilitation Act; the claims for punitive and emotional distress damages insofar as they relate to the ACAA, Rehabilitation Act, and breach of contract claims; and the request for injunctive and declaratory relief.

On April 24, 1990, the magistrate heard oral argument on SkyWest's motion for partial summary judgment and plaintiffs' motion to amend the complaint. At the hearing, the magistrate granted plaintiffs' motion for leave to file an amended complaint and treated SkyWest's motion for partial summary judgment as against the amended complaint. R & R at 3. Plaintiffs' amended complaint included the additional fact that SkyWest refused to permit Ms. Toomer to make a reservation on a flight from Salt Lake to Vernal that was scheduled to depart April 6, 1990.

II. DISCUSSION

A. The Rehabilitation Act Claim

SkyWest seeks dismissal of plaintiffs' Rehabilitation Act claim on the basis that the statute only applies to "programs or activities" receiving federal financial assistance. Defendant's Memorandum in Support of Motion at 12-17. Since SkyWest's Boise flight is not part of a program or activity receiving a federal subsidy, SkyWest argues that plaintiffs fail to state a claim under the Rehabilitation Act. Id.

SkyWest receives a federal subsidy under the Essential Air Service Program, 49 U.S.C. § 1389, for a limited number of flights to small communities, including the Salt Lake to Vernal flight. Id. at 16. For that reason, the magistrate concluded that plaintiffs stated a cause of action under the Rehabilitation Act and denied SkyWest's motion for partial summary judgment. The R & R does not make clear whether the magistrate concluded the Rehabilitation Act applied only to the Salt Lake to Vernal flight or to the Boise flight as well. The magistrate also recommended that summary judgment could not be granted on part of a claim.

SkyWest does not object to the magistrate's decision insofar as it relates to the circumstances surrounding the Vernal flight. SkyWest's Objection at 16-17. Rather, SkyWest objects to the R & R because its adoption without clarification could permit plaintiffs to maintain a Rehabilitation Act claim against SkyWest for refusing Ms. Toomer access to the Boise flight. Id. SkyWest maintains that plaintiffs cannot recover under the Rehabilitation Act based on the circumstances surrounding the Boise flight because that flight is not part of a program or activity receiving federal financial assistance. Id.

In opposition to SkyWest's objections, plaintiffs assert that summary judgment cannot be entered on part of a single claim; hence, it would be inappropriate to dismiss the portion of their Rehabilitation Act claim relating to the Boise flight. Plaintiffs' alternative position is that material facts remain as to whether SkyWest receives federal financial assistance for purposes of the Rehabilitation Act through its operations and use of the Salt Lake Airport. Plaintiffs' Response to SkyWest's Objection at 3.

1. Summary judgment on portions of claims

Rule 56(b) of the Federal Rules of Civil Procedure provides: "A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof." (emphasis added). Some courts have concluded that Rule 56 of the Federal Rules of Civil Procedure permits judgment on a portion of a single claim. The courts embracing this view find support in the language of Rule 56.¹ Noting that "the Federal Rules of Civil Procedure provide that a party seeking to recover upon a claim may be awarded summary judgment, `upon all or any part thereof'," one federal district court concluded that "the award of summary judgment on a portion of a claim is clearly covered by the words of Rule 56(a)." Blackford v. Action Products Co. Inc., 92 F.R.D. 79, 79-80 (W.D.Mo.1981).

It is that interpretation which persuaded the court to grant partial summary judgment in its January 28, 1991 Order. However, since that time, the court has conducted further inquiry into the propriety of granting summary judgment on portions of a single claim. The court, having given thoughtful consideration to that issue, now concludes that partial summary judgment is inappropriate, but that a partial summary adjudication is in order.

Rule 54 of the Federal Rules of Civil Procedure provides that "`judgment' as used in these rules includes a decree and any order from which an appeal lies." Therefore, if a court grants partial summary "judgment" on a portion of a single claim, the effect may be to make such judgment appealable.

Rule 56(d) of the Federal Rules of Civil Procedure provides district courts the discretion to narrow issues for trial without issuing an appealable judgment:

If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

A helpful explanation of the distinction between "summary judgment" and "partial summary adjudication" is contained in 10A Wright, Miller & Kane, Federal Practice and Procedure; Civil 2d § 2737:

Because Rule 56(d) is part of the rule entitled "Summary Judgment," the order prescribed by the rule has been referred to as a "partial summary judgment." This characterization has been the source of considerable confusion about the nature of the order issued under Rule 56(d), particularly with regard to its binding effect and appealability.... By its terms, Rule 56(d) involves an adjudication of less than the entire action, and consequently does not purport to authorize a final and appealable judgment.

(citations omitted). Another commentator states:

It is clear that Rule 56 authorizes a summary adjudication that will often fall far short of a final adjudication, even of a single claim; and that the term "partial summary judgment" as applied to an interlocutory summary adjudication is often a misnomer. Certainly, while Rule 56 "contemplates a summary judgment for part or all of the claim made in the prayer of the claimant," it "does not contemplate summary judgments on evidentiary matters en route to that goal."

....

Or, as some courts have put it, Rule 56 does not contemplate a summary judgment for any portion of a claim less than the whole.

6 — Pt. 2 Moore's Federal Practice ¶ 56.203. — 2 (citations and emphasis omitted).

In light of the foregoing analysis, the court modifies...