Bailey v. Bd. of Commissioners of the La. Stadium
| Decision Date | 21 February 2020 |
| Docket Number | CIVIL ACTION CASE NO. 18-5888 |
| Citation | 441 F.Supp.3d 305 |
| Parties | Shelby BAILEY v. BOARD OF COMMISSIONERS OF the LOUISIANA STADIUM AND EXPOSITION DISTRICT, et al. |
| Court | U.S. District Court — Eastern District of Louisiana |
Andrew David Bizer, Emily A. Westermeier, Garret S. DeReus, Bizer & DeReus, LLC, New Orleans, LA, for Shelby Bailey.
H. Michael Bush, Edward Nicholas George, Chaffe McCall LLP, Jeffery Alan Wheeler, Louisiana Department of Justice, New Orleans, LA, for Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France.
Loretta G. Mince, Michael Ryan Dodson, Fishman Haygood, LLP, Jeffery Alan Wheeler, Louisiana Department of Justice, New Orleans, LA, Christopher Neal Walters, Louisiana Department of Justice, Baton Rouge, LA, for SMG.
SECTION: "G"(2)
ORDER AND REASONS
Pending before the Court is Defendants SMG's "Motion for Summary Judgment on Modifications."1 Plaintiff Shelby Bailey ("Plaintiff") filed a complaint alleging that the owners and operators of the Mercedes-Benz Superdome (the "Superdome"), failed to provide him with handicap accessible seating during New Orleans Saints (the "Saints") football games.2 In the instant motion, SMG argues that all of the remaining claims against SMG should be dismissed because SMG is not an operator as defined by Title III of the Americans with Disabilities Act ("ADA").3 Considering SMG's motion, the memoranda in support and opposition, the record, and the applicable law, the Court grants the motion in part and denies the motion in part.
On June 14, 2018, Plaintiff filed a Complaint in this Court naming as defendants SMG as the operator of the Superdome, the Board of Commissioners of the Louisiana Stadium and Exposition District (the "Board") as the owner of the Superdome, and Kyle France ("France") in his official capacity as chairman of the Board (collectively, "Defendants").4 Plaintiff brings claims against the Board and France for declaratory and injunctive relief pursuant to Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. , and the Rehabilitation Act, 29 U.S.C. § 794, et seq.5 Plaintiff brings claims against SMG for declaratory and injunctive relief pursuant to Title III of the ADA.6 Plaintiff also seeks recovery of attorneys' fees and costs.7
According to the Complaint, Plaintiff has a disability and relies on an electric wheelchair for mobility.8 Plaintiff alleges that he has been a Saints season ticket holder for over 30 years.9 Plaintiff alleges that prior to 2011, his seat was located on a wheelchair accessible raised platform in the 100 Level section of the Superdome.10 Plaintiff alleges that in 2011, Defendants began extensive renovations on the Superdome and reconfigured the accessible seating section for patrons with disabilities.11 Plaintiff alleges that as a result of the renovations, the wheelchair accessible seating at the Superdome was moved to other positions where the views are obstructed by barriers and other patrons or players standing during the game, or the seating is not fully accessible by wheelchair.12
Plaintiff alleges that Defendants have been on notice of ongoing accessibility issues for many years.13 According to the Complaint, in 2008 the United States Department of Justice conducted an inspection of the Superdome and issued a report detailing violations of ADA regulations.14 Additionally, Plaintiff alleges that Defendants were sued by private litigants in 2018 regarding ongoing accessibility violations.15
As a result, Plaintiff alleges that Defendants have failed to comply with various parts of the ADA and Rehabilitation Act.16 Plaintiff seeks compensatory and nominal damages along with declaratory and injunctive relief, and attorneys' fees.17
On December 13, 2019, the Court granted in part and denied in part Defendant SMG's Motion for Judgment on the Pleadings. 18
Accepting as true the allegations in the Complaint, the Court found that SMG could be held liable as an operator of the Superdome because SMG controls modification of the Superdome and could cause the Superdome to comply with the ADA.19 Additionally, viewing the allegations in the Complaint in the light most favorable to Plaintiff, the Court found that Plaintiff's claims for injunctive and declaratory relief were timely because the Complaint was filed within one year of SMG allegedly denying Plaintiff "the full and equal enjoyment" of a place of public accommodation.20 However, the Court found that Plaintiff's claim regarding future renovations was not ripe for judicial review.21 Accordingly, the Court granted the motion to the extent it sought dismissal of Plaintiff's claim regarding future renovations but denied the motion in all other respects.22
SMG filed the instant motion on December 30, 2019.23 Plaintiff filed an opposition on January 7, 2020.24 The Board and France filed their own response to the instant motion on January 7, 2020.25 SMG, with leave of Court, filed a reply in further support of the motion on January 17, 2020.26 At the request of the parties, the Court set this motion for oral argument on February 4, 2020 at 10:00 a.m.27
In the instant motion, SMG argues that it does not have control over the alleged discriminatory conditions in the Superdome and therefore, cannot be held liable as an "operator" under Title III of the ADA.28 SMG argues that it is merely the manager of the Superdome and that, as the owner of the Superdome, the Board would have to be the one to approve any structural modification.29 SMG contends that pursuant to various agreements between it and the Board, SMG is unable to implement any of the proposed solutions or modifications proposed by Plaintiff.30 SMG argues that because it does not have control over the aspects of the Superdome Plaintiff seeks to modify, it is not an "operator" and is therefore entitled to be dismissed.31
SMG contends that it does not have the power to implement the modifications set forth by Plaintiff through the report of his retained expert James Terry ("Mr. Terry").32 SMG argues that in an analogous case, Neff v. American Dairy Queen, Inc. , the district court granted summary judgment because it determined that the plaintiff provided no evidence that the defendant could require an existing franchise to make modifications to an existing structure.33 SMG argues that in affirming the district court's holding, the Fifth Circuit determined that supervisory authority without more does not support a holding that the defendant "operated" the stores with respect to the removal of architectural barriers.34 SMG points to the specific modifications proposed by Plaintiff and contends that each solution involves a capital improvement, and, as in Neff , SMG does not have the authority to implement the modifications without direction, approval and funding from the Board.35
Additionally, SMG responds to the suggestion of Plaintiff's expert, Mr. Terry, that "Defendants should modify the content of video programming shown on monitors in the Superdome during Saints games to comply with the ADA's ‘effective communication’ requirements."36 First, SMG contends that Plaintiff did not include an "effective communication" claim in his Complaint, and the claim should be rejected for this omission.37 Second, SMG argues that the evidence establishes that the Saints organization, not SMG, controls the content displayed on monitors in the Superdome during Saints games.38 SMG contends that because it does not have the authority to implement this proposed solution, it should be dismissed.39
Finally, SMG notes that the Court, in its December 13, 2019 Order, cited the Ninth Circuit's opinion in Disabled Rights Action Committee v. Las Vegas Events, Inc. ,40 in ultimately concluding that SMG could be held liable as an operator of the Superdome.41 SMG contends that the plaintiff in Disabled Rights Action Committee was "permitted to engage in discovery ‘to develop the factual basis for th[e] claim’ that the defendants had control over the modifications at issue."42 SMG argues that here, Plaintiff has been afforded an opportunity to engage in discovery, and the evidence shows that SMG is entitled to summary judgment.43
In opposition to the motion, Plaintiff argues that the contractual agreements between SMG and the Board show that SMG could effectuate the modifications Plaintiff suggested; therefore, Plaintiff contends that SMG is the operator of the Superdome.44 Additionally, Plaintiff argues that it is not a valid defense for SMG to state that the National Football League regulations prevent it from re-installing on-field platforms.45
First, Plaintiff contends that SMG is the Superdome's operator and as such, can modify the physical aspects of the Superdome to make it comply with the ADA.46 Plaintiff argues that Neff is distinguishable from the case here because in Neff , the franchisor never prevented the franchisee from making modifications and therefore, the franchisor never operated the store.47 Plaintiff contends that SMG "operates" the Superdome because it controls, directs, and manages the Superdome.48 Plaintiff argues that the depositions of Mr. Freeman and Mr. Thornton shows that SMG is the true manager of the Superdome and that LSED is less involved.49 Furthermore, Plaintiff contends that the Management Agreement and the Support Agreement show that SMG is responsible for the day-to-day management of the Superdome.50 Accordingly, Plaintiff argues that SMG controls, directs, and manages the Superdome and, thus, operates it.51
Responding to SMG's argument that the Board must approve all capital improvement projects, Plaintiff contends that this relationship does not negate SMG's status as an operator.52 Plaintiff argues that if SMG makes a venue assessment and there's a maintenance cost that is necessary,...
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