Deck v. American Hawaii Cruises, Inc.

• Decision Date: 30 March 2000
• Docket Number: Civ.No. 98-0002 ACK.
• Citation: 121 F.Supp.2d 1292
• Parties: Suzanne DECK, Plaintiff, v. AMERICAN HAWAII CRUISES, INC., a Delaware Corporation, Defendants.
• Court: Hawaii Supreme Court

121 F.Supp.2d 1292

Suzanne DECK, Plaintiff, v. AMERICAN HAWAII CRUISES, INC., a Delaware Corporation, Defendants.

Civ.No. 98-0002 ACK.

United States District Court, D. Hawai`i.

March 30, 2000.

Michael K. Livingston, Davis & Levin, Honolulu, HI, for plaintiff.

John R. Lacy, Normand R. Lezy, Goodsill Anderson Quinn & Stifel, Honolulu, HI, for defendant.

ORDER GRANTING DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT

KAY, District Judge.

BACKGROUND

This action arises out of a seven-day interisland cruise taken by Plaintiff Suzanne Deck ("Plaintiff") aboard Defendant American Hawaii Cruises' cruise ship S.S. Independence, from February 15, 1997 to February 22, 1997. Plaintiff was dissatisfied with her cruise, and as a result filed the instant lawsuit against Defendant. In her complaint, Plaintiff alleges causes of action for violations of the Americans with Disabilities Act ("ADA"), Hawaii's disability statute, false advertising, and unfair/deceptive trade practices.

After hearing oral argument, this Court previously denied Defendant's Motion for Summary Judgment, filed on August 25, 1998, and granted in part Plaintiff's cross-motion for partial summary judgment, filed on November 5, 1998. See Order issued Jan. 15, 1999. This Court determined that to the extent Plaintiff's claims fall within subpart D of the ADA regarding new construction and alterations of facilities, these claims were not covered by the ADA. However, to the extent that Plaintiff raised other ADA claims, the Court held that these claims were applicable to cruise ships and were properly brought before the Court.

Plaintiff subsequently filed the instant Motion for Summary Judgment on January 6, 2000, supported by a Separate Concise Statement of Facts, seeking a determination of liability as to Plaintiff's ADA claim. Defendant filed a Memorandum in Opposition on March 2, 2000, supported by a Separate Concise Statement of Material Facts, claiming that genuine issues of material fact exists that preclude summary judgment. Plaintiff filed a Reply on March 13, 2000.

On March 2, 2000, Defendant filed a Counter Motion to Dismiss or in the Alternative for Summary Judgment on Plaintiff's Claims Under the ADA, arguing that Plaintiff's ADA claims should be dismissed because Plaintiff has failed to allege the requisite colorable threat of imminent harm. Plaintiff filed an Opposition on March 10, 2000.¹ Defendant filed a Reply on March 14, 2000,² and filed a Supplemental Memorandum and Concise Statement of Facts on March 20, 2000.³ The Court heard oral argument on March 20, 2000.

On March 21, 2000, Plaintiff submitted an Ex Parte Motion for Leave to File Declaration of Suzanne Deck in Further Support of Plaintiff's Memorandum in Opposition to Defendant's Counter Motion to Dismiss or in the Alternative for Summary Judgment.⁴

STANDARD

I MOTION TO DISMISS

Under Rule 12(b)(6), in determining whether a motion to dismiss for failure to state a claim upon which relief can be granted, this Court must accept as true the plaintiff's allegations contained in the complaint and view them in a light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 334 (9th Cir.1990); Shah v. County of Los Angeles, 797 F.2d 743, 745 (9th Cir. 1986). Thus, the complaint must stand unless it appears beyond doubt that the plaintiff has alleged no facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988). A complaint may be dismissed as a matter of law for two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory. Balistreri, 901 F.2d at 699; Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984).

In essence, as the Ninth Circuit has stated, "[t]he issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of plaintiffs' claims. Id.

A motion under Rule 12(b)(6) should also be granted if an affirmative defense or other bar to relief is apparent from the face of the Complaint, such as lack of jurisdiction or the statute of limitations. 2A J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice, ¶ 12.07 at 12-68 to 12-69 (2d ed.1991 & supp. 1191-92) (citing Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (emphasis added)).

II SUMMARY JUDGMENT

Summary judgment shall be granted where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R.Civ.P. 56(c). The standard for summary adjudication is the same. See State of Cal. v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). One of the principal purposes of the summary judgment procedure is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The United States Supreme Court has declared that summary judgment must be granted against a party who fails to demonstrate facts to establish an element essential to his case where that party will bear the burden of proof of that essential element at trial. See id. at 322, 106 S.Ct. 2548. "If the party moving for summary judgment meets its initial burden of identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact [citations omitted], the nonmoving party may not rely on the mere allegations in the pleadings in order to preclude summary judgment." T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987).

Rather, Rule 56(e) requires that the nonmoving party set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial. See id. at 630. At least some "significant probative evidence tending to support the complaint" must be produced. Id. Legal memoranda and oral argument are not evidence and do not create issues of fact capable of defeating an otherwise valid motion for summary judgment. See British Airways Bd. v. Boeing Co., 585 F.2d 946, 952 (9th Cir.1978).

The standard for a grant of summary judgment reflects the standard governing the grant of a directed verdict. See Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Thus, the question is whether "reasonable minds could differ as to the import of the evidence." Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505.

The Ninth Circuit has established that "[n]o longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment." California Architectural Bldg. Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987). Moreover, the United States Supreme Court has stated that "[w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Indeed, "if the factual context makes the nonmoving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Franciscan Ceramics, 818 F.2d at 1468 (emphasis in original) (citing Matsushita, 475 U.S. at 587, 106 S.Ct. 1348). Of course, all evidence and inferences to be drawn therefrom must be construed in the light most favorable to the nonmoving party. See T.W. Electrical Serv., 809 F.2d at 630-31.

DISCUSSION

I DEFENDANT'S COUNTER MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT ON PLAINTIFF'S ADA CLAIM

Since Defendant's counter-motion deals with a fundamental aspect of this case, the Court will address this motion first. Defendant seeks dismissal of or in the alternative summary judgment on Plaintiff's ADA claim (Count I of Plaintiff's Complaint). Defendant argues that Plaintiff has no standing to sue for injunctive relief under the ADA.

Plaintiff has the burden of establishing that she has standing to raise the claims asserted. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). For purposes of a motion to dismiss, in considering a challenge to standing, a court takes as true all material allegations of the complaint and construes the complaint in favor of the plaintiff. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). To withstand summary judgment, a plaintiff "must set forth by affidavit or other evidence specific facts ... which for purpose of the summary judgment motion will be taken to be true" to demonstrate standing. Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal quotations omitted). These facts "must affirmatively appear in the record." Spencer v. Kemna, 523 U.S. 1, 10-11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

The Supreme Court has developed a three-part test to determine whether a plaintiff has standing to bring a claim. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. The first prong of this test is the "injury in fact" requirement: "[T]he plaintiff must have suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized; and (b) `actual or imminent', not `conjectural' or `h...