Doud v. Yellow Cab of Reno, Inc.

• Decision Date: 30 March 2015
• Docket Number: No. 3:13–cv–00664–WGC.,3:13–cv–00664–WGC.
• Parties: James DOUD and Melodie Doud, Plaintiffs, v. YELLOW CAB OF RENO, INC., Defendant.
• Court: U.S. District Court — District of Nevada

96 F.Supp.3d 1076

James DOUD and Melodie Doud, Plaintiffs

v.YELLOW CAB OF RENO, INC., Defendant.

No. 3:13–cv–00664–WGC.

United States District Court, D. Nevada.

Signed March 30, 2015.

Terri Keyser–Cooper, Law Office of Terri Keyser–Cooper, Reno, NV, for Plaintiffs.

Michelle R. Bumgarner, Harvey Law Firm, PLLC, Reno, NV, for Defendant.

ORDER

WILLIAM G. COBB, United States Magistrate Judge.

Before the court is the Motion for Partial Summary Judgment on Defendant's 25th Affirmative Defense filed by Plaintiff James Doud. (Doc. # 31.)¹ Defendant Yellow Cab of Reno, Inc. filed a response (Doc. # 38), and Mr. Doud filed a reply (Doc. # 42). For the reasons set forth herein, the motion is granted.

I. BACKGROUND

Plaintiffs James and Melodie Doud filed their Complaint on December 4, 2013, asserting claims under Title III of the Americans with Disabilities Act (ADA) (James and Melodie Doud), associational discrimination under Title I of the ADA (James Doud), retaliation under Title I of the ADA (James Doud), as well as claims under Nevada Revised Statutes (NRS) 706.361 et. seq. (Melodie Doud) and 706.366² (Melodie and James Doud), and a State law claim for tortious failure to furnish facilities (Melodie and James Doud). (Compl., Doc. # 1.)

Specifically, the Complaint alleges that Melodie Doud is an amputee with one leg, is considered disabled for purposes of the ADA, and is married to James Doud. (Doc. # 1 at 2 ¶¶ 56.) Her disability requires that she utilize a portable electric scooter and crutch for mobility, and is frequently accompanied by her two service dogs. (Id.at 3 ¶ 11.) James Doud alleges that he was a long-term employee (and not independent contractor) of Yellow Cab. (Id. ¶ 12.)

The Douds allege that they were denied transportation by two Yellow Cab taxis at Reno's airport on April 9, 2013, and again on May 20, 2013, because of Melodie Doud's disability. They filed a complaint with the Nevada Transportation Authority (NTA), who issued a citation to Yellow Cab for violation of Nevada Administrative Code (NAC) 706.365 (later amended to reflect a violation of NRS 706.361 ) and a subsequent citation under NRS 706.366. A hearing was held, and the NTA confirmed that one or more Yellow Cab drivers denied transportation services to a person with a disability in violation of NRS 706.361(1), (4). They subsequently filed this action.

The Douds filed a Motion for Preliminary Injunction on March 19, 2014, related to their claim under Title III of the ADA. (Doc. # 9.) On August 28, 2014, United States District Judge Miranda M. Du entered an order granting Plaintiff's motion. (Doc. # 30.) Yellow Cab has appealed this order, but did not request a stay of this proceeding while the appeal is pending. (See Doc. # 36.)

The Douds then filed a partial motion for summary judgment related to the denial of service claims, which the court has since granted in part and denied in part. (See Mtn. at Doc. # 21; Order at Doc. # 69.) In that motion, the Douds sought summary judgment as to liability on their first (Title III ADA claim related to denial of service), fourth (NRS provisions) and sixth (tortious failure to furnish facilities) causes of action. The court granted the motion as to the first cause of action—the Title III ADA denial of service claim—but denied it as to the fourth and sixth causes of action brought under State law. (Doc. # 69.)³

James Doud filed the instant motion for partial summary judgment related to Yellow Cab's twenty-fifth affirmative defense on September 1, 2014. (Doc. # 31.) This affirmative defense asserts that pursuant to NRS 706.473, James Doud was an independent contractor and not an employee; therefore, he is excluded from the ADA's protections. (Yellow Cab's Answer, Doc. # 20 at 16.) Mr. Doud argues that regardless of nomenclature, based on Yellow Cab's practices James Doud was in fact an employee, entitled to the protections of the Title I of the ADA. (Doc. # 31.)

On November 21, 2014, the parties agreed to enter into the court's Short Trial Program. (Doc. # 49.) Judge Du approved the request, and the parties consented to the undersigned being assigned this case for all purposes. (See Docs. # 51, # 52, # 53.)

II. LEGAL STANDARD

“The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court.” Northwest Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir.1994) (citation omitted). In considering a motion for summary judgment, all reasonable inferences are drawn in favor of the non-moving party. In re Slatkin, 525 F.3d 805, 810 (9th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ). “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). On the other hand, where reasonable minds could differ on the material facts at issue, summary judgment is not appropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed.R.Civ.P. 56(c)(1)(A), (B).

If a party relies on an affidavit or declaration to support or oppose a motion, it “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.R.Civ.P. 56(c)(4).

In evaluating whether or not summary judgment is appropriate, three steps are necessary: (1) determining whether a fact is material; (2) determining whether there is a genuine dispute as to a material fact; and (3) considering the evidence in light of the appropriate standard of proof. See Anderson, 477 U.S. at 248–250, 106 S.Ct. 2505. As to materiality, only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment; factual disputes which are irrelevant or unnecessary will not be considered. Id. at 248, 106 S.Ct. 2505.

In deciding a motion for summary judgment, the court applies a burden-shifting analysis. “When the party moving for summary judgment would bear the burden of proof at trial, ‘it must come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.’... In such a case, the moving party has the initial burden of establishing the absence of a genuine [dispute] of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir.2000) (internal citations omitted). In contrast, when the nonmoving party bears the burden of proving the claim or defense, the moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323–25, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party satisfies its initial burden, the burden shifts to the opposing party to establish that a genuine dispute exists as to a material fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To establish the existence of a genuine dispute of material fact, the opposing party need not establish a genuine dispute of material fact conclusively in its favor. It is sufficient that “the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.1987) (quotation marks and citation omitted). “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 Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. Id. Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine dispute of material fact for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

That being said,

[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: (1) give an opportunity to properly support or address the fact; (2) consider the fact undisputed for purposes of the motion; (3) grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled to it; or (4) issue any other appropriate order.

Fed.R.Civ.P. 56(e).

At summary judgment, the court's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine dispute of material fact for trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505. While the evidence of the nonmovant is “to be believed, and all justifiable inferences are to be drawn in its favor,” if the evidence of the nonmoving party is merely colorable or is not significantly probative,...