Innes v. Bd. of Regents of the Univ. Sys. of Md.

• Decision Date: 06 August 2015
• Docket Number: Civil Action No. DKC 13–2800.
• Citation: 121 F.Supp.3d 504
• Parties: Joseph INNES, et al. v. The BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND, et al.
• Court: U.S. District Court — District of Maryland

121 F.Supp.3d 504

Joseph INNES, et al.

v.The BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF MARYLAND, et al.

Civil Action No. DKC 13–2800.

United States District Court, D. Maryland.

Filed Aug. 6, 2015.

Caroline Jackson, National Association of the Deaf, Silver Spring, MD, Joseph B. Espo, Brooke E. Lierman, Brown Goldstein and Levy LLP, Baltimore, MD, for Joseph Innes, et al.

Kathleen Evelyn Wherthey, Office of the Attorney General of Maryland, Baltimore, MD, for The Board of Regents of the University System of Maryland, et al.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, District Judge.

Presently pending and ready for resolution in this disability discrimination case is a motion for reconsideration filed by Defendants Board of Regents of the University System of Maryland ("the Board of Regents") and the University of Maryland College Park ("the University of Maryland") (collectively, "Defendants"). (ECF No. 83). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendants' motion for reconsideration will be denied.

I. Background

The facts and procedural history have been set forth in prior opinions and need not be repeated here. (See ECF Nos. 64 & 80). Plaintiffs, three deaf or hard of hearing individuals who attend sporting events at the University of Maryland, contend that Defendants failed to provide effective communication for deaf or hard of hearing patrons at Byrd Stadium and Comcast Center¹ and on the website, UMTerps.com. After discovery concluded and the parties cross moved for summary judgment, the court issued a memorandum opinion and order on March 16, 2015 denying both motions. (ECF Nos. 80 & 81). More facts will be provided in the analysis section below.

Defendants moved for reconsideration on March 27, 2015. (ECF No. 83). Plaintiffs requested several extensions of time to pursue settlement, and ultimately filed an opposition on July 13, 2015 when settlement discussions apparently failed. (ECF No. 93). Defendants replied. (ECF No. 94).

II. Standard of Review

As the parties acknowledge, because Defendants seek reconsideration of a non-final, interlocutory order, their motion is properly analyzed under Fed.R.Civ.P. 54(b). Rule 54(b) provides that "any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties ... may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities." Fed.R.Civ.P. 54(b). In the United States Court of Appeals for the Fourth Circuit, the precise standard governing a motion for reconsideration of an interlocutory order is unclear. Fayetteville Investors v. Commercial Builders, Inc., 936 F.2d 1462, 1472 (4th Cir.1991). While the standards articulated in Rules 59(e) and 60(b) are not binding in an analysis of Rule 54(b) motions, Am. Canoe Ass'n v. Murphy Farms, Inc., 326 F.3d 505, 514 (4th Cir.2003), courts frequently look to these standards for guidance in considering such motions. Akeva, LLC v. Adidas Am., Inc., 385 F.Supp.2d 559, 565–66 (M.D.N.C.2005).

Public policy favors an end to litigation and recognizes that efficient operation requires the avoidance of re-arguing questions that have already been decided. Most courts have adhered to a fairly narrow set of grounds on which to reconsider their interlocutory orders and opinions. Courts will reconsider an interlocutory order in the following situations:

(1) there has been an intervening change in controlling law; (2) there is additional evidence that was not previously available; or (3) the prior decision was based on clear error or would work manifest injustice.

Id. (citations omitted); see also Beyond Sys., Inc. v. Kraft Foods, Inc., No. PJM–08–409, 2010 WL 3059344, at *1–2 (D.Md. Aug. 4, 2010) (applying this three-part test when evaluating a motion for reconsideration under Rule 54(b) ). Importantly, a motion for reconsideration under Rule 54(b) may not be used merely to reiterate arguments previously rejected by the court. Beyond Sys., Inc., 2010 WL 3059344, at *2.

III. Analysis

Defendants raise the following arguments in their motion for reconsideration: (1) Plaintiffs now lack standing to pursue equitable and declaratory relief regarding the stadiums; (2) the claims for equitable and declaratory relief as to the stadiums now are moot; (3) the demanded accommodation by Plaintiffs as to the stadiums poses an undue burden as a matter of law; (4) all of Plaintiffs' claims concerning the stadiums are barred by the statute of limitations; and (5) Plaintiffs waived all claims for monetary damages as to the website. (ECF No. 83–1).

Defendants represent that since the summary judgment briefing, the University has installed fully functional ribbon boards in both stadiums. (See ECF No. 83–2 ¶ 9, Kaplan Aff. ("The installation of the ribbon boards was completed at Byrd Stadium in August 2014, in time for the season's first home football game, and at the Xfinity Center in October 2014, in time for the season's first home basketball game.")). Joshua Kaplan, an Associate Athletic Director for Facilities, Operations, and Events at the University of Maryland College Park, submitted an affidavit, which states in relevant part:

10. The ribbon boards have provided captioning of the aural content broadcasted for football games at Byrd Stadium and men's and women's basketball games at the Xfinity Center since the beginning of the 2014–15 academic year. In addition, post-game press conferences for both football and men's and women's basketball games were captioned beginning with the final home football game on November 29, 2014. Captioning for lacrosse, wrestling, and gymnastics events held in these athletic venues is available if requested on-line two weeks in advance of the event.

11. Beginning with the first home football game in August 2014, the ribbon board captioning has been provided by Home Team Captions, a vendor that uses a ‘caption writer.’ The caption writer is an individual who types the captions in real time as the aural content is broadcasted, rather than relying on speech-to-text software to generate captions. The cost to the University for Home Team Captions' services is $325.00 per basketball game and $565 per football game. Captioning for post-game press conferences is an additional cost.

(ECF No. 83–2 ¶¶ 10–11).

A. Standing

Defendants argue that Plaintiffs now lack standing to pursue equitable relief because, by installing the ribbon boards at both stadiums, the University "essentially [has] remedied the alleged discriminatory conditions of which the plaintiffs complained." (ECF No. 83–1, at 12). Defendants further contend that Plaintiffs are not entitled to injunctive or declaratory relief as to the stadiums because the changes sought recently have been implemented and Plaintiffs cannot show that they will "suffer [an] injury which is concrete, particularized and imminent." (ECF No. 83–1, at 15). Defendants cite an affidavit from Mr. Kaplan, in which he attests that "[t]he University Athletic Department will not remove, deactivate, or significantly alter the ribbon boards at Byrd Stadium and the Xfinity Center, or discontinue providing captioning on those ribbon boards, in the near or foreseeable future." (ECF No. 83–¶ 13). Plaintiffs counter that Defendants conflate standing and mootness, and that because standing is measured at the commencement of litigation, they have standing.

As an initial matter, the March 16 opinion did not even reach the issue of the propriety of the various forms of relief sought in the second amended complaint (e.g., compensatory damages and injunctive and declaratory relief) because liability could not be determined as a matter of law. The court stated: "With the denial of summary judgment, [ ] it is premature to address questions of damages or other remedies." (ECF No. 80, at 31). Second, Defendants in Feldman v. Pro Football, Inc., 579 F.Supp.2d 697 (D.Md.2008), raised a similar standing issue. Specifically, defendants in Feldman, a case involving alleged violations of Title III, argued that plaintiffs lacked standing because: "(1) Plaintiffs cannot establish an injury in fact because the alleged discrimination is no longer occurring and because there is no real and immediate threat that they will be discriminated against by Defendants in the future; and (2) Plaintiffs' allegations of prior injury cannot be redressed by this Court's grant of injunctive or declaratory relief because Defendants' actions have remedied any prior injury." Id. at 704–05. Judge Williams rejected defendants' standing argument and his rationale applies here:

"[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Standing is "[t]he requisite personal interest that must exist at the commencement of the litigation." Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). See also Johnson v. Bd. of Regents of the Univ. of Georgia, 263 F.3d 1234, 1267 (11th Cir.2001) ("[S]tanding to sue is generally measured at the time of the Complaint, with the effects of subsequent events generally analyzed under mootness principles."); Equal Access Educ. v. Merten, 325 F.Supp.2d 655, 667 (E.D.Va.2004) ("It is clear that standing must exist at the time suit is filed."); Richmond Medical Center for Women v. Gilmore, 55 F.Supp.2d 441, 472 (E.D.Va.1999) (noting that actions taken after commencement "do not affect the standing inquiry at all because standing is measured at the time the action is filed.").

To establish standing, Plaintiffs must show that: (1) they "suffered an injury in fact—an invasion of a legally protected interest which is (1) concrete and particularized, and (b) actual or

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