Rodriguez v. Canóvanas Plaza Rial Econo Rial, LLC
| Decision Date | 13 July 2020 |
| Docket Number | Civil No. 17-1943 (BJM) |
| Parties | NORBERTO MEDINA RODRIGUEZ, Plaintiff, v. CANÓVANAS PLAZA RIAL ECONO RIAL, LLC PANADERÍA Y REPOSTERÍA LA SEVILLANA, INC., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Norberto Medina Rodriguez ("Medina") brought this action against Canóvanas Plaza Rial, Econo Rial, LLC ("Econo")1, and Panadería y Repostería La Sevillana, Inc. ("La Sevillana") (collectively, "defendants"), alleging unlawful discrimination in a place of public accommodation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (the "ADA"). On August 30, 2019, parties filed cross motions for summary judgment. Dkts. 177, 182. I denied defendants' motion and granted Medina's motion in part. Dkt. 221. I also declined to rule on certain portions of parties' motions and granted time for one additional deposition. Id. at 10. Medina moved for partial summary judgment again after completion of that deposition, Dkt. 247, and defendants opposed, Dkt. 277. Medina replied, Dkt. 282, and defendants submitted a surreply, Dkt. 293. Although defendants did not move for summary judgment a second time, they renewed their arguments regarding mootness. See Dkt. 277 at 7, 10. This case is before me by consent of the parties. Dkts. 17, 18.
For the reasons set forth below, Medina's motion for partial summary judgment is DENIED. I also find that Medina's claim is moot as it relates to the installation of signs in defendants' parking lot. Further, Medina is ordered to show cause, within ten days of this order,why his claim as it relates to the size of the van accessible parking spaces should not be dismissed for want of standing.
Before proceeding to summarize the record, I will explain which portions of the record I can consider. Designed to "relieve the district court of any responsibility to ferret through the record to discern whether any material fact is genuinely in dispute," Local Rule 56 requires a party moving for summary judgment to accompany its motion with a brief statement of facts, set forth in numbered paragraphs and supported by citations to the record, which the movant contends are uncontested and material. CMI Capital Market Inv. v. Gonzalez-Toro, 520 F.3d 58, 62 (1st Cir. 2008); D.P.R. L. Civ. R. 56(b), (e). The opposing party must admit, deny, or qualify those facts, with record support, paragraph by paragraph. D.P.R. L. Civ. R. 56 (c), (e). The opposing party may also present, in a separate section, additional facts, set forth in separate numbered paragraphs. Id. 56(c). While the "district court may forgive a party's violation of a local rule," litigants ignore the local rule "at their peril." Mariani-Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 219 (1st Cir. 2007).
Medina's motion for summary judgment was accompanied by a statement of uncontested facts ("PSUF"), Dkt. 247-1, to which defendants responded, Dkt. 278. I have disregarded statements of fact, denials, and qualifications that were not supported by a record citation. See Davila v. Potter, 550 F. Supp. 2d 234, 239 (D.P.R. 2007). I have also disregarded legal conclusions presented as statements of fact. Additionally, I do not consider the declaration of Richard Acree, a proffered expert for defendants, because defendants never provided Medina with an expert report and thus failed to comply with Federal Rule of Civil Procedure 26(a)(2). See PSUF ¶ 52; Fed. R. Civ. P. 26(a)(2)(B) (). Medina argues that I may not consider the declaration of Arturo Mayol Corretjer ("Mayol") for similar reasons, contending that Mayol is offered as an expert witness with none of the required disclosures. Medina is correct that I cannot consider Mayol's statement to the extent he is offered as an expert. However, defendants may offer Mayol as a lay witness capable of testifying to the fact that his company was hired to perform construction services for Econo, he measured defendants' accessible parking spaces, and he determined that the parking spaces are 96 inches wide and that the access aisles are 60 inches wide. None of this testimony constitutes an opinion, whether lay or expert, and it is all based on personal knowledge. See Dkt. 72-1 ¶¶ 3, 6, 11, 12, 15; see also Langer v. Wasserman, No. CV 18-2321-MWF-AS, 2019 WL 7900038, at *3 (C.D. Cal. Nov. 26, 2019) (). Finally, I cannot consider the deposition transcript of Julio Bonilla Rivera ("Bonilla"), as that transcript is provided in Spanish without English translation. See Dkt. 277-1; Puerto Ricans For Puerto Rico Party v. Dalmau, 544 F.3d 58, 67 (1st Cir. 2008) (quoting 48 U.S.C. § 864) ("All pleadings and proceedings in the United States District Court for the District of Puerto Rico shall be conducted in the English language."). For the same reason, I cannot consider the exhibits at docket numbers 277-3 or 278-1.
Medina reports suffering from osteoarthritis, which limits his mobility and causes pain in his legs. Dkt. 182-4 ("Medina Decl.") ¶¶ 2-3. On November 15, 2016, Medina visited Canóvanas Plaza Rial, a shopping center where Econo operates a supermarket and where La Sevillana operates a bakery. See id. ¶ 5. The parking lot at the shopping center services both the supermarket and the bakery. PSUF ¶ 17. It includes several parking spaces intended for visitors with disabilities. Id. ¶ 18.
When Medina arrived at the shopping center, he parked in a parking space designated as accessible. Medina Decl. ¶ 5. According to Medina, the parking space was missing a sign and had confusing pavement markings. Id. He also found that the parking space and access aisle were both too small, estimating that they each measured less than 96 inches. Id. As a result, he found it difficult but not impossible to access the shopping center. Id.
On July 11, 2017, Medina filed suit, seeking injunctive relief under the ADA related to various aspects of defendants' property, including the parking lot. Dkt. 1. As litigation progressed, Medina's attorney hired Pedro L. Alfaro del Toro ("Alfaro"), who maintains an architectural consulting practice, to offer an expert opinion on defendants' ADA compliance. PSUF ¶¶ 1-3. Alfaro visited the property on July 4, 2018, and again on April 3, 2019, and prepared reports to document his observations and opinions regarding the property. Id. ¶¶ 15-16. Medina's motion for partial summary judgment is based primarily on Alfaro's April 3 visit and related report, which also includes photographs of the parking lot. See Dkt. 182-2 at 16-31.
Alfaro observed that the parking lot includes nine parking spaces intended for disabled visitors, including two spaces for vans and seven for cars. Id. at 17. Four of these spaces are close to the bakery. Id. Alfaro observed that, of these four spaces, only two were marked with the international symbol of accessibility, and neither of these signs was centered. Id. Alfaro also examined five spaces in proximity to the supermarket. Id. at 22. Two of these were for vans and three for cars. Id. He observed that visitors using the three car spaces must maneuver behind parked cars to access the supermarket entrance, and he recommended that these spaces be relocated to avoid this arrangement. Id. Similarly, Alfaro stated that two van spaces were not in close proximity to an accessible route, and he recommended that these spaces be relocated such that visitors who use them do not have to cross through vehicular traffic lanes to access the supermarket entrance. Id. He also observed that one of the car spaces was missing a sign, and the two signs that were present were not centered. Id. at 23. Additionally, Alfaro found that the van spaces measured 126 inches and had 65-inch access aisles. Id. at 25-26. He described the pavement markings as faded and confusing and referred to the asphalt as rough and unstable. See, e.g., id. at 24. Alfaro also opined that the parking lot was improperly maintained and stated that historical satellite imagery indicated that the parking lot has been non-compliant in the past. Id. at 11-12.
On April 16, 2019, defendants' attorney sent an email to Medina's attorney representing that defendants do not have internal policies related to ADA compliance efforts and that lease agreements among defendants do not delineate responsibility for ADA compliance as related to the parking lot or other accessible features. Dkt. 182-3.
On September 12, 2019, Bonilla, Econo Store Manager, prepared a declaration. Dkt. 189-1 ("Bonilla Decl."). Bonilla stated that the shopping center is undergoing a reconstruction process, which will contemplate ADA compliance. Id. ¶¶ 3, 9. He also stated that the parking lot is painted and repaved as part of an unwritten maintenance program and that Econo maintains unwritten policies to ensure ADA compliance. Id. ¶¶ 6, 8, 12. Bonilla also explained that all accessible parking spaces had their corresponding signs and that the marking of the van accessible spaces had been relocated to provide an additional two inches. Id. ¶¶ 4-5, 7. Attached to Bonilla's declaration are photographs, which he took. Id. ¶ 2. These depict accessible parking spaces, all of which have their corresponding signs. Id. at 6-9.
Mayol, Executive Vice-President of Bellagio Corp., also...
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