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Nekouee v. Captain D'S, LLC

United States District Court, M.D. Alabama, Northern Division

February 21, 2019

FRED NEKOUEE, Plaintiff,
v.
CAPTAIN D'S, LLC, Defendant.

          MEMORANDUM OPINION AND ORDER

          GRAY M BORDEN, UNITED STATES MAGISTRATE JUDGE.

         Now before the court are a Motion for Summary Judgment filed by Captain D's, LLC (“Captain D's”) (Doc. 32), and Captain D's Objection to, or in the Alternative, Motion to Strike or Exclude Plaintiff's October 11, 2018 Inspection Report. Doc. 37.

         Fred Nekouee filed this lawsuit on February 12, 2018 and amended his complaint on August 13, 2018. Docs. 1 & 26. He brings a single count setting out separate denials of access to a public accommodation in violation of the Americans with Disabilities Act (“ADA”). After Nekouee filed his initial complaint, he sought to amend the complaint to add additional violations which were revealed in an expert witness report submitted after the deadline to amend the complaint had passed. The court allowed the amendment in part because the prejudice to Captain D's was minimized by the fact that discovery was ongoing at the time. Doc. 25.

         Pursuant to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73, the parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. Docs. 11 & 12. After careful consideration of the parties' submissions and the applicable law, for reasons to be discussed below, the motion for summary judgment is due to be GRANTED in part, and the objection is due to be OVERRULED.

         I. JURISDICTION AND VENUE

         The court has subject-matter jurisdiction over the claims in this action pursuant to 28 U.S.C. § 1331. The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations to support both.

         II. FACTS

         The facts viewed in a light most favorable to the nonmovant are as follows:

         Nekouee is mobility impaired and uses a wheelchair. Doc. 36-2 at 1. He visited the Captain D's property at 2674 Zelda Road in Montgomery, Alabama and found violations of the ADA. Doc. 1 at 1-3. After he set forth these violations in a complaint (Doc. 1), Captain D's engaged an ADA expert, Kirk Tcherneshoff, who made recommendations to make the facility ADA-compliant. Doc. 34-1 at 2. Based on these recommendations, Captain D's made structural renovations to bring the facility into compliance with the ADA. Doc. 34-1 at 3. In its motion for summary judgment, Captain D's takes the position that it remedied all of the deficiencies identified by Nekouee. Doc. 33 at 2. It offers the affidavit of Larry Jones, the Vice President of Construction for Captain D's, to demonstrate that Captain D's made the recommended renovations. Doc. 34-1. Captain D's also deposed Nekouee's expert, David Nekouee, and asked whether renovations would remediate the ADA violations identified. Doc. 34-2.

         Nekouee again visited the Captain D's property on October 11, 2018. Doc. 36-1.He states in a declaration that he discovered continuing violations, which were confirmed by his retained expert, including defective alterations and repairs. Doc. 36-2.

         III. STANDARDS OF REVIEW

         A. Rule 37 Objection

         “If a party fails to provide information . . . as required by Rule 26(a) or (e), the party is not allowed to use that information . . . to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed.R.Civ.P. 37(c)(1). In determining whether the failure to disclose was justified or harmless, courts consider the non-disclosing party's explanation for its failure to disclose, the importance of the information, and any prejudice to the opposing party. Romero v. Drummond Co., 552 F.3d 1303, 1321 (11th Cir. 2008).

         B. ...


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