United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
BORDEN, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
JURISDICTION AND VENUE
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.
facts viewed in a light most favorable to the nonmovant are
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.
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.
STANDARDS OF REVIEW
Rule 37 Objection
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