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Dalton v. Simonson Station Stores, Inc.

United States District Court, D. Minnesota

October 29, 2019

Aaron Dalton, Plaintiff,
v.
Simonson Station Stores, Inc., and Bemidji Management Company L.L.C., Defendants.

          Padraigin Browne, Browne Law LLC, for Plaintiff.

          Edward Peter Sheu and Brian J. Linnerooth, Best & Flanagan LLP, for Defendants.

          SECOND AMENDED MEMORANDUM OPINION AND ORDER

          SUSAN RICHARD NELSON, United States District Judge

         Before the Court are the parties' cross motions for summary judgment [Doc. Nos. 86 & 91] and Plaintiff's Objection [Doc. No. 81] to a portion of Magistrate Judge Leo I. Brisbois' September 11, 2018 Amended Order [Doc. No. 79]. For the reasons set forth below, Defendants' Motion for Summary Judgment is granted, Plaintiff's Motion for Summary Judgment is denied, and Plaintiff's Objection is overruled as moot.

         I. BACKGROUND

         A. Factual Background

         Plaintiff Aaron Dalton (“Dalton”), a resident of Burnsville, Minnesota, suffers from cerebral palsy and uses a wheelchair for mobility, as well as a van with a wheelchair lift. (Second Am. Compl. [Doc. No. 80] ¶¶ 10, 13.)

         1. June 2017 Visit

         This case stems from Dalton's June 24, 2017 visit to the parking lot of the Simonson Station, a service station and convenience store in Alexandria, Minnesota. (See Sheu Decl. [Doc. No. 88], Ex. 1 (Pl.'s Interrog. Response Nos. 3-4); id., Ex. 3 (Pl.'s Interrog. Response No. 17); Second Am. Compl. ¶¶ 13, 14, 12.) Defendant Simonson Station Stores, Inc. is the operator and lessee of the station at issue, and Defendant Bemidji Management Company L.L.C. is the owner and lessor of the station. (Second Am. Compl. ¶¶ 11-12.)

         The Simonson Station, built in the 1970s, is an “existing facility” under the Americans with Disabilities Act (“ADA”). (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 5; Hjelle Decl. [Doc. No. 89] ¶ 5.) In 2011, the parking lot and building were remodeled. (Hjelle Decl. ¶ 6.) The contractor that performed the work, Innes Construction, flattened the exterior asphalt and concrete surfaces, including the area around the east entrance, as much as possible, given the pre-existing location of the building, gas pumps, underground gas storage, driving lanes, and need for drainage. (Id. ¶¶ 9-11.) Innes Construction reduced the slope of the surface in front of the east entrance as much as possible, (id. ¶ 11), and the City of Alexandria inspected and approved the concrete and asphalt work. (Id.)

         On Dalton's initial visit to the Simonson Station in June 2017, he observed several violations of the ADA and the Americans with Disabilities Act Accessibility Guidelines (“ADAAG”)[1] related to proper signage, accessible parking spaces, parking lot access aisles, an accessible entrance, excessive slopes, and a safe route of transfer. (See Sheu Decl., Ex. 1 (Pl.'s Interrog. Response No. 6); see also Second Am. Compl. ¶¶ 14-24.) At that time, the designated accessible parking was located on the south side of the building, closest to the east entry, which was the designated accessible entry. (See Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 6, Ex. 2 at 4.) Based on the conditions that Dalton observed, he did not feel comfortable exiting his vehicle, and he left the Simonson Station. (Dalton Decl. [Doc. No. 95] ¶ 11.)

         2. Litigation Commences

         Following that visit, Dalton commenced this disability discrimination lawsuit in September 2017, asserting violations of the ADA, 42 U.S.C. §§ 12101, and the ADAAG, for which he seeks injunctive relief.[2] (See generally, Compl. [Doc. No. 1].)

         In October 2017, Defendants moved to dismiss the initial Complaint, arguing that they had remedied the accessibility violations, rendering Dalton's allegations moot, and the Court therefore lacked subject matter jurisdiction. (See Sept. 11, 2018 Am. Order at 1.) Specifically, Defendants had added an additional reserved parking space, an access aisle adjacent to each reserved space, and signage identifying the reserved parking. (See May 23, 2018 Order [Doc. No. 53] at 3.) Plaintiff did not respond to Defendants' motion and instead filed an Amended Complaint without seeking leave of court. Among other things, Dalton alleged that the reserved parking spaces were too steeply sloped, that the route from the reserved spaces to the entrance extended into the vehicular traffic lane, and interior counters were not the proper height at a delicatessen inside the Simonson Station. (Am. Compl. [Doc. No. 13] ¶¶ 18, 22- 23.) Additionally, Dalton alleged that Defendants' remediation efforts were insufficient. (Id. ¶¶ 26-27.)

         In November 2017, Defendants filed their Second Motion to Dismiss, arguing that: (1) because Plaintiff failed to obtain the Court's leave to amend his allegations, they should be stricken, (Defs.' Mem. Supp. Second Mot. Dismiss [Doc. No. 21] at 6, 8-10); (2) the Court still lacked subject matter jurisdiction on grounds of standing and mootness, (id. at 10-20); and (3) the amended pleading failed to allege plausible violations of the ADA. (Id. at 20-26.)

         3. February 2018 Visit

         While Defendants' Second Motion to Dismiss was under advisement, in February 2018, the Court directed the parties to meet and confer at the station to determine whether any of Defendants' changes had remedied Plaintiff's concerns. (See Feb. 18, 2018 Order [Doc. No. 35] at 1.) In connection with the parties' on-site meeting on February 21, 2018, Dalton made his second and final visit to the Simonson Station. (Dalton Decl. ¶ 14.) Dalton contends that on that visit, the person driving his van could not pull all the way into an accessible-designated spot. (Id. ¶ 11.) And while Dalton acknowledges that he was able to traverse the cross-sloped route to the door in his wheelchair, he felt uncomfortable doing so because he was traveling through a traffic lane. (Id. ¶¶ 15-16.) He contends that he was able to maneuver onto the ramp and into the interior of the store, but required the help of a stranger. (Id. ¶ 17.) Dalton fears that “sloped parking spaces and access aisles may damage [his] vehicle and make it more difficult to make a safe transfer between [his] vehicle and the parking lot.” (Id. ¶ 20.) In addition, Dalton “would like the option to exit [his] vehicle and enter Simonson Stationstores while [his] vehicle is parked at the gas pump.” (Id. ¶ 22.)

         Dalton also attests that he had intended to return to the Simonson Station in the summer of 2018, but his plans were interrupted, and he has not returned. (Id. ¶ 6.) In the future, he “plan[s] to visit Simonson Stationstores both to check on the progress [the station] is making to full accessibility and to stop there on [ ] future trips with others while traveling further along Interstate Highway 94 to Moorhead.” (Id. ¶ 7.)

         In May 2018, this Court ruled on Defendants' Second Motion to Dismiss, finding that several of Plaintiff's new allegations were properly considered “supplemental, ” as they referred to events that happened after the date of the operative complaint. (May 23, 2018 Order at 5.) Because Dalton failed to seek leave of Court and failed to provide Defendants with reasonable notice of the supplementations, the Court denied his motion to add allegations concerning events post-dating the September 27, 2017 filing of the Complaint. (Id.) As to the remaining claims concerning the slope of the accessible parking spaces, the route to the entrance extending into the vehicular traffic lane, and the exterior side of the closest customer entrance, the Court found that Plaintiff's allegations concerned events that fell within the initial pleading period. (See Id. at 11.) The Court also found that these allegations conferred standing sufficient to survive a motion to dismiss, with the exception of Dalton's claim based on the lack of an accessible dining surface, since he did not allege that he had ever encountered this purported violation. (Id. at 10-11.)

         4. July 2018 Site Inspection

         In June 2018, Plaintiff requested a site inspection at the Simonson Station. The Court directed the parties to conduct the inspection on July 11, 2018 [Doc. Nos. 56-58], limited to the areas relevant to the pleadings in the Amended Complaint. (See July 20, 2018 Order [Doc. No. 62] at 2.)

         Defendants hired Julee Quarve-Peterson as an expert to inspect the exterior of Simonson Station and make recommendations on their behalf. (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶¶ 7-8.) Ms. Quarve-Peterson, an Accessibility Specialist certified by the State of Minnesota since 1996, has provided accessibility trainings and seminars and has served as an expert consultant or witness in over 300 ADA cases involving allegations of noncompliant architectural barriers. (Id. ¶ 2.) Following her inspection on July 11, 2018, Ms. Quarve-Peterson recommended that Defendants move the location of the existing accessible parking from the south side of the building to the west side and designate the nearest entrance, on the north side, as an accessible entry. (Id. ¶¶ 4, 6-7.)

         Peter Hansmeier conducted the July 11, 2018 inspection on Plaintiff's behalf. Hansmeier is a salaried employee of Plaintiff's counsel's law firm, Browne Law, LLC, (Hansmeier Decl. [Doc. No. 96] ¶ 2; Sheu Decl., Ex. 1 (Pl.'s Interrog. Response No. 4)), and is Ms. Browne's brother-in-law. See Hillesheim v. RVD Real Estate Props. LLC, No. 8:18CV449, 2019 WL 1900384, at *3 (D. Neb. Apr. 20, 2019) (noting familial relationship). He is also a Certified Accessibility Specialist, having obtained his certification in 2016. (Hansmeier Decl. ¶ 3.) At the inspection, he found that some of the slopes in the south-side accessible parking spaces and access aisle exceeded the ADA limits, (id. ¶¶ 10-11), and the slopes of the maneuvering clearances at the nearest (east) entry were too steep. (Id. ¶ 18, 21.) Additionally, he found that the distance from the door to the edge of the curb at the north entrance did not comply with the ADA. (Id. ¶ 20.) Further, as to the north entrance, he found certain slopes in that area were not compliant.[3] (Id. ¶¶ 19-21.)

         At some point between July and October 2018, after receiving Ms. Quarve-Peterson's recommendations, Defendants made changes to the exterior of the station. They relocated the accessible parking by creating a single accessible space on the west side of the building, and converted the entry closest to that parking space-the north entry-to be the designated accessible entry. (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶¶ 7, 14.) In addition, they repaved the accessible parking space, accessible access aisle, ramp and maneuvering space leading to the north entry of the building. (Id.; Ex. 5 to Quarve-Peterson Rpt. (Close-Out Rpt.) at 2).) In September 2018, Ms. Quarve-Peterson inspected the remedial work and attested that it was compliant with the ADA and ADAAG.[4] (Sheu Decl., Ex. 6 (Quarve-Peterson Rpt.) ¶ 14; Ex. 5 to Quarve Peterson Rpt. (Close-Out Rpt.) at 3).)

         On October 16, 2018, Mr. Hansmeier returned to Simonson Station, where he inspected the remedial work done after the July inspection. (Supp'l Hansmeier Decl. [Doc. No. 97] ¶ 7.) He observed that Defendants had relocated the accessible parking to a new, single accessible parking space on the west side of the station. (Id. ¶ 10.) He also noted new signage, changes to the surface of the accessible parking space, a new curb ramp and sidewalk between the new parking space and the north entrance, and directional signage indicating that the north entrance was accessible. (Id.) Mr. Hansmeier took measurements, and opines that while many of the slopes are compliant, (id. ¶¶ 14-15), slopes in the hashed-off area between the access aisle and curb ramp, and on the ramp between the parking space and the north entrance, are not compliant. (Id. ¶¶ 16, 17.) He further states that because the east entrance has not been altered, his earlier findings of noncompliance remain concerning that entrance. (Id. ¶ 22.)

         Mr. Arch Simonson is the managing partner of Bemidji Management Company, LLC, which owns the Simonson Station in Alexandria, and the secretary and treasurer of Simonson Station Stores, Inc., which leases and operates the Simonson Station. (See Oct. 23, 2017 Simonson Decl. [Doc. No. 10] ¶ 2.) In support of Defendants' summary judgment motion, he states that certain slopes that Hansmeier noted in his Supplemental Declaration occurred after Defendants had resurfaced the parking space in the summer of 2018, leading to a “rough spot” that was apparently caused by a car tire. (Jan. 11, 2019 Simonson Decl. [Doc. No. 90] ¶ 3.) Simonson states that Defendants performed routine maintenance in January 2019 to level out the rough spot, which is now level with the surface of the accessible parking space. (Id. ¶¶ 6, 8, Ex. 1 to Simonson Decl. (photos).)

         5. Second Amended Complaint & Expert Disclosures

         On July 22, 2018, Dalton filed a Second Motion to Amend, (Pl.'s Mot. to Amend [Doc. No. 64]), which Defendants opposed on several bases. (Defs.' ...


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