United States District Court, E.D. Louisiana
ORDER AND REASONS
D. ENGELHARDT, United States District Judge
action, Plaintiff Stephen Carrier has sued various defendants
under Titles II and III of the Americans with Disabilities
Act, 42 U.S.C. § 12131, et seq. Specifically,
Plaintiff, who requires a wheelchair for mobility, seeks
injunctive and other relief relative to architectural
sidewalk barriers allegedly precluding his access to the
Subway restaurant and Goodwill store located at 115 and 123
Robert E. Lee Boulevard, in New Orleans, Louisiana.
before the Court is a motion for summary judgment (Rec. Doc.
28) filed by the owner of those properties, Defendant M&O
Realty, Inc. In support of its motion, M&O maintains that
Plaintiff's claims against it should be dismissed because
it does not own, lease, or operate the sidewalks adjoining
its properties. Rather, M&O contends, the Board of Levee
Commissioners of Orleans Levee District is the owner of the
sidewalks and, thus, is responsible for ensuring their
accessibility. For the reasons stated herein, IT IS ORDERED
that the M&O's instant motion for summary judgment is
Summary Judgment Standard
to Rule 56(a) of the Federal Rules of Civil Procedure,
summary judgment shall be granted "if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to a judgment as a matter of
law." Fed.R.Civ.P. 56(a). The materiality of facts is
determined by the substantive law's identification of
which facts are critical and which facts are irrelevant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A fact is
material if it "might affect the outcome of the suit
under the governing law." Id.
dispositive issue is one on which the nonmoving party will
bear the burden of proof at trial, the moving party may
satisfy its summary judgment burden by merely pointing out
that the evidence in the record contains insufficient proof
concerning an essential element of the nonmoving party's
claim. See Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91
L.Ed.2d 265 (1986); see also Lavespere v. Liberty Mut.
Ins. Co., 910 F.2d 167, 178 (5th Cir. 1990). Once the
moving party carries its burden pursuant to Rule 56(a), the
nonmoving party must "go beyond the pleadings and by
[his] own affidavits, or by the 'depositions, answers to
interrogatories, and admissions on file, ' designate
'specific facts showing that there is a genuine issue for
trial.'" Celotex, 477 U.S. at 324, 106
S.Ct. 2553; see also Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348,
1356, 89 L.Ed.2d 538 (1986); Auguster v. Vermillion
Parish School Bd., 249 F.3d 400, 402 (5th Cir. 2001).
considering a motion for summary judgment, the Court views
the evidence in the light most favorable to the nonmoving
party, Gillis v. Louisiana, 294 F.3d 755, 758 (5th
Cir. 2002), and draws all reasonable inferences in favor of
that party. Hunt v. Rapides Healthcare System,
L.L.C., 277 F.3d 757, 764 (2001). Factual controversies
are to be resolved in favor of the nonmoving party, "but
only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts."
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th
Cir.1994) (citations omitted). The Court will not, "in
the absence of any proof, assume that the nonmoving party
could or would prove the necessary facts." See
Id. (emphasis in original) (citing Lujan v.
Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110
S.Ct. 3177, 3188, 111 L.Ed.2d 695 (1990)).
the Court is to consider the full record in ruling on a
motion for summary judgment, Rule 56 does not obligate it to
search for evidence to support a party's opposition to
summary judgment. See Fed. R. Civ. P.
56(c)(3)("court need consider only the cited
materials"); Malacara v. Garber, 353 F.3d 393,
405 (5th Cir. 2003)("When evidence exists in the summary
judgment record but the nonmovant fails even to refer to it
in the response to the motion for summary judgment, that
evidence is not properly before the district court.").
Thus, the nonmoving party should "identify specific
evidence in the record, and articulate" precisely how
that evidence supports his claims. Forsyth v. Barr,
19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513
U.S. 871, 115 S.Ct. 195 (1994).
nonmovant's burden of demonstrating a genuine issue is
not satisfied merely by creating "some metaphysical
doubt as to the material facts, " "by conclusory
allegations, " by "unsubstantiated assertions,
" or "by only a scintilla of evidence."
Little, 37 F.3d at 1075. Rather, a factual dispute
precludes a grant of summary judgment only if the evidence is
sufficient to permit a reasonable trier of fact to find for
the nonmoving party. Smith v. Amedisys, 298 F.3d
434, 440 (5th Cir. 2002).
the parties' submissions in light of the foregoing legal
principles, the Court finds that M&O, on the present
showing made, has failed to bear its summary judgment burden.
Specifically, it is not sufficiently apparent to the Court,
from a review of the entirety of the transactional documents
provided by the parties, that M&O necessarily is
completely insulated from any legal responsibility for the
two sidewalk areas in question. In particular, the Court
notes language in Section III of the "Building
Restrictions Applying to Lakeshore Subdivision" stating: