United States District Court, D. Colorado
ORDER
RAYMOND P. MOORE United States District Judge
Plaintiff
Brito is a paraplegic substantially limited in his life
activities. (Compl. ¶ 12, ECF No. 1.) Defendants are a
hotel owner and related business operating as the
“Colorado Springs Marriott, ” at which Brito
stayed on or about August 9-10, 2017. (Id.
¶¶ 6-9, 13.) During his stay, Brito alleges that he
encountered architectural barriers that limited his ability
to safely access certain spaces within the hotel premises in
violation of the Americans with Disabilities Act (ADA, 42
U.S.C. § 12181, et seq.) and related
regulations (ADAAG). On January 16, 2019, Defendants moved
for summary judgment, suggesting that Brito has not provided
any evidence (1) that he is disabled, or (2) that the removal
of the alleged barriers is readily achievable. (SJ-Motion,
ECF No. 26). The Court granted Brito an extension to respond
to the SJ-Motion within fourteen days after resolution of his
motion for discovery pursuant to Fed.R.Civ.P. 56(d), which is
now briefed and before the Court. (Discovery Motion, ECF No.
31; see also ECF Nos. 37 (Response), 38 (Reply).)
For the following reasons, the Court denies the Discovery
Motion.
I.
BACKGROUND
On
August 9-10, 2017, Brito stayed as a guest at the Colorado
Springs Marriott. (Compl. ¶¶ 13-14.) Because the
hotel is a place of public accommodation, Defendants must
comply with the ADA, which prohibits discrimination against
persons on the basis of disability. (Id. ¶ 18.)
But at the hotel, Brito-a paraplegic requiring a wheelchair
to ambulate-encountered architectural barriers that denied or
diminished his ability to visit certain areas on the
premises; endangered his safety; and posed a risk of injury,
embarrassment, and discomfort to him. (Id.
¶¶ 12, 16-18.) Specifically, Brito alleged that
various places at the hotel failed to meet required
accessibility regulations, including the parking area,
entrance access paths, recreation and dining sites, common
restrooms, and other amenities. (Id. ¶¶
21.A-21.D.) He further noted that many basic in-room features
were noncompliant, such as the toilet, thermostat and light
controls, roll-in shower, and peephole. (Id.
¶¶ 21.E.1-21.E.5.)
On
April 26, 2018, Brito filed for injunctive, declaratory, and
other relief against Defendants. (See generally id.)
On July 23, 2018, Magistrate Judge Tafoya entered a
Scheduling Order, pursuant to which discovery would close on
December 13, 2018. (Scheduling Order, ECF No. 16, at 5.) In
the Complaint and over the following months, both before and
after the Scheduling Order, Brito expressed interest in
inspecting the hotel premises pursuant to Fed.R.Civ.P.
34(a)(2). (Compl. ¶ 22; see also ECF No. 31-2
(containing e-mail requests from Brito's counsel
regarding scheduling an inspection date).) On August 6, 2018,
Brito served a request for entry on land to inspect the
hotel. (ECF Nos. 31-1 ¶ 7, 31-3.) On August 13, 2018,
Defendants objected on several grounds, including that Brito
had failed to coordinate the inspection with Defendants and
that the scope of the request was overbroad. (See
ECF Nos. 21 (stricken response[1]), 31-1 ¶ 8.) Brito did not
file a motion to compel the inspection. (See
Docket.)
On
January 16, 2019, after the close of discovery, Defendants
moved for summary judgment, suggesting that Brito had not
provided any evidence (1) that he is disabled, and (2) that
the removal of the alleged barriers is readily achievable,
which Defendants suggest requires expert testimony.
(See SJ-Motion at 3-4.) Rather than respond to the
SJ-Motion, Brito filed the Discovery Motion and
simultaneously moved to stay his response deadline to the
SJ-Motion. (See generally Discovery Motion.) In
support of the Discovery Motion, Brito argues that he needs
additional time to conduct discovery because he has not done
an inspection of the hotel, and he now cannot present
evidence which can only be found at the property, is in the
exclusive control of Defendants, and is essential to his
opposition to the SJ-Motion. (ECF No. 31-1 ¶¶ 12-
14.) Brito therefore believes the “Court should grant
Plaintiff relief under Fed.R.Civ.P. 56(d). The
Defendants' motion for summary judgment should be denied,
or in the alternative, deferred to allow Plaintiff time to
conduct an inspection regarding the foregoing
evidence.” (Id. ¶ 15.)
II.
ANALYSIS
Rule
56(d) provides that “[i]f a nonmovant shows by
affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition, the
court may (1) defer considering the motion or deny it; (2)
allow time to obtain affidavits or declarations or to take
discovery; or (3) issue any other appropriate order.”
Fed.R.Civ.P. 56(d). Ordinarily, requests for further
discovery should be treated liberally. Comm. for First
Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir.
1992). But relief under Rule 56(d) is not automatic.
Burke v. Utah Transit Auth. & Local 382, 462
F.3d 1253, 1264 (10th Cir. 2006). A motion to defer summary
judgment under Rule 56(d) “does not compel the court to
grant a continuance to a party that has been dilatory in
conducting discovery [and cannot offer any] colorable reason
why the discovery deadline should have been extended.”
Bolden v. City of Topeka, 441 F.3d 1129, 1151 (10th
Cir. 2006) (discussing Rule 56(f), the predecessor to current
Rule 56(d)). To obtain relief under Rule 56(d), the movant
must submit an affidavit (1) identifying the probable facts
that are unavailable, (2) stating why these facts cannot be
presented currently, (3) identifying past steps to obtain
evidence of these facts, and (4) stating how additional time
would allow for rebuttal of the adversary's argument for
summary judgment. Valley Forge Ins. Co. v. Health Care
Mgmt. Partners, Ltd., 616 F.3d 1086, 1096 (10th Cir.
2010).
With
the Discovery Motion, Brito submitted an affidavit from his
attorney which fails to convince the Court that additional
time for discovery is warranted here. According to the
affidavit, the only missing information is that which counsel
and Brito expect to get from an inspection of the hotel
premises. On the diligence inquiry, Brito's attorney
attests that he attempted to get an inspection date at
various times over the summer of 2018 by sending e-mail
communications to Defendants' counsel and serving a
notice of inspection on August 6, 2018. But after Defendants
objected to his inspection notice on August 13, 2018, Brito
never moved to compel. Even though more than seventeen weeks
stood between him and the discovery deadline, Brito took no
steps whatsoever-not even by a motion to compel-to secure the
inspection he had intended to perform since filing the
Complaint and now claims is vital to his rebuttal of the
SJ-Motion. Finally, the affidavit has not set forth how the
information to be discovered from inspection would rebut the
SJ-Motion's two central arguments.
III.
CONCLUSION
For the
foregoing reasons, the Discovery Motion (ECF No. 31) is
DENIED. Brito's response to the
SJ-Motion (ECF No. 26) is due within fourteen days of the
entry of this order.
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Notes:
[1] Defendants filed their response (ECF
No. 21) to the Rule 34 inspection notice, and Brito filed a
reply (ECF No. 24). The magistrate judge struck both of these
filings as discovery requests that are not to be filed with
the ...