KAHN v. Cleveland Clinic Florida Hospital

MOTION to Dismiss with Prejudice 47 Amended Complaint

S.D. Fla.March 4, 2019

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 0:16-cv-61994-O'SULLIVAN GARY KAHN, Plaintiff, v. CLEVELAND CLINIC FLORIDA HEALTH SYSTEM NONPROFIT CORPORATION d/b/a Cleveland Clinic Hospital, Defendant. ______________________________________/ DEFENDANT’S MOTION TO DISMISS Defendant, Cleveland Clinic Florida Health System Nonprofit Corporation d/b/a Cleveland Clinic Hospital (“Cleveland Clinic” or “CCH”), pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, respectfully moves to dismiss Count II of Plaintiff’s Second Amended Complaint pursuant to Title III of the Americans with Disabilities Act (“ADA”) relating to linen bins and trash bins. Cleveland Clinic states that it has made structural changes to the facility and the remaining ADA violations are now moot. MEMORANDUM OF LAW I. INTRODUCTION On October 29, 2018, this Court issued its Order on Defendant’s Motion Concerning Award of Attorneys’ Fees [ECF No. 207] (the “Order”). In the Order, the Court held that the only portion of Plaintiff’s ADA claim that was not moot was “the use of trash bins and linen bins which purportedly encroach on the clear floor space of the accessible restrooms.” Order at 30. Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 1 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 2 On January 28, 2019, a bench trial was held regarding the alleged ADA violations relating to the linen bins and trash bins. At the trial, with regard to the linen bins, the unrebutted testimony was that Cleveland Clinic now has a dedicated changing room in the Radiology Department and is in the process of constructing an entire row of changing rooms in its new expansion. Therefore, Cleveland Clinic would have no reason to place linen bins in the accessible restrooms, and this violation is rendered moot. The focus of the trial then shifted to the placement of trash cans in bathrooms 2-202 and 1-205A which purportedly encroached on the clear floor space in front of the toilet seat cover dispensers, and the trash can in Hallway Restroom 2058, which purportedly was not a sufficient distance from the maneuvering clearance on the pull side of the door. After the trial, Cleveland Clinic made structural changes to each of these restrooms and the alleged ADA violations are now moot. Since Plaintiff’s remaining ADA claims are now moot, Plaintiff no longer has standing and the Court no longer has jurisdiction. Thus, Count II of Plaintiff’s Second Amended Complaint must be dismissed with prejudice. II. STANDARD OF REVIEW As a threshold matter, the Court must determine whether Plaintiff has constitutional standing to maintain his ADA claim relating to the remaining purported ADA violations. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “The objection that a federal court lacks subject-matter jurisdiction may be raised by a party, or by a court on its own initiative, at any stage in the litigation, even after trial and the entry of judgment.” Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (emphasis added). To establish standing under Article III of the U.S. Constitution, Plaintiff must satisfy three criteria: (1) that he suffered an “injury in fact,” or “an invasion of a legally protected interest which is (a) concrete and particularized,” and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical;’” (2) the existence of a “causal connection between the injury Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 2 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 3 and the conduct complained of;” and, (3) that it is “ ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’” Lujan, 504 U.S. at 560, 561. Plaintiff cannot meet the third element of this test if the facility complies with the ADA because the Court cannot order an injunction on an item that complies with the ADA. Accordingly, if all the items remaining that constitute purported ADA violations are remedied, the Court no longer has subject matter jurisdiction over the action, and Plaintiff’s ADA claim is moot. III. ARGUMENT A. Plaintiff’s ADA Claim Relating to the Linen Bins is Moot Because Cleveland Clinic Has a Dedicated Changing Room. Blue linen bins were at one time located in the accessible restrooms at Cleveland Clinic, which Plaintiff alleged restricted the maneuvering space in these restrooms.1 There is a serious question of whether the linen bins were ever in an obstruction in Room 231 (the “Subject Restroom”) or any other restroom. In any event, the linen bins have been removed from the accessible restrooms and it is absolutely clear they are not reasonably expected to return. As a result, Plaintiff’s ADA claim relating to the linen bins is moot. Indeed, Cleveland Clinic has remediated any potential issue regarding the purported ADA violation relating to the linen bins through structural changes. Cleveland Clinic is in the process of constructing “an MRI and CT suite, and each of the areas will have designated male and female changing rooms.” See Bench Trial Transcript attached hereto as Exhibit “A” at 216:13-20; see also Bench Trial Exhibit 157 [ECF No. 239]. While the construction is occurring, Cleveland Clinic “converted an office that was near the area for a changing room until [the] construction is 1 There is a question of whether the linen bins were ever an obstruction in the Subject Restroom or any other bathroom as Defendant’s expert demonstrated that there was adequate clear floor space for turning radius even if the bins were in a restroom. Ex. A at 145:16-146:10. Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 3 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 4 completed,” which is used as a changing room. Ex. A at 212:20-25. Because patients are no longer changing in the accessible restrooms, Cleveland Clinic would have no reason to place linen bins in them. For this reason, it is absolutely clear that the linen bins are not reasonably expected to return to the accessible restrooms. It would simply make no sense for Cleveland Clinic to abandon its current construction, as well as its current changing room, and revert back to using accessible restrooms as changing rooms. Further, when Plaintiff’s expert visited the facility for a second time on May 3, 2018, he did not find any linen bins in any accessible restrooms. See Bench Trial Exhibit 163. Thus, Plaintiff lacks any evidence to suggest that the linen bins would be relocated back to the accessible bathrooms to the extent they presented an ADA in the first instance. Therefore, as a result of this structural change, Plaintiff’s ADA claim as it relates to the linen bins is moot. B. Plaintiff’s ADA Claim Relating to the Trash Bins in Bathrooms 2-202 and 1- 205A are Moot Because Cleveland Clinic Installed Recessed Trash Cans. At the Bench Trial, Plaintiff’s expert testified as to two remaining ADA violations relating to the placement of trash bins in Restrooms 2-202 and 1-205A. Specifically, Plaintiff’s expert stated that the trash cans in Restrooms 2-202 and 1-205A were “encroaching over the seat cover dispenser” which constitutes a violation of the ADA.2 See Ex. A at 131:1-11. It has been Cleveland Clinic’s position that trash bins are movable objects not covered by the ADA. After the trial, and to alleviate any future concern, Cleveland Clinic remedied the alleged violations to ensure they would not recur. Specifically, Cleveland Clinic recessed the trash bins into the wall in Restrooms 2-202 and 1-205A. See Second Supplemental Expert Witness Report at 9-10 attached hereto as Exhibit “B.” Because Cleveland Clinic made the structural change to 2 Originally, the issue in Restroom 2-202 was that the trash can encroached on a baby changing station. However, Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 4 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 5 replace the two trash bins at issue with recessed trash bins in Restrooms 2-202 and 205A, Plaintiff’s ADA claim based on this violation is moot. C. Plaintiff’s ADA Claim Relating to the Trash Bin in Restroom 2058 is Moot Because Cleveland Clinic Installed Signage Stating that No Trash Bin Should Be Placed Near the Door. At the Bench Trial, Plaintiff’s expert testified as to one remaining ADA violation relating to the placement of trash cans in Restroom 2058. Specifically, Plaintiff’s expert stated that the trash bin in Restroom 2058 was “encroaching to the maneuvering clearance on the pull side of the door” which constitutes a violation of the ADA. See Ex. A at 132:1-2. This ADA violation relates to the placement of an additional, superfluous trash bin by the door in this restroom. The complaint was that the trash bin encroached on the necessary maneuvering clearance on the pull side of the door, not that the it interfered with the door opening or closing. As this restroom already has two trash receptacles in it, the additional trash bin was removed as it was unneeded. To ensure no one places a trash bin in this space again, Cleveland Clinic has installed signage in this location in English and Spanish indicating that a trash bin is not to be placed in that space. See Ex. B at 11. Because of this structural change, Plaintiff’s claim related to the trash bin in Bathroom 2058 is moot. D. Because Plaintiff’s ADA claims are moot, he is not entitled to attorney’s fees. Because the remaining purported ADA violations are now moot, Plaintiff is not considered a prevailing party under the ADA and is thus not entitled to attorney’s fees. The Supreme Court in Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources addressed the issue of attorney’s fees for an ADA claim once it became moot. 532 U.S. 598 (2001). In Buckhannon, plaintiffs filed a lawsuit contending a newly enacted state law violated the ADA. Id. at 601. The West Virginia legislature then enacted two new state laws which had the effect of Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 5 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 6 eliminating the prior law which violated the ADA, thus mooting the plaintiffs’ ADA claim. Id. Plaintiffs argued that they were entitled to attorneys’ fees as a prevailing party under the ADA as they were the “catalyst” for the change in the defendant’s conduct. Id. However, the Supreme Court disagreed and held that the plaintiffs, even if they were the catalyst in changing the defendant’s behavior, were not a prevailing party or entitled to attorney’s fees under the ADA because there was not “a corresponding alteration in the legal relationship of the parties.” Id. at 605. Courts within the Eleventh Circuit have interpreted Buckhannon as barring plaintiff’s attorney’s fees in ADA lawsuits once a plaintiff’s claim is rendered moot. See Petinsky v. Gator 13800 NW 7th Ave. LLC, No. 13-21955, 2014 WL 1406439, at *4 (S.D. Fla. Apr. 10, 2014) (denying plaintiff attorney’s fees even where “it is plain that this action was the catalyst for Defendant to bring its property into compliance with the ADA”); Kallen v. J.R. Eight, Inc., 775 F. Supp. 2d 1374, 1381 (S.D. Fla. 2011) (“A Plaintiff who initiates a lawsuit that causes the Defendant to voluntarily remedy ADA violations is not a prevailing party for purposes of attorneys’ fees, and is not entitled to collect costs and fees.”); Norkunas v. Seahorse NB, LLC, No. 3:09-cv-934-J-32MCR, 2011 WL 1988799, at *6 (M.D. Fla. May 23, 2011) (holding plaintiff cannot recover attorney’s fees where “the Court finds there are no proven continuing violations [of the ADA]”); Access for the Disabled, Inc. v. First Resort, Inc., No. 8:11-cv-2342, 2012 WL 4479005, at *7 (M.D. Fla. Sept. 28, 2012) (“The Court concludes that Plaintiffs are not entitled to attorney’s fees and costs in this case because they are not a prevailing party, given their lack of standing, and the Court’s conclusion that, even if they had standing, their claims are moot.”); National Alliance for Accessibility, Inc. v. Walgreen Co., No. 3:10-cv-780, 2011 WL 5975809, at Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 6 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 7 *3 (M.D. Fla. Nov. 28, 2011) (denying plaintiff’s attorney’s fees where the ADA claim was moot). Because Plaintiff’s ADA claim is moot, Plaintiff is not entitled to any attorney’s fees. Cleveland Clinic anticipates that Plaintiff will argue that he is still entitled to attorney’s fees based on Cleveland Clinic’s alleged policies and practices under the voluntary cessation doctrine, and cite to cases such as Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173, 1189 (11th Cir. 2007). However, those cases are not relevant based on the facts of this case. The barriers identified by Plaintiff’s second expert have been remediated by making structural changes (i.e., recessing the two trash cans, installing signage indicating that a trash can was not to be placed in the door maneuvering space, and converting an office into a changing room and building a row of new changing rooms). Indeed, courts have distinguished Sheely in instances where a defendant has made structural changes, such as those made by Cleveland Clinic, and “it would be unreasonable to think that [a defendant] would remove the improvements.” Walgreen Co., 2011 WL 5975809, at *3; Kallen, 775 F. Supp. 2d at 1379 (“It is untenable for Plaintiff to suggest that once renovations are completed they could be undone.”); Houston v. 7-Eleven, Inc., No. 13-60004, 2014 WL 351970, at *2 (S.D. Fla. Jan. 31, 2014) (“ADA-architectural barrier cases are a unique subset of voluntary cessation-doctrine cases. While these cases are not always a perfect fit within the framework of the three factors discussed in Sheely, the nature of structural modifications (as opposed to simply a change in a discriminatory policy) still satisfies the ultimate question that the voluntary-cessation doctrine asks (i.e., is it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”)). Because the remaining barriers were remedied by structural changes, policy cases such as Sheely do not support Plaintiff’s entitlement to attorney’s fees. Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 7 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 8 Nevertheless, even if the Court were to apply Sheely, Cleveland Clinic contends that the case is still moot. The factors in Sheely are as follows: (1) whether the challenged conduct was isolated or unintentional, as opposed to a continuing and deliberate practice; (2) whether the defendant’s cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit; and (3) whether, in ceasing the conduct, the defendant has acknowledged liability. Sheely, 505 F.3d at 1184. Cleveland Clinic was first made aware of practically all of the alleged violations of the ADA after Plaintiff’s second expert inspected the property on February 26, 2018. His inspection revealed many alleged violations that were not included in the reports of Plaintiff’s prior expert. And, once Cleveland Clinic was made aware of these alleged violations, Cleveland Clinic remediated the vast majority of them by either fixing the issue or de-designating the restroom as accessible before Plaintiff’s second expert’s second inspection on May 3, 2018. Indeed, Plaintiff even acknowledged such in Plaintiff’s Notice of Filing of Expert’s Post Compliance Remediation Accessibility Report [ECF No. 195] in which Plaintiff “represent[ed] to this Court that Defendant’s facility is now in substantial compliance with the ADA.” The remaining violations were either corrected as this Court found in its Order or relate to the movable linen bins and trash bins. Order at 30. Thus, there is no evidence for the Court to conclude that Cleveland Clinic engaged in “a malicious or reckless disregard for the ADA or for disabled [patients].” Kennedy v. Omegagas & Oil, LLC, 748 Fed. App’x. 886, 891 (11th Cir. 2018). Therefore, the first factor favors Cleveland Clinic. As to the second factor, whether the defendant’s cessation of the offending conduct was motivated by a genuine change of heart or timed to anticipate suit, Cleveland Clinic was not aware of the majority of the ADA violations found by Plaintiff’s second expert before his inspection on February 26, 2018. After the inspection, which found 57 separate items, Cleveland Clinic took Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 8 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 9 expediated action to remediate all of them, by either fixing the issue or de-designating the restroom as accessible. Indeed, the majority of the items were remediated by the time of Plaintiff’s second expert’s second inspection and the facility was in substantial compliance with the ADA. See ECF No. 195. The three trash bin situations have been resolved, as have any potential linen bin issues. Because Cleveland Clinic acted swiftly once being on notice of the ADA violations, the second factor favors Cleveland Clinic. See Houston, 2014 WL 351970 at *3 (holding the second Sheely factor favored the defendant where the defendant remediated the property within six months of appearing in the lawsuit); see also Kennedy v. Omegagas & Oil LLC, No. 9:17-cv-80103, 2018 WL 310051, at *8 (S.D. Fla. Jan. 3, 2018) (“Although the Court notes that Mr. Alsheikh owned the gas station for years without ensuring its compliance with the ADA and it was only after Ms. Kennedy’s lawsuit and expert report that Mr. Alsheikh took any action to comply with the law, the Court concludes that these violations are moot because they cannot reasonably be expected to recur.”). In this case, Cleveland Clinic acted within 30 days. Finally, as to the third factor, Cleveland Clinic initially did not acknowledge liability as it relates to the linen bins and the trash bins because (a) they were not in a position in the Subject Restroom to cause any violation known at the time, and (b) they are movable objects, and Cleveland Clinic’s position has been that movable objects are not covered by the ADA. There is ample case law, including case law from this district, to support the notion that the ADA does not apply to movable objects. See Cleveland Clinic’s Motion Concerning Attorney’s Fees [ECF No. 198] at 6-7. Moreover, as stated in the ADA’s implementing regulations, the “[t]he 1991 [ADA] Standards and the 2010 [ADA] Standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site.” 28 CFR § 35.151(d). Based on this, Cleveland Clinic has a good faith belief that the ADA does not apply Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 9 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 10 to the movable bins such as the trash bins or the linen bins. Notwithstanding the foregoing, Cleveland Clinic made structural changes to the facility to ensure that the linen bins are not placed in accessible restrooms (by constructing a designated changing room), the two trash bins in Restrooms 2-202 and 205A are not in front of toilet seat covers (by recessing the trash cans in these bathrooms), and ensuring that a trash bin does not fall short of the required maneuvering clearance in Restroom 2058 (by installing signage stating that a trash bin is not to be placed there). Based on these structural remedies, the third Sheely factor favors Cleveland Clinic. See National Alliance for Accessibility, Inc. v. Windsor Investments (3600 S.W. 22nd) LLC, DE# 76 at 12, Case No. 13-cv-20285-JAL (S.D. Fla. Sept. 29, 2014) (finding that the third factor was met because “Defendant ha[d] essentially acknowledged liability by correcting ... [the] violations based on [its expert]'s recommendation.”).3 In any event, as this Court previously held, “[t]he Eleventh Circuit has noted that when a business makes structural changes to a facility in order to come into compliance with the ADA, it is unlikely that the business will incur additional expenses in order to undo those changes it made.” Order at 24. Indeed, “[t]he essential question that must be answered under the voluntary-cessation doctrine is simple: Is it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Houston, 2014 WL 351970, at *4. Because of these structural changes to Cleveland Clinic, it is absolutely clear that the remaining ADA violations in this case relating to linen and trash bins are not reasonably expected to recur. As a result, Plaintiff’s ADA claims are moot and the Court must dismiss this action for lack of jurisdiction. Kennedy, 748 Fed. App’x. at 3 This Opinion was previously submitted as a Notice of Supplemental Authority. See ECF No. 185. Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 10 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 11 892 (holding that the defendant’s structural changes “deprived this court of jurisdiction under the mootness doctrine”). IV. CONCLUSION For the reasons set forth herein, Cleveland Clinic requests that the Court dismiss Plaintiff’s Count II for Violation of the ADA for lack of jurisdiction. Respectfully submitted, GREENBERG TRAURIG, P.A. Attorney for Defendant 333 S.E. 2nd Avenue, Suite 4400 Miami, Florida 33131 Telephone: (305) 579-0519 Facsimile: (305) 579-0717 By: /s/ Ronald M. Rosengarten RONALD M. ROSENGARTEN Florida Bar No. 387540 rosengartenr@gtlaw.com ROBERT S. GALBO Florida Bar No. 106937 galbor@gtlaw.com CERTIFICATE OF SERVICE I hereby certify that on this 4th day of March, 2019, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record via transmission of Notices of Electronic Filing generated by CM/ECF. /s/ Ronald M. Rosengarten RONALD M. ROSENGARTEN Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 11 of 12 CASE NO. 0:16-cv-61994-O'SULLIVAN 12 SERVICE LIST Gary Kahn v. Cleveland Clinic Florida Health System Nonprofit Corporation d/b/a Cleveland Clinic Hospital Case No.: 0:16-cv-61994-O’SULLIVAN United States District Court, Southern District of Florida Gary E. Susser, Esq. Gregory Steven Sconzo, Esq. LAW OFFICE OF GARY E. SUSSER, P.A 2755 S. Federal Highway, Suite 13 Boynton Beach, Florida 33435 Primary: gary@susserlaw.com sconzolaw@gmail.com Secondary: lydia@susserlaw.com Service: courtdocs@susserlaw.com Counsel for Plaintiff Case 0:16-cv-61994-JJO Document 247 Entered on FLSD Docket 03/04/2019 Page 12 of 12