Powers v. Mad Vapatory LLC

Opinion

DOUGLAS POWERS, Case No. 19-cv-05642-VKD

Plaintiff, ORDER DENYING DEFENDANTS’ v. MOTION TO DISMISS

MAD VAPATORY LLC, et al., Re: Dkt. No. 16 Defendants.

In this disability rights action, plaintiff Douglas Powers sues for alleged accessibility violations he says he encountered during a July 2019 visit to a Vape Affair store (“Facility”) in Santa Clara, California. He asserts claims under Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101, et seq. and the California Unruh Civil Rights Act (“Unruh Act”), Cal. Civ. Code § 51, et seq. Pro se defendants Margaret and Hazim Petros own the property where the Facility is located. They move to dismiss the complaint pursuant to Rule 12(b)(1), arguing that Mr. Powers’s ADA claim is moot.1 Because the ADA claim is the sole basis for federal jurisdiction, and because injunctive relief is the only remedy available to Mr. Powers under the ADA, defendants request that the Court decline to exercise supplemental jurisdiction over Mr. Powers’s Unruh Act claim. The Court held a hearing on the motion on February 11, 2020 and directed the parties to submit supplemental briefing regarding Mr. Powers’s standing to pursue this action. Upon consideration of the moving and responding 1 Defendants contend that the initial stay on proceedings imposed by General Order No. 56 does not preclude them from bringing the present motion to dismiss. Mr. Powers does not dispute this papers, as well as the oral arguments presented, the Court denies defendants’ motion.2 According to his complaint, Mr. Powers “has been disabled since amputation of his leg,” and his “physical impairments substantially limit and/or affect one or [sic] major life activities such as walking.” Dkt. No. 1 ¶ 2. He says that he visited the Facility at least six times since 2017. Id. ¶ 10. During his most recent visit in July 2019, Mr. Powers claims that he encountered the following barriers to access in the parking lot and at the entrance of the Facility: 1. “No unauthorized vehicle parking tow away warning sign mounted at either the entrance to off-street parking or immediately adjacent to and visible from disabled parking areas”; 2. “No accessible route from disabled parking to the entrance of Facility”; 3. “No accessible route form [sic] public street and sidewalk to entrance of Facility”; 4. “No accessible route connecting buildings, facilities, elements and spaces at the Facility”; 5. “No van accessible disabled parking space and/or adjacent access aisle”; 6. “No compliant disabled parking identification signage”; and 7. “The entrance door requires more than 5 lbs. of maximum force to operate.” Id.3 Mr. Powers seeks injunctive relief under the ADA, as well as $4,000 in statutory damages under the Unruh Act “for each event of discrimination and for each time [he] has been deterred from returning to the business together with attorney’s fees and litigation costs and expenses.” Id. ¶ 32. Mr. and Mrs. Petros contend that Mr. Powers’s ADA claim is moot. They state that within a few months after the present suit was filed, the Facility permanently closed its business and vacated the premises. Additionally, defendants claim that they remedied all accessibility barriers 2 All parties have expressly consented that all proceedings in this matter may be heard and finally adjudicated by a magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; Dkt. Nos. 5, 12, 15, 24.

3 The complaint also alleges that the Facility’s entrance door did not have a 10-inch uninterrupted at their property in connection with an earlier disability rights suit filed by a different plaintiff, which was settled and dismissed in 2018. Further, defendants argue that Mr. Powers’s allegations about any existing accessibility violations are misguided, arguing that the cited accessibility mandates do not apply to the property. More fundamentally, in their reply papers, defendants challenge Mr. Power’s standing to bring the present action inasmuch as they appear to claim that he has not alleged facts demonstrating that any purported barriers deprived him of full and equal enjoyment of the Facility due to his particular disability. Because they contend that Mr. Powers’s ADA claim is moot, defendants request that the Court decline to exercise jurisdiction over his Unruh Act claim. A Rule 12(b)(1) motion to dismiss challenges a federal court’s jurisdiction over the subject matter of a plaintiff’s complaint. A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the pleadings (a “facial attack”) or by presenting extrinsic evidence (a “factual attack”). Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). “In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In resolving a factual attack on jurisdiction, the district court may review evidence beyond the complaint and is not required to presume the truthfulness of the plaintiff’s allegations. Id. The party asserting federal subject matter jurisdiction bears the burden of establishing its existence. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A. Mr. Powers’s Standing The ADA is a civil rights statute that relies primarily on private enforcement actions to obtain compliance, and the Supreme Court has instructed that courts therefore should take a 2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)). A plaintiff asserting an ADA claim must nonetheless establish his standing under Article III of the United States Constitution. Id. Under Article III of Constitution, federal courts have jurisdiction to decide only actual “Cases” or “Controversies,” U.S. Const., art. III, § 2, and Mr. Powers has standing to sue if he “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560- 61 (1992). Mr. Powers’s claimed injury must be both “particularized” and “concrete.” A “particularized” injury is one that “‘affect[s] the plaintiff in a personal and individual way.’” Spokeo, Inc., 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560 n.1). A “concrete” injury “must actually exist” and must be “real, and not abstract.” Id. In the context of injunctive relief, which is the only remedy available to Mr. Powers under Title III of the ADA, see 42 U.S.C. § 12188; Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002), a plaintiff “must additionally demonstrate a sufficient likelihood that he will again be wronged in a similar way.” Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d 1075, 1081 (9th Cir. 2004) (internal quotations and citation omitted). “That is, he must establish a real and immediate threat of repeated injury.” Id. (internal quotations and citation omitted). In the Ninth Circuit, an ADA plaintiff may establish standing “either by demonstrating deterrence, or by demonstrating injury- in-fact coupled with an intent to return to a noncompliant facility.” Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011). Mr. Powers’s complaint alleges that during his July 2019 visit to the Facility, he encountered certain accessibility barriers in the parking lot and at the Facility’s entrance that “caused [him] to feel like a second-class citizen,” required him to “utilize a regular parking space” and to “travel behind other vehicles other than his own to reach the entrance,” and made it difficult for him to enter the Facility. Dkt. No. 1 ¶ 11. As noted above, those alleged barriers concern the lack of requisite signage, accessible parking and paths of travel, as well as an entrance door that is too heavy to open. Id. ¶ 10. Mr. Powers does not affirmatively claim that these alleged barriers deterred him from visiting the Facility.4 To the contrary, the complaint alleges that he “intends to continue to visit the Facility and will continue to be discriminated against until the barriers to access are removed.” Id. ¶ 12. Accordingly, his standing depends on whether he has pled sufficient facts demonstrating injury-in-fact and an intent to return to a noncompliant facility. Mr. and Mrs. Petros challenge the truth of Mr. Powers’s allegations, essentially arguing that he has not alleged facts demonstrating that any purported barriers deprived him of full and equal enjoyment of the Facility due to his particular disability. Here, defendants contend that Mr. Powers is a “heavily muscular” man and that his “amputated leg does not prevent him from functioning in any less capacity than the average non-disabled individual.” Dkt. No. 30 at 2. They submit photos purporting to show Mr. Powers, with the use of a prosthetic leg, engaging in weightlifting activities and participating in sporting events. Dkt. No. 29 at ECF 12-16; Dkt. No. 30 at ECF 12-14. Defendants seem to argue that such physical abilities are inconsistent with any suggestion that Mr. Powers’s use of or access to the Facility was more difficult for him than for a nondisabled individual. Indeed, they note that he does not allege that he was unable to patronize the Facility due to the presence of the alleged barriers. Dkt. No. 39 at 4. It is unclear when the photos submitted by defendants were taken, and defendants have not otherwise laid a proper foundation for their admissibility.5 Nevertheless, Mr. Powers does not dispute that he is the person depicted in the submitted photos and acknowledges that he previously “participated in vigorous recreational physical activities including marathons and weight training events.” Dkt. No. 35 at 5; see also Dkt. No. 35-1 ¶ 2. In his supplemental briefing, however, Mr. Powers now asserts that since 2014, his physical condition has deteriorated significantly due to a heart condition and blood clotting disorder, such that his balance is compromised and any fall or

4 The complaint contains a single cursory allegation that Mr. Powers “will suffer ongoing discrimination and damages by being excluded and deterred from the Facility.” Dkt. No. 1 ¶ 13. That stray allegation appears to be at odds with Mr. Powers’s affirmative allegation that notwithstanding the presence of the alleged accessibility barriers, he intends to continue to visit the Facility. Id. ¶ 12. The allegations of Mr. Powers’s complaint are too conclusory to plausibly support his standing based on a deterrence theory. injury is particularly perilous for him. As such, he avers that he has “not actively participated in these types of physical activities . . . since that time.” Dkt. No. 35-1 ¶ 2. In sum, Mr. Powers asserts that his current “physical condition means that he increasingly relies upon accessible parking spaces, accessible routes of travel, and other accessible features to ensure that he is able to safely traverse the Facility and is afforded full and equal access to places of accommodates [sic].” Dkt. No. 35 at 6. Defendants do not believe that Mr. Powers’s assertions about his current physical condition are true, and they urge the Court to consider materials that they contend bear on his veracity, but which, for present purposes, the Court does not find relevant. The Court has some concern that in contending that Mr. Powers lacks standing to pursue a claim for injunctive relief under the ADA, defendants may focus too much on Mr. Powers’s purported physical capabilities, rather than the nature of his particular disability. Mr. Powers’s “standing to claim an ADA violation is necessarily linked to the nature of his disability,” and the Ninth Circuit “recognize[s] that an encountered barrier must interfere with the particular plaintiff’s full and equal enjoyment of the facility, making his use of the facility more difficult than a nondisabled individual’s, to constitute an injury-in-fact, and that he is required to allege and prove that injury.” Chapman, 631 F.3d at 947 n.4. Thus, the Ninth Circuit has explained that while a visually impaired person would have standing to assert an ADA violation where a facility’s elevator lacks floor buttons in Braille, a person who requires the use of a wheelchair for mobility, but who can see and press floor buttons, would not. Id. Although defendants do not dispute that Mr. Powers is an amputee, they challenge his allegation that his physical impairment significantly limits activities, such as walking. Under the ADA “[t]he determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as . . . prosthetics including limbs and devices . . ..” 42 U.S.C. § 12102(4)(E)(i)(I). As currently pled, Mr. Powers’s complaint alleges sufficient facts establishing that the amputation of his leg affects his ability to walk, such that he is disabled within the meaning of the ADA. Dkt. No. 1 ¶ 2. Facility, “when a disabled person encounters an accessibility barrier violating its provisions, it is not necessary for standing purposes that the barrier completely preclude the plaintiff from entering or from using a facility in any way.” Chapman, 631 F.3d at 947. “Rather, the barrier need only interfere with the plaintiff’s ‘full and equal enjoyment’ of the facility.” Id. (quoting 42 U.S.C. § 12182(a)). “Because the ADAAG [ADA Accessibility Guidelines] establishes the technical standards required for ‘full and equal enjoyment,’ if a barrier violating these standards relates to a plaintiff’s disability, it will impair the plaintiff’s full and equal access, which constitutes ‘discrimination’ under the ADA. Id. “That discrimination satisfies the “injury-in-fact” element of Lujan.” Id. Here, the allegations of Mr. Powers’s complaint, while less detailed than the assertions now offered in his supplemental briefing, provide more than a formulaic recitation of the applicable legal standard. He alleges that he is disabled due to the amputation of his leg, that he encountered specified barriers during a July 2019 visit to the premises which relate to his disability, and alleges facts stating how those purported barriers made it difficult for him to access the Facility. Assuming the alleged barriers violate the ADAAG, these allegations are sufficient to establish an injury-in-fact. Chapman, 631 F.3d at 947. Additionally, Mr. Powers alleges that he intends to “continue to visit the Facility and will continue to be discriminated against until the barriers to access are removed.” Dkt. No. 1 ¶ 12. While defendants contend that the Facility is no longer in business and has vacated the premises, that any alleged barriers have been remedied, and that Mr. Powers at some point moved to a different town closer to other vape stores, “[t]he evidence relevant to the standing inquiry consists of “the facts as they existed at the time the plaintiff filed the complaint.” D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008) (quoting Skaff v. Meridien North America Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007). On the record presented, the Court finds that Mr. Powers has sufficiently alleged his standing as of the time the complaint was filed. Accordingly, the Court denies defendants’ motion to dismiss for lack of standing.6 B. Mootness Defendants nonetheless argue that Mr. Powers’s ADA claim is moot. As noted above, they point out that the Facility has closed its business and vacated the premises. Their primary contention, however, is that all alleged barriers have been remedied and that Mr. Powers otherwise cites accessibility mandates that do not apply to defendants’ property. A claim may become moot if (1) subsequent events have made it absolutely clear that the allegedly wrongful behavior cannot reasonably be expected to recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation. Norman- Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1274 (9th Cir. 1998) (citing United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968); Lindquist v. Idaho State Bd. Of Corrections, 776 F.2d 851, 854 (9th Cir. 1985)). In the ADA context, courts have concluded that a claim for injunctive relief is moot “if the premise complained of closes down with no plans to reopen or if the defendant no longer owns or controls the challenged premises.” Johnson v. Rai Rocklin Investments, LLC, No. 2:15-CV-02698-KJM-EFB, 2017 WL 3421848, at *2 (E.D. Cal. Aug. 9, 2017) (citing cases); see also, e.g., Moore v. Millennium Acquisitions, LLC, 708 F. App’x 485, 485 (9th Cir. 2018) (finding an ADA claim moot where defendant sold the gas station where plaintiff encountered architectural barriers, and the gas station was being dismantled); Kohler v. Southland Foods, Inc., 459 F. App’x 617, 618 (9th Cir. 2011) (affirming summary judgment for defendants because the plaintiff’s claim for prospective injunctive relief became moot once the subject restaurant ceased operation). In the present action, the closing of the Facility does not moot Mr. Powers’s ADA claim entirely.7 Mr. and Mrs. Petros acknowledged at oral argument that they intend to lease the space 6 Although the Court declines to dismiss this matter for lack of standing, it is nonetheless concerned by defendants’ assertions, which are not refuted by Mr. Powers or his counsel, that counsel has never met with Mr. Powers. Although the Court is not aware of a requirement that an attorney meet with his client in person, defendants’ assertion does raise questions about the thoroughness of counsel’s pre-lawsuit investigation. previously occupied by the Facility, and they expect that the space will be re-opened as a place of public accommodation. See, e.g., Love v. Gertrude Allen Family Ltd. P’Ship, No. 18-cv-04082- JSW, 2019 WL 3779505, at *3 (N.D. Cal. Aug. 12, 2019) (concluding that, although the subject business had vacated the premises and did not intend to return to the property as a tenant, the plaintiff’s ADA claim was not moot because there was no evidence that the property owner did not intend to re-lease or reopen the property). Defendants nonetheless argue that they already fixed any accessibility barriers in connection with a prior disability rights lawsuit and that their property is in compliance with the ADA. Relatedly, defendants contend that Mr. Powers misapprehends the nature of the property in question and that the law does not require them to provide the accessibility features that Mr. Powers claims are needed. They maintain, for example, that the property consists of two buildings served by a single parking lot with less than 25 parking spaces, and that they therefore are not required to have more than one parking space designated for disabled persons. To support their contention that accessibility barriers have been remedied, defendants submitted with their opening brief inspection certificates from their retained accessibility specialist, Kelly Bray. Dkt. No. 17 at ECF 5-8. Those inspection certificates, however, are dated November 29, 2017 and simply indicate that the property was inspected. Moreover, the certificates expressly state they do “not imply that this facility meets design and construction requirements for accessibility for individuals with disabilities.” Id. Although defendants also submitted a November 15, 2019 “Statement of Accessibility Compliance” from Mr. Bray concerning the property, that document does not specifically address the barriers alleged by Mr. Powers. Dkt. No. 17 at ECF 10. In opposing the present motion, Mr. Powers submitted a declaration from his accessibility specialist, Jason Vaughn, who attests that he visited the property on January 4, 20208 and noted many of the same barriers alleged in Mr. Power’s complaint. 8 Defendants argue that Mr. Vaughn’s January 4, 2020 inspection was conducted without prior notice and occurred at a time when Mr. Powers’s counsel had been seeking defendants’ stipulation to an extension of the deadline to conduct the joint site inspection required by General Order No. 56. Claiming that defendants refused to stipulate to an extension of time, Mr. Powers Additionally, Mr. Vaughn states that he found excessive slopes at the Facility’s entrance. Dkt. No. 21-1. In their reply, defendants submitted additional exhibits purporting to show work performed on the property, including remedial work apparently conducted in connection with the earlier-filed disability rights litigation, as well as work defendants say was performed for routine maintenance. Dkt. No. 29 at ECF 19-27, Dkt. No. 30 at ECF 15-19. However, these documents do not squarely address the particular accessibility barriers Mr. Powers alleges he encountered in July 2019. Additionally, while defendants submitted a photo purporting show that slopes at the Facility’s entrance are within the legal limits, it is unclear who took those photos, when, and under what circumstances. Dkt. No. 29 at ECF 38-39; Dkt. No. 30 at ECF 33-34. Defendants nonetheless point out that, while they dispute that accessibility laws require them to do so, they have added another parking space designated for disabled persons. Dkt. No. 30 at ECF 9, 35-36. Additionally, with their supplemental papers, defendants submit a declaration from Mr. Bray, who now states that he issued his November 15, 2019 “Statement of Accessibility Compliance” because he finds that the access barriers alleged in Mr. Powers’s complaint either do not exist or are based on accessibility mandates that are not required for the property. Dkt. No. 41 ¶ 6. Additionally, Mr. Bray says that he recently confirmed these findings during his March 12, 2020 inspection of the property. Id. ¶ 10. Mr. Bray’s declaration regarding his recent March 12, 2020 visit indicates that many of the alleged accessibility barriers Mr. Powers complains of may have been remedied, although disputes apparently remain as to whether certain accessibility mandates are required, such as an accessible route from the public street and sidewalk to the entrance of the Facility. The Ninth Circuit has cautioned that courts should not dismiss a matter on jurisdictional grounds where “the jurisdictional issue and substantive issues are so intertwined that the question of jurisdiction is dependent on the resolution of factual issues going to the merits of an action.” Safe Air for appear to have failed to comply with the requirement to have a joint site inspection, and the effect of Mr. Vaughn’s January 4, 2020 visit was a unilateral inspection by Mr. Powers. Notwithstanding defendants’ purported refusal to agree to an extension of the site inspection deadline, the Court notes that the inspection deadline was December 20, 2019 (Dkt. No. 3), and Everyone, 373 F.3d at 1039 (internal quotations and citation omitted); see also Johnson v. SSR Group, Inc., No. 15-cv-05094-MEJ, 2016 WL 3669994, at *2 (N.D. Cal. July 11, 2016) (same). Defendants’ citation to Langer v. McKelvey, No. CV 14-08842-RGK (JPRx), 2015 WL 13447522 (C.D. Cal. Sept. 24, 2015) does not compel a contrary conclusion. In Langer, the defendants presented undisputed evidence that they made necessary changes to bring the facility into compliance, thereby mooting the plaintiff’s claim for injunctive relief. Id. at *2. As discussed above, the evidence submitted by defendants in their initial briefing did not clearly establish that the alleged accessibility barriers had been remedied, and Mr. Vaughn’s declaration concerning his January 4, 2020 inspection states that barriers remained at the property. Although Mr. Bray’s March 12, 2020 concerns his more recent inspection of the property, that declaration was submitted with defendants’ supplemental briefing, and Mr. Powers has not had an opportunity to respond. In view of the posture of these proceedings, the Court declines to dismiss this matter on jurisdictional grounds, without giving Mr. Powers an opportunity to inspect the property to determine whether the alleged accessibility barriers have been remedied. Additionally, as noted above, the parties apparently continue to dispute whether defendants are required to provide certain accessibility features. In sum, the Court will not dismiss the action at this juncture because the jurisdictional analysis is coextensive with the merits of Mr. Powers’s ADA claim. Such matters are more appropriately addressed on a motion for summary judgment regarding whether there are no ADA violations or whether Mr. Powers’s request for injunctive relief otherwise is moot. However, the Court notes that defendants have raised a number of issues that Mr. Powers and his counsel are directed to seriously consider in proceeding with this case, including assertions that Mr. Powers no longer lives near the Facility (which reportedly has permanently closed its business), and that Mr. Powers perhaps was not legally permitted to be in the vicinity of the Facility in the first place. C. Unruh Act Claim A district court “may decline to exercise supplemental jurisdiction” if it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Because the Court has not over Mr. Powers’s Unruh Act claim. Based on the foregoing, defendants’ motion to dismiss is denied. The Court resets the deadline for the joint site inspection to August 20, 2020. The parties shall promptly advise the Court if the site in question currently is closed due to the COVID-19 public health emergency. Other deadlines set in the Court’s scheduling order (Dkt. No. 3) are adjusted as follows: Last day for parties to complete initial disclosures, August 13, 2020 including defendant's disclosure re: construction or alteration history of subject premises Last day for parties to meet to discuss settlement September 17, 2020 Last day for plaintiff to file “Notice of Need for October 1, 2020 Mediation” Last day for plaintiff to file Motion for Administrative 7 calendar days after Relief Requesting Case Management Conference mediation The joint site inspection, and all remaining events required under General Order No. 56, shall be conducted in compliance with the requirements outlined in the “Second Amended Notice re Procedures in All Cases Referred to ENE or Mediation and re Pre-Mediation Procedures in Cases Subject to General Order 56,” a copy of which is appended to this order and which is also available on this district’s website.9 Among other things, the Court notes that although its scheduling order states that the parties’ settlement discussions must be held in person (Dkt. No. 3), recent amendments to the General Order No. 56 procedures provide that the settlement conference may not be conducted by telephone or email, but may be held either by videoconference or in person, so long as all participants agree and gathering in person is permitted by applicable state

9 https://www.cand.uscourts.gov/wp-content/uploads/court-programs/adr/Second-Amended- 1 and local laws. 3 Dated: June 19, 2020 4 5 Uniginia Win, MMar ele VIRGINIA K. DEMARCH 6 United States Magistrate Judge 7 8 9 10 11 a 12

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Second Amended Notice re Procedures in All Cases Referred to ENE or Mediation and re Pre-Mediation Procedures in Cases Subject to General Order 56

On June 4, 2020, Chief Judge Phyllis Hamilton approved the following amended procedures applicable to cases referred to ENE or Mediation through the Court’s ADR Program:

The requirement of in-person attendance set forth in ADR L.R. 5-10 and 6-10 is suspended, and no in-person ENE or mediation sessions shall take place until further notice, even if gathering in person at the appointed time would be permitted by state or local laws. All ENE and mediation sessions shall take place by videoconference within the time set by the Court or within the presumptive time set by operation of ADR L.R. 3- 7.

Parties must meet and confer with one another and consult with the assigned neutral regarding the appropriate timing for their ENE or mediation session. If the parties agree to proceed by video conference before the ADR completion deadline, no filing is required. If the parties wish to extend the ADR completion deadline for any reason, they must file either a stipulation and proposed order or an administrative motion with the assigned judge specifying the reason for seeking an extension and the proposed date for the ENE or mediation session. Requests to extend the ADR completion deadline indefinitely are disfavored.

If technological barriers preclude a party from participating by videoconference, the assigned neutral may authorize telephonic participation for that party or may request approval from the ADR Director to conduct the entire session telephonically. If participating by videoconference would impose an extraordinary or otherwise unjustifiable hardship for a reason unrelated to technological barriers, a request for relief must be presented to the ADR Magistrate Judge at least 14 days in advance of the scheduled session, in accordance with ADR L.R. 5-10(d) and 6-10(d).

On June 4, 2020, Chief Judge Phyllis Hamilton approved the following procedures applicable to ADA Access cases subject to General Order 56:

In any case subject to General Order 56 involving a physical site, the deadlines for conducting a joint site inspection and settlement meeting are deemed tolled from March 25, 2020 until June 4, 2020. For a physical site that is closed on or after June 4, 2020, these deadlines are deemed tolled until the site is again open to the public.

The ADR Program will refer a case for mediation if the required Form GO 56-Notice of Need for Mediation and Certification of Counsel (amended June 4, 2020) certifies (a) that all required participants attended the joint site inspection and the settlement meeting required by General Order 56 either (i) by videoconference, or (ii) in person, so long as all participants agreed and gathering in person was permitted by applicable state and local laws; and (b) that the parties have completed the initial disclosures required by Fed. R. Civ. P. 26(a)(1) and have complied with General Order 56, paragraph 4.

Neither the joint site inspection nor the settlement meeting may be conducted by telephone or email. The parties may by agreement elect to replace the joint site inspection with another process that enables them to obtain and exchange the information needed to prepare effectively to evaluate the case for resolution at the settlement meeting. If the parties elect to replace the joint site inspection with another process, they must attach to the Notice of Need for Mediation and Certification of Counsel a joint letter describing the terms of the parties’ agreement and confirming that all requirements of the agreement have been satisfied.

Any request for relief from these procedures must comply with General Order 56, paragraph 3, and, for the convenience of the assigned judge, must attach to the stipulation or administrative motion a copy of this Second Amended Notice.