The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SHELBY BAILEY CIVIL ACTION
VERSUS CASE NO. 18-5888
BOARD OF COMMISSIONERS OF THE LOUISIANA SECTION: “G”(2)
STADIUM AND EXPOSITION DISTRICT, ET AL.
ORDER AND REASONS
Pending before the Court is Plaintiff Shelby Bailey’s “Motion for Partial Summary
Judgment.”1 Defendants SMG and Kyle France (“France”) oppose the motion.2 Plaintiff filed a
complaint alleging that Defendants as the owners and operators of the Mercedes-Benz Superdome
(the “Superdome”), failed to provide him with handicap accessible seating during New Orleans
Saints (the “Saints”) football games.3 In the instant motion, Plaintiff argues that he is entitled to
summary judgment as to the following alleged violations of the alteration requirements of the
Americans with Disabilities Act: (1) sightline obstructions at 100 Level, Row 1; (2) sightline
obstructions at 100 Level, Row 36; (3) inadequate amount of accessible seating at the 100 Level;
(4) making the Superdome less accessible to individuals with mobility-related disabilities; (5)
making the 200 Level less accessible; and (6) failure to provide sufficient accessible seating
stadium wide.4 Considering Plaintiff’s motion, the memoranda in support and opposition, the
record, and the applicable law, the Court denies the motion.
1 Rec. Doc. 95.
2 Rec. Docs. 105, 106. On February 21, 2020, the Court dismissed the Board of Commissioners of the
Louisiana Stadium and Exposition District (the “Board”) as a party. Rec. Doc. 144.
3 Rec. Doc. 1.
4 Rec. Doc. 95.
I.Background
On June 14, 2018, Plaintiff filed a Complaint in this Court naming as defendants SMG as
the operator of the Superdome, the Board as the owner of the Superdome, and France in his official
capacity as chairman of the Board.5 Plaintiff brings claims against the Board and France for
declaratory and injunctive relief pursuant to Title II of the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. §794, et seq.6 Plaintiff
brings claims against SMG for declaratory and injunctive relief pursuant to Title III of the ADA.7
Plaintiff also seeks recovery of attorneys’ fees and costs.8
According to the Complaint, Plaintiff has a disability and relies on an electric wheelchair
for mobility.9 Plaintiff alleges that he has been a Saints season ticket holder for over 30 years.10
Plaintiff alleges that prior to 2011, his seat was located on a wheelchair accessible raised platform
in the 100 Level section of the Superdome.11 Plaintiff alleges that in 2011, Defendants began
extensive renovations on the Superdome and reconfigured the accessible seating section for
patrons with disabilities.12 Plaintiff alleges that as a result of the renovations, the wheelchair
accessible seating at the Superdome was moved to other positions where the views are obstructed
5 Rec. Doc. 1.
6 Id. at 1–2.
7 Id. at 2.
8 Id.
9 Id. at 4.
10 Id.
11 Id.
12 Id.
by barriers and other patrons or players standing during the game, or the seating is not fully
accessible by wheelchair.13
Plaintiff alleges that Defendants have been on notice of ongoing accessibility issues for
many years.14 According to the Complaint, in 2008 the United States Department of Justice
conducted an inspection of the Superdome and issued a report detailing violations of ADA
regulations.15 Additionally, Plaintiff alleges that Defendants were sued by private litigants in 2018
regarding ongoing accessibility violations.16
As a result, Plaintiff alleges that Defendants have failed to comply with various parts of
the ADA and Rehabilitation Act.17 Plaintiff seeks compensatory and nominal damages along with
declaratory and injunctive relief, and attorneys’ fees.18
On December 13, 2019, the Court granted in part and denied in part Defendant SMG’s
Motion for Judgment on the Pleadings.19 Accepting as true the allegations in the Complaint, the
Court found that SMG could be held liable as an operator of the Superdome because SMG controls
modification of the Superdome and could cause the Superdome to comply with the ADA.20
Additionally, viewing the allegations in the Complaint in the light most favorable to Plaintiff, the
Court found that Plaintiff’s claims for injunctive and declaratory relief were timely because the
13 Id. at 4–8.
14 Id. at 10.
15 Id.
16 Id. at 10–11.
17 Id. at 11–29.
18 Id. at 1.
19 Rec. Doc. 86.
20 Id. at 24.
Complaint was filed within one year of SMG allegedly denying Plaintiff “the full and equal
enjoyment” of a place of public accommodation.21 However, the Court found that Plaintiff’s claim
regarding future renovations was not ripe for judicial review.22 Accordingly, the Court granted the
motion to the extent it sought dismissal of Plaintiff’s claim regarding future renovations but denied
the motion in all other respects.23
Plaintiff filed the instant motion on December 31, 2019. SMG filed an opposition on
January 7, 2020. France filed an opposition on January 7, 2020. Plaintiff, with leave of Court,
filed a reply to SMG’s opposition to the motion on January 17, 2020. At the request of the parties,
the Court heard oral argument on this motion on February 4, 2020 at 10:00 a.m.24
II.Parties’ Arguments
A. Plaintiff’s Arguments in Support of the Motion
In the instant motion, Plaintiff argues that he is entitled to summary judgment as to the
following alleged violations of the alteration requirements of the ADA: (1) sightline obstructions
at 100 Level, Row 1; (2) sightline obstructions at 100 Level, Row 36; (3) inadequate amount of
accessible seating at the 100 Level; (4) making the Superdome less accessible to individuals with
mobility-related disabilities; (5) making the 200 Level less accessible; and (6) failure to provide
sufficient accessible seating stadium wide.25
21 Id. at 24–25.
22 Id. at 25.
23 Id.
24 Rec. Doc. 134.
25 Rec. Doc. 95.
1. Standing
First, Plaintiff asserts he has standing to pursue his claim for injunctive relief.26 Plaintiff
states he attended nine Saints games in the year prior to filing this lawsuit and ten games since the
case was filed.27 He asserts that he intends to attend Saints games at the Superdome in the future.28
Therefore, Plaintiff contends that he has standing to seek injunctive relief under the “intent to
return” test.29
2. Plaintiff Asserts he is a Qualified Individual
Second, Plaintiff argues he is a qualified individual with a disability.30 Plaintiff presents
his affidavit, which states that he has muscular dystrophy and is unable to breathe, stand or walk.31
As a result, Plaintiff attests he has to rely on a ventilator to breathe and a wheelchair for mobility.32
Thus, Plaintiff contends he is a qualified individual with a disability within the meaning of the
ADA.33
3. Plaintiff Contends He is Being Denied the Benefits of a Place of Public
Accommodation
Third, Plaintiff asserts he is being denied the benefits of a place of public accommodation.34
Plaintiff contends he does not have an equal opportunity to view and enjoy football games and the
26 Rec. Doc. 95-1 at 12–13.
27 Id. at 13.
28 Id.
29 Id.
30 Id.
31 Id. at 14 (citing Rec. Doc. 95-4).
32 Id.
33 Id.
34 Id.
attendant screens at the Superdome in a manner comparable to non-disabled persons due to
impermissible barriers to access.35 Plaintiff points to his deposition testimony stating that he cannot
see the field when patrons in front of him are standing, and concrete overhangs prevent him from
seeing the scoreboard and all aerial gameplay.36 Plaintiff contends that Mr. Kevin McGuire, an
ADA consultant, confirmed these sight line issues during his deposition.37 Therefore, Plaintiff
asserts there are no material facts in dispute and he is entitled to summary judgment on the
following violations of the alteration requirements of the ADA violations at the facility: (1)
sightline obstructions at 100 Level, Row 1; (2) sightline obstructions at 100 Level, Row 36; (3)
inadequate amount of accessible seating at the 100 Level; (4) making the Superdome less
accessible to individuals with mobility-related disabilities; (5) making the 200 Level less
accessible; and (6) failure to provide sufficient accessible seating stadium wide.38
First, as to the sightline obstruction at Level 100, Row 1, Plaintiff points to his expert,
James Terry’s finding that wheelchair users on the lowered platforms in Section 115 could see
none of the field over the tops of the heads of average height people standing on the sidelines while
comparable non-disabled spectators could see 69% of the field.39 Second, as to the sightline
obstruction at Level 100, Row 36, Plaintiff points to Mr. Terry’s finding that wheelchair users on
Row 36 in the back of Section 114 could see 78% of the field over the tops of the heads of average
height people standing two rows ahead of them on Row 34 while comparable spectators on row
35 Id.
36 Id. (citing Rec. Doc. 95-11).
37 Id. (citing Rec. Doc. 95-13).
38 Id. at 15–21.
39 Id. at 15 (citing Rec. Doc. 92-2 at 15).
35 could see 98% of the field.40 Third, regarding the inadequate amount of accessible seating at
the 100 Level, Plaintiff points to evidence showing that there are presently 25,460 seats, of which
a total of 236 are designated as wheelchair-accessible seats, but Plaintiff contends that Defendants
are required to have 256 wheelchair-accessible designated seats under the ADAAG formula.41
Fourth, Plaintiff argues that Defendants made the Superdome less accessible by removing the
ADA Platforms.42 Fifth, Plaintiff argues that Defendants made the Superdome less accessible by
removing wheelchair accessible seats at the 200 Level.43 Sixth, Plaintiff asserts that by eliminating
the ADA Platforms and renovating the 100 and 200 Levels, Defendants performed modifications
that affect or could affect the overall usability of the Superdome.44
4. Plaintiff Asserts the Discrimination Against Him is by Reason of His Disability
Plaintiff contends that he has been unable to fully utilize and experience the services
offered at the Superdome due to the impermissible barriers to access.45 But for the physical
barriers, Plaintiff asserts he would have been able to see the game, the on-field plays, and the
jumbotron.46 Therefore, Plaintiff argues he experienced discrimination and exclusion “by reason
of his disability.”47
40 Id. at 16 (citing Rec. Doc. 92-2 at 15).
41 Id. at 18 (citing Rec. Doc. 92-3 at 25).
42 Id.
43 Id. at 19.
44 Id.
45 Id. at 22.
46 Id.
47 Id.
5. Plaintiff Argues SMG is an Operator of the Superdome
Plaintiff asserts SMG is liable as an operator of the Superdome.48 Plaintiff contends SMG
has engaged in various conduct that clearly shows that it controls, directs, and manages the
Superdome.49 Further, Plaintiff argues SMG could cause the Superdome to comply with the
ADA.50 In support, Plaintiff points to the deposition testimony of Alan Freeman, the Manager of
the Superdome.51 During his deposition, Mr. Freeman acknowledged that although SMG reports
to the Board, the Board “doesn’t really have a lot of oversight relative to our operations.”52 Plaintiff
also notes that SMG had a construction manager during the 2010 renovations.53 Plaintiff contends
SMG’s contract with the Saints also supports the position that SMG is an operator of the
Superdome.54 Accordingly, Plaintiff argues SMG is clearly serving as the operator of the
Superdome and thus must ensure that the Superdome complies with the requirements of Title III
of the ADA.55
B. SMG’s Arguments in Opposition to the Motion
SMG argues that Plaintiff’s motion for summary judgment should be denied for five
principal reasons.56 First, SMG asserts it is not an operator under Title III for purposes of Plaintiff’s
48 Id.
49 Id. at 23.
50 Id.
51 Id. at 23–24 (citing Rec. Doc. 95-12).
52 Id.
53 Id. at 24.
54 Id.
55 Id. at 25.
56 Rec. Doc. 105.
claims.57 Second, SMG contends Plaintiff’s motion focuses solely on the alleged failure to make
alterations that comply with the ADA “to the maximum extent feasible,” but Plaintiff did not
include any such claims against SMG in his Complaint, and any such alteration claims are
prescribed.58 Third, SMG asserts Plaintiff has not presented any evidence to support a finding that
removal of any architectural barrier is readily achievable.59 Fourth, even assuming that Plaintiff
has a viable alteration claim, SMG argues Plaintiff has not satisfied his burden of showing he is
entitled to summary judgment.60 Finally, SMG contends Plaintiff’s alteration claims are barred by
the doctrine of laches.61 Accordingly, SMG asserts Plaintiff’s motion should be denied and SMG’s
previously filed motion for summary judgment should be granted.62
1. SMG Asserts it is not an Operator under Title III
First, SMG adopts the arguments made in its motion for summary judgment that it cannot
be considered an operator for purposes of Plaintiff’s claims.63 SMG adds in this opposition that
Plaintiff has altogether failed to demonstrate in any way that SMG has the ability to make the
construction-related modifications he asserts are required to remedy Plaintiff’s claims of
discrimination.64 SMG points to the deposition testimony of Alan Freeman, the General Manager
of the Superdome, that SMG does not “have any legal right to undertake capital improvements at
57 Id. at 9.
58 Id.
59 Id. at 9–10.
60 Id. at 10.
61 Id.
62 Id.
63 Id.
64 Id.
the Superdome without LSED approval.”65 SMG asserts that the evidence shows that the Board
decides on and approves projects and that SMG oversees the logistics of those projects’
completion.66 SMG contends because it cannot require the Board to implement Plaintiff’s
requested modifications, it is not an “operator” under Title III.67
2. SMG Asserts Plaintiff does not have a Viable Alteration Claim
Second, SMG contends Plaintiff’s motion focuses solely on the alleged failure to make
alterations that comply with the ADA “to the maximum extent feasible,” but Plaintiff did not
include any such claims against SMG in his Complaint, and any such alteration claims are
prescribed.68 SMG points to this Court’s prior holding that “Plaintiff’s claims for injunctive and
declaratory relief appear to be timely because the Complaint was filed within one year of SMG
allegedly denying Plaintiff ‘the full and equal enjoyment’ of a place of public accommodation.”69
SMG concedes that Plaintiff raised architectural-barrier and alteration claims in the Complaint,
but asserts that the Complaint only brings an alterations claim against the Board and France.70
Regardless, SMG asserts that Plaintiff’s alterations claims are time-barred and that only
the architectural-barrier claims remain viable.71 SMG argues that an operator of an existing facility
“has a continuing duty to meet the existing facilities standards” by removing architectural barriers
when such removal is readily achievable, but as to alterations the limitations period runs from the
65 Id. (citing Rec. Doc. 95-12).
66 Id. at 11.
67 Id.
68 Id. at 9.
69 Id. at 12 (citing Rec. Doc. 86 at 20).
70 Id. at 13 (citing Rec. Doc. 1 at ¶ 101).
71 Id.
first date on which the plaintiff experiences the allegedly discriminatory alteration.72 Therefore, to
the extent Plaintiff experienced discrimination on the basis that there was a failure in 2010 and
2011 to make alterations in such a manner that, to the maximum extent feasible, were readily
accessible to and usable by individuals with disabilities, SMG asserts Plaintiff was subjected to
that discrimination in 2011 and his “alteration” claims prescribed in 2012.73
3. SMG Contends Plaintiff did not Show Removal of any Architectural Barrier
is Readily Achievable
SMG notes that “Plaintiff makes no argument concerning any alleged discrimination by
Defendants for failing to remove an architectural barrier when such removal was readily
achievable.”74 Nevertheless, SMG argues that Plaintiff would not be entitled to summary judgment
on any architectural-barrier claim because Plaintiff cannot provide any evidence showing that
removing any alleged architectural barrier is readily achievable.75
4. SMG Argues that Plaintiff has not Shown that he is Entitled to Summary
Judgment on the Alterations Claims
Fourth, even assuming that Plaintiff has a viable alterations claim, SMG argues Plaintiff
has not satisfied his burden of showing he is entitled to summary judgment.76 SMG asserts that
even under the alterations standard, Plaintiff failed to demonstrate that the facility could have been,
but was not, made “readily accessible” or to state a plausible accommodation.77 According to
72 Id. at 14–15 (citing Speciner v. NationsBank, N.A., 215 F. Supp. 2d 622, 630 (D. Md. 2002); De La Rosa
v.Lewis Foods of 42nd Street, L.L.C., 124 F. Supp. 3d 290, 300 (S.D.N.Y. 2015)).
73 Id. at 15.
74 Id.
75 Id. at 15–16.
76 Id. at 10.
77 Id. at 17 (citing Roberts v. Royal Atl. Corp., 542 F.3d 363, 370, 372 (2d Cir. 2008)).
SMG, Plaintiff should be required to identify a violation and a plausible proposed remedy before
putting Defendants to the task of negating every potential solution that might have been
considered.78 Although Plaintiff’s expert, James Terry, provided a list of “solutions,” SMG argues
that Mr. Terry provided no analysis with respect to whether those solutions were plausible or
whether they would enhance accessibility.79 Therefore, SMG asserts Plaintiff failed to satisfy his
initial burden with respect to any alterations claims.80
Alternatively, SMG argues that Plaintiff has not carried his burden of establishing that he
is entitled to summary judgment on each of the six individual ADA violations asserted by
Plaintiff.81 First, as to the sightline obstruction at Level 100, Row 1, SMG points to Defendants’
expert, Mark Mazz’s finding that providing a “comparable view of the field” is virtually impossible
and that an existing “continuous lateral support beam” prevents raising the front-row platform an
additional six inches.82 Second, as to the sightline obstruction at Level 100, Row 36, SMG points
to Mr. Mazz’s finding that these seats do provide comparable lines of sight to the field.83 Third,
regarding the inadequate amount of accessible seating at the 100 Level, SMG asserts this issue
was not raised in the Complaint, and Plaintiff has not proposed where 20 additional seats might be
placed.84 Fourth, as to removing the on-field platforms, SMG asserts that Plaintiff has failed to
satisfy his burden to show that the seating was made “less” accessible or that Defendants had
78 Id. at 18.
79 Id.
80 Id.
81 Id. at 19.
82 Id. at 19 (citing Rec. Doc. 105-2 at 8–9).
83 Id. (citing Rec. Doc. 105-2 at 9–10).
84 Id. at 20.
anything to do with the decision to move the seats.85 Fifth, regarding the alleged removal of
wheelchair accessible seats at the 200 Level, SMG asserts that this is not an alteration because the
200 Level never had wheelchair accessible seats.86 Sixth, SMG contends that Plaintiff has provided
no basis for applying a heightened alterations standard to the entire Superdome based solely on
changes to the 100 Level (and speculative changes to the 200 Level).87
5. SMG Contends the Alterations Claims are barred by the Doctrine of Laches
Finally, SMG argues that because Title III only permits injunctive relief against an operator
of a public accommodation, which is an equitable remedy, such relief is subject to the equitable
defense of laches.88 SMG asserts that the delay in filing suit is unreasonable because Plaintiff first
voiced his accessibility concerns in 2011 but did not file suit because he did not want to sue his
favorite football team, the Saints.89 Additionally, SMG contends that the delay has resulted in
prejudice to SMJ because it has lost evidence through the passage of time.90 Accordingly, SMG
argues that Plaintiff’s claims are barred by laches.91
C. France’s Arguments in Opposition to the Motion
In opposition to the motion, France argues that: (1) Plaintiff lacks standing to pursue all
relief for which he prays; (2) Plaintiff has failed to meet his threshold burden of proof under the
85 Id.
86 Id. at 21–22.
87 Id. at 23.
88 Id. at 23–24.
89 Id. at 24.
90 Id. at 25.
91 Id.
ADA; and (3) Plaintiff is not entitled to judgment as a matter of law on his claims against France
because Plaintiff is not being “denied the benefits of a place of public accommodation.”92
1. France Asserts Plaintiff Lacks Standing to Pursue these Claims
First, France argues that Plaintiff is confined to seeking redress for only the alleged
violations and physical barriers that he personally encountered.93 According to France, Plaintiff
admits he only personally experienced the sightline obstructions at 100 Level, Row 1 and the
sightline obstructions at 100 Level, Row 36.94 Therefore, France asserts that summary judgment
must be denied with respect to Plaintiff’s other alterations claims, as he lacks standing to raise
such claims.95
2. France Asserts Plaintiff has Failed to Establish his Threshold Burden of Proof
France contends Plaintiff has not met his initial burden of proving that the alterations are
readily achievable.96 France argues that Plaintiff has failed to produce any evidence that the
solutions proposed by his expert, James Terry, are plausible or that the cost of the proposed
modifications do not clearly exceed their benefits.97 France contends that the proposals made by
Mr. Terry are at most conceptual and are unaccompanied by estimates of the costs of
implementation or information on the relative priority of any proposed alterations.98 As such,
France asserts Plaintiff has failed to establish an essential element of the claims on which he alone
92 Rec. Doc. 106 at 4–14.
93 Id. at 4.
94 Id. at 4–5.
95 Id. at 5.
96 Id.
97 Id. at 7.
98 Id. at 8.
bears the burden of proof at trial, and his claims must be dismissed.99
Additionally, France argues that none of the proposed modifications were identified in
Plaintiff’s pre-suit correspondence to Defendants.100 As such, France asserts Plaintiff failed to
place Defendants on notice of the modifications he was requesting, and Defendants could not
determine whether they could reasonably provide such modifications.101
3. France Argues Plaintiff is not being Denied the Benefits of a Place of Public
Accommodation
Third, France asserts Plaintiff is not entitled to judgment as a matter of law on his claims
against France because Plaintiff is not being “denied the benefits of a place of public
accommodation.”102 Defendants contend Mark Mazz’s report squarely refutes Plaintiff’s principal
arguments in support of his claims against France, and directly disputes the expert findings of
Plaintiff’s expert, James Terry.103 For example, Defendants point to Mr. Mazz’s opinion that the
100 Level, Row 36 spaces “do provide comparable lines of sight to the field” over standing
patrons.104 France also points to Mr. Mazz’s opinion that it “is structurally impracticable and
technically infeasible to provide comparable lines of sight of high punts to wheelchair spaces in
the rear of the 100 Level.”105 With respect to the seats at Level 100, Row 1, France points to Mr.
Mazz’s opinion that “[t]he wheelchair spaces are not 6 inches lower that the other front row seats
to protect the lines of sight of the seated spectators in the Row 4, the first row behind the wheelchair
99 Id. at 7–8.
100 Id. at 10.
101 Id.
102 Id. at 11.
103 Id. at 12.
104 Id. (citing Rec. Doc. 106-2 at 10).
105 Id. at 13 (citing Rec. Doc. 106-2 at 10).
spaces. . . . The elevation of the wheelchair spaces cannot be raised because of the structural
framing of the seating bowl.”106 As such, France contends this summary judgment evidence
precludes any finding that Plaintiff is entitled to judgment as a matter of law on this element of his
claim for ADA discrimination.107
E. Plaintiff’s Arguments in Further Support of the Motion
On January 17, 2020, Plaintiff filed a reply brief to SMG’s opposition to the motion for
partial summary judgment.108 First, Plaintiff asserts that SMG is an operator for the reasons set
forth in Plaintiff’s opposition to SMG’s motion for summary judgment.109
Second, Plaintiff contends the alteration claim was pled at paragraphs 41–44, 52–53, and
62–69 of the Complaint.110 Additionally, Plaintiff argues that the claims are timely because he
filed suit within one year of being denied full and equal enjoyment of a place of public
accommodation.111 Plaintiff asserts that SMG’s statute of limitations argument fails because
Section 12182(b) of the ADA, which defines discriminatory conduct, does not give rise to a series
of “discrete claims.”112 Instead, Plaintiff contends, Section 12182(a) provides that a cause of action
only arises when a plaintiff is being denied the full and equal enjoyment of a place of public
accommodation.113 Plaintiff contends that the district court cases upon which SMG relies
106 Id. at 14 (citing Rec. Doc. 106-2 at 8–9).
107 Id.
108 Rec. Doc. 127. The reply brief does not address France’s opposition to the motion.
109 Id. at 2, n.2.
110 Id.
111 Id. at 2.
112 Id. at 4.
113 Id.
improperly conflate the defendant’s wrongful act with the disabled individual’s injury—something
the Fifth Circuit has expressly cautioned against.114 Because his alterations claims are timely,
Plaintiff argues that SMG’s laches argument must fail because Plaintiff did not engage in
unreasonable delay in filing suit.115 Additionally, Plaintiff asserts that laches is an affirmative
defense, and was not raised in SMG’s answer.116
Third, Plaintiff argues that SMG’s continued misconstruing of the Second Circuit’s opinion
in Roberts v. Royal Atlantic Corporation is improper.117 Plaintiff asserts the Roberts court did not
impose a “plausible accommodation” requirement on a plaintiff under an alteration standard.118
According to Plaintiff, the Roberts court held that a plaintiff who sues over a violation of the
“alteration standard” only bears an initial obligation to show “some manner in which the alteration
could be, or could have been, made readily accessible and usable by individuals with disabilities.
. . . .”119 Furthermore, Plaintiff urges this Court to follow the text of the law, Section 36.402(c),
which, by its plain language, does not require that a plaintiff show “some manner in which the
alteration could be, or could have been,” made readily accessible.120
Fourth, Plaintiff argues that Defendants failed to demonstrate that there is a genuine issue
of material fact that: (1) Plaintiff’s view is obstructed or (2) modifying the Superdome in
114 Id. at 5.
115 Id. at 2, n.2.
116 Id.
117 Id. (citing 542 F.3d 363 (2nd Cir. 2008)).
118 Id.
119 Id. at 6 (citing 542 F.3d at 372).
120 Id.
compliance with the ADA accessibility guidelines would have been virtually impossible.121
Plaintiff asserts that there are three obstructions at issue, including the obstructed Jumbotron
screen, the obstructed “high plays and throws,” and the obstructed field.122
Plaintiff asserts that Defendants’ expert Mark Mazz provides a lengthy explanation as to
perceived flaws with James Terry’s measuring techniques as to how much of the field is obstructed
due to standing spectators for wheelchair seating at 100 Level, Row 36.123 Plaintiff acknowledges
that Mr. Mazz’s opinion creates a genuine issue of material fact as to the “obstructed field” barrier
at Row 36.124 However, Plaintiff argues Mr. Mazz does not dispute that the Jumbotron is obstructed
by the overhang at the 100 Level, Row 36.125 Further, Plaintiff notes that Mr. Mazz admits that
individuals in wheelchairs seated at 100 Level, Row 36 can only see vertically 65 feet, that punts
can reach 150 feet above the center of the field, and that “[n]one of the wheelchair spaces can see
that high.”126 Likewise, at the 100 Level, Row 1, Plaintiff notes that Mr. Mazz readily admits that
the view of much of the field is obstructed by an “opaque wall” of “players benches and
equipment.”127 Therefore, Plaintiff argues that Defendants have failed to create a genuine issue of
material fact as to the presence of obstructions of Plaintiff’s view of the Jumbotron and aerial
gameplay at the 100 Level, Row 36 and as to the presence of obstructions of Mr. Bailey’s view of
121 Id.
122 Id.
123 Id. at 7.
124 Id.
125 Id.
126 Id.
127 Id.
the field of play at the 100 Level, Row 1.128
Plaintiff asserts that Defendants point to no evidence that performing the alterations in
compliance with the ADA would have been virtually impossible.129 According to Plaintiff, if
Defendants had kept the ADA Platforms, where Plaintiff sat before the 2010 renovations, he would
still have seating that afforded him with a full view of the field, aerial gameplay, and the
Jumbotron.130 By making the facility less accessible, Plaintiff argues that Defendants violated 1991
ADAAG 4.1.6(1)(a), which prohibits alterations which decrease or have the effect of decreasing
accessibility or usability below the ADA accessibility guidelines.131 Despite their lengthy briefing
about the current difficulty of making the seating accessible, Plaintiff asserts that Defendants failed
to attach any evidence demonstrating that performing the modifications in compliance with the
ADA accessibility guidelines would have been “virtually impossible” during the 2010
Renovation.132
III.Legal Standard
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”133 When assessing whether a dispute as to any material fact exists, the court
128 Id.
129 Id.
130 Id.
131 Id. at 7–8.
132 Id. at 8.
133 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid
Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”134 All reasonable inferences are drawn in favor of the nonmoving party,
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”135
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of
law.136 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
trial.137
The party seeking summary judgment always bears the initial responsibility of informing
the court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.138 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.139 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.140 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
134 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
135 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
136 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
137 See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
138 Celotex, 477 U.S. at 323.
139 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).
140 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248–49 (1996)).
“unsubstantiated assertions,” or “by only a scintilla of evidence.”141 Rather, a factual dispute
precludes a grant of summary judgment only if the evidence presented by the nonmovant is
sufficient to permit a reasonable trier of fact to find for the nonmoving party.142 Further, a court
“resolve[s] factual controversies 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.”143 Hearsay
evidence and unsworn documents that cannot be presented in a form that would be admissible in
evidence at trial do not qualify as competent opposing evidence.144 Ultimately, summary judgment
is appropriate in any case “where critical evidence is so weak or tenuous on an essential fact that
it could not support a judgment in favor of the nonmovant.”145
B. ADA Compliance
The Americans with Disabilities Act of 1990 (“ADA”) “is a broad mandate of
comprehensive character and sweeping purpose intended to eliminate discrimination against
disabled individuals, and to integrate them into the economic and social mainstream of American
life.”146 “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled
individuals in major areas of public life, among them employment (Title I of the Act), public
services (Title II), and public accommodations (Title III).”147 Plaintiff brings claims against the
141 Little, 37 F.3d at 1075.
142 Anderson, 477 U.S. at 248.
143 Little, 37 F.3d at 1075.
144 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).
145 Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).
146 Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (citing PGA Tour, Inc. v. Martin,
532 U.S. 661, 675 (2001); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599 (1999) (internal quotation marks
omitted)).
147 PGA Tour, 532 U.S. at 675.
Board and France under Title II of the ADA and the Rehabilitation Act.148 Plaintiff brings claims
against SMG under Title III of the ADA.149
1. Title II of the ADA and the Rehabilitation Act
“Title II of the ADA focuses on disability discrimination in the provision of public
services.”150 Specifically, Title II provides that “no qualified individual with a disability shall, by
reason of such disability, be excluded from participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to discrimination by any such entity.”151
A “public entity” includes “any department, agency, special purpose district, or other
instrumentality of a State or States or local government.”152
Similarly, “Section 504 of the Rehabilitation Act prohibits disability discrimination by
recipients of federal funding.”153 Like Title II, Section 504 provides that no qualified individual
with a disability “shall, solely by reason of her or his disability, be excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.”154 “The ADA and the Rehabilitation Act generally are interpreted in
pari materia.”155 “Indeed, Congress has instructed courts that “nothing in [the ADA] shall be
construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the
148 Rec. Doc. 1 at 1–2.
149 Id. at 2.
150 Frame, 657 F.3d at 223.
151 42 U.S.C. § 12132.
152 Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42 U.S.C. § 12131(1)(B)).
153 Frame, 657 F.3d at 223.
154 29 U.S.C. § 794(a).
155 Frame, 657 F.3d at 223 (citing Kemp v. Holder, 610 F.3d 231, 234–35 (5th Cir. 2010); Pace v. Bogalusa
City Sch. Bd., 403 F.3d 272, 287–88, 289 n. 76 (5th Cir. 2005) (en banc)).
Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title.’”156
“To show a violation of either statute, a plaintiff must prove “(1) that he has a qualifying
disability; (2) that he is being denied the benefits of services, programs, or activities for which the
public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that
such discrimination is by reason of his disability.”157
The United States Attorney General is authorized to promulgate regulations implementing
Title II.158 The regulations provide that “no qualified individual with a disability shall, because a
public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded
from participation in, or be denied the benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any public entity.”159 A public entity must operate
“each service, program, or activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with disabilities.”160 Therefore, Title II
requires “program accessibility.”161
“Recognizing that failure to accommodate persons with disabilities will often have the
same practical effect as outright exclusion, Congress required the States to take reasonable
measures to remove architectural and other barriers to accessibility.”162 However, a public entity
is not “necessarily required . . . to make each of its existing facilities accessible to and usable by
156 Id. at 223–24 (quoting 42 U.S.C. § 12201(a); Bragdon v. Abbott, 524 U.S. 624, 632 (1998)).
157 Miraglia v. Bd. of Supervisors of Louisiana State Museum, 901 F.3d 565, 574 (5th Cir. 2018) (quoting
Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (per curiam)).
158 42 U.S.C. § 12134(a).
159 28 C.F.R. § 35.149.
160 28 C.F.R. § 35.150(a).
161 Tennessee v. Lane, 541 U.S. 509, 531 (2004).
162 Id. (citing 42 U.S.C. § 12131(2)).
individuals with disabilities.”163 Instead, with respect to facilities built before 1992, Title II only
requires ‘“reasonable modifications’ that would not fundamentally alter the nature of the service
provided, and only when the individual seeking modification is otherwise eligible for the
service.”164
“In the case of facilities built or altered after 1992, the regulations require compliance with
specific architectural accessibility standards,”165 including the ADA Accessibility Guidelines for
Buildings and Facilities (“ADAAG”) set forth at 36 C.F.R. part 1191, appendices B and D.
Pursuant to the regulations, “[e]ach facility or part of a facility altered by, on behalf of, or for the
use of a public entity in a manner that affects or could affect the usability of the facility . . . shall,
to the maximum extent feasible, be altered in such manner that the altered portion of the facility is
readily accessible to and usable by individuals with disabilities. . . .”166
2. Title III of the ADA
Title III of the ADA provides that “[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.”167 A stadium is considered to
be a place of public accommodation under Title III.168 “The ADA does not require a place of public
accommodation to provide a plaintiff with the ideal or preferred accommodation; rather, the ADA
163 28 C.F.R. § 35.150(a)(1).
164 Lane, 541 U.S. at 531.
165 Id. (citing 28 CFR § 35.151).
166 28 C.F.R. § 35.151(b)(1).
167 42 U.S.C. § 12182(a).
168 42 U.S.C. § 12181(7)(C).
requires that a defendant provide a plaintiff with an accommodation that is reasonable and permits
the plaintiff to participate equally in the good, service, or benefit offered.”169
Title III defines discrimination as including “a failure to remove architectural barriers . . .
in existing facilities . . . where such removal is readily achievable.”170 The term “existing facilities”
includes structures built prior to the Act taking effect on January 26, 1992, which have not been
modified since then.171
Pursuant to the regulations implementing Title III, “[a]ny alteration to a place of public
accommodation . . . after January 26, 1992, shall be made so as to ensure that, to the maximum
extent feasible, the altered portions of the facility are readily accessible to and usable by individuals
with disabilities, including individuals who use wheelchairs.”172 Public accommodations built or
altered after January 26, 1992, must comply with both the Title III regulations set forth at 28 C.F.R.
part 36, subpart D and the ADAAG unless “the nature of an existing facility makes it virtually
impossible to comply fully with applicable accessibility standards through a planned alteration.”173
IV.Analysis
In the instant motion, Plaintiff argues that he is entitled to summary judgment as to the
following alleged violations of the alteration requirements of the Americans with Disabilities Act:
(1) sightline obstructions at 100 Level, Row 1; (2) sightline obstructions at 100 Level, Row 36;
(3) inadequate amount of accessible seating at the 100 Level; (4) making the Superdome less
169 1 Americans with Disab. Pract. & Compliance Manual § 4:1, Nondiscrimination Mandate.
170 42 U.S.C. § 12182(b)(2)(A)(iv).
171 Tatum v. Doctor’s Associates, Inc., No. CV 14–2980, 2016 WL 852458, at *3 (E.D. La. Mar. 4, 2016)
172 28 C.F.R. § 36.402(a)(1).
173 28 C.F.R. § 36.402(c).
accessible to individuals with mobility-related disabilities; (5) making the 200 Level less
accessible; and (6) failure to provide sufficient accessible seating stadium wide.174
In opposition to the motion, SMG argues that Plaintiff’s motion for summary judgment
should be denied for five principal reasons: (1) SMG is not an operator under Title III for purposes
of Plaintiff’s claims, (2) Plaintiff did not plead an alterations claim in the Complaint and any such
claims are untimely; (3) Plaintiff has not presented any evidence to support a finding that removal
of any architectural barrier is readily achievable; (4) even assuming that Plaintiff has a viable
alterations claim, SMG argues Plaintiff has not satisfied his burden of showing he is entitled to
summary judgment; (5) Plaintiff’s alterations claims are barred by the doctrine of laches.175 In
opposition to the motion, France argues that: (1) Plaintiff lacks standing to pursue all relief for
which he prays; (2) Plaintiff has failed to meet his threshold burden of proof under the ADA; and
(3) Plaintiff is not entitled to judgment as a matter of law on his claims against France because
Plaintiff is not being “denied the benefits of a place of public accommodation.”176 The Court will
first address the preliminary issue of timeliness and standing before turning to whether Plaintiff is
entitled to summary judgment on the alterations claims.
A. Preliminary Issues
1. Whether SMG is an Operator of the Superdome under Title III
SMG asserts it is not an operator of the Superdome under Title III for purposes of Plaintiff’s
claims.177 For the reasons set forth in the Court’s Order and Reasons on SMG’s Motion for
174 Rec. Doc. 95.
175 Rec. Doc. 105.
176 Rec. Doc. 106 at 4–14.
177 Rec. Doc. 105 at 9.
Summary Judgment,178 there are genuine issues of material fact in dispute regarding whether SMG
is an operator under Title III. Accordingly, Plaintiff is not entitled to summary judgment against
SMG because the issue of whether SMG is an operator must be decided at trial.
2. Pleading of Alteration Claims and Timeliness of Alteration Claims
As noted above, Plaintiff is not entitled to summary judgment against SMG because there
is a disputed issue of fact regarding whether SMG is an operator. Nevertheless, for completeness,
the Court addresses SMG’s alterative argument that Plaintiff’s alteration claims were not raised in
the Complaint and are not timely.
SMG contends Plaintiff did not plead any alteration claims in the Complaint.179 However,
this argument is without merit. The alteration claims are pled at paragraphs 41–44, 52–53, and 62–
69 of the Complaint.180 Therefore, this would not be an appropriate basis on which to deny the
motion for summary judgment.
SMG also asserts that any alteration claims are prescribed.181 In response, Plaintiff argues
that the claims are timely because he filed suit within one year of being denied full and equal
enjoyment of a place of public accommodation.182 In support, SMG cites two district court cases
holding that an operator of an existing facility “has a continuing duty to meet the existing facilities
standards” by removing architectural barriers when such removal is readily achievable, but as to
alterations, the limitations period runs from the first date on which the plaintiff experiences the
178 Rec. Doc. 141.
179 Rec. Doc. 105 at 9.
180 See Rec. Doc. 1.
181 Rec. Doc. 105 at 9.
182 Id. at 2.
allegedly discriminatory alteration.183 Plaintiff asserts that SMG’s statute of limitations argument
fails because Section 12182(b) of the ADA, which defines discriminatory conduct, does not give
rise to a series of “discrete claims.”184 Instead, Plaintiff contends, Section 12182(a) provides that
a cause of action only arises when a plaintiff is being denied the full and equal enjoyment of a
place of public accommodation.185 Plaintiff contends that the district court cases upon which SMG
relies improperly conflate the defendant’s wrongful act with the disabled individual’s injury.186
In its prior Order denying SMG’s Motion for Judgment on the Pleadings, this Court relied
the text of Section 12182(a) to find that Plaintiff’s claims were timely.187 Title III of the ADA
provides:
No individual shall be discriminated against on the basis of disability in the full and
equal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.188
As this Court found in its prior Order, Congress’s use of the present tense suggests that a new
claim accrued each time that SMG allegedly denied Plaintiff “the full and equal enjoyment” of a
place of public accommodation.189 Plaintiff alleges that the 2010 renovations violated the alteration
requirements of the ADA in six ways. Plaintiff filed suit within one year of SMG allegedly denying
183 Speciner, 215 F. Supp. 2d at 630 (D. Md. 2002); De La Rosa v. Lewis Foods of 42nd Street, L.L.C., 124
F.Supp. 3d 290, 300 (S.D.N.Y. 2015)).
184 Rec. Doc. 127 at 4.
185 Id.
186 Id. at 5.
187 Rec. Doc. 86 at 19–20.
188 42 U.S.C. § 12182(a).
189 Rec. Doc. 86 at 20.
Plaintiff “the full and equal enjoyment” of a place of public accommodation. Therefore, the claims
are timely.
SMG also argues that Plaintiff’s claims are barred under the doctrine of laches.190 SMG
asserts that the delay in filing suit is unreasonable because Plaintiff first voiced his accessibility
concerns in 2011 but did not file suit because he did not want to sue his favorite football team, the
Saints.191 Additionally, SMG contends that the delay has resulted in prejudice to SMG because it
has lost evidence through the passage of time.192 “Laches is an affirmative defense which must be
pled and proved by the defendants.”193 The affirmative defense of laches “requires a showing of
both unreasonable delay and prejudice to the party who raises the defense.”194 “[L]oss of records,
destruction of evidence, fading memories, or unavailability of witnesses,” may constitute prejudice
sufficient to bar a claim under laches.195 However, “the harm is not merely that one loses what he
otherwise would have kept, but that delay has subjected him to a disadvantage in asserting and
establishing his claimed right or defense.”196 If there is a “genuine issue as to any material fact…a
trial on the prejudice issue is required (to enable) the court on the basis of the whole record to
determine the underlying rightness of it.”197
190 Rec. Doc. 105 at 24.
191 Id.
192 Id. at 25.
193 Matter of Henderson, 577 F.2d 997, 1002 (5th Cir. 1978).
194 Id. at 1001.
195 Cornetta v. United States, 851 F.2d 1372, 1378 (Fed. Cir. 1988).
196 Akers v. State Marine Lines, Inc., 344 F.2d 217, 221 (5th Cir. 1965).
197 Id. (internal citation omitted).
SMG did not raise laches as a defense in its answer.198 Additionally, SMG has not shown
that it was prejudiced by the delay in filing suit. The only purported prejudice SMG points to is
that Plaintiff relies on a 2007 letter prepared by Larry Roedel, former counsel for the Board,
concerning purported alterations to the 200 Level, but Mr. Roedel cannot remember where he
obtained the information in the letter due to the passage of time.199 SMG has not shown how this
one lapse in memory by Mr. Roedel would subject SMG to a disadvantage in asserting and
establishing a defense.200 Therefore, SMG has not shown that Plaintiff’s claims should be barred
under the doctrine of laches. Accordingly, this would not be an appropriate basis upon which to
deny the motion for summary judgment.
3. Standing
Plaintiff asserts he has standing to pursue his claim for injunctive relief.201 Plaintiff states
he attended nine Saints games in the year prior to filing this lawsuit and ten games since the case
was filed.202 He asserts that he intends to attend Saints games at the Superdome in the future.203
Therefore, Plaintiff contends that he has standing to seek injunctive relief under the “intent to
return” test.204 France argues that Plaintiff is confined to seek redress for only the alleged violations
and physical barriers that he personally encountered.205 According to France, Plaintiff admits he
198 Rec. Doc. 16.
199 Rec. Doc. 105 at 24–25.
200 Akers, 344 F.2d at 221.
201 Rec. Doc. 95-1 at 12–13.
202 Id. at 13.
203 Id.
204 Id.
205 Rec. Doc. 106 at 4.
only personally experienced the sightline obstructions at 100 Level, Row 1 and the sightline
obstructions at 100 Level, Row 36.206 Therefore, France asserts that summary judgment must be
denied with respect to Plaintiff’s other alterations claims, as he lacks standing to raise such
claims.207
In Lujan v. Defenders of Wildlife, the Supreme Court laid out the general requirements for
plaintiffs to establish standing under Article III of the Constitution.208 “[T]o satisfy Article III's
standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed
to merely speculative, that the injury will be redressed by a favorable decision.”209
In Frame v. City of Arlington, the Fifth Circuit addressed whether the plaintiffs had Article
III standing to pursue ADA claims.210 In Frame, the plaintiffs were wheelchair users who alleged
certain inaccessible sidewalks “ma[d]e it dangerous, difficult, or impossible for them to travel to
a variety of public and private establishments.”211 While “[m]ere ‘some day’ intentions to use a
particular sidewalk, ‘without any description of concrete plans, does not support standing,” the
Fifth Circuit found that ‘“imminence’ is an ‘elastic concept’ that is broad enough to accommodate
challenges to at least some sidewalks that a disabled person has not personally encountered.”212
206 Id. at 4–5.
207 Id. at 5.
208 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
209 Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing
Lujan, 504 U.S. at 560–61).
210 Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011).
211 Id. at 221.
212 Id. at 235.
For example, the Fifth Circuit noted that “a plaintiff may seek injunctive relief with respect to a
soon-to-be-built sidewalk, as long as the plaintiff shows a sufficiently high degree of likelihood
that he will be denied the benefits of that sidewalk once it is built.”213 Similarly, the Fifth Circuit
stated that “a disabled individual need not engage in futile gestures before seeking an injunction;
the individual must show only that an inaccessible sidewalk actually affects his activities in some
concrete way.”214
Plaintiff attended nine Saints games in the year prior to filing this lawsuit and ten games
since the case was filed. In his declaration, Plaintiff states that he intends to continue attending
Saints games at the Superdome in the future, and he is “gravely concerned that [his] view of the
game, jumbotron, and scoreboard will continue to be obstructed when [he] return[s].215 Therefore,
Plaintiff has standing to seek injunctive relief because: he has suffered an injury in fact that is
concrete and particularized and actual or imminent; the injury is fairly traceable to the challenged
action of Defendants; and it is likely, as opposed to merely speculative, that the injury will be
redressed by a favorable decision.216
B. Whether Plaintiff is Entitled to Summary Judgment on his Alteration Claims
To establish a violation of the ADA, a plaintiff must prove: (1) that he has a qualifying
disability; (2) that he is being denied the benefits of programs for which a public entity is
responsible or the benefits of a place of public accommodation; and (3) that such discrimination is
by reason of his disability.217
213 Id. at 235–36.
214 Id. at 5.
215 Rec. Doc. 95-4.
216 Friends of the Earth, Inc., 528 U.S. at 180–81.
217 Miraglia, 901 F.3d at 574.
1. Whether Plaintiff has a Qualifying Disability
Under Title II of the ADA, an individual has a disability if he or she “[has] a physical or
mental impairment that substantially limits one or more major life activities of such individual.”218
Walking, standing, and breathing are all “major life activities.”219
Plaintiff presents his declaration, which states that he has muscular dystrophy and is unable
to breathe, stand or walk.220 As a result, Plaintiff attests he has to rely on a ventilator to breathe
and a wheelchair for mobility.221 Defendants do not present any evidence to dispute these
assertions. Therefore, there is no issue of material fact in dispute that Plaintiff is a qualified
individual with a disability within the meaning of the ADA.
2. Whether Plaintiff is Being Denied the Benefits of Programs (as to France) or
the Benefits of a Place of Public Accommodation (as to SMG)
Plaintiff contends he does not have an equal opportunity to view and enjoy football games
and the attendant screens at the Superdome in a manner comparable to non-disabled persons due
to impermissible barriers to access.222 Plaintiff asserts there are no material facts in dispute and he
is entitled to summary judgment as to the following violations of the alteration requirements of the
ADA at the Superdome: (1) sightline obstructions at 100 Level, Row 1; (2) sightline obstructions
at 100 Level, Row 36; (3) inadequate amount of accessible seating at the 100 Level; (4) making
the Superdome less accessible to individuals with mobility-related disabilities; (5) making the 200
218 42 U.S.C. § 12102(1)(A).
219 42 U.S.C. § 12102(2)(A).
220 Rec. Doc. 95-4 at 1.
221 Id.
222 Rec. Doc. 95-1 at 14.
Level less accessible; and (6) failure to provide sufficient accessible seating stadium wide.223
Accordingly, the Court addresses each of these claims in turn.
As set forth above, under the regulations implementing Title II of the ADA “[e]ach facility
or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects
or could affect the usability of the facility . . . shall, to the maximum extent feasible, be altered in
such manner that the altered portion of the facility is readily accessible to and usable by individuals
with disabilities. . . .”224 Under the regulations implementing Title III of the ADA, any alterations
to a facility after 1992 must be “made so as to ensure that, to the maximum extent feasible, the
altered portions of the facility are readily accessible and usable by individuals with disabilities,
including individuals who use wheelchairs.”225 The Superdome was constructed in 1975.
Therefore, this heightened standard will only apply to portions of the facility where an alteration
occurred.
An alteration is defined as a change that “could affect the usability of the building or facility
or any part thereof.”226 Alterations include events such as remodeling, renovation, rehabilitation,
reconstruction, and changes or rearrangement in structural parts, but typically do not include
normal maintenance or painting.227 The DOJ has instructed that “‘usability’ is to be read broadly
to include any change that affects the usability of the facility, not simply changes that relate directly
223 Id. at 15–21.
224 28 C.F.R. § 35.151(b)(1).
225 28 C.F.R. § 36.402(a)(1).
226 28 C.F.R. § 36.402(b). See also 28 C.F.R. § 35.151(b)(1).
227 28 C.F.R. § 36.402(b)(1).
to access by individuals with disabilities.”228 “[A]ll changes directly relating to access by
individuals with disabilities indisputably affect usability.”229
Plaintiff relies on the deposition of Alan Freeman, the general manager of the Superdome,
who detailed “the substantial renovation work [that] took place in 2009 and 2010.”230 Mr. Freeman
testified that as part of the 2010 renovations the ADA Platforms were removed; temporary sideline
seats were dismantled and removed from the 100 Level; permanent rows of seats were installed at
the 100 Level sidelines; two rows of ADA seating were installed in the 100 Level; and the
concourse on the 100 Level was expanded.231 Mr. Freeman also testified that following Hurricane
Katrina 9,540 seats were removed from the 200 Level and replaced with 8,919 seats.232 These
changes “could affect the usability of the building or facility or any part thereof,” and are thus
considered an alteration.233 Therefore, Defendants were required to make any alterations “readily
accessible” to individuals with disabilities to the “maximum extent feasible.”234
Under this standard, the altered portion of the facility must comply fully with applicable
accessibility standards and the ADAAG unless it is “virtually impossible”235 If compliance is
virtually impossible, “the alteration shall provide the maximum physical accessibility feasible.”236
228 28 C.F.R. Pt. 36, App. C.
229 Tatum, 2016 WL 852458, at *4.
230 Rec. Doc. 95-12 at 22.
231 Id. at 25, 29–30.
232 Id. at 51–52.
233 28 C.F.R. § 36.402(b). See also 28 C.F.R. § 35.151(b)(1).
234 28 C.F.R. § 36.402(c). See also 28 C.F.R. § 35.151(b)(1).
235 28 C.F.R. § 36.402(c).
236 Id.
Importantly, “[a]ny altered features of the facility that can be made accessible shall be made
accessible.”237
SMG and France both assert that under the alterations standard Plaintiff failed to
demonstrate that the facility could have been, but was not, made “readily accessible” or a plausible
accommodation.238 In support of this argument, SMG cites Roberts v. Royal Atl. Corp, a Second
Circuit case.239 As discussed in detail in the Court’s Order and Reasons on Defendants’ Motion
for Summary Judgment,240 Roberts does not stand for this proposition. The Second Circuit in
Roberts clearly articulates two discrete analyses under the “alteration standard” on one hand and
the “architectural barrier standard” on the other.241 As the Second Circuit stated “section 12183
requires, with respect to altered facilities, that all feasible efforts be made toward compliance
without regard to cost,”242 whereas section 12182 “requires removal of architectural barriers,
regardless of whether alterations have been made, ‘where such removal is readily achievable.’”243
In short, section 12182 and section 12183 are separate provisions, providing for two possible ways
in which a defendant may discriminate against a plaintiff with a disability. Indeed, district courts
in the Second Circuit recognize this distinction and the effect it has on the court’s analysis.244
237 Id.
238 Rec. Doc. 105 at 17; Rec. Doc. 106 at 6.
239 Id. (citing Roberts v. Royal Atl. Corp., 542 F.3d 363, 370, 372 (2d Cir. 2008)).
240 Rec. Doc. 140.
241 Roberts, 542 F.3d at 363.
242 Id. at 367.
243 Id. (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).
244 de la Rosa v. 597 Broadway Dev. Corp., No. 13CV7999 (LAK) (MHD), 2015 WL 7351540, at *7
(S.D.N.Y. Aug. 4, 2015), report and recommendation adopted in part, 2015 WL 7308661 (S.D.N.Y. Nov. 19, 2015)
(“A determination that a facility has undergone an 'alteration' has considerable significance with respect to the
substance of the applicable legal standard. If the facility predated 1993 and has not undergone an alteration, the test is
whether a proposed remedial step is readily achievable.”).
Because they contain different standards, they are to be analyzed and considered separately, as
was done in Roberts. Therefore, in the case of an altered facility, the plaintiff is not required to
show that a proposed modification is “readily achievable.”
Plaintiff contends that there is no genuine issue of fact in dispute that the Superdome does
not comply with the alteration requirements in six ways. Accordingly, the Court addresses each of
Plaintiff’s arguments in turn.
a. Whether there is a Sightline Obstruction at Level 100, Row 1
First, as to the sightline obstruction at Level 100, Row 1, Plaintiff points to his expert,
James Terry’s finding that wheelchair users on the lowered platforms on Row 1 in Section 115
could see none of the field over the tops of the heads of average height people standing on the
sidelines while comparable non-disabled spectators could see 69% of the field.245 As to the
sightline obstruction at Level 100, Row 1, SMG points to Defendants’ expert, Mark Mazz’s finding
that providing a “comparable view of the field” is virtually impossible and that an existing
“continuous lateral support beam” prevents raising the front-row platform an additional six
inches.246
ADAAG Section 4.33.3 provides that “[w]heelchair areas shall be an integral part of any
fixed seating plan and shall be provided so as to provide people with physical disabilities a choice
of admission prices and lines of sight comparable to those for members of the general public.”
Plaintiff has presented evidence to show that the lines of sight at Level 1, Row 100 are not
comparable to those for members of the general public. Specifically, James Terry found that
wheelchair users on the lowered platforms on Row 1 could see none of the field over the tops of
245 Rec. Doc. 95-1 at 15 (citing Rec. Doc. 92-2 at 15).
246 Rec. Doc. 105 at 19 (citing Rec. Doc. 105-2 at 8–9).
the heads of average height people standing on the sidelines while comparable non-disabled
spectators could see 69% of the field.247 In response, Defendants present the opinion of Mark Mazz
stating:
It is virtually impossible for a front row sideline wheelchair space to have a
comparable view of the field to any standing spectator in the 100 Level. Raising
the wheelchair spaces 6 inches makes no difference. A person in a wheelchair
cannot see any of the field over an NFL player. To provide comparable views to
front row standing spectators the wheelchair spaces would have to be about 24
inches higher which would block the views of the 8 rows of seats behind [] them.
The wheelchair spaces are not 6 inches lower than other front row seats to protect
the lines of sight of the seated spectators in . . . Row 4, the first row behind the
wheelchair spaces. That row would have comparable lines of sight to other Row 4
seated spectators even if the wheelchair spaces were 6 inches higher. The elevation
of the wheelchair spaces cannot be raised because of the structural framing of the
seating bowl. The portal access to the wheelchair spaces must pass underneath a
continuous lateral support beam (Attachment 14). The building code requires 6 feet
8 inches minimum head clearance under the beam. The actual clearance under the
beam is only 6 feet 5 inches. That clearance limits the length of the ramp to 28 feet.
To achieve the additional 6 inches in height the ramp requires an additional 6 feet
in length plus an intermediate landing that is 5 feet long. The portal cannot
accommodate the additional length.248
Mr. Mazz also opines that “the Superdome’s seating bowl is drastically unsuitable for even the
most extensive reconfigurations to provide lines of sight over standing spectators that are
substantially equivalent or better than those provided for all other spectators”249
Under the regulations implementing Title II of the ADA “[e]ach facility or part of a facility
altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the
usability of the facility . . . shall, to the maximum extent feasible, be altered in such manner that
the altered portion of the facility is readily accessible to and usable by individuals with disabilities.
247 Rec. Doc. 92-2 at 15.
248 Rec. Doc. 105-2 at 8–9.
249 Id. at 3–4.
. . .”250 Under the regulations implementing Title III of the ADA, any alterations to a facility after
1992 must be “made so as to ensure that, to the maximum extent feasible, the altered portions of
the facility are readily accessible and usable by individuals with disabilities, including individuals
who use wheelchairs.”251 In Mr. Mazz’s opinion, the wheelchair spaces cannot be raised because
of the structural framing of the seating bowl. Furthermore, Mr. Mazz is of the opinion that the
seating bowl is drastically unsuitable for even the most extensive reconfigurations to provide lines
of sight over standing spectators. Based on Mr. Mazz’s opinion, there is a disputed issue of material
fact as to whether the 2010 Renovations ensured accessibility to the maximum extent feasible.
Accordingly, Plaintiff is not entitled to summary judgment on this issue.
b. Whether there is a Sightline Obstruction at Level 100, Row 36
Second, as to the sightline obstruction at Level 100, Row 36, Plaintiff points to Mr. Terry’s
finding that wheelchair users on Row 36 in the back of Section 114 could see 78% of the field over
the tops of the heads of average height people standing two rows ahead of them on Row 34 while
comparable spectators on row 35 could see 98% of the field.252 As to the sightline obstruction at
Level 100, Row 36, SMG points to Mr. Mazz’s finding that these seats do provide comparable
lines of sight to the field.253 Mr. Mazz also opines that neither the wheelchair spaces nor the back
several rows of the fixed seats can see punts reaching 150 feet above the center of the field, and it
would not be possible to create lines of sight that high.254
250 28 C.F.R. § 35.151(b)(1).
251 28 C.F.R. § 36.402(a)(1).
252 Rec. Doc. 95-1 at 16 (citing Rec. Doc. 92-2 at 15).
253 Rec. Doc. 105 at 19 (citing Rec. Doc. 105-2 at 9–10).
254 Rec. Doc. 105-2 at 10.
As discussed above, ADAAG Section 4.33.3 provides that “[w]heelchair areas shall be an
integral part of any fixed seating plan and shall be provided so as to provide people with physical
disabilities a choice of admission prices and lines of sight comparable to those for members of the
general public.” There is a genuine issue of material fact in dispute regarding whether the lines of
sight at Row 36 are comparable to the lines of sight for the general public. Therefore, Plaintiff is
not entitled to summary judgment on this issue.
c. Whether there is Inadequate Accessible Seating at the 100 Level
Third, regarding the inadequate amount of accessible seating at the 100 Level, Plaintiff
points to evidence showing that there are presently 25,460 seats, of which a total of 236 are
designated as wheelchair-accessible seats, but Plaintiff contends that Defendants are required to
have 256 wheelchair-accessible designated seats under the ADAAG formula.255 Regarding the
inadequate amount of accessible seating at the 100 Level, SMG asserts this issue was not raised in
the Complaint, and Plaintiff has not proposed where 20 additional seats might be placed.256
As an initial matter, SMG asserts that a claim regarding an inadequate number of accessible
seats is raised in the Complaint.257 In the Complaint, Plaintiff alleges that “the totality of accessible
designated seats in the entire stadium are located in only a few areas: Row 36 and Row 1 of the
100-level, and within the 600-level terrace. Entire levels of the stadium are lacking accessible
seating, and the few areas providing wheelchair-accessible seats suffer from serious visual
obstructions and other accessibility issues, as explained herein.”258 A plaintiff may not raise a new
255 Rec. Doc. 95-1 at 18 (citing Rec. Doc. 92-3 at 25).
256 Rec. Doc. 105 at 20.
257 Id.
258 Rec. Doc. 1 at 14.
claim in a motion for summary judgment.259 However, this is not a case of a plaintiff asserting an
entirely different, previously unalleged legal theory at the summary judgment stage. From the face
of the complaint, there must be enough factual matter to raise a reasonable expectation that
discovery will reveal evidence as to each element of the asserted claims.260 A claim regarding
inadequate accessible seating is generally raised in the Complaint,261 and during discovery
evidence was revealed as to the specific sections of the Superdome where inadequate accessible
seating is available. Accordingly, this would not be an appropriate basis upon which to deny the
motion for summary judgment.
ADAAG Section 4.1.2(19)(a) provides a table for calculating the number of accessible
seats that must be provided in places of assembly. Defendants do not dispute that presently there
are only 236 wheelchair accessible seats on the 100 Level.262 Plaintiff asserts that 256 wheelchair
accessible seats are required on the 100 Level under this formula. Defendants do not respond to
this assertion in their briefing. However, a seat inventory attached to Mr. Terry’s expert report
indicates that 136 wheelchair accessible seats are required on the 100 Level.263 Therefore, because
there is conflicting evidence in the record, the Court finds that there is a genuine issue of material
fact in dispute and denies Plaintiff’s request for summary judgment.
259 See DeKort v. Integrated Coast Guard Sys., 475 F. App’x 521, 522 (5th Cir. 2012)
260 Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).
261 Rec. Doc. 1 at 14.
262 Rec. Doc. 92-3 at 29.
263 Id.
d. Whether Defendants Made the Superdome Less Accessible at Level 100
Fourth, Plaintiff argues that Defendants made the Superdome less accessible by removing
the ADA Platforms.264 As to removing the on-field ADA Platforms, SMG asserts that Plaintiff has
failed to satisfy his burden to show that the seating was made “less” accessible or that Defendants
had anything to do with the decision to move the seats.265
ADAAG Section 4.1.6(1)(a) provides that “[n]o alteration shall be undertaken which
decreases or has the effect of decreasing accessibility or usability of a building or facility below
the requirements for new construction at the time of alteration.” Plaintiff asserts that prior to the
2010 Renovations, Plaintiff and others with disabilities had ADA seating at the ADA Platforms
with unobstructed views.266 In Mr. Terry’s expert report, he opines that “the 2011 Alterations
project relocated wheelchair users to inferior and noncompliant locations in terms of the vertical,
and ticket price dispersal, lines of sight over standing spectators.” 267 In his expert report, Mr. Mazz
opines:
[T]he eye level of a person in a wheelchair [on the prior ADA Platforms] would be
about 6 inches lower and about 54 inches closer to the field than a person sitting in
a wheelchair in the current front row 100 Level wheelchair spaces. The line of sight
over persons standing along the sideline is about the same. With less equipment
and less people directly in front of these seats, the view of the field would be
somewhat better only between one End Zone and 25-yard line than the current front
row 100 Level wheelchair spaces.268
Additionally, during his deposition, Plaintiff testified that when the front of the ADA Platforms
would fill with patrons, the remaining persons needing accessible seating would be filled in behind
264 Rec. Doc. 95-1 at 18.
265 Rec. Doc. 105 at 20.
266 Rec. Doc. 95-1 at 18.
267 Rec. Doc. 92-2 at 24.
268 Rec. Doc. 105-2 at 4.
the persons in the front row, but that “second row” of seating was not raised.269 Plaintiff also
testified that his view was blocked on occasion by kickers practicing during the game.270
Accordingly, there are genuine issues of material fact in dispute regarding whether the 2010
Renovations decreased or had the effect of decreasing accessibility of the 100 Level.
e. Whether Defendants Made the Superdome Less Accessible at Level 200
Fifth, Plaintiff argues that Defendants made the Superdome less accessible by removing
wheelchair accessible seats at the 200 Level.271 Plaintiff asserts that 139 ADA seats should be
provided on the 200 Level under the ADAAG.272 Regarding the alleged removal of wheelchair
accessible seats at the 200 Level, SMG asserts that this is not an alteration because the 200 Level
never had wheelchair accessible seats.273
During his deposition, Alan Freeman, the general manager of the Superdome, detailed “the
substantial renovation work [that] took place in 2009 and 2010.”274 Mr. Freeman also testified that
following Hurricane Katrina 9,540 seats were removed from the 200 Level and replaced with 8,919
seats.275 Plaintiff contends that ADA compliant seats were also removed from the 200 Level.
According to Plaintiff, “[b]y removing the accessibility seating at the 200 Level, Defendants made
the facility less accessible and violated the alteration requirement of the ADA.”276 In support,
269 Rec. Doc. 95-11 at 15–17.
270 Id. at 17.
271 Rec. Doc. 95-1 at 19.
272 Id.
273 Rec. Doc. 105 at 21–22.
274 Rec. Doc. 95-12 at 22.
275 Id. at 51–52.
276 Rec. Doc. 95-1 at 19.
Plaintiff cites a 2007 letter prepared by Larry Roedel, former counsel for the Board, which states
that there were ADA compliant seats at the 200 Level.277 In opposition, SMG presents a declaration
of Mark Arata, an employee of SMG who has worked in the box office of the Superdome since
2001.278 Mr. Arata states that “from 2001 to the present, there has never been any wheelchair
seating in the 200 Level Loge seating area.”279
ADAAG Section 4.1.6(1)(a) provides that “[n]o alteration shall be undertaken which
decreases or has the effect of decreasing accessibility or usability of a building or facility below
the requirements for new construction at the time of alteration.” There is a disputed issue of
material fact as to whether wheelchair accessible seating was ever available on the 200 Level.
Accordingly, there are genuine issues of material fact in dispute regarding whether the 2010
Renovations decreased or had the effect of decreasing accessibility of the 200 Level.
f. Whether Defendants Performed Modifications Affected Overall Usability
Sixth, Plaintiff asserts that by eliminating the ADA Platforms and renovating the 100 and
200 Levels, Defendants performed modifications that affect or could affect the overall usability of
the Superdome.280 SMG contends that Plaintiff has provided no basis for applying a heightened
alterations standard to the entire Superdome based solely on changes to the 100 Level (and
speculative changes to the 200 Level).281
277 Id. (citing Rec. Doc. 95-15). SMG contends that Plaintiff has not satisfied his burden of showing that
this letter—or its contents—is admissible. Rec. Doc. 105 at 22.
278 Rec. Doc. 105-3 at 7.
279 Id.
280 Rec. Doc. 95-1 at 19.
281 Rec. Doc. 105 at 23.
As set forth in the Court’s Order and Reasons on Defendants’ Motion for Summary
Judgment,”*’ Plaintiff's alteration claims are limited to the portions of the Superdome where
alterations occurred. Therefore, Plaintiff's claim that the entire facility must comply with the
alterations standard by providing accessible seating stadium-wide was dismissed with prejudice.
Accordingly, Plaintiff is not entitled to summary judgment on this issue.
¥. Conclusion
For the reasons discussed above, there are genuine issues of material fact in dispute
precluding the Court from granting summary judgment in favor of Plaintiff.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff Shelby Bailey’s “Motion for Partial Summary
Judgment”?®? is DENIED.
NEW ORLEANS, LOUISIANA, this 21st day of February, 2020.
NANNETTE JOLIVETTE BROWN
CHIEF JUDGE
UNITED STATES DISTRICT COURT
82 Rec. Doc. 140.
783 Rec. Doc. 95.
45