Bailey v. Board of Commissioners of the Louisiana Stadium and Exposition District

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 Defendants SMG’s “Motion for Summary Judgment on

Modifications.”1 Plaintiff Shelby Bailey (“Plaintiff”) filed a complaint alleging that 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.2 In the

instant motion, SMG argues that all of the remaining claims against SMG should be dismissed

because SMG is not an operator as defined by Title III of the Americans with Disabilities Act

(“ADA”).3 Considering SMG’s motion, the memoranda in support and opposition, the record, and

the applicable law, the Court grants the motion in part and denies the motion in part.

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 of Commissioners of the Louisiana Stadium and

Exposition District (the “Board”) as the owner of the Superdome, and Kyle France (“France”) in

his official capacity as chairman of the Board (collectively, “Defendants”).4 Plaintiff brings claims

1 Rec. Doc. 92.

2 Rec. Doc. 1.

3 Rec. Doc. 92-1 at 1-2.

4 Rec. Doc. 1.

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.5 Plaintiff brings claims against SMG for declaratory and injunctive relief

pursuant to Title III of the ADA.6 Plaintiff also seeks recovery of attorneys’ fees and costs.7

According to the Complaint, Plaintiff has a disability and relies on an electric wheelchair

for mobility.8 Plaintiff alleges that he has been a Saints season ticket holder for over 30 years.9

Plaintiff alleges that prior to 2011, his seat was located on a wheelchair accessible raised platform

in the 100 Level section of the Superdome.10 Plaintiff alleges that in 2011, Defendants began

extensive renovations on the Superdome and reconfigured the accessible seating section for

patrons with disabilities.11 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

by barriers and other patrons or players standing during the game, or the seating is not fully

accessible by wheelchair.12

Plaintiff alleges that Defendants have been on notice of ongoing accessibility issues for

many years.13 According to the Complaint, in 2008 the United States Department of Justice

5 Id. at 1–2.

6 Id. at 2.

7 Id.

8 Id. at 4.

9 Id.

10 Id.

11 Id.

12 Id. at 4–8.

13 Id. at 10.

conducted an inspection of the Superdome and issued a report detailing violations of ADA

regulations.14 Additionally, Plaintiff alleges that Defendants were sued by private litigants in 2018

regarding ongoing accessibility violations.15

As a result, Plaintiff alleges that Defendants have failed to comply with various parts of

the ADA and Rehabilitation Act.16 Plaintiff seeks compensatory and nominal damages along with

declaratory and injunctive relief, and attorneys’ fees.17

On December 13, 2019, the Court granted in part and denied in part Defendant SMG’s

Motion for Judgment on the Pleadings.18 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.19

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

Complaint was filed within one year of SMG allegedly denying Plaintiff “the full and equal

enjoyment” of a place of public accommodation.20 However, the Court found that Plaintiff’s claim

regarding future renovations was not ripe for judicial review.21 Accordingly, the Court granted the

motion to the extent it sought dismissal of Plaintiff’s claim regarding future renovations but denied

14 Id.

15 Id. at 10–11.

16 Id. at 11–29.

17 Id. at 1.

18 Rec. Doc. 86.

19 Id. at 24.

20 Id. at 24–25.

21 Id. at 25.

the motion in all other respects.22

SMG filed the instant motion on December 30, 2019.23 Plaintiff filed an opposition on

January 7, 2020.24 The Board and France filed their own response to the instant motion on January

7, 2020.25 SMG, with leave of Court, filed a reply in further support of the motion on January 17,

2020.26 At the request of the parties, the Court set this motion for oral argument on February 4,

2020 at 10:00 a.m.27

II. Parties’ Arguments

A. Defendant’s Arguments in Support of the Motion

In the instant motion, SMG argues that it does not have control over the alleged

discriminatory conditions in the Superdome and therefore, cannot be held liable as an “operator”

under Title III of the ADA.28 SMG argues that it is merely the manager of the Superdome and that,

as the owner of the Superdome, the Board would have to be the one to approve any structural

modification.29 SMG contends that pursuant to various agreements between it and the Board, SMG

is unable to implement any of the proposed solutions or modifications proposed by Plaintiff.30

SMG argues that because it does not have control over the aspects of the Superdome Plaintiff seeks

22 Id.

23 Rec. Doc. 92.

24 Rec. Doc. 102.

25 Rec. Doc. 107.

26 Rec. Doc. 21.

27 Rec. Doc. 134.

28 Rec. Doc. 92 at 1.

29 Rec. Doc. 92-1 at 3.

30 Id. at 4–8.

to modify, it is not an “operator” and is therefore entitled to be dismissed.31

SMG contends that it does not have the power to implement the modifications set forth by

Plaintiff through the report of his retained expert James Terry (“Mr. Terry”).32 SMG argues that in

an analogous case, Neff v. American Dairy Queen, Inc., the district court granted summary

judgment because it determined that the plaintiff provided no evidence that the defendant could

require an existing franchise to make modifications to an existing structure.33 SMG argues that in

affirming the district court’s holding, the Fifth Circuit determined that supervisory authority

without more does not support a holding that the defendant “operated” the stores with respect to

the removal of architectural barriers.34 SMG points to the specific modifications proposed by

Plaintiff and contends that each solution involves a capital improvement, and, as in Neff, SMG

does not have the authority to implement the modifications without direction, approval and funding

from the Board.35

Additionally, SMG responds to the suggestion of Plaintiff’s expert, Mr. Terry, that

“Defendants should modify the content of video programming shown on monitors in the

Superdome during Saints games to comply with the ADA’s ‘effective communication’

requirements.”36 First, SMG contends that Plaintiff did not include an “effective communication”

31 Id. at 1–2.

32 Id. at 10.

33 Id. at 10–11 (citing Neff v. Am. Dairy Queen, Inc., 879 F. Supp. 57, 58, 60 (W.D. Tex. 1994)).

34 Id. at 11 (citing Neff, 58 F.3d at 1068-69).

35 Id. at 12.

36 Id. at 13.

claim in his Complaint, and the claim should be rejected for this omission.37 Second, SMG argues

that the evidence establishes that the Saints organization, not SMG, controls the content displayed

on monitors in the Superdome during Saints games.38 SMG contends that because it does not have

the authority to implement this proposed solution, it should be dismissed.39

Finally, SMG notes that the Court, in its December 13, 2019 Order, cited the Ninth

Circuit’s opinion in Disabled Rights Action Committee v. Las Vegas Events, Inc.,40 in ultimately

concluding that SMG could be held liable as an operator of the Superdome.41 SMG contends that

the plaintiff in Disabled Rights Action Committee was “permitted to engage in discovery ‘to

develop the factual basis for th[e] claim’ that the defendants had control over the modifications at

issue.”42 SMG argues that here, Plaintiff has been afforded an opportunity to engage in discovery,

and the evidence shows that SMG is entitled to summary judgment.43

B. Plaintiff’s Arguments in Opposition to the Motion

In opposition to the motion, Plaintiff argues that the contractual agreements between SMG

and the Board show that SMG could effectuate the modifications Plaintiff suggested; therefore,

Plaintiff contends that SMG is the operator of the Superdome.44 Additionally, Plaintiff argues that

37 Id. (citing Johnson v. Thibodaux City, 887 F.3d 726, 736 (5th Cir. 2018) (“[T]he plaintiffs may not defeat

summary judgment on the basis of a theory found nowhere in their complaint, at least without also moving to amend

or absent trial by consent.”).

38 Id. (citing Rec. Doc. 92-18).

39 Id. at 13–14 (citing Neff, 58 F.3d at 1068-69).

40 375 F.3d 861 (9th Cir. 2004).

41 Rec. Doc. 92-1 at 14 (citing Rec. Doc. 86 at 16).

42 Id. (citing Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 878 (9th Cir.

2004)).

43 Id. at 15.

44 Rec. Doc. 102 at 1.

it is not a valid defense for SMG to state that the National Football League regulations prevent it

from re-installing on-field platforms.45

First, Plaintiff contends that SMG is the Superdome’s operator and as such, can modify the

physical aspects of the Superdome to make it comply with the ADA.46 Plaintiff argues that Neff is

distinguishable from the case here because in Neff, the franchisor never prevented the franchisee

from making modifications and therefore, the franchisor never operated the store.47 Plaintiff

contends that SMG “operates” the Superdome because it controls, directs, and manages the

Superdome.48 Plaintiff argues that the depositions of Mr. Freeman and Mr. Thornton shows that

SMG is the true manager of the Superdome and that LSED is less involved.49 Furthermore,

Plaintiff contends that the Management Agreement and the Support Agreement show that SMG is

responsible for the day-to-day management of the Superdome.50 Accordingly, Plaintiff argues that

SMG controls, directs, and manages the Superdome and, thus, operates it.51

Responding to SMG’s argument that the Board must approve all capital improvement

projects, Plaintiff contends that this relationship does not negate SMG’s status as an operator.52

Plaintiff argues that if SMG makes a venue assessment and there’s a maintenance cost that is

45 Id.

46 Id. at 5.

47 Id. at 6–7 (citing Neff, 58 F.3d, at 1068-69).

48 Id. at 7.

49 Id. at 7–8.

50 Id. at 8–9.

51 Id. at 10.

52 Id.

necessary, the Board is required to fund it pursuant to the management contract.53

Responding to SMG’s argument that NFL regulations prevent it from replacing the ADA

platforms on the field, Plaintiff contends that the ADA trumps the NFL.54 Lastly, Plaintiff argues

that his claims about the video monitor are in the Complaint.55 Furthermore, Plaintiff contends that

while the Saints may control the content on the video monitors, the size of the physical monitors

is what Plaintiff complains about and what SMG can remedy.56

C. The Board and France’s Arguments in Opposition to the Motion

In opposition to the motion, the Board and France (collectively, the “LSED Defendants”)

argue in response to SMG’s argument that it does not qualify as an “operator” under Title III of

the ADA, that (1) there is Fifth Circuit case law to the contrary and (2) the material facts upon

which SMG’s argument rests are disputed by the evidentiary record in this case.57 The LSED

Defendants argue that SMG is an “operator” of the Superdome, pursuant to contractual agreements

that vest SMG with authority to manage all operations at the Superdome.58

D. SMG’s Arguments in Further Support of the Motion

In reply, SMG argues that it does not have the authority to approve of the solutions

proposed by Plaintiff because any structural modification to the Superdome must be funded by the

Board.59 SMG argues that “with respect to the television monitors, Plaintiff’s demands regarding

53 Id. at 10–11.

54 Id. at 11.

55 Id. at 12 (citing Rec. Doc. 1).

56 Id.

57 Rec. Doc. 107 at 1.

58 Id. at 2.

59 Rec. Doc. 121 at 1–2 (citing Rec. Docs. 92-4, 92-5, 102-2, 105-3).

the readability of the television monitors were not included in Plaintiff’s Complaint.”60 SMG

contends that while both Plaintiff and the Board oppose SMG’s motion, neither “explains how the

proposed modifications fall within the scope of ‘managing’ or ‘operating’ the facility, and neither

disputes that the structural modifications requested by the Plaintiff require the approval and

funding of the [Board].”61 Therefore, SMG argues that Plaintiff and the Board have failed to

establish a genuine issue of material fact regarding whether SMG could make the modifications

requested by Plaintiff.62 SMG contends that its authority to operate the Superdome does not mean

it has the authority to make structural modifications to the Superdome, as Plaintiff has requested.63

SMG states that it is not contending it has no obligation under the ADA in its current capacity,

simply that it is not responsible for the type of architectural changes Plaintiff is requesting.64 In

sum, SMG contends that it does not own the Superdome, but merely manages it and therefore

cannot make the structural modification Plaintiff requests.65 Lastly, SMG argues that the Court

cannot order SMG to re-assemble temporary platforms in violation of NFL restrictions.66

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

60 Id. at 3.

61 Id. at 4.

62 Id.

63 Id. at 4–5 (citing O'Byrne v. Reed, No. CV0908406DMGDTBX, 2010 WL 11596710, at *3 (C.D. Cal.

Aug. 6, 2010); No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 262 F.3d 496 (5th Cir. 2001)).

64 Id. at 6.

65 Id. at 6–7.

66 Id. at 7.

as a matter of law.”67 When assessing whether a dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”68 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.”69

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.70 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.71

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.72 Thereafter, the nonmoving party

should “identify specific evidence in the record, and articulate” precisely how that evidence

supports his claims.73 To withstand a motion for summary judgment, the nonmoving party must

67 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).

68 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

69 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

70 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

71 See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

72 Celotex, 477 U.S. at 323.

73 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

show that there is a genuine issue for trial by presenting evidence of specific facts.74 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

“unsubstantiated assertions,” or “by only a scintilla of evidence.”75 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.76 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.”77 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.78 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.”79

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

74 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248–49 (1996)).

75 Little, 37 F.3d at 1075.

76 Anderson, 477 U.S. at 248.

77 Little, 37 F.3d at 1075.

78 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

79 Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).

life.”80 “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).”81

Title III 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.”82 A stadium is considered to be a place

of public accommodation under Title III.83 Title III defines discrimination as including “a failure

to remove architectural barriers . . . in existing facilities . . . where such removal is readily

achievable.”84 The term “existing facilities” includes structures built prior to the Act taking effect

on January 26, 1992, which have not been modified since then.85

The United States Attorney General is authorized to promulgate regulations implementing

Title III.86 Public accommodations must comply with both the Title III regulations set forth at 28

C.F.R. part 36, subpart D and 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,

“[a]ny alteration to a place of public accommodation . . . after January 26, 1992, shall be made so

80 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)).

81 PGA Tour, 532 U.S. at 675.

82 42 U.S.C. § 12182(a).

83 42 U.S.C. § 12181(7)(C).

84 42 U.S.C. § 12182(b)(2)(A)(iv).

85 Tatum v. Doctor’s Associates, Inc., No. CV 14–2980, 2016 WL 852458, at *3 (E.D.La. Mar. 4, 2016)

86 42 U.S.C. § 12186(b).

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.”87 An alteration is defined as “a change to the place of public accommodation or a

commercial facility that affects or could affect the usability of the building or facility or any part

thereof.”88 “The ADA does not require a place of public accommodation to provide a plaintiff with

the ideal or preferred accommodation; rather, the ADA 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.”89

Title III of the ADA applies to “any person who owns, leases (or leases to), or operates a

place of public accommodation.”90 In an action under Title III of the ADA the Fifth Circuit

explained that “[b]ecause the ADA does not define the term ‘operates,’ we ‘construe it in accord

with its ordinary and natural meaning.’”91 The Fifth Circuit found that the term “operate” means

“to put or keep in operation,” “[t]o control or direct the functioning of,” or “[t]o conduct the affairs

of; manage.”92 The Fifth Circuit has held that the relevant inquiry is whether the defendant controls

the modification of the public accommodation such that the defendant could cause the

accommodation to comply with the ADA.93 Conversely, “non-structural aspects” of the facility’s

87 28 C.F.R. § 36.402(a)(1).

88 28 C.F.R. § 36.402(b).

89 1 Americans with Disab. Pract. & Compliance Manual § 4:1, Nondiscrimination Mandate.

90 See 42 U.S.C. Section 12182(a)

91 Neff v. Am. Dairy Queen Corp., 58 F.3d 1063, 1066 (5th Cir. 1995) (quoting Smith v. United States, 508

U.S. 223 (1993); Perrin v. United States, 444 U.S. 37, 42 (1979)).

92 Id. (internal citations omitted).

93 Id. at 1067; see also Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 878 (9th Cir.

2004) (“whether Title III applies…depends on whether those private entities exercise sufficient control over the

operations, including accounting, personnel uniforms and use of trademarks, are irrelevant to the

operator inquiry.94

IV. Analysis

In the instant motion, SMG argues that it is entitled to summary judgment because: (1)

SMG is not an “operator” capable of making the modifications Plaintiff requests, (2) Plaintiff’s

video monitor claims are not mentioned in the Complaint and SMG does not have the authority to

change the content of the video monitors and (3) National Football League Regulations do not

permit temporary seating on the field.95 The Court will address each of these issues in turn.

A. Whether SMG is an “operator” capable of making the modifications Plaintiff requests

SMG argues that it does not have control over the alleged discriminatory conditions in the

Superdome and can therefore not be held liable as an “operator” under Title III of the ADA.96

Plaintiff argues that the contractual agreements between SMG and the Board show that SMG could

effectuate the modifications Plaintiff suggested; therefore, Plaintiff contends that SMG is the

operator of the Superdome.97

First, Plaintiff points to the depositions of Alan Freeman (“Mr. Freeman”) and Doug

Thornton (“Mr. Thornton”) to demonstrate the level of control SMG maintains over the

Superdome. Mr. Freeman, who was initially hired by SMG as a general manager of the Superdome,

detailed the relationship between the Board and SMG. Mr. Freeman stated that while SMG

Center, and in particular over the configuration of the facilities, even temporarily, with regard to accessibility, that

they can be said to ‘operate’ the stadium”).

94 Neff, 58 F.3d at 1067.

95 Rec. Doc. 92.

96 Id. at 1.

97 Rec. Doc. 102 at 1.

“report[s] to a board . . . that board doesn’t really have a lot of oversight relative to our

operations.”98 Mr. Freeman stated that the Board “doesn’t have any employees.”99 Mr. Freeman

described SMG as a “company that manages on behalf of primarily municipal operations facilities

such as stadiums, arenas, performing arts centers, and convention centers.”100 Mr. Freeman

acknowledged that the Board must “approve any kind of capital expenditures that we propose to

them”101 and that SMG does not “have any legal right to undertake capital improvements at the

Superdome without [the Board’s] approval.”102 Mr. Thornton, another employee of SMG, stated

that the Board “relies on SMG for operational best practices for maintenance and repair,” and that

SMG has “a lot of autonomy and flexibility with respect to operating the building.”103 Mr.

Thornton also confirmed that the Board does not have any employees.104

Second, Plaintiff and the Board point to several agreements between SMG and the Board

to demonstrate SMG’s responsibility for managing and operating the Superdome. Pursuant to the

initial Management Agreement,105 the State of Louisiana “grant[ed] [SMG] . . . the exclusive right

to perform and furnish or cause to be performed and furnished, from the effective date [t]hereof,

all management, services, labor and materials needed to operate and maintain the Facility known

98 Rec. Doc. 95-12 at 13-14.

99 Id. at 15.

100 Id. at 11.

101 Id. at 14.

102 Id. at 85.

103 Rec. Doc. 102-2 at 27.

104 Id. at 26.

105 As the Board notes in its memo in support of its motion for summary judgment, HMC Management

Corporation was the original “manager” under the initial Management Agreement. Rec. Doc. 92-8. SMG became the

“manager” as a result of the Fourth Amendment to Management Agreement dated June 19, 1998. Rec. Doc. 92-12.

The Management Agreement has been amended a total of seven times. See Rec. Docs. 92-8–92-15.

as the ‘Louisiana Superdome’, in the most efficient and profitable manner as can be reasonably

expected.”106 The initial Management Agreement further provides under the section entitled

“Capital Improvements Budget”:

At least six (6) months prior to the commencement of each Fiscal Year, [SMG] will

submit a budget for such Fiscal Year setting forth projected Capital Expenditures.

This budget will be subject to the procedures customarily employed in connection

with the development, approval and implementation of budgets for operating

agencies of the State. In addition, when [SMG] becomes aware, [SMG] will advise

the State of any unanticipated condition which jeopardizes the structural soundness

of the Superdome, or the ability of [SMG] to perform under this agreement, and the

State agrees to make available the funds necessary to correct such conditions,

within such time as required under the circumstances.107

“Capital Expenditures” are defined in the Management Agreement as “all expenditures for

building additions, alterations or improvements, and for purchases of additional or replacement

furniture, machinery or equipment, the depreciable life of which, according to accepted accounting

principles, is in excess of one (1) year and expenditures for maintenance or repairs which extend

the useful life of the assets being maintained or repaired for a period in excess of one year.”108

Pursuant to the Amended and Restated Support Services Agreement, the Board delegated

to SMG responsibility for certain services.109 For example, the “Asset Management” section states:

SMG shall provide all asset management services relating to the Facilities and other

properties of the LSED, including maintenance of inventory control; oversight of

the condition and maintenance requirements of the Facilities; to the extent that

funds supplied by the LSED are made available therefor and the LSED has

authority with respect thereto, see that the Facilities are maintained in good order

and condition; to the extent that funds supplied by the LSED are made available

therefor, rent, lease or purchase all equipment and maintenance supplies necessary

or appropriate for the performance of the LSED’s obligations with respect to the

operation and maintenance of the Facilities; manage all maintenance and capital

106 Rec. Doc. 92-8 at 2.

107 Id. at 5–6.

108 Id. at 1.

109 Rec. Doc. 92-17 at 2–4.

projects undertaken by the LSED with respect to the Facilities; and otherwise

perform all services necessary or useful in preserving and protecting the assets of

the LSED. In addition, SMG shall manage any capital projects undertaken by the

LSED with respect to the Superdome and the Arena to the extent such function is

not already within the scope of SMG’s duties and authority under the State

Management Agreement.110

Furthermore, under the Amended and Restated Support Services Agreement SMG is obligated to

“prepare and submit to the LSED . . . each year, proposed capital expenditures with respect to the

facilities,” as well as “a detailed budget for capital projects recommended to be undertaken. . .”111

Title III of the ADA applies to “any person who owns, leases (or leases to), or operates a

place of public accommodation.”112 In an action under Title III of the ADA the Fifth Circuit

explained that “[b]ecause the ADA does not define the term ‘operates,’ we ‘construe it in accord

with its ordinary and natural meaning.’”113 The Fifth Circuit found that the term “operate” means

“to put or keep in operation,” “[t]o control or direct the functioning of,” or “[t]o conduct the affairs

of; manage.”114 The Fifth Circuit has held that the relevant inquiry is whether the defendant

controls the modification of the public accommodation such that the defendant could cause the

accommodation to comply with the ADA.115 Conversely, “non-structural aspects” of the facility’s

operations, including accounting, personnel uniforms and use of trademarks, are irrelevant to the

110 Id. at 2–3.

111 Id. at 5.

112 See 42 U.S.C. § 12182(a)

113 Neff, 58 F.3d at 1066 (quoting Smith, 508 U.S. at 223; Perrin, 444 U.S. at 42 (1979).

114 Id. (internal citations omitted).

115 Id. at 1067; see also Disabled Rights Action Comm., 375 F.3d at 878 (9th Cir. 2004) (“whether Title III

applies…depends on whether those private entities exercise sufficient control over the Center, and in particular over

the configuration of the facilities, even temporarily, with regard to accessibility, that they can be said to ‘operate’ the

stadium”); Colon v. League of United Latin Am. Citizens, 91 F.3d 140 (5th Cir. 1996) (“[T]o be an ‘operator’ requires

more than simply controlling some aspect of a public accommodation. Rather, the person must have control over the

modification sought by the plaintiff.”).

operator inquiry.116

SMG argues that pursuant to the Management Agreement and the Amended and Restated

Support Services Agreement, SMG cannot be said to “operate” the Superdome because SMG is

unable to implement Plaintiff’s proposed modifications without Board approval.117 While the

Management Agreement does stipulate that the Board retains the ultimate authority to approve any

capital expenditures, the Management Agreement also provides that “the State agrees to make

available the funds necessary to correct . . . any unanticipated condition which jeopardizes the

structural soundness of the Superdome, or the ability of [SMG] to perform under this

agreement. . .” 118 The issue is whether the record shows sufficient control on SMG’s part such

that SMG can be said to “operate” the Superdome with respect to the ability to comply with the

ADA.119 The Court finds that a reasonable juror could conclude that it does, particularly where

SMG has “the exclusive right to perform and furnish or cause to be performed and furnished . . .

all management, services, labor and materials needed to operate and maintain the” Superdome. 120

The deposition testimony of Mr. Freeman and Mr. Thornton as well as the language in the

above-mentioned agreements establishes a genuine issue of material fact over whether SMG has

sufficient control such that it “operates” the Superdome. The Management Agreement and the

Amended and Restated Support Services Agreement paint a picture of one entity, SMG, evaluating

problems and recommending solutions and another entity, the Board, approving or rejecting those

solutions. In this way, the relationship between the Board and SMG is symbiotic. The Board is

116 Neff, 58 F.3d at 1067.

117 Rec. Doc. 92-1 at 4–8.

118 Rec. Doc. 92-8 at 5–6.

119 Id. at 2.

120 Id.

comprised of seven individuals appointed by the governor and has no employees.121 On the other

hand, SMG is responsible for providing budgets, maintaining the facility, and managing all

maintenance and capital projects undertaken by the Board.122 This is not a case of a “franchisor

with limited control over a franchisee’s store.”123 Rather, SMG exercises fairly significant control

over the functioning and day-to-day operation of the Superdome. Accordingly, summary judgment

is inappropriate because genuine issues of material fact exist regarding SMG’s level of control

over the Superdome.

B. Plaintiff’s Video Monitor Claims

Next, SMG takes issue with the suggestion of Plaintiff’s expert, Mr. Terry, that

“Defendants should modify the content of video programming shown on monitors in the

Superdome during Saints games to comply with the ADA’s ‘effective communication’

requirements.”124 First, SMG contends that Plaintiff did not include an “effective communication”

claim in the Complaint, and the claim should be rejected for this omission.125 Second, SMG argues

that the evidence establishes that the Saints organization, not SMG, controls the content displayed

on the monitors in the Superdome during Saints games.126 SMG contends that because it does not

have the authority to implement this proposed solution, it should be dismissed.127 In response,

121 Rec. Doc. 102-2 at 26.

122 Rec. Doc. 92-17 at 2–3.

123 Neff, 58 F.3d at 1066.

124 Rec. Doc. 92-1 at 13.

125 Id. (citing Johnson v. Thibodaux City, 887 F.3d 726, 736 (5th Cir. 2018) (“[T]he plaintiffs may not

defeat summary judgment on the basis of a theory found nowhere in their complaint, at least without also moving to

amend or absent trial by consent.”).

126 Id. (citing Rec. Doc. 92-18).

127 Id. at 13–14 (citing Neff, 58 F.3d at 1068-69).

Plaintiff argues that his claims about the Jumbotron are in the Complaint.128 Furthermore, Plaintiff

contends that while the Saints may control the content on the Jumbotron, the size of the physical

monitors is what Plaintiff complains about and what SMG can remedy.129 In response, SMG argues

that the readability of the television monitors were not included in the Complaint and that the

Saints have exclusive control over the Communication Systems.130

In his expert report, Mr. Terry was asked to consider whether “all information provided on

the large scoreboards communicated effectively to people with mobility disabilities, particularly

those who sit in Row 36 of the 100 Level seating sections, in compliance with Sections 35.160 and

36.303 of the ADA regulations?”131 Mr. Terry answered that “[t]he scoreboard is completely

obscured by the overhang for wheelchair users . . . sitting on Row 36,” whereas “comparable

spectators . . . had almost full views of the scoreboard [and] could see all of the information

communicated there.”132 To remedy this problem, Mr. Terry states that the “Superdome has

installed TV monitors under the overhang [but] [t]hese TV monitors do not communicate

effectively because they do not contain all of the same information that is shown on the large

scoreboards over the end zones. Rather, the TV monitors show the game action and instant replays,

but not all of the statistics, out-of-town scores, and other information that is shown on the large

scoreboards.”133 Mr. Terry also recommends that Defendants “[v]erify that the size and spacing of

128 Rec. Doc. 102 at 12 (citing Rec. Doc. 1).

129 Id.

130 Rec. Doc. 121 at 3.

131 Rec. Doc. 92-2 at 6.

132 Id. at 23.

133 Rec. Doc. 92-2 at 23.

those monitors allow at least the same level of readability as that provided for spectators who can

see the large scoreboards from the same sections.”134

First, SMG’s argues that Plaintiff did not include an “effective communication” claim in

the Complaint, and that the claim should be rejected for this omission.135 The Complaint states

“[a]s an individual with a disability assigned to the accessible seating at Section 109, Row 36, MR.

BAILEY has an obstructed view and cannot see these video screens. MR. BAILEY is denied

access to and enjoyment of this fan amenity due his status as a person with a disability.”136 SMG

points to Johnson v. Thibodaux City for the proposition that “plaintiffs may not defeat summary

judgment on the basis of a theory found nowhere in their complaint, at least without also moving

to amend or absent trial by consent.”137 However, this is not a case of a plaintiff asserting an

entirely different, previously unalleged legal theory at the summary judgment stage in order to

survive the motion for summary judgment.138 Plaintiff did not asset these claims for the first time

in response briefing to SMG’s motion to simply defeat summary judgment. Rather, the claim that

Plaintiff has an obstructed view of the video screens was alleged in the Complaint.139 Accordingly,

summary judgment is inappropriate on this basis.

134 Id. at 29.

135 Rec. Doc. 92-1 at 13 (citing Johnson v. Thibodaux City, 887 F.3d 726, 736 (5th Cir. 2018) (“[T]he

plaintiffs may not defeat summary judgment on the basis of a theory found nowhere in their complaint, at least

without also moving to amend or absent trial by consent.”).

136 Rec. Doc. 1 at 9.

137 Johnson, 887 F.3d at 736.

138 See, e.g., Yarbrough v. Hunt Southern Group, LLC, 2019 WL 4345990, No. 1:18cv51-LG-RHW (S.D.

Miss., Sept. 12, 2019) (dismissing plaintiff’s claims for negligent infliction of emotional distress and intentional

infliction of emotional distress, asserted for the first time in their response briefing to the defendants’ summary

judgment motions).

139 Rec. Doc. 1 at 9.

Second, the Court addresses SMG’s argument that the Saints organization, not SMG,

controls the content displayed on monitors in the Superdome during Saints games.140 SMG argues

that the Stadium Agreement makes clear that SMG does not control the content of the information

displayed on the monitors during Saints games and therefore cannot implement Plaintiff’s

proposed modifications.141 The stadium agreement provides that “the Club [the Saints] shall have

exclusive use and control of all Signage and Communication Systems that are the property of the

State or the LSED and that are customarily made available to the Club for its use during Club

Events.”142 Plaintiff argues that while the Saints control the content of the monitors, Plaintiff’s

complaint is focused on the size and placement of the monitors.143 Based on the operator analysis

above, there are genuine issues of material fact in dispute regarding SMG’s level of control over

the physical nature of the monitors, including the size of those monitors and their placement in the

Superdome. Accordingly, to the extent Plaintiff’s claim is about the physical nature of the

monitors, those claims are inappropriate for summary judgement. However, Plaintiff seems to

concede that SMG does not have any control over the content displayed on the monitors during

the game.144 Therefore, summary judgment is appropriate to the extent Plaintiff’s claims are related

to the content of the video monitors. Accordingly, those claims are dismissed with prejudice.

140 Rec. Doc. 92-1 at 13 (citing Rec. Doc. 92-18).

141 Id. at 13–14.

142 Rec. Doc. 92-18 at 31.

143 Rec. Doc. 102 at 12.

144 Id. (“Furthermore, while the Saints may control the content of the television monitors during the games,

Mr. Bailey testified in his deposition that the television monitors are so small that he cannot see them. The Saints may

have control of the communications systems, but the physical monitors that Mr. Bailey claims are too small are not

the responsibility of the Saints any more than the Jumbotron is.”).

C. National Football League Regulations Regarding Field Access

Lastly, SMG argues that the recommendation of Plaintiff’s expert that the temporary ADA

platforms be reinstalled on the field cannot be implemented because National Football League

regulations prohibit any such field access.145 In support, SMG points to the deposition of Alan

Freeman who stated “I don't know if the NFL had any input relative to do those temporary seats

stay on the field. I will tell you they do not allow us today to sell any seats on the field.”146 Plaintiff

first contends that the ADA trumps the National Football League regulations.147 Next, Plaintiff

argues that having triggered the alteration standard, Defendants must comply with applicable ADA

regulations.148 Plaintiff contends that his expert’s suggestion of replacing the ADA platforms is

merely one possible solution.149

For the reasons set forth in the Court’s Order and Reasons on Defendant’s Motion for

Summary Judgment on all of Plaintiff’s Remaining Claims,150 Defendants are subject to the

heightened alteration standard as to the portions of the facility where an alteration occurred and

were required to make any alterations “readily accessible” to individuals with disabilities to the

“maximum extent feasible.”151 Under this standard, the altered portion of the facility must comply

145 Rec. Doc. 91-1 at 8.

146 Rec. Doc. 95-12 at 31.

147 Rec. Doc. 102 at 11.

148 Id. at 11–12.

149 Id. at 11.

150 Rec. Doc. 140.

151 28 C.F.R. § 36.402(c). See also 28 C.F.R. § 35.151(b)(1).

fully with applicable accessibility standards and the ADAAG unless it is “virtually impossible”152

If compliance is virtually impossible, “the alteration shall provide the maximum physical

accessibility feasible.”153 Importantly, “[a]ny altered features of the facility that can be made

accessible shall be made accessible.”154 National Football League regulations do not alter this

obligation. Accordingly, summary judgment is inappropriate on this basis.

V. Conclusion

For the reasons discussed above, Defendants’ motion for summary judgment must be

denied because genuine issues of material fact exist regarding SMG’s level of control over the

Superdome such that SMG could be considered the operator of the Superdome. Additionally, the

Court finds summary judgement inappropriate as to Plaintiff’s claims regarding the physical size

and location of the video monitors; however, summary judgment is appropriate to the extent

Plaintiff is bringing a claim regarding the content on the video monitors. Lastly, National Football

League regulations do not alter Defendant’s obligation to comply fully with applicable

accessibility standards and the ADAAG unless it is virtually impossible.

Accordingly,

IT IS HEREBY ORDERED that SMG’s “Motion for Summary Judgment on

Modifications”155 is GRANTED IN PART and DENIED IN PART.

152 28 C.F.R. § 36.402(c).

153 Id.

154 Id.

155 Rec. Doc. 92.

IT IS FURTHER ORDERED that the motion is GRANTED to the extent that

Defendants seek dismissal of Plaintiffs claim regarding the content, as opposed to the physical

size and location, of the video monitors. The claim regarding the content of the video monitors is

DISMISSED WITH PREJUDICE. The motion is DENIED in all other respects.

NEW ORLEANS, LOUISIANA, this 21st day of February, 2020.

NANNETTE J pelee BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

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