
    Owen HARTY, individually, Plaintiff, v. SRA/PALM TRAILS PLAZA, LLC, a Foreign Limited Liability Company, Defendant.
    Case No. 09-CV-61412.
    United States District Court, S.D. Florida.
    April 21, 2010.
    
      Alex P. Rosenthal, Esq. (Weston, FL) for the defendant, SRA/Palm Trails Plaza, LLC.
    Thomas B. Bacon, Esq., (Cooper City), for the plaintiff, Owen Harty.
   ORDER

WILLIAM C. TURNOFF, United States Magistrate Judge.

THIS CAUSE is before the Court on Plaintiffs Motion to Compel Complete Inspection. [DE 24]. This matter was referred to the undersigned by the Honorable Joan A. Lenard, United States District Judge for the Southern District of Florida. [DE 27]. The Court has considered the motion, the response [DE 25], the reply [DE 26], the record, the applicable law and rules, and is otherwise duly advised in the premises.

Plaintiff, a disabled individual, sued Defendant, the owner of a shopping plaza, pursuant to the Americans With Disabilities Act (“ADA”), for declaratory judgment and injunctive relief, as well as attorney’s fees and costs. Plaintiff alleges that he encountered architectural barriers in the subject property that discriminate against him and prevent him from returning to the property to enjoy the goods and services available to the public. Plaintiffs Complaint enumerated eight (8) specific barriers to access, which list, he indicated, was non-exclusive.

Plaintiff alleges that, during an inspection of the property on January 29, 2010, Defendant did not allow access to certain sections of the shopping center. Specifically, Plaintiff seeks access to the tenant spaces located in Wok N Roll, Sal’s Restaurant and Pizzeria, The UPS Store, Deerfield Nails, AAA Dry Cleaners, Ace Underwriting Group, as well as two vacant tenant spaces. Toward this end, Plaintiff moves to conduct a wholesale audit and inspection of Defendant’s property to survey all barriers, even if they were not listed on the Complaint or if they were not encountered by Plaintiff upon his visit to Defendant’s premises as described in his Complaint. Defendant does not oppose the request for a second inspection but argues that it should be limited to the barriers to access enumerated in Plaintiffs Complaint.

Plaintiff argues that he is entitled to have remedied all ADA violations at the subject property which impact his disability, not just the specific violations alleged in his Complaint. Defendant argues that this Court and the Eleventh Circuit have rejected this argument, holding that ADA plaintiffs do not have standing to complain about alleged barriers of which they are unaware at the time they file their complaints.

The authority Plaintiff cites in support of his argument is mainly from other districts and circuits. Although there are at least two cases from this district which tend to agree with Plaintiffs argument, most courts in this district and in the Eleventh Circuit require a claim of actual knowledge of particular barriers to confer standing to challenge them. As this Court noted in Fox v. Moms Jupiter Associates:

Some courts have held that a plaintiff need not encounter all barriers nor have knowledge of all barriers to obtain relief. In other words, a plaintiff may have only encountered one barrier, ... but the injunction would apply to all barriers in existence for people with the plaintiffs particular disability. Courts in the Eleventh Circuit have been more cautious, requiring a showing of plaintiffs actual knowledge of particular barriers in order for the plaintiff to have standing to challenge those barriers. (Internal citations omitted).

05-CIV-80689, 2007 WL 2819522, *6, FN. 5 (S.D.Fla.2007). Thus, to the extent that Plaintiff alleges entitlement to a Rule 34 inspection to determine whether there are mobility-related barriers on Defendant’s property, other than those specified in his Complaint, the argument is unpersuasive. Macort v. Goodwill Industries-Manasota, Inc., 220 F.R.D. 377, 379 (M.D.Fla.2003) (citing Resnick v. Magical Cruise Company, Ltd., 148 F.Supp.2d 1298 (M.D.Fla.2001)).

Defendant asserts that it has eliminated all of the specific barriers, to the extent that they existed, alleged in Plaintiffs Complaint. Thus, Defendant argues that Plaintiffs claims are moot. If Plaintiff wishes to verify the remediation of the barriers, he may conduct a Rule 34 inspection. However, such inspection shall be limited to the specific barriers to access Plaintiff alleged in his Complaint. In this regard, the Motion to Compel is GRANTED-IN-PART.

Likewise, Defendant argues that any ADA claims Plaintiff may have had related to the now-vacant tenant space are moot. Since these vacant spaces are not open for business, they are not places of public accommodation at this time. Plaintiff argues that Defendant cannot meet its high burden of demonstrating that there is no reasonable possibility that it will not return to its discriminatory behavior once the spaces are leased. The undersigned is not persuaded by this argument. Plaintiff does not cite any binding precedent to support his request, except the United States Supreme Court case Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In Friends of the Earth, the Supreme Court held that closing a polluting factory did not render moot the plaintiffs claim for injunctive relief because the defendant could resume operations at any time. Along these lines, Plaintiff argues that, because Defendant is actively seeking new tenants to fill the vacancies and expects to some day reopen them to the public, his ADA claims as to those spaces are not moot. However, as Defendant correctly argues and Plaintiff fails to address in his Reply, Friends of the Earth is distinguishable from the present case because it involved an action brought under the Clean Water Act. As Friends of the Earth was unrelated to the ADA, it did not address the “public accommodation” issue present in the instant case. Accordingly, Plaintiffs request to inspect vacant tenant spaces is DENIED.

The undersigned notes that a review of Plaintiffs filings demonstrates that section two of Plaintiffs memorandum of law in support of the instant Motion addresses Plaintiffs belief that businesses wait to be sued to come into compliance with ADA regulations. The section is immaterial to the issues referred herein and does not present legal argument for the Court’s review. In support of this argument, Plaintiff filed the affidavit of William Norkunas. [DE 24] at Exh. D. In a footnote in its response, Defendant requests that the Court strike from the record the Norkunas affidavit. [DE 25] at FN. 28.

Pursuant to Federal Rule of Civil Procedure 12(f), a court “may order stricken from any pleading ... any redundant, immaterial, impertinent, or scandalous matter.” A motion to strike will “usually be denied unless the allegations have no possible relation to the controversy and may cause prejudice to one of the parties.” Story v. Sunshine Foliage World, Inc., 120 F.Supp.2d 1027, 1030 (M.D.Fla.2000) (internal citations omitted). Upon review of the Norkunas affidavit, the undersigned finds that it is irrelevant to the instant matter. Therefore, finding good cause, the Court grants Defendant’s request to strike the Affidavit.

Accordingly, it is hereby ORDERED AND ADJUDGED that the above-referenced Motion [DE 24] is Granted-in-part and Denied-in-part, and Defendant’s request to strike the Norkunas Affidavit is Granted.  