The opinion of the court was delivered by: Hillman, District Judge
Plaintiff, Christopher Brown, alleges that Defendants, Showboat Atlantic City Propco, LLC and Atlantic City Showboat, Inc. violated the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter "ADA") and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. Plaintiff alleges he encountered discriminatory barriers at the Showboat that affected his ability to fully utilize and enjoy the hotel and casino. Defendants contend that Plaintiff not only lacks standing in this case to seek enforcement of the ADA, but also cannot establish a prima facie case of discrimination. Defendants filed a Motion for Summary Judgment against Plaintiff. Conversely, Plaintiff filed a Cross-Motion for Summary Judgment against Defendants. For the reasons expressed below, Defendants' Motion for Summary Judgment will be denied and Plaintiff's Cross-Motion for Summary Judgment will be granted in part and denied in part.
This Court has jurisdiction over Plaintiff's federal claims under 28 U.S.C. § 1331, and may exercise supplemental jurisdiction over his related state law claims under 28 U.S.C. § 1367.
Plaintiff states he is disabled due to "arthrogryposis," a rare disease that not only causes dexterity issues with his hands and arms, but also substantially limits his ability to walk. This disability requires him to utilize a wheelchair for mobility. Defendants dispute whether Plaintiff has a disability because he failed to provide any medical evidence indicating he is disabled.
Plaintiff resides in Bayside, New York and works for LMC Wireless in Manhattan, New York, New York. He does not have any pre-existing business or familial connections to the Atlantic City area. He considers himself an advocate for the disabled and will file a lawsuit when he discovers a business that is noncompliant with the ADA.*fn1
In July 2008, Plaintiff and a friend traveled to the Showboat Casino and Resort located in Atlantic City, New Jersey. While this was Plaintiff's first trip to the Showboat, he previously visited Atlantic City in 2006. Plaintiff stated in his deposition that he planned to stay overnight at the Showboat but did not have a reservation. During his trip Plaintiff personally encountered several barriers to access throughout the hotel and casino. These barriers included improper: ramps, walkways, restrooms, parking, sales and service counters, guestrooms and gaming tables. Plaintiff spent several hours documenting these barriers. According to Plaintiff, the barriers prevented his full use and enjoyment of the property. Defendants dispute whether Plaintiff encountered any barriers because he was unable to provide concrete details pertaining to their locations. At the time of his visit to the Showboat, Plaintiff did not file any complaints with Defendants regarding the barriers he encountered, nor, at any time subsequent to his trip, did he contact the Showboat about the difficulties he encountered.
During his deposition testimony, Plaintiff emphasized his intentions to return to the Showboat. However, he did not have any specific plans or a definite set date of return. In May 2010, Plaintiff submitted an affidavit with his Cross-Motion for Summary Judgment where he averred his intent to travel to Atlantic City twice each year during the spring and summer and visit the Showboat on each occasion. Defendants contend this affidavit is a sham affidavit created to generate a genuine issue of material fact and preclude entry of summary judgment on behalf of Defendants.
On October 21, 2008, Plaintiff commenced this suit against Defendants. In response, Defendants filed a motion to dismiss for lack of standing. Magistrate Judge Schneider, in an Opinion dated March 11, 2009, denied the motion to dismiss, noting that Defendants could re-challenge Plaintiff's standing at a later stage of the case. After conclusion of discovery, Defendants moved for summary judgment. Four days later Plaintiff filed a Cross-Motion for Summary Judgment against Defendants. On October 22, 2010, the Court ordered Plaintiff to submit a supplemental affidavit detailing his post-deposition trips to the Showboat. Plaintiff complied with the Order, and on November 9, 2010, submitted an affidavit and other documentation of an April 2010 trip to Atlantic City.
III. Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Title III of the ADA proscribes discrimination against individuals with disabilities in places of public accommodation. See 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers . . . that are structural in nature, in existing facilities . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA provides a private right of action for injunctive relief to "any person who is being subject to discrimination on the basis of disability." 42 U.S.C. § 12188(a)(1). Under Title III of the ADA, aside from attorney's fees, the right of action for injunctive relief is the only remedy available for a plaintiff. Id.; D.B. v. Bloom, 896 F. Supp. 166, 172 (D.N.J. 1995) (noting that the court may award reasonable attorney's fees and costs pursuant to 42 U.S.C. § 12188(a)(1)).
A. Plaintiff's May 2010 Affidavit Filed With His Cross-Motion For Summary Judgment
Defendants contend Plaintiff's May 2010 affidavit, filed as an exhibit to his Cross-Motion for Summary Judgment, contradicts his prior disposition testimony, and, thereby, is a sham affidavit created solely to defeat summary judgment.*fn2 In order to facilitate our determination of whether Plaintiff's May 2010 affidavit is a sham, on October 22, 2010, the Court ordered Plaintiff to submit a second affidavit supplementing the averments of his May 2010 affidavit. Plaintiff complied and submitted an affidavit detailing an April 2010 trip to the Showboat.
The Federal Rules of Civil Procedure are silent on how a court should treat, for purposes of summary judgment, a party's affidavit that is contrary to his deposition testimony. Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 251 (3d Cir. 2007). To address and remedy this issue, courts developed the "sham affidavit" doctrine.*fn3 This doctrine "refers to the trial courts 'practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony.'"
Baer v. Chase, 392 F.3d 609, 624 (3d Cir. 2004) (quoting Shelcusky v. Garjulio, 797 A.2d 138, 144 (2002)); see In re CitX Corp., Inc., 448 F.3d 672, 679 (3d Cir. 2006) (opining that a sham "affidavit comes in later to explain away or patch up an earlier deposition in an attempt to create a genuine issue of material fact"). The doctrine arises out of a court's recognition that depositions are more reliable than affidavits, largely because depositions are solely a party's testimony while affidavits are the products of counsel and drafted almost exclusively for a specific purpose. Jiminez, 503 F.3d at 253-54.
The sham affidavit doctrine prevents the creation of a material issue of fact for the purpose of defeating summary judgment. Baer, 392 F.3d at 624; Martin v. Merrell Dow Pharm., Inc., 851 F.2d 703, 705 (3d Cir.1988); see Jiminez, 503 F.3d at 253 ("A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment"). A genuine issue of material fact cannot be raised by a sham affidavit because "it is merely a variance from earlier deposition testimony" and a reasonable jury would never "rely on it to find for the non-movant." Id. (noting the Supreme Court recognizes a court's power to grant summary judgment when the court concludes that the only issue of material fact arises because of a sham affidavit). Consequently, a trial court can enter summary judgment and disregard an affidavit offered solely for the purposes of defeating summary judgment when no reasonable jury would "accord that affidavit evidentiary weight." Id.; see Barnes v. Office Depot, Inc., No. 08-1703, 2009 WL 4133563, * 13 (D.N.J. Nov. 24, 2009) ("Disregarding sham affidavits serves the important purpose of preventing the serious impairment of the objectives of summary judgment") (internal quotations removed); see also Jiminez, 503 F.3d at 253 ("[T]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff") (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252 (1986)).
A mere discrepancy between deposition testimony and a subsequent contradictory affidavit does not require the court to immediately disregard the affidavit. Baer, 392 F.3d at 624-25. Before a court may deem a contrary affidavit a sham, it shall apply a "flexible approach." Jiminez, 503 F.3d at 254. This two-part inquiry focuses on whether an affiant can prove the bonafides of his affidavit through either 1) independent evidence on the record*fn4 or 2) a satisfactory explanation for the discrepancy between the prior deposition testimony and the affidavit.*fn5 Id.; David's Bridal, Inc. v. The House of Brides, Inc., No. 06-5660, 2010 WL 715437, * 5 (D.N.J. Feb. 23, 2010) (citing Jiminez, 503 F.3d at 254). An affiant's failure to either explain contradictory statements or offer independent bolstering evidence indicates the affidavit is a sham, thus removing that impediment to the court's entry of summary judgment. Jiminez, 503 F.3d at 254; O'Bryant v. City of Reading, 197 Fed.Appx. 134, 138 (3d Cir. 2006).
An inherent requirement of a sham affidavit is that the affiant's statement must contradict deposition testimony. Statements in an affidavit that "merely . . . conflicts to some degree with an earlier deposition" cannot be disregarded as shams. Baer, 392 F.3d at 625 (internal quotation and citations removed); see Kennett-Murray Corp. v. Bone, 622 f.2d 887, 894-95 (5th Cir. 1980) (noting the affidavit was not a sham because it was not at odds nor did it conflict with the defendant's general theory discussed in the deposition); see also Ramirez v. United Parcel Serv., No. 06-1042, 2009 WL 2883582, * 4 (D.N.J. September 3, 2009) ("[s]light variations in the timing and substance [may be significant to determine whether the statute of limitations bars relief]. . . but the variations are not as meaningful for determining whether the deposition testimony and the affidavit are consistent"). Similarly, an affidavit is not a sham if the affiant did not have all available information at the time of the deposition, or the subsequent affidavit clarifies or further elaborates upon ambiguous testimony. Barnes, 2009 WL 4133563 at * 13; See Maietta v. United Parcel Serv., Inc., 749 F. Supp. 1344, 1359 -1360 (D.N.J. 1990); see also Connolly v. Mitsui O.S.K. Lines (Am.) Inc., No. 04-5127, 2010 WL 715775, * 2 (D.N.J. March 1, 2010) (finding the "sham affidavit" doctrine inapplicable when the plaintiff testified she could not remember when her schedule changed, but knew it was contemporaneous to a statement that occurred in either 2001, 2002 or 2003, and in an affidavit Plaintiff later averred her schedule change occurred in 2003). Courts do not declare these affidavits shams because they do not flatly contradict deposition testimony and, therefore, a reasonable jury may find the affidavit credible and conclude that any discrepancy is inadvertent. Ragan v. Fuentes, No. 05-2825, 2007 WL 2892948, * 11 (D.N.J. September 28, 2007) (citing In re CitX Corp., Inc., 448 F.3d at 679-680 (opining that cross-examination during a deposition is a better method to discover flaws in a bogus affidavit)); Ramirez, 2009 WL 2883582 at * 4.
During his deposition, Plaintiff stated he "definitely intend[ed]" to return to the Showboat, but, at the time did not have any "definite date" planned for his return. (Exhibit E, Doc. 53-8 at 173). In response to defense counsel's follow-up question on whether Plaintiff has any particular plans "right now", Plaintiff responds "[t]oday would have been nice." (Id. at 173-74). In his May 2010 affidavit filed approximately six and one-half months later, Plaintiff emphasized he returned to "the Showboat in March 2010 and plan[s] to return again in August, 2010." (Exhibit A, Doc. 53-2). Plaintiff also stated that "[g]oing forward, I intend to travel to Atlantic City during the spring and summer and visit the Showboat on each occasion." (Id.) Plaintiff also emphasized that in addition to his "intent to return to the Showboat as a guest and a patron . . . [he] intend[s] to return as an ADA tester to determine whether the barriers to access have been fixed." (Id.) Plaintiff, however, did not submit any independent collaborating evidence of these visits. Defendants contend Plaintiff's May 2010 affidavit was generated to create a genuine issue of material law and preclude the entry of summary judgment on behalf of Defendants.
The lack of independent evidence collaborating Plaintiff's return to the Showboat and the question of whether Plaintiff's May 2010 affidavit is a sham prompted the Court to order Plaintiff to submit a supplemental affidavit detailing all post deposition visits to the Showboat. Plaintiff submitted this affidavit in November 2010. In this affidavit, Plaintiff corrected averments made in his May 2010 affidavit regarding a recent return visit to the Showboat. In the November 2010 affidavit, Plaintiff indicated that when he made the May 2010 averments he "mistakenly believed" he "visited the Showboat in March 2010. However after checking [his] records, [he] in fact visited the Showboat in April, not March, of 2010." (Doc. 61-1). In addition to this correction, Plaintiff detailed his April 2010 return visit to the Showboat.*fn6 During the visit Plaintiff averred that he ate at the Canal Street Bread and Sandwich Co.*fn7 and gambled for approximately three hours, losing $250.00.*fn8
Plaintiff also reiterated his intent to return to Atlantic City in the spring and summer of 2011.
To determine whether a deposition and affidavit are contradictory, the Court should not isolate any particular statements. See Ragan, 2007 WL 2892948 at * 10 (focusing on the entirety of the relevant deposition testimony to conclude the affidavit did not flatly contradict earlier deposition testimony). Rather, we must examine the statements regarding Plaintiff's intended return to Atlantic City in their totality. After an examination of these statements, the Court cannot conclude as a matter of law that the May 2010 affidavit flatly contradicts earlier deposition testimony. Defendants erroneously view Plaintiff's statements in isolation. They conclude the statements are contradictory because Plaintiff stated in his deposition that he did not have any future plans to return to Atlantic City and then in his May 2010 affidavit described future plans. This view, however, entirely ignores Plaintiff's deposition testimony expressing his intent to return to Atlantic City. When viewed in its totality, Plaintiff's deposition testimony indicates that Plaintiff had at the time an intention to return to Atlantic City, but had not yet made any specific plans to return. Furthermore, defense counsel only asked Plaintiff whether he had any plans "right now." This question, however, does not foreclose the possibility that Plaintiff would develop future plans another day. See Fisher v. Ciba Specialty Chemicals Corp., No. 03-0566, 2007 WL 2995525 * 4 (S.D. Ala. Oct. 11, 2007) ("A necessary prerequisite to the sham affidavit rule is that the party seeking to invoke it must have asked the necessary follow-up questions to eradicate any 'wiggle room' in the deposition answers given"). Consequently, the May 2010 affidavit merely supplements Plaintiff's prior deposition testimony regarding when and how often he intends to return to Atlantic City and the Showboat. In his deposition, Plaintiff expressed a desire to return to Atlantic City in the future, but did not have any specific plans. Plaintiff's May 2010 affidavit clarifies and elaborates upon his future intentions and indicates when he will return to Atlantic City. See Solomon v. Waffle House, Inc., 365 F. Supp.2d 1312, 1319-20 (N.D. Ga. 2004) (holding that plaintiff's deposition testimony that he had no plans to return to defendant's restaurant was not contradictory of his affidavit that stated he would return to defendant's restaurant when it took measures to prevent discriminatory practices). The bonafides of Plaintiff's May ...