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Louisiana Counseling and Family Services v. Mt. Fuji Japanese Restaurant

July 27, 2011

LOUISIANA COUNSELING AND FAMILY SERVICES INC., ET AL., PLAINTIFFS,
v.
MT. FUJI JAPANESE RESTAURANT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Joseph H. Rodriguez

NOT FOR PUBLICATION

OPINION

RODRIGUEZ, J.

These matters come before the Court on three motions. Plaintiffs move for default judgment pursuant to Fed. R. Civ. P. 55(b) as to Defendant Mt. Fuji Japanese Restaurant [Dkt. Entry No. 69] and Defendant Maggio's Pizza and Pasta [Dkt. Entry No.

70]. Plaintiffs also move for summary judgment pursuant to Fed. R. Civ. P. 56 as to Defendant Hello Gorgeous Salon [Dkt. Entry No. 71]. The Court has considered the written submissions of the parties without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons set forth below, Plaintiffs's motions will be denied without prejudice.

I. Background

A. The Complaint

The present action was instituted on December 15, 2008 by Louisiana Counseling and Family Services, Inc. ("LCFS"), LCFS Access to All ("Access to All"), and Jeannette Brown for alleged violations of the Americans With Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA") and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1, et seq. ("NJLAD") at multiple places of public accomodation located in the Plaza at 1450 Clements Bridge Road, Deptford, NJ. [Dkt. Entry No. 1]. Named in the Complaint are Defendants Mt. Fuji Japanese Restaurant ("Mt. Fuji"), Maggio's Pizza and Pasta ("Maggio's"), and Hello Gorgeous Salon ("Hello Gorgeous").*fn1 Access to All is an advocacy group affiliated with the nonprofit organization LCFS, "which advocates on the part of the disabled to access buildings and prevent employment discrimination." (Compl., ¶ 4.) Jeannette Brown is a disabled individual and a member of Access to All who resides at 4 Pine Terrace, West Berlin, NJ. (Id.) According to the Complaint:

Our Plaintiff, JEANETTE BROWN, represents all of our many board members of ACCESS TO ALL, an advocacy group of disabled people and we select the more mobile disabled person to verify the ADA violations.

Our purpose was not to stress, by going to court, our more seriously disabled men and women who are also represented in this ADA lawsuit as members of ACCESS TO ALL. We therefore, after receiving an ADA complaint, send a member of our ACCESS TO ALL advocacy group, who is more mobile to verify the ADA violation. (Id. at ¶ 7.) Seemingly, Brown was sent to verify the complaints of a patron to these properties who is not identified or named as a plaintiff in the Complaint. Plaintiffs allege that:

JEANETTE BROWN has visited the property, as well as have other board members, which forms the basis of this lawsuit. Furthermore, he [sic] plans to return to the property, as well as other board members, to available [sic] himself/herself [sic] of the goods and the services offered to the public at the property and also to assure himself/herself [sic] that this property was in compliance with the ADA. (Id. at ¶ 9.) The Complaint does not allege that Brown verified or encountered any barriers personally; rather the Complaint merely alleges that Brown visited the three properties. Also, the Complaint does not state when Brown visited the properties, to what extent she availed herself or attempted to avail herself of the goods and services offered, any connection to the properties other than checking for ADA compliance, or any specific plans to return.

According to the Complaint, the following violations were identified at the Mt. Fuji property by an unspecified person, on an unspecified date:

(a) The sink pipes are not covered. Exposed pipes must be covered to protect against contact. Exposed pipes are a violation of 28 CFR Part 36-36.304 and Section 4.19.4 of the ADAAG.

(b) Toilet stall door lock is broken and sliding bolt lock on top of broken lock is too difficult to maneuver. This is a violation for your customers and current and future employees, of ...


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