United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on a motion for summary
judgment filed by Defendant 206 Courthouse Lane LLC aka and
dba 206 Courthouse LLC ("Defendant" or "206
Courthouse LLC"). (ECF No. 88). In this action,
Plaintiff Joan Marasek ("Plaintiff) alleges that
Defendant, a privately-owned company that owns and leases
property to the County of Ocean, failed to provide parking
for disabled persons as required under The American with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. §
12101, et seq. Defendant has moved for summary
judgement arguing, inter alia, that it was not
required under the ADA to provide Plaintiff with a parking
spot because one would not have been available to her if she
were not disabled.
twice failed to appear at oral argument, or otherwise
properly oppose Defendant's motion for summary judgment,
due to her spouse's illness. At the second scheduled oral
argument, defense counsel argued that since no opposition was
submitted, this action should be dismissed for, inter
alia, Plaintiff's failure to prosecute. For the
reasons stated herein, this action is dismissed pursuant to
the substantive merits of Defendant's summary judgment
motion, as well as for Plaintiff's failure to prosecute.
contends that she is an individual with a disability who was
deprived of parking at a courthouse facility housing the
County of Ocean. (Defendant's Undisputed Statement of
Facts ¶ 1). Defendant is the owner of the property where
the courthouse operates, which it leases to the County of
Ocean. (Id. ¶¶ 5, 6). According to the
State of New Jersey's Division of Revenue and Enterprise
Services' database, Defendant is a private New Jersey
limited liability corporation incorporated on September 12,
2000 in Seaside Park, New Jersey.
agreement between Defendant and the County of Ocean dated
December 1, 2015 (the "Lease") governs the terms of
the County of Ocean's tenancy of the property.
(See Brief in Support of Defendant's Motion for
Summary Judgment ("Moving Br."), Ex. B, Dkt. No.
88-1). Article VI of the Lease, titled "PARKING
SPACES." states: "Landlord [Defendant] secured
three (3) parking spaces for the Premises. Tenant agrees to
rent three (3) parking spaces at an additional $150.00 per
space per month." (Id. at 4) (hereinafter
referred to as "Parking Spaces").
Parking Spaces are reserved for a judge and two
administrative employees. (Moving Br. at 6 of 8; Response to
Plaintiff's Demand for Production of Documents on Behalf
of Defendant 20 Court House LLC, Ex. C).
did not own the parking lot in which the Parking Spaces were
located. (Moving Br. at 6 of 8). The lot has a private owner
that is not a party to this action. (Id.).
did not provide the County of Ocean any parking areas aside
from the Parking Spaces. (Id.). There is, however,
public parking 150 feet from the courthouse which includes
spaces accessible to Plaintiff. (See Defendant's
Undisputed Statement of Facts ¶ 9).
discovery, on August 15, 2019, Defendant moved for summary
judgment. (ECF No. 88). The Court scheduled oral argument on
the motion for October 17, 2019 via teleconference. On the
same day, however, Plaintiff advised the Court that she was
unable to participate but expressed a desire to oppose
Defendant's motion, even though she failed to submit any
opposition. Accordingly, the Court adjourned the hearing to
December 16, 2019 and provided Plaintiff with an opportunity
to file an opposition brief by November 8, 2019. (ECF No.
95). Plaintiff never filed a response. Rather, on December
13, 2019, or one business day before the hearing's new
date, the Court received a facsimile correspondence from
Plaintiff advising that she will not be appearing and
indicating that she did not (but still wished to) file an
opposition. (See ECF No. 98). In that
correspondence, Plaintiff also requested that the Court stay
or hold the matter in abeyance for at least four months or
more, or until at least April 16, 2020, or later.
(Id.) The Court denies both requests.
Summary Judgment Dismissal is Warranted
Court finds that Defendant is entitled to summary judgment
dismissal of all claims. Summary judgment is appropriate
under Fed.R.Civ.P. 56(c) when the moving party demonstrates
that there is no genuine issue of material fact and the
evidence establishes the moving party's entitlement to
judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute
is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive
law, it would affect the outcome of the suit. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 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 non-moving 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).
the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to
a material fact exists. Jersey Cent. Power & Light
Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d Cir. 1985).
The party opposing the motion for summary judgment cannot
rest on mere allegations and instead must present actual
evidence that creates a genuine issue as to a material fact
for trial. Anderson, 477 U.S. at 248; Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125,
1130-31 (3d Cir. 1995). "[Unsupported allegations ...
and pleadings are insufficient to repel summary
judgment." Schoch v. First Fidelity Bancorp.,
912 F.2d 654, 657 (3d Cir. 1990).
only disputes over facts that might affect the outcome of the
lawsuit under governing law will preclude the entry of
summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, "after drawing all inferences in favor
of [the non-moving party], and making all credibility
determinations in his favor . . . that no reasonable jury
could find for him, summary judgment is appropriate."
Alevras v. Tacopina, 226 Fed.Appx. 222, 227 (3d Cir.
pro se pleadings are "liberally construed"
and "held to less stringent standards than formal
pleadings drafted by lawyers," Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks
and citation omitted), "a pro se plaintiff is
not exempt from his burden of providing some affirmative
evidence, i.e. not just mere allegations, to
establish a prima facie case, and to show that there
is a genuine dispute for trial." Niblack v.
Murray, No. CV126910MASTJB, 2016 WL 4086775, at *2
(D.N.J. July 29, 2016) (citing Barnett v. N.J. Transit
Corp., 573 Fed.Appx. 239, 243 (3d Cir. 2014)). Further,
"[e]ven though a court will often be more lenient with
pro se litigants, such litigants 'cannot be
excused from compliance with the plain text of the federal
rules and court orders.'" Gilligan v. Cape May
Cty. Corr., No. CIV 05-1177 RMB, 2006 WL 3454864, at *2
(D.N.J. Nov. 28, 2006) (citation omitted).
Title II of the ADA
brings several claims purportedly arising under Title II of
the ADA. (See Memorandum and Order at 5, Dkt. No. 84
(finding that counts two, three, eight, nine, ten, and eleven
arise under Title II). "To successfully state a claim
under Title II of the ADA, a person 'must demonstrate:
(1) [she] is a qualified individual; (2) with a disability;
(3) [who] was excluded from participation in or denied the
benefits of the services, programs, or activities of a
public entity, or was subjected to discrimination by
any such entity; (4) by reason of his disability.'"
Haberle v. Troxell, 885 F.3d 170, 178 (3d Cir. 2018)
(emphasis supplied) (citation omitted). Title II does not
govern the conduct of private entities. See Graham v.
Rawley, No. CIV.A. 14-6743, 2015 WL 3660770, at *4
(D.N.J. June 11, 2015) (citation omitted). "A
'public entity' is defined, in relevant part, as
'any department, agency, special purpose district, or
other instrumentality of a State or States or local
government.'" Bowers v. Nat'l Collegiate
Athletic Ass'n, 9 F.Supp.2d 460, 474 (D.N.J. 1998)
(quoting 42 U.S.C. § 12131). A '"private
entity' is defined to capture everything which is not a
'public entity.'" Id.
there is no genuine dispute as to whether Defendant is a
private entity. (See Amended Compl. ¶ 7
("[206 Courthouse LLC] is a privately owned
Limited Liability Company ('LLC') that owns and
leases this Courthouse to the Defendant County of
Ocean") (emphasis supplied)). The parties agree that 206
Courthouse LLC is a privately-owned company that owned and
leased the County of Ocean the property in which the subject
courthouse facility operated. (Id.; see also Moving
Br. (ECF No. 88)). Thus, since Title II does not govern the
conduct of private entities, Defendant is entitled to summary
judgement dismissal of Plaintiff s claims two, three, eight,
nine, ten, and eleven, all arising under Title II.