Molski v. M.J. Cable, Inc. , 481 F.3d 724 ( 2007 )


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  •                      FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JAREK MOLSKI; DISABILITY RIGHTS             
    ENFORCEMENT, EDUCATION SERVICES:
    HELPING YOU HELP OTHERS
    (“DREES”),                                         No. 05-55347
    Plaintiffs-Appellants,
    v.                                 D.C. No.
    CV-03-04809-DT
    M.J. CABLE, INC., a California                       OPINION
    corporation, d/b/a CABLE’S
    RESTAURANT,
    Defendant-Appellee.
    
    Appeal from the United States District Court
    for the Central District of California
    Dickran M. Tevrizian, District Judge, Presiding
    Argued and Submitted
    February 5, 2007—Pasadena, California
    Filed March 23, 2007
    Before: Warren J. Ferguson, Eugene E. Siler, Jr.,* and
    Michael Daly Hawkins, Circuit Judges.
    Opinion by Judge Ferguson
    *The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
    for the Sixth Circuit, sitting by designation.
    3413
    MOLSKI v. M.J. CABLE, INC.               3417
    COUNSEL
    Thomas E. Frankovich and Jessica A. Dayton, Thomas E.
    Frankovich, A Professional Law Corporation, San Francisco,
    California, for the plaintiffs-appellants.
    Craig N. Beardsley, Jones & Beardsley, Bakersfield, Califor-
    nia, for the defendant-appellee.
    OPINION
    FERGUSON, Circuit Judge:
    Jarek Molski (“Molski”) appeals the District Court’s denial
    of his motion for a new trial following a jury verdict in favor
    of M.J. Cable Inc., owner of Cable’s Restaurant (“Cable’s”).
    Molski, who is paraplegic, sued Cable’s for violations of the
    Americans with Disabilities Act (“ADA”) and California’s
    Unruh Civil Rights Act (“Unruh Act”), alleging that Cable’s
    failed to accommodate the disabled. Although Molski pro-
    vided uncontradicted evidence that Cable’s did not identify
    and remove architectural barriers, the jury returned a verdict
    for the restaurant. The District Court denied Molski’s motion
    for a new trial, speculating that the jury could have reasonably
    concluded that because of Molski’s record of litigiousness, he
    was a “business” and not an “individual” entitled to the
    ADA’s protections. We reverse.
    FACTUAL AND PROCEDURAL BACKGROUND
    Molski is a paraplegic who has been confined to a wheel-
    chair since a motorcycle accident paralyzed him at the age of
    18. Considered by some to be a controversial figure, Molski
    has brought hundreds of lawsuits against inaccessible public
    accommodations throughout California. Molski considers
    himself a civil rights activist who uses litigation to force com-
    3418                  MOLSKI v. M.J. CABLE, INC.
    pliance with the ADA; California businesses and a federal
    district court consider him a vexatious litigant who exploits
    the ADA and its state law counterpart for pecuniary gain.1
    On January 26, 2003, Molski took his grandmother to
    church, then to lunch at Cable’s Restaurant in Woodland
    Hills, California, where he spent thirty-five dollars on their
    meal. After eating lunch, Molski excused himself to use the
    restaurant’s public restroom.
    Upon entering the restroom, Molski noticed numerous
    architectural barriers to his accessing the facilities. The door
    pressure on the bathroom door was too heavy, and the door
    lacked a handicap accessible sign. Inside, the stall doors could
    not close with Molski’s wheelchair in the stall. The stall
    lacked grab bars on both the rear wall and side wall, which
    prevented Molski from maneuvering from his wheelchair to
    the toilet. The toilet seat cover dispenser was unreachable.
    The pipes underneath the sink were not insulated, and there-
    fore, according to Molski, posed a special risk to those with-
    out feeling in their legs, as hot pipes could burn them without
    their realization. The sink also lacked levered hardware, a
    type of fixture that is easily moveable without strong grip
    strength. Molski was unable to reach at least one of the paper
    towel dispensers. Molski testified that the hygienic violations
    were especially important in his case because, due to his
    chest-down paralysis, he uses a catheter and a urine bag that
    must be emptied frequently. He explained that failure to
    1
    Molski v. Mandarin Touch Restaurant, 
    347 F. Supp. 2d 860
    (C.D. Cal.
    2004) (declaring Molski a vexatious litigant and requiring court approval
    prior to his filing future lawsuits); see also Samuel R. Bagenstos, The Per-
    versity of Limited Civil Rights Remedies: The Case of “Abusive” ADA Lit-
    igation, 54 UCLA L. Rev. 1, 7, 34 (2006) (defending serial ADA litigation
    as “essential” but identifying prior allegations of ethical violations by
    Molski’s attorney); Carri Becker, Private Enforcement of the Americans
    with Disabilities Act via Serial Litigation: Abusive or Commendable?, 17
    Hastings Women’s L.J. 93 (2006) (using Molski as case study of serial lit-
    igation under Title III of the ADA).
    MOLSKI v. M.J. CABLE, INC.               3419
    empty the urine bag can cause autonomic dysreflexia, a condi-
    tion that can result in whole body spasms and even cardiac
    arrest. Handling the bag with unwashed hands can also lead
    to bladder infections.
    On March 7, 2003, Rick Sarantschin (“Sarantschin”), the
    principal of Access Investigation Monitoring, conducted an
    inspection of Cable’s and confirmed Molski’s observations
    using the ADA Accessibility Guidelines for Buildings and
    Facilities (“ADAAG”). See 28 C.F.R. § 36 App. A. Four
    months later, Molski brought a lawsuit against Cable’s in the
    Central District of California, alleging violations of the ADA
    and state laws. The District Court held a three-day trial.
    At trial, Molski, Sarantschin, and construction expert
    Michael Beall (“Beall”) testified on behalf of Molski, and
    Cable’s vice president Anthony Dalkas (“Dalkas”) testified as
    an adverse witness. Molski testified primarily about his expe-
    rience at Cable’s, his prior lawsuits, and his views on disabil-
    ity access discrimination. Sarantschin testified about his
    investigation of Cable’s and the ADA violations he observed.
    Beall testified about the construction costs of making
    Cable’s compliant with the ADA. He estimated that the
    approximate total cost to remodel both the men’s and
    women’s bathrooms would be $8,600, or $6,000 for just the
    men’s bathroom. Beall noted that incremental steps were even
    cheaper: lowering the toilet seat cover dispenser would cost
    $20 and take about 15 minutes; insulating the pipes would
    cost under $20 and take “about a minute and a half to do.”
    Other repairs were as inexpensive as $30.
    In his testimony, Dalkas acknowledged that the company
    had not attempted to identify barriers to the disabled. He
    admitted that Cable’s had not made the renovations because
    “[w]e weren’t compelled to do it.” Dalkas testified that
    Cable’s could afford each of the repairs but stated, “once you
    start down that path[,] you’re opening a can of worms that
    3420                 MOLSKI v. M.J. CABLE, INC.
    will cost a lot of money.” Dalkas described issues with
    Cable’s landlord, as well as the economic costs of remodel-
    ing, such as the need to close the restaurant during renova-
    tions. Dalkas said he had received estimates of $40,000 to
    “bring the two bathrooms up to the current [c]ode,” although
    Cable’s had not disclosed any such remodeling bids during
    discovery.
    The defendant did not call any witnesses, but relied primar-
    ily on its cross-examination of Molski and Dalkas. In essence,
    the defendant’s strategy was to discredit Molski by exposing
    an ulterior motive for bringing suit: Molski and his lawyer
    Thomas Frankovich (“Frankovich”) were purportedly in the
    business of tracking down public accommodations with ADA
    violations and extorting settlements out of them. On cross
    examination, Molski acknowledged that: he did not complain
    to any of Cable’s employees about his access problems; he
    had filed 374 similar ADA lawsuits as of October 8, 2004;
    Frankovich had filed 232 of the 374 lawsuits; even more law-
    suits had been filed since that date; Molski and Frankovich
    averaged $4,000 for each case that settled; Molski did not pay
    any fees to Frankovich; Molski maintained no employment
    besides prosecuting ADA cases, despite his possession of a
    law degree; Molski’s projected annual income from settle-
    ments was $800,000;2 Molski executed blank verification
    forms for Frankovich to submit with responses to interrogato-
    ries; they had also filed lawsuits against two other restaurants
    owned by Cable’s; they had filed a lawsuit against a nearby
    restaurant; and Sarantschin obtained up to 95% of his income
    from Frankovich’s firm for performing investigations for
    ADA lawsuits.3
    2
    The method used to calculate this number was questionable. It assumed
    that Molski had no litigation expenses, that he obtained a $4,000 settle-
    ment from each case filed (rather than each case settled), that Molski
    would settle two hundred cases every year, and that all proceeds went to
    Molski.
    3
    It is unclear why this evidence was admitted by the trial court under
    Fed. R. Evid. 401. The narrow issue in the case was whether Cable’s
    MOLSKI v. M.J. CABLE, INC.                      3421
    During closing arguments, Molski focused primarily on the
    ADA violations, and Cable’s focused primarily on Molski.
    The Court instructed the jury on, inter alia, the elements of
    an ADA claim, and gave it a Special Verdict Form. The jury
    returned a verdict for Cable’s, responding “No” to the thresh-
    old question: “Do you find that the defendant failed to iden-
    tify and remove architectural barriers at Cable’s restaurant?”
    Pursuant to Rule 59(a) of the Federal Rules of Civil Proce-
    dure, Molski moved for a new trial on the grounds that the
    verdict was against the weight of the evidence. The District
    Court denied the motion. Molski timely appealed.
    DISCUSSION
    A.   Standard of Review
    We review a district court’s denial of a motion for a new
    trial under Federal Rule of Civil Procedure 59(a) for an abuse
    of discretion. Dorn v. Burlington N. Santa Fe R.R. Co., 
    397 F.3d 1183
    , 1189 (9th Cir. 2005); see also Gilbrook v. City of
    Westminster, 
    177 F.3d 839
    , 856 (9th Cir. 1999) (applying
    abuse of discretion standard where the motion for a new trial
    was “grounded on the assertion that the jury’s verdict was
    against the clear weight of evidence”).
    “The district court’s denial of the motion for a new trial is
    reversible only if the record contains no evidence in support
    of the verdict.” Farley Transp. Co. v. Santa Fe Trail Transp.
    Co., 
    786 F.2d 1342
    , 1347 (9th Cir. 1985). We may reverse the
    denial of the motion where the District Court has “made a
    mistake of law.” 12 James Wm. Moore et al., Moore’s Fed-
    eral Practice § 59.54 (3d ed. 2006).
    failed to identify and remove architectural barriers. Although some of the
    above facts may be admissible witness impeachment evidence, most
    appear to be irrelevant or at least far more prejudicial than probative. See
    Fed. R. Evid. 403. However, because these evidentiary questions are not
    before us on appeal, we do not address them here.
    3422                  MOLSKI v. M.J. CABLE, INC.
    B.     Rule 59(a)
    [1] Rule 59(a) states, “A new trial may be granted . . . in
    an action in which there has been a trial by jury, for any of
    the reasons for which new trials have heretofore been granted
    in actions at law in the courts of the United States.” Fed. R.
    Civ. P. 59(a)(1).4 As this circuit has noted, “Rule 59 does not
    specify the grounds on which a motion for a new trial may be
    granted.” Zhang v. Am. Gem Seafoods, Inc., 
    339 F.3d 1020
    ,
    1035 (9th Cir. 2003). Rather, the court is “bound by those
    grounds that have been historically recognized.” 
    Id. Histori- cally
    recognized grounds include, but are not limited to,
    claims “that the verdict is against the weight of the evidence,
    that the damages are excessive, or that, for other reasons, the
    trial was not fair to the party moving.” Montgomery Ward &
    Co. v. Duncan, 
    311 U.S. 243
    , 251 (1940). We have held that
    “[t]he trial court may grant a new trial only if the verdict is
    contrary to the clear weight of the evidence, is based upon
    false or perjurious evidence, or to prevent a miscarriage of
    justice.” Passantino v. Johnson & Johnson Consumer Prods.,
    
    212 F.3d 493
    , 510 n.15 (9th Cir. 2000).
    Upon the Rule 59 motion of the party against whom a ver-
    dict has been returned, the district court has “the duty . . . to
    weigh the evidence as [the court] saw it, and to set aside the
    verdict of the jury, even though supported by substantial evi-
    dence, where, in [the court’s] conscientious opinion, the ver-
    dict is contrary to the clear weight of the evidence.” Murphy
    v. City of Long Beach, 
    914 F.2d 183
    , 187 (9th Cir. 1990)
    4
    Rule 59(a) establishes a different standard for bench trials than for jury
    trials. “[I]n an action tried without a jury, [a new trial may be granted] for
    any of the reasons for which rehearings have heretofore been granted in
    suits in equity in the courts of the United States.” Fed. R. Civ. P. 59(a)(2).
    The District Court applied the standard from Brown v. Wright, 
    588 F.2d 708
    , 710 (9th Cir. 1978), a bench trial case establishing the standard under
    Fed. R. Civ. P. 59(a)(2), despite the fact that Molski’s case was tried to
    a jury. This error does not affect our analysis.
    MOLSKI v. M.J. CABLE, INC.               3423
    (quoting Moist Cold Refrigerator Co. v. Lou Johnson Co.,
    
    249 F.2d 246
    , 256 (9th Cir. 1957)).
    [2] Because determining “the clear weight of the evidence”
    is a fact-specific endeavor, appeals courts are reluctant to
    second-guess district courts’ conclusions. An appellate court
    generally will not reverse the denial of a new trial motion if
    there was some “reasonable basis” for the jury’s verdict.
    Mitchell v. Boelcke, 
    440 F.3d 300
    , 305 (6th Cir. 2006); Col-
    lado v. UPS, 
    419 F.3d 1143
    , 1155 (11th Cir. 2005); Kapelan-
    ski v. Johnson, 
    390 F.3d 525
    , 530 (7th Cir. 2004); Bryant v.
    Aiken Reg’l Med. Ctrs., Inc., 
    333 F.3d 536
    , 545 (4th Cir.
    2003); Colasanto v. Life Ins. Co. of N. Am., 
    100 F.3d 203
    , 212
    (1st Cir. 1996); Nissim v. McNeil Consumer Prods. Co., 
    957 F. Supp. 600
    , 602-04 (E.D. Pa. 1997), aff’d without opinion,
    
    135 F.3d 765
    (3d Cir. 1997). If there is no reasonable basis,
    however, “the absolute absence of evidence to support the
    jury’s verdict makes [refusal to grant a new trial] an error in
    law.” Urti v. Transp. Commercial Corp., 
    479 F.2d 766
    , 769
    (5th Cir. 1973) (quoting Indamer Corp. v. Crandon, 
    217 F.2d 391
    , 393 (5th Cir. 1954)); see also Hiltgen v. Sumrall, 
    47 F.3d 695
    , 703 (5th Cir. 1995) (applying “absolute absence of evi-
    dence” standard); Jones v. City of St. Clair, 
    804 F.2d 478
    , 480
    (8th Cir. 1986) (same); Grandison v. Smith, 
    779 F.2d 637
    ,
    640 (11th Cir. 1986) (same).
    C.   Americans with Disabilities Act
    [3] Congress passed the ADA, 42 U.S.C. § 12101 et seq.,
    in 1990 “to provide clear, strong, consistent, enforceable stan-
    dards addressing discrimination against individuals with dis-
    abilities.” § 12101(b)(2). Title III of the ADA prohibits
    discrimination by public accommodations. § 12181 et seq.
    Title III provides, “No individual shall be discriminated
    against on the basis of disability in the full and equal enjoy-
    ment 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
    3424               MOLSKI v. M.J. CABLE, INC.
    of public accommodation.” § 12182(a). Discrimination
    includes “a failure to remove architectural barriers . . . in
    existing facilities . . . where such removal is readily achiev-
    able.” § 12182(b)(2)(A)(iv). Readily achievable means “easily
    accomplishable and able to be carried out without much diffi-
    culty or expense.” § 12181(9).
    Federal regulations clarify which barrier removals are
    likely to be readily achievable and provide examples in 28
    C.F.R. § 36.304. They include installing grab bars in toilet
    stalls, rearranging toilet partitions to increase maneuvering
    space, insulating lavatory pipes under sinks to prevent burns,
    installing raised toilet seats, installing full-length bathroom
    mirrors, and repositioning paper towel dispensers. 28 C.F.R.
    § 36.304(b)(12)-(17). The Department of Justice has referred
    to these examples as “the types of modest measures that may
    be taken to remove barriers and that are likely to be readily
    achievable.” Appendix B to Part 36 — Preamble to Regula-
    tion on Nondiscrimination on the Basis of Disability by Pub-
    lic Accommodations and in Commercial Facilities, 56 Fed.
    Reg. 35,546 (July 26, 1991); see also 28 C.F.R. § 36 App. A.
    [4] To prevail on a Title III discrimination claim, the plain-
    tiff must show that (1) she is disabled within the meaning of
    the ADA; (2) the defendant is a private entity that owns,
    leases, or operates a place of public accommodation; and (3)
    the plaintiff was denied public accommodations by the defen-
    dant because of her disability. 42 U.S.C. §§ 12182(a)-(b); see
    Parr v. L & L Drive-Inn Restaurant, 
    96 F. Supp. 2d 1065
    ,
    1085 (D. Haw. 2000); Dunlap v. Ass’n of Bay Area Gov’ts,
    
    996 F. Supp. 962
    , 965 (N.D. Cal. 1998); see also Mershon v.
    St. Louis Univ., 
    442 F.3d 1069
    , 1077 (8th Cir. 2006) (apply-
    ing similar test in higher education context).
    Aggrieved individuals or the Attorney General may enforce
    the ADA. 42 U.S.C. § 12188. Private parties may utilize the
    remedies and procedures made available by the Civil Rights
    Act of 1964. § 12188(a)(1) (citing § 2000a-3(a)). In particu-
    MOLSKI v. M.J. CABLE, INC.                    3425
    lar, they may obtain injunctive relief against public accommo-
    dations with architectural barriers, including “an order to alter
    facilities to make such facilities readily accessible to and
    usable by individuals with disabilities.” § 12188(a)(2). In suits
    brought by the Attorney General, courts may grant both equi-
    table relief and monetary damages. § 12188(b)(2). Monetary
    damages are not available in private suits under Title III of the
    ADA, Wander v. Kaus, 
    304 F.3d 856
    , 858 (9th Cir. 2002), but
    the ADA gives courts the discretion to award attorney’s fees
    to prevailing parties. 42 U.S.C. § 12205.
    D.   California’s Unruh Civil Rights Act
    [5] In the disability context, California’s Unruh Civil
    Rights Act operates virtually identically to the ADA. It states,
    All persons within the jurisdiction of this state are
    free and equal, and no matter what their sex, race,
    color, religion, ancestry, national origin, disability,
    medical condition, marital status, or sexual orienta-
    tion are entitled to the full and equal accommoda-
    tions, advantages, facilities, privileges, or services in
    all business establishments of every kind whatso-
    ever.
    Cal. Civ. Code § 51(b). Any violation of the ADA necessarily
    constitutes a violation of the Unruh Act. § 51(f).
    The Unruh Act, however, does allow for monetary dam-
    ages. Victims of discrimination may obtain actual damages, as
    well as “any amount that may be determined by a jury . . . up
    to a maximum of three times the amount of actual damage but
    in no case less than four thousand dollars.” § 52(a). The liti-
    gant need not prove she suffered actual damages to recover
    the independent statutory damages of $4,000. Botosan v. Paul
    McNally Realty, 
    216 F.3d 827
    , 835 (9th Cir. 2000). The
    Unruh Act also allows for attorney’s fees. Cal. Civ. Code
    § 52(a).
    3426               MOLSKI v. M.J. CABLE, INC.
    Because the Unruh Act is coextensive with the ADA and
    allows for monetary damages, litigants in federal court in Cal-
    ifornia often pair state Unruh Act claims with federal ADA
    claims. Molski v. Mandarin Touch Restaurant, 
    347 F. Supp. 2d
    at 862-63.
    E.     Analysis
    The issue in this case is whether the District Court abused
    its discretion when it denied Molski’s motion for a new trial.
    The first question is whether there was an absence of evidence
    to support the jury’s conclusion that “defendant[s did not]
    fail[ ] to identify and remove architectural barriers at Cable’s
    Restaurant.” The second question is whether the District
    Court’s explanation of the verdict, that Molski was a business
    and not an individual, somehow justifies the jury’s conclu-
    sion.
    1. There is no evidence to support the jury’s conclusion
    that Cable’s did not fail to identify and remove architectural
    barriers.
    The District Court structured the Special Verdict Form to
    track the elements of a Title III claim. First, as a threshold
    question, it asked, “Do you find that the defendant failed to
    identify and remove architectural barriers at Cable’s Restau-
    rant?” The form then instructed the jury, if it answered “yes,”
    to answer three questions for each of the purported violations:
    “(1) Did this barrier exist at the Cable’s Restaurant on January
    26, 2003? (2) If ‘yes,’ did defendant M.J. Cable fail to iden-
    tify and remove the barrier? (3) If ‘yes,’ was it readily achiev-
    able to remove?” After these questions, the form asked,
    “Should plaintiff be awarded statutory damages in the sum of
    $4,000?” The jury answered “no” to the first question and
    therefore did not go on to answer any of the subsequent ques-
    tions.
    MOLSKI v. M.J. CABLE, INC.                       3427
    [6] Reviewing the trial transcript, “the record contains no
    evidence in support of the verdict.” Farley Transp. 
    Co., 786 F.2d at 1347
    . The testimony of Molski and Sarantschin estab-
    lished a laundry list of architectural barriers, including: the
    absence of accessibility signage, excessive door pressure,
    stalls that were neither wide enough nor long enough, the
    absence of side and rear grab bars, the absence of looped han-
    dles for opening or closing the stall door, no sliding lock, no
    automatic door opener, a toilet seat cover dispenser that was
    too high, a paper towel dispenser that was too high, a height-
    compliant paper towel dispenser that was blocked by a sink,
    sinks without levered hardware, no insulation on the pipes,
    urinals that were too close and too high, stall doors that were
    too narrow, and toilets that were too short.5
    [7] Dalkas, the vice president of Cable’s, acknowledged the
    continued existence of these violations and flatly admitted
    that neither he nor anyone else at Cable’s had attempted to
    identify or remove architectural barriers.
    [8] The only issue about which there was any disagreement
    was whether or not the removal of the barriers was “readily
    achievable.”6 42 U.S.C. § 12182(b)(2)(A)(iv). This issue is
    separate from whether Cable’s identified and removed the
    barriers. The Special Verdict Form specifically distinguished
    those questions, allowing the jury to find initially that Cable’s
    5
    “The issues involved [in ADA accessibility cases] are, to be frank,
    mind-numbingly boring; the ADA Accessibility Guidelines regulate
    design elements down to the minutest detail. . . . [But, a]lthough the
    ADA’s requirements are highly technical, they are essential to serve a core
    function of all civil rights laws: ensuring that the arenas of civic life are
    open to everyone.” 
    Bagenstos, supra, at 23-24
    .
    6
    Federal regulations provide examples of removals of barriers that are
    readily achievable. 28 C.F.R. § 36.304(b)(12)-(17). We express no opinion
    as to whether, given these regulations, the “readily achievable” dispute
    raises a genuine issue of material fact on remand. See Fed. R. Civ. P.
    56(c).
    3428              MOLSKI v. M.J. CABLE, INC.
    had failed to identify or remove the barriers, but then that
    removal was not readily achievable. It did not do so.
    [9] The jury’s determination, in response to the threshold
    question, that Cable’s had not failed to identify and remove
    barriers was against the clear weight of the evidence, given
    the undisputed testimony from both Molski and Dalkas.
    Accordingly, the District Court abused its discretion in deny-
    ing Molski’s motion for a new trial.
    2. The District Court’s explanation of the verdict does not
    justify the jury’s conclusion.
    In denying Molski’s motion, the District Court accepted the
    defendant’s “reasonable explanation for the jury’s verdict: the
    jury determined that Molski was not an ‘individual’ under the
    ADA, and therefore could not recover against Defendants.”
    This conclusion is unreasonable and legally flawed.
    First, the District Court’s explanation is inconsistent with
    the plain language, structure, and spirit of the ADA. Neither
    the District Court nor the defendant provide any support for
    concluding that a person may be considered a business and
    not an individual because of a history of litigiousness.
    [10] Title III of the ADA protects “individuals” who are
    disabled. 42 U.S.C. § 12182(a). It is clear that Molski, who is
    paraplegic, falls within that term. “Statutory interpretation
    begins with the plain meaning of the statute’s language.
    Where the statutory language is clear and consistent with the
    statutory scheme at issue, the plain language of the statute is
    conclusive and the judicial inquiry is at an end.” 
    Botosan, 216 F.3d at 831
    (citations omitted); see also BP Am. Prod. Co. v.
    Burton, 
    127 S. Ct. 638
    , 643 (2006) (“Unless otherwise
    defined, statutory terms are generally interpreted in accor-
    dance with their ordinary meaning.”).
    The defendant, citing 42 U.S.C. § 12182(b)(1)(A)(iv), con-
    tends that the ADA defines individuals as referring only “to
    MOLSKI v. M.J. CABLE, INC.                3429
    the clients and customers of the covered public accommoda-
    tion.” This argument is unavailing for two reasons: first, it
    misinterprets the relevant provision of the ADA; second, even
    if its interpretation of the statute were correct, as a factual
    matter, it does not exclude Molski.
    [11] First, § 12182(b)(1)(A)(iv), which defines “individu-
    als” as “clients or customers,” applies only “[f]or purposes of
    clauses (i) through (iii) of . . . subparagraph [(b)(1)(A)].”
    § 12182(b)(1)(A)(iv); see also PGA Tour v. Martin, 
    532 U.S. 661
    , 678-79 (2001). Sections (i) through (iii) of subparagraph
    (b)(1)(A) generally prohibit public accommodations from
    denying participation to the disabled, providing disabled par-
    ticipants an unequal benefit, or providing disabled participants
    a separate benefit. § 12182(b)(1)(A)(i)-(iii). However, it is
    subsection (a), not subsection (b), that provides the general
    prohibition against discrimination on the basis of disability.
    § 12182(a). As the Supreme Court has pointed out, “clause
    (iv) [of subparagraph (b)(1)(A)] is not literally applicable to
    Title III’s general rule [in subsection (a)] prohibiting discrimi-
    nation against disabled individuals. Title III’s broad general
    rule contains no express ‘clients or customers’ limitation
    . . . .” 
    Martin, 532 U.S. at 679
    . Aside from being inapplicable
    to subsection (a)’s general prohibition, the limited definition
    of “individual” in § 12182(b)(1)(A)(iv) is also inapplicable to
    § 12182(b)(2)(A)(iv), which defines discrimination to include
    the failure to remove architectural barriers.
    [12] This interpretation is in accord with at least one other
    circuit. In Menkowitz v. Pottstown Mem’l Med. Ctr., 
    154 F.3d 113
    , 122 (3d Cir. 1998), the Third Circuit held that Title III
    applied to a medical doctor working as an independent con-
    tractor at a hospital, despite the fact that he was neither a cli-
    ent nor a customer, nor even a member of the general public.
    The court concluded that “both the language of Title III and
    its legislative history clearly demonstrate [that] the phrase
    ‘clients or customers,’ which only appears in 42 U.S.C.
    § 12182(b)(1)(A)(iv), is not a general circumscription of Title
    3430                  MOLSKI v. M.J. CABLE, INC.
    III and cannot serve to limit the broad rule announced in 42
    U.S.C. § 12182(a).” 
    Id. at 121.
    Rather, the court noted, “[t]he
    operative rule announced in Title III speaks not in terms of
    ‘guests,’ ‘patrons,’ ‘clients,’ ‘customers,’ or ‘members of the
    public,’ but instead broadly uses the word ‘individuals.’ ” 
    Id. [13] Accordingly,
    Molski did not need to have been a client
    or customer of Cable’s to be an “individual” entitled to the
    protections of Title III. One need not be a client or customer
    of a public accommodation to feel the sting of its discrimination.7
    [14] But even if the defendant’s reading of the ADA were
    proper, it would not exclude Molski. Molski was plainly a
    “customer” of Cable’s Restaurant. He brought a guest to the
    restaurant, ordered food, ate it, paid thirty-five dollars for it,
    tried to use the restroom, and left. He even returned the day
    before the trial for some ice cream.8 In Martin, the Supreme
    Court held that a one-time payment is sufficient to make a
    disabled person a client or customer of a public accommoda-
    
    tion. 532 U.S. at 679-80
    (holding that professional golfer was
    a client or customer of a golf tour because he paid a one-time
    qualifying fee).
    [15] Even assuming it would have been a viable legal the-
    ory for Molski to have been a business and not an individual,
    the jury instructions provide no basis for making such a find-
    7
    See, e.g., 
    Bagenstos, supra, at 26-27
    (“The [ADA] guarantees people
    with disabilities the right to choose stores and restaurants from the same
    array of options as people without disabilities, and one business’s viola-
    tion deprives a person with a disability of that opportunity to choose, even
    if at the end of the day she would not have decided to patronize that
    store.”)
    8
    The defendant’s analogy that “[Molski] was no more a customer at
    [Cable’s] on that day than he would be had he been sitting at the counter
    waiting for the restaurant’s cashier to turn his or her back so [Molski]
    could steal the money from the cash register” is simply wrong, not to men-
    tion puzzlingly insensitive in its imagery, given that Molski is confined to
    a wheelchair.
    MOLSKI v. M.J. CABLE, INC.                3431
    ing. Cable’s did not put forth any evidence that Molski was
    incorporated, paid salaries, advertised, held himself out as a
    business, or conducted any activities that could make him a
    business as a matter of law. In fact, the Joint Pre-Trial Confer-
    ence Order identifies the plaintiff as “JAREK MOLSKI, an
    individual” and states as an “admitted fact” that “Plaintiff
    Jarek Molski is a person with disabilities as defined by the
    ADA.” The jury could not have then come to the opposite
    conclusion.
    The jury instructions do not give any support to the District
    Court’s explanation of the verdict, either. The jury was never
    instructed on the Molski-as-business theory. Although the
    District Court gave the jury definitions for “disability,”
    “major life activities,” “public accommodation,” “denial of
    access,” “architectural barrier,” and “readily achievable,” it
    never discussed the possibility that Molski was not an “indi-
    vidual” under the ADA, nor did it provide any definition of
    that term.
    [16] Finally, the test provided in the jury instructions stated
    only the following requirements for finding an ADA viola-
    tion: (1) that Molski be disabled, (2) that Cable’s be a public
    accommodation, and (3) that “Plaintiff was denied access to
    elements of the Defendants’ public accommodation due to
    Defendants’ failure to remove architectural barriers.” The par-
    ties stipulated to the first two elements, and Molski unequivo-
    cally proved the third. The jury instructions therefore provide
    no support for the District Court’s speculation that the jury
    concluded that Molski was not an individual.
    CONCLUSION
    [17] We conclude that the record provides no evidence
    whatsoever for the jury’s verdict. The District Court abused
    its discretion in denying Molski’s motion for a new trial.
    Accordingly, we reverse the District Court’s denial of the
    motion, vacate the judgment against Molski, including that for
    3432              MOLSKI v. M.J. CABLE, INC.
    incurred costs, and remand for a new trial. Costs on appeal are
    awarded to appellant.
    REVERSED; VACATED and REMANDED.
    

Document Info

Docket Number: 05-55347

Citation Numbers: 481 F.3d 724

Judges: Ferguson, Siler, Hawkins

Filed Date: 3/22/2007

Precedential Status: Precedential

Modified Date: 11/5/2024

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