Number range CHAPTER **UNITED STATES DISTRICT COURT**

**EASTERN DISTRICT OF LOUISIANA**

)

THE UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

v\. ) CIVIL ACTION

)

)

DREW B. MORVANT, D.D.S., ) No. 93-3251

) Section K (1)

and )

)

DREW B. MORVANT, )

A PROFESSIONAL DENTAL CORPORATION, )

)

Defendants. )

)

)

**[PLAINTIFF\'S MEMORANDUM IN OPPOSITION TO]{.underline}**

**[DEFENDANT\'S MOTION TO DISMISS/MOTION TO STRIKE]{.underline}**

**I. INTRODUCTION**

This is an action brought pursuant to title III of the Americans with
Disabilities Act (\"ADA\"), 42 U.S.C. §§ 12181-89. The United States has
alleged that Drew B. Morvant, D.D.S., violated and continues to violate
the ADA by refusing to treat HIV-positive persons.

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
Defendant has moved this Court to dismiss Plaintiff\'s claims on the
grounds that the United States has failed to state a claim upon which
relief can be granted. Defendant argues that Dr. Morvant, who practices
dentistry as a professional dental corporation, cannot be sued in his
individual capacity. The United States avers that Dr. Morvant is not
shielded from personal liability, and that Dr. Morvant, in his
individual capacity, as well as the corporate entity under which he
practices, may be sued for violations of the ADA.

Defendant also has moved this Court, pursuant to Rule 12(f) of the
Federal Rules of Civil Procedure, for an order striking from
Plaintiff\'s Prayer for Relief both the demand for monetary damages to
Ismael Pena and the demand for monetary damages to \"other persons
aggrieved.\" However, neither demand contains any \"redundant,
immaterial, impertinent, or scandalous matter.\"\
Fed. R. Civ. P. 12(f). Moreover, both are cognizable requests under the
ADA.

Accordingly, the government respectfully requests that Defendant\'s
Motion to Dismiss/Motion to Strike be denied.

**II. ARGUMENT**

**A. THE UNITED STATES HAS STATED A CLAIM UPON WHICH RELIEF CAN\
[BE
GRANTED                                                ]{.underline}**

**1. [Dr. Morvant May be Sued in His Individual Capacity]{.underline}**

Defendant argues that \"\[a\]t all times relevant to this action, Dr.
Morvant practiced as a professional dental corporation, and is thus
shielded from individual liability . . .\" Defendant\'s Memorandum in
Support of Motion to Dismiss (\"Defendant\'s Memorandum\") at 2. There
simply is no basis for this conclusion. Under the ADA, Defendant may not
be shielded from personal liability for his own discriminatory actions.
Moreover, Dr. Morvant may not be shielded from personal liability for
his participation in the actions of his office that violated the ADA.

**a. Dr. Morvant may be sued in his individual capacity\
[under the ADA                                     ]{.underline}**

Defendant\'s assertion that \"a claim for damages allegedly arising out
of actions taken by or on behalf of \[the\] professional dental
corporation may not be imputed to him personally\" is erroneous.
[See]{.underline} Defendant\'s Memorandum at 4. Title III of the ADA
prohibits discrimination on the basis of disability by any \"person who
owns, leases (or leases to), or operates a place of public
accommodation.\" 42 U.S.C.\
§ 12182(a).[^1] Dr. Morvant, the owner, president, and sole director of
Drew B. Morvant, A Professional Dental Corporation, owns and operates
his dental practice.[^2] Accordingly, Dr. Morvant is a person who owns
and operates a place of public accommodation ([see]{.underline} 28
U.S.C. §12181(7) (professional office of a health care provider is a
public accommodation)) and may be held personally liable for his
violations of the ADA.

Indeed, in the first case to consider this issue under the ADA, the
court found that the owner of a corporation could be held personally
liable for her own discriminatory actions and those that she authorized.
[EEOC v. AIC Security Investigations, Ltd.]{.underline}, No. 92-C-7330,
1993 WL 427454, at \*9 (N.D. Ill. Oct. 21, 1993) (attached hereto as
Appendix B).[^3]

In [AIC Security Investigations]{.underline}, the defendant argued that
the ADA does not provide a cause of action against individuals such as
herself, the sole shareholder of a corporation that had also been named
as a party-defendant. The defendant argued that only the corporation
could be held liable for damages arising out of the company\'s
discriminatory actions against a person with a disability.
[Id]{.underline}. at \*6.

The court rejected this argument. Instead, it stated that:

Absent a clear and express statutory directive to the contrary, this
court does not believe that the remedial purposes of the ADA were
intended to relieve from personal liability those supervisory employees
committing discriminatory acts.

> In the particular case here, defendant \[\] was the principal, if not
> the only, motivating force behind \[the corporation\'s\]
> discriminatory action. As the sole shareholder of the corporation, she
> was responsible for making the discriminatory decision on behalf of
> the employer corporation to discharge \[the plaintiff\]. The facts
> clearly established that \[defendant\] directly participated in, and
> in fact made that decision and ordered it to be carried out. Under
> these circumstances defendant \[\] is not relieved of liability.

[Id]{.underline}. at 427454, at \*9.

In the instant case, the United States intends to demonstrate that Dr.
Morvant participated in, authorized, and implemented the decision not to
treat HIV-positive persons in his dental office. Just as the defendant
in [AIC Security Investigations]{.underline} could not hide behind the
shield of the corporate entity, Dr. Morvant cannot do so now. Even if
liability can also be imputed to \"Drew B. Morvant, A Professional
Dental Corporation,\" there is nothing in the ADA that relieves\
Dr. Morvant of personal liability for his actions.

In fact, \"it is well settled law that when corporate officers directly
participate in or authorize the commission of a wrongful act, even if
the act is done on behalf of the corporation, they may be personally
liable.\" [Moss v. Ole South Real Estate, Inc.]{.underline}, 933 F.2d
1300, 1312 (5th Cir. 1991) (citations omitted) (president and sole
shareholder of real estate company may be held personally liable for
racially discriminatory acts in violation of federal civil rights
statutes, 42 U.S.C. §§ 1981, 1982, 1985). [See]{.underline}
[also]{.underline} 3 William M. Fletcher, Fletcher Cyclopedia of the Law
of Private Corporations, § 1135 (perm. ed. rev. vol. 1986). Numerous
courts have imposed personal liability on the officers or directors of a
corporation who directly participated in the illegal acts giving rise to
the corporation\'s liability under federal civil rights statutes.
[See]{.underline}, [e.g.]{.underline}, [Northside Realty]{.underline}

[Assocs., Inc. v. United States]{.underline}, 605 F.2d 1348, 1354 (5th
Cir. 1979) (Fair Housing Act); [Dillon v. AFBIC Development
Corp.]{.underline}, 597 F.2d 556, 562 (5th Cir. 1979) (Fair Housing Act
and 42 U.S.C.\
§ 1982); [Faraca v. Clements]{.underline}, 506 F.2d 956, 959 (5th Cir.),
[cert. denied]{.underline}, 422 U.S. 1006 (1975) (42 U.S.C. § 1981).
[See]{.underline} [also]{.underline},\
[Al-Khazraji v. Saint Francis College]{.underline}, 784 F.2d 505, 518
(3rd Cir. 1986), [aff\'d]{.underline}, 481 U.S. 604 (1987) (42 U.S.C. §
1981); [Tillman v. Wheaton-Haven Recreation Ass\'n, Inc.]{.underline},
517 F.2d 1141, 1146 (4th Cir. 1975) (42 U.S.C. §§ 1981 and 1982);
[Vakharia v. Swedish Covenant Hosp.]{.underline}, 824 F. Supp. 769, 785
n.2 (N.D. Ill. 1993) (Age Discrimination in Employment Act (\"ADEA\")
and Title VII); [Bridges v. Eastman Kodak Co.]{.underline}, 800 F. Supp.
1172, 1180, (S.D.N.Y. 1992) (Title VII); [Wanamaker v. Columbian Rope
Company]{.underline}, 740 F. Supp. 127, 135 (N.D.N.Y. 1990) (ADEA);
[Kwoun v. Southeast Missouri Professional Standards Review
Org.]{.underline}, 622 F. Supp. 520, 524-25 (E.D. Mo. 1985) (42 U.S.C.
§§ 1981 and 1985); [Leadership Council for Metro. Open Communities v.
Chicago Southwest Holiday Inn Operators Oak Lawn Lodge,
Inc.]{.underline}, No. 84-C-7564, 1985 WL 3601,\
at \*2 (N.D. Ill. Oct. 31, 1985) (42 U.S.C. § 1981 and Fair Housing
Act).[^4] Accordingly, this action may be brought against Dr. Morvant in
his individual capacity.

**b. Dr. Morvant may be sued in his individual capacity [under state
law                                   ]{.underline}**

In addition, Defendant\'s entire argument that he cannot be sued in his
individual capacity rests on an erroneous application of Rule 17(b) of
the Federal Rules of Civil Procedure. Rule 17(b) provides that the
procedural question of whether one has the capacity to sue or be sued
\-- whether, regardless of the particular claim or defense being
asserted, one has a personal right to appear in court \-- is an issue
governed primarily by state law.[^5] [See]{.underline}
[generally]{.underline} 6A Charles A. Wright et. al., Federal Practice
and Procedure: Civil § 1559 (2d ed.).

The Louisiana Code of Civil Procedure provides that \"\[a\] competent
major and a competent emancipated minor have the procedural capacity to
be sued.\" La. Code Civ. Proc. Ann.\
art. 731 (West 1993). Defendant has never asserted that he is not a
competent major. Moreover, there is nothing in the Code that proscribes
the naming of both an individual and the corporate entity under which he
practices as defendants to an action. Accordingly, pursuant to Rule
17(b) and the relevant state statute, Dr. Morvant has the capacity to be
sued.[^6]

**2. Drew B. Morvant, A Professional Dental Corporation, is\
[a Proper Party-Defendant                              ]{.underline}**

In any event, Drew B. Morvant, A Professional Dental Corporation, is a
proper party-defendant. At all times relevant to this action, Dr.
Morvant practiced dentistry as a professional dental corporation, duly
incorporated under the laws of the state of Louisiana. Pursuant to
L.S.A.-C.C.P. art. 739, the corporation has the procedural capacity to
be sued in its corporate name.[^7] The corporation operates a place of
public accommodation, and, therefore, may be held liable for the
discriminatory acts of Dr. Morvant and his employees or agents under the
ADA.[^8]

The United States is seeking leave of this Court to amend its Complaint
so that Drew B. Morvant, A Professional Dental Corporation, may be named
as an additional party defendant.[^9] [See]{.underline} Plaintiff\'s
Motion for Leave to Amend Complaint at 1. Accordingly, even if this
Court finds that Dr. Morvant cannot be held liable in his individual
capacity, the United States has stated a claim upon which relief can be
granted. Defendant\'s Motion to Dismiss, therefore, should be denied.

**B. THE UNITED STATES MAY SEEK DAMAGES ON BEHALF OF ISMAEL PENA\
[AND/OR HIS HEIRS OR
SUCCESSORS                             ]{.underline}**

Defendant requests that the portion of Plaintiff\'s Prayer for Relief
seeking an award of monetary damages to Ismael Pena be stricken.
Defendant\'s Memorandum at 6. Defendant maintains that the ADA does not
allow an award of damages to an individual no longer living, and that
the United States may not, therefore, seek damages on Mr. Pena\'s
behalf. [Id]{.underline}. Defendant\'s argument is erroneous. Pursuant
to 42 U.S.C. § 1988 and LSA-C.C.\
art. 2315.1, Plaintiff\'s claim for damages on behalf of Mr. Pena
survives.[^10]

The ADA authorizes the Attorney General to seek monetary damages on
behalf of any \"person aggrieved\" by Defendant\'s discriminatory
conduct. 42 U.S.C. § 12188 (b)(2)(B). The statute is silent as to
whether the Attorney General may seek damages for an aggrieved
individual who died prior to the commencement of a civil action. When a
civil rights provision of title 42 of the U.S. Code is \"deficient\"
with regard to \"suitable remedies\" in federal civil rights actions, 42
U.S.C. § 1988 requires the application of \"the common law, as modified
and changed by the constitution and statutes of the \[forum\] State
\...\"[^11] Accordingly, Louisiana state law controls.

The Louisiana survivorship statute, LSA-C.C. art. 2315.1, provides in
pertinent part:

> A. If a person who has been injured by an offense or quasi-offense
> dies, the right to recover all damages for injury to that person, his
> property or otherwise, caused by the offense or quasi-offense, shall
> survive for a period of one year from the death of the deceased in
> favor of:
>
> \(1\) The surviving spouse and child or children of the deceased, or
> either the spouse or the child or children;
>
> \(2\) The surviving father and mother of the deceased, or either of
> them if he left no spouse or child surviving; and
>
> \(3\) The surviving brothers and sisters of the deceased, or any of
> them, if he left no spouse, child, or parent surviving.
>
> B. In addition, the right to recover all damages for injury to the
> decedent, his property or otherwise, caused by the offense or
> quasi-offense, may be urged by the decedent\'s succession
> representative in the absence of any class of beneficiary set out in
> the preceding Paragraph. . . .

Mr. Pena died on July 11, 1993. The United States\' claim for damages,
therefore, survives.

Survivability of federal civil rights claims under the Louisiana
survivorship statute, LSA-C.C. art. 2315.1, was specifically considered
by the Supreme Court in [Robertson v. Wegmann]{.underline}, 436 U.S. 584
(1978).[^12] In [Robertson]{.underline}, the Court found that a cause of
action brought pursuant to 42 U.S.C. § 1983, a federal civil rights
statute, abated with the plaintiff\'s death because the substituted
plaintiff was not a statutory beneficiary of the decedent. 436 U.S. at
588-92. The Court held that since 42 U.S.C. § 1983 was silent as to the
issue of survivability,\
42 U.S.C. § 1988 required the district court to apply the Louisiana
survivorship law. [Id]{.underline}. at 588. [See]{.underline}
[also]{.underline} [id]{.underline}. at 589-90 (\"\[u\]nder § 1988, . .
. state statutory law . . . provides the principal reference point in
determining survival of civil rights actions\").

In a more recent case, [Bergeron v. Celotex]{.underline}, 766 F. Supp.
518 (E.D. La. 1991), this Court applied the survivorship statute and
stated that a decedent\'s statutorily designated beneficiaries may seek
those damages the injured person could have claimed had he

lived. [Id]{.underline}. at 520. Similarly, in a state case brought on
behalf of an individual who had died prior to the filing of the suit,
[Overpeck v. Christ Episcopal Church]{.underline}, 577 So. 2d 364 (La.
Ct. App. 1991), [writ denied]{.underline}, 580 So. 2d 925 (La. 1991),
the court found that discrimination against a person with AIDS was an
\"offense or quasi-offense\" within the meaning of L.S.A.-C.C. art.
2351.1 and applied the survivorship statute. [Id]{.underline}. at 366.
Accordingly, pursuant to state law, the claim for damages on behalf of
Mr. Pena survives.

This result obtains even though the United States is in a slightly
different procedural posture from that of the plaintiffs in the cases
described above. At issue in those cases was whether the cause of action
survived in favor of the decedent\'s successors. Here, it is the United
States, rather than the aggrieved individual\'s successors, that has
brought the action, and that is seeking damages on the aggrieved
individual\'s behalf. Nevertheless, the Louisiana survivorship statute
specifically protects \"the right to recover all damages for injury to
\[the decedent\]\" and provides that the right survives in favor of the
decedent\'s statutory beneficiaries. LSA-C.C. art. 2315.1.

Precluding Mr. Pena\'s heirs or successors from being able to recover
damages would directly contravene congressional intent and public
policy. The ADA was passed to prevent discrimination on the basis of
disability and to compensate those persons

injured by deprivation of their federal civil rights.[^13] A finding
that an aggrieved individual\'s claim for damages abates with his death
would preclude compensation for many, if not most, individuals who were
discriminated against on the basis of their HIV-positive status, as many
such persons will die prior to the filing of, or during, a civil
lawsuit.

Moreover, failure to compensate the aggrieved individual\'s heirs or
successors might adversely affect the ADA\'s role in preventing
discrimination on the basis of disability. Without the threat of a claim
for damages, there will be little incentive for private entities to
refrain from discriminating against\
HIV-positive persons. [See]{.underline}, [e.g.]{.underline},
[Vakharia]{.underline}, 824 F. Supp. at 786 (\"if the people who make
discriminatory decisions do not have to pay for them, they may never
alter their illegal behavior and the wrongdoers may elude punishment
entirely\").

Thus, pursuant to 42 U.S.C. § 1988 and LSA-C.C. art. 2315.1, the United
States\' claim for damages on behalf of Mr. Pena survives. The
government believes that asking this Court to award damages to Mr. Pena
was sufficient to preserve the rights of Mr. Pena\'s heirs or
successors. Nevertheless, the United States has sought leave to amend
its Complaint and has asked this Court to award monetary damages to
\"Mr. Pena and/or his heirs or successors.\" [See]{.underline}
Plaintiff\'s Motion for Leave to Amend Complaint at 2. Accordingly,
Defendant\'s Motion to Strike Plaintiff\'s request for damages for Mr.
Pena should be denied.

**C. THE UNITED STATES MAY SEEK DAMAGES ON BEHALF OF \"OTHER [AGGRIEVED
PERSONS\" NOT YET NAMED IN THE COMPLAINT     ]{.underline}**

Defendant also asserts that the United States cannot seek damages on
behalf of \"other persons aggrieved,\" because the Complaint does not
identify the persons entitled to such damages. Defendant\'s Memorandum
at 7.

The Complaint alleges that Dr. Morvant has engaged in a \"pattern or
practice\" of discrimination. [See]{.underline} First Amended Complaint
at ¶ 17. The very nature of a pattern or practice claim, in which it is
alleged that the defendant has engaged in a series of ongoing
discriminatory acts, makes it next to impossible to identify all
aggrieved individuals at the time the complaint is filed.
[See]{.underline} [United States v. Balistrieri]{.underline}, 981 F.2d
916, 935-36 (7th Cir. 1992), [cert. denied]{.underline}, 114 S. Ct. 58
(1993). Indeed, as pattern or practice cases involve broad allegations
of ongoing discrimination, the United States should not have to defer
the filing of such cases until it has identified all persons who likely
have been harmed.

There is nothing in the ADA that preconditions an aggrieved person\'s
eligibility for an award of damages on whether the government knew the
person was a victim of discrimination before it filed the complaint, or
whether, as is anticipated in the instant case, such knowledge comes to
the government during discovery.[^14] Indeed, precedent under similar
provisions in other civil rights laws requires no such delay. Under the
Fair Housing Act, 42 U.S.C. § 3614(a), where the Attorney General is
authorized to file a complaint alleging a pattern or practice of housing
discrimination, the government may also seek compensatory damages on
behalf of \"persons aggrieved.\" [Id]{.underline}. at\
§ 3614(d)(1)(B). Individuals\' eligibility for relief is not limited by
the government\'s knowledge of specific individuals at the time the
complaint is filed; rather, any individual who was discriminated against
during the period of the discrimination is eligible for compensatory
damages. [See]{.underline}, [e.g.]{.underline},
[Balistrieri]{.underline},\
981 F.2d at 935 (\"nothing in the \[Fair Housing Act\] demands, or even
implies that damages are proper only for people the government knows
about at the time it files the complaint\").

Similarly, under Title VII of the Civil Rights of 1964,\
42 U.S.C. § 2000e-6, the United States is authorized to bring pattern or
practice employment discrimination actions and to seek monetary awards
for all victims of discrimination. As the Supreme Court noted in
[Teamsters v. United States]{.underline}, 431 U.S. 324, 360 (1977),
\"\[a\]t the initial, \'liability\' stage of a pattern-or-practice suit
the Government is not required to offer evidence that each person for
whom it will ultimately seek relief was a victim of the employer\'s
discriminatory policy. Its burden is to establish a prima facie case
that such a policy existed.\" [See]{.underline} [also]{.underline}
[United States v. Lee Way Motor Freight, Inc.]{.underline}, 625 F.2d
918, 939-940, 945 (10th Cir. 1979).

Defendant argues that pursuant to Rule 8 of the Federal Rules of Civil
Procedure, the complaint must give the defendant fair notice of the
claim, and the grounds upon which the claim rests. Defendant\'s
Memorandum at 8. The United States has, in fact, done so, to the extent
information was available at the time the Complaint was filed. The
Complaint puts Defendant on notice that the government is seeking
damages for all aggrieved persons it might discover. Moreover, because
Defendant is entitled to know information about other aggrieved
individuals identified through discovery, the government intends to
notify Defendant if, and as soon as, it learns the identity of such
persons.

There is simply no support for Defendant\'s position that only victims
known to the government at the time the complaint is filed are eligible
for monetary relief. Accordingly, Defendant\'s Motion to Strike the
government\'s demand for monetary damages to \"other persons aggrieved\"
should be denied.

**[CONCLUSION]{.underline}**

For the foregoing reasons, the government respectfully requests that
Defendant\'s Motion to Dismiss/Motion to Strike be denied in full.

Respectfully submitted,

ROBERT J. BOITMANN JAMES P. TURNER

United States Attorney Acting Assistant Attorney General

Eastern District of Civil Rights Division

Louisiana

[                          ]{.underline}

GLENN K. SCHREIBER SHEILA K. DELANEY

Assistant U.S. Attorney SHARON N. PERLEY, TA

Eastern District of Public Access Section

Louisiana Civil Rights Division

501 Magazine St. United States Department of Justice

New Orleans, LA 70130 P.O. Box 66738

Washington, D.C. 20035-6738

\(202\) 514-6016

[^1]: ^?^ The Department of Justice\'s regulation implementing title
    III, 28 C.F.R. pt. 36, proscribes discrimination on the basis of
    disability by \"any [private entity]{.underline} who owns, leases
    (or leases to), or operates a place of public accommodation.\"
    [Id]{.underline}. at\
    § 36.201(a) (emphasis added). \"Private entity\" is defined as any
    \"person or entity other than a public entity.\" [Id]{.underline}.
    at § 36.104.

[^2]: ^?^ [See]{.underline} Articles of Incorporation and 1993 Annual
    Report of Drew B. Morvant, A Professional Dental Corporation,
    attached hereto as Appendix A.

[^3]: ^?^ [AIC Security Investigations]{.underline} was brought pursuant
    to\
    title I of the ADA, which prohibits discrimination on the basis of
    disability in the employment context. Title I provides, in pertinent
    part, that \"no covered entity shall discriminate against a
    qualified individual with a disability because of the disability of
    such individual\...\" 42 U.S.C. § 12112(a). \"Covered entity\" is
    defined as \"an employer, employment agency, labor organization, or
    joint labor-management committee,\"\
    42 U.S.C. §12111(2), and the term \"employer\" is defined as \"a
    person engaged in an industry affecting commerce who has 15 or more
    employees \..., and any agent of such person.\"\
    42 U.S.C. § 12111(5)(A). This language parallels the title III
    prohibition of discrimination by any \"person\" who owns or operates
    a place of public accommodation.

[^4]: ^?^ The courts uniformly have imputed personal liability to the
    owners or directors of a corporation whose actions violated the Fair
    Housing Act and/or 42 U.S.C. § 1981. [See]{.underline},
    [e.g.]{.underline}, [Vakharia]{.underline}, 824 F. Supp. at 785
    (noting that courts around the country concur in the personal
    liability of decisionmaking employees under § 1981); [Leadership
    Council]{.underline}, 1985 WL 3601, at \*2 (noting that a corporate
    officer, if sued under the Fair Housing Act, is always personally
    liable for the discriminatory acts of subordinate employees). Under
    ADEA and Title VII, however, there has been a split in the courts.
    [See]{.underline} [Wanamaker]{.underline}, 740 F. Supp. at 135
    (corporate officers and directors may be individually liable for
    violations of ADEA if they exercise control over an employee);
    [contra]{.underline} [Weiss v. Coca Cola Bottling Co]{.underline}.,
    772 F. Supp. 407, 411 (N.D. Ill. 1991) (corporate agent may not be
    sued in his individual capacity under Title VII).

    The distinction seems to be based on the types of damages available
    under the various statutes. Under the Fair Housing Act and 42 U.S.C.
    § 1981, a plaintiff may seek compensatory and punitive damages,
    damages that an individual defendant can be expected to pay. Under
    ADEA and Title VII, however, the only remedies available prior to
    1991 were injunctive relief (change in policy, reinstatement) and
    back pay, damages most logically sought against an employer rather
    than an individual defendant. With the enactment of the Civil Rights
    Act of 1991, this split should soon be resolved. [See]{.underline}
    [Hangebrauck v. Deloitte & Touche]{.underline}, No. 92-C-3328, 1992
    WL 348743 at \*3 (N.D. Ill. Nov. 9, 1992) (noting in a Title VII
    case that \"the availability of compensatory and punitive damages
    under the 1991 Act alters this conclusion \[that agents of a
    corporation may not be held personally liable\] in those cases to
    which the Act applies\"); [Bridges]{.underline}, 800 F. Supp. at
    1180. [But]{.underline} [see]{.underline} [Miller v. Maxwell\'s
    Int\'l, Inc.]{.underline}, 991 F.2d 583, 587 (9th Cir. 1993)
    (declining to impute personal liability to agents of employers who
    had violated Title VII).

    The ADA authorizes the Attorney General to seek the full panoply of
    damages.

[^5]: ^?^ Rule 17(b) provides:

    > The capacity of an individual, other than one acting in a
    > representative capacity, to sue or be sued shall be determined by
    > the law of the individual\'s domicile. The capacity of a
    > corporation to sue or be sued shall be determined by the law under
    > which it was organized. In all other cases capacity to sue or be
    > sued shall be determined by the law of the state in which the
    > district court is held, except (1) that a partnership or other
    > unincorporated association, which has no such capacity by the law
    > of such state, may sue or be sued in its common name for the
    > purpose of enforcing for or against it a substantive right
    > existing under the Constitution or laws of the United States, and
    > (2) that the capacity of a receiver appointed by a court of the
    > United States to sue or be sued in a court of the United States is
    > governed by Title 28, U.S.C. §§ 754 and 959(a).

[^6]: ^?^ Even if Louisiana corporation law was applicable, Dr. Morvant
    still could be held personally liable for his discriminatory acts.
    As the Louisiana Supreme Court stated in a case cited in
    Defendant\'s memorandum:

    > The law is settled that if an officer or agent of a corporation
    > through his fault injures another to whom he owes a personal duty,
    > whether or not the act culminating in the injury is committed by
    > or for the corporation, the officer or agent is liable personally
    > to the injured third person, and it does not matter that liability
    > might also attach to the corporation.

    [H.B. \"Buster\" Hughes, Inc. v. Bernard]{.underline}, 318 So. 2d 9,
    12\
    (La. 1975) (cited in Defendant\'s Memorandum at 4).
    [See]{.underline} [also]{.underline}\
    LAS-C.C. art. 2315 (\"Liability for acts causing damages\"); [Dillon
    v. AFBIC Development Corp.]{.underline}, 597 F.2d 556, 562 (5th Cir.
    1979) (actions based upon federal antidiscrimination statutes are
    essentially actions in tort).

    Defendant\'s memorandum relied on a number of state cases that found
    that the owners or directors of a corporation could not be held
    personally liable for the debts of the corporation.
    [See]{.underline}, [e.g.]{.underline}, [Riggins v. Dixie Shoring
    Co., Inc.]{.underline}, 590 So. 2d 1164, 1168-69 (La. 1991), [reh\'g
    denied]{.underline}, 592 So. 2d 1282 (La. 1992); [Jones v.
    Briley]{.underline}, 593 So. 2d 391, 394 (La. Ct. App. 1991). In
    each case cited by the Defendant, however, the debts of the
    corporation had been caused by others, not by the personal acts of
    the owners or directors.

[^7]: ^?^ L.S.A.-C.C.P. art. 739 provides:

    > Except as otherwise provided . . . , a domestic or foreign
    > corporation, or a domestic, foreign, or alien insurance
    > corporation, has the procedural capacity to be sued in its
    > corporate name.

[^8]: ^?^ As noted above, the implementing regulation for title III
    proscribes discrimination on the basis of disability by \"any
    private entity who owns, leases (or leases to), or operates a place
    of public accommodation. 28 C.F.R. § 36.201(a) (emphasis added).
    \"Private entity\" is defined as any \"person or entity other than a
    public entity.\" [Id]{.underline}. at § 36.104. [See]{.underline}
    note 1, [supra]{.underline}.

[^9]: ^?^ The United States failed to name \"Drew B. Morvant, A
    Professional Dental Corporation\" in the original Complaint because
    Dr. Morvant had never indicated, in his earlier correspondence with
    the Department of Justice, that he practiced dentistry as a
    professional corporation. In response to the Department\'s request
    for \"\[i\]nformation concerning your dental practice, including who
    owns and operates the practice,\" Dr. Morvant responded, \"I own the
    practice and am the sole dentist.\" Moreover, Dr. Morvant\'s letters
    to the Department were signed \"Drew B. Morvant, D.D.S.,\" and his
    stationery letterhead read:

    Drew B. Morvant, D.D.S.\
    921 Canal Street \-- Suite 935\
    New Orleans, LA 70112

[^10]: ^?^ In his memorandum, Defendant relied on two irrelevant cases,
    [Saad v. Burns Intn\'l Sec. Servs., Inc.]{.underline}, 456 F.Supp.
    33\
    (D.D.C. 1978) and [Gierlinger v. New York State Police]{.underline},
    738 F. Supp. 96 (W.D.N.Y. 1990). Defendant argues that both cases
    stand for the proposition that \"a prayer for relief \... seeking
    recovery which is not authorized by statute is properly stricken.\"
    Defendant\'s Memorandum at 6. In both cases, the courts, relying on
    case law that held that punitive damages are not available under
    Title VII of the Civil Rights Act of 1964,\
    42 U.S.C. § 20003-5(g), ordered stricken from the pleadings demands
    for punitive damages.

    These cases are inapposite. In the instant case, the United States
    has requested that compensatory damages be awarded to Ismael Pena, a
    person injured by Defendant\'s discriminatory conduct. This demand
    is, in fact, authorized by the ADA. [See]{.underline}\
    42 U.S.C. § 12188 (b)(2)(B). As the following discussion will
    demonstrate, the fact that Mr. Pena is no longer living is
    irrelevant to whether the United States can seek damages on his
    behalf.

[^11]: ^?^ 42 U.S.C. § 1988 provides in pertinent part:

    > The jurisdiction in civil and criminal matters conferred on the
    > district courts by the provisions of this Title \..., for the
    > protection of all persons in the United States in their civil
    > rights, and for their vindication, shall be exercised and enforced
    > in conformity with the laws of the United States, so far as such
    > laws are suitable to carry the same into effect; but in all cases
    > where they are not adapted to the object, or are deficient in the
    > provisions necessary to furnish suitable remedies and punish
    > offenses against law, the common law, as modified and changed by
    > the constitution and statutes of the State wherein the court
    > having jurisdiction of such civil or criminal cause is held, so
    > far as the same is not inconsistent with the Constitution and laws
    > of the United States, shall be extended to and govern the said
    > courts in the trial and disposition of the cause, \...

[^12]: ^?^ In [Robertson]{.underline}, the Court actually interpreted
    the survivorship provisions of Article 2315, which has since been
    separated out, amended slightly, and renumbered as Article 2315.1.
    [Overpeck v. Christ Episcopal Church]{.underline}, 577 So. 2d 364,
    366 (La. Ct. App. 1991).

[^13]: ^?^ [See]{.underline} 42 U.S.C. § 12101(a)(4) (\"The Congress
    finds that\
    . . . unlike individuals who have experienced discrimination on the
    basis of race, color, sex, national origin, religion, or age,
    individuals who have experienced discrimination on the basis of
    disability have often had no legal recourse to redress such
    discrimination.\"); 42 U.S.C. § 12101(b)(1)(\"It is the purpose of
    this Act to provide a clear and comprehensive national mandate for
    the elimination of discrimination against individuals with
    disabilities.\").

[^14]: ^?^ The ADA provides:

    > If the Attorney General has reasonable cause to believe that any
    > person or group of persons is engaged in a pattern or practice of
    > discrimination under this title, \... the Attorney General may
    > commence a civil action in any appropriate United States district
    > court.
    >
    > In a civil action under \[the preceding paragraph\], the court
    > \... may award such other relief as the court considers to be
    > appropriate, including monetary damages to persons aggrieved when
    > requested by the Attorney General \...

    42 U.S.C. §§ 12188 (b)(1)(B)(i) and (b)(2)(B).