U.S. District Court Eastern District of Louisiana (New Orleans) CIVIL DOCKET FOR CASE #: 2:17-cv-07267-SM

Smith v. Board of Commissioners of the Louisiana Stadium and Exposition District Assigned to: Judge Susie Morgan Case in other court: USCA, 19-30575 Cause: 42:12101 Americans With Disabilities Act

Date Filed: 07/28/2017 Date Terminated: 07/03/2019 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff Nancy Smith

represented by Andrew David Bizer Bizer & DeReus, LLC 3319 St. Claude Ave. New Orleans, LA 70117 504-619-9999 Fax: 504-948-9996 Email: andrew@bizerlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Kaye Hammack Bizer & DeReus, LLC 3319 St. Claude Ave New Orleans, LA 70117 504-619-9999 Email: jhammack@bizerlaw.com ATTORNEY TO BE NOTICED

Marc P. Florman Bizer Law Firm, LLC 3319 St. Claude Avenue New Orleans, LA 70117 504-619-9999 Fax: 504-948-9996 Email: marc.florman@gmail.com TERMINATED: 10/12/2018

V.
Defendant
Board of Commissioners of the Louisiana Stadium and Exposition

represented by Christopher Neal Walters Louisiana Department of Justice

District as the political entity which owns the Superdome; SEE Louisiana Stadium and Exposition District TERMINATED: 02/20/2019
Defendant Kyle France in his official capacity as chief executive of the Board of Commissioners of the Louisiana Stadium and Exposition District
Defendant SMG

1885 North Third Street Ste 2nd Floor Baton Rouge, LA 70804 225-326-6200 Fax: 225-326-6495 Email: waltersc@ag.louisiana.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott G. Centorino Louisiana Department of Justice (1450 Poydras) 1450 Poydras Street Suite 900 New Orleans, LA 70112 504-599-1200 Email: centorinos@ag.louisiana.gov ATTORNEY TO BE NOTICED
represented by Christopher Neal Walters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela J. O'Brien Louisiana Department of Justice (1450 Poydras) 1450 Poydras Street Suite 900 New Orleans, LA 70112 504-599-1200 Email: O'BrienA@ag.louisiana.gov ATTORNEY TO BE NOTICED
Scott G. Centorino (See above for address) ATTORNEY TO BE NOTICED
represented by Christopher Neal Walters (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela J. O'Brien

Defendant Live Nation Marketing, Inc. TERMINATED: 08/20/2017 Defendant Live Nation Mtour USA, Inc. TERMINATED: 08/20/2017 Defendant Live Nation Worldwide, Inc. TERMINATED: 12/15/2017
Defendant Box Office Ticket Center, LLC TERMINATED: 02/06/2018 Defendant Louisiana Stadium and Exposition District

(See above for address) ATTORNEY TO BE NOTICED
Scott G. Centorino (See above for address) ATTORNEY TO BE NOTICED
represented by Richard G. Duplantier , Jr. Galloway, Johnson, Tompkins, Burr & Smith (New Orleans) One Shell Square 701 Poydras St. Suite 4040 40th Floor New Orleans, LA 70139 504-525-6802 Email: RDuplantier@gallowaylawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert S. Fine Greenberg Traurig, LLP (Miami) 333 S. E. 2nd Ave. Suite 4400 Miami, FL 33131 305-579-0826 Email: Finer@gtlaw.com PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Christopher Neal Walters (See above for address)

substituted in place of the Board of Commissioners of the Louisiana Stadium and Exposition District TERMINATED: 03/07/2019

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Angela J. O'Brien (See above for address) ATTORNEY TO BE NOTICED
Scott G. Centorino (See above for address) ATTORNEY TO BE NOTICED

Date Filed 07/28/2017
07/28/2017 08/01/2017 08/02/2017

# Docket Text
1 COMPLAINT against All Defendants (Filing fee $ 400 receipt number 053L-6282042) filed by Nancy Smith. (Attachments:
# 1 Civil Cover Sheet, # 2 Summons to Board, # 3 Summons to France, # 4 Summons to SMG, # 5 Summons to Live Nation Marketing, Inc., # 6 Summons to Live Nation Mtours (USA), Inc., # 7 Summons to Live Nation Worldwide, Inc., # 8 Summons to Box Office Ticket Center, LLC)Attorney Jacqueline Kaye Hammack added to party Nancy Smith(pty:pla).(Hammack, Jacqueline) (Attachment 2 replaced on 8/1/2017) (clc). (Attachment 3 replaced on 8/1/2017) (clc). (Attachment 4 replaced on 8/1/2017) (clc). (Attachment 5 replaced on 8/1/2017) (clc). (Attachment 6 replaced on 8/1/2017) (clc). (Attachment 7 replaced on 8/1/2017) (clc). (Attachment 8 replaced on 8/1/2017) (clc). (Entered: 07/28/2017)
2 Initial Case Assignment to Judge Susie Morgan and Magistrate Judge Joseph C. Wilkinson, Jr. (jeg) (Entered: 07/28/2017)
3 Correction of Docket Entry by Clerk re 1 Complaint. **Filing attorney did not properly format the pdf of Summons. The pdf should not have the green header nor the 3 red buttons at the bottom. When using a FORM, fill in the applicable fields then click the red PRINT button at the bottom to print the document to pdf format. Clerk has taken corrective action.** (clc) (Entered: 08/01/2017)
4 Summons Issued as to Board of Commissioners of the Louisiana Stadium and Exposition District, Box Office Ticket Center, LLC, Kyle France, Live Nation Marketing, Inc., Live Nation Mtours (USA), Inc., Live Nation Worldwide, Inc., SMG. (Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons)(clc) (Entered: 08/02/2017)

08/20/2017 09/01/2017 09/11/2017 09/11/2017 09/11/2017 09/19/2017
10/10/2017
10/16/2017
10/23/2017 10/23/2017

5 First AMENDED COMPLAINT against Board of Commissioners of the Louisiana Stadium and Exposition District, Box Office Ticket Center, LLC, Kyle France, Live Nation Worldwide, Inc., SMG filed by Nancy Smith.(Hammack, Jacqueline) (Entered: 08/20/2017)
6 WAIVER OF SERVICE Returned Executed; waiver sent to Live Nation Worldwide, Inc. on 8/24/2017, answer due 10/23/2017. (Hammack, Jacqueline) (Entered: 09/01/2017)
7 SUMMONS Returned Executed; Board of Commissioners of the Louisiana Stadium and Exposition District served on 8/25/2017, answer due 9/15/2017. (Bizer, Andrew) (Entered: 09/11/2017)
8 SUMMONS Returned Executed; Kyle France served on 8/25/2017, answer due 9/15/2017. (Bizer, Andrew) (Entered: 09/11/2017)
9 SUMMONS Returned Executed; SMG served on 8/23/2017, answer due 9/13/2017. (Bizer, Andrew) (Entered: 09/11/2017)
10 ANSWER to 5 Amended Complaint and Affirmative Defenses by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG.Attorney Christopher Neal Walters added to party Board of Commissioners of the Louisiana Stadium and Exposition District(pty:dft), Attorney Christopher Neal Walters added to party Kyle France(pty:dft), Attorney Christopher Neal Walters added to party SMG(pty:dft).(Walters, Christopher) (Entered: 09/19/2017)
11 MOTION to Strike 10 Answer to Amended Complaint, by Nancy Smith. Motion(s) will be submitted on 11/1/2017. (Attachments: # 1 Memorandum in Support, # 2 Exhibit "A." to Memorandum in Support, # 3 Notice of Submission, # 4 Proposed Order)(Hammack, Jacqueline) (Entered: 10/10/2017)
12 ORDER: The Court directs the parties to contact the Magistrate Judge assigned to this action within seven days of this date to schedule a conference to iscuss the entry of a case management order. Signed by Judge Susie Morgan on 10/16/2017.(clc) (Entered: 10/16/2017)
13 ANSWER to 5 Amended Complaint by Live Nation Worldwide, Inc..Attorney Richard G. Duplantier, Jr added to party Live Nation Worldwide, Inc.(pty:dft).(Duplantier, Richard) (Entered: 10/23/2017)
14 EXPARTE/CONSENT MOTION to Appear Pro Hac Vice For Robert S. Fine (Filing fee $ 100 receipt number 053L-6430590) by Live Nation Worldwide, Inc.. (Attachments: # 1 Exhibit A Affidavit, # 2 Exhibit B - Certificate, # 3 Proposed Order)(Duplantier, Richard) (Entered: 10/23/2017)

10/24/2017
10/24/2017 11/07/2017
11/21/2017 11/22/2017 11/27/2017 11/29/2017 12/07/2017

15 ORDER: As ordered by Judge Morgan, Record Doc. No. 12 , a Conference to discuss the entry of a case management order is set in this case on NOVEMBER 7, 2017 at 2:30 p.m. before Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, Room B409, New Orleans, Louisiana. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 10/24/2017.(mmv) (NEF: HON. SUSIE MORGAN) (Entered: 10/24/2017)
16 ORDER granting 14 Motion to Appear Pro Hac Vice as to Robert S. Fine. Signed by Judge Susie Morgan. (Attachments: # 1 Pro Hac Notice) (bwn) (Entered: 10/24/2017)
17 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: As ordered by Judge Morgan, Record Doc. No. 15 , I conducted a case management conference on this date. As agreed to by plaintiff's counsel, plaintiff's pending 11 motion to strike affirmative defenses, is hereby dismissed without prejudice, reserving plaintiff's right to renotice the motion if this initial attempt at resolution is unsuccessful. I will conduct a follow-up telephone conference on December 20, 2017 at 2:00 p.m. during which counsel will advise me on the status of their discussions and settlement efforts as set forth in document.(mmv) (NEF: HON. SUSIE MORGAN) (Entered: 11/08/2017)
18 SHOW CAUSE ORDER: ORDERED that plaintiff show good cause in writing within twenty days why service of process has not been effected, or the unserved defendant will be dismissed without notice. Signed by Judge Susie Morgan on 11/21/2017.(clc) (Entered: 11/21/2017)
19 EXPARTE/CONSENT MOTION for Extension of Deadlines for Service on Box Office Ticket Center, LLC by Nancy Smith. (Attachments: # 1 Exhibit Exhibits A-E, # 2 Proposed Order)(Hammack, Jacqueline) (Entered: 11/22/2017)
20 ORDER granting 19 Motion for Extension of Deadlines for Service. ORDERED that Plaintiff must obtain service, waiver of service, or the voluntary appearance of Box Office Ticket Center, LLC no later than December 2, 2017. Signed by Judge Susie Morgan on 11/27/2017. (clc) (Entered: 11/27/2017)
21 WAIVER OF SERVICE Returned Executed; waiver sent to Box Office Ticket Center, LLC on 11/13/2017, answer due 1/12/2018. (Hammack, Jacqueline) (Entered: 11/29/2017)
22 EXPARTE/CONSENT Joint MOTION to Dismiss Party Live Nation Worldwide, Inc. with Prejudice by Nancy Smith. (Attachments: # 1 Proposed Order)(Bizer, Andrew) (Entered: 12/07/2017)

12/15/2017 12/20/2017
01/18/2018 01/29/2018
02/06/2018 02/08/2018 02/22/2018 04/10/2018

23 ORDER granting 22 Motion to Dismiss Party. Party Live Nation Worldwide, Inc. dismissed. Signed by Judge Susie Morgan on 12/14/2017. (clc) (Entered: 12/15/2017)
24 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Telephone Conference held on 12/20/2017. The parties substantially complied with the court's prior order, Record Doc. No. 17 , by obtaining the appearance of all proper parties, exchanging initial information and preliminarily conferring with each other. Further settlement efforts will proceed as follows: No later than January 22, 2018, counsel will continue their efforts to verify the basic facts and exchange the specific additional information discussed during the conference concerning the identity of the Superdome event staffer and the content of her communications with plaintiff. Counsel will then confer among themselves to determine whether the framework of an early settlement of this matter can be agreed upon and report to me on the results of their efforts during a telephone conference on January 29, 2018 at 10:30 a.m.(mmv) (NEF: HON. SUSIE MORGAN) (Entered: 12/20/2017)
25 SHOW CAUSE ORDER. Signed by Judge Susie Morgan on 1/18/2018.(clc) (Entered: 01/22/2018)
26 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: Settlement Conference held on 1/29/2018. ORDERED that the agreed-upon stay of all litigation activities previously imposed, Records Doc. No. 17, is hereby LIFTED. Litigation activities, including discovery, may commence. ORDERED that defendant Box Office must file its answer or responsive motion no later than 2/16/2018. (NEF: Sect E) (caa) (Entered: 01/29/2018)
27 NOTICE of Voluntary Dismissal Without Prejudice as to Box Office Ticket Center, LLC by Nancy Smith. (Hammack, Jacqueline) (Entered: 02/06/2018)
28 PRELIMINARY CONFERENCE NOTICE - Scheduling Conference set for 2/22/2018 at 10:00 AM before case manager by telephone. Signed by Clerk.(bwn) (Entered: 02/08/2018)
29 SCHEDULING ORDER: Status Conference set for 4/10/2018 at 2:30 PM before Judge Susie Morgan. Final Pretrial Conference set for 1/31/2019 at 1:00 PM before Judge Susie Morgan. 3 Day Bench Trial set for 2/25/2019 at 9:00 AM before Judge Susie Morgan. All discovery must be completed by 12/17/2018. (Attachments: # 1 Pretrial Notice Form)(bwn) (Entered: 02/22/2018)
30 Minute Entry for proceedings held before Judge Susie Morgan: Status Conference held on 4/10/2018. (bwn) (Entered: 04/11/2018)

10/11/2018 10/12/2018 11/27/2018 11/27/2018 11/29/2018
12/05/2018 12/05/2018 12/14/2018
12/24/2018

31 EXPARTE/CONSENT MOTION to Withdraw Counsel Marc P. Florman by Nancy Smith. (Attachments: # 1 Proposed Order)(Florman, Marc) Modified text on 10/12/2018 (sbs). (Entered: 10/11/2018)
32 ORDER granting 31 Motion to Withdraw as Attorney. Attorney Marc P. Florman terminated. Signed by Judge Susie Morgan on 10/12/2018. (jeg) (Entered: 10/12/2018)
33 Witness and Exhibit List by Nancy Smith. (Hammack, Jacqueline) (Entered: 11/27/2018)
34 Witness and Exhibit List by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Walters, Christopher) (Entered: 11/27/2018)
35 ORDER re 33 Witness and Exhibit List filed by Nancy Smith, 34 Witness and Exhibit List filed by SMG, Kyle France, Board of Commissioners of the Louisiana Stadium and Exposition District - IT IS ORDERED that the parties file amended witness and exhibit lists incorporating the requirements described herein by Wednesday, December 5, 2018 at 5:00 p.m. Signed by Judge Susie Morgan.(bwn) (Entered: 11/29/2018)
36 Amended Witness and Exhibit List by Nancy Smith. (Hammack, Jacqueline) (Entered: 12/05/2018)
37 Amended Witness and Exhibit List by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Walters, Christopher) (Entered: 12/05/2018)
38 ORDER: As ordered by Judge Morgan, Record Doc. No. 29 , a Settlement Conference is set in this case on JANUARY 8, 2019 at 3:30 p.m., before Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, Room B409, New Orleans, Louisiana. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 12/14/2018.(mmv) (NEF: HON. SUSIE MORGAN) (Entered: 12/14/2018)
39 EXPARTE/CONSENT MOTION for Leave to File Memorandum in Excess of the Page Limitations by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading Motion for Summary Judgment, # 3 Proposed Pleading Memorandum in Support, # 4 Proposed Pleading Statement of Undisputed Facts, # 5 Proposed Pleading Exhibit List, # 6 Proposed Pleading Exhibit 1, # 7 Proposed Pleading Exhibit 2, # 8 Proposed Pleading Exhibit 3, # 9 Proposed Pleading Exhibit 4, # 10 Proposed Pleading Exhibit 5, # 11 Proposed Pleading Exhibit 6, # 12 Proposed Pleading Notice of

12/24/2018
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12/26/2018 12/26/2018 12/26/2018 12/26/2018 12/27/2018

Submission)(Walters, Christopher) Modified text on 12/26/2018 (mm). (Entered: 12/24/2018)
40 MOTION for Partial Summary Judgment as to SMG by Nancy Smith. Motion(s) will be submitted on 1/9/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Statement of Contested/Uncontested Facts, # 4 Exhibit A., # 5 Exhibit B., # 6 Exhibit C., # 7 Exhibit D., # 8 Exhibit E., # 9 Exhibit F., # 10 Exhibit G., # 11 Exhibit H.)(Hammack, Jacqueline) (Attachment 6 replaced on 12/26/2018) (mm). (Attachment 7 replaced on 12/26/2018) (mm). (Entered: 12/24/2018)
41 MOTION for Partial Summary Judgment as to the Board of Commissioners of the Louisiana Stadium and Exposition District and Kyle France by Nancy Smith. Motion(s) will be submitted on 1/9/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Statement of Contested/Uncontested Facts, # 4 Exhibit A., # 5 Exhibit B., # 6 Exhibit C., # 7 Exhibit D., # 8 Exhibit E., # 9 Exhibit F., # 10 Exhibit G., # 11 Exhibit H.)(Hammack, Jacqueline) (Attachment 6 replaced on 12/26/2018) (mm). (Attachment 7 replaced on 12/26/2018) (mm). (Entered: 12/24/2018)
42 Correction of Docket Entry by Clerk re 40 MOTION for Partial Summary Judgment as to SMG., 41 Motion for Partial Summary Judgment. **Images in attachments 6 & 7 were filed sideways. Clerk has corrected images. Please adjust scanner for future filings. No further action necessary.** (mm) (Entered: 12/26/2018)
43 NOTICE: Because R. Docs. 40 and 41 contain more than 50 pages, counsel shall deliver to chambers within 3 working days one hard copy of each submission in separate binders as set forth in notice. Signed by Clerk.(bwn) (Entered: 12/26/2018)
44 ORDER granting 39 Motion for Leave to File Memorandum In in Support of Defendants' Motion for Summary Judgment in Excess Pages. Signed by Judge Susie Morgan on 12/26/2018. (jeg) (Entered: 12/26/2018)
45 MOTION for Summary Judgment by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. Motion(s) will be submitted on 1/9/2019. (Attachments: # 1 Memorandum in Support, # 2 Statement of Contested/Uncontested Facts, # 3 Exhibit List, # 4 Exhibit 1, # 5 Exhibit 2, # 6 Exhibit 3, # 7 Exhibit 4, # 8 Exhibit 5, # 9 Exhibit 6, # 10 Notice of Submission)(jeg) (Entered: 12/26/2018)
46 NOTICE: Because R. Doc. 45 contains more than 50 pages, counsel shall deliver to chambers within 3 working days one hard copy of the

12/27/2018
12/27/2018 12/27/2018 12/28/2018 12/28/2018 12/28/2018 01/02/2019

submission in a binder as set forth in notice. Signed by Clerk.(bwn) (Entered: 12/27/2018)
47 EXPARTE/CONSENT Joint MOTION for Extension of Time to File Oppositions as to 40 MOTION for Partial Summary Judgment as to SMG, 41 MOTION for Partial Summary Judgment as to the Board of Commissioners of the Louisiana Stadium and Exposition District and Kyle France, 45 MOTION for Summary Judgment by Nancy Smith, Board of Commissioners of the Louisiana Stadium and Exposition District, SMG. (Attachments: # 1 Proposed Order)(Hammack, Jacqueline) Modified filers on 12/28/2018 (mm). (Entered: 12/27/2018)
48 Amendment/Supplement to Document (Table of Contents & Table of Citations) by Nancy Smith re 40 MOTION for Partial Summary Judgment as to SMG (Hammack, Jacqueline) Modified text on 12/28/2018 (mm). (Entered: 12/27/2018)
49 Amendment/Supplement to Document (Table of Contents & Table of Citations) by Nancy Smith re 41 MOTION for Partial Summary Judgment as to the Board of Commissioners of the Louisiana Stadium and Exposition District and Kyle France (Hammack, Jacqueline) Modified text on 12/28/2018 (mm). (Entered: 12/27/2018)
50 Correction of Docket Entry by Clerk re 47 Joint MOTION for Extension of Time to File Response/Reply. **Filing attorney did not enter additional filer(s) in the blank text box on the docket text screen. Clerk added filer(s).** (mm) (Entered: 12/28/2018)
51 Supplement to Memorandum in Support of 45 MOTION for Summary Judgment by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Walters, Christopher) Modified text on 12/31/2018 (sbs). (Entered: 12/28/2018)
52 Supplement to Memorandum in Support re 45 MOTION for Summary Judgment by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Walters, Christopher) Modified text on 12/31/2018 (sbs). (Entered: 12/28/2018)
53 ORDER granting 47 Motion for Extension of Time to File Oppositions as to 40 MOTION for Partial Summary Judgment as to SMG, 41 MOTION for Partial Summary Judgment as to the Board of Commissioners of the Louisiana Stadium and Exposition District and Kyle France, 45 MOTION for Summary Judgment. The respective oppositions to the pending cross-Motions for Summary Judgment no later than January 9, 2019. Signed by Judge Susie Morgan. (bwn) (Entered: 01/02/2019)

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01/10/2019 01/10/2019 01/11/2019 01/11/2019

54 ORDER: The court having been advised of defendants' settlement position, and to save plaintiff the time and expense of attending what appears to be a fruitless exercise, IT IS ORDERED that the settlement conference previously scheduled for January 8, 2019, is hereby CANCELLED, to be reset when all parties agree that they are prepared to discuss a possible compromise. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 1/7/2019. (mmv) (NEF: HON. SUSIE MORGAN) (Entered: 01/07/2019)
55 EXPARTE/CONSENT MOTION for Leave to Exceed Page Limitation to File Opposition to 45 Motion for Summary Judgment by Nancy Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Proposed Pleading Exhibit, # 4 Proposed Pleading Exhibit, # 5 Proposed Pleading Exhibit)(Hammack, Jacqueline) Modified text on 1/10/2019 (sbs). (Entered: 01/09/2019)
56 RESPONSE/MEMORANDUM in Opposition filed by SMG re 40 MOTION for Partial Summary Judgment as to SMG. (Attachments: # 1 Statement of Contested/Uncontested Facts)(Walters, Christopher) (Entered: 01/09/2019)
57 RESPONSE/MEMORANDUM in Opposition filed by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France re 41 MOTION for Partial Summary Judgment as to the Board of Commissioners of the Louisiana Stadium and Exposition District and Kyle France. (Attachments: # 1 Statement of Contested/Uncontested Facts)(Walters, Christopher) (Entered: 01/09/2019)
58 ORDER granting 55 Motion for Leave to Exceed Page Limitation. Signed by Judge Susie Morgan on 1/10/19. (sbs) (Entered: 01/10/2019)
59 RESPONSE/MEMORANDUM in Opposition filed by Nancy Smith re 45 MOTION for Summary Judgment. (Attachments: # 1 Response to Statement of Facts, # 2 Plaintiff's Statement of Facts, # 3 Exhibit)(sbs) (Entered: 01/10/2019)
60 EXPARTE/CONSENT Unopposed MOTION to Dismiss With Prejudice by Nancy Smith. (Attachments: # 1 Proposed Order)(Hammack, Jacqueline) Modified text on 1/11/2019 (sbs). (Entered: 01/11/2019)
61 ORDER re 57 Response/Memorandum in Opposition to Motion, filed by Kyle France, Board of Commissioners of the Louisiana Stadium and Exposition District, 56 Response/Memorandum in Opposition to Motion filed by SMG - IT IS ORDERED that, pursuant to Federal Rule of Civil Procedure 56(e)(1), Defendants file amended oppositions to Plaintiff's statements of uncontested facts by

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Wednesday, January 16, 2019. When denying a fact in Plaintiff's statements of uncontested facts, Defendants must include specific references to documents in the record that support their denial of the fact. It is insufficient to state only that a fact is "denied as written" without citations to record evidence. Signed by Judge Susie Morgan.(bwn) (Entered: 01/11/2019)
62 ORDER granting 60 Motion to Dismiss with Prejudice. IT IS HEREBY ORDERED that the claims herein are hereby dismissed with prejudice. Signed by Judge Susie Morgan. (bwn) (Entered: 01/14/2019)
63 Responses to Plaintiff's Statement of Uncontroverted Material Facts by SMG re 56 Response/Memorandum in Opposition to Motion. (Walters, Christopher) Modified text on 1/17/2019 (sbs). (Entered: 01/16/2019)
64 Responses to Plaintiff's statement of Uncontroverted Material Facts by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France re 57 Response/Memorandum in Opposition to Motion. (Walters, Christopher) Modified text on 1/17/2019 (sbs). (Entered: 01/16/2019)
65 EXPARTE/CONSENT MOTION for Leave to File Reply Memorandum in Support of 45 MOTION for Summary Judgment by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Proposed Pleading Exhibit)(Walters, Christopher) Modified text on 1/23/2019 (sbs). (Entered: 01/23/2019)
66 ORDER granting 65 Motion for Leave to File Reply Memorandum in Support of 45 MOTION for Summary Judgment. Signed by Judge Susie Morgan. (bwn) (Entered: 01/24/2019)
67 REPLY to Response to Motion filed by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG re 45 MOTION for Summary Judgment. (Attachments: # 1 Exhibit)(bwn) (Entered: 01/24/2019)
68 ORDER - The pretrial conference currently set for Thursday, 1/31/2019 at 1:00 p.m. is CONTINUED to Friday, 2/1/2019 at 10:00 a.m. Signed by Judge Susie Morgan on 1/28/19.(sbs) (Entered: 01/28/2019)
69 Proposed Pretrial Order by Nancy Smith, SMG, Kyle France, Board of Commissioners of the Louisiana Stadium and Exposition District.(Bizer, Andrew) Modified filers 1/29/2019 (sbs). (Entered: 01/28/2019)

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02/14/2019

70 Minute Entry for proceedings held before Judge Susie Morgan: Final Pretrial Conference held on 2/1/2019. IT IS ORDERED that the parties comply with the pre-trial deadlines as set forth herein. (Attachments: # 1 Pretrial Notice Form) (bwn) (Entered: 02/01/2019)
71 ORDER: As ordered by Judge Morgan, Record Doc. No. 70 , a Settlement Conference is set in this case on FEBRUARY 7, 2019, at 3:30 p.m. before Magistrate Judge Joseph C. Wilkinson, Jr., 500 Poydras Street, Hale Boggs Building, Room B409, New Orleans, Louisiana. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 2/4/2019.(mmv) (NEF: HON. SUSIE MORGAN) (Entered: 02/04/2019)
72 Supplemental Memorandum filed by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG, in Support of 45 MOTION for Summary Judgment. (Attachments: # 1 Exhibit 7, # 2 Exhibit 8)(Walters, Christopher) (Entered: 02/07/2019)
73 Final Witness List by Nancy Smith. (Hammack, Jacqueline) (Entered: 02/07/2019)
74 Final Witness List by Board of Commissioners of the Louisiana Stadium and Exposition District, Kyle France, SMG. (Walters, Christopher) (Entered: 02/07/2019)
75 Minute Entry for proceedings held before Magistrate Judge Joseph C. Wilkinson, Jr: A settlement conference was conducted on this date before the undersignedmagistrate judge. No settlement was reached. (mmv) (NEF: HON. SUSIE MORGAN) (Entered: 02/08/2019)
76 Supplemental Memorandum on the Source of LSED'S Funding filed by Nancy Smith re 45 MOTION for Summary Judgment. (Bizer, Andrew) Modified text on 2/11/2019 (sbs). (Entered: 02/11/2019)
77 ORDER - Due to a conflict in the Court's calendar, and with the consent of the parties; IT IS ORDERED that the trial in this matter currently set for February 25, 2019 is CONTINUED to March 11, 2019, at 9:00 a.m. IT IS FURTHER ORDERED that all deadlines leading up to the trial, beginning with the summary of what each party intends to prove, are amended as shown herein. The parties are to adhere to the amended deadlines. Signed by Judge Susie Morgan on 2/11/2019. (Attachments: # 1 Pretrial Notice Form)(bwn) (Entered: 02/12/2019)
79 Minute Entry for proceedings held before Judge Susie Morgan: Two telephone status conferences were held on February 14, 2019. Plaintiff will move for leave to substitute as a Defendant the Louisiana Stadium and Exposition District in place of the Board of

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Commissioners of the Louisiana Stadium and Exposition District by no later than Friday, February 15, 2019 at 5:00 p.m. Plaintiff will file a motion to expedite consideration of her motion for leave to substitute by no later than Friday, February 15, 2019 at 5:00 p.m. (clc) (Entered: 02/15/2019)
78 EXPARTE/CONSENT MOTION to Expedite 81 Motion to Substitute Party. Louisiana Stadium and Exposition District to be substituted in place of The Board of Commissioners of the Louisiana Stadium and Exposition District by Nancy Smith. (Attachments: # 1 Proposed Order, # 2 Proposed Pleading, # 3 Memorandum in Support, # 4 Notice of Submission)(Bizer, Andrew) Modified text on 2/19/2019 (sbs). (Entered: 02/15/2019)
80 ORDER granting 78 Motion to Expedite. Defendants will file an opposition to Plaintiff's Motion to Substitute Party by no later than Tuesday, February 19, 2019, at 12:00 p.m. Signed by Judge Susie Morgan on 2/18/19.(tsf) (Entered: 02/18/2019)
81 MOTION to Substitute Party. Louisiana Stadium and Exposition District to be substituted in place of Board of Commissioners of the Louisiana Stadium and Exposition District by Nancy Smith. Motion(s) will be submitted on 3/6/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission) (tsf) (Entered: 02/19/2019)
82 ORDER granting 81 Motion to Substitute Party. IT IS ORDERED that motion for leave to substitute as a Defendant the Louisiana Stadium and Exposition District in place of the Board of Commissioners of the Louisiana Stadium and Exposition District, filed by Plaintiff Nancy Smith, be and hereby is GRANTED. The Louisiana Stadium and Exposition District is hereby SUBSTITUTED as a Defendant in this action in place of the Board of Commissioners of the Louisiana Stadium and Exposition District. Signed by Judge Susie Morgan. (bwn) (Entered: 02/20/2019)
83 EXPARTE/CONSENT MOTION to Enroll Additional Counsel of Record Angela J. O'Brien by Kyle France, Louisiana Stadium and Exposition District, SMG. (Attachments: # 1 Proposed Order)(Walters, Christopher) Modified text on 3/4/2019 (sbs). (Entered: 03/01/2019)
84 Suggested Findings of Fact & Conclusions of Law by Nancy Smith. (Bizer, Andrew) (Entered: 03/01/2019)
85 Proposed Findings of Fact & Conclusions of Law by Kyle France, Louisiana Stadium and Exposition District, SMG. (Walters, Christopher) (Entered: 03/01/2019)

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86 PRETRIAL MEMORANDUM by Kyle France, Louisiana Stadium and Exposition District, SMG. (Walters, Christopher) (Entered: 03/01/2019)

ORDER AND REASONS - IT IS ORDERED that the [40, 41]

87

motions for summary judgment, filed by Plaintiff Nancy Smith be

and hereby are GRANTED IN PART with respect to Plaintiff's

standing to seek injunctive relief under Title II of the ADA against

Defendants the Louisiana Stadium and Exposition District and Kyle

France, sued in his official capacity as Chairman of the Board of

Commissioners of the Louisiana Stadium and Exposition District, and

under Title III of the ADA against Defendant SMG. IT IS FURTHER

ORDERED that the 45 motion for summary judgment, filed by

Defendants SMG, the Louisiana Stadium and Exposition District, and

France, be and hereby is DENIED IN PART with respect to

Plaintiff's standing to sue for injunctive relief. Signed by Judge Susie

Morgan. (bwn) (Entered: 03/06/2019)

ORDER - IT IS ORDERED that the 45 motion for summary

88

judgment, filed by Defendants SMG, the Louisiana Stadium and

Exposition District, and Kyle France, in his official capacity as

Chairman of the Board of Commissioners of the Louisiana Stadium

and Exposition District, be and hereby is GRANTED IN PART.

Judgment is entered in favor of the Louisiana Stadium and Exposition

District with respect to the claims against it for damages and

injunctive relief and in favor of France with respect to the claims

against him for damages. Signed by Judge Susie Morgan.(bwn)

(Entered: 03/06/2019)

89 ORDER granting 83 Motion to Enroll Attorney Angela J. O'Brien as Additional Counsel of Record for Kyle France, Louisiana Stadium and Exposition District, and SMG. Signed by Judge Susie Morgan. (bwn) (Entered: 03/06/2019)

ORDER AND REASONS - IT IS ORDERED that the 45 motion for

90

summary judgment, filed by Defendants SMG, the Louisiana

Stadium and Exposition District, and Kyle France, in his official

capacity as Chairman of the Board of Commissioners of the

Louisiana Stadium and Exposition District, be and hereby is

GRANTED IN PART. The Louisiana Stadium and Exposition

District is entitled to sovereign immunity on Plaintiff's claims for

damages and injunctive relief against it under Title II of the

Americans with Disabilities Act. France is entitled to sovereign

immunity on Plaintiff's claim for damages against him under Title II

of the Americans with Disabilities Act, but not on Plaintiff's claim for

injunctive relief against him under Title II of the Americans with

Disabilities Act. Signed by Judge Susie Morgan.(bwn) (Entered:

03/07/2019)

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ORDER AND REASONS - IT IS ORDERED that the remaining

91

portions of the [40, 41, 45] cross-motions for summary judgment,

filed by Plaintiff Nancy Smith and Defendants SMG and Kyle

France, in his official capacity as Chairman of the Board of

Commissioners of the Louisiana Stadium and Exposition District, be

and hereby are DENIED. Signed by Judge Susie Morgan.(bwn)

(Entered: 03/07/2019)

92 PRETRIAL ORDER. Signed by Judge Susie Morgan.(bwn) (Entered: 03/11/2019)

Minute Entry for proceedings held before Judge Susie Morgan:

93

Bench Trial held and completed on 3/11/2019. (Court Reporter Mary

Thompson.) (bwn) (Entered: 03/11/2019)

94 Trial Exhibit List. (bwn) (Entered: 03/11/2019)

95 Original Trial Exhibits for trial held on March 11, 2019 before Judge Susie Morgan. NOTE: This document will only be accessible to the attorneys in the case. The general public will NOT be able to view this document. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 15)(bwn) (Entered: 03/26/2019)

FINDINGS OF FACT AND CONCLUSIONS OF LAW - The Court

96

finds that Plaintiff Nancy Smith is entitled to recover from Defendant

SMG $20,000 in damages for emotional distress. The Court further

finds Plaintiff is entitled to injunctive relief, attorneys' fees, and costs

against SMG and against Defendant Kyle France, in his official

capacity as Chairman of the Board of Commissioners of the

Louisiana Stadium and Exposition District. The Court will enter a

judgment to that effect by separate order. Parties to further comply as

stated herein. Signed by Judge Susie Morgan on 5/14/2019.(sbs)

(Entered: 05/14/2019)

97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses by Nancy Smith. Motion(s) will be submitted on 6/19/2019. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Proposed Order, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit)(Bizer, Andrew) (Main Document 97 replaced on 5/22/2019) (sbs). Modified text on 5/22/2019 (sbs). (Entered: 05/22/2019)

98 Correction of Docket Entry by Clerk re 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses. **Motion contained an error. Corrected motion subsequently provided to clerk. Clerk

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replaced motion with corrected version. No further action necessary.** (sbs) (Entered: 05/22/2019)
99 Correction of Docket Entry by Clerk re 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses. **This motion should have been referred to the Magistrate Judge, Joseph C. Wilkinson, Jr. Clerk took corrective action and referred the motion and reset the submission date for 6/19/2019.** (sbs) (Entered: 05/23/2019)
100 ORDER - The 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses filed by Nancy Smith, be and hereby is REFERRED to the United States Magistrate Judge. FURTHER ORDERED that the motion be and hereby is RESET FOR SUBMISSION on 6/19/2019. Signed by Judge Susie Morgan on 5/24/2019.(sbs) (Entered: 05/24/2019)
101 EXPARTE/CONSENT MOTION to Continue Submission re 97 Motion to Fix Attorney' Fees, Costs, and Other Litigation Expenses by Kyle France, SMG. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Order)(Walters, Christopher) Modified text on 6/12/2019 (sbs). (Entered: 06/11/2019)
102 MOTION for Leave to File Proposed Order Regarding Injunctive Relief by Nancy Smith. Motion(s) will be submitted on 7/10/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Proposed Pleading)(Bizer, Andrew) Modified text on 6/12/2019 (sbs). (Entered: 06/12/2019)
103 ORDER GRANTING 101 MOTION to Continue Submission Date. The submission date for Plaintiffs 97 MOTION to Fix Attorneys' Fees, Costs, and Other Litigation Expenses is now set for submission on 6/26/2019. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/12/2019.(jls) (Entered: 06/12/2019)
104 MOTION for Extension of Time by Kyle France, SMG. Motion(s) will be submitted on 7/10/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Walters, Christopher) Modified text on 6/14/2019 (sbs). (Entered: 06/13/2019)
105 ORDER - The parties' deadline for filing the joint proposed consent judgment be and hereby is EXTENDED. The parties must meet and confer about the appropriate injunctive relief by 6/21/2019. The parties must submit the proposed consent judgment by no later than 6/28/2019 at 5:00 p.m., explaining the parts on which agree and the parts on which they disagree. Signed by Judge Susie Morgan on 6/13/2019.(sbs) (Entered: 06/14/2019)

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106 ORDER - The 104 Motion for Extension of Deadlines is DENIED AS MOOT. Signed by Judge Susie Morgan on 6/14/2019. (sbs) (Entered: 06/14/2019)
107 RESPONSE/MEMORANDUM in Opposition filed by Kyle France, SMG re 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses. (Walters, Christopher) (Entered: 06/18/2019)
108 ORDER - The 102 Motion for Leave to File Proposed Order Regarding Injunctive Relief is DENIED AS MOOT. Signed by Judge Susie Morgan on 6/19/2019. (sbs) (Entered: 06/19/2019)
109 EXPARTE/CONSENT MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' 97 to Fix Attorney' Fees, Costs, and Other Litigation Expenses, filed by All Plaintiffs. Motion(s) referred to Joseph C. Wilkinson, Jr. (Attachments: # 1 Proposed Pleading, # 2 Proposed Pleading Exhibit, # 3 Proposed Order)(Bizer, Andrew) Modified text on 6/21/2019 (sbs). (Entered: 06/20/2019)
110 Correction of Docket Entry by Clerk re 109 MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' 97 MOTION to Fix Attorneys' Fees, Costs, and Other Litigation Expenses. **Filing attorney selected incorrect event. Correct event is 'Motion for Leave to File Document'. Clerk took corrective action by changing the event, modifying the docket text, and referring the motion to the Magistrate Judge. No further action necessary.** (sbs) (Entered: 06/21/2019)
111 ORDER granting 109 Motion for Leave to File Reply to Defendants Opposition to Plaintiffs Motion to Determine Attorneys Fees and Costs. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 6/24/2019. (caa) (Entered: 06/24/2019)
112 REPLY to Response to Motion filed by Nancy Smith re 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses. (Attachments: # 1 Exhibit A)(caa) (Entered: 06/24/2019)
113 **FILED IN ERROR- See Rec. Doc. #114** Response/Reply by Kyle France, SMG to 105 Order, (Walters, Christopher) Modified on 6/28/2019 (clc). (Entered: 06/28/2019)
114 Response to Court's 105 Order by Kyle France, SMG. (Attachments: # 1 Exhibit)(Walters, Christopher) Modified text on 7/1/2019 (sbs). (Entered: 06/28/2019)
115 MOTION for Leave to Enter Judgment for Injunctive Relief by Nancy Smith. Motion(s) will be submitted on 7/24/2019. (Attachments: # 1 Memorandum in Support, # 2 Proposed Pleading, # 3 Notice of Submission, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit

07/03/2019 07/03/2019
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C, # 7 Exhibit D, # 8 Exhibit E)(Bizer, Andrew) Modified text on 7/1/2019 (sbs). (Entered: 06/28/2019)
116 ORDER GRANTING IN PART 115 MOTION for Leave to Enter Judgment for Injunctive Relief filed by Nancy Smith. The Court will enter a judgment for injunctive relief by separate order. The parties are reminded that, unless the Court orders otherwise, a final judgment for an injunction is not stayed while an appeal is pending. Signed by Judge Susie Morgan on 7/3/2019.(sbs) (Entered: 07/03/2019)
117 JUDGMENT - ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant SMG on Smith's claim under the Louisiana Human Rights Act in the amount of $20,000 in damages for emotional distress. FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, on Smith's claim for injunctive relief under Title II of the Americans with Disabilities Act. FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant SMG on Smith's claim for injunctive relief under Title III of the ADA. FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants SMG and Kyle France, in his official capacity, shall comply as further outlined herein. Signed by Judge Susie Morgan on 7/3/2019.(sbs) (Entered: 07/03/2019)
118 AMENDED JUDGMENT - ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant SMG on Smith's claim under the Louisiana Human Rights Act in the amount of $20,000 in damages for emotional distress. FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, on Smith's claim for injunctive relief under Title II of the Americans with Disabilities Act. FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendant SMG on Smith's claim for injunctive relief under Title III of the ADA. FURTHER ORDERED, ADJUDGED, AND DECREED that there be judgment in favor of Plaintiff Nancy Smith and against Defendants SMG and Kyle France, in his official capacity, on Smith's claim for attorneys' fees and costs under the ADA. FURTHER ORDERED, ADJUDGED, AND DECREED that Defendants SMG and Kyle France, in his official capacity, shall comply as further

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stated herein. Signed by Judge Susie Morgan on 7/11/2019.(sbs) (Entered: 07/11/2019)

119 NOTICE OF APPEAL by Kyle France, SMG as to 87

Order, 91

Order, 96 Findings of Fact & Conclusions of Law, 117 Judgment, 118 Amended Judgment. (Filing fee $505, receipt number 053L-7765548.) (Walters, Christopher) Modified text on 7/22/2019 (sbs). (Entered: 07/22/2019)
120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond by Kyle France, SMG. Motion(s) will be submitted on 8/7/2019. (Attachments: # 1 Memorandum in Support, # 2 Notice of Submission)(Walters, Christopher) Modified text on 7/22/2019 (sbs). (Entered: 07/22/2019)
121 RESPONSE/MEMORANDUM in Opposition filed by Nancy Smith re 120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond. (Attachments: # 1 Exhibit, # 2 Affidavit)(Bizer, Andrew) (Entered: 07/29/2019)
122 USCA Case Number 19-30575 appealed to Fifth Circuit Court of Appeals for 119 Notice of Appeal, filed by SMG, Kyle France. (sbs) (Entered: 07/30/2019)
123 APPEAL TRANSCRIPT REQUEST by Kyle France, SMG for proceedings held on 07/22/19 re 119 Notice of Appeal,. (Transcript(s) ordered) (Court Reporter Mary Thompson noticed) (O'Brien, Angela) (Entered: 08/08/2019)
124 ORDER: Plaintiff has been permitted to file a reply memorandum requesting an award of additional attorney's fees beyond the amount requested in the original motion papers for work performed after the original motion was filed. Record Doc. No. 112 . Defendants must be provided an opportunity to respond to this new request. Accordingly, IT IS ORDERED that defendants may file an opposition plaintiff's reply no later than August 15, 2019. No further briefing or submissions concerning plaintiff's pending motion for attorneys fees and costs will be permitted. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 8/9/2019.(mmv) (Entered: 08/09/2019)
125 RESPONSE/MEMORANDUM in Opposition filed by Kyle France, SMG re 109 MOTION for Leave to File Reply to Defendants' Opposition to Plaintiffs' 97 MOTION to Fix Attorneys' Fees, Costs, and Other Litigation Expenses. (Walters, Christopher) (Additional

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attachment(s) added on 8/15/2019: # 1 Exhibit A) (sbs). Modified text on 8/16/2019 (sbs). (Entered: 08/15/2019)
126 EXPARTE/CONSENT MOTION to Expedite Consideration of Defendants' 120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond, by Kyle France, SMG. (Attachments: # 1 Proposed Order)(Walters, Christopher) (Additional attachment(s) added on 8/16/2019: # 2 Exhibit A) (sbs). Modified text on 8/16/2019 (sbs). (Entered: 08/15/2019)
127 Correction of Docket Entry by Clerk re 125 Reply to Response to Motion. **Exhibit A was not attached at the time of filing. Exhibit subsequently provided to the Clerk and attached to the entry. (See attached). No further action necessary** (sbs) (Entered: 08/15/2019)
128 Correction of Docket Entry by Clerk re 126 MOTION to Expedite Consideration of Defendants' 120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond. **Exhibit A was not attached to the motion at the time of filing. Exhibit was subsequently provided to Clerk and at the request of filing attorney, attached to R. Doc. 125, which was incorrect. Clerk attached Exhibit A to R. Doc. 125, in error. Clerk has correctly attached Exh. A to R. Doc. 126. See attached.** (sbs) (Entered: 08/16/2019)
129 MOTION For Contempt by Nancy Smith. Motion(s) will be submitted on 9/4/2019. (Attachments: # 1 Memorandum in Support, # 2 Affidavit, # 3 Notice of Submission)(Bizer, Andrew) (Entered: 08/19/2019)
130 ORDER denying 120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond filed by SMG, Kyle France. Defendants are ORDERED to file a supersedeas bond in the amount of $20,000, plus 20% of that amount, for approval of the Court on or before August 23, 2019 at 5:00 p.m. Upon the Court's approval of the bond, execution on the judgment will be stayed with respect to the monetary award and the injunction. Signed by Judge Susie Morgan on 8/20/2019.(sbs) (Entered: 08/20/2019)
131 EXPARTE/CONSENT MOTION to Approve Supersedeas Bond by Kyle France, SMG. (Attachments: # 1 Proposed Order, # 2 Exhibit Supersedeas Bond)(O'Brien, Angela) Modified on 8/23/2019 to edit docket text (bwn). (Entered: 08/22/2019)
132 APPEAL TRANSCRIPT of Bench Trial held on March 11, 2019 before Judge Susie Morgan. Court Reporter/Recorder Mary

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Thompson, Telephone number 504-589-7783. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Recorder before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Parties have 21 days from the filing of this transcript to file with the Court a Redaction Request. Release of Transcript Restriction set for 11/20/2019. (rsg) (Entered: 08/22/2019)
133 ORDER granting 131 Motion to Approve Supersedeas Bond. IT IS FURTHER ORDERED that the Supersedeas Bond filed by Defendants, SMG and Kyle France, is hereby approved and that execution upon the Order entering Judgment in favor of Nancy Smith dated July 11, 2019 is hereby stayed, including the monetary award and injunction, pending disposition of Defendants' appeal to the United State Court of Appeals for the Fifth Circuit. Signed by Judge Susie Morgan on 8/22/2019. (Attachments: # 1 Supersedeas Bond) (bwn) (Entered: 08/23/2019)
134 ORDER re 126 MOTION to Expedite Consideration of Defendants' 120 MOTION to Stay Injunction and Execution of Judgment Pending Appeal Without Security or in the Alternative, Motion to Set a Reasonable Supersedeas Bond - IT IS ORDERED that the motion to expedite, filed by Defendants SMG and Kyle France, be and hereby is DENIED AS MOOT. Signed by Judge Susie Morgan.(bwn) (Entered: 08/23/2019)
135 Electronic Record on Appeal Access Granted to Christopher Neal Walters, Angela J. O'Brien re 119 Notice of Appeal,. USCA Case Number 19-30575. Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default-source/forms/instructionsfor-electronic-record-download-feature-of-cm.pdf (adp) (Entered: 08/28/2019)
136 ORDER denied as moot 129 Motion for Contempt. Signed by Judge Susie Morgan on 8/28/2019. (sbs) (Entered: 08/28/2019)
137 FINDINGS AND RECOMMENDATIONS re 97 MOTION to Fix Attorney's Fees, Costs, and Other Litigation Expenses filed by Nancy Smith. IT IS RECOMMENDED that Defendants, Kyle France, in his official capacity as chief executive of the Board of Commissioners of the Louisiana Stadium and Exposition District; and SMG, be ordered to pay to plaintiff, Nancy Smith, $58,358.62 in reasonable Attorneys fees and $1,307.75 in recoverable costs, all as reflected above, for a total award of $59,666.37. Objections to R&R due by 9/19/2019. Signed by Magistrate Judge Joseph C. Wilkinson, Jr on 9/5/2019. (NEF: Sect E)(caa) (Entered: 09/05/2019)
138 ORDER - The Court hereby approves the 137 Findings and Recommendations of the United States Magistrate Judge and adopts

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it as its opinion in this matter. HEREBY ORDERED that Plaintiff's 97 MOTION to Fix Attorney' Fees, Costs, and Other Litigation Expenses is GRANTED IN PART AND DENIED IN PART. Defendants, SMG and Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, must pay to Plaintiff, Nancy Smith, the amount of $58,358.62 in reasonable attorney's fees and $1,307.75 in costs, for a total amount of $59,666.37. Signed by Judge Susie Morgan on 10/1/2019.(sbs) (Entered: 10/01/2019)
139 Electronic Record on Appeal Access Granted to Andrew David Bizer and Garret Scott DeReus re 119 Notice of Appeal,. USCA Case Number 19-30575. Instructions for access are posted on http://www.ca5.uscourts.gov/docs/default-source/forms/instructionsfor-electronic-record-download-feature-of-cm.pdf (as) (Entered: 10/16/2019)

PACER Service Center Transaction Receipt

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PACER Login:

CRClearinghouse Client Code: Harrington

Description:

Docket Report

Search Criteria:

2:17-cv-07267SM

Billable Pages: 15

Cost:

1.50

Exempt flag: Not Exempt

Exempt reason: Not Exempt

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

NANCY SMITH, Plaintiff

CIVIL ACTION

VERSUS

NO. 17-7267

BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM AND EXPOSITION DISTRICT, ET AL.,
Defendants

SECTION: “E” (1)

FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff Nancy Smith brings suit against Defendant SMG and Defendant Kyle France in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District (“LSED”). Plaintiff brings claims under (1) Title II of the ADA against France, in his official capacity, for injunctive relief;1 (2) Title III of the Americans with Disabilities Act (“ADA”) against SMG for injunctive relief; and (3) the Louisiana Human Rights Act (“LHRA”)2 against SMG for damages. On her claims for injunctive relief, Plaintiff seeks an injunction requiring Defendants to do the following: (1) train SMG staff members on SMG’s policy that gives priority for elevator use to
patrons with disabilities over other patrons and SMG employees, (2) adopt a written policy and train employees on the policy to require that, when
a wheelchair user with a ticket for a conventional seat objects to or indicates a

1 The Court has found the LSED, which previously was named as a Defendant, is entitled to sovereign immunity on Plaintiff’s claims against it. R. Doc. 90. The Court found France, sued in his official capacity, is entitled to sovereign immunity on Plaintiff’s damages claim against him. Id. Under Ex parte Young, France is not entitled to sovereign immunity on Plaintiff’s claim against him for injunctive relief. 2 LA. REV. STAT. § 51:2231 et seq. The parties also refer to this act as the Louisiana Commission on Human Rights or the “LCHR.”
1

desire not to sit in the conventional seat, the SMG employee affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat, and (3) adopt a written policy and train employees on the policy to require that, when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome (“Superdome”). On her damages claim, Plaintiff seeks nominal and compensatory damages. Plaintiff also seeks attorney’s fees and costs under the ADA3 and the LHRA.4 The matter was tried before the Court, sitting without a jury, on Monday, March 11, 2019.5 The Court heard testimony from Nancy Smith, Braeden Smith, Brian Brunet, and Laurie Ducros.6 The Court admitted into evidence Exhibits 1–12 and 15.7 Having considered the testimony and evidence at trial, the arguments of counsel, and the applicable law, the Court now issues the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure. To the extent any findings of fact may be construed as conclusions of law, the Court adopts them as such. To the extent any conclusions of law may be construed as findings of fact, the Court adopts them as such.
3 42 U.S.C. § 12205. 4 LA. REV. STAT. § 52:2264. 5 R. Doc. 93 (minute entry). 6 Id. 7 Id.
2

FINDINGS OF FACT The facts found by the Court are largely not in dispute. Plaintiff offered her own testimony and the testimony of her daughter Braeden Smith regarding Plaintiff’s experience leading up to and during the Guns N’ Roses concert at the Superdome on July 31, 2016. The testimony of Braeden Smith was consistent in all material respects with the testimony of Plaintiff Nancy Smith. Defendants did not offer testimony contradicting the testimony of Plaintiff and her daughter. Defense witnesses Brian Brunet, the SMG Senior Assistant Box Office Manager, and Laurie Ducros, the SMG Guest Services Manager, testified as to SMG’s policies regarding the ticket sales, staff training, and accommodations for patrons with disabilities. Plaintiff did not offer testimony contradicting the testimony of the defense witnesses. Plaintiff Nancy Smith is an amputee who had a complete hip disarticulation of her left leg performed in 2015. Her daughter Braeden Smith bought tickets for herself and her mother via telephone for a Guns N’ Roses concert to take place at the Superdome on July 31, 2016. Braeden Smith believed she had called the Superdome Box Office, but she in fact called Box Office Ticket Center LLC. The Box Office Ticket Center LLC customer service representative who sold Braeden Smith the tickets assured her the seats were wheelchairaccessible. Box Office Ticket Center LLC is a third-party ticket vendor that sells tickets on the secondary ticket market. It purchases tickets from the SMG box office or from Ticketmaster LLC, which is the only authorized third-party vendor for Superdome tickets. Box Office Ticket Center, LLC then resells the tickets at a profit. On July 31, 2016, Plaintiff Nancy Smith arrived at the Superdome with her daughter Braeden Smith prior to the start of the concert. They entered the Superdome.
3

Neither Nancy Smith nor Braeden Smith testified as to the gate they used to enter the Superdome. Upon entering the Superdome, they were directed to turn left to take the elevators down to their ground floor seats. Plaintiff and her daughter turned left as directed, but SMG staff denied them access to the three elevators they encountered in that area. SMG staff did not inform Nancy Smith and Braeden Smith as to why they could not use these elevators. Nancy Smith and Braeden Smith eventually were taken to the ground floor, on a freight elevator, by a person who appeared to be a member of the backstage crew.
When Nancy Smith and Braeden Smith reached the ground floor, they spoke to an SMG staffer who guided them to their ticketed seats. They discovered the seats were not wheelchair-accessible. Plaintiff told the staffer she had purchased wheelchair-accessible seats and that she could not sit in the conventional seat for safety reasons. She asked the staffer to remove the existing seat in the space, which was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer refused and did not offer Plaintiff the alternative of switching to a wheelchair-accessible seat. Plaintiff believed she had no option but to transfer out of her wheelchair and into the conventional seat if she was going to see the concert. The SMG staffer then took Plaintiff’s wheelchair to the left side of the stage and placed it behind a barricade, out of Plaintiff’s line of sight.
During the concert, Plaintiff felt anxious, uneasy, and vulnerable because she was not allowed to sit in her wheelchair and because she could not see where it was stored. Plaintiff could not see the band on stage because her view was obstructed by others who were standing. She had been excited about attending the concert, but the experience was ruined for her. After the concert, Plaintiff’s wheelchair was returned to her.
4

Laurie Ducros, the SMG Guest Services Manager, offered testimony about SMG policies. Under SMG policy, when an elevator at a concert leads to a private or restricted area on the ground level, the elevator is restricted. Elevator operators are instructed not to take any patrons to the ground level in restricted elevators. They are instructed to direct patrons to the next available elevator.
The elevator policy is confirmed by the SMG ADA pamphlet, introduced as Exhibit 4 at trial. According to a map of the Superdome in the pamphlet, the Superdome has 17 elevators, numbered 1–14, 2A, 7A, and 8A. Thirteen of these elevators are accessible to patrons with disabilities. The only elevators not accessible to patrons with disabilities are Elevators 5, 10, 13, and 14, which are labeled on the map as “freight only.” Elevators 3, 4, 2A, 7A, and 8A do not service the ground level. This information is confirmed by a printout from the Superdome website, which was introduced as Exhibit 7 at trial.
Superdome staff members are trained annually, prior to the beginning of the New Orleans Saints football season. A portion of the training is devoted to accessibility for disabled patrons and the requirements of the ADA. Staff members hired during the year are required to attend a new hire orientation with similar information on SMG’s ADA policies. Portions of the PowerPoint presentations SMG uses at these training sessions for new hires were introduced at trial as Exhibits 4 and 5.
It is SMG’s usual practice and policy to reserve or “hold back” from sale a certain number of ADA-compliant wheelchair-accessible seats in various areas of the Superdome for use in case a disabled patron requests to be relocated on the day of a concert. If a patron requests to transfer from a conventional seat to an accessible seat, the patron is directed to the Guest Services Desk or Guest Relations Center, where the ticket may be exchanged. The policy regarding holding back seats is posted on the Superdome website,
5

a printout of which was introduced at trial as Exhibit 7. For the Guns N’ Roses concert, SMG sold approximately sixty (60) accessible seats and reserved or “held back” approximately one hundred and fifty (150) accessible seats.
Under SMG’s ticket transfer policy, SMG staff members do not affirmatively offer wheelchair users the relocation option because SMG does not wish to assume wheelchair users who purchase tickets for conventional seats cannot use those seats. SMG staff only offer the option when a wheelchair user informs an SMG staff member he or she cannot get out of the wheelchair, cannot sit in the conventional chair, or would be uncomfortable sitting in the conventional chair.8
SMG’s policy with respect to wheelchair storage is that, when a staff member sees a wheelchair user leaving a wheelchair on the Superdome concourse or in an aisle, the staff member approaches the wheelchair user and informs the patron that the wheelchair cannot be left on the concourse or in the aisle. The staff member then offers the patron two options: either (1) to check the wheelchair at the Guest Relations Center at Gate A and be wheeled to the conventional seat by SMG staff in an SMG wheelchair or (2) to have a companion wheel the patron to his or her seat and then check the wheelchair at the Guest Relations Center. SMG staff are trained to store the wheelchairs only at the Guest Relations Center. The Superdome website states wheelchairs are available for checkout at the Guest Relations Center at Gate A.9
8 At trial, Ducros testified the policies are codified in the Team Member Playbook.” The Team Member Playbook was not provided to the Plaintiff in the course of discovery and was not admitted as an exhibit at trial. As a result, the Court does not consider it. 9 Ex. 7.
6

CONCLUSIONS OF LAW
I. Title II
Plaintiff brings a claim against Defendant Kyle France, in his official capacity as
Chairman of the Board of Commissioners of the LSED, for injunctive relief under Title II
of the ADA. Because France is sued in his official capacity as Chairman of the Board of
Commissioners of the LSED, the claim for injunctive relief against him is, in effect, a claim
for injunctive relief against the LSED.10
Title II prohibits discrimination by public entities, including the LSED.11 Title II
provides, “no qualified individual with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.”12 Title
II authorizes monetary and injunctive relief.13 The Fifth Circuit has listed the elements of
a claim under Title II as follows:
To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.’ 14
10 See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.”) (emphasis in original). 11 Title II defines “public entity” as “any State or local government [or] any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(A), (B). 12 42 U.S.C. § 12132. 13 42 U.S.C. § 12133 (incorporating remedies laid out in the Rehabilitation Act, which authorizes monetary and injunctive relief). 14 Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011)). “To recover monetary damages, a plaintiff must prove that the discrimination was intentional.” Id. (citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). Because Plaintiff does not bring a claim for monetary damages, she need not prove intentional discrimination.
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A. First Element The ADA defines “disability” as “a physical or mental impairment that
substantially limits one or more major life activities of such individual.”15 “[M]ajor life
activities include, but are not limited to, caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”16 Title II
defines as “qualified individual with a disability” as “an individual with a disability who,
with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the provision of auxiliary
aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”17 Plaintiff is a
qualified individual with a disability for purposes of Title II.
B. Second Element To establish the second element of her Title II claim, Plaintiff must show she was
“denied the benefits of services, programs, or activities” for which the LSED is responsible, or was “otherwise discriminated against” by the LSED.18
The LSED is a public entity subject to the requirements of Title II.19 Although SMG
is responsible by contract for managing the Superdome, the LSED owns the Superdome.
The regulations implementing the ADA provide Title II “applies to all services, programs,
15 42 U.S.C. § 12102(1)(A). 16 Id. at § 12102(2)(A). 17 Id. at § 12131(2). 18 Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011)). “To recover monetary damages, a plaintiff must prove that the discrimination was intentional.” Id. (citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). Because Plaintiff does not bring a claim for monetary damages, she need not prove intentional discrimination. 19 Title II defines a “public entity” as “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” 42 U.S.C. § 12131(1)(B).
8

and activities provided or made available by public entities.”20 The guidance interpreting
this section clarifies that “[a]ll governmental activities of public entities are covered, even
if they are carried out by contractors.”21 As a result, although SMG was responsible for
operations at the Guns N’ Roses concert at the Superdome, the concert is an activity for
which the LSED is responsible.
In determining whether conduct by the LSED as a public entity constitutes a denial
of benefits of services, programs, or activities or otherwise discriminates, the Court must
consult regulations promulgated by the Attorney General.22 In passing the ADA,
“Congress instructed the Attorney General to issue regulations implementing provisions
of Title II, including § 12132’s discrimination proscription.”23 As the Supreme Court has
explained,
Because the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect. We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,24 is in order; it is enough to observe that the well-reasoned views of the agencies implementing a statute constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.25
Plaintiff is a wheelchair user who was not offered the option to transfer to a
wheelchair-accessible seat. The subpart of the Title II regulations entitled “General
Requirements” includes specific requirements for ticketing, including requirements for
individuals with disabilities who purchase tickets for non-wheelchair-accessible seats on
20 28 C.F.R. § 35.102(a). 21 28 C.F.R. pt. 35, app. B. 22 See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592 (1999). 23 Id. at 591. 24 467 U.S. 837, 844 (1984); see also Wells, 460 F. App’x 303 at 312. 25 Olmstead, 527 U.S. at 597–98 (internal brackets, quotations, and citations omitted).
9

the secondary ticket market.26 The Court will address whether the LSED denied her the
benefits of the Guns ‘N Roses concert or otherwise discriminated against her by (1)
violating the regulatory provision regarding tickets sold on the secondary ticket market
or (2) deprived her of ready access to the Guns ‘N Roses concert.27
1. Regulatory Provision About Secondary Ticket Market
28 C.F.R. § 35.130(b)(7)(i) provides:
A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.
The regulations implementing Title II include a specific provision with respect to
providing access to wheelchair users who purchase tickets for non-wheelchair-accessible
seats on the secondary ticket market. 28 C.F.R. § 35.138(g)(2) provides:
If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public entity shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public entity.
This regulation was promulgated in 2010.28 The guidance to the 2010 revisions to the
regulations implementing Title II explains:
As long as there are vacant wheelchair spaces, requiring venues to provide wheelchair spaces for patrons who acquired inaccessible seats and need wheelchair spaces is an example of a reasonable modification of a policy under title II of the ADA. . . . Covered entities are not required to seat every person who acquires a ticket for inaccessible seating but needs accessible seating, and are not required to move any individual who acquires a ticket
26 In her Amended Complaint, Plaintiff does not allege a violation of this specific provision, but she alleges the violation of nearly identical provisions in the regulations implementing Title III. R. Doc. 5 at 8, ¶ 38; 9, ¶ 40. 27 In her Amended Complaint, Plaintiff enumerates various regulatory provisions she alleges were violated. Id. at 11, ¶ 52. 28 75 Fed. Reg. 56,180 (Sept. 15, 2010).
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for accessible seating but does not need it. Covered entities that allow patrons to buy and sell tickets on the secondary market must make reasonable modifications to their policies to allow persons with disabilities to participate in secondary ticket transfers. The Department believes that there is no one-size-fits-all rule that will suit all assembly areas. In those circumstances where a venue has accessible seating vacant at the time an individual with a disability who needs accessible seating presents his ticket for inaccessible seating at the box office, the venue must allow the individual to exchange his ticket for an accessible seat in a comparable location if such an accessible seat is vacant. Where, however, a venue has sold all of its accessible seating, the venue has no obligation to provide accessible seating to the person with a disability who purchased an inaccessible seat on the secondary market. Venues may encourage individuals with disabilities who hold tickets for inaccessible seating to contact the box office before the event to notify them of their need for accessible seating, even though they may not require ticketholders to provide such notice.29
The guidance explicitly adopts the holding of Independent Living Resources v.
Oregon Arena Corp.,30 the only federal court decision to address this issue. In
Independent Living, a Title III case, the court addressed in detail the method by which
wheelchair users were offered accessible seats. The court found:
On at least several occasions, wheelchair users who attempted to purchase tickets for an event were told that no wheelchair tickets were available, even though ambulatory patrons were able to purchase tickets for the same event. On other occasions, wheelchair users were “steered” to distant corners of the arena (such as Level 7) while ambulatory friends were able to purchase good tickets for the same event.31
Following a bench trial, the court in Independent Living found the ticket sale policy
“effectively preclude[d] wheelchair users from obtaining the same benefits available to
ambulatory patrons” by precluding them from “accepting a gift ticket, going to the game
with a friend who has an extra ticket, sharing a season ticket, purchasing a ticket for an
individual game from a season ticket holder, and similar options each of which is available
29 28 C.F.R. pt. 35, app. A. 30 1 F. Supp. 2d 1159, 1171 (D. Or. 1998). 31 Id. at 1169.
11

to ambulatory patrons.”32 The court stated that defendants “may not be active
participants in this secondary market, but that does not mean they can simply ignore its
existence,” particularly when it has “helped to create and to perpetuate this state of affairs
by the manner in which they have chosen to sell tickets.”33 The court ordered the following
injunctive relief:
[W]heelchair users must have the same opportunity as other patrons to use tickets acquired through the secondary market (e.g., going to the game with a friend who has an extra ticket, using a complimentary ticket obtained from an employer or family member, sharing a season ticket, purchasing a ticket through the classifieds, etc.). Accordingly, although wheelchair users are strongly encouraged to purchase tickets for wheelchair spaces when available, if an individual needing a wheelchair space arrives at a game or other event with a ticket for a conventional seat, that individual must be seated in an equivalent or better wheelchair space.34
In the instant case, Plaintiff bought her ticket from Box Office Ticket Center LLC
on the secondary ticket market. Plaintiff told the SMG staffer she had purchased a ticket
for a wheelchair-accessible seat and that she did not want to sit in the conventional seat
for safety reasons. She asked the staffer to remove the existing seat in the space, which
was a folding metal chair, to permit Plaintiff to put her wheelchair in the spot. The staffer
refused, but did not offer Plaintiff the alternative of moving to a wheelchair-accessible
seat. Title II regulations explicitly state that transferring patrons with disabilities to
wheelchair-accessible seating is a reasonable modification. Although the guidance
accompanying the regulation states “there is no one-size-fits-all rule that will suit all
assembly areas,” it also states a venue “must allow the individual to exchange [her] ticket
for an accessible seat in a comparable location if such an accessible seat is vacant.”35 In
32 Id. at 1170. 33 Id. 34 Id. at 1171. 35 28 C.F.R. pt. 35, app. A. (emphasis added).
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this case, Plaintiff was not given the option of exchanging her ticket for an accessible seat. SMG failed to make the reasonable modifications to its policies, practices, or procedures required by the Title II regulations.
Unlike in Independent Living, in which it was clear the defendant failed to modify its policies, the Court is unable to ascertain whether the SMG staffer’s actions were a result of SMG’s failure to modify its policies or the staffer’s lack of training on existing policies. Title II regulations require reasonable modifications not only to policies, but also to procedures and practices. Regardless of whether the staffer’s actions were a result of the absence of a clear policy or to a failure to train staff members on a policy, SMG failed to modify its policies, practices, and procedures to allow Plaintiff to exchange her ticket, in violation of 28 C.F.R. § 35.138(g)(2). The LSED is responsible for SMG’s failure. Plaintiff has established the second element of her Title II claim by showing that the LSED denied her the benefits of an activity for which it was responsible by violating 28 C.F.R. § 35.138(g)(2).
2. Program Accessibility As another basis for the second element of Plaintiff’s Title II claim, Plaintiff argues the LSED discriminated against her because the Guns N’ Roses concert was not readily accessible to her. 28 C.F.R. § 35.150(a) provides: A public entity shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. Failure to operate a program so that it is readily accessible to individuals with disabilities constitutes discrimination. In Greer v. Richardson Independent School District, the plaintiff could not access the bleachers at a high school football game because they were not wheelchair-
13

accessible.36 She watched the game in an accessible paved area adjacent to the bleachers.37 The Fifth Circuit explained that “the regulations do not provide any objective criteria for evaluating program accessibility. . . . [P]rogram accessibility is ultimately a subjective determination [made] by viewing the program or activity at issue in its entirety and not solely by evaluating individual elements of the facility where the program is held.”38 The court found that, even though the bleachers were not accessible to wheelchairs, the school district provided program accessibility to wheelchair users because the school district provided accommodations that allowed wheelchair users to enjoy football games.39 The court found significant the fact the plaintiff did not seek accommodations, stating, “There is a common sense aspect to determining whether a public entity has provided accommodations for a disabled individual, part of which requires the public entity be made aware of the inadequacy of the accommodations provided.”40 The court held, “when a disabled individual such as Greer attends one event at a venue she was otherwise unfamiliar with, that person does not by default gain a prima facie case of discrimination under Title II merely because she is dissatisfied with her seating location and makes no effort to ask the venue's staff as to where alternative accessible seating is located or if she and her family can be accommodated.”41
In this case, Plaintiff told an SMG staffer that she had intended to purchase a wheelchair-accessible seat and thought she had done so, because she did not want to sit in a conventional seat for safety reasons. Although she did not specifically request a
36 472 F. App’x 287, 288 (5th Cir. 2012) (unpublished). 37 Id. 38 Id. at 291–92 (emphasis added). 39 Id. at 295. 40 Id. at 296. 41 Id.
14

transfer to an accessible seat, she did request the accommodation of removing the conventional seat and putting her wheelchair in its place. Although her requested accommodation could not be granted, the SMG staffer could have otherwise accommodated her disability by offering her the option to transfer to an accessible seat. Instead, she required that Plaintiff sit in the conventional seat and took her wheelchair away from her. Unlike the plaintiff in Greer, Smith did interact with a staffer and request an accommodation. She also expressed her concern about the SMG staffer’s taking away her wheelchair. Unlike in Greer, in which the plaintiff was still able to watch the football game, Smith’s view was obstructed by standing patrons during most of the concert, and she was unable to enjoy the concert because of her anxiety about her personal safety and about the security of her wheelchair. As a result, the Court finds, when the activity is viewed in its entirety, the Guns N’ Roses concert was not readily accessible to Plaintiff. As another basis for the second element of her Title II claim, Plaintiff has shown SMG denied her ready access to the Guns N’ Roses concert.
Plaintiff also argues she was denied ready access to the Superdome elevators, which contributed to her inability to access the concert. The Court does not agree. Plaintiff testified she was denied access to three elevators, but she ultimately was taken down to the ground floor in a freight elevator by a crew member. No lack of access to elevators prevented her from accessing the Guns ‘N Roses concert.
Ducros testified that SMG restricts access to some elevators during concerts because the elevators lead to areas on the ground level that are not accessible to the public. She speculated that the elevators to which Plaintiff was denied access may have been restricted. No party introduced evidence on the record or elicited testimony about which elevators Plaintiff attempted to use and whether the public was denied access to these
15

elevators. According to the SMG ADA pamphlet and the Superdome website,42 four of the
Superdome’s 17 elevators are freight only, and another five do not service the ground level.
Eight of the Superdome’s 17 elevators service the ground level and may be used by
wheelchair users. Based on the testimony at trial, it is unclear whether Plaintiff was not
allowed to use the elevators because of her disability, because the elevators themselves
were restricted to freight only, because the elevators were off-limits entirely to the public,
or because the elevators did not service the ground level.
C. Third Element
In determining whether discrimination is by reason of disability, a plaintiff must
provide “proof that ‘the disability and its consequential limitations were known by the
entity providing public services.’”43 In Windham v. Harris Cty., Texas, the Fifth Circuit
explained this requirement as follows:
Mere knowledge of the disability is not enough; the service provider must also have understood the limitations the plaintiff experienced as a result of that disability. Otherwise, it would be impossible for the provider to ascertain whether an accommodation is needed at all, much less identify an accommodation that would be reasonable under the circumstances. Thus, because the ADA does not require clairvoyance, the burden falls on the plaintiff to specifically identify the disability and resulting limitations, and to request an accommodation in direct and specific terms. When a plaintiff fails to request an accommodation in this manner, he can prevail only by showing that the disability, resulting limitation, and necessary reasonable accommodation were open, obvious, and apparent to the entity’s relevant agents.44
In this case, Plaintiff requested an accommodation and made clear she was
concerned about sitting in a conventional seat without her wheelchair. Furthermore, the
Court finds it was open, obvious, and apparent Plaintiff was an amputee whose mobility
42 Exs. 4, 7. 43 Windham v. Harris Cty., Texas, 875 F.3d 229, 236 (5th Cir. 2017) (quoting Jin Choi v. Univ. of Tex. Health Sci. Ctr. at San Antonio, 633 F. App’x 214, 215 (5th Cir. 2015)) (internal brackets omitted). 44 Id. at 236–37 (internal quotations, ellipsis, and citations omitted) (emphasis in original).
16

was limited and that it would be difficult for her to use a conventional concert seat and needed an accommodation. As a result, Plaintiff has established the third element of her Title II claim.
Plaintiff has established the elements of her Title II claim that the LSED, through its contractor SMG, discriminated against her. Plaintiff was a qualified individual with a disability. Plaintiff was denied the benefits of the Guns ‘N Roses concert and discriminated against because the SMG did not make reasonable modifications to its ticketing policies, procedures, and practices and the concert was not readily accessible to her. The discrimination was by reason of disability, as Plaintiff’s disability and its resulting limitations were open, obvious, and apparent.
The defendant in a Title II case “may assert an affirmative defense by showing that the requested actions would constitute an undue financial or administrative burden.”45 Defendants have presented no evidence that it would fundamentally alter the nature of the program or constitute an undue burden to modify its policies to allow individuals with disabilities who purchase tickets on the secondary market who object to sitting in conventional seats have the opportunity to transfer to an accessible seat or to make activities at the Superdome readily accessible to people with disabilities. Because Plaintiff has established the elements of her claim, and Defendants have not asserted an affirmative defense, Plaintiff has established a Title II violation against France in his official capacity as Chairman of the Board of Commissioners of the LSED.
45 Greer, 472 F. App’x at 292 (citing 28 C.F.R. § 35.150(a)(3)).
17

II. Title III
Plaintiff brings a claim for injunctive relief against SMG under Title III. Title III
provides, “No individual shall be discriminated against on the basis of disability in the full
and equal enjoyment 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 of public accommodation.”46 The statute specifies that
it is discriminatory to afford people with disabilities “the opportunity to participate in or
benefit from a good, service, facility, privilege, advantage, or accommodation that is not
equal to that afforded to other individuals.”47 It also states discrimination may include:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.48
To establish a Title III violation, a plaintiff must show “(1) she has a disability; (2)
Defendant owned, leased, or operated a place of public accommodation; and (3)
Defendant denied Plaintiff full and equal enjoyment on the basis of her disability.”49
Plaintiff is a qualified individual with a disability for purposes of the ADA. SMG is
a private entity that operates the Superdome, which is a place of public accommodation.
As a result, the first two elements are satisfied. The Court turns to whether SMG denied
Plaintiff full and equal enjoyment of the concert on the basis of her disability.
46 42 U.S.C. § 12182(a). 47 Id. at § 12182(b)(1)(A)(ii). 48 Id. at § 12181(b)(2)(A)(ii). 49 Doe v. Ortho-La Holdings, LLC, No. CV 17-8948, 2018 WL 4613946, at *2 (E.D. La. Sept. 26, 2018) (Milazzo, J.); see also Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006); Burrell v. Akinola, No. 3:15-CV-3568-B, 2016 WL 3523781, at *2 (N.D. Tex. June 27, 2016); Deutsh v. Wehbe, No. 1-15-CV-702 RP, 2015 WL 6830920, at *1 (W.D. Tex. Nov. 6, 2015); United States v. Morvant, 898 F. Supp. 1157, 1161 (E.D. La. 1995).
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The regulations implementing Title III provide:
A public accommodation shall not afford an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, with the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.50 This language parallels the language of 28 C.F.R. § 35.130(b)(1)(ii), in the regulations
implementing Title II. In light of the similarities among the regulations implementing the
Titles of the ADA, the Fifth Circuit has stated it finds “no basis for distinguishing their
respective burdens of proof.”51
The Court applies the same burden of proof as under Title II. Like the regulations
implementing Title II, the regulations implementing Title III include the following
provision pertaining to seats sold on the secondary ticket market:
(i) A public accommodation shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events. (ii) If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public accommodation shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public accommodation.52 These requirements are substantially identical to the requirements of the Title II
regulations. The guidance interpreting this provision also is substantially identical to the
guidance interpreting the Title II regulation on tickets sold on the secondary ticket
50 28 C.F.R. § 36.202(b). 51 Gambrinus Co., 116 F.3d at 1059. 52 28 C.F.R. § 36.302(f)(7).
19

market. 53 For the same reasons the Court found the SMG staffer’s failure affirmatively to offer Plaintiff the option to transfer to an accessible seat violated the Title II regulations, the Court finds the staffer’s failure to offer this option also violated the Title III regulations.
As a result, with respect to the third element of Plaintiff’s Title III claim, the Court finds Plaintiff was denied the full and equal enjoyment of the Guns N’ Roses concert. However, the Court also finds Plaintiff has not shown that any difficulty she experienced accessing elevators contributed to a denial of equal enjoyment of the concert.
Plaintiff has established the elements of her Title III claim. SMG has not raised the affirmative defense of undue hardship.54 As a result, Plaintiff has established a Title III violation against SMG. III. LHRA
Plaintiff brings a claim for damages against SMG under the LHRA.55 The LHRA makes it “a discriminatory practice for a person to deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement,” on the grounds of disability.56 A “discriminatory practice in connection with public accommodations” is defined, in relevant part, as “any direct or indirect act or practice of exclusion, distinction, restriction, segregation, limitation, refusal, denial, or any other act or practice of differentiation or preference in the treatment of a person” because of disability.57 Plaintiff has a disability
53 Compare 28 C.F.R. pt. 36, app. A to 28 C.F.R. pt. 35, app. B. 54 See Gambrinus Co., 116 F.3d at 1059 (discussing undue hardship defense under Title III). 55 LA. REV. STAT. § 51:2231, et seq. Plaintiff brought the claim against all Defendants, R. Doc. 5 at 16–17, but subsequently moved to dismiss with prejudice her claim as against the LSED and France, R. Doc. 60, granted R. Doc. 62. See R. Doc. 70 at 1 (listing remaining claims). 56 LA. REV. STAT. § 51:2247. 57 Id. at § 51:2232(5).
20

within the meaning of the LHRA.58 The Superdome is a place of public accommodation
under the LHRA.59 The only remaining issue is whether SMG engaged in a
“discriminatory practice in connection with public accommodations” by engaging in “any
direct or indirect act or practice of exclusion, distinction, restriction, segregation,
limitation, refusal, denial, or any other act or practice of differentiation or preference”
because of Plaintiff’s disability.60
No other court has interpreted the LHRA’s definition of “discriminatory practice”
in the context of disability discrimination. The LHRA establishes the Louisiana
Commission on Human Rights, which has the power to “adopt, promulgate, amend, and
rescind rules and regulations to effectuate the purposes and provisions” of the LHRA,61
but the Commission has not done so. Because of this lack of governing legal authority, the
Court must determine the relevant legal standard under the LHRA. The Court notes the
LHRA’s statement of purpose expresses the following legislative intent:
58 LA. REV. STAT. § 51:2247. The LHRA provides the following definition of disability:
(3)(a) “Disability” means a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of such impairment, or being regarded as having such an impairment. For purposes of all laws which incorporate by reference, apply to, or rely for meaning upon the term disability as defined herein, the terms used in this definition have the following meanings: (i) “Physical impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine. . . . (iii) “Major life activities” includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
LA. REV. STAT. § 51:2232(3)(a). 59 The LHRA defines “place of public accommodation” as “any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public, or which is supported directly or indirectly by government funds.” LA. REV. STAT. § 51:2232(9). 60 Id. at § 51:2232(5). 61 LA. REV. STAT. § 51:2235.
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[T]o provide for execution within Louisiana of the policies embodied in the Federal Civil Rights Act of 1964, 1968, and 1972 and the Age Discrimination in Employment Act of 1967; . . . ; to safeguard all individuals within the state from discrimination because of . . . disability . . . in connection with employment and in connection with public accommodations; [and] to protect their interest in personal dignity and freedom from humiliation.62
The Louisiana Legislature passed the LHRA in 1988.63 As originally enacted, the Act did
not prohibit discrimination on the basis of disability.64 Congress enacted the ADA in
1990.65 In 1993, the Louisiana Legislature amended the LHRA to cover disability
discrimination, but did not change the LHRA’s statement of purpose to state it provided
for the execution of the policies embodied in the ADA, as well as the Civil Rights Act of
1964, 1968, and 1972 and the Age Discrimination in Employment Act.66
The Fifth Circuit has noted the LHRA is “substantively similar to Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a(a).”67 The LHRA guarantees “the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations
of a place of public accommodation, resort, or amusement.”68 Title II of the Civil Rights
Act of 1964 similarly guarantees “the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation on the
ground of race, color, religion, or national origin.”69 Title III of the ADA, which prohibits
discrimination by public accommodations operated by private entities like SMG, also
guarantees “the full and equal enjoyment of the goods, services, facilities, privileges,
62 LA. REV. STAT. at § 51:2231(A). 63 Act No. 886, 1988 La. Acts 2240 (1988) (codified as amended at LA. REV. STAT. § 51:2231 et seq.). 64 LA. REV. STAT. § 51:2247 (1988) (amended 1993). 65 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.). 66 Act No. 820, 1993 La. Acts 2143 (1993). 67 Semien v. Pizza Hut of Am., Inc., 204 F.3d 1115 (5th Cir. 1999). 68 LA. REV. STAT. § 51:2247. 69 42 U.S.C. § 2000a(a).
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advantages, or accommodations of any place of public accommodation” without
discrimination on the basis of disability.70
Based on the similarities between the LHRA and federal antidiscrimination
statutes and the Louisiana legislature’s explicit reference to federal antidiscrimination
law in the LHRA’s statement of purpose, the Court holds the LHRA incorporates the
definition of disability discrimination found in Title III of the ADA.71 The Court applies
the ADA definition to Plaintiff’s LHRA claim against SMG. For the same reasons that the
Court found SMG denied Plaintiff the full and equal enjoyment of the Guns N’ Roses
concert under Title III, the Court finds SMG denied Plaintiff the full and equal enjoyment
of the Guns N’ Roses concert, in violation of the LHRA.
IV. Relief
A. Damages
Plaintiff seeks nominal damages and compensatory damages for emotional
distress against SMG under the LHRA.
LA. REV. STAT. § 51:2264, governing remedies under the LHRA, provides:
Any person deeming himself injured by any alleged violation of the provisions of this Chapter shall have a civil cause of action in district court to enjoin further violations and to recover the actual damages sustained by him, together with the costs of court and a reasonable fee for his attorney of record, all of which shall be in addition to any other remedies contained in this Chapter.
70 42 U.S.C. § 12182(a). 71 When the Louisiana Supreme Court has not addressed an issue of state law interpretation, the Court must “make an Erie guess and determine . . . how that court would resolve the issue if presented with the same case.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003)). When making this guess, the Court “employ[s] Louisiana’s civilian methodology, whereby [it] first examine[s] primary sources of law: the constitution, codes, and statutes.” Id. The Court is confident the Louisiana Supreme Court would also reach the conclusion the LHRA incorporates the ADA’s definition of discrimination.
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Although Plaintiff is not able to recover damages from SMG under Title III, she may recover from SMG under the statutory text of the LHRA.
At trial, Plaintiff testified she felt anxiety during the concert. She felt trapped and helpless because she was concerned about what would happen if there were an emergency. She had been looking forward to the concert, but she was unable to enjoy it because of the distress she experienced. The testimony of Braeden Smith corroborates and buttresses Plaintiff’s testimony. The Court awards Plaintiff $20,000 in compensatory damages for emotional distress. Because the Court awards compensatory damages, it need not award nominal damages.
B. Injunctive Relief Plaintiff seeks injunctive relief under Title II of the ADA against France, in his
official capacity as Chairman of the Board of Commissioners of the LSED, and under Title III of the ADA against SMG. Plaintiff seeks an injunction requiring Defendants to do the following:
(1) train SMG staff members on SMG’s policy that gives priority for elevator use to patrons with disabilities over other patrons and SMG employees,
(2) adopt a written policy and train employees on the policy requiring that, when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to sit in the conventional seat, the SMG employee affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat, and
(3) adopt a written policy and train employees on the policy requiring that, when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also inform the 24

wheelchair user about the availability of wheelchair check-in and storage at the
Guest Relations Center at the Mercedes-Benz Superdome (“Superdome”).
Title II incorporates by reference the remedies of the Rehabilitation Act, which
authorizes injunctive relief.72 Title III incorporates by reference the remedies of the Civil
Rights Act of 1964, which also authorizes injunctive relief.73
The Supreme Court has established the following requirements for plaintiffs
seeking permanent injunctions in general:
According to well-established principles of equity, a plaintiff seeking a permanent injunction must satisfy a four-factor test before a court may grant such relief. A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.74
The Supreme Court has explained the balancing tests and the flexibility granted to the
district courts in determining whether to grant an injunction:
In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction. . . . The grant of jurisdiction to ensure compliance with a statute hardly suggests an absolute duty to do so under any and all circumstances, and a federal judge sitting as chancellor is not mechanically obligated to grant an injunction for every violation of law.75
The Fifth Circuit has not addressed the standard for determining entitlement to
injunctive relief under the ADA. Other circuits have found that the traditional equitable
considerations listed above apply.76 Under this test, Smith must show (1) she suffered an
72 42 U.S.C. § 12133 (incorporating by reference 29 U.S.C. § 794a). 73 42 U.S.C. § 12188(a)(1) (incorporating by reference 42 U.S.C. § 2000a-3(a)). 74 eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). 75 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982). 76 See, e.g., C.B. v. Bd. of Sch. Comm'rs of Mobile Co., AL, 261 F. App'x 192, 194 (11th Cir. 2008) (“[U]nless a statute clearly mandates injunctive relief for a particular set of circumstances, the courts are to employ traditional equitable considerations (including irreparable harm) in deciding whether to grant such relief.”) (quoting Bedrossian v. Northwestern Mem. Hosp., 409 F.3d 840, 843 (7th Cir.2005)); Midgett v. Tri-Cty.
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irreparable injury in violation of Titles II and III; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.
The Court finds the cases from the other circuits persuasive and adopts this test. As set forth below, the Court analyzes the Title II and Title III violations jointly for the first three factors and finds the factors weigh in favor of injunctive relief. As for the fourth factor, the Court analyzes the Title II claim against France in his official capacity separately from the Title III claim against SMG because injunctions against state entities implicate concerns of federalism and comity.
With respect to the first factor, the Court has found Smith has shown violations of Titles II and III. Specifically, the Court has found (1) the SMG staffer’s failure to offer Plaintiff the option to transfer to a wheelchair-accessible seat reflects SMG’s failure to modify policies, practices, and procedures to accommodate individuals who purchase non-accessible seats on the secondary ticket market, in violation of Titles II and III, and (2) the SMG staffer’s failure to offer Plaintiff a transfer and depriving her of her wheelchair denied Plaintiff equal access to and enjoyment of the program, in violation of Titles II and III.
“[F]or an injunction to issue based on a past violation, [a plaintiff] must establish that there is ‘a real or immediate threat that [s]he will be wronged again.’”77 In its order
Metro. Transp. Dist. of Oregon, 254 F.3d 846, 850 (9th Cir. 2001) (“In order to be entitled to an injunction [under Title II], Plaintiff must make a showing that he faces a real or immediate threat of substantial or irreparable injury.”). 77 Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000) (quoting Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir.1997)).
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on the parties’ cross-motions for summary judgment with respect to whether Plaintiff had standing to seek injunctive relief under Titles II and III of the ADA, the Court found Plaintiff had standing to seek injunctive relief because she has demonstrated both that she had been deterred from attending concerts because of her experience and that she still intended to return to the Superdome in the future.78 For the reasons stated in that order, the Court finds Plaintiff has demonstrated a real threat she will be wronged again, and she has established an irreparable injury.
With respect to the second factor, whether the injury may be compensated by other remedies at law, the Court has awarded monetary damages under the LHRA to compensate Plaintiff for her past emotional distress. This relief does not address the prospect of future harm to the Plaintiff. Moreover, the Court has not awarded relief for the ADA violations. “[W]hen a court of equity exercises its discretion, it may not consider the advantages and disadvantages of nonenforcement of the statute, but only the advantages and disadvantages of ‘employing the extraordinary remedy of injunction,’ over the other available methods of enforcement.”79 As a result, the Court finds Plaintiff’s injury are not adequately compensated by other remedies at law.
With respect to the third factor, the balance of hardships between Plaintiff and Defendants, the Court finds that any equitable remedies requiring modifications of policies or training programs do not present a significant hardship to Defendants.
With respect to the final factor, the public interest, the Court analyzes Plaintiff’s claim against France, in his official capacity as Chairman of the Board of the LSED, separately from her claim against SMG. For injunctive relief against France under Title
78 R. Doc. 87. 79 United States v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 497–98 (2001).
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II, in cases in which a plaintiff seeks injunctive relief against a state governmental entity, concerns of federalism and comity weigh against granting injunctive relief.80 This includes cases “against those in charge of an executive branch of an agency of state or local governments.”81
However, Title II explicitly authorizes injunctive relief against public entities.82 Courts have granted permanent injunctive relief against public entities that discriminate on the basis of disability.83 The Court has found the LSED violated Title II in a case involving access to a place of public accommodation. Although the Court is mindful of the issues of federalism and comity implicated by ordering injunctive relief against LSED, the Court finds such relief is necessary to remedy the irreparable harm Plaintiff suffered.
The Court turns to the analysis of the fourth factor, the public interest, with respect to SMG’s Title III violation. Injunctive relief against SMG to remedy its Title III violation, unlike injunctive relief against the LSED, does not implicate concerns of federalism or comity. The Court also orders injunctive relief against Defendant SMG. The parties must meet and confer to attempt to agree on the appropriate injunctive relief.
C. Attorney’s Fees and Costs “Under the ADA, a court ‘may allow the prevailing party a reasonable attorney’s
fee, including litigation expenses, and costs.’”84 “The ADA’s fee-shifting provision is
80 See Rizzo v. Goode, 423 U.S. 362, 379 (1976). 81 Id. at 380; see also Casas v. City of El Paso, 502 F. Supp. 2d 542, 550 (W.D. Tex. 2007) (denying injunctive relief against municipality because of federalism concerns); Midgett, 254 F.3d at 850 (same). 82 42 U.S.C. § 12133 (incorporating by reference 29 U.S.C. § 794a). 83 See, e.g., Chaffin, 348 F.3d 850; Indep. Living Resources, 1 F. Supp. 2d 1159. 84 Shelton v. Louisiana State, 919 F.3d 325, 328 (5th Cir. 2019) (quoting 42 U.S.C. § 12205) (internal ellipsis omitted).
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interpreted under the same legal standard as the similar provision in 42 U.S.C.
§ 1988.”85 The Supreme Court has explained attorney’s fees under § 1988 as follows:
[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought or comparable relief through a consent decree or settlement. Whatever relief the plaintiff secures must directly benefit him at the time of the judgment or settlement. . . . In short, a plaintiff “prevails” when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant’s behavior in a way that directly benefits the plaintiff.86 Similarly, the LHRA permits plaintiffs to recover “the costs of court and a reasonable fee
for his attorney of record.”87
Plaintiff is a prevailing party on her Title II claim against France, in his official
capacity, and her Title III and LHRA claims against SMG. The Court awards Plaintiff
attorneys’ fees against SMG and against France, in his official capacity. Plaintiff’s counsel
must file a motion for determination of the amount of attorneys’ fees within 10 days of
the issuance of these Findings of Fact and Conclusions of Law.
CONCLUSION
Based on the above Findings of Fact and Conclusions of Law, the Court finds that
Plaintiff Nancy Smith is entitled to recover from Defendant SMG $20,000 in damages for
emotional distress. The Court further finds Plaintiff is entitled to injunctive relief,
attorneys’ fees, and costs against SMG and against Defendant Kyle France, in his official
capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and
Exposition District. The Court will enter a judgment to that effect by separate order.
85 Id. (citing No Barriers, Inc. v. Brinker Chili’s Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001)). 86 Farrar v. Hobby, 506 U.S. 103, 111–12 (1992). 87 LA. REV. STAT. § 51:2264.
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IT IS ORDERED that the parties meet and confer to attempt to agree on the appropriate injunctive relief. The parties will file jointly, within 30 days of the issuance of these findings of fact and conclusions of law, a proposed consent judgment addressing how SMG and the Louisiana Stadium and Exposition District will ensure their policies and procedures provide that:
(1) when a wheelchair user with a ticket for a conventional seat objects to or indicates a desire not to sit in the conventional seat, an SMG employee will affirmatively offer the wheelchair user the option to exchange his or her ticket for a ticket for a wheelchair-accessible seat;
(2) when an SMG employee informs a wheelchair user that leaving a wheelchair on the Superdome concourse is not permitted, the employee also will inform the wheelchair user about the availability of wheelchair check-in and storage at the Guest Relations Center at the Mercedes-Benz Superdome; and
(3) SMG employees are adequately trained on these policies. IT IS FURTHER ORDERED that counsel for Plaintiff Nancy Smith file a motion for determination of the amount of attorneys’ fees by no later than Thursday, May 23, 2019 at 5:00 p.m. New Orleans, Louisiana, this 14th day of May, 2019.
______________________ _________ SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
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 Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 1 of 20

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

------------------------------------------------------x

NANCY SMITH,

:

an individual,

:

:

Plaintiff,

:

COMPLAINT

:

vs.

:

:

:

BOARD OF COMMISSIONERS OF THE :

LOUISIANA STADIUM AND

:

EXPOSITION DISTRICT, as the political :

entity which owns the Superdome;

:

KYLE FRANCE, in his official capacity as :

chief executive of the BOARD OF

:

COMMISSIONERS OF THE LOUISIANA :

STADUM AND EXPOSITION DISTRICT; :

SMG; LIVE NATION MARKETING, :

INC.; LIVE NATION MTOURS (USA), :

INC.; LIVE NATION WORLDWIDE, :

INC.; and BOX OFFICE TICKET

:

CENTER, LLC,

:

:

Defendants

:

------------------------------------------------------x

COMPLAINT

“I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down. God bless you all.”

- George H. W. Bush, July 26, 1990

Plaintiff, NANCY SMITH, by and through her undersigned counsel, hereby files this

Complaint and sues the BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM

AND EXPOSITION DISTRICT, as the political entity which owns the Mercedes-Benz

Superdome (hereinafter referred to as “BOARD”), for damages, injunctive and declaratory relief,

attorneys’ fees and costs pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §

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Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 2 of 20
12131 et seq. (hereinafter “Americans with Disabilities Act” or “ADA”), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (hereinafter “Rehabilitation Act”), and the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2231 et seq., (hereafter “LCHR”); sues SMG for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and the LCHR; sues KYLE FRANCE (hereinafter referred to as “FRANCE”), in his official capacity as chairperson and chief executive of the BOARD, for injunctive and declaratory relief, attorneys’ fees and costs pursuant to Title II of the ADA, the Rehabilitation Act, and the LCHR; sues LIVE NATION MARKETING, INC. (hereinafter referred to as “LIVE NATION MARKETING”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR; sues LIVE NATION MTOURS (USA), INC. (hereinafter referred to as “LIVE NATION USA”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR; sues LIVE NATION WORLDWIDE, INC. (hereinafter referred to as “LIVE NATION WORLDWIDE”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR; and sues BOX OFFICE TICKET CENTER, LLC (hereinafter referred to as “TICKET CENTER”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR, and, in support thereof, states as follows:
JURISDICTION AND PARTIES 1. This is an action for relief pursuant to Title II and Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (hereinafter referred to as “Americans with Disabilities Act” or “ADA”), the Rehabilitation Act (, 29 U.S.C. §794, et seq. (hereinafter referred to as “Rehabilitation Act”), and the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2231 et seq., (hereafter “LCHR”).
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2. This Court is vested with original jurisdiction over the Federal law claims pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. § 1367, as such claims arise out of the same case or controversy as the Federal claims.
3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because the property at issue in this lawsuit is located in the Parish of Orleans, in the Eastern District of Louisiana.
4. Plaintiff, NANCY SMITH, (hereinafter referred to as “MS. SMITH”), is a resident of Hinds County, in the State of Mississippi.
5. MS. SMITH is a qualified individual with a disability under the ADA. MS. SMITH’s left leg was amputated via a complete hip disarticulation in June, 2015, as the result of a necrotizing fasciitis infection.
6. Due to her disability, MS. SMITH is substantially impaired in several major life activities, including walking, standing, and bending, and relies primarily on a wheelchair for mobility, but occasionally utilizes crutches with or without a prothesis.
7. Upon information and belief, the BOARD is the political entity which owns the real property, improvements, and programs which are the subject of this action, to wit: the Mercedes-Benz Superdome, located at 1500 Sugar Bowl Drive, New Orleans, LA 70112 (hereinafter “Superdome” or “the Property”).
8. Upon information and belief, KYLE FRANCE, named in his official capacity as the chairman of the BOARD, is the official with chief executive power with respect to the BOARD, and bears responsibility in his official capacity as chief executive for administering, operating, and maintaining the BOARD’S public goods and services. 3

Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 4 of 20
9. Upon information and belief, SMG is a partnership issued charter number 34816755L by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana.
10. Upon information and belief, SMG is domiciled at 300 Conshohocken State Road, Ste. 450, West Conshohocken, PA 19428, with a Louisiana principal place of business located in New Orleans, Louisiana.
11. Upon information and belief, pursuant to an agreement between SMG and the BOARD, SMG operates the programs, services, accommodations which are offered at the Property.
12. Upon information and belief, LIVE NATION MARKETING is a foreign corporation issued charter number 34953709F by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana.
13. Upon information and belief, LIVE NATION MARKETING is domiciled at 3411 Silverside Rd. #104 Rodney Building, Wilmington, DE 19810, with a Louisiana principal place of business located in Mandeville, Louisiana.
14. Upon information and belief, LIVE NATION MARKETING operates and produces live music concerts and entertainment events at the Superdome, in Orleans Parish.
15. Upon information and belief, during LIVE NATION MARKETING concerts and events, LIVE NATION MARKETING operates the programs, services, and accommodations offered at the Superdome.
16. Upon information and belief, LIVE NATION USA is a foreign corporation issued charter number 40871721F by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana. 4

Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 5 of 20
17. Upon information and belief, LIVE NATION USA is domiciled at 3411 Silverside Rd. #104 Rodney Building, Wilmington, DE 19810, with a Louisiana principal place of business located in Mandeville, Louisiana.
18. Upon information and belief, LIVE NATION USA operates and produces live music concerts and entertainment events at the Superdome, in Orleans Parish.
19. Upon information and belief, during LIVE NATION USA concerts and events, LIVE NATION USA operates the programs, services, and accommodations offered at the Superdome.
20. Upon information and belief, LIVE NATION WORLDWIDE is a foreign corporation issued charter number 36798261F by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana.
21. Upon information and belief, LIVE NATION WORLDWIDE is domiciled at 3411 Silverside Rd. #104 Rodney Building, Wilmington, DE 19810, with a Louisiana principal place of business located in Mandeville, Louisiana.
22. Upon information and belief, LIVE NATION WORLDWIDE operates and produces live music concerts and entertainment events at the Superdome, in Orleans Parish.
23. Upon information and belief, during LIVE NATION WORLDWIDE concerts and events, LIVE NATION WORLDWIDE operates the programs, services, and accommodations offered at the Superdome.
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24. Upon information and belief, TICKET CENTER is a Florida limited liability company and online ticket marketplace whose internet activities include doing business in Orleans Parish, Louisiana.
25. All DEFENDANTS are obligated to comply with the ADA and the LCHR; the BOARD and FRANCE are obligated to comply with the Rehabilitation Act.
26. Upon information and belief, all DEFENDANTS are individually and/or vicariously responsible for the violations of the ADA, the LCHR, and/or the Rehabilitation Act which are at issue in this litigation. COUNT I: VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT AS TO SMG, LIVE NATION MARKETING,
LIVE NATION USA, LIVE NATION WORLDWIDE, AND TICKET CENTER 27. MS. SMITH realleges and reavers Paragraphs 1 - 26 as if they were expressly restated
herein. 28. The Property is a place of public accommodation, subject to the ADA, generally located at
1500 Sugar Bowl Drive, New Orleans, LA 70112. 29. The Superdome is a domed events and exhibition venue, located in the Central Business
District of New Orleans, Louisiana. 30. Upon information and belief, LIVE NATION MARKETING, LIVE NATION USA, and
LIVE NATION WORLDWODE organize, promote, and produce various live concerts in the Superdome, featuring a variety of popular music artists. 31. Upon information and belief, TICKET CENTER offers internet sales of tickets to live entertainment events at the Superdome.
6

Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 7 of 20
32. In addition to hosting live music concerts, the Superdome is used for other purposes such as sporting events other live entertainment events.
33. MS. SMITH enjoys visiting New Orleans to attend live entertainment events and intends to return to the Superdome to see shows and watch live events.
34. MS. SMITH has visited the Property in the past and plans to visit the Property again in the near future, as a patron, visitor, and ADA tester.
35. On or about April 2, 2016, MS. SMITH purchased a ticket through for the Guns N’ Roses: Not In This Lifetime Tour performance, which was to be held in the Superdome on July 31, 2016. Rather than rely solely on the online representations regarding the availability of accessible seating, MS. SMITH took the extra time and effort to make an inquiry by phone to ensure that the tickets she purchased would secure an accessible seat for herself as well as an adjoining seat for her companion.
36. Upon information and belief, MS. SMITH purchased accessible seats while on the phone with a TICKET CENTER customer support representative.
37. On July 31, 2015, the day of the Guns N’ Roses concert, MS. SMITH arrived at the Superdome with her companion before the show began. While navigating through the Superdome in her wheelchair, MS. SMITH and her companion experienced difficulty locating their ticketed seats, primarily due to the absence of accessible routes. Specifically, MS. SMITH and her companion were only able, after making several inquiries with event staffers, to find one elevator leading to the ground-floor level where the ticketed seats were located. Once MS. SMITH and her companion arrived on the ground-floor level, there was no accessible route from the entrance doors to the area where their ticketed seats were
7

Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 8 of 20
located. As a result, MS. SMITH’s companion had to push her wheelchair and help navigate through heavy crowds and foot traffic. 38. Upon information and belief, there were no accessible restrooms on the ground-floor level where MS. SMITH’s ticketed seats were located; only inaccessible portable toilets were provided for use by patrons. 39. The configuration of the seats on the ground-floor level did not match a diagram of the venue MS. SMITH viewed online at the time of ticket purchase. MS. SMITH’s companion had to inquire with event staff about where the ticketed seats were located, and they were directed to an ordinary (i.e., non-accessible) seat. The route to the ticketed seat was not sufficiently wide for MS. SMITH to freely navigate her wheelchair, causing her to inadvertently run over the foot of another patron, whom MS. SMITH later realized was also a wheelchair user sitting in an ordinary seat. 40. Once MS. SMITH arrived at her ticketed seat, which she specifically purchased based on TICKET CENTER’s representations that it was accessible, she saw that there was no empty floorspace designated for wheelchair users. Instead, a female event staffer instructed MS. SMITH to transfer out of her wheelchair into the ordinary seat. MS. SMITH was told by the event staffer that she would have to take MS. SMITH’s wheelchair. MS. SMITH was shocked and protested politely, and so did her companion. The event staffer responded that she had to take the wheelchair and that it would be stored with those of other wheelchair-using patrons. Feeling that she had no choice in the matter if she wanted to watch the concert, MS. SMITH reluctantly allowed her wheelchair to be taken. 41. The event staffer took MS. SMITH’s wheelchair away and stored it out of sight. Unable to see her primary means of mobility (MS. SMITH also had her crutches with her, which she
8

Case 2:17-cv-07267-SM Document 1 Filed 07/28/17 Page 9 of 20
was able to keep in her possession), MS. SMITH was fearful of her ability to escape the venue in the event of an emergency. MS. SMITH was also anxious about the procedure she should follow in the event she needed to use the restroom during the concert. MS. SMITH was additionally anxious about the possibility that her wheelchair might get stolen or damaged while it was stored away from her and out of her sight. Even though MS. SMITH had her crutches, she was not confident in her ability to ambulate in them in the dimly-lit, crowded atmosphere. 42. MS. SMITH was unable to fully relax and enjoy the concert due to her preoccupation with the fears and anxieties regarding her wheelchair being taken from her. 43. MS. SMITH’s enjoyment of the concert was further diminished by her inability to see the stage. Ambulatory individuals were also in the ground-floor seating area all around MS. SMITH’s ticketed seat. These individuals were continuously standing and dancing in ways that disrupted MS. SMITH’s line of sight to the performance area. Event staffers were also standing around in ways that blocked MS. SMITH’s line of sight. 44. Under the ADA, a public accommodation is required to modify its policies, practices, or procedures to mitigate any disparate impact upon persons with disabilities. 28 CFR § 36.302(a). 45. Public accommodations must also take affirmative measures to ensure that such persons have an equal opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations that are available from that public accommodation. 42 U.S.C. § 12182; 28 CFR §§ 36.202(b), 36.201(a), 36.203(a), 36.302(a).
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46. The ADA’s implementing regulations contain specific mandates for public accommodations regarding ticketing, accessible seating, and ticket sales. 28 CFR § 36.302(f).
47. By failing to provide an accessible route or a wheelchair space, and failing to protect the line of sight for disabled individuals in the wheelchair accessible seating area, SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE effectively precluded wheelchair users such as MS. SMITH from obtaining the same benefits available to ambulatory patrons, in violation of 28 CFR §§ 36.201(a), 36.202(b), 36.204, 36.302(a), and 36.302(f).
48. By failing to adequately describe the features of available accessible seating in enough detail to reasonably permit MS. SMITH to assess whether the location of her ticketed seats would meet her accessibility needs, LIVE NATION MARKETING, LIVE NATION USA, LIVE NATION WORLDWIDE, and/or TICKET CENTER failed to comply with the specific requirements of 28 CFR § 36.302(f).
49. At the July 31, 2016 Guns N’ Roses concert, SMITH was further discriminated against by being subjected to the humiliation, fear, and anxiety of having her primary means of mobility taken from her. There is simply no analogous experience to which an ambulatory patron could have been subjected; no adequate comparison can be made for ambulatory individuals.
50. MS. SMITH fears that if she returns to the Property, she would again be subjected to discrimination on the basis of her disability.
51. MS. SMITH intends on traveling to the Property in the near future to attend concerts, and also to see if SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE 10

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NATION WORLDWIDE have modified their discriminatory policies, practices, and procedures. 52. Upon information and belief, modification of the policies, practices, and/or procedures of SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE would provide MS. SMITH an equal opportunity to participate in, or benefit from, the goods, services, and accommodations which SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE offer to the general public. 53. Independent of her intent to return as a patron to the Property, MS. SMITH additionally intends to return as an ADA tester to determine whether the policies, practices, and procedures which are the subject of this suit have been remedied. 54. MS. SMITH has been obligated to retain the undersigned counsel for the filing and prosecution of this action. MS. SMITH is entitled to have her reasonable attorneys’ fees, costs, and expenses paid by SMG, LIVE NATION MARKETING, LIVE NATION USA, LIVE NATION WORLDWIDE, and/or TICKET CENTER pursuant to 42 U.S.C. § 12205.
COUNT II: VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AS TO THE BOARD AND FRANCE
55. MS. SMITH adopts and re-alleges the allegations contained in paragraphs 1-54 as if fully stated herein.
56. MS. SMITH continues to desire to visit the Property, but fears that she will experience serious difficulty again in light of the failures of SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE to make adequate and
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sufficient accommodations for MS. SMITH as a wheelchair user. As the owner of the Property, the BOARD and FRANCE are vicariously liable for any discrimination which occurs at the Property under the ADA by SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE. 57. The BOARD and FRANCE have failed to adopt and implement adequate and sufficient policies and procedures and are therefore vicariously liable for all policies and procedures which are used by SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE at the Property that deny MS. SMITH meaningful access to the goods, services, and programs which are offered at the Property. 58. Upon information and belief, the BOARD and FRANCE control the seating layout at the Property and/or provide the seating infrastructure at the Property, such that they are independently liable for ADA violations at the Property. 59. The BOARD and FRANCE have discriminated against MS. SMITH by denying her full access to the services, programs, and/or activities by failing to make their facilities readily accessible as required by 42 U.S.C. §12132 and its implementing regulations at 28 C.F.R. § 35.101 et. seq. 60. Specifically, the actions set forth in paragraphs 1-54 show that SMG, LIVE NATION MARKETING, LIVE NATION USA, and/or LIVE NATION WORLDWIDE are effectively excluding wheelchair patrons from obtaining the same benefits available to ambulatory patrons, in violation of 28 CFR §§ 35.130(a), 35.130(b)(1)(i), 35.130(b)(1)(ii), 35.130(b)(3)(i), and 35.130(b)(7)(i). 61. The BOARD and FRANCE have discriminated against MS. SMITH and others similarly situated in violation of the ADA by excluding and/or denying MS. SMITH the full and
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equal benefits of their services, programs, and/or activities by failing to, inter alia, make adequate and sufficient accommodations for mobility impaired individuals such as MS. SMITH, as detailed above in paragraphs 1-54. 62. Upon information and belief, the BOARD and FRANCE continue to discriminate against MS. SMITH, and all those similarly situated, by failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford all offered goods, services, programs, activities, facilities, privileges, advantages or accommodations to individuals with disabilities; and by failing to make such efforts that may be necessary to ensure that no individual with a disability is excluded, denied services, programs, and/or activities, segregated or otherwise treated differently than other individuals. 63. Upon information and belief, MS. SMITH, and all other individuals similarly situated, have been denied access to, and have been denied the benefits of services, programs and/or activities of the BOARD, and have otherwise been discriminated against and damaged by the BOARD and FRANCE because of the BOARD’s and FRANCE’S discrimination, as set forth above. MS. SMITH and all others similarly situated will continue to suffer such discrimination, injury, and damage without the immediate relief provided by the ADA as requested herein. 64. 42 U.S.C. § 12133 provides: “[t]he remedies, procedures, and rights set forth in section 794 of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.”
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65. MS. SMITH has retained the undersigned counsel and is entitled to recover reasonable attorneys’ fees, costs, and litigation expenses from the BOARD and FRANCE pursuant to 42 U.S.C. § 12205 and 28 C.F.R. § 35.175.
66. MS. SMITH is without adequate remedy at law and is suffering irreparable harm. 67. Pursuant to 42 U.S.C. § 12131, et seq., this Court is provided authority to grant MS.
SMITH’s injunctive relief including an order that the BOARD and FRANCE alter the facilities at Property and alter their policies at the Property to make the programs and/or activities offered there readily accessible to and useable by MS. SMITH and all other persons with disabilities as defined by the ADA; or by closing the Property until such time as the BOARD and FRANCE cure their violations of the ADA.
COUNT III: VIOLATION OF THE REHABILITATION ACT AS TO THE BOARD AND FRANCE
68. MS. SMITH adopts and re-alleges the allegations contained in paragraphs 1-67 as if fully stated herein.
69. MS. SMITH brings this claim against BOARD and FRANCE, based upon the Rehabilitation Act, 29 U.S.C. §794, et seq.
70. The Rehabilitation Act provides that: No otherwise qualified individual with handicaps in the United States, as defined by 7(8) [29 USCS § 706(8)], shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by
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any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a). 71. Upon information and belief, as set forth herein, the BOARD and FRANCE have violated the Rehabilitation Act by intentionally excluding MS. SMITH, solely by reason of her disabilities, from the participation in, and denying her the benefits of, and have otherwise subjected her to discrimination under, the BOARD’S and FRANCE’S programs and activities. 72. Upon information and belief, a non-exclusive list of the BOARD’s and FRANCE’S violations of the Rehabilitation Act and discriminatory conduct against MS. SMITH are evidenced by: A. denying MS. SMITH access to, and the opportunity to participate in or benefit from, the aids, benefits, activities, programs, accommodations and services offered at the Property; B. by otherwise limiting MS. SMITH in her enjoyment of the rights, privileges, advantages and opportunities which are enjoyed by individuals without disabilities who receive aids, benefits and services offered by the BOARD AND FRANCE; C. making facility site or location selections that have the effect of discriminating against individuals with disabilities and excluding them from and denying them the benefits of, and defeating or substantially impairing the accomplishment of the objectives of, the services, programs and activities offered by the BOARD and FRANCE at the Property;
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D. failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of MS. SMITH;
E. excluding MS. SMITH from participation in, and the benefits of, the services, programs, and activities offered by the BOARD and FRANCE, as a result of the BOARD’s and FRANCE’S Property being inaccessible to or unusable by MS. SMITH; and
F. failing to design and implement new policies, or make alterations to existing policies, which would permit individuals with disabilities to participate in the BOARD’s and FRANCE’S activities and programs.
73. Upon information and belief, there are additional, ongoing violations of the Rehabilitation Act at the Property which MS. SMITH is more likely than not going to encounter upon her future visits there. MS. SMITH brings this action: A. to redress injuries suffered as a result of the BOARD’s and FRANCE’S discriminatory actions and inactions set forth herein; B. to reasonably avoid further and future injury as a result of the BOARD’s and FRANCE’S ongoing failure to cease their discriminatory practices as set forth in this action, including correcting violations of the Rehabilitation Act; C. to ensure the BOARD’s and FRANCE’S Property is accessible as required by the relevant applications of Title II of the ADA; D. to be made whole and ensure future compliance; and E. to reasonably avoid future ADA and Rehabilitation Act litigation involving the same Property and under the same laws as set forth herein with its concomitant impact on otherwise scarce judicial resources. 16

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74. Only through a complete inspection of the Property and related facilities, undertaken by MS. SMITH and/or her representatives, can all said violations be identified and cured so as to ensure access for the disabled, the primary purpose of this action.
75. Upon information and belief, the BOARD and FRANCE are the recipients of federal funds. 76. Upon information and belief, as the recipients of federal funds, the BOARD and FRANCE
are liable for damages to MS. SMITH as a result of their acts and omissions constituting intentional discrimination. 77. As set forth above, MS. SMITH has been denied access to, and has been, and without the relief requested herein will continue to be denied the access to the goods, services, programs, facilities, activities and accommodations offered by the BOARD and FRANCE solely by reason of her disability, and has otherwise been discriminated against and damaged solely by reason of her disability as a result of the BOARD’s and FRANCE’S Rehabilitation Act violations set forth above. 78. MS. SMITH has been obligated to retain undersigned counsel for the filing and prosecution of this action, and she is entitled to recover those attorneys’ fees, costs and litigation expenses from the BOARD and FRANCE pursuant to 29 U.S.C. §794(b). 79. Pursuant to 29 U.S.C. §794(a) this Court is provided authority to grant MS. SMITH injunctive relief including an order to alter the subject premises, facilities, services, activities, programs, and accommodations to make them accessible to and useable by individuals with disabilities to the extent required by the Rehabilitation Act; closing all premises and facilities and discontinuing all non-complying services, activities, programs and accommodations until the requisite modifications are completed; and, granting MS. SMITH compensatory damages for the BOARD’s discriminatory actions.
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COUNT IV: VIOLATIONS OF THE LOUISIANA COMMISSION ON HUMAN RIGHTS AS TO ALL DEFENDANTS
80. MS. SMITH repeats and realleges all preceding paragraphs in support of this claim. 81. At all times relevant to this action, the Louisiana Commission on Human Rights, LA. REV.
STAT. ANN. § 51:2231 et. seq., (hereafter “LCHR”) has been in full force and effect and has applied the conduct of all DEFENDANTS. 82. At all times relevant to this action, MS. SMITH has experienced substantial limitations to several major life activities, including walking, standing, and bending; has suffered an anatomical loss affecting the musculoskeletal system; and has been an individual with a disability within the meaning of the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2232(3)(a). 83. At all times relevant to this action, DEFENDANTS have qualified as places of public accommodation, resort, or amusement as defined by LA. REV. STAT. ANN. § 51:2232(9) by virtue of either supplying services to the general public, soliciting and accepting the patronage of the general public, or having been supported directly or indirectly by government funds. 84. The LCHR prohibits discriminatory practices and provides that “it is a discriminatory practice for a person to deny an individual the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement . . . on the grounds of . . . disability.” LA. REV. STAT. ANN. § 51:2247. 85. The LCHR extends relief to “any person deeming himself injured by” discrimination in violation thereof. LA. REV. STAT. ANN. § 51:2264.
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86. Defendants discriminated against MS. SMITH, on the basis of disability, in violation of LA. REV. STAT. ANN. § 51:2247, by denying her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered at the Property.
87. MS. SMITH deems herself injured by the DEFENDANTS’ discrimination and brings suit under the LCHR to recover compensatory damages for the injuries and loss she sustained as a result of Defendants’ discriminatory conduct and deliberate indifference as alleged herein above.
88. MS. SMITH is further entitled to injunctive relief, as well as an award of attorneys’ fees, costs, and disbursements pursuant to the LCHR. LA. REV. STAT. ANN. § 51:2264. PRAYER FOR RELIEF WHEREFORE, MS. SMITH demands judgment against BOARD, FRANCE, SMG, LIVE
NATION MARKETING, LIVE NATION USA, LIVE NATION WORLDWIDE, and TICKET CENTER, and requests the following relief:
A. That this Court declare that the Property owned, leased and/or operated by DEFENDANTS is in violation of the ADA, the Rehabilitation Act, and the LCHR;
B. That this Court declare that the Property, programs and activities owned, operated and administered by the BOARD and FRANCE are in violation of the Rehabilitation Act;
C. That this Court enter an Order directing DEFENDANTS to alter the Property and DEFENDANTS’ policies, practices, and/or procedures to make the Property accessible to and useable by individuals with mobility-related disabilities to the full extent required by the ADA, the Rehabilitation Act, and the LCHR;
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D. That this Court award reasonable attorneys’ fees, costs (including expert fees), and other expenses of suit to MS. SMITH pursuant to the ADA, the Rehabilitation Act, and the LCHR;
E. That this Court award damages, including nominal damages, to MS. SMITH pursuant to Title II of the ADA and the Rehabilitation Act for the harm caused by the BOARD’s and FRANCE’s discriminatory practices, including MS. SMITH’s emotional distress, invasion of her civil rights, and for upset stemming from disparate treatment;
F. That this Court award damages to MS. SMITH pursuant to LA. REV. STAT. ANN. § 51:2264 for the discriminatory conduct of the DEFENDANTS in violation of the LCHR; and
G. That this Court award such other and further relief as it deems necessary, just and/or proper under the ADA, the Rehabilitation Act, and the LCHR.
Respectfully Submitted,
Bizer & DeReus Attorneys for Plaintiff Andrew D. Bizer (LA # 30396) andrew@bizerlaw.com Jacqueline K. Hammack (LA # 34581) jhammack@bizerlaw.com Marc P. Florman (LA # 35128) mflorman@bizerlaw.com 3319 St. Claude Ave. New Orleans, LA 70117 T: 504-619-9999; F: 504-948-9996 By:/s/ Jacqueline K. Hammack
JACQUELINE K. HAMMACK
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

NANCY SMITH, Plaintiff

CIVIL ACTION

VERSUS

NO. 17-7267

BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM AND EXPOSITION DISTRICT, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS Before the Court is a motion for summary judgment, filed by Defendants the

Louisiana Stadium and Exposition District (“LSED”), Kyle France, in his official capacity

as Chairman of the Board of Commissioners of the LSED, and SMG.1 The motion is

opposed.2 In this order, the Court addresses Defendants’ argument that the LSED is

entitled to sovereign immunity on Plaintiff Nancy Smith’s claim for damages against it

under Title II of the Americans with Disabilities Act (“ADA”). For the reasons that follow,

the Court GRANTS Defendants’ motion for summary judgment, finding the LSED is

entitled to sovereign immunity on Plaintiff’s Title II damages claim. The Court also finds

sua sponte that the LSED is entitled to sovereign immunity on Plaintiff’s Title II claim for

injunctive relief against it and that France, sued in his official capacity, is entitled to

sovereign immunity on Plaintiff’s Title II damages claim against him. The Court will

address the remaining issues raised by the motion by separate order.3

1 R. Doc. 45. In her Amended Complaint, Plaintiff named the Board of Commissioners of the LSED as a defendant based on her belief that the Board owned the Mercedes-Benz Superdome. R. Doc. 5. The Court granted her motion to substitute the LSED as a defendant in place of the Board of Commissioners of the LSED. R. Doc. 82. The motion for summary judgment was filed on behalf of the LSED and France. 2 R. Doc. 59. 3 The Court already has addressed Defendants’ arguments regarding Plaintiff’s standing to seek injunctive relief. R. Doc. 87.
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FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed. Plaintiff is an amputee who is disabled within
the meaning of the ADA.4 On April 2, 2016, she attempted to call the box office of the
Mercedes-Benz Superdome (“Superdome”) to purchase tickets for a Guns N’ Roses
concert, to be held on July 31, 2016.5 In reality, she contacted a representative of Box
Office Ticket Center LLC, who assured her the tickets she was purchasing were accessible
seats compliant with the ADA.6
The Superdome is owned by the LSED and operated and managed by Defendant
SMG. SMG is responsible for coordinating events, including creating seating charts for
concerts.7 Ticketmaster LLC, not Box Office Ticket Center LLC, has the sole and exclusive
right to sell and distribute tickets for concerts at the Superdome.8 SMG identifies
accessible seats in its seating chart for music concerts and submits that information to
Ticketmaster LLC.9 SMG’s usual practice is to reserve additional ADA-accessible seats in
case a customer with a disability, but without a ticket for an accessible seat, requests to
be moved to an accessible seat.10 For the Guns N’ Roses concert, SMG reserved
approximately one hundred fifty-one accessible seats for this purpose.11
Plaintiff’s tickets originally were bought from Ticketmaster LLC and resold on the
secondary market by Box Office Ticket Center LLC.12 The seat for which Plaintiff
purchased a ticket had not been designated by SMG as accessible.13 When Plaintiff and
4 R. Doc. 69 at 9, ¶ 7(a) (uncontested material facts in pretrial order). 5 Id. at 10, ¶¶ 7(f)–(g). 6 Id. at ¶¶ 7(g)–(h). 7 Id. at ¶¶ 7(c)–(e). 8 Id. at 11, ¶ 7(k). 9 Id. at ¶ 7(m). 10 R. Doc. 45-2 at 4, ¶ 19; R. Doc. 59-1 at 5, ¶ 19. 11 R. Doc. 45-2 at 4, ¶ 24; R. Doc. 59-1 at 6, ¶ 24. 12 R. Doc. 69 at 10–11, ¶¶ 10(h), (k). 13 Id. at 10, ¶ 7(i).
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her daughter arrived at the Superdome on the night of the concert, they sought assistance
from a SMG staffer to locate their seats.14 Plaintiff asked the staffer to remove the existing
chair in the space of her ticketed seat to permit her to park her wheelchair in its place.15
The staffer told her the existing chair could not be removed.16 Plaintiff expressed safety
concerns about being transferred out of her wheelchair, but eventually agreed to do so.17
The SMG staffer took her wheelchair, which was returned to her after the concert.18
On July 28, 2017, Plaintiff filed a complaint.19 She filed an amended complaint on
August 20, 2017.20 The Defendants remaining in the case are the LSED, France, in his
official capacity as Chairman of the Board of Commissioners of the LSED, and SMG.
Plaintiff brings (1) a claim for damages and injunctive relief under Title II of the ADA
against the LSED and France, (2) a claim for damages under the LHRA against SMG, and
(3) a claim for injunctive relief under Title III of the ADA against SMG.21
On December 26, 2018, Defendants SMG, the LSED, and France filed the instant
motion.22 Plaintiff opposes.23 In this order, the Court addresses Defendants’ argument
that the LSED is entitled to sovereign immunity on Plaintiff’s claim for damages under
Title II of the ADA. The Court also addresses sua sponte whether the LSED is entitled to
sovereign immunity on Plaintiff’s Title II claim for injunctive relief against it and whether
France, sued in his official capacity, is entitled to sovereign immunity on Plaintiff’s Title
II damages claim against him.
14 Id. at 12, ¶ 7(t). 15 Id. at ¶ 7(u). 16 Id. 17 Id. at ¶ 7(v). 18 Id. at ¶¶ 7(w)–(x). 19 R. Doc. 1. 20 R. Doc. 5. 21 R. Doc. 70 at 1–2. 22 R. Doc. 45. 23 R. Doc. 59.
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SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”24 “An issue is material if its resolution could affect the outcome of the action.”25 When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”26 All reasonable inferences are drawn in favor of the non-moving party.27 There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.28 “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” To satisfy Rule 56’s burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court’s attention to something in the
24 FED. R. CIV. P. 56; see also Celotex v. Catrett, 477 U.S. 317, 322–23 (1986). 25 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). 26 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). 27 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 28 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
4

pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.29
If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant’s claim.30 If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.31 Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”32 “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.’”33
29 Celotex, 477 U.S. at 322–24. 30 Id. at 331–32 (Brennan, J., dissenting). 31 See id. at 332. 32 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3. 33 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16, 919 n.7 (5th Cir. 1992)).
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LAW AND ANALYSIS Defendants argue there are no disputed material facts, and as a matter of law, the LSED is entitled to sovereign immunity because the LSED is an arm of the State of Louisiana, and Congress did not validly abrogate sovereign immunity under Title II of the ADA for Plaintiff’s damages claim.34 Plaintiff argues the LSED is not entitled to sovereign immunity because the LSED is a local political subdivision of the state, and that, even if it would otherwise be entitled to sovereign immunity, Title II of the ADA validly abrogates sovereign immunity for Plaintiff’s claim.35 I. The LSED is an arm of the state entitled to sovereign immunity. Although the Louisiana Constitution waives the sovereign immunity of the State of Louisiana in tort suits,36 this waiver of sovereign immunity is expressly limited to suits in state court.37 “[A] state can create a limited waiver of [sovereign] immunity by consenting to be sued in its own state courts without waiving its Eleventh Amendment immunity from suit in federal courts. In other words, a state may waive its common law sovereign immunity under state law, without waiving its Eleventh Amendment immunity under federal law.”38 Because this suit was filed in federal court, the Court must address whether the LSED is entitled to Eleventh Amendment sovereign immunity.
34 R. Doc. 45-1 at 17–27. 35 R. Doc. 59 at 18–28. 36 LA. CONST., art. XII, § 10(A). 37 LA. REV. STAT. § 13:5106(A) (“No suit against the state or a state agency or political subdivision shall be instituted in any court other than a Louisiana state court.”). 38 In re Allied-Signal, Inc., 919 F.2d 277, 281 (5th Cir. 1990) (citing Port Authority Trans–Hudson Corp. v. Feeney, 495 U.S. 299 (1990)).
6

In Hudson v. City of New Orleans, the Fifth Circuit laid out six factors used to
determine whether a state entity is entitled to Eleventh Amendment sovereign
immunity.39 The court explained:
To help identify when a suit against a governmental entity, or an official of the entity sued in his official capacity, is considered to be a suit against the state, we have in the past utilized six factors:
1. Whether the state statutes and case law view the agency as an arm of the state;
2. The source of the entity’s funding; 3. The entity’s degree of local autonomy; 4. Whether the entity is concerned primarily with local as opposed to
statewide problems; 5. Whether the entity has the authority to sue and be sued in its own name;
and 6. Whether the entity has the right to hold and use property.
A defendant need not possess each of the above attributes to benefit from the Eleventh Amendment.40
The second factor is the most important because “an important goal of the Eleventh
Amendment is the protection of state treasuries.”41 Courts “typically deal with the last two
factors in a fairly brief fashion.”42
A. Under state statutes and case law, the LSED is an arm of the state.
Plaintiff’s primary argument with regard to the first Hudson factor is that the LSED
is a political subdivision of Louisiana.43 Generally, “the states and their political
subdivisions are protected by the sovereign immunity principle embodied in the Eleventh
Amendment.”44 However, “[n]ot all political subdivisions are automatically immunized
39 174 F.3d 677, 681–82 (5th Cir. 1999) (citing Clark v. Tarrant County, 798 F.2d 736, 744–45 (5th Cir. 1986)). 40 Id. 41 Delahoussaye v. City of New Iberia, 937 F.2d 144, 147–48 (5th Cir.1991); see also id. at 682. 42 Hudson, 174 F.3d at 682 (citing Pendergrass v. Greater New Orleans Expressway Comm’n, 144 F.3d 342, 347 (5th Cir. 1998); Delahoussaye, 937 F.2d at 147). 43 R. Doc. 59 at 20. 44 Evans v. City of Bishop, 238 F.3d 586, 589 (5th Cir. 2000).
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when the state is immunized.”45 Rather, courts “look to see whether the entity in effect
stands in the shoes of the state itself.”46
In Vogt v. Bd. of Comm'rs of Orleans Levee Dist., the Fifth Circuit stated the
statutory classification of an entity as “political subdivision” is “significant” in the analysis
of the first Hudson factor and that “virtually every . . . government entity classified as a
political subdivision has been denied Eleventh Amendment immunity.”47 However, this
is not a “hard-and-fast rule.”48 Rather, political subdivisions are generally held not to be
arms of the state because they are “more local in character” and “are not part of any
department within the executive branch of government.”49
In this case, the provision of the Louisiana Constitution of 1921 creating the LSED
specified the LSED is a political subdivision.50 This provision remains in effect.51
Louisiana caselaw on this issue also holds that the LSED is a political subdivision.52
Plaintiff cites several cases standing for this proposition.53 However, the fact that the
LSED is described as a political subdivision is not determinative. The Court must
determine whether the LSED functions as an arm of the state. Under Louisiana law,
45 Id. (citing Earles v. State Bd. of Certified Pub. Accountants, 139 F.3d 1033, 1036 (5th Cir.1998)). 46 Id. (quoting Earles, 139 F.3d at 1036). 47 294 F.3d 684, 692 (5th Cir. 2002). 48 Id. 49 Id. 50 LA. CONST. of 1921, art. XIV, § 47(A) (1966). 51 LA. CONST. art. XIV, § 16(A)(10). 52 See Arata v. Louisiana Stadium & Exposition Dist., 254 La. 579, 599–600 (1969) (“As a separate corporate body and political subdivision of the State, the District is without any authority to bind or obligate the State in any manner.”). A dissenting opinion in Arata states that the LSED is “a hybrid sort of thing,” but also that it “is nothing but an agency of the State.” Id. at 616 (McCaleb, J., dissenting). 53 R. Doc. 59 at 25–26 (collecting cases). A Louisiana Attorney General opinion, cited by Defendants, R. Doc. 45-1 at 18, states that, because of Act 541 and the Executive Reorganization Act, “LSED is no longer a political subdivision of the State.” La. Att’y Gen., Opinion Letter No. 91-300 (July 30, 1991), 1991 WL 575248. However, this is in direct conflict with two opinions issued by the same office. La. Att’y Gen. Op. No. 91-186 (June 25, 1991), 1991 WL 575147 (“[The LSED is] a political subdivision of the State of Louisiana composed of the Parishes of Orleans and Jefferson.”); La. Att’y Gen., Opinion Letter No. 83-741 (Sept. 6, 1983) 1983 WL 177139 (“The Louisiana Stadium and Exposition District itself originally was and continues to be a political subdivision of the State of Louisiana.”).
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determining whether an entity is an arm of the state “requires a fact intensive inquiry,
investigating the entity's powers and functions, as well as its interrelationship with the
state.”54
i. The history of the LSED weighs in favor of finding it is an arm of the state. A brief overview of the history of the LSED is instructive in determining the LSED’s
status under state law. The LSED was created in 1966 by amendment to the Louisiana
Constitution of 1921.55 The constitutional provision creating the LSED, codified at Article
XIV, § 47 of the Louisiana Constitution of 1921, and continued as a statutory provision
under the Louisiana Constitution of 1974,56 specifies that the LSED is a “body politic and
corporate and political subdivision of the State of Louisiana composed of all of the
territory in the Parishes of Orleans and Jefferson.”57 Under the constitutional provision
as enacted, the LSED was to be governed by a Board of Commissioners composed of six
ex officio members and five members appointed by local and state officials.58
The Louisiana Constitution of 1974 mandated the reorganization of the state
government into not more than twenty departments.59 In 1976, the legislature passed Act
541 of the 1976 Regular Legislative Session (“Act 541”), restructuring the Board of
Commissioners of the LSED.60 Act 541 provided all members of the Board were to be
54 Slowinski v. England Econ. & Indus. Dev. Dist., 828 So. 2d 520, 523 (La. 2002) (citing Polk v. Edwards, 626 So. 2d 1128 (La. 1993)). 55 LA. CONST. of 1921, art. XIV, § 47 (1966); see also Watermeier v. Louisiana Stadium & Exposition Dist., 308 F. Supp. 273, 274 (E.D. La. 1969) (outlining history of creation of LSED). 56 LA. CONST. art. XIV, § 16(A)(10). 57 LA. CONST. of 1921, art. XIV, § 47(A) (1966). 58 LA. CONST. of 1921, art. XIV, § 47(B) (1966), repealed by Act 541 of the 1976 Regular Legislative Session, § 15, 1976 La. Acts 1426, 1433 (1976). 59 LA. CONST. art. XIV, § 6 (“The legislature shall allocate, within not more than twenty departments, the functions, powers, duties, and responsibilities of all departments, offices, agencies, and other instrumentalities within the executive branch, except those allocated by this constitution [of 1974].”). 60 1976 La. Acts 1426.
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appointed by the Governor from each of the public service districts in the state.61 Section
10 of Act 541 provides, “[i]t is the intent of this Act that the state of Louisiana, through
the Governor, hereby takes over and assumes full responsibility for the management of
the properties” of LSED.62 In the Executive Reorganization Act, passed in 1977,63 the
legislature cited Act 541 and transferred to the Office of the Governor the “powers, duties,
functions, and responsibilities” of “Louisiana Stadium and Exposition District, Board of
Commissioners.”64 This transfer of the LSED to the Office of the Governor weighs in favor
of finding the LSED is an arm of the state.
ii. Inclusion of the LSED in the section of the Louisiana Revised Statutes organizing the Executive Branch weighs in favor of finding the LSED is an arm of the state.
In Slowinski v. England Econ. & Indus. Dev. Dist., the Louisiana Supreme Court
laid out several factors Louisiana courts consider when determining whether, for
purposes of state law, an entity is an instrumentality of the state or more comparable to a
parish or municipal government.”65 The first factor the Louisiana Supreme Court
considered was whether the entity’s enabling legislation is in the title of the Louisiana
Revised Statutes on “Municipalities and Parishes,” Title 33, or in the title on
“Organization of Executive Branch of State Government,” Title 36.66 In this case, the
amendment creating the LSED was included in Article XIV of the Louisiana Constitution
of 1921, which governed “Parochial and Municipal Affairs.”67 However, with the passage
of the Executive Reorganization Act of 1977, the legislature included the Board of
61 § 2(A), 1976 La. Acts at 1427. 62 § 10, 1976 La. Acts at 1433. 63 Executive Reorganization Act, Act No. 83, § 4(B)(1)(u), 1977 La. Acts 255, 262 (1977). 64 LA. REV. STAT. 36:4(B)(1)(u) (citing 1976 La. Acts 1426). 65 2002-0189 (La. 10/15/02), 828 So. 2d 520, 524. 66 Id. 67 LA. CONST. of 1921, art. XIV.
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Commissioners of the LSED in a list of agencies under the Executive Office of the Governor in Title 36 of Louisiana Revised Statutes.68 The legislature’s placement of the LSED in the portion of the Revised Statutes entitled “Organization of Executive Branch of State Government,” Title 36, weighs in favor of finding the LSED to be an arm of the state under Louisiana law.
iii. The language of LSED’s enabling legislation weighs in favor of finding the LSED is an arm of the state.
In Slowinski, the Louisiana Supreme Court found the England Economic and Industrial Development District (“EEIDD”) not to be an arm of the state and noted the EEIDD’s enabling legislation did not refer to it as an “instrumentality of the state.”69 The Louisiana Supreme Court said, “the legislature possesses the power to designate a political subdivision to be an instrumentality of the state. . . . Because of the weighty consequences that arise when the legislature includes the term of art, ‘instrumentality of the state,’ . . . it is unreasonable to assume our legislature overlooked it.”70
The provision in the 1921 Constitution creating the LSED unequivocally states the LSED “constitute[s] an instrumentality of the State of Louisiana.71 In fact, in Slowinski, the Louisiana Supreme Court quoted this provision and cited the LSED an example of an entity that the legislature has explicitly declared to be an instrumentality of the state.72
The provision of the 1921 Constitution creating the LSED also states the LSED “exercise[es] public and essential governmental functions,” that its powers are “deemed and held to be essential governmental functions of the State,” and that its exercise of its
68 LA. REV. STAT. 36:4(B)(1)(u) (citing 1976 La. Acts 1426). 69 828 So.2d at 528. 70 Id. at 527–28. 71 LA. CONST. of 1921, art. XIV, § 47(C) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 72 Slowinski, 828 So. 2d at 527.
11

powers “will be in all respects for the benefit of the people of the State.”73 Under Slowinski, such language “could be construed to imply a legislative intent” that the LSED is an instrumentality of the state when the statute also explicitly designates the entity to be a state instrumentality.74 The language of the LSED’s enabling legislation weighs in favor of finding it is an arm of the state.
iv. The LSED’s jurisdiction weighs in favor of finding it is an arm of the state. In Polk v. Edwards, the Louisiana Supreme Court determined the Louisiana Economic Development and Gaming Corporation (“Casino Corporation”) is an instrumentality of the state.75 In support of its conclusion, the Polk court cited the Casino Corporation’s enabling statute, under which the corporation is “accountable to the governor, the legislature, and the people of the state through a system of audits, reports, and legislative oversight, and through financial disclosure.”76 The Louisiana Supreme Court also noted the Casino Corporation’s board of directors is “appointed by the governor and confirmed by the Senate,” and select a president with the approval of the Governor.77 In contrast, in Slowinski, the Louisiana Supreme Court found the EEIDD was limited in “jurisdiction and scope” to Rapides Parish.78 EEIDD is “composed of all of the territory located within Rapides Parish.”79 All members of the Board of Commissioners of the EEIDD are required to be domiciliaries of the Parish and are appointed by local
73 LA. CONST. of 1921, art. XIV, § 47(C) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 74 Slowinski, 828 So. 2d at 527–28. 75 626 So. 2d 1128, 1146 (La. 1993). 76 Id. (citing LA. REV. STAT. § 4:602(A) (1993), subsequently recodified at LA. REV. STAT. § 27:202(A)). 77 Id. (citing LA. REV. STAT. § 4:611(A)(1) (1993), subsequently recodified at LA. REV. STAT. § 27:211(A)(1)). 78 Id. at 524. 79 Id. (quoting LA. REV. STAT. § 33:130.351).
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elected officials.80 The Board fills its own vacancies and elects its own officers.81 The
EEIDD has
the authority to adopt its own bylaws and other rules and regulations; to enter into contracts; to incur debt and issue general obligation bonds in its own name and behalf; to acquire property by gift, grant, purchase, lease, expropriation or otherwise; to sell, transfer, and convey any property acquired by it; and to levy and collect ad valorem, sales, and use taxes.82 The Board of Commissioners of the EEIDD has plenary power to govern the EEIDD.83
The Court found these factors show the EEIDD is “entirely governed from within Rapides
Parish” and is “entirely emancipated from state control and oversight.”84 The court found this weighed in favor of finding the EEIDD is not an instrumentality of the state.85
Like the EEIDD in Slowinski, which is geographically limited to Rapides Parish, the LSED is “composed of all of the territory in the Parishes of Orleans and Jefferson.”86
The domicile of the LSED is in New Orleans.87 However, the LSED’s structure and
organization is more analogous to the Casino Corporation in Polk because the Board of
Commissioners of the LSED is appointed by the Governor, the Chairman of the Board is
selected by the Governor, and the LSED is subject to audit by the State Legislative Auditor.
In short, the LSED is fully within state control and oversight, which weighs in favor of
finding it is an arm of the state.
80 Id. at 524 n.4 (citing LA. REV. STAT. § 33:130.353(A)). 81 Id. at 525 (citing LA. REV. STAT. § 33:130.353(G)). 82 Id. at 524–25 (citing LA. REV. STAT. §§ 33:130.353, 130.355). 83 Id. at 525 (citing LA. REV. STAT. § 33:130.355 (18)). 84 Id. at 524. 85 Id. 86 LA. CONST. of 1921, art. XIV, § 47(A) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 87 § 2(B), 1976 La. Acts at 1427.
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v. The structure of the Board of Commissioners of the LSED weighs in favor of finding it is an arm of the state.
The structure of the Board of Commissioners of the LSED also leads to the same conclusion. Section 47(B) of the provision of the Louisiana Constitution of 1921 originally creating the LSED provided the Board of Commissioners of the LSED would include six ex officio members—“the Governor, the Speaker of the House of Representatives and the President pro tem of the Louisiana Senate, the Mayor of the City of New Orleans, the presiding Councilman at Large of the City Council of New Orleans and the Parish President of the Parish of Jefferson”—and five appointed members—three appointed by the Mayor of the City of New Orleans, one by the Parish President of the Parish of Jefferson and one by the Governor of Louisiana.88 However, Act 541 repealed § 47(B).89 All members of the Board are now appointed by the Governor and serve at his pleasure.90 Although the board may appoint officers, the Governor selects the Chairman of the Board.91 The State is divided into five public service districts,92 and Act 541 requires that one member of the Board of Commissioners of the LSED be appointed “from each of the public service districts in the state.”93 The Board of Commissioners of the LSED is composed of five people from different parts of the entire state.94 The structure of the Board weighs in favor of finding the LSED is an arm of the state.
88 LA. CONST. of 1921, art. XIV, § 47(B) (1966). 89 § 15, 1976 La. Acts at 1433. 90 § 2(A), 1976 La. Acts at 1427. 91 § 2(C), 1976 La. Acts at 1427. 92 LA. REV. STAT. 45:1161.5(A). 93 § 2(A), 1976 La. Acts at 1427. 94 Id.
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vi. The LSED’s powers weigh in favor of finding it is an arm of the state. Act 541 states the legislature’s intent for the Governor to “take[] over and assume[] full responsibility for the management of the properties” of LSED.95 The Act delegates to the Governor the authority to “exercise all power and authority over the management of the properties” of LSED, to “delegate the management of the properties to an executive director or to a professional management organization,” and to “negotiate for the sale of and sell the properties.”96 The Act also specifies and limits the “purposes, powers, and duties” of the LSED, which are largely administrative or advisory.97 The LSED has some of the same powers as the EEIDD, including the authority to enter into contracts, to incur debt and issue bonds in its own name and behalf, and to acquire property by “expropriation, purchase, lease or otherwise,” and to levy and collect hotel occupancy taxes.98 However, unlike the EEIDD, these powers are ultimately exercised by the Governor through the Board of Commissioners of the LSED. As a result, the Court finds the LSED is not governed from within Orleans and Jefferson Parishes and is not emancipated from state control and oversight. Instead, the LSED is governed by the Office of the Governor and is within state control. This weighs in favor of finding the LSED is an arm of the state. B. The sources of the LSED’s funding weigh in favor of finding the LSED is an arm
of the state. “The most important Hudson factor, the source of the entity's funding, requires a two-part inquiry:” (1) the state's liability for a judgment against the officer sued in his
95 § 10, 1976 La. Acts at 1433. 96 § 13, 1976 La. Acts at 1433. 97 § 3, 1976 La. Acts at 1428. 98 LA. CONST. of 1921, art. XIV, § 47(D) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10).
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official capacity and (2) the state’s liability for the entity’s general debts and obligations.99
Defendants argue that, because a judgment in this case will be paid by the Louisiana Office
of Risk Management (“ORM”), the LSED is an arm of the state. The LSED filed an affidavit
by Mark Joseph, the State Risk Underwriting Supervisor of ORM, which manages
insurance covering property and liability exposure of the State of Louisiana.100 Joseph
testified ORM provides insurance for damages and attorney’s fee awards in actions
against the LSED brought under the ADA.101 He testified that payments for such awards
will be made from the “Self-insurance Fund, which was created within the [Louisiana]
Department of the Treasury.”102
According to the affidavit Defendants filed on February 7, 2019, ORM issues a self-
insurance coverage document to the LSED that expressly covers tort actions.103 Payments
for judgments against the LSED are made from the Self-Insurance Fund in the Louisiana
Department of the Treasury.104
Under Louisiana statutory law, ORM “manage[s] all state insurance covering
property and liability exposure.”105 The Self-Insurance Fund, “created in the Department
of the Treasury,” is described as follows:
The fund shall consist of all premiums paid by state agencies under the state's risk management program as established by this Chapter, the investment income earned from such premiums and commissions retained in accordance with the provisions of this Title. This fund shall be used only for the payment of losses incurred by state agencies under the selfinsurance program, premiums for insurance obtained through commercial carriers, administrative expenses associated with the management of the state's risk, law enforcement officers and firemen's survivors benefits as
99 Cozzo v. Tangipahoa Par. Council--President Gov't, 279 F.3d 273, 282 (5th Cir. 2002). 100 R. Doc. 72-1 at 1, ¶¶ 1, 2. 101 Id. at ¶¶ 3, 4. 102 Id. at ¶ 6. 103 R. Doc. 72-1 at 1, ¶ 4–5. 104 Id. at ¶ 6. 105 LA. REV. STAT. § 39:1535(A).
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provided for in R.S. 40:1665(C) and 1665.2(C), the payment of losses incurred by the Jefferson Parish Human Services Authority in accordance with R.S. 28:831(J)1, the payment of losses incurred by the Capital Area Human Services District in accordance with R.S. 28:9061, the payment of losses incurred by the Florida Parishes Human Services Authority in accordance with R.S. 28:8561, the payment of losses incurred by the Metropolitan Human Services District in accordance with R.S. 28:8661, the payment of losses incurred by the Northeast Delta Human Services Authority in accordance with R.S. 28:8961, and the funding of the legal services, such funds to be administered by the commissioner of administration.106
Notably, the statute limits the purposes for which the fund may be used and enumerates
specific permitted uses of the fund for entities that are not instrumentalities of the state.
The LSED is not included among the entities covered even though they are not
instrumentalities of the state. As a result, the only statutory provision under which the
Self-Insurance Fund could insure judgments against the LSED is the provision that the
fund be used “for the payment of losses incurred by state agencies under the self-
insurance program.”107 The ORM treats the LSED as a state agency. This is confirmed by
a July 1991 opinion from the Louisiana Attorney General stating that the LSED is “a[n]
agency under the executive branch” and, as a result, is “obligated to accept the insurance
coverage and premium costs” assigned by ORM.108
The Court finds the state pays judgments against the LSED directly. The Court also
analyzes “whether the state will indirectly fund a judgment against the [defendant]
because the state either is responsible for general debts and obligations or provides the
lion’s share of the [defendant]’s budget.”109
106 Id. at § 39:1533(A) (emphasis added). 107 Id. 108 La. Att’y Gen., Opinion Letter No. 91-300 (July 30, 1991), 1991 WL 575248. 109 Id. (emphasis added).
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The provision of the 1921 Constitution creating the LSED, continued as a statute,
provides the LSED’s “books and records shall be subject to audit annually by the
Legislative Auditor.”110 The Court takes judicial notice of the Financial Statement Audit
for the year ending on June 30, 2018, issued by the Louisiana Legislative Auditor.111
According to the Audit, “[l]osses arising from judgments, claims, and similar
contingencies are paid through the state’s self-insurance fund operated by the Office of
Risk Management, the agency responsible for the state’s risk management program, or
by the General Fund appropriation.”112 The General Fund “administers and accounts for
legislative appropriations provided to fund the general administrative expenditures of the
District and those expenditures, including sports franchise annual payments, not funded
through other specific legislative appropriations or revenues.”113 According to the audit,
for the year ending on June 30, 2018, the General Fund paid $281,954 in insurance
costs.114 The General Fund had $46,199,171 in revenues, of which $29,533,161 came from
the hotel occupancy tax the LSED levies directly, and $9,437,025 from the New Orleans
Sports Franchise Fund,115 which is a legislative appropriation for LSED payments to
sports franchises.116 There is no indication on the General Fund income statement of any
110 LA. CONST. of 1921, art. XIV, § 47(C) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 111 See FED. R. EVID. 201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”); see also Tu Nguyen v. Bank of Am., N.A., 728 F. App’x 387, 388 (5th Cir. 2018) (“Because the proposed documents are highly indisputable public records, we take judicial notice of them.”). 112 DARYL G. PURPERA, LOUISIANA LEGISLATIVE AUDITOR, LOUISIANA STADIUM AND EXPOSITION DISTRICT, A COMPONENT UNIT OF THE STATE OF LOUISIANA, FINANCIAL STATEMENT AUDIT FOR THE YEAR ENDED JUNE 30, 2018 48 (2018) (“2018 LSED LEGISLATIVE AUDIT”). 113 Id. at 29–30. 114 Id. at 18. 115 Id. at 18. The remainder of the revenue was from slots, players’ taxes, vehicle license plate royalties, interest earnings, and “miscellaneous income.” Id. 116 Under the statute creating the New Orleans Sports Franchise Fund revenues are “appropriated and distributed each fiscal year to the Louisiana Stadium and Exposition District for use only to fund contractual obligations of the state to any National Football League or National Basketball Association franchise located
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appropriation for the general administrative expenditures of the LSED.117 The Audit also states hotel tax revenues increased in the year ending on June 30, 2018, and the increase “reduced the District’s dependency on the state’s General Fund appropriations to meet the contractual obligations of the District.”118
The Legislative Audit shows that, although a majority of the revenues for the LSED’s general operating fund comes from the hotel tax it levies, the state appropriates funds for the LSED to pay some of its debts and obligations. The New Orleans Sports Franchise Fund appropriations, although intended to support LSED payments to sports franchises, are placed in the same General Fund from which insurance payments are withdrawn. The fact that an increase in hotel taxes reduces the LSED’s dependency on appropriations suggests that, were hotel tax revenue to decrease, the State’s appropriations would increase. As a result, the Court finds the State provides indirect funding for the LSED’s general debts and obligations. The second and most important Hudson factor weighs in favor of finding the LSED is entitled to sovereign immunity.
C. The LSED’s lack of local autonomy weighs in favor of finding it is an arm of the state.
Defendants argue that, because all the members of the LSED are appointed by and serve at the pleasure of the Governor, this factor weighs in favor of finding the LSED is an arm of the state.119 Under Act 541, members of the LSED are appointed by the Governor and serve at his pleasure.120 The Act evinces a clear legislative intent for the Governor to “take[] over and assume[] full responsibility for the management of the properties” of the
in Orleans Parish.” LA. REV. STAT. § 47:322.38(B)(2). These funds are derived from a tax on hotels in Orleans Parish. Id. at §§ 47:322.38(A)(1), 301(14)(a). 117 2018 LSED LEGISLATIVE AUDIT at 18. 118 Id. at 5. 119 R. Doc. 45-1 at 19–20. 120 § 2(A), 1976 La. Acts at 1427.
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LSED.121 The Act also delegates to the Governor the authority to “exercise all power and authority over the management of the properties” of the LSED, to “delegate the management of the properties to an executive director or to a professional management organization,” and to “negotiate for the sale of and sell the properties.”122 The Act specifies and limits the “purposes, powers, and duties” of the LSED, which are largely administrative or advisory.123 These weigh in favor of finding the LSED has little local autonomy.
The State of Louisiana is divided into five public service districts.124 Act 541 requires that one member of the Board of Commissioners of the LSED be appointed “from each of the public service districts in the state.”125 In Vogt, the Fifth Circuit found local residency requirements weighed in favor of finding the levee district had a high degree of local autonomy.126 In contrast, the Board of Commissioners of the LSED must include citizens from around the state, weighing against finding the LSED has a high degree of local autonomy.
Plaintiff argues that, because the LSED is an autonomous entity that outsources its operations to SMG, a private entity, there is local autonomy.127 However, under Act 541, the Governor has the authority and the discretion to delegate the management of LSED properties to an executive director or a professional management organization.128 The Governor is also authorized to negotiate and enter into a contract with a professional
121 § 10, 1976 La. Acts at 1433. 122 §§ 4(A), 5, 13, 1976 La. Acts at 1429, 1433. 123 § 3, 1976 La. Acts at 1428. 124 LA. REV. STAT. 45:1161.5(A). 125 Id. 126 294 F.3d at 695. 127 R. Doc. 59 at 28–29. 128 § 5, 1976 La. Acts at 1429.
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management organization, subject to approval by the Board of Commissioners of the LSED and the majority approval of both houses of the state legislature.129 Contrary to
Plaintiff’s argument, the LSED is not an autonomous entity that outsources its operations
to SMG.
The Court finds the LSED has little local autonomy, and this factor weighs in favor
of finding the LSED is an arm of the state.
D. The LSED is concerned with both local and statewide problems, and this factor does not weigh in favor of or against finding the LSED is an arm of the state.
The LSED is a district composed of all of the territory in the Parishes of Orleans
and Jefferson.130 “Limited territorial boundaries suggest that an agency is not an arm of the state.”131 The LSED is empowered to levy taxes in Orleans and Jefferson Parishes, and
surplus from the taxes is to be distributed to certain designated organizations in these parishes.132 These weigh in favor of finding the LSED is primarily concerned with local
problems.
However, the 1966 amendment to the Louisiana Constitution of 1921 that created
the LSED specified the “exercise of the powers granted [in the amendment] will be in all respects for the benefit of the people of the State.”133 The amendment was passed as a
statewide ballot measure.134 As a result, the Court finds this factor does not weigh in favor
of or against a finding that the LSED is an arm of the State of Louisiana.
129 § 7, 1976 La. Acts at 1432. 130 LA. CONST. of 1921, art. XIV, § 47(A) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 131 Vogt, 294 F.3d at 695. 132 LA. CONST. of 1921, art. XIV, §§ 47(M), (P) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 133 LA. CONST. of 1921, art. XIV, § 47(C) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10). 134 See Act No. 556, 1966 La. Acts 1159, 1170 (1966).
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E. The LSED’s authority to sue and be sued in its own name and its right to hold and use property weigh against finding it is an arm of the state.
The final two factors may be dealt with in a cursory fashion.135 It is uncontested the
LSED has the right to sue and be sued in its own name and that it in fact holds and uses
property.136 This weighs against finding the LSED is an arm of the state.
In summary, the Court has found the first three factors weigh in favor of finding
the LSED to be an arm of the state. The fourth factor does not favor either position, and
the fifth and sixth factors weigh in favor of a finding the LSED is not an arm of the state.
The Fifth Circuit has held the fifth and sixth factors are the least important.137 After
considering all the factors, the Court finds the LSED is an arm of the State of Louisiana
entitled to sovereign immunity under the Eleventh Amendment.
II. Congress did not validly abrogate the LSED’s sovereign immunity for Plaintiff’s claim under Title II of the ADA. Because the LSED is entitled to sovereign immunity under the Eleventh
Amendment, the Court turns to whether Congress, in passing Title II, validly abrogated
Eleventh Amendment sovereign immunity for Plaintiff’s claim against the LSED.
Congress may abrogate state sovereign immunity if it “makes its intention to abrogate
unmistakably clear in the language of the statute” and “acts pursuant to a valid exercise
of its power under § 5 of the Fourteenth Amendment.”138 The ADA clearly states
Congress’s intent to abrogate state sovereign immunity.139 In United States v. Georgia,
the Supreme Court established a three-part test to determine whether, in a particular
135 See Hudson, 174 F.3d at 682. 136 R. Doc. 45-1 at 20–21; R. Doc. 59 at 30; see also LA. CONST. of 1921, art. XIV, § 47(D) (1966), continued as a statute as provided by LA. CONST. art. XIV, § 16(A)(10) (“The District shall have the power to sue and be sued in its own name and is hereby authorized and empowered to plan, acquire finance, own, construct, operate and maintain [properties].”) 137 Hudson, 174 F.3d at 682 (“[Courts] typically deal with the last two factors in a fairly brief fashion.”). 138 Nev. Dep’t. of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003). 139 See Tennessee v. Lane, 541 U.S. 509, 518 (2004) (citing 14 U.S.C. § 12202).
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case, Title II’s abrogation of state sovereign immunity pursuant to Section 5 of the
Fourteenth Amendment is valid.140 To make this determination, a court must consider on
a claim–by-claim basis:
(1) which aspects of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth
Amendment; and (3) insofar as such misconduct violated Title II but did not violate the
Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.141
A. Title II Violation
The first prong of the Georgia test requires courts to consider “which aspects of
the State’s alleged conduct violated Title II.”142 “[T]his inquiry is often addressed on
motion to dismiss, and thus phrased in terms of whether the plaintiff sufficiently “alleged”
conduct violating Title II and the Fourteenth Amendment.”143 In Wells v. Thaler, the Fifth
Circuit addressed the first prong of the Georgia test in the context of a motion for
summary judgment and considered whether the plaintiff “offer[ed] sufficient evidence to
create an issue of material fact on his Title II claims.”144 Because Defendants raise this
argument on a motion for summary judgment, the Court will consider the record and
determine whether Plaintiff has offered sufficient evidence to create a genuine issue of
material fact on the elements of her Title II claim.
The Fifth Circuit has listed the elements of a Title II claim as follows:
To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such
140 546 U.S. 151, 159 (2006). 141 Id. 142 Id.; see also Hale v. King, 642 F.3d 492, 498 (5th Cir. 2011) (quoting id.). 143 Wells v. Thaler, 460 F. App’x 303, 311 (5th Cir. 2012). 144 Id.
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discrimination is by reason of his disability.’ To recover monetary damages, a plaintiff must prove that the discrimination was intentional.145
It is undisputed Plaintiff has a qualifying disability.146 In the pretrial order, the parties
agree the following are contested facts:
a. Whether the SMG staffer who escorted Ms. Smith to her ticketed seats indicated, implied, or otherwise led Ms. Smith to believe that transferring out of her wheelchair and into her ticketed seat was necessary for Ms. Smith to view the concert.
b. Whether the SMG staffer who took Ms. Smith’s wheelchair did so in accordance with SMG’s policies for patron wheelchair storage.
c. Whether Ms. Smith’s wheelchair was securely stored during the Concert.147
The Court finds these disputed facts are material to the elements of the Title II claim. They
create a genuine dispute of fact as to whether Plaintiff was denied the benefits of a
program for which the LSED is responsible148 or she was otherwise discriminated against
by the LSED. They also create a genuine dispute of fact as to whether the alleged
discrimination was by reason of her disability and whether it was intentional. Because
Plaintiff has established genuine issues of material fact as to the elements of her Title II
claim, the Court proceeds to the second prong of the Georgia test.
B. Fourteenth Amendment Violation
The second prong of the Georgia test requires a court to determine the extent to
which the state government entity’s alleged violation of Title II of the ADA also violated
145 Wells, 460 F. App’x at 311–12 (quoting Hale, 642 F.3d at 499, and citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). 146 R. Doc. 69 at 9, ¶ 7(a). 147 Id. at 148 To the extent Defendants argue the LSED is not vicariously liable for SMG’s alleged discrimination, R. Doc. 45-1 at 24, the Court notes regulations implementing the ADA provide Title II “applies to all services, programs, and activities provided or made available by public entities.” 28 C.F.R. § 35.102(a). The guidance interpreting this section clarifies that “[a]ll governmental activities of public entities are covered, even if they are carried out by contractors.” 28 C.F.R. pt. 35, app. B. As a result, even though the SMG was responsible for the operations of the Guns N’ Roses concert at the Superdome, the LSED is responsible for it.
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the Fourteenth Amendment.149 Section Five of the Fourteenth Amendment provides that “Congress shall have power to enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including the Equal Protection Clause and the Due Process Clause.150 This permits Congress to create private remedies against the states for violations of the Fourteenth Amendment.151 As a result, “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.”152
The alleged Title II violations in this case relate to (1) a failure to allow Plaintiff to use the elevator, (2) a failure to provide Plaintiff accessible seating after she bought inaccessible seats through the secondary ticket market, and (3) a failure to store Plaintiff’s wheelchair securely. Under the Equal Protection Clause, “[d]isabled persons are not a suspect class.”153 As a result, classifications on the basis of disability are subject to rational basis scrutiny, meaning they violate the Equal Protection Clause “if they lack a rational relationship to a legitimate governmental purpose.”154 Based on the uncontested facts in this case, Plaintiff cannot show the LSED subjected her to a classification on the basis of physical disability that lacked a rational relationship to a legitimate governmental purpose. As a result, there is no violation of the Equal Protection Clause.
The Due Process Clause guarantees certain fundamental rights, and a violation of Title II violates the Due Process Clause when it prevents people with disabilities from
149 Georgia, 546 U.S. at 159. 150 U.S. CONST. amend. XIV, § 5. 151 Georgia, 546 U.S. at 158. 152 Id. at 159. 153 Douglas v. Gusman, 567 F. Supp. 2d 877, 886 (E.D. La. 2008) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985)). 154 Lane, 541 U.S. at 522.
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exercising those rights.155 For example, when physical barriers prevent people with disabilities from exercising their fundamental right of access to the courts, an ADA violation also may violate the Due Process Clause.156 The Court is unaware of any cases, and the parties cite none, in support of the proposition that Plaintiff was unable to exercise a fundamental right protected by the Due Process Clause. As a result, the Court finds no Fourteenth Amendment violation and proceeds to the third prong of the Georgia analysis.
C. Implication of Fourteenth Amendment Right Courts reach the third prong of the Georgia test on summary judgment only in
cases in which there is a genuine issue of material fact as to whether a defendant’s conduct violated Title II of the ADA, but the alleged conduct did not violate the Fourteenth Amendment.157 As a result, in this case, the Court must consider whether, as to the alleged conduct, Title II of the ADA was a valid exercise of Congressional authority under Section Five of the Fourteenth Amendment.158 In City of Boerne v. Flores, the Supreme Court held that, in order for Congress to exercise its enforcement power under Section Five, “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”159 Even if Congress proscribes conduct that does not directly violate the Fourteenth Amendment, legislation is a valid exercise of Congressional power under Section Five if this “congruence and proportionality” test is
155 Id. at 515. 156 See generally id. 157 Georgia, 546 U.S. at 159. 158 See id. 159 521 U.S. 507, 520 (1997).
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satisfied.160 If Title II is congruent and proportional to the constitutional right a claim
implicates, the ADA validly abrogates sovereign immunity for the claim.161
In Tennessee v. Lane, plaintiffs were a wheelchair-bound man forced to crawl up
two flights of stairs to reach a court hearing on the second floor of a courthouse and a
wheelchair-bound certified court reporter who alleged she had lost work because of her
inability to access courthouses.162 In addressing whether Congress validly abrogated state
sovereign immunity, the Supreme Court outlined the purpose of Title II of the ADA. The
Court noted that the purpose of Title II is not limited to prohibiting state governments
from violating of the Equal Protection Clause of the Fourteenth Amendment by classifying
people based on disability without a rational relationship to a legitimate governmental
purpose.163 Title II also “seeks to enforce a variety of other basic constitutional
guarantees, infringements of which are subject to more searching judicial review . . .
includ[ing] some, like the right of access to the courts at issue in [Lane], that are protected
by the Due Process Clause of the Fourteenth Amendment.” 164
The Court explained that “Congress enacted Title II against a backdrop of pervasive
unequal treatment in the administration of state services and programs, including
systematic deprivations of fundamental rights.” The Court listed a plethora of examples,
including
[prohibitions on] engaging in activities such as marrying and serving as jurors[;] . . . unconstitutional treatment of disabled persons by state agencies in a variety of settings, including unjustified commitment; the abuse and neglect of persons committed to state mental health
160 Id. 161 Id.; see also Shaikh v. Texas A&M Univ. Coll. of Med., 739 F. App’x 215, 225 (5th Cir. 2018) (finding erroneous a district court’s holding that “state sovereign immunity bars everything but constitutional claims”). 162 541 U.S. at 513. 163 Id. at 522. 164 Id. at 522–23 (citations omitted).
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hospitals; irrational discrimination in zoning decisions[; and] . . . a pattern of unequal treatment in the administration of a wide range of public services, programs, and activities, including the penal system, public education, and voting. 165
The Court found “Title II unquestionably is valid § 5 legislation as it applies to the class
of cases implicating the accessibility of judicial services.”166 Finding Title II’s requirement
of program accessibility “congruent and proportional to its object of enforcing the right
of access to the courts,” the Court held Title II validly abrogated sovereign immunity as
to cases involving access to the courts.167 The Court explicitly did not address whether
Title II validly abrogates sovereign immunity in “private suits for money damages for
failing to provide reasonable access to hockey rinks, or even to voting booths.”168
Plaintiff does not explicitly state the Fourteenth Amendment right she argues is
implicated by Defendants’ conduct. Rather, she cites Lane to argue the alleged Title II
violation is “within the universe of rights grounded in the Fourteenth Amendment
because ‘the sheer volume of evidence demonstrating the nature and extent of
unconstitutional discrimination against persons with disabilities in the provision of
public services.’”169 To the extent Plaintiff identifies “discrimination against persons with
disabilities in the provision of public services” as the fundamental right identified by the
Lane court, she misconstrues Lane’s holding. “Lane identified a narrow category of state
action that focused the analysis on a specific individual right—the right of access to the
165 Id. at 524–25 (citations omitted). 166 Id. at 531. 167 Id. 168 Id. At oral argument in Lane, the justices asked where it would be a “constitutional violation to refuse to afford special access to a hockey rink,” and the nature of any due process right implicated. Transcript of Oral Argument at 43–46, Tennessee v. Lane, 541 U.S. 509 (2004) (No. 02-1667). Counsel for the plaintiffsrespondents admitted that the Court has never articulated a general right to “freedom of access to all governmental facilities.” Id. at 47. 169 R. Doc. 32 at 27 (quoting Lane, 541 U.S. at 528–29).
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courts.”170 The Court is aware of no cases, and the parties cite none, creating a fundamental right under the Due Process Clause to freedom of access to stadiums, concerts, or all governmental buildings. As a result, the Court finds the alleged Title II violations do not implicate a right guaranteed by the Fourteenth Amendment. Congress did not validly abrogate sovereign immunity for Plaintiff’s claim under Title II of the ADA. The LSED is entitled to judgment as a matter of law on Plaintiff’s claim for damages under Title II of the ADA. III. The LSED is entitled to sovereign immunity on Plaintiff’s claim for
equitable relief against it under Title II of the ADA. In the instant motion, Defendants move for judgment that the LSED is entitled to sovereign immunity on Plaintiff’s claim for damages under Title II of the ADA.171 Defendants do not argue the LSED is entitled to sovereign immunity on Plaintiff’s claim for injunctive relief. However, the Court may consider the issue sua sponte because it bears on the court’s subject-matter jurisdiction.172 The Eleventh Amendment entitles states to sovereign immunity in “any suit in law or equity.”173 “[T]he Eleventh Amendment bars suits for both money damages and injunctive relief unless the state has waived its immunity.”174 The Court has found the LSED is entitled to sovereign immunity on Plaintiff’s claim for damages under Title II of the ADA. For the same reasons, the LSED is entitled to sovereign immunity on Plaintiff’s claim for injunctive relief against it under Title II of the ADA.
170 Guttman v. Khalsa, 669 F.3d 1101, 1120 (10th Cir. 2012). 171 R. Doc. 45-1 at 17. 172 See Perez v. Region 20 Educ. Serv. Ctr., 307 F.3d 318, 333 (5th Cir. 2002) (“[W]e may consider this [sovereign immunity] issue sua sponte because it bears on this court's subject-matter jurisdiction.”) (citing Burge v. Parish of St. Tammany, 187 F.3d 452, 465–66 (5th Cir.1999)). 173 U.S. CONST. amend. XI. 174 Cozzo, 279 F.3d at 280–81.
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IV. Kyle France is entitled to sovereign immunity on Plaintiff’s claim for damages, but not injunctive relief, against him. Plaintiff sues France in his official capacity as Chairman of the Board of
Commissioners of the LSED. Although Defendants do not move for judgment that France is entitled to sovereign immunity, the Court considers the issue sua sponte. “[A]n officialcapacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. . . . The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.”175 Because France is sued in his official capacity as Chairman of the Board of Commissioners, the governing entity of the LSED, he has the same entitlement to sovereign immunity against claims for damages as the LSED itself. As a result, France is entitled to sovereign immunity on Plaintiff’s damages claim against him under Title II of the ADA.
France is not entitled to sovereign immunity on Plaintiff’s claim for injunctive relief against him under Title II of the ADA. In Ex parte Young,176 the Supreme Court “created an exception to Eleventh Amendment immunity for claims for prospective relief against state officials who have been sued in their official capacities.”177 “[P]rospective injunctive or declaratory relief against a state is permitted—whatever its financial sideeffects—but retrospective relief in the form of a money judgment in compensation for past wrongs—no matter how small—is barred.”178 The Fifth Circuit has stated that Ex parte Young “is usually quite easy to apply,” and, when a damages claim and an injunctive claim
175 Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (emphasis in original). 176 209 U.S. 123 (1908). 177 Nelson v. Univ. of Texas at Dallas, 535 F.3d 318, 320 (5th Cir. 2008). 178 Brennan v. Stewart, 834 F.2d 1248, 1253 (5th Cir. 1988).
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are brought against a state official in his official capacity, the district court should “dismiss[] the official-capacity damage claims but retain[] jurisdiction over the officialcapacity equitable one[].”179 In this case, the Court finds France is entitled to sovereign immunity on Plaintiff’s Title II damages claim against him, but not on Plaintiff’s Title II claim for injunctive relief against him.
CONCLUSION IT IS ORDERED that the motion for summary judgment, filed by Defendants SMG, the Louisiana Stadium and Exposition District, and Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, be and hereby is GRANTED IN PART.180 The Louisiana Stadium and Exposition District is entitled to sovereign immunity on Plaintiff’s claims for damages and injunctive relief against it under Title II of the Americans with Disabilities Act. France is entitled to sovereign immunity on Plaintiff’s claim for damages against him under Title II of the Americans with Disabilities Act, but not on Plaintiff’s claim for injunctive relief against him under Title II of the Americans with Disabilities Act. New Orleans, Louisiana, this 7th day of March, 2019.
________________________________ SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
179 Id. 180 R. Doc. 45.
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 Case 2:17-cv-07267-SM-JCW Document 87 Filed 03/06/19 Page 1 of 15

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

NANCY SMITH, Plaintiff

CIVIL ACTION

VERSUS

NO. 17-7267

BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM AND EXPOSITION DISTRICT, ET AL.,
Defendants

SECTION: “E” (1)

ORDER AND REASONS Before the Court are (1) a motion for summary judgment, filed by Plaintiff Nancy

Smith, on her claims against Defendant SMG;1 (2) a motion for summary judgment, filed

by Smith, on her claims against Defendants the Louisiana Stadium and Exposition

District (“LSED”) and Kyle France;2 and (3) a motion for summary judgment, filed by the

LSED, France, and SMG.3 The motions are opposed.4 In this order, the Court addresses

only the parties’ arguments regarding Plaintiff’s standing to sue for injunctive relief.5 For

the reasons that follow, the Court GRANTS Plaintiff’s motions for summary judgment,

finding she has standing to seek injunctive relief under Title II of the ADA against the

LSED and France and under Title III of the ADA against SMG6 and DENIES Defendants’

1 R. Doc. 40. 2 R. Doc. 41. In her Amended Complaint, Plaintiff named the Board of Commissioners of the Louisiana Stadium and Exposition District as a defendant based on her belief that the Board owned the MercedesBenz Superdome. R. Doc. 5. The Court granted her motion to substitute the Louisiana Stadium and Exposition District as a defendant in place of the Board of Commissioners of the Louisiana Stadium and Exposition District. R. Doc. 82. 3 R. Doc. 45. 4 R. Docs. 56, 57, 59. 5 The motions also address Plaintiff’s standing to sue for declaratory relief. At the pretrial conference in this matter, Plaintiff’s counsel did not include a claim for declaratory relief when he listed the claims remaining in the case. R. Doc. 70. As a result, the Court does not address Plaintiff’s standing to sue for declaratory relief herein. 6 The motions also address Plaintiff’s claim for injunctive relief against SMG under the Louisiana Human Rights Act, LA. REV. STAT. 51:2231 et seq. At the pretrial conference in this matter, Plaintiff’s counsel represented Plaintiff seeks injunctive relief against SMG only under Title III. R. Doc. 70.
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motion for summary judgment on the same issues. The Court will address the remaining portions of the motions in a separate order.
FACTUAL AND PROCEDURAL BACKGROUND The following facts are undisputed. Plaintiff is an amputee who is disabled within the meaning of the ADA.7 On April 2, 2016, she attempted to call the box office of the Mercedes-Benz Superdome (“Superdome”) to purchase tickets for a Guns N’ Roses concert, to be held on July 31, 2016.8 In reality, she contacted a representative of Box Office Ticket Center LLC, who assured her the tickets she was purchasing were accessible seats compliant with the ADA.9 The Superdome is owned by LSED and operated and managed by Defendant SMG.10 SMG is responsible for coordinating events, including creating seating charts for concerts.11 Ticketmaster LLC, not Box Office Ticket Center LLC, has the sole and exclusive right to sell and distribute tickets for concerts at the Superdome.12 SMG identifies accessible seats in its seating chart for music concerts and submits that information to Ticketmaster.13 SMG’s usual practice is to reserve additional ADA-accessible seats in case a customer with a disability, but without a ticket for an accessible seat, requests to be moved to an accessible seat.14 For the Guns N’ Roses concert, SMG reserved approximately one hundred fifty-one accessible seats for this purpose.15
7 R. Doc. 69 at 9, ¶ 7(a) (uncontested material facts in pretrial order). 8 Id. at 10, ¶¶ 7(f)–(g). 9 Id. at ¶¶ 7(g)–(h). 10 Id. at ¶ 7(c). 11 Id. at ¶ 7(c)–(e). 12 Id. at 11, ¶ 7(k). 13 Id. at ¶ 7(m). 14 R. Doc. 45-2 at 4, ¶ 19; R. Doc. 59-1 at 5, ¶ 19. 15 R. Doc. 45-2 at 4, ¶ 24; R. Doc. 59-1 at 6, ¶ 24.
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Plaintiff’s ticket originally was bought from Ticketmaster LLC and resold on the secondary market by Box Office Ticket Center LLC. The seat for which Plaintiff purchased a ticket had not been designated by SMG as accessible.16 When Plaintiff and her daughter arrived at the Superdome on the night of the concert, they sought assistance from a SMG staffer to locate their seats.17 Plaintiff asked the staffer to remove the existing chair in the space of her ticketed seat to permit her to park her wheelchair in its place.18 The staffer told her the existing chair could not be removed.19 Plaintiff expressed safety concerns about her being transferred out of her wheelchair into the existing chair, but eventually agreed to do so.20 The SMG staffer took her wheelchair, which was returned to her after the concert.21
Plaintiff resides in Hinds County, Mississippi, about 180 miles from the Superdome.22 At deposition, Plaintiff testified she had been to the Superdome ten to fifteen times and that the last time she went to the Superdome before the Guns N’ Roses concert was in 2009.23 She has not returned to the Superdome since the concert.24 Plaintiff testified she bought tickets to a Bruno Mars concert at the Smoothie King Center, but decided not to go because of her experience at the Guns N’ Roses concert.25 She testified she “would like to” return to the Superdome if she were interested in an event, but there had been no events since the Guns N’ Roses concert that had interested her.26
16 R. Doc. 69 at 10, ¶ 7(i). 17 Id. at 12, ¶ 7(t). 18 Id. at ¶ 7(u). 19 Id. 20 Id. at ¶ 7(v). 21 Id. at ¶¶ 7(w)–(x). 22 Id. at 9, ¶ 7(b); 13, ¶ 7(ff). 23 R. Doc. 40-4 at 45–46. 24 Id. at 115. 25 Id. 26 Id. at 118.
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On July 28, 2017, Plaintiff filed a complaint.27 She filed an amended complaint on August 20, 2017.28 The Defendants remaining in the case are SMG, the LSED, and France, in his official capacity as Chairman of the Board of Commissioners of the LSED. Plaintiff brings (1) a claim for injunctive relief under Title II of the ADA against the LSED and France, (2) a claim for injunctive relief under Title III of the ADA against SMG, (3) a claim for damages under Title II of the ADA against the LSED and France, and (4) a claim for damages under the LHRA against SMG.29 In this order, the Court addresses only the first and second claims, under which Plaintiff seeks injunctive relief.
On December 24, 2018, Plaintiff filed a motion for partial summary judgment as to SMG30 and a motion for partial summary judgment as to the LSED and France.31 She argues she is entitled to judgment as a matter of law that she has standing to seek injunctive relief.32 Defendants oppose.33 On December 26, 2018, Defendants SMG, the LSED, and France filed a cross-motion for summary judgment on all of Plaintiff’s claims, arguing they are entitled to judgment as a matter of law that Plaintiff does not have standing to seek injunctive relief.34 Plaintiff opposes.35 With respect to the issue of Plaintiff’s standing to seek injunctive relief under Title II of the ADA against the LSED and France and Title III of the ADA against SMG, Plaintiff moves the Court to find she has standing. Defendants move the Court to find she does not.36
27 R. Doc. 1. 28 R. Doc. 5. 29 R. Doc. 70 at 1–2. 30 R. Doc. 40. 31 R. Doc. 41. 32 R. Docs. 40, 41. 33 R. Docs. 56, 57. 34 R. Doc. 45. 35 R. Doc. 59. 36 Plaintiff and Defendants both cite the transcript of Plaintiff’s deposition testimony. R. Docs. 40-4, 45-2. There are no material facts in dispute on the issue of standing.
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SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”37 “An issue is material if its resolution could affect the outcome of the action.”38 When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”39 All reasonable inferences are drawn in favor of the non-moving party.40 There is no genuine issue of material fact if, even viewing the evidence in the light most favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.41 “[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” To satisfy Rule 56’s burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court’s attention to something in the
37 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). 38 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). 39 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). 40 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). 41 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)).
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pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.42
If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant’s claim.43 If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.44 Thus, the non-moving party may defeat a motion for summary judgment by “calling the Court’s attention to supporting evidence already in the record that was overlooked or ignored by the moving party.”45 “[U]nsubstantiated assertions are not competent summary judgment evidence. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party’s opposition to summary judgment.’”46
42 Celotex, 477 U.S. at 322–24. 43 Id. at 331–32 (Brennan, J., dissenting). 44 See id. at 332. 45 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3. 46 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)).
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LAW AND ANALYSIS
Plaintiff brings claims for injunctive relief against the LSED and France under Title
II of the ADA and against SMG under Title III of the ADA. Plaintiff argues she has
standing to bring these claims.47 Defendants argue that, to establish standing to seek
injunctive relief, Plaintiff must show she “will once again purchase non-ADA accessible
tickets and then again fail to make a request to SMG to exchange or relocate her tickets to
an ADA accessible location.”48 Defendants also argue that, because Plaintiff lives
approximately 180 miles away from the Superdome and has admitted she has no concrete
or specific plans to return, she cannot show a “likelihood of substantial and immediate
irreparable injury,” meaning a likelihood she will be denied the benefits of future
Superdome events.49
The Court notes that, in opposition to Plaintiff’s motions for summary judgment
on standing, Defendants raise questions concerning the merits of Plaintiff’s ADA claims.50
When determining whether a plaintiff has Article III standing, the Court “must assume
arguendo the merits of his or her legal claim.”51 The merits of the claim include
substantive questions of liability.52 In the standing inquiry in this case, the Court does not
address the issue of whether Plaintiff can prove her case at trial. The Court assumes the
47 R. Doc. 41-1 at 12. In her motion for summary judgment on her claims against the LSED and France, Plaintiff incorporates by reference her motion for summary judgment on her claims against SMG, in which she argues she has standing to seek injunctive relief against SMG under Title III of the ADA, R. Doc. 40-1 at 12–18. Her motion on her claims against SMG does not analyze standing under Title II of the ADA or address whether the analysis under Title II differs from the analysis under Title III. 48 Id. at 13. 49 R. Doc. 57 at 12. 50 R. Doc. 56 at 6–9, R. Doc. 57 at 6–11. 51 North Cypress Med. Operating Co. v. Cigna Healthcare, 781 F.3d 182, 191 (5th Cir. 2015) (quoting Cole v. Gen. Motors Corp., 484 F.3d 717, 723 (5th Cir. 2007)); see also Parker v. D.C., 478 F.3d 370, 377 (D.C. Cir. 2007), aff’d sub nom. D.C. v. Heller, 554 U.S. 570 (2008) (“[I]n reviewing the standing question, the court must be careful not to decide the questions on the merits for or against the plaintiff, and must therefore assume that on the merits the plaintiffs would be successful in their claims.”). 52 See North Cypress, 781 F.3d at 191 (not addressing liability in the standing inquiry).
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merits of Plaintiff’s ADA claims and confines its inquiry to whether she has established the elements of standing. As a result, the Court will not address Defendants’ arguments with respect to the merits of Plaintiff’s ADA claims.53
To survive a motion for summary judgment on standing, a plaintiff must “submit affidavits or other evidence showing, through specific facts,” that each element of standing is satisfied.54 In this case, Plaintiff attaches the transcript of her deposition testimony in support of her argument that she has standing to seek injunctive relief.55 Defendants do not offer evidence contradicting Plaintiff’s deposition testimony, and in fact attach the same transcript to their motion for summary judgment.56 As a result, the Court consults the transcript of Plaintiff’s deposition to determine whether she has demonstrated she has standing to seek injunctive relief.
In Lujan v. Defenders of Wildlife, the Supreme Court laid out the general requirements for plaintiffs, whether seeking damages or injunctive relief, to establish standing under Article III of the Constitution.57 “To satisfy Article III’s standing requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”58
53 R. Doc. 45-1 at 9–10, R. Doc. 56 at 6–9, R. Doc. 57 at 7 – 11. 54 Lujan v. Defs. of Wildlife, 504 U.S. 555, 563 (1992). 55 R. Doc. 40-4. 56 R. Doc. 45-6. 57 504 U.S. at 560–61. 58 Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing Lujan, 504 U.S. at 560–61).
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“The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing
these elements.”59
The only prong at issue in this case is the first prong, injury-in-fact.60 A plaintiff
seeking injunctive relief, unlike a plaintiff seeking damages, must establish more than the
existence of a “past wrong” to satisfy the injury-in-fact requirement.61 Instead, a plaintiff
must “show that he has sustained or is immediately in danger of sustaining some direct
injury as the result of the challenged conduct.”62
Title II of the ADA authorizes plaintiffs to seek injunctive relief against public
entities generally,63 and Title III of the ADA authorizes plaintiffs to seek injunctive relief
against places of public accommodation operated by private entities.64 The Supreme
Court has not addressed the injury-in-fact requirement under either title. The Fifth
Circuit addressed the legal standard for establishing an injury-in-fact for a Title II ADA
claim in Frame v. City of Arlington.65 Rather than laying out a separate legal standard for
analyzing the injury-in-fact prong of claims for injunctive relief under the ADA, the Fifth
Circuit applied prior Supreme Court and Fifth Circuit caselaw regarding the injury-in-fact
59 Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). 60 Defendants base their argument that Plaintiff does not have standing to seek injunctive relief on their argument that she has not shown a “likelihood of substantial and immediate irreparable injury or any realistic intent to return.” R. Doc. 56 at 9, R. Doc. 57 at 12. The Fifth Circuit has analyzed the likelihood of irreparable injury and intent to return to a public accommodation under the “injury in fact” prong of the Lujan test. See, e.g., Deutsch v. Travis Cty. Shoe Hosp., Inc., 721 F. App’x 336, 341 (5th Cir. 2018) (unpublished); Frame v. City of Arlington, 657 F.3d 215 (5th Cir. 2011). 61 Armstrong v. Turner Indus., Inc., 141 F.3d 554, 563 (5th Cir. 1998) (“Past wrongs do not in themselves amount to that real and immediate threat of injury necessary to make out a case or controversy.””)(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983)) (internal ellipsis omitted). 62 Id. (quoting Lyons, 461 U.S. at 109) (internal ellipsis omitted). 63 42 U.S.C. § 12133 (incorporating into Title II of the ADA the remedial scheme of the Rehabilitation Act, 29 U.S.C. § 794a, which permits claims for damages and injunctive relief). 64 42 U.S.C. § 12188 (incorporating into Title III of the ADA the remedial scheme of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3, which permits only actions for injunctive relief). 65 657 F.3d at 235–36 n.100–03. The Fifth Circuit had previously addressed standing in the ADA context in Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir. 1997). The plaintiff in Plumley died before the suit was resolved. Id. at 310. The court held the plaintiff could not establish standing to seek injunctive relief because he could not be wronged again. Id. at 312.
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prong in general. Although Frame was a Title II case, it relies for its reasoning on Title III
cases from other circuits without suggesting a different standard applies under Title II or
Title III.66 As a result, in this case, the Court relies on Frame to analyze Plaintiff’s standing
to seek injunctive relief under both Title II and Title III.67
Plaintiff urges the Court not to rely solely on Frame,68 but instead to follow the
Second Circuit’s decision in Kreisler v. Second Ave. Diner Corp., which lays out a test for
analyzing the injury-in-fact prong for injunctive claims specific to Title III of the ADA.69
The Kreisler court stated that standing under the ADA exists in cases in which “(1) the
plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the
discriminatory treatment would continue; and (3) it was reasonable to infer, based on the
past frequency of plaintiff’s visits and the proximity of defendants’ restaurants to
plaintiff’s home, that plaintiff intended to return to the subject location.”70 As noted, the
Supreme Court has not addressed the legal standard for plaintiffs to establish standing to
seek injunctive relief against a public accommodation under Title II or Title III of the
ADA, and the federal courts of appeal addressing the issue have adopted varying
approaches. Some courts, including the Second Circuit in Kreisler, apply an “intent to
return” test, requiring plaintiffs to show they intend to return to the place of public
accommodation.71 Others apply a “deterrent effect” test, which is a “broader conception
66 657 F.3d at 236 n.104 (citing Disabled Americans For Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005) (Title III case); Pickern v. Holiday Quality Foods, Inc. 293 F.3d 1133, 1136–37 (9th Cir. 2002) (same)). 67 In its unpublished opinion in Deutsch, which was a Title III case, the Fifth Circuit stated that Frame was not controlling because it was a Title II case, but proceeded to cite the legal standard from Frame and distinguish the facts of Frame. 721 F. App’x at 340–41. The Deutsch court did not address whether or how the legal standard for standing under Title II differs from the standard under Title III. Id. 68 R. Doc. 40-1 at 13. 69 731 F.3d 184, 187–88 (2d Cir. 2013). 70 Id. 71 See Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 2000) (holding ADA plaintiffs challenging architectural barriers in a building not compliant with the ADA “must at least prove knowledge of the
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of injury”72 under which plaintiffs need only show they were deterred from visiting the
public accommodation.73 Still other courts apply a hybrid of the two approaches.74 The
Fifth Circuit has not clearly adopted either test. The Fifth Circuit has not cited Kreisler,
and only one district court in the circuit has adopted the Kreisler test.75
In Frame, plaintiffs were wheelchair users who alleged certain inaccessible
sidewalks “ma[d]e it dangerous, difficult, or impossible for them to travel to a variety of
public and private establishments.”76 They sought injunctive relief from the City of
Arlington, Texas under Title II.77 The City argued plaintiffs lacked standing to challenge
sidewalks they had not personally encountered.78
The Fifth Circuit in Frame explained:
Mere “some day” intentions to use a particular sidewalk, “without any description of concrete plans,” does not support standing. But “imminence” is an “elastic concept” that is broad enough to accommodate challenges to at least some sidewalks that a disabled person has not personally encountered. For example, a plaintiff may seek injunctive relief with respect to a soon-to-be-built sidewalk, as long as the plaintiff shows a sufficiently high degree of likelihood that he will be denied the benefits of that sidewalk once it is built. Similarly, a disabled individual need not engage in futile gestures before seeking an injunction; the individual must show only that an inaccessible sidewalk actually affects his activities in some concrete way. On remand, the district court will be able to apply established standing doctrine to weed out any hypothetical claims. At this point, however, the plaintiffs have alleged in detail how specific inaccessible sidewalks
barriers and that they would visit the building in the imminent future but for those barriers”). 72 Jones v. My Investments LLC of MS, No. CV 16-1850, 2016 WL 4131284, at *3 (E.D. La. Aug. 3, 2016). 73 See Pickern, 293 F.3d at 1136–37 (“[O]nce a plaintiff has actually become aware of discriminatory conditions existing at a public accommodation, and is thereby deterred from visiting or patronizing that accommodation, the plaintiff has suffered an injury.”)). The First Circuit also has adopted this approach. Ferries Del Caribe, Inc., 405 F.3d at 64 (“‘[A] disabled individual who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA’ and ‘who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA’ suffers actual or imminent harm sufficient to confer standing.”) (quoting id.). 74 Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir. 2011) (holding a plaintiff can establish standing to sue by either demonstrating he was deterred from returning to a facility or demonstrating he suffered an injury by being denied the benefits of a facility, coupled with an intent to return). 75 Fultz v. Par., No. CV 16-001, 2016 WL 4479517, at *3 (E.D. La. Aug. 25, 2016). 76 657 F.3d at 221. 77 Id. 78 Id. at 235.
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negatively affect their day-to-day lives by forcing them to take longer and more dangerous routes to their destinations. This is sufficient to support their right to sue.79 The Frame court did not explicitly adopt either the “deterrent effect” test or the “intent to return” test. However, the Fifth Circuit cited with approval First Circuit and Ninth Circuit cases standing for the proposition that a showing of a deterrent effect is sufficient to establish standing to seek injunctive relief.80 In light of Frame, district courts in the Fifth Circuit have generally adopted the “deterrent effect” test in Title III cases under the ADA.81 Because the Fifth Circuit has not clearly adopted either test, the Court analyzes whether Plaintiff has standing to seek injunctive relief under Title II and Title III of the ADA under both tests. I. “Deterrent Effect” Test At deposition, Plaintiff testified that she had bought two tickets for a concert at the Smoothie King Center, adjacent to the Superdome.82 She intended to go to the concert with her daughter, and she was told over the phone the tickets were for accessible seats.83 She testified she chose not to go because she was “fearful.”84 When asked to be more specific about what she feared would happen, she responded: “The exact same thing that had happened with Guns N’ Roses. It would be hard getting in and out of; the crowd; I would get to a spot, they would take my wheelchair away; the exact same thing that
79 Id. at 235–36 (citations omitted). 80 Id. at 236 n.104. 81 See, e.g., Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 584 (S.D. Tex. 2014) (“The Fifth Circuit appears to have endorsed [the deterrent effect] theory.”) (quoting Kramer v. Lakehills S., LP, No. A-13-CA591 LY, 2014 WL 51153, at *4 (W.D. Tex. Jan. 7, 2014)). Cf. Jones v. My Investments LLC of MS, No. CV 161850, 2016 WL 4131284, at *3 (E.D. La. Aug. 3, 2016) (stating the deterrent effect test is a “broader conception of injury in fact in the ADA context [that] is consistent with the express language of the ADA”). 82 R. Doc. 40-4 at 117. 83 Id. 84 Id.
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happened at Guns N’ Roses or any portion of it.”85 This is sufficient to show Plaintiff was deterred from visiting the Superdome, which has concretely affected her life decisions.
Plaintiff cites the Supreme Court’s decision in Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., in support of the proposition that she need not “articulate a specific date of expected future injury to have standing for prospective relief.”86 In Friends of the Earth, environmental organizations brought suit against the operator of a wastewater treatment plant, alleging the defendant had illegally discharged pollutants into waterways and seeking injunctive relief.87 The Supreme Court found the plaintiffs had established an injury in fact sufficient to seek injunctive relief because members of the plaintiff organizations had testified that they had used the area close to defendant’s facility for recreational purposes, but no longer did so because of the discharges from the facility.88 The Court held that the defendant’s pollution affected the plaintiffs’ “recreational, aesthetic, and economic interests.”89 The Court found “nothing ‘improbable’ about the proposition that a company’s continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents to curtail their recreational use of that waterway and would subject them to other economic and aesthetic harms” and further found this sufficient to establish injury in fact.90 Like in Friends of the Earth, Plaintiff in this case has standing because the alleged discrimination affects her recreational interests by deterring her from going to concerts at the Superdome. The Court finds Plaintiff has standing to seek injunctive relief under the deterrent effect test.
85 Id. 86 R. Doc. 40-1 at 17. 87 528 U.S. at 176. 88 Id. at 182–83. 89 Id. at 184. 90 Id.
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II. “Intent to Return” Test Even under the “intent to return” test, Plaintiff has standing to seek injunctive
relief under Title II and Title III of the ADA. It is uncontested Plaintiff resides about 180 miles from the Superdome and that she has no concrete or specific plans to return to the Superdome.91 However, she testified at deposition she had been to the Superdome ten to fifteen times.92 She also testified she “would like to” return to the Superdome if she were interested in an event, but there had been no events since the Guns N’ Roses concert that had interested her.93 This is sufficient to show Plaintiff had more than “mere some day intentions” to return.94
Defendants cite the Fifth Circuit’s unpublished decision in Deutsch v. Travis Cty. Shoe Hosp., Inc.95 in support of their argument that Plaintiff does not have standing because she has not shown she intends to return to the Superdome.96 In Deutsch, the Fifth Circuit found the plaintiff did not have standing to sue because he had “not provided a description of any concrete plans to return” to the shoe store, and he had not “shown how the alleged ADA violations negatively affect his day-to-day life.”97 Noting the plaintiff’s testimony that he had never been to the shoe store prior to the visit in question and had not returned since, the court found he “‘perhaps’ had an intention of returning to the business but had no specific intention of doing so.” 98 Defendants argue the Fifth Circuit endorsed the “intent to return” approach in Deutsch. Unlike the plaintiff in Deutsch,
91 R. Doc. 69 at 9, ¶ 7(b); 13, ¶ 7(ff). 92 R. Doc. 40-4 at 45–46. 93 Id. at 118. 94 Frame, 657 F.3d at 236. 95 721 F. App’x 336 (5th Cir. 2018) 96 R. Doc. 57 at 12. 97 721 F. App’x at 340. 98 Id. at 340–41.
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Plaintiff in this case had visited the Superdome on multiple occasions prior to the Guns N’ Roses concert and, although she has not made any definite plans to return to the Superdome, she expressed a clear intent to do so. As a result, the Court finds Plaintiff also has standing to seek injunctive relief under the “intent to return” test. 99
CONCLUSION IT IS ORDERED that the motions for summary judgment, filed by Plaintiff Nancy Smith be and hereby are GRANTED IN PART with respect to Plaintiff’s standing to seek injunctive relief under Title II of the ADA against Defendants the Louisiana Stadium and Exposition District and Kyle France, sued in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, and under Title III of the ADA against Defendant SMG.100 IT IS FURTHER ORDERED that the motion for summary judgment, filed by Defendants SMG, the Louisiana Stadium and Exposition District, and France, be and hereby is DENIED IN PART with respect to Plaintiff’s standing to sue for injunctive relief.101 New Orleans, Louisiana, this 6th day of March, 2019.
________________________ _______ SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
99 Because the Court finds Plaintiff has standing to seek injunctive relief, the Court does not address her argument regarding her standing to sue because she is allegedly an ADA tester, R. Doc. 40-1 at 18. 100 R. Docs. 40, 41. Although Plaintiff has standing to seek injunctive relief, the Court has found the LSED and France are entitled to sovereign immunity. R. Doc. 88. 101 R. Doc. 45.
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 Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 1 of 19

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

------------------------------------------------------x

NANCY SMITH,

:

an individual,

:

:

Plaintiff,

:

CASE NO: 2:17-cv-7267-SM-JCW

:

vs.

:

JUDGE: SUSIE MORGAN

:

:

BOARD OF COMMISSIONERS OF THE :

MAGISTRATE: JOSEPH C. WILKINSON

LOUISIANA STADIUM AND

:

EXPOSITION DISTRICT, as the political :

entity which owns the Superdome;

:

KYLE FRANCE, in his official capacity as :

chief executive of the BOARD OF

:

COMMISSIONERS OF THE LOUISIANA :

STADUM AND EXPOSITION DISTRICT; :

SMG; LIVE NATION WORLDWIDE, :

INC.; and BOX OFFICE TICKET

:

CENTER, LLC,

:

:

Defendants

:

------------------------------------------------------x

FIRST AMENDED COMPLAINT1

“I now lift my pen to sign this Americans with Disabilities Act and say: Let the shameful wall of exclusion finally come tumbling down. God bless you all.”

- George H. W. Bush, July 26, 1990

Plaintiff, NANCY SMITH, by and through her undersigned counsel, hereby files this

Complaint and sues the BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM

AND EXPOSITION DISTRICT, as the political entity which owns the Mercedes-Benz

Superdome (hereinafter referred to as “BOARD”), for damages, injunctive and declaratory relief,

attorneys’ fees and costs pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §

1 This First Amended Complaint is filed as of right pursuant to Rule 15(a)(1)(A). 1

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 2 of 19
12131 et seq. (hereinafter “Americans with Disabilities Act” or “ADA”), the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (hereinafter “Rehabilitation Act”), and the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2231 et seq., (hereafter “LCHR”); sues SMG for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., and the LCHR; sues KYLE FRANCE (hereinafter referred to as “FRANCE”), in his official capacity as chairperson and chief executive of the BOARD, for injunctive and declaratory relief, attorneys’ fees and costs pursuant to Title II of the ADA, the Rehabilitation Act, and the LCHR; sues LIVE NATION WORLDWIDE, INC. (hereinafter referred to as “LIVE NATION WORLDWIDE”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR; and sues BOX OFFICE TICKET CENTER, LLC (hereinafter referred to as “TICKET CENTER”) for declaratory and injunctive relief, attorneys’ fees, and costs pursuant to Title III of the ADA and the LCHR, and, in support thereof, states as follows:
JURISDICTION AND PARTIES 1. This is an action for relief pursuant to Title II and Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (hereinafter referred to as “Americans with Disabilities Act” or “ADA”), the Rehabilitation Act (, 29 U.S.C. §794, et seq. (hereinafter referred to as “Rehabilitation Act”), and the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2231 et seq., (hereafter “LCHR”). 2. This Court is vested with original jurisdiction over the Federal law claims pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction over the related state law claims pursuant to 28 U.S.C. § 1367, as such claims arise out of the same case or controversy as the Federal claims.
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3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because the property at issue in this lawsuit is located in the Parish of Orleans, in the Eastern District of Louisiana.
4. Plaintiff, NANCY SMITH, (hereinafter referred to as “MS. SMITH”), is a resident of Hinds County, in the State of Mississippi.
5. MS. SMITH is a qualified individual with a disability under the ADA. MS. SMITH’s left leg was amputated via a complete hip disarticulation in June, 2015, as the result of a necrotizing fasciitis infection.
6. Due to her disability, MS. SMITH is substantially impaired in several major life activities, including walking, standing, and bending, and relies primarily on a wheelchair for mobility, but occasionally utilizes crutches with or without a prothesis.
7. Upon information and belief, the BOARD is the political entity which owns the real property, improvements, and programs which are the subject of this action, to wit: the Mercedes-Benz Superdome, located at 1500 Sugar Bowl Drive, New Orleans, LA 70112 (hereinafter “Superdome” or “the Property”).
8. Upon information and belief, KYLE FRANCE, named in his official capacity as the chairman of the BOARD, is the official with chief executive power with respect to the BOARD, and bears responsibility in his official capacity as chief executive for administering, operating, and maintaining the BOARD’S public goods and services.
9. Upon information and belief, SMG is a partnership issued charter number 34816755L by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana.
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10. Upon information and belief, SMG is domiciled at 300 Conshohocken State Road, Ste. 450, West Conshohocken, PA 19428, with a Louisiana principal place of business located in New Orleans, Louisiana.
11. Upon information and belief, pursuant to an agreement between SMG and the BOARD, SMG operates the programs, services, accommodations which are offered at the Property.
12. Upon information and belief, LIVE NATION WORLDWIDE is a foreign corporation issued charter number 36798261F by the Louisiana Secretary of State and doing business in Orleans Parish, Louisiana.
13. Upon information and belief, LIVE NATION WORLDWIDE is domiciled at 3411 Silverside Rd. #104 Rodney Building, Wilmington, DE 19810, with a Louisiana principal place of business located in Mandeville, Louisiana.
14. Upon information and belief, LIVE NATION WORLDWIDE operates and produces live music concerts and entertainment events at the Superdome, in Orleans Parish.
15. Upon information and belief, during LIVE NATION WORLDWIDE concerts and events, LIVE NATION WORLDWIDE operates the programs, services, and accommodations offered at the Superdome.
16. Upon information and belief, TICKET CENTER is a Florida limited liability company and online ticket marketplace whose internet activities include doing business in Orleans Parish, Louisiana.
17. All DEFENDANTS are obligated to comply with the ADA and the LCHR; the BOARD and FRANCE are obligated to comply with the Rehabilitation Act. 4

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18. Upon information and belief, all DEFENDANTS are individually and/or vicariously responsible for the violations of the ADA, the LCHR, and/or the Rehabilitation Act which are at issue in this litigation. COUNT I: VIOLATION OF TITLE III OF THE AMERICANS WITH DISABILITIES ACT AS TO SMG, LIVE NATION WORLDWIDE, AND TICKET CENTER
19. MS. SMITH realleges and reavers Paragraphs 1 - 26 as if they were expressly restated herein.
20. The Property is a place of public accommodation, subject to the ADA, generally located at 1500 Sugar Bowl Drive, New Orleans, LA 70112.
21. The Superdome is a domed events and exhibition venue, located in the Central Business District of New Orleans, Louisiana.
22. Upon information and belief, LIVE NATION WORLDWODE organizes, promotes, and produces various live concerts in the Superdome, featuring a variety of popular music artists.
23. Upon information and belief, TICKET CENTER offers internet sales of tickets to live entertainment events at the Superdome.
24. In addition to hosting live music concerts, the Superdome is used for other purposes such as sporting events other live entertainment events.
25. MS. SMITH enjoys visiting New Orleans to attend live entertainment events and intends to return to the Superdome to see shows and watch live events.
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26. MS. SMITH has visited the Property in the past and plans to visit the Property again in the near future, as a patron, visitor, and ADA tester.
27. On or about April 2, 2016, MS. SMITH purchased a ticket through for the Guns N’ Roses: Not In This Lifetime Tour performance, which was to be held in the Superdome on July 31, 2016. Rather than rely solely on the online representations regarding the availability of accessible seating, MS. SMITH took the extra time and effort to make an inquiry by phone to ensure that the tickets she purchased would secure an accessible seat for herself as well as an adjoining seat for her companion.
28. Upon information and belief, MS. SMITH purchased accessible seats while on the phone with a TICKET CENTER customer support representative.
29. On July 31, 2015, the day of the Guns N’ Roses concert, MS. SMITH arrived at the Superdome with her companion before the show began. While navigating through the Superdome in her wheelchair, MS. SMITH and her companion experienced difficulty locating their ticketed seats, primarily due to the absence of accessible routes. Specifically, MS. SMITH and her companion were only able, after making several inquiries with event staffers, to find one elevator leading to the ground-floor level where the ticketed seats were located. Once MS. SMITH and her companion arrived on the ground-floor level, there was no accessible route from the entrance doors to the area where their ticketed seats were located. As a result, MS. SMITH’s companion had to push her wheelchair and help navigate through heavy crowds and foot traffic.
30. Upon information and belief, there were no accessible restrooms on the ground-floor level where MS. SMITH’s ticketed seats were located; only inaccessible portable toilets were provided for use by patrons. 6

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 7 of 19
31. The configuration of the seats on the ground-floor level did not match a diagram of the venue MS. SMITH viewed online at the time of ticket purchase. MS. SMITH’s companion had to inquire with event staff about where the ticketed seats were located, and they were directed to an ordinary (i.e., non-accessible) seat. The route to the ticketed seat was not sufficiently wide for MS. SMITH to freely navigate her wheelchair, causing her to inadvertently run over the foot of another patron, whom MS. SMITH later realized was also a wheelchair user sitting in an ordinary seat.
32. Once MS. SMITH arrived at her ticketed seat, which she specifically purchased based on TICKET CENTER’s representations that it was accessible, she saw that there was no empty floorspace designated for wheelchair users. Instead, a female event staffer instructed MS. SMITH to transfer out of her wheelchair into the ordinary seat. MS. SMITH was told by the event staffer that she would have to take MS. SMITH’s wheelchair. MS. SMITH was shocked and protested politely, and so did her companion. The event staffer responded that she had to take the wheelchair and that it would be stored with those of other wheelchair-using patrons. Feeling that she had no choice in the matter if she wanted to watch the concert, MS. SMITH reluctantly allowed her wheelchair to be taken.
33. The event staffer took MS. SMITH’s wheelchair away and stored it out of sight. Unable to see her primary means of mobility (MS. SMITH also had her crutches with her, which she was able to keep in her possession), MS. SMITH was fearful of her ability to escape the venue in the event of an emergency. MS. SMITH was also anxious about the procedure she should follow in the event she needed to use the restroom during the concert. MS. SMITH was additionally anxious about the possibility that her wheelchair might get stolen or damaged while it was stored away from her and out of her sight. Even though MS. 7

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 8 of 19
SMITH had her crutches, she was not confident in her ability to ambulate in them in the dimly-lit, crowded atmosphere. 34. MS. SMITH was unable to fully relax and enjoy the concert due to her preoccupation with the fears and anxieties regarding her wheelchair being taken from her. 35. MS. SMITH’s enjoyment of the concert was further diminished by her inability to see the stage. Ambulatory individuals were also in the ground-floor seating area all around MS. SMITH’s ticketed seat. These individuals were continuously standing and dancing in ways that disrupted MS. SMITH’s line of sight to the performance area. Event staffers were also standing around in ways that blocked MS. SMITH’s line of sight. 36. Under the ADA, a public accommodation is required to modify its policies, practices, or procedures to mitigate any disparate impact upon persons with disabilities. 28 CFR § 36.302(a). 37. Public accommodations must also take affirmative measures to ensure that such persons have an equal opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations that are available from that public accommodation. 42 U.S.C. § 12182; 28 CFR §§ 36.202(b), 36.201(a), 36.203(a), 36.302(a). 38. The ADA’s implementing regulations contain specific mandates for public accommodations regarding ticketing, accessible seating, and ticket sales. 28 CFR § 36.302(f). 39. By failing to provide an accessible route or a wheelchair space, and failing to protect the line of sight for disabled individuals in the wheelchair accessible seating area, SMG, and/or LIVE NATION WORLDWIDE effectively precluded wheelchair users such as MS.
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SMITH from obtaining the same benefits available to ambulatory patrons, in violation of 28 CFR §§ 36.201(a), 36.202(b), 36.204, 36.302(a), and 36.302(f). 40. By failing to adequately describe the features of available accessible seating in enough detail to reasonably permit MS. SMITH to assess whether the location of her ticketed seats would meet her accessibility needs, LIVE NATION WORLDWIDE, and/or TICKET CENTER failed to comply with the specific requirements of 28 CFR § 36.302(f). 41. At the July 31, 2016 Guns N’ Roses concert, SMITH was further discriminated against by being subjected to the humiliation, fear, and anxiety of having her primary means of mobility taken from her. There is simply no analogous experience to which an ambulatory patron could have been subjected; no adequate comparison can be made for ambulatory individuals. 42. MS. SMITH fears that if she returns to the Property, she would again be subjected to discrimination on the basis of her disability. 43. MS. SMITH intends on traveling to the Property in the near future to attend concerts, and also to see if SMG, and/or LIVE NATION WORLDWIDE have modified their discriminatory policies, practices, and procedures. 44. Upon information and belief, modification of the policies, practices, and/or procedures of SMG, and/or LIVE NATION WORLDWIDE would provide MS. SMITH an equal opportunity to participate in, or benefit from, the goods, services, and accommodations which SMG, and/or LIVE NATION WORLDWIDE offer to the general public. 45. Independent of her intent to return as a patron to the Property, MS. SMITH additionally intends to return as an ADA tester to determine whether the policies, practices, and procedures which are the subject of this suit have been remedied.
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46. MS. SMITH has been obligated to retain the undersigned counsel for the filing and prosecution of this action. MS. SMITH is entitled to have her reasonable attorneys’ fees, costs, and expenses paid by SMG, LIVE NATION WORLDWIDE, and/or TICKET CENTER pursuant to 42 U.S.C. § 12205. COUNT II: VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT AS TO THE BOARD AND FRANCE
47. MS. SMITH adopts and re-alleges the allegations contained in paragraphs 1-46 as if fully stated herein.
48. MS. SMITH continues to desire to visit the Property, but fears that she will experience serious difficulty again in light of the failures of SMG and/or LIVE NATION WORLDWIDE to make adequate and sufficient accommodations for MS. SMITH as a wheelchair user. As the owner of the Property, the BOARD and FRANCE are vicariously liable for any discrimination which occurs at the Property under the ADA by SMG, and/or LIVE NATION WORLDWIDE.
49. The BOARD and FRANCE have failed to adopt and implement adequate and sufficient policies and procedures and are therefore vicariously liable for all policies and procedures which are used by SMG, and/or LIVE NATION WORLDWIDE at the Property that deny MS. SMITH meaningful access to the goods, services, and programs which are offered at the Property.
50. Upon information and belief, the BOARD and FRANCE control the seating layout at the Property and/or provide the seating infrastructure at the Property, such that they are independently liable for ADA violations at the Property.
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51. The BOARD and FRANCE have discriminated against MS. SMITH by denying her full access to the services, programs, and/or activities by failing to make their facilities readily accessible as required by 42 U.S.C. §12132 and its implementing regulations at 28 C.F.R. § 35.101 et. seq.
52. Specifically, the actions set forth in paragraphs 1-46 show that SMG, and/or LIVE NATION WORLDWIDE are effectively excluding wheelchair patrons from obtaining the same benefits available to ambulatory patrons, in violation of 28 CFR §§ 35.130(a), 35.130(b)(1)(i), 35.130(b)(1)(ii), 35.130(b)(3)(i), and 35.130(b)(7)(i).
53. The BOARD and FRANCE have discriminated against MS. SMITH and others similarly situated in violation of the ADA by excluding and/or denying MS. SMITH the full and equal benefits of their services, programs, and/or activities by failing to, inter alia, make adequate and sufficient accommodations for mobility impaired individuals such as MS. SMITH, as detailed above in paragraphs 1-46.
54. Upon information and belief, the BOARD and FRANCE continue to discriminate against MS. SMITH, and all those similarly situated, by failing to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford all offered goods, services, programs, activities, facilities, privileges, advantages or accommodations to individuals with disabilities; and by failing to make such efforts that may be necessary to ensure that no individual with a disability is excluded, denied services, programs, and/or activities, segregated or otherwise treated differently than other individuals.
55. Upon information and belief, MS. SMITH, and all other individuals similarly situated, have been denied access to, and have been denied the benefits of services, programs and/or 11

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 12 of 19
activities of the BOARD, and have otherwise been discriminated against and damaged by the BOARD and FRANCE because of the BOARD’s and FRANCE’S discrimination, as set forth above. MS. SMITH and all others similarly situated will continue to suffer such discrimination, injury, and damage without the immediate relief provided by the ADA as requested herein. 56. 42 U.S.C. § 12133 provides: “[t]he remedies, procedures, and rights set forth in section 794 of Title 29 shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.” 57. MS. SMITH has retained the undersigned counsel and is entitled to recover reasonable attorneys’ fees, costs, and litigation expenses from the BOARD and FRANCE pursuant to 42 U.S.C. § 12205 and 28 C.F.R. § 35.175. 58. MS. SMITH is without adequate remedy at law and is suffering irreparable harm. 59. Pursuant to 42 U.S.C. § 12131, et seq., this Court is provided authority to grant MS. SMITH’s injunctive relief including an order that the BOARD and FRANCE alter the facilities at Property and alter their policies at the Property to make the programs and/or activities offered there readily accessible to and useable by MS. SMITH and all other persons with disabilities as defined by the ADA; or by closing the Property until such time as the BOARD and FRANCE cure their violations of the ADA.
COUNT III: VIOLATION OF THE REHABILITATION ACT AS TO THE BOARD AND FRANCE
60. MS. SMITH adopts and re-alleges the allegations contained in paragraphs 1-59 as if fully stated herein.
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Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 13 of 19
61. MS. SMITH brings this claim against BOARD and FRANCE, based upon the Rehabilitation Act, 29 U.S.C. §794, et seq.
62. The Rehabilitation Act provides that: No otherwise qualified individual with handicaps in the United States, as defined by 7(8) [29 USCS § 706(8)], shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service. 29 U.S.C. § 794(a).
63. Upon information and belief, as set forth herein, the BOARD and FRANCE have violated the Rehabilitation Act by intentionally excluding MS. SMITH, solely by reason of her disabilities, from the participation in, and denying her the benefits of, and have otherwise subjected her to discrimination under, the BOARD’S and FRANCE’S programs and activities.
64. Upon information and belief, a non-exclusive list of the BOARD’s and FRANCE’S violations of the Rehabilitation Act and discriminatory conduct against MS. SMITH are evidenced by: A. denying MS. SMITH access to, and the opportunity to participate in or benefit from, the aids, benefits, activities, programs, accommodations and services offered at the Property; B. by otherwise limiting MS. SMITH in her enjoyment of the rights, privileges, advantages and opportunities which are enjoyed by individuals without 13

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 14 of 19
disabilities who receive aids, benefits and services offered by the BOARD AND FRANCE; C. making facility site or location selections that have the effect of discriminating against individuals with disabilities and excluding them from and denying them the benefits of, and defeating or substantially impairing the accomplishment of the objectives of, the services, programs and activities offered by the BOARD and FRANCE at the Property; D. failing to administer services, programs, and activities in the most integrated setting appropriate to the needs of MS. SMITH; E. excluding MS. SMITH from participation in, and the benefits of, the services, programs, and activities offered by the BOARD and FRANCE, as a result of the BOARD’s and FRANCE’S Property being inaccessible to or unusable by MS. SMITH; and F. failing to design and implement new policies, or make alterations to existing policies, which would permit individuals with disabilities to participate in the BOARD’s and FRANCE’S activities and programs. 65. Upon information and belief, there are additional, ongoing violations of the Rehabilitation Act at the Property which MS. SMITH is more likely than not going to encounter upon her future visits there. MS. SMITH brings this action: A. to redress injuries suffered as a result of the BOARD’s and FRANCE’S discriminatory actions and inactions set forth herein;
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Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 15 of 19
B. to reasonably avoid further and future injury as a result of the BOARD’s and FRANCE’S ongoing failure to cease their discriminatory practices as set forth in this action, including correcting violations of the Rehabilitation Act;
C. to ensure the BOARD’s and FRANCE’S Property is accessible as required by the relevant applications of Title II of the ADA;
D. to be made whole and ensure future compliance; and E. to reasonably avoid future ADA and Rehabilitation Act litigation involving
the same Property and under the same laws as set forth herein with its concomitant impact on otherwise scarce judicial resources. 66. Only through a complete inspection of the Property and related facilities, undertaken by MS. SMITH and/or her representatives, can all said violations be identified and cured so as to ensure access for the disabled, the primary purpose of this action. 67. Upon information and belief, the BOARD and FRANCE are the recipients of federal funds. 68. Upon information and belief, as the recipients of federal funds, the BOARD and FRANCE are liable for damages to MS. SMITH as a result of their acts and omissions constituting intentional discrimination. 69. As set forth above, MS. SMITH has been denied access to, and has been, and without the relief requested herein will continue to be denied the access to the goods, services, programs, facilities, activities and accommodations offered by the BOARD and FRANCE solely by reason of her disability, and has otherwise been discriminated against and damaged solely by reason of her disability as a result of the BOARD’s and FRANCE’S Rehabilitation Act violations set forth above.
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Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 16 of 19
70. MS. SMITH has been obligated to retain undersigned counsel for the filing and prosecution of this action, and she is entitled to recover those attorneys’ fees, costs and litigation expenses from the BOARD and FRANCE pursuant to 29 U.S.C. §794(b).
71. Pursuant to 29 U.S.C. §794(a) this Court is provided authority to grant MS. SMITH injunctive relief including an order to alter the subject premises, facilities, services, activities, programs, and accommodations to make them accessible to and useable by individuals with disabilities to the extent required by the Rehabilitation Act; closing all premises and facilities and discontinuing all non-complying services, activities, programs and accommodations until the requisite modifications are completed; and, granting MS. SMITH compensatory damages for the BOARD’s discriminatory actions. COUNT IV: VIOLATIONS OF THE LOUISIANA COMMISSION ON HUMAN RIGHTS AS TO ALL DEFENDANTS
72. MS. SMITH repeats and realleges all preceding paragraphs in support of this claim. 73. At all times relevant to this action, the Louisiana Commission on Human Rights, LA. REV.
STAT. ANN. § 51:2231 et. seq., (hereafter “LCHR”) has been in full force and effect and has applied the conduct of all DEFENDANTS. 74. At all times relevant to this action, MS. SMITH has experienced substantial limitations to several major life activities, including walking, standing, and bending; has suffered an anatomical loss affecting the musculoskeletal system; and has been an individual with a disability within the meaning of the Louisiana Commission on Human Rights, LA. REV. STAT. ANN. § 51:2232(3)(a). 75. At all times relevant to this action, DEFENDANTS have qualified as places of public accommodation, resort, or amusement as defined by LA. REV. STAT. ANN. § 51:2232(9) by
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Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 17 of 19
virtue of either supplying services to the general public, soliciting and accepting the patronage of the general public, or having been supported directly or indirectly by government funds. 76. The LCHR prohibits discriminatory practices and provides that “it is a discriminatory practice for a person to deny an individual the full and equal enjoyment of goods, services, facilities, privileges, advantages, and accommodations of a place of public accommodation, resort, or amusement . . . on the grounds of . . . disability.” LA. REV. STAT. ANN. § 51:2247. 77. The LCHR extends relief to “any person deeming himself injured by” discrimination in violation thereof. LA. REV. STAT. ANN. § 51:2264. 78. Defendants discriminated against MS. SMITH, on the basis of disability, in violation of LA. REV. STAT. ANN. § 51:2247, by denying her the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered at the Property. 79. MS. SMITH deems herself injured by the DEFENDANTS’ discrimination and brings suit under the LCHR to recover compensatory damages for the injuries and loss she sustained as a result of Defendants’ discriminatory conduct and deliberate indifference as alleged herein above. 80. MS. SMITH is further entitled to injunctive relief, as well as an award of attorneys’ fees, costs, and disbursements pursuant to the LCHR. LA. REV. STAT. ANN. § 51:2264.
PRAYER FOR RELIEF WHEREFORE, MS. SMITH demands judgment against BOARD, FRANCE, SMG, LIVE NATION WORLDWIDE, and TICKET CENTER, and requests the following relief:
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Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 18 of 19
A. That this Court declare that the Property owned, leased and/or operated by DEFENDANTS is in violation of the ADA, the Rehabilitation Act, and the LCHR;
B. That this Court declare that the Property, programs and activities owned, operated and administered by the BOARD and FRANCE are in violation of the Rehabilitation Act;
C. That this Court enter an Order directing DEFENDANTS to alter the Property and DEFENDANTS’ policies, practices, and/or procedures to make the Property accessible to and useable by individuals with mobility-related disabilities to the full extent required by the ADA, the Rehabilitation Act, and the LCHR;
D. That this Court award reasonable attorneys’ fees, costs (including expert fees), and other expenses of suit to MS. SMITH pursuant to the ADA, the Rehabilitation Act, and the LCHR;
E. That this Court award damages, including nominal damages, to MS. SMITH pursuant to Title II of the ADA and the Rehabilitation Act for the harm caused by the BOARD’s and FRANCE’s discriminatory practices, including MS. SMITH’s emotional distress, invasion of her civil rights, and for upset stemming from disparate treatment;
F. That this Court award damages to MS. SMITH pursuant to LA. REV. STAT. ANN. § 51:2264 for the discriminatory conduct of the DEFENDANTS in violation of the LCHR; and
G. That this Court award such other and further relief as it deems necessary, just and/or proper under the ADA, the Rehabilitation Act, and the LCHR.
(Signature block on following page.) 18

Case 2:17-cv-07267-SM Document 5 Filed 08/20/17 Page 19 of 19
Respectfully Submitted, Bizer & DeReus Attorneys for Plaintiff Andrew D. Bizer (LA # 30396) andrew@bizerlaw.com Jacqueline K. Hammack (LA # 34581) jhammack@bizerlaw.com Marc P. Florman (LA # 35128) mflorman@bizerlaw.com 3319 St. Claude Ave. New Orleans, LA 70117 T: 504-619-9999; F: 504-948-9996 By:/s/ Jacqueline K. Hammack
JACQUELINE K. HAMMACK
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 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

NANCY SMITH, Plaintiff

CIVIL ACTION

VERSUS

NO. 17-7267

BOARD OF COMMISSIONERS OF THE LOUISIANA STADIUM AND EXPOSITION DISTRICT, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS Before the Court are (1) a motion for summary judgment, filed by Plaintiff Nancy

Smith, on her claims against Defendant SMG;1 (2) a motion for summary judgment, filed

by Smith, on her claims against Defendant Kyle France, sued in his official capacity as

Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition

District (“LSED”);2 and (3) a motion for summary judgment, filed by France and SMG.3

The motions are opposed.4 The Court previously has ruled on the portions of the motions

regarding the entitlement of the LSED and France to sovereign immunity5 and regarding

Plaintiff’s standing to seek injunctive relief.6 The Court addresses herein the remaining

portions of the parties’ motions, in which the parties move for summary judgment with

respect to Defendants’ liability on Plaintiff’s claims. For the reasons that follow, the Court

DENIES the parties’ motions for summary judgment with respect to liability.

1 R. Doc. 40. 2 R. Doc. 41. The motion also addresses Plaintiff’s claims against the LSED. Id. The Court has found the LSED is entitled to sovereign immunity on all of Plaintiff’s claims against it. R. Doc. 90. As a result, the LSED is no longer a party to this matter. 3 R. Doc. 45. 4 R. Docs. 56, 57, 59. 5 R. Doc. 90. 6 R. Doc. 87.
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FACTUAL AND PROCEDURAL BACKGROUND
The following facts are undisputed. Plaintiff is an amputee who is disabled within
the meaning of the ADA.7 On April 2, 2016, she attempted to call the box office of the
Mercedes-Benz Superdome (“Superdome”) to purchase tickets for a Guns N’ Roses
concert, to be held on July 31, 2016.8 In reality, she contacted a representative of Box
Office Ticket Center LLC, who assured her the tickets she was purchasing were accessible
seats compliant with the ADA.9
The Superdome is owned by the LSED and operated and managed by Defendant
SMG, which is responsible for coordinating events, including creating seating charts for
concerts.10 Ticketmaster LLC, not Box Office Ticket Center LLC, has the sole and exclusive
right to sell and distribute tickets for concerts at the Superdome.11 SMG identifies
accessible seats in its seating chart for music concerts and submits that information to
Ticketmaster.12 SMG’s usual practice is to reserve additional ADA-accessible seats in case
a customer with a disability, but without a ticket for an accessible seat, requests to be
moved to an accessible seat.13 For the Guns N’ Roses concert, SMG reserved
approximately one hundred fifty-one accessible seats for this purpose.14
The tickets Plaintiff bought were originally bought from Ticketmaster LLC and
resold on the secondary market by Box Office Ticket Center LLC. The seats for which
Plaintiff purchased tickets had not been designated by SMG as accessible.15 When Plaintiff
7 R. Doc. 69 at 9, ¶ 7(a) (uncontested material facts in pretrial order). 8 Id. at 10, ¶¶ 7(f)–(g). 9 Id. at ¶¶ 7(g)–(h). 10 Id. at ¶ 7(c)–(e). 11 Id. at 11, ¶ 7(k). 12 Id. at ¶ 7(m). 13 R. Doc. 45-2 at 4, ¶ 19; R. Doc. 59-1 at 5, ¶ 19. 14 R. Doc. 45-2 at 4, ¶ 24; R. Doc. 59-1 at 6, ¶ 24. 15 Id. at 10, ¶ 7(i).
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and her daughter arrived at the Superdome on the night of the concert, they sought
assistance from a SMG staffer to locate their seats.16 Plaintiff asked the staffer to remove
the existing chair in the space of her ticketed seat to permit her to park her wheelchair in
its place.17 The staffer told her the existing chair could not be removed.18 Plaintiff
expressed safety concerns about her being transferred out of her wheelchair, but
eventually agreed to do so.19 The SMG staffer took her wheelchair, which was returned to
her after the concert.20
On July 28, 2017, Plaintiff filed a complaint.21 The Defendants remaining in the
case are SMG and France, in his official capacity as Chairman of the Board of
Commissioners of the LSED. Plaintiff brings (1) a claim for injunctive relief under Title II
of the ADA against France, in his official capacity, (2) a claim for injunctive relief under
Title III of the ADA against SMG, and (3) a claim for damages under the Louisiana Human
Rights Act (“LHRA”)22 against SMG.23
On December 24, 2018, Plaintiff filed a motion for partial summary judgment as
to SMG24 and a motion for partial summary judgment as to France.25 Defendants
16 Id. at 12, ¶ 7(t). 17 Id. at ¶ 7(u). 18 Id. 19 Id. at ¶ 7(v). 20 Id. at ¶¶ 7(w)–(x). 21 R. Doc. 1. 22 LA. REV. STAT. § 51:2231 et seq. The parties also refer to this act as the Louisiana Commission on Human Rights or the “LCHR.” 23 R. Doc. 70 at 1–2. The Court has found the LSED is entitled to sovereign immunity on Plaintiff’s claims for damages and for injunctive relief against it under Title II of the ADA. France is entitled to sovereign immunity on Plaintiff’s claim against him for damages, but Plaintiff’s claim against him for injunctive relief proceeds under Ex parte Young. 24 R. Doc. 40. 25 R. Doc. 41.
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oppose.26 On December 26, 2018, Defendants SMG and France filed a cross-motion for summary judgment on all of Plaintiff’s claims.27 Plaintiff opposes.28
In the remaining portions of their motions, the parties request the following: (1) On Plaintiff’s claims for injunctive relief under Title II of the ADA against France
and Title III of the ADA against SMG, Plaintiff moves the Court to find Defendants liable as a matter of law. Defendants do not move for summary judgment on this issue. (2) On Plaintiff’s claim for damages against SMG under the LHRA, Plaintiff moves the Court to find SMG liable as a matter of law, but reserves for trial the issue of quantum of damages. Defendants move the Court to find SMG not liable as a matter of law.
SUMMARY JUDGMENT STANDARD Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”29 “An issue is material if its resolution could affect the outcome of the action.”30 When assessing whether a material factual dispute exists, the Court considers “all of the evidence in the record but refrain[s] from making credibility determinations or weighing the evidence.”31 All reasonable inferences are drawn in favor of the non-moving party.32 There is no genuine issue of material fact if, even viewing the evidence in the light most
26 R. Docs. 56, 57. 27 R. Doc. 45. 28 R. Doc. 59. 29 FED. R. CIV. P. 56; see also Celotex v. Catrett, 477 U.S. 317, 322–23 (1986). 30 DIRECTV, Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005). 31 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008); see also Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000). 32 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
4

favorable to the non-moving party, no reasonable trier of fact could find for the nonmoving party, thus entitling the moving party to judgment as a matter of law.33
“[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact.” To satisfy Rule 56’s burden of production, the moving party must do one of two things: “the moving party may submit affirmative evidence that negates an essential element of the nonmoving party’s claim” or “the moving party may demonstrate to the Court that the nonmoving party’s evidence is insufficient to establish an essential element of the nonmoving party’s claim.” If the moving party fails to carry this burden, the motion must be denied. If the moving party successfully carries this burden, the burden of production then shifts to the non-moving party to direct the Court’s attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed exist.34
If the dispositive issue is one on which the non-moving party will bear the burden of persuasion at trial, the moving party may satisfy its burden of production by either (1) submitting affirmative evidence that negates an essential element of the non-movant’s claim, or (2) affirmatively demonstrating that there is no evidence in the record to establish an essential element of the non-movant’s claim.35 If the movant fails to affirmatively show the absence of evidence in the record, its motion for summary judgment must be denied.36 Thus, the non-moving party may defeat a motion for
33 Hibernia Nat. Bank v. Carner, 997 F.2d 94, 98 (5th Cir. 1993) (citing Amoco Prod. Co. v. Horwell Energy, Inc., 969 F.2d 146, 147–48 (5th Cir. 1992)). 34 Celotex, 477 U.S. at 322–24. 35 Id. at 331–32 (Brennan, J., dissenting). 36 See id. at 332.
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summary judgment by “calling the Court’s attention to supporting evidence already in the
record that was overlooked or ignored by the moving party.”37 “[U]nsubstantiated
assertions are not competent summary judgment evidence. The party opposing summary
judgment is required to identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”38
LAW AND ANALYSIS
I. Genuine issues of material fact preclude summary judgment on Plaintiff’s claims for injunctive relief.
Plaintiff moves the Court to find Defendants liable as a matter of law on her claims
for injunctive relief under Title II of the ADA against France and under Title III of the
ADA against SMG. Title II of the ADA prohibits disability discrimination by public
entities,39 including the LSED.40 Title II provides, “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to
37 Id. at 332–33. The burden would then shift back to the movant to demonstrate the inadequacy of the evidence relied upon by the non-movant. Once attacked, “the burden of production shifts to the nonmoving party, who must either (1) rehabilitate the evidence attacked in the moving party’s papers, (2) produce additional evidence showing the existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f).” Id. at 332–33, 333 n.3. 38 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324; Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) and quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)). 39 42 U.S.C. § 12132. 40 Because France is sued in his official capacity as Chairman of the Board of Commissioners of the LSED, the claim for injunctive relief against him is, in effect, a claim for injunctive relief against the LSED. See Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.”) (emphasis in original). As a result, the Court
6

discrimination by any such entity.”41 The Fifth Circuit has listed the elements of a Title II
claim as follows:
To succeed on a claim under Title II of the ADA, a plaintiff must prove: ‘(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability.’ To recover monetary damages, a plaintiff must prove that the discrimination was intentional.42 Title III prohibits discrimination by places of public accommodation operated by
private entities,43 including SMG. Title III provides, “No individual shall be discriminated
against on the basis of disability in the full and equal enjoyment 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 of
public accommodation.”44 The statute specifies that it is discriminatory to afford people
with disabilities “the opportunity to participate in or benefit from a good, service, facility,
privilege, advantage, or accommodation that is not equal to that afforded to other
individuals.”45 It also specifies discrimination may include:
a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.46
41 Id. 42 Wells v. Thaler, 460 F. App’x 303 (5th Cir. 2012) (quoting Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011), and citing Delano–Pyle v. Victoria Cnty., 302 F.3d 567, 574 (5th Cir.2002)). 43 42 U.S.C. § 12182. 44 Id. at § 12182(a). 45 Id. at § 12182(b)(1)(A)(ii). 46 Id. at § 12181 (b)(2)(A)(ii).
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To establish a Title III violation, a plaintiff must show “(1) she has a disability; (2)
Defendant owned, leased, or operated a place of public accommodation; and (3)
Defendant denied Plaintiff full and equal enjoyment on the basis of her disability.”47
It is undisputed Plaintiff has a qualifying disability.48 In the pretrial order, the
parties agree the following are contested facts:
a. Whether the SMG staffer who escorted Ms. Smith to her ticketed seats indicated, implied, or otherwise led Ms. Smith to believe that transferring out of her wheelchair and into her ticketed seat was necessary for Ms. Smith to view the concert.
b. Whether the SMG staffer who took Ms. Smith’s wheelchair did so in accordance with SMG’s policies for patron wheelchair storage.
c. Whether Ms. Smith’s wheelchair was securely stored during the Concert.49
The Court finds these disputed facts are material to the elements of Plaintiff’s Title
II and Title III claims. On her Title II claim, there is a genuine dispute of fact as to whether
Plaintiff was denied the benefits of a program for which the LSED is responsible50 or she
was otherwise discriminated against by the LSED. There is also a genuine issue of fact as
to whether the alleged discrimination was by reason of her disability and whether it was
intentional. On Plaintiff’s Title III claim, there is a genuine issue of fact as to whether
Plaintiff was denied the full and equal enjoyment of the Superdome concert. Plaintiff has
not met her burden of demonstrating that she is entitled to judgment as a matter of law
47 Doe v. Ortho-La Holdings, LLC, No. CV 17-8948, 2018 WL 4613946, at *2 (E.D. La. Sept. 26, 2018) (Milazzo, J.); see also Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008); Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007); Mershon v. St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006); Burrell v. Akinola, No. 3:15-CV-3568-B, 2016 WL 3523781, at *2 (N.D. Tex. June 27, 2016); Deutsh v. Wehbe, No. 1-15-CV-702 RP, 2015 WL 6830920, at *1 (W.D. Tex. Nov. 6, 2015); United States v. Morvant, 898 F. Supp. 1157, 1161 (E.D. La. 1995). 48 R. Doc. 69 at 9, ¶ 7(a). 49 R. Doc. 69 at 13–14, ¶¶ 8(a)–(c). 50 Regulations implementing the ADA provide Title II “applies to all services, programs, and activities provided or made available by public entities.” 28 C.F.R. § 35.102(a). The guidance interpreting this section clarifies that “[a]ll governmental activities of public entities are covered, even if they are carried out by contractors.” 28 C.F.R. pt. 35, app. B. As a result, although SMG was responsible for the operations of the Guns N’ Roses concert at the Superdome, the LSED is also responsible.
8

on these claims. As a result, the Court denies Plaintiff’s motion for summary judgment on
her Title II claim for injunctive relief against France, in his official capacity, and on her
Title III claim for injunctive relief against SMG.
II. Genuine issues of material fact preclude summary judgment on Plaintiff’s damages claim against SMG under the LHRA.
Plaintiff brings a claim for damages against SMG under the LHRA.51 The LHRA
makes it “a discriminatory practice for a person to deny an individual the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations
of a place of public accommodation, resort, or amusement,” on the grounds of disability.52
A “discriminatory practice in connection with public accommodations” is defined, in
relevant part, as “any direct or indirect act or practice of exclusion, distinction, restriction,
segregation, limitation, refusal, denial, or any other act or practice of differentiation or
preference in the treatment of a person” because of disability.53
51 LA. REV. STAT. § 51:2231, et seq. Plaintiff brought the claim against all Defendants, R. Doc. 5 at 16–17, but subsequently moved to dismiss with prejudice her claim as against the LSED and France, R. Doc. 60, granted R. Doc. 62. See R. Doc. 70 at 1 (listing remaining claims). 52 LA. REV. STAT. § 51:2247. The LHRA provides the following definition of disability:
(3)(a) “Disability” means a physical or mental impairment that substantially limits one or more of the major life activities of the individual, a record of such impairment, or being regarded as having such an impairment. For purposes of all laws which incorporate by reference, apply to, or rely for meaning upon the term disability as defined herein, the terms used in this definition have the following meanings:
(i) “Physical impairment” means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.
. . . (iii) “Major life activities” includes functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
LA. REV. STAT. § 51:2232(3)(a). 53 Id. at § 51:2232(5).
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It is uncontested Plaintiff has a disability.54 The Superdome is a place of public
accommodation.55 As a result, the only issue in this case is whether SMG engaged in a
“discriminatory practice in connection with public accommodations” by engaging in “any
direct or indirect act or practice of exclusion, distinction, restriction, segregation,
limitation, refusal, denial, or any other act or practice of differentiation or preference” in
SMG’s treatment of Plaintiff because of her disability.56
The Court is aware of no cases, and the parties cite none, interpreting the LHRA’s
definition of “discriminatory practice” in the context of disability discrimination. 57 The
LHRA establishes the Louisiana Commission on Human Rights, which has the power to
“adopt, promulgate, amend, and rescind rules and regulations to effectuate the purposes
and provisions” of the LHRA,58 but the Commission has not done so.
Because of this lack of governing legal authority, the parties urge the Court to use
the ADA’s definition of discrimination in interpreting the LHRA. Plaintiff states that, “to
the extent the Court determines that SMG violated Title III of the ADA, then SMG also
violated the [LHRA].”59 Defendants state, “Plaintiff alleges that [her] claim under the
[LHRA] is grounded in a violation of the ADA; therefore, for purposes of this Motion,
54 The parties state it is uncontested Plaintiff is an amputee who is disabled within the meaning of the ADA. R. Doc. 69 at 9, ¶ 7(a). 55 The LHRA defines “place of public accommodation” as “any place, store, or other establishment, either licensed or unlicensed, which supplies goods or services to the general public or which solicits or accepts the patronage or trade of the general public, or which is supported directly or indirectly by government funds.” LA. REV. STAT. § 51:2232(9). Defendants do not argue the Superdome is not a place of public accommodation. 56 Id. at § 51:2232(5). 57 Plaintiff cites Albright v. S. Trace Country Club Of Shreveport, Inc., 879 So. 2d 121, 132 (La. 2004), in which the Louisiana Supreme Court found a public dining facilities exclusion of women from an area designated as the “Men’s Grille” and restriction of that area to use by men constituted sex discrimination under the LHRA because the LHRA’s statutory definition of discrimination is “directly on point.” R. Doc. 40-1 at 22. Unlike in Albright, the statutory definition of discrimination does not unambiguously prohibit SMG’s conduct. As a result, the Court turns to the parties’ arguments that the ADA’s definition of discrimination applies. 58 LA. REV. STAT. § 51:2235. 59 R. Doc. 40-1 at 22–23.
10

SMG applies law interpreting Title II of the ADA.”60 Neither party offers support for using
the ADA to interpret the LHRA.
In determining whether to use the ADA’s definition of discrimination to interpret
the LHRA, the Court considers the LHRA’s statement of purpose. The statement of
purpose expresses the legislature’s intent
to provide for execution within Louisiana of the policies embodied in the Federal Civil Rights Act of 1964, 1968, and 1972 and the Age Discrimination in Employment Act of 1967; . . . ; to safeguard all individuals within the state from discrimination because of . . . disability . . . in connection with employment and in connection with public accommodations; [and] to protect their interest in personal dignity and freedom from humiliation.61
The Louisiana Legislature passed the LHRA in 1988.62 As originally enacted, the Act did
not prohibit discrimination on the basis of disability.63 Congress enacted the ADA in
1990.64 In 1993, the Louisiana Legislature amended the LHRA to cover disability
discrimination, but did not change the LHRA’s statement of purpose to state it provided
for the execution of the policies embodied in the ADA.65
The Fifth Circuit has noted the LHRA is “substantively similar to Title II of the Civil
Rights Act of 1964, 42 U.S.C. § 2000a(a).”66 The LHRA guarantees “the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, and accommodations
of a place of public accommodation, resort, or amusement.”67 Title II of the Civil Rights
Act of 1964 similarly guarantees “the full and equal enjoyment of the goods, services,
60 R. Doc. 45-1 at 11–12. Defendants inexplicably cite Title II of the ADA, even though a claim for damages against SMG under the ADA would be under Title III, which governs private entities providing public accommodations, 42 U.S.C. § 12181 et seq. 61 LA. REV. STAT. at § 51:2231(A). 62 Act No. 886, 1988 La. Acts 2240 (1988) (codified as amended at LA. REV. STAT. § 51:2231 et seq.). 63 LA. REV. STAT. § 51:2247 (1988) (amended 1993). 64 Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. § 12101 et seq.). 65 Act No. 820, 1993 La. Acts 2143 (1993). 66 Semien v. Pizza Hut of Am., Inc., 204 F.3d 1115 (5th Cir. 1999). 67 LA. REV. STAT. § 51:2247.
11

facilities, privileges, advantages, and accommodations of any place of public
accommodation, as defined in this section, without discrimination or segregation on the
ground of race, color, religion, or national origin.”68 Title III of the ADA, which prohibits
discrimination by public accommodations operated by private entities like SMG, also
guarantees “the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation” without
discrimination on the basis of disability.69
Based on the similarities between the LHRA and federal antidiscrimination
statutes and the Louisiana legislature’s explicit reference to federal antidiscrimination
law in the LHRA’s statement of purpose, the Court holds the LHRA incorporates the
ADA’s definition of disability discrimination.70 The Court applies the ADA definition to
Plaintiff’s LHRA claim against SMG. This includes the ADA’s requirement of intentional
discrimination.71
The Court has found genuine issues of material fact preclude summary judgment
on the substance of Plaintiff’s equitable claims against France and SMG under Titles II
68 42 U.S.C. § 2000a(a). 69 42 U.S.C. § 12182(a). 70 When the Louisiana Supreme Court has not addressed an issue of state law interpretation, the Court must “make an Erie guess and determine . . . how that court would resolve the issue if presented with the same case.” In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007) (citing Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir.2003)). When making this guess, the Court “employ[s] Louisiana’s civilian methodology, whereby [it] first examine[s] primary sources of law: the constitution, codes, and statutes.” Id. The Court is confident the Louisiana Supreme Court would also reach the conclusion the LHRA incorporates the ADA’s definition of discrimination. 71 Plaintiff argues, without citing legal authority, that a claim of discrimination under the LHRA does not require a showing of intentional discrimination. R. Doc. 40-1 at 22. Another section of this Court presented with the same issue found “no legal authority indicating that disability discrimination can be considered an unintentional tort under Louisiana law.” Green v. Oceans Behavioral Hosp. of Kentwood, LLC, No. CV 1712215, 2018 WL 1604991, at *5 (E.D. La. Apr. 3, 2018) (Vance, J.) (citing Esparza v. Univ. Med. Ctr. Mgmt Corp., No. 17-4803, 2017 WL 4791185, at *14 (E.D. La. 2017) (Africk, J.)). In Green, the court noted the ADA’s requirement of intentional discrimination and stated it was “not aware of any cases permitting recovery under the [LHRA] absent a showing of intentional discrimination.” Id. (citing Semien v. Pizza Hut of Am., Inc., 204 F.3d 1115, 1999 WL 1328060, at *1 (5th Cir. 1999)).
12

and III of the ADA. For the same reasons, the Court finds genuine issues of material fact preclude summary judgment on Plaintiff’s damages claim against SMG under the LHRA.
CONCLUSION IT IS ORDERED that the remaining portions of the cross-motions for summary judgment, filed by Plaintiff Nancy Smith and Defendants SMG and Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, be and hereby are DENIED.72 New Orleans, Louisiana, this 7th day of March, 2019.
_____________________ __________ SUSIE MORGAN
UNITED STATES DISTRICT JUDGE
72 R. Docs. 40, 41, 45.
13

 
 Smith v. Board of Commissioners of Louisiana Stadium and..., Slip Copy (2019)

2019 WL 7580772 Only the Westlaw citation is currently available.
United States District Court, E.D. Louisiana.
Nancy SMITH, Plaintiff v.
BOARD OF COMMISSIONERS OF the LOUISIANA STADIUM AND EXPOSITION
DISTRICT, et al., Defendants
CIVIL ACTION NO. 17-7267 |
Signed 10/01/2019
Attorneys and Law Firms
Andrew David Bizer, Bizer Law Firm, LLC, Jacqueline Kaye Hammack, Bizer & DeReus, LLC, New Orleans, LA, for Plaintiff.
Christopher Neal Walters, Angela J. O’Brien, Scott G. Centorino, Louisiana Department of Justice, New Orleans, LA, for Defendants.

ORDER
SUSIE MORGAN, UNITED STATES DISTRICT JUDGE
*1 The Court, having considered the complaint, the record, the applicable law, the Findings and Recommendations of the United States Magistrate Judge,1 and the failure of any party to file an objection to the Magistrate Judge’s Findings and Recommendations, hereby approves the Findings and Recommendations of the United States Magistrate Judge and adopts it as its opinion in this matter. Accordingly;
IT IS HEREBY ORDERED that Plaintiff’s Motion to Fix Attorneys’ Fees, Costs, and Other Litigation Expenses2 is GRANTED IN PART AND DENIED IN PART. Defendants, SMG and Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, must pay to Plaintiff, Nancy Smith, the amount of $58,358.62 in reasonable attorney’s fees and $1,307.75 in costs, for a total amount of $59,666.37.

SECTION: “E”

All Citations Slip Copy, 2019 WL 7580772
Footnotes

1

R. Doc. 137.

2

R. Doc. 97.

1

 
 Smith v. Board of Commissioners of Louisiana Stadium and..., Slip Copy (2019)

2019 WL 7580772 Only the Westlaw citation is currently available.
United States District Court, E.D. Louisiana.
Nancy SMITH, Plaintiff v.
BOARD OF COMMISSIONERS OF the LOUISIANA STADIUM AND EXPOSITION
DISTRICT, et al., Defendants
CIVIL ACTION NO. 17-7267 |
Signed 10/01/2019
Attorneys and Law Firms
Andrew David Bizer, Bizer Law Firm, LLC, Jacqueline Kaye Hammack, Bizer & DeReus, LLC, New Orleans, LA, for Plaintiff.
Christopher Neal Walters, Angela J. O’Brien, Scott G. Centorino, Louisiana Department of Justice, New Orleans, LA, for Defendants.

ORDER
SUSIE MORGAN, UNITED STATES DISTRICT JUDGE
*1 The Court, having considered the complaint, the record, the applicable law, the Findings and Recommendations of the United States Magistrate Judge,1 and the failure of any party to file an objection to the Magistrate Judge’s Findings and Recommendations, hereby approves the Findings and Recommendations of the United States Magistrate Judge and adopts it as its opinion in this matter. Accordingly;
IT IS HEREBY ORDERED that Plaintiff’s Motion to Fix Attorneys’ Fees, Costs, and Other Litigation Expenses2 is GRANTED IN PART AND DENIED IN PART. Defendants, SMG and Kyle France, in his official capacity as Chairman of the Board of Commissioners of the Louisiana Stadium and Exposition District, must pay to Plaintiff, Nancy Smith, the amount of $58,358.62 in reasonable attorney’s fees and $1,307.75 in costs, for a total amount of $59,666.37.

SECTION: “E”

All Citations Slip Copy, 2019 WL 7580772
Footnotes

1

R. Doc. 137.

2

R. Doc. 97.