MATTHEW W. BRANN, District Judge.
Title III of the Americans With Disabilities Act was designed so that persons with disabilities may enjoy the full panoply of goods and services that modern American society provides. The act was designed to prevent both intentional and unintentional discrimination against persons with disabilities in places of public accommodation. However, the instant litigation has journeyed far past the noble intent of this act, seemingly down the river Styx to the murky underworld of endless litigation.
A reference to Hades may appear to be perfervid to a reader unfamiliar with the instant action, however, even a cursory reading of the parties' filings in this case illustrates the tempestuous heat emanating from the contentiousness of this litigation. The journey in this memorandum opinion begins with the end. Presently pending before the Court is a Report and Recommendation issued by Chief Magistrate Judge Martin C. Carlson recommending denial of the parties' cross motions for summary judgment and denial of defendant's motion to strike. Report & Recommendation, September 11, 2013, ECF No. 108.
The report and recommendation will be adopted in part, and rejected in part, for reasons explained below. Defendant's motion to strike will be granted. Def.'s M. to Strike, March 7, 2013, ECF No. 103. Defendant's motion for summary judgment will be granted in part and denied in part. Def.'s Mot. Summ. J., February 4, 2013, ECF No. 85. Plaintiff's motion for summary judgment will be denied. Pl.'s Mot. Summ. J., February 4, 2013, ECF No. 87. The case will now be set for a bench trial.
A. Procedural History
It may appear from the following paragraphs that the undersigned has succumbed to the song of the Sirens and has crashed the ship into the rocks in this memorandum opinion by delineating below seemingly mundane case details. However, the alleged dilatoriness of the filing of a final expert report is the subject matter of a pending motion to strike; accordingly, it is also important to course the waters of the various due dates assigned in this case.
The instant action was commenced on May 20, 2011. Pl.'s Compl., ECF No. 1. Plaintiff, Will McConnell, is a wheelchair-bound individual, who operates as a tester' under Title III of the Americans with Disabilities Act (colloquially referred to as the "public accommodations" section of the Act). On a date not disclosed in the first complaint, McConnell traveled from his home in Clearfield County, Pennsylvania to the Canadian Hills Plaza, a shopping center divided into two plazas, Hills Plaza and Hills Plaza South, located along Atherton Street, State College, Centre County, Pennsylvania. Plaintiff's first complaint identified two areas of allegedly discriminatory access in paragraph 10; to wit: parking accessability and the path of travel to entrance access. Paragraph 11 specifically contemplated additional identification of alleged discrimination after inspection by an expert.
The Honorable John E. Jones III, to whom this matter was previously assigned, entered an order, inter alia, setting the following due dates: dispositive motions were due May 1, 2012; discovery was to be completed March 30, 2012; Plaintiff's expert report was due December 15, 2011; Defendant's expert report was due February 1, 2012; and supplemental expert reports were due March 1, 2012. Order, September 30, 2011, ECF No. 16.
From the outset, this matter was acrimonious. Plaintiff served Defendant with an overly broad demand for inspection pursuant to Federal Rule of Civil Procedure 34. Judge Jones suggested the parties attempt to work out their dispute without court intervention, but they were unable to do so. Defendant filed a Motion for Protective Order, which was referred to Chief Magistrate Judge Carlson for resolution. After hearing oral argument and receiving full briefing, Chief Magistrate Judge Carlson issued a Memorandum Opinion and Order on November 14, 2011, narrowing the scope the inspection request. ECF No. 29. After Plaintiff stated that the inspection should take less than two hours, Chief Magistrate Judge Carlson limited the inspection to two-and-one-half hours, after regular business hours, to "those ADA considerations which[, ] the Plaintiff, a mobility challenged individual, has standing to pursue; that is, mobility barriers to access at this facility." Id. at 11. Despite Defendant's objections, Chief Magistrate Judge Carlson permitted inspection of the facility that was much broader than the two access barriers Plaintiff actually experienced on his visit to defendant's plazas, namely, parking and the path of travel to entrance access. Chief Magistrate Judge Carlson allowed for the inspection of all possible mobility barriers at the site.
Prior to filing the above mentioned motion for protective order, Defendant had also filed a motion to dismiss. This motion was decided by Judge Jones after the motion for protective order was decided by Chief Magistrate Judge Carlson. On December 9, 2011, Judge Jones denied the motion to dismiss and ordered Plaintiff to file an amended complaint. ECF No. 34. Plaintiff filed his amended complaint on December 19, 2011. ECF No. 35.
In February 2012 Plaintiff filed a motion to extend the scheduling deadlines, which was opposed by Defendant because it claimed that the Plaintiff was attempting to take a second bite of the apple, so to speak, with regard to his inspection. ECF Nos. 37 and 38. Plaintiff's expert first inspected Defendant's property on November 15, 2011. ECF No. 38 at 2. The expert report was provided to Defendant on December 1, 2011. Id. This first inspection was of the exterior of the property only, an interior inspection was not completed. Defendant provided to Plaintiff its own expert report on February 1, 2012. Defendant opposed the extension of deadlines because Plaintiff was now attempting to obtain an interior inspection of the tenant properties. This motion was referred to Chief Magistrate Judge Carlson, who again allowed a much broader inspection than the two access barriers Plaintiff actually experienced on his visit to Defendant's plazas, and granted the extension, with new due dates of April 30, 2012 for discovery, May 30, 2012 for dispositive motions, Plaintiff's supplemental expert report due April 6, 2012 and Defendant's supplemental expert report due May 1, 2012. ECF No. 41.
Not surprisingly, this Order from Chief Magistrate Judge Carlson lead to even more litigation, this time, from the tenants of the subject property. After a telephone conference, Chief Magistrate Judge Carlson entered another order on March 13, 2012, directing that the interior inspection take place after store hours. ECF No. 51.
Once again, the time for expert reports was moved for extension, this time by Defendant, with Plaintiff's supplemental expert report deadline extended to April 23, 2012 and Defendant's supplemental expert report due May 11, 2012. ECF No. 53.
Plaintiff next moved to compel discovery and for an extension of time to file a rebuttal expert report. After a telephone conference call on the issues, and after expressing his frustration with the parties failure to collaborate, on May 9, 2012, Judge Jones ordered Defendant to file the requested information. ECF No. 63.
Defendant next moved for an extension of dispositive motion deadlines to make the requested repairs of areas that were ADA noncompliant and, additionally, filed its first motion for summary judgment. Plaintiff opposed this extension as well, and, additionally, filed his first motion for summary judgment on May 30, 2012. Judge Jones, in the hopes that Defendant was correct that its remediation efforts could resolve many, if not all, of the issues in this ...