Swartz v. Sukkah Miami Beach Acquisitions LLC
| Helen Swartz |
| SUKKAH MIAMI BEACH ACQUISITIONS LLC |
| 1:2021cv23317 |
| September 14, 2021 |
| US District Court for the Southern District of Florida |
| Lauren Fleischer Louis |
| K Michael Moore |
| Civil Rights: Americans with Disabilities - Other |
| 42 U.S.C. § 12182 Americans with Disabilities Act |
| None |
Docket Report
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This docket was last retrieved on November 4, 2021. A more recent docket listing may be available from PACER.
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| Filing 24 CLERK'S NOTICE - Attorney Admissions has added Ms. Swartz to the Restricted Filer list; re #20 Order. (pt) |
| Filing 23 CLERK'S NOTICE of Compliance re #20 Order (Additional attachment(s) added on 11/4/2021: # 1 Transcript - Hearing on Swartz Complaint). Additional Notice of Electronic Filing (NEF) sent to Attorney Admissions (ATTYADM) (sk) |
| Filing 22 CLERK'S NOTICE of Compliance re #20 Order,,. Additional Notice of Electronic Filing (NEF) sent to Attorney Admissions (ATTYADM) and request for addition to the restricted filer list Per DE#20. (cqs) |
Filing 21
PAPERLESS ORDER. THIS CAUSE came before the Court upon the Parties' Stipulation for Dismissal with Prejudice. #19 . Federal Rule of Civil Procedure 41(a) allows a plaintiff to voluntarily dismiss a claim (1) prior to a defendant's filing of an answer or a motion for summary judgment, or (2) by filing a stipulation of dismissal signed by all parties who have appeared. Fed. R. Civ. P. 41(a)(1). Here, the Stipulation #19 is signed by both parties. See Fed. R. Civ. P. 41(a)(1)(A)(i)-(ii). Accordingly, UPON CONSIDERATION of the Stipulation #19 , the pertinent portions of the record, and being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that the above-styled cause is hereby DISMISSED WITH PREJUDICE. The Clerk of Court is INSTRUCTED to CLOSE this case. All pending motions, if any, are DENIED AS MOOT. Signed by Judge K. Michael Moore on 11/4/2021. (thn)
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Filing 20
ORDER OF REFERRAL TO GRIEVANCE COMMITTEE. Pursuant to Rule 6(c) of the Rules Governing the Admission, Practice, Peer Review, and Discipline of Attorneys, Local Rules of the Southern District of Florida, the Clerk of Court is INSTRUCTED to transmit this Order to the Committee on Attorney Admissions, Peer Review, and Attorney Grievance for investigation of the actions of Lawrence A. Fuller, of Fuller Fuller & Associates PA, in this case. Additionally, the Clerk of Court is INSTRUCTED to add Plaintiff, Helen Swartz, to the list of restricted filers. Signed by Judge K. Michael Moore on 11/4/2021. See attached document for full details. (thn) (Additional attachment(s) added on 11/4/2021: #1 Transcript - Hearing on Swartz Complaint) (sk).
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| Filing 19 STIPULATION of Dismissal with Prejudice by Helen Swartz (Attachments: #1 Text of Proposed Order)(Fuller, Lawrence) |
| Filing 18 PAPERLESS Minute Entry for proceedings held before Judge K. Michael Moore: Miscellaneous Hearing held on 10/21/2021. Total time in court: 30 minutes. Attorney Appearance(s): Rene J. Gonzalez-Llorens, John Paul Fuller, Court Reporter: Gilda Pastor-Hernandez, 305-523-5118 / Gilda_Pastor-Hernandez@flsd.uscourts.gov. (thn) Date Modified on 10/27/2021 (ail). |
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Filing 17
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Renewed Motion to Reschedule Hearing. #16 . On September 16, 2021, the Court struck Count II of the Complaint #1 because Plaintiff improperly incorporated the standards of the ADA into a negligence claim, in an apparent attempt to "circumvent the limited relief available under the ADA and thereby obtain monetary damages." 6 . The Court ordered Plaintiff's counsel, Lawrence A. Fuller, to appear on September 21, 2021 to discuss the merits of Count II of the Complaint. 7 . Then, upon the request of Plaintiff's counsel's law partner, John P. Fuller, the Court continued the hearing to October 26, 2021, due to a surgery that Lawrence A. Fuller had undergone. 11 . The Court later rescheduled this hearing, sua sponte, to October 21, 2021. #16 . Now, Plaintiff's counsel's law partner, John P. Fuller, has informed the Court that Lawrence A. Fuller is still having health issues and will be unavailable to attend a hearing, even over the telephone, for at least thirty (30) days. #16 . Given the serious concerns raised by Count II of Plaintiff's Complaint, which are compounded by Plaintiff's history as a vexatious ADA litigant in this district, the Court will not delay this hearing any further. Plaintiff's counsel's law partner, John P. Fuller, represented in his Motion #13 that he would inform himself as to the facts of this case and would be available to attend the hearing in place of Lawrence A. Fuller, if necessary. At this point, John P. Fuller has been counsel of record for Plaintiff for nearly a month and the Court expects that he will be fully prepared to discuss the facts and issues of this case. Accordingly, no continuance of the hearing will be necessary. Lawrence A. Fuller need not attend the hearing. However, given Lawrence A. Fuller's persistent unavailability, the Court hereby ORDERS Plaintiff Helen Swartz to attend the hearing, which will be held in person on October 21, 2021. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #19 is DENIED. Signed by Judge K. Michael Moore on 10/15/2021. (thn) Modified text/status per Chambers on 10/15/2021 (sk).
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| Filing 16 MOTION to Continue Hearing re 15 Order,, Terminate Deadlines and Hearings,, Set/Reset Hearings,, Set/Reset Deadlines/Hearings, by Helen Swartz. Responses due by 10/28/2021 (Attachments: #1 Text of Proposed Order)(Fuller, John) |
| Filing 15 NOTICE OF RESCHEDULING HEARING. The Hearing on Plaintiff's Complaint #1 is hereby rescheduled for Thursday, October 21, 2021 at 10:00 AM in Miami Division before Judge K. Michael Moore, United States Courthouse, Courtroom 13-1, 400 North Miami Avenue, Miami, Florida. Plaintiff should be prepared to discuss the merits of Count II of the Complaint #1 . Signed by Judge K. Michael Moore on 10/13/2021. (thn) |
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Filing 14
PAPERLESS ORDER. THIS CAUSE came before the Court upon Defendant's Unopposed Motion for Extension of Time to Respond to Complaint. #13 . Defendant was served with the Complaint on September 22, 2021, and Defendant's deadline to respond to the Complaint, therefore, is October 13, 2021. #12 . Now, Defendant is requesting a fourteen (14) day extension of the deadline to respond to the Complaint, up to and including October 27, 2021. #13 at 1. Defendant explains that the extension will provide more time for the Parties to engage in settlement negotiations, which have been stalled due to Plaintiff's counsel's medical issues. Id. Defendant's request is unopposed. Id. at 2. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #13 is GRANTED. Defendant shall respond to the Complaint on or before October 27, 2021. Signed by Judge K. Michael Moore on 10/13/2021. (thn)
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| Filing 13 Unopposed MOTION for Extension of Time to File Response/Reply/Answer as to #1 Complaint by SUKKAH MIAMI BEACH ACQUISITIONS LLC. Attorney Rene J. Gonzalez-Llorens added to party SUKKAH MIAMI BEACH ACQUISITIONS LLC(pty:dft). (Attachments: #1 Text of Proposed Order)(Gonzalez-Llorens, Rene) |
| Filing 12 SUMMONS (Affidavit) Returned Executed on #1 Complaint with a 21 day response/answer filing deadline pursuant to Fed. R. Civ. P. 12 by Helen Swartz. SUKKAH MIAMI BEACH ACQUISITIONS LLC served on 9/22/2021, answer due 10/13/2021. (Fuller, Lawrence) |
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Filing 11
PAPERLESS ORDER RESCHEDULING HEARING. THIS CAUSE came before the Court upon Plaintiff's Motion to Reschedule Hearing. #9 . Therein, Plaintiff informs the Court that her counsel, Lawrence A. Fuller, has undergone major cancer surgery on September 15, 2021, a day after this case was filed #1 and a day before the Court struck Count II of the Complaint for improperly seeking to obtain damages under the ADA 6 . #9 at 1. Plaintiff's counsel's law partner, John P. Fuller, is prepared to familiarize himself with this case and attend a hearing on these issues in the future, in the event Plaintiff's counsel is not able to attend. Id. The Motion does not inform the Court as to when Plaintiff's counsel, Lawrence A. Fuller, is expected to recover but requests the that the hearing be continued for a period of three (3) weeks. Accordingly, UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion #19 is GRANTED. The hearing is hereby continued to October 26, 2021 at 1:00 PM. Plaintiff's counsel, Lawrence A. Fuller, is ORDERED to inform the Court one week in advance of the hearing if he will be unable to appear. Signed by Judge K. Michael Moore on 9/20/2021. (thn)
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| Filing 10 NOTICE by Helen Swartz re #9 First MOTION to Continue re 7 Order,, Notice of Court Practice/to Appear/Other,, Order Setting/Cancelling Hearing, (Attachments: #1 Text of Proposed Order) (Fuller, John) |
| Set/Reset Hearings - hearing rescheduled for 10/26/2021 at 1:00 PM. (thn) |
| Filing 9 First MOTION to Continue re 7 Order,, Notice of Court Practice/to Appear/Other,, Order Setting/Cancelling Hearing, by Helen Swartz. Responses due by 10/1/2021 (Fuller, John) |
| Filing 8 NOTICE of Attorney Appearance by John Paul Fuller on behalf of Helen Swartz. Attorney John Paul Fuller added to party Helen Swartz(pty:pla). (Fuller, John) |
| Filing 7 NOTICE of Hearing on Plaintiff's Complaint #1 . Motion Hearing set for Tuesday, September 21, 2021 at 11:00 AM in Miami Division before Judge K. Michael Moore, United States Courthouse, Courtroom 13-1, 400 North Miami Avenue, Miami, Florida. Plaintiff should be prepared to discuss the merits of Count II of the Complaint #1 . Signed by Judge K. Michael Moore on 9/16/2021. (thn) |
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Filing 6
PAPERLESS ORDER. THIS CAUSE came before the Court upon Plaintiff's Complaint #1 . In the Complaint, Plaintiff describes how Defendant's premises are, in various ways, not compliant with the Americans with Disabilities Act ("ADA") and not adequately accessible to those with disabilities. Id. at 5-6. The Complaint does not allege that Plaintiff was physically injured as a result of any of these deficiencies. See generally id. The Complaint brings two counts: (1) a violation of the ADA ("Count I"), and (2) negligence (Count II). Id. at 1, 10. Notably, the negligence claim under Count II explicitly incorporates the ADA as establishing a duty giving rise to a negligence claim for damages. Id. at 10 ("Defendant had a duty to Plaintiff to remove ADA accessibility barriers, and adopt policies and procedures, as mandated by the ADA, so that Plaintiff, as a disabled individual would have full and equal access to the subject public accommodation."). The ADA "does not allow recovery of money damages for violations of its standards." White v. NCL Am., Inc., No. 05-22030-CIV, 2006 WL 1042548, at *6 (S.D. Fla. Mar. 8, 2006) (citing 42 U.S.C. 1288; Ass'n for Disabled Americans, Inc. v. Concorde Gaming Corp. (Goldcoast Ent. Cruises), 158 F. Supp. 2d 1353, 1359 (S.D. Fla. 2001)). Thus, an attempt to recover damages for a violation of the ADA under a theory of negligence, without any other injury, fails. Id. "In other words, Plaintiff may not use the ADA's standards alone to impose a duty on the Defendants. This is not to say that a disabled person can never bring a common law action arising from injuries caused by negligent conduct in the context of public accommodation. Rather, to do so a plaintiff must identify a recognized duty at common law, independent of the ADA standards." Id. Here, Plaintiff has explicitly incorporated the standards of the ADA into her negligence claim under Count II. #1 at 10. The Complaint alleges no injury beyond the discrimination that is statutorily prohibited under the ADA. See generally id. This raises a serious concern that the negligence claim is included in the Complaint as an untoward attempt to circumvent the limited relief available under the ADA and thereby obtain monetary damages. Moreover, to the extent Plaintiff might argue that the negligence claim was supposed to be a claim of negligence per se, that too would raise similar concerns. White, 2006 WL 1042548, at *5 ("Because the ADA was not designed to protect those with disabilities from personal injuries, Plaintiff is unable to state a claim for per se negligence. Indeed, 42 U.S.C. 12101(b) expressly states that the purpose of the ADA is the elimination of discrimination against individuals with disabilities." (citing PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001)). Accordingly, UPON CONSIDERATION of the Complaint, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Count II of the Complaint is DISMISSED WITHOUT PREJUDICE. Signed by Judge K. Michael Moore on 9/16/2021. (thn)
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Filing 5
PAPERLESS ORDER REFERRING PRETRIAL DISCOVERY MATTERS TO MAGISTRATE JUDGE LAUREN F. LOUIS. PURSUANT to 28 U.S.C. 636 and the Magistrate Rules of the Local Rules of the Southern District of Florida, the above-captioned Cause is referred to United States Magistrate Judge Lauren F. Louis to take all necessary and proper action as required by law with respect to any and all pretrial discovery matters. Any motion affecting deadlines set by the Court's Scheduling Order is excluded from this referral, unless specifically referred by separate Order. It is FURTHER ORDERED that the parties shall comply with Magistrate Judge Lauren F. Louis's discovery procedures. Signed by Judge K. Michael Moore on 9/15/2021. (thn)
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Filing 4
PAPERLESS PRETRIAL ORDER. This order has been entered upon the filing of the complaint. Plaintiff's counsel is hereby ORDERED to forward to all defendants, upon receipt of a responsive pleading, a copy of this Order. It is further ORDERED that S.D. Fla. L.R. 16.1 shall apply to this case and the parties shall hold a scheduling conference no later than twenty (20) days after the filing of the first responsive pleading by the last responding defendant, or within sixty (60) days after the filing of the complaint, whichever occurs first. However, if all defendants have not been served by the expiration of this deadline, Plaintiff shall move for an enlargement of time to hold the scheduling conference, not to exceed 90 days from the filing of the Complaint. Within ten (10) days of the scheduling conference, counsel shall file a joint scheduling report. Failure of counsel to file a joint scheduling report within the deadlines set forth above may result in dismissal, default, and the imposition of other sanctions including attorney's fees and costs. The parties should note that the time period for filing a joint scheduling report is not tolled by the filing of any other pleading, such as an amended complaint or Rule 12 motion. The scheduling conference may be held via telephone. At the conference, the parties shall comply with the following agenda that the Court adopts from S.D. Fla. L.R. 16.1: (1) Documents (S.D. Fla. L.R. 16.1.B.1 and 2) - The parties shall determine the procedure for exchanging a copy of, or a description by category and location of, all documents and other evidence that is reasonably available and that a party expects to offer or may offer if the need arises. Fed. R. Civ. P. 26(a)(1)(B). (a) Documents include computations of the nature and extent of any category of damages claimed by the disclosing party unless the computations are privileged or otherwise protected from disclosure. Fed. R. Civ. P. 26(a)(1)(C). (b) Documents include insurance agreements which may be at issue with the satisfaction of the judgment. Fed. R. Civ. P. 26(a)(1)(D). (2) List of Witnesses - The parties shall exchange the name, address and telephone number of each individual known to have knowledge of the facts supporting the material allegations of the pleading filed by the party. Fed. R. Civ. P. 26(a)(1)(A). The parties have a continuing obligation to disclose this information. (3) Discussions and Deadlines (S.D. Fla. L.R. 16.1.B.2) - The parties shall discuss the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case. Failure to comply with this Order or to exchange the information listed above may result in sanctions and/or the exclusion of documents or witnesses at the time of trial. S.D. Fla. L.R. 16.1.I. Pursuant to Administrative Order 2016-70 of the Southern District of Florida and consistent with the Court of Appeals for the Eleventh Circuit's Local Rules and Internal Operating Procedures, within three days of the conclusion of a trial or other proceeding, parties must file via CM/ECF electronic versions of documentary exhibits admitted into evidence, including photographs of non-documentary physical exhibits. The Parties are directed to comply with each of the requirements set forth in Administrative Order 2016-70 unless directed otherwise by the Court.Telephonic appearances are not permitted for any purpose. Upon reaching a settlement in this matter the parties are instructed to notify the Court by telephone and to file a Notice of Settlement within twenty-four (24) hours. Signed by Judge K. Michael Moore on 9/15/2021. (thn)
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| Filing 3 Summons Issued as to SUKKAH MIAMI BEACH ACQUISITIONS LLC. (jao) |
| Filing 2 Clerks Notice of Judge Assignment to Judge K. Michael Moore. Pursuant to 28 USC 636(c), the parties are hereby notified that the U.S. Magistrate Judge Lauren F. Louis is available to handle any or all proceedings in this case. If agreed, parties should complete and file the Consent form found on our website. It is not necessary to file a document indicating lack of consent. Pro se (NON-PRISONER) litigants may receive Notices of Electronic Filings (NEFS) via email after filing a Consent by Pro Se Litigant (NON-PRISONER) to Receive Notices of Electronic Filing. The consent form is available under the forms section of our website. (jao) |
| Filing 1 COMPLAINT against SUKKAH MIAMI BEACH ACQUISITIONS LLC. Filing fees $ 402.00 receipt number AFLSDC-15008923, filed by Helen Swartz. (Attachments: #1 Civil Cover Sheet, #2 Summon(s))(Fuller, Lawrence) |
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| Plaintiff: Helen Swartz | |
| Represented By: | Lawrence Arthur Fuller |
| Represented By: | John Paul Fuller |
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| Defendant: SUKKAH MIAMI BEACH ACQUISITIONS LLC | |
| Represented By: | Rene J. Gonzalez-Llorens |
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