United States District Court, D. Hawaii
For Deb Ritchie, Plaintiff: Lunsford D. Phillips, LEAD ATTORNEY, Honolulu, Hi.
For National Football League, Defendant: Russell K.L. Leu, LEAD ATTORNEY, Sheppard Mullin Richter & Hampton, Costa Mesa, CA.
For State of Hawaii, Defendant: Caron M. Inagaki, John F. Molay, LEAD ATTORNEYS, Office of the Attorney General-State of Hawaii, Honolulu, HI.
ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANT NATIONAL FOOTBALL LEAGUE'S MOTION TO DISMISS OR IN THE ALTERNATIVE MOTION FOR SUMMARY JUDGMENT, DOC. NO. 125; (2) DENYING DEFENDANT STATE OF HAWAII'S JOINDER IN THE NATIONAL FOOTBALL LEAGUE'S MOTION, DOC. NO. 127; (3) DENYING THE STATE'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DOC. NO. 121; AND (4) DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, DOC. NO. 118
J. Michael Seabright, United States District Judge.
On September 18, 2013, Plaintiff Deb Ritchie (" Plaintiff"), who has a mobility impairment, filed this action in the First Circuit Court of the State of Hawaii against Defendants the National Football League (the " NFL") and the State of Hawaii (the " State") (collectively, " Defendants"). Plaintiff asserts claims for violations of the Americans with Disabilities Act (" ADA"), the Rehabilitation Act, and state law claims based on Defendants' refusal to allow Plaintiff to access the front-row seat she purchased for the 2013 Pro Bowl at Aloha Stadium. The State subsequently removed the action to this court.
Currently before the court are dispositive motions filed by each of the parties. The NFL, joined by the State, argues that Plaintiff lacks standing on her disability discrimination claims, and has also failed to establish a genuine issue of material fact in support of any of her claims. The State seeks partial summary judgment on Plaintiff's Rehabilitation Act claim on the basis that Aloha Stadium does not receive any federal funds, and Plaintiff seeks a summary judgment ruling that the NFL was responsible for all decisions relating to the operation of Aloha Stadium at the 2013 Pro Bowl. Based on the following, the court GRANTS in part and DENIES in part the NFL's Motion, DENIES the State's Joinder, and DENIES the State's and Plaintiff's Motions.
A. Factual Background
The NFL's Pro Bowl is an annual football game organized by the NFL where all-star teams made of players from the League's two conferences, the National Football Conference and the American Football Conference, compete against each other. Doc. No. 142-9, NFL Ex. H, Tedescung Bandy Decl. ¶ 4. The Pro Bowl has been held at Aloha Stadium in Honolulu, Hawaii for a number of years, and is slated to be played again at Aloha Stadium in 2016. See id. ¶ 14. The State owns Aloha Stadium and operates it through the " Stadium Authority." Doc. No. 126, NFL Concise Statement of Facts (" CSF") ¶ 6;  see also Hawaii Revised Statues (" HRS") § 109-2 (granting the Stadium Authority power to maintain, operate, and manage Aloha Stadium). Pursuant to HRS § 109-1, the Stadium Authority is " within the department of accounting and general services [(the " DAGS")] for administrative purposes only."
Plaintiff attended the Pro Bowl at Aloha Stadium from 2011 through 2014, and brings this action against the NFL and the State based upon their alleged refusal during the 2013 Pro Bowl to allow Plaintiff access to her ticketed seat in the front row due to her mobility impairment. See Doc. No. 126, NFL CSF ¶ 1. The court first outlines the Stadium Authority's and the NFL's responsibilities pursuant to contract and/or state law regarding seating and security at the 2013 Pro Bowl, and then describes Plaintiff's attendance at the Pro Bowls at Aloha Stadium.
1. The Stadium Authority's and the NFL's Duties for Pro Bowl 2013
On January 19, 2013, the Stadium Authority, the Hawaii Tourism Authority (" HTA"), and the NFL entered into a license agreement for the 2013 Pro Bowl to be played at Aloha Stadium on January 27, 2013 (the " License Agreement"). See Doc. No. 120-1, Pl.'s Ex. 1. Under the License Agreement, the Stadium Authority granted the HTA a license for the entire and total use of Aloha Stadium, and the HTA granted a license to the NFL to conduct the 2013 Pro Bowl. Id. ¶ 1. The License Agreement describes that although the Stadium Authority retains the right to manage Aloha Stadium during the Pro Bowl, the NFL has the right to make decisions regarding operation of Aloha Stadium, including security. See also Doc. No. 120-3, Pl.'s Ex. 9, Andrew Chang Dep. at 56 (stating that the NFL is the user of the stadium and " in charge of operations").
As to security, the License Agreement provides that the Stadium Authority has a multi-year contract with G4S Secure Solutions USA Inc. (" G4S") to provide private security services at Aloha Stadium, and that (1) the NFL will be responsible for all costs from G4S's services at the Pro Bowl, (2) the Stadium Authority shall provide a draft security plan to the NFL, and (3) the NFL may communicate directly with G4S regarding implementation of the plan. Doc. No. 120-1, Pl.'s Ex. 1, ¶ 5(c)(4). To that end, the NFL and G4S entered into a Crowd Management and Security Services Agreement regarding the Pro Bowl (the " G4S Agreement"). See Doc. No. 150, Pl.'s Ex. 2 at NFL000776-795. The G4S Agreement provides, among other things, that G4S will (1) " design and implement, in coordination with the NFL, crowd management and security plans for [the Pro Bowl], " (2) " remain in communication with designated NFL staff throughout [the Pro Bowl], " and (3) " promptly report to the NFL orally and follow up in writing as soon as possible . . . regarding any significant crowd management or security service incident or breach of security." Id. at NFL000778-79. According the NFL Director of Security Services, Lenny Bandy, the G4S Agreement was for G4S to provide on-field security and gate security, and the NFL was not managing G4S personnel located in the stands. Doc. No. 142-2, NFL Ex. A, Bandy Dep. at 41-42.
As to general staffing, the License Agreement provides that the Stadium Authority shall submit a staffing plan to the NFL for approval, and the NFL may increase staffing at its expense. See Doc. No. 120-1, Pl.'s Ex. 1, ¶ 5(c)(3). The License Agreement also incorporates the Rules of the Stadium Authority, codified as Hawaii Administrative Rules (" HAR") Chapter 3-70, which provides that the manager of the Stadium Authority shall determine and furnish the staff necessary to operate the facility for an event, which may include, for example, box office personnel, ushers, gate personnel, and security personnel, all at the licensee's expense. Id. ¶ 24; see also HAR § 3-70-10.
Although neither agreement describes responsibilities in case of an incident at the Pro Bowl, an " Assignment List" provides:
Aloha Stadium ushers are the first line of stadium authority followed by private security personnel. In the event stadium and private security personnel need assistance, they will call for [Honolulu Police Department (" HPD")] Special Duty officers to stand by and take action if necessary. Rapid Deployment Force officers will be available to assist if necessary.
Doc. No. 134, Pl.'s Ex. 14. In addition to paying for G4S security personnel, the NFL paid HPD officers to provide additional security at the Pro Bowl. Doc. No. Doc. No. 120-3, Pl.'s Ex. 11, Bandy Dep. at 52.
2. Events Leading up to the 2013 Pro Bowl Regarding Plaintiff's Request for Accommodation
Plaintiff attended the 2011 and 2012 Pro Bowls at Aloha Stadium with her family and enjoyed the games " tremendously." Doc. No. 126, NFL CSF ¶ 5. Plaintiff therefore purchased ten tickets to the 2013 Pro Bowl in the first and second rows of Aloha Stadium, and she intended to sit in the front row. Doc. No. 122, State CSF ¶ ¶ 1-2. Prior to the 2013 Pro Bowl, however, Plaintiff suffered an accident requiring her to use a wheelchair and crutches to ambulate. Doc. No. 126, NFL CSF ¶ 7. As a result of this accident, Plaintiff asserts that she is able to walk only a short distance without crutches and with the assistance of shoes containing wheels on the feet. Doc. No. 126-3, NFL Ex. A, Pl.'s Dep. at 44-45.
Given Plaintiff's dependence on a wheelchair and crutches, on January 23, 2013, Plaintiff emailed Terry Wooten, an NFL employee, to inquire as to how she could best reach her front row seat. Plaintiff wrote:
I do not want to give up my front row seat to the game, but I am now in a motorized wheelchair (Quantum rehab 6000Z)[.] I have wheels on my feet (shoes) and special smartcrutches to drag myself down the aisle to my seat from my wheelchair, but the front row is down a full flight of steep stairs at the Aloha stadium which I cannot do under any circumstances[.]
Doc. No. 126-6, NFL Ex. D, Bandy Dep. Ex. B. Plaintiff further explained that because " the wheelchair seating is way up and in the endzones, " she was requesting a field pass to access her front-row seat. Id.
Wooten forwarded this request to Stadium Authority Box Office Manager, Ainsley Paki, who wrote back that after consultation with the Stadium Authority's Events Manager Stephen Lee and Aloha Stadium's Security Chief Andrew Chang, they were willing to accommodate Plaintiff by having her sit in the accessible seating area near Section M with a companion. Doc. No. 134, Pl.'s Ex. 4 at NFL000292. Paki further rejected the request for field access, which was limited to those with NFL credentials, and explained that even if Plaintiff could get to the front row seat, Stadium Authority did " not have the flexibility or staff to help her with restroom facilities or to purchase items at the snack bar." Id.
The NFL's Wooten forwarded Paki's response to Plaintiff, who wrote back that she did not want to sit in the accessible seating, she would come early to get to her seat, and she would not get up during the game. Doc. No. 134, Pl.'s Ex. 4 at NFL000291-92. Wooten responded, " I get your dilemma but please understand we are trying to accommodate your needs the best we can, but only have so many options. I have copied the parties involved for one more look at your circumstance." Id. at NFL000290. The individuals Wooten copied included the Stadium Authority's Paki, Lee, and Chang.
Chang forwarded the email thread between Wooten and Plaintiff to NFL Director of Security Services Lenny Bandy and another NFL security employee, Rob Agnew, to get their " thoughts on this matter." Id. In the meantime, Paki informed Wooten that Plaintiff's request was forwarded to NFL Security, who would make a determination. Id.
On January 25, 2013, NFL's Bandy informed Chang, Agnew, Lee, and Wooten that he had two tickets for Plaintiff in the ADA accessible seating area in Section M, Doc. No. 134, Pl.'s Ex. 3 at NFL000548, which were in the same section and for the same price as the seats Plaintiff had purchased. Doc. No. 126-11, Bandy Decl. ¶ 13. Bandy gave Lee permission to call Plaintiff to " try to talk it out to see what she needed, " Doc. No. 120-4, Pl.'s Ex. 15, Lee Dep. at 7-8, and Lee reported back to Bandy that Plaintiff stated that she (1) would not give up her seat in the first row, (2) would find a way to get to her seat, by " scoot[ing] down on her butt" if necessary, and (3) was still interested in the offer of Ohana Day field access. Id. at NFL000547-48; Doc. No. 120-4, Pl.'s Ex. 16, Lee Dep. at 49-50.
Upon hearing Plaintiff's reaction to the offered ADA seating, NFL's Bandy told Lee via email:
I am troubled by Ms. Ritchie's statement that she is going to find " a way to get to the first row." The decision is the stadium's to make, but I remain concerned that her presence in a non-ADA accessible viewing area will create a hazardous condition for her and others seated around her.
Id. at NFL000547. Bandy further explained that the NFL had offered her field access during Ohana Day as a " gesture of good will if she complied with the stadium's wishes to relocate to the ADA accessible viewing area, " and that the NFL had no reason to extend her this courtesy if she was unwilling to take the accessible seats. Id.
According to Plaintiff, she discussed with the Stadium Authority's Lee and Chang various methods for her to get to her front-row seat, and that while they strongly urged her to use the accessible seat offered to her, they stated that they would not block her from going to her seat as long as she did not use the Aloha Stadium staff to do so. Doc. No. 126-3, NFL Ex. A, Pl.'s Dep. at 249-51. She further asserts that the accessible seating offered to her was " significantly inferior" because the view of the field is frequently blocked by other spectators and there is no ...