Thomas v. BR Pig, LLC

Full title: DEBORAH THOMAS v. BR PIG, LLC

Court: UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

Date published: Dec 21, 2015

CIVIL ACTION NO.: 15-00573-BAJ-SCR (M.D. La. Dec. 21, 2015)

Opinion

CIVIL ACTION NO.: 15-00573-BAJ-SCR

12-21-2015

DEBORAH THOMAS v. BR PIG, LLC

BRIAN A. JACKSON, CHIEF JUDGE UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF LOUISIANA

ORDER

Before the Court is an unopposed Motion to Dismiss for Failure to State a Claim (Doc. 14) filed by Defendant BR Pig, LLC ("Defendant"), seeking dismissal with prejudice of Plaintiff Deborah Thomas's ("Plaintiff") complaint. For the reasons stated below, the motion is GRANTED.

On August 27, 2015, Plaintiff filed a complaint asserting one claim pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (See Doc. 1). Plaintiff was limited to requesting declaratory and injunctive relief. See 42 U.S.C. § 12188(a). On October 1, 2015, Plaintiff's counsel filed a suggestion of death pursuant to Fed. R. Civ. P. 25(a)(1). (See Doc. 9).

Defendant contends that "an action seeking declaratory and injunctive relief and not money damages is extinguished upon the plaintiff's death." (Doc. 15 at p. 1). Defendant relies upon Flores v. Fox, 394 Fed. App'x 170, 171—72 (5th Cir. 2010), wherein the Fifth Circuit instructed that a prisoner's death mooted his request for injunctive relief. Id. (citing Rhodes v. Stewart, 488 U.S. 1, 4 (1988); Copsey v. Swearingen, 36 F.3d 1336, 1339 n.3 (5th Cir. 1994)). Defendant also asserts that an award for attorney's fees is no longer available given the absence of a viable claim under the ADA. (Doc. 15 at p. 2).

Because Plaintiff has not presented any argument in opposition, the Court will assume that Plaintiff concedes the applicability of the law cited by Defendant. See Robinson u. City of St. Gabriel, No. 13-cv-00298-BAJ-SCR, 2014 WL 991773, at *3 (M.D. La. Mar. 13, 2014). Upon review, this Court agrees that Plaintiff's death rendered her claim seeking declaratory and injunctive relief under the ADA moot. See Flores, 394 Fed. App'x 170, 171—72; Barria v. Yu, No. 08-cv-0908-BEN-CAB, 2010 WL 2653322, at *1 (S.D. Cal. July 1, 2010). Therefore, a party cannot be properly substituted as to Plaintiff for the only claim she asserted. Fed. R. Civ. P. 25(a)(1).

I. CONCLUSION

Accordingly,

It is ORDERED that Defendant's Motion to Dismiss for Failure to State a Claim (Doc. 14) is GRANTED.

It is FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH PREJUDICE.

Baton Rouge, Louisiana, this 21^st day of December, 2015.

/s/ _________

BRIAN A. JACKSON, CHIEF JUDGE

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA