United States District Court, S.D. Mississippi, Northern Division
MICHAEL HINTZ and JARVIS JERNIGAN, JR. PLAINTIFFS
MAY AND COMPANY, INC. d/b/a VETERANS CAB TAXI SERVICES DEFENDANT
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS'
MOTION  FOR PARTIAL SUMMARY JUDGMENT
SULEYMAN OZERDEN, UNITED STATES DISTRICT JUDGE
THE COURT is the Motion  for Partial Summary Judgment
filed by Plaintiffs Michael Hintz and Jarvis Jernigan, Jr.
Plaintiffs are two friends who have both been diagnosed with
multiple sclerosis (“MS”). On three separate
instances, Plaintiffs sought to use the wheelchair accessible
services of Defendant May and Company, Inc., doing business
as Veterans Cab Taxi Services (“Veterans Cab”).
Plaintiffs allege that Veterans Cab denied them the full and
equal enjoyment of its services and failed to make reasonable
modifications to their policies and practices to accommodate
Plaintiffs, in violation of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101, et
seq., and Mississippi's deceptive advertising law,
section 97-23-3 of the Mississippi Code.
now move for partial summary judgment on their ADA claims and
the merits of their claim for deceptive advertising,
reserving for trial the amount of damages on the second
claim. The Motion has been fully briefed. Based upon its
review of the record and relevant legal authority, the Court
finds that Plaintiffs' Motion should be denied.
Michael Hintz was diagnosed with MS in February 2003. Hintz
Aff. [17-1] ¶ 3. Hintz attests that he is substantially
impaired in several major life activities such as walking and
standing, id., and thus relies on a wheelchair for
mobility, id. Plaintiff Jarvis Jernigan, Jr., is
friends with Hintz. Id. The two met through the
National MS Society. Id. Jernigan was diagnosed with
MS in February 1996, Jernigan Aff. [17-2] ¶ 3, and like
Hintz, he suffers from substantial impairment in activities
including walking and standing, id. Jernigan relies
on a powered wheelchair or scooter for mobility. Id.
Hintz and Jernigan do not drive, but rely on public and
private transportation services, and sometimes obtain
transportation from friends or family. Id. ¶ 6;
Hintz Aff. [17-1] ¶ 5.
Cab is a small business operating in Jackson, Mississippi,
that offers taxi services for both impaired and unimpaired
individuals. Mayo Aff. [22-1] ¶ 3. Veterans Cab has a
fleet of five vehicles, Mayo Aff. [22-1] ¶ 3, one of
which is a wheelchair accessible van. Id. The
drivers for Veterans Cab are independent contractors who each
set their own schedule and decide when and if they are able
to respond to a call. Id. Veterans Cab contracts
with four drivers, Def.'s Resp. to Pls.' First Set of
Interrogs. [17-3] at 2, and currently has two drivers who are
trained to operate the wheelchair accessible van, Def.'s
Mem.  at 1.
Cab attests that although the business is open 24 hours a
day, there are times when service is not available, or when
there may be a delay in pick up, whether the customer is
impaired or not. Mayo Aff. [22-1] ¶ 3. Veterans Cab
further asserts that it does not have the capacity to have a
cab ready to pick up a customer at a moment's notice.
Id. ¶ 8. Because Veterans Cab is not a
contracted provider for pick up services at the Jackson
Airport, it only services the Jackson Airport by appointment.
Id. ¶ 6. Because a driver must request and pay
for a badge in order to pick up from the Jackson Airport,
id. ¶ 4, not every driver obtains one due to
the expense involved, id.
March 11, 2016 Incident Involving Jernigan
alleges that on or about March 11, 2016, he called Veterans
Cab to place a reservation for an accessible taxi to drive
him to the Jackson Airport in the early morning of March 14,
2016. Jernigan Aff. [17-2] ¶ 8. Jernigan states that he
had seen Veterans Cab's advertisement that it offered
24-hour accessible transportation services, id., and
alleges that a Veterans Cab dispatcher informed him that it
had only one wheelchair accessible vehicle, only one driver
for that vehicle, and that the driver was not available in
the early morning of March 14, 2016, to take Jernigan to the
airport, id. ¶ 9. Veterans Cab attests that at
the time of this March 11, 2016 call, the wheelchair van was
not available to anyone, whether impaired or unimpaired, at
that time of the morning for a trip to the Jackson Airport.
Mayo Aff. [22-1] ¶ 5.
January 15, 2017 Incident Involving Both Plaintiffs
January 2017, Hintz and Jernigan traveled out of state and
returned to Jackson on January 15, 2017, arriving at the
Jackson Airport at approximately 3:30 p.m. Jernigan Aff.
[17-2] ¶ 11. Jernigan saw several taxis at the airport,
but none were wheelchair accessible. Id. Jernigan
alleges that an airport administrator called Veterans Cab at
approximately 4:35 p.m. to reserve an accessible taxi for
Hintz and Jernigan, id., but that he was told that
the Veterans Cab accessible taxi would not arrive at the
airport until at least 5:30 p.m., id. At around 5:45
p.m., Plaintiffs learned that the Veterans Cab accessible
taxi could not arrive at the airport until 6:30 p.m.
Id. Plaintiffs then made alternative arrangements
for transportation. Id.
Cab attests that during this call, all of its cabs were busy
on other routes, Mayo Aff. [22-1] ¶ 6, and that once a
driver was able to finish the other calls, a driver would
have been able to pick up Plaintiffs from the Jackson
Airport, id. According to Veterans Cab, this would
have been the same situation had an unimpaired individual
called for service at that time, but Plaintiffs did not want
to wait. Id.
May 14, 2017 Incident Involving Hintz
14, 2017, Hintz called Veterans Cab at approximately 5:30
p.m. to request an accessible taxi to drive him home from the
hospital. Hintz Aff. [17-1] ¶ 8. Hintz alleges that he
was initially told by the dispatcher that a driver was not
available for the accessible taxi, though the dispatcher
called him back a few minutes later to advise that it would
be at least 30 minutes before the accessible taxi could pick
him up. Id. Hintz believed that such wait time was
unreasonable, and made alternative transportation
Cab contends that during the May 14, 2017 call, all cabs were
busy on other routes, Mayo Aff. [22-1] ¶ 7, and that
once a driver was able to finish the other calls, a driver
could have picked up Hintz from the hospital, id.
Veterans Cab maintains that this would have been the same
situation had an unimpaired individual called for service at
that time. Id.
7, 2017, Plaintiffs filed a Complaint  in this Court
against Veterans Cab, asserting that based upon the incidents
of January 15, 2017, and May 14, 2017, Veterans Cab violated
the ADA because Plaintiffs were denied the full and equal
enjoyment of Veterans Cab's transportation services.
Compl.  at 5-6. Plaintiffs allege that Veterans Cab
treated Plaintiffs differently than other individuals in its
response times and hours and days of service, id. at
7, and that Veterans Cab violated the ADA by failing to make
reasonable modifications in its procedures to afford services
to individuals with disabilities, such as failing to employ
an adequate number of drivers capable of driving the van
during all hours of operation, id. at 6-7.
II of the Complaint advances a claim for violation of
Mississippi's deceptive advertising law, section 97-23-3
of the Mississippi Code. Compl.  at 8-9. The Complaint
alleges that when Jernigan called Veterans Cab on March 11,
2016, to reserve an accessible van, he did so in reliance on
the company's representations on its website regarding
the availability of its accessible taxi services.
Id. at 8-9.
Complaint seeks an injunction declaring that Veterans Cab is
violating the ADA and ordering Veterans Cab to modify its
policies and procedures to bring them within compliance of
the ADA. Id. at 9-10. Plaintiffs also pray for
attorneys' fees and damages on behalf of Jernigan for
Veterans Cab's deceptive advertising practices.
Id. at 10.
March 22, 2018, Plaintiffs filed a Motion  for Partial
Summary Judgment that Veterans Cab is in violation of the
ADA by denying wheelchair users the full and equal enjoyment
of its public transportation services. Mot.  at 1;
Pls.' Mem.  at 17-18. Plaintiffs contend that on
March 11, 2016, Jernigan was denied service on the basis of
his disability when service would have been provided to an
able-bodied customer. Pls.' Mem.  at 17. Plaintiffs
further argue that they were offered a disparate level of
service on January 15, 2017, and May 14, 2017, by having to
endure longer and unreasonable wait times for service.
Id. at 17-18. Plaintiffs also request summary
judgment that Veterans Cab is in violation of the ADA by
failing to make reasonable modifications to its ...