United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
PHILIP P. SIMON, Chief District Judge.
Donald Terry Oberloh, a pro se plaintiff, has filed a motion for contempt (DE 39) regarding Defendants alleged failure to comply with the parties' Agreed Judgment and Order (DE 37). Because I find that Oberloh has failed to provide clear and convincing evidence that Defendants violated the Order, I will deny Oberloh's request.
This dispute began in 2010 when Oberloh filed a complaint alleging various violations of the Americans With Disabilities Act (ADA) at Defendants' hair salon. (DE 1) In essence, Oberloh alleged that Defendants' parking lot was not ADA compliant. About two and a half years later, the parties reached an agreement, resulting in an Agreed Judgment and Order (DE 37). That order states in relevant part:
The Defendants shall cause the parking lot at the 204 West Mishawaka location to be resurfaced in a manner consistent with the requirements of the Americans With Disabilities Act Standards for Accessible Design in effect at the time this judgment is entered.
The Defendants shall also cause the parking lot at the 204 West Mishawaka location to be painted in a fashion to provide adequate parking for handicapped/van accessible vehicles and to provide for a clear access path to the main entrance of the business, consistent with the requirements of the Standards for Accessible Design in effect at the time this judgment is entered.
The Defendants shall also cause appropriate signage to be installed consistent with the requirements of the Standards for Accessible Design in effect at the time this judgment is entered.
The Defendants shall complete the modifications described above by August 31, 2013.
By the middle of August 2013, Oberloh "noticed that work had been completed on the site in question." (DE 41 at 2) Oberloh believed, however, that the work was not ADA-compliant and alerted Defendants' attorney. Defendants' attorney "promptly" responded on August 22, 2013, asking Oberloh for more details on what he believed was out of compliance. ( Id. ) Oberloh did not provide specifics as to what he believed was out of compliance, but did offer to assist Defendants and their architect in fixing the problems. ( Id. at 3)
When he didn't hear back after about a month, Oberloh filed the instant motion. (DE 39) He argues that Defendants have failed to make the parking lot handicap/van accessible for myriad reasons. The parties briefed the motion and requested some limited discovery, which I allowed. (DE 47) At a later telephonic hearing, the parties agreed that an evidentiary hearing was not necessary, but suggested filing supplemental briefing. (DE 51) I agreed and ordered the parties to follow a supplemental briefing schedule. (DE 52) Defendants filed their opening brief, but I have heard nothing from Oberloh since that telephonic conference. He has filed no responsive brief, despite being separately ordered to do so. (DE 54) Mail sent to Oberloh from the Court has been returned as undeliverable because Oberloh has apparently moved and left no forwarding address. (DE 55) I will therefore base my ruling on the parties' briefing on the motion for contempt, Oberloh's interrogatory responses (filed with the Court), and Defendants' supplemental brief, which I find sufficient to render my ruling.
A party seeking contempt sanctions for a violation of a court order faces a high bar. The party must show by clear and convincing evidence that,
(1) a court order sets forth an unambiguous command; (2) the alleged contemnor violated that command; (3) the violation was significant, meaning the alleged contemnor did not substantially comply with the order; and (4) the alleged ...