Opinion
CASE NO. 05cv0139 DMS (RBB).
November 7, 2005
This suit arises from Plaintiff Ruben Deanda's ("Plaintiff") Civil Rights action against Defendants Savings Investment, Inc. and Del Taco, Inc. (collectively "Defendants") under the American with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., and the California Unruh Civil Rights Act, Cal. Civ. Code § 51 et seq., for allegedly failing to remove architectural barriers at Defendants' facility, located at 1540 Ocotillo Drive, El Centro, California. The parties have now filed cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56(c). Defendants also filed a motion for an order denying Plaintiff attorney's fees.
On October 28, 2005, the Court heard oral argument on these motions. Russell C. Handy, Esq. appeared on behalf of the Plaintiff and Lisa A. Wegner, Esq. appeared on behalf of all Defendants. For the reasons discussed below, the Court denies Defendants' motion for summary judgment and grants Plaintiff's motion for summary judgment. In addition, the Court denies Defendants' motion for an order denying Plaintiff attorney's fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is a person with disabilities who requires a wheelchair for mobility. (Deanda Decl. ¶ 1.) Defendants own and operate a Del Taco restaurant ("Restaurant") located in El Cajon, California, which Plaintiff visits a few times a month. (Plaintiff's Motion for Summary Judgment at 3; Deanda Decl. ¶ 2.) During his visits to Defendants' Restaurant, Plaintiff alleges he encountered architectural barriers denying him full and equal access. (Deanda Decl. ¶ 3, 4.) Specifically, Plaintiff alleges he encountered barriers to access as a result of the configuration of the Restaurant's entry doors. (Deanda Decl. ¶ 3.) According to Plaintiff, the entry doors operate in a series which require two people to hold the door open for him to gain access into the Restaurant. ( Id.) Plaintiff also alleges he encountered architectural barriers during his visits to Defendants' Restaurant because none of the dining tables have sufficient knee clearance space to accommodate his wheelchair. ( Id.) As a result of these barriers, Plaintiff sued Defendants in January of 2005, alleging various causes of action, including violations of the ADA and the California Unruh Civil Rights Act.
While Plaintiff's original Complaint included causes of action against Defendants for Negligence, Declaratory Relief, Unfair Competition, and violation of California's Unfair Business Practices Act, Plaintiff has stipulated to the dismissal of these additional state claims. ( See Plaintiff's Opposition to Motion for Summary Judgment at 12.)
After Defendants learned of the lawsuit, counsel for Defendants contacted Stanley Albright ("Albright"), Senior Director of Construction and Facilities of Del Taco, Inc., and notified him of Plaintiff's claims regarding the Restaurant's alleged violations of the ADA. (Albright Decl. ¶ 5 attached to Defendants' Opposition.) Thereafter, Defendants undertook steps to ensure that the Restaurant was compliant with the ADA Accessibility Guidelines ("ADAAG") and Title 24 of the California Code of Regulations. ( Id.) Subsequently, Defendants removed the interior entrance door and placed a work order for the installation of three new disabled accessible tables. ( Id.) In addition, Defendants restriped the parking area and undertook measures to ensure that the restrooms complied with the specifications set forth in the ADAAG and Title 24. ( Id.)
On August 24, 2005, Defendants filed a motion for summary judgment, contending: (1) Plaintiff's claims for injunctive relief under the ADA are moot because Defendants have remedied the alleged architectural barriers; (2) summary judgment is appropriate as to Plaintiff's ADA claim because he was not deterred from visiting the Restaurant; (3) the Court should decline jurisdiction over Plaintiff's state Unruh claim; and (4) even if the Court were to exercise jurisdiction over the Unruh claim, Plaintiff's claim nonetheless fails because Defendants did not intentionally discriminate against the disabled. On August 26, 2005, Plaintiff filed a cross-motion for summary judgment, arguing that: (1) there are no genuine issues of material fact that Defendants' architectural barriers constitute discrimination under the ADA; and (2) because Plaintiff's state Unruh claim is predicated on Defendants' violation of the ADA, summary judgment also should be granted on the state claim. Both parties filed Oppositions and Replies to the cross-motions for summary judgment.
On September 21, 2005, Defendants filed a motion for an order denying Plaintiff attorney's fees. Plaintiff filed an Opposition to Defendants' motion on October 14, 2005, and thereafter, Defendants filed a Reply.
II. LEGAL STANDARD
Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure on "all or any part" of a claim where there is an absence of a genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a) (c); Celotex Corp. V. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence to negate an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the nonmoving party's evidence. Adickes v. S.H. Kress Co., 398 U.S. 144, 159-60 (1970).
If the moving party meets this initial burden, the nonmoving party cannot defeat summary judgment by merely demonstrating "that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995) ("The mere existence of a scintilla of evidence in support of the nonmoving party's position is not sufficient.") (citing Anderson, 477 U.S. at 252). Rather, the nonmoving party must "go beyond the pleadings and by [his or] her own affidavits, or by `the depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 344 (quoting Fed.R.Civ.P. 56(e)). "Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment." T.W. Elec. Serv. Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Moreover, "the district court may limit its review to the documents submitted for purposes of summary judgment and those parts of the record specifically referenced therein." Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). The Court is not obligated "to scour the records in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)).
When making its determination, the Court must view all inferences drawn from the underlying facts in the light most favorable to the party opposing the motion. See Matsushita, 475 U.S. at 587. "Credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge, [when] he is ruling on a motion for summary judgment. Anderson, 477 U.S. at 255.
III. DISCUSSION
A. Defendants' Mootness Claim
In their motion for summary judgment, Defendants contend Plaintiff's ADA claim is moot because the alleged architectural barriers have now been remediated in accordance with the applicable standards set forth in the ADAAG. Based on the evidence presented by Defendants in support of their claim, however, the Court concludes that material issues of fact exist regarding whether the remediations comply with the ADAAG. Plaintiff's claims are therefore not moot.
A case is moot "when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." Clark v. City of Lakewood, 259 F.3d 996, 1011 (9th Cir. 2001). "`Past exposure to illegal conduct does not in itself show a present case or controversy . . . if unaccompanied by any continuing, present adverse effects.'" Renne v. Geary, 501 U.S. 312, 320-21 (1991) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). A claim for injunctive relief is moot only if "it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur." Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 190 (2000) (emphasis added). Thus, an issue is not moot if there are present effects that are legally significant. Smith v. Univ. of Washington, 233 F.3d 1188, 1194 (9th Cir. 2000) (requiring that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.") (emphasis added); see also Norman v. Reed, 502 U.S. 279, 288 (1992); Reich v. Local 396, Int'l Bhd. of Teamsters, 97 F.3d 1269, 1272 n. 5 (9th Cir. 1996). Finally, Defendants bear the "formidable burden" of showing that plaintiff's claim is moot. Friends of the Earth, Inc., 528 U.S. at 190.
Title III of the ADA prohibits discrimination against disabled individuals in any place of public accommodation. 42 U.S.C. § 12182(a). Under § 12182(a), liability is imposed upon "any person who owns, leases (or leases to), or operates a place of public accommodation" that discriminates against an individual on the basis of disability. ( Id.) Failure of newly constructed or altered buildings to abide by the construction guidelines set forth in the ADAAG violates the ADA. 42 U.S.C. § 12183(a)(1). Less rigorous standards are imposed on facilities which were constructed before the ADA's enactment in 1990. These "existing facilities" are required to remove architectural barriers that deny access to persons with disabilities, "where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv).
Although the ADAAG sets out the construction requirements for new and altered facilities, it also provides "valuable guidance for determining when existing facilities contain architectural barriers" that must be removed where readily achievable. Access Now v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1368 (S.D.Fla. 2001) ( quoting Pasuitti v. New York Yankees, 87 F.Supp.2d. 221, 226 (S.D.N.Y. 1999). In fact, the implementing regulations promulgated by the Department of Justice treat any element in an existing facility that does not meet or exceed the ADAAG standards as a barrier to access. Parr v. L L Drive-Inn Restaurant, 96 F.Supp.2d 1065, 1086 (D.Haw. 2000); see 28 C.F.R. §§ 36.304(d), 36.402(b)(2) ("measures taken to comply with the barrier removal requirements . . . shall comply with the applicable requirements for alterations," which are set forth in the ADAAG); U.S. Department of Justice, Supplemental Commentary to the Final Regulations, 56 Fed.Reg. 34, 544 (1991) ("Section 36.304(d) requires that measures taken to remove barriers under § 36.304 be subject to [the] requirements for alterations. . . . It only permits deviations from [those] requirements when compliance with [them] is not readily achievable. . . .")
Here, Plaintiff does not dispute that the Restaurant's entry doors have been remedied in accordance with the ADAAG. In his Opposition to Defendants' motion for summary judgment, Plaintiff concedes that the Restaurant's entry doors no longer violate the ADA. (Plaintiff's Opposition to Motion for Summary Judgment at 2.) Thus, the only issue for this Court to consider is whether Defendants have adequately remedied the lack of disabled accessible tables. Sections 5.1 and 4.32 of the ADAAG require that a minimum of five percent of the fixed seating provide wheelchair clearance of 30" wide, 27" high and 19" deep.
At the time Defendants filed their motion for summary judgment, Defendants contended the Restaurant's lack of disabled accessible tables was in the process of being remediated, and "[a]ll remediations will be completed within twenty-one (21) days . . . prior to the hearing on this Motion." (Defendants' Motion for Summary Judgment at 1.) Subsequently, in their Opposition to Plaintiff's motion for summary judgment, Defendants alleged that the installation of the tables was complete, and further, that the tables are now in full compliance with applicable state and federal guidelines. (Defendants' Opposition to Plaintiff's Motion for Summary Judgment at 9.) As evidence of these remediations, Defendants provide a copy of a work order that was issued on September 30, 2005, which shows that an external vendor was contracted to install three disabled accessible tables at the Restaurant. ( See Exhibit 1 attached to Albright Decl.) In addition, Defendants offer the testimony of its Senior Director of Construction and Facilities, who testified that he visited the Restaurant and confirmed that the tables were installed and are now in compliance with the ADAAG. (Albright Decl. ¶ 5 attached to Defendants' Opposition.) Based on this evidence, Defendants contend Plaintiff's claim for injunctive relief is moot.
While Defendants provide evidence in their Opposition brief that the disabled accessible tables have been installed, Defendants fail to offer sufficient evidence to establish that the tables are in compliance with the ADAAG. The work order Defendants offer as evidence merely indicates that an external vendor was contracted to carry out the installation of the tables; there is no evidence that those tables comply with the standards established in the ADAAG. In addition, while Albright's testimony provides evidence that the disabled accessible tables have been installed, he fails to set forth any facts establishing that the tables as installed comply with the ADAAG. ( See Albright Decl. ¶ 5 attached to Defendants' Opposition; Albright Decl. ¶ 7 attached to Defendants' Reply.) Notably, Albright's conclusory testimony that the tables are now in compliance in all respects with the ADAAG and Title 24 is not supported by any facts which show how the tables are configured, where the tables have been installed and whether the tables meet the required measurements set forth in the ADAAG. Accordingly, Defendants have failed to overcome their burden of establishing that the barriers have been completely and irrevocably eradicated.
Defendants argue they are nevertheless entitled to summary judgment because Plaintiff failed to serve them with a Fed.R.Civ.P. 34 request to perform a site inspection to conclusively determine that the tables conform with the specifications set forth in the ADAAG. This argument lacks merit. As noted, Defendants bear the burden of showing that Plaintiff's claim is moot. Friends of the Earth, Inc., 528 U.S. at 190. In addition, a party seeking summary judgment bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Here, because Defendants failed to come forth with sufficient evidence to establish that the tables were remedied in accordance with the ADAAG, Defendants' motion for summary judgment must be denied. Adickes, 398 U.S. at 159-60 (the Court need not consider a plaintiff's evidence in deciding a motion for summary judgment when the defendant fails to establish its initial burden of the absence of a genuine issue of material fact.)
Federal Rule of Civil Procedure 34 provides, in pertinent part, "[a]ny party may serve on any other party a request . . . to permit entry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or any designated object or operation thereon, within the scope of Rule 26(b)."
B. Plaintiff's ADA Claim
Finding that Plaintiff's claims are not moot, the Court next considers whether Plaintiff is entitled to summary judgment on his ADA claim. The sole issue presented here is whether installation of the disabled accessible tables is "readily achievable." Because Plaintiff provides sufficient evidence to show that Defendants could have installed the disabled accessible tables without much difficulty or expense, the Court finds that no genuine issues of material fact exist as to Defendants' liability under the ADA.
In their motion for summary judgment, Defendants also raise the argument that "[i]n addition to being moot, [Plaintiff's] claims suffer from another fatal defect in that his deposition testimony reveals that he has not been deterred from visiting the Restaurant." (Defendants' Motion for Summary Judgment at 1.) In support, Defendants rely on Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002), for the proposition that in order to succeed under the ADA, a plaintiff must establish actual deterrence from a place of public accommodation. Based on this interpretation of Pickern, Defendants argue that because Plaintiff was not deterred from visiting the Restaurant, he cannot establish an injury in fact.
This Court, however, declines to interpret Pickern so narrowly. While Pickern held that "a disabled individual who is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA has suffered `actual injury,'" and has standing to bring a claim under the ADA, the court did not limit standing solely to instances where a plaintiff is able to show he was deterred from a place of public accommodation. Pickern, 293 F.3d at 1138. Rather, under Pickern, a plaintiff has standing to raise an ADA claim against a defendant if she can show either (1) injury from having encountered barriers to access at a place of public accommodation, or (2) deterrence from visiting a place of public accommodation as a result of the barriers to access. Because Plaintiff visited Defendants' Restaurant and alleges he suffered injury from architectural barriers, he has standing to raise a claim under the ADA.
As previously noted, a plaintiff seeking to establish discrimination under Title III of the ADA must show that a defendant failed to remove "architectural barriers" in existing facilities where such removal is "readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv); Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135 (9th Cir. 2002); Alford v. City of Cannon Beach, 2002 WL 31439173 (D.Or. 2002). The term "readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9); Disabled Rights Action Committee v. Las Vegas Events, Inc., 375 F.3d 861, 880 fn.15 (9th Cir. 2004). Under 42 U.S.C. § 12181, the following factors are to be considered in determining if the removal is "readily achievable":
Because Defendants' Restaurant was constructed before 1990, it qualifies as an "existing facility" under 42 U.S.C. § 12182(b)(2)(A)(iv). ( See Discussion III-A, supra).
(A) the nature and cost of the action needed;
(B) the overall financial resources of the facility or facilities involved in the action; the number of persons employed at such facility; the effect on expenses and resources or the impact otherwise of such action upon the operation of the facility;
(C) the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and location of its facilities; and
(D) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question to the covered entity.
Here, Plaintiff contends there is sufficient evidence to show that the installation of the tables is readily achievable. In support of his claim, Plaintiff provides the testimony of his designated expert, Paul Bishop, who stated that the installation of the disabled accessible tables "is easily accomplished and [can be] done without much difficulty or expense to Del. Taco Inc." (Bishop Decl. ¶ 8). In addition, Plaintiff cites the testimony of Defendants' expert, William Norkunas, who admitted that, during his inspection of the Restaurant, he found no tables in compliance with the applicable standards of the ADAAG, and further, that providing disabled accessible tables is a readily achievable project. (Norkunas Deposition at 26-27.) Finally, Plaintiff notes the work order that was issued on September 30, 2005 shows the cost of installing disabled accessible tables at Defendants' Restaurant is $270.00. (Plaintiff's Reply at 4; Exhibit 1 attached to Albright Decl.) Based on this evidence, Plaintiff contends there are no genuine issues of material fact that installing disabled accessible tables at Defendants' Restaurant is readily achievable.
Defendants, however, relying on two cases, Colorado Cross Disability Coalition v. Hermanson, 264 F.3d 999 (10th Cir. 2001) and Parr v. Waianae L L Inc., 2000 WL 687655 (D. Haw. 2000), argue that Plaintiff fails to satisfy his initial burden of proof to show that his suggested method for removal of the barrier is readily achievable. Specifically, Defendants contend Plaintiff failed to submit a construction plan and cost estimates for the proposed modifications.
While Defendants correctly note that Plaintiff in his cross-motion carries the initial burden of proof, the Court finds that Plaintiff has met this burden. As the court noted in Colorado Cross, to determine whether a modification is readily achievable, the inquiry must be based on a case by case basis under the particular circumstances and factors listed in 42 U.S.C. § 12181. 264 F.3d at 1009. As such, a plaintiff's failure to provide specific construction plans, standing alone, is not dispositive as to whether modification of an alleged barrier is readily achievable.
Here, Plaintiff provides ample evidence that installation of the disabled access tables is a readily achievable endeavor. Specifically, Plaintiff provides the testimony of his designated expert, Paul Bishop, who stated that the installation of the disabled accessible tables can be done without much difficulty or expense to Defendants. (Bishop Decl. ¶ 8). Moreover, Plaintiff cites the testimony of Defendants' own expert, William Norkunas, who testified that providing disabled accessible tables is a readily achievable project. (Norkunas Deposition at 26-27.) In addition, Plaintiff has established, through the Restaurant's work order that installation of the subject tables cost only $270.00. Finally, Defendants admit that the Restaurant has already installed three tables which allegedly comply with the applicable sections of the ADAAG. Plaintiff has therefore met his initial burden of showing the installation of the disabled accessible tables is readily achievable. Because Defendants fail to offer any evidence to rebut Plaintiff's showing, the Court finds there are no genuine issues of material fact as to this issue. Accordingly, Plaintiff is entitled to summary judgment in his favor under Title III of the ADA.
C. Plaintiff's State Unruh Claim
Plaintiff also contends he is entitled to summary judgment under his state Unruh claim because that claim is predicated upon Defendants' violation of the ADA. Defendants argue, however, that they did not violate the Unruh Act because they did not intentionally discriminate against the disabled. Thus, Defendants argue that unlike the ADA, liability under the Unruh Act requires a showing of intentional discrimination.
As an initial matter, the Court notes that federal question jurisdiction exists over Plaintiff's Unruh claim because that claim is based wholly upon Defendants' violation of the ADA. As such, federal question jurisdiction exists where one or more of the state law claims necessarily turns on the construction of a substantial, disputed federal question. Pickern v. Best Western Timber Cove Lodge Marina Resort, 194 F.Supp.2d 1128, 1130-31 (quoting Rains v. Criterion Systems, Inc., 80 F.3d 339, 343 (9th Cir. 1996)); see also Boemio v. Love's Restaurant, 954 F.Supp. 204 (S.D.Cal. 1997) (extending District Court's jurisdiction over a plaintiff's Unruh claim based on federal question jurisdiction under the ADA).
The Unruh Civil Rights Act, codified at California Civil Code Section 51, provides, in pertinent part: "All persons within the jurisdiction of this state . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever . . . A violation of the right of any individual under the Americans with Disabilities Act of 1990 . . . shall also constitute a violation of this section." Therefore, under Civil Code Section 51, a plaintiff whose rights are violated under the ADA may also seek damages under the Unruh Civil Rights Act. Boemio, 954 F.Supp. at 208-09 (S.D.Cal. 1997); Presta v. Peninsula Corridor Joint Powers Bd., 16 F.Supp.2d 1134, 1135 (N.D.Cal. 1998).
Despite Defendants' contention, liability under the Unruh Act does not require a showing of intentional discrimination. The Ninth Circuit, in Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004), has held that "no showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation." See also Johnson v. Constancio Cu, Jr., 2005 WL 1983899 (E.D.Cal. 2005); Presta, 16 F.Supp.2d at 1136 (Plaintiff need not demonstrate defendants harbored discriminatory intent as an element of her claim of disability discrimination under the Unruh Civil Rights Act). Accordingly, Plaintiff is entitled to summary judgment on this claim for the same reasons justifying summary judgment in Plaintiff's ADA claim.
D. Defendants' Motion for Order Denying Plaintiff Attorney's Fees
Finally, Defendants move this Court for an order denying Plaintiff attorney's fees. Defendants contend attorney's fees should be denied, regardless whether Plaintiff prevails in this lawsuit. Plaintiff opposes Defendants' motion on grounds that it is premature.
Section 12205 of the ADA authorizes a court, in its discretion, to "allow the prevailing party, other than the United States, a reasonable attorney's fee, including litigation expenses, and costs. . . ." 42 U.S.C. § 12205. Because the Court grants summary judgment in Plaintiff's favor and denies summary judgment for Defendants, Plaintiff is the prevailing party and is entitled to reasonable attorney's fees. Accordingly, Defendants' motion for an order denying Plaintiff attorney's fees is denied.
IV. CONCLUSION AND ORDER
For the reasons discussed above, the Court DENIES Defendants' motion for summary judgment, and GRANTS Plaintiff's motion for summary judgment. In addition, the Court DENIES Defendants' motion for an Order denying Plaintiff attorney's fees. The Clerk of the Court shall enter judgment accordingly.IT IS SO ORDERED.