govinfo:USCOURTS-ohsd-2_25-cv-00834-1

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
 
THOMAS WADDELL, 
 
Plaintiff, 
 
v. 
 
 
TOP FAMILY AFFAIR LLC, et 
al., 
 
Defendants. 
: 
 
 
 
 
 
: 

Chief Judge Sarah D. Morrison 
Magistrate Judge S. Courter M. 
Shimeall 
 
OPINION AND ORDER 
This matter is before the Court on Thomas Waddell’s Motion to Amend Order 
(ECF No. 42) and Motion to Certify Discovery Order for Interlocutory Appeal (ECF 
No. 43). Pursuant to 28 U.S.C. § 1292(b), Mr. Waddell seeks to immediately appeal 
this Court’s April 17 Order (Order, ECF No. 40) affirming and adopting the 
Magistrate Judge’s ruling on the parties’ discovery dispute (ECF No. 28). He also 
asks the Court to revise that Order to include a “certification statement” to allow 
his interlocutory appeal to proceed. These Motions are fully briefed and, for the 
reasons below, are DENIED. 
I. BACKGROUND 
This action stems from purported access barriers at Defendants’ restaurant 
that Mr. Waddell alleges denied him full enjoyment of a place of public 
accommodation in violation of Title III of the ADA and Ohio Revised Code 
§ 4112.02, et seq. During discovery, the parties disputed the proper scope of Mr. 
Waddell’s Rule 34 inspection of Defendants’ restaurant. (See ECF No. 28.) Mr. 
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Waddell argued that the broad remedial purpose of the ADA provided a basis for 
him to inspect the Defendants’ entire restaurant while Defendants argued his 
inspection should be limited to areas containing access barriers he personally 
encountered as alleged in his Amended Complaint. (See id.) The Magistrate Judge 
adopted the Defendants’ position and limited Mr. Waddell’s inspection to the areas 
of the restaurant identified in his Amended Complaint. (Id.) 
Mr. Waddell objected to the Magistrate Judge’s Order and asked the Court to 
allow him to inspect all public-use areas of the restaurant relevant to his mobility-
based access claims. (See ECF No. 31.) Noting the conflicting authority outside the 
Sixth Circuit and the lack of controlling authority, the Court overruled Mr. 
Waddell’s Objection and affirmed the Magistrate Judge’s Order. (See Order.) In the 
interim, Mr. Waddell completed his inspection and produced an expert report 
detailing the results of that inspection. (See ECF No. 38.) 
The parties’ discovery closes in four weeks and dispositive motions are due 
shortly thereafter. (See ECF No. 47.) Nevertheless, Mr. Waddell moves the Court to 
certify its ruling on the discovery limitation for appeal. Specifically, he asks the 
Court to certify the following question to the Sixth Circuit: 
Whether, in a Title III ADA access case in the Sixth Circuit where a plaintiff 
with a mobility disability has personally encountered barriers at a public 
accommodation and seeks injunctive relief to remediate all barriers affecting 
persons with his disability, the plaintiff’s right to conduct a Rule 34 property 
inspection is limited to only those specific areas he personally visited on a 
prior occasion, or whether Fed. R. Civ. P. 26(b)(1)’s relevance standard 
permits inspection of all areas of the property that bear on the claimed 
violations and the requested injunctive relief. 
(ECF No. 43, PAGEID # 296.) 
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II. STANDARD OF REVIEW 
Interlocutory appeals are generally disfavored and should be used sparingly 
and “only in exceptional cases where an intermediate appeal may avoid protracted 
and expensive litigation[.]” U.S. ex rel. Elliot v. Brickman Grp. Ltd., LLC, 845 F. 
Supp. 2d 858, 863 (S.D. Ohio 2012) (citation omitted) (Barrett, J.). Appeals under 28 
U.S.C. § 1292(b) are “not appropriate for securing early resolution of disputes 
concerning whether the trial court properly applied the law to the facts.” Howe v. 
City of Akron, 789 F. Supp. 2d 786, 810 (N.D. Ohio 2010) (citation omitted). A 
district court may certify an otherwise unappealable order if three requirements are 
met: (1) the order involves a controlling question of law; (2) a substantial ground for 
difference of opinion exists regarding the correctness of the decision; and (3) an 
immediate appeal may materially advance the ultimate termination of the 
litigation. In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). 
III. ANALYSIS 
Mr. Waddell must meet all three elements set forth in 28 U.S.C. § 1292(b) to 
prevail on his request for interlocutory appeal. Because the Court does not find that 
an immediate appeal would materially advance the ultimate termination of the 
litigation, the Court begins and ends its analysis with the third element. 
“An interlocutory appeal will materially advance the litigation if it will save 
substantial judicial resources and litigant expense.” In re Regions, 741 F. Supp. 2d 
844, 851 (W.D. Tenn. 2010) (citation omitted). “Appeals fulfilling that criterion 
typically are those where, absent review, potentially unnecessary ‘protracted and 
expensive litigation’ will ensue.” In re Somberg, 31 F.4th 1006, 1008 (6th Cir. 2022) 
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(citation omitted). When the “district court could swiftly proceed to a final 
judgment” without interlocutory review, the Sixth Circuit has deferred 
consideration. Id. (citing Kraus v. Bd. of Cnty. Road Comm’rs, 364 F.2d 919, 922 
(6th Cir. 1966)). 
Mr. Waddell argues that certification will materially advance this litigation 
for two reasons: (1) later reversal by the Sixth Circuit would require the parties to 
conduct additional discovery and re-brief dispositive motions; and (2) waiting until 
after final judgment to expand discovery risks permanent loss of evidence relevant 
to his claims. Neither convinces the Court that an interlocutory appeal is 
warranted. 
In support of his first argument, Mr. Waddell contends that an immediate 
appeal would be more efficient than continuing through litigation because, 
assuming the Sixth Circuit agrees that his inspection should not have been limited, 
the parties would need to conduct an additional inspection, update or re-do expert 
reports, and re-brief dispositive motions. (ECF No. 43, PAGEID # 289.) But Mr. 
Waddell has already completed his inspection and produced an expert report, so any 
reversal by the Sixth Circuit regarding the inspection would require the additional 
time and expense that Mr. Waddell argues an interlocutory appeal would avoid. 
Thus, whether Mr. Waddell appeals the discovery limitation now or after final 
judgment would not meaningfully impact the course of litigation or conserve 
litigation expenses and judicial resources. Indeed, the scope of Mr. Waddell’s 
inspection does not weigh on the ultimate resolution of this litigation, but on the 
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scope of his requested relief. The parties would still need to brief dispositive motions 
and, if necessary, proceed to trial regardless of the outcome of the requested appeal. 
An immediate appeal in this instance would further delay the termination of 
litigation, not advance it. 
With regard to his second argument, Mr. Waddell contends that the harm 
resulting from the Court’s “incorrect limitation on inspection cannot be remedied 
post-judgment” because Defendants have already removed one barrier and 
additional renovations or remediations “risks permanent loss of evidence” critical to 
his claims. (ECF No. 43, PAGEID # 298.) Accordingly, he argues that “an inspection 
of the premises must occur while the property exists in its current condition” 
because further renovations “could render an eventual inspection irrelevant.” (Id.) 
But Mr. Waddell does not cite – nor can the Court find – any authority to suggest 
that Rule 34 inspections must occur prior to a defendant’s remediation of alleged 
ADA violations. On the contrary, removing access barriers during litigation fulfills 
the ADA’s remedial purpose and may moot the plaintiff’s claims. See, e.g., Kelley v. 
Smith’s Food & Drug Ctrs., Inc., 793 F. App’x 787, 789–90 (10th Cir. 2019) 
(upholding dismissal of Title III ADA claim where defendant permanently 
remediated barriers); Davis v. Anthony, Inc., 886 F.3d 674, 677 (8th Cir. 2018) 
(upholding dismissal for mootness following remediation and finding request for 
discovery of undiscovered barriers futile). To the extent Defendants have removed 
and continue to remove alleged barriers, they are providing Mr. Waddell the relief 
he seeks, not destroying evidence. The Court is not convinced that delaying 
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litigation to allow Mr. Waddell to appeal its discovery ruling before Defendants can 
remediate any unencountered barriers would materially advance the ultimate 
resolution of this case. 
Because Mr. Waddell fails to show that the third statutory requirement is 
met, the Court finds that an immediate appeal is not warranted under § 1292(b). 
IV. CONCLUSION 
For the reasons stated herein, the Court DENIES Mr. Waddell’s Motion to 
Certify Discovery Order for Interlocutory Appeal (ECF No. 43). His Motion to 
Amend the Discovery Order to Include the Statement Required by 28 U.S.C. 
§ 1292(b) (ECF No. 42) is DENIED as moot. 
 
IT IS SO ORDERED. 
 
/s/ Sarah D. Morrison 
SARAH D. MORRISON, CHIEF JUDGE 
UNITED STATES DISTRICT COURT 
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