Bakshi v. Bergen Cnty. Superior Court, Civil Action No.: 15-3560 (JLL) (JAD)

ZAHEER BAKSHI, Plaintiff, v. BERGEN COUNTY SUPERIOR COURT, Defendants.

Civil Action No.: 15-3560 (JLL) (JAD)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

May 9, 2016

NOT FOR PUBLICATION

OPINION

LINARES, District Judge.

This action arises out of an allegation by Pro-Se Plaintiff Zaheer Bakshi ("Mr. Bakshi") that New Jersey Superior Court - Bergen Vicinage ("Bergen Vicinage") failed to provide Plaintiff with accommodations under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Presently before the Court are cross-motions for summary judgment filed by Bergen Vicinage (ECF No. 35) and by Mr. Bakshi (ECF No. 40) pursuant to Federal Rule of Civil Procedure 56.¹ The Court has considered the parties' submissions and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court grants Bergen Vicinage's motion and denies Mr. Bakshi's cross-motion.

FACTUAL BACKGROUND²

Mr. Bakshi filed a complaint against the Village of Ridgewood Water ("Ridgewood Water") in September 2013 in Bergen Vicinage. (Bakshi Br. at 5, ¶ 3.) Mr. Bakshi states that "[f]or one year no CART [Communication Access Realtime Translation] or remote access was ever provided." (Id.) (However, Mr. Bakshi also states that "[w]hen the CART was provided it was an 8 inch CART which made reading the fast scrolling words totally impossible." (Id. at 4.)) The timing of Mr. Bakshi's allegations are unclear, but he asserts that at some point prior to July 2014, Plaintiff's complaint was dismissed without prejudice by Senior Judge Rosa. (Id.) BergenVicinage does not discuss this timeframe in their submissions.

Plaintiff filed a new complaint against Ridgewood Water on July 1, 2014—Zaheer Bakshi v. Village of Ridgewood Water, BER-DC-11930-14—which was assigned to the Honorable Susan J. Steele, J.S.C. ("Judge Steele") in the Special Civil Part of Bergen County Superior Court. (BV SMF ¶ 2; Bakshi Br. at 6 ¶ 4.)

A proof hearing was scheduled to take place approximately two months after the Complaint was refiled, on September 11, 2014, before Judge Steele. (Bakshi Br. at 6, ¶ 4; see also ECF No. 35-3, Affidavit of Laura A. Simoldoni ("Simoldoni Aff."), Ex A.) Mr. Bakshi states that because no CART accommodation was arranged for him for this hearing, he was "forced to cancel" the September 11, 2014 hearing. (Bakshi Br. at 6, ¶ 5.)

The proof hearing was rescheduled for September 25, 2014 before Judge Steele. (BV SMF ¶ 3; Simoldoni Aff., Ex. A; Bakshi Br. at 6, ¶ 6.) On the day of the hearing, at or around 12:41 PM, Mr. Bakshi sent a facsimile to Judge Steele's chambers unilaterally cancelling the proof hearing. The facsimile stated in part as follows:

Due to another 12th hour changes [sic] I am cancelling my appearance for today. At 6 PM, yesterday ,I [sic] was told that the proof hearing will go on as scheduled for today and that the Motion to reconsider dismissal which Judge Rosa has already denied will be heard on 10/10 without my physical presence, and that I was also granted the courtesy of a phone conference, saving me the trouble of making a 1000 mile round trip drive from the Canadian border with my disabilities and leaving my farm and my patients stranded.

I was scheduled to leave yesterday and stay overnight in a hotel, but due to the last minute changes I had to set out in the morning and got stuck in traffic. I called the court to inform that I might be delayed and that is when your law clerk informed that even the Motion to reconsider will be heard today. Sorry, I did not come prepared for that nonsensical Motion to be heard orally. . . .

I will be prepared to answer orally by phone on 10/10 as it was agreed. . . .

I am copying this to the Defendant , [sic] and he should not show up. If he feigns innocence that he did not get my communications as he has done before and still comes to court and engages in ex parte communications as he has done throughout then it will be an egregious violation of the law.

(See Simoldoni Aff., Ex. B.) Mr. Bakshi claims that he sent the facsimile "due to lack of CART coupled with a surprised new hearing for which I was not prepared." (Bakshi Br. at 6, ¶ 6.) Mr. Bakshi claims that "the court adjourned [the September 25 hearing] due to absence of CART." (Bakshi Br. at 7, ¶ 7.)

On September 26, 2014, Judge Steele sent a letter to Mr. Bakshi, via regular mail, certified mail, and facsimile. (BV SMF ¶ 6-8; Simoldoni Aff., Ex. C; Bakshi Br. at 6, ¶ 7.) Judge Steele wrote that the September 25, 2014 had been scheduled, and then adjourned, at Mr. Bakshi's request, and that the matters had been rescheduled for an in-person conference on October 10, 2014, for which a CART accommodation would be provided. (Simoldoni Aff., Ex. C.) In part, Judge Steele wrote that

[i]t must be clarified the Proof Hearing scheduled for September 25, 2014 was scheduled at your insistence even though defendant had requested an adjournment due to its pending Motion for Reconsideration. You will recall, you had contacted Chambers to advise you had already incurred significant expense reserving a hotel, etc. in anticipation of the hearing. Thus, the court continued the Proof Hearing on yesterday's schedule. It was only upon your repeated calls to chambers, along with your letter faxed to Chambers at 12:51 p.m. from a Holiday Inn Express that the hearing was adjourned at your request.

Be advised both that the Motion for Reconsideration and the Proof Hearing have been scheduled for October 10, 2014 at 11:30 a.m. inperson. It has come to my attention you requested a CART ADA accommodation. I have been advised by our court personnel suchfacility shall be here that day to accommodate you, however you must be here in person.

Further, in view of the nature and content of your repeated telephonic and faxed communications to Chambers, any further communication shall be by either regular mail, messenger or facsimile only.

(Simoldoni Aff., Ex. C.) It is unclear when Mr. Bakshi received Judge Steele's September 26, 2014 letter—he first states that he received it on October 8, 2014 (Bakshi Br. at 7, ¶ 8), but then states that he received it on October 10, 2014 (id.), and in two separate facsimiles stated that he received it "after" October 10, 2014 (see Simoldoni Aff., Exs. F, H.) Ultimately, Plaintiff failed to appear for the October 10, 2014 hearing. (Id.; BV SMF ¶ 9.)

On November 18, 2014, at Judge Steele's request, Trial Court Administrator Laura Simoldoni ("TCA Simoldoni") sent a letter to Mr. Bakshi, via regular mail, certified mail, UPS overnight mail, and facsimile to both addresses in Plaintiff's file at the Bergen County Superior Court. (BV SMF ¶ 10-12; Simoldoni Aff., Ex. D.) The letter indicated that TCA Simoldoni was attempting to accommodate Plaintiff's request to appear before Judge Steele by video for his next scheduled appearance of December 1, 2014. (Id.) TCA Simoldoni stated in the letter that she needed Plaintiff to provide his email address and telephone number in order for the Information Technology (IT) office at the Administrative Office of the Courts to send email installation and set-up instructions to the Plaintiff. (Id.) As stated in the letter, TCA Simoldoni also attempted to contact Plaintiff via telephone to expedite Plaintiff's requested accommodation. (Id.)

TCA Simoldoni states that she received confirmation that the copy of the November 18, 2014 correspondence sent via UPS overnight was received and signed for on November 19, 2014. (BV SMF ¶ 13; Simoldoni Aff., Ex. E.) Mr. Bakshi denies that he received the letter on November19, 2014, and claims that he received the letter via USPS November 25, 2014, at which point it was "untimely." (Bakshi Br. at 9, ¶ 10; see also Simoldoni Aff., Exs. D, H.) Mr. Bakshi states he "made it clear to the Defendant and all concerned parties, that I will take a vacation break for thanksgiving and I need all the remote control set up instructions prior to mid November . . . ." (Bakshi Br. at 8, ¶ 9.)

Prior to his alleged receipt of the November 18th letter on November 25, 2014, Mr. Bakshi sent a facsimile on November 20, 2014 to an employee of TCA Simoldoni, Mr. Sylvia, in which he instructed Mr. Sylvia to "[h]ave them arrange for a phone conference only for the proof hearing for 12/1." (BV SMF ¶¶ 14-17; Simoldoni Aff., Ex. F.) In the fax, Mr. Bakshi further informed Mr. Sylvia that he wanted all mail sent from Bergen Vicinage to be sent to his New York address at P.O. Box 60, DeKalb Junction—the address used by Bergen Vicinage for all previous correspondences mentioned here—and he stated generally that "[t]he specific CART that I need has not been provided either." (Id.)

On November 21, 2014, TCA Simoldoni responded to Mr. Bakshi via regular mail, certified mail, UPS overnight mail, and facsimile, and also attempted to call the three telephone numbers provided by Mr. Bakshi. (BV SMF ¶¶ 18-23; Simoldoni Aff., Ex. G.) TCA Simoldoni informed Plaintiff once again that Judge Steele would accommodate Plaintiff's request and permit him to appear by video for the upcoming December 1, 2014 court appearance, but that he still needed to provide his email address and phone number. (Id.)

On November 25, 2014, via facsimile, Mr. Bakshi advised that he filed an interlocutory appeal to reinstate the third Proof Hearing (that had been scheduled for October 10, 2014), and that he would not proceed with the hearing scheduled for December 1, 2014 until after the appellatedivision ruled on his appeal. (BV SMF ¶¶ 24, 26, 27; Simoldoni Aff., Ex. H; Bakshi Br. at 8, ¶ 11.) Specifically, Mr. Bakshi wrote in part as follows: "Once the Appellate court reaches the decision to grant me the Proof hearing, only then would I be able to proceed with the phone or video conference. Until then, please standby with all the technical stuff." (Simoldoni Aff., Ex. H.) Additionally, Mr. Bakshi reiterated that he had not received Judge Steele's ...