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finding standing where plaintiff expressed desire to return to hotel on future visits to Indianapolis, a city he traveled to at least once a year
Summary of this case from D'Lil v. Stardust Vacation ClubOpinion
Cause No. IP00-0344-C-T/G
August 6, 2001
ENTRY ON MOTION FOR SUMMARY JUDGMENT AND RELATED MOTIONS
Though this Entry is a matter of public record and is being made available to the public on the court's web site, it is not intended for commercial publication either electronically or in paper form. The reason for this caveat is to avoid adding to the research burden faced by litigants and courts. Under the law of the case doctrine, the ruling or rulings in this Entry will govern the case presently before this court. See, e.g., Tr. of Pension, Welfare, Vacation Fringe Benefit Funds of IBEW Local 701 v. Pyramid Elec., 223 F.3d 459, 468 n. 4 (7th Cir. 2000); Avitia v. Metro. Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir. 1995). However, a district judge's decision has no precedential authority and, therefore, is not binding on other courts, on other judges in this district, or even on other cases before the same judge. See, e.g., Howard v. Wal-Mart Stores, Inc., 160 F.3d 358, 359 (7th Cir. 1998) ("a district court's decision does not have precedential authority"); Malabarba v. Chicago Tribune Co., 149 F.3d 690, 697 (7th Cir. 1998) ("district court opinions are of little or no authoritative value"); United States v. Articles of Drug Consisting of 203 Paper Bags, 818 F.2d 569, 571 (7th Cir. 1987) ("A single district court decision . . . has little precedential effect. It is not binding on the circuit, or even on other district judges in the same district."). Consequently, though this Entry correctly disposes of the legal issues addressed, this court does not consider the discussion to be sufficiently novel or instructive to justify commercial publication of the Entry or the subsequent citation of it in other proceedings.
Plaintiffs, the Association for Disabled Americans, Inc. and Michael H. Brennan, bring this action against Defendant, Claypool Holdings, LLC ("Claypool"), under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101-12213, which prohibits discrimination against individuals with disabilities in any place of public accommodation.
Plaintiffs allege that they are being discriminated against because of their disabilities as they have been denied equal access to the public accommodations and facilities owned and operated by Defendant. Plaintiffs seek injunctive relief, attorneys' fees, costs and expenses. Claypool moves for summary judgment on the Complaint. Plaintiffs move to strike portions of the affidavit of Joseph Coursolle, submitted by Defendant in support of their motion for summary judgment. Defendant moves to strike Plaintiffs' expert disclosure and expert report of Michael H. Brennan. The court rules as follows.
I. Factual Background
Defendant, Claypool, owns the subject real property located at 111 Washington Street, Indianapolis, Indiana, which is currently operated as the Embassy Suites — Downtown Indianapolis Hotel ("Embassy Suites" or "hotel"). The Embassy Suites was designed and constructed for first occupancy prior to January 26, 1992.
Plaintiff, Michael H. Brennan, is a quadriplegic. He cannot lift his arms or use his fingers, and he has limited use of his hand. He has a reduced lung capacity which causes strength and endurance impairments. He is visually impaired but he has 20/20 vision with corrective lenses. Mr. Brennan resides in Florida, has family living in Indianapolis, Indiana, and he has been coming to Indianapolis for years. He prefers to stay in a hotel in downtown Indianapolis rather than with his parents. He visited the Embassy Suites on November 18, 1999, and January 19, 2000, and had plans to visit the Embassy Suites on February 26, 2001, for purposes of inspecting it as an expert on behalf of Plaintiffs in connection with this lawsuit. The inspection was postponed and ultimately performed on March 6, 2001. Mr. Brennan visited Indianapolis from April 5, 2001 through April 8, 2001 to attend his great aunt's 100th birthday party. He plans on visiting Indianapolis in May 2001 to perform consulting business for the Association. During several of the past years since 1992, Mr. Brennan has visited Indianapolis in July or August to attend family reunions. He also frequently comes to Indianapolis for Thanksgivings and Christmases.
Mr. Brennan would stay overnight at the Embassy Suites on future visits to Indianapolis if the hotel were ADA compliant.
Plaintiff, Association for Disabled Americans, Inc. (the "Association"), is a non-profit corporation organized and existing under the laws of the State of Florida. Florida is its primary place of business. The Association has approximately 225 members who have various disabilities including mobility impairments, blindness, deafness, muscular sclerosis, of short stature and paralysis. Mr. Brennan is not a member of the Association.
The primary purpose of the Association as stated in the Complaint is:
to represent its members . . . to assure that public accommodation and commercial premises are accessible to and useable by its members in the future, to assure its members that they will not be excluded from participation in or be denied the benefits of the services, programs or activities of public accommodations, and to assure its members that they are not discriminated against because of their disabilities.
(Compl. ¶ 2.) The record does not contain any specifics about the activities in which the Association engages to promote its purpose.
The omitted language is repetitive of the quoted language, and the court presumes that this redundancy is an error. More troubling, however, is Plaintiffs' failure to substantiate this stated purpose of the Association with any materials of evidentiary quality. A party opposing summary judgment who bears the burden of proof on an issue cannot withstand summary judgment by merely resting on the pleadings. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Plaintiffs merely rest on their pleadings in an effort to establish the Association's purpose and activities. Defendant, however, compounds the problem by failing to object to the factual assertion regarding the Association's purpose. Despite the lack of objection, the court is reluctant to find a genuine issue based on the pleadings alone. Moreover, as discussed infra, it appears that the Association's purpose and activities as stated in the Complaint do not confer standing in the instant case.
The Association's president is Daniel Ruiz who is a paraplegic. His fiancee, Cheryl Price, is a quadriplegic and is sight impaired. Mr. Ruiz filed a complaint with the Association regarding Embassy Suites when he learned it did not have accessible guest rooms. The Association has incurred costs related to that complaint, including travel, lodging, per diem, filing fees, time off work for Ruiz's deposition, expert witness fees, and attorney's fees. Mr. Ruiz visited the Embassy Suites on January 29, 2001, the day before he was deposed in this lawsuit. This was the only time he had ever visited the hotel. He was unable to use the guest escalator to access the lobby and was instructed to use the service elevator.
Mr. Ruiz and Ms. Price have plans to visit Indianapolis next year to spend Thanksgiving with Mr. Brennan and his family. Mr. Ruiz would like to stay at the Embassy Suites in Indianapolis if the hotel is ADA compliant. He, however, has found a different hotel with which he feels comfortable.
Further background facts will be added as necessary.
II. Plaintiffs' Motion to Strike
Plaintiffs move to strike paragraphs 16, 18, 21, 24-30, 32-34, and 45-47 from the affidavit of Joseph Coursolle. They contend that Mr. "Coursolle lacks personal knowledge, or even proper expert opinion, of the factual matters recited in the paragraphs, there is no proper foundation for the opinions expressed in these paragraphs and that the paragraphs improperly contain conclusions that invade the province of the trier of fact." (Mot. Strike at 1.) In addition, Plaintiffs move to strike paragraphs 42 and 44, contending that the assertions therein are conclusory and lacking in factual support.
Defendant contends Mr. Coursolle has personal knowledge to attest to the statements in the challenged paragraphs based on his position as General Manager of Embassy Suites. Defendant indicates that Mr. Coursolle's statements are not intended to be expert testimony on the ADA's requirements but "speak only to the structure and accessibility of the Hotel that he manages." (Def.'s Resp. Pls.' Mot. Strike at 2.)
Affidavits submitted in support of a motion for summary judgment must meet Rule 56(e)'s requirements. See, e.g., Adusumilli v. City of Chicago, 164 F.3d 353, 359 (7th Cir. 1998), cert. denied, 528 U.S. 988 (1999). Rule 56(e) mandates that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." FED. R. CIV. P. 56(e); see also O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 986 (7th Cir. 2001) ("Affidavits must be based on personal knowledge"). "[S]tatements outside the affiant's personal knowledge or statements that are the result of speculation or conjecture or merely conclusory do not meet this requirement." Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir.), cert. denied, 528 U.S. 986 (1999).
Paragraphs 16, 18, 21, 24-30, 32-34, and 45-47 of Mr. Coursolle's affidavit state as follows:
16. An Americans with Disabilities Act ("ADA") compliant ramp connects the passenger drop-off and loading areas to the 3rd Floor Main Entrance of the Hotel.
18. An ADA compliant TDD public telephone has been installed at this bank [the bank of three public telephones inside the 3rd Floor Main Entrance] of public telephones.
21. Appropriate signage is in place on the 3rd Floor Main Entrance identifying the service elevator as the alternate access to the 4th Floor Lobby for mobility-impaired individuals who cannot use the escalators.
24. As part of those improvements [improvements made to the 4th Floor Lobby since January 2000], an ADA compliant Unisex Restroom was built to service the 4th Floor Lobby.
25. The Unisex Restroom contains all ADA compliant signage.
26. The Unisex Restroom dispensers are within the reach parameters prescribed by the ADA.
27. The Unisex Restroom has adequate clearance beneath the sinks in compliance with the ADA.
28. The Unisex Restroom has adequate maneuvering clearance and depth in compliance with the ADA.
29. The Unisex Restroom commode is raised in compliance with the ADA.
30. The Unisex Restroom commode has appropriate grab bars in compliance with the ADA.
32. The reservation desk was re-built with a lowered working surface that is ADA compliant.
33. Additionally, house phones have been lowered to comply with ADA reach parameters.
34. All doors on the 3rd Floor Main Entrance, the 4th Floor Lobby, and other public areas of the Hotel have adequate resistance and delay that is ADA compliant.
45. ADA compliant grab bars have been installed in the Pool Area shower room.
46. An ADA compliant seat has been installed in the Pool Area shower room.
47. An ADA compliant hand-held showerhead has been installed in the Pool Area shower room.
(Coursolle Aff.) (Emphasis in original).
Even assuming that Mr. Coursolle's statements are based on his personal knowledge, these statements present another problem: they are legal conclusions.
Defendant offers these statements not only to prove that it attempted to comply with the ADA's requirements regarding ramps, signage and these other areas, but also to establish that it did in fact comply with the ADA's requirements in certain areas of the hotel and that Plaintiffs' claims relating to these areas are therefore moot. Yet, the affidavit does not establish any factual foundation upon which Mr. Coursolle can make legal conclusions regarding ADA compliance.
Defendant asserts that "By the nature of his position as General Manager of the Hotel, Mr. Coursolle is aware of the requirements and regulations governing his building, as well as the physical condition of his building and the facilities therein." (Def.'s Resp. Pls.' Mot. Strike at 2.) This assertion is unsupported by any statement in Mr. Coursolle's affidavit. Further, the fact that Mr. Coursolle has "knowledge of the internal workings of the Hotel" and is "custodian of the records of the Hotel" does not support a finding that he has personal knowledge of ADA requirements and regulations. Defendant's unsupported allegation fails to establish that Mr. Coursolle has a foundation for asserting whether any area of the Embassy Suites is in compliance with the ADA. The legal conclusions contained in paragraphs 16, 18, 21, 24-30, 32-34, and 45-47 of Mr. Coursolle's affidavit therefore should be stricken. See, e.g., Schubert v. Nissan Motor Corp., 148 F.3d 25, 30 (1st Cir. 1998); Peck v. Horrocks Eng'rs, Inc., 106 F.3d 949, 956 (10th Cir. 1997); T.L. Swint Indus., Inc. v. Premiere Sales Group, Inc., 983 F. Supp. 772, 774 (N.D.Ill. 1997); Reno v. Consol. Rail Corp., 797 F. Supp. 700, 703 (S.D.Ind. 1992).
As for paragraphs 42 and 44 of Mr. Coursolle's affidavit, they state:
42. Any structural change to the Pool Area restrooms to increase maneuvering clearance would be expensive and significant, if not impossible.
44. Any structural change to the Pool Area sauna to increase maneuvering clearance would be expensive and significant, if not impossible.
These statements are merely conclusory and, therefore, are inadmissible. Mr. Coursolle makes no attempt to quantify the cost of the structural changes or explain why such changes would be significant, if not impossible. Indeed, Defendant does not directly respond to Plaintiffs' argument that these statements are mere conclusions. These statements will therefore be disregarded by the court.
Defendant seeks leave to file a sur-reply to Plaintiffs' reply to Defendant's response to Plaintiffs' motion to strike. Defendant states that its sur-reply is limited to alleged mischaracterizations and misrepresentations in Plaintiffs' reply. Plaintiffs' reply brief is very short — only 7 1/2 pages long — and the court is confident that it is capable of finding any mischaracterizations or misrepresentations therein. Therefore, Defendant's motion for leave to file a sur-reply is DENIED as the sur-reply is unnecessary.
Accordingly, Plaintiffs' motion to strike is GRANTED.
III. Defendant's Motion To Strike Plaintiffs' Expert Disclosure and Expert Report And For Other Just And Equitable Relief
Defendant contends that Plaintiffs' expert disclosure and expert report of Michael H. Brennan should be stricken for lack of compliance with the deadline for producing same set forth in the Case Management Plan ("CMP"). Defendant argues that the Plaintiffs' failure to timely provide their expert disclosure and report has prejudiced its ability to conduct discovery, including Mr. Brennan's deposition, as well as its ability to formulate Defendant's expert opinion. Defendant claims that Plaintiffs had no intention to disclose Mr. Brennan's report until the last moment before trial. Defendant seeks fees and costs incurred in bringing its motion to strike.
Plaintiffs respond by arguing that its expert disclosure information and a nine-page "extensive report together with 20 photographs" were provided Defendant before the expert disclosure deadline. Plaintiffs blame Defendant for the timing of the "second expert report" (the report upon which Plaintiffs rely in opposing Defendant's summary judgment motion) and claim substantial justification for submitting that report on April 16, 2001.
Plaintiffs claim that report was to be based on an inspection of the Embassy Suites and discovery responses provided by Defendant. Plaintiffs further blame Defendant for the timing of the site inspection and attacks the document production by Defendant. Finally, Plaintiffs argue that Defendant has suffered no harm from the timing of the second report.
A. Background
Plaintiffs filed their Complaint in this action on February 28, 2000. The parties filed their CMP on June 21, 2000, and the court approved same on July 14, 2000. The CMP provides that: "Plaintiff shall disclose the name, address and vita of all expert witnesses and shall provide the report required by Fed.R.Civ.P. 26(a)(2)(B) on or before November 30, 2000." (CMP at 4 ¶ V.E) (emphasis in original). Defendant's expert disclosure and Rule 26 report were due on or before January 1, 2001. (Id. at 4 ¶ V.F.)
Discovery was to be completed by January 12, 2001, (id. at 4 ¶ V.A), and the deadline for filing dispositive motions was set for January 17, 2001. (Id. ¶ VI.B.) Pursuant to the CMP, "[t]he failure of counsel for any party to comply with the requirements of this plan may result in the imposition of sanctions, which could include the dismissal of the complaint or the entry of a default judgment." (Id. at 6.) The CMP was signed by counsel for all parties.
On July 12, 2000, Plaintiffs provided their responses to Defendant's First Set of Interrogatories and First Request for Production of Documents to Plaintiff Michael H. Brennan. The answer to Interrogatory Number 9 identified Michael Hugh Brennan as an expert expected to testify on the following subject matter: "[a]ll of the allegations raised." (Pls.' Sur-Reply, Ex. 1, Pls.' Resp. Def's First Set Interrog. to Pl. Michael H. Brennan, No. 9 at 11-12.) The answer indicated that the substance of the facts and opinions to which Mr. Brennan is expected to testify were: "[t]he requirements of the guidelines, the degree of non-compliance, and rationale for creating barriers." (Id.) "Prima facie evidence and personal experience" were given as the summary of the grounds for his opinions. (Id.) Plaintiffs indicated that Mr. Brennan had not prepared a report. (Id.)
Plaintiffs also provided Defendant with a nine-page report and two-page pictorial documentation prepared by Mr. Brennan. (See Pls.' Sur-Reply, Ex. 2.) The report lists 33 alleged violations of the ADA by the Embassy Suites. (Id. at 1-2.) It states that the list "is not to be considered all-inclusive. Other components were not assessed such [as] any business center, meeting rooms, restaurants, or other public areas." (Id. at 2.) The report also lists various requirements for accessibility under the ADA. (Id. at 2-9.)
During his subsequent deposition, Mr. Brennan testified that this report was a "preliminary report" not his expert report, and that he would be issuing an expert report which would be "quite detailed and expansive and much more complete than this preliminary report." (Brennan Dep. at 85.) He added, "You need to understand that preliminary report did not deal with all of the specific areas throughout the hotel." (Id.)
By letter dated October 11, 2000, Plaintiffs proposed a joint inspection of the premises. The letter states in pertinent part: "If the defendant is willing to discuss settlement, it would be my recommendation that plaintiff meet with defendant's expert for a joint inspection of the premises and a discussion of the different methods available to permit accessibility." (Id., Ex. 3.) By letter dated October 13, 2000, Defendant advised Plaintiffs that "Claypool is not inclined to accept the Plaintiffs' proposal of a voluntary joint inspection of the subject real property." (Id., Ex. 4.)
On or about November 1, 2000, in response to Defendant's Second Set Of Interrogatories to Michael H. Brennan, Interrogatory Number 2, Plaintiffs listed alleged architectural barriers at the Embassy Suites as related to Mr. Brennan's disabilities. (Pls.' Sur-Reply, Exs. 5 6.)
By letter dated December 4, 2000, Plaintiffs provided Defendant with the names, addresses and qualifications of Plaintiffs' experts, including Michael H. Brennan. (Id., Ex. 7.) In response, on December 11, 2000, Defendant indicated that Plaintiffs' expert disclosure did not comply with Rule 26(a)(2) of the Federal Rules of Civil Procedure and requested said compliance on or before December 18, 2000. (Id., Ex. 8 at 1.) Defendant also noted that it had not yet received any Request for Entry Upon Land for Inspection pursuant to Rule 34 and the only requests for inspection had been made informally and in the context of settlement discussions. (Id. at 2.)
Exhibit 7 to Plaintiffs' Sur-Reply is a letter, dated December 4, 2000, from Timothy L. Brennan, counsel for Plaintiffs, to Andrew W. Gruber, counsel for Defendant, which states that the qualifications of Plaintiffs' experts are enclosed. The qualifications are not, however, a part of Exhibit 7. The qualifications apparently were enclosed with the letter sent to defense counsel as his letter to Mr. Brennan, dated December 11, 2000, states "We are in receipt of your December 4, 2000 letters enclosing the qualifications for Plaintiffs' experts. . . ." (Pls.' Sur-Reply, Ex. 8 at 1.)
On December 19, 2000, Plaintiffs again requested an informal inspection of the Embassy Suites. (Pls.' Sur-Reply, Ex. 9.) Defendant responded by letter dated December 22, 2000, stating that it would not agree to an inspection absent formal discovery procedures. (Id., Ex. 10.)
Defendant filed its Rule 26(a)(2) expert disclosure on January 2, 2001. No expert report is included in the filing.
Plaintiffs filed their Rule 26(a)(2) expert disclosure on January 3, 2001. Michael H. Brennan is identified as an expert who will provide an opinion "as to the defendant's violations of [the ADA]," (Pls.' Experts Designation at 1), and "the discriminatory practices of the defendant by failing to engage in readily achievable barrier removal and failure to make reasonable accommodations for individuals with disabilities." (Id. at 1-2.) The designation identifies only generally the documents and materials to be relied upon by Plaintiffs' experts:
The experts will rely upon the following documents and materials in formulating their expert opinions: Plaintiffs' Complaint, Defendant's Answer, any and all exhibits identified on Plaintiffs' and Defendant's Final Exhibit List, any and all documents or materials produced in the course of discovery by either party, any and all interrogatory answers, transcripts of any and all depositions of either party, and/or defendant's proposed expert, and all documents or materials relied upon by the defendant's proposed expert, an on-site inspection of the subject real estate, and all photographs, diagrams, or other documents prepared from the on-site inspection.
(Id. at 2.) Mr. Brennan's curriculum vita is attached to the expert designation. (Id., Ex. A.)
The vita includes a listing of the cases and depositions in which he has testified as an expert. The vita does not state whether Mr. Brennan has authored any publications.
Plaintiffs' expert disclosure does not include an expert report by Mr. Brennan.
On January 12, 2001, Plaintiffs moved for an enlargement of the discovery deadline through and including January 31, 2001, in order to, inter alia, file a motion for production of documents and request entry upon land for inspection under Rule 34. Magistrate Judge Godich granted the motion on January 17, 2001.
On January 24, 2001, Plaintiffs' provided Defendant with a Request and Notice for Entry Upon Land for Inspection and Other Purposes. (Pls.' Sur-Reply, Ex. 12.) The request and notice were amended, and the inspection of the Embassy Suites was set for February 26, 2001. (Id., Ex. 14.) Due to the illness of Plaintiffs' expert Mr. Brennan, the site inspection was rescheduled for March 6, 2001. (Id., Exs. 20, 21, 22.)
On February 16, 2001, Defendant noticed the deposition of Plaintiffs' proffered expert, Michael H. Brennan, for March 6, 2001. (Id., Ex. 17.) The subpoena commanded him to produce "any and all reports." (Id., Ex. 18.) Mr. Brennan's deposition was rescheduled twice, finally being set for March 19, 2001. (Id., Ex. 22.) The subpoena issued for the March 19th deposition also commanded Mr. Brennan to produce "any and all reports." (Id., Ex. 23.)
On March 6, 2001, Mr. Brennan conducted an inspection of the Embassy Suites, pursuant to Plaintiffs' Rule 34 request for entry upon land. (Brennan Aff. ¶ 3.) According to Plaintiffs, he was accompanied by defense counsel as well as Joseph Courselle and other Embassy Suites management personnel, and the inspection included areas in the third floor main entrance, fourth floor lobby, pool and spa area, restaurant, common areas, fifth floor meeting rooms and accessible guest rooms.
Mr. Brennan's deposition ultimately was taken on March 19, 2001. He did not produce his expert report at his deposition, apparently because it had not yet been completed. Counsel inquired at the deposition when Mr. Brennan would complete his expert report:
Q. So when do you expect to have your expert report completed?
A. Oh, probably the day before trial.
Q. When?
A. Probably the day before trial.
(Brennan Dep. at 85.) At his deposition, Mr. Brennan produced a document which was referenced as a "preliminary" report. It was the same nine-page report previously provided by Plaintiffs.
Defendant also relies on subsequent deposition testimony of Mr. Brennan, but the cited portions of that deposition were not provided to the court. The motion to strike states that Exhibits A through G are attached, but the original filed with the court has no exhibits attached. Page 85 of Mr. Brennan's deposition is, however, attached to Defendant's reply brief as part of Exhibit C. In addition, some of the exhibits relied upon by Defendant are included in the exhibits attached to Plaintiffs' Sur-Reply To Defendant's Reply To Plaintiffs' Response To Defendant's Motion For Summary Judgment.
On March 28, 2001, Mr. Brennan began preparing a Preliminary Expert Report concerning the Embassy Suites compliance with Title III of the ADA. (Brennan Aff. ¶ 4.)
He provided a first draft of the report to Plaintiffs' counsel on April 5, 2001, and he completed his report and delivered it to Plaintiffs' counsel on April 13, 2001. (Id. ¶¶ 9, 10.)
In response to Defendant's motion for summary judgment, Plaintiffs rely in part on a document identified as "Embassy Suites Expert Report — 3/28/01." (See Brennan. Aff. ¶¶ 6-7 Ex. 1.) This report is more than 30 pages long and identifies 177 alleged barriers at the Embassy Suites. Proposed corrections are given for each alleged barriers. For most of the alleged barriers citation to and the requirements of the Americans with Disability Act Access Guidelines ("ADAAG"), Appendix A of 28 C.F.R. § 36 also are provided. The report contains 100 pictures of alleged noncompliance with the ADA. Defendant represents that it did not see this report at any time before the filing of Plaintiffs' response to the summary judgment motion.
B. Discussion
Rule 26(a)(2) of the Federal Rules of Civil Procedure, which governs disclosure of expert testimony, provides in pertinent part: "[A] party shall disclose to other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence." FED. R. CIV. P. 26(a)(2)(A). Unless otherwise provided, a Rule 26(a)(2) expert disclosure "shall . . . be accompanied by a written report prepared and signed by the witness." FED. R. CIV. P. 26(a)(2)(B). The rule sets forth six requirements for the report:
The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
FED. R. CIV. P. 26(a)(2)(B); see also Sherrod v. Lingle, 223 F.3d 605, 611 (7th Cir. 2000); Ruhland v. Walter Kidde Portable Equip., 179 F.R.D. 246, 249 (W.D.Wis. 1998). Rule 26 further provides that "[t]hese disclosures shall be made at the times and in the sequence directed by the court." FED. R. CIV. P. 26(a)(2)(C). The CMP provides that: "Plaintiff . . . shall provide the report required by Fed.R.Civ.P. 26(a)(2)(B) on or before November 30, 2000." (CMP at 4 ¶ V.E) (emphasis in CMP). "The expert witness discovery rules are designed to aid the court in its fact-finding mission by allowing both sides to prepare their cases adequately and efficiently and to prevent the tactic of surprise from affecting the outcome of the case." Sherrod, 223 F.3d at 613; see also FED. R. CIV. P. 26(a)(2) advisory committee's note (stating that the duty to disclose expert testimony is intended to give opposing parties "a reasonable opportunity to prepare for effective cross examination and perhaps arrange for expert testimony from other witnesses").
Rule 37(c)(1) provides an incentive for compliance with the expert disclosure requirements of Rule 26(a). That rule provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial . . . or on a motion any witness or information not so disclosed.
FED. R. CIV. P. 37(c)(1). The rule authorizes the court to require the payment of reasonable expenses including attorney's fees, caused by such failure. Id. "The sanction of exclusion is `automatic and mandatory unless the party to be sanctioned can show that its violation of Rule 26(a) was either justified or harmless.'" NutraSweet Co. v. X-L Eng'g Co., 227 F.3d 776, 785-86 (7th Cir. 2000) (quoting Finley v. Marathon Oil Co., 75 F.3d 1225, 1230 (7th Cir. 1996)); Miksis v. Howard, 106 F.3d 754, 760 (7th Cir. 1997). A district court's decision to exclude expert witness testimony as a sanction is reviewed for an abuse of discretion. See Sherrod, 223 F.3d at 612; Miksis, 106 F.3d at 760.
However, "where exclusion necessarily entails dismissal of the case, the sanction `must be one that a reasonable jurist, apprised of all the circumstances, would have chosen as proportionate to the infraction.'" Sherrod, 223 F.3d at 612 (quoting Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 740 (7th Cir. 1998)).
Plaintiffs argue Defendant's motion to strike should be denied for failure to comply with Local Rule 37.1, which provides:
The Court may deny any discovery motion . . . unless counsel for the moving party files with the Court, at the time of filing the motion, a separate statement showing that the attorney making the motion has made a reasonable effort to reach agreement with the opposing attorney(s) on the matter(s) set forth in the motion.
S.D. IND. L.R. 37.1. That Defendant's motion is a discovery motion subject to Rule 37.1 is not without doubt. See 1st Source Bank v. First Res. Fed. Credit Union, 167 F.R.D. 61, 64 (N.D.Ind. 1996) (concluding that similar local rule was inapplicable to motion in limine to exclude expert testimony where expert's report was not disclosed in compliance with FED. R. CIV. P. 26(a)(2)). Assuming that Local Rule 37.1 applies in the instant situation, however, whether to deny a motion for noncompliance with the rule is within the court's discretion. As the rule itself states, the court "may" deny a discovery motion if unaccompanied by a separate statement; the court is not required to deny such a motion.
Denial of Defendant's motion to strike for noncompliance with Local Rule 37.1 would be inappropriate under the circumstances of this case. Defendant moves to strike the expert report of Mr. Brennan which report was filed and relied upon by Plaintiffs in responding to Defendant's pending summary judgment motion. Defendant had no need to move to strike that report until Plaintiffs attempted to rely on it in opposing the dispositive motion. The court is at a loss as to what agreement the parties could make regarding Mr. Brennan's expert report at this stage of the proceedings. Without that report Plaintiffs likely cannot establish a prima facie case of discrimination, thus entitling Defendant to summary judgment. Defendant has every incentive to move to strike the report as untimely and Plaintiffs have no incentive to reach a compromise as they need the report in evidence.
It is noted that Plaintiffs argue that Defendant failed to timely provide an expert report from its expert, Robert Taylor. That may be so, but Defendant is not attempting to use any expert report as evidence in support of its summary judgment motion. Defendant's noncompliance with the deadlines for expert disclosures is not before the court at this time.
Any efforts to reach agreement on this matter would be doomed to failure from the start.
Therefore, the court finds that any lack of compliance with Local Rule 37.1 by Defendant should be excused.
Plaintiffs argue that they complied with Rule 26(a)(2) and the CMP by providing the name, address and vita of Expert Brennan as well as his expert report before the November 30 deadline. They point to their July 12, 2000 interrogatory answers, the nine-page preliminary report with 20 pictures, and discovery responses listing alleged access barriers at the Embassy Suites. Neither Rule 26(a)(2) nor the CMP contemplates that a party will be required to cull through various discovery responses and other documents in order to piece together the opposing party's Rule 26(a)(2) expert disclosures. If that were the case, then Rule 26(a)(2)'s disclosure requirements would be totally unnecessary. As another district judge faced with a like argument has observed: "There is no merit to plaintiffs' contention that a jumble of documents sent to an opposing party may be construed together to satisfy these requirements." Ruhland v. Walter Kidde Portable Equip., 179 F.R.D. 246, 249 (W.D.Wis. 1998). Furthermore, even when all these documents and things are considered together, they still fail to satisfy Rule 26(a)(2)(B)'s requirements. They do not constitute a complete statement of all opinions to be expressed by Mr. Brennan and the basis and reasons therefor. The nine-page report itself states that it "is not to be considered all-inclusive." Though these documents may list some of the data and information relied upon by Mr. Brennan in reaching his opinions, they do not list all such data or other information. Nor do they list his qualifications, a list of publications authored by him within the last ten years, the compensation to be paid him, or a listing of other cases in which he has testified as an expert at trial or by deposition within the preceding four years.
Plaintiffs next argue that their failure of compliance with the expert disclosure deadline, if any, was due to substantial justification, namely, Defendant's lack of cooperation in allowing an inspection by Mr. Brennan and Defendant's alleged tactics in responding to discovery requests. As for the former, Plaintiffs ignore the facts that they are the ones that initiated this lawsuit, that they should have known as early as February 28, 2000, when the Complaint was filed that an expert inspection of the Embassy Suites would be necessary or at least desirable, and they certainly were aware of this back on October 11, 2000, when they made their first informal request to inspect the property. Though informal efforts to obtain discovery are commendable — yet it is noted that these efforts were couched in terms of settlement — once Defendant advised Plaintiffs of its position regarding such an inspection, nothing prevented Plaintiffs from serving a Rule 34 request to permit entry upon land for the purpose of inspection. Defendant promptly (on October 13) advised Plaintiffs of its declination to agree to each informal request for an inspection.
Plaintiff Mr. Brennan who has testified as an expert in other litigation under the ADA surely could have anticipated the need or at least benefit of having expert testimony on Plaintiffs' behalf.
Thus, sometime before the November 30 expert disclosure deadline Plaintiffs had to have become aware that they would not be able to meet that deadline as their expert had not yet inspected the Embassy Suites.
Yet, Plaintiffs waited over two months before again requesting an informal inspection of the hotel and inexplicably waited until January 24, 2001, to make a Rule 34 request. Nothing prevented them from making a Rule 34 request much earlier in time and long before the November 30 deadline. Another district judge in the Seventh Circuit has rejected a party's attempt to blame the opposing party for the former's noncompliance with an expert disclosure deadline under similar circumstances. See Ruhland, 179 F.R.D. at 249-50 (rejecting argument that noncompliance with expert report requirements was due to parties' disagreement over necessary testing of fire extinguisher alleged to have been defective, stating that plaintiffs would have realized they could not meet the deadline for expert disclosures before expiration of same and should have moved for an order compelling testing of the fire extinguisher before the deadline expired). The delay in conducting the inspection was not the Defendant's fault. Plaintiffs should have made their Rule 34 request for inspection before expiration of the deadline for their expert disclosure.
The court notes that some of the delay during late February and March 2001 — after Plaintiffs' finally made a Rule 34 request — was through no one's fault. The initial delay, however, in seeking a Rule 34 inspection falls squarely on Plaintiffs' shoulders.
Moreover, even when it became apparent that Plaintiffs would not meet the expert disclosure deadline, Plaintiffs failed to request an extension of that deadline.
As for the attempt to pass the blame onto Defendant on the basis of discovery tactics, Plaintiffs have made no effort whatsoever to establish that the documents provided by Defendant were not provided as kept in the usual course of business, as expressly permitted under Rule 34 of the Federal Rules of Civil Procedure. Nor do Plaintiffs attempt to support their allegation that the documents were provided in a manner so as to obfuscate discovery. Plaintiffs' unsupported allegations do not establish that Defendant is to blame for Plaintiffs' failed compliance with the expert disclosure requirements.
Rule 34 provides: "A party who produces documents for inspection shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." FED. R. CIV. P. 34(b).
Plaintiffs offer the explanation that at his deposition Mr. Brennan knew the May 7, 2001, trial setting would be continued to allow sufficient time for briefing and ruling on the summary judgment motion. They argue that when he said he would provide the report on May 6, 2001, he knew it would be provided "well in advance of the new trial date." (Pls.' Resp. Def.'s Mot. Strike Pl.'s Expert Disclosure Expert Report at 17.) Mr. Brennan must be clairvoyant. Plaintiffs had not even moved to continue the trial date at the time of Mr. Brennan's deposition. Not even the court knew that the trial setting would be continued until after Mr. Brennan's deposition. It was not until April 16, 2001, that Plaintiffs filed their motion to continue that trial setting. The motion was granted April 19, 2001. Mr. Brennan's remarks at his deposition about when he would complete his expert report are particularly troubling because he is not only proffered as an expert but also is a plaintiff in this case.
In a last ditch effort, Plaintiffs contend that Mr. Brennan's report is admissible as lay opinion testimony under Rule 701 of the Federal Rules of Evidence. This is unconvincing.
Mr. Brennan's report clearly is based on specialized knowledge within the scope of Rule 702, that is, specialized knowledge of ADA accessibility requirements. Guzman v. Denny's, Inc., 40 F. Supp.2d 930, 936 (S.D.Ohio 1999), cited by Plaintiffs, does not directly address whether expert testimony is unnecessary to establish a prima facie case of discrimination under Title III of the ADA. Guzman is of no benefit to Plaintiffs' arguments here.
Plaintiffs complain that the "second expert report" was completed without the benefit of Defendant's most recent discovery responses, but Plaintiffs make no effort to explain how these recent responses would impact the expert report. And, since the second expert report was completed before Defendant provided the most recent discovery responses, it is hard to imagine how that report was dependent upon any information provided only in those discovery responses. Likewise, it is difficult to comprehend how the timing of the most recent discovery responses and document disclosure caused additional delay in preparing the "second expert report".
Plaintiffs argue that even if they failed to disclose their expert information as required by Rule 26(a)(2), such failure was harmless. This argument relates to the automatic sanction of Rule 37(c)(1). Plaintiffs do not address directly the provision in the CMP which allows for the imposition of sanctions upon failure "to comply with the requirements of this plan. . . ." A showing of harm to the opposing party is not a prerequisite for the imposition of sanctions under the CMP. Sanctions may be imposed irrespective of harm to the opposing party in order to encourage compliance with the court's orders and CMPs. See Ruhland, 179 F.R.D. at 250 ("regardless whether defendant was actually harmed by plaintiff's error, a sanction is warranted to encourage adherence to pretrial conference orders"). Even if the automatic sanction under Rule 37(c)(1) were not appropriate here, a sanction for disregard of the CMP's deadlines would be justified under the circumstances.
In arguing that their failure to comply with Rule 26(a)(2)'s requirements was harmless, Plaintiffs state that Defendant had Mr. Brennan's nine-page report and photographs based on a November 1999 inspection of the Embassy Suites, "extensive information through discovery responses as to the scope of Michael Brennan's testimony," (Pls.' Resp. Def.'s Mot. Strike Pls.' Expert Disclosure at 15), had conducted Mr. Brennan's deposition, and defense counsel and other representatives of Defendant accompanied Mr. Brennan on his March 2001 inspection. Plaintiffs claim that Defendant chose when to file its motion for summary judgment and note that when they filed their response to Defendant's motion for summary judgment, they moved to reschedule the trial date, but
Defendant objected to continuing the trial and did not seek additional time within which to reply to Plaintiffs' response to the summary judgment motion.
The court disagrees with the claim that Plaintiffs' failure to comply with the expert disclosure requirements was harmless. The setting of the expert disclosure deadline before the dispositive motion deadline was not without a purpose. This is reflected, in part, in Defendant's summary judgment motion which challenges Plaintiffs' ability to prove a prima facie case of discrimination due to the lack of an expert report regarding whether the removal of alleged barriers is "readily achievable". Moreover, Mr. Brennan's nine-page report and photographs from the November 1999 inspection, discovery responses, and other discovery cited by Plaintiffs do not satisfy all the requirements of a Rule 26(a)(2)(B) expert report. If it were true that all the information required by Rule 26(a)(2) was provided in that nine-page report, the two pages of photographs, and other discovery, then the cost to Plaintiffs in complying with the Rule and the CMP was marginal. As Judge Crabb said in a similar case: "It is evidence that with little expense and proper diligence, plaintiffs could have complied . . . and avoided what seems to be an otherwise draconian sanction." Ruhland, 179 F.R.D. at 250-51. True, to an extent, Defendant chose when to file its summary judgment motion, but Defendant has a right to ask the court to enforce the requirements of Rule 26(a)(2) and the CMP expert disclosure deadline.
The court finds that Plaintiffs have not shown that its violation of Rule 26(a)(2) was either justified or harmless. Plaintiffs' failure of compliance deprived Defendant of a reasonable opportunity to rebut Mr. Brennan's expert testimony with that of its own expert witness. It appears, from Mr. Brennan's comments, that Plaintiffs had no intention of providing Defendant a reasonable amount of time within which to respond to the expert report. Instead, Plaintiffs flagrantly disregarded the expert disclosure deadline and requirements of Rule 26(a)(2)(B). Even if the violation were justified or harmless, however, the court would sanction Plaintiffs under the CMP. Accordingly, the court finds that Defendant's motion to strike Plaintiffs' Expert Disclosure and Report should be GRANTED. Plaintiffs' Expert Disclosure for Michael Brennan is STRICKEN and Plaintiffs are prohibited from using that expert testimony in this matter. Mr. Brennan's expert report filed with the Plaintiffs' response to Defendant's motion for summary judgment is also STRICKEN from the record as inadmissible evidence. This is sanction enough.
Defendant's request for attorneys' fees and costs incurred in bringing their motion to strike is DENIED.
IV. Defendant's Motion for Summary Judgment
Defendant moves for summary judgment, contending that Plaintiffs' lack standing to bring this action; their claims are moot; they are estopped from bringing their claims; and they are unable to establish a prima facie case with respect to the removal of the alleged barriers at the Embassy Suites. Plaintiffs oppose the motion.
A. Summary Judgment Standard
Summary judgment is proper only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of informing the court of the basis for its motion and demonstrating the "absence of evidence on an essential element of the non-moving party's case," Celotex Corp., 477 U.S. at 323, 325. To withstand a motion for summary judgment, the non-moving party may not simply rest on the pleadings, but rather must "make a showing sufficient to establish the existence of [the] element[s] essential to that party's case, and on which that party will bear the burden of proof at trial. . . ." Celotex Corp., 477 U.S. at 322. If the non-moving party fails to make this showing, then the moving party is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.
In determining whether a genuine issue of material fact exists, the court must view the record and all reasonable inferences in the light most favorable to the non-moving party. Nat'l Soffit Escutcheons, Inc. v. Superior Sys., Inc., 98 F.3d 262, 264 (7th Cir. 1996). No genuine issue exists if the record viewed as a whole could not lead a rational trier of fact to find for the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Ritchie v. Glidden Co., 242 F.3d 713, 720 (7th Cir. 2001). When ruling on a motion for summary judgment, the court cannot make credibility determinations, weigh the evidence or draw inferences from the evidence. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Freeman v. Madison Metro. Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000).
B. Standing
The court must first consider whether Plaintiffs have standing to bring this action.
Defendant contends Plaintiffs lack standing to bring this action under Title III of the ADA and, consequently, their Complaint should be dismissed. Plaintiffs argue they do have standing. The party invoking the court's jurisdiction bears the burden of proving standing. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Perry v. Village of Arlington Heights, 186 F.3d 826, 829 (7th Cir. 1999). When standing is challenged on a factual basis, the party asserting standing must demonstrate standing with "competent proof" which requires a showing by a preponderance of the evidence. See, e.g., Perry, 186 F.3d at 829. Standing must exist at the time an action is commenced. See Lujan, 504 U.S. at 569-70 n. 4 ("The existence of federal jurisdiction ordinarily depends on the facts as they exist when the complaint is filed."); Perry, 186 F.3d at 830.
1. The Association
An organization has standing to sue under the ADA if it meets Article III's standing requirements. See, e.g., Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 48 (2nd Cir. 1997); Access Living of Metro. Chicago v. Chicago Transit Auth., No. 00 C 0770, 2001 WL 492473, at *2-3 (N.D.Ill. May 9, 2001). An organization may have standing to sue in its own right (organizational standing) or as a representative of its members (representational standing). See Access Living, 2001 WL 492473, at *3.
In Havens Realty Corporation v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that an organization has standing to sue based on its own right if the organization has suffered a "concrete and demonstrable injury to the organization's activities". Id. at 379. The plaintiff in Havens Realty, a non-profit organization, challenged under the Fair Housing Act the alleged racial steering practices of a realtor. Id. at 366-68.
The organization's purpose was "to make equal opportunity in housing a reality." Id. at 368. It operated a housing counseling service and referral services for low and moderate income homeseekers. Id. The organization alleged that it had to devote its resources to fighting the defendant's racially discriminatory practices which frustrated its efforts to provide counseling and referral services. The Court found the organization suffered a "concrete and demonstrable injury to the organization's activities — with the consequent drain on the organization's resources. . . ." Id. Thus, under Havens Realty, an organization suffers a concrete and demonstrable injury if it diverts its resources such as time and money from its primary activities to legal efforts to fight alleged discrimination by the defendant. See Gorski v. Troy, 929 F.2d 1183, 1189 (7th Cir. 1991); Village of Bellwood v. Dwivedi, 895 F.2d 1521, 1526 (7th Cir. 1990); Access Living, 2001 WL 492473, at *4 (finding organization had standing where it devoted time to fighting discrimination by defendant which would otherwise have been spent providing services to the disabled).
Plaintiffs claim that the Association has suffered an injury in fact as it had to divert resources from other areas of advocacy to investigate the Embassy Suites and address the needs of disabled individuals in Indiana. But Plaintiffs have not come forward with evidence to support this claim. They do not point to any evidence in the record to establish the Association's purpose or its activities. Nor do they attempt to show how Defendant's alleged discrimination frustrates the Association's achievement of its purpose or pursuit of its activities. Rather, from the Complaint's allegations, it appears that the Association's purpose is to pursue legal action directed against alleged disability discrimination, and the Association's activities are limited to legal activities. There is no suggestion that the Association provides any counseling or referral type services.
This case is therefore similar to Plotkin v. Ryan, No. 99 C 53, 1999 WL 965718 (N.D.Ill. Sept. 29, 1999), aff'd, 239 F.3d 882 (7th Cir. 2001), in which the district court held that the plaintiff association, the Better Government Association ("BGA"), lacked standing to sue in its own right under 42 U.S.C. § 1983. The BGA's stated primary purpose was "to expose and correct election fraud and corruption on the part of government officials." Id. at *5. The BGA had three programs to achieve that purpose, including an investigative program, used to expose government waste and corruption. Id. BGA claimed injury from the time and money expended in monitoring and investigating the defendants' conduct, which it claimed impaired its ability to address other public interest issues. In concluding that the BGA lacked standing in its own right, the district court reasoned that though the BGA's investigation into the defendants' conduct may have diverted resources into the investigative program from other programs, it was not alleged that the defendant's conduct impaired BGA's ability to perform its work. Id. The court further explained that "BGA cannot convert its ordinary programming costs into an injury in fact." Id. This reasoning is persuasive.
As it appears that the Association's purpose and activities are the pursuit of litigation directed against alleged discrimination in public accommodations, the Association's participation in the instant case does not impair the Association's ability to do its work; rather, it is the very work of the Association to litigate alleged discrimination in violation of the ADA. Therefore, the Association's participation in this action and expenditure of resources is insufficient to constitute a concrete and demonstrable injury to its activities. Plaintiffs have not carried their burden of demonstrating the Association's organizational standing.
As for representational standing, "[a]n association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000) (citation omitted). Defendant contends that none of the Association's members have standing to sue in their own right because none of them have suffered an injury in fact.
To demonstrate Article III standing, a party invoking the court's jurisdiction must prove three elements: (1) he has suffered an "injury in fact", that is, "an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (quotation and citations omitted); see also Friends of the Earth, 528 U.S. at 180; (2) a causal connection between the injury and complained of conduct, that is, "the injury has to be fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court," Lujan, 504 U.S. at 560; see also Friends of the Earth, 528 U.S. at 180; and (3) it is likely the injury will be "redressed by a favorable decision." Lujan, 504 U.S. at 561 (quotation omitted); see also Friends of the Earth, 528 U.S. at 181. The Seventh Circuit has described these Article III standing requirements as "undemanding." United States v. 5 S 351 Tuthill Rd., Naperville, Ill., 233 F.3d 1017, 1022 (7th Cir. 2000), as amended on denial reh'g; Family Children's Ctr., Inc. v. Sch. City of Mishawaka, 13 F.3d 1052, 1058 (7th Cir. 1994). Defendant challenges Plaintiffs' proof of the first element only and, indeed, only the existence of that element is open to question.
Lujan presented the issue of whether environmental groups had standing to challenge a regulation promulgated under the Endangered Species Act which made the Act applicable only within the United States or on the high seas. 504 U.S. at 557. The Court considered whether the plaintiffs demonstrated an injury in fact. Lujan, 504 U.S. at 562-63. They attempted to do so with two affidavits. They first stated the affiant had traveled to Egypt to observe the native habitat of the endangered Nile crocodile and intended to return. They second stated that the affiant had traveled to Sri Lanka to observe the habitat of endangered species and intended to return, but had no current plans to return. Id. at 563-64. The Court concluded that the affidavits failed to demonstrate an injury in fact because the intent to return to places visited before was insufficient to establish actual or imminent injury. Id. at 564. The Court said: "Such `some day' intentions — without any description of concrete plans, or indeed even any speculation of when the some day will be — do not support a finding of the `actual or imminent' injury that our cases require." Id. (Emphasis in original). In his concurrence, Justice Kennedy specifically references the purchase of an airline ticket or announcement of a "date certain upon which [the affiants] will return" as evidence sufficient to establish standing. Lujan, 504 U.S. at 579 (Kennedy, J., concurring). Thus, announcement of a date certain for return seems to be on par with the purchase of an airline ticket or reservation in terms of establishing a concrete plan to return.
Furthermore, when a plaintiff seeks prospective injunctive relief, as Plaintiffs do here, he or she must show a "real and immediate threat" of injury. See City of Los Angeles v. Lyons, 461 U.S. 95, 103-04 (1983); Sierakowski v. Ryan, 223 F.3d 440, 443-44 (7th Cir. 2000). In other words, such a plaintiff "must show a significant likelihood and immediacy of sustaining some direct injury." Sierakowski, 223 F.3d at 443 (citations omitted); see Lyons, 461 U.S. at 101. Past wrongs may be evidence of a real and immediate threat of injury, but "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing, present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974); see Lyons, 461 U.S. at 102; Sierakowski, 223 F.3d at 445.
The only remedy available to a private plaintiff suing under Title III of the ADA is injunctive relief. 42 U.S.C. § 12188(a)(1); 28 C.F.R. § 36.501; 28 C.F.R. § 36.504. Plaintiffs seek permanent injunctive relief in addition to an award of attorney's fees, costs and expenses pursuant to 42 U.S.C. § 12205.
Relying on Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000), Defendant argues the Association must prove that one of its members has present plans to visit the Embassy Suites in the imminent future, but that the Association has no such evidence. In Steger, the plaintiffs, disabled individuals, sued the defendant under Title III of the ADA to bring one of its buildings into compliance with the ADA. The building contained office space for health care providers and other retail and service establishments, including a retail brokerage firm and coffee shop. The district court dismissed their claims for lack of standing. See 228 F.3d at 891. In considering the standing issue, the Eighth Circuit explained that ADA plaintiffs "need not engage in the `futile gesture' of visiting a building containing known barriers that the owner has no intention of remedying. . . ." Id. at 892 (citing 42 U.S.C. § 12188(a)(1)). The court concluded that proof of an intent to return to the place of injury "some day" is insufficient to establish standing, id. at 893; rather, a plaintiff must prove "knowledge of the barriers" and that he or she "would visit the building in the imminent future but for those barriers." Steger, 228 F.3d at 892 (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, [181-83], 120 S.Ct. 693, 704-06 (2000)). The Eighth Circuit held that the plaintiffs lacked standing to sue under the ADA because there was no evidence of their knowledge of the building's barriers or their likelihood to visit the building in the imminent future. Steger, 228 F.3d at 893. That they "may" enter the building in the future was insufficient. Id. The Eighth Circuit is the only circuit of which this court is aware to have addressed in a published opinion the standing requirement in the ADA's Title III context.
This "futile gesture" provision states: "Nothing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions." 42 U.S.C. § 12118(a)(1).
The Second Circuit addressed the issue in an unpublished opinion in Freydel v. New York Hospital, No. 00-7108, 242 F.3d 365, 2000 WL 1836755 (2nd Cir. Dec. 13, 2000), holding that the plaintiff lacked standing to sue as she failed to demonstrate the likelihood that she would suffer future injury. Id. at *6.
Plaintiffs maintain that to establish standing under Title III of the ADA, a plaintiff must show that the facility at issue violates the ADA and that it is likely he or she will visit the facility in the relatively near future if the violation is corrected, citing Parr v. L L Drive-Inn Restaurant, 96 F. Supp.2d 1065 (D.Haw. 2000); Independent Living Resources v. Oregon Arena Corp., 982 F. Supp. 698 (D.Or. 1997), supplemented by 1 F. Supp.2d 1159 (D.Or. 1998), and Johanson v. Huizenga Holdings, Inc., 963 F. Supp. 1175 (S.D. Fla. 1997). Plaintiffs urge that they need not establish concrete plans to use a facility or a date certain they intend to use the facility, again citing Parr, Independent Living Resources and Johnson.
In Independent Living Resources, the plaintiffs, a disabled individual and a non-profit organization organized to promote the rights and needs of the disabled, sued a company that built, owned and operated an indoor arena. 982 F. Supp. at 706. One of the claims alleged related to accessibility of the arena's executive suites under Title III of the ADA. The defendant challenged the plaintiffs' standing to raise this claim. Id. at 758. In a footnote, and without analyzing whether plaintiffs established an injury-in-fact, the judge expressed his satisfaction that the plaintiffs wished to return to the arena. Id. at 707 n. 4.
The district court concluded that "that under the unique circumstances of this case" the non-profit organization had representational standing to seek injunctive relief to remedy alleged violations in the suites and the rest of the arena. Id. at 763. Again, the court did not conduct an injury-in-fact analysis. See id. at 761-63. The undersigned is hesitant to accept the Independent Living Resources court's bare conclusions absent legal reasoning or factual discussion as to the injury-in-fact requirement.
In Johanson, the plaintiffs, a disabled minor, his father, and another disabled minor, filed suit seeking declaratory and injunctive relief, alleging that a planned future arena, to be the home of the Florida Panther professional hockey team, would violate Title III of the ADA. Plaintiffs were Panthers fans and occasionally purchased tickets to games. 963 F. Supp. at 1176. Defendants challenged plaintiffs' standing on ripeness grounds. In finding that plaintiffs sufficiently alleged their standing, the court reasoned that Title III of the ADA conveys standing to parties who have "`reasonable grounds for believing that [they are] about to be subjected to discrimination in violation of [the new construction provision of Title III of the ADA].'" Id. at 1177 (quoting 42 U.S.C. § 12188(a)(1)). The court found that plaintiffs' allegations satisfied this standard. Id. Johanson is distinguishable on its facts as that case involved a planned arena that had not yet been built. Consequently, the plaintiffs could not have made concrete plans to attend the arena. In contrast, the Embassy Suites has been built and Plaintiffs could have made reservations or other concrete plans to visit it.
Parr is also factually distinct from the instant case. There, the plaintiff alleged he was denied access to the defendant's fast-food restaurant because of architectural barriers. 96 F. Supp.2d at 1079. The court acknowledged that other courts had required concrete plans to return such as a reservation or ticket, but distinguished such cases as they involved hotels or professional offices where a reservation or ticket would be required. Id. The court explained that "[v]isiting a fast food restaurant . . . is not the sort of event that requires advance planning or the need for a reservation. . . . Therefore, . . . specification as to a date and time of returning to this public accommodation is impossible due to the nature of the event." Id. The court held the plaintiff had standing to sue the fast-food chain for injunctive relief based on his past visits to the fast-food restaurants, his intent to return and in light of the private enforcement provisions of the ADA. Id. at 1080. The Embassy Suites is less like a fast food restaurant and more like the public accommodations in the cases distinguished by the Parr court such as other hotels and professional offices that require advance planning or reservations.
But Parr, Independent Living Resources and Johanson do not stand alone. Other district courts have considered whether plaintiffs had standing to sue under Title III of the ADA and have concluded that a plaintiff has standing if he or she has an intent to return to the building or facility in the near future. None apparently requires "concrete plans" such as a reservation, ticket or appointment. See Deck v. Am. Hawaii Cruises, Inc., 121 F. Supp.2d 1292, 1299 (D.Haw. 2000) (concluding plaintiff lacked standing because she did not allege any plans to use the defendant's ship in the future and her statement in her declaration that she would "look into" another cruise on the defendant's ships when her mother's health situation improves was too speculative and conditional); Stan v. Wal-Mart Stores, Inc., 111 F. Supp.2d 119, 125 (N.D.N.Y. 2000) (holding plaintiff lacked standing to sue under ADA where she had no intention to return to any of defendant's stores); Midgett v. Tri-County Metro. Trans. Dist., 74 F. Supp.2d 1008, 1013 (D.Or. 1999) (concluding plaintiff had standing where he presented evidence he routinely rode the defendant's bus service to and from work and that he and others had experienced bus lift failures), aff'd, ___ F.3d ___, No. 99-36222, 2001 WL 709214 (9th Cir. June 26, 2001); Proctor v. Prince George's Hosp. Ctr., 32 F. Supp.2d 830, 832-33 (D.Md. 1998) (holding deaf patient lacked standing to sue for injunctive relief under ADA in absence of evidence that he was likely to return to hospital in near future); Cortez v. Nat'l Basketball Ass'n, 960 F. Supp. 113, 117-18 (W.D.Tex. 1997) (holding plaintiff who had attended NBA "Jam" activities in the past lacked standing to seek injunctive relief under Title III of the ADA because she did not allege she intended to return to any NBA "Jam" activities in the future); Hoepfl v. Barlow, 906 F. Supp. 317, 323 (E.D.Va. 1995) (stating "a plaintiff who cannot demonstrate a likelihood that she will ever again suffer discrimination at the hands of a defendant, even one who has discriminated against her in the past, does not have standing to obtain an injunction under the ADA."); see also Levy v. Mote, 104 F. Supp.2d 538, 544-45 (D.Md. 2000) (holding plaintiff lacked standing to sue for injunctive relief under Title II of the ADA where he offered no evidence he had visited the challenged facility in recent months or attempted to use newly installed temporary ramp and where soon to be installed permanent access ramp would make the facility ADA compliant); Jankey v. Twentieth Century Fox Film Corp., 14 F. Supp.2d 1174, 1180 (C.D.Cal. 1998) (concluding plaintiff had standing to challenge accessibility of facilities at defendant's studios where he produced evidence he had visited some of the facilities about a dozen times in the past 20 years), aff'd, 212 F.3d 1159 (9th Cir. 2000).
The district court in Tyler v. Kansas Lottery, 14 F. Supp.2d 1220 (D.Kan. 1998), held the plaintiffs to a slightly higher burden of proof as to standing. The plaintiff lived in Kansas when he filed suit under the ADA alleging the denial of access to nine retail lottery outlets in Manhattan, Kansas as well as outlets in other cities in Kansas. Subsequently, he moved to Wisconsin. Id. at 1222. It was represented that the plaintiff would continue to visit Manhattan, Kansas, where he had family, and would play the lottery during his visits. Id. The court concluded that though plaintiff may have had standing when he filed suit, he no longer had standing to sue for injunctive relief after his move out of state. Id. at 1225.
The court explained that despite the plaintiff's intent to visit Kansas where he has family and to play the lottery when he visits, the court had no evidence of "where, or how often, or what lottery games plaintiff intends to play" or whether such location violated the ADA. Id.
The Tyler court did not expressly require concrete plans to return to Kansas and play the lottery; nor did the court require plans to return and play the lottery on a date certain, however Further, Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000), upon which Defendant relies, does not appear to require concrete plans to return to the alleged inaccessible building. Rather, in finding the plaintiffs lacked standing, the court wrote that there was no evidence as to some of the plaintiffs' "likelihood to visit the building in the imminent future," 228 F.3d at 893, "that [another plaintiff] intended to enter the building in the future," id., and yet another plaintiff "had a need or intent to access the building in the future." Id. It could be argued that entering a building that housed office space for health care providers as well as retail and service establishments, including a retail brokerage firm and coffee shop, would not necessarily require advanced planning. But the court did not differentiate amongst the possible activities in which the plaintiffs may have engaged in the building, requiring "concrete plans" if the plaintiff intended to attend an appointment with a health care provider but not if the plaintiff was going to the coffee shop, for example. As the Steger court recognized, the intent to return must be more definite than an intent to return "some day." See 228 F.3d at 893 (citing Lujan, 504 U.S. at 564).
Plaintiffs claim the Association has standing through its members Mr. Ruiz and Ms. Price, who planned to spend Thanksgiving 1999 in Indianapolis and intended to stay at the Embassy Suites and who plan to visit Indianapolis for Thanksgiving this year (2001) and would like to stay at the hotel. Plaintiffs' demonstration of the Association's standing falters not on whether Ruiz and Price have concrete plans to stay at the hotel, but on their knowledge of the Hotel's barriers. Plaintiffs point to nothing in the record that would establish Price's knowledge as to any barriers at the hotel. Thus, she would not have standing to sue in her own right.
As for Ruiz, the record establishes that he first visited the hotel on January 29, 2001, well after the Complaint was filed on February 28, 2000. (Ruiz Dep. at 20, 34.)
Standing is based on the facts and circumstances as they exist at the time of the commencement of an action. Other courts would concur that Ruiz's post-filing visit to the hotel is insufficient to confer standing. See Steger, 228 F.3d at 892-93 (holding plaintiff lacked standing under ADA when at the time the complaint was filed he had not been in the building and did not know whether the building was ADA-compliant); Moyer v. Walt Disney World Co., No. 6:98CV1230ORL18B, 2000 WL 33310908, at *4 (M.D.Fla. Oct. 3, 2000) (holding plaintiff lacked standing as to facilities in which he had not been before commencement of the action). The only other evidence that Ruiz had actual notice of any alleged barriers at the hotel before this action was commenced comes from inadmissible hearsay evidence. (See Pls.' Statement Add'l Material Fact No. 200 ("Brennan called Ruiz and informed him that the Embassy Suites, Indianapolis, Indiana, did not have accessible guest rooms.") (citing Ruiz Dep. at 35.)
"Actual notice" is the phrase used in the futile gesture provision. See 42 U.S.C. § 12118(a)(1).
Plaintiffs claim that other members of the Association would like to stay at the Embassy Suites while assisting the Indiana chapter. Plaintiffs, however, do not point to any evidence that other such members would stay at the hotel in the near future. At its May 2001 meeting, the Association Board was to designate a delegation of members to visit Indianapolis to assist in organizing the Indiana chapter. No plans or reservations have been made for any such members to visit the hotel, and no date certain for their visit has been announced. As such, the desire of such members to visit the hotel at some unspecified time in the future is insufficient to confer standing on any such members. Thus, to the extent Plaintiffs claim that members of the Association other than Ruiz and Price have standing to sue, Plaintiffs have not carried their burden of demonstrating such standing. Therefore, Plaintiffs have not carried their burden of showing the Association's representational standing. Accordingly, the court finds that the Association lacks standing to assert the claims in this case and the Association's claims should be DISMISSED.
2. Mr. Brennan
In arguing that Mr. Brennan lacks standing, Claypool claims Mr. Brennan has no plans to visit the Embassy Suites in the imminent future outside his activities associated with this legal action, that is, to inspect the hotel as an expert on behalf of Plaintiffs. Claypool also contends that to the extent Mr. Brennan does have standing, his standing is limited to those issues in the Complaint that are related to his own disability.
Plaintiffs have pointed to sufficient evidence to establish Mr. Brennan's pre-filing actual notice of the Embassy Suites's alleged non-compliance with the ADA — after all, he visited the Hotel in November 1999 and again in January 2000. Plaintiffs' evidence also demonstrates that Mr. Brennan would stay at the Hotel but for the alleged barriers, and further, that his reasons for staying are not necessarily because of his activities associated with this case. It is undisputed that Mr. Brennan came to Indianapolis in March and again in April 2001 and had plans to visit in May 2001; he has family here and comes to Indianapolis every one or two years for family reunions and for alternating Thanksgiving and Christmas holidays, with the exception of 1999 when he came for neither holiday. Mr. Brennan has expressed a desire to stay overnight at the Embassy Suites on future visits to Indianapolis if the hotel were ADA compliant. Though Plaintiffs have not identified a date certain upon which Mr. Brennan will return to Indianapolis, they have produced evidence that supports a reasonable finding that he visits Indianapolis regularly, sometimes as often as several times a year and almost always at least once a year. Thus, the evidence does more than establish merely that Mr. Brennan "may" visit Indianapolis or might visit the city "some day." Rather, the evidence demonstrates a strong likelihood that he will visit the city in the near future, likely for Thanksgiving or Christmas of this year or for a family reunion next year.
The court has no information as to whether Mr. Brennan did, in fact, visit Indianapolis during the month of May 2001. In the absence of any indication to the contrary, however, the court assumes that he did visit as planned.
Moreover, the ADA was intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1), and is a remedial statute, see Steger, 228 F.3d at 894; Rehling v. City of Chicago, 207 F.3d 1009, 1016 (7th Cir. 2000), as amended (Apr. 4, 2000), which "should be broadly construed to effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332, 336 (1967); see Steger, 228 F.3d at 894. In light of the evidence of record and the purpose of the ADA and construing the statute broadly to effectuate its purposes, the court finds that Plaintiffs have demonstrated Mr. Brennan's standing to sue under Title III of the ADA.
That does not end the standing inquiry as Claypool contends that Mr. Brennan's standing is limited to those issues in the Complaint that are related to his own disability. Plaintiffs agree that an ADA plaintiff's standing is limited to those barriers related to his or her disabilities. Cases have so held. See Steger, 228 F.3d at 893. Parr v. LL Drive-Inn Rest., 96 F. Supp.2d 1065, 1083 (D.Haw. 2000) (denying ADA plaintiff's claims not specifically related to his disability for lack of standing); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992) ("`[T]he injury in fact' test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.'"). The parties' dispute, however, whether Mr. Brennan's disabilities include a visual impairment; Plaintiffs do not dispute that Mr. Brennan has no standing with regard to a hearing impairment, (see Pls.' Resp. Def.'s Mot. Summ. J. at 9 n. 4.)
Claypool claims that the following allegations are not related to Mr. Brennan's disability, quadriplegia: "ix) No auditory indicators are present for the elevator; x) At the bank of phones no phone is present with hearing aide compatibility or volume controls; xi) At a bank of three phones no phone is TDD capable; xiii) Restroom signage lacks required Braille and pictogram and is mounted in wrong location; xvi) No strobe emergency notification system is present; xxxii) House phones throughout the facility do not have a volume control or the required pictogram." (Compl., ¶ 14.)
In Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), two severely myopic sisters sued under the ADA. Id. at 475. Each had 20/200 vision or worse in her better eye. But with the use of corrective lenses such as glasses or contact lenses their vision was 20/20 or better. Id. The Supreme Court held that the sisters did not have a "disability" under the ADA because whether an individual has a disability must "be determined with reference to corrective measures. . . ." Id. at 488.
Mr. Brennan gave the following testimony at his deposition:
Q Now, you were also asked about your vision, and your vision is not 20/20 without some type of glasses or corrective lenses; isn't that correct?
A Correct.
(Brennan Dep. at 99.) Though Plaintiffs argue Defendant has mischaracterized the evidence, the court finds that its characterization is accurate. The only reasonable inference from the above quoted testimony is that Mr. Brennan's vision is 20/20 with corrective lenses. Following Sutton, then, he does not suffer from a visual disability.
Therefore, the court finds that Mr. Brennan lacks standing to sue with regard to alleged barriers related to a visual impairment or hearing impairment. His standing to sue is limited to barriers related to his quadriplegia, strength and endurance impairments.
C. Mootness
Defendant argues that several allegations contained in paragraph 14 of Plaintiffs' Complaint are moot. A claim "is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome." City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000) (quotations omitted); see Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 990 (7th Cir. 2000). "[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000); see also id. at 189; Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000).
The striking of Mr. Coursolle's affidavit leaves Defendant with only two citations to record evidence to support its claim that certain areas of the Embassy Suites are now ADA compliant:
The only bank of three public telephones in the Hotel is located on the 3rd Floor Main Entrance of the Hotel. An ADA compliant TDD public telephone is present at the bank of three public telephones. The TDD public telephone has hearing aid capability and volume controls. (Ruiz Dep. at 102.) The reservation desk was re-built with a lowered working surface that is ADA compliant. (Ruiz Dep. at 105.)
It is noted that Defendant also cites to the Plan View of 4th Floor Lobby of the Hotel, Front Desk-Enlarged Plan, and Purchase Order Request; pool shower and public bathroom upgrade, dated 7/27/00.) These documents, however, are insufficient by themselves to establish that any area of the Embassy Suites has been made ADA compliant.
As for the first assertion, that relates to a disability for which Mr. Brennan lacks standing to assert a claim and the court need not address that claim further. As for the second assertion, Mr. Ruiz testified only that the reservation desk had a lower working surface. He offers no testimony as to whether the desk is ADA compliant. Thus, the cited portions of Mr. Ruiz's deposition testimony does not provide factual support for Defendant's claim that Plaintiffs' claims are moot. The court finds that Claypool is not entitled to summary judgment on the ground of mootness.
D. Estoppel
Defendant contends that Plaintiffs are collaterally estopped from claiming that the ramp into the main entrance of the hotel and the service elevator to the 4th Floor Lobby are not compliant with the ADA because these issues have been resolved in a prior Settlement Agreement between the United States of America, Claypool and Promus Hotels ("Settlement Agreement" or "Agreement").
Collateral estoppel has four elements: "`(1) the issue sought to be precluded must be the same as that involved in the prior litigation, (2) the issue must have been actually litigated, (3) the determination of the issue must have been essential to the final judgment, and (4) the party against whom estoppel is invoked must be fully represented in the prior action.'" Meyer v. Rigdon, 36 F.3d 1375, 1379 (7th Cir. 1994) (quoting La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir. 1990)). Collateral estoppel is an affirmative defense; Claypool therefore bears the burden of proving that it applies. See La Preferida, 914 F.2d at 906.
The Seventh Circuit has recognized that consent judgments do not ordinarily support collateral estoppel. See, e.g., Meyer, 36 F.3d at 1379; La Preferida, 914 F.2d at 906. This is because the "issues underlying a consent judgment generally are neither actually litigated nor essential to the judgment." La Preferida, 914 F.2d at 906. "Similarly, settlement agreements not approved by a court are not given preclusive effect." Meyer, 36 F.3d at 1379; see also Ariz. v. Cal., 530 U.S. 392, 414 (2000) ("settlements ordinarily occasion no issue preclusion (sometimes called collateral estoppel), unless it is clear . . . that the parties intend their agreement to have such an effect"), supplemented by 531 U.S. 1 (2000); Frank v. United Airlines, Inc., 216 F.3d 845, 852 (9th Cir. 2000) (concluding that settlement not incorporated into judgment has no preclusive effect), cert. denied, 121 S. Ct. 1247 (2001); Rockford Mut. Ins. Co. v. Amerisure Ins. Co., 925 F.2d 193, 198 (7th Cir. 1991) (applying Illinois law and concluding that issue resolved by parties' settlement agreement did not have preclusive effect in subsequent litigation).
Claypool argues that the Settlement Agreement's language reveals the parties' intent that the Agreement have preclusive effect. In Klingman v. Levinson, 831 F.2d 1292 (7th Cir. 1987), the Seventh Circuit concluded that a consent decree should be given preclusive effect because the parties intended that the decree be given such effect. Id. at 1296. The consent decree resolved a state court trust action brought by Ms. Klingman against Mr. Levinson. After the parties entered into the decree, Mr. Levinson filed a petition for bankruptcy. Ms. Klingman argued her consent decree was nondischargeable. Id. at 1293. The consent decree provided that the debt owed to Ms. Klingman would "not be dischargeable in any bankruptcy or similar proceeding and that in any subsequent proceeding all of the allegations of the Complaint and findings of this Court may be taken as true and correct without further proof." Id. at 1296. The court concluded that this language revealed the parties' intent that the consent decree be given preclusive effect in a future bankruptcy proceeding. Id. The court held that the bankruptcy court and district court correctly applied collateral estoppel. Id.
Claypool relies on the following language in the Settlement Agreement as evidence of the parties' intent to foreclose accessibility issues involving the main entrance ramp and elevator in future litigation:
8. Agreement not to Prosecute. Provided that Claypool and Promus fully comply with all terms of this Agreement, the United States will cease its investigation and/or prosecution of the complaint reference in paragraph 2 of this Agreement; provided; however, that this shall not limit the United States' ability to enforce this Agreement as set forth in paragraph 9.
(Def.'s Ex. I, "Settlement Agreement", at 2, ¶ 8.) In contrast with the language relied upon by the Klingman court, this language says absolutely nothing about other legal proceedings. One cannot reasonably conclude that this language expresses the parties' intent that the Settlement Agreement have collateral estoppel effect. Furthermore, as Plaintiffs point out in their response, the Agreement contains language from which one could reasonably infer the parties did not intend that the issues resolved by the Agreement be foreclosed in other litigation. The Settlement Agreement expressly provides that it "shall not be admissible in any proceeding to show . . . any violation of the ADA. . . ." (Id. at 1, ¶ 5.)
As Claypool has not come forward with sufficient evidence to show that the parties to the Settlement Agreement intended that the issues regarding the main entrance ramp and elevator be foreclosed in future litigation, Claypool cannot carry its burden of proving that collateral estoppel bars Plaintiffs' claims relating to the main entrance ramp or elevator.
E. Prima Facie Case
Title III of the ADA prohibits discrimination in places of public accommodation against persons with disabilities. See 42 U.S.C. § 12182(a). Discrimination includes "a failure to remove architectural barriers, and communication barriers that are structural in nature, in existing facilities . . . where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv). Discrimination also includes "with respect to a facility or part thereof that is altered by, on behalf of, or for the use of an establishment in a manner that affects or could affect the usability of the facility or part thereof, a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." 42 U.S.C. § 12183(a)(2). This heightened standard for accessibility requirements applies to public accommodations and facilities that have been altered after January 26, 1992. See Lieber v. Macy's West, Inc., 80 F. Supp.2d 1065, 1074 (N.D.Cal. 1999); 28 C.F.R. § 36.402(a)(1). Plaintiffs claim that certain areas of the Embassy Suites have been altered and, therefore, are subject to a heightened accessibility standard.
Defendants dispute this. Thus, the court must resolve whether any area of the hotel has been altered within the meaning of the ADA after January 26, 1992.
An "alteration" is defined as "a change to a place of public accommodation . . . that affects or could affect the usability of the building or facility or any part thereof." 28 C.F.R. § 36.402(b). Alterations include remodeling, renovation, rehabilitation, reconstruction, historic restoration, changes or rearrangement in structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, asbestos removal, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility. 28 C.F.R. § 36.402(b)(1).
Plaintiffs claim that the 4th floor lobby was renovated at a cost of over one million dollars in 2000. Though the evidence cited by Plaintiffs to support this assertion is thin, (see Pls.' Ex. 6), Defendant does not dispute this claim. The court therefore accepts that the 4th floor lobby was renovated in the sense that it was subject to alteration within the meaning of the ADA regulations. The cost of the renovation alone suggests some change that could affect the usability of the lobby.
Plaintiffs claim the 5th floor meeting rooms were renovated in 1997 at a cost in excess of $222,800. Defendant contends the evidence cited in support establishes that the only changes were installation of carpet, wall vinyl and lighting repair. The 1997 Capital Budget Summary indicates an additional "renovation" to the 5th floor meeting rooms at a cost of $73,250.09, but the nature of the renovation is not specified. The evidence relied upon by Plaintiffs is insufficient to create an issue of fact as to whether the 5th floor meeting rooms were subject to alteration within the meaning of the applicable ADA regulations.
According to Plaintiffs, the 18th floor penthouse suites were renovated in 1997 at a cost of $162,000. The evidence cited in support indicates that the hotel budgeted for such renovation. The nature of the renovation is not indicated, however. Without more specific evidence regarding the renovation, Plaintiffs have not created a genuine issue regarding alteration of the 18th floor penthouse suites.
The hotel also budgeted for replacement of the balcony roofs and priming and sealing of the metal seam roof. This is not an alteration. See 28 C.F.R. § 36.402(b)(1).
As for the pool and spa area, Plaintiffs claim the area, including restrooms, flooring and whirlpools, was renovated in 1997. Defendant disputes this claim, alleging that the pool area floor tile was replaced to facilitate drainage. The evidence relied upon by Plaintiffs indicates that the pool flooring and support system were replaced — this involved a regrading, resloping and retiling of the pool floor — and a dehumidification system was installed. This work seems to be normal maintenance and thus, not an alteration.
Unspecified work was performed in the men's and women's restrooms in the pool area at a cost of $360 and $290, respectively, and the spas apparently were replaced. The evidence is insufficient to establish an alteration of the restrooms, but the replacement of the spas seems to constitute an alteration within the meaning of that term as such replacement would likely affect the usability of the spa.
Plaintiffs claim that the guest elevators were renovated. Defendant disputes the extent of the alleged renovation of the guest elevators. The evidence cited by Plaintiffs does not provide enough information upon which the court can determine whether the elevators were altered under the meaning of the ADA regulations. Other than the cost of $27,274.50 to renovate 4 elevators, the evidence indicates that existing light rays and safety edges on the 4 elevators were removed and that new state-of-the-art door protection was installed. (Ex. 10.)
Plaintiffs claim that the service elevator was renovated in 1996. The evidence cited to support this claim consists of the 1996 Capital Plan — Embassy Suites, which apparently reflects expenditures for certain work performed at the hotel during that year and two invoices for labor and services to the service elevator. The Plan contains a line which states: "4. Service elevator renovation $3,902." (Pls.' Ex. 11 at 1.) The invoices reflect work performed on the ceiling, floor and walls of the elevator, though the nature of the work is not specified, as well as construction and installation of stainless rails for the elevator. (Id.) Neither invoice shows the name of the company that issued the invoice nor specifies the nature of the work which was performed. Defendant claims that in addition to the installation of the stainless rails, the only work performed was cleaning, but Defendant cites no evidence to support this claim. In the end, Plaintiffs have not directed the court to sufficient evidence to raise a genuine issue as to whether the service elevator was subject to alterations within the meaning of the ADA regulations.
As for the installation of new signage, Plaintiffs do not support their factual assertion that the hotel installed considerable signage throughout the hotel in 1994 and 1996 with any citation to record evidence. (See Pls.' Statement Add'l Material Facts No. 92.) They therefore have not created a genuine issue of fact on this matter. The court finds that the only areas of the Embassy Suites which are subject to the heightened accessibility standards are the 4th floor lobby area and the spas.
Defendant argues that Plaintiffs cannot establish a prima facie case even under the heightened accessibility standard as the only evidence they present to demonstrate a prima facie case is the expert report of Mr. Brennan. The court understands Defendant as arguing that Mr. Brennan's report is the only evidence that the altered areas of the hotel are not readily accessible to and usable by individuals with disabilities, that is, not in compliance with the applicable provisions of the Americans with Disability Act Access Guidelines ("ADAAG"), appendix A to 28 C.F.R. § 36, see 28 C.F.R. § 36.402(b)(2); see also 28 C.F.R. § 36.406(a).
Defendant is correct that Mr. Brennan's expert report, dated March 28, 2001, is the only evidence relied upon by Plaintiffs to establish that the 4th floor lobby area and the spas are not in compliance with the standards of the ADAAG. (See Pls.' Statement Additional Material Facts, Nos. 96-103, 107-115.) As this court has found that Mr. Brennan's report should be stricken, Plaintiffs have not come forward with any evidence to raise a genuine issue as to whether these altered areas are readily accessible to and usable by individuals with disabilities, that is, in compliance with the applicable provisions of the ADAAG. Therefore, even applying a heightened accessibility standard, Plaintiffs cannot prevail on their discrimination claims based on alleged barriers in the 4th floor lobby and spa areas.
With respect to the other alleged barriers in the hotel, the accessibility standard for an existing facility, a facility not newly constructed after January 26, 1992, or altered after January 26, 1992, see 42 U.S.C. § 12183(a); 28 C.F.R. § 36.401, applies. To establish a prima facie case of disability discrimination based on an architectural barrier in an existing facility, a plaintiff must demonstrate, inter alia, that: (1) the facility presents an architectural barrier prohibited by the ADA; and (2) removal of the barrier is "readily achievable." See Alford v. City of Cannon Beach, No. CV-00-303-HU, 2000 WL 33200554, at *4 (D.Or. Jan. 17, 2000); Parr v. L L Drive-Inn Rest., 96 F. Supp.2d 1065, 1085 (D.Haw. 2000). Once a plaintiff demonstrates a prima facie case, the burden shifts to the defendant to rebut that showing. See id.; Pascuiti v. N.Y. Yankees, No. 98 CIV. 8186(SAS), 1999 WL 1102748, at *5 (S.D.N.Y. Dec. 6, 1999) (addressing shifting burdens of proof on issue of whether the removal of an architectural barrier is readily achievable). Defendant bears the ultimate burden of persuasion that removal of an alleged barrier is not readily achievable. Pascuiti, 1999 WL 1102748, at *5.
"Readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." 42 U.S.C. § 12181(9); see also 28 C.F.R. § 36.304(a). The ADA lists four factors to be considered in deciding whether an action is "readily achievable". The Act states:
In determining whether an action is readily achievable, factors to be considered include —
(A) the nature and cost of the action needed under this chapter;
(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.42 U.S.C. § 12181(9). The provision's language "factors to be considered" indicates that consideration of all of these factors is required. See Pascuiti v. New York Yankees, No. 98 CIV. 8186(SAS), 1999 WL 1102748, at *5 (Dec. 6, 1999) (concluding that "the finder of fact cannot determine whether a suggested method of barrier removal is readily achievable without considering those factors.")
Defendant argues that the sole evidence relied upon by Plaintiffs to prove the removal of alleged barriers is readily achievable is Mr. Brennan's expert report, which if stricken leaves Plaintiffs unable to demonstrate a prima facie case. Plaintiffs claim their evidence is sufficient to raise a genuine issue of fact as to whether the removal of the alleged barriers is readily achievable. They cite to the following: (1) Mr. Brennan's expert report which identifies barriers and proposes corrections; (2) photographs contained in that expert report; (3) Plaintiffs' estimate that the cost of total barrier removal is $200,000; (4) the Title III Department of Justice regulations listing various examples of "modest measures that may be taken to remove barriers and that are likely to be readily achievable"; and (5) the Embassy Suites alleged concession that it has the financial resources to provide $200,000 for barrier removal.
The court has concluded that Mr. Brennan's expert report should be stricken. This necessarily includes the photographs contained in that report. Thus, if Plaintiffs can create a genuine issue of fact it is upon items (3) through (5) alone.
Plaintiffs estimate that the total cost for complete barrier removal is $200,000. (See Pls.' Supplemental Resp. Def.'s Second Set Interrog. Pl. Ass'n Disabled Americans, Inc., No. 2.) They assert that both Mr. Brennan and Mr. Ruiz have provided estimates of individual costs during their depositions. Plaintiffs' Statement of Additional Material Facts does provide the approximate cost of removal of some but not all the alleged barriers. (See Pls.' Statement Additional Material Facts Nos. 134-149.) But Plaintiffs' cost estimates do not address whether the proposed changes are easily accomplishable or able to be completed without much difficulty. Similarly, that the Embassy Suites has the resources to spend $200,000 on barrier removal does not address these matters.
The DOJ commentary to Title III regulations cited by Plaintiffs state in part:
Section 36.304(b) [of 28 C.F.R.] provides a wide-ranging list of the types of modest measures that may be taken to remove barriers and that are likely to be readily achievable. . . . It is not an exhaustive list, but merely an illustrative one. Moreover, the inclusion of a measure on this list does not mean that it is readily achievable in all cases. Whether or not any of these measures is readily achievable is to be determined on a case-by-case basis in light of the particular circumstances presented and the factors listed in the definition of readily achievable (S 36.104).28 C.F.R. Pt. 36, App. B. With the striking of Mr. Brennan's expert report, however, Plaintiffs have no evidence that these measures would remove any barriers at the Embassy Suites. Indeed, without Mr. Brennan's report Plaintiffs have no evidence that any areas of the Embassy Suites fail to comply with Title III of the ADA. Furthermore, as the regulation itself states, inclusion of a measure on the list "does not mean that it is readily achievable in all cases." Id. Whether a proposed measure is readily achievable is a factual question dependent on the four factors listed in 42 U.S.C. § 12181(9). Plaintiffs' evidence does not address the third and fourth factors. Even if Mr. Brennan's expert report was not stricken, Plaintiffs' evidence would still be insufficient with respect to the last two factors. Emerick v. Kahala L L, Inc., No. CIV. 97-01174 FIY, 2000 WL 687662, (D.Haw. May 16, 2000), where the court found the plaintiff had sufficient evidence to establish that barrier removal was readily achievable, is distinguishable. The admissible evidence in that case included the expert testimony that barrier removal would involve minimal cost and effort and of reasonable modifications to remove the barriers, an acknowledgment by the defendant's president and ADA compliance officer that barrier removal is "very inexpensive," photographs showing that barrier modification would not be difficult or expensive, and the annual revenues of the defendant. Id. at *1, *24. The court finds that Plaintiffs have not raised a triable issue of fact as to whether removal of alleged barriers at the Embassy Suites is readily achievable.
Accordingly, Plaintiffs cannot demonstrate a prima facie case of disability discrimination under Title III of the ADA. Defendant's motion for summary judgment should be GRANTED.
V. Conclusion
Plaintiffs' motion to strike is GRANTED. Paragraphs 16, 18, 21, 24-30, 32-34, and 42, 44 and 45-47 of Joseph Coursolle's affidavit are STRICKEN. Defendant's motion for leave to file its sur-reply to Plaintiffs' reply to Defendant's response to Plaintiffs' motion to strike is DENIED. Defendant's motion to strike expert disclosure and expert report of Michael H. Brennan is GRANTED. Defendant's motion for summary judgment will be GRANTED. Judgment will be entered accordingly.