United States District Court, E.D. Michigan, Northern Division
Magistrate Judge Patricia T. Morris
ORDER SUSTAINING IN PART AND OVERRULING IN PART
DEFENDANT'S OBJECTIONS, ADOPTING IN PART AND REJECTING IN
PART REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S
MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AND
SCHEDULING STATUS CONFERENCE
L. LUDINGTON United States District Judge
April 2, 2015 Plaintiff Michael Miles initiated the present
action against Defendant Garland Lodge and Resort LLC by
filing his complaint. See Compl. ECF No. 1.
Plaintiff Michael Miles is a parapalegic and uses a
wheelchair for mobility. He alleges that while visiting
Defendant's place of public accommodation, Garland Lodge
and Resort located at 4700 N. Red Oak Road, Lewiston
Michigan, he encountered architectural barriers and
discriminatory policy in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 1271
et seq. and Michigan's Persons with Disabilities
Civil Rights Act (“PWDCRA”) M.C.L. §
37.1302(a). On April 9, 2015 the matter was referred to
Magistrate Judge Patricia T. Morris for general case
management. See ECF No. 3.
the close of discovery, on May 16, 2016, both parties filed
motions for summary judgment. See ECF Nos. 21, 22.
On December 1, 2016 the magistrate judge issued her report,
recommending that Defendant's motion for summary judgment
be granted in part and denied in part, and that
Plaintiff's motion for summary judgment be denied.
See ECF No. 38. Defendant timely raised two
objections: (1) the magistrate judge erred in finding that
Plaintiff Miles had standing to bring suit and (2) the
magistrate judge erred in determining that material questions
of fact existed regarding which standard under the ADA
governs Defendant's facilities. See ECF No. 38.
For the reasons stated below, Defendant's first objection
will be overruled and its second objection will be sustained.
The report and recommendation will be adopted in part and
rejected in part.
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed.R.Civ.P. 72(b)(2). Objections must be
stated with specificity. Thomas v. Arn, 474 U.S.
140, 151 (1985) (citation omitted). If objections are made,
“[t]he district judge must determine de novo any part
of the magistrate judge's disposition that has been
properly objected to.” Fed.R.Civ.P. 72(b)(3). De novo
review requires at least a review of the evidence before the
magistrate judge; the Court may not act solely on the basis
of a magistrate judge's report and recommendation.
See Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th
Cir. 1981). After reviewing the evidence, the Court is free
to accept, reject, or modify the findings or recommendations
of the magistrate judge. See Lardie v. Birkett, 221
F.Supp.2d 806, 807 (E.D. Mich. 2002).
summary judgment stage, the moving party has the burden of
showing “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a). The movant has the
initial burden of identifying where to look in the record for
evidence “which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then
shifts to the opposing party who must set out specific facts
showing “a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)
(citation omitted). The Court need not accept unsupported or
conclusory allegations. Bell v. Ohio State Univ.,
351 F.3d 240, 253 (6th Cir. 2003). However, the Court must
view the evidence and draw all reasonable inferences in favor
of the non-movant and determine “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251-52.
first objection, Defendant argues that the magistrate judge
erred in finding that Plaintiff Miles had established
standing under the ADA. To establish Article III standing a
plaintiff must establish three essential elements: (1) the
plaintiff suffered an “injury in fact” that is
“concrete and particularized” and “actual
or imminent, not conjectural or hypothetical”; (2) the
injury must be “fairly traceable to the challenged
action of the defendant”; and (3) “it must be
likely …that the injury will be redressed by a
favorable decision.” Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992). Each of the
standing elements “must be supported … with the
manner and degree of evidence required at the successive
stages of the litigation.” Id. at 561.
parties' dispute centers on the first element of
standing. To satisfy the “injury in fact”
requirement in a case in which a plaintiff seeks injunctive
relief, a plaintiff must do more than show the existence of
past injuries. Instead, a plaintiff has the burden of
demonstrating that he is under threat of suffering a real and
immediate prospective injury. See Summers v. Earth Island
Inst., 555 U.S. 488, 493 (2009); City of Los Angeles
v. Lyons, 461 U.S. 95, 105 (1983). In an unpublished
case, the Sixth Circuit has held that “a plaintiff
demonstrates the requisite threat of future injury where he
establishes (1) a plausible intent to return to the
noncompliant accommodation or (2) that he would return, but
is deterred from visiting the noncompliant accommodation
because of the alleged accessibility barriers.”
Gaylor v. Hamilton Crossing CMBS, 582 F. App'x
576, 580 (6th Cir. 2014).
argues that he magistrate judge erred in finding
Plaintiff's intent to return to Garland Lodge both
plausible and genuine. In determining whether a
plaintiff's intent to return in genuine, courts consider
a number of factors including “(1) the proximity of the
defendant's business to the plaintiff's residence;
(2) the plaintiff's past patronage of the defendant's
business; (3) the definitiveness of the plaintiff's plans
to return; and (4) the plaintiff's frequency of travel
near the defendant.” Walker v. 9912 E. Grand River
Assocs., LP, No. 11-12085, 2012 WL 1110005, at *6 (E.D.
Mich. Apr. 3, 2012). Where Defendant's place of business
is a resort or hotel, such as in the present case, proximity
is a less relevant factor.
first argues that Plaintiff's purported intent to return
to Garland Lodge is unsupported and inconsistent with the
evidence in this case. Prior to filing the present action,
Plaintiff golfed at Garland Lodge on two separate occasions.
Defendant notes that Plaintiff's affidavit in response to
Defendant's motion for summary judgment does not state
that he “will return again” to Garland Lodge, but
that he “would like to” return to Garland Lodge.
See Miles Dec., ECF No. 28 Ex. 10. Specifically,
Miles states that “I would like to continue to return
as a guest to the Garland Lodge and Resort but for the
conditions at the property which violate the ADA.”
Id. at ¶ 13. As discussed above, under the
Gaylor standard a plaintiff satisfies the injury in
fact requirement by showing either a plausible
intent to return to the noncompliant accommodation
or that he would return but for the alleged
accessibility barriers. Gaylor, 582 F. App'x at
580. Therefore, the fact that Plaintiff stated that he would
like to return but for the accessibility standards - as
opposed to stating that he would definitely return - is
also argues that the magistrate judge impermissibly
considered all of Plaintiff's travels to northern
Michigan, instead of considering only locations closer to
Garland Lodge. This argument is without merit. Plaintiff, a
resident of Ohio, has established that he travels to northern
Michigan's “Golf Mecca” region at least one
or two times each year for the purpose of golfing and
enjoying the outdoors. Given that Plaintiff's trips are
largely driven by the location of golf courses, the
magistrate judge properly considered Plaintiff Miles'
trips to locations across northern Michigan.
on his previous trips to Garland Lodge, his frequent trips to
northern Michigan, his history as an avid golfer, and his
allegations of accessibility barriers at Garland Lodge, the
magistrate judge did not err in finding that Plaintiff had
established a genuine ...