United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION FOR DEFAULT
JUDGMENT
DAVID
M. LAWSON UNITED STATES DISTRICT JUDGE
This
matter is before the Court on the plaintiff's motion for
default judgment. On October 31, 2018, the plaintiff filed
his complaint alleging that the defendant violated the
Americans With Disabilities Act (ADA), by constructing or
maintaining features of its hotel property that obstructed
the plaintiff from readily accessing the facility when he was
lodged there. The complaint was served on the defendant's
registered agent by registered mail on January 10, 2019.
See Certificate of Service dated January 28, 2019,
ECF No. 3. The defendant has not answered or otherwise
responded to the complaint, and the Clerk of the Court
entered its default pursuant to Fed.R.Civ.P. 55(a) on
February 25, 2019. The plaintiff then filed a motion for
default judgment on April 21, 2019. The defendant did not
respond to the motion and has not appeared or otherwise taken
any action in this case since the complaint was filed.
I.
Because
the defendant has failed to answer or otherwise respond to
the complaint and the Clerk has entered default against it,
the Court must accept all well pleaded factual allegations in
the complaint as true. Stooksbury v. Ross, 528
Fed.Appx. 547, 551 (6th Cir. 2013).
The
complaint alleges that the defendant owns and operates an
extended-stay lodging facility known as the Towne Place
Suites, at 17450 Fox Drive in Livonia, Michigan. The public
records of the City of Livonia indicate that the hotel was
built in 1999. Property Record re: Parcel No. 027 99 0014
008, ECF No. 7-2, PageID.37.
Plaintiff
Howard Cohan has various medical conditions that
significantly limit his mobility, including “severe
spinal stenosis of the lumbar spine with spondylolisthesis
and right leg pain, severe spinal stenosis of the cervical
spine with nerve root compromise on the right side, a
nonunion fracture of the left acromion (shoulder), a labral
tear of the left shoulder, a full thickness right rotor cuff
tear, a right knee medial meniscal tear, a repaired ACL and
bilateral meniscal tear of the left knee and severe basal
joint arthritis of the left thumb.” Compl. ¶ 7,
ECF No. 1, PageID.2. Cohan resides in Florida but frequently
travels to the Detroit area and has stayed at the Towne Place
Suites in the past; he alleged in his complaint that he would
stay at the facility again on future visits if the premises
were readily accessible to him.
The
plaintiff alleged that several architectural features of the
property violated applicable sections of the ADA
Accessibility Guidelines (ADAAG), including where the
defendant: (1) failed to provide sign(s) for disabled parking
or van disabled parking in violation of 2010 ADAAG
§§502 and 502.6; (2) provided sign(s) for disabled
parking that are too low in violation of 2010 ADAAG
§§502 and 502.6; (3) failed to provide seating for
a person(s) with a disability that has the correct clear
floor space for forward approach in violation of 2010 ADAAG
§§902, 902.2, 305 and 306; (4) provided a gate or
door with a continuous opening pressure of greater than 5
lbs. exceeding the limits for a person with a disability in
violation of 2010 ADAAG §§404, 404.1, 404.2,
404.2.9 and 309.4; (5) failed to provide the proper
insulation or protection for plumbing or other sharp or
abrasive objects under a sink or countertop in violation of
2010 ADAAG §§606 and 606.5; (6) provided grab bars
of improper horizontal length or spacing as required along
the rear or side wall in violation of 2010 ADAAG
§§604, 604.5, 604.5.1 and 604.5.2; (7) failed to
provide toilet paper dispensers in the proper position in
front of the water closet or at the correct height above the
finished floor in violation of 2010 ADAAG §§604,
604.7 and 309.4; (8) failed to provide the water closet in
the proper position relative to the side wall or partition in
violation of 2010 ADAAG §§604 and 604.2; and (9)
failed to provide flush controls located on the open side of
the water closet in violation of 2010 ADAAG §§309,
309.4, 604 and 604.6. The plaintiff alleged that all of those
features of the premises feasibly could be altered to achieve
full compliance with the pertinent ADAAG guidelines, but the
defendant has failed or refused to do so.
In his
present motion, the plaintiff asks the Court to (1) issue a
declaratory ruling that the features of the property
enumerated above violate the applicable ADAAG provisions and
that the defendant's failure or refusal to correct them
constitutes unlawful discrimination under the ADA, (2) issue
an injunction ordering the defendant to fix the identified
defects in its property and render the premises fully readily
accessible, and (3) award the plaintiff his reasonable
attorney fees and costs of litigation, including expert fees,
under 42 U.S.C. § 12205. Taking the well pleaded
allegations of the complaint as true, as it must, the Court
now finds that the plaintiff has presented sufficient facts
in his uncontroverted pleading to demonstrate his right to
declaratory and injunctive relief and recovery of his costs
and attorney fees under the pertinent statutes.
II.
“Disability-based
discrimination in public accommodations is prohibited under
Title III of the Americans with Disabilities Act, 42 U.S.C.
§ 12182.” United States v. Cinemark USA,
Inc., 348 F.3d 569, 572-73 (6th Cir. 2003). “Title
III generally requires that public accommodations designed
and constructed ‘for first occupancy' after January
26, 1993, be ‘readily accessible to and usable by
individuals with disabilities.'” Id. at
573 (quoting 42 U.S.C. § 12183(a)(1)). “‘To
be “readily accessible, ” any part of a newly
constructed or altered facility must be constructed in
conformance with the ADAAG, 28 C.F.R. Pt. 36, App.
A.'” Mote v. City of Chelsea, 252
F.Supp.3d 642, 649 (E.D. Mich. 2017) (citing Daubert v.
Lindsay Unified Sch. Dist., 760 F.3d 982, 986 (9th Cir.
2014); 28 C.F.R. § 35.151(c)(1)-(3)). The ADAAG is a set
of regulations that set out, in comprehensive detail, the
design specifics for structures and facilities to make them
“readily accessible” to disabled persons.
The
Court finds that the uncontroverted facts alleged in the
complaint amply establish that the plaintiff is a person with
a disability as defined under the ADA, and that the
defendant's hotel is a place of public accommodation
subject to regulation by the Act. The defendant's hotel
was built in 1999 and therefore is subject to Title III's
requirements for new construction. The complaint identified
nine specific instances of non-compliance with applicable
provisions of the ADAAG that obstructed the plaintiff's
use of the premises. The defendant has failed or refused to
make its property readily accessible to the plaintiff, and
the failure or refusal properly to construct or to make
feasible modifications to the property violates 42 U.S.C.
§ 12182. The defendant will be ordered promptly to
correct the defects in its property. The Court finds that the
relevant factors favor issuance of a declaratory judgment
settling the question whether the defendant's property is
accessible and clarifying that the identified defects must be
corrected to achieve compliance with the ADA. See
Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 554 (6th
Cir. 2008).
The
Court finds that the requested attorney fee of $1, 288 is
reasonable in light of the work required to bring this
litigation to a successful conclusion. The plaintiff's
reasonable attorney fee and filing and service fees in the
amount of $410.05 are recoverable under 42 U.S.C. §
12205 because the plaintiff is the prevailing party in this
case. However, the plaintiff has not supplied any authority
for the requested award of expert fees for a pre-litigation
compliance evaluation. The request for recovery of the expert
fee therefore will be denied.
III.
Accordingly,
it is ORDERED that the plaintiff's
motion for entry of default judgment (ECF No. 7) is
GRANTED, and a default judgment shall enter
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