Brooke v. Airport Hotel LLC

Filing 20

ORDER - The 12 motion to dismiss pursuant to Rule 12(b)(1), 12(b)(6), and 12(e) is denied. (See document for further details). Signed by Judge H Russel Holland on 9/16/15. (LAD)

WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

THERESA BROOKE,

)
)
Plaintiff, )
vs.
)
)
AIRPORT HOTEL, LLC, an Arizona Limited )
Liability Company, d/b/a Econo Lodge Phoenix )
Airport,
)
)
Defendant. )
_______________________________________)

No. 2:15-cv-1149-HRH

ORDER
Motion to Dismiss
Defendant has filed a combined motion to dismiss for lack of jurisdiction, for
failure to state a claim, and for a more definite statement.1 Fed. R. Civ. P. 12(b)(1),
12(b)(6), and 12(e). The motion is opposed. Oral argument has not been requested and
is not deemed necessary.
Plaintiff’s verified complaint is founded upon Title III of the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq., and Arizona Revised Statutes, Title 41,
Chapter 9, Article 8, §§ 41-1492, et seq. Plaintiff alleges that she is disabled because she
is confined to a wheelchair. She alleges that defendant operates a public accommodation
that is not fully accessible to disabled persons.2

1

Docket No. 12.

2

Verified Complaint at 2, Docket No. 1.

Order – Motion to Dismiss

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Pertinent to the pending motion to dismiss, plaintiff further alleges the following.
(1)

Plaintiff contacted defendant’s hotel on June 18, 2015, for purposes
of booking a room, inquired whether defendant’s pool had a lift or
other means of access for disabled persons, and was told that the
hotel pool did not have such a lift. Plaintiff further alleges that an
independent investigation verified the lack of a pool lift.3

(2)

Plaintiff alleges that based upon “personal knowledge of at least one
barrier related to her disability, that is, the pool is inaccessible to her
by virtue of her confinement to a wheel chair, [she] is currently
deterred from visiting Defendant’s accommodation by this
accessibility barrier.”4 Plaintiff alleges that “she has suffered an
injury-in-fact” by reason of the foregoing.5

(3)

Plaintiff alleges that she “intends to travel to the Phoenix area in the
future for pleasure trips and to visit medical professionals and stay at
hotels in the Phoenix area.”6

(4)

Plaintiff alleges that “[t]he existence of barriers to use the pool at
Defendant’s hotel deterred Plaintiff from staying or returning to seek
accommodations at Defendant’s hotel.”7

3

Id. at 4-5.

4

Id. at 5.

5

Id.

6

Id.

7

Id.

Order – Motion to Dismiss

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(5)

Plaintiff alleges that she is “injured by Defendant’s discriminatory
practices and failure to remove architectural barriers.” The injury is
alleged to “include being deterred from using Defendant’s facilities
due to the inaccessibility of Defendant’s pool[.]”8
Introduction

By way of introduction to its motion to dismiss, defendant points out that plaintiff
has filed multiple, “generic” lawsuits. Defendant alleges that plaintiff is “targeting”
“mom-and-pop” businesses that cannot afford to defend claims such as that brought here.
Plaintiff is the potential victim here, not the defendant. The fact that plaintiff has
filed multiple suits (in excess of 50 at last count) is not relevant to the instant motion.
“For the ADA to yield its promise of equal access for the disabled, it may indeed be
necessary and desirable for committed individuals to bring serial litigation advancing the
time when public accommodations will be compliant with the ADA.” Molski v.
Evergreen Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007).
Standing
Defendant contends that this court is without jurisdiction because plaintiff lacks
standing. In order to establish standing, plaintiff must have suffered a concrete, actual
injury (injury-in-fact) that is fairly traceable to the alleged injury (causation) and that the
injury will likely be favorably redressed through the litigation (redressability). Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In a case also initiated by
Ms. Brooke, Judge Snow of this court addressed the sufficiency of a complaint very
similar to that brought in this case. Judge Snow addressed the standing issue which
defendant raises here, holding:
8

Id. at 6.

Order – Motion to Dismiss

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When a disabled individual encounters or becomes aware of
alleged ADA violations that deter her patronage of or
otherwise interfere with her access to a place of public
accommodation, she has suffered an injury in fact traceable to
defendant’s conduct and capable of Court redress....
To meet the “real and immediate threat of repeated injury”
requirement for injunctive relief, a plaintiff who has suffered
injury-in-fact can demonstrate either that: (1) “he intends to
return to a noncompliant accommodation and is therefore
likely to reencounter a discriminatory architectural barrier;” or
(2) “discriminatory architectural barriers deter him from
returning to a noncompliant accommodation.”
Brooke v. Joie de Vivre Hospitality, LLC, No. 2:15-cv-00281. See Order (May 20,
2015), Docket No. 11 at 3-4 (quoting Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d
939, 950 (9th Cir. 2011)). Here, as well as in Joie de Vivre, plaintiff has not alleged that
she personally experienced an accessibility barrier at defendant’s accommodation. As to
this, Judge Snow held in Joie de Vivre:
although Plaintiff has not stayed at Defendant’s hotel,
Plaintiff pleads that she independently verified the absence of
a compliant pool lift at the hotel, and that she would consider
staying at the hotel if the ADA violations were remedied. An
ADA plaintiff who alleges that she has visited a public
accommodation on a prior occasion or has personal
knowledge of at least one barrier related to her disability and
is currently deterred from visiting that accommodation by
accessibility barriers has suffered an injury-in-fact for the
purpose of Article III [of the ADA].
Joie de Vivre, Order at 5 (citing Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1043-44 (9th
Cir. 2008) (emphasis added).
In Joie de Vivre, Judge Snow held that plaintiff had failed to allege that the
absence of a pool lift was related to her disability and that plaintiff had failed to allege
any likelihood of her staying at defendant’s hotel even if the facilities were made
accessible. In her verified complaint in this case, plaintiff has taken Judge Snow’s ruling
to heart and, as set out above, has alleged personal knowledge of a barrier related to her
Order – Motion to Dismiss

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disability which currently deters her from visiting defendant’s premises. Likewise,
plaintiff has in this case addressed the “real and immediate threat of repeated injury”
aspect of Judge Snow’s ruling. Plaintiff alleges that she intends traveling to the Phoenix
area for pleasure and medical treatment, and that the existence of barriers to use of
defendant’s pools will deter her from staying at defendant’s hotel.
The court finds that plaintiff has met the requirements of the first (injury-in-fact)
and second (causation) elements necessary to establish Article III standing to sue. The
court takes up the third element (redressability) in what follows with respect to
defendant’s mootness argument.
Mootness
In her verified complaint, plaintiff alleges that she contacted defendant’s hotel
(presumably by telephone or computer) for purposes of booking a room. She learned that
defendant’s accommodation had a pool. She avers that defendant’s representative
advised that the pool was not equipped with a pool lift. Plaintiff alleges that the absence
of a pool lift was verified independently. Going outside the four corners of plaintiff’s
complaint for purposes of addressing both the redressability element for standing and the
defendant’s mootness argument, in a declaration submitted by defendant it is represented
that on or about June 30, 2015 (approximately twelve days after plaintiff’s inquiry and
four days after defendant was served with plaintiff’s complaint),9 defendant ordered a
pool lift for its accommodation and that the lift was delivered July 30, 2015. Defendant
alleges that the pool lift was “scheduled for installation immediately thereafter.”10

9

Docket No. 6.

10

Motion to Dismiss, Declaration of Dipesh Patel, page 3 of 7, ¶ 4, Docket
No. 12-2.
Order – Motion to Dismiss

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Defendant’s above representations are a further verification that, from at least
June 30 through July 30, 2015, the pool at defendant’s premises was not equipped with a
lift that would accommodate a wheelchair bound individual such as plaintiff. But
defendant’s declaration also represents that between June 23, 2015 (before service of
plaintiff’s complaint but five days after plaintiff contacted defendant seeking
accommodation), and until an ADA compliant pool lift was installed, “the pool and the
immediately surrounding area [was] closed for maintenance.”11 Defendant’s declaration
also denies “knowledge” of plaintiff’s June 18, 2015, contact with defendant’s
accommodation.12
It is clear that plaintiff’s inquiry about accommodation at defendant’s hotel on
June 18, 2015, prompted defendant to order eight pool lifts, one for defendant’s premises
and seven others/more for other jointly-managed hotels.13 Finally, defendant’s
declaration14 includes a conclusory statement that the pool lift which was ordered for
defendant is ADA compliant.
Looking only at plaintiff’s verified complaint, plaintiff’s injury-in-fact was plainly
redressable as of the date the complaint was filed. An injunction requiring installation of
pool lifts at defendant’s accommodation would cure the injury. The facts, some of which
11

Id., Declaration of Dipesh Patel, page 3 of 7, ¶ 6.

12

Id., Declaration of Dipesh Patel, page 3 of 7, ¶ 5.

13

Please recall that plaintiff contacted defendant on June 18; defendant alleges that
its pool area was closed June 23, 2015. Defendant was served with the complaint in this
case on June 26, 2015. It is of course possible that defendant just happened to close its
pool for maintenance on June 23, before it knew of plaintiff’s suit, for reasons other than
plaintiff’s inquiry about accommodation with a pool lift. Plainly, it take will discovery to
sort out the facts of this case.
14

Motion to Dismiss, Declaration of Dipesh Patel, page 3 of 8, ¶ 7, Docket
No. 11-2.
Order – Motion to Dismiss

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could not have been known by plaintiff (that is, closure of defendant’s pool and the
ordering of a pool lift) may or may not have rendered plaintiff’s complaint moot.
Defendant’s representation that a pool lift was delivered July 30 “for installation
immediately” is a bit equivocal as to whether an ADA compliant lift on defendant’s pool
has in fact been installed.15 The court has no concrete evidence that the pool lift ordered
by defendant is in fact ADA compliant. There is a dispute as to whether or not plaintiff
contacted defendant’s accommodation on June 18, 2015. These factual uncertainties
cannot be resolved on motion to dismiss. The court is unconvinced that plaintiff’s
complaint is moot. Plaintiff has standing to sue. Her complaint states a redressable claim
for injunctive relief based upon Title III of the ADA.
Defendant’s motion to dismiss based upon Rule 12(b)(1) and (b)(6) is denied.
Jurisdiction of State Law Claims
Defendant would have the court refuse jurisdiction of state law matters if
plaintiff’s federal claim is dismissed. Because the court declines to dismiss plaintiff’s
federal claim, it also declines to dismiss plaintiff’s state law claim.
Failure to State a Claim
Defendant contends that plaintiff’s complaint lacks the requisite specificity or
particularity required by Rule 8, Federal Rules of Civil Procedure. The court disagrees.
Plaintiff’s verified complaint contains a “short and plain statement of the claim showing
that the pleader is entitled to relief such that the defendant has fair notice of what the
[plaintiff’s] claim is and the grounds upon which it rests.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Plaintiff’s complaint meets this standard. Plaintiff’s

15

In a late-filed declaration, defendant represents that by September 9, 2015, a pool
lift had been installed. Docket No. 19.
Order – Motion to Dismiss

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complaint does not fail to “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Twombly, 550 U.S. at 570)).
More Definite Statement
In the alternative, defendant seeks a more definite statement of plaintiff’s
complaint. Fed. R. Civ. P. 12(e). When a plaintiff’s complaint “is so vague or
ambiguous that the party cannot reasonably prepare a response,” a motion for a more
definite statement is appropriately granted. The allegations of plaintiff’s complaint are
neither vague nor ambiguous. Indeed, it is very clear from defendant’s motion to dismiss
that defendant very well understands what this case is about.
Conclusion
The motion to dismiss pursuant to Rule 12(b)(1), 12(b)(6), and 12(e) is denied.
DATED at Anchorage, Alaska, this 16th day of September, 2015.

/s/ H. Russel Holland
United States District Judge

Order – Motion to Dismiss

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