Miles v. Garland Lodge and Resort LLC

Filing 42

ORDER Sustaining in Part and Overruling in Part Defendant's 39 Objections, Adopting in Part and Rejecting in Part 38 Report and Recommendation, Denying Plaintiff's 21 Motion for Summary Judgment, Granting in Part and Denying in Par t Defendant's 24 Motion for Summary Judgment, and Scheduling Status Conference. (In Person Status Conference (Attorneys Only) set for 2/1/2017 at 02:00 PM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL MILES,
Plaintiff,

Case No. 15-cv-11256

v.

Honorable Thomas L. Ludington

GARLAND LODGE AND RESORT LLC,

Magistrate Judge Patricia T. Morris

Defendant.
__________________________________________/
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
On 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.
After 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.
I.
Pursuant 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).
At the 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

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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.
A.
In its 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.
The 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

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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).
Defendant 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.
Defendant 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 ¶ 13.1 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
1

This contention is somewhat at odds with the fact that Plaintiff did in fact return to Garland Lodge on two separate
occasions after filing the present lawsuit. These post-filing visits are irrelevant to the issue of standing, which turns
on the facts at the time a suit is filed.

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accessibility standards – as opposed to stating that he would definitely return – is legally
sufficient.
Defendant 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.
Based 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 intent to return to
Garland Lodge. Defendant’s first objection will be overruled.
B.
In its second objection, Defendant Garland Lodge argues that the magistrate judge erred
in finding that questions of fact exist regarding the applicable ADA standard governing its
facilities. The ADA prohibits places of public accommodation from discriminating against
individuals on the basis of disabilities. 42 U.S.C. § 12182(a). There is no dispute that Garland
Lodge is a place of public accommodation under the statute.
The ADA establishes different standards for facilities existing at the time of its passage
and those designed and constructed for first occupancy after its passage on January 26, 1993.
For existing facilities, discrimination includes the failure to remove architectural barriers where
such removal is “readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). On the other hand,

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facilities designed and constructed for first occupancy after January 26, 1993 must conform to
ADA requirement absent a showing of “structural impracticability.” 42 U.S.C.A. § 12183(a).
Structural impracticability exists only in “those rare circumstances when the unique
characteristics of terrain prevent the incorporation of accessibility features.” 28 C.F.R. §
36.401(c).

Similarly, facilities that are “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”
must conform to the ADA’s requirements “to the maximum extent feasible.” 42 U.S.C.A. §
12183(a)(2).
While Garland Lodge was constructed prior to 1993, Plaintiff Miles argues that the more
exacting “structural impracticability” standard applies to portions of Garland Lodge that were
rebuilt after a fire in 2001. Plaintiff’s argument in this regard is based solely on a newspaper
article issued by Petoskey News, which describes an electrical fire that damaged portions of the
building. See ECF No. 21 Ex. J. The article generally states that a fire caused extensive damage
to 10 out of the 32 guest rooms located in the south wing of the resort, and that the remaining 22
rooms suffered substantial water and smoke damage. From this article alone, Plaintiff alleges
that a certain guestroom with a roll-in shower located in the south wing of the resort is subject to
the heightened “structural impracticability” standard. However, the article does not detail the
specific rooms that required repair, or the nature and extent of necessary repairs or renovations.
The article in no way establishes that the mobility access room identified by Plaintiff required
alterations that affected the usability of the room.
Plaintiff has not presented any further evidence or testimony in support of this argument
despite being granted over seven months to conduct discovery in this matter.2

2

As such,

To the extent Plaintiff attempts to raise new, additional arguments for the first time in response to Defendant’s
objection, they will be disregarded.

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Plaintiff’s contention that the mobility accessible guestroom was “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” is mere speculation. 42 U.S.C.A. § 12183(a)(2).

Because Plaintiff has not

established a genuine question of fact as to whether the mobility access guestroom was renovated
such that the heightened standard applies, Plaintiff has not met his burden at this summary
judgment stage. Defendant’s second objection will therefore be sustained, and the “readily
achievable” standard applies as a matter of law.
II.
Accordingly, it is ORDERED that Defendant’s objections to the report and
recommendation, ECF No. 39, are SUSTAINED IN PART AND OVERRULED IN PART.
Defendant’s first objection is overruled, while its second objection is sustained.
It is further ORDERED that the READILY ACHIEVABLE standard established under
the ADA applies to all portions of Garland Lodge as a matter of law.
It is further ORDERED that the report and recommendation, ECF No. 38, is ADOPTED
IN PART AND REJECTED IN PART.
It is further ORDERED that Plaintiff Miles’ motion for summary judgment, ECF No. 21,
is DENIED.
It is further ORDERED that Defendant Garland Lodge’s motion for summary judgment,
ECF No. 24, is GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that an in person status conference with counsel only is
SCHEDULED for February 1, 2017 at 2:00 p.m.
Dated: January 10, 2017

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 10, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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