Colon, Brittany v. Americas Best Value Inn

Filing 18

ORDER granting 8 Motion for Default Judgment. Signed by District Judge William M. Conley on 8/21/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

BRITTANY M. COLON,

Plaintiff,

ORDER AND ENTRY
OF DEFAULT JUDGMENT

v.
17-cv-371-wmc
AMERICAS BEST VALUE INN,
Defendant.

Following an in-person hearing on plaintiff’s motion for default judgment (dkt. #8)
and plaintiff’s submission of additional materials after that hearing (dkt. ##13-17), the
court will now enter judgment granting permanent injunctive relief and awarding plaintiff
$4,415 in attorneys’ fees and costs consistent with the findings and conclusions set forth
below.

BACKGROUND
Plaintiff Brittany Colon filed this action against defendant Americas Best Value Inn,
located at 2504 Wisconsin Dells Parkway in Wisconsin Dells, Wisconsin, alleging that
defendant violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq.,
by failing to make its swimming pools accessible to her disabled son. The clerk of court
entered default against defendant on July 5, 2017, after defendant failed to answer or
otherwise appear in this lawsuit. (Dkt. #6.)

On July 19, 2017, plaintiff filed her motion for default judgment, along with a
certificate of service affirming that her counsel mailed the motion and supporting materials
to defendant’s address that same day. The court held an in-person hearing on plaintiff’s
motion for default judgment on August 2, 2017, at which plaintiff appeared by counsel
and defendant again failed to appear.
In response to the court’s order following that hearing (dkt. #12), plaintiff filed a
short brief and supporting affidavits to establish standing, a revised proposed judgment
and an amended request for fees and costs, as well as a certificate of service confirming
mailing of those materials to defendant’s address. In that same order, the court permitted
defendant fourteen days from receipt of plaintiff’s supplemental materials to file and serve
a response. To date, defendant has yet to file any response or otherwise appear.

OPINION
The court accepts the basic facts as pled in plaintiff’s complaint in light of
defendant’s default. See Domanus v. Lewicki, 742 F.3d 290, 303 (7th Cir. 2014) (upon
default judgment, “allegations in the complaint relating to liability are true”). Combined
with the submissions by plaintiff during and after the hearing on August 2nd, the court
also finds that no further hearing is necessary and makes the following findings of fact and
conclusions of law:
1. Plaintiff’s son is physically disabled due to a birth condition and requires ADAcompliant pool entries to swim.

2

2. On or around April 11, 2017, plaintiff Brittany Colon called defendant Americas
Best Value Inn when attempting to plan another vacation to Wisconsin Dells,
where she and her son have visited approximately once a year over the past five
years and intend to continue visiting. The individual with whom she spoke
informed her that the hotel’s pools did not have a pool lift or sloped entrances
and that defendant did not intend to purchase a pool lift.
3. On or around April 15, 2017 (at the time a “legal clerk” and not yet a licensed
attorney), plaintiff’s counsel visited defendant’s hotel and personally observed
that its pools did not have ADA-compliant entries.
4. Though not clear-cut under existing case law, since there appears to be no
binding precedent regarding whether Article III standing is conferred for
purposes of Title III of the ADA, when a plaintiff personally calls a defendant to
determine that its public accommodations are not accessible to her and confirms
that inaccessibility through an agent who then personally visits the premises, the
Seventh Circuit has at least implicitly endorsed finding standing even though an
ADA plaintiff does not actually visit the defendant’s premises herself. See Scherr
v. Marriott Int’l. Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (basing dismissal of
56 hotels not on the plaintiff’s failure to actually visit them, but rather on her
failure to show any intent to visit them); Scherr v. Marriott Int’l, Inc., 833 F. Supp.
2d 945, 955 (N.D. Ill. 2011) (same); see also Steger v. Franco, 228 F.3d 889, 892
(8th Cir. 2000) (“Although [ADA] plaintiffs need not engage in the ‘futile
gesture’ of visiting a building containing known barriers that the owner has no
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intention of remedying, see 42 U.S.C. § 12188(a)(1), they must at least prove
knowledge of the barriers and that they would like to visit the building in the
imminent future but for those barriers.”).
5. To be sure, district courts outside of this circuit have dismissed ADA claims for
lack of standing when a plaintiff relied on the “call and confirm method” rather
than actually visiting the defendant’s premises, see Brooke v. Capitol Regency LLC,
No. 2:16-cv-02070-JAM-FEB, 2017 WL 2165866, at *2-3 (E.D. Cal. May 17,
2017) (collecting cases), but in light of the Seventh Circuit’s decision in Scherr,
and consistent with the broad, remedial purposes of the ADA, the court finds
that plaintiff here has standing. See Scherr, 833 F. Supp. 2d at 951 n.4 (courts
may “look to the rights conferred by the ADA in assessing” standing); see also
DeBoard v. Comfort Inn, No. 1:13-cv-00508-RLY-MJD, 2013 WL 5592418 (S.D.
Ind. Oct. 9, 2013) (relying on Scherr in finding standing based on plaintiff’s
allegation of “actual knowledge” that the defendant hotel did not have a pool
lift).
5. Defendant, as a place of public accommodation, has discriminated against
plaintiff in violation of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iv), by lacking
ADA-compliant pool entries, see www.ada.gov/pools_2010.htm, and so plaintiff
is entitled to injunctive relief pursuant to 42 U.S.C. § 12188(a)(2).
6. Finally, the court finds that plaintiff is entitled to reasonable attorneys’ fees of
$3,900.00 and costs of $515.00 pursuant to 42 U.S.C. § 12205.

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ORDER
IT IS HEREBY ORDERED that:
1)

A Permanent Injunction pursuant to Federal Rule of Civil 65 is ENTERED under
the following terms and conditions:
i.

Defendant Americas Best Value Inn, located at 2504 Wisconsin Dells
Pkwy in Wisconsin Dells, Wisconsin (“Americas Best”), shall install a
suitable ADA-compliant pool entry required for each swimming pool or
hot tub on the premises. To achieve this compliance, Americas Best may
choose from the following options based on what is readily achievable for
its business:
a. For pools and spas with greater than 300 linear feet of pool wall,
two (2) ADA compliant entries shall be installed. These can
include a sloped entrance, transfer wall, or pool lift.
b. For pools and spas with less than 300 linear feet of pool wall, one
(1) ADA compliant entry shall be installed, which must be either
a sloped entrance or a pool lift.

ii.

iii.

Violation of this Permanent Injunction shall be subject to applicable
penalties, up to and including contempt of court.

iv.

2)

While Americas Best need not bring all pools or spas into compliance at
once, it must at least implement a plan to achieve full compliance in a
reasonable timeframe.

This court shall retain continuing jurisdiction over plaintiff Brittany
Colon and defendant Americas Best for the purpose of enforcing this
Permanent Injunction.

Plaintiff is awarded a total amount in fees and costs of $4,415.00 pursuant to 42
U.S.C. § 12205.

3)

The clerk of court is directed to enter final judgment consistent with this order.
Entered this 21st day of August, 2017.
BY THE COURT:
/s/
WILLIAM M. CONLEY
District Judge