CHARLES RONALD NORGLE, District Judge.
Before the Court is Defendants Marriot International, Inc., Courtyard Management Corporation, Courtyard II Associates, LP, and Marriot International Design and Construction Services, Inc.'s (collectively, "Marriot") Motion to Dismiss Plaintiff Marjorie Friedman Scherr's ("Scherr") Complaint. For the following reasons, Marriot's motion is granted in part and denied in part.
This case presents a difficult question of standing to sue under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"). On March 19, 2006, Scherr was severely injured when she was struck by a self-closing spring-hinged bathroom door in an "ADA-accessible" guestroom at a Courtyard Marriot in Overland Park, Kansas (the "Overland Park Marriot"). Pursuant to Title III of the ADA, Scherr requests: (1) a declaratory judgment that the Overland Park Marriot was and remains in violation of the ADA; (2) injunctive relief against Marriot, including an order requiring Marriot to alter the self-closing spring-hinged doors in ADA-accessible rooms in fifty-seven of its Courtyard hotels throughout the United States (including the Overland Park Marriot); and (3) costs, attorneys fees, and expenses. Marriot moves to dismiss Scherr's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) because Scherr: (1) lacks Article III standing to seek injunctive relief under the ADA; (2) is barred by the statute of limitations; and (3) fails to state a claim upon which relief can be granted. For the following reasons, Scherr's allegations are sufficient to warrant moving forward with respect to injunctive relief against the Overland Park Marriot, but not with respect to the additional fifty-six Courtyard Marriot hotels.
The Court takes the following facts from the allegations in Scherr's Complaint and Declaration, which is attached as Exhibit 2 to her Opposition Memorandum.
Scherr has twenty-nine relatives living in or around Overland Park, Kansas and she has a long history of travel to the area. Since her injury, Scherr has traveled to Overland Park four times and stayed in ADA-accessible rooms at hotels similar to the Overland Park Marriot, such as the Drury Hotel and the Hampton Inn. Scherr states that the "particular location [of the Overland Park Marriot] is nearby many of my family members, and — other than the self-closing bathroom door — I have found Marriot's hotels to provide me with the type of accommodations I desire and need when I travel away from my home." Pi's Mem. in Opp. to Def's Mot. to Dismiss, Ex. 2 ¶ 4.
In August 2010, Scherr's cousin announced her engagement to be married on May 29, 2011, in the Overland Park area.
Scherr further declares that, since May 2006, she has taken eleven trips in addition to her four trips to Overland Park, including trips to Kentucky, Tennessee, Texas, South Carolina, California, Georgia, and Florida, among others. Id. ¶ 8. On all but one of the eleven trips, Scherr stayed in ADA-accessible rooms at a wide range of hotels. She only stayed in one Courtyard Marriot, however, in August 2006 in Highland Park, Illinois.
In 2004 and 2005, Marriot commenced a major project to renovate fifty-seven of its Courtyard hotels throughout the United States, including the Overland Park Marriot. "In all 57 hotels, defendants chose to design and install a spring-hinged door closer without a delay mechanism in place of a door closer on the bathroom door of each purportedly `ADA-accessible' guestroom." Compl. ¶ 35. Scherr contends that, over the course of the renovation, Marriot "did not take reasonable efforts to ensure that the spring hinges designed and installed into their hotels complied with [ADA rules on] door closing speeds
On March 17, 2008, Scherr filed a negligence action, arising from the same facts as the present case, in the Circuit Court of Cook County. Marriot removed the case to the Northern District of Illinois (Kennelly, J.) based on diversity of citizenship. On July 26, 2010, Scherr moved to amend her negligence complaint to include a claim under Title III of the ADA. Her request was denied. On October 13, 2010, Judge Kennelly denied the parties' motions for summary judgment in the negligence case, see Scherr v. Marriott Int'l, Inc., No. 08-C-2098, 2010 WL 4167487 (N.D.Ill. Oct. 13, 2010), and the case subsequently settled.
When considering a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court "must accept as true all well-pleaded factual allegations and draw all reasonable inferences in favor of the plaintiff." Alicea-Hernandez v. Catholic Bishop of Chi., 320 F.3d 698, 701 (7th Cir.2003). The burden of proof is on the party seeking to establish jurisdiction and the court is "free to weigh the evidence to determine whether jurisdiction has been established." United Phosphorus, Ltd. v. Angus Chem. Co., 322 F.3d 942, 946 (7th Cir.2003) (en banc). Since standing is an "an indispensable part of the plaintiff's case, each element must be supported ... with the manner and degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). At the pleading stage, "general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Id. A plaintiffs standing must exist at the time the complaint is filed. Access 4 All, Inc. v. Chi. Grande, Inc., No. 06-C-5250, 2007 WL 1438167, at *4 (N.D.Ill. May 10, 2007) (citing Lujan, 504 U.S. at 571, n. 4, 112 S.Ct. 2130). "The Supreme Court has instructed us to take a broad view of constitutional standing in civil rights cases, especially where, as under the ADA, private enforcement suits `are the primary method of obtaining compliance with the Act.'" Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 (9th Cir.2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209, 93 S.Ct. 364, 34 L.Ed.2d 415 (1972)).
In addition, for purposes of determining standing, district courts "may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence
Marriot also moves to dismiss under Rule 12(b)(6) for failure to state a claim. "A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief may be granted." Hallinan v. Fraternal Order of Police of Chi. Lodge No. 7, 570 F.3d 811, 820 (7th Cir.2009). Pursuant to Rule 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This short and plain statement must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Under federal notice-pleading standards, a plaintiffs "factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Put differently, "a complaint must 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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "Even after Twombly, courts must still approach motions under Rule 12(b)(6) by construing the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded facts alleged, and drawing all possible inferences in her favor." Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir.2009) (quotations omitted).
Standing is an essential component of the case-or-controversy requirement of Article III of the Constitution. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130. There are three well-settled constitutional standing requirements: (1) injury in fact, which must be (a) concrete and particularized, and (b) actual or imminent; (2) a causal connection between the injury and defendant's conduct; and (3) the injury must be likely to be redressed by a favorable decision. Id. at 560-61, 112 S.Ct. 2130. The party invoking federal jurisdiction bears the burden of establishing these elements. Id.
At issue in this case is whether Scherr demonstrates injury in fact at the time she filed her complaint. To establish injury in fact when seeking prospective injunctive relief, plaintiffs must allege a "real and immediate" threat of future violations of their rights. City of L.A. v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). The Supreme Court has explained that
Lujan, 504 U.S. at 564, 112 S.Ct. 2130 (quoting Lyons, 461 U.S. at 102, 103 S.Ct. 1660) (internal citations omitted) (emphasis in original). That is not to say, however, that concrete intentions to return to the location of injury are required to establish standing. Distinguishing Lujan, the Supreme Court later held that a plaintiffs' "conditional statements — that they would use the nearby North Tyger River for recreation if [defendant] were not discharging pollutants into it — [cannot] be equated with the speculative `some day intentions' to visit endangered species halfway around the world that we held insufficient to show injury in fact in [Lujan]." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). In other words, where plaintiffs allege injury in the form of "current deterrence," the Supreme Court does not require "the same specific intentions to return." Fiedler v. Ocean Props., Ltd., 683 F.Supp.2d 57, 69 (D.Me.2010); see also Betancourt v. Federated Dep't Stores, 732 F.Supp.2d 693, 709 (W.D.Tex.2010) (recognizing that the Supreme Court distinguished Lujan when, in Laidlaw, it "recognized deterrence as an injury in fact sufficient to confer standing for prospective relief').
Against this backdrop, the parties dispute the proper analysis to apply in this case. According to Marriot, Title III ADA plaintiffs plead injury in fact if they "show a plausible intention or desire to return to the accommodation but for the barriers to access." Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F.Supp.2d 160, 168 (S.D.N.Y.2006) (quotation omitted); see also Access 4 All, Inc. v. Wintergreen Commercial P'ship, Ltd., No.3:05-CV-1307, 2005 WL 2989307, at *3 (N.D.Tex. Nov. 7, 2005) ("In the context of ADA claims, courts evaluate whether future injury is probable by determining whether the plaintiff is likely to return to the defendant's business.").
Scherr, by contrast, invokes what the Ninth Circuit has recently labeled the "deterrent effect doctrine." Under this doctrine, an ADA plaintiff "can demonstrate sufficient injury to pursue injunctive relief when discriminatory architectural barriers deter him from returning to a noncompliant accommodation." Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 950 (9th
Id. at 949. Put differently, injury in fact under the ADA is satisfied where a person "has actually become aware of discriminatory conditions existing at a public accommodation, and is thereby deterred from visiting or patronizing that accommodation." Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136-37 (9th Cir.2002); see also Doran, 524 F.3d at 1041 ("Allegations that a plaintiff has visited a public accommodation on a prior occasion and is currently deterred from visiting that accommodation by accessibility barriers establish that a plaintiffs injury is actual or imminent."); Disabled Ams. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir.2005) ("`[A] disabled individual who is currently deterred from patronizing a public accommodation due to a defendant's failure to comply with the ADA' and `who is threatened with harm in the future because of existing or imminently threatened noncompliance with the ADA' suffers actual or imminent harm sufficient to confer standing.") (quoting Pickern, 293 F.3d at 1138); Steger v. Franco, 228 F.3d 889, 892 (8th Cir.2000) ("Although plaintiffs need not engage in the `futile gesture' of visiting a building containing known barriers that the owner has no intention of remedying ... they must at least prove knowledge of the barriers and that they would visit the building in the imminent future but for those barriers."); Betancourt, 732 F.Supp.2d at 709 ("[I]n an ADA Title III case, the risk of injury in fact is not speculative so long as the alleged discriminatory barriers remain in place, the plaintiff remains disabled, and the plaintiff is `able and ready' to visit the facility once it is made complaint."); Trump Int'l Hotel & Tower Condo., 458 F.Supp.2d at 168 ("In the context of the ADA, awareness of discriminatory conditions, and the avoidance of a public accommodation because of that awareness, is injury in fact."); Access for Am., Inc. v. Associated Out-Door Clubs, Inc., 188 Fed. Appx. 818, 820 (11th Cir.2006) (Barkett, J., dissenting) ("Especially in the disability context, a `specific-date/set-plans' standard would produce patently absurd results, and would almost certainly place plaintiffs in a Catch-22 so far as their credibility is concerned."); Equal Rights Ctr. v. Hilton Hotels Corp., No. 07-C-1528, 2009 WL 6067336, at *3 (D.D.C. Mar. 25, 2009) ("Disabled individuals do not have to claim that they would return to a place with known accessibility barriers simply to establish that they are likely to experience a future violation of their rights."). When the public accommodation being sued is located far from the plaintiffs home, the plaintiff, in order to prove deterrence, must also "demonstrate[] an intent to return to the geographic area where the accommodation is located." D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir.2008).
The "deterrent effect doctrine" — supported by the reasoning of Ninth, Eighth, and First Circuits — is gaining support. See, e.g., Betancourt, 732 F.Supp.2d at 699-710 (providing detailed, multi-faceted analysis of support for "deterrent effect" approach); Fiedler, 683 F.Supp.2d at 68-74 (same). Absent guidance from the Seventh Circuit, and finding the arguments and authority in favor of the "deterrent
Marriot argues that Scherr's statement that she "would" return to the Overland Park Marriot is the type of "some day" intention that the Supreme Court found insufficient in Lujan. If "intent to return" were the exclusive standard, Marriot might be correct.
As to awareness of existing barriers, Scherr knew from discovery in the related negligence case that, as of April 2010, the allegedly unsafe conditions at the Overland Park Marriot had not been corrected. While Marriot disputes Scherr's actual knowledge of the conditions at the additional fifty-six Courtyard Marriot hotels, it does not dispute her actual knowledge of the conditions at the Overland Park Marriot.
Scherr also establishes an intent to return to the Overland Park area. She has twenty-nine relatives living in or around Overland Park and, between May 2006 and May 2010, visited Overland Park four times.
Finally, Scherr alleges that, if the Overland Park Marriot were made accessible, she would like to stay there on future trips to the area. She avers that the "particular
At the motion to dismiss stage — and considering that "courts should resolve doubts about such [standing] questions in favor of disabled individuals," Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir.2003) — Scherr has alleged enough to establish standing to seek injunctive relief against the Overland Park Marriot. See Pickern, 293 F.3d 1133 (finding standing where plaintiff had encountered barriers at a grocery store and stated that he would shop there again if it were accessible); Doran, 524 F.3d at 1040 (granting standing where plaintiff visited defendant store in the past, is currently deterred from visiting the store because of accessibility barriers, and planned to visit the city in which the store is located at least once a year); Best W. Encina Lodge & Suites, 538 F.3d at 1037 (finding standing where plaintiff demonstrated intent to return to the city where the hotel was located and, upon return, her desire to stay at the hotel if it is made accessible); see also Fiedler, 683 F.Supp.2d at 69 (holding that a plaintiff has standing to sue a hotel in Bar Harbor, Maine when he "has never travelled to Bar Harbor before and has no friends or family there, but claims that he plans to spend a summer vacation [there] and to stay at the [defendant hotel] if or when it is brought into compliance with the ADA"); D'Lil v. Stardust Vacation Club, No. 00-C-1496, 2001 WL 1825832, at *4 (E.D.Cal. Dec. 21, 2001) ("Based on [plaintiffs] stated intention to return [to the hotel], her history of travel to [the region], and her particular reasons for seeking accommodation at the [hotel], the court finds that [plaintiff] has alleged sufficient facts to establish standing at the summary judgment stage."); Access 123, Inc. v. Markey's Lobster Pool Inc., No. 00-C-382, 2001 WL 920051, at *3 (D.N.H. Aug. 8, 2001) (finding actual injury for purposes of standing where restaurant was located in town where plaintiffs sister lived, plaintiff was aware of barriers in access to restaurant, and plaintiff stated he would return if the barriers were removed); Ass'n. for Disabled Ams. v. Claypool Holdings, No. IP00-0344-C-T/G, 2001 WL 1112109, at *20 (S.D.Ind. Aug. 6, 2001) (finding standing where plaintiff visited the Indianapolis area at least one time per year for family occasions and expressed a desire to stay at defendant's Indianapolis hotel on future visits).
Scherr also claims that she has standing to seek injunctive relief against "approximately 56 additional Marriot Courtyard hotels" throughout the United States. Compl. ¶ 1. Scherr argues that, under Title III, she need not engage in the "futile gesture" of visiting all fifty-seven Courtyard Marriot hotels so long as she has "actual notice" that Marriot does not intend to comply with the ADA. 42 U.S.C. § 12188(a)(1). Scherr believes that she meets this standard because she is challenging
Marriot, by contrast, argues that Scherr's centralized design theory is nothing more then an attempt to disregard constitutional standing principles. According to Marriot, Scherr "cannot obtain injunctive relief at facilities where she has never personally encountered accessibility barriers and has no knowledge of the existence, much less any supposed non-compliance, of any door-closing mechanisms." Reply in Supp. of Def's Mot. to Dismiss 2. The Court finds that, on this record, Scherr does not have standing to pursue injunctive relief against the additional fifty-six hotels.
As set forth above, Scherr suffers a cognizable injury under the ADA if she is aware of existing barriers at a public accommodation, would return to the accommodation if the barriers were removed, and intends to return to the area in which the accommodation exists. Contrary to Scherr's argument, the "futile gesture" provision does not alter these requirements. See Steger, 228 F.3d at 892 ("Although plaintiffs need not engage in the `futile gesture' of visiting a building containing known barriers that the owner has no intention of remedying ... they must at least prove knowledge of the barriers and that they would visit the building in the imminent future but for those barriers." (citing Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. at 180-84, 120 S.Ct. 693)).
Scherr asserts that between May 2006 and May 2010, she took eleven trips (in addition to her four trips to Overland Park) to locations throughout the United States. During those eleven trips, Scherr stayed at approximately twenty different hotels, only one of which was a Courtyard Marriot, in Highland Park, Illinois. While Scherr's allegation of a common architectural defect may be enough, at the motion to dismiss stage, to show awareness of existing barriers at the additional fifty-six hotels, she does not satisfy the other "deterrent effect" requirements. Scherr does not allege that she was deterred from visiting a Courtyard Marriot on these eleven trips or that she would visit a particular Courtyard Marriot in the future but for the alleged barriers. Further, she does not establish an intent to return to any geographic area in the United States (besides Overland Park) in which a Courtyard Marriot exists. The fact that she often travels the country and stays at hotels resembling the Courtyard Marriot is simply not enough to show actual injury. Without more, Scherr's request for nationwide injunctive relief goes too far.
In sum, at this stage of the litigation, the Court credits Scherr's assertion that, at the time she filed this case, she would have returned to the Overland Park Marriot if the alleged ADA-violations were corrected. Aware of the congressional mandate not to overburden ADA claimants, and consistent
While a plaintiff generally is not required to anticipate or negate possible affirmative defenses in her complaint, a court may dismiss a complaint for failure to state a claim if the allegations in the complaint reveal that the claim is barred by the applicable statute of limitations. Limestone Dev. Corp. v. Vill. of Lemont, Ill., 520 F.3d 797, 802 (7th Cir.2008).
Because the ADA does not contain a specific statute of limitations, "the most appropriate state limitations period applies." Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 550 (7th Cir.1996). In the context of Title III ADA claims, the Seventh Circuit has invoked Illinois's two-year statute of limitations for personal injuries. Id. at 551. The parties do not dispute that the two-year limitations period applies.
According to Marriot, Scherr's ADA claim is time-barred because she knew of the alleged fault with the door speed and the hinge when she filed her personal injury action on March 17, 2008, more then two years before she filed this case on November 16, 2010. In response, Scherr argues that when an ADA plaintiff seeks injunctive relief over continuing violations, her cause of action continues to accrue each day the defendant remains in violation.
While the Seventh Circuit has not addressed this issue, Scherr's position finds support in the ADA and the "deterrent effect doctrine" case law. Injunctive relief under Title III of the ADA is available to "any person who is being subjected to discrimination on the basis of disability" or who has "reasonable grounds for believing that such person is about to be subjected to discrimination." 42 U.S.C. § 12188(a)(1) (emphasis added). "By employing the phrases `is being subjected to' and `is about to be subjected to,' the statute makes clear that either a continuing or a threatened violation of the ADA is an injury within the meaning of the Act." Pickern, 293 F.3d at 1136. Therefore, a plaintiff suffers injury under the ADA if she is aware of the discriminatory conditions at a public accommodation and is thereby deterred from visiting that accommodation. Id. at 1136-37. "So long as the discriminatory conditions continue, and so long as a plaintiff is aware of them and remains deterred, the injury under the ADA continues" such that the statute of limitations does not bar relief. Id. at 1137; see also Betancourt, 732 F.Supp.2d at 708 ("The fact that the disabled person is being deterred from visiting an establishment they would otherwise visit, even if infrequently, is an ongoing, present injury.").
As set forth above, Scherr alleges that she is currently aware of ADA violations at the Overland Park Marriot and that these violations deter her from staying at the hotel. Therefore, accepting Scherr's factual allegations as true, the statute of limitations cannot bar recovery at this phase.
In addition to the jurisdictional and statute of limitations challenges, Marriot argues that the Complaint should be dismissed pursuant to Rule 12(b)(6) because Scherr's assertion of ADA violations at the additional fifty-six Courtyard Marriot hotels is speculative. According to Marriot, even if the Court assumes the additional fifty-six hotels utilized the same spring hinges in their ADA-accessible bathroom
Because the Court finds that Scherr does not have standing to proceed against the additional fifty-six Courtyard Marriot hotels, it need not address Marriot's argument that the claims against those hotels be dismissed under Rule 12(b)(6).
Scherr's allegations are sufficient, at the motion to dismiss stage, to justify moving forward with respect to injunctive relief against the Overland Park Marriot. With respect to the additional fifty-six Courtyard Marriot hotels, Marriot's motion to dismiss is granted. Following further discovery, the parties are free to once again raise the issues in this motion if appropriate.
For the foregoing reasons, Marriot's motion is granted in part and denied in part.
IT IS SO ORDERED.
