Norkunas v. HPT Cambridge, LLC, Civil Action No. 11–12183–WGY.

• Decision Date: 18 September 2013
• Docket Number: Civil Action No. 11–12183–WGY.
• Citation: 969 F.Supp.2d 184
• Parties: William NORKUNAS, Plaintiff, v. HPT CAMBRIDGE, LLC, and Cambridge TRS, Inc., Defendants.
• Court: U.S. District Court — District of Massachusetts

969 F.Supp.2d 184

William NORKUNAS, Plaintiff,

v.HPT CAMBRIDGE, LLC, and Cambridge TRS, Inc., Defendants.

Civil Action No. 11–12183–WGY.

United States District Court,

D. Massachusetts.

Sept. 18, 2013.

George W. Skogstrom, Jr., Jenifer M. Pinkham, Lawrence A. Fuller, Scholssberg LLC, Braintree, MA, for Plaintiff.

David M. Fox, Jennifer B. Furey, Paul F. Beckwith, Cooley Manion Jones LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

YOUNG, District Judge.

I. INTRODUCTION

William Norkunas (“Norkunas”), a disabled individual as defined by the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101–12213, brought this suit after he visited the Royal Sonesta Hotel Boston (the “Royal Sonesta”) against HPT Cambridge, LLC and Cambridge TRS, Inc., respectively the owner and lessee of the Royal Sonesta. Norkunas alleges that he encountered several architectural barriers during his visit, which denied him access to full and equal enjoyment of the accommodations in violation of the ADA.

In adjudicating this case, this Court denied both a motion to dismiss and a motion for summary judgment by the defendants. See Elec. Clerk's Notes, Apr. 10, 2012; Elec. Clerk's Notes, Oct. 24, 2012, ECF No. 63. Both oral arguments focused on whether Norkunas had standing to pursue the suit.

A three-day bench trial was held on November 19, 2012, November 21, 2012, and December 20, 2012. See Elec. Clerk's Notes, Nov. 19, 2012, ECF No. 77; Elec. Clerk's Notes, Nov. 21, 2012, ECF No. 78; Elec. Clerk's Notes, Dec. 20, 2012, ECF No. 111. The defendants again argued that Norkunas did not have standing to pursue this suit. See Mem. Law Supp. Defs.' Mot. J. Partial Findings Fed.R.Civ.P. 52(c)9–19, ECF No. 114.

This Court made certain findings and rulings from the bench. See Findings & Rulings Tr., Dec. 20, 2012, ECF No. 117. These included that Norkunas had standing to pursue this suit, id. at 6:13–14, that the Royal Sonesta was indeed in violation of the ADA, see, e.g., id. at 7:16, 7:24–25, 8:2–3, and that an injunction requiring compliance by December 20, 2013, should issue, id. at 12:8–13. After studying and deciding an outstanding issue regarding the required number and type of available suites, see J. Scope Inj., ECF No. 110, the Court issued its final injunction on February 14, 2013, see Order Entering Inj., ECF No. 121.

Having made its findings and rulings and having issued the injunction, the Court wishes to address two issues in this opinion. First, the Court wishes to communicate more fully its reasoning on the most contentious procedural issue in this case: Norkunas's standing to bring this suit. Second, this memorandum announces the Court's award of attorneys' fees, costs, and experts' fees as permitted under the ADA. See42 U.S.C. § 12205.

II. STANDINGA. Facts

William Norkunas suffers from post-polio syndrome and frequently requires the use of a wheelchair or motorized scooter. See Trial Tr. vol. 1, 15:8–11, Nov. 19, 2012, ECF No. 104; Order (“Norkunas's Trial Mem.”) ¶ 1, ECF No. 75. While he was born and grew up in Massachusetts, he now resides in Florida. Trial Tr. vol. 1, 15:3, 54:4. Despite his change of residence, Norkunas still has relatives living in the greater Boston area, including his brother in Lowell, his brother-in-law in Brockton, and his sister-in-law and niece in Framingham, along with cousins, aunts, and an uncle in the greater Boston area. See id. at 76:5–8; Norkunas's Trial Mem. ¶ 2(B). Moreover, Norkunas's deceased wife is buried in a cemetery in Newton, Massachusetts. Defs.' Trial Mem. 2 n. 3, ECF No. 74.

Norkunas is not a newcomer to the world of ADA enforcement suits. He is employed as an ADA expert and Fair Housing Accessibility Act specialist for Disability Assistance, Inc., a Florida corporation, of which Norkunas is the sole principal and employee. See Trial Tr. vol. 1, 76:24–77:1. In fact, he derives ninety-nine percent of his income from his employment as an ADA expert and has served as a paid ADA expert in more than one thousand lawsuits since 1992. Id. at 77:2–8.

More recently, Norkunas has moved from being an expert to being a plaintiff in ADA Title III actions. He has filed more than fifty such suits in the last four or five years. Id. at 77:10–18. During his travels, Norkunas often stays at multiple hotels in the same area, and he has filed Title III actions against more than half of the hotels he has visited during the year preceding his suit in this case. See id. at 79:5–80:14. He has filed at least twenty-three suits in the District of Massachusetts since February 2009, twenty of which have been against hotels. Defs.' Trial Mem. 2; see also Trial Tr. vol. 1, 77:19–21. These hotels are located across Massachusetts, including in Bedford, Boston, Brockton, Cambridge, Concord, Danvers, Foxboro, Framingham, Haverhill, Marlborough, Milford, Natick, Peabody, Plymouth, Shrewsbury, Springfield, Waltham, and Woburn. Trial Tr. vol. 1, 78:21–79:4.

Norkunas readily admits that in selecting a hotel in which to stay, a “contributing reason” for him often would be whether the hotel is accessible to individuals with a disability. See id. at 55:21–56:6. He sees himself as a crusader for gaining equal access for disabled individuals. See id. at 117:11–14.

During the trip and hotel stay that has led to this suit, Norkunas stayed in four different Boston area hotels on four consecutive nights. See id. at 64:4–6. He has filed suit against three of the four hotels. Id. at 64:7–9. In each suit, he alleged an intent to return to the hotel in April 2012 and booked a reservation. After settling such suits, Norkunas cancelled each reservation. Norkunas has stated that these hotels have acknowledged the existence of ADA violations and barriers to access and that his reservation cancellation was due to the hotels needing additional time to correct the barriers. Moreover, he insists that he will indeed return to check on whether these hotels comply with the ADA and the settlements and hopes that he will be able to fully enjoy the hotels' facilities, which, at present, fail to provide him with equal access. See id. at 51:22–52:4.

After filing this suit on December 9, 2011, Norkunas did return and stay at the Royal Sonesta on June 16–17, 2012, and again on August 21–22, 2012. See id. at 23:16–19. Norkunas says that he wanted to stay at the Royal Sonesta because it was conveniently located near the airport and relatives and friends that he intended to see during his visits. See id. at 59:5–11. Norkunas does hope to stay in the Royal Sonesta in the future once the barriers to access are corrected, as he plans to continue to return to the Boston area several times per year as he has been doing for the past several years. See id. at 53:7–15, 59:5–7.

B. Legal Standard and Analysis

In order to demonstrate standing generally, (1) a plaintiff must have suffered an injury-in-fact—“an invasion of a legally protected interest” that is both “concrete and particularized” and “actual or imminent,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990)) (internal quotation mark omitted); (2) there must be causality—“a causal connection between the injury and the conduct” of which the plaintiff complains, id.; and (3) there must be redressability—“it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision,” id. (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38, 46, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976)) (internal quotation marks omitted). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561, 112 S.Ct. 2130.

Title III provides a limited set of remedies for private suits, including injunctive relief, restraining orders, or other similar relief. 42 U.S.C. § 12188 (incorporating by reference the remedies and procedures set forth in 42 U.S.C. section 2000a–3(a)). “Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495–96, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); see also American Postal Workers Union v. Frank, 968 F.2d 1373, 1376 (1st Cir.1992) (noting that the Supreme Court in City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), “reaffirmed the principle that past exposure to harm will not, in and of itself, confer standing upon a litigant to obtain equitable relief [a]bsent a sufficient likelihood that he will again be wronged in a similar way” (alteration in original) (quoting Lyons, 461 U.S. at 111, 103 S.Ct. 1660) (internal quotation marks omitted)). A plaintiff has standing to seek a prospective remedy only if he can show that he is “likely to suffer future injury.” Lyons, 461 U.S. at 105, 103 S.Ct. 1660.

“Indeed, every court to have considered the standing requirements under Title III of the ADA has held that in order for a private litigant to prove standing, she must show a risk of future harm.” Blake v. Southcoast Health Sys., Inc., 145 F.Supp.2d 126, 132–33 (D.Mass.2001). A risk of future harm exists where a plaintiff who has suffered an injury has a firm intention to return or where the plaintiff is being deterred from patronizing the business by the defendant's misconduct. See Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 944 (9th Cir.2011) (en banc) (holding that “an ADA plaintiff can establish standing to sue for injunctive relief either by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an intent to return to a noncompliant facility”).

Thus, in the case at bar, Norkunas could have argued that he is presently being deterred from patronizing the Royal Sonesta because it is not accessible to him. Cf. Fiedler v. Ocean Properties, Ltd., 683 F.Supp.2d 57,...