Rose v. Wayne Cnty. Airport Auth., Case Number 15-13567

• Decision Date: 29 September 2016
• Docket Number: Case Number 15-13567
• Citation: 210 F.Supp.3d 870
• Parties: Donna ROSE and Paul Palmer, Plaintiffs, v. WAYNE COUNTY AIRPORT AUTHORITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

210 F.Supp.3d 870

Donna ROSE and Paul Palmer, Plaintiffs,

v.WAYNE COUNTY AIRPORT AUTHORITY, Defendant.

Case Number 15-13567

United States District Court, E.D. Michigan, Southern Division.

Signed September 29, 2016

Melissa Nyman, Nyman Turkish PC, Rocklin, CA, Ryan Thomas Kaiser, Jason M. Turkish, Nyman Turkish, PC, Southfield, MI, for Plaintiffs.

Gary K. August, Jamie J. Janisch, Steven J. Hurvitz, Zausmer, Kaufman, August & Caldwell, P.C., Farmington Hills, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART MOTION TO DISMISS, DENYING MOTIONS FOR RECONSIDERATION OF DENIAL OF TEMPORARY RESTRAINING ORDER, LEAVE TO AMEND COMPLAINT, AND INTERVENTION, AND DISMISSING CASE AS MOOT

DAVID M. LAWSON, United States District Judge

This complaint in this case is the third filed by plaintiffs' counsel on behalf of clients expressing concern about accessability to the Detroit Metropolitan Airport's McNamara Terminal by individuals with disabilities arriving via public transportation. The focus of this case, as with the others, is on pickup and drop-off locations within and outside the Ground Transportation Center (GTC) and whether the defendant Airport Authority is complying with the mandate of the Americans with Disabilities Act (and its Michigan counterpart), which prohibits "discriminat[ion] against [an individual] on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation," 42 U.S.C. § 12182(a), and also prohibits exclusion from and discrimination against such individuals regarding "the services, programs, or activities of a public entity," id. § 12132. The complaint identifies claims based on ADA Title II, Part A and implementing regulations (prohibiting discrimination on the basis of disability), ADA Title II, Part B (prohibiting discrimination in public transportation), ADA Title V (prohibiting coercion or intimidation of disabled persons), the Rehabilitation Act of 1973 (prohibiting discrimination by programs receiving federal funds), the Michigan Persons With Disabilities Civil Rights Act (banning discrimination in public accommodations), and the Fourteenth Amendment's Equal Protection Clause.

The complaint, filed on October 12, 2015, is based on the premise that the area within the GTC designated by the Airport Authority for pickup and drop-off by public transportation busses is inaccessible by persons with disabilities because it is located at "the farthest possible...corner of the GTC," and those busses—operated by SMART, AirRide, Indian Trails, and Michigan Flyer—are primary carriers for disabled persons seeking to use the airport. The plaintiffs allege in the complaint that the Airport Authority permits other busses—shuttles, charter services, some private carriers—to load and unload at a stop immediately adjacent to the GTC's airport entrance door, known as "Door 402." The plaintiffs want the Airport Authority to allow public transportation providers to use that stop as well.

The Airport Authority responded to the complaint with a motion to dismiss, and the plaintiffs moved for a preliminary injunction. In early 2016, the Airport Authority enacted new regulations effective March 14, 2016, which required all GTC operators to announce that passengers with disabilities could be dropped off closer to the terminal upon request, and when such a request was made, the operator must pick up and discharge the requester and companions at one of several "alternative stops." One of those stops is Door 402. The plaintiffs, unsatisfied with that accommodation, filed an emergency motion for a temporary restraining order (TRO) to prevent the new regulations from taking effect. That motion was denied by another judge of this Court before the case was transferred to the undersigned. Thereafter, public transportation provider Michigan Flyer filed a motion to intervene, and the plaintiffs filed a motion for reconsideration of the denial of the TRO. The plaintiffs also filed a motion to amend their complaint to attack the new regulations and assert other theories under the ADA.

Shortly before oral argument, the plaintiffs withdrew their motion for preliminary injunction. On September 1, 2016, the Court heard oral argument on the defendant's motion to dismiss, the plaintiffs' motions for leave to file an amended complaint and reconsideration of the order denying the TRO, and non-party Michigan Flyer's motion to intervene. Although the complaint contains several nonmeritorious counts, it does plead a viable claim under Title II of the ADA, because the plaintiffs have stated facts that establish that they requested a reasonable accommodation to the functional operations of the GTC, which had not been allowed by the Airport Authority at the time the complaint was filed. But subsequent developments establish that the Airport Authority has granted a reasonable accommodation, which complies with the ADA, and that change in circumstances renders the plaintiffs' claims moot. The Court, therefore, will dismiss the complaint and deny the motions for reconsideration, to amend the complaint, and for Michigan Flyer's intervention. The Court will dismiss the case as moot.

I. Facts

Some history is in order. Before 2014, public transportation busses that transported disabled travelers and others dropped off and picked up passengers near the international arrivals door, which leads directly into the McNamara Terminal proper. In September of that year, the Airport Authority moved the bus pickup and drop-off point to the GTC, which is an area across a roadway from the terminal. The roadway is traversed by a pedestrian bridge, but the access point for the bridge is inside the GTC's enclosed lobby. The Airport Authority made the change, it said, because of congestion and safety concerns.

A. First Lawsuit

In response to the proposed change, plaintiffs' counsel filed a lawsuit in September 2014 on behalf of Michael Harris and Karla Hudson against the Airport Authority alleging ADA violations. Public transportation providers Michigan Flyer and Indian Trails played a role in assisting the plaintiffs in that case, which included preparing affidavits and giving testimony that the plaintiffs relied upon in support of their position that the Airport Authority flouted the ADA's requirements in constructing and operating its GTC. That case was dismissed after the parties—including Harris, Hudson, the Airport Authority, and non-party Michigan Flyer—entered into a settlement agreement that called for certain changes to be made to the construction and operation of the GTC facility. After some protracted litigation over disputes about the Airport Authority's specific performance obligations under the settlement agreement, the parties finally reached a mutually agreed—though apparently not entirely conciliatory—resolution of their controversy. One feature of the settlement agreement called for establishing dedicated spots in the GTC where Michigan Flyer and Indian Trails could pick up and discharge their passengers. The agreed location of those spots was approximately 600 feet from Door 402.

B. Second Lawsuit

In April 2015, plaintiffs' counsel filed a second lawsuit against the Airport Authority over the location of the bus stops and the carriers' access to them, this time on behalf of Michigan Flyer and Indian Trails. Those plaintiffs alleged that, immediately after the settlement agreement in the Harris case was executed, the Airport Authority carried out a number of retaliatory gestures toward them, including unilaterally reducing the amount of time that the companies' busses could stop at the GTC to load and unload passengers; forcing their drivers to circle the airport instead of stopping in their assigned spaces, even when spaces were available; and forcing their drivers to vacate assigned spaces before their scheduled departure times, even when no other vehicles were waiting to use the spaces. The companies also asserted that the Airport Authority brought frivolous misdemeanor charges against them in state court, based on tickets issued to them for purportedly "prohibited signage" displayed at a desk used by their employees in the GTC lobby. On October 7, 2015, the Court dismissed the case after concluding that the antiretaliation protections of the ADA apply only to "individuals," a term that has come to refer to natural persons, not artificial entities such as Michigan Flyer, LLC. The Court subsequently denied the plaintiffs' motion for reconsideration and the Airport Authority's motion for attorney fees. Michigan Flyer appealed the dismissal, and that appeal remains pending.

C. Present Case

Five days after the Court dismissed Michigan Flyer's retaliation complaint, plaintiffs' counsel filed this case on behalf of Paul Palmer and Donna Rose. Palmer and Rose allege that certain conditions at the GTC make it inhospitable and inaccessible to them and violate the ADA. The pickup and drop-off location they criticize is the bus stop situated about 600 feet from the Door 402 entrance to the sheltered area of the GTC—the location approved by the parties in the Harris case settlement. The plaintiffs say that shortly after the settlement in the Harris case was executed, the Airport Authority made an operational change at the GTC and started allowing certain transportation providers—but not Michigan Flyer or Indian Trails—to use a pickup and drop-off spot immediately outside Door 402. The plaintiffs contend that their preferred providers also should be allowed to use that location, because, due to the Airport Authority's change in policy, that location now is the "shortest accessible route" from the outside embarkation point to the more accommodating and sheltered indoor waiting area in the GTC lobby. In their original complaint, the plaintiffs also named Delta Airlines, Inc. as a defendant, but they subsequently stipulated to dismiss all of their claims against...