Steven Brother v. Tiger Partner, LLC
| Decision Date | 06 July 2004 |
| Docket Number | No. 6:03-CV-445-ORL-22JG.,6:03-CV-445-ORL-22JG. |
| Citation | 331 F.Supp.2d 1368 |
| Parties | Steven BROTHER, Plaintiff, v. TIGER PARTNER, LLC, d/b/a: Best Western Deltona Inn, Defendant. |
| Court | U.S. District Court — Middle District of Florida |
William Nicholas Charouhis, Charouhis & Associates, P.A., Miami, FL, for plaintiff.
Teresa Adamson Herrmann, Akerman Senterfitt, Orlando, FL, for defendant.
This cause comes before the Court for consideration of the Defendant's, Tiger Partner, LLC, d/b/a: Best Western Deltona Inn, Motion for Summary Judgment (Doc. No. 35), filed April 1, 2004, to which the Plaintiff, Steven Brother, responded (Doc. No. 45) on May 24, 2004. Having reviewed the motion and memoranda, this Court GRANTS the Motion for Summary Judgment (Doc. No. 35).
A. Generally
The Plaintiff, Steven Brother (hereinafter, "Mr.Brother"), is a resident of Miami Florida.1 Due to injuries sustained in a 1989 automobile collision, Mr. Brother is permanently disabled: he is profoundly deaf and partially paralyzed in one leg.2 The paralysis requires Mr. Brother to utilize a wheelchair for mobility.3
Since 2000, Mr. Brother has been unemployed.4 As a result, he currently supports himself and his family through monthly social security checks and food stamps totaling $1,600,5 and $178 respectively.6 He has no savings or investment accounts.7
Notwithstanding Mr. Brother's limited financial resources, he frequently travels to locations throughout the State of Florida.8 These travels have resulted in at least fifty-four lawsuits against public accommodations alleging violations of the Americans With Disabilities Act (hereinafter, "the ADA"), 42 U.S.C. §§ 12101-12213. Many of the lawsuits are against hotels purportedly visited by Mr. Brother. In Brother v. Ocean Jewels Club Condo Ass'n, 6:03-CV-432-ORL-28KRS (M.D.Fla.2003), for example, Mr. Brother sued the Travelodge in Daytona Beach concerning an October or November 2002 visit.9 Similarly, in Brother v. Americano Beach Lodge Resort Condo. Ass'n, 6:03-CV-699-Orl-28DAB (M.D.Fla.2003), Mr. Brother sued the Americano Beach Resort of Daytona Beach in relation to an April 2003 visit.10
In almost all of his lawsuits, Mr. Brother is represented by William Charouhis. Mr. Brother reports that Mr. Charouhis charges no fee for his services:
Q. Okay. What is your agreement with Mr. Charouhis as to the payment of his attorney's fees for this case?
A. That's really up to Mr. Charouhis. If he wants to take on the case, he takes it on.
Q. Do you pay him any attorney's fees, as you go along, for this case?
A. No.
Q. Has he charged you, as you go along, for attorney's fees or costs in this case?
Instead, Mr. Charouhis seeks remuneration through a fee-shifting provision contained in the ADA.12 That provision reads, in relevant part, as follows:
In any action ... commenced pursuant to this Act, the court ... in its discretion, may allow the prevailing party ... a reasonable attorney's fee, including litigation expenses, and costs ...
42 U.S.C. § 12205.
The Plaintiff receives no compensation for bringing these actions:
Q. Do you make money off any of these title three lawsuits other than monetary figures that may be included in settlement agreements?
A. Mr. Charouhis has made it very clear that we don't make money, but I did ask if it's possible to incur — if he can try to get back whatever I lost because of the problems I face with these hotels or businesses, but I know for a fact you do not make money off of ADA. It's not — it's not set up that way.13
Against that backdrop, in the Fall or Winter of 200214, the Plaintiff, along with his wife, Valerie Crosby,15 and his son, Matthew,16 traveled to Jacksonville, Florida.17 The purpose of their trip was to visit Mr. Brother's mother.18
While on route back to Miami, by way of Orlando, the Plaintiff and his family stopped in Deltona, Florida.19 There, Mr Brother discovered the Best Western Deltona Inn "by chance."20 The Defendant, Tiger Partner, LLC, owns and operates the Best Western Deltona Inn.21
Upon entering the Defendant's establishment, Mr. Brother inquired if there were any accessible guest rooms.22 In response, hotel personnel allegedly informed him that none were available; they were all occupied.23 Mr. Brother then inquired as to whether there were any alternative rooms available which he could get his wheelchair in and out.24 Hotel personnel again informed him that no rooms were available.25
At that time, Mr. Brother asked whether the hotel provided roll-in showers and "deaf kits" — kits containing such items as: (1) a text telephone; (2) a light that flashes when someone knocks on the door; (3) a device which clamps onto the bed mattress and vibrates when the fire alarm is activated; and (4) a light which connects to the room phone and flashes when the phone rings.26 The hotel allegedly indicated that it did not.27 As a result, Mr. Brother left the Defendant's establishment,28 and filed this lawsuit seeking injunctive relief.29 The Complaint, filed April 11, 2003, alleges a multitude of ADA violations.30
Turning to the issue at hand, the Defendant-hotel now moves this Court to enter summary judgment against Mr. Brother on the ground that, inter alia, he lacks standing to prosecute this action.31 On that point, the Defendant asserts that Mr. Brother has failed to demonstrate an immediate danger of future injury (a requirement of Article III standing) because he "lives hundreds of miles away from the Best Western Deltona Inn, has only visited the hotel once by happenstance, only travels three or four times a year (and when he does travel Deltona is not his place of destination), is not sure when he visited the Best Western, and only has a general intent to return to the facility."32
In response, Mr. Brother asserts that he has a specific intent to return to the Defendant's establishment.33 In an affidavit filed in opposition to summary judgment, Mr. Brother attests:
I have a reservation to stay at the hotel on Friday, November 26, 2004. I intend to travel to Jacksonville, Florida to visit my mother and plan to stop at the Defendant's hotel on the way back, spend the night, and go to Disney World and return to Miami the next day. I have had that intent since my initial visit to the property, and since before filing this lawsuit. That was one of the reasons why I viewed the accessibility of the Defendant's facilities during my fall/winter 2002 visit. I visit my mother in Jacksonville often, at least once a year, and try for other holidays as well. I am also in the Orlando and Daytona Beach areas several times a[ ] year, and travel between the two often. During my travels between Orlando and Daytona Beach, and between Jacksonville and Orlando, I use the I-4 corridor, off which Defendant's hotel is located. Besides just the November 26, 2004 visit, before filing this lawsuit I also planned on using the Defendant's hotel during my numerous travels in that area, and will do so, once the hotel and its facilities are made accessible to me.34
The Court will now consider the parties' arguments.
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material if it is one that might affect the outcome of the case. See id. The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those materials that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the movant satisfies this requirement, the burden shifts to the non-moving party to "come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 584, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To meet this burden, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings." Fed.R.Civ.P. 56(e). Nor may the non-moving party rely on a mere scintilla of evidence supporting its position. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990). Rather, for a court to find a genuine issue for trial, the non-moving party must establish, through the record presented to the court, that it is capable of providing evidence sufficient for a reasonable jury to return a verdict in its favor. See Cohen v. United Am. Bank, 83 F.3d 1347, 1349 (11th Cir.1996). When a court considers whether or not to enter summary judgment, it views all of the evidence, and all inferences drawn therefrom, in the light most favorable to the non-moving party. See Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 918 (11th Cir.1993).
"[T]o satisfy Article III's standing requirements, a plaintiff must show (1) [he] has suffered an `injury in fact' that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).
"In addition, because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges ... a real and immediate — as opposed to a...
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