Walker v. Asmar Ctr. LLC
| Decision Date | 15 November 2011 |
| Docket Number | Case No. 11-11745 |
| Parties | EFREM WALKER, Plaintiff, v. ASMAR CENTER, LLC, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
HON. AVERN COHN
This a public accommodation disability discrimination case. Plaintiff Efrem Walker, is suing defendant Asmar Center, LLC, claiming that defendant's facility fails to comply with Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12181, et seq.2 He seeks injunctive relief and litigation expenses.
Before the Court is defendant's motion for summary judgment on the grounds that (1) Walker lacks standing and (2) Walker did not exhaust his administrative remedies. For the reasons that follow, the motion will be denied.
Walker uses a wheelchair and is an individual with a disability for purposes of theADA.3 Walker resides in Pontiac, Michigan. Defendant owns a business, known as M-59 Plaza, in Waterford, Michigan. The M-59 Plaza is a commercial retail property with a variety of retailers leasing space from defendant. Currently, there is a coin laundry, coney island restaurant, hockey equipment retailer, Subway restaurant, a paycheck advance store, physical therapist, indoor horticulture equipment dealer, and a community theater leasing space.
On March 9, 2011, Walker visited the M-59 Plaza. According to his deposition, Walker visited the coney island where he used the restroom. He also visited the hockey equipment retailer and the Subway restaurant where he purchased some food. In his complaint, he alleges that the M-59 Plaza is non-ADA compliant in terms of accessibility, beginning with the parking lot. The complaint does not specify which retailer within the M-59 Plaza is not compliant. However it allege that counter-tops are not of the proper height and alleges problems with the restrooms. Walker testified at deposition and states in an affidavit4 that he has not returned to the M-59 Plaza since March 2011 and has no intent to return until the violations are fixed.
Although defendant moved under Fed. R. Civ. P. 56, the more appropriate rule for its standing argument is Fed. R. Civ. P. 12. Rule 12(b)(1) provides for a motion to dismiss for lack of jurisdiction and applies when a party argues a lack of standing. As an Article III court, this Court only has the power to resolve actual cases and controversies. U.S. Const. art. III, § 2; Sprint Commc'ns Co., L.P. v. APPCC Servs., Inc., --- U.S. ----, ----, 128 S.Ct. 2531, 2535 (2008). The case or controversy requirement is only satisfied if the Court can satisfy itself that the plaintiff has standing. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). Standing is evaluated based on the facts as they existed at the time the complaint was filed. Cleveland Branch, NAACP v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001).
Defendant's argument as to exhaustion falls under Rule 56 because exhaustion of administrative remedies is an affirmative defense. See Hood v. Ford Motor Co., No. 11-10649, 2011 WL 3651322, *8 (E.D. Mich. Aug. 19, 2011). Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Showing that there is some metaphysical doubt as to thematerial facts is not enough; "the mere existence of a scintilla of evidence" in support of the nonmoving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Rather, the nonmoving party must present "significant probative evidence" in support of its opposition to the motion for summary judgment in order to defeat the motion. Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir. 1993); see Anderson, 477 U.S. at 249-50.
The party seeking federal court action has the burden of establishing standing. Rosen v. Tenn. Comm'r of Fin. & Admin., 288 F.3d 918, 927 (6th Cir. 2002). This burden increases as the litigation proceeds. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (). Because defendant is making a factual attack upon Walker's allegations of subject-matter jurisdiction, generalized allegations of standing will not suffice. Ctr. For Biological Diversity v. Lueckel, 417 F.3d 532, 537 (6th Cir.2005). Instead, Walker must " 'set forth specific facts,' in affidavits or through other evidence, demonstrating that each element of standing is satisfied." Id. (quoting Fed. R. Civ. P. 56).
To establish standing, a plaintiff must demonstrate: 1) he has suffered an "injury in fact," that is, "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"; 2) a causal connection between the injury and the challenged conduct, that is, "the injury has to be fairly ... traceable to the challenged action of the defendant, and not ... the result [of] theindependent action of some third party not before the court"; and 3) the injury's redressability by a favorable judicial decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Doe v. Porter, 370 F.3d 558, 562 (6th Cir. 2004). See also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000).
Where, as here, a plaintiff seeks injunctive relief, he must demonstrate that there is a non-speculative, imminent threat of repeated injury to establish that there is an injury in fact. City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983); Fieger v. Michigan Supreme Court, 553 F.3d 955, 966 (6th Cir. 2009). "Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief, however, if unaccompanied by any continuing present adverse effects." O'Shea v. Littleton, 414 U.S. 488, 495 (1974). " 'Because injunctions regulate future conduct, a party has standing to seek injunctive relief only if the party alleges, and ultimately proves, a real and immediate-as opposed to merely conjectural or hypothetical-threat of future injury.' " Church v. City of Huntsville, 30 F.3d 1332 (11th Cir. 1994); accord Whitmore v. Arkansas, 495 U.S. 149, 158(1990) ().
"Congress enacted the ADA in 1990 to remedy widespread discrimination against individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661 (2001). Title III of the ADA applies to discrimination by places of public accommodation. The statute provides that:
No individual shall be discriminated against 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 by any person who
owns, leases, (or leases to) or operates a place of public accommodation. 42 U.S.C. § 12188(a). It is not disputed that the M-59 Plaza is a place of public accommodation as defined by Title III. Private litigants suing under Title III are entitled only to injunctive and declaratory relief. See 42 U.S.C. § 12188; Association for Disabled Americans, Inc. v. Concorde Gaming Corp., 158 F. Supp. 2d 1353, 1358 (S.D. Fla. 2001); Powers v. MJB Acquisition Corp., 993 F. Supp. 861, 867 (D. Wyo. 1998); Fischer v. SJB-P.D., Inc., 214 F.3d 1115, 1120 (9th Cir. 2000); American Bus Assoc. v. Slater, 231 F.3d 1 (D.C. Cir. 2000); Stan v. Wal-Mart Stores, Inc., 111 F. Supp. 2d 119, 124 (N.D.N.Y. 2000).
In the ADA context, courts have held that a plaintiff must establish a likelihood of returning to the defendant's business to demonstrate a real threat of future harm. See, e.g., Steger v. Franco, Inc., 228 F.3d 889, 893 (8th Cir. 2000); Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1137-38 (9th Cir. 2002); Molski v. Arby's Huntington Beach, 359 F. Supp. 2d 938, 946 (C.D. Cal. 2005); Parr v. L & L Drive-Inn Rest., 96 F. Supp. 2d 1065, 1079-80 (D. Haw. 2000) (); Davis v. Flexman, 109 F. Supp. 2d 776, 784 (S.D. Ohio 1999) ().
To this end, courts have considered: "(1) the proximity of defendant's business to plaintiff's residence, (2) the plaintiff's past patronage of defendant's business, (3) the definitiveness of plaintiff's plans to return, and (4) the plaintiff's frequency of travel near defendant." D'lil v. Stardust Vacation Club, No. 2:00-CV-01496, 2001 WL 1825832, at *3 (E.D. Cal. Dec.21, 2001); Vaughn v. Rent-a-Center, No. 2:06-CV-1207, 2009 WL723166 (S.D. Ohio March 16, 2009).5 The gravamen of defendant's motion is that Walker does not have standing in light of these factors. The Court disagrees.
Considering the first factor regarding the proximity of the defendant's business to Walker's residence, it is likely that Walker will return to the M-59 Plaza. Walker resides only seven (7) miles away. While defendant makes much of the fact that there are other similar stores, particularly Subway restaurants, closer to Walker's home, those facts are not sufficient. Walker has stated he would return to the...
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