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Neal v. Divya Jyoti Ltd.

United States District Court, S.D. Ohio, Eastern Division

July 29, 2019

SPENCER NEAL, Plaintiff,
v.
DIVYA JYOTI LTD., Defendant.

          Magistrate Judge Kimberly A. Jolson

          OPINION AND ORDER

          EDMUND A. SARGUS, JR., CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff Spencer Neal's Motion for Summary Judgment (ECF No. 18) and subsequent Memorandum in Support of Summary Judgment (ECF No. 19). Defendant responded (ECF No. 26) and Plaintiff replied (ECF No. 28). Accordingly, this matter is ripe for disposition. For the reasons stated herein, Plaintiffs Motion for Summary Judgment (ECF No. 18) is GRANTED in part and DENIED in part.

         I.

         Plaintiff Spencer Neal ("Neal" or "Plaintiff') filed suit against Defendant Divya Jyoti, Ltd. ("Divya" or "Defendant") after allegedly encountering numerous architectural barriers at a Quality Inn and Suites owned by Defendant, under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189. (See generally Compl. [ECF No. 1]). The Complaint requests declaratory judgment, injunctive relief, and attorneys' fees. (Id. ¶¶ A-D).

         Plaintiff submits that he is handicapped and confined to a wheelchair; and thus, is disabled. (Neal Aff. 1 ¶ 1 [ECF No. 19-1]). Further, Plaintiff is an ADA "tester," meaning he travels to the Columbus, Ohio area to visit public facilities and checks for ADA compliance. (See Id. ¶ 2). And when Plaintiff finds compliance lacking, he sues.[1]

         A. Plaintiffs Visit to the Quality Inn

         On August 6, 2018, Plaintiff visited the Quality Inn and Suites ("Quality Inn"), located at 3590 Tuller Road, Dublin, Ohio. (Neal Aff 1 ¶ 3; Neal Aff 2 ¶ 1 [ECF No. 28-1]; Kumari Aff. ¶¶ 5-6 [ECF No. 26-1, Ex. A]). While there, he claims he suffered discrimination caused by architectural barriers in the parking lot and inside the hotel. (Neal Aff. 1 ¶ 4; see also Neal Aff. 2 ¶¶ 2-3). The alleged violations are documented in the Complaint, two affidavits submitted by Plaintiff, and an expert report authored by Derek Mortland. Plaintiff filed the case at bar to remedy these alleged ADA violations.

         Plaintiff lives in Akron, Ohio, which is approximately 123 miles from the Quality Inn.[2] (Neal Aff. 1 ¶ 2). Plaintiff visits the central-Ohio area frequently, as he has friends that reside near or in Columbus, Ohio. (Id.). Plaintiff submits that he desires to return to the Quality Inn. (Id. ¶5). Plaintiff contends that during his stay at the Quality Inn he observed and/or encountered:

(1) exterior barriers, which include barriers to the parking lot and entry way, (2) interior barriers, which include barriers in the hotel's lobby, breakfast area, and public restroom, (3) and barriers in the accessible guest room, which include barriers with the room's toilet and lavatory area.

(Id. ¶ 4). He claims that, when he arrived at the Quality Inn, he approached the reservation desk in the hotel lobby and asked for a handicapped accessible room and received a key for room 206. (Neal Aff. 2 ¶¶ 1-2). Plaintiff submits that he did not make a reservation at the Quality Inn prior to his arrival at the hotel. (Id. ¶ 1). Plaintiff states that, even though the room he received was not an accessible room, he "stayed in room 206 for as long as practical." (Id. ¶ 4). However, he "was unable to take a shower due to the inaccessible bathroom," and left the Quality Inn sometime in the morning and found another hotel. (Id.). Plaintiff submits that he did return to the Quality Inn later that same day to request a refund, which was given to him. (Id. ¶ 5).

         Defendant's detailing of Plaintiffs visit to the Quality Inn differs. Defendant avers that before he arrived at the Quality Inn, Plaintiff made an online reservation for a regular room with a king-sized bed, rather than a handicap accessible room. (Kumari Aff. ¶ 5 [ECF No. 26-1, Ex. A]). However, when Plaintiff arrived at the Quality Inn, he asked for a handicap accessible room, and Savita Kumari ("Ms. Kumari"), who was working the hotel's front desk when Plaintiff arrived, informed Plaintiff that a handicap accessible room was not available at that time. (Kumari Aff. ¶ 6). And after learning that the hotel did not have a handicap accessible room available, Plaintiff departed immediately and did not stay overnight at the hotel. (Id.). Plaintiff, however, returned to the Quality Inn the following morning at approximately 7:04 a.m. and asked for a refund, which Ms. Kumari supplied. (Kumari Aff. ¶ 7-8). After receiving the refund, Defendant avers that Plaintiff left the hotel right away. (Id. ¶ 8). Accordingly, Defendant submits: "there is no way [Plaintiff] could have observed the alleged interior barriers, barriers in the guest room, barriers in the room's toilet and lavatory area[, as] [h]e never visited or looked at any such area." (Id.).

         B. Derek Mortland's Barrier Identification Survey

         On December 14, 2018, Plaintiffs expert, Derek Mortland ("Mortland"), conducted an ADA barrier identification site survey. And on December 19, 2018, Mortland identified eighty-five barriers to accessibility in a report. (See generally Mortland Report [ECF No. 19-6]). Plaintiff then requested that Defendant make the following eighty-five (85) recommendations:

Alleged Violation

Proposed Remedy

Estimated Cost of Repair

1. Parking: The demarcated handicap accessible parking in the hotel's westside parking lot is not on an accessible route from the parking lot to the hotel building as a parked vehicle can block the curb ramp from the parking lot to the sidewalk

Move parking space over to one space to the left and provide an eight-foot marked aisle on right side of space that connects to curb ramp

$1, 500

2. Parking: There is no access aisle that abuts the demarcated handicap accessible parking located in the hotel's westside parking lot

Move parking space over to one space to the left and provide an eight-foot marked aisle on right side of space that connects to curb ramp

$1, 500

3. Parking: The parking lot on the hotel's westside does not have van accessible parking

Move parking space over to one space to the left and provide an eight-foot marked aisle on right side of space that connects to curb ramp

$150

4. Parking: The sign designating the parking space in the hotel's westside parking lot as handicap accessible parking is 36-inches above the ground

Mount sign at least 60-inches above the ground from the bottom of the sign

$150

5. Parking: The sign designating the parking space as handicap accessible parking is missing the "van accessible" sign

Include a "Van Accessible" sign under the handicap parking placard

$25

6. Parking: The demarcated handicap accessible parking space in the hotel's eastside parking lot is not located on a handicap accessible route as a parked vehicle can block the curb ramp from the parking lot to the sidewalk

Move parking space one space to the right, provide a five-foot demarcated access aisle on the left side of the space that connects to the curb

$0

7. Parking: There is no access aisle abutting the demarcated handicap accessible parking space located in the hotel's eastside parking lot

Move parking space one space to the right, provide a five-foot demarcated access aisle on the left side of the space that connects to the curb

$1, 500

8. Parking: The sign designating the handicap accessible parking space in the hotel's eastside parking lot is 36-inches above the ground

Mount sign at least 60-inches above the ground from the bottom of the sign

$150

9. Exterior Accessible Route: The curb ramp from the westside's parking lot to the sidewalk has a slope of 13.3%

Remove existing curb ramp; regrade the area; and provide a new ramp with a maximum grade of 8.33%

$2, 500

10. Exterior Accessible Route: The side flares on the curb ramp from the westside's parking lot to the sidewalk have grades between 27.4% and 38.7%.

When replacing the ramp as described in Violation #9, the side flare slopes should be constructed to have a maximum grade of 10%

$2, 500

11. Exterior Accessible Route: The gutter of the hotel's westside parking lot's curb ramp level change exceeds l/4-inches

When removing the ramp as described in Violation #9, the gutter transition must be level with the asphalt within l/4 inches

$1, 500

12. Exterior Accessible Route: There is a change in level that exceeds l/4-inches along the sidewalk that abuts the parking lot on the hotel's westside

Provide a sidewalk that has smooth and level transitions, the transitions at the sidewalk's joints should not exceed l/4-inches or l/2-inches if the joints are beveled

$1, 500

13. Exterior Accessible Route: The sidewalk on the hotel's westside narrows to 34.5-inches wide when a vehicle is parked in one of the parking spaces that abut such sidewalk

Expand the sidewalk to at least a width of 48-inches; or install stop blocks at parking space to prevent vehicles from narrowing the sidewalk to less than 36-inches

$2, 500

14. Exterior Accessible Route: The curb ramp to access the hotel's front entrance from the parking lot has a slope of 11.4%

Remove existing curb ramp and replace with a ramp that has a maximum grade of 8.33%

$2, 500

15. Exterior Accessible Route: The side flares on the curb ramp from the parking lot to the hotel's front entrances have grades between 35% and 38.8%

When removing and replacing curb ramp described in Violation #14, the side flares of the new ramp should not exceed a grade of 10%

$2, 500

16. Exterior Accessible Route: The level change between the front entrance's curb ramp and the parking lot is not level within l/4-inches

When removing and replacing curb ramp described in Violation #14, the gutter transition must be level with the asphalt within l/4 inches

$1, 500

17. Exterior Accessible Route: Building's eastside curb ramp's slope has a grade of 16.6%

Remove existing curb ramp and replace with a ramp that has a maximum grade of 8.3%

$2, 500

18. Exterior Accessible Route: Building's eastside curb ramp's side flares have grades between 45.2%-46%

When removing an replacing the curb ramp described in violation #17, the side flares' slopes should not exceed a grade of 10%

$2, 500

19. Exterior Accessible Route: Building's eastside curb ramp's transition at the gutter exceeds l/4 inches because of uneven edges between the sidewalk and asphalt

When removing and replacing the curb ramp described in violation #17, the gutter transition must be level with the asphalt within % inches

$1, 500

20. Entrance: Doormat at entrance is not secured in place

Completely remove the doormat or secure the doormat to the ground

$150

21. Lobby: there is no handrail on the right side of the stairway

Provide an ADA-compliant handrail to the stairway's right side

$1, 500

22. Lobby: stairway's left side handrail does not extend 12-inches from the bottom of the stairway

Provide a 12-inch handrail extension to the bottom of the stairway's left side

$1, 500

23. Lobby: the handle to open the fire extinguisher encasement is located 53.5-inches from the ground

Lower the placement of the handle to be no higher than 48-inches from the ground

$150

24. Lobby: Pamphlets at the top of the pamphlet rack are 53-inches above the floor

Lower the pamphlets so that they are no more than 48-inches from the floor

$150

25. Lobby: The computer desk's knee clear is 26.25-inches

Provide a desk that has the following dimensions: at least 27-inches knee clearance; at least 30-inches width; and at least 19-inches deep

$150

26. Lobby: Doormat at the interior entry door is loose and is not secured to the ground

Remove or securely attach the doormat to the ground

$150

27. Lobby: Employee computer obstructs the handicap accessible portion of the front desk

Remove and relocate the computer and monitor; and leave clear from obstructions the accessible portion of the front desk

$1, 500

28. Lobby: The pull for the fire alarm is 51-inches from the floor

Lower the fire alarm station to a maximum of 48-inches from the floor

$150

29. Breakfast: Door opening's clearance is 30-inches per door between the door's face and the opposite stop

Remove doors or provide doors that allow for a minimum of 32-inches of clear opening per door

$250

30. Breakfast: Countertops for the breakfast bar measure 36.5-inches from the floor

Provide countertops that are, at most, 36-inches from the ground

$2, 500

31. Breakfast: Toaster is located 49-inches above the ground and the depth to reach the toaster exceeds 10-inches

Remove that base that the toaster rests upon and place the toaster directly on a counter top that stands no taller than 46-inches from the ground

$2, 500

32. Breakfast: The operable components of the juice dispenser are located 5 5-inches above ground

Lower the juice dispenser so that the highest operable part is no more than 48-inches from the ground

$2, 500

33. Breakfast: The cups for the waffle batter are 55-inches above the floor

Relocate the cups so that: 1) if the cups are greater than a 10-inch reach depth then the cups be no higher than 46-inches above the floor; or 2) if the cups are at a reach depth of less than 10-inches then the cups should be no higher than 4 8-inches above the floor

$2, 500

34. Breakfast: The breakfast area does not have wheelchair-accessible tables

Provide for 5% of seating (or at least 1 table minimum) to be wheelchair accessible. The accessible table must have at least 27-incbes of knee space, be 30-inches wide, and be 19-inches deep

$1, 500

35. Public Restroom: The doorknob is not accessible

Remove existing doorknob and replace with accessible lever type doorknob on both sides of door

$25

36. Public Restroom: the supply and drain pipes under the sink are exposed and are not insulted

Cover exposed pipes with insulating wrap

$150

37. Public Restroom: Knee clearance at the sink is 25.5-inches from ground

Provide knee clearance of at least 27-inches from the ground with a depth of 8-inches

$1, 500

38. Public Restroom: The rim of the sink is 34.5-inches above the floor

Provide sink rim that is no more than 34-inches above the floor

$1, 500

39. Public Restroom: Paper towels are located 5 2-inches above the floor

Lower the paper towel dispenser so that the paper towels are no more than 48-inches above the floor

$150

40. Public Restroom: The reflect edge of the mirror is located 47-inches above the floor

Lower the mirror so that the reflecting edge is no more than 40-inches from the floor; or install a full-length mirror on the opposite wall that's reflecting edge is no more than 3 5-inches above the floor

$150

41. Public Restroom: The side-grab bar next to the commode is 42-inches from the ground

Lower the top of the grab bar to be no lower than 3 3-inches from the floor and no greater than 36-inches from the floor

$150

42. Public Restroom: The side-grab bar next to the commode extends 49.5-inches from the back wall

Remount the side-grab bar so that the bar extends at least 54-inches from the back wall

$150

43. Public Restroom: The toilet paper dispenser is less than 7-inches from the front of the commode's seat

Provide a single roll of toilet paper no less than 7-inches and no greater than 9-inches from the front of the commode's seat; the toilet paper roll should be at least 15-inches above the floor and at least 1.5-inches under the side-grab bar

$150

44. Public Restroom: The commode's flush handle is located on the commode's wall side

Provide a commode with a flush handle on the non-wall side; when replacing the commode, ensure that the commode's center is no less than 16-inches and no more than 19-inches from the side wall

$150

45. Public Restroom: There is no back grab bar behind the commode

Install a 3 6-inch rear grab bar that is mounted 6-inches from the side wall and that is no less than 3 3-inches and no more than 3 6-inches from the floor

$150

46. Public Restroom: Seat cover dispenser is on the wall behind the commode and is 47-inches from the ground

Remount the seat cover dispenser so that: it is no more than 4 8-inches from the ground; and remount it in an area where there is a 30-inch wide by 48-inch deep area of clear floor space

$150

47. Public Restroom: The feminine hygiene product dispenser is 52-inches from the floor and access is obstructed by a trash can

Relocate the trash can to an area that it does not obstruct access to other amenities and lower the feminine hygiene product dispenser so that its operable parts are no higher than 48-inches from the floor

$150

48. Public Restroom: Tight grasping and twisting is required to operate the feminine hygiene product dispenser

Provide operable parts on the dispenser that do not require tight grasping, pinching or twisting

$25

49. Guest Laundry: The laundry product vending machine projects 10-inches from the wall and the controls project 14-inches from the wall at heights above 27-inches from the floor

Lower the bottom edge of the vending machine to no more than 27-inches from the floor

$150

50. Guest Laundry: The controls to operate the washing machine and/or dryer doors and / or lint screens, detergent and bleach compartments require tight grasping, pinching, and twisting to operate

Provide controls that do no require tight grasping, pinching, and twisting to operate

$1, 500

51. Guest Laundry: The coin slot for the soda vending machine is 52.5-inches from the floor

Provide a vending machine that's operable component is no higher than 48-inches from the floor

$150

52. Room 102: The supply and drain pipes under the in-room sink are exposed and are not insulted

Cover exposed pipes with insulating wrap

$1, 500

53. Room 102: Knee clearance at the sink is 26-inches from the floor

Provide knee clearance of at least 27-inches from the floor with a depth of 8-inches under the sink

$1, 500

54. Room 102: The reflect edge of the mirror is 42-inches from the floor

Lower the mirror's reflecting edge to more than 40-inches from the floor

$150

55. Room 102: The rim of the sink is 34.75-inches above the floor

Provide a sink rim that is no more than 34-inches from the floor

$1, 500

56. Room 102: The towel bar is 58.5-inches from the floor

Lower the towel bar so that it is no more than 48-inches from the floor

$150

57. Room 102: The side-grab bar next to the commode is 14.5-inches from the rear wall

Move the side-grab bar so that it is 12-inches from the rear wall and that the leading edge of the grab bar is 54-inches from the rear wall

$150

58. Room 102: The top side of the side grab bar next to the commode is 39-inches from the ground

Remount the grab bar so that it is 12-inches from the rear wall and so that the top of the grab bar is no less than 3 3-inches and no more than 36-inches above the ground

$150

59. Room 102: There is no grab bar behind the commode

Install a 36-inch rear grab bar that is mounted 6-inches from the side wall and that is no less than 3 3-inches and no more than 36-inches from the floor

$150

60. Room 102: The commode's flush handle is located on the commode's wall side

Provide a commode with a flush handle on the non-wall side

$150

61. Room 102: The center line of the commode is 18.5-inches from the side wall

Ensure that the commode's center is no less than 16-inches and no more than 19-inches from the side wall

$150

62. Room 102: The toilet paper dispenser is less than 7-inches from the front of the commode's seat

Remount the toilet paper dispenser at its current no less than 7-inches and no more than 9-inches away from the front of the commode's seat

$150

63. Room 102: A towel rack is mounted above the commode; is 53-inches from the ground; and is not accessible

Relocate towel rack to an area that has a 30-inch by 48-inch area of clear floor space; the towel rack should be remounted no higher than 48-inches from the floor

$50

64. Room 102: The handheld showerhead is more than 4 8-inches above the ground

Install a vertical slider bar, attach showerhead to the vertical slider bar, and mount the showerhead no higher than 48-inches from the floor

$150

65. Room 102: The shower's on/off control is not non-positive

Install a hand-held showerhead unit that is equipped with a non-positive on/off control

$25

66. Room 102: The threshold to enter the shower is 3-inches above the floor

Install a threshold that is level with the floor within l/4 inches or install a threshold that is level with the floor within l/4 inches beveled at 1:2 max

$250

67. Room 102: The shower's grab bar is 29-inches above the floor

Remount the shower's grab bar so that the top of the grab bar is at least 33-inches and no more than 36-inches above the floor

$150

68. Room 102: The shower does not have a side grab bar on the control wall

Mount a horizontal grab bar on the shower's control wall. The top of the grab bar must be at least 33-inches and no more than 36-inches from the floor. There are to be no obstructions within

$500

69. Room 102: The towel bar is 55.5-inches above the floor

Remount the towel bar so that it is at most 4 8-inches above the floor

$150

70. Room 102: The bathroom sink's supply and drain lines are exposed and are not wrapped with insulation

Cover exposed pipes with insulating wrap

$1, 500

71. Room 102: The doorknob on the bathroom door is not accessible

Remove existing doorknob and replace with accessible lever type doorknob on both sides of the door

$25

72. Room 102: The doorknob on the closet door is not accessible

Remove existing doorknob and replace with accessible lever type doorknob on both sides of the door

$25

73. Room 102: The closet's hanger bar is 63-inches from the ground and the closet's shelf is 65-inches from the ground

Lower both the hanger bar and the shelf to be no more than 48-inches from the floor

$25

74. Room 102: The iron is mounted at 56-inches above the floor

Remount the iron's holder so that it is no more than 48-inches from the floor

$150

75. Room 102: The clearance width between the bed and the windows is 27-inches

Move the bed so that it abuts another wall in the room so that there can be 30-inches of clear space on either side of the bed

$0

76. Room 102: The thermostat is located 56-inches from the floor

Lower the thermostat so that the operable controls are no higher than 48-inches from the floor

$25

77. Room 102: The room's desk has a knee clearance of 24-inches

Provide a desk with knee clearance of at least 27-inches, a width of 30-inches, and a depth of 19-inches

$150

78. Room 102: The room's lamp is not accessible as a char obstructs the required clear floor space. Also, the amp's controls are greater than 48-inches from the floor

Relocate the lamp so that there is floor clearance around the lamp of at least a width of 30-inches and a depth of 48-inches. And provide a lamp that's operable parts are no more than 48-inches from the floor

$25

79. Room 102: The lower peephole on the room's door is located 52.5-inches from the floor

Provide a lower peephole at 43-inches from the floor

$50

80. Overall Accessible Room Disbursement: Of the hotel's 46 rooms, only on (1) room has accessible mobility features

Modify the non-compliant features in the handicap accessible room (Room 102), and provide an additional handicap accessible room that has a bathtub and that is in compliance with the ADA

$5, 000

81. Overall Accessible Room Disbursement: Of the hotel's 46 rooms, there are no rooms that have communication features for hearing impaired individuals

Provide four (4) rooms that communication features; at least one of the rooms must be mobility accessible

$2, 500

82. Overall Accessible Room Disbursement: Of the hotel's 46 rooms, there no rooms that are both mobility accessible and have communication features

Provide at least one (1) room that has communication features and is mobility accessible

N/A

83. Overall Accessible Room Disbursement: Of the hotel's 46 rooms, there is only one (1) room that has accessible mobility features

Disperse the mobility accessible guest rooms among the various classes of sleeping accommodations that are available to guests without disabilities.

N/A

84.[3] Findings without an Area Description: Certain, unspecified, doorknobs are not handicap accessible

"N/A"

$25

85. Findings without an Area Description: The maneuvering space on the pull side of a certain unspecified interior door extends beyond the latch side of the door

"N/A"

$25

(See generally Mortland Report; Estimates Report [ECF No. 19-9]). Mortland submits that, in total, the proposed modifications would cost $68, 475. (Estimates Report at 6).

         C. Defendant's Financial Resources

         Plaintiff has attached four years' worth of Defendant's federal tax returns to his Memorandum in Support for his Motion for Summary Judgment. (See 2014 Def. Tax Return [ECF No. 19-10];2015 Def. Tax Return [ECF No. 19-11]; 2016 Def. Tax Return [ECF No. 19-12];2017 Def. Tax Return [ECF No. 19-13]). Plaintiff submits that the tax returns demonstrate that the Defendant "has made hundreds of thousands of dollars of net income." (Pl. Br. in Supp. at 18). Defendant's 2014 Tax Return shows that its net rental estate income was $118, 407 for tax year 2014. (2014 Def. Tax Return at p. 7, line 21). In tax year 2015, Defendant's net rental income was $99, 701. (2015 Def. Tax Return at p. 7, line 21). Defendant's ordinary business income for tax year 2016 was $198, 364. (2016 Def. Tax Return at p. 1, line 21). And in tax year 2017, Defendant's ordinary business income was $73, 200. (2017 Def. Tax Return at p. 1, line 21; see also Kumar Aff ¶ 8 [ECF No. 26-1, Ex. B]).[4]

         Defendant submits that the Quality Inn has no employees apart from Naresh Kumar ("Mr, Kumar"), the managing member of Defendant; Mr. Kumar's wife, Ms. Kumari; and one of the couple's sons. (Kumar Aff. ¶¶ 2, 7-8). And that there are no more employees as Defendant cannot afford to pay employees. (Id. ¶ 7). And while Mr. Kumar agrees that Quality Inn's ordinary business income for tax year 2017 was $73, 200, he submits:

This amount was paid to me, my wife, and son. We covered all three shifts at [the] front desk, my wife and I did most of the house keeping and maintenance as well. In other words, for working more than a total of 8, 760 hours (24 hours a day, 7 days a week, and 365 days a year), the three of us received a total of $73, 200, which is barely minimum wage. There was no money left over.

(Id. ¶ 8). Further, Mr. Kumar states that, when the hotel was purchased it was valued at $ 1, 950, 000, but that it has decreased in value and is presently worth only $1, 303, 400. (Id. ¶ 6). Mr. Kumar submits that Defendant has mortgages totaling over $4, 000, 000, which makes the hotel difficult to sell as the property is worth approximately $1, 303, 400. (Id. ¶ 10). Finally, Mr. Kumar asserts:

Divya Jyoti has outstanding tax liabilities to the IRS of approximately $45, 000, outstanding real estate taxes in excess of $110, 000, and outstanding unpaid franchise fees of $24, 000.
The hotel business does not have any funds to remove the alleged "architectural barriers" as alleged in Plaintiffs complaint,

(Id. ¶¶ 11-12).

         D. Procedural History

         Aforementioned, Plaintiff filed suit on August 27, 2018, alleging Defendant violated Title III of the ADA. (See generally Compl.). Plaintiff filed a Motion for Summary Judgment on April 9, 2019, asserting that judgment as a matter of law in his favor is proper as there remains no genuine issue of material fact. (See generally Pl. Mot. for Summ. J. [ECF No. 18]; see also Pl. Br. in Supp. [ECF No. 19]). Defendant opposes summary judgment, asserting: 1) Plaintiff lacks standing; and 2) there is a genuine issue of material fact as to at least one essential element of Plaintiffs claim. (See generally Def. Opp'n [ECF No. 26]). Plaintiffs Motion for Summary Judgment is now ripe for review.

         II.

         Summary judgment is proper when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). On a motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists, and the evidence, together with all inferences that can permissibly be drawn therefrom, must be read in the light most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         There is a genuine issue of material facts if the non-moving party can present "significant probative evidence" to show that "there is [more than] some metaphysical doubt as to the material facts." Moore v. Philip Morris Cos., 8 F.3d 335, 339-40 (6th Cir. 1993). Put differently, there is a genuine issue of material fact if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); see also Zenith, 475 U.S. at 587 (concluding that summary judgment is proper when the evidence could not lead the trier of fact to find for the non-moving party).

         III.

         Plaintiffs sole cause of action in the case at bar alleges that Defendant violated Title III of the ADA. The ADA was enacted "to remedy widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). The relevant section of the ADA provides: "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." 42U.S.C. § 12182(a).

         Plaintiff submits that there remains no genuine issue of material fact as to his claim that Defendant violated Title III of the ADA and, as such, summary judgment in favor of Plaintiff is proper, (See generally Pl. Br. in Supp.). Defendant disagrees for three general reasons. First, Defendants submits that Plaintiff lacks the requisite standing to bring the present action.[5] (Def. Opp'n at 5-9). Second, Defendant challenges whether Plaintiffs expert, Mortland, is qualified under Rule 702. (See Id. at 11-12). And third, Defendant avers that reasonable jurors could disagree as to whether Plaintiff has established all elements of his case. (Id. at 10-15). The Court will address each argument in turn.

         A. Standing

         Under Article III of the United States Constitution, federal courts are permitted to hear only actual cases and controversies. See U.S. Const, art. Ill. § 2; see also Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017). "Standing is a threshold inquiry in every federal case and it involves an inquiry into whether 'a plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction to justify exercise of the court's remedial powers on his behalf" MX Grp., Inc. v. City of Covington, 293 F.3d 326, 332 (6th Cir. 2002) (quoting Worth v. Seldin, 422 U.S. 490, 498 (1975)). Thus, "[w]hether a plaintiff has standing to sue is 'determined as of the time the complaint is filed.'" Sullivan v. Benningfleld, 920 F.3d 401, 407 (6th Cir. 2019) (quoting Cleveland Branch, N.A.A.C.P. v. City of Parma, 263 F.3d 513, 524 (6th Cir. 2001)). However, each element of standing "must be supported ... with the manner and degree of evidence required at the successive stages of the litigation." Lujan, 504 U.S. at 561. Therefore, "to support standing at the summary judgment stage a plaintiff must only 'set forth by affidavit or other evidence specific facts [sufficient to establish standing, ] which for the purposes of summary judgment motion will be taken as true.'" Am. Civil Liberties Union of Ohio Found, Inc. v. DeWeese, 633 F.3d 424, 430 n.2 (6th Cir. 2011) (quoting Lujan, 504 U.S. at 561).

         "To establish standing under Article III, a plaintiff must show '(1) an injury in fact, (2) a sufficient causal connection between the injury and the conduct complained of, and (3) a likel[ihood] that the injury will be redressed by a favorable decision.'" Sullivan, 920 F.3d at 407 (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014)) (change in original); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). These three requirements are the "irreducible minimum required by the Constitution." Ne. Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 664 (1993) (internal quotations omitted).

         Additionally, '" [i]n the context of claims for injunctive or declaratory relief,' the threatened injury in fact must be 'concrete and particularized,' as well as 'actual and imminent, not conjectural or hypothetical[.]" Sullivan, 920 F.3d at 407-08 (quoting Sumpter v. Wayne Cty., 868 F.3d 473, 491 (6th Cir. 2017)). In ADA cases, a plaintiff must show a "threat of future injury" by demonstrating an "intent to return to the noncompliant accommodation" or "that he would return, but is deterred from visiting the noncompliant accommodation because of the alleged accessibility barriers." Gaylord v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 580 (6th Cir. 2014).

         Whether an individual has Article III standing is a question of law to be decided by the Court, not the finder of fact. See e.g., Fieger v. Mich. Sup. Ct, 553 F.3d 955, 961 (6th Cir. 2009) (citing United Steelworkers of Am. v. Cooper Tire & Rubber Co., 474 F.3d 271, 277 (6th Cir. 2007)) ("Whether a party has standing is a question of law that we review de novo.").

         The parties appear to dispute only the first prong of the standing analysis. (See Def. Opp'n at 6-9).[6] As such, the Court will focus solely on whether Plaintiff has sufficiently established that he suffered an injury in fact.

         Under Title III of the ADA, a private citizen can only seek injunctive relief. See 42 U.S.C. § 12188(a)(2). Thus, "[i]n order to demonstrate [the first] element, an individual who, .. seeks only injunctive relief, must 'show that he is under threat of suffering [an] injury in fact.'" Gaylor v. Hamilton Crossing CMBS, 582 Fed.Appx. 576, 579 (6th Cir. 2014) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). Further, "[t]he 'threat' of a prospective injury must be real and immediate and not premised upon the existence of past injuries alone." Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95, 102-03 (1983); Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).

         Plaintiffs avers:

Plaintiff has previously visited Defendant's property. Plaintiff pled and states that he has planned and still plans to return to stay as a guest at Defendant's property on his return to the Dublin area if the Defendant's hotel is made fully accessible to a disabled person in a wheelchair.... Plaintiff has standing to seek injunctive relief against Defendant; Plaintiff has provided a specific plan or timeframe on when he will return if proper remediations are made. A disabled patron, who has been previously denied access to a public accommodation, need not be required to plan and schedule a return trip when that person knows remediations have not been made and that he will be discriminated again. The potential of real harm continues until the property remedies these problems consistent with the law.
Once Plaintiff visited the property and was subjected to the discrimination there, he suffered a concrete and particularized injury that is actual and imminent until the property is ADA compliant. It would be an exercise in futility for Plaintiff to regularly visit the property only to be continually subjected to the harm in order to "realize" the injury sufficient for standing. Additionally, it would be a waste of judicial economy to require an ADA plaintiff to provide a declaration to indicate only that he or she wishes to visit the property in the future when that same plaintiff was already subjected to discrimination during a previous visit. If a plaintiff visits a property once and is subjected to discrimination in violation of the ADA, a Court can conclude that the ...

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