United States District Court, D. Arizona
THERESA BROOKE, a married woman dealing with her sole and separate claim, Plaintiff,
A-VENTURES, LLC, a Colorado limited liability company, d/b/a www.a-lodge.com, Defendant.
ORDER MOTION FOR DEFAULT JUDGMENT
Russel Holland United States District Judge
moves for default judgment. This motion is
opposed. Oral argument was requested but is not
Theresa Brooke is “a disabled woman confined to a
wheelchair” who requires an ADA-accessible room when
she travels. Defendant A-Ventures, LLC owns/operates
the Boulder Adventure Lodge in Boulder,
Colorado. Defendant maintains a website for the
hotel at www.a-lodge com.
alleges that she went to defendant's website for the
purpose of booking a room but was unable to book an
ADA-accessible room for her selected dates as well as for
“a few different dates farther
out.” Plaintiff thus alleges that defendant has
violated 28 C.F.R. § 36.302(e)(1)(i), which requires
[a] public accommodation that owns ... or operates a place of
lodging shall, with respect to reservations made by any
means, including by telephone, in-person, or through a third
party ... [m]odify its policies, practices, or procedures to
ensure that individuals with disabilities can make
reservations for accessible guest rooms during the same hours
and in the same manner as individuals who do not need
August 24, 2017, plaintiff commenced this action in which she
asserts a single cause of action under Title III of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. §§ 12181-12189. Plaintiff expressly alleges
that defendant violated Title III of the ADA because
defendant was not complying with 28 C.F.R. §
36.302(e)(1)(i). Although defendant believes that plaintiff
has also alleged that its website “did not identify and
describe the accessible features of the lodge in enough
detail to reasonably permit Mrs. Brooke to assess independ-
ently whether A-Ventures met her accessibility needs[,
]” nowhere in plaintiff's complaint does
she make any such allegations. Plaintiff's claim is based
only on her inability to book an ADA-accessible room on
defendant's website. Her claim is not based on
allegations that defendant had failed to “[i]dentify
and describe the accessible features” in its guest
rooms “in enough detail to reasonably permit
individuals with disabilities to assess independently whether
a given hotel or guest room meets his or her accessibility
needs[.]” 28 C.F.R. § 36.302(e)(1)(ii). In other
words, plaintiff's claim is based solely on 28 C.F.R.
§ 36.302(e)(1)(i) and whether or not defendant has
complied with 28 C.F.R. § 36.302(e)(1)(ii) is not at
complaint, plaintiff seeks a declaration that defendant
violated Title III of the ADA because its website did not
comply with 28 C.F.R. § 36.302(e)(1)(i), injunctive
relief ordering defendant to modify its website to allow for
the reservation of ADA-accessible rooms, closure of
defendant's website until defendant has complied with the
ADA, attorney's fees, costs, and whatever other relief
the court deems just and appropriate.
September 20, 2017, plaintiff applied for entry of
default. On September 21, 2017, the clerk of court
entered default against defendant.
now moves for entry of default judgment against defendant.
Rule of Civil Procedure 55(b)(2) permits a court, following
default by a defendant, to enter default judgment in a
case.” Craigslist, Inc. v. Naturemarket, Inc.,
694 F.Supp.2d 1039, 1051 (N.D. Cal. 2010). “When
considering whether to enter a default judgment, a court has
‘an affirmative duty to look into its jurisdiction over
both the subject matter and the parties.'”
Golden Scorpio Corp. v. Steel Horse Saloon I, Case
No. CV-08-1781-PHX-GMS, 2009 WL 976598, at *3 (D. Ariz. April
9, 2009) (quoting In re Tuli, 172 F.3d 707, 712 (9th
defendant seems to suggest that plaintiff does not have
standing to bring her Title III ADA claim. “Standing is
an essential element of a federal court's subject matter
jurisdiction.” Byler v. Deluxe Corp., 222
F.Supp.3d 885, 893 (S.D. Cal. 2016). “To establish
standing under the ADA, plaintiff must demonstrate that
[she has] suffered an injury in fact, that the injury is
traceable to the challenged action of the [d]efendant and
that the injury can be redressed by a favorable
decision.” Hubbard v. Rite Aid Corp., 433
F.Supp.2d 1150, 1162 (S.D. Cal. 2006).
argues that plaintiff has suffered no injury in fact because
she could have never stayed at defendant's hotel. In her
complaint, plaintiff alleges that she “cannot lodge at
a hotel or inn without the commonly-acceptable features of an
ADA-accessible room such as a roll-in shower, grab bars
surrounding the toilet, shower transfer chairs, wider
entry-ways to accommodate [p]laintiff's wheelchair, and
other commonly-accepted ADA features.”However,
defendant's hotel does not have roll-in showers nor is it
required to do so under the ADA. Hotels with fewer than 50
rooms are not required to have roll-in showers in any of
their ADA-accessible rooms. Defendant's hotel has 29
fact that defendant's hotel is not required to provide
roll-in showers does not mean that plaintiff has not alleged
an injury in fact. Plaintiff did not allege that she must
have a roll-in shower in order to stay at a hotel. Rather,
she alleged that a roll-in shower was one of the
features commonly found in an ADA-accessible room and that
she must reserve an ADA-accessible room. Here, the essence of
plaintiff's claim is that she suffered in injury in fact
because she was unable to reserve an ADA-accessible room on
defendant's website. Plaintiff has adequately alleged
that she has standing to pursue a Title III ADA claim for
declaratory and injunctive relief.
next argues that this court no longer has subject matter
jurisdiction because this case is moot. “‘A case
becomes moot-and therefore no longer a Case or Controversy
for purposes of Article III-when the issues presented are no
longer live or the parties lack a legally cognizable interest
in the outcome.'” Rosebrock v. Mathis, 745
F.3d 963, 971 (9th Cir. 2014) (quoting Already, LLC v.
Nike, Inc., 133 S.Ct. 721, 726 (2013)). “Because a
private plaintiff can sue only for injunctive relief (i.e.,
for removal of the barrier) under the ADA, a defendant's
voluntary removal of alleged barriers prior to trial can have
the effect of mooting a plaintiff's ADA claim.”
Oliver v. Ralphs Grocery Co., 654 F.3d 903, 905 (9th
Cir. 2011) (internal citations omitted).
argues that this case is moot because it is now fully
compliant with 28 C.F.R. § 36.302(e)(1)(i). In support
of this argument, defendant offers screenshots from its
website which show that a guest can now book an ADA Queen
room on the website.
“‘[t]he voluntary cessation of challenged conduct
does not ordinarily render a case moot because a dismissal
for mootness would permit a resumption of the challenged
conduct as soon as the case is dismissed.'”
Rosebrock, 745 F.3d at 971 (quoting Knox v.
Serv. Emps. Int'l Union, Local 1000, 132 S.Ct. 2277,
2287 (2012)). “But voluntary cessation can yield
mootness if a ‘stringent' standard is met: ‘A
case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.'” Id.
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
“The party asserting mootness bears a ‘heavy
burden' in meeting this standard.” Id.
(quoting Friends of the Earth, 528 U.S. at 189).
argues that it can meet this heavy burden. Defendant contends
that it has no intention of undoing the changes it has made
to its website. In support of this contention, defendant
offers the declaration of Asa Firestone, the managing partner
of defendant. Firestone avers that he can “state with
absolute certainty that the updates made to A-Lodge's
website are permanent - they will not be removed at any time.
I personally oversee the content of the website; substantive
changes cannot be made without my
approval.” As further evidence that defendant will
not fall out of compliance, Firestone avers that he
“enacted a new company policy ... regarding the
reservation process for accessible guest
rooms.” That policy provides that “A-Lodge
will ensure that individuals with disabilities can make
reservations for accessible guest rooms online, over the
telephone or in person during the same hours as individuals
who do not need accessible rooms.”
declaration is not sufficient to show that defendant's
violation of 28 C.F.R. § 36.302(e)(1)(i) will not happen
again. A change to a website is akin to a change in policy,
which courts have found are not sufficient to meet the
stringent standard for proving a case has been mooted by a
defendant's voluntary conduct if the policy “could
be easily abandoned or altered in the future.” Bell
v. City of Boise, 709 F.3d 890, 901 (9th Cir. 2013).
Defendant's website could easily be abandoned or changed
in the future,  as could its new internal policy.
case is comparable to Reyes v. Educational Credit
Management Corporation, - F.R.D. -, 2017 WL 4169720
(S.D. Cal. 2017). There, Reyes brought a class action against
ECMC “alleging violations of California's Invasion
of Privacy Act....” Id. at *1. Reyes'
claims arose out of ECMC's “internal policy of
recording all inbound and outbound calls that reach a live
customer service representative using” the Noble Phone
System. Id. It was undisputed that the Noble Phone
System was incorrectly programmed for thirteen phone lines
during the relevant time period such that the caller was not
notified that his phone call was being recorded. Id.
ECMC argued that Reyes' claim for injunctive relief was
moot because it had corrected the error in the programming
and “adopted a written procedure to attempt to avoid
this type of conduct in the future.” Id. at
*13. The court rejected ECMC's argument, explaining that
[t]he correction of the error alone is unconvincing-it is not
implausible that the settings on the Noble Phone System that
led to this lawsuit could be again incorrectly programmed in
[the] future. For example, a software or hardware update
could require the Noble Phone System's settings to be
reconfigured, and the same mistake could be made, as it was
made previously for thirteen separate phone lines.
The same is true for ECMC's new written policy. ...
Committing [a] policy to writing may be an improvement, but
this change does not demonstrate it is absolutely clear that
the allegedly wrongful behavior could not reasonably be
expected to recur. The company similarly does not show this
policy could not be easily abandoned or altered in the
Id. at *14 (internal citations omitted).
here, all defendant has done is change its website and adopt
a new internal policy, both of which could easily be changed
in the future. Defendant has not met its heavy burden of
showing that it is absolutely clear that its wrongful
behavior could not reasonably be expected to recur. This case
is not moot.
then to the merits of plaintiff's motion for default
judgment, “[t]he district court's decision whether
to enter a default judgment is a discretionary one.”
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
1980). Factors the court considers
in exercising discretion as to the entry of a default
judgment include: (1) the possibility of prejudice to the
plaintiff, (2) the merits of plaintiff's substantive
claim, (3) the sufficiency of the complaint, (4) the sum of
money at stake in the action; (5) the possibility of a
dispute concerning material facts; (6) whether the default
was due to excusable neglect, and (7) the strong policy
underlying the Federal Rules of Civil Procedure favoring
decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
upon the parties' arguments as to the Eitel
factors and the procedural status of this case -
defendant's default, the court finds:
1) If a default judgment is not entered, plaintiff
“will likely be without other recourse for
recovery” because defendant has declined to respond to
her complaint. PepsiCo, Inc. v. California Security
Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002).
2) Plaintiff is disabled within the meaning of the ADA;
defendant owns or operates a place of public accommodations;
plaintiff was denied public accommodation by defendant
because she was not able to book an ADA-accessible room in
the same manner as a person could book a non-ADA-accessible
room; and allowing plaintiff equal access would be readily
3) The sum of money at stake here (plaintiff's request
for $8, 260 in fees and costs) is not unreasonable in