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Brooke v. A-Ventures LLC

United States District Court, D. Arizona

November 21, 2017

THERESA BROOKE, a married woman dealing with her sole and separate claim, Plaintiff,
A-VENTURES, LLC, a Colorado limited liability company, d/b/a, Defendant.


          H. Russel Holland United States District Judge

         Plaintiff moves for default judgment.[1] This motion is opposed.[2] Oral argument was requested but is not deemed necessary.


         Plaintiff Theresa Brooke is “a disabled woman confined to a wheelchair” who requires an ADA-accessible room when she travels.[3] Defendant A-Ventures, LLC owns/operates the Boulder Adventure Lodge in Boulder, Colorado.[4] Defendant maintains a website for the hotel at www.a-lodge com.[5]

         Plaintiff 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.”[6] Plaintiff thus alleges that defendant has violated 28 C.F.R. § 36.302(e)(1)(i), which requires that

[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 accessible rooms[.]

         On 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).[7] 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[, ]”[8] 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 issue here.

         In her 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.

         On September 20, 2017, plaintiff applied for entry of default.[9] On September 21, 2017, the clerk of court entered default against defendant.[10]

         Plaintiff now moves for entry of default judgment against defendant.


         “Federal 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 Cir. 1999)).

         First, 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).

         Defendant 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.”[11]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.[12] Defendant's hotel has 29 rooms.[13]

         The 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.

         Defendant 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).

         Defendant 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.[14]

         However, “‘[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).

         Defendant 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.”[15] 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.”[16] 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.”[17]

         Firestone's 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, [18] as could its new internal policy.

         This 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 future.

Id. at *14 (internal citations omitted).

         Similarly 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.

         Turning 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. 1986).

         Based 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 achievable.
3) The sum of money at stake here (plaintiff's request for $8, 260 in fees and costs) is not unreasonable in ...

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