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Brito v. JP Antlers, LLC

United States District Court, D. Colorado

January 8, 2018

CARLOS G BRITO, Plaintiff,
v.
JP ANTLERS LLC, a Colorado limited liability company, and WYNDHAM HOTELS AND RESORTS, LLC, a Delaware corporation; a Wyndham Hotel d/b/a The Antlers, Defendants.

          ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motions to Dismiss Plaintiff's Complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. ## 13, 22.) For the reasons discussed herein, the Court denies the Motions.

         I. BACKGROUND

         Plaintiff Carlos G. Brito is paraplegic and requires the use of a wheelchair to ambulate. (Doc. # 1 at ¶ 12.) Defendants JP Antlers, LLC and Wyndham Hotels and Resorts, LLC (“Defendants, ” collectively) own and operate a hotel, located at 4 S. Cascade Avenue, Colorado Springs, Colorado 80203 (“Premises”). (Doc. # 1 at ¶¶ 5- 8.) On August 14, 2017, Plaintiff commenced this suit seeking injunctive relief under Title III of the Americans with Disabilities Act (“ADA”), after encountering “multiple violations of the ADA that directly affected his ability to use and enjoy” the Premises “on or about April 24-25, 2017.” (Doc. # 1 at ¶ 13.) Plaintiff contends he lives near the Premises, has frequented the area for “pleasure purposes, ” and intends to return within four months from the date of filing his Complaint. (Doc. # 1 at ¶ 15.)

         On October 12 and November 8, 2017, Defendants moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Doc. ## 13, 22[1].) Defendants argue for dismissal because, they allege, Plaintiff failed to exhaust his administrative remedies and lacks standing. The Court addresses each argument in turn.

         II. ADMINISTRATIVE EXHAUSTION UNDER TITLE III

         Defendants argue the Court lacks subject-matter jurisdiction because Plaintiff failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 12188, which, Defendants contend, requires Plaintiff to give notice of the alleged violations to the Colorado Civil Rights Coalition (“CCRC”) thirty days before filing his Complaint. Plaintiff's failure to give notice is uncontested.

         Title III of the ADA provides that “[t]he remedies and procedures set forth in section 2000a-3(a) of this title are the remedies and procedures this subchapter provides to any person who is being subjected to discrimination on the basis of disability.” 42 U.S.C. § 12188(a)(1). In turn, 42 U.S.C. § 2000a-3(a) provides that an aggrieved individual may bring “a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order.” § 2000a-(3)(a). Defendants propose that, although not expressly referenced in § 12188(a)(1), Title III plaintiffs are also subject to the notice requirement in § 2000a-3(c), which provides:

[N]o civil action may be brought under subsection (a) of [§ 2000a-3] before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority by registered mail or in person, provided that the court may stay proceedings in such civil action pending the termination of State or local enforcement proceedings.

42 U.S.C. § 2000a-3(c).

         Courts are split on whether § 2880a-3(c) is incorporated into Title III by way of § 12188(a)(1), i.e. whether notice is required before filing suit under Title III. Some courts have held that pre-suit notice is not required. See, e.g., Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000); Iverson v. Comsage, Inc., 132 F.Supp.2d 52 (D. Mass. 2001); Disabled in Action of Metro. New York v. Trump Int'l Hotel & Tower, No. 01-cv-5518, 2003 WL 1751785 (S.D.N.Y. Apr. 2, 2003); Love v. Omni Netherland Plaza Hotel, No. 1-00-700, 2001 WL 1842450 (S.D. Ohio May 10, 2001); Zimmerman v. GJS Grp., Inc., No. 2-17-cv-00304, 2017 WL 4560136 (D. Nev. Oct. 11, 2017). Other courts have held otherwise-that pre-suit notice is required under Title III. See, e.g., Spicer v. Auraria Campus Bookstore, No. 12-cv-00245, 2012 U.S. Dist. LEXIS 28295, at *4 (D. Colo. Mar. 5, 2012); Tanner v. Wal-Mart Stores, Inc., No. 99-44-JD, 2000 WL 620425 (D.N.H. Feb. 8, 2000); Snyder v. San Diego Flowers, 21 F.Supp.2d 1207, 1208-11 (S.D. Cal. 1998); Mayes v. Allison, 983 F.Supp. 923, 924-25 (D. Nev. 1997). Indeed, courts in this District are divided. Compare Howard v. Cherry Hills Cutters, Inc., 935 F.Supp. 1148, 1150 (D. Colo. 1996) (Howard I) (notice required under Title III); Howard v. Cherry Hills Cutters, Incorporated, 979 F.Supp. 1307, 1308-09 (D. Colo. 1997) (Howard II) (affirming Howard I); Lillard v. Sunflower Farmers Mkt., Inc., No. 12-cv-1497-JLK, 2012 WL 5936543 (D. Colo. Nov. 27, 2012) (notice required under Title III); Jones v. Reg'l Transp. Dist., No. 10-cv-01535-JLK, 2010 WL 3341205 (D. Colo. Aug. 23, 2010) (same) with Mize v. Kai, Inc., No. 17-cv-00915-NYW, 2017 WL 5195203 (D. Colo. Nov. 9, 2017) (notice not required); Abreu v. Tavin Food, Inc., No. 16-cv-00432-MEH (D. Colo. Nov. 14, 2016) (same); Frederick v. Coffee House Holdings, Inc., No. 17-cv-00409-MEH, 2017 U.S. Dist. LEXIS 75857, at 13 (D. Colo. May 11, 2017) (same). The Tenth Circuit has not yet addressed the issue.[2]

         In support of its argument that notice is required, Defendants rely on a series of cases decided by the Honorable John L. Kane. First, in Howard I, Senior Judge Kane held, “By making § 2000a-3 applicable to enforcement actions under 42 U.S.C. § 12188, Congress has imposed a state law exhaustion requirement on disabled individuals seeking to enforce their rights under Subchapter III of the ADA.” 935 F.Supp. at 1150. Judge Kane affirmed this holding in Howard II, and further explained his reasoning in Lillard, 2012 WL 5936543, wherein he concluded that the plain language of 42 U.S.C. § 12188 compels this construction. He explained:

42 U.S.C. § 12188(a)(1) states, ‘the remedies and procedures set forth in . . . 42 U.S.C. 2000a-3(a) are the remedies and procedures of this title.' (emphasis added). Section 2000a-3(a) sets forth the remedies and authorizes aggrieved parties to commence a civil action for injunctive relief. Section 2000a-3(c) sets forth the procedure for commencing a civil action and imposes a pre-suit notice requirement on claims for relief under § 2000a-3.
If Congress intended only to incorporate the . . . remedies, and not the procedures, it would have excluded the word ‘procedures' from 42 U.S.C. § 12188(a)(1). Accordingly, §2000a-3(a) is, in turn, limited by ...

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