United States District Court, W.D. Wisconsin
BRITTANY M. COLON, Plaintiff,
AMERICAS BEST VALUE INN, Defendant.
ORDER AND ENTRY OF DEFAULT JUDGMENT
WILLIAM M. CONLEY DISTRICT JUDGE
an in-person hearing on plaintiff's motion for default
judgment (dkt. #8) and plaintiff's submission of
additional materials after that hearing (dkt. ##13-17), the
court will now enter judgment granting permanent injunctive
relief and awarding plaintiff $4, 415 in attorneys' fees
and costs consistent with the findings and conclusions set
Brittany Colon filed this action against defendant Americas
Best Value Inn, located at 2504 Wisconsin Dells Parkway in
Wisconsin Dells, Wisconsin, alleging that defendant violated
the Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12181 et seq., by failing to make its
swimming pools accessible to her disabled son. The clerk of
court entered default against defendant on July 5, 2017,
after defendant failed to answer or otherwise appear in this
lawsuit. (Dkt. #6.)
19, 2017, plaintiff filed her motion for default judgment,
along with a certificate of service affirming that her
counsel mailed the motion and supporting materials to
defendant's address that same day. The court held an
in-person hearing on plaintiff's motion for default
judgment on August 2, 2017, at which plaintiff appeared by
counsel and defendant again failed to appear.
response to the court's order following that hearing
(dkt. #12), plaintiff filed a short brief and supporting
affidavits to establish standing, a revised proposed judgment
and an amended request for fees and costs, as well as a
certificate of service confirming mailing of those materials
to defendant's address. In that same order, the court
permitted defendant fourteen days from receipt of
plaintiff's supplemental materials to file and serve a
response. To date, defendant has yet to file any response or
court accepts the basic facts as pled in plaintiff's
complaint in light of defendant's default. See
Domanus v. Lewicki, 742 F.3d 290, 303 (7th Cir. 2014)
(upon default judgment, “allegations in the complaint
relating to liability are true”). Combined with the
submissions by plaintiff during and after the hearing on
August 2nd, the court also finds that no further hearing is
necessary and makes the following findings of fact and
conclusions of law:
1. Plaintiff's son is physically disabled due to a birth
condition and requires ADA-compliant pool entries to swim.
2. On or around April 11, 2017, plaintiff Brittany Colon
called defendant Americas Best Value Inn when attempting to
plan another vacation to Wisconsin Dells, where she and her
son have visited approximately once a year over the past five
years and intend to continue visiting. The individual with
whom she spoke informed her that the hotel's pools did
not have a pool lift or sloped entrances and that defendant
did not intend to purchase a pool lift.
3. On or around April 15, 2017 (at the time a “legal
clerk” and not yet a licensed attorney),
plaintiff's counsel visited defendant's hotel and
personally observed that its pools did not have ADA-compliant
4. Though not clear-cut under existing case law, since there
appears to be no binding precedent regarding whether Article
III standing is conferred for purposes of Title III of the
ADA, when a plaintiff personally calls a defendant to
determine that its public accommodations are not accessible
to her and confirms that inaccessibility through an agent who
then personally visits the premises, the Seventh Circuit has
at least implicitly endorsed finding standing even though an
ADA plaintiff does not actually visit the defendant's
premises herself. See Scherr v. Marriott Int'l.
Inc., 703 F.3d 1069, 1075 (7th Cir. 2013) (basing
dismissal of 56 hotels not on the plaintiff's
failure to actually visit them, but rather on her failure to
show any intent to visit them); Scherr v.
Marriott Int'l, Inc., 833 F.Supp.2d 945, 955 (N.D.
Ill. 2011) (same); see also Steger v. Franco, 228
F.3d 889, 892 (8th Cir. 2000) (“Although [ADA]
plaintiffs need not engage in the ‘futile gesture'
of visiting a building containing known barriers that the
owner has no intention of remedying, see 42 U.S.C.
§ 12188(a)(1), they must at least prove knowledge of the
barriers and that they would like to visit the building in
the imminent future but for those barriers.”).
5. To be sure, district courts outside of this circuit have
dismissed ADA claims for lack of standing when a plaintiff
relied on the “call and confirm method” rather
than actually visiting the defendant's premises, see
Brooke v. Capitol Regency LLC, No.
2:16-cv-02070-JAM-FEB, 2017 WL 2165866, at *2-3 (E.D. Cal.
May 17, 2017) (collecting cases), but in light of the Seventh
Circuit's decision in Scherr, and consistent
with the broad, remedial purposes of the ADA, the court finds
that plaintiff here has standing. See Scherr, 833
F.Supp.2d at 951 n.4 (courts may “look to the rights
conferred by the ADA in assessing” standing); see
also DeBoard v. Comfort Inn, No. 1:13-cv-00508-RLY-MJD,
2013 WL 5592418 (S.D. Ind. Oct. 9, 2013) (relying on
Scherr in finding standing based on plaintiff's
allegation of “actual knowledge” that the
defendant hotel did not have a pool lift).
5. Defendant, as a place of public accommodation, has
discriminated against plaintiff in violation of the ADA, 42
U.S.C. § 12182(b)(2)(A)(iv), by lacking ADA-compliant
pool entries, see www.ada.gov/pools2010.htm, and so
plaintiff is entitled to ...