Scherr v. Marriott International, Inc. ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-3833
M ARJORIE F RIEDMAN S CHERR,
Plaintiff-Appellant,
v.
M ARRIOTT INTERNATIONAL, INC., et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 10 CV 07384—Charles R. Norgle, Judge.
A RGUED S EPTEMBER 5, 2012—D ECIDED JANUARY 7, 2013
Before B AUER, M ANION, and T INDER, Circuit Judges.
M ANION, Circuit Judge. Marjorie Friedman Scherr, an
elderly woman who required the use of a walker, booked
a room at the Courtyard Marriott Hotel in Overland
Park, Kansas, in March 2006. She requested a room that
complied with the Americans With Disabilities Act
(“ADA”). The hotel had recently undergone a renovation
and had installed spring-hinged door closers on the
bathroom doors of some of its rooms, including the ADA-
2 No. 11-3833
compliant room assigned to Scherr. The spring hinge
closes the door automatically when a person lets go of
the door. While attempting to exit her bathroom, the
door, which she had pushed open and then released to
use her walker, quickly slammed shut on her, striking
her and knocking her down. As a result, she underwent
surgery for a broken wrist and an injured hip.
She later brought a personal injury action against the
hotel, which settled in December 2010. Just prior to that
settlement, however, Scherr brought a suit under Title III
of the ADA seeking injunctive relief against the
Overland Park Courtyard Marriott and fifty-six other
Courtyard Marriotts for using the spring-hinged door
closers that resulted in her injury. Marriott sought to
dismiss the case on the grounds that Scherr lacked stand-
ing to bring a suit for injunctive relief and, alternatively,
that the statute of limitations barred her claim. The
district court ruled that Scherr had standing to sue the
Overland Park Courtyard Marriott, but not the fifty-six
other Marriotts, and that the applicable statute of limita-
tions did not bar her suit. Marriott then moved for Judg-
ment on the Pleadings on the grounds that the spring-
hinged door closers Marriott used complied with the
applicable ADA regulations. In December 2011, the
district court granted Marriott’s motion. This appeal
followed. For the reasons set forth below, we hold that
the spring-hinged door closers used by Marriott comply
with ADA regulations, and we affirm.
No. 11-3833 3
I. Background
Marjorie Friedman Scherr, a resident of Illinois,
booked a room at the Courtyard Marriott Hotel in Over-
land Park, Kansas, in March 2006. At the time, she
was seventy-six years old, suffered from a neuro-degen-
erative disorder and relied on a walker to enhance
her mobility. Consequently, she requested an ADA-
accessible room. The hotel assigned her to Room 143, and
assured her it was “ADA compliant.” On March 19, 2006,
Scherr tried to leave the bathroom of her hotel room
while using her walker. The door of the bathroom
was equipped with a spring-hinged self-closing mecha-
nism. Scherr pushed the door open with her right
hand, then let go and began to exit through the threshold
of the door using her walker. The door closed quickly,
striking her body and causing her to fall to the floor.
Scherr broke her wrist and injured her hip as a result of
the fall. She later underwent surgery to address com-
plications from the fall.
Scherr has twenty-nine relatives living in the Overland
Park area, and she traveled there frequently both
before and after her injuries in 2006. Given the close
proximity of the Courtyard Marriott to her relatives,
she wishes to return to the hotel if its rooms would be
made safe for disabled guests. This intent was evinced
most recently when Scherr’s cousin announced that she
would be married in May 2011 in Overland Park, and
Scherr declared her intent to attend the wedding and
her preference to stay in the Overland Park Courtyard
Marriott but for its continued use of the spring-hinged
door closer that led to her injury.
4 No. 11-3833
In 2004, Marriott renovated fifty-seven of its Court-
yard Marriott hotels, and in each of the hotels (including
the Overland Park location) Marriott installed spring-
hinged door closer mechanisms on the bathroom doors
of its ADA-accessible rooms. There is no dispute that
Marriott chose to install the spring-hinged door closer
on the bathroom doors rather than a hydraulic-arm
door closer or a standard hinge with no door closer.
There is also no dispute that the spring hinge is labeled
a “Door Closer.” The spring-hinge mechanism closes a
door significantly faster than a hydraulic arm closer
would; during the personal injury litigation that
preceded this case, testimony showed that spring hinge
closing mechanisms takes anywhere from 2.58 to 3.1
seconds to close a door, compared to the 5 seconds or
more a hydraulic arm door closer takes. This is relevant
because, as we explain in more detail below, ADA reg-
ulations contain separate provisions that govern the
speeds at which “door closers” and “spring hinges”
can close.
In March 2008, Scherr filed a negligence action against
Marriott for her injuries in the Circuit Court of Cook
County, Illinois. Marriott removed the case to the U.S.
District Court for the Northern District of Illinois. In
July 2010, Scherr sought to amend her complaint to
include a claim under Title III of the ADA, but the
request was denied. After the district court denied
both parties’ motions for summary judgment on the
negligence action, the case settled. In November 2010,
just prior to the settlement of the negligence action,
Scherr filed this case against Marriott under Title III of the
No. 11-3833 5
ADA. Scherr seeks (1) a declaratory judgment that the
Overland Park Courtyard Marriott was and is still in
violation of the ADA; (2) injunctive relief against Marriott
in the form of an order requiring Marriott to change the
spring-hinged door closers in all fifty-seven of its reno-
vated Courtyard hotels; and (3) costs, attorneys’ fees,
and expenses.
Marriott moved to dismiss Scherr’s complaint, arguing
that Scherr did not have standing to sue, that the statute
of limitations barred her suit, and that she failed to state
a claim. In June 2011, the district court granted in part
and denied in part Marriott’s motion and ruled that
Scherr had standing to pursue her ADA claim against
the Overland Park Marriott but not the other fifty-six
hotels, that the statute of limitations did not bar her
suit, and that she stated a claim upon which relief
could be granted. Marriott then moved for judgment
on the pleadings, arguing that the spring hinge on the
bathroom door was in compliance with the ADA reg-
ulations issued by the U.S. Department of Justice (“DOJ”)
in 2010. In December 2011, the district court granted
Marriott’s motion, and this appeal followed.
On appeal, Scherr challenges the district court’s ruling
on two grounds: first, she contends that she has standing
to bring an ADA suit not only against the Overland
Park Courtyard Marriott, but all fifty-seven Courtyard
hotels that use spring-hinged door closers on their bath-
room doors; and two, that the district court erred
when it granted Marriott’s Motion for Judgment on the
Pleadings. Marriott argues in response that the district
6 No. 11-3833
court correctly granted judgment on the pleadings
in its favor, and also argues that Scherr does not have
standing to sue the Overland Park Courtyard Marriott
or any of the other Courtyard Marriotts and that the
statute of limitations bars Scherr’s suit. We address the
arguments in turn.
II. Discussion
We review de novo a district court’s grant of judgment
on the pleadings under Federal Rule of Civil Procedure
12(c). Olson v. Wexford Clearing Serv. Corp., 397 F.3d 488,
490 (7th Cir. 2005). We take all well-pleaded allegations
as true and draw all reasonable inferences in favor of
the non-moving party (here, Scherr). Fail-Safe, LLC v.
A.O. Smith Corp., 674 F.3d 889, 892 (7th Cir. 2012). We
must determine if the complaint sets forth facts
sufficient to support a cognizable legal theory. St. John’s
United Church of Christ v. City of Chicago, 502 F.3d 616,
625 (7th Cir. 2007). We may take judicial notice of docu-
ments that are part of the public record, including plead-
ings, orders, and transcripts from prior proceedings in
the case. Gen. Elec. Capital Corp. v. Lease Res. Corp., 128
F.3d 1074, 1081-82 (7th Cir. 1997).
A. Scherr has standing to sue the Overland Park Court-
yard Marriott, but not the fifty-six other Courtyard
Marriott hotels that use spring-hinged door closers.
The district court ruled that Scherr had standing to
pursue her claim for injunctive relief under Title III of
No. 11-3833 7
the ADA against the Overland Park Courtyard Marriott,
but not the other fifty-six Courtyard Marriott hotels
that use the spring-hinged door closer. On appeal, she
contends that she should be allowed to pursue her
claim against not only the Overland Park Courtyard
Marriot, but the other hotels as well. Marriott responds
that Scherr lacks standing to sue not only the other fifty-
six hotels, but the Overland Park hotel as well. For the
reasons below, we affirm the district court’s ruling that
Scherr has standing to bring her suit against the Over-
land Park Courtyard Marriott but not the other hotels.
Article III of the Constitution specifies that “[t]he
Judicial Power shall extend to all Cases . . . [and] Contro-
versies . . . .” U.S. C ONST., Art. III, § 2. Standing to bring
and maintain a suit is an essential component of this case-
or-controversy requirement. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560 (1992). The Supreme Court has held
that a plaintiff must meet three key requirements to
establish standing: the plaintiff must show (1) injury in
fact, which must be concrete and particularized, and
actual and imminent; (2) a causal connection between
the injury and the defendant’s conduct; and (3) redress-
ability. Id. at 560-61. The party invoking federal jurisdic-
tion bears the burden of establishing these elements. Id.
The second and third elements are not at issue here,
and the only question is whether Scherr, assuming
arguendo that Marriott is actually violating the ADA,
is presently suffering a sufficiently “concrete and par-
ticularized” and “actual or imminent” injury to satisfy
the Court’s “injury in fact” requirement. Scherr seeks
8 No. 11-3833
injunctive relief, and to establish injury in fact when
seeking prospective injunctive relief, a plaintiff must
allege a “real and immediate” threat of future violations
of their rights (in this case, Scherr’s rights under the
ADA). See City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983).
Scherr was injured as a result of what she believed
(quite legitimately, at the time) was a violation of
the ADA standards governing door closers, but the Su-
preme Court has held that “[p]ast exposure to illegal
conduct does not in itself show a present case or con-
troversy regarding injunctive relief . . . if unaccompanied
by any continuing, present adverse effects.” Lujan, 504
U.S. at 564 (internal quotations omitted). Furthermore,
the Court has clarified that plaintiffs’ professions of an
“intent to return to the places they had visited be-
fore—where they will presumably, this time, [suffer the
same injury they suffered before]—is simply not enough.
Such ‘some day’ intentions—without any description
of concrete plans, or indeed even any specifications of
when the some day will be—do not support a finding of
the ‘actual or imminent’ injury that our cases require.”
Id. (quotations and citations omitted) (emphasis original).
However, the Supreme Court later distinguished Lujan
and clarified that a plaintiff’s “conditional state-
ments”—that they would visit a place but for ongoing
violations—cannot “be equated with the speculative
‘some day intentions’ ” that were insufficient to show
injury in fact in Lujan. See Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 184 (2000). Thus,
No. 11-3833 9
as the Second Circuit has held, a plaintiff must allege
“past injury under the ADA”; show that “it is reasonable
to infer from her complaint that this discriminatory
treatment will continue”; and show that “it is also rea-
sonable to infer, based on the past frequency of her
visits and the proximity of [the public accommodation]
to her home, that she intends to return to [the public
accommodation] in the future.” Camarillo v. Carrols
Corp., 518 F.3d 153, 158 (2d Cir. 2008).
Here, the facts show that Scherr has standing to pursue
her claim against the Overland Park Courtyard Marriott.
Scherr stated in her complaint that she would use the
Overland Park Courtyard Marriott but for the alleged
continuing ADA violations there. She is aware that the
hotel continues to use the spring-hinged door closers,
and her future plans (as stated at the time the com-
plaint was filed) are much more specific than the vague
invocations that troubled the Supreme Court in Lujan:
much of her extended family lives in the area and the
Overland Park Courtyard Marriott is close to them.
Furthermore, Scherr’s discussion of her cousin’s then-
upcoming wedding is sufficient to support a plausible
inference that Scherr would have liked to return to the
hotel but for its continued use of the spring hinges.
Given Scherr’s past travel history and her affirmative
desire to stay at the hotel but for the alleged violations,
on these facts, Scherr has standing to sue the Overland
Park Courtyard Marriott. See D’Lil v. Best W. Encina
Lodge & Suites, 538 F.3d 1031, 1037 (9th Cir. 2008) (holding
that a plaintiff established standing when she demon-
10 No. 11-3833
strated her intent to return to a city and to stay at the
hotel she was suing if it were to be made accessible).
Scherr’s standing to sue the Overland Park Courtyard
Marriot does not, however, extend to the other fifty-six
Courtyard Marriott hotels that use the spring-hinged
door closers. Scherr argues that she need not engage
in the “futile gesture” of visiting the other fifty-six
Courtyard Marriotts that she knows use spring hinges
as door closers as long as Marriott has no intention of
complying with the ADA. While we agree that Scherr
need not engage in the “futile gesture” of traveling to
each of the other fifty-six Courtyard Marriotts to
establish that she has actual knowledge of an alleged
ongoing violation at each of the facilities, as we held
above she still must assert an intent to return to the
particular place (or places) where the violations are
alleged to be occurring. Scherr shows such intent with
respect to the Overland Park Courtyard Marriott, but
she makes no such showing with regard to any of the
other fifty-six Courtyard Marriotts. While she lists a
number of trips she has taken over the past few years
to various places (some of which have Courtyard
Marriotts), at no point does she claim that she would
visit a particular Courtyard Marriott but for the alleged
ADA violations, and she does not show an intent even
to return to any geographic area where another
Courtyard Marriott is located. Absent such a showing,
she cannot establish standing to pursue her claim
against the other hotels. See Steger v. Franco, Inc., 228 F.3d
889, 892 (8th Cir. 2000) (“Although plaintiffs need not
engage in the ‘futile gesture’ of visiting a building con-
No. 11-3833 11
taining known barriers that the owner has no intention
of remedying, 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.”)
(citations omitted).
B. The statute of limitations does not bar Scherr’s suit.
We next consider Marriott’s contention that Scherr’s
suit is barred by the statute of limitations. The ADA does
not contain a specific statute of limitations, and thus
“the most appropriate state limitations period applies.”
Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 550
(7th Cir. 1996). Because Scherr’s claim is most closely
related to a personal injury action, we use Illinois’s two-
year statute of limitations for personal injuries. Id. at
551. It is undisputed that Scherr brought her ADA claim
in November 2010, more than two years after her
personal injury claim in March 2008, and more than
four years after her actual injury in March 2006. Marriott
contends that Scherr’s claim is time-barred because
she knew of the alleged problem with the spring-
hinged doors long before she filed her personal injury
action, let alone her ADA claim. Scherr argues in
response that, for a plaintiff seeking injunctive relief
from ongoing violations, the cause of action continues
to accrue each day the defendant remains in violation of
the ADA.
While the Seventh Circuit has not directly addressed
this issue before, the statute itself makes clear that in-
junctive relief under Title III of the ADA (and only injunc-
12 No. 11-3833
tive relief—damages are not available under Title III)
is available to “any person who is being subjected
to discrimination on the basis of disability” or who
has “reasonable grounds for believing that such person
is about to be subjected to discrimination.” 42 U.S.C.
§ 12188(a)(1). As the Ninth Circuit has observed, “[b]y
employing the phrases ‘is being subjected to’ and ‘is
about to be subjected to,’ the statute makes clear that
either a continuing or a threatened violation of the
ADA is an injury within the meaning of the Act. A
plaintiff is therefore entitled to injunctive relief to stop
or to prevent such injury.” Pickern v. Holiday Quality
Food, Inc., 293 F.3d 1133, 1136 (9th Cir. 2002). In her
complaint, Scherr alleged that she is currently aware
of what she believes to be ongoing ADA violations at
the Overland Park Courtyard Marriott, and that she
would return to the hotel but for these ongoing viola-
tions. Because the violations Scherr alleges are con-
tinuing, the applicable statute of limitations does not
bar her claim.
C. Because the spring-hinged door closer complied
with the applicable ADA regulations, Scherr’s
claim fails as a matter of law.
1. Regulatory framework.
Finally, we turn to the merits of Scherr’s complaint
against the Overland Park Courtyard Marriott. Title III
of the ADA prohibits discrimination on the basis of
disability in places of public accommodation. 42 U.S.C.
§§ 12181-89. Congress delegated responsibility to the
DOJ to issue regulations to enforce Title III. The regula-
No. 11-3833 13
tions must be consistent with a set of guidelines put
forth by the Architectural and Transportation Barriers
Compliance Board (“the Board”). The guidelines are
called the “Americans with Disabilities Act Accessibility
Guidelines” (“ADAAG”). Consistent with the Board’s
guidelines, the DOJ issued a set of regulations in 1991
(“the 1991 Standards”), and in 2004, the Board issued
revisions to the 1991 Standards. In 2010, the DOJ
adopted the 2004 ADAAG revisions into its regula-
tions (“the 2010 Standards”). Compliance with the 2010
Standards became mandatory for new construction
and renovations in 2012, but for the period between
2010 and 2012, entities covered by the Standards could
comply with either the 1991 or the 2010 Standards, and
the parties here agree that both sets of Standards can
be used to determine compliance as a matter of law.
The 1991 Standards dictate that all doors with closing
mechanisms must have a “sweep period” that takes at
least 3 seconds for a door to move from an open position
of 70 degrees to a point 3 inches from the latch of the
door. Specifically, the 1991 Standards state:
4.13.10 Door Closers. If a door has a closer then the
sweep period of the closer shall be adjusted so that
from an open position of 70 degrees, the door will
take at least 3 seconds to move to a point 3 in (75mm)
from the latch, measured to the leading edge of
the door.
1991 Standards § 4.13.10. The 1991 Standards do not have
a separate closing speed specified for spring hinges, and
the 1991 Standards do not discriminate between spring
14 No. 11-3833
hinges and other types of door closers such as hydraulic
arm closers.
However, the 2010 Standards do set forth separate
closing speeds for spring hinges and door closers, which
the Standards now treat as separate devices. The 2010
Standards state that the time “Door Closers and Gate
Closers” move from an open position of 90 degrees to a
position of 12 degrees from the latch must be at least
5 seconds, and “Spring Hinges” must take at least 1.5
seconds to move from an open position of 70 degrees to
a closed position.1 Specifically, the 2010 Standards state:
404.2.8 Closing Speed. Door and gate closing speed
shall comply with 404.2.8.
404.2.8.1 Door Closers and Gate Closers. Door closers
and gate closers shall be adjusted so that from an
open position of 90 degrees, the time required to
move the door to a position of 12 degrees from the
latch is 5 seconds minimum.
404.2.8.2 Spring Hinges. Door and gate spring hinges
shall be adjusted so that from the open position
of 70 degrees, the door or gate shall move to the
closed position in 1.5 seconds minimum.
U.S. Department of Justice, 2010 ADA Standards For
Accessible Design (2010), at § 404.2.8. Neither party
1
The 2010 Standards offer neither an explanation nor a com-
ment about why this change was made, and since the DOJ
did not intervene in this case, we have no guidance from it
on why the regulations changed or what bearing the change
should have on interpreting them.
No. 11-3833 15
disputes that the spring hinges used by Marriott comply
with § 404.2.8.2 of the 2010 standards but not § 404.2.8.1,
the provision that regulates door closers.
2. The spring hinges comply with the 2010 Standards;
therefore, Scherr’s claim fails as a matter of law.
Scherr does not dispute that the spring hinges used by
Marriott comply with the 2010 standards; instead, she
argues that the spring hinges used as door closers must
comply with both the Spring Hinge and Door Closer
provisions of the 2010 Standards. In statutory construc-
tion cases, we begin with “the language [of the
statute] itself [and] the specific context in which that
language is used.” McNeil v. United States, 131 S. Ct. 2218,
2221 (2011) (quotations omitted). 2 When we do not
have statutory definitions available,
we accord words and phrases their ordinary and
natural meaning and avoid rendering them meaning-
less, redundant, or superfluous; we view words not
in isolation but in the context of the terms that sur-
round them; we likewise construe statutes in the
context of the entire statutory scheme and avoid
2
Here, we are asked to interpret a regulation, and the
Supreme Court has held that we should show “great deference
to the interpretation given the statute by the officers or
agency charged with its administration. . . . When the con-
struction of an administrative regulation rather than a statute
is in issue, deference is even more clearly in order.” Udall
v. Tallman, 380 U.S. 1, 16 (1965) (internal quotations omitted).
16 No. 11-3833
rendering statutory provisions ambiguous, ex-
traneous, or redundant; we favor the more reasonable
result; and we avoid construing statutes contrary to
the clear intent of the statutory scheme.
In re Merchants Grain, Inc., 93 F.3d 1347, 1353-54 (7th Cir.
1996) (citations omitted). When the language of a statute
is plain, we enforce it according to its terms. See Greenfield
Mills, Inc. v. Macklin, 361 F.3d 934, 954 (7th Cir. 2004).
When a statute delineates specific obligations, “we will
not read a catchall provision to impose general obliga-
tions” that include or supersede the enumerated obliga-
tions, and we should hesitate to adopt “an interpretation
of a congressional enactment which renders superfluous
another portion of that same law.” United States v.
Jicarilla Apache Nation, 131 S. Ct. 2313, 2330 (2011).
In light of these canons of statutory construction, the
most reasonable interpretation of the 2010 Standards
requires that we treat spring hinges and door closers
separately and apply the separate standards accord-
ingly. Contrary to the 1991 Standards, which had a
general provision to govern all door closers, the 2010
Standards specifically carved out a separate regulation
governing the closing speed of a spring hinge. This
specific carve-out strongly undercuts Scherr’s argument
that the DOJ intended that spring hinge devices to be
regulated both by the specific Spring Hinge provision
and the general Door Closer provision. If, as the district
court noted, the DOJ intended to regulate the closing
speeds of spring hinges under the Door Closer pro-
vision, it would not have needed to add a separate,
No. 11-3833 17
specific provision, which provided a different closing
speed, to regulate spring hinges. Furthermore, the
Spring Hinge provision specifically refers to spring
hinges as “door and gate spring hinges,” which indicate
that the DOJ expected spring hinges to be used as door
closers and therefore carved out a specific regulation
for them. If we were to read the statute as Scherr urges
and apply the Door Closer provision to spring hinges, it
would render superfluous the separate Spring Hinge
provision and the different closing time specifically
established for spring hinges. Because we do not
construe regulations in such a way as to render other
provisions of the regulations meaningless or super-
fluous, Scherr’s claim fails as a matter of law.3 See id. at
2330; see also In re Willet, 544 F.3d 787, 792 (7th Cir. 2008).
III. Conclusion
The district court correctly ruled that Scherr had
standing to pursue a claim against the Overland Park
Courtyard Marriott but not the fifty-six other Courtyard
Marriotts she sought to sue. Additionally, Scherr’s com-
plaint is not barred by the statute of limitations. The
district court correctly ruled that, since the spring-hinged
door closers used by Marriott are in compliance with
3
The complicated distinction between hydraulic door closers
and spring-hinged door closers and their varying functions
begs the question of why a simple standard hinge wouldn’t be
the simplest way to open and close an interior bathroom
door. Such a common device may be too simple to regulate.
18 No. 11-3833
the DOJ’s 2010 Standards, Scherr’s claim fails as a matter
of law. The district court’s orders are therefore A FFIRMED.
1-7-13