Case 1:15-cv-00236-REB-MEH Document 1 Filed 02/04/15 USDC Colorado Page 1 of 10
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. ___________________ THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons defined below,
Plaintiffs, v. SAGE HOSPITALITY RESOURCES LLC,
Defendant.
CLASS ACTION COMPLAINT
Plaintiffs, the Civil Rights Education and Enforcement Center (“CREEC”), on behalf of its members, and Margaret Denny, on behalf of herself and a proposed class defined below, by and through undersigned counsel, file their Class Action Complaint for Declaratory and Injunctive Relief and respectfully allege as follows:
I. INTRODUCTION 1. For more than 20 years, the Americans with Disabilities Act has required hotels that provide transportation services to their guests to provide equivalent accessible transportation services to guests who use wheelchairs or scooters. 2. Nevertheless Defendant Sage Hospitality (“Sage”) – which owns and/or operates approximately 68 hotels spread among 19 states – has repeatedly failed to provide wheelchairaccessible transportation in hotels that provide transportation to nondisabled guests.
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3. As a result, while Sage’s nondisabled guests staying at these hotels can take advantage of airport shuttle services and transportation services to areas near the hotel, guests who use wheelchairs or scooters are denied these services. This action is limited to challenging Sage’s violations of federal requirements governing accessible transportation, including for example purchase and lease of accessible vehicles and provision of accessible transportation.
4. Plaintiffs seek declaratory and injunctive relief establishing that Sage has engaged in violations of the ADA, and requiring Sage to comply with this statute by providing wheelchair-accessible transportation services that are equivalent to the transportation services provided to nondisabled guests at Sage’s hotels.
II. JURISDICTION AND VENUE 5. Plaintiffs’ claims arise under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (“ADA”). 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 7. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).
III. PARTIES 8. Plaintiff the Civil Rights Education and Enforcement Center (“CREEC”) is a nationwide civil rights membership organization based in Denver, Colorado whose mission includes, among other purposes, ensuring that persons with disabilities participate in our nation’s
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civic life without discrimination, including in the opportunity to benefit from the services provided by hotels.
9. Plaintiff Margaret Denny is a member of CREEC and is and has been at all relevant times a resident of the State of Colorado. Among other impairments, Plaintiff Denny has chronic pain and uses a motorized wheelchair for mobility. She has a disability within the meaning of the ADA, 42 U.S.C. § 12102. Because Ms. Denny requires a wheelchair-accessible vehicle in order to utilize transportation services offered by hotels, she has a personal interest in ensuring that hotels comply with federal requirements governing provision of accessible transportation services to hotel guests. She is also a tester in this litigation.
10. Defendant Sage is a hotel management, investment, and development company incorporated in Delaware, with its principal place of business at 1575 Welton Street, Suite 300, Denver, Colorado. Sage owns and/or operates hotels throughout the United States, including approximately 22 hotels in the State of Colorado.
IV. FACTS APPLICABLE TO ALL CLAIMS 11. Defendant Sage owns and/or operates the TownePlace Suites by Marriott Boulder Broomfield located in Broomfield, CO, a hotel that provides its guests with a local shuttle service within a five-mile radius of the hotel. 12. On or about October 16, 2014, Plaintiff Denny telephoned the TownePlace Suites by Marriott Boulder Broomfield and asked if it provided wheelchair-accessible shuttle services. She was informed that the hotel does not offer wheelchair-accessible shuttle services.
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13. Had Plaintiff Denny been informed that the hotel did provide wheelchairaccessible shuttle services, she intended to stay at the hotel and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
14. Plaintiff Denny would like to stay at the TownePlace Suites by Marriott Boulder Broomfield hotel in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist.
15. Defendant Sage owns and/or operates The Oxford Hotel located in Denver, CO, a hotel that provides its guests with a local shuttle service within a two-mile radius of the hotel.
16. On or about October 16, 2014, Plaintiff Denny telephoned The Oxford Hotel and asked if it provided wheelchair-accessible shuttle services. She was informed that the hotel does not offer wheelchair-accessible shuttle services.
17. Had Plaintiff Denny been informed that the hotel did provide wheelchairaccessible shuttle services, she intended to stay at the hotel and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
18. Plaintiff Denny would like to stay at The Oxford Hotel in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist.
19. On information and belief, Sage owns and/or operates a number of other hotels in the United States that offer transportation services to their guests but do not offer equivalent transportation services to guests who use wheelchairs or scooters. These hotels include, without limitation:
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A. Homewood Suites by Hilton San Francisco Airport - North, 2000 Shoreline Ct., Brisbane, CA
B. Fairfield Inn & Suites Indianapolis Airport, 5220 W Southern Ave., Indianapolis, IN C. Courtyard Grand Rapids Airport, 4741 28th St. SE, Grand Rapids, MI D. Minneapolis Marriott Southwest, 5801 Opus Pkwy., Minnetonka, MN E. Courtyard Charlotte Airport, 2700 Little Rock Rd., Charlotte, NC F. Element Ewing Princeton, 1000 Sam Weinroth Rd. E, Ewing, NJ G. Fairfield Inn Las Vegas Airport, 3850 S, Paradise Rd., Las Vegas, NV H. Hampton Inn Long Island – Brookhaven, 2000 N Ocean Ave., Farmingville, NY I. Courtyard Cleveland Beachwood, 3695 Orange Pl., Beachwood, OH J. Courtyard Dallas Addison/Midway, 4165 Proton Dr., Addison, TX 20. On information and belief, after August 25, 1990, Sage has purchased or leased vehicles for use on fixed-route and/or demand-responsive transportation systems in place at its hotels. 21. CREEC brings this action based on associational standing on behalf of its members. CREEC’s members – including Ms. Denny – include persons with disabilities who use wheelchairs or scooters for mobility, who would like to stay at Sage hotels and use their transportation services, but have been deterred and prevented from doing so by the failure of those hotels to provide equivalent, wheelchair-accessible transportation services. Because CREEC seeks only declaratory and injunctive relief, individual participation of CREEC members is not required.
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22. Prior to filing this litigation, attorneys from CREEC wrote to Sage, explaining that many of its hotels are in violation of the transportation provisions of the ADA, and requesting that it bring its hotels into compliance. Sage did not respond to this letter.
V. CLASS ACTION ALLEGATIONS 23. Plaintiff Denny brings this action on behalf of herself and on behalf of a class defined as follows: individuals who use wheelchairs or scooters for mobility who have been, or in the future will be, denied the full and equal enjoyment of transportation services offered to guests at hotels owned and/or operated by Sage because of the lack of equivalent accessible transportation services at those hotels. 24. Joinder of all members of the proposed class would be impracticable because, without limitation, the class consists of numerous individuals who are geographically diverse, these individuals are very difficult to identify and they are unlikely to be able to bring individual suits. 25. There are numerous common questions of law and fact, including but not limited to: A. Whether Defendant Sage is a “private entity[y] . . . not primarily engaged in the
business of transporting people”; B. Whether hotels owned and/or operated by Defendant Sage provide fixed-route and/or
demand-responsive transportation systems;
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C. Whether Defendant Sage has purchased or leased any vehicles after August 25, 1990 for use on fixed-route or demand-responsive systems, and if so, the seating capacity of those vehicles;
D. Whether Defendant Sage’s transportation vehicles are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; and
E. Whether Defendant Sage has ensured that the transportation system in place at each hotel, when viewed in its entirety, meets the equivalent service requirements of 49 C.F.R. part 37.
26. The claims of Plaintiff Denny are typical of the claims of the class because they arise from the same course of conduct engaged in by Defendant Sage, are based on the same alleged violations of the same statutes and regulations, and seek the same relief.
27. Plaintiff Denny will fairly and adequately represent the interests of the class. Plaintiff Denny has no interests adverse to the interests of other members of the class. Further, the attorneys she has retained include counsel who have been appointed as class counsel in, and have successfully litigated, numerous disability rights class actions across the country.
28. Finally, certification under Rule 23(b)(2) is proper here because Defendant Sage has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or declaratory relief with respect to the class as a whole.
CLAIM FOR RELIEF Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181, et seq.
29. Plaintiffs incorporate by reference each and every allegation herein.
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30. Title III requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
31. Hotels that provide fixed-route transportation services to guests must comply with the following requirements:
A. For all purchases or leases after August 25, 1990, vehicles with a seating capacity over 16 passengers must be wheelchair-accessible;
B. For all purchases or leases after August 25, 1990, vehicles with a seating capacity of under 16 passengers must be either wheelchair-accessible or equivalent service must be provided.
32. Hotels that provide on-demand transportation services to guests must either provide wheelchair-accessible vehicles or ensure that equivalent service is provided.
33. Defendant Sage owns and/or operates “an inn, hotel, motel, or other place of lodging,” which is a place of public accommodation pursuant to 42 U.S.C. § 12181(7)(A), and is also a “private entit[y] not primarily engaged in the business of transporting people” pursuant to 49 C.F.R. part 37.
34. Defendant Sage has engaged in illegal disability discrimination, as defined by Title III, including without limitation, by failing to ensure that transportation vehicles in use at its hotels are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, by failing to ensure that its hotels provide equivalent accessible
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transportation services to such individuals, and/or by failing to ensure that personnel are trained to proficiency with respect to the provision of accessible transportation services.
35. Defendant Sage’s ongoing and continuing violations of Title III have caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment as follows: 1. A declaration that Defendant Sage’s conduct as alleged here has violated, and continues to violate, Title III of the Americans with Disabilities Act of 1990, as well as its implementing regulations; 2. Issuance of a permanent injunction requiring Defendant Sage to comply with the ADA; 3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and 4. Such other additional or alternative relief as the Court finds just and proper.
Dated this 4th day of February, 2015. Respectfully Submitted, /s/ Timothy P. Fox ____________________________________ Timothy P. Fox Sarah M. Morris Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 Phone: (303) 757-7901
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Bill Lann Lee Julie Wilensky Joshua Davidson Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824 Julia Campins Campins Benham-Baker, LLP 8 California Street, #703 San Francisco, CA 94111 (415) 373-5333 Kevin W. Williams Colorado Cross-Disability Coalition 655 Broadway, #775 Denver, CO 80203 (303) 839-1775 Attorneys for Plaintiffs and the Proposed Class
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JS 44 (Rev. 12/11) District of Colorado Form

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS The Civil Rights Education and Enforcement Center; Margaret Denny

DEFENDANTS Sage Hospitality Resources, LLC

(b) County of Residence of First Listed PlaintiffDenver County, CO
(EXCEPT IN U.S. PLAINTIFF CASES)
(c) Attorneys (Firm Name, Address, and Telephone Number) (see attachment)

County of Residence of First Listed Defendant Denver County, CO
(IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
TRACT OF LAND INVOLVED.
Attorneys (If Known)

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

1 U.S. Government Plaintiff

✖ 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff)

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

of Business In This State

4

4

2 U.S. Government Defendant

4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

2

2 Incorporated and Principal Place

5

5

of Business In Another State

Citizen or Subject of a Foreign Country

3

3 Foreign Nation

IV. NATURE OF SUIT (Place an “X” in One Box Only)

CONTRACT

TORTS

110 Insurance

PERSONAL INJURY

PERSONAL INJURY

120 Marine

310 Airplane

365 Personal Injury -

130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student Loans (Excl. Veterans) 153 Recovery of Overpayment
of Veteran’s Benefits 160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

315 Airplane Product Liability
320 Assault, Libel & Slander
330 Federal Employers’ Liability
340 Marine
345 Marine Product Liability
350 Motor Vehicle
355 Motor Vehicle Product Liability
360 Other Personal Injury
362 Personal Injury Med. Malpractice

Product Liability 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury Product Liability
PERSONAL PROPERTY 370 Other Fraud
371 Truth in Lending
380 Other Personal Property Damage
385 Property Damage Product Liability

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS

FORFEITURE/PENALTY 625 Drug Related Seizure of Property 21 USC 881
690 Other
LABOR 710 Fair Labor Standards
Act 720 Labor/Mgmt. Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation

BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal
28 USC 157
PROPERTY RIGHTS 820 Copyrights 830 Patent 840 Trademark
SOCIAL SECURITY
861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
TAX SUITS

210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

440 Other Civil Rights
441 Voting
442 Employment
443 Housing/ Accommodations
445 Amer. w/Disabilities Employment
✖ 446 Amer. w/Disabilities Other
448 Education

Habeas Corpus: 463 Alien Detainee
510 Motions to Vacate Sentence 530 General 535 Death Penalty Other: 540 Mandamus & Other 550 Civil Rights 555 Prison Condition

791 Empl. Ret. Inc. Security Act
IMMIGRATION 462 Naturalization Application 465 Other Immigration
Actions

870 Taxes (U.S. Plaintiff or Defendant)
871 IRS - Third Party 26 USC 7609

560 Civil Detainee Conditions of Confinement

V. ORIGIN
✖ 1 Original Proceeding

(Place an “X” in One Box Only)

2 Removed from State Court

3 Remanded from Appellate Court

4 Reinstated or Reopened

5

Transferred from another district

(specify)

6 Multidistrict Litigation

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

Americans with Disabilities Act, 42 U.S.C. § 12181, et seq.

VI. CAUSE OF ACTION Brief description of cause:

AP Docket

6

6

OTHER STATUTES
375 False Claims Act 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations
480 Consumer Credit 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

Appeal to District 7 Judge from
Magistrate Judgment

Class action based on violation of federal requirements governing the provision of transportation by hotels

VII. REQUESTED IN COMPLAINT:

✔ CHECK IF THIS IS A CLASS ACTION

UNDER F.R.C.P. 23

DEMAND $

CHECK YES only if demanded in complaint:

JURY DEMAND:

Yes ✖ No

DATE
'FCSVBSZ

SIGNATURE OF ATTORNEY OF RECORD
/s/ Timothy P. Fox

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 1:15-cv-00236-REB-MEH Document 1-1 Filed 02/04/15 USDC Colorado Page 2 of 2
Civil Cover Sheet Attachment – I.(c) Plaintiffs’ Attorneys
Timothy P. Fox Sarah M. Morris Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 (303) 757-7901
Bill Lann Lee Julie Wilensky Joshua Davidson Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824
Julia Campins Campins Benham-Baker, LLP 8 California #703 San Francisco, CA 94111 (415) 373-5333
Kevin W. Williams Colorado Cross-Disability Coalition 655 Broadway #775 Denver, CO 80203 (303) 839-1775

Civil Rights Education and Enforcement Center, The et al v. Sage Hospitality Resources LLC, Docket No. 1:15-cv-00236 (D. Colo.
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the District of Colorado; United States District Court for the District of Colorado Civil Rights - Disabilities - Other[446] 1:15-cv-00236

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 14

 
 Case 1:15-cv-00236-REB-MEH Document 29 Filed 04/14/15 USDC Colorado Page 1 of 14
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 1:15-cv-00236-REB-MEH THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons defined below,
Plaintiffs, v. SAGE HOSPITALITY RESOURCES LLC, SAGE OXFORD, INC., WALTER ISENBERG and JOHN DOES 1-5,
Defendants.
FIRST AMENDED CLASS ACTION COMPLAINT
Plaintiffs, the Civil Rights Education and Enforcement Center (“CREEC”), on behalf of its members, and Margaret Denny, on behalf of herself and a proposed class defined below, by and through undersigned counsel, file their Class Action Complaint for Declaratory and Injunctive Relief and respectfully allege as follows:
I. INTRODUCTION 1. For more than 20 years, the Americans with Disabilities Act has required hotels that provide transportation services to their guests to provide equivalent accessible transportation services to guests who use wheelchairs or scooters. 2. Nevertheless Defendants Sage Hospitality Resources LLC (“Sage Hospitality”), Sage Oxford, Inc. (“Sage Oxford”) and Walter Isenberg (collectively “Sage”
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or “Defendants”) – which own, lease (or lease to) or operate more than 75 hotels spread among numerous states – have repeatedly failed to provide wheelchair-accessible transportation in hotels that provide transportation to nondisabled guests.
3. As a result, while Defendants’ nondisabled guests staying at these hotels can take advantage of airport shuttle services and transportation services to areas near the hotel, guests who use wheelchairs or scooters are denied these services. This action is limited to challenging Defendants’ current and future violations of federal requirements governing accessible transportation, including for example purchase and lease of accessible vehicles and provision of accessible transportation.
4. Plaintiffs seek declaratory and injunctive relief establishing that Defendants have engaged in violations of the ADA, and requiring Defendants to comply with this statute by providing wheelchair-accessible transportation services that are equivalent to the transportation services provided to nondisabled guests at hotels that Defendants currently, or in the future, own, lease (or lease to) or operate.
II. JURISDICTION AND VENUE 5. Plaintiffs’ claims arise under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. (“ADA”). 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has jurisdiction over Plaintiffs’ claims for declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202. 7. Venue is proper within this District pursuant to 28 U.S.C. § 1391(b).
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III. PARTIES 8. Plaintiff the Civil Rights Education and Enforcement Center (“CREEC”) is a nationwide civil rights membership organization based in Denver, Colorado whose mission includes, among other purposes, ensuring that persons with disabilities participate in our nation’s civic life without discrimination, including in the opportunity to benefit from the services provided by hotels. 9. Plaintiff Margaret Denny is a member of CREEC and is and has been at all relevant times a resident of the State of Colorado. Among other impairments, Plaintiff Denny has chronic pain and uses a motorized wheelchair for mobility. She has a disability within the meaning of the ADA, 42 U.S.C. § 12102. Because Ms. Denny requires a wheelchair-accessible vehicle in order to utilize transportation services offered by hotels, she has a personal interest in ensuring that hotels comply with federal requirements governing provision of accessible transportation services to hotel guests. She is also a tester in this litigation. 10. Defendant Sage Hospitality is a hotel management, investment, and development company incorporated in Delaware, with its principal place of business at 1575 Welton Street, Suite 300, Denver, Colorado. 11. On information and belief, Sage Hospitality owns, leases (or leases to) and/or operates numerous hotels in numerous states, including The Oxford Hotel and the TownePlace Suites by Marriott Boulder Broomfield.
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12. According to its website, Sage Hospitality owns and/or operates more than 75 hotels throughout the United States, including approximately 22 hotels in the State of Colorado.
13. According to its website: “Sage Hospitality is a dynamic Denver-based hotel management company that strives to exceed guest expectations on all levels while supporting the Front Range communities in which we work and live. Sage manages 18 hotels in the Denver Metro area, giving one-stop shopping with a distinctive mix of hotel brands and types to satisfy any needs and budget.”1 Among the 18 Denver hotels that Sage Hospitality claims to manage are The Oxford Hotel and the TownePlace Suites by Marriott Boulder Broomfield.
14. According to an affidavit signed by Defendant Walter Isenberg and filed with the U.S. District Court for the Northern District of Illinois Sage Hospitality is “generally in the business of managing hotels for others.”
15. Defendant Sage Oxford is affiliated with Sage Hospitality, is incorporated under the laws of Colorado, and has its principal place of business in Colorado.
16. On information and belief, Sage Oxford, Inc. owns, leases (or leases to) and/or operates numerous hotels in numerous states, including The Oxford Hotel.
17. According to Exhibit 2 of Sage Hospitality’s motion to dismiss, Sage Oxford manages The Oxford Hotel in Denver, Colorado.
1 Sage Hospitality, Team Denver, http://www.sagehospitality.com/teamdenver (accessed Apr. 3, 2015).
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18. According to a document filed with the Securities and Exchange Commission, Sage Oxford owns and/or manages at least 44 hotels in at least 19 states.
19. On information and belief, Sage Oxford is the sole and exclusive manager to supervise and direct the operations of the hotels it manages, as well as their ancillary facilities.2
20. On information and belief, Defendant Isenberg owns, leases (or leases to) and/or operates numerous hotels in numerous states.
21. For example, Defendant Isenberg is the Co-Founder, President and Chief Executive Officer of Sage Hospitality, the entity that purports to manage The Oxford and the Towneplace Suites Boulder Broomfield.
22. According to Sage Hospitality’s website, Defendant Isenberg “directs all company operations, including property management, development and finance.”3
23. Further, Defendant Isenberg is the President and Director of Sage Oxford, which as set forth above, owns and/or manages at least 44 hotels in at least 19 states, including The Oxford.
24. According to Denver property records, The Oxford is owned by Oxford 2005 LLLP, and according to documents filed with the Securities and Exchange Commission, Defendant Isenberg is one of two people who “control” Oxford 2005 LLLP.
2 See Exhibit 2 to Defendant's Motion to Dismiss. 3 Sage Hospitality, Walter Isenberg, http://www.sagehospitality.com/leadership/walterisenberg (accessed Apr. 3, 2015).
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25. According to documents filed with the Colorado Secretary of State, Defendant Isenberg is the vice president, secretary, treasurer and director of Sage Management Services, Inc., which in turn manages a number of entities that operate hotels in various states, including the TownePlace Suites by Marriott Boulder Broomfield.
26. John Does 1-5 are additional owners, lessors, lessees and/or operators of The Oxford and/or the TownePlace Suites by Marriott Boulder Broomfield. Plaintiffs will name these defendants once they have had an opportunity to conduct relevant discovery to identify them.
IV. FACTS APPLICABLE TO ALL CLAIMS 27. Defendants own, lease (or lease to) or operate the TownePlace Suites by Marriott Boulder Broomfield located in Broomfield, CO, a hotel that provides its guests with a local shuttle service within a five-mile radius of the hotel. 28. On or about October 16, 2014, Plaintiff Denny telephoned the TownePlace Suites by Marriott Boulder Broomfield and asked if it provided wheelchair-accessible shuttle services. She was informed that the hotel does not offer wheelchair-accessible shuttle services. 29. Had Plaintiff Denny been informed that the hotel did provide wheelchairaccessible shuttle services, she intended to stay at the hotel and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
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30. Plaintiff Denny would like to stay at the TownePlace Suites by Marriott Boulder Broomfield hotel in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist. She is currently deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
31. Plaintiff Denny will continue to test this TownePlace Suites and other hotels covered by the putative class in this case by calling to see if wheelchair-accessible shuttle services are available several times per year.
32. Defendants own, lease (or lease to) or operate The Oxford Hotel located in Denver, CO, a hotel that provides its guests with a local shuttle service within a two-mile radius of the hotel.
33. On or about October 16, 2014, Plaintiff Denny telephoned The Oxford Hotel and asked if it provided wheelchair-accessible shuttle services. She was informed that the hotel does not offer wheelchair-accessible shuttle services.
34. Had Plaintiff Denny been informed that the hotel did provide wheelchairaccessible shuttle services, she intended to stay at the hotel and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
35. Plaintiff Denny would like to stay at The Oxford Hotel in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist. She is currently deterred from doing so by the hotel’s lack of wheelchair accessible shuttle services.
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36. Plaintiff Denny will continue to test The Oxford Hotel and other hotels covered by the putative class in this case by calling to see if wheelchair accessible shuttle services are available several times per year.
37. On information and belief, Defendants own, lease (or lease to) and/or operate a number of other hotels in the United States that offer transportation services to their guests but do not offer equivalent transportation services to guests who use wheelchairs or scooters.
38. For example, prior to the initiation of this lawsuit, Ms. Corbett O’Toole, a member of CREEC who uses a wheelchair for mobility, called the following hotels, all of which purport to offer transportation to their guests. During the calls, Ms. O’Toole confirmed that each hotel offered transportation services to its guests and asked if the hotel provided accessible transportation services, and none of them did:
A. Fairfield Inn & Suites Indianapolis Airport, 5220 W Southern Ave., Indianapolis, IN
B. Courtyard Grand Rapids Airport, 4741 28th St. SE, Grand Rapids, MI C. Minneapolis Marriott Southwest, 5801 Opus Pkwy., Minnetonka, MN D. Courtyard Charlotte Airport, 2700 Little Rock Rd., Charlotte, NC E. Element Ewing Princeton, 1000 Sam Weinroth Rd. E, Ewing, NJ F. Fairfield Inn Las Vegas Airport, 3850 S. Paradise Rd., Las Vegas, NV G. Hampton Inn Long Island – Brookhaven, 2000 N Ocean Ave., Farmingville, NY H. Courtyard Cleveland Beachwood, 3695 Orange Pl., Beachwood, OH
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I. Courtyard Dallas Addison/Midway, 4165 Proton Dr., Addison, TX 39. Ms. O’Toole also called the Homewood Suites by Hilton San Francisco Airport - North, 2000 Shoreline Ct., Brisbane, CA. This hotel provides transportation services to its guests without any advance notice requirement. When Ms. O’Toole asked if the hotel provided accessible transportation services, she was told that guests requiring accessible transportation would need to notify the hotel 24 hours in advance of the time that the guest needed the accessible transportation. 40. On information and belief, after August 25, 1990, Defendants have purchased or leased vehicles for use on fixed-route and/or demand-responsive transportation systems in place at their hotels. 41. CREEC brings this action based on associational standing on behalf of its members. CREEC’s members – including Ms. Denny – include persons with disabilities who use wheelchairs or scooters for mobility, who would like to stay at Defendants’ hotels and use their transportation services, but have been deterred and prevented from doing so by the failure of those hotels to provide equivalent, wheelchair-accessible transportation services. Because CREEC seeks only declaratory and injunctive relief, individual participation of CREEC members is not required. 42. Prior to filing this litigation, attorneys from CREEC wrote to Sage, explaining that many of their hotels are in violation of the transportation provisions of the ADA, and requesting that they bring their hotels into compliance. Sage did not respond to this letter.
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V. CLASS ACTION ALLEGATIONS 43. Plaintiff Denny brings this action on behalf of herself and on behalf of a class defined as follows: individuals who use wheelchairs or scooters for mobility who have been, or in the future will be, denied the full and equal enjoyment of transportation services offered to guests at hotels that Defendants, currently or in the future, own, lease (or lease to) or operate because of the lack of equivalent accessible transportation services at those hotels. 44. Joinder of all members of the proposed class would be impracticable because, without limitation, the class consists of numerous individuals who are geographically diverse, these individuals are very difficult to identify and they are unlikely to be able to bring individual suits. 45. There are numerous common questions of law and fact, including but not limited to: A. Whether Defendants are “private entities . . . not primarily engaged in the
business of transporting people”; B. Whether hotels owned and/or operated by Defendants provide fixed-route
and/or demand-responsive transportation systems; C. Whether Defendants have purchased or leased any vehicles after August 25,
1990 for use on fixed-route or demand-responsive systems, and if so, the seating capacity of those vehicles;
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D. Whether Defendants’ transportation vehicles, where required to be so, are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs; and
E. Whether Defendants have ensured that the transportation system in place at each hotel, when viewed in its entirety, meets the equivalent service requirements of 49 C.F.R. part 37.
46. The claims of Plaintiff Denny are typical of the claims of the class because they arise from the same course of conduct engaged in by Defendants, are based on the same alleged violations of the same statutes and regulations, and seek the same relief.
47. Plaintiff Denny will fairly and adequately represent the interests of the class. Plaintiff Denny has no interests adverse to the interests of other members of the class. Further, the attorneys she has retained include counsel who have been appointed as class counsel in, and have successfully litigated, numerous disability rights class actions across the country.
48. Finally, certification under Rule 23(b)(2) is proper here because Defendants have acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or declaratory relief with respect to the class as a whole.
CLAIM FOR RELIEF Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12181, et seq.
49. Plaintiffs incorporate by reference each and every allegation herein. 50. Title III requires that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,
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privileges, advantages, or accommodations of any place of public accommodation by any person who owns . . . or operates a place of public accommodation.” 42 U.S.C. § 12182(a); 28 C.F.R. § 36.201(a).
51. Hotels that provide fixed-route transportation services to guests must comply with the following requirements:
A. For all purchases or leases after August 25, 1990, vehicles with a seating capacity over 16 passengers must be wheelchair-accessible;
B. For all purchases or leases after August 25, 1990, vehicles with a seating capacity of under 16 passengers must be either wheelchair-accessible or equivalent service must be provided.
52. Hotels that provide on-demand transportation services to guests must either provide wheelchair-accessible vehicles or ensure that equivalent service is provided.
53. Defendants own, lease (or lease to) or operate “an inn, hotel, motel, or other place of lodging,” which is a place of public accommodation pursuant to 42 U.S.C. § 12181(7)(A), and is also a “private entit[y] not primarily engaged in the business of transporting people” pursuant to 49 C.F.R. part 37.
54. Defendants have engaged in illegal disability discrimination, as defined by Title III, including without limitation, by failing to ensure that transportation vehicles in use at their hotels are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, by failing to ensure that their hotels provide equivalent accessible transportation services to such individuals, and/or by failing to
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ensure that personnel are trained to proficiency with respect to the provision of accessible transportation services.
55. Defendants’ ongoing and continuing violations of Title III have caused, and in the absence of an injunction will continue to cause, harm to the plaintiffs and the class.
VI. PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request judgment as follows: 1. A declaration that Defendants’ conduct as alleged here has violated, and continues to violate, Title III of the Americans with Disabilities Act of 1990, as well as its implementing regulations; 2. Issuance of a permanent injunction requiring Defendants to comply with the ADA in hotels that they currently, or in the future, own, lease (or lease to) or operate; 3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and 4. Such other additional or alternative relief as the Court finds just and proper.
Dated this 14th day of April, 2015. Respectfully Submitted, /s/ Timothy P. Fox ________________________________ Timothy P. Fox Sarah M. Morris Civil Rights Education and Enforcement Center 104 Broadway, Suite 400
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Denver, CO 80203 Phone: (303) 757-7901 Bill Lann Lee Julie Wilensky Joshua Davidson Lewis, Feinberg, Lee & Jackson, P.C. 476 9th Street Oakland, CA 94612 (510) 839-6824 Julia Campins Campins Benham-Baker, LLP 8 California Street, #703 San Francisco, CA 94111 (415) 373-5333 Kevin W. Williams Colorado Cross-Disability Coalition 655 Broadway, #775 Denver, CO 80203 (303) 839-1775 Attorneys for Plaintiffs and the Proposed Class
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UNITED STATES DISTRICT COURT DISTRICT OF COLORADO (DENVER)

THE

CIVIL

RIGHTS

AND

ENFORCEMENT CENTER, on behalf of

its members, and MARGARET DENNY,

on behalf of herself and a proposed class

of similarly situated persons,

Plaintiff,

Case No.: 1:15-cv-00236

v.

SAGE HOSPITALITY RESOURCES, LLC,
Defendant.

DEFENDANT SAGE HOSPITALITY RESOURCES’ MOTION TO DISMISS PLAINTIFFS’ COMPLAINT AND MEMORANDUM OF LAW

Defendant, Sage Hospitality Resources, LLC (“SHR”), by and through its

attorneys, and pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), requests that Plaintiffs’

Complaint be dismissed in its entirety. In support of this Motion, Defendant states as

follows:

INTRODUCTION

On February 4, 2015, the Civil Rights and Enforcement Center (“CREEC”) and

Margaret Denny (“Denny”) filed a class action Complaint alleging violations of Title III of

the Americans with Disabilities Act, 42 U.S.C. 12181, et seq. (“ADA”) relating to the

accessibility of The Oxford Hotel (“The Oxford”) and the TPS Suites Broomfield Boulder’s

(“TPS”) transportation services. Compl. ¶ 4. This was but one of four such “cookie cutter”

complaints filed by Plaintiffs’ counsel within a one month span.1 Here, Plaintiffs named

1 Plaintiffs’ counsel filed three near identical Complaints in the Northern District of California against hotel owners alleging the same violations on January 15, 2015. (Case Nos. 2015-cv-00224, 2015-cv-00224, and 2015-cv-00224). Despite its laudable purposes, Title III of the ADA has often been subject to abuse. See, e.g., Molski v. Kahn Winery, 405 F. Supp. 2d 1160, 1164-1168 (C.D. Cal. 2005) (holding that litigation history is relevant in determining standing); Brother v. Miami Hotel Inv.’s, LTD., 341 F. Supp. 2d 1230, 1233
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SHR as the sole Defendant alleging that SHR “owned and/or operated” the two hotels. On behalf of Denny, members of CREEC, and a class of disabled individuals, Plaintiffs further seek injunctive relief as to the alleged sixty-eight hotels owned and/or operated by SHR nationwide. Plaintiffs’ Complaint, however, is fatally flawed in several regards. First, Plaintiffs named the wrong entity. SHR does not own or operate the hotels referenced in the Complaint. Second, Plaintiffs attempt to rely upon pure speculation and guesswork to turn an isolated local issue into a nationwide class fails as they have no standing with respect to hotels they never contacted. Third, Plaintiffs further lack standing to bring this suit with respect to any hotels because they rely solely on conclusory allegations insufficient to establish any credible threat of immediate future harm. Fourth, Plaintiffs’ request for Rule 23 class action status should be stricken and/or dismissed pursuant to Rule 12(b)(6) because Plaintiffs have not plead a plausible basis for nationwide class relief. Accordingly, for these reasons (and as described more fully below), Plaintiffs’ Complaint should be dismissed in its entirety and with prejudice. I. STANDARD OF REVIEW
A motion to dismiss for lack of standing is resolved under Rule 12(b)(1) because it attacks the subject matter jurisdiction of the court. U.S. v. Rodriguez-Aguirre, 264 F.3d 1195, 1202 n.5 (10th Cir. 2001). Where the defendant challenges the facts upon which subject matter jurisdiction depends, the court does not presume the truthfulness of the complaint’s factual allegations. Id. at 1203. Such is the case here.
(S.D. Fla. 2004) (commenting on the proliferation of ADA Title III lawsuits and abuse of Title III to collect attorney’s fees); Rodriguez v. Investco, LLC, 305 F. Supp. 2d 1278, 1281 (M.D. Fla. 2004) (noting the birth of a “cottage industry”). Accordingly, “[e]nsuring that standing requirements are met by each plaintiff in each lawsuit brought under the ADA enables courts to ensure that the ADA is not being abused.” Doran v. Del Taco, Inc., 2006 U.S. Dist. LEXIS 53551, *19 (C.D. Cal. July 5, 2006).
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The standard of review for a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is well established. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 566 U.S. at 678 (emphasis added). “[D]ismissal is appropriate where ‘the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct.’” Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quoting Iqbal, 556 U.S. at 679). Accordingly, in examining a complaint under Rule 12(b)(6), “[the court should] disregard conclusory statements and look only to whether the remaining, factual allegations plausibly suggest the defendant is liable.” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). This is especially true where, as here, plaintiffs seek to bring a “potentially massive . . . controversy” through nationwide class action litigation. See Twombly, 550 U.S. at 558. II. PLAINTIFFS’ ALLEGATIONS
Plaintiffs allege that SHR “owns and/or operates” the Oxford and TPS hotels in Colorado and that both hotels offer their guests a local shuttle service within a few miles of each hotel. Compl. ¶¶ 11, 15. Denny, a wheelchair bound individual, claims to have contacted The Oxford and TPS in October of 2014, asked each hotel whether it provided wheelchair-accessible transportation services and was informed by each hotel that it did not. Compl. ¶¶ 12, 16. Had each hotel offered accessible transportation services, Denny further claims that she would have stayed at each hotel and that she would like to stay at
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each hotel in the future if she is informed that such accessible services exist. Compl.¶¶ 14, 18. Without naming any individuals other than Denny, CREEC asserts associational standing on behalf of its members who use wheelchairs or scooters for mobility, and who would like to stay at SHR hotels. Compl. ¶ 21.
In addition to The Oxford and TPS, Plaintiffs seek a nationwide injunction against an alleged sixty-eight hotels in nineteen states purportedly owned and/or operated by SHR. Compl. ¶ 21. In support of this request, Plaintiffs assume, based “[o]n information and belief, Sage owns and/or operates a number of other hotels in the United States that offer transportation services to their guests but do not offer equivalent transportation services to guests who use wheelchairs or scooters” and then lists ten other hotels in other states. Compl. ¶ 19. Upon the same purported information and belief, Plaintiffs refer to a variety of distinctly branded hotels including Element, Hilton, Marriott, Fairfield Inn & Suites, Courtyard, Hampton Inn, and Homewood Suites “believed” to be noncompliant. Id. Plaintiffs did not allege they attempted to contact these other hotels nor otherwise identify the basis for their alleged “information and belief.” III. ARGUMENT
A. SHR Does Not Own Or Operate The Oxford Hotel Or The TownePlace Suites. As a threshold matter, SHR is not a proper Defendant and Plaintiffs have no
standing with respect to SHR, because SHR does not own or operate The Oxford or TPS. Only an owner or operator of a public accommodation can be liable for Title III violations. See 42 U.S.C. § 12182 (a).2 To “operate” a place of public accommodation means to exercise control over the alleged discriminatory action and to have the authority to take
2 A leasee may also be liable under Title III, however, Plaintiffs made not such allegation in their Complaint.
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remedial measures. See Dahlberg v. Avis Rent A Car Sys., Inc., 92 F. Supp. 2d 1091, 1101-1102 (D. Colo. 2000). Moreover, to have standing to obtain injunctive relief, the plaintiff must establish, in part, the existence of a causal connection between the asserted injury-in-fact and the challenged action of the defendant and that the injury will be redressed by a favorable decision. Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). Because SHR is not an owner or operator of the hotels in question, SHR is not liable under Title III and Plaintiffs cannot establish a causal connection between any injury and SHR’s action or that an alleged injury can be redressed by an injunction against SHR.
In this case, documentary evidence clearly refutes Plaintiffs’ conclusory allegations that SHR owns or operates The Oxford or TPS. Plaintiffs allege that SHR “owns and/or operates” the Oxford and TPS, however, the operating agreement for each hotel identifies a different entity, neither of which is SHR. See Exhibits 1, 2, 4, & 5. Additionally, Plaintiffs’ Complaint alleges that SHR purchased or leased vehicles for use in their transportation system (Compl. ¶ 20), however, the actual leases for the vehicles at The Oxford and TPS again do not identify SHR. See Exhibits 1, 3, 4 & 6.3 In an analogous case, Herbert v. CHR Holding Corp., the court considered a lease agreement produced by defendant in a Rule 12(b)(6) motion to dismiss plaintiff’s ADA Title III complaint because the complaint alleged that defendant leased the property. 2015 U.S. Dist. LEXIS 9932, *4-6 (E.D. La. Jan. 28, 2015). Moreover, public records, accessible to Plaintiffs prior to filing the Complaint, reveal that SHR is not listed on the deeds to each property or the business
3 Consideration of such documents are permissible without converting this motion to one for summary judgment. See Wheeler v. Hurdman, 825 F.2d 257, 259 n.5 (10th Cir. 1987) (A Rule 12(b)(1) motion may include references to evidence extraneous to the complaint without converting it to a Rule 56 motion); See also Shifrin v. Colorado, 2010 U.S. Dist. LEXIS 86594, *7-9, 11-13 (D. Colo. July 22, 2010) (records of public agencies and documents incorporated by reference and central to a plaintiff’s claims may be considered in support of a Fed. R. Civ. P. 12(b)(6) motion.)
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licenses for the Hotels. See Exhibits 7-11; Shifrin, 2010 U.S. Dist. LEXIS 86594 at *11. These records clearly demonstrate that SHR is not a proper defendant because it is not the owner or operator of The Oxford or TPS. Accordingly, Plaintiffs’ Complaint should be dismissed in its entirety.
B. CREEC and Denny Lack Standing To Assert Injunctive Relief. Further, neither Denny nor CREEC have standing to assert claims of injunctive
relief as to hotels never contacted by Denny or CREEC. Article III, Section 2 of the United States Constitution limits federal jurisdiction to actual cases or controversies. A federal court therefore has an obligation to assure itself at the outset of the litigation that a litigant who seeks an injunction has Article III standing. See Friends of the Earth, Inc. v. Laidlaw Envtl. Serv.’s, Inc., 528 U.S. 167, 179-80 (2000). The standing doctrine ensures that the “scarce resources of the federal courts are devoted to those disputes in which the parties have a concrete stake.” Id. at 191. Even on a motion to dismiss, “standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record. . . .[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor, clearly to allege facts demonstrating that he is the proper party to invoke judicial resolution of the dispute.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990).
(1) Denny Lacks Personal Standing For Hotels She Never Contacted. Denny has no standing on her own behalf to challenge barriers at hotels she has not contacted and had no intention of visiting. In order to have standing, Denny must have suffered an injury in fact that is concrete and particularized and actual and imminent. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). For purposes of Title III,
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this requires that a plaintiff “prove knowledge of the barriers and that they would visit the [hotel] in the imminent future but for those barriers.” Steger v. Franco, 228 F.3d 889, 892 (8th Cir. 2000) (emphasis added). In this case, Denny has not alleged actual knowledge of any violations at other hotels purportedly owned or operated by SHR. Instead, Plaintiffs merely allege “upon information and belief” other hotels have similar transportation policies. Compl. ¶ 19. Indeed, the Complaint does not specify whether this was even Denny’s belief, the belief of CREEC’s other members, or of CREEC’s counsel.
The Complaint’s failure to allege that Denny had “actual knowledge” of other hotels’ transportation policies dooms her standing with respect to these hotels. In Clark v. McDonalds, the District Court refused to “infer actual notice” of an ADA Title III barrier at restaurants that the plaintiff had never visited, but which the plaintiff alleged to have a “general knowledge” regarding discriminatory features said to be commonplace at McDonald’s. 213 F.R.D. 198 (D.N.J. Mar. 3, 2003). Similarly, in Clark v. Burger King Corp., the plaintiff sought an injunction requiring Burger King to bring all of its US locations into compliance with the ADA. 255 F. Supp. 2d 334 (D.N.J. 2003). The Court held that the plaintiff had standing at the handful of restaurants at which he encountered accessibility barriers. Id. at 343. But, the plaintiff lacked standing to challenge locations where he did not know of any accessibility barriers “absent any allegation that there exist[ed] (1) particular commonality of construction, or (2) that [defendant] implement[ed] a corporate policy violative of the ADA.” Id.
Moreover, in Equal Rights Ctr. v. Hilton Hotels Corp., the Court rejected similar attempts to seek injunctive relief against 2,896 Hilton Family Brand Hotels, when the named plaintiffs only alleged knowledge of ADA Title III violations at 24 hotels. 2009 U.S.
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Dist. LEXIS 126645, *19-20 (D.D.C. Mar. 25, 2009). The Court rejected plaintiffs’ argument that the allegation in plaintiffs’ complaint that “their injuries arise from Hilton’s practices at a corporate level” was sufficient to state a claim for nationwide relief or demonstrative of a common corporate plan. Id. at 20. The Tenth Circuit addressed this issue in Colo. Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205, 12121213 (10th Cir. 2014). In Abercrombie, the Tenth Circuit held that an individual plaintiff does not have standing to seek a nationwide injunction in her own right because she would lack standing to pursue allegations against stores which she did not visit. Id. The Tenth Circuit relied upon the Seventh Circuit’s decision in Scherr v. Marriott Int’l, Inc., 703 F.3d 1069, 1075 (7th Cir. 2013), which held that an ADA plaintiff did not have standing to challenge the design of fifty-six hotels she had no plans ever to visit.
In this case, Denny has not alleged any specific knowledge of the conditions at hotels other than The Oxford or TPS. Instead, Plaintiffs allege “upon information and belief” that other hotels owned or operated by Sage do not offer accessible transportation services. These allegations are no different than the “general knowledge” allegations rejected in Clark v. McDonalds or the “practices at a corporate level” as alleged and rejected in Hilton Hotels Corp. Accordingly, Denny’s request for an injunctive relief for hotels she never contacted should be dismissed.
(2) Plaintiffs’ “Information and Belief” Allegations Are Insufficient. In deciding this Motion, this Court should not consider Plaintiffs’ “information and belief” allegations related to a common corporate policy because the Complaint does not allege any facts plausibly supporting such an inference. In Twombly, the complaint before the Supreme Court contained the similar allegation that: “Plaintiffs allege upon information
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and belief that [the Defendants] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.” Twombly, 550 U.S. at 551. The Supreme Court rejected this pleading as inadequate under Fed. R. Civ. P. Rule 8(a)(2) entitlement requirements. Id. at 555-556. The Supreme Court recognized that “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. at 555; See also Iqbal, 556 U.S. at 678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”)
Essentially, Plaintiffs seek to turn this Court into a national clearing house for Title III litigation and launch costly nationwide discovery based on Denny’s alleged actual knowledge of two distinctly branded hotels and their practices. A plausible inference cannot be drawn from these allegations that because two out of SHR’s purported sixtyeight hotels (less than three percent) do not provide equivalent transportation services, SHR has a corporate policy of non-compliance. See Hilton Hotels Corp., 2009 U.S. Dist. LEXIS 126645 at *20 (insignificant sample of noncompliant hotels is not sufficient to demonstrate “corporate policy of non-compliance” and prevent dismissal of class relief). Moreover, Plaintiffs cannot rely upon such information and belief pleading when there was nothing preventing Plaintiffs from calling the other hotels referenced in the Complaint and inquiring about their transportation services in order to provide support for their claim. Therefore, the invocation of the phrase “information and belief,” without more, does not satisfy the fact-based pleading and Rule 8 entitlement requirements of Twombly.
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(3) CREEC Lacks Associational Standing For Hotel’s Never Contacted. CREEC’s associational standing is limited to the standing of Denny. To have associational standing, CREEC must satisfy three requirements: “(a) Its members [must] otherwise have standing to sue in their own right; (b) the interests it seeks to protect [must be] germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested [must] require[] the participation of individual members in the lawsuit.” John Roe #2 v. Ogden, 253 F.3d 1225, 1230 (10th Cir. 2001) quoting Hunt v. Wash. St. Apple Adver. Comm’n, 432 U.S. 333, 343 (1977). To satisfy the first element of this Hunt test, “an organization suing as representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996). The scope of this associational standing is limited to the standing of its alleged members. See Clark, 255 F. Supp. 2d at 345 (an organizational plaintiff “has representative standing to assert ADA violations only in so far as [the named member] has standing.”) In Hilton Hotels Corp., the D.C. District Court rejected an association’s alleged standing to sue on behalf of unnamed members who encountered accessibility barriers at various unnamed Hilton branded hotels not visited by the named plaintiffs. Hilton Hotels Corp., 2009 U.S. Dist. LEXIS 126645 at *14. Instead, the association’s standing was limited to that of the hotels that its members identified in the complaint. Id. In this case, CREEC’s standing is limited to Denny’s standing because CREEC has not alleged any other member with specific knowledge of any purported barrier at any other hotels. This matter is analogous to CCDC v. Women’s Health Care Assocs., P.C.,
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where the District Court found that the Colorado Cross-Disability Coalition (“CCDC”), a signatory to the instant action, failed to include sufficient factual allegations supporting a claim for class-wide relief. 2010 U.S. Dist. LEXIS 119955, *11 (D. Colo. Oct. 25, 2010). CCDC merely alleged the defendant “maintains and/or engage [sic] in policies, practices and procedures that do not provide effective communication for patients who are deaf.” The District Court dismissed the class allegations because “there [were] no factual allegations supporting that conclusion … [and] [n]o class-wide relief would be appropriate on the basis of these allegations.” Id. Similarly, CREEC’s request for an injunction for hotels Denny never contacted should be dismissed.
(4) CREEC and Denny’ Failed to Plead Intent to Return. Plaintiffs further lack standing because Denny has not adequately pled an intent to ever stay at The Oxford, TPS or any other alleged SHR hotel in the future. In boilerplate fashion, Plaintiffs allege that “Denny would like to stay at the [specific hotel] in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist.” Compl. ¶ 18. To satisfy the injury-in-fact requirement for standing, however, Denny must set forth plausible allegations that she is likely to return to the hotels, otherwise no real threat of future injury exists. See e.g., Judy v. Pinhgue, 2009 WL 4261389, *2 (S.D. Ohio 2009); D’Lil v. Best Western Encina Lodge & Suites, 538 F.3d 1031, 1036 (9th Cir. 2008). “Someday” intentions without any description of concrete plans or any indication beyond mere speculation on when someday will occur, do not support a finding for real and imminent injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992); Access for Am., Inc. v. Associated Out-Door Clubs, Inc., 188 F. App’x 818 (11th Cir. 2006) (allegations that the plaintiff would return “someday” insufficient to establish standing); Steger, 228 F.3d at 892 (same).
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To determine whether a Title III plaintiff is likely to return to the defendant’s place of business, courts routinely examine: (1) the proximity of the plaintiff’s residence; (2) the plaintiff’s past patronage; (3) the definitiveness of the plaintiff’s plan to return; and (4) the plaintiff’s frequency of travel near the defendant. Harris v. Del Taco., Inc., 396 F. Supp. 2d 1107, 1114 (C.D. Cal. 2005 ) (plaintiff who lived over 500 miles away from the defendant restaurant lacked standing); Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D. Fla. 2003) (Miami plaintiff lacked standing to sue a hotel located hundreds of miles away in Clearwater, Florida, even though relatives resided 20 miles away); Brown v. Grand Island Mall Holdings, LTD, 2010 WL 489531, *4 (D. Neb. 2010) (The failure to provide dates or describe the purposes for any alleged prior visits “casts doubt” on whether a plaintiff will ever patronize a location in the future); See also Clark., 255 F. Supp. 2d at 343 (same). While an allegation of a specific date and time to return is not necessary, Plaintiffs must at least allege some fact that “would move Plaintiffs’ purported ‘desire to return’ from a pure speculative proposition to a real and immediate threat of future injury.” Stevens v. Premier Cruises, 215 F. Supp. 2d at 1237, 1239 (11th Cir. 2000).
In this case, Plaintiffs failed to plead sufficient facts for the Court to make a determination of standing. In an analogous case, the Court in Gilkerson dismissed a complaint because the plaintiff failed to plead the proximity of non-compliant ATMs to her home, past patronage, frequency of her travel near that ATM, and concrete plans to return. Gilkerson v. Chasewood Bank, 1 F.Supp.3d 570 (S.D. Tex., Feb. 27, 2014). Likewise, in this case, Plaintiff Denny did not plead any facts that would enable the Court to evaluate her conclusory “someday” stated intent to stay at The Oxford or TPS. Notably
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absent from the Complaint are any allegations regarding the city she lives in, her specific intentions to visit Denver or Boulder in the future, the reasons why she intended to visit the named hotels in the first instance, and whether she has ever visited Denver or Boulder. In fact, while Plaintiff alleges that she called these hotels, she did not state that she even visited the area at the time. Because CREEC’s standing is limited to the standing of Denny (see supra § III(B)(3)), and Denny has not alleged standing, Plaintiffs’ Complaint must be dismissed for this reason as well.
C. A Rule 23 Class For Nationwide Injunctive Relief Cannot Be Certified. Although Denny only contacted two hotels purportedly owned and/or operated by
SHR, she seeks to bring her Title III claim on behalf of a class of all mobility impaired disabled individuals on a nationwide basis. Plaintiffs assert that SHR has a common policy of not providing accessible transportation services at all of the hotels it owns or operates. However, nowhere in the Complaint do Plaintiffs allege any factual basis for this speculative assertion. Rather, in an apparent attempt to turn a routine individual accessibility suit into a nationwide class action, Plaintiffs assume that the accessibility violations Denny allegedly experienced were also experienced by a disabled individual at every one of SHR’s alleged hotels in states all across the country. Indeed, Plaintiffs’ Complaint confirms as much, as the key allegations supporting a class action are plead “on information and belief.” Compl. ¶ 19 (“On information and belief, Sage owns and/or operates a number of other hotels in the United States that offer transportation services to their guests but do not offer equivalent transportation services to guests who use wheelchairs or scooter”).
The nationwide injunctive relief sought by Plaintiffs is inappropriate because the Complaint lacks any factual allegations plausibly supporting a claim for nationwide injuries
13
FPDOCS 30445593.1

Case 1:15-cv-00236-REB-MEH Document 23 Filed 03/24/15 USDC Colorado Page 14 of 16
necessitating such relief. See Lewis v. Casey, 518 U.S. 343, 348-49 (1996) (an order of system wide class injunctive relief must be supported by widespread actual injury). Plaintiffs have not plead any set of facts that support a plausible assertion of such widespread systemic injuries. Federal courts have used motions to dismiss and/or strike to test the viability of a class at the earliest pleading stage of the litigation. See, e.g., Thompson v. Merck & Co., 2004 WL 62710, *2 (E.D. Pa. Jan. 6, 2004); Riley v. Compucom Sys., 2000 U.S. Dist. LEXIS 4096, *1 (N.D. Tex. Mar. 31, 2000); Lumpkin v. E.I. Du Pont de Nemours & Co., 161 F.R.D. 480, 481 (M.D. Ga. 1995); Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011) (A court may “deny class certification even before the plaintiff files a motion requesting certification”); Gen Tel. Co. of the S.W. v. Falcon, 457 U.S. 147, 160 (1982) (The court need not wait for a motion for class certification if “the issues are plain enough from the pleadings...”).
Under these circumstances, this Court should dismiss or strike the class action allegations to the extent Plaintiffs seek injunctive relief with respect to hotels for which Denny never contacted. In addition to the arguments contained in Section III(B)(2), supra, federal courts have confirmed that such “information and belief” allegations do not support class actions. See Spencer v. Reg’l Acceptance Corp., 2005 U.S. Dist. LEXIS 45221, at *4-5 (S.D. Fla. Aug. 19, 2005) (ruling that allegations “upon information and belief” of a nationwide policy of violating the FLSA does not support a collective action because, …[the plaintiff] has alleged no particularized facts supporting the existence of such a policy or practice on a national level.”); Treme v. HKA Enters., Inc., 2008 U.S. Dist. LEXIS 97420, *7 (W.D. La. Apr. 7, 2008) (ruling that allegations of the existence of similarly situated employees “upon information and belief” are insufficient to support a FLSA
14
FPDOCS 30445593.1

Case 1:15-cv-00236-REB-MEH Document 23 Filed 03/24/15 USDC Colorado Page 15 of 16

collective action); Nicholas v. CMRE Fin. Servs., Inc., 2009 U.S. Dist. LEXIS 49105, *11-

12 (D. N.J. June 9, 2009) (granting the defendant’s motion for a more definite statement

because “the Complaint does not set forth a sufficient factual basis for its class

allegations; indeed, the class allegations under Rule 23 in the Complaint are phrased as

legal conclusions based on the language of the class action pleading requirements”);

Smith v. Lyons, Doughty & Veldhuis, P.C., 2008 U.S. Dist. LEXIS 56725, *15-16 (D. N.J.

July 28, 2008) (dismissing the plaintiff’s class claims because “the Complaint alleges no

facts suggesting that [defendant] had a policy or practice of communicating with

consumers it knew to be represented by counsel. . .” and “[d]iscovery should not serve as

a fishing expedition during which Plaintiff searches for evidence in support of facts he has

not yet pleaded”). “Rule 8[…] does not unlock the doors of discovery for a plaintiff armed

with nothing more than conclusions.” Iqbal, 129 S. Ct. at 1950. Accordingly, this Court should dismiss Plaintiffs’ requested class relief as to hotels never contacted by Plaintiffs.4

CONCLUSION

Wherefore, Defendant Sage Hospitality Resources, LLC, respectfully requests that

this Honorable Court dismiss Plaintiffs’ Complaint with Prejudice, and grant such other

relief as deemed appropriate.

Date: March 24, 2015

Respectfully submitted,

Kevin S. Simon Steve A. Miller Scott C. Fanning Fisher & Phillips LLP 10 South Wacker Drive, Suite 3450 Chicago, IL 60606 Telephone: (312) 346-8061 Facsimile: (312) 346-3179

By: s/ Kevin S. Simon One of the Attorneys for Defendant Sage Hospitality Resources, LLC

4 Defendants reserve the right to submit more extensive certification briefing in the event this case progresses to that point.

15
FPDOCS 30445593.1

Case 1:15-cv-00236-REB-MEH Document 23 Filed 03/24/15 USDC Colorado Page 16 of 16
CERTIFICATE OF SERVICE
I certify that on this 24th day of March 2015, I electronically filed the foregoing pleading with the Clerk of Court using the CM/ECF system which will automatically send an e-mail notification of such filing to the following attorney of record:
Timothy P. Fox Sarah M. Morris Civil Rights Education and Enforcement Center 104 Broadway, Suite 400 Denver, CO 80203 Telephone: (303) 757-7901
Bill Lann Lee Joshua T.K. Davidson Julie Hayden Wilensky Lewis, Feinberg, Lee, Renaker & Jackson, P.C. 476 9th Street Oakland, CA 94607 Telephone: (510) 839-7839
Julia Campins Campins Benham-Baker, LLP 8 California Street Suite 703 San Francisco, CA 94111 Telephone: (415) 373-5334
Kevin William Williams Colorado Cross-Disability Coalition 655 Broadway, #775 Denver, CO 80203 Telephone: (303) 839-1782
Attorneys for Plaintiffs
/s/ Kevin S. Simon
16

 
 Case 1:15-cv-00236-REB-MEH Document 45 Filed 05/01/15 USDC Colorado Page 1 of 1
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00236-REB-MEH
CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons,
Plaintiffs,
v.
SAGE HOSPITALITY RESOURCES, LLC,
Defendant.
MINUTE ORDER
Entered by Michael E. Hegarty, United States Magistrate Judge, on May 1, 2015.
In light of the filing of the Amended Complaint (docket #29), Defendant’s Motion to Dismiss [filed March 24, 2015; docket #23] is denied as moot. See Franklin v. Kansas Dep’t of Corr., 160 F. App’x 730, 734 (10th Cir. 2005) (“An amended complaint supersedes the original complaint and renders the original complaint of no legal effect.”) (citing Miller v. Glanz, 948 F. 2d 1562, 1565 (10th Cir. 1991)); see also Robinson v. Dean Foods Co., No. 08-cv-01186-REB-CBS, 2009 WL 723329, at *4 (D. Colo. Mar. 18, 2009) (citation omitted) (“Generally, when an amended complaint is filed, the previous complaint is wiped out and the operative complaint is the most recently filed version.”).
Briefing on Defendant’s renewed motion to dismiss will proceed in accordance with D.C. Colo. LCivR 7.1(d) and all applicable federal and local rules.

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 15-cv-00236-REB-MEH
THE CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons,
Plaintiffs,
v.
SAGE HOSPITALITY RESOURCES LLC, SAGE OXFORD, INC., WALTER ISENBERG, and JOHN DOES 1-5,
Defendants.
ORDER OVERRULING OBJECTIONS AND ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
The matters before me are (1) Defendant Sage Hospitality Resources’ Motion to Dismiss Plaintiffs’ First Amended Complaint and Memorandum of Law [#43]1
filed May 1, 2015; (2) Defendant Walter Isenberg's Motion to Dismiss Plaintiffs'
First Amended Complaint and Memorandum of Law [#58] filed June 30, 2015; and
(3) the related Recommendation of United States Magistrate Judge [#115] filed
February 26, 2016. Defendants Sage Hospitality Resources LLC and Sage Oxford, Inc.
filed objections [#119] to the recommendation, and the plaintiffs filed a response [#120]
1 “[#43]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

to the objections. I overrule the objections and approve and adopt the recommendation. I grant the motion to dismiss of Mr. Isenberg. I deny the motion to dismiss of Sage Hospitality Resources.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which the defendants object. I have considered carefully the recommendation, the objections, the response to the objections, and the applicable case law, as well as the arguments raised, evidence cited, and authorities cited by the parties.
This putative class action case concerns transportation services provided by hotels. The plaintiffs commenced this action on February 4, 2015, alleging, essentially, that defendants Sage Hospitality Resources LLC (SHR), Walter Isenberg, and Sage Oxford, Inc. violated Title III of the Americans with Disabilities Act (Title III) by failing to provide wheelchair-accessible transportation services that are equivalent to the transportation services provided to non-disabled guests at the hotels of the defendants. After some preliminary discovery to determine the proper defendants in this action, the plaintiffs filed their amended complaint [#29], which is now the operative complaint. Both Sage Oxford and Mr. Isenberg joined [#57 & #58] in the motion to dismiss of SHR.
Appropriately, the magistrate judge converted a part of both motions to dismiss to motions for summary judgment. Because neither SHR nor Mr. Isenberg own, operate, or lease the hotels or the vehicles at issue in the complaint, the issue to which this conversion from motions to dismiss to motions for summary judgment applies is whether, as contended by SHR and Mr. Isenberg, the plaintiffs have standing to assert their ADA claim, and, thus relatedly, whether this court has subject matter jurisdiction over this claim. In addition, the defendants contend the plaintiffs do not have standing
2

to seek injunctive relief against the defendants under the ADA. In his recommendation, the magistrate judge provides a detailed and thorough
analysis of the standing issues raised by SHR and Mr. Isenberg, the facts evidenced in the record, and the applicable law. Ultimately, the magistrate judge concludes that the evidence reflects genuine issues of fact as to whether SHR controls two local hotels at issue in the complaint, the Oxford Hotel in Denver and TownePlace Suites in Broomfield, to the extent that SHR could cause these hotels to bring the vehicles they use for customer transportation into compliance with Title III. Recommendation, p. 23. With evidence that SHR does exercise such control, the plaintiffs have standing to assert their claim against SHR. On this issue, the magistrate judge recommends that the motion to dismiss [#43] of SHR, which has been converted to a motion for summary judgment on the issue of standing and subject matter jurisdiction, be denied.
However, the magistrate judge concludes that the plaintiffs do not have standing to assert their claim against Mr. Isenberg. On this issue, the magistrate judge recommends that the motion to dismiss [#58] of Mr. Isenberg, converted to a motion for summary judgment on the issue of standing and subject matter jurisdiction, be granted.
The defendants argue also that the plaintiffs lack standing to seek injunctive relief. Appropriately, the magistrate judge addresses this issue via the standards applicable under Fed. R. Civ. P. 12(b)(1). Ultimately, the magistrate judge concludes that the plaintiffs have standing to pursue their claim under Title III concerning The Oxford Hotel and TownePlace Suites. Further, the magistrate judge concluded that whether the plaintiffs may pursue a class action claim for injunctive relief against other hotels requires consideration of a Rule 23 motion to certify a plaintiff class.
Finally, the defendants contend in their motions that the allegations in the
3

amended complaint are not sufficient to state a claim on which relief can be granted under Title III. Properly setting aside for now any potential class action, the magistrate judge concludes that the allegations in the amended complaint, taken as true, state a plausible claim for relief under Title III the ADA against SHR and Sage Oxford.
In their objection [#119], SHR and Sage Oxford challenge the conclusion of the magistrate judge that there is sufficient evidence in the record to demonstrate a disputed issue of fact on the question of whether SHR has sufficient control over the Oxford Hotel and TownePlace Suites such that SHR could cause these hotels to bring the vehicles they use for customer transportation into compliance with Title III. They claim the evidence of control cited by the plaintiffs and the magistrate judge is not sufficient to overcome the evidence cited by SHR showing lack of lack of control. In addition, SHR and Sage Oxford contend the magistrate judge erred when he did not apply the narrow definition for which they advocate controlling who is a proper defendant in an ADA case concerning transportation services. Further, SHR and Sage Oxford continue to assert that the plaintiffs have not alleged that they suffered an injury in fact, an allegation required to establish the standing of the plaintiffs.
In their response [#120] to the objections, the plaintiffs present their contrary arguments. The issues raised in the objection and response are, in essence, the same issues addressed in the briefs of the parties concerning the motions addressed by the magistrate judge.
Although for some of the issues a close call, after de novo review I concur with the comprehensive analysis of the magistrate judge
4

THEREFORE, IT IS ORDERED as follows: 1. That the Recommendation of United States Magistrate Judge [#115] filed February 26, 2016, is approved and adopted as an order of this court; 2. That under Fed. R. Civ. P. 56, Defendant Sage Hospitality Resources’ Motion to Dismiss Plaintiffs’ First Amended Complaint and Memorandum of Law [#43] filed May 1, 2015, converted to a motion for summary judgment on the issue of standing and subject matter jurisdiction, is denied; 3. That under Fed. R. Civ. P. 56, Defendant Walter Isenberg's Motion to Dismiss Plaintiffs' First Amended Complaint and Memorandum of Law [#58] filed June 30, 2015, converted to a motion for summary judgment on the issue of standing and subject matter jurisdiction, is granted; 4. That as to defendant Walter Isenberg, the complaint [#29] is dismissed; 5. That defendant Walter Isenberg shall be dropped as a named defendant in this action, and the caption shall be amended accordingly; and 6. That under Fed. R. Civ. P. 12(b)(1) and (b)(1), Defendant Sage Hospitality Resources’ Motion to Dismiss Plaintiffs’ First Amended Complaint and Memorandum of Law [#43] filed May 1, 2015, is denied otherwise. Dated March 28, 2016, at Denver, Colorado.
BY THE COURT:
5

 
 Case 1:15-cv-00236-REB-MEH Document 115 Filed 02/26/16 USDC Colorado Page 1 of 37
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00236-REB-MEH CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons,
Plaintiffs, v. SAGE HOSPITALITY RESOURCES, LLC, SAGE OXFORD, INC., WALTER ISENBERG, and JOHN DOES 1-5,
Defendants. ______________________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE ______________________________________________________________________________ Michael E. Hegarty, United States Magistrate Judge.
Before the Court are Defendant Sage Hospitality Resources’ Motion to Dismiss Plaintiffs’ First Amended Complaint [filed May 1, 2015; docket #43], in which Defendant Walter Isenberg and Sage Oxford, Inc. joined, and Defendant Isenberg’s Motion to Dismiss Plaintiffs’ First Amended Complaint [filed June 30, 2015; docket #58], portions of which the Court converted to motions for summary judgment (see infra). Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the matters are referred to this Court for recommendation. After the exchange of limited preliminary discovery and the conversion to summary judgment, the motions are now fully briefed, and the Court concludes that oral argument would not materially assist in its adjudication of the motions.
BACKGROUND I. Procedural History
Plaintiffs commenced this action on February 4, 2015 alleging essentially that Defendant

Case 1:15-cv-00236-REB-MEH Document 115 Filed 02/26/16 USDC Colorado Page 2 of 37
Sage Hospitality Resources (“SHR”) violated Title III of the Americans with Disabilities Act (“Title III”) by failing to provide wheelchair-accessible transportation services that are equivalent to the transportation services provided to nondisabled guests at SHR’s hotels. Complaint, docket #1. SHR filed a motion to dismiss the Complaint on March 24, 2015, then filed a motion to stay proceedings pending resolution of the dispositive motion. Dockets ## 23, 25. On April 7, 2015, this Court heard the motion to stay and granted it in part to allow the Plaintiffs to engage in preliminary discovery to determine the proper defendant(s) against whom to bring this action. Docket #28.
On April 14, 2015, the Plaintiffs filed the operative Amended Complaint against SHR, Sage Oxford, Inc. (“Sage Oxford”) and Walter Isenberg (“Isenberg”) alleging essentially the same facts and claim against all Defendants. Docket #29. After SHR filed the present motion to dismiss the Amended Complaint, this Court denied the original motion as moot. Docket #45. Then, on May 11, 2015, this Court held a Status Conference at which it granted Plaintiffs permission to take a deposition pursuant to Fed. R. Civ. P. 30(b)(6) and stayed both discovery and the Plaintiffs’ response to the motion to dismiss pending completion of the deposition. Docket #46. During the course of a discovery dispute concerning the deposition, Sage Oxford filed a joinder in SHR’s motion to dismiss and Isenberg filed his own (present) motion to dismiss the Amended Complaint on June 30, 2015. Dockets ## 57, 58. Thereafter, the Court granted the parties’ requests for extensions of time to complete briefing for the present motions. Dockets ## 68, 76, 79, 83, 95.
SHR and Sage Oxford contend that SHR does not own, operate, or lease the hotels identified in the Amended Complaint; Plaintiffs have no standing to bring nationwide class claims; Plaintiffs fail to allege a credible threat of immediate harm; and Plaintiffs have not pled a plausible basis for nationwide class relief. Docket #43. In turn, Isenberg argues he does not own, operate, or lease the
2

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hotels identified in the Amended Complaint, and Plaintiffs’ allegations are insufficient to state a plausible basis for individual liability under Title III.
Following a preliminary review of the parties’ briefs opposing and supporting the motions, this Court determined that Defendants raised new arguments in their reply briefs concerning 42 U.S.C. §§ 12182(b)(2)(B) & (C). See Home Design Servs., Inc. v. B&B Custom Homes, LLC, 509 F. Supp. 2d 968, 971 (D. Colo. 2007) (“[R]eply briefs reply to arguments made in the response brief – they do not provide the moving party a new opportunity to present yet another issue for the court’s consideration.”). That is, the Defendants argued in their motions that they are “not owners, operators, or lessees of a public accommodation” pursuant to 42 U.S.C. § 12182(a), but they did not cite, nor even mention, §§ 12182(b)(2)(B) & (C) in the motions. See dockets ## 43 at 4-7, 58 at 5-9. Accordingly, the Court permitted the Plaintiffs to file sur-replies to address only the new arguments; Plaintiffs timely filed a single sur-reply on December 7, 2015. As explained below, the Court converted portions of the motions to motions for summary judgment, and the parties filed all final briefing on January 20, 2016. II. Findings of Fact
The Court makes the following findings of fact for analysis pursuant to Fed. R. Civ. P. 56 viewed in the light most favorable to the Plaintiffs, who are the non-moving parties in this matter. 1. The stated general purposes of SHR, as recited in its Limited Liability Company Agreement, are:
to engage in activities related to the hospitality industry, including but not limited to the development, acquisition and operation of hotel assets, brokerage and consulting services relating to such activities, and any other activities in which a limited liability company formed under the Act may engage. Any of the foregoing may be conducted directly by the Company or indirectly through another company, joint venture or other arrangement.
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Docket #90-7 at 10. 2. Defendant Isenberg is the President and CEO of SHR. Rule 30(b)(6) Deposition of Harris White, September 3, 2015 (“White Depo”), 163: 13-15. 3. According to SHR’s website, http://www.sagehospitality.com, it is “a respected and successful hotel operator and investor” and is “one of the largest hotel management companies in the US. Our hotel portfolio ranges from large, urban, full-service hotels to select-service suburban properties,” which includes the subject hotels in this action, The Oxford Hotel and TownePlace Suites by Marriott Boulder Broomfield. See SHR Website Pages, January 15, 2016, dockets ##1111, 111-2, and 111-3. 4. Paul McCormick and Vincent Piro, both SHR’s Division Vice Presidents of Operations, Premier and Lifestyle, are “responsible for all day to day operations of the hotels with an emphasis on staff training, service delivery, expense control and financial performance.” Dockets ##111-4 and 111-5. The Oxford Hotel is listed as one of SHR’s “Premier & Lifestyle” hotels on its website. Docket #111-2 at 3. 5. Jan Lucas, SHR’s Regional Vice President, Premium Branded Division, is “responsible for all aspects of support and performance for hotels which includes Premium Branded Select Service and Full Service properties and several independent boutique hotels.” Docket #111-6. TownePlace Suites by Marriott Boulder Broomfield is listed as a “Select Service” hotel on SHR’s website. 6. As of April 30, 2015, Fred Kleisner was employed by Sage Oxford and was the General Manager of The Oxford Hotel located at 1600 17th Street, Denver, CO 80202. Declaration of Fred Kleisner, April 30, 2015, docket #43-1. Mr. Kleisner has personal knowledge that SHR does not lease the Oxford Hotel property. Id.
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7. Mr. Kleisner reports to Mr. McCormick. White Depo, 46: 11-20.
8. Isenberg is a director and holds the office of President of Sage Oxford. According to Sage
Oxford’s bylaws, the President “shall be the principal executive officer of the corporation and,
subject to the control of the directors, shall, in general, supervise and control all of the business and
affairs of the corporation.” Docket #90-9 at 7.
9. An entry from the website, https://www.sec.gov/Archives/edgar/data, dated June 22, 2015,
provides information concerning “Mortgage Loan No. 8 - Millenium Financial Center,” which
originated on May 2, 2006 by or on behalf of Principal Commercial Funding II, LLC for a property
managed by Sage Oxford, Inc. Docket #89-2. The entry provides the following information:
PROPERTY MANAGEMENT. The Millennium Financial Center Property is managed by Sage Oxford, Inc. which is an affiliate of the Millennium Financial Center Borrower. The management agreement is subordinate to the Millenium Financial Center Loan. Walter Isenberg is the co-founder of Sage Hospitality Resources and serves as the company’s President and CEO. Sage Oxford, Inc., an affiliate of Sage Hospitality Resources[,] manages and leases the Millenium Financial Center Property. Sage Oxford, Inc. specializes in the operations, development, and capital transactions of hospitality real estate. Sage Oxford, Inc. owns and operates 44 hotels in 19 states, ranging from large, urban full-service hotels to smaller, limited-service suburban properties. Mr. Isenberg directs all company operations, including hotel development, asset management, and property management. Sage Oxford, Inc. has been managing the property since it was built in 2000.
Id.
10. A March 20, 2015 search result on the website http://www.denvergov.org/Property reveals
information from the Denver Property Assessment and Taxation System and lists Oxford 2005 LLLP (“Oxford 2005") as the owner of the property at 1600 17th Street. Docket #43-8 at 2.
11. Oxford 2005 is a partner of Cornerstone Oxford Company, Inc. (“Cornerstone”) and the sole
member of Oxford 2005 Holdings LLC (“Oxford Holdings”). Docket #91-11. As of March 6, 2007,
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Isenberg was the President of Cornerstone. Id. 12. On August 1, 2012, representatives from Alamo Leasing Company, Inc. (“Alamo”) and Oxford Holdings executed a “Schedule A” to a Master Lease Agreement, in which Alamo agreed to lease to Oxford Holdings a 2013 Cadillac Escalade for use at The Oxford Hotel. Docket #43-3 at 2. 13. A “Business-Professional License” was issued by the City and County of Denver on April 9, 2014 (expired April 29, 2015) to “McCormick & Schmick Rest & Oxford 2005 Holdings” for McCormick’s Fish House & Bar and The Oxford Hotel at 1600 17th Street, Denver, CO. Docket #43-10 at 2. 14. As of April 30, 2015, Sam Karabel was employed by Sage TPS, LLC and was the General Manager of Townplace Suites Broomfield located at 480 Flatiron Boulevard, Broomfield, CO 80021. Declaration of Sam Karabel, April 30, 2015, docket #43-4. Mr. Karabel has personal knowledge that SHR does not lease the Townplace Suites Broomfield property. Id. 15. A 2015 Management Agreement for Towneplace Suites Boulder Broomfield, which is “by and between” BRE Avalanche Property Owner LLC as “Owner” of the property at 480 Flatiron Blvd. and Sage TPS, LLC as “Manager,” reflects that “Owner desires to turn over to Manager the operation, direction, management and supervision of the Hotel, and Manager desires to assume all such responsibilities as agent for and on the account of Owner upon the terms and subject to the conditions set forth in this Agreement.” Docket #90-6 at 6. 16. Sage TPS is a 100% subsidiary of SHR. White Depo: 128: 8-9. “Sage Hospitality Resources has the management agreement through its wholly owned subsidiary, Sage TPS, LLC, for the provision of the services that are outlined in the agreement.” Id., 128: 2-5.
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17. Sage TPS specified SHR as a named insured pursuant to the Management Agreement because “Sage Hospitality Resources is a hundred-percent owner of the membership interest of Sage TPS, LLC.” Id., 134: 9-21; docket #90-6 at 32. In addition, the Agreement provides that Sage TPS may assign its rights and obligations under the Agreement without the Owner’s consent to certain specified entities “so long as no such assignment or transfer ... results in a Change in Control of [Sage TPS] or Sage Hospitality Resources, LLC.” Docket #90-6 at 41. Finally, the Agreement provides for “group services” by SHR that are provided “to all of [SHR’s] operated hotels,” including payroll, conferences and training. Id. at 58. 18. Sage Management Services, Inc. (“SMS”) is the manager of Sage TPS and “most of [SHR’s] LLC entities.” White Depo, 10: 11-17. 19. Isenberg is a director and holds the office of President of SMS. Docket #90-12. According to SMS’s bylaws,1 the President “shall be the principal executive officer of the corporation and, subject to the control of the directors, shall, in general, supervise and control all of the business and affairs of the corporation.” Docket #90-11 at 7. 20. A March 20, 2015 search result on the website http://gis.broomfield.org/apps/ParcelSearch reveals information from a Broomfield Parcel Report for 480 Flatiron Blvd. and lists TPS Broom LLC as the owner of the property at 480 Flatiron Blvd. Docket #43-9 at 2. 21. A “Lodging Tax License” was issued on August 21, 2012 and a “Sales Tax License” was issued on August 28, 2012 by the City and County of Broomfield to “TPS Broom LLC” for TownePlace Suites Broomfield at 480 Flatiron Blvd., Broomfield, CO. Docket #43-11 at 2, 4.
1“So Mr. Isenberg, as president of Sage Management Services, Inc., his duties would be outlined in the bylaws of Sage Lano, Inc., which was the predecessor to Sage Management Services, Inc.” White Depo, 151: 5-8.
7

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22. On March 23, 2011, representatives from Alamo Leasing Company, Inc. (“Alamo”) and JER ES Broom, LLC (“Broom”) executed a “Schedule A” to a Motor Vehicle Master Closed End Lease Agreement, in which Alamo agreed to lease to Broom a 2011 Ford E150 Club Wagon XLT for use at Townplace Suites - Boulder Broomfield. Docket #43-6 at 2. 23. However, on August 28, 2013, Broom filed with the Colorado Secretary of State a “Statement of Foreign Entity Withdrawal” asserting it “will no longer transact business or conduct activities in Colorado and relinquishes its authority to transact business or conduct activities in Colorado.” Docket #90-2 at 2-3. III. Statement of Other Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiffs in the operative Amended Complaint, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(1) pursuant to Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) and under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiff Margaret Denny (“Denny”) is a member of Plaintiff Civil Rights Education and Enforcement Center (“CREEC”) and is and has been at all relevant times a resident of the State of Colorado. Among other impairments, Denny has chronic pain and uses a motorized wheelchair for mobility. She has a disability within the meaning of the ADA, 42 U.S.C. § 12102. Because Denny requires a wheelchair-accessible vehicle in order to utilize transportation services offered by hotels, she has a personal interest in ensuring that hotels comply with federal requirements governing provision of accessible transportation services to hotel guests. She is also a tester in this litigation.
SHR is a hotel management, investment, and development company incorporated in
8

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Delaware, with its principal place of business at 1575 Welton Street, Suite 300, Denver, Colorado. According to its website, SHR owns and/or operates more than 75 hotels throughout the United States, including approximately 22 hotels in the State of Colorado, and “manages 18 hotels in the Denver Metro area, giving one-stop shopping with a distinctive mix of hotel brands and types to satisfy any needs and budget.” Among the 18 hotels that Sage Hospitality claims to manage are The Oxford Hotel and the TownePlace Suites by Marriott Boulder Broomfield (“TPS”).
TPS is located in Broomfield, CO, and provides its guests with a local shuttle service within a five-mile radius of the hotel. On or about October 16, 2014, Denny telephoned TPS and asked whether it provided wheelchair-accessible shuttle services. A TPS representative informed her that the hotel does not offer wheelchair-accessible shuttle services. If the hotel had provided wheelchair-accessible shuttle services, Denny intended to stay there and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
Denny would like to stay at the TPS in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist. She is currently deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services. Thus, Denny will continue to test this TPS and other covered hotels by calling several times per year to see whether wheelchair-accessible shuttle services are available.
The Oxford Hotel located in Denver, CO (“The Oxford”) provides its guests with a local shuttle service within a two-mile radius of the hotel. On or about October 16, 2014, Denny telephoned The Oxford and asked whether it provided wheelchair-accessible shuttle services. A hotel representative informed her that The Oxford does not offer wheelchair-accessible shuttle services. If the hotel had provided wheelchair-accessible shuttle services, Denny intended to stay
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there and to use those services. She was deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services.
Denny would like to stay at The Oxford in the future and use the hotel’s transportation services, and will do so if she is informed that such accessible services exist. She is currently deterred from doing so by the hotel’s lack of wheelchair-accessible shuttle services. Thus, Denny will continue to test The Oxford and other covered hotels by calling several times per year to see whether wheelchair-accessible shuttle services are available.
On information and belief, Defendants own, lease (or lease to) and/or operate a number of other hotels in the United States that offer transportation services to their guests but do not offer equivalent transportation services to guests who use wheelchairs or scooters. For example, prior to the initiation of this lawsuit, Ms. Corbett O’Toole, a member of CREEC who uses a wheelchair for mobility, called the following hotels, all of which purport to offer transportation to their guests. During the calls, Ms. O’Toole confirmed that each hotel offered transportation services to its guests and asked whether the hotel provided accessible transportation services, but none of them did:
Fairfield Inn & Suites Indianapolis Airport, 5220 W Southern Ave., Indianapolis, IN Courtyard Grand Rapids Airport, 4741 28th St. SE, Grand Rapids, MI Minneapolis Marriott Southwest, 5801 Opus Pkwy., Minnetonka, MN Courtyard Charlotte Airport, 2700 Little Rock Rd., Charlotte, NC Element Ewing Princeton, 1000 Sam Weinroth Rd. E, Ewing, NJ Fairfield Inn Las Vegas Airport, 3850 S. Paradise Rd., Las Vegas, NV Hampton Inn Long Island – Brookhaven, 2000 N Ocean Ave., Farmingville, NY Courtyard Cleveland Beachwood, 3695 Orange Pl., Beachwood, OH Courtyard Dallas Addison/Midway, 4165 Proton Dr., Addison, TX Ms. O’Toole also called the Homewood Suites by Hilton San Francisco Airport - North, 2000 Shoreline Ct., Brisbane, CA. This hotel provides transportation services to its guests without any advance notice requirement. When Ms. O’Toole asked if the hotel provided accessible transportation
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services, she was told that guests requiring accessible transportation would need to notify the hotel 24 hours in advance of the time that the guest needed the accessible transportation.
On information and belief, after August 25, 1990, Defendants have purchased or leased vehicles for use on fixed-route and/or demand-responsive transportation systems in place at their hotels.
CREEC brings this action based on associational standing on behalf of its members. CREEC’s members – including Denny – include persons with disabilities who use wheelchairs or scooters for mobility, who would like to stay at Defendants’ hotels and use their transportation services, but have been deterred and prevented from doing so by the failure of those hotels to provide equivalent, wheelchair-accessible transportation services. Because CREEC seeks only declaratory and injunctive relief, individual participation of CREEC members is not required.
LEGAL STANDARDS I. Conversion from Fed. R. Civ. P. 12(b)(1) to Fed. R. Civ. P. 56
Defendants originally filed the present motions pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of subject matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff’s case, but only a determination that the court lacks authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906,
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909 (10th Cir. 1974). A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere [conclusory] allegations of jurisdiction.” Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. See Basso, 495 F.2d at 909.
Here, the Plaintiffs challenged whether Defendants’ motions to dismiss for lack of subject matter jurisdiction should be converted to motions for summary judgment, since “the jurisdictional question is intertwined with the merits of the case” where jurisdiction is dependent on the same statute that provides the substantive claim in the case. Defendants countered that the evidence they supplied with their motions constitutes either matters of public record or information incorporated by reference in the operative pleading and, thus, need not serve as a basis to convert the motions. The Court disagreed with Defendants, at least as to their primary jurisdictional argument, and found the jurisdictional claim and merits of this case sufficiently “intertwined.” See docket #110; see also Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 978 (10th Cir. 2002) (district court properly converted motion to dismiss to one for summary judgment where jurisdictional question involved whether defendant was an “employer” under the ADA and defendant attached payroll records and an affidavit). In support of their argument that SHR and Isenberg do not own, operate, or lease the subject hotels or vehicles, Defendants cite to the declarations of the hotels’ general managers, which provide the managers’ “personal knowledge” regarding whether the hotel properties are leased by SHR. Dockets ##43-1, 43-4. Such declarations are neither “matters of public record” nor “information incorporated by reference in the operative pleading.” To the extent the Defendants intend that the Court rely on such information, the Court determined that the portions of the motions asserting such arguments must be converted to Rule 56.
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II. Dismissal under Fed. R. Civ. P. 56 A motion for summary judgment serves the purpose of testing whether a trial is required.
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1185 (10th Cir. 2003). The Court shall grant summary judgment if the pleadings, depositions, answers to interrogatories, admissions, or affidavits show there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
The moving party bears the initial responsibility of providing to the Court the factual basis for its motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “The moving party may carry its initial burden either by producing affirmative evidence negating an essential element of the nonmoving party’s claim, or by showing that the nonmoving party does not have enough evidence to carry its burden of persuasion at trial.” Trainor v. Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002). Only admissible evidence may be considered when ruling on a motion for summary judgment. World of Sleep, Inc. v. La-Z-Boy Chair Co., 756 F.2d 1467, 1474 (10th Cir. 1985).
The non-moving party has the burden of showing there are issues of material fact to be determined. Celotex, 477 U.S. at 322. That is, if the movant properly supports a motion for summary judgment, the opposing party may not rest on the allegations contained in his complaint, but must respond with specific facts showing a genuine factual issue for trial. Fed. R. Civ. P. 56(e); Scott v. Harris, 550 U.S. 372, 380 (2007) (“[t]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.”) (emphasis in original) (citation
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omitted); see also Hysten v. Burlington Northern & Santa Fe Ry., 296 F.3d 1177, 1180 (10th Cir. 2002). These specific facts may be shown “‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings themselves.’” Pietrowski v. Town of Dibble, 134 F.3d 1006, 1008 (10th Cir. 1998) (quoting Celotex, 477 U.S. at 324). “[T]he content of summary judgment evidence must be generally admissible and . . . if that evidence is presented in the form of an affidavit, the Rules of Civil Procedure specifically require a certain type of admissibility, i.e., the evidence must be based on personal knowledge.” Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). “The court views the record and draws all inferences in the light most favorable to the non-moving party.” Pepsi-Cola Bottling Co. of Pittsburg, Inc. v. Pepsico, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005). III. Dismissal under Fed. R. Civ. P. 12(b)(6)
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two-prong analysis. First, a court must identify “the allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
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they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.
However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,” so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” the complaint has made an allegation, “but it has not shown that the pleader is entitled to relief.” Id. (quotation marks and citation omitted).
ANALYSIS I. Jurisdictional Defenses
Defendants SHR and Isenberg contend the Plaintiffs do not have standing to bring Title III claims against them because these Defendants do not own, lease, or operate the subject hotels, The
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Oxford and TPS and, thus, Plaintiffs fail to establish that a judgment against SHR and Isenberg would redress their injuries. SHR asserts that Plaintiffs’ allegations to the contrary are insufficient and contradictory, particularly where documentation establishes who actually operates these hotels. Further, Defendants state that Plaintiffs have failed to plead an intent to return to the hotels and, thus, fail to show real and imminent injury. Finally, Defendants argue the Plaintiffs lack standing to seek injunctive relief as to any hotels other than The Oxford and TPS.
Plaintiffs counter that SHR and Isenberg were named as Defendants based on their own representations on websites and public documents that they own and/or operate the subject hotels. In addition, SHR’s Rule 30(b)(6) witness testified that SHR’s website lists hotels it “operates through its subsidiaries.” Plaintiffs also state that SHR’s role as an “operator” is confirmed by evidence that it controls these hotels’ managers and owners. Plaintiffs conclude that Defendants’ other standing arguments are contrary to Tenth Circuit precedent.
Defendants reply first that Plaintiffs impermissibly add allegations in their response brief, and next that their motions need not be converted to motions under Rules 12(b)(6) or 56 based on the attached documents. After repeating certain other arguments made in the motions, Defendants also argue that Plaintiffs fail to meet the standards for standing in 42 U.S.C. §§ 12182(b)(2)(B) & (C). The Court determined this latter argument to be “new” and permitted Plaintiffs to file a surreply.
For their surreply, Plaintiffs contend the Defendants rely on the incorrect definition of “operate” for application of §§ 12182(b)(2)(B) & (C) to the facts of this case. In addition, Plaintiffs assert that the Department of Justice has explicitly incorporated the transportation regulations and extended their coverage to any entity that owns, operates, or leases to a place of public
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accommodation. As set forth above, this Court determined on December 28, 2015 that Defendant’s proffer of personal affidavits in support of its lack of standing argument required conversion of the motion to dismiss into a motion for summary judgment.
Standing is an essential component of the case-or-controversy requirement of Article III of the United States Constitution. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff has the burden of establishing standing in order to invoke the jurisdiction of the federal courts. Id. at 561. To establish Article III standing, a plaintiff must allege that 1) he or she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be redressed by the relief requested. Tandy v. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). Moreover, a claim for a future injury constitutes mere speculation or conjecture and does not warrant invocation of jurisdiction. See O’Shea v. Littleton, 414 U.S. 488, 497 (1974); see also L.A. v. Lyons, 461 U.S. 95, 111 (1983) (holding, “The speculative nature of [Plaintiff’s] claim of future injury requires a finding that this prerequisite of equitable relief has not been fulfilled.”).
A. Are SHR and Isenberg Proper Defendants?2 Defendants SHR and Isenberg first assert they do not own, lease, or operate the subject hotels as defined by Title III of the ADA, 42 U.S.C. § 12181, et seq. Title III of the ADA prohibits discrimination against persons with disabilities in places of public accommodation. 42 U.S.C. § 12182(a). Section 12182(a) provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages,
2As set forth above, the Court will analyze this issue pursuant to Fed. R. Civ. P. 56. 17

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or accommodations of any place of public accommodation by any person who owns, leases (or
leases to), or operates a place of public accommodation.” Id. § 12182(a); see also Colo. Cross
Disability Coalition v. Hermanson Family Ltd. P’ship, 264 F.3d 999, 1002 (10th Cir. 2001). The
Act also “provides a private right of action for preventative relief, including an application for a
permanent or temporary injunction or restraining order for ‘any person who is being subjected to
discrimination on the basis of disability in violation of’ Title III.” Hermanson Family, 264 F.3d at
1001-02 (quoting §§ 12182(a)(1), 2000a-3(a)).
No party disputes that Plaintiffs’ claim arises under 42 U.S.C. §12182(b)(2)(B), which
governs the conduct of private entities that offer public transportation via a “fixed route system,”
and 42 U.S.C. § 12182(b)(2)(C), which governs the conduct of private entities that offer public
transportation via a “demand responsive system.” Specifically, these sections provide:
(B) Fixed route system
(i) Accessibility
It shall be considered discrimination for a private entity which operates a fixed route system and which is not subject to section 12184 of this title to purchase or lease a vehicle with a seating capacity in excess of 16 passengers (including the driver) for use on such system, for which a solicitation is made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.
(ii) Equivalent service
If a private entity which operates a fixed route system and which is not subject to section 12184 of this title purchases or leases a vehicle with a seating capacity of 16 passengers or less (including the driver) for use on such system after the effective date of this subparagraph that is not readily accessible to or usable by individuals with disabilities, it shall be considered discrimination for such entity to fail to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities.
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(C) Demand responsive system
For purposes of subsection (a) of this section, discrimination includes –
(i) a failure of a private entity which operates a demand responsive system and which is not subject to section 12184 of this title to operate such system so that, when viewed in its entirety, such system ensures a level of service to individuals with disabilities, including individuals who use wheelchairs, equivalent to the level of service provided to individuals without disabilities; and
(ii) the purchase or lease by such entity for use on such system of a vehicle with a seating capacity in excess of 16 passengers (including the driver), for which solicitations are made after the 30th day following the effective date of this subparagraph, that is not readily accessible to and usable by individuals with disabilities (including individuals who use wheelchairs) unless such entity can demonstrate that such system, when viewed in its entirety, provides a level of service to individuals with disabilities equivalent to that provided to individuals without disabilities.
Id. In other words, for all purchases or leases after August 25, 1990 for a fixed route system,
vehicles with a seating capacity over 16 passengers must be wheelchair-accessible and vehicles with
a seating capacity of less than 16 passengers must be either wheelchair-accessible or equivalent
service must be provided. In addition, a demand responsive system must operate such that its
service is equally accessible to both disabled and non-disabled passengers.
In their motions, SHR and Isenberg contend they are not subject to Title III of the ADA at
all because they do not own, lease, or operate The Oxford or TPS, as demonstrated by the attached
affidavits, management agreements and vehicle lease agreements. Plaintiffs counter that the
evidence demonstrates an issue of fact as to whether SHR and Isenberg “operate” the hotels. In
reply, SHR and Isenberg argue “the ‘own, lease, or operate’ standard does not apply to subsections
12182(b)(2)(B) & (C) as it does the general prohibition against discrimination.” Reply, docket #102
at 4. Plaintiffs respond that SHR and Isenberg use the incorrect definition of “operate” in support
of their arguments and ignore the Department of Justice’s incorporation and extension of the
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transportation regulations to “any entity that owns, operates, leases or leases to a place of public accommodation.” Surreply, docket #109 at 4.
SHR and Isenberg argue first that to demonstrate discrimination pursuant to subsections 12182(b)(2)(B)(i) & (C)(ii), a named defendant must be the “purchaser” or “lessor” of a vehicle intended for use in a fixed route system. Logically, then, the term “private entity” in these sections must have a different meaning than “a place of public accommodation” identified in Section 12182(a). They assert that the specific subsections 12182(b)(2)(B) & (C) control over the “conflicting” general discrimination provision. However, SHR and Isenberg fail to explain how these provisions conflict with one another. See Nitro-Lift Techs., LLC v. Howard, -- U.S. --, 133 S. Ct. 500, 504 (2012) (“the ancient interpretive principle that the specific governs the general ... applies only to conflict between laws of equivalent dignity.”) (emphasis added); see also Shawnee Tribe v. U.S., 423 F.3d 1204, 1213 (10th Cir. 2005) (“It is a ‘fundamental canon of statutory construction that, when there is an apparent conflict between a specific provision and a more general one, the more specific one governs.’”) (citation omitted).
In fact, subsection 12182(b)(2)(C) specifically identifies what constitutes discrimination “for purposes of” section 12182(a). By referencing section 12182(a) without limitation at the outset, subsection 12182(b)(2)(C) incorporates the entirety of the provision, including “any person who owns, leases (or leases to), or operates a place of public accommodation.” Further, it would be incongruent to interpret the term, “private entity,” in subsection 12182(b)(2)(B)(i) & (C)(ii) differently than that in subsection 12182(b)(2)(B)(ii) & (C)(i) except, of course, for the obvious difference in the type of transportation systems these entities operate. Finally, the statute itself defines places of accommodation as follows:
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(7) Public accommodation The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce-(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor; ... 42 U.S.C. § 12181(7)(A) (emphasis added). Consequently, the Court finds the term, “private entity” consistent with, and not distinct from “a place of public accommodation” identified in Section 12182(a). Thus, a properly named defendant alleged to have discriminated against a plaintiff in violation of these provisions would be an owner, lessor, lessee, or operator of the “private entity” identified in subsections 12182(b)(2)(B) & (C). Plaintiffs also cite to the regulations accompanying the statute, saying the Department of Justice, which is responsible for implementing the statutory requirements of Title III, has explicitly incorporated the Department of Transportation “Accessible” Regulations. See 28 C.F.R. § 36.310. One such regulation defines “operate” to “include[], with respect to a fixed route or demand responsive system, the provision of transportation service by a public or private entity itself or by a person under a contractual or other arrangement or relationship with the entity.” 49 C.F.R. § 37.3. The regulations also provide: Shuttle systems and other transportation services operated by privately-owned hotels, car rental agencies, historical or theme parks, and other public accommodations are subject to the requirements of this part for private entities not primarily engaged in the business of transporting people. Either the requirements for demand responsive or fixed route service may apply, depending upon the characteristics of each individual system of transportation. 49 C.F.R. §37.37(b). Accordingly, Plaintiffs argue, and the Court agrees, a defendant is governed by these regulations if it has a contractual or other arrangement or relationship with the place of
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public accommodation and is, thus, an “operator” of the place in accordance with 42 U.S.C. § 12182(a) and pursuant to Department of Transportation regulations.
In light of this finding and the undisputed facts that The Oxford and TPS are private entities and places of public accommodation that provide transportation services via fixed route or demand responsive systems, the Court must next determine whether there exist genuine issues of material fact as to whether SHR and Isenberg are owners, lessors, lessees, or operators of the hotels. For purposes of the present motions, it appears the Plaintiffs do not assert that SHR and Isenberg are “owners,” “lessors,” or “lessees” of the subject hotels; thus, the Court will examine whether the evidence demonstrates genuine issues as to whether SHR and/or Isenberg “operate” the hotels.
Title III of the ADA itself does not define the terms “owns, leases or operates”; thus, courts have followed the Fifth Circuit’s opinion in Neff v. American Dairy Queen Corp., 58 F.3d 1063 (5th Cir. 1995), cert. denied, 516 U.S.1045, 116 S.Ct. 704 (1996), and looked at the ordinary meaning of the terms to determine the amount of control required to trigger the ADA’s requirements. In concluding that a franchisor was not an operator under the ADA, the Neff court relied on commonly understood definitions of operate:
Because the ADA does not define the term “operates” we “construe it within its ordinary and natural meaning.” Smith v. United States, [508 U.S. 223,] 113 S. Ct. 2050, 2054 (1993).... To “operate,” in the context of a business operation, means to put or keep in operation,” The Random House College Dictionary 931 (Rev. ed. 1980), “[t]o control or direct the functioning of,” Webster’s II: New Riverside University Dictionary 823 (1988), “[t]o conduct the affairs of; manage,” The American Heritage Dictionary 1268 (3d ed. 1992). Id. at 1066; see also Emerson v. Thiel College , 296 F.3d 184, 189 (3d Cir. 2002); Dalhberg v. Avis Rent a Car Sys., Inc., 92 F. Supp. 2d 1091, 1102 (D. Colo. 2000). Notably, the court in Neff specified that “the relevant question in this case is whether [the
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defendant], according to the terms of its franchise agreements ..., controls modification of the [places of public accommodation] to cause them to comply with the ADA.” Neff, 58 F.3d at 1067; see also Colon v. League of United Latin Am. Citizens, 91 F.3d 140, (5th Cir. 1996) (“To be an ‘operator’ requires more than simply controlling some aspect of a public accommodation. Rather, the person must have control over the modification sought by the plaintiff.”); Dahlberg, 92 F. Supp. 2d at 1102.
Here, the modification sought is the accessibility of the hotels’ transportation vehicles. The Court finds the evidence reflects genuine issues as to whether SHR controls The Oxford and TPS to cause them to bring the hotels’ vehicles into compliance with Title III. The stated general purposes of SHR, as recited in its Limited Liability Company Agreement, are:
to engage in activities related to the hospitality industry, including but not limited to the development, acquisition and operation of hotel assets, brokerage and consulting services relating to such activities, and any other activities in which a limited liability company formed under the Act may engage. Any of the foregoing may be conducted directly by the Company or indirectly through another company, joint venture or other arrangement. Here, there is no dispute that hotel transportation is an “activity related to the hospitality industry” and SHR purposes to acquire and operate hotel assets, which could include vehicles in this sense, relating to such activity. While SHR argues it is not (and has not been) the entity involved in acquiring and owning the hotels’ vehicles, the question in this case is whether it has control sufficient to direct that such vehicles comply with the ADA. The Court finds a reasonable juror could conclude it does, particularly where two of its Division Vice Presidents are “responsible for all day to day operations of the hotels [including The Oxford] with an emphasis on staff training, service delivery, expense control and financial performance,” and where a Regional Vice President is “responsible for all aspects of support and performance for hotels which includes Premium Branded Select Service and Full Service properties [including TPS] and several independent
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boutique hotels” (emphasis added). With respect to Isenberg, Defendants argue “Title III of the ADA does not impose personal
liability for managers and shareholders of entities operating places of public accommodation.” Motion, docket #58 at 7. Citing case law outside of this Circuit, Defendants contend that the “Plaintiffs are not alleging specific acts or orders from Mr. Isenberg, but instead, challeng[ing] the Oxford’s and TPS’ institutional policies involving guest transportation services.” Reply, docket #101 at 10. Plaintiffs counter that “numerous courts,” including one in this District, have found individual liability for Title III violations proper where “an individual exerts significant control over a small company.” Response, docket #91 at 10.
The Tenth Circuit Court of Appeals has neither ruled, nor commented, on whether a defendant may be held individually liable under Title III of the ADA. Accordingly, I must attempt to ascertain how the Tenth Circuit would rule if faced with the issue before the Court here.
In 1997, the Honorable John L. Kane in this District found that “[n]early every court that has decided the issue has found that individuals can be held responsible for violations of Title III ‘if they “own, lease[ ] (or lease[ ] to) or operate[ ]” a place of public accommodation.’” Howard v. Cherry Hills Cutters, Inc., 979 F. Supp. 1307, 1309 (D. Colo. 1997) (citing Guckenberger v. Boston Univ., 957 F. Supp. 306, 322 (D. Mass. 1997) (this interpretation “‘retains accountability for those in a position to ensure nondiscrimination.’”). In Howard, Judge Kane found the allegations were insufficient to impose liability on the individual defendant, who was characterized as an “employee” of the company. Id.3
3For purposes of this analysis, the Court notes that Howard has been cited in two unpublished decisions and no published decisions.
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If this Court were to follow Howard’s reasoning, it could find genuine issues as to individual liability against Isenberg, particularly considering he is likely “in a position to ensure nondiscrimination” at the hotels. However, courts since 1997 have been reluctant to simply “impose personal liability” on individual defendants under Title III, particularly considering that individual liability is not proper under other titles of the ADA nor under similar civil rights statutes, such as Title VII: “It is difficult to believe that Congress intended to impose personal liability upon every person that has made a decision regarding [the policy at issue].” Coddington v. Adelphi Univ., 45 F. Supp. 2d 211, 217 (E.D. N.Y. 1999) (“Congress has evidenced an intent to exclude individual liability.”). In fact, after analyzing cases across the country addressing the issue, the court in Coddington concluded:
The common thread running through these cases is the search for identification of the proper defendant. Merely holding that an individual is the proper defendant in an ADA public accommodations lawsuit, however, is not tantamount to holding that there is personal liability. It stands merely for the proposition that an individual may be the proper entity to name as a defendant in a particular lawsuit. Id. 216. Based on this conclusion, the court found “[w]here ... plaintiff seeks relief based upon discrimination allegedly practiced by an educational institution, it is the institution that has the power to make any accommodations required by law. Therefore, it is the institution that operates the place of public accommodation and is, thus, the proper defendant.” Id. at 217. Importantly, as pertains here, the Coddington court also held: The court declines to impose personal liability even if the cooperation of the Individual Defendants [including university trustees and former and acting presidents] is necessary to ensure compliance with the ADA and the Rehabilitation Act. As employees of the University, the individuals named herein may be called upon to implement any order entered against the University with regard to the plaintiff’s needs. It is the view of the court, however, that this should not work to subject these or any other individuals to personal liability.
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Id. No court in the Tenth Circuit has followed Coddington; however, recent decisions indicate there is a split in the circuit courts as to whether individual liability may be imposed under Title III.4
Importantly, the cases finding no individual liability under Title III involve allegations of
discriminatory acts taken pursuant to an institutional policy. In this case, although they do not use
the term, “policy,” the Plaintiffs, a purported class of disabled individuals, allege:
Defendants have engaged in illegal disability discrimination, as defined by Title III, including without limitation, by failing to ensure that transportation vehicles in use at their hotels are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs, by failing to ensure that their hotels provide equivalent accessible transportation services to such individuals, and/or by failing to ensure that personnel are trained to proficiency with respect to the provision of accessible transportation services.
First Amended Complaint, ¶ 54, docket #29. In addition, they seek only declaratory and injunctive
relief in this action. Id. at 13. At least one district court has found that declining to impose
individual liability under such circumstances to be “eminently reasonable.” Steere v. George Wash.
Univ., 368 F. Supp. 2d 52 (D.D.C. 2005) (where plaintiff sought only injunctive relief, the court held
where “the institution, not the individuals, has the power to accommodate, only an injunction
directed at the institution will provide the relief sought.”) (citing Coddington, 45 F. Supp. 2d at 217).
Considering the lack of individual liability imposed for other titles of the ADA, as well as in similar
civil rights statutes, the Court finds it likely that the Tenth Circuit would find individual liability
improper in this case.
4Compare Emerson v. Thiel College, 296 F. 3d 184, 189 n.3 (3d Cir. 2002) (finding no liability against the individual defendants [including the former president] citing Coddington and finding “the institution ... operates the place of public accommodation and is the proper defendant.”) with Lentini v. Cal. Ctr. for the Arts, Escondido, 370 F.3d 837, 849 (9th Cir. 2004) (finding the Director of Center Sales and Event Services “had the requisite authority to qualify as an ‘operator’ under Title III.”). Notably, the Lentini court also found the factual findings indicated the director “actively participated in the discriminatory acts.” Id.
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Even if the Tenth Circuit found individual liability proper under Title III, the Court finds it would be improper against Isenberg in this case. At the district level, courts finding that individual liability may be imposed focus on whether the factual allegations (for a Rule 12(b)(6) analysis) or the factual evidence (for a Rule 56 analysis) demonstrate the individual defendant is an “owner, lessor, lessee, or operator” of the place of public accommodation.5 The majority of decisions finding individual liability focus not only on the defendant’s control over the operations of the place of accommodation, but also on the defendant’s ability to perform and remedy the alleged discriminatory conduct. See, e.g., Clement, 927 F. Supp. 2d at 318; see also Bowen v. Rubin, 385 F. Supp. 2d 168, 181 (E.D. N.Y. 2005) (individual defendant was the sole shareholder and president of the entity defendants); United States v. Morvant, 843 F. Supp. 1092 (E.D. La. 1994) (finding individual defendant dentist liable under Title III despite operating his practice as a corporation since he was the sole owner, director, and president of the corporation and was charged directly with refusing treatment in violation of the ADA).
Isenberg is not only the President and CEO of SHR, but he also is a Director and the President of Sage Oxford, which manages The Oxford, and a Director and the President of SMS, which manages Sage TPS, LLC, which, in turn, manages TPS. The bylaws of both Sage Oxford and SMS specify that the President “shall be the principal executive officer of the corporation and, subject to the control of the directors, shall, in general, supervise and control all of the business
5See, e.g., Bebry v. ALJAC LLC, 954 F. Supp. 2d 173, 178 (E.D. N.Y. 2013) (complaint’s allegations were insufficient to show a CEO of the company that owned the place of public accommodation “was in a position of authority or had power and discretion to perform potentially discriminatory acts.”); see also Clement v. Satterfield, 927 F. Supp. 2d 297, 318 (W.D. Va. 2013) (court denied summary judgment in favor of individual defendant who was delegated the “unfettered responsibility” to administer the challenged application process).
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and affairs of the corporation” (emphasis added). Thus, unlike the defendants in Clement, Bowen and Morvant, who had sole control over the alleged discriminatory acts, Isenberg’s acts are subject to the control of the company’s directors. Plaintiffs argue that, as Isenberg is both director and President, there is an inherent conflict as to how Isenberg is governed; however, it is undisputed that other individuals serve as directors of the companies and there is no evidence that Isenberg has acted outside of their control. Plaintiffs also argue that the directors have failed to follow certain bylaws, such as failing to hold annual meetings, and, in so doing, have essentially rendered the bylaws ineffectual. But again, as there is no indication that Isenberg has acted on his own, outside of the authority granted him by the directors of the companies, there is no basis on which to find Isenberg has the sole control over the ability to not only operate the hotels, but also to perform and remedy the hotels’ vehicle inaccessibility. Accordingly, no reasonable juror could conclude that Isenberg himself has the control sufficient to direct that the hotels’ vehicles comply with the ADA.
Therefore, the Court respectfully recommends that the District Court grant in part Isenberg’s motion, finding it improper to impose individual liability against Isenberg under the circumstances of this case, and deny in part the motion to the extent Isenberg joins in SHR’s motion. In addition, the Court recommends that the District Court deny SHR’s motion finding that genuine issues of material fact exist as to whether SHR is a proper Defendant in this case.
B. Do Plaintiffs Lack Standing to Assert Injunctive Relief? Generally, Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction take two forms. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). First, a facial attack on the complaint’s allegations as to subject matter jurisdiction questions the sufficiency of the complaint. In reviewing a facial attack on the complaint, a district court must accept the allegations in the complaint as true.
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Second, a party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction depends. When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint’s factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court’s reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.
Id. at 1002-03 (citations omitted). This portion of the present motions launches a facial attack on
this Court’s subject matter jurisdiction; therefore, the Court will accept the truthfulness of the
Complaint’s factual allegations.
In the First Amended Complaint (“FAC”), the Plaintiffs seek the following relief:
1. A declaration that Defendants’ conduct as alleged here has violated, and continues to violate, Title III of the Americans with Disabilities Act of 1990, as well as its implementing regulations;
2. Issuance of a permanent injunction requiring Defendants to comply with the ADA in hotels that they currently, or in the future, own, lease (or lease to) or operate;
3. Award of Plaintiffs’ reasonable attorneys’ fees and costs, as provided by law; and
4. Such other additional or alternative relief as the Court finds just and proper.
Docket #29 at 13. Defendants argue the Plaintiffs lack standing to assert injunctive relief against
hotels Denny has never contacted, and the Plaintiffs have failed to plead an intent to return to the
contacted hotels, which is necessary to demonstrate a real, imminent injury.
As set forth above, a plaintiff has the burden of establishing standing in order to invoke the
jurisdiction of the federal courts, and to establish Article III standing, a plaintiff must allege that 1)
he or she has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; 2) the injury is fairly traceable to the challenged action
of the defendant; and 3) it is likely, as opposed to merely speculative, that the injury will be
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redressed by the relief requested. The Court will analyze Defendants’ arguments pursuant to Fed. R. Civ. P. 12(b)(1).
First, Defendants contend that for a Title III claim, a plaintiff must “prove knowledge of the barriers and that they would visit the hotel in the imminent future but for those barriers.” Motion, docket #43 at 7. They assert that, because Plaintiffs’ allegations reflect Denny contacted only the Oxford and TPS, and another individual contacted other hotels under SHR’s portfolio, Denny has no knowledge of barriers at and, thus, does not have standing to seek injunctive relief against, any hotels other than The Oxford and TPS. In addition, Defendants assert that because Denny has no standing in this regard, CREEC has no associational standing to seek the same injunctive relief.
Plaintiffs counter that Denny “does not claim personal standing to challenge such barriers, nor does she seek an injunction on her own behalf.” Response, docket #90 at 15. Rather, Denny “seeks a nationwide injunction to remedy the injuries of the nationwide class she seeks to represent.” Id. Plaintiffs cite a recent Tenth Circuit case for the proposition that “whether a named plaintiff in a nationwide class action could obtain a nationwide injunction was not a question of standing, but a question of whether the class met the requirements of Rule 23.” Id. Defendants do not reply directly to Plaintiffs’ response; rather, they refer to their arguments about whether Plaintiffs sufficiently state class claims under Title III.
The Court agrees with the Plaintiffs that, as a purported class representative who can demonstrate standing to challenge SHR hotels’ vehicle inaccessibility, Denny may seek a nationwide injunction against SHR hotels to remedy alleged injuries of the class she seeks to represent. See Colorado Cross-Disability Coalition v. Abercrombie & Fitch Co., 765 F.3d 1205, 1212-13 (10th Cir. 2014) (“The question whether an injunction may properly extend to [ ] stores nationwide is answered
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by asking whether [plaintiff] may serve as a representative of a class that seeks such relief. All that is necessary to answer this question is an application of Rule 23.”).
However, Defendants contend Denny fails to demonstrate standing with respect to the hotels she has contacted, The Oxford and TPS, because even as a tester, she does not allege she intends to contact the hotels again at any definite time. Plaintiffs allege “Denny will continue to test [TPS and The Oxford] and other hotels covered by the putative class in this case by calling to see if wheelchair-accessible shuttle services are available several times per year.” FAC, ¶¶ 31, 36.
The Tenth Circuit has held that, where a plaintiff is a “tester” under Title III, evidence that the plaintiff intended to visit the place of accommodation “at least six times per year” was sufficient to demonstrate “a concrete present plan to return” to the place of accommodation. Abercrombie, 765 F.3d at 1211-12. The court cited an earlier opinion, Tandy v. Wichita, 380 F.3d 1277, 1284 (10th Cir. 2004) (id.), which found that the plaintiff’s averred intent to use the city’s buses “several times per year” was not a “someday intention” proscribed by the Supreme Court in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992), in which the plaintiffs “merely expressed a desire to someday visit places halfway around the world.” Tandy, 380 F.3d at 1284 (emphasis in original).
Defendants attempt to distinguish Abercrombie and Tandy factually, stating that Abercrombie involved a tester who claimed she would actually visit the defendants’ stores six times per year, and that Tandy involved a plaintiff who had already used the city’s buses and experienced delays due to lift malfunctions, and who asserted her intent to continue to use the buses. Here, according to Defendants, Denny alleges she intends merely to “call” the hotels “several times per year,” and such allegations fail to demonstrate a concrete, imminent injury.
The Court disagrees. Taking Plaintiffs’ allegations as true, Denny called The Oxford and
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TPS on October 16, 2014, and was informed they did not offer wheelchair-accessible shuttle services. FAC, ¶¶ 28, 33. Denny alleges that, had the hotels offered such services, she would have stayed at the hotels and used the services; however, she was deterred from doing so. FAC, ¶¶ 29, 34. The Court finds these allegations demonstrate an injury to Denny. As for the requested prospective injunctive relief and Denny’s intent to return, Denny’s allegation that she intends to call several times per year to see whether the hotels can accommodate her is no different than the tester in Abercrombie who expressed her intention to visit the defendants’ stores; in either case, the testers intended to determine whether the places of public accommodation would provide the access they needed. The Court finds the Plaintiffs’ allegations more akin to the facts in Abercrombie and Tandy than to those in Lujan and, thus, the allegations plausibly state an “injury in fact” that is concrete, imminent, and not speculative.
Defendants also argue that CREEC’s associational standing is limited to the standing of Denny. All parties agree that “an organization suing as representative [must] include at least one member with standing to present, in his or her own right, the claim (or the type of claim) pleaded by the association.” United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 555 (1996). However, Plaintiffs challenge Defendants’ argument that because CREEC has not alleged any member with standing in their own right to pursue allegations related to hotels other than The Oxford and TPS, and Plaintiffs concede that Denny does not have standing on her own behalf to do so, CREEC’s claims are solely limited to Denny’s claims against The Oxford and TPS. The Court finds that the scope of Denny’s “standing” as to hotels other than The Oxford and TPS remains unresolved at this stage, since it will require analysis under Rule 23. See supra.
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Consequently, the Court respectfully recommends that the District Court deny the motions finding that Denny and CREEC have demonstrated standing to pursue claims under Title III against The Oxford and TPS and, further, that whether the Plaintiffs may pursue class claims for injunctive relief requires an application of Rule 23. Abercrombie, 765 F.3d at 1212-13. II. Rule 12(b)(6) Defense
Finally, Defendants argue Plaintiffs’ class allegations should be dismissed for failing to state a plausible claim for nationwide injuries pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, Defendants contend that Plaintiffs improperly rely on “information and belief” allegations and “assume that the accessibility violations Denny allegedly experienced were also experienced by others at seventy-five alleged SHR hotels across the country” and, thus, “this Court should dismiss or strike the class action allegations with respect to hotels for which Denny never contacted.” Motion, docket #43 at 12-13.
Discrimination under Title III of the ADA can arise as “a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” 42 U.S.C. § 12182(b)(1)(A)(I). To state a claim under Title III, the Plaintiffs must show that: (1) Plaintiffs are disabled within the meaning of the ADA; (2) Defendants are private entities that own, lease, or operate the place(s) of public accommodation; (3) Plaintiffs were deprived of the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation; and (4) Defendants failed to make reasonable modifications that would accommodate Plaintiffs’ disabilities
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without fundamentally altering the nature of the public accommodation.6 42 U.S.C. § 12182(a) &
(b); see also Dahlberg, 92 F. Supp. 2d at 1100.
The Court notes first that the present motions focus not on whether the purported class
should be certified pursuant to Rule 23, as Defendants appear to suggest (Motion, docket #43 at 12-
13; Reply, docket #102 at 14-15) but, rather, whether the allegations in the operative pleading
plausibly state a Title III claim for relief pursuant to Rule 12(b)(6). Defendants analogize this case
to Colo. Cross-Disability Coalition [“CCDC”] v. Women’s Health Care Assocs., P.C., No. 10-cv-
01568, 2010 WL 4318845 (D. Colo. Oct. 25, 2010) in which the Honorable Richard P. Matsch
found, with respect to the class allegations, that where the alleged discriminatory conduct was the
defendant’s refusal to engage the services of an interpreter from a particular agency selected by the
plaintiff,
The amended complaint does not describe the nature of the injunctive relief sought by the Colorado Cross-Disability Coalition. The allegations relate only to the defendant’s failure to agree to Ms. Midthun’s request for the services of a particular interpreter agency. That individual claim fails for the reasons set forth above. The amended complaint does not allege that the defendant has engaged in discriminatory conduct toward any other member of the Colorado Cross-Disability Coalition. Paragraph 41 of the amended complaint alleges that the defendant “maintains and/or engage [sic] in policies, practices and procedures that do not provide effective communication for patients who are deaf,” but there are no factual allegations supporting that conclusion. No class-wide relief would be appropriate on the basis of these allegations.
Id. at *4. The Court finds the facts underlying Senior Judge Matsch’s opinion are distinguishable
from the circumstances of this case in material ways. For example, unlike in CCDC, the Plaintiffs’
claim here does not allege the Defendants have provided accommodation but not a particular type
6See Khalik, 671 F.3d at 1191 (while the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a complaint, the elements of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible claim.).
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of accommodation. In addition, unlike in CCDC, the Plaintiffs here have alleged discriminatory conduct against another of CREEC’s members. Finally, unlike in CCDC, the Plaintiffs here plead factual allegations supporting their claims, including that Denny and another wheelchair-bound CREEC member contacted 14 of SHR’s 75 subject hotels (nearly 20%) at which they intended to stay, but the hotels informed the members they did not provide accessible transportation service.
Defendants also cite the opinion in Twombly to support their position. However, in Twombly, unlike here, the “information and belief” allegations, which were held to be insufficient as merely “parallel conduct,” were central to whether there was an illegal agreement and, thus, a violation of § 1 of the Sherman Act. 550 U.S. at 555-56. Here, the Defendants do not specify how the “parallel conduct” analysis applies where there is no need to find agreement for a Title III violation. Instead, Twombly stands for the proposition that “asking for plausible grounds to infer [a Title III violation] does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [a Title III violation].” Id. at 556.
Instructive to this analysis is the opinion in Garner v. Vist Bank, No. 12-5258, 2013 WL 6731903 (E.D. Pa. Dec. 20, 2013). In Garner, the plaintiff brought a purported class action on behalf of himself and others similarly situated under Title III claiming the defendant’s banks provided “no features to provide blind and visually-impaired users with the same level of privacy of input and output that is provided for sighted individuals.” Id. at *1. The defendant moved to dismiss the action pursuant to Rule 12(b)(6) for failure to state a claim. Applying the Twombly/Iqbal standards, the court concluded:
Contrary to Defendant’s contention, Garner has sufficiently pled a prima facie case of discrimination under the ADA. He is a blind individual and thus he is disabled.
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He claims that he was discriminated against on the basis of his disability because he was not able to use Defendant’s ATM as a seeing individual would. Garner claims that Defendant’s ATM was not equipped with functional voice-guidance to enable the visually impaired to protect their privacy information while using the ATM. Moreover, Garner claims that Defendant owns the subject ATM as well as others in its network, all of which are places of public accommodation that are intended to be used by all individuals and that affect commerce through their operations. 42 U.S.C. § 12181(2). Since Garner has alleged that he was discriminated against because of his disability by a place of public accommodation, he has adequately pled a claim upon which relief could be granted under the ADA. Id. at 4. As in Garner, the Court finds here, pursuant to Rule 12(b)(6), that the Plaintiffs state a plausible claim for relief under Title III. First, there is no dispute that Denny is disabled under the Act. Second, she alleges the Defendants are private entities that own, lease, or operate The Oxford and TPS, as well as other hotels in the SHR “portfolio,” all of which are places of public accommodation. FAC, ¶¶ 11, 16. Third, Denny alleges that she suffered discrimination based on her disability because she is unable to stay at The Oxford and TPS due to inaccessible transportation service. Id., ¶¶ 29, 34. Finally, Plaintiffs allege that, prior to the litigation, they contacted SHR by letter, “explaining that many of their hotels are in violation of the transportation provisions of the ADA, and requesting that they bring their hotels into compliance. Sage did not respond to this letter.” Id., ¶ 42. These allegations, taken as true, state a plausible claim of discrimination under Title III of the ADA. See Twombly, 550 U.S. at 556. The Court makes no findings as to whether the purported class should be certified pursuant to Rule 23. Accordingly, the Court recommends that the District Court deny the Defendants’ motion to dismiss the Plaintiffs’ class action allegations pursuant to Rule 12(b)(6).
CONCLUSION This Court concludes Defendant Isenberg has demonstrated that the Court should not impose individual liability against him under the circumstances of this case. However, Defendant SHR has
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failed to show no genuine issues of material fact exist demonstrating it does not operate the subject hotels, and the Defendants have failed to persuade the Court that the class allegations should be dismissed for failure to state a claim. Finally, the Plaintiffs have demonstrated they have standing to pursue claims under Title III against The Oxford and TPS and, further, that whether the Plaintiffs may pursue class claims for injunctive relief requires an application of Rule 23.
Accordingly, the Court respectfully RECOMMENDS that the District Court deny Defendant Sage Hospitality Resources’ Motion to Dismiss Plaintiffs’ First Amended Complaint [filed May 1, 2015; docket #43], in which Defendants Walter Isenberg and Sage Oxford, Inc. joined, and grant Defendant Isenberg’s Motion to Dismiss Plaintiffs’ First Amended Complaint [filed June 30, 2015; docket #58] to the extent it seeks to dismiss Isenberg as a Defendant in this case, but deny the motion in all other respects.7
DATED this 26th day of February, 2016, at Denver, Colorado. BY THE COURT:
United States Magistrate Judge
7Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party’s failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
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 Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 1 of 9
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn
Civil Action No. 15-cv-00236-REB-MEH CIVIL RIGHTS EDUCATION AND ENFORCEMENT CENTER, on behalf of its members, and MARGARET DENNY, on behalf of herself and a proposed class of similarly situated persons,
Plaintiffs, v. SAGE HOSPITALITY RESOURCES, LLC, and SAGE OXFORD, INC.,
Defendants.
ORDER CONCERNING SETTLEMENT, AWARDING ATTORNEY FEES AND COSTS,
AND DISMISSING CASE Blackburn, J.
This matter is before me on the following: (1) the Settlement Agreement and Release In Full [#156-12] of the parties; and (2) the Plaintiffs’ Motion for an Award of Reasonable Attorneys’ Fees and Costs [#156 - restriction level 1][#173 - public entry]1 filed November 15, 2017. The defendants filed a response [#162 - restriction level 1][#175 - public entry], and the plaintiffs filed a reply [#167 - restriction level 1][#175 - public entry]. I grant the motion in part and deny it in part.
1 “[#156]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this convention throughout this order.

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 2 of 9
I. BACKGROUND This case involves claims under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12102 - 12213. The plaintiffs allege that the defendants are responsible for the operation of numerous hotels. According to the plaintiffs, those hotels provide transportation services to their guests, but do not provide equivalent wheelchair accessible transportation services to their guests, as required by Title III of the ADA. In its initial stages, this case involved many disputes about which, if any, of the parties were proper defendants. A thorough discussion of many of those issues can be found in the Recommendation of United States Magistrate Judge [#115] addressing motions filed by the defendants. Ultimately, the parties entered into a settlement agreement [#156-12]. Defendant Sage Hospitality Resources, LLC (Sage) agrees that it owns subsidiaries which operate hotels. In essence, Sage has agreed to direct its subsidiaries to comply with the requirements of Title III of the ADA concerning transportation services provided at any hotel operated by a subsidiary of Sage. The settlement agreement, which is confidential, provides details for execution and administration of the agreement. Based on the settlement, I will direct that this case be dismissed, but will retain jurisdiction to enforce the settlement agreement. The settlement agreement resolves all issues in this case except one – an award of attorney fees and costs to the plaintiffs. The parties agree the plaintiffs are entitled to an award of reasonable attorney fees and costs, but have not been able to agree fully on a specific amount to be awarded. In this circumstance, the settlement agreement provides that the court shall make the determination.
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II. STANDARD OF REVIEW The generally applicable “American Rule” provides that “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); see also Federal Trade Commission v. Kuykendall, 466 F.3d 1149, 1152 (10th Cir. 2006). However, when the parties agree to a provision for attorney fees, such as the provision of the License Agreement quoted above, the prevailing party may recover attorney fees from its opponent. The starting point for any calculation of reasonable attorney fees is the “lodestar,” that is, the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Malloy v. Monahan, 73 F.3d 1012, 1017-18 (10th Cir. 1996). In determining the reasonable number of hours spent on the litigation, the applicant must exercise the same “billing judgment” as would be proper in setting fees for a paying client. Hensley, 461 U.S. at 434; Malloy, 73 F.3d at 1018. “‘Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.’” Id. (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc)) (emphases in Copeland). Counsel, therefore, must make a good faith effort to exclude hours that are “excessive, redundant or otherwise unnecessary.” Id. at 1939-40. A “reasonable rate” is defined as the prevailing market rate in the community in question for an attorney of similar experience. Blum v. Stenson, 465 U.S. 886, 895 (1984); Gudenkauf, 158 F.3d at 1082; Metz, 39 F.3d at 1493. The United States Court of Appeals for the Tenth Circuit has recognized the lodestar amount as a presumptively reasonable fee. Homeward Bound, 963 F.2d at 1355. Other factors are also relevant, including the
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reasonableness of the fees in light of the success obtained, which requires the district court to consider the significance of the overall relief obtained in relation to the hours reasonably expended on the litigation. Hensley, 461 U.S. at 435.
When an attorney has failed to exercise sound billing judgment, the court may do so for the attorney by striking problematic entries or reducing the hours requested by a percentage intended to substitute for the exercise of sound billing judgment. See Harper v. City of Chicago Heights, 223 F.3d 593, 605 (7th Cir. 2000), cert. denied, 121 S.Ct. 883 (2001), and cert. denied, 121 S.Ct. 1092 (2001); Walker v. United States Department of Housing and Urban Development, 99 F.3d 761, 770 (5th Cir. 1996). A court assessing a motion for reasonable attorney fees need not parse and evaluate every individual billing entry and determine the amount of a reasonable award down to the last penny. See Fox v. Vice, – U.S. –, 131 S.Ct. 2205, 2216, 180 L.Ed.2d 45 (2011) (“[T]rial courts need not, and indeed should not, become green-eyeshade accountants. The essential goal in shifting fees (to either party) is to do rough justice, not to achieve auditing perfection. So trial courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney's time.”); Malloy, 73 F.3d at 1018 (“[T]he district court need not identify and justify every hour allowed or disallowed, as doing so would run counter to the Supreme Court's warning that a request for attorney's fees should not result in a second major litigation.”) (citation and internal quotation marks omitted).
III. ANALYSIS In their response [#162], the defendants dispute the reasonableness of several specific items of attorney fees and two items of costs. In their reply [#167], the plaintiffs concede, fully or partially, some of the issues raised by the defendants. As to those
4

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 5 of 9
issues, the plaintiffs have reduced the amount of attorney fees requested. With the issues thus narrowed, I address only the issues which remain contested between the parties. To resolve the few remaining issues, I have reviewed carefully the applicable law, the billing records and other exhibits submitted by the parties, and the arguments of the parties.
1. Reasonable Hourly Rates - The defendants contend the hourly rates charged by counsel for the plaintiffs and the hourly rates charged by paralegals in the office of counsel for the plaintiff are unreasonable. Having reviewed the record, including the declarations [#156-15, #162-22, & #167-2] of the experts on attorney fees submitted by the parties, I find that the hourly rates sought for the work of attorneys, Julia Campins, Lauren Fontana, and Sarah Morris, are reasonable.
However, I find that an hourly rate of 510 dollars per hour for the work of attorney, Kevin Williams, exceeds a reasonable hourly rate. In the context of this case, I find that an hourly rate of 475 dollars per hour for Mr. Williams is reasonable. Mr. Williams seeks to recover for just over 200 hours billed to this case, although that number of hours was reduced in the reply [#167]. As a reasonable measure of justice, I reduce the amount of my award, as compared to the amount sought by the plaintiffs, by 6,000 dollars.
In addition, I find that an hourly rate of 160 dollars per hour for the work of paralegals to be excessive. In the context of this case, I find that an hourly rate of 135 dollars is reasonable. The plaintiffs seek to recover for 100 hours billed to this case by paralegals, although that number of hours was reduced in the reply [#167]. As a reasonable measure of justice, I reduce the amount of my award, as compared to the amount sought by the plaintiffs, by 1,800 dollars.
5

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 6 of 9
2. Response To Moot Motion - On March 24, 2015, the defendants filed a motion to dismiss [#23]. On April 14, 2015, the plaintiffs filed an amended complaint [#29]. On April 16, 2015, the plaintiffs filed a response to the motion to dismiss [#23]. The defendants claim it is unreasonable to seek attorney fees for time spent preparing and filing a response to the motion to dismiss because the motion to dismiss was mooted by the filing of the amended complaint [#29]. Notably, billing entries of the plaintiffs show the plaintiffs started preparing the amended complaint on March 19, 2015.
I agree it was not reasonable to file a response to the motion to dismiss [#23] after that motion was mooted by the filing of the amended complaint [#29]. However, as the plaintiffs note, many similar issues were presented by the amended complaint [#29] and addressed in later motions to dismiss the amended complaint [#43 & #58]. The plaintiffs seek fees of 36,571 dollars for preparation of the response to the initial motion to dismiss. However, I find that 26,571 dollars constitute a more reasonable fee for this discreet task.
3. Discovery Requests & Opposition To Motion To Quash - On April 7, 2015, the court issued a partial stay of discovery [#28], pending resolution of jurisdictional issues. Despite the stay, the plaintiffs issued six subpoenas and a set of requests for production. The defendants argue that these discovery requests were effectively stricken by the court in its ruling on the motion to quash [#47] filed by the defendants. The plaintiffs did not respond to this issue in their reply [#167]. On this point, the ruling of the court [#64] is less than pellucid. As to billing for preparation of these requests for discovery, in spite of the stay, I find that 2,005 dollars of the attorney fees requested by the plaintiffs is unreasonable; thus, I reduce the award by that amount.
The defendants argue also it was unreasonable for the plaintiffs to spend
6

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 7 of 9
attorney time preparing a response to the motion to quash, essentially because it was clear the discovery requests violated the stay and a motion to quash would be granted. As the plaintiffs note, the motion to quash involved other issues as well, and the plaintiffs prevailed on some of those issues. Minutes [#64]. The plaintiffs seek 25,815 dollars for preparation of this response. Given the circumstances of the motion, the response, and the ruling of the court, I conclude that 18,000 dollars is a more reasonable fee for this discreet task.
4. Claims Asserted Against Walter Isenberg - The plaintiffs named Walter Isenberg as an individual defendant in their amended complaint [#29]. Ultimately, the claims against Mr. Isenberg were dismissed by the court in response to a motion to dismiss filed by Mr. Isenberg. Recommendation [#115], order [#121]. The defendants claim it is not reasonable to seek attorney fees for any time spent to include Mr. Isenberg as a defendant.
The recommendation [#115] of the magistrate judge includes a detailed discussion of the issues relevant to Mr. Isenberg. That discussion shows that the question of whether or not Mr. Isenberg was a proper defendant was complex and somewhat close. Ultimately, the position of the plaintiffs on this issue was not sustained. That does not mean, however, that the efforts of the plaintiffs to include Mr. Isenberg as a defendant were inherently unreasonable. I conclude that the time billed on this issue is reasonable.
5. Clerical Tasks, Travel Time, Incomplete Entries - In their response [#167], the plaintiffs eliminate their requests for fees based on several billing entries that are arguably clerical. However, the plaintiffs do not fully concede the point. As revised and reduced by the plaintiffs, I find that the entries at issue constitute reasonable fees for the
7

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 8 of 9
tasks billed. The plaintiffs have reduced the hourly rates charged for travel time. With that reduction, fees charged for travel time are reasonable. Finally, the plaintiffs have eliminated their request for fees for entries which appear to be for the wrong case or appear to be incomplete. That moots the related dispute.
6. Over-Staffing - The plaintiffs have eliminated all billing entries for the time of Kevin Williams. Otherwise, the plaintiffs assert that their billing does not show that counsel for the plaintiffs over-staffed work on this case. I agree.
7. Costs - The defendants challenge two items of costs: tester training ($375) and hotel database consultant ($1,020). The plaintiffs did not respond to this challenge. Absent some showing that these costs are reasonable, I decline to award them as part of an award of reasonable attorney fees and costs.
8. Adjustment for Limited Success - The defendants contend the lodestar amount should be reduced because the plaintiffs achieved only limited success. The defendants note that the plaintiffs did not achieve the class action injunctive relief they sought initially. However, the plaintiffs did obtain significant, substantive relief which requires Sage to take a variety of actions which should be effective to require hotels operated by subsidiaries of Sage to comply with Title III of the ADA concerning services for transportation. Thus, I decline to adjust the lodestar amount based on only limited success.
In their reply [#167], the plaintiffs request ultimately a total award of attorney fees and costs of 271,064.37 dollars – 264,309.50 for attorney fees and 6,754.87 for costs. The deductions detailed in this order reduce the award of attorney fees by 27,620 dollars and costs by 1,395 dollars. Thus, I find and conclude that an award of 236,689.50 dollars for attorney fees and 5,359.87 dollars for costs – for a total of
8

Case 1:15-cv-00236-REB-MEH Document 176 Filed 03/26/18 USDC Colorado Page 9 of 9
242,049.37 dollars – is reasonable. IV. CONCLUSION
The settlement agreement between the parties resolves all of the issues in this case, except for an award of attorney fees and costs. This order provides for an award of reasonable attorney fees and costs. Thus, all issues in this case now are resolved. Thus, I will order that this case be dismissed. However, I shall retain jurisdiction to enforce the settlement agreement.
THEREFORE, IT IS ORDERED as follows: 1. That the Plaintiffs’ Motion for an Award of Reasonable Attorneys’ Fees and Costs [#156][#173 - public entry] is granted in part and denied in part; 2. That the plaintiffs are awarded reasonable attorney fees in the amount of 236,689.50 dollars and reasonable costs in the amount of 5,359.87 dollars, for a total award of 242,049.37 dollars; 3. That otherwise, the Plaintiffs’ Motion for an Award of Reasonable Attorneys’ Fees and Costs [#156][#173 - public entry] is denied; 4. That based on the settlement agreement of the parties and the award of attorney fees and costs, this case is dismissed; 5. That the court retains jurisdiction to enforce the settlement agreement; and 6. That this case is closed. Dated March 26, 2018, at Denver, Colorado.
BY THE COURT:
9

 
 Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 1 of 18
NDISPO,TERMED
U.S. District Court − District of Colorado District of Colorado (Denver)
CIVIL DOCKET FOR CASE #: 1:15−cv−00236−REB−MEH

Civil Rights Education and Enforcement Center, The et al v. Sage Hospitality Resources LLC Assigned to: Judge Robert E. Blackburn Referred to: Magistrate Judge Michael E. Hegarty Cause: 42:12181 American With Disabilities Act (ADA)
Plaintiff

Date Filed: 02/04/2015 Date Terminated: 03/26/2018 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Civil Rights Education and Enforcement Center, The on behalf of its members

represented by Timothy Patrick Fox Civil Rights Education and Enforcement Center 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Fax: 303−595−9705 Email: tfox@creeclaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bill Lann Lee Civil Rights Education and Enforcement Center−Berkeley 2120 University Avenue Berkeley, CA 94704 510−431−8484 Email: blee@creeclaw.org ATTORNEY TO BE NOTICED

David Arthur Lane Killmer Lane & Newman, LLP 1543 Champa Street Suite 400 Denver, CO 80202 303−571−1000 Fax: 303−571−1001 Email: dlane@kln−law.com ATTORNEY TO BE NOTICED

Joshua T.K. Davidson Civil Rights Education and Enforcement Center−Berkeley 2120 University Avenue Berkeley, CA 94704 510−839−6824 Fax: 510−839−6824 Email: jdavidson@lewisfeinberg.com TERMINATED: 10/15/2015

Julia Campins Campins Benham−Baker, LLP 935 Moraga Road Suite 200 Lafayette, CA 94549 415−373−5333 Fax: 415−373−5334 Email: julia@campinsbenhambaker.com ATTORNEY TO BE NOTICED

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 2 of 18

Plaintiff
Margaret Denny on behalf of herself and a proposed class of similarly situated persons definded below

Julie Hayden Wilensky National Center for Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102 415−343−7676 Email: jwilensky@nclrights.org TERMINATED: 08/01/2016
Kevin William Williams Colorado Cross−Disability Coalition Legal Program 1385 South Colorado Boulevard Suite 610−A Denver, CO 80222 303−839−1775 Fax: 303−839−1782 Email: kwilliams@ccdconline.org ATTORNEY TO BE NOTICED
Lauren Louise Fontana Civil Rights Education and Enforcement Center−Denver 104 Broadway Suite 400 Denver, CO 80203 303−757−7901 Email: lauren.fontana@ucdenver.edu TERMINATED: 06/27/2016
Linda Pham Lam Gibbs Law Group 505 14th Street Suite 1100 Oakland, CA 94612 510−350−9700 Email: lpl@classlawgroup.com TERMINATED: 10/15/2015
Sarah Marie Morris Sarah Marie Morris, Attorney at Law 2875 Sugarloaf Road Boulder, CO 80302 860−830−5186 Email: sarahmorris7@gmail.com TERMINATED: 02/03/2016
represented by Timothy Patrick Fox (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
David Arthur Lane (See above for address) ATTORNEY TO BE NOTICED
Joshua T.K. Davidson (See above for address)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 3 of 18
TERMINATED: 10/15/2015
Julia Campins (See above for address) ATTORNEY TO BE NOTICED
Julie Hayden Wilensky (See above for address) TERMINATED: 08/01/2016
Kevin William Williams (See above for address) ATTORNEY TO BE NOTICED
Lauren Louise Fontana (See above for address) TERMINATED: 06/27/2016
Linda Pham Lam (See above for address) TERMINATED: 10/15/2015
Sarah Marie Morris (See above for address) TERMINATED: 02/03/2016

V. Defendant Sage Hospitality Resources LLC
Defendant Sage Oxford Inc

represented by Steve Allen Miller Fisher & Phillips, LLP−Chicago 10 South Wacker Drive Suite 3450 Chicago, IL 60606 312−346−8061 Fax: 312−346−3179 Email: smiller@laborlawyers.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kevin S. Simon Fisher & Phillips, LLP−Chicago 10 South Wacker Drive Suite 3450 Chicago, IL 60606 312−346−8061 Fax: 312−346−3179 Email: ksimon@laborlawyers.com ATTORNEY TO BE NOTICED
Scott C. Fanning Fisher & Phillips, LLP−Chicago 10 South Wacker Drive Suite 3450 Chicago, IL 60606 312−346−8061 Fax: 312−346−3179 Email: sfanning@laborlawyers.com ATTORNEY TO BE NOTICED
represented by Kevin S. Simon (See above for address)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 4 of 18

ATTORNEY TO BE NOTICED

Scott C. Fanning (See above for address) ATTORNEY TO BE NOTICED

Steve Allen Miller (See above for address) ATTORNEY TO BE NOTICED

Defendant
Walter Isenberg and John Does 1−5 TERMINATED: 03/28/2016

represented by Kevin S. Simon (See above for address) ATTORNEY TO BE NOTICED

Scott C. Fanning (See above for address) ATTORNEY TO BE NOTICED

Steve Allen Miller (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/04/2015
02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/04/2015 02/05/2015

# Docket Text
1 COMPLAINT against Sage Hospitality Resources LLC (Filing fee $ 400,Receipt Number 1082−4253863)filed by The Civil Rights Education and Enforcement Center, Margaret Denny. (Attachments: # 1 Civil Cover Sheet)(Fox, Timothy) (Entered: 02/04/2015)
2 SUMMONS REQUEST as to Sage Hospitality Resources, LLC by Plaintiffs Civil Rights Education and Enforcement Center, Margaret Denny. (Fox, Timothy) (Entered: 02/04/2015)
3 Case assigned to Judge Robert E. Blackburn and drawn to Magistrate Judge Michael E. Hegarty. Text Only Entry. (jofox ) (Entered: 02/04/2015)
4 NOTICE of Entry of Appearance by Julia Campins on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Campins, Julia) (Entered: 02/04/2015)
5 SUMMONS issued by Clerk. Magistrate Judge Consent form issued pursuant to Local Rule. (Attachments: # 1 Magistrate Judge Consent Form) (jofox ) (Entered: 02/04/2015)
6 NOTICE of Entry of Appearance by Kevin William Williams on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Williams, Kevin) (Entered: 02/04/2015)
7 NOTICE of Entry of Appearance by Bill Lann Lee on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Lee, Bill) (Entered: 02/04/2015)
8 NOTICE of Entry of Appearance by Julie Hayden Wilensky on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Wilensky, Julie) (Entered: 02/04/2015)
9 NOTICE of Entry of Appearance by Joshua T.K. Davidson on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Davidson, Joshua) (Entered: 02/04/2015)
10 ORDER REFERRING CASE to Magistrate Judge Michael E. Hegarty. IT IS ORDERED that pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Fed. R. Civ. P. 72(a) and (b), this matter is referred to the assigned United States Magistrate Judge:(1) To convene a scheduling conference under Fed. R. Civ. P. 16(b), enter a Scheduling Order that satisfies the requirements of D.C.COLO.LCivR 16.2, and enter such orders

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 5 of 18

02/05/2015
02/06/2015 02/09/2015 02/16/2015 02/27/2015 02/27/2015 02/27/2015
02/27/2015 03/04/2015 03/04/2015 03/23/2015 03/24/2015 03/24/2015

as appropriate to enforce the Scheduling order and resolve discovery matters; provided, further that the scheduling conference, the Magistrate Judge shall advise the parties of Judge Blackburns practice standards found at www.cod.uscourts.gov.;(2) To hear and finally determine non−dispositive matters that have been referred, subject to the exceptions found in 28 U.S.C. § 636(b)(1)(A); and(3) To hear and make recommendations on dispositive matters that have been referred as defined in 28 U.S.C. § 636(b)(1)(A). Court sponsored alternative dispute resolution is governed by D.C.COLOLCivR 16.6. On the recommendation or informal request of the magistrate judge or on the request of the parties by motion, this court may direct the parties to engage in an early neutral evaluation, a settlement conference, or another alternative dispute resolution proceeding. By Judge Robert E. Blackburn on 2/5/15. Text Only Entry (rebsec) (Entered: 02/05/2015)
12 MINUTE ORDER SETTING SCHEDULING CONFERENCE: Scheduling Conference set for 4/7/2015 at 09:45 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. Proposed Scheduling Order due by 3/17/2015. By Magistrate Judge Michael E. Hegarty on 2/5/2015. (alowe) Modified filed date on 2/6/2015 (alowe). (Entered: 02/06/2015)
11 NOTICE of Entry of Appearance by Sarah Marie Morris on behalf of The Civil Rights Education and Enforcement Center, Margaret Denny. (Morris, Sarah) (Entered: 02/06/2015)
13 CORPORATE DISCLOSURE STATEMENT file by The Civil Rights Education and Enforcement Center. (Fox, Timothy) Modified on 2/9/2015 to add filer (alowe). (Entered: 02/09/2015)
14 SUMMONS Returned Executed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Sage Hospitality Resources LLC served on 2/10/2015, answer due 3/3/2015. (Fox, Timothy) (Entered: 02/16/2015)
15 NOTICE of Entry of Appearance by Steve Allen Miller on behalf of Sage Hospitality Resources LLC. (Miller, Steve) (Entered: 02/27/2015)
16 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond 1 Complaint, and Joint MOTION to Reset the April 7, 2015 Scheduling Conference by Defendant Sage Hospitality Resources LLC re 12 Minute Order. (Miller, Steve) (Entered: 02/27/2015)
17 MEMORANDUM regarding 16 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond 1 Complaint, and MOTION to Reset the April 7, 2015 Scheduling Conference filed by Sage Hospitality Resources LLC. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 2/27/15. Text Only Entry (rebsec) (Entered: 02/27/2015)
18 MINUTE ORDER granting 16 Motion for Extension of Time to Respond to Plaintiff's Complaint; denying 16 Motion to Reset Scheduling Conference by Magistrate Judge Michael E. Hegarty on 2/27/2015. Sage Hospitality Resources LLC answer due 3/24/2015.(mdave) (Entered: 03/02/2015)
19 NOTICE of Entry of Appearance by Kevin S. Simon on behalf of Sage Hospitality Resources LLCAttorney Kevin S. Simon added to party Sage Hospitality Resources LLC(pty:dft) (Simon, Kevin) (Entered: 03/04/2015)
20 NOTICE of Entry of Appearance by Scott C. Fanning on behalf of Sage Hospitality Resources LLCAttorney Scott C. Fanning added to party Sage Hospitality Resources LLC(pty:dft) (Fanning, Scott) (Entered: 03/04/2015)
21 NOTICE of Firm Name Change by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny (Lee, Bill) (Entered: 03/23/2015)
22 CORPORATE DISCLOSURE STATEMENT filed by Sage Hospitality Resources LLC. (Simon, Kevin) Modified text on 3/25/2015 to add filer (alowe). (Entered: 03/24/2015)
23 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) by Defendant Sage Hospitality Resources LLC. (Attachments: # 1 Exhibit 1 − Declaration of Fred Kleisner, # 2 Exhibit 2 − Excerpts of Oxford Hotel Management Agreement, # 3

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 6 of 18

03/25/2015
03/31/2015 03/31/2015
03/31/2015 04/07/2015
04/14/2015 04/14/2015 04/16/2015
04/17/2015 04/17/2015 04/17/2015 04/17/2015 04/17/2015

Exhibit 3 − Oxford Hotel Vehicle Lease, # 4 Exhibit 4 − Declaration of Sam Karabel, # 5 Exhibit 5 − Excerpts of TownePlace Suites Management Agreement, # 6 Exhibit 6 − TownePlace Suites Vehicle Lease, # 7 Exhibit 7 − Declaration of Scott C. Fanning, # 8 Exhibit 8 − Denver Property Records, # 9 Exhibit 9 − Broomfield Property Records, # 10 Exhibit 10 − Oxford Hotel Business Licenses, # 11 Exhibit 11 − TownePlace Suites Broomfield Business Licenses)(Simon, Kevin) Modified title on 3/25/2015 (alowe). (Entered: 03/24/2015)
24 MEMORANDUM regarding 23 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) MOTION to Dismiss for Lack of Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1) filed by Sage Hospitality Resources LLC. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 3/25/15. Text Only Entry (rebsec) (Entered: 03/25/2015)
25 MOTION to Stay Entry Of A Scheduling Order, Initial Dislcosures, And Discovery Pending Ruling On Defendants Fully Dispositive Rule 12 Motion To Dismiss by Defendant Sage Hospitality Resources LLC. (Miller, Steve) (Entered: 03/31/2015)
26 MEMORANDUM regarding 25 MOTION to Stay Entry Of A Scheduling Order, Initial Dislcosures, And Discovery Pending Ruling On Defendants Fully Dispositive Rule 12 Motion To Dismiss filed by Sage Hospitality Resources LLC. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 3/31/15. Text Only Entry (rebsec) (Entered: 03/31/2015)
27 Proposed Scheduling Order by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny, Defendants Sage Hospitality Resources LLC. (Morris, Sarah) Modified filers on 4/1/2015 (alowe). (Entered: 03/31/2015)
28 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: granting in part and denying in part 25 Motion to Stay Entry of a Scheduling Order, Initial Disclosures, and Discovery Pending Ruling on Defendants Fully Dispositive Rule 12 Motion to Dismiss filed by Sage Hospitality Resources, LLC. Scheduling Conference held on 4/7/2015. IT IS ORDERED THAT the plaintiff has until close of business on 4/8/2015 to propound 4 Requests for Production regarding jurisdictional issues. The defendant is to respond by 5/7/2015. Set/Reset Hearings: Status Conference set for 5/11/2015 09:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. FTR: Courtroom A 501. (mdave ) (Entered: 04/07/2015)
29 AMENDED COMPLAINT against Sage Hospitality Resources LLC, Sage Oxford, Inc., Walter Isenberg, filed by Civil Rights Education and Enforcement Center, The, Margaret Denny.(Fox, Timothy) (Entered: 04/14/2015)
30 NOTICE of Filing Amended Pleading re 29 Amended Complaint by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny (Attachments: # 1 Exhibit 1 − Amended Complaint)(Fox, Timothy) (Entered: 04/14/2015)
31 BRIEF in Opposition to 23 MOTION to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) MOTION to Dismiss for Lack of Jurisdiction Pursuant to Fed. R. Civ. P. 12(b)(1) filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Declaration of Marissa McGarry with Exhibit, # 2 Declaration of Timothy P. Fox with Exhibit)(Fox, Timothy) (Entered: 04/16/2015)
32 SUMMONS REQUEST as to Sage Oxford, Inc. by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)
33 SUMMONS REQUEST as to Walter Isenberg by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)
34 SUMMONS REQUEST as to John Doe #1 by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) Modified text on 4/20/2015 (alowe). (Entered: 04/17/2015)
35 SUMMONS REQUEST as to John Doe #2 by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)
36 SUMMONS REQUEST as to John Doe #3 by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 7 of 18

04/17/2015 04/17/2015 04/20/2015 04/22/2015
04/23/2015 04/29/2015 05/01/2015
05/01/2015 05/01/2015 05/11/2015

37 SUMMONS REQUEST as to John Doe #4 by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)
38 SUMMONS REQUEST as to John Doe #5 by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 04/17/2015)
39 SUMMONS issued by Clerk as to Sage Oxford Inc, Walter Isenberg, John Doe #1, John Doe #2, John Doe #3, John Doe #4, and John Doe #5. Magistrate Judge Consent form issued pursuant to Local Rule (Attachments: # 1 Summons − Walter Isenberg, # 2 Summons − Doe 1, # 3 Summons − Doe 2, # 4 Summons − Doe 3, # 5 Summons − Doe 4, # 6 Summons − Doe 5, # 7 Magistrate Judge Consent Form) (alowe) (Entered: 04/20/2015)
40 TRANSCRIPT of Scheduling Conference held on April 7, 2015 before Magistrate Judge Hegarty. Pages: 1−15. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Avery Woods Reporting, ) (Entered: 04/22/2015)
41 BRIEF in Opposition to 25 MOTION to Stay Entry Of A Scheduling Order, Initial Dislcosures, And Discovery Pending Ruling On Defendants Fully Dispositive Rule 12 Motion To Dismiss filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Exhibit 1)(Morris, Sarah) (Entered: 04/23/2015)
42 NOTICE of Entry of Appearance by Linda Pham Lam on behalf of All Plaintiffs Attorney Linda Pham Lam added to party Civil Rights Education and Enforcement Center, The(pty:pla), Attorney Linda Pham Lam added to party Margaret Denny(pty:pla) (Lam, Linda) (Entered: 04/29/2015)
43 MOTION to Dismiss for Failure to State a Claim by Defendant Sage Hospitality Resources LLC. (Attachments: # 1 Exhibit 1 − Declaration of PM Kleisner, # 2 Exhibit 2 − Management Contract Oxford Hotel, # 3 Exhibit 3 − Schedule A Oxford Hotel, # 4 Exhibit 4 − Declaration of PM Karabel, # 5 Exhibit 5 − Management Agreement TownePlace, # 6 Exhibit 6 − Schedule A TownePlace, # 7 Exhibit 7 − Declaration of Scott Fanning, # 8 Exhibit 8 − Denver County Property Description, # 9 Exhibit 9 − Broomfield County Property Description, # 10 Exhibit 10 − Denver Business Licenses, # 11 Exhibit 11 − Broomfield Business Licenses, # 12 Exhibit 12 − Plaintiff's Jurisdictional Discovery, # 13 Exhibit 13 − Scheduling Hearing Transcript)(Simon, Kevin) (Entered: 05/01/2015)
44 MEMORANDUM regarding 43 MOTION to Dismiss for Failure to State a Claim filed by Sage Hospitality Resources LLC. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 5/1/15. Text Only Entry (rebsec) (Entered: 05/01/2015)
45 MINUTE ORDER denying as moot 23 Defendant's Motion to Dismiss. Briefing on Defendant's renewed motion to dismiss will proceed in accordance with D.C. Colo. LCivR 7.1(d) and all applicable federal and local rules. By Magistrate Judge Michael E. Hegarty on 5/1/2015.(alowe) (Entered: 05/04/2015)
46 MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Status Conference held on 5/11/2015, Set/Reset Hearings: Status Conference set for 7/23/2015 09:45 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. The response due by the plaintiff to 43 Motion to Dismiss for Failure to State a Claim is STAYED pending the 30(b)(6) examination. Discovery is also STAYED except for the limited amount authorized by the Court. FTR: Courtroom A 501. (mdave, ) (Entered: 05/11/2015)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 8 of 18

05/29/2015
05/29/2015 06/01/2015
06/02/2015 06/02/2015 06/22/2015
06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015

47 MOTION to Quash Subpoenas, MOTION to Strike Unauthorized Production Requests by Defendant Sage Hospitality Resources LLC. (Attachments: # 1 Exhibit A− Trascript of 5/11/15 Conference, # 2 Exhibit B− Documents and Deposition Subpoenas to Non−Parties, # 3 Exhibit C− Document and Deposition Subpoenas to Sage Oxford, Inc., # 4 Exhibit D−Plaintiff's Second Set of Production Requests, # 5 Exhibit E −Transcript of 4/7/15 Conference)(Miller, Steve) (Entered: 05/29/2015)
48 MEMORANDUM regarding 47 MOTION to Quash Subpoenas MOTION to Strike Unauthorized Production Requests filed by Sage Hospitality Resources LLC. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 5/29/15. Text Only Entry (rebsec) (Entered: 05/29/2015)
49 TRANSCRIPT of Status Conference held on May 11, 2015 before Magistrate Judge Hegarty. Pages: 1−17. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov. Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Avery Woods Reporting, ) (Entered: 06/01/2015)
50 WAIVER OF SERVICE Returned Executed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Walter Isenberg waiver sent on 5/1/2015, answer due 6/30/2015. (Morris, Sarah) (Entered: 06/02/2015)
51 WAIVER OF SERVICE Returned Executed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Sage Oxford Inc waiver sent on 5/1/2015, answer due 6/30/2015. (Morris, Sarah) (Entered: 06/02/2015)
52 RESPONSE to 47 MOTION to Quash Subpoenas MOTION to Strike Unauthorized Production Requests filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit, # 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Declaration of Marissa McGarry)(Morris, Sarah) (Entered: 06/22/2015)
53 NOTICE of Entry of Appearance by Scott C. Fanning on behalf of Walter Isenberg, Sage Oxford IncAttorney Scott C. Fanning added to party Walter Isenberg(pty:dft), Attorney Scott C. Fanning added to party Sage Oxford Inc(pty:dft) (Fanning, Scott) (Entered: 06/30/2015)
54 NOTICE of Entry of Appearance by Steve Allen Miller on behalf of Walter Isenberg, Sage Oxford IncAttorney Steve Allen Miller added to party Walter Isenberg(pty:dft), Attorney Steve Allen Miller added to party Sage Oxford Inc(pty:dft) (Miller, Steve) (Entered: 06/30/2015)
55 NOTICE of Entry of Appearance by Kevin S. Simon on behalf of Walter Isenberg, Sage Oxford IncAttorney Kevin S. Simon added to party Walter Isenberg(pty:dft), Attorney Kevin S. Simon added to party Sage Oxford Inc(pty:dft) (Simon, Kevin) (Entered: 06/30/2015)
56 CORPORATE DISCLOSURE STATEMENT identifying Corporate Parent Sage Hospitality Resources LLC for Sage Oxford Inc. (Simon, Kevin) (Entered: 06/30/2015)
57 MOTION for Joinder re 43 MOTION to Dismiss for Failure to State a Claim by Defendant Sage Oxford Inc. (Simon, Kevin) (Entered: 06/30/2015)
58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint, MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss by Defendant Walter Isenberg. (Attachments: # 1 Exhibit A − Email between Counsel)(Simon, Kevin) Modified on 7/2/2015 to show that Motion to Dismiss is still pending. (nmarb, ) (Entered:

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 9 of 18

06/30/2015
07/01/2015 07/02/2015 07/09/2015 07/10/2015 07/23/2015 07/23/2015 07/24/2015
07/24/2015
07/24/2015 08/06/2015

06/30/2015)
59 MEMORANDUM regarding 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss filed by Walter Isenberg, 57 MOTION for Joinder re 43 MOTION to Dismiss for Failure to State a Claim filed by Sage Oxford Inc. Motions referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 6/30/15. Text Only Entry (rebsec) (Entered: 06/30/2015)
60 MINUTE ORDER denying as moot 57 Motion for Joinder; and denying as moot 58 Motion for Joinder, by Magistrate Judge Michael E. Hegarty on 07/01/15. Text Only Entry(nmarb, ) Modified on 7/2/2015 to show that the Motion To Dismiss at 58 is still pending. (nmarb, ). (Entered: 07/02/2015)
61 SUPPLEMENT/AMENDMENT to 52 Response to Motion,, by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Morris, Sarah) (Entered: 07/02/2015)
62 REPLY to Response to 47 MOTION to Quash Subpoenas MOTION to Strike Unauthorized Production Requests filed by Defendant Sage Hospitality Resources LLC. (Simon, Kevin) (Entered: 07/09/2015)
63 MINUTE ORDER Setting Hearing on Motion 47 MOTION to Quash Subpoenas MOTION to Strike Unauthorized Production Requests by Magistrate Judge Michael E. Hegarty on 7/10/2015. Motion Hearing set for 7/23/2015 01:30 PM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. The status conference set for that day is canceled. (mdave, ) (Entered: 07/13/2015)
64 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: granting in part and denying in part 47 Motion to Quash Subpoenas, Motion to Strike Unauthorized Production Requests by defendant Sage Hospitality Resources, LLC. Motion Hearing held on 7/23/2015. FTR: Courtroom A 501. (mdave, ) (Entered: 07/23/2015)
65 MINUTE ORDER Status Conference set for 8/24/2015 10:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty, by Magistrate Judge Michael E. Hegarty on 7/23/2015. (slibi, ) (Entered: 07/24/2015)
66 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 07/24/2015)
67 MEMORANDUM regarding 66 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Fa filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motions referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 7−24−2015. Text Only Entry (reblc1, ) (Entered: 07/24/2015)
68 MINUTE ORDER granting as follows 66 Unopposed Motion for Extension of Time to Respond to Isenberg's Motion to Dismiss Complaint, by Magistrate Judge Michael E. Hegarty on 7/24/2015.(slibi, ) (Entered: 07/24/2015)
69 TRANSCRIPT of Motions Hearing held on July 23, 2015 before Magistrate Judge Hegarty. Pages: 1−38. NOTICE − REDACTION OF TRANSCRIPTS: Within seven calendar days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the party's intent to redact personal identifiers from the electronic transcript of the court proceeding. If a Notice of Intent to Redact is not filed within the allotted time, this transcript will be made electronically available after 90 days. Please see the Notice of Electronic Availability of Transcripts document at www.cod.uscourts.gov.

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 10 of 18

08/11/2015 08/13/2015 08/18/2015 08/19/2015 08/19/2015 08/24/2015 08/24/2015 09/16/2015
09/17/2015
09/17/2015 09/21/2015 09/30/2015
10/01/2015

Transcript may only be viewed at the court public terminal or purchased through the Court Reporter/Transcriber prior to the 90 day deadline for electronic posting on PACER. (Avery Woods Reporting, ) (Entered: 08/06/2015)
70 MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Discovery Hearing held on 8/11/2015. FTR: Courtroom A 501. (mdave, ) (Entered: 08/12/2015)
71 Stipulated MOTION for Protective Order by Defendants Walter Isenberg, Sage Hospitality Resources LLC, Sage Oxford Inc. (Attachments: # 1 Proposed Order (PDF Only))(Miller, Steve) (Entered: 08/13/2015)
72 MEMORANDUM regarding 71 Stipulated MOTION for Protective Order filed by Sage Hospitality Resources LLC, Walter Isenberg, Sage Oxford Inc. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 8/18/15. Text Only Entry (rebsec) (Entered: 08/18/2015)
73 MINUTE ORDER granting 71 Motion for Entry of Protective Order by Magistrate Judge Michael E. Hegarty on 8/19/2015.(mdave, ) (Entered: 08/19/2015)
74 STIPULATED PROTECTIVE ORDER by Magistrate Judge Michael E. Hegarty on 8/19/2015. (mdave, ) (Entered: 08/19/2015)
75 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Status Conference held on 8/24/2015. IT IS ORDERED that the information regarding the shareholders of Sage Management Services, L.L.C. is to be produced. FTR: Courtroom A 501. (mdave, ) (Entered: 08/24/2015)
76 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 8/24/2015. The Plaintiffs shall file response briefs to the pending Motions to Dismiss on or before 9/21/2015. The Defendants may file reply briefs in support of the motions within 14 days after the responses are served. (mdave, ) (Entered: 08/25/2015)
77 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss, 43 MOTION to Dismiss for Failure to State a Claim by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 09/16/2015)
78 MEMORANDUM regarding 77 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Fa filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motions referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 9/17/2015. Text Only Entry (reblc1, ) (Entered: 09/17/2015)
79 MINUTE ORDER; 77 Plaintiffs Unopposed Motion for Extension of Time to Respond to Defendants Motions to Dismiss is granted, by Magistrate Judge Michael E. Hegarty on 9/17/15.(morti, ) (Entered: 09/18/2015)
80 NOTICE of Change of Address/Contact Information by Julia Campins (Campins, Julia) (Entered: 09/21/2015)
81 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss, 43 MOTION to Dismiss for Failure to State a Claim by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 09/30/2015)
82 MEMORANDUM regarding 81 Unopposed MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Fa filed by Civil Rights Education and Enforcement Center,

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 11 of 18

10/01/2015 10/13/2015 10/14/2015 10/14/2015 10/15/2015 10/19/2015 10/19/2015 10/19/2015
10/19/2015
10/19/2015 10/19/2015
10/19/2015

The, Margaret Denny. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 10/1/15. Text Only Entry (rebsec) (Entered: 10/01/2015)
83 ORDER granting 81 Motion for Extension of Time to Respond to Defendants' Motion to Dismiss [docket #81] by Magistrate Judge Michael E. Hegarty on 10/1/2015. The Plaintiffs shall file response briefs on or before 10/19/2015.(mdave, ) (Entered: 10/02/2015)
84 Unopposed MOTION to Withdraw Linda Lam and Joshua Davidson as Plaintiffs' Counsel by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Lam, Linda) (Entered: 10/13/2015)
85 MEMORANDUM regarding 84 Unopposed MOTION to Withdraw Linda Lam and Joshua Davidson as Plaintiffs' Counsel filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 10/14/15. Text Only Entry (rebsec) (Entered: 10/14/2015)
86 ORDER granting 84 Motion to Withdraw Linda Lam and Joshua Davidson as Plaintiff's Counsel by Magistrate Judge Michael E. Hegarty on 10/14/2015. Linda Lam and Joshua Davidson terminated. (mdave, ) (Entered: 10/15/2015)
87 Joint MOTION for Leave to File Excess Pages on Response and Reply Briefs to Defendants SHR's and Isenberg's Motions to Dismiss by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 10/15/2015)
88 MINUTE ORDER granting 87 Joint Motion for Leave to File Excess Pages by Magistrate Judge Michael E. Hegarty on 10/19/2015. Plaintiffs may file response briefs to the pending motions to dismiss of up to 20 pages, and the defendants may file reply briefs up to 15 pages in length.(mdave, ) (Entered: 10/19/2015)
89 RESPONSE to 57 MOTION for Joinder re 43 MOTION to Dismiss for Failure to State a Claim filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Morris, Sarah) (Entered: 10/19/2015)
90 RESTRICTED DOCUMENT − Level 1: RESPONSE by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Declaration of Marissa McGarry)(Morris, Sarah) Modified on 10/20/2015 to add text (mlace, ). (Entered: 10/19/2015)
91 RESTRICTED DOCUMENT − Level 1: RESPONSE by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny.. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Declaration of Marissa McGarry)(Morris, Sarah) Modified on 10/20/2015 to add text (mlace, ). (Entered: 10/19/2015)
92 ERRATA re 89 Response to Motion, by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Declaration of Marissa McGarry)(Morris, Sarah) (Entered: 10/19/2015)
98 RESPONSE to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. Text Only Entry. (mlace, ) Modified on 11/5/2015 to link to 91 .(mlace, ). (Entered: 11/05/2015)
99 RESPONSE to 43 MOTION to Dismiss for Failure to State a Claim filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. Public Entry for 90 . Text Only Entry. (mlace, ) (Entered: 11/05/2015)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 12 of 18

10/28/2015
10/28/2015
10/29/2015 11/02/2015 11/05/2015 11/12/2015 11/13/2015 11/13/2015 11/13/2015 11/23/2015 12/02/2015 12/02/2015 12/07/2015 12/07/2015 12/07/2015
12/29/2015

93 MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss, 43 MOTION to Dismiss for Failure to State a Claim by Defendants Walter Isenberg, Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 10/28/2015)
94 MEMORANDUM regarding 93 MOTION for Extension of Time to File Response/Reply as to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to filed by Sage Hospitality Resources LLC, Walter Isenberg, Sage Oxford Inc. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 10/28/15. Text Only Entry (rebsec) (Entered: 10/28/2015)
95 MINUTE ORDER granting 93 Unopposed Motion for Extension of Time to File Reply Briefs in Support of Defendants' Motion to Dismiss, by Magistrate Judge Michael E. Hegarty on 10/29/2015.(slibi, ) (Entered: 10/29/2015)
96 NOTICE of Change of Address/Contact Information and Change of Firm by Bill Lann Lee and by Julie Hayden Wilensky (Wilensky, Julie) (Entered: 11/02/2015)
97 Unopposed MOTION for Leave to Restrict by Defendants Walter Isenberg, Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 11/05/2015)
100 NOTICE of Change of Address/Contact Information by Kevin William Williams (Williams, Kevin) (Entered: 11/12/2015)
101 REPLY to Response to 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss filed by Defendant Walter Isenberg. (Miller, Steve) (Entered: 11/13/2015)
102 REPLY to Response to 43 MOTION to Dismiss for Failure to State a Claim filed by Defendant Sage Hospitality Resources LLC. (Miller, Steve) (Entered: 11/13/2015)
103 Joinder re 102 Reply to Response to Motion by Defendant Sage Oxford Inc. (Miller, Steve) Modified on 11/13/2015 to edit text (mlace, ). (Entered: 11/13/2015)
104 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 11/23/2015. The Court will permit the plaintiffs to file written sur−replies addressing only the defendants arguments concerning §§ 12182(b)(2)(B) & (C) on or before 12/7/2015. (mdave, ) (Entered: 11/23/2015)
105 RESTRICTED DOCUMENT − Level 1: ORDER by Defendants Walter Isenberg, Sage Hospitality Resources LLC, Sage Oxford Inc.. (mlace, ) (Entered: 12/02/2015)
106 ORDER granting 97 Motion for Leave to Restrict. Pursuant to 105 . By Judge Robert E. Blackburn on 12/2/2015. Text Only Entry.(mlace, ) (Entered: 12/02/2015)
107 Unopposed MOTION for Leave to File Excess Pages on Surreplies by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 12/07/2015)
108 MINUTE ORDER granting 107 Motion for Leave to File Excess Pages by Judge Robert E. Blackburn on 12/7/15. Plaintiffs may file one twelve−page sur−reply brief. Text Only Entry(rebsec) (Entered: 12/07/2015)
109 SURREPLY re 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss, 43 MOTION to Dismiss for Failure to State a Claim filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Exhibit Declaration of Sarah Morris Pursuant to Rule 56(d))(Morris, Sarah) (Entered: 12/07/2015)
110 NOTICE of Conversion to Summary Judgment, by Magistrate Judge Michael E. Hegarty on 12/29/2015 (slibi, ) (Entered: 12/29/2015)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 13 of 18

01/20/2016 02/01/2016 02/02/2016 02/03/2016 02/26/2016
03/01/2016 03/08/2016
03/08/2016 03/21/2016 03/24/2016 03/28/2016

111 RESPONSE to 110 Notice of Conversion to Summary Judgment by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7 − McGarry Decl.)(Fox, Timothy) (Entered: 01/20/2016)
112 Unopposed MOTION to Withdraw as Attorney of Record by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Morris, Sarah) (Entered: 02/01/2016)
113 MEMORANDUM regarding 112 Unopposed MOTION to Withdraw as Attorney of Record filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 2/2/16. Text Only Entry (rebsec) (Entered: 02/02/2016)
114 MINUTE ORDER granting 112 Motion to Withdraw as Attorney by Magistrate Judge Michael E. Hegarty on 02/03/2016. Attorney Sarah Marie Morris terminated.(mdave, ) (Entered: 02/03/2016)
115 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a Claim Sage Hospitalities' Motion to Dismiss filed by Walter Isenberg, 43 MOTION to Dismiss for Failure to State a Claim filed by Sage Hospitality Resources LLC by Magistrate Judge Michael E. Hegarty on 02/26/2016. It is recommended that the District Court deny 43 Defendant Sage Hospitality Resources Motion to Dismiss Plaintiffs First Amended Complaint and grant 58 Defendant Isenbergs Motion to Dismiss Plaintiffs First Amended Complaint to the extent it seeks to dismiss Isenberg as a Defendant in this case, but deny the motion in all other respects. (mdave, ) (Entered: 02/26/2016)
116 NOTICE of Entry of Appearance by Lauren Louise Fontana on behalf of Civil Rights Education and Enforcement Center, The, Margaret DennyAttorney Lauren Louise Fontana added to party Civil Rights Education and Enforcement Center, The(pty:pla), Attorney Lauren Louise Fontana added to party Margaret Denny(pty:pla) (Fontana, Lauren) (Entered: 03/01/2016)
117 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 115 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a , MOTION for Extension of Time to File Response/Reply as to 115 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a by Defendants Walter Isenberg, Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 03/08/2016)
118 MINUTE ORDER granting in part 117 Motion for Extension of Time to Answer or Otherwise Respond by Judge Robert E. Blackburn on 3/8/16. Objections to 115 Recommendation of United States Magistrate Judge are due by March 21, 2016; responses to objections are due by March 24, 2016. Text Only Entry(rebsec) (Entered: 03/08/2016)
119 OBJECTION to 115 Report and Recommendations filed by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 03/21/2016)
120 RESPONSE to Objection to 115 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 58 MOTION to Dismiss for Failure to State a Claim Plaintiff's First Amended Complaint MOTION for Joinder re 29 Amended Complaint, 43 MOTION to Dismiss for Failure to State a filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 03/24/2016)
121 ORDER Approving and Adopting 115 Report and Recommendations as an Order of this Court; Denying 43 Defendant Sage Hospitality Resources' Motion to Dismiss Plaintiffs' First Amended Complaint and Memorandum of Law; Granting 58 Defendant Walter Isenberg's Motion to Dismiss Plaintiffs' First Amended Complaint and Memorandum of Law; that as to defendant Walter Isenberg, the complaint 29 is dismissed; and that defendant Walter Isenberg shall be dropped as a named defendant

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 14 of 18

04/12/2016 04/13/2016
04/14/2016 04/18/2016 04/18/2016
06/24/2016 06/24/2016 06/27/2016 07/28/2016 07/28/2016
07/29/2016 08/01/2016 11/02/2016

in this action. Signed by Judge Robert E. Blackburn on 3/28/2016.(cmira) (Entered: 03/28/2016)
122 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 04/12/2016)
123 MEMORANDUM regarding 122 Unopposed MOTION for Extension of Time to File Answer or Otherwise Respond re 29 Amended Complaint filed by Sage Hospitality Resources LLC, Sage Oxford Inc. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 4/13/16. Text Only Entry (rebsec) (Entered: 04/13/2016)
124 MINUTE ORDER granting 122 Unopposed Motion for Extension of Time to File their Answers to Plaintiffs' First Amended Complaint, by Magistrate Judge Michael E. Hegarty on 4/14/2016. Sage Hospitality Resources LLC answer due 4/18/2016; Sage Oxford Inc answer due 4/18/2016. (slibi, ) (Entered: 04/14/2016)
125 ANSWER to 29 Amended Complaint and Notice of Affirmative Defenses by Sage Hospitality Resources LLC, Sage Oxford Inc.(Miller, Steve) (Entered: 04/18/2016)
126 ADVISORY NOTICE OF NONCOMPLIANCE WITH COURT RULES/PROCEDURES: re: 125 Answer to Amended Complaint : The format for the attorney's signature block is not correct. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(d) of the Electronic Case Filing Procedures (Civil Cases). (Text Only Entry). (cmira) (Entered: 04/19/2016)
127 Unopposed MOTION to Withdraw as Attorney by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Proposed Order (PDF Only))(Fontana, Lauren) (Entered: 06/24/2016)
128 MEMORANDUM regarding 127 Unopposed MOTION to Withdraw as Attorney filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 6/24/16. Text Only Entry (rebsec) (Entered: 06/24/2016)
129 MINUTE ORDER granting 127 Motion to Withdraw as Attorney, by Magistrate Judge Michael E. Hegarty on 6/27/2016. Attorney Lauren Louise Fontana terminated.(slibi, ) (Entered: 06/27/2016)
130 Unopposed MOTION to Withdraw as Attorney by Plaintiff Civil Rights Education and Enforcement Center, The. (Attachments: # 1 Proposed Order (PDF Only))(Wilensky, Julie) (Entered: 07/28/2016)
131 ADVISORY NOTICE OF NON−COMPLIANCE WITH COURT RULES/PROCEDURES: re: 130 Unopposed MOTION to Withdraw as Attorney filed by attorney Julie Wilensky. The format for the attorney's signature block is not correct. Email Address is missing. DO NOT REFILE THE DOCUMENT. Action to take − future documents must be filed pursuant to D.C.COLO.LCivR 5.1(a) and 4.3(d) of the Electronic Case Filing Procedures (Civil Cases). (Text Only Entry). (cmira) (Entered: 07/28/2016)
132 MEMORANDUM regarding 130 Unopposed MOTION to Withdraw as Attorney filed by Civil Rights Education and Enforcement Center, The. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 7/29/16. Text Only Entry (rebsec) (Entered: 07/29/2016)
133 MINUTE ORDER granting 130 Motion to Withdraw as Attorney by Magistrate Judge Michael E. Hegarty on 08/01/2016. Attorney Julie Hayden Wilensky terminated. (mdave, ) (Entered: 08/01/2016)
134 NOTICE of Entry of Appearance by David Arthur Lane on behalf of Civil Rights Education and Enforcement Center, The, Margaret DennyAttorney David Arthur Lane added to party Civil Rights Education and Enforcement Center, The(pty:pla), Attorney David Arthur Lane added to party Margaret Denny(pty:pla) (Lane, David) (Entered: 11/02/2016)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 15 of 18

11/02/2016 11/02/2016
11/04/2016 11/21/2016
01/06/2017 02/15/2017 02/15/2017 02/16/2017 03/31/2017 04/05/2017 04/05/2017 04/06/2017 05/11/2017 05/11/2017 05/12/2017

135 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 11/02/2016. Status Conference set for 11/10/2016 10:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 11/02/2016)
136 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 11/2/2016. Defense counsel, Steve Allen Miller, Kevin S. Simon, and Scott C. Fanning, may appear by telephone at the Status Conference on November 10, 2016 at 10:30 a.m. Counsel shall call my chambers at (303) 844−4507 at the appointed time. Text Only Entry (mdave, ) (Entered: 11/02/2016)
137 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 11/4/2016. Status Conference is reset for 11/21/2016 11:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 11/04/2016)
138 COURTROOM MINUTES/MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Status Conference held on 11/21/2016. Set/Reset Hearings: Scheduling Conference set for 1/12/2017 10:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. FTR: Courtroom A501. (mdave, ) (Entered: 11/21/2016)
139 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 01/06/2017. Scheduling Conference is reset for 2/22/2017 10:15 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 01/06/2017)
140 MOTION to Reset Scheduling Conference Set for February 22, 2017 (AGREED) by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 02/15/2017)
141 MEMORANDUM regarding 140 MOTION to Reset Scheduling Conference Set for February 22, 2017 (AGREED) filed by Sage Hospitality Resources LLC, Sage Oxford Inc. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 2/15/17. Text Only Entry (rebsec) (Entered: 02/15/2017)
142 MINUTE ORDER granting 140 Agreed Motion to Reset the Scheduling Conference set for February 22, 2017 by Magistrate Judge Michael E. Hegarty on 02/16/2017. Scheduling Conference is RESET for 4/11/2017 09:45 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 02/16/2017)
143 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 03/31/2017. Scheduling Conference is RESET for 4/11/2017 01:15 PM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 03/31/2017)
144 Second MOTION to Reset Scheduling Conference Set for April 11, 2017 (AGREED) by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 04/05/2017)
145 MEMORANDUM regarding 144 Second MOTION to Reset Scheduling Conference Set for April 11, 2017 (AGREED) filed by Sage Hospitality Resources LLC, Sage Oxford Inc. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 4/5/17. Text Only Entry (rebsec) (Entered: 04/05/2017)
146 MINUTE ORDER granting 144 Motion to Reset the Scheduling Conference by Magistrate Judge Michael E. Hegarty on 04/06/2017. Scheduling Conference is RESET for 5/22/2017 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 04/06/2017)
147 Third MOTION to Reset Scheduling Conference Set for May 22, 2017 (AGREED) by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 05/11/2017)
148 MEMORANDUM regarding 147 Third MOTION to Reset Scheduling Conference Set for May 22, 2017 (AGREED) filed by Sage Hospitality Resources LLC, Sage Oxford Inc by Judge Robert E. Blackburn on 5/11/17. Motions referred to Magistrate Judge Michael E. Hegarty Text Only Entry (rebsec) (Entered: 05/11/2017)
149 MINUTE ORDER granting 147 Agreed Motion to Reset the SchedulingConference by Magistrate Judge Michael E. Hegarty on 05/12/2017. Scheduling Conference set for 6/12/2017 10:30 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 05/16/2017)

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 16 of 18

05/31/2017 06/05/2017 06/05/2017 06/06/2017 06/06/2017 06/13/2017 11/15/2017
11/15/2017 11/16/2017 11/22/2017 11/29/2017 12/06/2017

150 MINUTE ORDER by Magistrate Judge Michael E. Hegarty on 05/31/2017. Scheduling Conference is RESET for 6/13/2017 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 05/31/2017)
151 Unopposed MOTION to Vacate Scheduling Conference set for June 13, 2017, and to Set Briefing Schedule by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 06/05/2017)
152 ORDER REFERRING MOTION(S): 151 Unopposed MOTION to Vacate Scheduling Conference set for June 13, 2017, and to Set Briefing Schedule filed by Civil Rights Education and Enforcement Center, The, Margaret Denny. Motion referred to Magistrate Judge Michael E. Hegarty by Judge Robert E. Blackburn on 06/05/2017. Text Only Entry (reblc2) (Entered: 06/05/2017)
153 MINUTE ORDER by Magistrate Judge Michael E. Hegarty. The Scheduling Conference is RESET for 6/13/2017 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) Modified on 6/6/2017 to edit text (mdave, ). (Entered: 06/06/2017)
154 CORRECTIVE ENTRY Utility Setting/Resetting Deadlines/Hearings: Text Only Entry Scheduling Conference set for 6/13/2017 10:00 AM in Courtroom A 501 before Magistrate Judge Michael E. Hegarty. (mdave, ) (Entered: 06/06/2017)
155 MINUTE ENTRY for proceedings held before Magistrate Judge Michael E. Hegarty: Status Conference held on 6/13/2017. ORDERED: The plaintiff may file their fee petition on or after 7/19/2017. FTR: Courtroom A501. (mdave, ) (Entered: 06/13/2017)
156 RESTRICTED DOCUMENT − Level 1: by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny.. (Attachments: # 1 Exhibit Declaration of Timothy P. Fox in Support of Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs, # 2 Exhibit Exhibit 1 to Declaration of Timothy P. Fox, # 3 Exhibit Exhibit 2 to Declaration of Timothy P. Fox, # 4 Exhibit Exhibit 3 to Declaration of Timothy P. Fox, # 5 Exhibit Exhibit 4 to Declaration of Timothy P. Fox, # 6 Exhibit Exhibit 5 to Declaration of Timothy P. Fox, # 7 Exhibit Exhibit 6 to Declaration of Timothy P. Fox, # 8 Exhibit Exhibit 7 to Declaration of Timothy P. Fox, # 9 Exhibit Exhibit 8 to Declaration of Timothy P. Fox, # 10 Exhibit Exhibit 9 to Declaration of Timothy P. Fox, # 11 Exhibit Exhibit 10 to Declaration of Timothy P. Fox, # 12 Exhibit Exhibit 11 to Declaration of Timothy P. Fox, # 13 Exhibit Declaration of Julia Campins in Support of Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs, # 14 Exhibit Declaration of Kevin W. Williams in Support of Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs, # 15 Exhibit Declaration of Darold W. Killmer in Support of Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs)(Fox, Timothy) (Entered: 11/15/2017)
157 PLEASE SEE DOC 173 − MOTION for an Award of Reasonable Attorneys' Fees and Costs by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Public Entry for Level 1 Restricted Document 156 ). Text Only Entry (athom, ) Modified on 3/2/2018 to note that the public text only entry is no longer needed as a redacted public version of this motion has been filed at doc 173 (athom, ). (Entered: 11/15/2017)
158 ERRATA by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 11/16/2017)
159 Unopposed MOTION for Extension of Time to File Response/Reply as to 157 MOTION for Attorney Fees by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Miller, Steve) (Entered: 11/22/2017)
160 Unopposed MOTION for Leave to Restrict by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Attachments: # 1 Exhibit A − Redacted Plaintiffs' Motion for an Award of Fees, # 2 Exhibit B − Carton Order, # 3 Exhibit C − Article Connecting New Mexico to Colorado, # 4 Exhibit D − Pacer Lists for Mize and Umphenour, # 5 Appendix Orders)(Miller, Steve) (Entered: 11/29/2017)
161 MINUTE ORDER by Judge Robert E. Blackburn on 12/06/2017. Defendants' Unopposed Motion for an Extension of Time To Respond To Plaintiffs' Motion for an

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 17 of 18

01/19/2018
01/19/2018 01/25/2018 01/25/2018 01/29/2018 02/09/2018 02/09/2018 02/21/2018 03/02/2018

Award of Fees [# 159 ] is granted in part. Defendants' response to the plaintiffs' motion for an award of fees [# 157 ] shall be filed on or before 1/19/2018. Otherwise, the Defendants' [# 159 ] is denied. (athom, ) (Entered: 12/06/2017)
162 RESTRICTED DOCUMENT − Level 1: by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc.. (Attachments: # 1 Exhibit Index of Exhibits, # 2 Exhibit 1 − Chart of Plaintiffs' Fee Billings, Objections, and Lodestar Summary Chart of Plaintiffs Fee Billings, Objections, and Lodestar Summary, # 3 Exhibit 2 − Declaration of Ann Evans Declaration of Ann Evans, # 4 Exhibit 3 − CREEC California Hotel Complaints CREEC California Hotel Complaints, # 5 Exhibit 4 − April 7, 2015, E−mail, # 6 Exhibit 5 − Tr. of Conf, pp. 13:7−10, 16:12−14, # 7 Exhibit 6 − Plaintiffs' Improper Discovery, # 8 Exhibit 7 − Response to Motion to Stay Time Entries, # 9 Exhibit 8 − Response to Motion to Dismiss Time Entries, # 10 Exhibit 9 − Response to Motion to Dismiss FAC Time Entries, # 11 Exhibit 10 − Preparation of Improper Discovery Time Entries, # 12 Exhibit 11 − Response to Motion to Quash Time Entries, # 13 Exhibit 12 − Time Entries Related to Claims Against Walter Isenberg, # 14 Exhibit 13 − Clerical Time Entries, # 15 Exhibit 14 − Travel Time Entries, # 16 Exhibit 15 − Time Entries for Other Matters, # 17 Exhibit 16 − Incomplete Entries, # 18 Exhibit 17 − Duplicative and Interoffice Entries Duplicative and Interoffice Entries, # 19 Exhibit 18 − Kevin Williams' Time Entries, # 20 Exhibit 19 − Fox Affidavit in Fee Petition in City of Denver, # 21 Exhibit 20 − Time Entries Regarding Inter Team Communications, # 22 Exhibit 21 − Donald Alperstein Verified Report, # 23 Exhibit 22 − Time Entries Related to Excessive Fees, # 24 Exhibit 23 − Darold Killmer CREEC/Fox Declarations, # 25 Exhibit 24 − Williams' Declaration regarding Williams in Abercrombie Matter, # 26 Exhibit 25 − Amy Robertson Declaration in Abercrombie Matter, # 27 Exhibit 26 − Supplement Case Law)(Miller, Steve) (Entered: 01/19/2018)
163 PLEASE SEE DOC 174 − Objections to Plaintiffs' 157 MOTION for an Award of Reasonable Attorneys' Fees and Costs filed by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Public Entry for Level 1 Restricted Document 162 ). Text Only Entry (athom, ) Modified on 3/2/2018 to note that the public text only entry is no longer needed as a redacted public version of this objection has been filed at doc 174 (athom, ). (Entered: 01/19/2018)
164 Unopposed MOTION for Extension of Time to File Response/Reply as to 157 MOTION for Attorney Fees by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Fox, Timothy) (Entered: 01/25/2018)
165 MINUTE ORDER granting 164 Motion for Extension of Time to File Response/Reply. By Judge Robert E. Blackburn on 1/25/18. Text Only Entry (rebsec) (Entered: 01/25/2018)
166 Unopposed MOTION for Leave to Restrict by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Steve) (Entered: 01/29/2018)
167 RESTRICTED DOCUMENT − Level 1: by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny.. (Attachments: # 1 Exhibit Declaration of Timothy P. Fox in Support of Plaintiffs' Reply Brief, # 2 Exhibit Supplemental Declaration of Darold W. Killmer in Support of Plaintiffs' Motion for Reasonable Attorneys' Fees)(Fox, Timothy) (Entered: 02/09/2018)
168 PLEASE SEE DOC 175 − REPLY Brief in Support to Response to 157 MOTION for an Award of Reasonable Attorneys' Fees and Costs filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Public Entry for Level 1 Restricted Document 167 ). Text Only Entry (athom, ) Modified on 2/12/2018 to add additional text (athom, ). Modified on 3/2/2018 to note that the public text only entry is no longer needed as a redacted public version of this reply has been filed at doc 175 (athom, ). (Entered: 02/12/2018)
169 Unopposed MOTION for Leave to Restrict by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Miller, Steve) (Entered: 02/21/2018)
170 ORDER granting 160 Motion for Leave to Restrict. The Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs [# 156 ] and Exhibit 11 to the Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs [#156−12]

Case: 1:15-cv-236 As of: 11/29/2018 02:46 PM MST 18 of 18

03/02/2018
03/02/2018
03/02/2018 03/02/2018 03/02/2018 03/26/2018
05/30/2018 06/05/2018 06/05/2018

shall be maintained at Level 1 restriction as defined by D.C.COLO.LCivR 7.2(b). The extant filing restrictions on the other exhibits to the motion [# 156 ] shall be removed and all exhibits, except Exhibit 11, shall be maintained without any filing restriction. By Judge Robert E. Blackburn on 03/02/2018. (athom, ) (Entered: 03/02/2018)
171 ORDER granting 166 Motion for Leave to Restrict. The Defendants' Objections To Plaintiffs' Motion for An Award of Reasonable Attorney's Fees and Costs [# 162 ] and Exhibit 21 [#162−22] to the Defendants' Objections To Plaintiffs' Motion for An Award of Reasonable Attorney's Fees and Costs [# 162 ] shall be maintained at Level 1 restriction as defined by D.C.COLO.LCivR 7.2(b). The extant filing restrictions on the other exhibits to the objections [# 162 ] shall be removed and all exhibits, other than Exhibit 21, shall be maintained without any filing restriction. By Judge Robert E. Blackburn on 03/02/218. (athom, ) (Entered: 03/02/2018)
172 ORDER granting 169 Motion for Leave to Restrict. Plaintiffs' Reply Brief In Support of Motion for An Award of Reasonable Attorneys' Fees and Costs [# 167 ] and the declaration of Timothy Fox [#167−1] shall be maintained at Level 1 restriction as defined by D.C.COLO.LCivR 7.2(b). The extant filing restriction on the supplemental declaration of Darold Killmer [#167−2] shall be removed and that declaration shall be maintained without any filing restriction. By Judge Robert E. Blackburn on 03/02/2018. (athom, ) (Entered: 03/02/2018)
173 MOTION for an Award of Reasonable Attorneys' Fees and Costs − REDACTED by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny pursuant to 170 Order. (athom, ) (Entered: 03/02/2018)
174 OBJECTIONS to 173 MOTION for an Award of Reasonable Attorneys' Fees and Costs − REDACTED filed by Defendants Sage Hospitality Resources LLC, Sage Oxford Inc pursuant to 171 Order. (Attachments: # 1 Exhibit 21 − REDACTED ) (athom, ) (Entered: 03/02/2018)
175 REPLY to Response to 173 MOTION for an Award of Reasonable Attorneys' Fees and Costs − REDACTED filed by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny pursuant to 172 Order. (Attachments: # 1 Declaration of Timothy P. Fox − REDACTED ) (athom, ) (Entered: 03/02/2018)
176 ORDER DISMISSING CASE That the Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs [#156][#173] − public entry, is granted in part and denied in part; That the plaintiffs are awarded reasonable attorney fees in the amount of 236,689.50 dollars and reasonable costs in the amount of $5,359.87 dollars, for a total award of 242,049.37 dollars; That otherwise, the Plaintiffs' Motion for an Award of Reasonable Attorneys' Fees and Costs [#156][#173] − public entry is denied; That based on the settlement agreement of the parties and the award of attorney fees and costs, this case is dismissed; That the court retains jurisdiction to enforce the settlement agreement; and That this case is closed, by Judge Robert E. Blackburn on 3/26/2018. (evana, ) (Entered: 03/26/2018)
177 WITHDRAWN − MOTION to Enforce Order Awarding Plaintiffs their Reasonable Attorneys' Fees and Costs by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny. (Attachments: # 1 Declaration of Timothy Fox in support of Plaintiffs' Motion to Enforce Order Awarding Plaintiffs their Reasonable Attorneys' Fees and Costs)(Fox, Timothy) Modified on 6/5/2018 withdrawing motion pursuant to Notice [#178] filed 6/5/18(rebsec). (Entered: 05/30/2018)
178 NOTICE re 177 MOTION to Enforce Order Awarding Plaintiffs their Reasonable Attorneys' Fees and Costs by Plaintiffs Civil Rights Education and Enforcement Center, The, Margaret Denny (Fox, Timothy) (Entered: 06/05/2018)
179 MINUTE ORDER withdrawing 177 Motion to Enforce pursuant to Notice withdrawing 178 . By Judge Robert E. Blackburn on 6/5/18. Text Only Entry (rebsec) (Entered: 06/05/2018)