2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 1 of 13 Pg ID 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, )

)

Plaintiffs,

)

)

v.

)

)

WAYNE COUNTY AIRPORT AUTHORITY,)

)

Defendant.

)

)

_______________________________________________/

2:14‐cv‐13630

NYMAN TURKISH PC Jason M. Turkish (P76310) Melissa M. Nyman (293207) 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284‐2480 Jason.Turkish@NymanTurkish.com Melissa.Nyman@NymanTurkish.com

Attorneys for Plaintiffs ______________________________________________________________________________________________________/

VERIFIED COMPLAINT

Plaintiffs, Michael Harris and Karla Hudson, hereby sue the Wayne County Airport Authority,

and state as follows:

INTRODUCTION

1. Plaintiffs bring this action to prevent Defendant Wayne County Airport Authority’s

imminent plan to relocate public transportation services from the Arrivals Level of the

McNamura Terminal to the Ground Transportation Center (“GTC”) at Detroit Metro

Airport (“DTW”), a location posing numerous accessibility issues in violation of the

Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (“ADA”).

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2. Defendant’s planned move of public transit services, which is to take place on Monday, September 22, 2014 discriminates against Plaintiffs, and others similarly situated, by forcing the public transportation companies to load and unload their passengers in an inaccessible area with numerous violations of the Americans with Disabilities Act.
3. By ignoring the needs and dignity of Plaintiffs, and other disabled persons similarly situated, while traveling to and from the airport, Defendant treats them as second-class citizens, unjustly disregards their basic rights to equality and dignity, and causes embarrassment, humiliation, harassment, and emotional distress. Additionally, by moving transit access to an inaccessible area, Defendant’s plans will needlessly subject the Plaintiffs, and those similarly situated, to unnecessary risk of bodily injury and death. Therefore, Plaintiffs seek declaratory relief stating the Defendant’s announced course of conduct violates the Americans with Disabilities Act and injunctive relief preventing Defendant from moving the current transit facilities to an inaccessible location to those passengers with disabilities. JURISDICTION AND VENUE
4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, because Plaintiff’s claims arise under federal statutes, specifically the Americans with Disabilities Act. In addition, this Court has jurisdiction over Plaintiff’s claims for declaratory relief, pursuant to 28 U.S.C. §§ 2201-02 and jurisdiction over Plaintiff’s claims for injunctive relief pursuant to 15 U.S.C. § 1116.
5. Venue is proper in the Eastern District of Michigan, Southern Division, because the Defendant is situated within the district pursuant to 28 U.S.C. § 1391, and because the events, acts, and omissions giving rise to Plaintiffs’ claims occurred in this district.

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PARTIES 6. Plaintiff, Michael Harris, presently the Executive Director of the Michigan Paralyzed
Veterans of America, is an individual who uses a wheelchair, living in Westland, Michigan. 7. Plaintiff, Karla Hudson, is a totally blind individual who lives in East Lansing Michigan. 8. Plaintiffs have standing to bring the present cause of action. a. Plaintiffs are physically disabled according to the definition provided by the ADA
as they are either “legally blind” or “substantially impaired in the major life activity of walking.” b. Both Plaintiffs have traveled through DTW in the past and plan to visit the facility in the future and wish to have equal access to public transit facilities. c. Defendant’s announced course of conduct will result in Plaintiffs being denied proper access and mobility when using Detroit Metro Airport, where they both travel to and from, and thus deny their rights as provided to them by the ADA. 9. Wayne County Airport Authority is a public, government entity within the meaning and definition of the ADA as it was chartered by the Michigan Legislature in 2002.
FACTUAL ALLEGATIONS 10. The Wayne County Airport Authority is the government chartered entity that oversees
Detroit Metro Airport (“DTW”). 11. Plaintiffs currently have access to and from DTW via public transportation companies,
such as SMART and AirRide, and wish to continue to have access in the future.

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12. The current drop-off location for SMART and AirRide is at the International Arrivals Level of the McNamura Terminal of DTW, which is an accessible and ADA-compliant location.
13. Effective Monday, September 22, 2014, SMART and AirRide transportation services will be relocated to the Ground Transportation Center.
14. Defendant announced its plan to relocate SMART and AirRide transportation services on its website, made available to the general public and to the Plaintiffs at: http://www.metroairport.com/GroundTransportation.aspx
15. Defendant claims the relocation of SMART and AirRide is due to safety and congestion concerns, however Great Lakes Bus, the shuttle for airport employees that makes approximately 168 roundtrips per day as compared to the 13 roundtrips by AirRide, will not be relocated from the same current location.
16. The new location at the GTC presents serious accessibility problems, and thus is in violation of the Americans with Disabilities Act, the potential violations of the ADA include, but are not limited to, the following: a. The traffic at the GTC is heavily congested as it also serves cabs, charter buses, and shuttle services for hotels, parking lots and rental cars, and fails to provide safe pedestrian access to persons with disabilities. b. The proposed area for buses to stop takes place in three spots in two side-byside lanes, one lane along the curb, and the other the middle lane with an active traffic lane on its other side.

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c. If a bus is parked in each of the lanes, the bus in the curb-side lane blocks the bus in the middle lane from deploying its wheel chair lift as there is simply not enough room.
d. When all three unloading spots are occupied, passengers loading and unloading from a bus in the middle lane are forced to exit between vehicles and cross over a lane of traffic, an action which could result in severe bodily harm and/or death, especially if this person is blind and unable to see the potential dangers.
e. The new location at the GTC is approximately 100 yards from the nearest indoor area of the airport, as opposed to 50 feet in the McNamura Terminal at the present location, thus forcing people to either wait outside for their bus or run quickly once it arrives. Disabled persons, especially those with mobility limitations, who cannot “run” quickly enough are thus forced to wait outside, even in harsh weather conditions.
f. The GTC severely limits a disabled person’s access to and communication with Prospect Airport Services, a service used by disabled persons to assist them in getting around at the Airport, thereby leaving them stranded, and without access to reasonable accommodations.
g. The obscure location of the elevators in the GTC is unclearly marked and difficult to find, creating further hurdles and frustration for disabled persons seeking to use them.
h. The covered shelters at the GTC are not large enough for someone who uses a wheelchair to maneuver inside without blocking entrances and other people,

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which could result in embarrassment, frustration, and being forced to wait outside in treacherous weather. i. Unlike the current location inside the McNamura Terminal, the GTC does not have a service animal relief area, which could result in frustration and hardship for the disabled person and his or her service animal alike. j. Passengers traveling from the McNamara Terminal to the new transit pickup location outside of the GTC must either choose to travel directly out “side doors” that exit to active lanes of traffic, or go through a revolving door, which when often broken is inaccessible to those with mobility impairments. To wit, the Detroit Free Press in 2009 reported that the door had broken 33 times from April 1, 2008 to March 22, 2009. 17. Upon information and belief, Defendant is aware of the significant issues posed to the disabled should they move SMART and AirRide to the GTC, yet they are insistent in moving forward with their announced plan. 18. After numerous pleas to not move SMART and AirRide to the GTC went unanswered by the Defendant, their Board met one final time on September 18, 2014 and failed to take action to prevent the impending relocation from occurring. 19. Kirk Studley, Director of Michigan Department of Transportation, at a public hearing on September 18, 2014 before the Michigan Transportation Commission, stated he was going to request delay of the impending relocation due to unresolved issues related to accessibility for persons with disabilities. This statement was made in the presence of Plaintiff Hudson.

2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 7 of 13 Pg ID 7
20. Michigan Governor Rick Snyder communicated his support in “maintaining the integrity of the current stop locations” in a letter to Mr. Tom Naughton, CEO of the Wayne County Airport Authority and to Mr. Michael Ford, CEO of the Ann Arbor Area Transportation Authority dated June 11, 2014. (Exhibit-A, Letter from Governor Snyder).
21. Plaintiffs, and others similarly situated, wish to continue using transportation services to and from the airport, such as SMART and AirRide, but they will be effectively barred due to the inaccessibility of the location for disabled persons.
22. In short, the current transportation stop at the International Arrivals Level of the McNamura Terminal is accessible to disabled individuals, and the impending action announced by Defendant to move that transportation stop to the GTC is not accessible to disabled individuals, needlessly and recklessly subjects them to bodily injury, and is patently in violation of the ADA. COUNT I
VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT. 23. Plaintiffs incorporate by reference all allegations set forth in paragraphs 1 through 22,
inclusive. 24. In enacting the ADA, Congress expressly determined that society tends to isolate and
segregate people with disabilities; that individuals with disabilities continually encounter prejudice and discrimination, including outright exclusion and the failure to eliminate exclusionary criteria; that this nation should assure equality of opportunity for all participation, independent living, and economic self-sufficiency to individuals with

2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 8 of 13 Pg ID 8
disabilities; and that continuing discrimination impedes them from competing on an equal basis and pursuing opportunities available to other citizens. 42 U.S.C. § 12101(a) 25. The express purpose of the ADA is “to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing the standards established in the Act on behalf of individuals with disabilities.” 42 U.S.C. § 12101(b). 26. The Plaintiffs are individuals who constitute “qualified individual(s) with a disability” under the ADA. 27. The Defendant, to the extent that it is a government chartered entity, is subject to Title II of the ADA. 28. Title II of the ADA states “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 29. Through the acts set to take place on September 22, 2014, Defendant has acted in disregard of Plaintiffs’ disabilities, effectively planning to subject them to discrimination by forcing them to use an inaccessible area, in violation of the ADA. 30. Moving public transportation service locations to the GTC denies Plaintiff’s the right to equal access, in violation of Title II of the Americans with Disabilities Act. 31. Defendants’ announced course of conduct is in violation of the equal access and nondiscrimination requirements set forth in Title II of the ADA, and will result in injury

2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 9 of 13 Pg ID 9
to Plaintiffs, and others similarly situated, if the Defendant is not prevented from implementing its plan 32. Unless enjoined from doing so, Defendant’s actions will inflict irreparable injuries for which Plaintiffs have no adequate remedy at law.
COUNT II VIOLATION OF TITLE V OF THE AMERICANS WITH DISABILITIES ACT. 33. Plaintiff incorporates by reference all allegations set forth in paragraphs 1 through 32,
inclusively. 34. Title V of the Americans with Disabilities Act states in pertinent part that “It shall be
unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” 42 U.S.C. 12203(b). 35. Through the acts and omissions alleged herein, Defendant has acted to interfere with Plaintiff’s exercise or enjoyment of rights granted or protected by the ADA, specifically by interfering with Plaintiff’s right to equal access and nondiscrimination, in utilizing public transportation services at DTW. 36. The Defendant, by implementing their planned move of public transit services on September, 22, 2014 to in an inaccessible location, will have “interfered” with the Plaintiff’s federally protected rights to access public transportation in violation of the ADA, as Smartbus and AirRide will be forced by the Defendant to pick up the Plaintiffs, and others similarly situated, in a dangerous manner, and in an environment devoid of adherence to the ADA.

2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 10 of 13 Pg ID 10
37. Plaintiffs hereby allege that in knowingly forcing them, and those similarly situated, to access public transportation services through an inaccessible and dangerous location, the Defendant has acted with “discriminatory animus,” needlessly subjecting the persons with disabilities to the potential for loss of life and limb. WHEREFORE, Plaintiff requests the relief set forth below. PRAYER FOR RELIEF
Plaintiffs pray for the following relief: 38. A declaration that Defendant Wayne County Airport Authority’s announced course of
action unlawfully violates Plaintiff’s rights under the Americans with Disabilities Act of 1990. 39. A temporary restraining order and/or preliminary injunction enjoining the Wayne County Airport Authority’s relocation of public transportation to the Ground Transportation Center, until such time as the GTC, or an alternative location, can be made accessible to qualified individuals with disabilities requesting reasonable accommodations. 40. A permanent injunction preventing Defendant from implementing their announced plan to move SMART and AirRide from the current location at the Arrivals Level of the McNamura Terminal to the Ground Transportation Center. 41. Reasonable Attorneys fees and costs for the prosecution of this matter. 42. Although the Plaintiff seeks no compensatory damages at this time, Plaintiff wishes to reserve the right to amend and request compensatory damages should it come necessary to encourage Defendant to comply with federal law. 43. All other relief that this Court deems just and proper.

2:14-cv-13630-DML-RSW Doc # 1 Filed 09/19/14 Pg 11 of 13 Pg ID 11

Dated: September 19, 2014

Respectfully submitted,
NYMAN TURKISH PC
/s/ Jason M. Turkish By: Jason M. Turkish, Michigan Bar #P76310 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Fax: (248) 262-5024 Jason.Turkish@NymanTurkish.com
Co-Counsel for Plaintiffs
By: Melissa M. Nyman, California Bar #293207 5800 Stanford Ranch Road, Suite 720 Rocklin, California 95765 Phone: (916) 218-4340 Fax: (916) 218-4341 Melissa.Nyman@NymanTurkish.com
Co-Counsel for Plaintiffs

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 2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 1 of 20 Pg ID 46

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, )

)

Plaintiffs,

)

)

v.

)

)

WAYNE COUNTY AIRPORT AUTHORITY, )

)

Defendant.

)

)

_________________________________________/

Case No. 2:14-cv-13630 Hon. David M. Lawson

NYMAN TURKISH PC Jason M. Turkish (P76310) Melissa M. Nyman (293207) 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Jason.Turkish@NymanTurkish.com Melissa.Nyman@NymanTurkish.com

Attorneys for Plaintiffs ____________________________________________________________________________/

PLAINTIFF’S FIRST AMEDNED COMPLAINT

Plaintiffs, Michael Harris and Karla Hudson, hereby sue the Wayne County Airport Authority,

and state as follows:

INTRODUCTION

1. Plaintiffs bring this action to put an end to Defendant Wayne County Airport

Authority’s failure to comply with the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (29

U.S.C. 794) by relocating public transportation services from the International Arrivals

Level of the McNamura Terminal to the Ground Transportation Center (“GTC”) at the

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 2 of 20 Pg ID 47
Detroit Metro Airport (“DTW”), a location posing numerous accessibility issues in violation of these statutes. 2. Defendant’s move of public transit services, which took place on Monday, September 22, 2014 discriminates against Plaintiffs, and others similarly situated, by forcing the public transportation companies to load and unload their passengers in an inaccessible area with numerous violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. 3. By ignoring the needs and dignity of Plaintiffs, and other disabled persons similarly situated, while traveling to and from the airport, Defendant treats them as second-class citizens, unjustly disregards their basic rights to equality and dignity, and causes embarrassment, humiliation, harassment, and emotional distress. Additionally, by moving transit access to an inaccessible area, Defendant needlessly subjects the Plaintiffs, and those similarly situated, to unnecessary risk of bodily injury and death. Therefore, Plaintiffs seek declaratory relief stating the Defendant’s course of conduct violates the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, and injunctive relief enjoining Defendant from continuing to operate public transportation in its new location at the inaccessible GTC rather than the previous accessible location at International Arrivals.
JURISDICTION AND VENUE 4. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331, because
Plaintiff’s claims arise under federal statutes, specifically the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. In addition, this Court has jurisdiction over Plaintiff’s claims for declaratory relief, pursuant to 28 U.S.C. §§ 2201-

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 3 of 20 Pg ID 48
02 and jurisdiction over Plaintiff’s claims for injunctive relief pursuant to 15 U.S.C. § 1116. 5. Venue is proper in the Eastern District of Michigan, Southern Division, because the Defendant is situated within the district pursuant to 28 U.S.C. § 1391, and because the events, acts, and omissions giving rise to Plaintiffs’ claims occurred in this district.
PARTIES 6. Plaintiff, Michael Harris, presently the Executive Director of the Michigan Paralyzed
Veterans of America, is an individual who uses a wheelchair, living in Westland, Michigan. 7. Plaintiff, Karla Hudson, is a totally blind individual who lives in East Lansing Michigan. 8. Plaintiffs have standing to bring the present cause of action. a. Plaintiffs are physically disabled according to the definition provided by the ADA
as they are either “legally blind” or “substantially impaired in the major life activity of walking.” b. Plaintiffs are physically disabled according to the definition provided by Section 504 of the Rehabilitation Act as they have a physical impairment that “substantially limits one or more major life activit[y].” (42 U.S.C. section 12102(1)). c. Both Plaintiffs have traveled through DTW in the past and plan to visit the facility in the future and wish to have equal access to public transit facilities. d. Defendant’s course of conduct results in Plaintiffs being denied proper access and mobility when using Detroit Metro Airport, where they both travel to and from,

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 4 of 20 Pg ID 49
and thus deny their rights as provided to them by the ADA and Section 504 of the Rehabilitation Act. 9. Wayne County Airport Authority is a public, government entity within the meaning and definition of the ADA as it was chartered by the Michigan Legislature in 2002.
FACTUAL ALLEGATIONS 10. The Wayne County Airport Authority is the government chartered entity that oversees
Detroit Metro Airport (“DTW”). 11. Plaintiffs used to have ADA-compliant access to and from DTW via public
transportation companies, such as SMART and AirRide, and wish to continue to have ADA-compliant access in the future. 12. Prior to September 22, 2014, the drop-off location for SMART and AirRide was at the International Arrivals Level of the McNamura Terminal of DTW, which is an accessible and ADA-compliant location. 13. Effective Monday, September 22, 2014, SMART and AirRide transportation services were relocated to the Ground Transportation Center of the McNamura Terminal. 14. Defendant announced its plan to relocate SMART and AirRide transportation services on its website, made available to the general public and to the Plaintiffs at: http://www.metroairport.com/GroundTransportation.aspx 15. Defendant claims the relocation of SMART and AirRide was due to safety and congestion concerns, however Great Lakes Bus, the shuttle for airport employees that makes approximately 168 roundtrips per day as compared to the 13 roundtrips by AirRide, was not relocated from the same location.

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 5 of 20 Pg ID 50
16. The new location at the GTC presents serious accessibility problems, and thus is in violation of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. The violations of these statutes includes, but is not limited to, the following: a. The traffic at the GTC is heavily congested as it also serves cabs, charter buses, and shuttle services for hotels, parking lots and rental cars, and fails to provide safe pedestrian access to persons with disabilities. b. The area for public transit buses to stop takes place in three spots in two sideby-side lanes, one lane along the curb, and the other the middle lane with an active traffic lane on its other side. c. If a bus is parked in each of the lanes, the bus in the curb-side lane blocks the bus in the middle lane from deploying its wheel chair lift as there is simply not enough room. d. When all three unloading spots are occupied, passengers loading and unloading from a bus in the middle lane are forced to exit between vehicles and cross over a lane of traffic, an action which could result in severe bodily harm and/or death, especially if this person is blind and unable to see the potential dangers. e. The new location at the GTC is approximately 200 yards from the nearest indoor area of the airport, as opposed to 50 feet in the McNamura Terminal at the present location, thus forcing people to either wait outside for their bus or run quickly once it arrives. Disabled persons, especially those with mobility limitations, who cannot “run” quickly enough are thus forced to wait outside, even in harsh weather conditions.

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 6 of 20 Pg ID 51
f. The GTC severely limits a disabled person’s access to and communication with Prospect Airport Services, a service used by disabled persons to assist them in getting around at the Airport, thereby leaving them stranded, and without access to reasonable accommodations.
g. The obscure location of the elevators in the GTC is unclearly marked and difficult to find, creating further hurdles and frustration for disabled persons seeking to use them.
h. The covered shelters at the GTC are not large enough for someone who uses a wheelchair to maneuver inside without blocking entrances and other people, which could result in embarrassment, frustration, and being forced to wait outside in treacherous weather.
i. Unlike the old location at the International Arrivals level of the McNamura Terminal, the GTC does not have a service animal relief area, which could result in frustration and hardship for the disabled person and his or her service animal alike.
j. Passengers traveling from the McNamara Terminal to the new transit pickup location outside of the GTC must either choose to travel directly out “side doors” that exit to active lanes of traffic, or go through a revolving door, which when often broken is inaccessible to those with mobility impairments. To wit, the Detroit Free Press in 2009 reported that the door had broken 33 times from April 1, 2008 to March 22, 2009.

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 7 of 20 Pg ID 52
17. Upon information and belief, Defendant was aware of the significant issues posed to the disabled when they moved SMART and AirRide to the GTC, yet they insisted in moving forward with their announced plan.
18. After numerous pleas to not move SMART and AirRide to the GTC went unanswered by the Defendant, their Board met one final time on September 18, 2014 and failed to take action to prevent the impending relocation from occurring.
19. Kirk Studley, Director of Michigan Department of Transportation, at a public hearing on September 18, 2014 before the Michigan Transportation Commission, stated he was going to request delay of the impending relocation due to unresolved issues related to accessibility for persons with disabilities. This statement was made in the presence of Plaintiff Hudson.
20. Jerrold M. Jung, Commission Chair of the Michigan State Transportation Commission, in a letter to Mr. Tom Naughton, CEO of the Wayne County Airport Authority dated September 18, 2014, requested the “immediate suspension of the Monday implementation date and that a public meeting of the airport board be held to address this important issue” stating concerns “regarding public safety at the new location, especially for persons with physical disabilities who rely on public transportation.” (Exhibit-A, Letter from Commission Chair Jerrold M. Jung).
21. Michigan Governor Rick Snyder communicated his support in “maintaining the integrity of the current stop locations” in a letter to Mr. Tom Naughton, CEO of the Wayne County Airport Authority and to Mr. Michael Ford, CEO of the Ann Arbor Area Transportation Authority dated June 11, 2014. (Exhibit-B, Letter from Governor Snyder).

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22. Ben Glardon, Michigan State Representative, 85th District, in a letter to MDOT Director Kirk T. Steudle dated September 18, 2014, expressed his concern with moving the location for public transit to pick-up and drop-off citing the “lack of loading/unloading space, greater traffic congestion, the inaccessibility for people with disabilities, inadequate waiting area, and the general inconvenience for passengers . . . .” (Exhibit-C, Letter from Michigan State Representative Ben Glardon).
23. Plaintiffs, and others similarly situated, wish to continue using public transportation services to and from the airport, such as SMART and AirRide, but they are now effectively barred due to the inaccessibility of the location for disabled persons.
24. In short, the previous transportation stop at the International Arrivals Level of the McNamura Terminal is accessible to disabled individuals, and the action by Defendant to move that transportation stop to the GTC is not accessible to disabled individuals, needlessly and recklessly subjects them to bodily injury, and is patently in violation of the ADA and Section 504 of the Rehabilitation Act. COUNT I
VIOLATION OF TITLE II OF THE AMERICANS WITH DISABILITIES ACT. 25. Plaintiffs incorporate by reference all allegations set forth in paragraphs 1 through 25,
inclusive. 26. In enacting the ADA, Congress expressly determined that society tends to isolate and
segregate people with disabilities; that individuals with disabilities continually encounter prejudice and discrimination, including outright exclusion and the failure to eliminate exclusionary criteria; that this nation should assure equality of opportunity for all participation, independent living, and economic self-sufficiency to individuals with

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 9 of 20 Pg ID 54
disabilities; and that continuing discrimination impedes them from competing on an equal basis and pursuing opportunities available to other citizens. 42 U.S.C. § 12101(a) 27. The express purpose of the ADA is “to provide a clear and comprehensive national mandate for eliminating discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing the standards established in the Act on behalf of individuals with disabilities.” 42 U.S.C. § 12101(b). 28. The Plaintiffs are individuals who constitute “qualified individual(s) with a disability” under the ADA. 29. The Defendant, to the extent that it is a government chartered entity, is subject to Title II of the ADA. 30. Title II of the ADA states “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or subjected to discrimination by any such entity.” 42 U.S.C. § 12132. 31. By moving the pick-up and drop-up location for public transportation from the International Arrivals area of the McNamura Terminal to the GTC, Defendant has acted in disregard of Plaintiffs’ disabilities, effectively subjecting them to discrimination by forcing them to use an inaccessible area, in violation of the ADA. 32. Forcing public transportation service locations to the GTC denies Plaintiff’s the right to equal access, in violation of Title II of the Americans with Disabilities Act.

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33. Defendants’ course of conduct is in violation of the equal access and nondiscrimination requirements set forth in Title II of the ADA, and has resulted in injury to Plaintiffs, and others similarly situated,
34. Unless enjoined from doing so, Defendant’s actions will inflict irreparable injuries for which Plaintiffs have no adequate remedy at law. COUNT II
VIOLATION OF TITLE V OF THE AMERICANS WITH DISABILITIES ACT. 35. Plaintiff incorporates by reference all allegations set forth in paragraphs 1 through 34,
inclusively. 36. Title V of the Americans with Disabilities Act states in pertinent part that “It shall be
unlawful to coerce, intimidate, threaten, or interfere with any individual in the exercise or enjoyment of, or on account of his or her having exercised or enjoyed, or on account of his or her having aided or encouraged any other individual in the exercise or enjoyment of, any right granted or protected by this chapter.” 42 U.S.C. 12203(b). 37. Through the acts and omissions alleged herein, Defendant has acted to interfere with Plaintiff’s exercise or enjoyment of rights granted or protected by the ADA, specifically by interfering with Plaintiff’s right to equal access and nondiscrimination, in utilizing public transportation services at DTW. 38. The Defendant, by implementing their move of public transit services on September, 22, 2014 to in an inaccessible location, “interfered” with the Plaintiff’s federally protected rights to access public transportation in violation of the ADA, as Smartbus and AirRide is forced by the Defendant to pick up the Plaintiffs, and others similarly

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 11 of 20 Pg ID 56
situated, in a dangerous manner, and in an environment devoid of adherence to the ADA. 39. Plaintiffs hereby allege that in knowingly forcing them, and those similarly situated, to access public transportation services through an inaccessible and dangerous location, the Defendant has acted with “discriminatory animus,” needlessly subjecting the persons with disabilities to the potential for loss of life and limb.
COUNT III VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973
(29 U.S.C. 794) ET SEQ AND RELATED. 40. Plaintiffs incorporate by reference all allegations set forth in paragraphs 1 through 39,
inclusive. 41. Section 504 states in part that “no otherwise qualified individual with a disability in the
United States . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency . . . .” 42. Plaintiffs are qualified individuals with disabilities as defined by Section 504, specifically; Plaintiffs are both persons with physical impairments which substantially limit one or more major life activities. 43. Upon information and belief, Defendant Wayne County Airport Authority receives federal financial assistance in its programs and activities and is an entity created by legislative enactment as it was chartered by the Michigan Legislature in 2002. 44. As referenced above, Defendant has consistently discriminated against Plaintiffs, and others similarly situated.

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 12 of 20 Pg ID 57
WHEREFORE, Plaintiff requests the relief set forth below. PRAYER FOR RELIEF
Plaintiffs pray for the following relief: 45. A declaration that Defendant Wayne County Airport Authority’s announced course of
action unlawfully violates Plaintiff’s rights under the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act. 46. A preliminary injunction enjoining the Wayne County Airport Authority’s relocation of public transportation to the Ground Transportation Center, until such time as the GTC, or an alternative location, can be made accessible to qualified individuals with disabilities requesting reasonable accommodations. 47. A permanent injunction preventing Defendant from moving SMART and AirRide from the International Arrivals Level of the McNamura Terminal to the Ground Transportation Center, until such time as the GTC or an alternative location can be made accessible to qualified individuals with disabilities requesting reasonable accommodations. 48. Reasonable Attorneys fees and costs, including expert fees, for the prosecution of this matter. 49. Although the Plaintiff seeks no compensatory damages at this time, Plaintiff wishes to reserve the right to amend and request compensatory damages should it become necessary to encourage Defendant to comply with federal law. 50. All other relief that this honorable Court deems just and proper.

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 13 of 20 Pg ID 58

Dated: September 29, 2014

Respectfully submitted,
NYMAN TURKISH PC
/s/ Jason M. Turkish By: Jason M. Turkish, Michigan Bar #P76310 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Fax: (248) 262-5024 Jason.Turkish@NymanTurkish.com
Co-Counsel for Plaintiffs
By: Melissa M. Nyman, California Bar #293207 5800 Stanford Ranch Road, Suite 720 Rocklin, California 95765 Phone: (916) 218-4340 Fax: (916) 218-4341 Melissa.Nyman@NymanTurkish.com
Co-Counsel for Plaintiffs

Certificate of Service
I certify that on September 29, 2014, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record.
/s/ Jason M. Turkish By: Jason M. Turkish (P76310)

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 14 of 20 Pg ID 59
Exhibit-A
Letter from Commission Chair Jerrold M. Jung

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 15 of 20 Pg ID 60

RICK SNYDER
GOVERNOR

STATE OF MICHIGAN
STATE TRANSPORTATION COMMISSION
LANSING

ltMDar Michl9an Oepartmenl of Ttansportation

September 18, 2014

Mr. Thomas Naughton, CEO Wayne County Airport Authority 1 Detroit Metro Airport Detroit, Michigan 48242
Dear Mr. Naughton:
At today' s State Transportation Commission meeting, we heard public comments from many individuals about the Wayne County Airport Authority decision to relocate the Michigan Flyer drop-off point at Detroit Metropolitan Airport starting Monday, September 22, 2014. Numerous comments were made regarding public safety at the new location, especially for persons with physical disabilities who rely on public transportation.
Maintaining the integrity of the current stop locations to provide convenient, safe, handicapped-accessible, and direct access is important to keep services seamless and attractive for travelers. We understand that there are challenges in terms of safety, navigation, and congestion mitigation. These challenges should be resolved in a manner that is beneficial for all, and that contributes to the success of regional transportation improvements for visitors and residents alike.
On behalf of the commission, I am officially requesting the immediate suspension of the Monday implementation date and that a public meeting of the airport board be held to address this important issue. We are hopeful that a resolution that satisfies all parties is possible.
Sincerely,

cc: Dennis Schomack Sara Wurfel Kirk Steudle Laura Mester Michael Trout Jeff Cranson FrankRaha

Commission Chair

• Jerrold M. Jung, Chair • Todd Wyett, Vice Chair • Angelynn A. Afendoulis • Ron J. Boji • Michael D. Hayes • Charles F. Moser •
MURRAY D. VAN WAGONER BUILDING • P.O. BOX 30050 • LANSING, MICHIGAN 48909
www.michigan.gov/transcommission • 517-373-211 o

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 16 of 20 Pg ID 61
Exhibit-B
Letter from Governor Snyder

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 17 of 20 Pg ID 62

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 18 of 20 Pg ID 63
Exhibit-C
Letter from Michigan State Representative Ben Glardon

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 19 of 20 Pg ID 64
September 18, 2014
Director Kirk T. Steudle Michigan Department of Transportation 425 W. Ottawa St. P.O. Box 30050 Lansing, MI 48909
Dear Director Steudle:
I write you concerning the proposed change to public the transit passenger boarding and de-boarding location at Detroit Metropolitan Airport (DTW). Currently, passengers board and de-board AirRide motorcoaches curbside at the north end of the McNamara Terminal. Due to unspecified safety concerns, DTW officials propose moving the boarding and de-boarding location to door #402 at the North end of the Ground Transportation Center (GTC).
This proposed change would create numerous problems. AirRide and its partner Michigan Flyer carried 175,582 passengers to and from DTW in the year between July 2012 and June 2013. It is not unusual for 500 Ann Arbor or Lansing-area convention –goers- or 500 international students attending the University of Michigan or Michigan State University to arrive at DTW’s McNamara Terminal all at once. The arrival hall at International Arrivals can accommodate hundreds of people adequately while they wait for their AirRide bus to pull up at the curb just outside. The proposed change would force these groups, with each person carrying luggage, to make the long trek to the GTC in the Parking Ramp across the street from the terminal, where the waiting room can only accommodate approximately 30 people.
In addition, there are only three spaces available for boarding at the GTC which are to be shared with AirRide, Suburban Mobility Authority for Regional Transportation (SMART) and charter services. Bus Parking will be available on a first-come, first-served basis, with the first two buses parking adjacent to the curb and the third bus parking in the roadway next to them. This causes serious safety concerns as this will force some AirRide buses to load and unload passengers between buses during busy periods. More importantly, this could violate laws regarding access to airport facilities by people with disabilities. AirRide buses are equipped with wheelchair lifts that require 9 feet of space from the right rear side of the bus for safe passenger loading and unloading. If an AirRide bus parks at the GTC in the through lane next to the two other buses, there will not be adequate space for the wheelchair lift to deploy.
DTW’s relocation plan would also have a negative fiscal impact to DTW, the state of Michigan and a crippling effect on AirRide operations. AirRide and Michigan Flyer help extend DTW’s reach beyond its primary market of the surrounding ten-county Detroit Air Trade Area, all the way to Ingham and other

2:14-cv-13630-DML-RSW Doc # 9 Filed 09/29/14 Pg 20 of 20 Pg ID 65
mid-Michigan counties. As evidence, AirRide’s 175,582 passengers have more than doubled the positive economic impact on DTW and its air carriers. About one-third (57,942) of AirRide-Michigan Flyer passengers are visitors from other states and countries that directly spend $82,576,040 in Michigan per year, and have a total positive impact of $151,099,506 on the state’s economy. The success of public transit like AirRide depends on adherence to published schedules. The lack of loading/unloading space, greater traffic congestion, the inaccessibility for people with disabilities, inadequate waiting area, and the general inconvenience for passengers of AirRide would force people to look for alternative means of transportation. Given AirRide’s impeccable safety record at its current boarding location, the economic impact to our state, and the concerns I’ve stated, I strongly encourage you to please consider postponing the effective date of this proposed change to allow for further discussion. Thank you and please feel free to contact me with any questions or comments on this issue.
Sincerely,
Ben Glardon State Representative 85th District
cc: Sally Durfee, Office of Governor Rick Snyder

 
 2:14-cv-13630-DML-RSW Doc # 22 Filed 10/17/14 Pg 1 of 2 Pg ID 316

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS and KARLA HUDSON,

Plaintiffs, v.

Case Number 14-13630 Honorable David M. Lawson

WAYNE COUNTY AIRPORT AUTHORITY,

Defendant. _____________________________/

ORDER OF DISMISSAL

On October 16, 2014, the Court held a settlement conference with the parties. At the end of

that conference the parties represented that they had reached a final settlement of all claims in this

matter. On October 17, 2014, the Court held a heairng during which the parties placed the terms of

their settlement on the record. In order to facilitate the execution of the settlement agreement, the

parties jointly requested that the Court dism iss the com plaint without prejudice, but allow an

appropriate time during which any party could move to reopen the case to enforce the terms of the

settlement agreement. The parties represented that they expect the terms of their agreement fully

to be performed on or before September 1, 2015.

Accordingly, it isORDERED that the case isDISMISSED WITHOUT PREJUDICEand

without costs to any party. Any party m ay apply to reopen the m atter to enforce the settlem ent

agreement on or before September 1, 2015, and the Court retains jurisdiction through that date to

entertain such a motion and to enforce the terms of the parties’ agreement.

2:14-cv-13630-DML-RSW Doc # 22 Filed 10/17/14 Pg 2 of 2 Pg ID 317
It is further ORDERED that any party may file a motion to convert the dismissal without prejudice to a dismissal with prejudice on or before September 1, 2015.
It is further ORDERED that the plaintiff’s motion for preliminary injunction [dkt. #3] is DISMISSED as moot.
s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: October 17, 2014
PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on October 17, 2014.
s/Marilyn Orem MARILYN OREM
-2-

 
 2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 1 of 21 Pg ID 342

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, )

)

Plaintiffs,

)

)

v.

)

)

WAYNE COUNTY AIRPORT AUTHORITY, )

)

Defendant.

)

)

_________________________________________/

Case No. 2:14-cv-13630 Hon. David M. Lawson
ORAL ARGUMENT REQUESTED

NYMAN TURKISH PC Jason M. Turkish (P76310) Melissa M. Nyman (293207) 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Jason.Turkish@NymanTurkish.com Melissa.Nyman@NymanTurkish.com

ZAUSMER KAUFMAN AUGUST & CALDWELL PC Gary K. August (P48730) 31700 Middlebelt Rd Ste 150 Farmington Hills, MI 48334 Phone: (248) 851-4111 gaugust@zkac.com

Attorneys for Plaintiffs

Attorneys for Defendant

____________________________________________________________________________/

PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND AWARD ATTORNEY’S FEES
Now Comes Plaintiffs, Michael Harris and Karla Hudson (“Plaintiffs”), by and through their undersigned attorneys, and hereby move for enforcement of their Settlement Agreement. This case was settled and the terms were read into the record before this Honorable Court on October 17, 2014, subject only to Michigan Flyer, LLC and Indian Trails, Inc. executing a release of claims against the Defendant relating to the Defendant’s relocation of the pick-up and drop-off areas for public transportation. On November 4, 2015, Michigan Flyer and Indian Trails signed said release. Since that date, the Defendant has failed to execute several terms of

1

2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 2 of 21 Pg ID 343

the Settlement Agreement. Plaintiffs’ counsel has repeatedly implored the defendant to carry

out its obligations, to no avail. Plaintiffs therefore request the following immediate relief:

1. Enforcement of the Settlement Agreement by an order for specific performance.

2. Attorney’s fees for having to bring this motion.

Local Rule 7.1(a) requires Plaintiffs to ascertain whether this motion will be opposed.

Plaintiffs’ counsel telephoned Defendants’ counsel on multiple occasions during December

and early January to explain the nature of this motion and its legal basis. Plaintiffs’ counsel

again telephoned Defendant on January 22, 2015 to discuss concurrence, and sent an e-mail

memorializing that phone call. Plaintiffs’ counsel requested but did not obtain concurrence in

the relief sought.

A supporting brief and exhibits accompany this motion.

Respectfully submitted,
NYMAN TURKISH PC
/s/ Jason M. Turkish By: Jason M. Turkish, Michigan Bar #P76310 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Fax: (248) 262-5024 Jason.Turkish@NymanTurkish.com

By: Melissa M. Nyman, California Bar #293207 5800 Stanford Ranch Road, Suite 720 Rocklin, California 95765 Phone: (916) 218-4340 Fax: (916) 218-4341 Melissa.Nyman@NymanTurkish.com

Dated: February 3, 2015

Attorneys for Plaintiffs

2

2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 3 of 21 Pg ID 344

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, )

)

Plaintiffs,

)

)

v.

)

)

WAYNE COUNTY AIRPORT AUTHORITY, )

)

Defendant.

)

)

_________________________________________/

Case No. 2:14-cv-13630 Hon. David M. Lawson

NYMAN TURKISH PC Jason M. Turkish (P76310) Melissa M. Nyman (293207) 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Jason.Turkish@NymanTurkish.com Melissa.Nyman@NymanTurkish.com

ZAUSMER KAUFMAN AUGUST & CALDWELL PC Gary K. August (P48730) 31700 Middlebelt Rd Ste 150 Farmington Hills, MI 48334 Phone: (248) 851-4111 gaugust@zkac.com

Attorneys for Plaintiffs

Attorneys for Defendant

____________________________________________________________________________/

BRIEF IN SUPPORT OF PLAINTIFFS’ MOTION TO ENFORCE SETTLEMENT AGREEMENT AND AWARD ATTORNEY’S FEES

2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 4 of 21 Pg ID 345
TABLE OF CONTENTS INDEX OF AUTHORITIES ...................................................................................................... iii INTRODUCTION .......................................................................................................................1 RELEVANT FACTS ...................................................................................................................2 ARGUMENT ...............................................................................................................................5
I. THE COURT SHOULD ORDER SPECIFIC PERFORMANCE OF THE SETTLEMENT AGREEMENT .................................................................................5 A. This Court has the inherent power to enforce the Settlement Agreement ............5 B. The parties reached an agreement on all material terms.......................................6 C. The Defendant is in breach of the Agreement ......................................................6 1. Failure to modify the non-conforming slope in the pedestrian walkway between Door 401 and Door 402 ..............................................................7 2. Failure to heat the bus shelters .................................................................7 3. Failure to maintain a climate controlled waiting area in the GTC .........10 4. Illegal reconfiguration of the GTC and use of Door 402 .......................11 D. Specific Performance is the appropriate remedy ...............................................12
II. THE COURT SHOULD AWARD ATTORNEYS FEES........................................13 CONCLUSION ..........................................................................................................................15
ii

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Cases

INDEX OF AUTHORITIES

Alyeska Pipeline, 421 U.S. 240, 258-259 (1975) ...................................................................... 14 Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992) ........................... 12 Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988) ................................................. 5, 6 Doe v. Hogan, 421 F. Supp. 2d 1051, 1057 (S.D. Ohio 2006) ................................................. 14 Ruegsegger v. Bangor Twp. Relief Drain, 127 Mich. App. 28, 31 (1983) ................................ 12 Tocci v. Antioch Univ., 967 F. Supp. 2d 1176, 1180 (S.D. Ohio 2013) ................................... 14

Statutes 29 U.S.C. § 794.......................................................................................................................... 14 29 U.S.C. § 794a(b) ............................................................................................................ 13, 14 42 U.S.C. § 12101....................................................................................................................... 14 42 U.S.C. § 12205................................................................................................................. 13, 14

iii

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INTRODUCTION In September 2014, Plaintiffs Karla Hudson and Michael Harris filed the instant action to maintain the accessibility of Public Transportation at the Defendant Wayne County Airport Authority’s McNamara Terminal. The Plaintiffs alleged, inter alia, that the relocation of Public Transportation from curbside at the International Arrivals level of the McNamara Terminal, to across the street and 600 feet over, created barriers to individuals with disabilities sufficient to constitute an actionable suit under Section 504 of the Rehabilitation Act and Titles II and V of the Americans with Disabilities Act. Indeed, the Plaintiffs were not alone in their concerns related to the relocation of Public Transportation. The Governor of Michigan, the Attorney General, the Michigan Department of Transportation Director, and the State Transportation Commission Chair had all voiced concerns about the Defendant’s plans for the relocation of Public Transportation. With the Defendant having ignored the concerns of those in State Government charged with protecting the traveling public, the Plaintiffs sought equitable relief in the form of a Preliminary Injunction to enjoin the Defendant from relocating Public Transportation. On the eve of an Evidentiary Hearing on Plaintiff’s Motion, the parties reached a Settlement Agreement, allowing the Defendant to relocate Public Transportation and contemporaneously mandating substantive changes to the new location. It was an impressive Settlement Agreement, one that allowed the Defendant its desired move, and ensured the Plaintiffs would have safe continued access to Public Transportation. The changes were common sense in nature, and successful implementation of each change was interdependent on adherence to all of the changes, as they served as an interconnected framework for accessibility in the new location. Unfortunately, the Defendant has in many
1

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instances chosen to ignore the required changes in the Settlement Agreement, or has not substantively complied with the intended modifications. The result is the Defendant has now enjoyed the benefit of its bargain without living up to its responsibilities: being permitted to move Public Transportation to the new location without making the necessary and agreed upon changes. Without action by this Honorable Court, the Defendant will continue to force Public Transportation to operate in substandard conditions in violation of the Settlement Agreement.
RELEVANT FACTS On September 19, 2014, Plaintiffs Karla Hudson and Michael Harris brought an action against the Wayne County Airport Authority for the relocation of the bus stop for public transportation providers from the International Arrivals level of the McNamara Terminal to the far end of the Ground Transportation Center, in violation of Titles II and V of the Americans with Disabilities Act and Section 504 of Rehabilitation Act. On October 17, 2014, Plaintiffs and Defendant entered into a Settlement Agreement, which was read into the record before this Honorable Court. (See Exhibit A, Order of Dismissal Without Prejudice) The case was dismissed with prejudice, but the Court retained jurisdiction over the matter until September 1, 2015, or until such time as the terms of the Settlement Agreement are carried out. Id. The parties reduced their Agreement to writing, and executed said Agreement on October 31, 2014. (Exhibit B, Settlement Agreement) The Agreement was contingent upon Michigan Flyer, LLC and Indian Trails, Inc. releasing the Defendant from claims arising out of the relocation of the public transportation bus stop. (Id. ¶ 4) On November 4, 2014, Michigan Flyer and Indian Trails executed said release. (Exhibit C, Michigan Flyer Release) Since that time, the Airport has violated several terms of the Settlement Agreement. The Plaintiffs have tried to work cooperatively with the Airport, but their pleas for compliance
2

2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 8 of 21 Pg ID 349
have been snubbed. The Plaintiffs are left with no alternative than to seek intervention from this Honorable Court through the present motion.
The Settlement Agreement required the Defendant to modify a slope in the pedestrian walkway outside of Door 402, so passengers with disabilities can utilize Door 402 as an accessible route of travel. (Exhibit B, ¶ 1.F) This was to be completed by December 31, 2014. Id. As of February 2, 2015, the slope in question has not been substantively modified. (Exhibit D, Declaration of Oded Norkin, ¶ 47)
The Settlement Agreement required the Airport to install heating elements within the three bus shelters most proximate to the New Spots. (Exhibit B, ¶ 1.D) The purpose of these heaters was to provide warmth to passengers with disabilities forced to wait outside for up to 90 minutes while they wait for their bus or the assistance of Prospect Services, the company providing assistance to disabled passengers at the Airport. (Exhibit D, ¶ 26-28) The previous bus stop for public transportation, located curbside at the International Arrivals level of the McNamara terminal, allowed passengers to wait directly inside in a climate controlled environment, within a few feet of the bus stop. (Id., ¶ 12) The new location for public transportation pick-up and drop-off is located 600 feet from the nearest indoor waiting area. Id. Passengers with disabilities are often not able to navigate this distance with their luggage without assistance. The heated shelters were intended to mitigate any potential harm or illness to disabled passengers during their wait. While the Airport did install mechanisms meant to heat the shelters, they do not achieve their intended purpose. (Id., ¶ 23) One of the three mechanisms installed does not work at all. (Id., ¶ 25) Remarkably, temperatures in the shelters have been observed at between 20 and 38 degrees Fahrenheit on multiple occasions, since the heating mechanisms have been installed. (Id., ¶ 23)
3

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The Settlement Agreement required Defendant to install a customer service and information desk for Eligible Transportation Providers within the waiting area inside the GTC. (Exhibit B, ¶ 1.H) The purpose of this desk was to provide assistance for passengers with disabilities, thus allowing them to wait in a climate controlled waiting area until their bus arrived, and then receive the necessary assistance in navigating the 600 foot stretch from the indoor waiting area to the bus stops at the furthest end of the GTC. This term of the Agreement was premised on the indoor waiting area being “climate controlled.” Id. Since the execution of the Settlement Agreement, the indoor waiting area has frequently been between 31 degrees Fahrenheit and 48 degrees Fahrenheit. (Exhibit D, ¶ 33) Door 401, which leads into the indoor waiting area of the GTC, is frequently broken, resulting in it being left wide open. (Exhibit E.1, Broken Door 401) This allows the cold outdoor air and noxious fumes to flood into the indoor waiting area, contributing to the cold indoor temperatures.
The Settlement Agreement required the Defendant to eliminate the third bus stop, previously located in an active lane of traffic thus reducing the total number of spaces from three to two. (Exhibit B, ¶ 1.A) Immediately following the execution of the Settlement Agreement, instead of eliminating the third spot, the Airport began allowing some buses that would otherwise be required to park at the south end of the GTC in the remaining two spaces outlined in the Settlement Agreement, but not Michigan Flyer, to use a space located directly outside Door 402 of the indoor waiting area of the GTC. (Exhibit D, ¶ 40) This space is marked as a no-parking and no-loading zone. (Id., ¶ 39) The use of this illegal space results in a dramatic constant increase in foot traffic through Door 402, which was not present at the time the Settlement Agreement was negotiated and signed, and which causes the Door to stay open
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quite often. (Id., ¶ 41) With the door consistently open, the indoor waiting area is filled with frigid air and noxious fumes. (Id., ¶ 43)
From 2006-2010, this space was not striped as a no-parking and no-loading zone, and it was designated for Michigan Flyer and other transportation companies as a loading and unloading zone. (Id., ¶ 37) In 2010, former Airport Deputy CEO Jack Vogel forced Michigan Flyer and all other bus carriers out of this location, stating that loading in that space forces the door to remain open for prolonged periods of time, which allows cold air and vehicle fumes into the GTC waiting area, and use of Door 402 creates excessive pedestrian congestion, causing a safety hazard as the line of passengers waiting to board the buses blocks the exit. (Id., ¶ 38) The Airport then striped that area as a no-parking and no-loading zone, and it remains striped that way today. (Id., ¶ 39) Because the area was striped as a no-parking zone at the time the Settlement Agreement was entered into, the Airport’s illegal use of this area, at the expense of the safety and comfort of the Plaintiffs and those similarly situated, constitutes a change to the “configuration” of the GTC sufficient to permit the Plaintiffs to return to Court under the express terms of said agreement. (Exhibit B, ¶ 6)
ARGUMENT I. THE COURT SHOULD ORDER SPECIFIC PERFORMANCE OF THE
SETTLEMENT AGREEMENT. A. This Court has the inherent power to enforce the settlement agreement. The power of this Court to enforce the terms of the Settlement Agreement is clear:
It is well established that courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them. . . . Before enforcing settlement, the district court must conclude that agreement has been reached on all material terms. The court must enforce the settlement as agreed to by the parties and is not permitted to alter the terms of the agreement.
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Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988) (citations and internal quotation marks omitted). On October 17, 2014, this Honorable Court held a hearing during which the parties to this matter placed the terms of their settlement agreement on the record. (Exhibit A) The parties jointly requested that the Court allow either party to move to reopen the case to enforce the terms of the Settlement Agreement on or before September 1, 2015, and that the Court retain jurisdiction through that date to entertain such a motion and enforce the terms of the agreement. Id. Therefore, pursuant to established legal precedent, and the terms of the parties’ Settlement Agreement, this Honorable Court has the power to entertain a motion and enforce the Settlement Agreement.
B. The parties reached an agreement on all material terms. In this case, the parties reached an agreement on all material terms. The terms of the settlement were read into the record before this Honorable Court on October 17, 2014, and an order was entered dismissing the case without prejudice pursuant to the terms of that agreement. Id. The agreement was memorialized in writing and signed by all parties on October 31, 2014. (Exhibit B). The agreement was contingent on Michigan Flyer, LLC and Indian Trails, Inc. releasing the Defendant from any liability related to its relocation of passenger the pick-up and drop-off location to the Ground Transportation Center. (Id., ¶ 4) On November 4, 2014, Michigan Flyer executed such a release. (Exhibit C). Therefore, as of November 4, 2014, there was a final enforceable agreement on all material terms.
C. The Defendant is in breach of the Agreement. The Plaintiffs entered into a Settlement Agreement with the Defendant in good faith. In exchange for dropping their claim and agreeing to the move of public transportation from International Arrivals to the GTC, the Settlement Agreement merely required the Defendant
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make substantive changes necessary to ensure the safety of passengers with disabilities. Without the agreed to changes, the GTC remains a hazardous and inaccessible area for the disabled community. During the time since the Settlement Agreement was executed, the Plaintiffs have sought to work cooperatively with the Defendant to ensure the terms of the Agreement were timely and properly carried out. However, the Defendant continues to minimize its responsibilities under the spirit and letter of the agreement.
1. Failure to modify the non-conforming slope in the pedestrian walkway between Door 401 and Door 402.
The Settlement Agreement requires, “[b]y December 31, 2014, the Defendant shall modify a slope in the pedestrian walkway outside of Door 402 within the GTC so that passengers with disabilities may utilize Door 402 as an accessible route to travel to and from the New Spots.” (Exhibit B, ¶ 1.F) (emphasis added) As of February 2, 2015, the slope in question between Door 402 and Door 401 has not been substantively modified. (Exhibit D, ¶ 46-47; Exhibit E.2, Slope Between Door 401 and Door 402) The Defendant indicated it modified a different slope, but the slope referenced in the Settlement Agreement remains in the same material condition as it was on to October 17, 2014. Because the slope has not been modified, the Defendant is in breach of this part of the Settlement Agreement.
2. Failure to heat the bus shelters. The Settlement Agreement states, “[b]y December 1, 2014, the Defendant shall install heating elements within the three bus shelters most proximate to the New Spots such that a heating element is over the area of the shelters that do not have a bench that accommodates persons using wheelchairs.” (Exhibit B, ¶ 1.D) While the Defendant installed heating mechanisms, they simply do not work. One of the newly installed heaters does not work at all, and the other two newly installed heaters are not effective in actually heating the area. (Exhibit
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D, ¶¶ 23-25) Temperatures in the bus shelters have been recorded on numerous occasions at between 20-38 degrees Fahrenheit with the heaters on. (Id. at ¶ 23)
The importance of properly working heating elements in the bus shelters is due to the increased distance of the new bus stops from the nearest indoor waiting area and the increased time disabled passengers must endure in the cold while they wait for Prospect Services, the company charged with assisting passengers with disabilities at the Airport. The new pick-up and drop-off location is 600 feet away from the nearest possible indoor ‘climate controlled’ environment. (Id., ¶ 12) Unlike an able-bodied person, many passengers with disabilities cannot easily maneuver from one place to another without assistance. As the new area for public transportation is so far away from the terminal, unlike the previous location at International Arrivals which was directly at the terminal, many passengers with disabilities are forced to rely on Prospect. Due to the vastly increased distance, it often takes Prospect Services 30-45 minutes to arrive to pick-up a customer, forcing disabled or elderly persons to endure frigid temperatures for a great length of time. (Id., ¶ 26) Likewise, when Prospect brings a passenger out to the public transportation pick-up area to wait for their bus, Prospect will not wait inside with the disabled passenger the 30-60 minutes it sometimes takes for the bus to arrive and then assist them out the 600 foot stretch to the bus. (Id., ¶ 27) Disabled passengers are left with no choice but to have Prospect Services take them directly out to the bus stop, again forcing them to endure frigid temperatures for long periods of time. (Id., ¶ 28)
The Defendant’s lack of care for effectuating the purpose behind the Settlement Agreement on this point is demonstrated by its actions in thwarting any mitigating efforts made by Michigan Flyer, an Eligible Transportation Provider referenced in the Agreement. On January 6, 2015, a particularly cold day with a wind chill advisory of -14 degrees Fahrenheit, a
8

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Michigan Flyer staff member posted a note on the bus shelter in order to mitigate any potential harm or illness to passengers with disabilities caused by these frigid temperatures. (Id., ¶ 29) This mitigating note stated “Michigan Flyer and Airride Passengers Due to the frigid temperatures please do not wait here. Proceed back to our desk and waiting area through door 401 until 5-7 minutes prior to the departure time of your coach. Thank you!” (Exhibit E.3, The Mitigating Note) Within ten minutes of posting this mitigating note, Airport staff took photos and then told Michigan Flyer staff they were “violating again.”1 (Exhibit D, ¶ 30) Michigan Flyer staff removed the mitigating note out of fear of further retribution from the Defendant. (Id., ¶ 31) Elderly travelers and those with disabilities suffered extremely cold temperatures as a result.
The Plaintiffs made many concessions while negotiating the Settlement Agreement. They also required several changes of particular importance in exchange for entering into an Agreement that ultimately kept the public transportation pick-up and drop-off area at the far end of the GTC. The Plaintiffs did not ask for heating elements to be installed as decorative touches, but for the functional and effective purpose of keeping passengers with disabilities safe and warm while enduring far longer waiting times due to the remote new location for Public Transportation. Because the heating elements placed in the bus shelters do not actually heat the shelters, or provide safety to passengers such as Plaintiff Harris who suffers from a spinal cord injury and is unable to sense frostbite on his lower extremities, the Defendant is in
1 The statement “violating again” was in reference to a previous dispute over posting signage. While the Settlement Agreement specifically allowed Michigan Flyer to post a sign at the new public transportation provider desk, the Defendant notified Michigan Flyer they were not allowed to post the signage, stole several of the signs Michigan Flyer did post, and ultimately filed misdemeanor criminal charges. This issue was brought before this Honorable Court. The next day, the Defendant issued a temporary signage permit and told both this Court and the Plaintiffs they would “as [this Court] suggested, ‘stand down’ or temporarily suspend the prosecution” of Michigan Flyer for their alleged ordinance violation. As of February 1, 2015, the charges have not been dropped or otherwise suspended, and a hearing on the matter was scheduled for February 2, 2015.
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breach of this part of the Agreement. The Plaintiffs did not compromise their claim in exchange for broken heaters and to argue otherwise is absurd.
3. Failure to maintain a climate controlled waiting area in the GTC. The Settlement Agreement refers to the indoor waiting area of the GTC as a “climatecontrolled” environment. (Exhibit B, ¶ 1.H) Since October 17, 2014, temperatures in the indoor waiting area have been frequently recorded as low as between 31 degrees Fahrenheit and 48 degrees Fahrenheit. (Exhibit D, ¶ 33) Temperatures in these ranges are not climate controlled, and the Defendant’s callous responses to requests by the Plaintiffs to remedy the situation undermines a basic tenant this Agreement was based upon. (Id. ¶ 35) The Plaintiffs agreed to a series of changes that, when taken together, create a safe and accessible environment. One of these changes included installation of a Service Desk inside the indoor ‘climate controlled’ waiting area, which would allow passengers with disabilities to wait in a safe and climate controlled environment until their bus arrived for departure, at which time they could be assisted along the 600 foot stretch to the bus stop. (Exhibit B, ¶ 1.H) The frigid temperatures in the waiting area undermine this aspect of the Agreement as non-disabled passengers must now seek refuge in other warmer areas of the Airport, far away from the area of the Eligible Transportation Provider Service Desk. (Exhibit D, ¶ 34) Conversely, disabled passengers are faced with an insuperable choice – either endure frigid temperatures, or forego assistance from the Eligible Transportation Providers. The Defendant must maintain a climate controlled environment in the GTC. Failure to comply with this basic premise is a breach of the Settlement Agreement and undermines the central concession by the Defendant in exchange for the Plaintiffs willingness to forego pursuing an injunction that would have
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2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 16 of 21 Pg ID 357
required Public Transportation to be returned to an area that was both warm and safe prior to the September move.
4. Illegal reconfiguration of the GTC and use of Door 402. The Settlement Agreement required the Defendant to eliminate the third spot at the south end of the GTC. (Exhibit B, ¶ 1.A). Instead of eliminating the spot, the Defendant relocated it to an area striped as a no-parking and no-loading zone directly outside Door 402 of the indoor waiting area of the GTC. (Exhibit D, ¶¶ 39-40; Exhibit E.4, Bus Loading in Illegal Zone) This illegal use of the no-parking and no-loading zone creates excessive pedestrian congestion outside and through Door 402, thereby forcing the door to stay open and allowing cold air and toxic vehicle fumes into the indoor waiting area of the GTC. (Exhibit D, ¶ 41-44; Exhibit E.5-E.9, Pedestrian Congestion) The Settlement Agreement required Michigan Flyer, LLC and Indian Trails, Inc. to release the Defendant of all claims relating to its relocation of the public transportation pick-up and drop-off area. (Exhibit B, ¶ 4) Michigan Flyer and Indian Trails agreed to enter into this release only because the Defendant was adamant the south end of the GTC was the closest feasible location for public transportation, and therefore it was the shortest accessible route. The Plaintiffs were specifically told Door 402 was not an option for public transportation loading and unloading. However, just days after Michigan Flyer and Indian Trails signed the release, the Defendant began allowing buses that otherwise would have to load and unload at the new location, but not Michigan Flyer, to load at Door 402. (Exhibit D, ¶ 40, 45) Exhibit E.10-E.17 demonstrates the plethora of buses, but not Michigan Flyer, permitted to use this door.
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Both Michigan Flyer and the Plaintiffs were surprised by the Defendant’s illegal use of Door 402 as it was previously used as a loading zone, but the Defendant itself had deemed it unfit for use. (Exhibit D, ¶¶ 37-39) In 2010, former Airport Deputy CEO Jack Vogel forced Michigan Flyer and all other bus carriers out of this location, stating that loading in that space forces the door to remain open for prolonged periods of time, which allows cold air and excessive vehicle fumes into the GTC waiting area, and the increased pedestrian congestion created a safety hazard. Id. The Airport’s illegal use of this no-parking zone, at the expense of the safety of the Plaintiffs and others similarly situated, constitutes a change to the “configuration” of the GTC sufficient to permit the Plaintiffs to return to Court under the express terms of said agreement. (Exhibit B, ¶ 6)
The Plaintiffs request this Honorable Court enjoin the use of Door 402 because it is an illegal loading and unloading zone, and its use creates a frigid and toxic environment in the indoor waiting area of the GTC. In the alternative, to the extent the Defendant is willing to force people to endure frigid temperatures inside the GTC and allow continued use of Door 402, then the Plaintiffs request that all public transportation providers have equal access to that area as it is now the shortest accessible route, as contemplated by the Settlement Agreement.
D. Specific performance is the appropriate remedy. A settlement agreement is essentially a contract, and state-law contract principles govern a federal court’s enforcement of a settlement agreement. Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992). Specific performance is an appropriate remedy for breach of contract where a damages remedy is inadequate or impracticable. See Ruegsegger v. Bangor Twp. Relief Drain, 127 Mich. App. 28, 31 (1983).
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In this case, monetary compensation would not accomplish substantial justice. The
Plaintiffs are not seeking, nor have they ever sought, an award of damages. They have always
sought safe and accessible access for people with disabilities traveling to and from the Airport.
The Settlement Agreement, if fully complied with, is effective in achieving this goal. The
Plaintiffs made an immense concession in dropping any further litigation and keeping public
transportation at the far end of the GTC. In return, they asked for several changes that, taken
as a whole, would create a safe and accessible environment at the Airport. Because the
Defendant has failed to comply with several of the terms, or has sought to avoid substantial
compliance, the safety of the disabled community is now compromised. Therefore, in this
case, specific performance is the appropriate remedy, and the Plaintiffs respectfully request this
Honorable Court order the following relief:
1) Specific performance of paragraph 1.F of the Settlement agreement (Exhibit B, Paragraph 1.F), modification of the non-conforming slope in the Pedestrian Route between Door 402 and Door 401 as you walk towards the area designated for Public Transportation.
2) Specific performance of paragraph 1.D of the Settlement Agreement (Exhibit B, Paragraph 1.D), installation of heating elements that actually heat the shelters to a temperature sufficient to permit a person with a disability to wait safely in the shelter for Prospect assistance.
3) Specific performance of paragraph 1.H of the Settlement Agreement (Exhibit B, Paragraph 1.H), requiring that the waiting area inside the GTC be “climate controlled.”
4) Specific performance of paragraph 1.H of the Settlement Agreement (Id.), prohibiting the Defendant from utilizing the no-parking area outside of Door 402 as a de facto third parking space, rather than eliminating the third spot as the Agreement required, and consequently filling the GTC lobby with noxious fumes and cold air.
II. THE COURT SHOULD AWARD ATTORNEY’S FEES
The Plaintiffs respectfully request this Honorable Court award attorney’s fees for
having to bring this motion. The Americans with Disabilities Act and Section 504 of the
Rehabilitation Act provide for awards of attorney’s fees, stating that in any action under these
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Acts, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee. 42 U.S.C. § 12205; 29 § U.S.C. 794a(b). Because this case is brought under 42 U.S.C. § 12101 and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), attorney’s fees should be awarded because Plaintiffs will be prevailing parties as a result of this Court’s order of specific performance. See Doe v. Hogan, 421 F. Supp. 2d 1051, 1057 (S.D. Ohio 2006). Additionally, “a district court may invoke its inherent powers to impose attorney fees upon a party that acts in bad faith, vexatiously, wantonly, or for oppressive reasons during litigation.” Tocci v. Antioch Univ., 967 F. Supp. 2d 1176, 1180 (S.D. Ohio 2013 ) (citing Alyeska Pipeline, 421 U.S. 240, 258-259 (1975)) (internal quotations omitted).
Here, the Plaintiffs brought their original Complaint to end numerous violations of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act caused by the relocation of the pick-up and drop-off area for public transportation from the accessible International Arrivals level of the McNamara Terminal to the inaccessible location in the Ground Transportation Center. Plaintiffs did not seek damages or attorney’s fees in their original Complaint, only changes that would keep the disabled and elderly safe. In exchange for dropping their claims, thereby allowing public transportation to remain in the GTC, plaintiffs only requested that changes be made to that area, thereby alleviating the safety concerns caused by the Defendant’s actions.
The Defendant has failed to live up to the terms of that Agreement. Despite numerous pleas from the Plaintiffs to comply, thereby avoiding additional costs in bringing this motion, the Defendant has chosen to hold steadfast in its noncompliance. Astoundingly, the Defendant has proceeded with criminal charges against Michigan Flyer, a party to the release required by this Agreement, for actions specifically authorized by the Settlement. Left with no other
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options, the Plaintiffs are now again before the Court requesting its intervention, and this time

requesting an award of the costs and fees to bring this motion.

CONCLUSION

For all these reasons, the Plaintiffs pray that this Honorable Court grant the following

relief:

1. Enforcement of the Settlement Agreement by an order for specific performance.

2. Attorney’s fees for having to bring this motion.

3. Such further relief as this Honorable Court deems just and proper.

Respectfully submitted,
NYMAN TURKISH PC
/s/ Jason M. Turkish By: Jason M. Turkish, Michigan Bar #P76310 20700 Civic Center Drive, Suite 115 Southfield, Michigan 48076 Phone: (248) 284-2480 Fax: (248) 262-5024 Jason.Turkish@NymanTurkish.com

By: Melissa M. Nyman, California Bar #293207 5800 Stanford Ranch Road, Suite 720 Rocklin, California 95765 Phone: (916) 218-4340 Fax: (916) 218-4341 Melissa.Nyman@NymanTurkish.com

Dated: February 3, 2015

Attorneys for Plaintiffs

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2:14-cv-13630-DML-RSW Doc # 25 Filed 02/03/15 Pg 21 of 21 Pg ID 362 Certificate of Service
I certify that on February 3, 2015, I electronically filed the foregoing paper with the Clerk of the Court using the ECF system which will send notification of such filing to all counsel of record.
/s/ Jason M. Turkish By: Jason M. Turkish (P76310)
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 2:14-cv-13630-DML-RSW Doc # 59 Filed 07/27/15 Pg 1 of 18 Pg ID 991

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS and KARLA HUDSON,

Plaintiffs, v.

Case Number 14-13630 Honorable David M. Lawson

WAYNE COUNTY AIRPORT AUTHORITY,

Defendant. _____________________________/

OPINION AND ORDER DENYING MOTION TO ENFORCE SETTLEMENT AGREEMENT

This matter is back before the Court on the plaintiffs’ motion to enforce the terms of a

settlement agreement that the parties entered into last fall, in order to effectuate a compromise of

the plaintiffs’ claims brought under the Americans With Disabilities Act. The case focused on the

facilities of the Ground Transportation Center (GTC) at the Detroit Metropolitan Airport, and the

accessibility of the airport terminal via those facilities to persons with disabilities who arrive at the

airport by public transportation. The parties entered into a written settlement agreement, which, the

plaintiffs allege, has not been performed fully by the defendant Airport Authority. The Court

scheduled an evidentiary hearing on the present dispute, but also offered the parties the option to

submit declarations, affidavits, and deposition transcripts in lieu of live testimony. The parties chose

the latter option and the Court heard oral argument from counsel on April 28, 2015. The Court has

reviewed the twenty declarations and affidavits submitted, as well as the parties’ briefs. Although

the plaintiffs have identified conditions that present difficulty to users of the GTC — particularly

disabled users — they have not established that the defendant has violated the terms of the

settlement agreement. Therefore, the Court will deny the motion.

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I. According to its strategic plan, the mission of the Wayne County Airport Authority is: “To operate safe, secure and dynamic air transportation facilities for our customers, creating economic vitality by providing global travel, cargo and business opportunities.” The plaintiffs in this case are two persons with disabilities who have traveled through the Detroit Metropolitan Airport, arriving there by bus. They filed a complaint alleging that ground access by persons with disabilities is not “safe [and] secure.” They filed their complaint on September 9, 2014, stating one count for violation of Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12132, and one count for violating Title V of the ADA, 42 U.S.C. § 12203(b). The plaintiffs sought to enjoin the defendant Airport Authority from relocating the pick-up and drop-off point for public transportation vehicles from a location just outside the international area of the airport’s McNamara Terminal to a location outside and approximately 600 feet away from the indoor waiting area of the McNamara GTC. Before the Airport Authority implemented the change in its procedure, busses that transported disabled travelers dropped off and picked up passengers near the international terminal door, which accessed the terminal proper. The change moved the bus pick-up and drop-off point to an area across a roadway from the terminal. The roadway is traversed by a pedestrian bridge, but the access point for the bridge is inside the GTC’s enclosed lobby located 600 feet from the bus drop-off point. The plaintiffs’ motion for a temporary restraining order was denied, but the Court promptly scheduled the plaintiffs’ motion for a preliminary injunction for an evidentiary hearing on October 17, 2014. The day before the hearing, the parties reached a settlement. On the date the motion was to be heard, they placed the essential terms of their compromise on the record. They later entered
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into a written settlement agreement. The agreement was conditioned on execution of a parallel settlement and release agreement between the Airport Authority and two public transportation providers that would be affected by the move, which were Michigan Flyer and Indian Trails. Those entities executed the required release on November 4, 2014.
The original objective of the lawsuit was to compel the Airport Authority to reverse its decision to move the public transportation pick-up and drop-off point away from the international terminal. The settlement left the new location intact, but called for modifications apparently intended to cushion the impact of the change on persons with disabilities. Plaintiff Karla Hudson explained that her objective in entering into the settlement was to “create an environment that was safe for persons with disabilities and would offer similar protections from the harsh winter elements as existed at International Arrivals, albeit with a new and much longer walk.”
Under the settlement agreement, the Airport Authority agreed to make a number of changes to the GTC area of the airport to improve accessibility and comfort for disabled passengers arriving or departing by public transportation. It appears undisputed that the airport completed most of the changes required by the agreement by the agreed deadlines. However, the plaintiffs maintain that the Airport Authority has failed to perform certain specific terms of the agreement, and that it made a critical, post-settlement change to operations at the GTC, which had the effect of substantially nullifying the benefit of other concessions made under the agreement.
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A. Settlement Agreement
As to the remaining live points of disagreement between the parties, the settlement
agreement states that the Airport Authority agreed to do each of the following:
A. By November 17, 2014 the Defendant will cease using, and will remove from the pavement, the parking space one lane east of the New Spots [designated as pick-up and drop-off spots for use by public transportation at the GTC] so that the active loading and unloading of passengers occurs in the New Spots that are parallel and adjacent to the pedestrian path of travel only. . . .
D. By December 15, 2014 the Defendant shall install heating elements within the three bus shelters most proximate to the New Spots such that a heating element is over the area of the shelters that do not have a bench that accommodates persons using wheelchairs.
H. To allow disabled and non-disabled passengers to remain in the climate-controlled indoor waiting area of the GTC for as long as possible, the Defendant shall provide room for a customer service and information desk for Eligible Transportation Providers [such as Michigan Flyer], if those [providers] so choose to utilize such desk.
Settlement Agreement ¶¶ 1.A, 1.D, 1.H. Paragraph 1.H required the Airport Authority to make a
number of other concessions to use of the proposed customer service desk by transportation
providers, such as providing electrical power and data connections, and granting permits for the
providers to install monitors to display route schedules. Those other contemplated arrangements are
not at issue here.
The agreement provided that the parties released each other from all claims, known or
unknown, relating to the pending litigation at the time of the agreement. However, it also reserved
certain rights of both parties regarding future changes to the conditions at the airport:
Nothing in this Settlement Agreement and Mutual Release limits the Defendant in any way from renovating any part of the Airport or changing the manner in which any part of the Airport operates in the future provided such changes are compliant with State and Federal law. However, the release of liability set forth in this [agreement] is limited to the present circumstances described [herein], and [] if the portions of the GTC subject to this Settlement Agreement and Mutual Release are materially altered in the future, the Plaintiffs are in no way waiving their rights to
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bring forth a subsequent action to compel enforcement of passenger accessibility mandated by state and federal law. Agreement ¶ 3.
B. Claimed Breaches The plaintiffs contend that the Airport Authority (1) failed to modify the “non-conforming slope” in a pedestrian walkway between “Door 401” and “Door 402” of the GTC; (2) failed to install or maintain heaters capable of effectively heating the outdoor bus shelters at the GTC; (3) failed to maintain the conditions of the “climate controlled waiting area” in the indoor part of the GTC, the availability of which was contemplated as a premise of the plaintiffs’ agreement to compromise their claims; and (4) in an unanticipated change to GTC operations, began allowing certain buses operated by private carriers (but not public transportation vehicles operated by Michigan Flyer and Indian Trails), to load and unload directly outside Door 402, in an area that was (and evidently still is) striped and marked as a “no parking” and “no loading” zone. The plaintiffs seek an order compelling specific performance of the settlement agreement in the following particulars: Specific performance of paragraph 1.F of the Settlement Agreement, modification of the non-conforming slope in the Pedestrian route between Door 402 and Door 401 as you walk towards the area designated for public transportation. Specific performance of paragraph 1.D of the Settlement Agreement, installation of heating elements that actually heat the shelters to a temperature sufficient to permit a person with a disability to wait safely in the shelter for Prospect assistance. Specific performance of paragraph 1.H of the Settlement Agreement, requiring that the waiting area inside the GTC be “climate controlled.” Specific performance of paragraph 1.H of the Settlement Agreement, prohibiting the Defendant from utilizing the no-parking area outside of Door 402 as a de facto third parking space, rather than eliminating the third spot as the Agreement required, and consequently filling the GTC lobby with noxious fumes and cold air.
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Plf.’s Mot. [dkt. #25] at 13. They also ask the Court to award them the attorney fees incurred in filing their motion.
One item appears to be no longer in dispute. Although the Airport Authority either resisted or was tardy in performing the contemplated modifications to the “non-conforming slope” on the walkway between Door 401 and Door 402, the plaintiffs’ compliance expert Gary Talbot stated in his April 7, 2015 declaration that the modifications called for by the settlement agreement were performed, albeit after the December 31, 2014 deadline under the agreement, and not until after the plaintiffs filed their motion to enforce the settlement agreement. Mr. Talbot opined that “the modifications to the non-conforming slope made [in early April 2015] constitute the actual modification of this hazard that was required by December 31, 2014.” Because the only substantive remedy sought by the plaintiffs is specific performance of the agreement, and it appears undisputed that this term of the agreement now has been fully performed, the Court will dismiss that part of the motion as moot. The other items, however, require attention.
II. As the Sixth Circuit has explained, a district court possesses the inherent power to enforce the terms of a settlement agreement entered into by the parties to litigation: It is well established that courts retain the inherent power to enforce agreements entered into in settlement of litigation pending before them. A federal court possesses this power even if that agreement has not been reduced to writing. Before enforcing settlement, the district court must conclude that agreement has been reached on all material terms. The court must enforce the settlement as agreed to by the parties and is not permitted to alter the terms of the agreement. Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988) (quotations and citations omitted). “Settlement agreements are a type of contract and are therefore governed by contract law.” Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992). “‘The construction and
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enforcement of settlement agreements are governed by principles of the state’s general contracts law.’” Ibid. (quoting Wong v. Bailey, 752 F.2d 619, 621 (11th Cir. 1985)).
Under Michigan law, when construing a contract or one of its provisions, the intentions of the parties govern. First Nat. Bank of Ypsilanti v. Redford Chevrolet Co., 270 Mich. 116, 121, 258 N.W. 221, 223 (1935). The first objective is to “honor the intent of the parties,” Rasheed v. Chrysler Corp., 445 Mich. 109, 127 n.28, 517 N.W.2d 19, 29 n.28 (1994), and the prime source of that intent is the plain language of the agreement, Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 61, 664 N.W.2d 776, 787 (2003) (“Well-settled principles of contract interpretation require one to first look to a contract’s plain language.”). If the language is “clear and unambiguous,” the Court need look no further. Haywood v. Fowler, 190 Mich. App. 253, 258, 475 N.W.2d 458, 461 (1991).
“‘Where the language of the writing is not ambiguous the construction is a question of law for the court on a consideration of the entire instrument.’” In re Landwehr’s Estate, 286 Mich. 698, 702, 282 N.W. 873, 874 (1938) (quoting Griffin Mfg. Co. v. Mitshkun, 233 Mich. 640, 642, 207 N.W. 814, 814 (1926)). A contract is unambiguous if it “fairly admits of but one interpretation.” Allstate Ins. Co. v. Goldwater, 163 Mich. App. 646, 648-49, 415 N.W.2d 2, 4 (1987). “Where the language of a contract is clear and unambiguous, the intent of the parties will be ascertained according to its plain sense and meaning.” Haywood, 190 Mich. App. at 258, 475 N.W.2d at 461; see also Dillon v. DeNooyer Chevrolet Geo, 217 Mich. App. 163, 166, 550 N.W.2d 846, 848 (1996) (“Contractual language is construed according to its plain and ordinary meaning, and technical or constrained constructions are to be avoided.”). The Court should “give effect to every word, phrase, and clause in a contract and avoid an interpretation that would render any part of the contract
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surplusage or nugatory.” Klapp v. United Ins. Grp. Agency, Inc. 468 Mich. 459, 468, 663 N.W.2d 447, 453 (2003).
If “the contract language is unclear or susceptible to multiple meanings, interpretation becomes a question of fact.” Port Huron Educ. Ass’n MEA/NEA v. Port Huron Area Sch. Dist., 452 Mich. 309, 323, 550 N.W.2d 228, 237 (1996). Where the terms of a contract are ambiguous, the Court must look to extrinsic facts along with the terms of the agreement to determine the parties’ intentions. Klapp, 468 Mich. at 663 N.W.2d at 454. However, disagreement among the parties as to the meaning of a contract term does not necessarily create ambiguity as a matter of law, Steinmetz Elec. Contractors Ass’n v. Local Union No. 58 Int'l Bhd. of Elec. Workers, AFL-CIO, 517 F. Supp. 428, 432 (E.D. Mich. 1981), and courts should not read an ambiguity into an agreement where none clearly exists, UAW-GM Human Res. Center v. KSL Recreation Corp., 228 Mich. App. 486, 491, 579 N.W.2d 411, 414 (1998) (citing Smith v. Physicians Health Plan, Inc., 444 Mich. 743, 759, 514 N.W.2d 150, 163 (1994)).
The remedy sought by the plaintiffs through the present motion is specific performance of the settlement agreement. “Specific performance is an equitable remedy which may not be claimed as a matter of right.” Edidin v. Detroit Econ. Growth Corp., 134 Mich. App. 655, 660, 352 N.W.2d 288, 291 (1984). “Specific performance will not be decreed where enforcement of the decree would require continuous judicial supervision, or where there is an adequate remedy at law.” Ibid. “Furthermore, the material terms of the agreement must be sufficiently certain so as to ensure that the court can ‘proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed.’” Id. at 660-61, 352 N.W.2d at 291 (quoting Czeizler v. Radke, 309 Mich. 349, 358, 15 N.W.2d 665, 669 (1944)). However, “[a] court of equity in granting specific
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performance may grant in its decree for specific performance such additional or incidental relief as is necessary to adequately sort out the equities of the parties.” Brotman v. Roelofs, 70 Mich. App. 719, 732, 246 N.W.2d 368, 374 (1976) (citing Van Camp v. Van Camp, 291 Mich. 688, 289 N.W. 297 (1939); Klais v. Danowski, 373 Mich. 281, 129 N.W.2d 423 (1964)).
A. Bus Shelter Heaters The plaintiffs argue that the intent of the agreement has been frustrated because the bus shelter heaters are demonstrably inadequate to provide sufficient heat in the shelters during severe cold conditions, when it are most needed. The parties do not dispute that heaters were added to the outdoor bus shelters over the wheelchair accommodating areas (the areas where benches previously had been removed). However, the plaintiffs’ expert, Gary Talbot, reported that the air temperature in these occupied shelters was observed to be as low as 28 degrees during the winter, even with the heater on. The defendant conducted its own temperature measurements in the bus shelters, but instead of measuring the air temperature, as plaintiffs’ expert did, the defendant’s employees measured the surface temperature of a person’s jacket, who was sitting in a wheelchair under the activated heating element. By that method, the defendant observed a clothing surface temperature of between 38 and 48 degrees in the three shelters, when the measured temperature of the unheated concrete floor of the shelters ranged between 23 and 28 degrees. Mr. Talbot described this procedure as “junk science” and explained that it cannot reliably indicate the temperature in the bus shelters, because there would be no way to distinguish between heating of the clothing due to body heat of the person wearing it as compared to the heat from the overhead mounted heating element. Defense witness Tom McCarthy asserts that the procedure the defendant used was appropriate and valid, because the type of heaters used are quartz-element
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“infrared” heaters, that “heat[] solid objects, not the air.” McCarthy explained that the heaters specifically are designed not to heat air (which absorbs very little of the infrared radiation), but to deliver heat directly to people and objects near them, so the heaters would be expected to work fully well even where the air temperature remains low.
Even if radiant heaters were up to the task, Oded Norkin, vice president of Michigan Flyer, LLC, stated that “as of February 2, 2015, one of the shelters had only one working heater.” Diane Moore, an employee of Prospect Services (a service provider that assists disabled passengers at the airport, under a contract with Delta Airlines), also reported that on February 16, 2015 “[s]everal Michigan Flyer customers complained to me that the heating element in one of the bus shelters would not turn on.” The defendant contends that it never received any notice that any of the heaters were broken.
Jason Balk — a customer service agent of Michigan Flyer who works at the GTC counter location — stated that “[o]n multiple occasions, [he] saw passengers with disabilities forced to wait in [the] cold temperatures for Prospect Services for up to thirty minutes.” Defense witness Dale Walker responds that “[a]lthough the response time can vary depending on the wait time for elevators, it would typically take a Prospect employee approximately five minutes to travel with a wheelchair from [their usual location at] a booth in the terminal to the public bus stops in the GTC.”
The complaints registered by the plaintiffs appear to address two issues: provision of the promised equipment, and maintenance. The settlement agreement, by its terms, deals only with the former. The plaintiffs have not established that the defendant has failed to perform any specific material term of the agreement regarding installation of the bus shelter heaters. It is undisputed that the defendant has installed the second heating elements that the agreement specified, which extend
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over the non-benched area of the shelters intended for use by persons in wheelchairs. The plaintiffs contend that the heaters installed are ineffective, but it appears undisputed that they are the same type that already were present over the benched portions of the same shelters. Moreover, the agreement does not set forth any specific, discernible terms regarding “effectiveness” of the heaters, such as any minimum temperature that must be maintained within the shelters. And the expert evidence is conflicting as to how well the heaters actually work. Based on the product literature furnished by the defendant, it appears that radiant heaters are commonly used in open-air applications, where the objective is to warm individuals by means of heating objects instead of the ambient air. It is plausible that infrared heaters of this type could provide adequate perceived and felt heat for a person standing under them, notwithstanding a much lower temperature of the surrounding air. It is also plausible that a very low air temperature still might expose passengers (particularly those in wheelchairs, with diminished sensation in their feet) to serious hazards.
Nevertheless, there is no intelligible standard set forth in the agreement describing any temperature that must be achieved in the shelters. Therefore, beyond requiring the installation of the heaters, the agreement is not “sufficiently certain so as to ensure that the court can ‘proceed intelligently and practically in carrying into execution the very things agreed on and standing to be performed.’” Edidin, 134 Mich. App. at 660-61, 352 N.W.2d at 291. Moreover, the fact that the agreement only required additional heating elements to be installed to cover the full length of the shelters, and that it did not specify anything about their type or capabilities, strongly suggests that the parties intended installation of additional units of the same type already installed to constitute acceptable performance.
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2:14-cv-13630-DML-RSW Doc # 59 Filed 07/27/15 Pg 12 of 18 Pg ID 1002
The plaintiffs contend that the heater in at least one shelter was broken on two or three occasions, but the defendant insists that it never was given notice of those failures. Even if the heaters were broken on a couple of occasions during the cold weather, that does not appear sufficient to support a finding that the defendant has not substantially performed its duty to install the heaters. And because the plaintiffs have not identified any heaters that currently are known to be inoperative, there is no performance that the Court could order.
Of course, the problem could be alleviated if the drop-off spots for the busses transporting disabled passengers were located closer to the entrance of the GTC enclosed space. It appears that the Airport Authority chose instead to direct those busses to drop-off spots that are the farthest point away from those doors. That choice does not seem to be consistent with an objective to operate a “safe, secure and dynamic air transportation facilit[y] for [its] customers.” But the placement of the so-called “new spots” appears to be the product of the parties’ negotiations, which is beyond the considerations of this motion. Perhaps rethinking the problem and revisiting other solutions might be in order.
B. Loading and Unloading Outside Door 402; Temperature Issues The plaintiffs assert that, shortly after the parties concluded their settlement, the Airport Authority made an operational change at the GTC by starting to allow certain buses operated by private companies, but not public transportation providers such as Michigan Flyer, to load and unload passengers directly outside Door 402, which is a sliding door between the indoor GTC waiting area and the outside sidewalk. At the time the parties entered into the settlement, this area was striped as a no-parking and no-loading zone, and the plaintiffs contend that under the operational rules then in effect, no buses were allowed to load or unload directly outside Door 402.
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2:14-cv-13630-DML-RSW Doc # 59 Filed 07/27/15 Pg 13 of 18 Pg ID 1003
Although the area still is striped with that designation, defense witness Matthew McGowan asserts
that the Authority “has always used the curb outside Door 402 as an overflow spot for charter buses,
over-height vehicles, and smaller shuttle buses.” However, Oded Norkin explained that:
From 2006-2010, this space was not striped and was designated for Michigan Flyer and other transportation companies as a pick-up/drop-off zone.
In 2010, Former Airport Deputy CEO Jack Vogel forced Michigan Flyer and all other bus carriers out of this location, stating that loading in that space forces the door to remain open for prolonged periods of time, which allows cold air and vehicle fumes into the GTC waiting area, and use of Door 402 creates excessive pedestrian congestion, causing a safety hazard as the line of passengers waiting to board the buses blocks the exit.
In 2010 the area outside Door 402 was striped as a no-parking and no-loading zone, and it remains striped that way today.
Immediately following the execution of the Settlement Agreement on October 17, 2014, instead of eliminating the third drop-off space for Public Transportation pursuant to the Agreement, the Airport began allowing some buses that would otherwise be required to park at the south end of the GTC, but not Michigan Flyer, to use the no-parking and no-loading space.
Norkin decl. ¶¶ 37-40.
Jason Balk, a Michigan Flyer counter service employee, stated that during January and
February, “because of the frigid temperatures I experienced while working in the indoor waiting area
of the GTC, I had to wear three to four layers of clothing to work, including thermal underwear,
sweat pants, several shirts, a jacket, and knit caps.” Balk stated that cold temperatures prevailed in
the GTC not only due to the use of Door 402, which caused it to remain open much of the time, but
also because the revolving door (Door 401), “[broke] down and remain[ed] stuck in the open
position on several occasions since December 2014, which floods the indoor area of the GTC with
cold air.” Balk kept a thermometer on the counter where he worked and recorded temperatures at
various hours on more than 30 days between January 7 and March 5, 2015. The temperatures ranged
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2:14-cv-13630-DML-RSW Doc # 59 Filed 07/27/15 Pg 14 of 18 Pg ID 1004
from a low of 28 degrees at noon on February 15, 2015 to a high of 68 to 70 degrees “all day” on January 19 and 20, 2015. The observations included extended periods where the indoor temperature was in the 40s or high 30s, such as on January 10, 2015 between noon and 9:00 p.m., February 15, 2015 between noon and 8:00 p.m., February 18, 2015 between 3:00 and 8:00 p.m., and during similar periods on February 20th, 23rd, and 24th.
The defendant responds that, notwithstanding the nominal temperatures observed in the GTC, the area is served by numerous heating devices, and according to Tom McCarthy, the temperatures recorded inside were “well above the outside temperatures, generally by forty degrees or more.”
Finally, several of the plaintiffs’ witnesses contend that the defendant “concealed” an engineering report from them that concluded that substantial upgrades to the heating in the GTC were needed in order to maintain “climate controlled” conditions effectively in that part of the airport. They represent that had they known of these problems they would not have entered into the settlement agreement. The defendant responds that it did not “conceal” either the need for, or its existing plans to make, upgrades to the configuration and heating systems of the GTC, in order to address the challenges of maintaining comfort in the space during the extreme cold events that have occurred during recent years. Defense witness Michael J. Rudzinski asserts that planned upgrades to the GTC for this purpose are in the process of receiving funding approval, and that the Fiscal Year 2015 budget for the airport, which was discussed at an open public meeting on August 21, 2014 and was approved on September 18, 2014, “expressly lists this improvement project.” The budget, which is available on the defendant’s website, describes the “Ground Transportation Center Heating System Reconfiguration” as follows:
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2:14-cv-13630-DML-RSW Doc # 59 Filed 07/27/15 Pg 15 of 18 Pg ID 1005
Ground Transportation Centers, due to their function and level of use create challenges for maintaining sufficient heating during extreme cold events. Both customer comfort and facility utilities may be affected. The Authority, through this project, seeks to upgrade the heating system in the Ground Transportation Center at both terminals. Rudzinski decl., Ex. A, Fiscal Year 2015 Budget at 7. The plaintiffs have not established that the use of the area outside Door 402 for loading and unloading constitutes a failure of performance of the defendant’s obligation to “cease using, and [] remove from the pavement, the parking space one lane east of the New Spots so that the active loading and unloading of passengers occurs in the New Spots that are parallel and adjacent to the pedestrian path of travel only.” The plain terms of that provision do not indicate that the removal of the third parking space had anything to do with maintaining particular conditions of comfort in any waiting area. Instead, this provision appears to have been addressed to the concern that use of the third space could endanger disabled passengers by forcing them to cross a lane of traffic and pass between parked buses in order to reach the curb. The plaintiffs have not shown any way in which the defendant’s performance failed to achieve that objective. It may be true, as the plaintiffs assert, that the Door 402 loading zone was not in use (or at least not in regular use) before the agreement. But even if that is the case, the agreement does not contain any provisions addressing the use or non-use of that area, and it expressly reserves to the defendant the right to change the use of any part of the airport. The plaintiffs point out that they reserved the right to bring future actions to compel compliance with state or federal law if the use of the GTC was materially altered. But they have not explained how, if at all, the use of Door 402 violates any state or federal law. And they have not established that the area outside Door 402 was
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a “portion[] of the GTC subject to this Settlement Agreement and Mutual Release,” that was “materially altered” by the change in usage.
The use of the area for loading and unloading certainly seems to have had a significant effect on the conditions in the GTC. But nothing about that use establishes that the defendant failed to perform the specific, agreed upon duty, which was simply to “remove” and “cease using” the third parking space in the area around the spots designated for public transportation pick-up and drop-off. And the enforcement of the plaintiffs’ desired relief — ordering the defendant to stop using the area outside Door 402 — would require the Court to invent and apply a term that was not expressed in the original agreement, regarding usage of an area that was not mentioned in its provisions.
The plaintiffs also have not shown that the defendant has failed to perform any specific duty imposed under paragraph 1.H of the agreement, which only explicitly requires the defendant to provide a “customer service desk” in the GTC indoor waiting area. As to the duty to provide “provide room for a customer service and information desk for Eligible Transportation Providers [such as Michigan Flyer], if those [providers] so choose to utilize such desk,” it appears undisputed that the defendant fully has performed (although the parties also appear to have a disagreement, which appears to be somewhat beyond the scope of the agreement, about allowed signage in the desk area). The plaintiffs contend that this change in operations at the GTC frustrates the intent of the agreement to provide a “climate controlled” area inside the GTC where disabled passengers can wait. However, as with the temperature conditions of the bus shelters, the agreement contains no intelligible standard to which the Court could order the defendant to conform in maintaining any particular conditions in the GTC area. Paragraph 1.H does not specify any tangible set of conditions that the defendant must maintain in the GTC, and it does not even explicitly require the defendant
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to keep the GTC in a “climate controlled” condition; although that certainly seems to have been a circumstance that the parties assumed would prevail in the area, as a premise of their entry into the agreement.
Nevertheless, it does seem a worthy question why, if the defendant now allows other buses to load and unload outside Door 402, it does not extend the same usage to Michigan Flyer, which evidently is the service most used by disabled passengers. As the plaintiffs point out, if loading and unloading outside Door 402 generally is permitted, then that location now constitutes the “shortest accessible route,” and it is a location that would allow disabled passengers to wait in the relatively more comfortable conditions of the inside GTC waiting area, while having immediate access to arriving buses, or being able to proceed immediately inside when dropped off. That result certainly would be consistent with the defendant’s mission. However, the defendant’s alternate choice does not contravene the settlement agreement reached in this case.
III. It appears that the defendant has considerably frustrated the plaintiffs, if not the specific terms of the agreement, by making the change to usage of the Door 402 area. It also appears to be an open question whether the heaters installed in the bus shelters are as effective as the parties assumed they would be when they made the agreement. However, the plaintiffs have not shown that the defendant has violated or failed to perform any specific term of the settlement agreement reached last fall in this case, or that there is any relevant intelligible standard set forth under the agreement to which the Court could order the defendant to conform.
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Accordingly, it is ORDERED that the plaintiffs’ motion to enforce settlement agreement [dkt. #25] is DENIED.

Dated: July 27, 2015

s/David M. Lawson DAVID M. LAWSON United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on July 27, 2015.
s/Susan Pinkowski SUSAN PINKOWSKI

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 2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 1 of 10 Pg ID 1250

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL HARRIS and KARLA HUDSON,

Plaintiffs, v.

Case Number 14-13630 Honorable David M. Lawson

WAYNE COUNTY AIRPORT AUTHORITY,

Defendant. _____________________________/

OPINION AND ORDER DENYING SUPPLEMENTAL MOTION TO ENFORCE SETTLEMENT AGREEMENT AND MOTION
TO ENTER AN ORDER OF DISMISSAL WITH PREJUDICE

The case is before the Court once again on motions dealing with the settlement agreement

the parties reached, in which defendant Wayne County Airport Authority agreed to make certain

changes to its Ground Transportation Center (GTC) at the Detroit Metropolitan Airport’s McNamara

Terminal to improve access to the facility by persons who suffer from disabilities. On July 27, 2015,

the Court filed an opinion and order denying the plaintiffs’ motion to enforce the settlement

agreement, addressing each of the items of contention identified by the parties in their motion

papers. After the filings were completed, the plaintiffs sought permission from the Court to address

an additional issue relating to a dispute that had arisen between the Airport Authority and non-party

Michigan Flyer, LLC regarding the display of signage by Michigan Flyer at a desk that was

referenced in the settlement agreement. That topic was mentioned at oral argument on the motion,

but the plaintiffs did not request any specific performance by the Airport Authority relating to the

signage or the Airport Authority’s enforcement proceedings, and they did not identify in any of their

motion papers or at oral argument what specific terms of the settlement agreement they contend

2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 2 of 10 Pg ID 1251
were violated by the Airport Authority’s actions with respect to the signage. The Court later entered an order allowing supplemental briefs on the new issue, which have been filed.
The named plaintiffs, two people who suffer from disabilities, contend that the Airport Authority has violated the settlement agreement by enforcing a signage ordinance against Michigan Flyer, and refusing to allow that company to install a “blade” type sign that could be seen more easily by potential customers navigating their way through the GTC. The Airport Authority, taking a hard line, contends that the settlement agreement did not absolve Michigan Flyer from the obligations of the signage permitting process, the settlement agreement does not entitle Michigan Flyer to a blade sign, and the Airport Authority has done all that is required of it by the settlement agreement (although certainly no more). The Airport Authority says that the Court not only should deny the plaintiffs’ motion to enforce the settlement agreement, but it should declare this case a dead letter by converting the previous dismissal order to a dismissal with prejudice, because all the terms of the settlement agreement have been fulfilled.
As relevant to the issues raised in the parties’ supplemental briefing, the settlement agreement that the parties entered into states:
The Eligible Transportation Providers [including Michigan Flyer] shall be permitted to have their name and logo displayed at their desk so passengers, or other persons assisting passengers, can locate representatives of [Michigan Flyer] in order to inform those representatives of the presence of a passenger with a disability needing assistance in the Ground Transportation Center. Plfs.’ Mot. to Enforce [dkt. #25], Ex. B, Settlement Agreement dated Oct. 31, 2014 ¶ 1.H (Pg ID 371). The agreement also provided that Michigan Flyer would be allowed to mount a display screen at the counter to show the scheduled arrival and departure times for its buses, but it stated that Michigan Flyer would have to apply for a permit approving the type, placement, and mounting of
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the monitor, to ensure compliance with the Airport Authority’s regulations. The agreement stated, however, that the Airport Authority would not “unreasonably withhold the necessary permit.” The agreement was silent on whether Michigan Flyer would have to apply for a sign permit.
The plaintiffs assert that, shortly after the October 2014 settlement was reached, when Michigan Flyer first started to use the new GTC counter, it displayed a rectangular foam-board sign bearing the Michigan Flyer and AirRide logos, by placing the sign on the desktop at the counter. Airport police responded by informing Michigan Flyer that it was displaying an unapproved sign, contrary to airport regulations. Airport police or other personnel subsequently removed the sign, and an identical replacement. On December 10, 2014, when the sign again was displayed, airport police issued a misdemeanor citation to Michigan Flyer for displaying the unapproved sign. State court proceedings on that ticket remain pending to this day, although the defendant agreed during the pendency of the plaintiff’s motion to enforce to “stand down” from issuing more tickets or proceeding with the misdemeanor prosecution. On December 17, 2014, Michigan Flyer complied with the Airport Authority’s demand that it submit an application for a permit to display a “temporary” sign, which Michigan Flyer indicated that it wanted to display until an application for permanent signage covering all transportation providers who might use the GTC counter could be processed and approved. The Airport Authority responded by issuing a permit for the temporary sign the next day. It subsequently extended the approval for the temporary sign, which presumably remains in use to date.
After the Airport Authority granted approval for a temporary sign, Michigan Flyer, in conjunction with other prospective users of the GTC counter, submitted an application for a permit to install a “blade sign” affixed to a pillar next to the GTC counter, which was to have a bus icon,
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 4 of 10 Pg ID 1253
the phrase “Public Transit,” and the names of the several transit providers that would be using the desk imprinted on its face. The Airport Authority denied the application for installation of a bladetype sign. At oral argument on the previous motion, it explained that decision by stating that the proposed type of sign is allowed in the airport only when people would be approaching a service location from a direction parallel or oblique to the front of a service desk, such that a sign placed on the desk could not be seen while walking toward the desk. The Airport Authority maintains that the blade-type sign is not appropriate or allowed where passengers normally would approach a service location head on, or perpendicular to the front of a service desk, as is the case with the bus companies’ service counter in the GTC. The plaintiffs maintain that the style and size of the proposed sign is consistent with that used in other parts of the airport, and in particular with signs displayed by vendors MetroCar and MetroCab at their service counters located in the GTC.
In the previous opinion, the Court noted that it “retain[s] the inherent power to enforce agreements entered into in settlement of litigation,” but it “must enforce the settlement as agreed to by the parties and is not permitted to alter the terms of the agreement.” Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th Cir. 1988) (quotation marks and citations omitted). Interpreting settlement agreements calls into service the law of contracts. Bamerilease Capital Corp. v. Nearburg, 958 F.2d 150, 152 (6th Cir. 1992). The first objective is to “honor the intent of the parties,” Rasheed v. Chrysler Corp., 445 Mich. 109, 127 n.28, 517 N.W.2d 19, 29 n.28 (1994), and the prime source of that intent is the plain language of the agreement, Wilkie v. Auto-Owners Ins. Co., 469 Mich. 41, 61, 664 N.W.2d 776, 787 (2003) (“Well-settled principles of contract interpretation require one to first look to a contract’s plain language.”).
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The main dispute that remains here focuses more on the transportation vendor Michigan Flyer, and not so much on the disabled plaintiffs themselves. The plaintiffs would not have had occasion to involve themselves in the permitting process, and, as explained below, they have not established that the defendant has failed to perform any specific material term of the agreement under which Michigan Flyer was to be “permitted to have [its] name and logo displayed at [the GTC] desk.”
The Airport Authority initially ticketed Michigan Flyer for displaying a sign without seeking a permit for the specific type, size, and content of sign to be used. But it is undisputed that the Airport Authority has allowed, and continues to allow, Michigan Flyer to display exactly the type of sign it originally sought to display at the desk. The issuance of the ticket could be viewed, under the narrowest possible reading of the agreement, as not violating the settlement agreement, because the Airport Authority was enforcing its general regulation requiring that a permit be sought and issued before any sign is constructed or displayed. See Wayne County Airport Ordnance § 16.1. That regulation is a public ordinance, and as such its requirements would have been within the contemplation of the parties when they entered into the settlement agreement.
But the agreement does not state that a permit application must be submitted, and neither does it state that no permit application would be required, as would normally be the case for any service provider wishing to display a sign on airport property. However, it is reasonable to read the settlement agreement as dispensing with that formality. The agreement specifically allows Michigan Flyer to display its name and logo on its desk and makes no mention of the need for a permit. Contrast the absence of such a reference with the specific language emphasizing the permit requirement for installing its display screen at the counter, and it is apprehensible how Michigan
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 6 of 10 Pg ID 1255
Flyer might understand that it could display its signage without obtaining further permission. The settlement agreement’s language certainly casts doubt on the Airport Authority’s good faith in persisting in its misdemeanor prosecution.
Notwithstanding any ambiguity in the signage provision, the defendant cannot show, under any reasonable construction of the agreement, that it has complied with the settlement agreement, and it likely will not be able to do so as long as the misdemeanor prosecution remains pending. The defendant simply cannot reasonably be regarded as having performed the provision of the agreement stating that it will permit the transportation providers to have their name and logo displayed where (1) it has not issued any permit for permanent display of a sign that reasonably could be viewed as meeting the goal of allowing disabled persons to locate the ground transportation desk within the GTC and the providers using it; and (2) it persists in pursuing a misdemeanor prosecution against one of the stationed providers for displaying a sign that subsequently was (and is) fully tolerated and allowed to be displayed at the desk.
Because the defendant cannot, under present circumstances, show that is has fully performed all of its obligations under the agreement, no dismissal with prejudice can be entered until the parties manage to come to some resolution of their differences that results in (1) issuance of a final (not temporary) permit for placement of a sign that reasonably satisfies the goals of the settlement agreement; and (2) termination of the misdemeanor prosecution relating to the display of the temporary sign.
Enjoining the prosecution, however, is another matter. “Under the Anti-Injunction Act, ‘[a] court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 7 of 10 Pg ID 1256
or effectuate its judgments.’” Commodities Exp. Co. v. Detroit Int’l Bridge Co., 695 F.3d 518, 527 (6th Cir. 2012) (quoting 28 U.S.C. § 2283). The state court prosecution poses no threat to this Court’s jurisdiction. The Court does not see how enjoining a state misdemeanor prosecution against an unrelated company, not a party to the original proceedings in this case, would in any way vindicate the rights of the plaintiffs that were asserted in the complaint, which were premised on the defendant’s alleged failure to provide an adequately accessible GTC in conformance with the Americans with Disabilities Act and its associated regulations.
The plaintiffs also argue that the Airport Authority violated the settlement agreement when it refused to grant a permit to install a blade sign. The problem with that argument is that the plain language of the agreement does not expressly permit the use of any “sign” at all; instead, it requires only that Michigan Flyer be “permitted to display [its] name and logo at [the] desk,” by some means that is visible to passengers, so that those seeking assistance for passengers with disabilities may locate Michigan Flyer’s agents. Of course, a sign is the most direct and practical way to satisfy this provision. But the plaintiffs read the settlement agreement as allowing Michigan Flyer to display any sign at all that it might wish to erect at the desk, without seeking any approval from the defendant, despite the fact that the agreement does not set forth any specifications as to the type, size, or location of any such sign. That reading is not consistent with any reasonable construction of the parties’ intent that can be derived from the plain language of the agreement, which only stated, without elaboration, that the users of the desk would be “permitted to have their name and logo displayed.”
As a practical matter, a blade sign may be the most effective way to achieve the dissemination of ground transportation information to disabled persons. The Airport Authority’s
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 8 of 10 Pg ID 1257
argument that the small temporary sign that it approved is adequate, or that a blade sign is inappropriate, even under its own criteria, does not withstand even casual inspection. The desk sign on the Michigan Flyer counter is mostly obscured from more than a few feet away when there is even a modest crowd in the GTC. And when one considers that disabled persons frequently are consigned to navigating the GTC in wheelchairs, with limited sight lines and reduced vantage points, restricting Michigan Flyer’s logo display to a sign on its desk puts disabled persons seeking information at a distinct disadvantage.
However, if the plaintiffs desired to negotiate for a particular style and placement of sign, then they could have done so before agreeing to compromise their claims. The agreement discloses no specific intent of the parties to allow any certain style or placement of sign, or even expressly to allow a “sign” at all, as noted earlier. There is therefore no specific term of the agreement that the defendants can be deemed to have violated by denying the installation of a blade sign. Nevertheless, it is clear that the Airport Authority must permit some display, and that display — most likely, a sign — must be of a size, type, and placement sufficient to serve the stated goals of the agreement. Those goals, once again, include allowing disabled passengers to find the transportation providers using the desk in the GTC.
The transportation providers submitted only one proposal for a sign, and that was rejected. That incomplete effort is not sufficient to establish that the Airport Authority wholly has failed to perform under this provision. However, if, after reasonable efforts to secure approval of one or more alternative proposals, the providers in question could show that the Airport Authority unreasonably has refused to endorse any mutually acceptable design, or that it has withheld approval without sufficient reason, and without making any viable counter proposals, then the plaintiffs may be able
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 9 of 10 Pg ID 1258
to prevail on a subsequent motion to enforce that term of the settlement agreement by asking the Court to compel the defendant to select an option from among the alternatives that have been offered.
The plaintiffs have not established a right to specific enforcement of the settlement yet, because they have not been able to point to any specific term that was violated. The plaintiffs are entitled to see a display that effectively informs those in need of the location of ground transportation services. They have proposed one option (a blade sign) that has been refused, but they have not shown that other possibilities — which might be acceptable to the Airport Authority — might not achieve the goals intended by the settlement agreement.
In the previous order of dismissal, the Court retained jurisdiction for a time that the parties estimated to be long enough for them fully to perform all of their obligations under the settlement agreement. However, due to the apparent inability of the parties to fashion a reasonable compromise regarding the performance of their respective duties under the signage provision, and due to the pendency of their timely filed motions regarding that dispute, performance of the agreement was not completed by the originally anticipated deadline. Nevertheless, the Court sees no reason why the parties cannot be expected to reach a mutually agreeable resolution of their differences and to secure full performance of the remaining duties under the signage provision of the settlement agreement, if allowed some additional time to make reasonable efforts to that end. The Court finds, therefore, that an extension of its jurisdiction to enforce the settlement agreement would aid in securing the just, speedy, and inexpensive resolution of this matter. See Fed. R. Civ. P. 1.
Accordingly, it is ORDERED that the plaintiff’s supplemental motion to enforce the settlement agreement [dkt. #25] is DENIED.
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2:14-cv-13630-DML-RSW Doc # 68 Filed 11/17/15 Pg 10 of 10 Pg ID 1259

It is further ORDERED that the defendant’s motion to convert the dismissal order to a

dismissal with prejudice [dkt. #64] is DENIED.

It is further ORDERED that the Court retains jurisdiction through December 17, 2015 to

enforce the terms of the parties’ settlement agreement. Any party may file an appropriate motion,

on or before that date, either to compel specific performance under the signage provision of the

agreement, or to dismiss the case with prejudice.

Dated: November 17, 2015

s/David M. Lawson DAVID M. LAWSON United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on November 17, 2015.
s/Susan Pinkowski SUSAN PINKOWSKI

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 Case: 2:14-cv-13630 As of: 10/23/2017 12:46 PM EDT 1 of 7
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:14−cv−13630−DML−RSW

CLOSED

Harris et al v. Wayne County Airport Authority Assigned to: District Judge David M. Lawson Referred to: Magistrate Judge R. Steven Whalen Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 09/19/2014 Date Terminated: 10/17/2014 Jury Demand: None Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

Michael Harris

represented by Melissa Nyman Nyman Turkish PC 5800 Stanford Ranch Road Suite 720 Rocklin, CA 95765 855−463−2149 Fax: 916−218−4341 Email: Melissa.Nyman@NymanTurkish.com ATTORNEY TO BE NOTICED

Ryan Thomas Kaiser Nyman Turkish, PC 20750 Civic Center Dr. Suite 290 Southfield, MI 48076 877−529−4773 Fax: 248−262−5024 Email: ryan.kaiser@nymanturkish.com ATTORNEY TO BE NOTICED

Jason M. Turkish Nyman Turkish PC 20750 Civic Center Drive Suite 290 Southfield, MI 48076 877−529−4773 Fax: 248−262−5024 Email: jason.turkish@nymanturkish.com ATTORNEY TO BE NOTICED

Plaintiff Karla Hudson

represented by Melissa Nyman (See above for address) ATTORNEY TO BE NOTICED

Ryan Thomas Kaiser (See above for address) ATTORNEY TO BE NOTICED

Jason M. Turkish (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Wayne County Airport Authority

represented by Gary K. August Zausmer, August & Caldwell, P.C.

Case: 2:14-cv-13630 As of: 10/23/2017 12:46 PM EDT 2 of 7
31700 Middlebelt Road Suite 150 Farmington Hills, MI 48334−2374 248−851−4111 Fax: 248−851−0100 Email: gaugust@zacfirm.com ATTORNEY TO BE NOTICED
Jamie J. Janisch Zausmer, Kaufman, August & Caldwell, P.C. 31700 Middlebelt Road Suite 150 Farmington Hills, MI 48334 248−851−4111 Fax: 248−851−0100 Email: jjanisch@zacfirm.com (Inactive) ATTORNEY TO BE NOTICED

Date Filed 09/19/2014
09/19/2014
09/19/2014 09/19/2014 09/19/2014 09/19/2014 09/19/2014
09/22/2014 09/24/2014 09/24/2014
09/29/2014

# Docket Text
1 COMPLAINT filed by All Plaintiffs against Wayne County Airport Authority. Plaintiff requests summons issued. Receipt No: 0645−4822053 − Fee: &#036 400. County of 1st Plaintiff: Wayne − County Where Action Arose: Wayne − County of 1st Defendant: Wayne. [Previously dismissed case: No] [Possible companion case(s): None] (Attachments: # 1 Exhibit A − Letter from Governor Snyder) (Turkish, Jason) (Entered: 09/19/2014)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (KKra) (Entered: 09/19/2014)
2 SUMMONS Issued for *Wayne County Airport Authority* (KKra) (Entered: 09/19/2014)
3 MOTION for Temporary Restraining Order and / or Preliminary Injunction by All Plaintiffs. (Turkish, Jason) (Entered: 09/19/2014)
4 NOTICE of Appearance by Gary K. August on behalf of Wayne County Airport Authority. (August, Gary) (Entered: 09/19/2014)
5 ORDER DENYING PLAINTIFFS' MOTION 3 . Signed by District Judge Mark A. Goldsmith. (JCur) (Entered: 09/19/2014)
Minute Entry for proceedings held before District Judge Mark A. Goldsmith: Motion Hearing held on 9/19/2014 re 3 MOTION for Temporary Restraining Order and / or Preliminary Injunction filed by Michael Harris, Karla Hudson. Disposition: DENIED. (Court Reporter David Yarbrough) (JCur) (Entered: 09/22/2014)
6 NOTICE TO APPEAR: Status Conference set for 9/24/2014 at 11:00 AM before District Judge David M. Lawson. (SPin) (Entered: 09/22/2014)
Minute Entry for proceedings held before District Judge David M. Lawson: Status Conference held on 9/24/2014 (SJa) (Entered: 09/24/2014)
7 ORDER Amending Order Denying Plaintiffs' Motion, Setting Briefing Schedule, and Setting Date for Hearing on Motion for Preliminary Injunction.(Plaintiffs' supplemental brief due by 9/29/2014, Defendant must file a response due by 10/13/2014, Witness list submitted to the Court by 10/15/2014 at 12:00 p.m., Evidentiary Hearing re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction set for 10/17/2014 at 2:30 p.m). Signed by District Judge David M. Lawson. (SJa) (Entered: 09/24/2014)
8 ATTORNEY APPEARANCE: Melissa Nyman appearing on behalf of All Plaintiffs (Nyman, Melissa) (Entered: 09/29/2014)

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09/29/2014 09/29/2014 09/29/2014 09/29/2014 09/30/2014 10/03/2014 10/08/2014 10/13/2014 10/13/2014
10/13/2014 10/14/2014 10/14/2014 10/14/2014 10/14/2014 10/15/2014 10/16/2014 10/17/2014 10/17/2014 10/27/2014

9 AMENDED COMPLAINT , Plaintiffs' First Amended Complaint filed by All Plaintiffs against Wayne County Airport Authority. NO NEW PARTIES ADDED. (Turkish, Jason) (Entered: 09/29/2014)
10 NOTICE by All Plaintiffs of the Filing of Expert Reporty by Gary Talbot (Turkish, Jason) (Entered: 09/29/2014)
11 NOTICE by All Plaintiffs of the Filing of Expert Report by Julie Unatin (Turkish, Jason) (Entered: 09/29/2014)
12 SUPPLEMENTAL BRIEF re 3 MOTION for Temporary Restraining Order and / or Preliminary Injunction filed by All Plaintiffs. (Turkish, Jason) (Entered: 09/29/2014)
13 NOTICE TO APPEAR: Case Management and Scheduling Conference set for 10/17/2014 at 2:30 PM before District Judge David M. Lawson, after motion hearing. See image for document deadline. (SPin) (Entered: 09/30/2014)
14 AMENDED 12 Supplemental Brief by All Plaintiffs with correction of typographical error(s) and no substantive changes (Turkish, Jason) (Entered: 10/03/2014)
Reset Time of Hearing: Evidentiary Hearing reset to 1:00 P.M. on 10/17/2014 at 1:00 PM before District Judge David M. Lawson instead of 2:30 P.M. (SPin) (Entered: 10/08/2014)
15 ANSWER to Amended Complaint with Affirmative Defenses and Certificate of Service by Wayne County Airport Authority. (August, Gary) (Entered: 10/13/2014)
16 RESPONSE to 3 MOTION for Temporary Restraining Order and / or Preliminary Injunction filed by Wayne County Airport Authority. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−Kemper Affidavit, # 3 Exhibit 2−Hunt Affidavit, # 4 Exhibit 3−Michigan Flyer Press Release, # 5 Exhibit 4−McGowan Affidavit, # 6 Exhibit 5−Walker Affidavit, # 7 Exhibit 6−Adelson Expert Report, # 8 Exhibit 7−Michigan Flyer Newsletter, # 9 Exhibit 8−Plawecki Affidavit, # 10 Exhibit 9−ACRP Report) (August, Gary) (Entered: 10/13/2014)
17 CERTIFICATE OF SERVICE by Wayne County Airport Authority Bruce Adelson Expert Report (August, Gary) (Entered: 10/13/2014)
Set Deadlines/Hearings: TIME CHANGE ONLY Evidentiary Hearing set for 10/17/2014 09:30 AM before District Judge David M. Lawson (MOre) (Entered: 10/14/2014)
18 NOTICE of Appearance by Jamie J. Janisch on behalf of Wayne County Airport Authority. (Janisch, Jamie) (Entered: 10/14/2014)
19 NOTICE by All Plaintiffs re 10 Notice (Other) of the Filing of an Amendment to "Attachment 2" to the Report of Expert Gary Talbot (Turkish, Jason) (Entered: 10/14/2014)
20 Plaintiff's October 17 Evidentiary Hearing on Motion for Preliminary Injunction WITNESS LIST by All Plaintiffs (Turkish, Jason) (Entered: 10/14/2014)
21 October 17, 2014, Evidentiary Hearing WITNESS LIST by Wayne County Airport Authority (August, Gary) (Entered: 10/15/2014)
Minute Entry for proceedings before District Judge David M. Lawson: Settlement Conference held on 10/16/2014, ( Settlement Conference set for 10/17/2014 09:30 AM before District Judge David M. Lawson) (MOre) (Entered: 10/16/2014)
Minute Entry for proceedings before District Judge David M. Lawson: Settlement Conference held on 10/17/2014 Disposition: Settlement Placed on the Record(Court Reporter Rene Twedt) (MOre) (Entered: 10/17/2014)
22 ORDER DISMISSING CASE WITHOUT PREJUDICE Signed by District Judge David M. Lawson. (MOre) (Entered: 10/17/2014)
23 CERTIFICATE of Service/Summons Returned Executed. All Plaintiffs. (Turkish, Jason) (Entered: 10/27/2014)

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10/31/2014
02/03/2015 02/10/2015 02/17/2015
02/17/2015 02/18/2015 02/23/2015 02/24/2015 02/25/2015 02/26/2015 03/03/2015 03/12/2015 03/16/2015 03/17/2015 03/18/2015

24 TRANSCRIPT of Settlement Hearing held on 10/17/2014. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 23) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 11/21/2014. Redacted Transcript Deadline set for 12/1/2014. Release of Transcript Restriction set for 1/29/2015. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 10/31/2014)
25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B, # 4 Exhibit −C, # 5 Exhibit −D, # 6 Exhibit −E) (Turkish, Jason) (Entered: 02/03/2015)
26 NOTICE of Evidentiary Hearing on 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement. Motion Hearing set for 3/12/2015 at 1:00 PM before District Judge David M. Lawson. (SPin) (Entered: 02/10/2015)
27 RESPONSE to 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Wayne County Airport Authority. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−Settlement Agreement, # 3 Exhibit 2−Michigan Flyer Release, # 4 Exhibit 3−Declaration of Matthew McGowan, # 5 Exhibit 4−AirBus FAQs, # 6 Exhibit 5−Declaration of Joe McCabe, # 7 Exhibit 6−AirRide FAQs, # 8 Exhibit 7−Declaration of Tom McCarthy, # 9 Exhibit 8−Declaration of Bruce Adelson, # 10 Exhibit 9−E−mail Chain, # 11 Exhibit 10−Letter from Jason Turkish, # 12 Exhibit 11−News Article) (August, Gary) (Entered: 02/17/2015)
28 Hearing on Plaintiffs' Motion to Enforce Settlement Agreement WITNESS LIST by Wayne County Airport Authority (August, Gary) (Entered: 02/17/2015)
29 NOTICE by Wayne County Airport Authority re 27 Response to Motion,, Filing of Notarized Declaration of Bruce Adelson (Attachments: # 1 Exhibit A−Notarized Declaration of Bruce Adelson) (Janisch, Jamie) (Entered: 02/18/2015)
30 NOTICE by Michael Harris, Karla Hudson re 26 Notice of Hearing on Motion, 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement Plaintiff's Witness List (Turkish, Jason) (Entered: 02/23/2015)
31 REPLY to Response re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B, # 4 Exhibit −C) (Turkish, Jason) (Entered: 02/24/2015)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 2/25/2015. (SPin) (Entered: 03/04/2015)
32 ORDER of Referral to Facilitative Mediation. Status Conference set for 4/29/2015 04:00 PM before District Judge David M. Lawson. Signed by District Judge David M. Lawson. (SPin) (Entered: 02/26/2015)
Reset Hearing as to 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement. Motion Hearing reset for 3/30/2015 at 9:00 AM before District Judge David M. Lawson. (SPin) (Entered: 03/03/2015)
Set Deadlines/Hearings: Post ADR Status Conference reset for 3/30/2015 at 11:00 AM before District Judge David M. Lawson. (SPin) (Entered: 03/12/2015)
TEXT−ONLY NOTICE: Post ADR Status Conference on 3/30/2015 is Cancelled. (SPin) (Entered: 03/16/2015)
33 NOTICE TO APPEAR BY TELEPHONE: Status Conference set for 3/18/2015 at 3:00 PM before District Judge David M. Lawson. (SPin) (Entered: 03/17/2015)
Minute Entry for proceedings before District Judge David M. Lawson: Telephonic Status Conference held on 3/18/2015. (SPin) (Entered: 03/18/2015)

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03/18/2015 03/19/2015
03/24/2015
04/07/2015 04/07/2015
04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015 04/07/2015

TEXT−ONLY NOTICE: Hearing on 3/30/2015 is Cancelled. (SPin) (Entered: 03/18/2015)
34 ORDER Setting Hearing Date and Deadlines for Submission of Affidavits. Set Motion and R&R Deadlines/Hearings as to 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement: Affidavits and Documentary Evidence due by 3/25/2015; Rebuttal Affidavits due by 4/1/2015; Motion Hearing set for 4/28/2015 at 9:00 AM before District Judge David M. Lawson. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/19/2015)
35 AMENDED ORDER Setting Hearing Date and Deadlines for Submission of Affidavits. Set Motion and R&R Deadlines/Hearings as to 25 MOTION to Enforce Judgment. Affidavits and documentary evidence due by 4/7/2015, rebuttal affidavits, if any, due by 4/14/2015. Motion Hearing set for 4/28/2015 at 9:00 AM before District Judge David M. Lawson. Signed by District Judge David M. Lawson. (SPin) (Entered: 03/24/2015)
36 DECLARATION by Tom McCarthy re 27 Response to Motion,, filed by All Defendants (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Photographs of Additional Detectable Warning Strips, # 3 Exhibit B: Excerpt regarding Infrared Heating, # 4 Exhibit C: Specification Sheet for Bus Shelter Heaters) (Janisch, Jamie) (Entered: 04/07/2015)
37 DECLARATION by Matt McGowan re 27 Response to Motion,, filed by All Defendants (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: AirBus Spring Break 2015 Schedule, # 3 Exhibit B: AAATA Application to Install Signs, # 4 Exhibit C: WCAA March 9, 2015, E−mail to AAATA, # 5 Exhibit D: AAATA March 24, 2015, E−mail to WCAA, # 6 Exhibit E: WCAA March 30, 2015, E−mail to AAATA, # 7 Exhibit F: Register of Actions Michigan Flyer Ticket, # 8 Exhibit G: February 2015 Temperatures) (Janisch, Jamie) (Entered: 04/07/2015)
38 DECLARATION by Dale Walker re 27 Response to Motion,, filed by Wayne County Airport Authority (Janisch, Jamie) (Entered: 04/07/2015)
39 DECLARATION by Bruce Adelson re 27 Response to Motion,, filed by Wayne County Airport Authority (Janisch, Jamie) (Entered: 04/07/2015)
40 DECLARATION by Daniel C. Maser re 27 Response to Motion,, filed by Wayne County Airport Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Diagram of Air Sampling Locations, # 3 Exhibit B: Final Report−Air Quality Testing) (Janisch, Jamie) (Entered: 04/07/2015)
41 AFFIDAVIT of Karla Hudson re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Turkish, Jason) (Entered: 04/07/2015)
42 AFFIDAVIT of Michael Harris re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Turkish, Jason) (Entered: 04/07/2015)
43 AFFIDAVIT of Gary Talbot re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B, # 4 Exhibit −C, # 5 Exhibit −D, # 6 Exhibit −E, # 7 Exhibit −F) (Turkish, Jason) (Entered: 04/07/2015)
44 AFFIDAVIT of Chad Cushman re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B, # 4 Exhibit −C, # 5 Exhibit −D, # 6 Exhibit −E, # 7 Exhibit −F, # 8 Exhibit −G, # 9 Exhibit −H, # 10 Exhibit −I, # 11 Exhibit −J, # 12 Exhibit −K) (Turkish, Jason) (Entered: 04/07/2015)
45 AFFIDAVIT of Oded Norkin re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B, # 4 Exhibit −C) (Turkish, Jason) (Entered: 04/07/2015)
46 AFFIDAVIT of Jason Balk re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1

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04/07/2015 04/07/2015 04/14/2015 04/14/2015
04/14/2015
04/14/2015
04/14/2015
04/14/2015 04/14/2015 04/23/2015 04/23/2015 04/27/2015 04/28/2015
07/27/2015 07/30/2015
08/03/2015

Index of Exhibits, # 2 Exhibit −A) (Turkish, Jason) (Entered: 04/07/2015)
47 AFFIDAVIT of Diane Moore re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A) (Turkish, Jason) (Entered: 04/07/2015)
48 AFFIDAVIT of Mark Grebner re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. (Turkish, Jason) (Entered: 04/07/2015)
49 DECLARATION by Matthew McGowan re 27 Response to Motion,, filed by Wayne County Airport Authority (Janisch, Jamie) (Entered: 04/14/2015)
50 DECLARATION by Tom McCarthy re 27 Response to Motion,, filed by Wayne County Airport Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Temperature Chart, # 3 Exhibit B: Monthly Temperatures, # 4 Exhibit C: Graphs of Monthly Normal Temperatures) (Janisch, Jamie) (Entered: 04/14/2015)
51 DECLARATION by Gary A. Rotter re 27 Response to Motion,, filed by Wayne County Airport Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Photographs from Escalator, # 3 Exhibit B: Photograph of MetroCars Blade Sign) (Janisch, Jamie) (Entered: 04/14/2015)
52 DECLARATION by Michael J. Rudzinski re 27 Response to Motion,, filed by Wayne County Airport Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: WCAA Website, # 3 Exhibit B: Excerpt from FY2015 Approved Budget) (Janisch, Jamie) (Entered: 04/14/2015)
53 DECLARATION by Dale Walker re 27 Response to Motion,, filed by Wayne County Airport Authority (Attachments: # 1 Index of Exhibits, # 2 Exhibit A: Michigan Flyer Website, # 3 Exhibit B: Michigan Flyer Press Release) (Janisch, Jamie) (Entered: 04/14/2015)
54 DECLARATION by Bruce L. Adelson re 27 Response to Motion,, filed by Wayne County Airport Authority (Janisch, Jamie) (Entered: 04/14/2015)
55 DECLARATION by Andrew Bachmann re 27 Response to Motion,, filed by Wayne County Airport Authority (Janisch, Jamie) (Entered: 04/14/2015)
56 STIPULATED ORDER Permitting Argument Regarding Overhead Signage Dispute. Signed by District Judge David M. Lawson. (SPin) (Entered: 04/23/2015)
57 MOTION to Strike 54 Declaration Rebuttal Affidavit of Defense Expert Bruce Adelson by Michael Harris, Karla Hudson. (Attachments: # 1 Exhibit −A) (Turkish, Jason) (Entered: 04/23/2015)
58 ORDER Denying Plaintiff's 57 Motion to Strike Rebuttal Affidavit of Bruce Adelson. Signed by District Judge David M. Lawson. (SPin) (Entered: 04/27/2015)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 4/28/2015 re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement filed by Michael Harris, Karla Hudson. Disposition: Taken under advisement. (Court Reporter Rene Twedt) (SPin) (Entered: 04/28/2015)
59 OPINION and ORDER Denying 25 Motion to Enforce Settlement Agreement. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/27/2015)
60 ORDER Permitting Parties to Submit Supplemental Briefs Regarding Overhead Signage Dispute. Plaintiff's Supplemental Brief due by 8/14/2015; Defendant's Responsive Brief due by 8/21/2015. Signed by District Judge David M. Lawson. (SPin) (Entered: 07/30/2015)
61 TRANSCRIPT of Motion to Enforce held on 04/28/2015. (Court Reporter/Transcriber: Rene L Twedt) (Number of Pages: 67) The parties have 21 days to file with the court and Court Reporter/Transcriber a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/24/2015. Redacted Transcript Deadline set for 9/3/2015. Release of Transcript Restriction set for 11/2/2015. Transcript may be viewed at the court public terminal or purchased through

Case: 2:14-cv-13630 As of: 10/23/2017 12:46 PM EDT 7 of 7

08/14/2015 08/21/2015
09/01/2015 09/11/2015 09/18/2015 09/29/2015 11/16/2015
11/17/2015 12/18/2015 12/21/2015

the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Twedt, R) (Entered: 08/03/2015)
62 SUPPLEMENTAL BRIEF re 25 MOTION to Enforce Judgment pursuant to the terms of a settlement agreement, 60 Order, Set Deadlines/Hearings,, filed by Michael Harris, Karla Hudson. (Attachments: # 1 Index of Exhibits, # 2 Exhibit −A, # 3 Exhibit −B) (Turkish, Jason) (Entered: 08/14/2015)
63 SUPPLEMENTAL BRIEF re 62 Supplemental Brief, filed by Wayne County Airport Authority. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13, # 15 Exhibit 14, # 16 Exhibit 15, # 17 Exhibit 16, # 18 Exhibit 17, # 19 Exhibit 18, # 20 Exhibit 19) (August, Gary) (Entered: 08/21/2015)
64 MOTION for Order Converting October 17, 2014, Dismissal without Prejudice to a Dismissal with Prejudice by Wayne County Airport Authority. (August, Gary) (Entered: 09/01/2015)
65 NOTICE OF HEARING on 64 MOTION for Order Converting October 17, 2014 Dismissal without Prejudice to a Dismissal with Prejudice. Motion Hearing set for 11/16/2015 at 3:00 PM before District Judge David M. Lawson. (SPin) (Entered: 09/11/2015)
66 RESPONSE to 64 MOTION for Order Converting October 17, 2014, Dismissal without Prejudice to a Dismissal with Prejudice filed by Michael Harris, Karla Hudson. (Turkish, Jason) (Entered: 09/18/2015)
67 NOTICE of Appearance by Ryan Thomas Kaiser on behalf of All Plaintiffs. (Kaiser, Ryan) (Entered: 09/29/2015)
Minute Entry for proceedings before District Judge David M. Lawson: Motion Hearing held on 11/16/2015 re 64 MOTION for Order Converting October 17, 2014, Dismissal without Prejudice to a Dismissal with Prejudice filed by Wayne County Airport Authority. Disposition: Taken under advisement. (Court Reporter Rene Twedt) (SPin) (Entered: 11/16/2015)
68 OPINION and ORDER Denying Supplemental Motion to Enforce Settlement Agreement and 64 Motion to Enter an Order of Dismissal With Prejudice. Signed by District Judge David M. Lawson. (SPin) (Entered: 11/17/2015)
69 STIPULATION of Dismissal to convert dismissal without prejudice to a dismissal with prejudice by All Plaintiffs (Turkish, Jason) (Entered: 12/18/2015)
70 Stipulated ORDER Dismissing Case with prejudice. Signed by District Judge David M. Lawson. (SSch) (Entered: 12/22/2015)

 
 L.C. Smith Terminal  Mezzanine Detroit, MI 48242 ph 734 942 3550 fax 734 942 3793 www.metroairport.com

News Release
Media contacts: WCAA: Michael Conway 734-942-3558 Nyman Turkish PC: Jason Turkish 855-527-6668 Michigan Flyer: Mark Holoweiko 517-881-4460

Settlement reached in airport bus stop case
DETROIT (October 17, 2014): Wayne County Airport Authority (WCAA) has reached a settlement with Michael Harris and Karla Hudson, the plaintiffs, in the legal action arising from WCAA’s decision to move the pick-up and drop-off location for Michigan Flyer, AirRide and the SMART bus at the McNamara Terminal at Detroit Metropolitan Airport (DTW).
Motor coaches providing public transportation to and from the terminal were relocated September 22, 2014 from the International Arrivals curb to the Ground Transportation Center (GTC), across the street, where all other ground transportation providers operate. The agreement calls for these buses to stay in the GTC, while, in turn, the Airport Authority agrees to make customer service enhancements to that area.
“We are pleased to work in a spirit of cooperation with representatives of the plaintiffs, as well as Michigan Flyer, to reach a consensus we all accept,” said WCAA CEO Thomas Naughton. “This is a great example of reasonable people working together to create a safer and more customer-friendly environment.”
Modifications to the GTC include providing an indoor information counter for the service providers. WCAA will reconfigure the motor coach parking positions, enhance bus shelters and signage to improve passenger flow, and provide an on-site phone with a direct connection to passenger assistance.
“On behalf of Michael Harris and Karla Hudson, two extraordinary individuals and leaders within the disability rights community, I am delighted to report that the parties have reached an agreement on improvements at the Ground Transportation Center to make it convenient, more accessible, and safer for everyone,” said Attorney Jason Turkish of Nyman Turkish PC, Lead Counsel for the plaintiffs. “After gaining the support of hundreds of Michiganders, and the Attorney General, this lawsuit will end with everyone a winner, and the airport can now be a beacon of pride for accessibility and inclusion in Southeastern Michigan.”

“Michigan Flyer is pleased with the agreement,” said Chad Cushman, Vice-President of Business for Indian Trails, Inc., the parent company of Michigan Flyer. “We commend Detroit Metropolitan Airport for doing the right thing for all of our mutual passengers, and especially the elderly and those with disabilities. It’s important to note that our passengers will soon enjoy a comfortable, climate-controlled, indoor waiting area in the McNamara Terminal’s Ground Transportation Center, with accessible phones, restrooms, drinking fountains and other amenities nearby. They’ll also have a live, video information system that lets them know when our motor coaches are about to arrive at the GTC, as well as full-service assistance for anyone who needs help getting to or from our stop. We look forward to continue providing reliable, quality ground transportation service for our customers between East Lansing, Ann Arbor, and Detroit Metro Airport.”
“For us, this was always about customer safety,” said Naughton. “We are comfortable that the GTC enhancements, to which we have all agreed, maintain a safe environment for our customers.”
#####
Detroit Metropolitan Wayne County Airport (DTW) welcomed more than 32 million passengers in 2013 and is one of the world’s leading air transportation hubs. With service from 13 scheduled passenger airlines, Michigan’s largest airport offers more than 1,100 flights per day to and from nearly 150 non-stop destinations on four continents. In 2010, DTW ranked highest in overall customer satisfaction among large airports in the J.D. Power and Associates North America Airport Satisfaction Study. With two awardwinning passenger terminals, six jet runways, and an onsite AAA Four-Diamond Westin Hotel, DTW is among the world’s most efficient, customer friendly and operationally capable airports in North America. DTW is operated by Wayne County Airport Authority, which also operates nearby Willow Run Airport— an important corporate, cargo and general aviation facility. The Airport Authority is entirely selfsustaining and does not receive tax dollars to support airport operations. Visit www.metroairport.com for more information.
NR Public trans to GTC Sep 2014

DETROIT METROPOLITAN WAYNE COUNTY AIRPORT L.C. Smith Terminal  Mezzanine  Detroit, Michigan 48242

ph 734 942 3550

fax 734 942 3793

www.metroairport.com