AO 440 (Rev. 12/09) Summons in a Civil Action UNITED ... Harris et al v Wayne Coun… · DAVID J. WEAVER, CLERK OF COURT By: s/ K Krawczyk Signature of Clerk or Deputy Clerk Date

AO 440 (Rev. 12/09) Summons in a Civil Action

UNITED STATES DISTRICT COURTfor the

Eastern District of Michigan

Michael Harris, et al.,

Plaintiff,

v. Case No. 2:14−cv−13630−DML−RSWHon. David M. Lawson

Wayne County Airport Authority,

Defendant.

SUMMONS IN A CIVIL ACTION

To: Wayne County Airport Authority

A lawsuit has been filed against you.

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if youare the United States or a United States agency, or an officer or employee of the United States described in Fed. R.Civ. P. 12 (a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff's attorney,whose name and address are:

Jason M. Turkish20700 Civic Center DriveSuite 115Southfield, MI48076

If you fail to respond, judgment by default may be entered against you for the relief demanded in the complaint. Youalso must file your answer or motion with the court.

DAVID J. WEAVER, CLERK OF COURT By: s/ K Krawczyk Signature of Clerk or Deputy Clerk

Date of Issuance: September 19, 2014

2:14-cv-13630-DML-RSW Doc # 2 Filed 09/19/14 Pg 1 of 2 Pg ID 16

AO 440 (Rev. 12/09) Summons in a Civil Action

Summons and Complaint Return of Service

Case No. 2:14−cv−13630−DML−RSWHon. David M. Lawson

A copy of the Summons and Complaint has been served in the manner indicated below:

Name of Defendant Served: Wayne County Airport Authority

Date of Service:

Method of Service

Personally served at this address:

Left copies at defendant's usual place of abode with (name of person):

Other (specify):

Returned unexecuted (reason):

Service Fees: Travel $ Service $ Total $

Declaration of Server

I declare under the penalty of perjury that the information contained in this Return of Service is true and correct.

Name of Server:

Signature of Server:

Date:

Server's Address:


INTHEUNITEDSTATESDISTRICTCOURTFORTHEEASTERNDISTRICTOFMICHIGAN

SOUTHERNDIVISION

MICHAELHARRIS&KARLAHUDSON, ) ) Plaintiffs, ) ) 2:14‐cv‐13630 v. ) ) WAYNECOUNTYAIRPORTAUTHORITY,) ) Defendant. ) )_______________________________________________/NYMANTURKISHPCJasonM.Turkish(P76310)MelissaM.Nyman(293207)20700CivicCenterDrive,Suite115Southfield,Michigan48076Phone:(248)284‐[email protected]@NymanTurkish.comAttorneysforPlaintiffs______________________________________________________________________________________________________/

VERIFIEDCOMPLAINT

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”).


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.


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.


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-by-

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 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,


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.


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


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


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.


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.


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 [email protected] 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 [email protected]

Dated: September 19, 2014 Co-Counsel for Plaintiffs




Exhibit-A Letter from Governor Snyder

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

2:14-cv-13630-DML-RSW Doc # 1-1 Filed 09/19/14 Pg 2 of 2 Pg ID 15

1

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

SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, ) ) Plaintiffs, ) 2:14-cv-13630 ) v. ) HON. DAVID M. LAWSON ) WAYNE COUNTY AIRPORT AUTHORITY, ) ) Defendant. ) ) __________________________________________/ NYMANTURKISHPCJasonM.Turkish(P76310)MelissaM.Nyman(293207)20700CivicCenterDrive,Suite115Southfield,Michigan48076Phone:(248)284‐[email protected]@NymanTurkish.comAttorneysforPlaintiffs_______________________________________________________________________________________________________/

PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR MOTION FOR PRELIMINARY INJUNCTION

NOW COMES Plaintiffs Michael Harris and Karla Hudson, by and through their

undersigned counsel, and hereby moves this court for a Temporary Restraining Order (TRO)

and/or Preliminary Injunction pursuant to Fed. R. Civ. P. 65 and E.D. Mich. LR 65.1 in order to

prevent irreparable injury to Plaintiff’s federally-protected rights and interests under the

Americans with Disabilities Act of 1990, which are being threatened by the actions of the

Defendant Wayne County Airport Authority. In support of this Motion, Plaintiffs rely upon the

Verified Complaint filed with the Court as well as the brief below.


2

WHEREFORE, for all the reasons set forth more fully below, Plaintiffs hereby request

that this Honorable Court temporarily/preliminarily enjoin the Defendant’s relocation of public

transportation to the Ground Transportation Center (“GTC”), which would result in numerous

violations of the Americans with Disabilities Act of 1990, until such time as the GTC, or an

alternative location, can be made accessible to qualified individuals with disabilities requesting

reasonable accommodations.


NYMAN TURKISH PC





3

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

SOUTHERN DIVISION

MICHAEL HARRIS & KARLA HUDSON, ) ) Plaintiffs, ) 2:14-cv-13630 ) v. ) HON. DAVID M. LAWSON ) WAYNE COUNTY AIRPORT AUTHORITY, ) ) Defendant. ) ) __________________________________________/ NYMANTURKISHPCJasonM.Turkish(P76310)MelissaM.Nyman(293207)20700CivicCenterDrive,Suite115Southfield,Michigan48076Phone:(248)284‐[email protected]@NymanTurkish.comAttorneysforPlaintiffs_______________________________________________________________________________________________________/

BRIEF IN SUPPORT OF PLAINTIFF’S EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR

MOTION FOR PRELIMINARY INJUNCTION


4

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............................................................................................5

QUESTION PRESENTED ..................................................................................................6

I. INTRODUCTION ...................................................................................................7 II. RELEVANT FACTS ..............................................................................................7 III. ARGUMENT ........................................................................................................11 A. Standard of Review ....................................................................................11 B. Plaintiffs are Likely to Succeed on the Merits ...........................................11 C. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief ...........12 D. An Injunction Will Not Harm the Defendant .............................................13 E. An Injunction is in the Public Good ...........................................................14 F. Plaintiffs Should Not Be Required to Post a Bond ....................................15 IV. CONCLUSION....................................................................................................16 V. CERTIFICATION ................................................................................................17


5

TABLE OF AUTHORITIES

Sixth Circuit Opinions

Connection Distrib. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .................................................. 11

Gonzalez v. Nat’l Bd. of Med. Exam’rs, 60 F. Supp. 2d 703 (E.D. Mich. 1999) ......................... 12

Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644 (6th Cir. 2007) .......................................... 11

Overstreet v. Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566 (6th Cir. 2002) ....................12

Six Clinics Holding Corp., II v. Cafcomp Sys., 119 F.3d 393 (6th Cir. 1997) ....................... 11, 12

Southerland v. Fritz, 955 F. Supp. 760 (E.D. Mich. 1996) .......................................................... 11

Workman v. Bredesen, 486 F.3d 896 (6th Cir. 2007) .................................................................. 11

Second Circuit Opinions

Doctor's Assocs. v. Stuart, 85 F.3d 975 (2d Cir. 1996) ............................................................... 15

Fourth Circuit Opinions

W. Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232 (4th Cir. 1971) .......... 15

Ninth Circuit Opinions

Chalk v. U.S. Dist. Court Cent. Dist., 840 F.2d 701 (9th Cir. 1988) ..................................... 12, 13

Tenth Circuit Opinions

Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d 780 (10th Cir. 1964) ............................................ 15

Federal Court Opinions

Heather K. v City of Mallard, 887 F. Supp. 1249, 1266 (1995) .................................................. 14

United States Code

42 U.S.C. § 12101(a)(3), (a)(8) (2006) ........................................................................................ 14

42 U.S.C. § 12101(b)(1) (2006) ................................................................................................... 14

42 U.S.C. § 12132 (2006) ............................................................................................................ 13

Rules

Fed. R. Civ. P. 65 ..................................................................................................................... 1, 15

Fed. R. Civ. P. 65(b)(1)(A) .......................................................................................................... 17

Fed. R. Civ. P. 65(b)(1)(B) .......................................................................................................... 17


6

QUESTION PRESENTED

1. Whether the proposed imminent actions of the Defendant Wayne County Airport Authority, scheduled to take place on September 22, 2014, which both discriminate against and endanger persons with disabilities who wish to have access to public transit at the Airport, would cause irreparable injury to the Plaintiffs, and those similarly situated, sufficient to warrant temporary/preliminary injunctive relief?

Plaintiffs Answer: “Yes.”


7

I. INTRODUCTION

This case challenges the Defendant Wayne County Airport Authority’s imminent plans to

relocate public transportation at the Detroit Metro Airport (“DTW”) McNamara terminal, from

its present location on the International Arrivals Level, which is ADA accessible, to a distant site

in the Ground Transportation Center (“GTC”), which is patently out of compliance with the

ADA, as the GTC is nothing more than a distant, and inaccessible section of a parking garage

across the street from the McNamura Terminal. If the Defendant is successful in their efforts to

effectuate the move on September 22, 2014, then the Plaintiffs, and others similarly situated, will

be subjected to irreparable injury in that, at best, they will be subject to systemic discrimination,

and at worst, their lives may be in jeopardy should they attempt to navigate the inaccessible

GTC. Alternatively, the Defendant could stipulate, or this Honorable Court could require, that

during the pendency of the instant litigation, public transportation services continue to be offered

in their present location, at no harm to the Defendant.

II. RELEVANT FACTS

Plaintiff Michael Harris is a resident of Westland, Michigan who uses a wheelchair, and

is the Executive Director of the Michigan Paralyzed Veterans of America. (Dkt. Entry #1, ¶ 6).

Plaintiff Karla Hudson is a totally blind individual living in East Lansing, Michigan. (Id. ¶ 7).

Both Plaintiffs have traveled through DTW in the past, and plan to do so again in the future. (Id.

¶ 8.b). Plaintiffs currently have the option of access to and from DTW via public transportation

companies, such as SMART and AirRide, and wish to continue to have access in the future. (Id.

¶ 11).

Defendant Wayne County Airport Authority is a public, government entity as it was

chartered by the Michigan Legislature in 2002. (Id. ¶ 9). Defendant is the government entity


8

that oversees DTW. (Id. ¶ 10). Currently, the loading area for SMART and AirRide is at the

International Arrivals Level of the McNamura Terminal. (Id. ¶ 12). This area is accessible and

ADA-compliant. Id. However, effective Monday, September 22, 2014, SMART and AirRide

transportation services will be relocated to the Ground Transportation Center. (Id. ¶ 13).

Defendant announced its intention to relocate these public transportation companies on its

website, made available to the general public and to the Plaintiffs. (Id. ¶ 14).

Defendant claims the relocation of SMART and AirRide is due to safety and congestion

concerns. (Id. ¶ 15). Curiously, 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. Id.

The new location at the GTC presents serious accessibility problems, and thus is in

violation of the Americans with Disabilities Act. (Id. ¶ 16). For example, 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 through accessible routes to

persons with disabilities. (Id. ¶ 16.a). The proposed new area for buses to stop takes place in

three spots in two side-by side lanes: one lane along the curb, and the other, the middle lane, with

an active traffic lane on its other side. (Id. ¶ 16.b). 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. (Id. ¶ 16.c). This bus parking set-up also poses serious safety

risks to people and service animals while loading and unloading. (Id. ¶ 16.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. Id. This action could result


9

in severe bodily harm and/or death, especially if a person is blind and unable to see the potential

dangers. Id.

Aside from the traffic and general layout of the bus parking itself, the GTC presents other

accessibility problems in violation of the ADA. 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. (Id. ¶ 16.e). This extended distance forces people to either wait

outside for their bus or run quickly once it arrives. Id. Disabled persons, especially those with

mobility limitations, who cannot “run” quickly enough are thus forced to wait outside, even in

harsh weather conditions. Id. As winter approaches, should this plan not be enjoined by this

Court, a disabled individual, particularly one with a spinal cord injury who lacks sensation and

feeling in limbs, could become the victim of frost bite, or worse.

The GTC also severely limits a disabled person’s access to, and communication with,

Prospect Airport Services. (Id. ¶ 16.f). This company assists disabled persons in getting around

at the airport. Id. At the current location at the International Arrivals Level of the McNamura

Terminal, there are ample personnel and communication options to assist a disabled person in

reaching Prospect Airport Services. However, at the GTC, a disabled person is left without

access to such resources, leaving them stranded and without access to reasonable

accommodations. Id. Without the aid of Prospect Airport Services, a disabled individual would

be forced to navigate this heavily congested area, with luggage, on their own, which is

unnecessary, dangerous, and at complete variance with the aims of the ADA.

Further frustrating hurdles are prevalent at the GTC. The elevators are located in an

obscure and unmarked area, making them difficult to find for disabled persons seeking to use

them. (Id. ¶ 16.g). The small covered shelters meant to provide a minimal amount of protection


10

from the outdoor elements 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. (Id. ¶ 16.h). Unlike the

current location at the International Arrivals Level, 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. (Id. ¶ 16.i). Finally, passengers traveling from the McNamura 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. (Id. ¶ 16.j). To wit, the Detroit Free Press in

2009 reported that the door had broken 33 times from April 1, 2008 to March 22, 2009. Id.

Defendant is aware of these 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. (Id. ¶ 17). 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. (Id. ¶ 18). Prominent public

figures have expressed the importance and need to keep the current loading areas for these public

transportation service companies. For example, 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. (Id. ¶ 20). 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


11

impending relocation due to unresolved issues related to accessibility for persons with

disabilities. (Id. ¶ 19).

Plaintiffs, and others similarly situated, wish to continue to have equal access to

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. (Id. ¶ 21).

III. ARGUMENT

A. Standard of Review

The factors to be weighed before issuing a TRO or a preliminary injunction are the same.

See, e.g., Workman v. Bredesen, 486 F.3d 896, 904-05 (6th Cir. 2007); Southerland v. Fritz, 955

F. Supp. 760, 761 (E.D. Mich. 1996).

The standard for issuing a preliminary injunction in this Circuit is well established. In

Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998), the court stated “[i]n

determining whether or not to grant a preliminary injunction, a district court considers four

factors: (1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff could

suffer irreparable harm without the injunction; (3) whether granting the injunction will cause

substantial harm to others; and (4) the impact of the injunction on the public interest.” Id.; see

also Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007). Typically, the

reviewing court will balance these factors, and no single factor will necessarily be determinative

of whether or not to grant the injunction. Connection Distrib. Co., 154 F.3d at 288.

B. Plaintiffs are Likely to Succeed on the Merits

“In order to establish a likelihood of success on the merits of a claim, a plaintiff must

show more than a mere possibility of success.” Six Clinics Holding Corp., II v. Cafcomp Sys.,

119 F.3d 393, 402 (6th Cir. 1997). “However, it is ordinarily sufficient if the plaintiff has raised


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questions going to the merits so serious, substantial, difficult, and doubtful as to make them fair

grounds for litigation and thus for more deliberative investigation.” Id.

[T] o succeed on an ADA claim, plaintiff must demonstrate (1) that he is disabled, (2)

that his requests for accommodations are reasonable, and (3) that those requests have been

denied. Gonzalez v. Nat’l Bd. of Med. Exam’rs, 60 F. Supp. 2d 703, 706 (E.D. Mich. 1999).

There is no dispute that Plaintiffs are disabled. Plaintiff Harris uses a wheelchair and is disabled

in the major life activity of “walking.” Plaintiff Hudson is totally blind. There is also no

dispute that Plaintiffs’ ability to request reasonable accommodations will be severely, if not

completely, compromised upon the implementation of the Airport Authority’s September 22,

2014 relocation plan. As the Court explained in Six Clinics Holding Corp., II, 119 F.3d at 402,

when a Plaintiff alleges a set of facts that are serious, and appear to present the need for highly

substantive litigation, then the Plaintiff has met their burden. There could be nothing more

“serious” than the potential of a disabled individual being injured or killed while simply trying to

access public transportation. Therefore, the Plaintiffs have raised the essential “questions going

to the merits so serious, substantial, difficult, and doubtful as to make them fair grounds for

litigation,” and thus have sufficiently demonstrated a likelihood of success on the merits.

C. Plaintiffs Will Suffer Irreparable Harm Without Injunctive Relief

A plaintiff's harm from the denial of a preliminary injunction is irreparable if it is not

fully compensable by monetary damages. Overstreet v. Lexington-Fayette Urban Cnty. Gov’t,

305 F.3d 566, 578 (6th Cir. 2002). The issuance of injunctive relief is appropriate when a

disabled person loses the chance to engage in a normal life activity. Chalk v. U.S. Dist. Court

Cent. Dist., 840 F.2d 701, 710 (9th Cir. 1988).


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No monetary damages will compensate for Plaintiffs’, and others similarly situated, being

subjected to an inaccessible transportation stop, that needlessly and recklessly, threatens them

with bodily injury and even death, and is patently in violation of the ADA. And make no

mistake, there is no injury more irreparable than death – which is a tangible possibility when

persons with disabilities are confronted with the absurdity of accessing buses without an

accessible route around other traffic. Persons with disabilities have a statutory right to equal

access at airports, including DTW. “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 (2006). Not only would persons with disabilities be “subjected to discrimination”

but in so doing, they would also face the real risk of bodily injury or death, both of which are

irreparable injuries, and as such the Plaintiffs are entitled to an injunction to enjoin the Airport

Authority from their publicly announced plans to violate the ADA. Chalk, 840 F.2d at 710.

D. An Injunction Will Not Harm the Defendant.

It has been demonstrated that Plaintiffs stand to suffer great irreparable harm in the

absence of injunctive relief. However, Defendant does not stand to suffer any material harm by

the issuance of injunctive relief. SMART and AirRide have been successfully using the

International Arrivals Level of the McNamura Terminal in servicing their disabled and non-

disabled patrons. The current service area is fully accessible and ADA compliant. Maintaining

“business as usual” in the current service area would not harm the Defendant in the least.

Defendant claims the relocation of SMART and AirRide is due to safety and congestion

concerns, yet the “congestion” caused by these two companies, if it exists at all, is miniscule as

compared to the employee shuttle, Great Lakes Bus, which makes approximately 168 roundtrips


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to the current stop each day. AirRide, in comparison, makes a mere 13 roundtrips. Further, the

new location presents insurmountable safety concerns for all patrons of SMART and AirRide,

disabled or not. An injunction preventing Defendant from forcing these transportation

companies to operate in an inaccessible area, thus subjecting disabled persons to extreme safety

hazards, cannot possibly harm the Defendant as it would simply be maintaining the safe status

quo that exists at the airport now.

E. An Injunction Is In the Public Good.

“[T]he public interest is served by enforcement of anti-discrimination provisions of Title

II of the ADA.” Heather K. v City of Mallard, 887 F. Supp. 1249, 1266 (1995). (discussing the

court having no difficulty in favorably determining the public interest where Congress’s remedial

intent for the ADA to ban discrimination against persons with disabilities was at stake). To wit,

Congress enacted the ADA “to provide a clear and comprehensive national mandate for the

elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). In

doing so, Congress recognized that “discrimination against individuals with disabilities persists

in such critical areas as . . . public accommodations, . . . transportation, . . . and access to public

services;” and that “the continuing existence of unfair and unnecessary discrimination and

prejudice denies people with disabilities the opportunity to compete on an equal basis and to

pursue those opportunities for which our free society is justifiably famous, and costs the United

States billions of dollars in unnecessary expenses resulting from dependency and

nonproductivity.” Id. § 12101(a)(3), (a)(8) The public interest in effectuating Congress’s intent

for this remedial legislation is well-established, and it is in the public good that the very kind of

discrimination the ADA sought to ban, and that the Airport Authority is about to engage in, be

enjoined to protect the Plaintiffs, others with disabilities, and the general public.


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F. Plaintiffs Should Not Be Required to Post a Bond.

Federal appellate courts construing Fed. R. Civ. P. 65 permit a trial court to require no

bond where the nonmoving party fails to demonstrate any injury. “[T]he trial judge has wide

discretion in the manner of requiring security and if there is an absence of proof showing the

likelihood of harm, certainly no bond is necessary.” Cont’l Oil Co. v. Frontier Ref. Co., 338 F.2d

780, 782 (10th Cir. 1964); accord Doctor's Assocs. v. Stuart, 85 F.3d 975, 985 (2d Cir. 1996);

see also W. Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 236 (4th Cir.

1971) (holding that a nominal bond of $100 was sufficient where defendant failed to show it

would suffer more than negligible harm as a result of having to delay timber cutting until the

issues raised in the litigation could be decided).

Here, there is no indication that Defendants will suffer any cognizable harm during the

time that the temporary restraining order and/ or preliminary injunction are in effect. Like in W.

Va. Highlands Conservancy, any damage suffered by the Defendant does not go beyond a mere

delay imposed on their plans. Said simply, the Airport Authority can continue its current location

for public transportation, which has been in place for years, during the brief period in which the

Plaintiffs are to litigate the substance of their claims. Because Defendant will not be harmed by

the issuance of a temporary restraining order and/ or preliminary injunction, Plaintiffs should not

be required to post a bond, or in the alternative, Plaintiffs should be required to post no more

than a nominal bond.


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IV. CONCLUSION

WHEREFORE, for all these reasons, Plaintiffs hereby requests that this Honorable Court

enjoin the Defendant’s relocation of public transportation to the Ground Transportation Center,

which would result in numerous violations of the Americans with Disabilities Act of 1990, until

such time as the GTC, or an alternative location, can be made accessible to qualified individuals

with disabilities.


NYMAN TURKISH PC





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V. CERTIFICATION

In accordance with Fed. R. Civ. P. 65(b)(1)(B), the undersigned certifies that at

approximately 5:00pm on September 18, 2014, he placed a call to Ms. Emily Neuberger, Vice

Present and General Counsel for the Defendant Wayne County Airport Authority. The

undersigned further certifies that in his message he left Ms. Neuberger his direct mobile

telephone number for use after hours, and at the time of the instant filing no return call has been

received. In accordance with Fed. R. Civ. P. 65(b)(1)(B), upon the undersigned having attempted

communication with opposing counsel, the Court may issue a Temporary Restraining Order

“without notice,” upon a showing of “specific facts in an affidavit or a verified complaint clearly

show that immediate and irreparable injury, loss, or damage will result to the movant before the

adverse party can be heard in opposition.” Id. R. 65(b)(1)(A). Here, the Verified Complaint

details imminent risks to life and limb of persons with disabilities, and thus the undersigned

respectfully requests that the Court act immediately to enjoin the Defendants’ conduct which

endangers the public.

/s/ Jason M. Turkish Dated: September 19, 2014 By: Jason M. Turkish, Michigan Bar #P76310


Documents

AO 440 (Rev. 12/09) Summons in a Civil Action UNITED ... Harris et al v Wayne Coun… · DAVID J. WEAVER, CLERK OF COURT By: s/ K Krawczyk Signature of Clerk or Deputy Clerk Date