United States District Court, D. Nevada
Mark Allan Unterscher, an Individual, 4310 Fernwood Drive Bismarck, ND 58503 Plaintiff,
Holiday Inn Club Vacations, a Timeshare; Spence Wilson, Chairman of Board, 8505 Irlo Bronson Memorial Highway, Kissimmee, FL 34747 And Holiday Inn Club Vacations, a Timeshare; Adalberto Lugo, General Manager, 3950 Koval Lane, Las Vegas, NV 89109, Defendants.
OFFICE OF SEAN M. TANKO, LTD. Sean M. Tanko, Esq. Nevada Bar
No. 8904 Attorneys for Plaintiff Mark Allan Unterscher, an
GREENBERG'TRAURIG, LLP Maark E. Ferrario, Esq. Nevada Bar
No. 1625 Christopher Miltenberger, Esq. Nevada Bar No. 10153
Alayne Opie, Esq. Nevada Bar No. 12653 Attorneys for
STATUS REPORT AND STIPULATION AND [PROPOSED] ORDER
REGARDING PLAINTIFF'S CLAIM
Mark Allan Unterscher ("Plaintiff) and Defendants
Holiday Inn Club Vacations and Spence Wilson, Chairman of
Board and Holiday Inn Club Vacations, a Timeshare; Adalberto
Lugo, General Manager ("Defendants") (collectively
the "Parties"), by and through their undersigned
counsel, hereby stipulate and agree as follows:
December 21, 2016, Plaintiff filed a Complaint for
Declaratory and Injunctive Relief ("Complaint")
asserting one count for various violations of the Americans
with Disabilities Act of 1990, 42 U.S.C. § 12101, et
seq. (the "ADA").
Prior to commencing this action, Plaintiff had retained a
consultant to perform an inspection of the Desert Club Resort
property located at 3950 Koval Lane, Las Vegas, Nevada 89109
(the "Property"). As a result of that inspection,
Plaintiffs consultant prepared a document entitled, ADA
Accessibility Inspection Survey, dated August 26, 2016 (the
After filing and serving his Complaint on Defendants,
Plaintiff provided a copy of the Survey to Defendants'
counsel for review and consideration.
Defendants conducted an internal review and analysis of the
Survey and prepared a proposal to address the issues set
forth in the Survey with respect to the Property in
furtherance of resolving this case. Such an analysis included
extensive site inspections of the Property and review and
analysis of the Survey and applicable codes and regulations.
As a result of their analysis and inspections, Defendants
prepared a proposed plan (the "Proposed Action
Plan") to address certain issues raised by the Survey
and to resolve the claims set forth in Plaintiffs Complaint
and provided that plan to Plaintiffs counsel on August 8,
2017. The Proposed Action Plan proposed certain remedies and
repairs to many of the issues raised in the Survey, but also
took the position that repair or modification of certain
other alleged violations were not reasonable or readily
achievable under the circumstances.
Since that time, Plaintiff reviewed the Proposed Action Plan.
Plaintiff agrees that the proposed repairs and modifications
set forth in Defendants' Proposed Action Plan are
reasonable and appropriate and will adequately address
Plaintiffs concerns with respect to the alleged ADA
violations for the issues other than those set forth below in
Defendants agree to undertake steps to effectuate the agreed
upon repairs and modifications in the Proposed Action Plan
with respect to those alleged ADA violations within the next
twenty-four (24) months.
Parties are working in good faith to establish a schedule for
Plaintiffs expert to verify the completion of the repairs and
modifications in the Proposed Action Plan.
Plaintiffs disagree with Defendants' contention that
repairs and modifications with respect to certain other
alleged ADA violations identified in the Survey are not
reasonable or readily achievable under the circumstances as
identified in the Proposed Action Plan.
9. As a
result, the Parties agree that the scope of the
above-captioned matter should be limited to those alleged ADA
violations where Defendants contend repair or modification is
not reasonable or readily achievable under the circumstances.
Therefore, the Parties stipulate and agree that the remaining
scope of the claim asserted in Plaintiffs Complaint shall be
limited to the following alleged ADA violations as noted in
(a) Shower Compartment Depth. Pages36 and
358. Plaintiff alleges that the ADA requires a shower
compartment to be a minimum of 60 inches deep. Plaintiff
alleges that the shower compartments identified by Plaintiff
in the Survey are 58 inches deep. Defendants contend that a
modification or repair of these shower compartments
constructed in or around 1989 are not reasonable or readily
achievable as it would require a complete demolition and
remodel to achieve any minimal ...