JAFFE HELIER 8: WEISS. IN THE CIRCUIT COURT FOR THE COUNTY OF MIDLAND YVETTE CORMIER, Plaintiff, V. PF FITNESS MIDLAND, LLC, a Michigan limited liability company, and FRANCHISE, LLC, a New Hampshire Limited Liability Company, jointly and severally, Defendants. STATE OF MICHIGAN Case No. 15-2463-NZ-B HON. MICHAEL J. BEALE FILE we I ,7 JUL 31 21115 '14th 11.19.519.141? {mu rngv'R-K 13:. MM David A. Kallman (P34200) Stephen P. Kallman (P75622) Kallman Legal Group, PLLC 5600 W. Mount Hope Hwy. Lansing, MI 43917 517?322-3207 517-322-3208 (fax) Email: dave@kalhnan1egal.com Attorneysfor Plainti? Brian Witus (P530152) Patrice S. Arend (P56962) .1 affe, Raitt, Heuer Weiss, P.C. 27777 Franklin Road, Suite 2500 South?eld, MI 43034 248?351-3000 248-351-3082 (fax) Email: bunms@iaffelaw.eom Email: parend?liaffelaweom Attorneys for Defendant PF frness?Midland, LLC Ronald S. Nixon (P571 17) Kemp Klein Law Firm 201 West Big Beaver Road Tory, MI 48084 248-528-1111 248?528-5129 (fax) Email: Arthur L. Pressman (temporary admission granted) Troy K. Lieberman (temporary admission granted) Nixon Peabody LLP 100 Summer Street Boston, MA 02110 T: (617) 345-1000 F: (617) 345-1300 apressman@nixonpeabodv.com tliebennan?lnixonpeabodyeom Attorneys for De?ndanr Pia-Fit Franchise, LLC DEFENDANT PF FITNESS-MIDLAND, MOTION FOR SUMMARY DISPOSITION JIFFE Filer HEUER 5 WEISS. FTC. Defendant PF Fitneseridland, LLC Midland?), through its attorneys, affe, Raitt, Heuer Weiss, P.C., submits this Motion for Summary Disposition pursuant to MCR In support?of its motion, PF Midland states: 1. PF Midland moves this Court to dismiss all counts set forth in Plaintiff Yvette Cormier?s Second Amended Complaint (?Complaint?) because each of the counts fails to state a valid claim upon which relief can be granted. 2. In addition to the reasons set forth in this Motion and the accompanying Brief in Support, PF Midland relies upon and incorporates by reference the grounds and arguments set forth in Defendant Pia-Fit Franchise, (?Pia-Fit Franchise?) Motion for Summary Disposition Under MGR and Brief in Support, which is, upon information and belief, being ?led on the same date. 3. Each of the claims in Plaintist Complaint arises from and relates to the non- discriminatory policies and practices of Pla?Fit Franchise (the franchisor) and PF Midland (the franchisee). Despite Defendants? entirely reasonable, lawful and non-discriminatory policies and practices, Plaintiff?s Complaint constitutes nothing more than a desperate, but futile, attempt to manufacture some sort of legal claim. Indeed, the predicate underlying each of the claims in Plaintiff?s Complaint is that Pia-Fit Franchise and PF Midland should have devised, implemented and'enforced discriminatory policies and practices. 4. Based upon Pla-F it Franchise?s and PF Midland?s non?discriminatory policies and practices, Plaintiff?s Complaint alleges the following factually and legally de?cient claims: Count I invasion of Privacy; Count II Violation of Elliott-Larsen Civil Rights Act Sexual Harassment MCL and MCL 37.230] ct - seq; Count ill Violation of Elliott-Larsen Civil Rights Act Sexual Harassment MCL and JAFFE HEUER I8: WEISS, P.c. Count IV Violation of Elliott?Larsen Civil Rights Act Retaliation . MCL 37.270101), and Count Violation of Elliott-Larsen Civil Rights Act lnjunctive Relief? MCL 37.28010); Count VI Breach of Contract; Count VII Intentional ln?iction of Emotional Distress; Count Exemplary Damages Count DI Michigan Consumer Protection Act 5. For the reasons discussed in detail in the accompanying Brief in Support (and in Pia-Fit Franchisc?s Motion fer Summary Disposition Under MCR and Brief in Support), each of Plaintiff?s claims is factually and/or legally deficient, and must be dismissed. WHEREFORE, PF Fitness Midland, LLC respectfully requests that this Honorable Court grant its Motion for Summary Disposition pursuant to MCR. and dismiss each of the claims set forth in Plaintiff?s Second Amended Complaint with prejudice. ReSpectfully submitted: ewz? :?ian Witus 953062) Patrice S. Arend (P56962) affe, Raitt, Heuer Weiss, PC. 27777 Franklin Road, Suite 2500 South?eld, MI 48034 248-351?3000 248-351-3082 (fax) Email: budtungjaffeLawm Email: parerMiaffelawcom Attorneys for Defendant PF amass?Midland LLC Date: July 30, 2015 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF YVETTE CORMIER, Plaintiff, Case No. v. HON. MICHAEL J. BEALE PF FITNESS MIDLAND, LLC, a Michigan limited liability company, and FLA-FIT FRANCHISE, LLC, a New Hampshire Limited Liability Company, jointly and severally, Defendants. JAFFE HEUER WEISS. PHD. Rooald S. Nixon Kemp Klein Law Firm 201 West Big Beaver Road Toxy, MI 48084 248-528?1 111 248-528?5129 (fax) Email: ron.nixon@lckue.com David A. Kallman (P354200) Stephen P. Kallman (P75 622) Kallman Legal Group, PLLC 5600 W. Mount Hope Lansing, MI 48917 517?322-3207 517-322-3208 (fax) Email: Attorneys for PZainn'?" Arthur L. Pressman (temporary admission granted) Brian Witns (P53062) Troy K. Lieberman (temporary admission Patrice S. Arend granted) Jaffe, Raitt, Heuer Weiss, PC. Nixon Peabody LLP 100 Summer Street Boston, MA 02110 T: (617) 345?1000 F: (617) 345- 1300 antesmnant?nixonpeabody.com tli ebemm@11ixonpeabody.oom 2777? Franklin Road, Suite 2500 South?eld, MI 48034 248-3 5 -3 000 248-351-3082 (fax) Email: bwdtus?liaffelaweom Email: parend@iaffelaw.com Attorneys for Defendant PF Fitness-Midland LLC Attorneys for Defendant Pia?Fit Franchise, LLC DEFENDANT PF FITNESS-MIDLAND, BRIEF IN SUPPORT OF ITS MOTION FOR SUMMARY DISPOSITION JIFFE REITT E. Defendant PF Fitness-Midland, LLC Midland?), through its undersigned counsel, submits the following Brief in Support of its Motion for Summary Disposition on Plaintiff's Second Amended Complaint (?Complaint?), and incorporates and relies upon the arguments set forth in the Motion for Disposition Under MCR and Brief in Support ?led by Defendant Pia-F it Franchise, LLC (?Fla?Fit Franchise?). INTRODUCTION Each of the claims in Plaintiff?s Complaint arises from and relates to the non- discriminatory po?cies and practices of Pla?Fit Franchise (the franchisor) and PF Midland (the franchisee). Despite Defendants? entirely reasonable, law?il and non-discriminatory policies and practices, Plaintiff?s Complaint constitutes nothing more than a desperate, but futile, attempt to manufacture some sort of legal claim. Indeed, the predicate underlying each of the claims in Plaintiff?s Complaint is that Pia-Fit Franchise and PF Midland should have devised and implemented discriminatory policies and practices. Throughoirt our nation?s history, the denial of access to restrooms has been used as a means to degrade and demean persons of color,1 to exclude women from traditionally male jobs,2 and to exclude persons with disabilities from access to public accommodation and employment.3 In this case, Plaintiff attempts to promote denial of restroom access as a way to discriminate against trans gender people. See, eg, Bruckner Goodyear Tire Rubber Co, 339 Supp 1108, 1112-13 (ND Ala 1972) (describing racially segregated restrooms as a discriminatory employment practice by Goodyear Tire). 2 See, eg, DeClue 12 Central Ill Light Co, 223 F3d 434, 438-39 (7?h Cir 2000) (Rovner, J, dissenting in part) (?the cases teach us that some employers not only maintain, but deliberately play up, the lack of restroom facilities and similarly inhOSpitable work conditions as a way to keep women out of the Workplace?). 3 See, eg, Smith WaLMarr Stores, Inc, 167 F3d 286, 291 (6th Cir 1999) (recognizing the importance of access to restrooms by disabled persons). 5 JAFFE HEIJER a WEISS, PJE. A civilized society protects its citizens from discrimination that is based on petty prejudices and mean-Spirited exclusionary practices. Consistent with this notion, courts across the country, and administrative and governmental agencies, have recognized and sought to protect the rights of transgender people (among others), including their right to use the public restroom that corresponds with their gender identity. These decisions and pronouncements have determined that allowing transgender persons to use the restroom that corresponds to their gender identity is necessary to providing a non-discriminatory environment that supports the dignity of all people. PF Midland is just following their lead. Plaintiff cannot maintain as a matter of law, and this Court should not permit her to maintain, any causes of action against PF Midland based on its non?discriminatory policy towards transgender people. To hold otherwise could subject PF Midland to a lawsuit by transgender individuals for denying access to a public accommodation. Equally, if not more important, such a ruling would prevent entities from relying on existing legal precedent and governmental guidelines when enacting policies that attempt to comply with them. STATEMENT or RELEVANT FACTS he Parties Plaintiff is an individual who resides in Midland County, Michigan. (Compl. j[ 1, Ex. 1.) Planet Fitness? businesses are ?tness training facilities offering exercise machines and free weights, fitness training services, tanning services, related services and ancillary goods. One of Planet Fitness??s marketing slogans is that it is the ?Home of the Judgement Free Zone?.? Defendant Fla-Fit Franchise, LLC is ?anchisor of the Planet Fitness? business model. Defendant PF Midland is the owner and franchisee of at Planet itnes s? facility located at 701 Joe Mann Boulvard, Midland, Michigan. (Compl. 1] 2, Ex. 1.) JAFFE RAITT HEUER A WEISS. like. The Membership Agreement behveen the Parties On or about January 28, 2015, Plaintiff joined the Planet Fitness facility located in Midland as a Black Card member.4 in connection with her membership, she signed a Membership Agreement. (Compl. $311 12, 67, Ex. 1.) The Membership Agreement signed by - Plaintiff contains a number of limitations that govern the parties? relationship, thus, Plaintiff?s ability to succeed in this litigation. First, Plaintiff expressly agrees to assume the risk of any injuries caused to her at Planet Fitness, whether through the use of the actual equipment or from the use of the facilities in general. The Membership Agreement provides in that regard as follows: I understand and expressly agree that my use of this Planet Fitness facility, or any other Planet Fitness facility, involves the risk of injury to me or my guest whether caused by me or not. I understand that these risks can range from minor injuries to major injuries including death. In consideration of my participation in the activities and use of the facilities, exercise equipment or services offered by Planet Fitness, i understand and voluntarily accept full responsibility on my behalf and on my guest?s behalf for the risk of injury or loss arising out of or related to my use or my guest?s use of the facilities, exercise equipment or participation in exercise programs or other services. (Membership Agreement, Release of Liability/Assumption of Risk Clause at p. 1, Ex. 2.) The Membership Agreement further provides that Plaintiff agrees to waive any claims against PF Midland arising out of her use of the facilities. The Membership Agreement further provides as follows: I further agree that Planet Fitness, its af?liated companies and their respective of?cers, directors, employees, members, agents and independent contractors (collectively ?Planet Fitness?) will not be liable for any injury, including, without limitation, personal, bodily, or mental injury, disability, death, economic loss or any damage to me, my spouse or domestic partner, guests, unborn child, heirs, or relatives resulting from the negligent conduct or omission of Planet Fitness or anyOne acting on Planet Fitness? behalf whether related to exercise or not. . 4 A black card membership merely entitles a member to take advantage of more services and goods. The breadth-of these advantages is not relevant for purposes of this motion. 7 JAFFE WEISS, Accordingly, to the fullest extent permitted by law, I do hereby forever release, waive and discharge Planet Fitness from any and all claims, demands, injuries, damages, actions or causes of action against Planet Fitness. By signing the Membership Agreement, Plaintiff agrees that she ?understand[s] this release of liability and assumption of risk agreement and [she has] been given the opportunity to ask questions related to [her] use of the facilities, exercise equipment, or [her] participation in exercise programs or other services. (Id) The Membership Agreement also contains a provision that limits Planet Fitness? liability in the event of a dispute arising out of the parties" contractual relationship. It provides, in that regard, as follows: Unless controlling legal authority requires otherwise, any award by the arbitrator or a court is limited to actual compensatory damages. Speci?cally, neither an arbitrator nor a ?court can award either party any indirect, Special, incidental or consequential damages, even if one party told the other party that they might suffer these damages. (Membership Agreement 1] 7, Ex. 2.) The Incident Giving Rise to this Case On or about Saturday, February 28, 2015, Plaintiff entered PF Midland to exercise. (COmpl. 11 13, Ex. 1.) At some point during her visit, Plaintiff entered the women?s locker room to ?nd a transgender woman, whom was purportedly later identi?ed as Carlotta Sklodowska. (Id. 1H 13, 15, 16.) Plaintiff described the transgender woman as a ?large, tall man,? as to suggest that the trans gender woman did not comport with traditional stereotypes regarding how a female is supposed to look. (Id. 1] 15.) Plaintiff maintains that she was shocked by the presence of the transgender woman who Plainn?ff maintains that she did not feel comfortable had masculine features. (Id. 1] IS.) changing her clothes or ishowering with a ?man? present and watching. (Id. 18.) Plaintiff left HEUER a. WEISS, Pic. the locker room and noti?ed the front desk that a man was in the women?s locker room. (Id. ll 21.) Noticeably absent from the Complaint is any allegation that the transgender woman engaged in any inappropriate conduct, other than merely being present in the women?s locker room. The front desk employee at PF Midland explained to Plaintiff that individuals were permitted to use the locker room for the gender with which they self-identified. (Compl. ?ll 22, Ex. 1.) Plaintiff was not denied access to the facility. Plaintiff Was adyised that if she was uncomfortable using the women?s locker room, she could wait until the transgender individual was ?nished. (Id. 1[23.) qui?tlff Continues to Use the Planet Fitness Facility Despite Plaintiffs now claimed emotional distress, Plaintiff returned to the PF Midland facility after the February 28th ?incident,? including the following Monday, March 1, 2015 and for the next two days thereafter. (Compl. ll 28, Ex. 1.) Although Plaintiff maintains that she ?checked? the women?s locker room for the presence of transgender women, she nonetheless used the facilities without incident and was not denied access. (Id. ll 29.) Plaintiff, however, sought to bother the other patrons of the PF Midland facility, She entered into a campaign whereby she repeatedly harassed other customers of PF Midland to describe her displeasure with PF Midland?s policy regarding a ?judgment free zone? (and its non-discriminatory policies and procedures). As a result, PF Midland asked Plaintiff to cease her actions. 'When she refused to do so, PF Midland terminated her Membership Agreement. Procedural History Within weeks of her membership being terminated, Plaintiff instituted a lawsuit against PF Midland and others. On March 2'3, 2015, she ?led a Complaint arising out of the February JAFFE HEUEI I: 9.13. -- 28 th incident and the subsequent termination of her Membership Agreement. On April 13, 2015, she ?led an Amended Complaint. Finally, on or about June 25, 2015 she ?led a Second Amended Complaint. The Complaint contains nine separate counts of wrongdoing against two defendants PF Midland and Fla-Fit Franchise. The causes of action are as follows: Count I Invasion of Privacy Count Violation of Elliott-Larsen Civil Rights Act Sexual Harassment MCL and MCL 37.2301 et seq. Count 111 Violation of Elliott~Larscn Civil Rights Act Sexual I Harassment MCL and (ii) Counth Violation of Elliott-Larsen Civil Rights Act Retaliation MCL and Count Violation of Elliott-Larsen Civil Rights Act Inj unctive Relief? MCL 37.28010) Count VI Breach of Contract Count VII intentional In?ic?on of Emotional Distress Count Exemplary Damages Count 1X Michigan Consumer Protection Act Because she cannot maintain these claims as a matter of law, summary disposition should be granted in favor of PF Midland and the Complaint should be summarily dismissed. ARGUMENT Rule of the Michigan Court Rules directs a trial court to enter summary disposition against a plaintiff who ?has failed to state a claim on which relief can be granted.? MCR A motion under this rule tests the legal suf?ciency of the complaint and may be granted when the opposing party?s pleadings fails to allege a prima facie case. Holbrook Honda, 224 Mich App 437, 440 (1997); Royal Palace Homes, Inc Channel 7 of Detroit, Inc, 197 Mich App 48, 495 392, 393 (1992). A motion pursuant to MCR ?is well taken if it is clear from the pleadings alone that the claim does not state a legal basis for recovery.? Wilson Acacia Park Cemetery Assoc, 162 Mich App 638, 642 (1987). A mere 10 RRITT WEISS, F.c. statement of conclusions, unsopported by allegations of fact, will not create a valid cause of action. York v. 50 'h District Court, 212 Mich App 345, 347 (1995). Copies of written instruments that are the [subject of a complaint are considered part of the pleadings for purposes of reviewing a motion under MCR Laurel Woods Apartments Roumayah, 274 Mich App 631, 635, 734 217 (2007) (the written contract becomes part of the pleadings themselves, even for purposes of review under MCR Thus, the Membership Agreement, which was referenced in Plaintiff?s Complaint, may properly be considered in determining whether disposition is warranted under MCR 2.1 I. PF Midland?s Non-Discriminatory Policy Cannot, as a Matter of Law, Constitute Legal Wrongs, or Objectionable or Outrageous Conduct Where PF Midland?s Non?Discriminatory Policy Comports with Both Legal Precedent and the Recommendations of Governmental and Administrative Agencies. The issue of the proper restroom to be used by transgender individuals has already been, and continues to be, litigated throughout the United States. Several courts and administrative agencies charged with the enforcement of civil rights have recognized a transgender individual?s right to use the public restroom that corresponds with their gender identity. Defendants? non? discriminatory policies and practices comport with these preVailing directives and decisions. In Doe Regional School Unit 26, 86 A.3d 600 (Me 2014) (Ex. 3), for example, the Maine Sopreme Court found in favor of a family of a transgender teenager in a discrimination lawsuit against a school district that forced a transgender student to use the staff restroom rather than a facility reserved for pupils. The court ruled that a transgender person has the right to use the restroom of the gender with which they identify. Id. Similarly, just last month, the ACLU ?led a. similar lawsuit on behalf of a transgender male student who was prohibited from using 5 Additionally, a disposition under MCR must be with prejudice. ABB Paint Finishing, Inc Nat? Union ire Ins Co of Pittsburg, 223 Mich App 559 (1997). 11 JIFFE Eu restrooms that did not correspond to his biological gender. GG Gloucester Coumjr School! Board, Case No, 4:15cvri4, Complaint (ED Va 2015) (Compl. Ex. 4.) Subsequently, on June 30, 2015, the Department of Justice ?led a statement in the G.G. Gloucester County School Board lawsuit wherein the supported the student?s position, explaining that transgender students must be allowed to use the restroom that corresponds with their gender identity under Title IXof the United States Education Amendments of 1972. (Statement of Interest of No. 4:15cv54 (ED Va 2015), Ex. 5.) Other administrative agencies have also supported the civil rights of transgender individuals. In April 2015, for example, the EEOC ordered the Department of the Army to pay damages to a transgender employee Whom it barred from a restroom matching her new identity and referred to her by her previous gender. Lusardi McHugh, Appeal No. 0120133395 (April 1, 2015) (EX. 6.) The EEOC held in Lusardi that even though other employees may be afraid or embarrassed to share a restroom with a transgender employee, ?suPervisory or co?worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.? (1d) The EEOC further explained that ?[a]llowing the preferences of tic-Workers to detemiine whether sex discrimination is valid reinforces the very stereotypes and prejudices that Title VII is intended to overcome.? (Id) Similarly, the Occupational Safety and Health Administration has released a guide earlier this year regarding best practices for restroom access for transgender workers, entitled Guide to Restroom Access to Transgender Workers.? OSHA, Best Practices: A Guide to Restroom Access to Transgender Workers (2015) (Ex. 7). In that publication, OSHA recognizes: Gender identity is an intrinsic part of each person?s identity and everyday life. Accordingly, authorities on gender issues counsel that it is essential for employees 12 .IAFFE HAITI I: WEISS. to be able to work in a manner censistent with how they live the rest of their daily lives, based on their gender identity. Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral Or other speci?c restrooms, singles those empIOyees out and may make them fear for their physical safety. Id OSHA states that best practices, then, would be for companies to adopt policies that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identi?es as a man should be permitted to use the men?s restrooms, and a person who identi?es as a woman should be permitted to use women?s restrooms. Id Under these best practices, employees should not be required ?to provide any legal documentatiOn of their gender identity in order to have access to gender appropriate facilities. In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or trans gender status.? Id. A similar recommendatiOn was made by the Department of Labor?s Of?ce of Federal Contract Compliance Programs which announced that it would require federal contractors subject to Executive Order 11246, as amended, which prohibits discrimination based on both sex and gender identity, to allow transgender employees to use the restrooms and other facilities consistent with their gender identity. Discrimination on the Basis ofS'ex, 80 FR 5246- 01 (discriminatory practices would include ?[d]enying transgender employees access to the bathrooms used by the gender with which they identify?) (Ex. 8). In addition to the speci?c issue of restroom use by the transgender community, courts have feund that transgender peeple have the right to be free frOm discrimination, capecially discrimination that is based on gender stereotypes. The Sixth Circuit Court of Appeals, for example, held that an transgender individual had stated a- valid cause of action for sex discrimination, even though the statute does not speci?cally identify such protected class, 13 JAFFE HAITI a: WEISS, P.c. because treating someone differently for failing to conform to how he or she should look and behave based on sex stereotypes is a form of discrimination on the basis of sex. Smith City of Salem, Ohio, 378 F3d 566 (2014). See also Barnes City of Cincinnati, 401 F.3d 729 (CA6 2005) (transgender person can bring a sex stereotyping gender-discrimination claim under Title EEOC RG GR Harris Funeral Homes, Inc, Supp 3d 2015 WL 1808308 (ED Mich Apr. 23, 2015) (?Even though transgenden?transsexual status is currently not a protected class under Title VII, Title VII nevertheless protects transsexual persons from discrimination for failing to act in accordance and/or identity with their perceived sex Or gender.?) PF Midland?s policy of allowing transgender persons to use the restroom facility consistent with their gender identity mirrors the results reached in similar contexts, follows the recommendations of several administrative agencies, and is consistent with the law and the public policies embodied therein. Indeed, if PF Midland?s policy were otherwise?that is, it either considered the transgender person in the instant case to be a masculine woman who did not suf?ciently conform to its expectations of what a woman should look and/ or act like (as does the plainti?? in this case, byalleging that a transgender women was ?large,? and ?tall? and therefore must be a man) (Compl. 11 15), or that PF Midland suspected that she was originally born male and viewed her as a man who violated its expectations of persons born male by identifying as female and therefore required her to use the male restroom/locker room facility?then PF Midland could have found itself subject to a lawsuit by the transgender person for violation of the public accommodation provision of the Michigan ELCRA. See, eg, MCL 37.2302(a) person shall not deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of . . . sex?); See Clark Kmart Cop, 197 Mich App 54], 545, 495 14 .IAFFE HEUER WEISS. 820, 822 (1992) (applying the same tests used under other sections of the ELCPA (such as employment discrimination) to a claim for violation of the public accommodation section of the statute); Briutley St Mary Mercy Hosp, 904 Supp 2d 699, 726 (ED Mich 2012), offer? 545 App?x 484 (CA6 2013) (?same requirements for establishing a claim of discrimination under other sections of ELCRA apply to cases brought under 37.2302? for violation of public accommodation provision); Hughes William Beaumont Hospital, No. 13-cv-13806, 2014 WL 5511507 (ED Mich Oct. 31, 2014) (?nding that transgender plaintiff had stated a cause of action for discrimination under both Title and the Michigan ELCRA, which is applied in the same manner as Title VII, because disparate treatment due to a person?s failure to conform to gender stereotypes is a form of 'sex discrimination) (Ex. 9). PF Midland should not be put in a ?heads i you win, tails I lose? situation. Equally, if not more, important, by adopting a rational, compassionate and no? discriminatory policy that has been approved by numerous courts, acknowledged by administrative agencies, and recommended by governmental bodies, PF Midland cannot, as a matter of law, be found to have violated the Michigan ELCRA or to have engaged in any tortious or wrongful conduct. Indeed, one of the elements of a claim for invasion of privacy based on the ?intrusion to seclusion? is that the individual defendant invaded the plaintiff?s privacy by a method that would be objectionable to a reasonable person. Doe Mills, 2] 2 Mich App 73, 88, 536 824 (1995); Tobin Civil Servic Comm, 416 Mich 661, 672?74 (1982) (action for intrusion into seclusion focuses on the manner in which the information Was obtained). PF Midland?s policy of allowing a transgender person to use the locker room consistent with gender identity cannot be ?objectionable? as a matter of law for purposes of a right to privacy, especially since the comfort of one gender in the presence of another was not suf?cient to ban female 15 JAFFE HEUEH warns. journalists from male locker rooms in the context of professional athletes. See, eg Ludtke Kuhn, 461 Supp 86, 96?98 (SDNY 1978) (holding that female journalists should be given access to male athletic locker rooms). Likewise, a claim for intentional in?iction of emotional distress requires the defendant to have engaged in ?extreme and outrageous conduct? Roberts v. Auto?Ourners Ins. Co, 422 Mich. 594, 602, 374 905 (1985). PP Midland?s policy, which is consistent with law, cannot be deemed to be ?extreme and outrageous,? even if Plaintiff disagrees with the policy. Trudeau Fisher Body Divisi0n, 168 Mich App 14, 19-20 (1988) (?liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized cormminity. See also Cruzan Special School Dist, No I, 294 F3d 981 (8th Cir 2002) (school?s policy of allowing transgender teacher to use the faculty restroom that was associated with the teacher?s gender identity did not create an ?abusive working environment? for plaintiff, who disagreed personally with the transgender woman?s transition). It cannot be said that PF Midland?s policy goes beyond all possible bounds of decency, and is to be regarded as atrocious and utterly intolerable in a civilized society, when courts and the government have already said that transgender individuals should be allowed to use the restroom associated with their gender identity. Aleng these lines, such a policy also cannot constitute a ?reckless disregard? for Plaintiff?s rights for purposes of awarding exemplary damages, Maris Alliane Life Ins Co of North Amer, 34 Supp 3d 754, 760 (WD Mich 2014) (identifying requirements for exemplary damages); or unfair or unconscionable acts sufficient to constitute a violation of the Michigan Consumer Protection Act. MCL 445.903. 16 HEUEH WEISS. Allowing Plaintiff to maintain such causes of action against PF Midland does damage to the predictability of the law, as parties should be able to rely on precedence and law to guide their conduct. For these reasons, the Complaint should be dismissed in its entirety. II. Plaintiff?s Claims for Exemplary and Non-Compensatory Damages are Barred by the Language of the Membership Agreement. In Michigan, parties are free to enter into any contract at their will, provided that the contract does not violate the law or contravene public policy. eldman v. Stein Building Lumber Co, 6 Mich App 180, 184, 148 544 (1967). To that end, courts routinely enforce ?limitation of liability clauses? in contracts, which establishes the maximum liability or exposm'e of one party if there is a claim arising out of the relationship between the parties. See Paterek V. 6600 Ltd, 186 Mich App 445, 465 342 (1990); St Paul Fire Marine Ins Co Guardian Alarm Co, 115 Mich App 273, 320 244 (1932). As set forth in the Statement of Facts, the Membership Agreement between Plaintiff and Defendants contains a limitation of liability clause. It provides that Plaintiff damages are limited to compensatory damages, and that she may not recover indirect, special, incidental er consequential damages. (Membership Agreement Ti 7.) Accordingly, to the extent that Plaintiff seeks damages other than compensatory damages, including but not limited to her claim for exemplary damages that appears in Count they should be stricken and Count should be summarily dismissed. Plaintiff Cannot Maintain a Cause of Action for Breach of Contract Because PF Abided by the Contract. To state a claim for breach of contract under Michigan law, a plaintiff must allege and then must prove (1) the terms of the contract, (2) breach of those terms by the defendant, and (3) injury to the plaintiff resulting from the breach. Geo Fin, LLC Univ Square 2751 No. 13- 17 JJFFE RAITT ?Gain a. WEISS. P.C. 14299, Supp 3d 2015 WL 1637310 at *14 (ED Mich Apr 13, 2015). A party breaches a contract if it fails to perform according to the terms of the contract. See, eg, Hesse ex re! Estate of Hesse Chippewa Valley Sch, No. 209080, 2001 WL 789540 at *5 (Mich Ct App Jan 12, 2001) (absent showing the defendants failed to honor their obligations under the agreement, plaintiffs could not maintain a cause of action for breach of contract). Here, Plaintiff has failed to allege any conduct by Planet Fitness that was inconsistent with the terms of the Membership Agreement. Count VI of Plaintiff?s Complaint for breach of contract rests 0n the following purported breaches: 69. Without any notice to Plaintiff, and without publication in any manner, Defendants instituted a policy which allowed for men to use the women?s facilities at the simultaneously with women. 70. After Mrs. Comier refused to submit to Defendant?s sexual harassment and unreasonable policy, Defendants wrongfully terminated Mrs. Cormier?s membership agreement and breached the contract. (Compl. 695/0.) These contractual claims fail as a matter of law because the allegations of breaches made by Plaintiff are barred by the Membership Agreement?s own terms. The Membership Agreement provides, in two separate locations of the contract, that Planet Fitness can set the rules of the facilities and change them at any time, without notice. I further agree to comply with Planet Fitness? membership policies and club rules that may be communicated to me from time to time either in writing, through club signage or verbally. Planet Fitness may, in its sole discretion, modify the policies and any club rule without notice at any time. [Membership Agreement, Release of Liability/Assumption of Risk, Ex. 2 {emphasis added).) The same language appears in paragraph 4 of the Membership Agreement (Id 11 4 (?Planet Fitness may, in its sole discretion, modify the policies and any club rule without notice at any 18 JAFFE HEUER 8: WEISS, P.G. time") The Membership Agreement further provides, again in two mparate locations, that Planet Fitness has the right to terminate the Membership Agreement at any time. Planet Fitness reserves the right to refund the pro?rated cost of unused services and terminate your membership immediately for violation of any membership policy or club rule (Membership Agreement, Release of Liability/Asstumption of Riskthe Membership Agreement?s own terms, then, Planet Fitness can change the policies Without notice to Plaintiff. Furthermore, the Membership Agreement provides that it has the disoretion to terminate the Membership Agreement. Accordingly, even assuming that the accusations made by Plaintiff in paragraphs 69?70 are true, they cannot constitute a breach of contract because Planet Fitness= actions are consistent with the contract terms. See, eg, Markham 1! Samoa Oil Co, No. 272163, 2008 WL 4149439 at *4 (Mich Ct App Sept 9, 2008 (?plaintiffs failed, as a matter of law, to establish a breach of contract because plaintiffs did not show that defendant failed to abide by the contract terms?). Therefore, Count VI of the Complaint should be summarily dismissed. IV. Plaintiff?s Complaint Fails to State Claims Upon Which Relief Can be Granted. Not only does the law not support Plaintiff?s Complaint in this matter, Plaintiff has failed to state claims upon which relief can be granted. The allegations in the Complaint, even if accepted as true for purposes of this motion, are not suf?cient to constitute legal wrongs. To that end, PF Midland adopts and incorporates by reference the arguments raised by Defendant Pla?Fit Franchise in its Motion to Dismiss the Second Amended Complaint and Brief in Support. 19 JAPPE IAITT :1 Wills. ILC. CONCLUSION For these reasons, and the reasons stated in PlawFit Franchise?s Motion to Dismiss, this Court should grant summary disposition in PF Midland?s favor and dismiss Plaintiff?s Second Amended Complaint in its entirety. submitted: Date: July 30, 2015 By: Brian Witus (P53062) Patrice S. Arend 956962) affe, Raitt, Heuer Weiss, P.C. 27777 Franklin Road, Suite 25 00 South?eld, MI 48034 248?351?3000 248-351-3082 (fax) Email: bwitus@iaffelaw.com Email: Darend@iaffeiaw.com Attorneys for Defendant PF Mess-Midland, LLC 20