Brito v. DHCS Associates, LLC et al
Filing
34
ORDER denying 19 Motion to Dismiss by Magistrate Judge Scott T. Varholak on 12/15/2017. (jgonz, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01651-STV
CARLOS G. BRITO, individually,
Plaintiff,
v.
DHCS ASSOCIATES, LLC, a Foreign Limited Liability Company,
Defendant.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on Defendant’s Motion to Dismiss Pursuant
to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (the “Motion”) [#19]. The Motion is before the
Court on the Parties’ consent to have a United States magistrate judge conduct all
proceedings in this action and to order the entry of a final judgment. [#17, 18] This
Court has carefully considered the Motion and related briefing, the case file and the
applicable case law, and has determined that oral argument would not materially assist
in the disposition of the Motion. For the following reasons, I DENY the Motion.
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I.
FACTUAL BACKGROUND 1
Plaintiff Carlos Brito is paralyzed from his T-6 vertebrae down requiring him to
use a wheelchair to ambulate. [#1 at ¶ 5] Defendant DHCS Associates, LLC is the
owner, lessor and operator of a hotel located at 1775 East Cheyenne Mountain
Boulevard in Colorado Springs, Colorado (the “Premises”). [Id. at ¶¶ 7, 10] In May
2017, Plaintiff visited the Premises for the purpose of staying at the hotel and
encountered architectural barriers to access. [Id. at ¶ 15] Specifically, “Plaintiff was not
able to access, among other things, parking, entrance, path of travel, goods and
services, common area restrooms, [and] guestroom, at the [] Premises without
encountering architectural barriers.” [Id. at ¶ 17] The Complaint alleges that Plaintiff
intends to return to the Premises once the barriers are removed, but that Plaintiff is
currently deterred from returning due to the barriers. [Id. at ¶ 18]
On July 7, 2017, Plaintiff brought the instant action alleging that Defendant has
violated the Americans with Disabilities Act (“ADA”). [#1] The Complaint sets forth 18
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The facts are drawn from the allegations in Plaintiff’s Complaint [#1]. Because
Defendant is making a facial attack to Plaintiff’s standing, the Court must accept these
allegations as true for purposes of Defendant’s Rule 12(b)(1) and 12(b)(6) challenges to
Plaintiff’s Complaint. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995)
(holding that, “[i]n reviewing a facial attack on the complaint [under Rule 12(b)(1)], a
district court must accept the allegations in the complaint as true”); Casanova v. Ulibarri,
595 F.3d 1120, 1124 (10th Cir. 2010) (stating that, under Rule 12(b)(6), court must
“accept as true all well-pleaded factual allegations”).
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specific barriers that Plaintiff alleges violate Title III of the ADA. 2 [Id. at ¶ 25] The
Complaint asserts a single claim for injunctive relief. 3 [Id. at ¶¶31-37]
On September 8, 2017, Defendant filed the instant Motion seeking dismissal of
Plaintiff’s Complaint.
[#19]
Defendant argues that Plaintiff failed to exhaust his
administrative remedies and lacks standing.
[Id.]
On October 13, 2017, Plaintiff
responded to the Motion [#29], and Defendant filed a reply in support of the Motion on
October 27, 2017 [#32].
II.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(1) empowers a court to dismiss a
complaint for “lack of subject-matter jurisdiction.” Dismissal under Rule 12(b)(1) is not a
judgment on the merits of a plaintiff’s case, but only a determination that the court lacks
authority to adjudicate the matter. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir.
1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise
jurisdiction when specifically authorized to do so). A court lacking jurisdiction “must
dismiss the cause at any stage of the proceedings in which it becomes apparent that
jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint
for “failure to state a claim upon which relief can be granted.” In deciding a motion
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Title III of the ADA states: “No individual shall be discriminated against on the basis of
disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person
who owns, leases (or leases to), or operates a place of public accommodation.” 42
U.S.C. § 12182(a).
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Title III of the ADA “provides for only injunctive relief and not compensatory damages.”
Rhodes v. S. Nazarene Univ., 554 F. App'x 685, 690 (10th Cir. 2014).
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under Rule 12(b)(6), the court must “accept as true all well-pleaded factual
allegations . . . and view these allegations in the light most favorable to the plaintiff.”
Casanova, 595 F.3d at 1124 (alteration in original) (quoting Smith v. United States, 561
F.3d 1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels
or conclusions, “and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The ultimate duty of the
court is to “determine whether the complaint sufficiently alleges facts supporting all the
elements necessary to establish an entitlement to relief under the legal theory
proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).
III.
ANALYSIS
Defendant makes two arguments in support of its Motion.
First, Defendant
argues that Plaintiff failed to exhaust his administrative remedies. [#19 at 4-6] Second,
Defendant argues that Plaintiff lacks standing. [Id. at 6-11] The Court addresses each
argument in turn.
A. Administrative Exhaustion Under Title III of the ADA
It is undisputed that Plaintiff made no attempt to exhaust administrative remedies
prior to filing the instant lawsuit. The parties dispute, however, whether Title III of the
ADA includes an exhaustion requirement.
Title III of the ADA provides that “[t]he remedies and procedures set forth in
section 2000a-3(a) of [Title II of the Civil Rights Act of 1964] are the remedies and
procedures this subchapter provides to any person who is being subjected to
discrimination on the basis of disability in violation of [Title III of the ADA].” 42 U.S.C. §
12188(a)(1). Section 2000a-3(a), in turn, provides that an aggrieved individual may
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bring “a civil action for preventive relief, including an application for a permanent or
temporary injunction, restraining order, or other order.” 42 U.S.C. § 2000a-3(a).
Although Section 2000a-3(a) does not contain an explicit notice provision,
Defendant argues that a separate notice provision contained in Title II of the Civil Rights
Act is incorporated into Title III of the ADA. Specifically, Section 2000a-3(c) provides:
[N]o civil action may be brought under subsection (a) of [Section 2000a-3]
before the expiration of thirty days after written notice of such alleged act
or practice has been given to the appropriate State or local authority by
registered mail or in person, provided that the court may stay proceedings
in such civil action pending the termination of state or local enforcement
proceedings.
Defendant argues that by making Section 2000a-3(a) applicable to enforcement actions
under Title III of the ADA, Congress intended to also incorporate the notice provisions of
Section 2000a-3(c).
Courts in this District (and beyond) are split on this issue. Compare Brito v. Big
Lots Stores, Inc., No. 17-cv-02052-CMA-KMT, 2017 WL 5665057, at *2 (D. Colo. Nov.
27, 2017) (holding that no pre-suit notice is required for claims under Title III of the
ADA); Mize v. Kai, Inc., No. 17-cv-00915-NYW, 2017 WL 5195203, at *6 (D. Colo. Nov.
9, 2017) (same); Abreu v. Tavin Food, Inc., No. 16-cv-00432-MEH, 2016 U.S. Dist.
LEXIS 191862, at *15 (D. Colo. Nov. 14, 2016) (same); Tanner v. Wal-Mart Stores, Inc.,
No. 99-44-JD, 2000 WL 620425 (D.N.H. Feb. 8, 2000) (same) with Lillard v. Sunflower
Farmers Mkt., Inc., No. 12-CV-1497-JLK, 2012 WL 5936543, at *2 (D. Colo. Nov. 27,
2012) (holding that pre-suit notice is required under Title III of the ADA); Howard v.
Cherry Hills Cutters, Inc., 979 F. Supp. 1307, 1308-09 (D. Colo. 1997) (same). The
Tenth Circuit has not yet addressed this issue, but every other Circuit to consider the
issue has found that the notice provision is inapplicable to claims brought pursuant to
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Title III of the ADA. See Burkhart v. Widener Univ., Inc., 70 F. App'x 52, 54 (3d Cir.
2003) (holding that Title III of the ADA does not require exhaustion of state remedies);
Botosan v. Paul McNally Realty, 216 F.3d 827 (9th Cir. 2000) (same); see also Ass'n of
Disabled Ams. v. Neptune Designs, Inc., 469 F.3d 1357, 1360 (11th Cir. 2006) (“A
person may file a suit seeking relief under the ADA without ever notifying the defendant
of his intent to do so, and the district court may not dismiss the suit for lack of pre-suit
notice.”).
This Court agrees with the line of cases concluding that Section 12188(a)(1)
does not require administrative exhaustion. The Court finds that the plain language of
the statute mandates this conclusion. Section 12188(a)(1) incorporates only Section
2000a-3(a), not the entirety of Section 2000a-3.
As United States District Judge
Christine M. Arguello recently concluded, “to hold that the entirety of § 2000a-3 is
adopted by § 12188(a)(1), even though it makes express reference only to § 2000a3(a), would impermissibly render superfluous that explicit textual reference.” 4 Brito,
2017 WL 5665057, at *2.
Accordingly, the Court concludes that the exhaustion
requirement set forth in Section 2000a-3(c) does not apply to claims brought under
Section 12188(a)(1) of Title III of the ADA. The Court therefore DENIES Defendant’s
Motion to the extent it seeks dismissal based upon Plaintiff’s failure to exhaust
administrative remedies.
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Moreover, as Magistrate Judge Nina Y. Wang concluded, “there is no basis in the
legislative history or otherwise to implicitly incorporate § 2000a-3(c).” Mize, 2017 WL
5195203, at *6.
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B. Standing
Defendant makes two arguments against Plaintiff’s standing to bring this action.
First, Defendant argues that Plaintiff has failed to establish a past injury that is concrete
and particularized. [#19 at 8-10] Second, Defendant argues that Plaintiff has failed to
establish a certainly impending threatened injury. [Id. at 10-11] The Court addresses
each argument below.
“Article III of the Constitution confines the judicial power of federal courts to
deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 133 S. Ct. 2652,
2661 (2013) (quoting U.S. CONST. art. III, § 2). “Plaintiffs must demonstrate a personal
stake in the outcome in order to assure that concrete adverseness which sharpens the
presentation of issues necessary for the proper resolution of constitutional questions.”
City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983) (quotations omitted). “Plaintiffs
must show they have sustained or are immediately in danger of sustaining some direct
injury, and the injury or threat of injury must be real and immediate, not conjectural or
hypothetical.” Faustin v. City & Cty. of Denver, 268 F.3d 942, 947 (10th Cir. 2001). As
a result, “[t]o establish standing, plaintiffs must show injury in fact, a causal relationship
between the injury and the challenged action of the defendant, and a likelihood that the
injury will be redressed by a favorable decision.” Id.
Here, Defendant challenges only the injury-in-fact requirement. [#19 at 8 n.1]
“To establish injury in fact, a plaintiff must show that he or she suffered an invasion of a
legally protected interest that is concrete and particularized and actual or imminent, not
conjectural or hypothetical.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016)
(internal quotations omitted). Because Plaintiff is seeking prospective relief, the injury-
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in-fact requirement is only satisfied if Plaintiff is “suffering a continuing injury or [is]
under a real and immediate threat of being injured in the future.” Tandy v. City of
Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004). “The threatened injury must be ‘certainly
impending’ and not merely speculative.” Id.
Initially, Defendant argues that Plaintiff “only alleged that he visited the Premises
sometime in the month of May 2017 [and] [n]o evidence was provided with the filing to
support Plaintiff’s assertion that he actually stayed at the Premises.” [#19 at 9 (citation
omitted)] Because “[p]ast wrongs are evidence bearing on whether there is a real and
immediate threat of repeated injury,” Tandy, 380 F.3d at 1283, the Court may consider
whether Plaintiff adequately alleged injury with respect to his May 2017 visit. The Court
concludes that Plaintiff has adequately alleged a prior injury.
The Complaint alleges that Plaintiff had intended to stay at the hotel but was not
able to access various aspects of the hotel without encountering architectural barriers.
[#1 at ¶¶ 15, 17] Plaintiff then describes those barriers in detail, including: (1) lack of
accessible parking spaces for Plaintiff to safely unload from a vehicle, (2) curb ramps
with excessive slopes that place Plaintiff in danger, (3) recreation areas that fail to
provide access to the patio, tables and emergency devices, (4) restroom doors that lack
required maneuvering space, thereby preventing Plaintiff from exiting the restroom
without assistance, and (5) lack of maneuvering space in the guestroom, thereby
preventing Plaintiff from exiting the guestroom or entering the guestroom’s bathroom.
[Id. at ¶ 25] Certainly, Plaintiff’s inability to access aspects of the Premises, thereby
effectively preventing Plaintiff from staying at the Premises, constitutes a past injury that
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is concrete and particularized. 5 See, e.g., Hamer v. City of Trinidad, No. 16-cv-02545NYW, 2017 WL 5969815, at *5 (D. Colo. Dec. 1, 2017) (finding that plaintiff suffered
concrete and particularized injury in the past where record indicated that he suffered
inaccessible sidewalks and curbs); Colorado Cross-Disability Coal. v. Abercrombie &
Fitch Co., No. 09-cv-02757-WYD-KMT, 2012 WL 1378531, at * 5 (finding that plaintiffs
suffered real and concrete injury-in-fact when they were unable to access store due to
store’s elevated entrances).
Defendant also challenges whether Plaintiff has sufficiently alleged that the future
injury is “certainly impending.” [#19 at 10] Specifically, Defendant argues that Plaintiff
has failed to “show a concrete, present plan to return” to the Premises. [Id.] According
to Defendant, Plaintiff has alleged nothing more than “speculative ‘someday’ intentions”
to return to the Premises and these speculative intentions are insufficient to establish
standing. [Id. (quoting Tandy, 380 F.3d at 1284 (“Speculative, ‘someday’ intentions do
not support standing to seek prospective relief.”).]
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Defendant also complains that Plaintiff’s Complaint fails to provide the “exact date” in
May on which Plaintiff visited the Premises and fails to provide evidence “to support
Plaintiff’s assertion that he actually stayed at the Premises.” [#19 at 9] Defendant
provides no authority supporting the contention that Plaintiff must include the exact date
on which he visited the premises to validly assert an ADA claim and, notably, does not
contend that this omission prevents Defendant from responding to the allegations in the
Complaint. See Barfield v. Commerce Bank, N.A., 484 F.3d 1276, 1281 (10th Cir.
2007) (finding that notice pleading does not require plaintiff “to set out in detail all facts
upon which he bases his claim” but rather requires only “enough specificity for the
defendant to be able to respond to the allegations” (internal quotation omitted));
Raetano v. Sardo's Pizza, Inc., No. 8:09-CV-01569-T30EAJ, 2010 WL 326167, at *2
(M.D. Fla. Jan. 21, 2010) (finding that “neither the statute nor a survey of the case law
revealed an explicit requirement that a specific date be alleged as part of a claim under
Title III of the ADA”). Nor, at this stage of the proceedings, was Plaintiff required to
submit evidence to support the allegations in the Complaint. See supra note 1.
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As Judge Arguello recently summarized:
Courts consider the following factors in determining whether an ADA
plaintiff’s likelihood of returning to a defendant’s business is sufficient to
confer standing: (1) the proximity of defendant’s business to plaintiff’s
residence, (2) the plaintiff’s past patronage of defendant’s business, (3)
the definitiveness of plaintiff’s plans to return, and (4) the plaintiff’s
frequency of travel near defendant.
Brito, 2017 WL 5665057, at *3. 6 Here, at this stage of the proceedings, each of these
four factors weighs in favor of standing.
The Complaint alleges that Plaintiff is a
resident of the county in which the Premises are located [# 1 at ¶¶ 3, 7-8], thereby
placing him in close proximity to Defendant’s business. Second, Plaintiff alleges that he
has previously visited the Premises and would have stayed at the hotel but for the
architectural barriers.
[Id. at ¶¶ 15, 17; #29 at 14]
As indicated above, Plaintiff’s
allegations of a “[p]ast wrong[] [is] evidence bearing on whether there is a real and
immediate threat of repeated injury.” Tandy, 380 F.3d at 1283. Third, Plaintiff states
that he intends to return to the Premises to stay at the hotel, but that he cannot provide
an exact date for this return, because he “is currently deterred from returning as a result
of the barriers to access present at the [] Premises.” [Id. at ¶¶ 18, 22] Finally, Plaintiff’s
residency within the same county as the Premises at least plausibly suggests, at this
stage of the proceedings, that he likely frequently travels near the Premises. Thus,
based on the allegations in the Complaint, which at this stage the Court must accept as
true, the Court finds that Plaintiff has pled an injury-in-fact sufficient to establish
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Some of these factors may be less applicable to a hotel. For example, proximity to a
hotel may be less relevant as an individual may be more willing to stay at a hotel not
located near the individual’s residence. On the other hand, an individual living near the
hotel may be more likely to utilize other hotel services—such as the hotel store or
restaurant—then somebody not living in close proximity to the hotel. In any event, as
detailed below, the Court finds that Plaintiff has sufficiently alleged a certainly
impending intent to return to the facility if the barriers are removed.
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standing. See Civil Rights Educ. & Enf’t Ctr. v. Sage Hosp. Res. LLC, 222 F. Supp.3d
934, 955 (D. Colo. 2016) (plaintiff’s “allegation that she intends to call several times per
year to see whether the hotels can accommodate her” sufficient to show prospective
standing).
The Court therefore DENIES Defendant’s Motion to the extent it seeks
dismissal based upon Plaintiff’s standing to pursue his ADA claim.
IV.
CONCLUSION
For the foregoing reasons, the Court DENIES Defendant’s Motion to Dismiss
[#19].
DATED: December 15, 2017
BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge
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