Brito v. Big Lots Stores, Inc.
ORDER Denying 9 Defendant's Motion to Dismiss, by Judge Christine M. Arguello on 11/27/2017. (evana, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 17-cv-02052-CMA-KMT
CARLOS G. BRITO,
BIG LOTS STORES, INC., an Ohio Corporation d/b/a Big Lots at Chelton Center,
ORDER DENYING DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on Defendant’s Motion to Dismiss Plaintiff’s
Complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). (Doc. # 9.) For the reasons
discussed herein, the Court denies Defendant’s Motion.
Plaintiff Carlos G. Brito is paraplegic and requires the use of a wheelchair to
ambulate. (Doc. # 1 at ¶ 10.) Defendant Big Lots Stores, Inc. 1 d/b/a Big Lots at Chelton
Center operates a retail business at 1990 S. Academy Blvd., Colorado Springs,
Colorado 80916 (“Premises”). (Doc. # 1 at ¶ 6.) On August 25, 2017, Plaintiff
commenced this suit seeking injunctive relief under Title III of the Americans with
Disabilities Act (“ADA”), after encountering “multiple violations of the ADA that directly
Defendant contends Plaintiff incorrectly identified Defendant as Big Lots Stores, Inc. and
should instead be identified as PNS Stores, Inc. (Doc. # 9 at 1.)
affected his ability to use and enjoy” the Premises “on or about April 25, 2017.” (Doc. #
1 at ¶ 11.) Plaintiff contends he lives near the Premises, has frequented the area for
“pleasure purposes,” and intends to return within three months from the date of filing his
Complaint. (Doc. # 1 at ¶ 12.)
On October 6, 2017, Defendant moved to dismiss pursuant to Fed. R. Civ. P.
12(b)(1) and 12(b)(6). (Doc. # 9.) Defendant argues for dismissal because, he alleges,
Plaintiff failed to exhaust his administrative remedies and lacks standing. The Court
addresses each argument in turn.
ADMINISTRATIVE EXHAUSTION UNDER TITLE III
Defendant argues the Court lacks subject-matter jurisdiction because Plaintiff
failed to exhaust his administrative remedies pursuant to 42 U.S.C. § 12188, which,
Defendant contends, requires Plaintiff to give notice of the alleged violations to the
Colorado Civil Rights Coalition (“CCRC”) thirty days before filing his Complaint.
Plaintiff’s failure to give notice is uncontested.
Title III of the ADA provides that “[t]he remedies and procedures set forth in
section 2000a-3(a) of this title are the remedies and procedures this subchapter
provides to any person who is being subjected to discrimination on the basis of
disability.” 42 U.S.C. § 12188(a)(1). In turn, 42 U.S.C. § 2000a-3(a) provides that an
aggrieved individual may bring “a civil action for preventive relief, including an
application for a permanent or temporary injunction, restraining order, or other order.”
§ 2000a-(3)(a). Defendant proposes that, although not expressly referenced in
§ 12188(a)(1), Title III plaintiffs are also subject to the notice requirement in § 2000a3(c), which provides:
[N]o civil action may be brought under subsection (a) of [§ 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
42 U.S.C. § 2000a-3(c).
Courts are split on whether § 2880a-3(c) is incorporated into Title III by way of
§ 12188(a)(1), i.e. whether notice is required before filing suit under Title III. Some
courts have held that pre-suit notice is not required. See, e.g., Botosan v. Paul McNally
Realty, 216 F.3d 827 (9th Cir. 2000); Iverson v. Comsage, Inc., 132 F. Supp. 2d 52 (D.
Mass. 2001); Disabled in Action of Metro. New York v. Trump Int’l Hotel & Tower, No.
01-cv-5518, 2003 WL 1751785 (S.D.N.Y. Apr. 2, 2003); Love v. Omni Netherland Plaza
Hotel, No. 1-00-700, 2001 WL 1842450 (S.D. Ohio May 10, 2001); Zimmerman v. GJS
Grp., Inc., No. 2-17-cv-00304, 2017 WL 4560136 (D. Nev. Oct. 11, 2017). Other courts
have held otherwise—that pre-suit notice is required under Title III. See, e.g., Spicer v.
Auraria Campus Bookstore, No. 12-cv-00245, 2012 U.S. Dist. LEXIS 28295, at *4 (D.
Colo. Mar. 5, 2012); Tanner v. Wal-Mart Stores, Inc., No. 99-44-JD, 2000 WL 620425
(D.N.H. Feb. 8, 2000); Snyder v. San Diego Flowers, 21 F. Supp. 2d 1207, 1208-11
(S.D. Cal. 1998); Mayes v. Allison, 983 F. Supp. 923, 924-25 (D. Nev. 1997). Indeed,
courts in this District are divided. Compare Howard v. Cherry Hills Cutters, Inc., 935 F.
Supp. 1148, 1150 (D. Colo. 1996) (Howard I) (notice required under Title III); Howard v.
Cherry Hills Cutters, Incorporated, 979 F. Supp 1307, 1308-09 (D. Colo. 1997) (Howard
II) (affirming Howard I); Lillard v. Sunflower Farmers Mkt., Inc., No. 12-cv-1497-JLK,
2012 WL 5936543 (D. Colo. Nov. 27, 2012) (notice required under Title III); Jones v.
Reg’l Transp. Dist., No. 10-cv-01535-JLK, 2010 WL 3341205 (D. Colo. Aug. 23, 2010)
(same) with Mize v. Kai, Inc., No. 17-cv-00915-NYW, 2017 WL 5195203 (D. Colo. Nov.
9, 2017) (notice not required); Abreu v. Tavin Food, Inc., No. 16-cv-00432-MEH (D.
Colo. Nov. 14, 2016) (same); Frederick v. Coffee House Holdings, Inc., No. 17-cv00409-MEH, 2017 U.S. Dist. LEXIS 75857, at 13 (D. Colo. May 11, 2017) (same). The
Tenth Circuit has not yet addressed the issue. 2
In support of its argument that notice is required, Defendant relies on a series of
cases decided by the Honorable John L. Kane. First, in Howard I, Senior Judge Kane
held, “By making § 2000a-3 applicable to enforcement actions under 42 U.S.C. §
12188, Congress has imposed a state law exhaustion requirement on disabled
individuals seeking to enforce their rights under Subchapter III of the ADA.” 935 F.
Supp. at 1150. Judge Kane affirmed this holding in Howard II, and further explained his
reasoning in Lillard, 2012 WL 5936543, wherein he concluded that the plain language of
42 U.S.C. § 12188 compels this construction. He explained:
42 U.S.C. § 12188(a)(1) states, ‘the remedies and
procedures set forth in . . . 42 U.S.C. 2000a-3(a) are the
remedies and procedures of this title.’ (emphasis added).
Section 2000a-3(a) sets forth the remedies and authorizes
aggrieved parties to commence a civil action for injunctive
The Tenth Circuit has, however, concluded that Title II of the ADA lacks any requirement that a
plaintiff exhaust her Equal Employment Opportunity Commission (EEOC) administrative
remedies before bringing suit. Elwell v. Oklahoma ex rel. Bd. of Regents of Univ. of Oklahoma,
693 F.3d 1303, 1309 (10th Cir. 2012); accord Thomas v. The Salvation Army S. Territory, 841
F.3d 632, 638 (4th Cir. 2016) (holding the EEOC exhaustion requirement under Title I does not
apply to Titles II and III).
relief. Section 2000a-3(c) sets forth the procedure for
commencing a civil action and imposes a pre-suit notice
requirement on claims for relief under § 2000a-3.
If Congress intended only to incorporate the . . . remedies,
and not the procedures, it would have excluded the word
‘procedures’ from 42 U.S.C. § 12188(a)(1). Accordingly,
§2000a-3(a) is, in turn, limited by the notification requirement
of § 2000a-3(c). . . .
Lillard, 2012 WL 5936543, at *1.
More recently, in Mize, 2017 WL 5195203, United States Magistrate Judge Nina
Y. Wang respectfully disagreed with Judge Kane’s statutory interpretation of 42 U.S.C.
§ 12188(a)(1). Turning again to the plain language of the statute and endeavoring to
enforce it as written, Magistrate Judge Wang concluded:
§ 12188(a)(1) is clear and unambiguous—it incorporates
only § 2000a-3(a), not the entirety of § 2000a-3. . . . Indeed,
there is no mention of § 2000a-3(c) in § 12188(a)(1), and
there is no basis in the legislative history or otherwise to
implicitly incorporate § 2000a-3(c). Botosan, 216 F.3d at
832 (“[T]he statute’s legislative history, the Code of Federal
Regulations, . . . and the Department of Justice’s Technical
Assistance Manual generally support the conclusion that
Title III actions do not require state notification.”).
2017 WL 5195203. Several other courts in this District have reached this same
conclusion, likewise reasoning that, because § 12188(a)(1) does not, by its express
terms, incorporate the administrative procedures set forth in § 2000a-3(c), those
remedies are not required under Title III. See, e.g., Colo. Cross Disability Coal. V.
Hermanson Family Ltd. P’ship I, 1997 WL 33471624, at *2–6 (D. Colo. Mar 3, 1997)
(“[T]he ADA does not, by its express terms, incorporate the portions of the Civil Rights
Act of 1964 that require exhaustion of administrative remedies.”); Frederick, 2017 U.S.
Dist. LEXIS 75857 at *13 (holding that “a Title III disability claimant need not exhaust
administrative remedies before filing a lawsuit.”).
Having thoroughly considered the issue, the Court agrees with the line of cases
concluding that Title III does not require administrative exhaustion. This interpretation is
consistent with the prominent cannon of statutory construction expression unius est
exclusion alterius—to express or include one thing implies the exclusion of the other, or
the alternative.” Youren v. Tintic Sch. Dist., 343 F.3d 1296, 1308 (10th Cir. 2003).
Indeed, to hold that the entirety of § 2000a-3 is adopted by § 12188(a)(1), even though
it makes express reference only to § 2000a-3(a), would impermissibly render
superfluous that explicit textual reference. See Freytag v. Commissioner of Internal
Revenue, 501 U.S. 868, 877 (1991) (The court must avoid, “whenever possible, a
statutory interpretation that would “render superfluous other provisions in the same
Accordingly, the Court concludes that the exhaustion requirement set forth in
§ 2000a-3(c) does not apply to claims brought under § 12188(a)(1) of Title III. The
Court therefore denies Defendant’s request to dismiss Plaintiff’s claim for lack of
Turning to standing, the Court finds unpersuasive Defendant’s argument that
Plaintiff has failed to adequately plead an injury-in-fact and that his complaint must,
therefore, be dismissed.
Motions to dismiss for lack of standing pursuant to Rule 12(b)(1) can come in the
form of either a facial attack to the allegations of the complaint or a factual attack. See
Cunningham v. Univ. of N.M. Bd. of Regents, 531 Fed. Appx. 909, 914 (10th Cir. 2013).
With a facial attack, as here, courts consider only the factual allegations of the
complaint, accepting them as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir.
1995). Further, standing must be analyzed from the facts as they existed at the time the
complaint was filed. See Friends of the Earth, 528 U.S. at 184. Where the district court
dismisses an action for lack of jurisdiction, the dismissal must be without prejudice.
Martinez v. Richardson, 472 F.2d 1121, 1126 (10th Cir.1973) (“It is fundamental . . . that
a dismissal for lack of jurisdiction is not an adjudication of the merits and therefore . . .
must be without prejudice.”).
Article III of the United States Constitution restricts the federal courts to the
adjudication of “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1; Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 102 (1998). The standing inquiry ensures that a
plaintiff has a sufficient personal stake in the dispute to ensure the existence of a live
case or controversy that renders judicial resolution appropriate. See Allen v. Wright,
468 U.S. 737, 750–51 (1984).
To establish Article III standing, a plaintiff must show that: (1) he has suffered an
“injury in fact”; (2) the injury is fairly traceable to the challenged action of the defendant;
and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by
the relief requested. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 180 (2000). For the purposes of this motion to dismiss, Defendant contends only
that Plaintiff cannot satisfy the first element of standing—injury in fact. To establish the
“injury in fact” element, a plaintiff seeking prospective relief (as opposed to retrospective
relief) is required to show an injury that is (a) concrete and particularized and (b) actual
or imminent, not conjectural or hypothetical. Tandy v. City of Wichita, 380 F.3d 1277,
1283 (10th Cir. 2004). The plaintiff must be suffering a continuing injury or be under a
real and immediate threat of being injured in the future. City of Los Angeles v. Lyons,
461 U.S. 95, 101–02, 107 n. 8. The threatened injury must be “certainly impending” and
not merely speculative. See Tandy, 380 F.3d at 1283. A claimed injury that is
contingent upon speculation or conjecture is beyond the bounds of a federal court’s
jurisdiction. See Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).
Injury-in-fact here depends on Plaintiff establishing a likelihood that he will return
to Defendant’s Premises. 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. See, e.g.,
Disabled Patrons of Am. v City of Trenton, No. 073165, 2008 WL 4416459 (D.N.J. Sept.
24, 2008); Kramer v. Midamco, 656 F. Supp. 2d. 740, 748 (N.D. Ohio 2009); D’Lil v.
Stardust Vacation Club, No. S-00-1496, 2001 WL 1825832, at *3 (E.D. Cal. Dec. 21,
2001); Harty v. 42 Hotel Raleigh, LLC, No. 5:10-cv-60, 2011 WL 1252877, at *3
(E.D.N.C. Mar. 30, 2011); Brooke v. Choice Hotels Int’l, Inc., No. 3:16-cv-00310, 2016
WL 2594070, at *3 (S.D. Cal. May 5, 2016); Walker v. Asmar Ctr., LLC, No. 11-11745,
2011 WL 5822394, at *3 (E.D. Mich. Nov. 15, 2011); Flaum v. Colonial Williamsburg
Found., No. 4:12cv111, 2012 WL 5879128, at *3 (E.D. Va. Nov. 21, 2012).
At this stage in the proceedings, all four factors weigh in Plaintiff’s favor. With
respect to the first factor, Plaintiff alleges that he is “domiciled in the same county as the
Premises.” (Doc. # 1 at ¶ 12.) Accepting this allegation as true, Plaintiff’s domicile is
certainly proximate to the premises. Moving to the second factorPlaintiff’s past
patronagePlaintiff alleges he “has frequented the [Premises and the shopping center
of the Premises] for pleasure purposes.” Plaintiff specifically states he “visited [the
Premises] on or about April 25, 2017” and encountered many barriers to access. (Doc.
# 1 at ¶¶ 11, 12) These allegations, taken as true, are sufficiently concrete to support a
With respect to the third elementhis plans to returnPlaintiff alleges an
intention “to return to the property within 3 months from filing [his] Complaint” and
“desires to visit the property soon.” (Doc. # 1 at ¶¶ 12, 17.) These statements setting
forth a specific timeframe suggest an actual and present plan to return to the premises.
Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th
Cir. 2014) (statements that Plaintiff “intend[s] to . . . return” and that she “will likely be
going . . . at least six times per year” were sufficiently concrete). Moreover, Plaintiff’s
assertions are not rendered implausible by the distance between the premises and her
home. See id. (considering the distance between plaintiff’s residence and defendant’s
business when assessing the concreteness of her plans to return). Finally, the last
factor weighs slightly in Plaintiff’s favor; he states that he “has frequented the area . . .
for pleasure purposes.” This statement, which the Court must accept as true, is
sufficient to defeat dismissal under Rule 12(b)(6).
The standing requirement is designed to guarantee that plaintiffs have a
sufficient personal stake in the outcome of a dispute to render judicial resolution of the
dispute appropriate. Based on the above factors, the Court has concludes that, at this
early stage in the proceedings, Plaintiff has presented a sufficient personal stake in the
outcome of this case to make judicial dismissal of his Complaint inappropriate.
Based on the foregoing, the Court DENIES Defendant’s Motion to Dismiss.
(Doc. # 9.)
DATED: November 27, 2017
BY THE COURT:
CHRISTINE M. ARGUELLO
United States District Judge
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