Brito v. Holland & Williams Real Estate, LLC et al

Filing 40

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 6/28/2018. This court respectfully RECOMMENDS that Defendants' Motion to Dismiss 10 be DENIED. IT IS FURTHER ORDERED that Defendants' Motion to Stay 38 is DENIED. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 18-cv-00363-RM-NYW
CARLOS BRITO,
Plaintiff,
v.
HOLLAND & WILLIAMS REAL ESTATE, LLC, and
WENDY’S OF COLORADO SPRINGS, INC.,
Defendants.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Magistrate Judge Nina Y. Wang
This matter comes before the court on Defendants Holland & Williams Real Estate, LLC
and Wendy’s of Colorado Springs, Inc.’s (collectively, “Defendants”) Motion to Dismiss
Plaintiff’s Claims (“Motion to Dismiss”) [#10, filed March 19, 2018] and Motion to Stay
Discovery (“Motion to Stay”) [#38, filed June 15, 2018]. The undersigned Magistrate Judge
considers the Motions pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil
Procedure, and the Memoranda dated April 6, 2018 [#23] and June 15, 2018 [#39]. This court
concludes that oral argument will not materially assist in the resolution of this matter. Upon
careful review of the Motions and related briefing, the applicable case law, and the entire docket,
I respectfully RECOMMEND that the Motion to Dismiss be DENIED, and it is ORDERED that
the Motion to Stay is DENIED.
BACKGROUND
The court draws the following facts from Plaintiff’s Complaint [#1] and Amended
Complaint [#37] and takes them as true for the purposes of this Recommendation. Plaintiff

Carlos Brito (“Plaintiff” or “Mr. Brito”) is a “disabled individual who has a physical impairment
that substantially limits one or more major life activities[,]” requiring him to “use a wheelchair to
ambulate” as he cannot do so without one. See [#1 at ¶¶ 3–4]. He brings this action pursuant to
Title III of the Americans with Disabilities Act (“ADA” or “Act”), 42 U.S.C. § 12181 et seq.,
against Defendants as the owners, lessors, or operators of the real property and Wendy’s
Restaurant located at 2515 W. Montebello Drive, Colorado Springs, Colorado 80918—a place of
public accommodation (“PPA”) under the Act. See [#37 at ¶¶ 1, 6–9]. He identifies himself as a
“tester” for the purposes of discovering, encountering, and engaging discrimination against the
disabled in public accommodations. [Id. at ¶ 15].
Plaintiff alleges that he visited Defendants’ PPA on or about June 15, 2017, and
personally encountered several architectural barriers that mired his access to the premises. See
[id. at ¶¶ 14, 16].

These included noncompliant handicap accessible parking spaces;

noncompliant and obstructed entry ways and paths of travel; noncompliant and obstructed access
to dinning; and noncompliant restrooms. See [id. at ¶¶ 24–25]. Thus, he was unable to fully and
equally enjoy the goods and services of Defendants’ PPA and, because the architectural barriers
remain, he is deterred from returning despite his desire to do so in the future. See [id. at ¶¶ 17,
23, 27].
On March 19, 2018, Defendants’ moved to dismiss Plaintiff’s Complaint pursuant to
Rule 12(b)(1), arguing that the court lacks subject matter jurisdiction because Mr. Brito does not
have standing to sue. See [#10]. Plaintiff has since filed a Response [#15] and Defendants a
Reply [#24]. Since then, Plaintiff moved to amend his Complaint so as to remove Defendant
Holland Buerk Enterprises, Inc. a/k/a Wendy’s #4941 and to name Wendy’s of Colorado
Springs, Inc. as the true owner, lessor, or operator of the Wendy’s Restaurant that is the subject

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of this suit. See [#34]. Because amendment was unopposed, the court ordered, and Plaintiff
filed, his Amended Complaint on May 8, 2018 [#36; #37], the operative pleading in this matter.
This court noted that the Amended Complaint did not appear to moot the pending Motion to
Dismiss, and informed the Parties that it would consider the Motion to Dismiss as directed to the
Amended Complaint [#36]; neither Party objected to this determination.
Defendants then filed the instant Motion to Stay on June 15, 2018. [#38]. Though
acknowledging that this case has proceeded with discovery since the filing of the Motion to
Dismiss, Defendants now request that this court stay discovery until there is a ruling on the
Motion to Dismiss to avoid needless discovery. Plaintiff has yet to respond, but given this
court’s Recommendation on the Motion to Dismiss, ruling on the Motion to Stay is appropriate
at this time. See D.C.COLO.LCivR 7.1(d). I consider both Motions in turn.
ANALYSIS
I.

Defendant’s Motion to Dismiss
A.

Legal Standard

Federal courts are courts of limited jurisdiction and, as such, “are duty bound to examine
facts and law in every lawsuit before them to ensure that they possess subject matter
jurisdiction.” The Wilderness Soc. v. Kane Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring); accord 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d
1044, 1048 (10th Cir. 2006) (noting that courts have an independent obligation to satisfy
themselves that subject matter jurisdiction exists, even in the absence of a challenge by either
party). Under Article III of the United States Constitution, federal courts have jurisdiction to
hear only certain “cases” and “controversies.” Susan B. Anthony List v. Driehaus, 134 S. Ct.
2334, 2341 (2014). To satisfy Article III’s case or controversy requirement, Plaintiffs must

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establish: (1) an injury in fact; (2) a sufficient causal connection between the injury and the
conduct complained of; and (3) a likelihood of redressability by a favorable decision. New
Mexico v. Dep’t of Interior, 854 F.3d 1207, 1214–15 (10th Cir. 2017). Indeed, standing cannot
be assumed “in order to proceed to the merits of the underlying claim, regardless of the claim’s
significance.” Colo. Outfitters Ass’n v. Hickenlooper, 823 F.3d 537, 543 (10th Cir. 2016).
Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may either
facially or factually attack the court’s subject matter jurisdiction. See generally Pueblo of Jemez
v. United States, 790 F.3d 1143, 1147 n.4 (10th Cir. 2015). When, as here, a party levies a facial
attack the court presumes the truthfulness of the facts alleged in the complaint. Holt v. United
States, 46 F.3d 1000, 1002–03 (10th Cir. 1995).

In doing so, the court applies the same

standards as Rule 12(b)(6) in that the court must accept well-pleaded factual allegations but not
unsupported conclusory assertions. Muscogee (Creek) Nation v. Oklahoma Tax Comm’n, 611
F.3d 1222, 1227 & n.1 (10th Cir. 2010). Like standing, the burden of establishing jurisdiction
rests with the party asserting it. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir.
1974).
B.

Application

Defendants argue that Mr. Brito lacks standing to sue because he has not alleged an
injury-in-fact that is concrete and particularized. See [#10 at 6; #24 at 3–4]. According to
Defendants, this is particularly fatal to Plaintiff’s claim for prospective injunctive relief because
there is no allegation of a real and immediate threat of future injury. See [#10 at 7–9; #24 at 3–
5]. And, Defendants contend, Plaintiff’s status as a “tester” does not cure his deficient pleading,

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nor does the application of a “deterrence theory” of standing—a theory Defendants argue should
not apply in the first instance. See [#10 at 9; #24 at 4–5]. 1
“Injury in fact involves invasion of a legally protected interest that is concrete,
particularized, and actual or imminent.” Citizen Ctr. v. Gessler, 770 F.3d 900, 910 (10th Cir.
2014); accord Colo. Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211
(10th Cir. 2014) (holding that ADA “testers”, “[l]ike any plaintiff,” must establish a cognizable
injury in fact that will be redressed by the relief sought). Conjectural or hypothetical injuries, or
future injuries that are not certainly impending, are insufficient. See Brown v. Buhman, 822 F.3d
1151, 1165 (10th Cir. 2016).
In this regard, Defendants aver that Plaintiff merely lists violations of the ADA
Accessibility Guidelines without any supporting factual allegations about how these violations
“actually hindered Plaintiff’s full and equal enjoyment” of the PPA. [#10 at 6–7 (relying on
Champan v. Pier 1 Imports (U.S.) Inc., 631 F.3 939, 954–55 (9th Cir. 2011); #24 at 5]. While
the specifics of Mr. Brito’s injuries refer to the ADA Accessibility Guidelines, this court
concludes that Plaintiff provides sufficient factual allegations as to how the discrimination
affected him personally. He claims he could not access the PPA because there were not enough
handicap accessible parking spots and the existing ones “lack[] required access aisles and lead to
ramps [with] excessive slopes”; he claims he had difficulty traversing the path of travel because
it was not continuously accessible and had varying gradients; he claims there were protruding
objects within the PPA hindering his access to dining; and he claims he could not access the
restroom because he could not transfer to the toilet, or use the urinal, or maneuver his
1

Despite Plaintiff’s arguments to the contrary, see [#15 at 6–9], I agree with Defendants that
they do not move to dismiss Mr. Brito’s claim on exhaustion grounds. Nevertheless, this court
agrees with those courts that have held exhaustion of administrative remedies inapplicable to
Title III claims. See Mize v. Kai, Inc., No. 17-CV-00915-NYW, 2017 WL 5195203, at *5–6 (D.
Colo. Nov. 9, 2017).
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wheelchair. See [id. at ¶ 25]. Thus, Plaintiff does not merely list ADA Accessibility Guidelines
violations—he articulates what architectural barriers he encountered and how these denied him
full and equal access to Defendants’ PPA. See Chapman, 631 F.3d at 954.
Next, Defendants argue Plaintiff does not allege an imminent threat of future injury
sufficient for prospective relief. When seeking prospective relief “the plaintiff must be suffering
a continuing injury or be 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 court’s focus is on whether
Plaintiff alleges a certainly impending future injury, namely, a likelihood or intent to return to
Defendants’ PPA. Four factors guide this determination: “(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 v. Big Lots Stores, Inc., No. 17-CV-02052-CMA-KMT, 2017 WL 5665057, at
*3 (D. Colo. Nov. 27, 2017) (collecting cases). See also Brito v. JP Antlers LLC, No. 17-CV01956-CMA-NYW, 2018 WL 317464, at *4 (D. Colo. Jan. 8, 2018) (same); Brito v. DHCS
Assocs., LLC, No. 17-CV-01651-STV, 2017 WL 6405808, at *5 (D. Colo. Dec. 15, 2017)
(same). All four factors weigh in Plaintiff’s favor at this stage.
The first, second, and fourth factors are straightforward.

First, though his original

Complaint did not contain his residency and/or domicile, the Amended Complaint alleges that he
“owns property in Colorado Springs and resides [there] for regular durations throughout the
year.” [#37 at ¶ 5]. Second, he alleges he patronized Defendants’ PPA on or about June 15,
2017. [Id. at ¶ 14]; cf. Tandy, 380 F.3d at 1283 (“Past wrongs are evidence bearing on whether
there is a real and immediate threat of repeated injury.”). Fourth, Mr. Brito’s allegation that he
owns property and regularly resides in the same city as Defendants’ PPA “at least plausibly

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suggests, at this stage of the proceedings, that he likely frequently travels near the [PPA].” Brito
v. DHCS Assocs., LLC, 2017 WL 6405808, at *5.
The third factor, by contrast, is less clear. Mr. Brito proclaims he intends to avail himself
of the benefits of Defendants’ PPA in the future, but given the unremediated architectural
barriers, he is deterred from patronizing Defendants’ PPA until those barriers are removed. See
[#37 at ¶¶ 17, 23, 27, 30]. Defendants stress that deterrence is not enough, nor should it be. But
cf. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (holding that a
disabled plaintiff demonstrated an actual, imminent injury by alleging he encountered
architectural barriers at a PPA that deterred him from further patronage given that the barriers
remained). While no controlling precedent from the United States Court of Appeals for the
Tenth Circuit (“Tenth Circuit”) has ever endorsed the deterrence theory, at least two courts in
this District have entertained it on similar motions to dismiss. In Brito v. DHCS Associates,
LLC, the court found sufficient Mr. Brito’s assertions that he could not identify a date certain he
would return to the discriminating PPA because he was deterred from doing so. See 2017 WL
6405808, at *5. In Garcia by and through Garcia v. Family Dollar Stores of Colorado, Inc.
(“Garcia”), though noting the lack of controlling Tenth Circuit precedent, the presiding judge,
the Honorable Raymond P. Moore, stated his willingness “to accept that a deterrence theory may
be accepted by the Tenth Circuit.” No. 16-CV-02348-RM-KLM, 2017 WL 3498955, at *2 (D.
Colo. Aug. 16, 2017). Judge Moore then went on to conclude that the plaintiffs’ alleged
deterrence, standing alone, was insufficient for purposes of standing, because the “collection of
allegations does not create a plausible sense that any discriminatory conditions are actually
continuing at any Family Dollar store . . . . There must also be continuing discrimination.” Id. at
*3 (emphasis omitted).

In contrast, the Amended Complaint here sets forth Mr. Brito’s

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deterrence and that the architectural barriers remain at Defendants’ PPA. See [#37 at ¶¶ 17, 23,
27, 29, 30]. I find this sufficient at this stage.
Based on the foregoing, this court concludes that Mr. Brito has sufficiently alleged an
actual injury, one that presents an imminent, future threat of injury for purposes of prospective
relief. Defendants’ arguments regarding Plaintiff’s sincerity or credibility are simply not issues
that are appropriately considered, let alone decided, at this stage of the proceeding. See e.g., Kay
v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007) (observing that the trial court’s assessment of a
plaintiff’s sincerity and credibility was premature at the motion to dismiss stage). Therefore, I
respectfully RECOMMEND that Defendants’ Motion to Dismiss be DENIED.
II.

The Motion to Stay
A.

Legal Standard

Whether to stay discovery is a matter left to the sound discretion of the trial court. Wang
v. Hsu, 919 F.2d 130, 130 (10th Cir. 1990). Although courts in this District generally disfavor
the stay of all discovery, see Wason Ranch Corporation v. Hecla Mining Co., No. 07-CV-00267EWN-MEH, 2007 WL 1655362, at *1 (D. Colo. June 6, 2007), “a stay may be appropriate if
resolution of a preliminary motion may dispose of the entire action,” Elec. Payment Sys., LLC v.
Elec. Payment Sols. of Am., Inc., No. 14-CV-02624-WYD-MEH, 2015 WL 3940615, at *1 (D.
Colo. June 25, 2015) (internal quotation marks omitted). Indeed, “a stay of discovery during the
pendency of a dispositive motion asserting a jurisdictional challenge may be appropriate and
efficient.” Sandoval v. United States, No. 11-CV-01533-REB-KLM, 2011 WL 3682768, at *2
(D. Colo. Aug. 23, 2011). The appropriateness of a stay depends on (1) the plaintiff’s interests in
expeditiously litigating this action and the potential prejudice to plaintiff of a delay; (2) the
burden on the defendants; (3) the convenience to the court; (4) the interests of persons not parties

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to the civil litigation; and (5) the public interest. String Cheese Incident, LLC v. Stylus Shows,
Inc., No. 1:02-CV-01934-LTB-PAC, 2006 WL 894955, at *2 (D. Colo. Mar. 30, 2006).
B.

Application

Defendants move for a temporary stay of discovery “to allow this court the opportunity to
issue a ruling that may dispose of the entire case in their favor.” [#38 at 1]. They continue that
the String Cheese factors counsel in favor of a stay, because Plaintiff will not suffer prejudice
from a stay given that he is a serial litigator, does not reside in Colorado, and seeks only
injunctive relief; Defendants, conversely, are burdened by further discovery that may be
irrelevant pending a ruling on their Motion to Dismiss; the court will be convenienced by a stay
to allow it to “focus on resolving the motion to dismiss”; non-parties will be only minimally
impacted, if at all, from a stay; and the public interest is served from a stay given the Congress’s
recent efforts “intended to stem the tide of Title III lawsuits brought by serial [ADA] litigants[.]”
[Id. at 3–5]. Plaintiff has yet to respond to the Motion to Stay, but in light of this court’s
recommendation above I find that it is appropriate to rule on the Motion to Stay at this juncture.
See D.C.COLO.LCivR 7.1(d).
At bottom, Defendants seek a temporary stay of discovery pending a ruling on their
Motion to Dismiss, believing their Motion warrants dismissal of Plaintiff’s Amended Complaint.
But as discussed above, this court concludes that Plaintiff has sufficiently alleged his standing to
proceed with this matter. While Judge Moore may ultimately disagree with that conclusion, this
court is also not persuaded that the String Cheese factors weigh in favor of a stay. That is, it is
not clear that Plaintiff will not be prejudiced from a stay in this case simply because he has
several similar cases in this District and elsewhere. Next, discovery has commenced and the
parties have not sought intervention from this court to date, and it does not appear that discovery

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in this matter is overly complex or burdensome on either party. Additionally, the principles of
Rule 1 of the Federal Rules of Civil Procedure counsel in favor of allowing discovery to continue
given this court’s above Recommendation on the Motion to Dismiss. The interests of nonparties and the public do not suggest otherwise. Accordingly, the Motion to Stay is DENIED.
CONCLUSION
For the reasons stated herein, I respectfully RECOMMEND that:
(1)

Defendants’ Motion to Dismiss [#10] be DENIED. 2

IT IS FURTHER ORDERED that:
(1)

Defendants’ Motion to Stay [#38] is DENIED.

DATED: June 28, 2018

BY THE COURT:

_______________________
Nina Y. Wang
United States Magistrate Judge
2

Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the District Judge of the Magistrate Judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
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