Houston v. Hess Corporation
ORDER denying 45 Defendant's Motion to Dismiss; denying as moot 53 Plaintiff's Motion for Judicial Notice. Signed by Judge Sheri Polster Chappell on 3/10/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
Case No: 2:13-cv-152-FtM-38DNF
This matter comes before the Court on Defendant’s Motion to Dismiss (Doc. #45)
filed on December 6, 2013. Plaintiff filed a response in opposition on January 5, 2014.
(Doc. #50). This matter also comes before the Court on Plaintiff’s Motion for Judicial
Notice on January 14, 2013. (Doc. #53). Defendant filed a response in opposition on
January 22, 2013. (Doc. #54). These two motions are now ripe for review.
On March 6, 2013, Plaintiff Joe Houston filed his one count Amended Complaint
alleging Defendant Hess Corporation (hereinafter “Hess”) discriminated against Houston
in violation of the Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.
(hereinafter “ADA”). (Doc. #8). Specifically, Houston who is disabled and uses a
wheelchair alleges Hess denied him access to full and equal enjoyment of the goods,
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establishment. (Doc. #8). In addition, Houston alleges Hess failed to ensure individuals
with disabilities are not treated differently because of the absence of auxiliary aids and
services. (Doc. #8). Houston specifically seeks injunctive relief, attorney’s fees, litigation
expenses, and costs. (Doc. #8). Hess has brought this Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(1) with the argument that this matter is now moot.
In addition, Houston has brought a Motion for Judicial Notice requesting the Court to take
notice that Hess has been sued numerous times in Florida with regard to similar ADA
Motions brought pursuant to Federal Rule of Civil Procedure 12(b)(1) contest the
subject matter jurisdiction of the case. These motions may attack subject matter
jurisdiction facially or factually. Lamb v. Charlotte County, 429 F.Supp.2d 1302, 1035
(M.D. Fla. 2006) (citing Morrison v. Amway Corp., 323 F.3d 920, 923 n.5 (11th Cir. 2003)).
The Court reviews facial and factual attacks differently.
If the motion contests the jurisdiction facially, then the court reviews the relevant
pleadings to determine if a plaintiff has properly alleged subject matter jurisdiction.
Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990) (citations omitted). In this
review, the Court accepts the allegations in the pleadings as true. Id. at 1529. Whereas,
if the motion contests the jurisdiction factually, then the court reviews the relevant facts
and extrinsic evidence to determine if jurisdiction is proper. Id. In factual attacks, a plaintiff
bears the burden of establishing that the Court has jurisdiction in the case. Lamb, 429
F.Supp.2d at 1305 (citing Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
1980)). A plaintiff must “clearly allege facts demonstrating that he is a proper party to
invoke judicial resolution of the dispute and the exercise of the court’s remedial powers.”
Lamb, 429 F.Supp.2d at 1305-06 (citing Warth v. Seldin, 422 U.S. 490, 518 (1975)).
Courts are only permitted to adjudicate actual controversies. Accordingly, “a case
is moot when it no longer presents a live controversy with respect to which the court can
give meaningful relief.” Troiano v. Supervisor of Elections, 382 F.3d 1276, 1282 (11th Cir.
2006) (citing Al Najjar v Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001)). Therefore, if
events occur after the filing of a lawsuit that deprive the court of the ability to provide
meaningful relief, then the case is moot and must be dismissed. Id.
Whether a matter in controversy has been mooted is determined by a stringent
standard. Scott v. Cash To Go, Inc., No. 6:13-cv-142-Orl-37KRS, 2013 WL 1786640, at
*2 (M.D. Fla. Apr. 26, 2013) (citing Friends of the Earth v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000)). A case may become moot if a defendant shows the
allegedly wrongful behavior could not reasonably reoccur. Id. Courts within the Eleventh
Circuit review three factors to determine whether a defendant’s conduct can be expected
to reoccur. Id. These three Sheely factors are whether the challenged conduct was
isolated or unintentional, whether the defendant’s cessation of the offending conduct was
motivated by a genuine change of heart or timed to anticipate suit, and whether the
defendant has acknowledged liability when ceasing the conduct. Id. (quoting Sheely v.
MRI Radiology Network, P.A., 505 F.3d 1173, 1184 (11th Cir. 2007)).
With regard to the motion for judicial notice, Rule 201(c)(2) of the Federal Rules of
Evidence states a court “must take judicial notice if a party requests it and the court is
supplied with the necessary information.” Further, the “court may take judicial notice of a
document filed in another court ‘not for the truth of the matters asserted in the other
litigation, but rather to establish the fact of such litigation and related filings.’” United
States v. Jones, 29 F.3d 1549, 1553 (11th Cir. 1994) (citing Liberty Mut. Ins. Co. v.
Rotches Pork Packers, Inc., 969 F.2d 1384, 1388-89 (2d Cir. 1992)). Therefore, judicial
notices of related court cases can only be taken for two limited purposes. Either to
recognize the judicial act that the order represents or to recognize the subject matter of
the litigation. Allstate Insurance Company v. Estate of Robert M. Levesque, No. 8:08-cv2253-T-33EAJ, 2010 WL 2978037, at *1 (M.D. Fla. July 29, 2010) (citing Jones, 29 F.3d
at 1553; In re Delta Res., Inc., 54 F.3d 722, 725-26 (11th Cir. 1995); Johnson v. Clark,
2:03-CV-490-FtM-33DNF, 2006 WL 289107, at *2 (M.D. Fla. Feb. 07, 2006)). These kinds
of notices can be taken without converting the motion to dismiss to a motion for summary
judgment. Universal Express, Inc. v. U.S. S.E.C., 177 Fed.App. 52, 53 (11th Cir. 2006)
(citing Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999)).
Title III of the ADA provides:
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
42 U.S.C. § 12182(a).
Public establishments must maintain certain accommodations pursuant to the
ADA. Consequently, when a public establishment fails to comply with the ADA
requirements this failure is defined as discrimination. National Alliance for Accessibility,
Inc. v. Walgreen Co., No. 3:10-CV-780-J-32-TEM, 2011 WL 5975809, at *1 (M.D. Fla.
Nov. 28, 2011); Hoewischer v. Cedar Bend Club, Inc., No. 3:11-cv-1040-J-37TEM, 2013
WL 1155783, at *1 (M.D. Fla. Mar. 14, 2013) (“Discrimination includes the ‘failure to
remove architectural barriers [to access] … where such removal is readily achievable.’”)
(citing 42 U.S.C. § 12182(b)(2)(A)(iv)). If a public establishment violates the ADA
requirements, then a court may issue an injunction requiring a defendant “to alter facilities
to make such facilities readily accessible to and usable by individuals with disabilities.”
National Alliance for Accessibility, 2011 WL 5975809 at *1 (citing 42 U.S.C. §
12182(b)(2)(A)(iv)). A prevailing plaintiff is not entitled to damages but may recover
reasonable attorney’s fees. Id.
Motion to Dismiss
Hess contends all architectural barriers complained of by Houston are now ADA
compliant through remediation or reasonable accommodation.2 (Doc. #45, ¶10). Now that
the issues have been remedied, Hess contends this matter is now factually moot. Hess
further demonstrates that David Goldfard, who Hess labels as an ADA compliance expert,
has performed an inspection of the subject property and has determined that the subject
property is now compliant with building and ADA standards as of November 18, 2013.
In addition, Hess contends the current evidence in relation to this matter
demonstrates Hess has invested substantial time and effort into improving its property
and making the complained of violations compliant to ADA and other building standards.
For example, Hess contests a ramp was built, the sidewalks have been widened, and the
bathroom has been appropriately altered to allow proper access. Hess has also instated
This specific property is considered an “old building” because it was built in 1955. Therefore, this property
pursuant to the ADA is required to remove architectural barriers where such removal is readily achievable.
42 U.S.C. § 12182(b)(2)(A)(iv).
a policy where employees are trained to actively assist disabled individuals who need
assistance obtaining products beyond their reach. Hess further states it would be
unreasonable to think Hess would remove the improvements or otherwise violate the ADA
after this case is dismissed. Hess states the ADA violations appear to have been
unintentional and unknowing especially in light of the fact that Hess contracted with a
company to remedy ADA violations prior to Houston’s visit to the subject property. Finally,
Hess states its remedies were made in a sincere fashion.
In response, Houston contends that an announcement by a defendant that it is no
longer violating the ADA alone is insufficient to moot the case. Houston argues the
standard to moot a matter is stringent and that Hess here has not met its heavy burden.
Houston also maintains that Hess has been sued repeatedly, throughout the State of
Florida, and therefore cannot maintain that it was ignorant of what the ADA requires.
Houston has acquired an ADA expert, Peter Lowell, who documented Hess’ premises to
not be in compliance with the ADA standard as of September 9, 2013. Houston further
contends that a promise of future compliance does not mean an injunction is not required
to assure a defendant will not comply with the ADA in the future. Houston also contest
whether Hess has truly admitted liability in this matter.
Having reviewed the arguments, case law, and record, the Court finds it is not
conclusive whether this matter is moot. Although it is clear that some changes have been
made and Goldfarb conducted a survey of the Hess Gas Station, the record does not
demonstrate conclusively “[t]hat all items alleged to be barriers in the Complaint filed
against said gas station have been corrected and now comply with” the ADA, ADAAG,
and FACBC. (Doc. #45-2, at 7). That is, the record does not decisively support that a
ramp was actually built, sidewalks were widened, the bathroom was altered, and an
employee policy was instated as argued by Hess. (Doc. #45-1, ¶12) (stating “[o]n or about
November 18, 2013, the contractor completed the remediation and reasonable
accommodation work”). The details of the work that was performed have not been
established in the record. Furthermore, Lowell allegedly visited Hess again and
determined that violations still existed. (Doc. #55; Doc. #55-1). Therefore, the record does
not demonstrate that this matter is indeed moot.3 For these reasons, the Court will deny
the motion to dismiss.
Plaintiff Joe Houston requests the Court to take judicial notice pursuant to Rule
201 of the Federal Rules of Civil Procedure that Hess has been sued numerous times in
Florida for similar ADA violations. Houston specifically cites to four lawsuits in the Middle
District of Florida and six lawsuits in the Southern District of Florida.4 These cases involve
different properties than the property at issue in this matter. Houston would like the Court
to take judicial notice of these other cases to establish that Hess has not proven that this
matter is moot in relation to the Sheely factors. The Court has found that this overall
matter is not moot, and that there is a debate as to whether the Hess property complies
The Court will not address the three Sheely factors here because it is unclear whether the non-compliant
ADA issues have ceased.
4 The four cases in the Middle District of Florida are Access 4 All, Inc. v. Amerada Hess Corp., 6:02-cv1557-GAP; Hoewischer v. Hess, 3:10-cv-1003; Spalluto v. Hess, 6:08-cv-72-JA-DAB; and Access 4 All,
Inc. v. Hess, 6:10-cv-566-GAP-DAB. The six cases in the Southern District of Florida are Disabilities
Advocates and Counseling Group, Inc. v. Amerada Hess Corp., 05-cv-61892; Disability Advocates v.
Amerada Hess, 1:04-cv-22949-DLG; Disability Advocates, et al. v. Specon VI, LLC, 1:05-cv-23249-CMA;
Disability Advocates and Counseling Group, Inc. et al. v. Amerada Hess Corp., 4:08-cv-10018-JLK;
Disability Advocates and Counseling Group, Inc. et al. v. Hess Realty Corp., 1:07-cv-20615-MGC; and
Spence v. Hess Mart, Inc., [_:]13-cv-62141.
with the requirements of the ADA. The Court did not need to address the three Sheely
factors, and therefore, Houston’s request to take judicial notice is now moot.
Accordingly, it is now
1. Defendant's Motion to Dismiss (Doc. #45) is DENIED.
2. Plaintiff’s Motion for Judicial Notice (Doc. #53) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida this 10th day of March, 2014.
Copies: All Parties of Record
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