Cohan v. Naples Hotel Company et al
Filing
14
ORDER denying 10 Defendants' Motion to Dismiss. Signed by Judge Sheri Polster Chappell on 11/6/2014. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HOWARD COHAN,
Plaintiff,
v.
Case No: 2:14-cv-450-FtM-38CM
NAPLES HOTEL COMPANY and
THE GULFCOAST INN OF NAPLES
OWNERS ASSOCIATION, INC.,
Defendants.
/
ORDER 1
This matter comes before the Court on Defendants' Motion to Dismiss (Doc. #10)
filed on September 30, 2014. Plaintiff filed a Response in Opposition (Doc. #13) on
October 28, 2014. 2 Thus, the matter is ripe for review.
Background
Plaintiff is an individual who suffers from numerous disabilities, including, but not
limited to, spinal stenosis. (Doc. #1 at 2). As a result of their severity, Plaintiff’s disabilities
are classified as “qualified disabilities” under the Americans with Disabilities Act (“ADA”),
and require him to utilize a specially-designed means of entry to enter a swimming pool.
1
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2 The Court takes notice that Plaintiff filed his Response well beyond the 14-day response period allotted
under the Local Rule 3.01(b). In the interest of judicial economy, the Court chooses not to strike Plaintiff’s
Response in this instance, and will consider the Response as if it was filed in a timely manner. But the
Court warns Plaintiff that failure to comply with the Local Rules of the Middle District of Florida in future
filings with the Court will result in repercussions, including the possibility of Rule 11 sanctions.
(Doc. #1 at 2). Defendants are the lessees, operators, owners, and lessors of real
property located at 2555 Tamiami Trail North, Naples, FL 34103 (“Defendants’ Property”).
(Doc. #1 at 4).
On or about October 20, 2013, Plaintiff visited Defendants’ Property, but was
“denied full and equal access and full and equal enjoyment of the facilities, services,
goods, and amenities within [Defendants’ Property], even though he would be classified
as a ‘bona fide patron.’” (Doc. #1 at 2). As Plaintiff explains, Defendants fail to provide
“a means of entry [into their swimming pool] for persons with disability [sic] such as [a]
pool lift chair, sloped entry, transfer wall or transfer platform. . . .”
(Doc. #1 at 7). In
addition, Defendants provide “disabled parking space(s) and access aisles that are too
steep for use by disabled persons. . . .” (Doc. #1 at 7).
Plaintiff once again visited
Defendants’ Property on or about March 14, 2014, and noted that Defendant had failed
to eliminate the barriers to Plaintiff accessing Defendants’ outdoor pool or the access
aisle and parking space violations. (Doc. #1 at 2). Based on these factual allegations,
Plaintiff brings this action, alleging a single count violation of the ADA. (Doc. #1).
Legal Standard
In deciding a Rule 12(b)(6) motion to dismiss, the Court limits its consideration to
well-pleaded factual allegations, documents central to, or referenced in, the complaint,
and matters judicially noticed. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th
Cir. 2004). The Court must accept all factual allegations in Plaintiff's amended complaint
as true and take them in the light most favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). Conclusory allegations, however, are not entitled
to a presumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (discussing a Rule
2
12(b)(6) dismissal); Marsh v. Butler County, Ala., 268 F.3d 1014, 1036 n. 16 (11th Cir.
2001).
The Court employs the Twombly–Iqbal plausibility standard when reviewing a
complaint subject to a motion to dismiss. Randall v. Scott, 610 F.3d 701, 708, n. 2 (11th
Cir. 2010). A claim is plausible if the plaintiff alleges facts that “allow[ ] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,
556 U.S. at 678. The plausibility standard requires that a plaintiff allege sufficient facts “to
raise a reasonable expectation that discovery will reveal evidence” that supports the
plaintiff's claim. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556; Marsh, 268 F.3d at
1036 n. 16. Thus, “the-defendant-unlawfully-harmed-me accusation” is insufficient. Iqbal,
556 U.S. 662, 677, 129 S.Ct. 1937. “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (internal modifications omitted).
Further, courts are not “bound to accept as true a legal conclusion couched as a factual
allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986).
Discussion
A. Plaintiff’s ADA Claim is Not Barred by Res Judicata
Defendants first seek dismissal of Plaintiff’s Complaint on the basis of res judicata. As
Defendants explain, in 2001, an independent disabled plaintiff filed suit against them,
alleging nearly the same violations.
(Doc. #10 at 6).
In resolving that litigation,
Defendants entered into a consent decree that required Defendants to modify its
premises to include ADA compliant parking and pool access. (Doc. #10 at 6). Defendants
complied with the consent decree’s required modifications, but remain subject to its terms.
(Doc. #10 at 6). Because “the same issues are identified and the same relief is again
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requested” between the instant action and the 2001 Action, Defendants aver that
“principles of res judicata compel that Plaintiff’s claims should be precluded and this
action dismissed.” (Doc. #10 at 9). In response, Plaintiff disputes Defendants’ contention
that he is barred from bringing the instant action and notes that despite the 2001 Action,
“Defendant[s] [have] not removed the barriers to access on [their] property.” (Doc. #13
at 2).
The doctrine of res judicata “bars the parties to a prior action from re-litigating a cause
of action that was or could have been raised in that action” after a final judgment on the
merits has been entered. In re Piper Aircraft Corp., 244 F.3d 1289, 1296 (11th Cir. 2001)
(citing Allen v. McCurry, 449 U.S. 90, 94 (1980)). But this doctrine can be raised only if
four perquisites are met: (1) the prior decision must have been rendered by a court of
competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both
cases must involve the same parties or their privies; and (4) both cases must involve the
same causes of action. Id. (citing Israel Discount Bank Ltd. V. Entin, 951 F.2d 311, 314
(11th Cir. 1992); In re Justice Oaks II, Ltd., 898 F.2d 1544, 1550 (11th Cir. 1990)). If one
of these elements is not present, however, res judicata does not apply. Id. The party
asserting res judicata bears the burden of illustrating its applicability at all times. Id.
Here, Plaintiff fails to provide any argument contending that the first, second, or fourth
elements necessary for res judicata to apply are not satisfied. (Doc. #13 at 2). Instead,
Plaintiff simply argues that the Parties in the instant action are not the same as the parties
in the 2001 Action, nor was Plaintiff in privity with those parties.
(Doc. #13 at 2).
Defendants concede that Plaintiff was not involved in the 2001 Action. (Doc. #10 at 7).
Thus, as Defendants correctly note, the only issue for the Court to resolve “is whether a
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sufficient basis for ‘nonparty’ preclusion [exists] to justify dismissal of Plaintiff’s claim[] in
the [instant] case.” (Doc. #10 at 7). In support of their argument that a sufficient basis
for “nonparty” preclusion exists, Defendants direct the Court’s attention to the Supreme
Court case Taylor v. Sturgell, 553 U.S. 880 (2008).
In Taylor, the Supreme Court emphasized that “[t]he application of [res judicata] to
nonparties . . . runs up against the ‘deep-rooted historic tradition that everyone should
have his own day in court.’” 553 U.S. at 893 (quoting Richards v. Jefferson Cnty., Ala.,
517 U.S. 793, 798 (1996)). But “the rule against nonparty preclusion is subject to [six]
exceptions”: (1) if the nonparty agrees to be bound by the determination of issues in an
action between others is bound in accordance with the terms of his agreement; (2) if there
is a pre-existing substantive legal relationship between the nonparty to be bound and a
party to the judgment; (3) if the nonparty was adequately represented by someone with
the same interests who was a party; (4) if the nonparty assumed control over the litigation;
(5) if the nonparty served as a proxy for a party; or (6) if a special statutory scheme
forecloses successive litigation by nonparties and is otherwise consistent with due
process. Id. (citations omitted).
While Plaintiff fails to address any of these six exceptions in his Response,
Defendants concede that the only applicable exception is whether Plaintiff was
adequately represented by someone with the same interests who was a party to the 2001
Action. (Doc. #10 at 7). In doing so, Defendants argue that because the plaintiff in the
2001 Action was an association of disabled individuals, Plaintiff was adequately
represented by that association because it had the same interests as Plaintiff -- ensuring
that Defendants’ Property is ADA compliant. In support of this argument, Defendants cite
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to the Southern District of Florida case Access for Disabled, Inc. v. Fort Lauderdale
Hospitality, Inc., 826 F. Supp. 2d 1330 (S.D. Fla. 2011). But surprisingly, the Access for
Disabled Court rejected Defendants’ exact argument.
There, the court held that without being presented with precedent indicating
otherwise, the fact that the defendant had previously been sued by a disabled individual
for non-compliance with the ADA does not, in and of itself, mean that every other disabled
individual has been adequately represented, thereby barring their own ADA-compliance
claims through res judicata. Id. at 1336. The Court agrees. Defendants attempt to
distinguish Access for Disabled, Inc., from the instant action by arguing that here, the
plaintiff in the 2001 Action was an association of disabled individuals, whereas in Access
for Disabled, the party plaintiff was an individual. But the Court is not persuaded by this
argument. And Defendants fail to cite any precedent indicating that such a distinction is
meaningful. Consequently, the Court finds that Plaintiff was not adequately represented
by the parties to the 2001 Action, and his claim is not barred by res judicata. 3
B. Plaintiff’s Complaint States a Claim under Title III of the ADA
Next, Defendants argue that Plaintiff’s Complaint should be dismissed because it
fails to state a claim under Title III of the ADA. In support, Defendants primarily rely on
the Southern District of Florida case Cohan v. Ocean Club at Deerfield Beach Condo.
Ass’n, Case No. 14-60196-CIV, 2014 WL 1274128 (S.D. Fla. Mar. 27, 2014) (“Ocean
Club”), for the proposition that the “[r]elevant ADA standards do not require a pool lift in a
pool,” and therefore Plaintiff’s claim fails. (Doc. #10 at 9). Defendants also provide a
3
Although the Eleventh Circuit recognizes an additional form of representation, “virtual representation,”
Defendants fail to raise any argument that this doctrine applies to the instant action. See generally E.E.O.C.
v. Pemco Aeroplex, Inc., 383 F.3d 1280, 1287 (11th Cir. 2004) (detailing the doctrine of “virtual
representation). Therefore, the Court chooses to not address it.
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short, secondary argument contending that “Plaintiff’s allegations concerning parking
aisles and ramps are vague and conclusory and fail to identify which, if any, of the many
disabled designated parking spaces on [Defendants’ Property] violate any particular ADA
standard.” (Doc. #10 at 9).
The Court first notes that Defendants’ reliance on Ocean Club is misplaced. In
Ocean Club, the plaintiff solely alleged that the lack of a pool lift constituted an ADA
violation. 2014 WL 1274128. In contrast, Plaintiff here alleges much more. In the
Complaint, Plaintiff alleges that Defendants are lacking not only a pool lift, but also any
other means of entry for a disabled individual, including a “sloped entry, transfer wall, or
transfer platform.” (Doc. #1 at 7). Indeed, the relevant ADA regulation, 36 C.F.R. § 1191
app. B § 242.2, requires at least two accessible means of entry into the pool for a disabled
individual. Therefore, when the Court accepts Plaintiff’s allegation that Defendants fail to
have any means of entry for a disabled individual into their pool as true, Plaintiff
successfully alleges a violation of the ADA.
In addition, Plaintiff also successfully alleges a violation of the ADA for the parking
space violations. In the Complaint, Plaintiff avers that Defendants’ Property maintains
“disabled parking space(s) and access aisles that are too steep for use by disabled
persons in violation of 2010 ADAAG 502.4.” (Doc. #1 at 7). Defendants’ argument that
their parking lot is in compliance with the ADA as a result of repairs conducted pursuant
to the consent decree from previous ADA litigation, when supported by affidavits, would
likely succeed at the summary judgment stage. See, e.g., Petinsky v. Gator 13800 NW
7th Ave. LLC, Case No. 13-21955-CV, 2014 WL 1406439 (S.D. Fla. Apr. 10, 2014)
(granting summary judgment to the defendants after they presented affidavits testifying
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that the barriers identified in the complaint were remediated or in the process of being
remediated). But at the motion to dismiss stage, this argument fails. When Plaintiff’s
allegations are taken as true, Plaintiff successfully alleges that he attempted to visit
Defendants’ Property, but was unable to because of non-ADA compliant parking spaces
and access aisles – a clear violation of the ADA. Therefore, Defendants’ Motion to
Dismiss on the basis that Plaintiff fails to state a claim under Title III of the ADA must be
denied.
C. Plaintiff Maintains Article III Standing
Defendants’ final argument asserts that Plaintiff’s Complaint should be dismissed
because Plaintiff lacks Article III standing. To support this argument, Defendants cite to
two cases that “declined to confer standing and have dismissed similar ADA actions
finding that plaintiff lacks standing to complain about purely speculative injuries arising
from alleged barriers in hotels at which plaintiffs have never stayed and have no
expectation of utilizing in the future.” (Doc. #10 at 11 (citing Brother v. CPL Invs., Inc.,
317 F. Supp. 2d 1358 (S.D. Fla. 2004); Brother v. Tiger Partner, LLC, 331 F. Supp. 2d
1368 (M.D. Fla. 2004)). In analogizing the instant action to those actions, Defendants
aver that “Plaintiff’s multiple, nearly identical claims of ADA discrimination are plainly
conjectural and hypothetical, and fail to establish sufficient Article III standing to bring this
action within this Court’s jurisdiction.” (Doc. #10 at 12). In response, Plaintiff believes
that he has alleged sufficient facts to assert that, at this stage in the litigation, he maintains
Article III standing. (Doc. #13 at 4-5).
It is well established that in order to obtain standing under Article III of the
Constitution, a plaintiff must establish three requirements: (1) “‘injury-in-fact’”; (2) “‘a
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causal connection between the asserted injury-in-fact and the challenged action of the
defendant’”; and (3) “‘that the injury will be redressed by a favorable decision.’” Houston
v. Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013) (quoting Shotz v.
Cates, 256 F.3d 1077, 1081 (11th Cir. 2001)). Here, Defendants dispute only one of
those three requirements: whether Plaintiff has established an “injury-in-fact.” (Doc. #10
at 10). Indeed, when injunctive relief is sought, the “injury-in-fact” requirement mandates
that the plaintiff “‘show a sufficient likelihood that he will be affected by the allegedly
unlawful conduct in the future.’” Houston, 733 F.3d at 1328 (quoting Wooden v. Bd. Of
Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)). In other words,
“[b]ecause injunctions regulate future conduct, a party has standing to seek injunctive
relief only if the party shows ‘a real and immediate—as opposed to a merely conjectural
or hypothetical—threat of future injury.’” Id. at 1329 (citations omitted; emphasis in
original). And because injunctive relief is the only form of relief available to plaintiffs suing
under Title III of the ADA, Plaintiff must meet this additional “injury-in-fact” requirement.
Id.
Here, the Court finds that Plaintiff has sufficiently alleged an “injury-in-fact” to
maintain standing under Article III. While the Court notes that Defendants’ cited cases
did dismiss ADA actions for lack of standing as contended, those actions were at different
stages in the litigation. That is, Tiger Partner, LLC, was at the summary judgment stage
and CPL Investments, Inc., was at the post-trial stage. Therefore, neither of those courts
were required to take the plaintiffs’ allegations as true. In contrast, here, at the motion to
dismiss stage, the Court must accept each of Plaintiff’s allegations as if they were
supported by evidence. In the Complaint, Plaintiff alleges that he “would like to return
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and enjoy the goods and/or services at [Defendants’ Property] on a spontaneous, full and
equal basis”; that he “is precluded from doing so by [] Defendant[s’] failure and refusal to
provide disabled persons with full and equal access to their facilities”; that he “intends to
visit [Defendants’ Property] annually to verify compliance”; and that he believes “said
violations will not be corrected without court intervention.” (Doc. #1 at 3, 6). Similar to
the analysis above, Defendants’ arguments might prove successful at later stages in the
litigation. But when Plaintiff’s allegations are taken as for the purposes of this Motion,
Plaintiff has sufficiently established a genuine threat of imminent and future injury that
satisfies the “injury-in-fact” standing requirement.
Therefore, Defendants’ Motion to
Dismiss as to Plaintiff’s lack of standing must be denied.
Accordingly, it is now
ORDERED:
Defendants' Motion to Dismiss (Doc. #10) is DENIED.
DONE and ORDERED in Fort Myers, Florida this 5th day of November, 2014.
Copies: All Parties of Record
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