Cohan v. Bonita Resort & Club Association, Inc. et al

Filing 15

ORDER denying 8 Defendants' Motion to Dismiss Plaintiff's Complaint and Incorporated Memorandum of Law. Signed by Judge Sheri Polster Chappell on 5/5/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
HOWARD COHAN,
Plaintiff,
v.

Case No: 2:15-cv-61-FtM-38DNF

BONITA
RESORT
&
CLUB
ASSOCIATION, INC. and VACATION
RESORTS INTERNATIONAL, INC.,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants' Motion to Dismiss Plaintiff's
Complaint and Incorporated Memorandum of Law (Doc. #8) filed on March 17, 2015.
Plaintiff filed a Response in Opposition on March 26, 2015. (Doc. #10). The Motion is
now ripe for review.
Background
Plaintiff is an individual who suffers from numerous disabilities, including, but not
limited to, spinal stenosis. (Doc. #1 at 2). These “qualified disabilities,” as classified by
the Americans with Disabilities Act (“ADA”), require Plaintiff to use a handicap parking
space, a parking access aisle, and a lift for pool and Jacuzzi accessibility. (Doc. #1 at 2).
Defendants are the “lessee, operator, owner, and lessor” of the property at issue, which

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is located at 26101 Hickory Boulevard, Bonita Springs, Florida 34134 (“the Property” or
“Defendants’ Property”). (Doc. #1 at 2).
On or about October 22, 2014, Plaintiff visited the Property, but was “denied full
and equal access and full and equal enjoyment of the facilities, services, goods, and
amenities within [the Property], even though he would be classified as a ‘bona fide
patron.’” (Doc. #1 at 2). As Plaintiff explains, the Property failed to have 1) “sufficient
disabled parking spaces based on the total number of parking spaces available”; 2) “van
disabled parking spaces”; 3) a wide-enough, or any, “aisle (striping) between the parking
spaces”; 4) “signs for disabled parking”; 5) “painted signs on the ground for disabled
parking”; 6) two accessible means of entry into the pool for a person with disabilities; and
7) a gate latch to the pool area that is of suitable height for a person with disabilities.
(Doc. #1 at 6-7). Plaintiff avers that these “readily achievable barriers and violations of
the ADA still exist and have not been remedied or altered in such a way as to effectuate
compliance with the . . . ADA.” (Doc. #1 at 7). As a result, Plaintiff brought the instant
action seeking “injunctive and declaratory relief” in the form of a Court order “requiring
Defendants to alter [their] facilities to make them accessible to and usable by individuals
with disabilities. . . .” (Doc. #1 at 8).
Discussion
A. Plaintiff’s Complaint States a Cause of Action Upon Which Relief Can Be Granted
Defendants seek to dismiss Plaintiff’s Complaint on the grounds that it fails to
“allege sufficient facts to establish that he is entitled to relief, or has standing, to seek
injunctive relief.” (Doc. #8 at 5). To support this argument, Defendants contend that
“Plaintiff’s Complaint contains little more than a recitation of the elements delineated by

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law pursuant to which one may submit an ADA claim coupled with conclusory allegations
regarding Defendants [sic] purported violations of the ADA.” (Doc. #8 at 5). For his part,
Plaintiff argues that he “has more than adequately alleged that the elements necessary
to plead a prima facie case of discrimination under the ADA.” (Doc. #10 at 4). To that
end, Plaintiff believes that his “Complaint fully apprises Defendants of Plaintiff’s qualified
disability, the [Property] that [is] the subject of this matter[,] and how Defendants have
discriminated against Plaintiff.” (Doc. #10 at 4).
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 a plaintiff's 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, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009); 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, 129 S.Ct. 1937. 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, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Marsh, 268 F.3d at 1036 n. 16. Thus, “the-defendant-

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unlawfully harmed me accusation” is insufficient. Iqbal, 556 U.S. 662, 677, 129 S.Ct.
1937, 173 L.Ed.2d 868. “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, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
To properly assert a prima facie case of discrimination under the ADA, a plaintiff
must allege that “(1) he is a disabled individual; (2) the defendants own, lease, or operate
a place of public accommodation; and (3) the defendants discriminated against [him]
within the meaning of the ADA.” Norkunas v. Seahorse NB, LLC, 444 F.App’x 412, 416
(11th Cir. 2011) (per curiam) (citing 42 U.S.C. § 12182(a)). In addition, “if the claim alleges
discrimination due to an architectural barrier, the plaintiff is also required to [allege] that it
is a barrier prohibited by the ADA, removal of which is ‘readily achievable.’” Hoewischer
v. Joe’s Properties, LLC, Case No. 3:11-cv-769-J-12MCR, 2012 WL 139319, at *2 (M.D.
Fla. Jan. 18, 2012) (internal quotations and citations omitted).

Plaintiff’s Complaint

contains each of these allegations.
First, Plaintiff alleges that he is a disabled individual, as defined by the ADA,
because he suffers from numerous disabilities, including “spinal stenosis.” This allegation
satisfies the first factor. Next, Plaintiff alleges that Defendants are “the lessee, operator,
owner, and lessor” of the Property, which is a place of public accommodation. This
allegation satisfies the second factor. See 42 U.S.C. 12181(7)(L) (defining a place of
public accommodation as “an inn, hotel, motel, or other place of lodging”). Plaintiff also
alleges Defendants discriminated against him within the meaning of the ADA by having
barriers that prevent him from enjoying full and equal access of the Property. This

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satisfies the third factor. Finally, Plaintiff alleges that the barriers are prohibited by the
ADA and that their removal is “readily achievable.” This satisfies the fourth and final
factor.
There is no question that Plaintiff’s Complaint can best be described as “lean.” It
is rife with conclusory allegations and lengthy discussions about the ADA in general,
lacking many details about the specific action. But when the Court strips away the
conclusory allegations and ADA discussion and takes the remaining (albeit very limited)
factual allegations as true, Plaintiff successfully alleges the factors necessary to plead a
prima facie case of discrimination under the ADA. And, as a result, plausibly states a
claim upon which relief can be granted. Therefore, Defendants’ Motion to Dismiss on this
basis must be denied.
B. Plaintiff Maintains Standing to Bring this Action
Defendants continue their Motion by arguing, “Plaintiff’s action must be dismissed
upon a lack of standing.” (Doc. #8 at 8-17). In doing so, Defendants make a facial
challenge as to subject matter jurisdiction. This “require[s] the [C]ourt merely to look and
see if [P]laintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his [C]omplaint are taken as true.” McMaster v. United States, 177 F.3d
936, 940 (11th Cir. 1999) (punctuation omitted). Having done so, the Court finds that
Plaintiff sufficiently alleges facts that, at this stage of the litigation, illustrate he maintains
standing to bring this action.
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
causal connection between the asserted injury-in-fact and the challenged action of the

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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)). The Court will address each in of these
requirements in turn.
1. Injury-In-Fact
The injury-in-fact requirement looks whether the plaintiff alleges that they suffered
a “concrete and particularized” injury, rather than a “conjectural or hypothetical” one.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351
(1992). In the injunctive relief context, the injury-in-fact requirement also 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 (citing Wooden v. Bd. Of Regents of
Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001)) (internal quotations omitted). In
other words, the plaintiff must illustrate “a real and immediate—as opposed to a merely
conjectural or hypothetical—threat of future injury.” Id. at 1329 (citations omitted;
emphasis in original). 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.
It is close a call whether Plaintiff alleges facts sufficient to satisfy the injury-in-fact
requirement. In arguing that Plaintiff does not, Defendants first rely on Brother v. CPL
Investments, Inc., 317 F.Supp.2d 1358 (S.D. Fla. 2004), for the proposition that ADA
plaintiffs “do not have standing to complaint [sic] about alleged barriers which are not
related to their respective disabilities.” (Doc. #8 at 9). To this end, Defendants point out
that Plaintiff alleges that he has disabilities that result in “a neurological deficit,” but fails

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to specify how this “deficit” relates to the complained-about barriers, such as Defendants’
failure to provide van disabled parking spaces. (Doc. #8 at 9-10). Defendants believe
this illustrates that Plaintiff fails to allege a concrete and particularized injury.
At this stage of the litigation, however, the Court finds this argument unpersuasive.
While Defendants’ cited proposition appears to be correct, Defendants fail to provide any
argument illustrating that the barriers that Plaintiff complains about are not related to his
disabilities. Instead, Defendants simply provide a conclusory, non-substantive argument
contending the opposite. But in analyzing this facial attack on Plaintiff’s standing, the
Court has to take all of the allegations contained in the Complaint as true. And simply
concluding that there is no relation between Plaintiff’s disabilities and the complainedabout barriers, without any substantive argument, is not enough to overcome Plaintiff’s
allegations that his disabilities and the barriers are related. As such, at this stage in the
litigation, the Court finds Plaintiff has sufficiently alleged a “concrete and particularized”
injury.2 See Foster v. Dead River Causeway, LLC, Case No. 6:14-cv-668-ORL-37KR,
2014 WL 4059899, at *2 (M.D. Fla. Aug. 15, 2014) (finding that conclusory, nonsubstantive arguments that the plaintiff’s disabilities are not related to the complainedabout barriers were not enough to overcome the plaintiff’s allegations at the motion to
dismiss stage).
This, however, does not end the injury-in-fact discussion. Because injunctive relief
is the only form of relief available under Title III of the ADA, Plaintiff must also illustrate
that he will be affected by Defendants’ conduct in the future. Again, Defendants attack

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The Court notes that this result might very well be different under a factual attack when the Court does
not have to take Plaintiff’s allegations as true. But Defendants chose to attack Plaintiff’s standing in a facial
manner, not a factual manner.

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Plaintiff’s standing in a facial challenge – as opposed to a factual challenge. The Court,
therefore, must “evaluate standing based on the facts alleged in the [C]omplaint.”
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013). The
Eleventh Circuit has explained, “[w]hile past wrongs do not in themselves amount to that
real and immediate threat of injury necessary to make out a case or controversy, the
plaintiff’s exposure to illegal conduct in the past is nonetheless evidence bearing on
whether there is a real and immediate threat of repeated injury.” Id. at 1336 (internal
citations and quotations omitted). In the ADA context, “a plaintiff seeking an injunction
under Title III either must ‘have attempted to return’ to the non-compliant building or at
least ‘intend to do so in the future.’” Id. (citing Shotz, 256 F.3d at 1081).
With this in mind, the Court finds that Plaintiff’s Complaint alleges enough facts,
when taken as true, to establish that he faces the threat of future injury. In the Complaint,
Plaintiff lists the exact date that he visited Defendants’ property. (Doc. #1 at 2). He then
describes the various barriers that he encountered on Defendants’ property that violate
the ADA. (Doc. #1 at 6-7). Next, he announces how he “intends to return and enjoy the
goods and/or services at [Defendants’ Property],” but “is precluded from doing so”
because of the existing barrier violations. (Doc. #1 at 6). And finally, he alleges that “[t]o
date, the readily achievable barriers and violations of the ADA still exist and have not
been remedied or altered in such a way as to effectuate compliance with the provisions
of the ADA.” (Doc. #1 at 7). In other words, Plaintiff has already faced discrimination at
Defendants’ Property based on his disability; to his knowledge, Defendants have not
corrected the discriminating barriers; and, because he intends to return to Defendants’

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Property, Plaintiff will continue to face discrimination based on his disability. In the Court’s
view, this is a sufficient allegation of future injury.
Defendants adamantly insist that the Court factor into its analysis the fact that
Plaintiff is a “serial ADA litigant,” which illustrates that “any likelihood that Plaintiff will
return to [the Property] is implausible.” Interestingly, one of the cases Defendants cite in
support of their argument, Hoewischer v. Cedar Bend Club, Inc., 877 F.Supp.2d 1212
(M.D. Fla. 2012), reveals why such a consideration would be improper. As our sister court
noted, “[m]aking such a finding would necessarily require the Court to weigh the credibility
of Plaintiff’s Complaint, instead of merely taking the facts in it as true. This is a clear
departure from the legal standard requiring the court merely to look and see if the plaintiff
has sufficiently alleged a basis of subject matter jurisdiction.” Hoewischer, 877 F.Supp.2d
at 1217-1218 (citations omitted). Again, there is no question that a factual attack, rather
than a facial attack, might alter the Court’s analysis.

But when confronted by a facial

attack, Plaintiff’s Complaint contains enough allegations of future injury to survive. See
Houston, 733 F.3d at 1337; see also Seco v. NCL (Bahamas), Ltd., 588 F.App'x 863, 866
(11th Cir. 2014) (finding “that the plaintiff's allegation that she ‘would take another cruise
aboard’ the defendant's ship ‘in the near future’ was sufficient to demonstrate standing
for injunctive relief under Title III”).
Having alleged enough facts, when taken as true, to illustrate a concrete and
particularized injury and the threat of future injury, the Court finds Plaintiff satisfies the
injury-in-fact requirement.

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2. Casual Connection
Defendants also take issue with the second standing requirement, “causal
connection.” This requirement looks to whether the injury is “fairly traceable to the
challenged action of the defendant, and not the result of the independent action of some
third party not before the court.” Lujan, 504 U.S. at 560, 112 S.Ct. at 2136 (internal
punctuation and citations omitted). Defendants aver that “Plaintiff has failed to show that
any injury was ‘fairly traceable’ to any of the alleged violations he lists in his Complaint.”
In support, Defendants rely on a single case – Shotz, 256 F.3d 1077. However, the Court
is confused as to how Shotz supports Defendants’ position. There, the Eleventh Circuit
found that the plaintiffs did not have Article III standing because they failed to illustrate
any threat of future harm. 256 F.3d at 1081-82.

In reaching this conclusion, the court

never addressed any of the other standing requirements, including casual connection.
Having already determined that Plaintiff illustrated the threat of future harm, Shotz is
inapplicable to the instant action.
Notwithstanding the lack of support for its position, the Court finds Defendants’
argument unpersuasive.

In the Complaint, Plaintiff alleges that he visited Defendants’

property, “but was denied full and equal access and full and equal enjoyment of the
facilities, services, goods, and amenities.” (Doc. #1 at 2). Plaintiff later describes the
barriers that led to this denial, and how those barriers violate various ADA provisions.
(Doc. #1 at 6-7). When these allegations are taken as true, they illustrate that Plaintiff
encountered discrimination on the basis of his disability (his injury) because Defendants’
Property contains numerous barriers in violation of the ADA (the causal connection to
Plaintiff’s injury). Indeed, Defendants’ arguments might prove persuasive at a different

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stage in the litigation – i.e., when the Court does not have to take Plaintiff’s allegations as
true. But at the current stage, the Court finds Plaintiff successfully alleges a causal
connection between his injury and Defendants’ conduct.
3. Redressability
Defendants’ final argument contends that Plaintiff has failed to establish the third
standing requirement, “redressability.” This requirement looks to whether it is “likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision.”
Lujan, 504 U.S. at 561, 112 S.Ct. at 2136 (internal quotations and citations omitted).
Defendants again rely on Shotz, 256 F.3d 1077, contending that Plaintiff fails to satisfy
the redressability requirement because he does not illustrate “a real and immediate – as
opposed to a merely conjectural or hypothetical – threat of future injury.” (Doc. #8 at 11
(quoting Shotz, 256 F.3d at 1081)). The Court finds Defendants’ argument unpersuasive
for several reasons.
To begin, Defendants misunderstand the requirements of redressability. Contrary
to Defendants’ interpretation, redressability does not require a plaintiff to illustrate a threat
of future injury. That requirement is part of the injury-in-fact analysis, but only when
injunctive relief is sought. See Houston, 733 F.3d at 1329 (noting that injury-in-fact
requires “a plaintiff seeking injunctive relief [to] show a sufficient likelihood that he will be
affected by the allegedly unlawful conduct in the future”). Indeed, the Eleventh Circuit
illustrated as much in Shotz when it ended its standing analysis at the injury-in-fact
requirement because the plaintiffs were unable to illustrate the threat of future harm. See
256 F.3d at 1082.

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Redressability, on the other hand, simply asks whether it is likely that the plaintiff’s
injury will be redressed by a favorable decision. See Lujan, 504 U.S. at 561, 112 S.Ct. at
2136. And here, it appears that this third and final requirement is satisfied.

Plaintiff’s

Complaint alleges that Plaintiff faced discrimination, and will continue to face
discrimination, when visiting Defendants’ Property because there are numerous barriers
in place that violate the ADA. To remedy this discrimination, Plaintiff seeks, among other
things, a Court order directing Defendants to comply with the ADA and remove any
existing non-ADA-complaint barriers.

Clearly, Plaintiff’s injury (being discriminated

against) will be redressed by a decision in his favor (ordering Defendants to remove the
discriminating barriers). Therefore, the Court finds that Plaintiff alleges enough facts to
satisfy the redressability requirement of standing.
4. Conclusion
Based on the foregoing, the Court finds that Plaintiff sufficiently alleges enough
facts that, when taken as true, illustrate he maintains standing to bring this action.
Accordingly, it is now
ORDERED:
Defendants'

Motion

to

Dismiss

Plaintiff's

Complaint

and

Incorporated

Memorandum of Law (Doc. #8) is DENIED.
DONE and ORDERED in Fort Myers, Florida, this 5th day of May, 2015.

Copies: All Parties of Record

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