Kennedy v. Gulf Gate Plaza, LLC

Filing 17

OPINION AND ORDER granting in part and denying in part 13 Defendant's Motion to Dismiss. Plaintiff's 1 Complaint is dismissed without prejudice. Plaintiff may file an Amended Complaint within twenty-one (21) days of the date of this Opinion and Order. See Opinion and Order for details. Signed by Judge John E. Steele on 2/8/2017. (AMB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
PATRICIA KENNEDY,
Individually,
Plaintiff,
v.

Case No: 2:16-cv-806-FtM-29CM

GULF GATE PLAZA, LLC,
Defendant.

OPINION AND ORDER
This matter comes before the Court on review of Defendant’s
Motion to Dismiss (Doc. #13) filed on December 13, 2016. Plaintiff
filed a Response in Opposition to Defendant’s Motion to Dismiss
(Doc. #16) on January 16, 2017. For the reasons set forth below,
the Motion is granted in part and denied in part.
I.
On October 13, 2016, plaintiff Patricia Kennedy (Plaintiff)
filed a Complaint against Gulf Gate Plaza, LLC (Defendant) alleging
violations of Title III of the Americans with Disabilities Act
(ADA), 42 U.S.C. § 12181 et seq.
of

Broward

County,

Florida,

(Doc. #1.)

alleges

that

Plaintiff, a resident
she

qualifies

as

a

disabled individual under the ADA because she is wheel-chair bound
with limited use of her hands.

(Id. ¶ 1.)

Defendant owns,

operates, or leases out property open to the public located in

Collier County, Florida (Gulf Gate Plaza). (Id.) Plaintiff alleges
she encountered barriers which limited or denied her access to
goods and services offered by the businesses located at Gulf Gate
Plaza, and that her access will continue to be limited or denied
until Gulf Gate Plaza becomes ADA compliant.

(Id. ¶ 8.)

Plaintiff

alleges that she has visited the Property and plans to return to
Gulf Gate Plaza in the near future, both to avail herself of the
goods and services provided and to assess ADA compliance.

(Id.)

Plaintiff alleges that Defendant’s failure to maintain Gulf Gate
Plaza in compliance with the ADA is discriminatory and deprives
her of “the full and equal enjoyment of the goods, services,
facilities,

privileges

and/or

accommodations

available

to

the

general public.” (Id. ¶ 12.) Paragraph 7 of Plaintiff’s Complaint
describes the existing violations at Gulf Gate Plaza.

(See id. ¶

7.)
Defendant moves to dismiss Plaintiff’s complaint for (1) lack
of subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure

12(b)(1)

because

plaintiff

lacks

standing

and

(2)

failure to state a claim upon which relief can be granted pursuant
to Federal Rule of Civil Procedure 12(b)(6).

The Court agrees in

part.
II.
It is a fundamental principal that federal subject-matter
jurisdiction is limited to actual cases or controversies. Spokeo,

2

Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Raines v.
Byrd, 521 U.S. 811, 818 (1997)). The minimum requirement for
standing consists of three elements:

(1) the plaintiff suffered

an injury-in-fact, (2) that is fairly traceable to the defendant’s
challenged
favorable

conduct,
judicial

and

(3)

that

decision.

is

Id.

likely

redressable

(citation

omitted).

by

a

“[A]

plaintiff must demonstrate standing separately for each form of
relief sought.”
(2006).

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352

When an injunction is sought, the moving party must also

show a continuing threat of injury.

Friends of Earth, Inc.v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000).
To merit injunctive relief, a plaintiff must demonstrate that she
suffers the threat of an “‘injury in fact’ that is concrete and
particularized;

the

threat

must

be

actual

and

imminent,

not

conjectural or hypothetical; it must be fairly traceable to the
challenged action of the defendant; and it must be likely that a
favorable judicial decision will prevent or redress the injury.”
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009) (citation
omitted). The party invoking federal jurisdiction bears the burden
of establishing these three elements. Spokeo, 136 S. Ct. at 1547.
Where a case is at the pleading stage, the plaintiff must “clearly
. . . allege facts demonstrating” each element. Id. (omission in
original) (citation omitted).

3

After considering all the material submitted by the parties
as to the factual challenge to the Plaintiff’s standing, the Court
concludes that the Plaintiff has clearly demonstrated her standing
as a “tester”.

Havens Realty Corp. v. Coleman, 455 U.S. 363, 363

(1982). See also Kennedy v. Publix Super Markets, Inc., No. 2:16cv-377-FtM-99CM, 2016 WL 7210885 at *1 (M.D. Fla. Dec. 13, 2016).
Court files establish that disabled Plaintiff has filed at least
177 federal lawsuits in the Middle District of Florida alleging
discrimination under the ADA, as well as at least 108 federal
lawsuits

in

the

Fort

Myers

Division

alone.

Therefore,

the

defendant’s Motion to Dismiss for lack of standing is denied.
III.
Under Rule 8(a)(2), a Complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled
to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires

more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

To survive

dismissal, the factual allegations must be “plausible” and “must
be enough to raise a right to relief above the speculative level.”
Id.

See also Edwards v. Prime Inc., 602 F.3d 1276, 1291 (11th

Cir. 2010).

This requires “more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.”
662, 678 (2009) (citations omitted).

4

Ashcroft v. Iqbal, 556 U.S.

In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare

recitals

of

the

elements

of

a

cause

of

action,

supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with

a

“Factual allegations that are merely consistent

defendant’s

plausible.”

liability

fall

short

of

being

facially

Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th

Cir. 2012) (citations omitted).

Thus, the Court engages in a two-

step approach: “When there are well-pleaded factual allegations,
a court should assume their veracity and then determine whether
they plausibly give rise to an entitlement to relief.”

Iqbal, 556

U.S. at 679.
Here,

Defendant

argues

that

paragraph

7

of

Plaintiff’s

Complaint is deficient because it does not sufficiently identify
where in the shopping center the discriminatory barriers and ADA
violations were located, and fails to identify the nature of the
alleged ADA violations.

(Doc. #13, pp. 5-9.)

The Court finds

that the ADA violations in paragraph 7 of the Plaintiff’s Complaint
fail to adequately describe the “what” and “where” necessary for
the defendant to frame a responsive pleading.

5

As such, the

Plaintiff’s

Complaint

(Doc.

#1)

will

be

dismissed

without

prejudice with leave to amend.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.

Defendant Gulf Gate Plaza, LLC’s Motion to Dismiss

(Doc. #13) is GRANTED in part and DENIED in part. The motion is
denied as to lack of standing and granted for failure to state a
claim.
2.
prejudice.

Plaintiff’s Complaint (Doc. #1) is dismissed without
Plaintiff may file an Amended Complaint within TWENTY-

ONE (21) DAYS of the date of this Opinion and Order.
DONE AND ORDERED at Fort Myers, Florida, this __8th__ day of
February, 2017.

Copies: Counsel of Record

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