De Palo v. Countryside Station Limited Liability Company et al

Filing 36

ORDER granting 17 Motion to dismiss for lack of standing. Signed by Judge Gregory A. Presnell on 4/12/2012. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
NICHOLAS RYAN DE PALO,
Plaintiff,
-vs-

Case No. 6:12-cv-204-Orl-31KRS

COUNTRYSIDE STATION LIMITED
LIABILITY COMPANY, et al,
Defendants.
_______________________________________

ORDER
This matter comes before the Court on the Motion to Dismiss (Doc. 17) filed by Defendant
Countryside Station LLC (“Countryside”) and the response (Doc. 22) filed by the Plaintiff,
Nicholas de Palo (“de Palo”).
I.

Background
According to the allegations of the Complaint (Doc. 1), the Plaintiff is a resident of Miami-

Dade County and is disabled as defined by the Americans with Disabilities Act, 42 U.S.C.
§ 12181, et seq. (Doc. 1 at 2). As for Countryside, there is little information to be gained from the
Complaint. As set forth in that document, the “Defendant transacts business in the State of Florida
and within this judicial district” and “is the owner, lessee, lessor and/or operator of the real
property and improvements which are the subject of this action, commonly referred to as
COUNTRYWIDE SHOPPING CENTER.” (Doc. 1 at 3) (emphasis in original). The

“Defendant” is referred to in the singular even though the Plaintiff sued a total of eight entities.1
No further information is provided in the Complaint as to any of them. As pled, it is impossible to
tell whether Countryside acts as owner, lessee, lessor or operator, or whether some combination of
the other defendants do so.
By way of the instant motion, Countryside seeks dismissal on the grounds that the Plaintiff
lacks standing to pursue the ADA claims raised in the Complaint.
II.

Standards
A.

Pleadings

Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim
showing that the pleader is entitled to relief,” so as to give the defendant fair notice of what the
claim is and the grounds upon which it rests, Conley v. Gibson, 35 U.S. 41, 47, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
The plaintiff must provide enough factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence of the
required elements, Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir.2007). Conclusory
allegations, unwarranted factual deductions or legal conclusions masquerading as facts will not
prevent dismissal. Davila v. Delta Air Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).

1

In addition to Countryside, de Palo sued C & H Pizza, LLC, Debbie’s Health Foods, Inc.,
Factory Card Outlet of America, Ltd., Inc., Big Lots Stores, Inc., Yoo Corporation, Down South Philly
Grille, Inc., and L’Mour Nail & Spa, LLC. (Doc. 1 at 1).
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In Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court explained that a complaint
need not contain detailed factual allegations, “but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation. . . . A pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ . . . Nor
does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Id. at 1949 (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged - but it has not
‘show[n]’ - ‘that the plaintiff is entitled to relief.’” Id. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
B.

Standing

Article III of the United States Constitution limits the power of federal courts to
adjudicating actual “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. The most significant
case-or-controversy doctrine is the requirement of standing. See Georgia State Conference of
NAACP Branches v. Cox, 183 F.3d 1259, 1262 (11th Cir.1999). The party who invokes federal
jurisdiction must establish that it has standing to assert its claim. See Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). “In essence the question of
standing is whether the litigant is entitled to have the court decide the merits of the dispute or of
particular issues.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
To establish standing, a party must “demonstrate that he has suffered ‘injury in fact,’ that the
injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be
redressed by a favorable decision.” See Bennett v. Spear, 520 U.S. 154, 162, 117 S.Ct. 1154, 137
L.Ed.2d 281 (1997) (internal quotation marks and citations omitted).

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III.

Analysis
The extreme generality of the complaint makes it impossible to say that the Petitioner has

made factual averments sufficient if true to demonstrate standing. See Havens Realty Corp. v.
Coleman, 455 U.S. 363, 102 S.Ct. 1114 (1982). In addition to failing to provide even the most
rudimentary information about his eight-headed “Defendant,” the Plaintiff fails to include such
information as when he visited the shopping center, which areas he investigated while there, or
which barriers to access he encountered. The Complaint does include a list of 19 “unlawful
physical barriers, dangerous conditions and ADA violations which preclude and/or limit Plaintiff’s
ability (because of Plaintiff’s disability) to access the Facility2 and/or full and equal enjoyment of
the goods, services, facilities, privileges, advantages and/or accommodations of the Facility” (Doc.
1 at 6-8). However, the listed items are entirely generic. For example, the second item on the list
reads, in its entirety, “There are non-compliant curb ramps that service the disabled parking
spaces, in violation of 4.7 and 4.8 of the ADAAG.” (Doc. 1 at 6). The seventeenth item on the list
reads, in its entirety, “There are bar counters throughout the various tenant spaces where customer
service and/or transactions occur that are inaccessible in violation of various sections of the
ADAAG, including 7.2 of the ADAAG”. (Doc. 1 at 8). All of the other items on the list are
equally vague, incapable of being traced to the actions of any defendant.
Moreover, a review of the Court’s CM/ECF system reveals that the Plaintiff has filed 16 of
these suits in the Middle District of Florida, beginning in September of last year. He often sues
multiple defendants. And he includes the same 19-item list of “unlawful physical barriers,

2

The term “Facility” is not defined in the Complaint.
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dangerous conditions and ADA violations which preclude and/or limit Plaintiff’s ability (because
of Plaintiff’s disability) to access the Facility and/or full and equal enjoyment of the goods,
services, facilities, privileges, advantages and/or accommodations of the Facility” in each
complaint he files. Either the Plaintiff has happened upon 40 or so unrelated businesses scattered
across the Middle District of Florida that are violating the ADA in 19 identical ways, and no others
– which seems unlikely, to put it mildly – or the Plaintiff has a generic list of violations that he
plops down in every case whether it applies or not.3
The generality of his cut-and-paste list prevents the Plaintiff from using it to establish that
he has suffered the required injury-in-fact. In addition, the allegations of the Complaint are so
vague that none of the alleged violations could be traced to the actions of this Defendant, or any
other. And the Plaintiff offers nothing else to carry his burden of establishing that he possesses
standing to pursue these claims. Accordingly, it is hereby
ORDERED that the Motion to Dismiss (Doc. 17) is GRANTED, and the Complaint is
DISMISSED FOR LACK OF STANDING.
DONE and ORDERED in Chambers, Orlando, Florida on April 12, 2012.

Copies furnished to:

3

The Court notes that, per Rule 11, every lawyer signing a pleading certifies that the factual
contentions contained therein “have evidentiary support or, if specifically so identified, will likely
have evidentiary support after a reasonable opportunity for further investigation or discovery.”
Fed.R.Civ.P. 11(b)(3). None of the contentions included in the 19-item list was identified as requiring
further investigation or discovery.
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Counsel of Record
Unrepresented Party

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