Stringham v. Sanford Plaza Investment Group LLC
Filing
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ORDER granting 25 Motion to Dismiss for Failure to State a Claim; granting 32 motion to dismiss. On or before Tuesday, June 10, 2014, Plaintiff has leave to file a Third Amended Complaint. Signed by Judge Roy B. Dalton, Jr. on 5/27/2014. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JOE STRINGHAM,
Plaintiff,
v.
Case No. 6:13-cv-1587-Orl-37KRS
2921 ORLANDO DRIVE LLC; and LA
BELLA INVESTMENT, INC.,
Defendants.
ORDER
This cause is before the Court on the following:
1.
Motion to Dismiss (Doc. 25), filed April 4, 2014;
2.
Plaintiff’s Response in Opposition to Motion to Dismiss or, in the Alternative,
for Leave to Amend and Incorporated Memorandum of Law (Doc. 29), filed
April 18, 2014;
3.
Defendant La Bella Investment, Inc.’s Motion to Dismiss (Doc. 32), filed
May 6, 2014; and
4.
Plaintiff’s Response in Opposition to Motion to Dismiss [DE32] or, in the
Alternative, Motion for Leave to Amend (Doc. 33), filed May 6, 2014.
Upon consideration, the Court finds that Defendants’ motions are due to be granted and
the Second Amended Complaint is due to be dismissed without prejudice.
BACKGROUND
Plaintiff is a disabled individual who lives in Apopka and functions as a “tester” for
the Americans with Disabilities Act (“ADA”). (Doc. 15, ¶¶ 1, 9.) Defendants own and
operate a shopping plaza and supermarket in Sanford. (Id. ¶ 2.) Plaintiff alleges that
either: (1) he visited Defendants’ property and encountered certain barriers; or (2) “[i]n
the alternative,” he is an ADA tester. (Id. ¶¶ 8–9.) The complaint provides a list of alleged
ADA violations (id. ¶ 7), but does not state if, when, how, or exactly where in the shopping
center Plaintiff encountered the barriers. Defendants moved to dismiss the complaint for
failure to adequately allege standing and failure to state a claim. (Docs. 25, 32.) Plaintiff
opposed. (Docs. 29, 33.) This matter is now ripe for the Court’s adjudication.
STANDARDS
On a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the
Court limits its consideration to “the well-pleaded factual allegations” in the complaint. La
Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). The factual
allegations in the complaint must “state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In making this plausibility determination,
the Court must accept the factual allegations as true; however, this “tenet . . . is
inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A pleading
that offers mere “labels and conclusions” is therefore insufficient. Twombly, 550 U.S.
at 555.
To demonstrate standing and thus subject matter jurisdiction under Federal Rule
of Civil Procedure 12(b)(1), a plaintiff must show: (1) an injury-in-fact; (2) a causal
connection between the injury-in-fact and the defendant’s action; and (3) that the injury is
redressable. Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001). To obtain injunctive
relief, the plaintiff must also show that there is a real and immediate threat of future injury.
Id. “On defendants’ motion to dismiss we must evaluate standing based on the facts
alleged in the complaint, and we may not speculate concerning the existence of standing
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or piece together support for the plaintiff.” Id. (citation and internal quotation marks
omitted).
DISCUSSION
First, the Court must unfortunately address a troubling carelessness in briefing
which is characteristic of this particular Plaintiff and his counsel, Ms. Jeannette Albo and
Mr. Thomas Bacon. To take an example, Plaintiff’s response quotes the purported
standard for motions to dismiss as follows: “In this regard, ‘[a] complaint should not be
dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.’” (Doc. 29, p. 4 (quoting Local 15,
Int’l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d 779, 782 (7th Cir. 2007)).)
This citation is inexplicable, as the “no set of facts” standard relied on in Local 15 and set
forth in Conley v. Gibson, 355 U.S. 41 (1957), has been firmly discredited by the U.S.
Supreme Court. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562–63 (2007). Far more
troublesome, however, is the fact that this exact citation error has been pointed out to this
Plaintiff and his counsel before on multiple occasions. See Stringham v. Ramco USA Dev.
Corp., No. 6:13-cv-1590, Doc. 17, p. 2 n.1 (M.D. Fla. Dec. 31, 2013) (Antoon, J.) (noting
counsel’s inappropriate reliance on overturned Conley language); Stringham v. Apopka
Shopping Ctr. LLP, No. 6:13-cv-1410, Doc. 17, pp. 1–2 n.1 (M.D. Fla. Dec. 31, 2013)
(Antoon, J.) (same). Nevertheless, Plaintiff continues to use this language in his briefing.
Plaintiff’s status as a tester does not give him and his counsel carte blanche to cite
outdated case law and to ignore the orders of the U.S. District Court. Plaintiff, Ms. Albo,
and Mr. Bacon are on notice that this kind of slipshod practice is frankly unacceptable.
Similarly, Plaintiff’s Second Amended Complaint is insufficient for the very same
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reasons set forth by Judge Antoon in those previous cases, all of which appear to be
based on a form complaint. Plaintiff’s position is predicated on a willful misreading of
Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013). Contrary to
Plaintiff’s assertions, Houston does not stand for the proposition that “Mr. Stringham’s
status as a ‘tester’ provides him standing to sue under Title III of the ADA.” (Doc. 29, p. 7.)
Rather, all Houston holds is that a plaintiff’s status as a tester “does not foreclose
standing” in itself. 733 F.3d at 1334. In fact, Houston says the opposite of what Plaintiff
claims: “But th[e] conclusion [that the plaintiff is a tester] alone is not enough.” Id. “Each
plaintiff must establish standing on the facts of the case before the court. That is equally
as true about a regular customer of a public accommodation as it is for a tester . . . .” Id.
at 1340.
As Judge Antoon noted, Plaintiff’s complaint fails to establish standing because it
does not allege when (if at all) Plaintiff visited the property and which barriers he actually
encountered. See Ramco, No. 6:13-cv-1590, Doc. 17, p. 3. The failure is particularly
glaring in this case because the property is a shopping plaza with many independent
units, and it is not at all clear where the alleged barriers are or which stores Plaintiff may
have visited. (See Doc. 25, p. 6.) A laundry list of alleged barriers together with the barest
allegation that Plaintiff either encountered some barrier or is a tester is simply insufficient
to show an injury-in-fact, even under Houston.
Further, the complaint fails to allege any specifics about Plaintiff’s intent to return
to the property—he merely states that he “desires” to visit again. (Doc. 15, ¶ 14.) “Such
‘some day’ intentions—without any descriptions of concrete plan, or indeed even any
specification of when the some day will be—do not support a finding of the ‘actual or
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imminent’ injury that our cases require.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564
(1992). Plaintiff must clearly allege his plans to return and his likelihood of future injury in
the complaint to be entitled to injunctive relief. 1
Plaintiff needs to articulate facts sufficient to demonstrate that he actually suffered
an injury-in-fact and will do so again in the future; relying on his tester status alone is not
enough. The complaint is therefore due to be dismissed for failure to adequately allege
standing. Although Plaintiff is on his Second Amended Complaint, the pleadings in this
case have not yet been subject to an examination on standing grounds; the previous
pleadings were refiled for other reasons and were not tested by motions to dismiss. (See
Doc. 29, p. 12.) Thus, the Court will dismiss the complaint without prejudice and grant
Plaintiff one final chance to amend to attempt to establish standing.
The Court reiterates the crucial point of this Order: continuing to file form
complaints which have already been found inadequate is an inappropriate waste of the
Court’s time and likely implicates counsel’s Rule 11 obligations.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Motion to Dismiss (Doc. 25) is GRANTED.
2.
Defendant La Bella Investment, Inc.’s Motion to Dismiss (Doc. 32) is
1
Though Plaintiff states in his responses to the Court’s interrogatories that he did
actually visit the area in February 2013 and plans to return “in a few months” (Doc. 9,
¶¶ 3, 4a), that information is not within the four corners of the complaint, and the Court
should not have to go searching through the record to find allegations to make the
complaint sufficient on its face. See Ramco, No. 6:13-cv-1590, Doc. 17, p. 4 (noting that
specific allegations about plans to return should be included in the complaint itself, not
just in interrogatories); see also Shotz, 256 F.3d at 1081 (noting that courts need not
“piece together support” for standing allegations).
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GRANTED.
3.
The Second Amended Complaint (Doc. 15) is DISMISSED WITHOUT
PREJUDICE.
4.
On or before Tuesday, June 10, 2014, Plaintiff has leave to file a Third
Amended Complaint consistent with the strictures in this Order.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 27, 2014.
Copies:
Counsel of Record
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