Stringham v. Sanford Plaza Investment Group LLC
Filing
54
ORDER denying 38 Motion to Dismiss for Failure to State a Claim; denying 42 motion to dismiss.. Signed by Judge Roy B. Dalton, Jr. on 8/14/2014. (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. 38), filed June 26, 2014;
2.
Defendant La Bella Investment, Inc.’s Motion to Dismiss (Doc. 42), filed
July 8, 2014; and
3.
Plaintiff’s Opposition to Motions to Dismiss and Incorporated Memorandum
of Law (Doc. 48), filed July 18, 2014.
Upon consideration, the Court finds that Defendants’ motions are due to be denied.
BACKGROUND
Plaintiff is a disabled individual who lives in Apopka and functions as a “tester” for
the Americans with Disabilities Act (“ADA”). (Doc. 35, ¶¶ 1, 9.) In his Third Amended
Complaint, Plaintiff alleges that on February 13, 2013, he visited a shopping plaza in
Sanford to eat at a Chinese restaurant and shop at a supermarket. (Id. ¶ 8.) Plaintiff uses
a wheelchair to ambulate, and during his visit he encountered several barriers that were
noncompliant with ADA standards. (Id. ¶¶ 1, 7.) Accordingly, Plaintiff brought this ADA
discrimination action against Defendants—the owner and the operator of the plaza—and
seeks an injunction requiring removal of the barriers. (Id. ¶¶ 2, 10–17.) Plaintiff represents
that he travels through the greater Orlando area daily and would shop at the plaza but for
the barriers. (Id. ¶ 8.)
Defendants move to dismiss for lack of subject matter jurisdiction and for failure to
state a claim. 1 (Docs. 38, 42.) Plaintiff opposes. (Doc. 48.) The matter is now ripe for the
Court’s adjudication.
STANDARDS
Challenges to subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) come in two forms: facial attacks and factual attacks. Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1335 (11th Cir. 2013).
Facial attacks to subject matter jurisdiction require the court merely to look
and see if the plaintiff’s complaint has sufficiently alleged a basis of subject
matter jurisdiction, and the allegations in his complaint are taken as true for
the purposes of the motion. However, in a factual challenge to subject
matter jurisdiction, a district court can consider extrinsic evidence such as
deposition testimony and affidavits. In so doing, a district court is free to
weigh the facts and is not constrained to view them in the light most
favorable to the plaintiff.
Id. at 1335–36 (citation and internal quotation marks omitted). For a court to have subject
matter jurisdiction over an action, the plaintiff must have standing. See DiMaio v.
Democratic Nat’l Comm., 520 F.3d 1299, 1301–02 (11th Cir. 2008). To demonstrate
standing, 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.
1
Defendant La Bella Investment, Inc. adopted Defendant 2921 Orlando
Drive LLC’s motion to dismiss (Doc. 38) as its own. (Doc. 42.)
2
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.
DISCUSSION
Defendants move to dismiss Plaintiff’s Third Amended Complaint on three
grounds. (Doc. 38, pp. 4–10.) First, they raise a facial challenge to Plaintiff’s standing
under Rule 12(b)(1), arguing that Plaintiff has inadequately alleged an injury-in-fact.
(Id. at 4–5.) Second, they argue that Plaintiff has failed to state an ADA discrimination
claim because his allegations as to the challenged barriers’ removability are overly
conclusory. (Id. at 6.) Third, they raise a Rule 12(b)(1) factual challenge to Plaintiff’s
standing to seek injunctive relief, arguing that he has not demonstrated a real and
substantial threat of future harm. (Id. at 6–10.) The Court disagrees with each contention.
First, Plaintiff has adequately alleged injury-in-fact. Title III of the ADA prohibits
owners of “place[s] of public accommodation” from discriminating against disabled
persons by denying them equal access to their facilities. 42 U.S.C. § 12182(a). An owner’s
“failure to remove architectural barriers . . . where such removal is readily achievable”
qualifies as discrimination. Id. § 12182(b)(2)(A)(iv). For standing purposes, when a person
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encounters a discriminatory barrier, he “has suffered injury in precisely the form the
statute was intended to guard against.” See Houston, 733 F.3d at 1332. Here, Plaintiff
alleges that his disability confines him to a wheelchair, he identifies the location of each
barrier that he encountered as he moved through the plaza, and he provides the precise
provision of the ADA’s implementing regulations that each barrier allegedly violates.
(Doc. 35, ¶¶ 7–8.) That is more than is required to allege injury in an ADA discrimination
claim.
Second, Plaintiff adequately alleges the removability of the challenged barriers.
(See id. ¶ 7.) Removability need not be pled with specificity. See, e.g., Lugo v. 141 NW
20th St. Holdings, LLC, 878 F. Supp. 2d 1291, 1295 (S.D. Fla. 2012). To the contrary, the
determination of whether a barrier is readily removable is a fact-intensive inquiry requiring
examination of information that plaintiffs ordinarily do not have at the pleading stage. See
Gathright-Dietrich v. Atlanta Landmarks, Inc., 452 F.3d 1269, 1272–73 (11th Cir. 2006)
(discussing ten factors a court should consider in determining whether removal of a
barrier is “readily achievable,” including “the overall financial resources of the facility or
facilities involved” and the “impact of [removal] upon the operation of the facility”); see also
Lugo, 878 F. Supp. 2d at 1295 (reasoning that it would be impossible at the pleading
stage “to provide additional specificity regarding the nature and cost of the action needed
to remedy the violations and the overall financial resources of [a defendant]”).
Third, Plaintiff has standing to seek injunctive relief. Standing for injunctive relief
requires a real and immediate threat of future injury. See Shotz, 256 F.3d at 1081. To
demonstrate such a threat in the context of an ADA discrimination action, a plaintiff must
show that he has “concrete plans” to return to the location of the challenged barriers.
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Houston, 733 F.3d at 1340. In the instant case, Plaintiff represents that his daily travels
through the greater Orlando area place him in the vicinity of Defendants’ shopping plaza
and that he will shop there within the next few months if the challenged barriers are
removed. (Doc. 35, ¶ 8.) He further avers that, at least monthly, he travels within two miles
of the plaza to shop at a nearby flea market, see doctors, and visit his assigned Social
Security office. (Doc. 48-1, ¶ 6.) Those plans—which are detailed and within Plaintiff’s
control—establish standing to pursue injunctive relief under the U.S. Court of Appeals for
the Eleventh Circuit’s precedent. See Houston, 733 F.3d at 1336 (finding similar affidavit
evidence sufficient to establish a plaintiff’s ADA standing). Defendants argue that
Plaintiff’s plans are not credible because Plaintiff is an admitted tester who “has filed
approximately 36 similar cases” in this Middle District over the past thirteen months.
(Doc. 38, pp. 9–10.) The law is clear, however, that “the tester motive behind [a plaintiff’s]
past and future visits to [a facility] does not preclude his having standing to sue for
invasions of his legal rights under §§ 12182(a).” Houston, 733 F.3d at 1332.
In sum, Plaintiff has adequately alleged standing and stated an ADA discrimination
claim, and therefore Defendants’ motions are due to be denied.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Motion to Dismiss (Doc. 38) is DENIED.
2.
Defendant La Bella Investment, Inc.’s Motion to Dismiss (Doc. 42) is
DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on August 14, 2014.
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Copies:
Counsel of Record
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