Kennedy v. Melbourne Beach, L.L.C.

Filing 19

ORDER granting 9 Defendant's Motion to Dismiss. Plaintiff has fourteen (14) days from the date of this Order to file an Amended Complaint. Signed by Judge Paul G. Byron on 3/2/2017. (SEN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

PATRICIA KENNEDY,
Plaintiff,
v.

Case No: 6:16-cv-1849-Orl-40DCI

MELBOURNE BEACH, LLC,
Defendant.
ORDER
This cause comes before the Court on Defendant’s Motion to Dismiss and/or for a
More Particular Statement (Doc. 9), filed December 20, 2016. On January 16, 2017,
Plaintiff responded in opposition. (Doc. 15). Upon consideration, Defendant’s Motion to
Dismiss will be granted.
I.

BACKGROUND
Plaintiff, Patricia Kennedy, sues Defendant, Melbourne Beach, LLC, to vindicate

her rights under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§§ 12181–12189. Plaintiff is unable to walk, has limited use of her hands, and relies on
a wheelchair to move. (Doc. 1, ¶ 1). Defendant owns a large shopping plaza known as
Plaza 959 located in Brevard County, Florida. (Id. ¶ 2). Plaintiff alleges that the premises
at Plaza 959 violates Title III of the ADA in a number of ways, including that the property
lacks compliant and accessible routes from disabled parking spaces to stores, has
excessive slopes and noncompliant curb approaches, lacks accessible seating and
tables, lacks accessible bathrooms, and has obstructed passageways with insufficient
maneuvering space. (Id. ¶ 7). Plaintiff wishes to utilize and enjoy the stores at Plaza 959

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and intends to return to the property in the future should Defendant render the premises
ADA-accessible. (Id. ¶ 14). Through her lawsuit, Plaintiff seeks declaratory and injunctive
relief requiring Defendant to remedy the violations she alleges.
Defendant now moves to dismiss Plaintiff’s Complaint. Pertinent to this Order,
Defendant argues that Plaintiff lacks standing to pursue her claim.
II.

DISCUSSION
Standing to bring and maintain a lawsuit is a fundamental component of a federal

court’s subject matter jurisdiction. Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1146
(2013). Challenges to standing therefore attack the court’s subject matter jurisdiction to
adjudicate the parties’ dispute. Stalley ex rel. United States v. Orlando Reg’l Healthcare
Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per curiam). Attacks on standing come
in two forms: facial and factual. Id. In a facial attack, the court looks to the face of the
complaint and determines whether the plaintiff sufficiently alleges standing. Id. at 1232–
33. In doing so, the court is limited to the complaint’s allegations and its attached exhibits,
which the court must accept as true. Id. In contrast, a factual attack contests the plaintiff’s
standing in fact, regardless of what the complaint says. McElmurray v. Consol. Gov’t of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). When confronting a
factual attack, the court affords no presumption of truth to the complaint and may consider
matters outside of its allegations and exhibits, such as affidavits, testimony, and other
evidence. Id.
Defendant challenges whether Plaintiff has standing due to the allegations
contained within her Complaint. Defendant therefore launches a facial attack, and the

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Court is limited to the four corners of the Complaint in determining whether Plaintiff has
standing to sue.
Plaintiff must demonstrate three elements in order to have standing: (1) Plaintiff
suffered or will imminently suffer an injury-in-fact; (2) a causal connection exists between
this injury and Defendant’s conduct; and (3) Plaintiff’s injury is likely to be redressed by a
favorable decision. Mulhall v. UNITE HERE Local 355, 618 F.3d 1279, 1286 (11th Cir.
2010) (subsequent history omitted). As for the injury-in-fact element, because she seeks
injunctive relief in this case, Plaintiff must also “show a sufficient likelihood that [s]he will
be affected by [Defendant’s] allegedly unlawful conduct in the future.” Wooden v. Bd. of
Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001). Stated differently,
Plaintiff must establish that she faces “a real and immediate—as opposed to a merely
conjectural or hypothetical—threat of future injury.”

Id. (quoting Church v. City of

Huntsville, 30 F.3d 1332, 1337 (11th Cir. 1994)).
Here, Plaintiff fails to offer sufficient facts indicating that she is likely to be affected
by Defendant’s alleged ADA violations in the future. Plaintiff avers that she visited Plaza
959 on only one occasion, and she alleges no facts to support her proposition that she
will return in the future. To the contrary, Plaintiff states that she “desires to visit the Village
Shops of Paradise Beach not only to avail herself of the goods and services available at
the property but to assure herself that this property is in compliance with the ADA.”
(Doc. 1, ¶ 14) (emphasis added). Based on the face of the Complaint, Plaintiff alleges
that she intends to return to a property which is not at issue in this case. Accordingly, the
face of the Complaint fails to demonstrate an adequate threat of future injury for Plaintiff
to pursue the injunctive relief she seeks.

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III.

CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that

Defendant’s Motion to Dismiss (Doc. 9) is GRANTED. Plaintiff’s Complaint (Doc. 1) is
DISMISSED due to Plaintiff’s lack of standing. Plaintiff has fourteen (14) days from the
date of this Order to file an Amended Complaint.
DONE AND ORDERED in Orlando, Florida on March 2, 2017.

Copies furnished to:
Counsel of Record

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