Kennedy v. Dolgencorp, LLC et al
Filing
46
ORDER granting in part and denying in part 40 Defendant, New Snyrna ACD, LLC's Motion to Dismiss. Plaintiff's Second Amended Complaint 36 is DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to close this case and terminate any pending deadlines. Signed by Judge Paul G. Byron on 12/22/2017. (JRJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
PATRICIA KENNEDY,
Plaintiff,
v.
Case No: 6:17-cv-89-Orl-40TBS
NEW SMYRNA ACD LLC,
Defendant.
/
ORDER
This cause comes before the Court without oral argument on Defendant, New
Smyrna ACD, LLC.’s Motion to Dismiss the Second Amended Complaint with Prejudice
(Doc. 40), filed September 25, 2017; and Plaintiff’s Response (Doc. 45), filed October 17,
2017. The parties have completed their briefing and the Court is otherwise fully advised
on the premises. For the following reasons, the Court finds that Defendant’s motion to
dismiss for lack of standing is due to be granted.
I.
BACKGROUND
Plaintiff, Patricia Kennedy, sues Defendant, New Smyrna ACD LLC, seeking a
declaratory judgment and injunctive relief 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. 36, ¶ 1). Plaintiff alleges that she
suffered discrimination based on access barriers at the New Smyrna Beach Shopping
Center (the “Property”), a property owned by Defendant. (Id. ¶¶ 1, 7). She also claims to
be a “tester” for ADA compliance in places of public accommodation and often travels to
such facilities for this purpose. (Id. ¶ 9). As both a patron and a tester, therefore, Plaintiff
allegedly visited Defendants’ location once—on December 13, 2016—before initiating
this action on January 19, 2017. (Id. ¶ 8).
The Property is located in New Smyrna Beach, Volusia County, Florida. (Id. ¶ 7).
Plaintiff lives in Broward County, Florida. (Id. ¶ 1). Plaintiff alleges that she observed
violations in the Property’s parking lot and in three businesses occupying retail space
located on the Property. (Id.). Specifically, she alleges (1) there is no accessible route
between disabled parking spaces and the essential elements of the Property; and (2) that
the restrooms in Curley’s Barber Shop, Sherwin Williams, and Top Nails fail to meet ADA
requirements. (Id.). Plaintiff claims she has visited “Volusia County frequently since late
2016,” and that “she has been there as often as twice a month.” (Id. ¶ 8). She “plan[ned]
to return to the [P]roperty in the near future, specifically, in September of [2017], to avail
herself of the goods and services offered to the public at the [P]roperty, and to determine
whether the [P]roperty has been made ADA compliant.” (Id.)
II.
STANDARDS OF REVIEW
Rule 12(b)(1) attacks on subject matter jurisdiction may be facial or factual.
Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009).
For facial attacks, the Court accepts the complaint’s allegations as true. Stalley ex rel.
U.S. v. Orlando Reg’l Healthcare Sys. Inc., 524 F.3d 1229, 1232 (11th Cir. 2008). Factual
attacks, in contrast, allow a court “to consider extrinsic evidence such as deposition
testimony and affidavits.” Carmichael, 572 F.3d at 1279. Factual attacks place the burden
on the plaintiff to show that jurisdiction exists. OSI, Inc. v. United States, 285 F.3d 947,
951 (11th Cir. 2002).
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Article III, Section 2 of the United States Constitution limits federal courts’
jurisdiction to actual cases and controversies. Standing is part of this limitation, as a
“threshold jurisdictional question” that must be resolved before a court can turn to a
claim’s merits. Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005).
Courts determine standing at the time of filing. Id. at 976.
III.
DISCUSSION
Defendant moves to dismiss on three bases: (1) failure to state a claim pursuant
to Fed. R. Civ. P. 12(b)(6); (2) lack of standing; and (3) failure to include indispensable
parties. A favorable ruling for Defendant on its Rule 12(b)(1) motion to dismiss for lack of
standing is, however, dispositive because it attacks the Court’s subject matter jurisdiction
over Plaintiff’s claim.
Defendant challenges Plaintiff’s standing based on the allegations of the Second
Amended Complaint and Plaintiff’s history of filing ADA suits. (Doc. 40). In response,
Plaintiff submitted an affidavit describing her intention to return to the Property, and
reciting the many times she has visited Volusia County between November 2016 and
October 2017. (Doc. 45-1). Because such evidence is extrinsic to the pleadings, the Court
construes Defendant’s challenge as a factual attack; therefore, the Court can “consider
extrinsic evidence such as deposition testimony and affidavits.” See Houston v. Marod
Supermarkets, Inc., 733 F.3d 1323, 1335–36 (11th Cir. 2013) (construing a 12(b)(1)
challenge as factual because the parties submitted evidence outside of the complaint).
Moreover, the Court can weigh facts, and is not required to view those facts in the light
most favorable to Plaintiff. Id. at 1336.
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To establish standing, a plaintiff must allege: (1) injury-in-fact; (2) a causal
connection between the injury and the conduct complained of; and (3) that it is likely the
injury will be redressed by a favorable ruling. See Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992); see also Houston, 733 F.3d at 1328. In the ADA context, when seeking
prospective, injunctive relief, a plaintiff must also plausibly show that she will suffer
disability discrimination by the defendant in the future. Houston, 733 F.3d at 1328. This
means that the threat of future injury must be “real and immediate—as opposed to merely
conjectural or hypothetical.” Id.
Here, Plaintiff meets the first two elements of standing. First, Plaintiff has
sufficiently shown an injury-in-fact based on the barriers she faced at Defendant’s
Property. (See Doc. 45-1, ¶ 5). Being deterred from returning to Defendant’s property in
the future due to discriminatory barriers establishes a “cognizable interest for purposes
of standing.” See Hoewischer v. Cedar Bend Club, Inc., 877 F. Supp. 2d 1212, 1222 (M.D.
Fla. 2012) (citation and quotation marks omitted). Second, Plaintiff satisfies causation
because her alleged injury-in-fact occurred at the Property where she encountered those
barriers. See De Palo v. Walker Ford Co., No. 8:15-cv-169-T-27AEP, 2015 WL 4506890,
at *3 (M.D. Fla. July 23, 2015).
Finally, Plaintiff must demonstrate that her injury “will be redressed by a favorable
decision.” See Houston, 733 F.3d at 1328. To do so where, as here, the plaintiff seeks
prospective injunctive relief, she must show that she will plausibly suffer future disability
discrimination from the defendant. See Hoewischer, 877 F. Supp. 2d at 1222. To establish
the requisite “real and immediate threat of future injury,” a plaintiff pursuing injunctive
relief “under Title III either must ‘have attempted to return’ to the non-compliant building
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or at least ‘intend to do so in the future.’” Houston, 733 F.3d at 1336 (first quoting O’Shea
v. Littleton, 414 U.S. 488, 496 (1974); and then quoting Shotz v. Cates, 256 F.3d 1077,
1082 (11th Cir. 2001)).
Analyzing the threat of future discrimination frequently turns on four factors: “(1)
the proximity of the place of public accommodation to plaintiff’s residence, (2) past
patronage of defendant’s business, (3) the definitiveness of plaintiff’s plan to return, and
(4) the plaintiff’s frequency of travel near the defendant.” 1 See Hoewischer, 877 F. Supp.
2d at 1223. The standing determination for a plaintiff seeking injunctive relief is a “factsensitive inquiry[.]” Houston, 733 F.3d at 1340. “District courts must consider the totality
of all relevant facts to determine whether a plaintiff faces a real and immediate threat of
injury.” Id. at 1337 n.6. For the reasons discussed below, the Court finds that Plaintiff’s
likelihood of suffering a future injury is speculative or conjectural.
The first factor weighs in Defendant’s favor. According to Defendant’s motion to
dismiss, the distance between Plaintiff’s residence and Defendants’ property is
approximately 240 miles. 2 (Doc. 4, p. 3). The Eleventh Circuit has suggested that such a
distance tends to negate the likelihood of future injury absent other connections to the
area in question. See Houston, 733 F.3d at 1337 (finding standing present where the
plaintiff lived 30.5 miles from the business in question, but noting, “[o]f course, different
1
Plaintiff, in her Response to Defendant’s Motion to Dismiss, characterizes this fourpart test as a departure from Houston v. Marod Supermarkets, Inc., an Eleventh
Circuit ADA case binding on this Court. (Doc. 45, p. 10). Plaintiff is wrong. The fourfactor test was discussed approvingly by the Houston court, which “considered each
of the four factors in reaching” a decision, but cautioned that the four factors are not
exclusive and none of the factors are dispositive. Houston, 733 F.3d at 1337 n.6. The
Houston court also directed district courts to apply a “totality of the facts” standard. Id.
2
Plaintiff does not dispute this contention.
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facts may demand a different conclusion” had the plaintiff lived “hundreds of miles away
from the store with no particular reason to return”). The likelihood of future injury is
therefore lessened based on this distance.
Second, Plaintiff’s past patronage does not weigh in her favor. At the time Plaintiff
initiated this action, she had allegedly visited the Property once, in December 2016. (Doc.
36, ¶ 8). By only visiting the Property once before filing, Plaintiff has not established that
she is a frequent visitor to the Property.
The third factor does not decisively tilt in either direction. In the Second Amended
Complaint, Plaintiff disclosed “plans to return to the [P]roperty in the near future,
specifically, in September of [2017], to avail herself of the goods and services offered to
the public at the [P]roperty, and to determine whether the [P]roperty has been made ADA
compliant.” (Doc. 36, ¶ 8). Subsequently, Plaintiff averred by affidavit a plan to visit
“Volusia County frequently during the upcoming months and [to visit Defendant’s
property] in the near future.” (Doc. 45-1, ¶ 8). Plaintiff’s intent to return allegations are
facially formulaic, and Plaintiff’s intent to return to test for ADA compliance is the only
motivating factor that withstands scrutiny. An intent to return in the future to a place oncevisited without an additional connection to the area or reason to visit again does not suffice
for standing. Cf. Houston, 733 F.3d at 1336 (finding that, despite the distance to the store,
plaintiff there had standing because the market at issue was on the way to his attorney’s
office in Miami, which he had reason to visit with frequency). Although Plaintiff failed to
specifically articulate a motive for future visits to Defendant’s property aside from her
motive as an ADA tester, the tester motive has been recognized as legitimate by the
Eleventh Circuit. Id. However, a desire to return to test for ADA compliance has not been
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recognized by the Eleventh Circuit as sufficient, without more, to give rise to standing.
Rather, it has been considered alongside other facts demonstrating a plaintiff’s concrete
plan to return to a property. See, e.g., id. The third factor is thus relatively neutral.
The fourth factor weighs in Plaintiff’s favor. In her affidavit, Plaintiff avers that she
has visited Volusia County frequently since 2016, making at least twenty-five visits since
February 2017. (Doc. 45-1, ¶ 8). The Court finds these contentions credible, thus the
fourth factor weighs in Plaintiff’s favor.
Under the “totality of the facts,” the Court finds Plaintiff has failed to meet her
burden of establishing standing. Only one factor tilts in Plaintiff’s favor, while the first two
factors decisively weigh against Plaintiff. Without more, Plaintiff’s bare allegation of
generalized plans to travel more than 200 miles to inspect Defendant’s property for ADA
compliance fails to demonstrate a likelihood of future injury.
Absent standing, Plaintiff’s claims cannot continue, so the Court need not address
Defendant’s other grounds for dismissal. (Doc. 40). Moreover, because this is a factual
attack in which Plaintiff submitted evidence to support her standing in this case, further
opportunity to amend her complaint is not warranted. See, e.g., Lamb v. Charlotte Cty.,
429 F. Supp. 2d 1302, 1305–11 (M.D. Fla. 2006) (granting defendant’s 12(b)(1) factual
attack on plaintiffs’ standing and terminating case). Plaintiff’s Second Amended
Complaint, therefore, is dismissed with prejudice.
IV.
CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
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1. Defendant, New Smyrna ACD, LLC.’s Motion to Dismiss the Second
Amended Complaint with Prejudice (Doc. 40) is GRANTED in part and
DENIED in part.
a. The Motion is GRANTED based on Defendant’s 12(b)(1) Motion to
Dismiss for lack of subject matter jurisdiction.
b. In all other respects, the Motion is DENIED.
2. Plaintiff Patricia Kennedy’s Second Amended Complaint (Doc. 36) is
DISMISSED WITH PREJUDICE.
3. The Clerk is DIRECTED to close this case and terminate any pending
deadlines.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 22, 2017.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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