Access for the Disabled, Inc. et al v. 7-Eleven, Inc.
Filing
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ORDER denying 3 Defendant's Motion to Dismiss. Signed by Judge James S. Moody, Jr on 6/26/2013. (LN)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ACCESS FOR THE DISABLED, INC., a
Florida not for profit corporation, and
DENISE PAYNE, Individually,
Plaintiffs,
v.
CASE NO: 13-cv-107-T-30TGW
7-ELEVEN, INC.,
Defendant.
_______________________________________________/
ORDER
THIS CAUSE comes before the Court upon Defendant’s Motion to Dismiss (Dkt.
3) and Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss (Dkt. 11).
The Court, having reviewed the motion and response, concludes the motion to dismiss
should be denied.
BACKGROUND
Plaintiffs filed this action seeking injunctive relief under Title III of the ADA (42
U.S.C. § 12181 et seq.) against the 7-Eleven convenience store located at 6619 Midnight
Pass Rd., Sarasota, Florida. Plaintiffs also seek attorneys’ fees and litigation expenses,
including expert fees and costs.
The complaint asserts Payne is a Florida resident who is paralyzed and must use a
wheelchair. (Dkt. #1, p.2). It further asserts Plaintiff “visited the property” in question
for personal reasons and as a “tester” and “intends to visit the property again in the near
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future.” Id. Access is a non-profit corporation existing under the laws of the State of
Florida. Its members include Payne and other individuals with disabilities. Id.
Plaintiffs claim that upon visiting the property Payne “encounter[ed] barriers for
access.” (Dkt. #1, p. 3). It is alleged these barriers deter and deny Plaintiffs “the
opportunity to participate and benefit from the goods, services, privileges, advantages,
facilities and accommodations at Defendant’s property equal to that afforded to other
individuals.” (Dkt. #1, p. 4). And further, since Defendant owns, leases, leases to, or
operates a place a public accommodation as defined by the ADA, Defendant is
responsible for complying with the obligations of the ADA. Id.
Based on this alleged discrimination, Plaintiffs seek to have Defendant remove the
existing “architectural barriers to the physically disabled.”
(Dkt. #1).
Defendant
responds with a motion to dismiss under F.R.C.P. 12(b)(1), claiming Plaintiffs lack
standing.
MOTION TO DISMISS STANDARD
When reviewing a motion to dismiss, a court must accept all factual allegations
contained in the complaint as true, and view the facts in a light most favorable to the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). However, unlike factual
allegations, conclusions in a pleading “are not entitled to the assumption of truth.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Legal conclusions “must be supported by
factual allegations.” Id. Indeed, “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).
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While a “heightened fact pleading of specifics” is not required, “enough facts to
state a claim to relief that is plausible on its face” is necessary. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). Moreover, when the factual allegations are “not only
compatible with, but indeed [are] more likely explained by” lawful activity, the complaint
must be dismissed. Iqbal, 556 U.S. at 680.
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint
provide a “short and plain statement of the claim showing that the pleader is entitled to
relief,” in order to “give the defendant fair notice of what the…claim is and the ground
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957)). Further, the elements of standing “must be
supported in the same way as any other matter on which the plaintiff bears the burden of
proof.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
In order to establish standing, a plaintiff must allege sufficient facts
demonstrating; (1) that he or she suffered an injury-in-fact; (2) there must be a causal
connection between the injury and the conduct complained of ; and (3) it must be likely
as opposed to merely speculative , that the injury will be redressed by a favorable
decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); An injury in fact is
an invasion of a legally protected interest which is (a) concrete and particularized and (b)
actual and imminent, not conjectural or hypothetical. Id. For a causal connection to exist
the injury must be a fairly traceable to the challenged action of the defendant and not the
result of the independent action of some third party not before the court. Id. Further,
“[a]t the pleading stage, general factual allegations of injury resulting from the
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defendant’s conduct may suffice, for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary to support the claim.’” Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
DISCUSSION
Defendant challenges Plaintiff’s standing claiming the complaint does not allege
an injury in fact and there is no real and immediate threat of future injury. The defendant
alleges “[t]he complaint does not adequately allege an injury in fact because it does not
establish how the alleged barriers impacted Payne because of her disability.” (Dkt. 3, p.
12). As mentioned above, an injury-in-fact is an invasion of a legally protected interest
that is (a) concrete and particularized and (b) actual and imminent. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 561 (1992). As a disabled individual, Payne has a legally
protected interest under the ADA. However, the complaint does not state with specificity
the (a) concrete and particularized and (b) actual and imminent injury she suffered. The
complaint only states:
6. In this instance, Ms. Payne, in her individual capacity and for personal
reasons, and as a “tester” visited the property, encountered barriers for
access, and engaged and tested those barriers.
7. Plaintiffs are deterred from, and are denied the opportunity to participate
and benefit from the goods, services, privileges, advantages, facilities and
accommodations at Defendant’s property equal to that afforded to other
individuals.
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(Dkt. 1, p. 3-4)(Emphasis added). Paragraph ten also lists several violations of the ADA
under heading such as “General”, “Accessible Routes”, and “Restrooms.” Although
these allegations lack specificity as to the direct injury Payne sustained, that level of
specificity is not required at this point of the proceedings. These paragraphs provide
general allegations of the injury that occurred and are sufficient to “embrace those
specific facts that are necessary to support the claim.’” Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992).
Defendant next claims Plaintiff cannot establish an immediate threat of future
injury. When seeking prospective injunctive relief, as in the present case, the “[P]laintiff
must plead a genuine threat of immediate as opposed to a merely conjectural or
hypothetical-threat of future injury.” Access for the Disabled, Inc. v. Rosof, 2005 WL
3556046 (M.D. Fla. 2005). In the present case, the Plaintiffs claim Payne “intends to
visit the property again in the near future.” Although Plaintiffs’ allegation may seem like
conjecture because Defendant claims Plaintiff lives over two hundred miles from the
convenience store, at this point in the proceeding, the court is required to accept the
allegations as true. Consequently, Plaintiffs allege sufficient facts to establish standing
and therefore the motion to dismiss will be denied.
CONCLUSION
For the reasons set forth above, the Court finds that Petitioner has failed to
establish he is entitled to federal habeas relief.
It is therefore ORDERED AND ADJUDGED that:
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1.
Defendant’s Motion to Dismiss (Dkt. 3) is DENIED.
DONE and ORDERED in Tampa, Florida on this 26th day of June, 2013.
Copies furnished to:
Counsel/Parties of Record
S:\Odd\2013\13-cv-107 mtd 3.docx
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