Herbold v. Cottam, M.D., P.A. et al

Filing 25

ORDER denying 11 Defendant's motion to dismiss. Signed by Judge Charlene Edwards Honeywell on 10/31/2014. (AHH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN HERBOLD,
Plaintiff,
v.

Case No: 8:14-cv-264-T-36MAP

JOHN COTTAM, M.D., P.A.,
Defendant.
___________________________________/
ORDER
This cause comes before the Court upon the Defendant John Cottam, M.D., P.A.’s 1 Motion
to Dismiss Second Amended Complaint for Lack of Subject Matter Jurisdiction (Doc. 11).
Plaintiff John Herbold responded in opposition to this motion (Doc. 16). The Court, having
considered the motion and being fully advised in the premises, will deny Defendant’s Motion to
Dismiss.
I.

BACKGROUND
A.

Statement of Facts 2

Herbold is a deaf individual who prefers to communicate using American Sign Language.
Around September 2011, he sought medical attention from Cottam regarding a dermatological
issue on his face. A week prior to his first appointment, Herbold requested that a sign language
interpreter be provided, but when Herbold arrived for the appointment, no interpreter was present.

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The Defendant in this case is John Cottam, M.D., P.A., and is referred to herein as
“Defendant.” Dr. John Cottam, the individual, is referred to as “Cottam.”
2
The following statement of facts is derived from Plaintiff’s Second Amended Complaint (Doc.
9), the allegations of which the Court must accept as true in ruling on the instant Motion to
Dismiss. See Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de
Centro Am., S.A. v. Latin Am. Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir. 1983).

Herbold then made an additional request for an interpreter, and one was sent to the appointment.
After arriving, the interpreter translated the dialogue between Cottam and Herbold, explaining
various aspects of the medical procedure. Herbold subsequently met with Cottam on two more
occasions: once, for the surgical procedure itself, and once, for the follow-up. At both the
meetings, no interpreters were present, and despite Herbold’s requests for an interpreter, none were
provided.
B.

Procedural History

Herbold filed a complaint alleging that Defendant discriminated against him on the basis
of his disability in violation of 42 U.S.C. § 12181(7) (Count I) and alleging discrimination under
the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Count II). See Doc. 1. Herbold claims that, as a
consequence of Defendant’s refusal to provide him with an interpreter, he was uninformed as to
the surgery and the results of any tests, and was unable to effectively ask questions or voice
concerns about his condition and future care. Defendant now brings a motion to dismiss on the
grounds that Herbold has failed to adequately allege standing. 3
II.

DISCUSSION
The doctrine of constitutional standing serves to identify the disputes that may be resolved

by a federal court, see Summers v. Earth Island Institute, 555 U.S. 488, 492-93 (2009), and its
central purpose is to ensure that the parties before the Court have a concrete interest in the outcome
of the proceedings such that they can be expected to frame the issues properly, see Harris v. Evans,
20 F.3d 1118, 1121 (11th Cir. 1994) (en banc), cert. denied, 513 U.S. 1045 (1994). If a district

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Defendant also refers to Rule 12(b)(6), Fed. R. Civ. P., as a basis for dismissal of the
complaint. However, the argument in the motion pertains to standing. To the extent Defendant
contends that the complaint fails to state a claim for relief, the Court disagrees. Plaintiff’s
complaint states a plausible claim for relief.
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court determines that there is no standing and thus no subject matter jurisdiction, it cannot hear the
merits of the case. See Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974-75 (11th Cir. 2005).
Consequently, every complaint must contain sufficient allegations of standing. See Church v. City
of Huntsville, 30 F.3d 1332, 1336 (11th Cir. 1994). In order to establish standing, a plaintiff must
adequately allege and ultimately prove three elements: (1) that he or she has suffered an “injuryin-fact;” (2) that there is a causal connection between the asserted injury-in-fact and the challenged
action of the defendant; and (3) that the injury will be redressed by a favorable decision. See Shotz
v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (citing Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992)).
A defendant may seek to dismiss a complaint for the lack of subject matter jurisdiction in
two ways: facial, and factual. See Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990).
A facial attack requires the court “merely to look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction.” Id. at 1529 (quotation marks, alterations, and citations
omitted). In evaluating a facial challenge, a court thus affords the plaintiff “safeguards similar to
those provided in opposing a Rule 12(b)(6) motion—the court must consider the allegations of the
complaint to be true.” Id. (citation omitted). On the other hand, a factual attack challenges the
facts in the pleadings upon which subject matter jurisdiction is premised, and requires a court to
consider matters outside the pleadings, such as testimony and affidavits. See id. To evaluate a
factual attack where the jurisdictional basis of a claim is intertwined with the merits, a court applies
a Rule 56 summary judgment standard—that is, it considers the evidence in the light most
favorable to the non-moving party and determines whether there remains a genuine dispute of
material fact. See Odyssey Marine Exploration, Inc. v. Unidentified Shipwrecked Vessel, 657 F.3d
1159, 1169 (11th Cir. 2011); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

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A.

Facial Challenge

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 provides that “[n]o
otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .”

Regulations

promulgated by the Department of Health and Human Services offer guidance regarding the
requirements of this statute. See Liese v. Indian River County Hospital Dist., 701 F.3d 334, 342
(11th Cir. 2012). In relevant part, these regulations provide that prohibited discriminatory actions
include “[p]rovid[ing] a qualified handicapped person with an aid, benefit, or service that is not as
effective as that provided to others.” 45 C.F.R. § 84.4(b)(iii). These regulations further require
the provision of “appropriate auxiliary aids to persons with impaired sensory, manual, or speaking
skills, where necessary to afford such persons an equal opportunity to benefit from the service in
question.” Saltzman v. Bd. of Commissioners of the N. Broward Hospital Dist., 239 Fed. App’x
484, 487 (11th Cir. 2007) (quoting 45 C.F.R. § 84.52(d)).
Defendant argues that he is entitled to dismissal because the Complaint “fails to allege
sufficient facts to show that Plaintiff was discriminated against solely by reason of his or her
disability.” Doc. 11 at 3. The thrust of Defendant’s contentions are that Herbold’s pleadings are
insufficient because he alleges only that he was not given an interpreter during the second and
third appointments, but does not set forth any reasons as to why an interpreter was required for
effective communications or why effective communications during those appointments were even
necessary for participation in his treatment. Doc. 11 at 3-5. Defendant thus reasons that, because
Herbold has not alleged factual support for why an interpreter was the “only option to comply with

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the Rehabilitation Act,” he has not demonstrated a case and controversy that falls within the
Court’s jurisdiction. Doc. 11 at 5.
The Court is not persuaded by this argument. To begin with, whether an interpreter was
an “appropriate” auxiliary aid is a fact-intensive determination that is inappropriate for resolution
on the pleadings. See Liese, 701 F.3d at 342-43. Moreover, Herbold has pleaded facts that, if
taken as true, establish that Defendant failed to provide an appropriate auxiliary aid, denying him
the opportunity to obtain service as effective as that provided to a non-disabled person. Indeed,
Herbold has alleged that he was unable to fully understand what took place during his second and
third appointments because of his disability (i.e., his deafness), Compl. ¶ 9, and that Defendant
denied him the opportunity to understand his condition and/or treatment by refusing to provide
him with an interpreter during those appointments, Compl. ¶¶ 2-3.
Defendant also argues that the Complaint fails to demonstrate an injury-in-fact because,
aside from the fact that Herbold was not given an interpreter, “there are no allegations
demonstrating how Plaintiff was prevented from effectively communicating.” Doc. 11 at 6. This
is incorrect. Herbold has alleged that, as a consequence of not having an interpreter, he “did not
fully understand what took place” and “was unable to effectively ask questions or voice concerns
about his condition and what future care was needed.” Compl. ¶ 9; see also Compl. ¶ 18.
B.

Factual Challenge

Defendant also challenges the factual allegations pled in the Complaint, arguing that they
“are simply untrue.” Doc. 11 at 6. Defendant submits Cottam’s affidavit, which is conclusory in
part, but claims as follows: (1) that Herbold agreed that an interpreter would not be required for
the second and third appointments because passing notes would be sufficient, Doc. 11-1 (“Cottam
Aff.”) ¶ 11; (2) that, at the first meeting, Herbold was given an opportunity to ask questions and it

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was clear that he understood the process, risks, and procedures by the end of that meeting, Cottam
Aff. ¶ 12; (3) that Herbold never requested an interpreter during his second and third visits, Cottam
Aff. ¶ 13; (4) that no detailed communications were necessary for the second and third meetings,
Cottam Aff. ¶¶ 16-21; and (5) that he was able to effectively communicate with Herbold during
all three meetings, Cottam Aff. ¶ 22. Although it is not immediately clear how these facts relate
to standing, they presumably go to the injury-in-fact element and are intertwined with the merits
of Herbold’s claim.
In response, Herbold submits his own declaration countering each of these points: (1) that
he never told Cottam he would not need an interpreter or that he could communicate by passing
notes, Doc. 16-1 (“Herbold Decl.”) ¶ 26; (2) that, after the first meeting, he still did not know what
his condition could be, nor was he given any idea about a potential diagnosis, Herbold Decl. ¶ 10;
(3) that he requested an interpreter at the second and third appointments, Herbold Decl. ¶¶ 14, 20;
and (4) that he was unable to understand what was happening to him at the second and third
meetings, Herbold Decl. ¶¶ 18, 19, 27; and (5) that he does not understand written notes or read
lips, and that ASL is his primary, predominant, and preferred form of communications, Herbold
Decl. ¶ 5.
The parties have presented an affidavit and declaration which contain disputed facts, some
of which implicate elements of the cause of action. What is not in dispute, however, is: (1) that
Plaintiff is deaf; (2) that he prefers to communicate using American Sign Language; and (3) that
no interpreter was provided for his second and third visits with Cottam.
Finally, Defendant also argues that the Complaint fails to satisfy the injury-in-fact element
because it “is completely devoid of any allegations as to what damages Plaintiff claims to [have]
suffered.” Doc. 11 at 9. This argument fails, however, because it conflates injury-in-fact with

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damages. Herbold has repeatedly alleged that he was unable to effectively communicate with
Cottam regarding his treatment, see, e.g., Herbold Decl. ¶ 27, which is a “concrete and
particularized” injury that he personally and actually suffered, see Lujan, 504 U.S. at 560. For
purposes of a motion to dismiss, Herbold thus has satisfied the injury-in-fact requirement. And
although Herbold must eventually prove any monetary damages that he wishes to recover, he is
not required to set forth a precise figure in his Complaint.
Based on these facts, Plaintiff has demonstrated that standing exists. The Court has
satisfied itself that it has jurisdiction to hear this case.
Accordingly, it is hereby ORDERED:
1.

Defendant’s Motion to Dismiss Second Amended Complaint for Lack of Subject

Matter Jurisdiction (Doc. 11) is DENIED.
DONE AND ORDERED in Tampa, Florida on October 31, 2014.

Copies to:
Counsel of Record

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