De Palo v. Walker Ford Co., Inc.
ORDER denying 11 motion to dismiss. Signed by Judge James D. Whittemore on 7/22/2015. (KE)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
NICHOLAS RYAN DE PALO,
Case No: 8:15-cv-169-T-27AEP
WALKER FORD CO., INC.,
BEFORE THE COURT is Defendant Walker Ford Company's Motion to Dismiss (Dkt.
11), and Plaintiffs response (Dkt. 22). Upon consideration, the Motion to Dismiss is DENIED.
Plaintiff, Nicholas Ryan De Palo, alleges he is a disabled person who resides in Palm Beach
County, Florida. (Dkt. 1, if 2). Plaintiff acts as a "tester," visiting public places to determine if they
are in compliance with the regulations of the ADA and seeking injunctions to remedy violations
where they exist. (Id.,
Plaintiff is also employed in the apparel industry and involved with
motor-cross and super-cross racing. (Id.,
1, 6). Due to his business, plaintiff often travels
throughout Florida. (Id., if 6).
Defendant, Walker Ford Co., Inc., is a merchant of new and used motor vehicles located in
Clearwater, Florida. (Id., ifif 7-8). In 2014 the Plaintiff visited the Defendant's place of business on
several occasions in order to purchase a vehicle that would accommodate his wheelchair. (Id., ifif 4,
7). During these visits, Plaintiff encountered a number of barriers which limited his ability to access
the Defendant's place of business. (Id., if 19). These barriers included obstacles to parking, entrances,
paths of travel, goods and services, and the restroom facilities. (Id.) Plaintiff subsequently filed this
complaint, alleging that Defendant is in violation of the ADA and seeking injunctive relief. (Id.,~~
18-25). Plaintiff alleges that a remedy for the listed barriers is "readily achievable and can be
accomplished and carried out without much difficulty or expense." (Id., ~ 22). Plaintiff further
alleges that he "intends to visit the facility again in the near future in order to utilize all of the goods,
services, facilities, privileges, advantages and/or accommodations commonly offered at this facility,"
and that "[i]ndependent of subsequent visits for personal reasons, [he] intends to visit the premises
annually to verify its compliance or non-compliance with the ADA." (Id,
In response to the Plaintifr s Complaint, Defendant filed a Motion to Dismiss challenging
Plaintiffs standing and the sufficiency of his allegations. (Dkt. 11)
A 12(b)(l) Motion to Dismiss challenges the court's jurisdiction based on subject-matter
jurisdiction. Fed. R. Civ. P. 12(b)(l). This challenge can be either facial or factual. Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (I Ith Cir. 1990).
"Facial attacks" on the complaint "require the court merely to look and see if [the]
plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the
allegations in his complaint are taken as true for the purpose of the motion." . . .
"Factual attacks," on the other hand, challenge the "existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings,
such as testimony and affidavits, are considered."
Id. at 1529 (alterations in original)(intemal citations omitted).
Article III, Section II of the U.S. Constitution limits the power of the Federal Courts,
allowing them to hear only actual cases and controversies. Cone Corp. v. Fla. Dep 't o/Transp., 921
F.2d 1190, 1203 (11th Cir. 1991). Standing is one part of this requirement. Id. A plaintiff must meet
three requirements in order to have Article III standing when seeking injunctive relief, as here: "(1)
'injury-in-fact'; (2) '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."' Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1328 (11th Cir. 2013).
Rule 8(a)(2) of the Federal Rules of Civil Procedure further requires a plaintiff to provide a
short and plain statement of his claim sufficient to demonstrate an entitlement to relief and to give
fair notice of the grounds on which the claim rests. Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). While a plaintiff is not required to detail the facts on which his
claim is based, the holding in Twombly requires "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action." 550 U.S. at 555. While the general rule is that all of
the factual allegations in a complaint must be accepted as true for the purposes of a motion to
dismiss with the exception of "legal conclusions," Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), this
does not hold true in a Rule 12(b)(l) factual motion. When a 12(b)(l) factual motion to dismiss is
brought, the trial court has "substantial authority ... to weigh the evidence and satisfy itself as to the
existence of its power to hear the case." Lawrence, 919 F.2d at 1529. Accordingly, "no presumptive
truthfulness attaches to the Plaintiff's allegations, and the existence of disputed material facts will
not preclude the trial court from evaluating for itself the merits of jurisdictional claims." Id
Plaintiff Shows Actual or Imminent Injury in Fact Traceable to the
Defendant's Actions Which Can Be Redressed By a Favorable Decision
Defendant contends that Plaintiff has failed to demonstrate standing. In order to have
standing under Article III of the Constitution, the plaintiff must satisfy three requirements, the first
of which is "injury-in-fact." Houston, 733 F.3d at 1328. An "injury in fact" is "an invasion of a
legally protected interest which is (a) concrete and particularized and (b) 'actual or imminent, not
"conjectural" or "hypothetical.""' Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Here,
the Plaintiff alleges that he suffered an injury in fact when he visited the Defendant's place of
business on multiple occasions in 2014 and encountered barriers which precluded or limited his
access to the facility and the goods and services therein. (Dkt. 1,
16). Because the ADA
mandated that places of public accommodation remove such barriers no later than January 26, 1993,
(42 U.S.C. § 12182, 28 C.F.R. § 36.508), when Plaintiff encountered said barriers in Defendant's
place of business in 2014 he experienced an invasion of his statutory rights that was concrete, not
hypothetical. See Houston, 733 F.3d at 1332 (holding that ADA plaintiffs statutory rights were
invaded when he encountered architectural obstacles at the location in question, regardless of his
motive for visiting the facility). Plaintiff has therefore satisfied prong one of Article III standing.
The second requirement in order for the Plaintiff to have standing under Article III is "a
causal connection between the asserted injury-in-fact and the challenged action of the defendant."
Houston, 733 F.3d at 1328. Because these barriers were encountered on the premises of the
Defendant's place of business, an area under the direct control ofthe Defendant, the Plaintiffs injury
can be traced to the Defendant's actions. Plaintiff has therefore satisfied prong two of Article III
The third requirement in order for Plaintiff to have standing under Article III is "that the
injury will be redressed by a favorable decision." Houston, 733 F.3d at 1328. Defendant asserts that
the Plaintiff has expressed no specific intent to return to the Defendant's place of business and
therefore his injury will not be redressed by a favorable decision. Defendant relies on Lujan, which
requires more than "some day" intentions that the Plaintiff will return to the location in question. 504
U.S. at 564. However, Houston v. Marod Superkmarkets, Inc. and Stevens v. Premier Cruises, Inc.,
recent ADA cases from the Eleventh Circuit, provide support for Plaintiffs claim that an intent to
return in the near future is sufficient to establish redressability, and that Plaintiffs status as a tester
is irrelevant to determining whether his injury is redressable. In Stevens v. Premier Cruises, Inc., the
Eleventh Circuit held that Stevens' proffered amended complaint, in which "[p]laintiff alleged that,
in the near future, she would take another cruise aboard Defendant's ship" was sufficiently
redressable. 215 F.3d 1237, 1239, 1243 (11th Cir. 2000). Here, the plaintiff similarly pleads that he
"intends to visitthe [Defendant's place ofbusiness] again in the near future." (Dkt. 1, ~ 17). Plaintiff
further alleges that "[i]ndependent of subsequent visits for personal reasons, Plaintiff intends to visit
the premises annually to verify its compliance or non-compliance with the ADA, and its maintenance
of the accessible features of the premises." (Id.,~ 3). This specific intent to return on an annual basis
is far from the "some day" intentions expressed by the plaintiffs in Lujan. Cf 504 U.S. at 563-64
(holding that defendants' intent to return to Sri Lanka "in the future" without more concrete plans
was insufficient to support standing for injunctive relief). 1 Plaintiff therefore satisfies prong three
for Article lII standing.
Plaintiff is Not Required to Plead the Precise Dates and Times of His Visits to
Defendant's Place of Business
1 In its Motion to Dismiss, Defendant cites multiple cases from the Middle District of Florida and the Southern
District of California where the court considered the distance between the plaintiffs residence and the place of public
accommodation, as well. as the number of ADA lawsuits that the plaintiff filed, in determining the plausibility of the
plaintiffs intent to return to the location in question. The cases cited by Defendant were decided prior to Houston, in
which the Eleventh Circuit held that a "tester" plaintiff had standing to bring suit against a supermarket allegedly
violating the ADA. 733 F. 3d at1336-37. In light of Houston, Defendant's arguments lack persuasiveness.
Defendant asserts Plaintiff failed to plead with specificity the precise dates and times of his
visits to the Defendant's place of business. However, even under the heightened standards of
pleading post-Twombly/Iqbal, Plaintiffs statement that he visited the Defendant's place ofbusiness
"on several occasions in at least 2014,"(Dkt. 1, ~ 4), is sufficient to meet the burden. See Iqbal, 556
U.S. at 678 ("[T]he pleading standard Rule 8 announces does not require 'detailed factual
allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation."). In this case, a failure to plead the precise dates and times of his visits is not fatal to the
plaintiffs claim. See Fed. R. Civ. P. 8(a)(2) (requiring a short, plain statement of the claim entitling
pleader to relief).
Plaintiff's Listed Barriers Are Not "Generic" or "Vague"
Defendant's third assertion is that the Plaintiffs descriptions of the barriers he encountered
on the Defendant's premises are "generic" and "vague." (Dkt. 11, ~ 8). Plaintiff has provided the
Defendant not only with a general description of the areas of its facility which are non-compliant
with the mandates of the ADA (parking and entrance access areas, paths of travel, access areas to
goods and services, and restrooms), but has also detailed what portions of these areas are noncompliant, describing violations such as "non-compliant ramps that service the disabled parking
spaces," and "non-compliant grab bars on the rear wall and side wall within the accessible [restroom]
stall at the facility." (Dkt. 1, ~ 19). Accordingly, there is no merit to the Defendant's claim that the
Plaintiffs listed barriers are generic and vague.
Pre-Suit Notice is Not Required
Defendant next raises the issue that Plaintiff did not make efforts to communicate with the
property owner prior to filing his complaint. While Plaintiff acknowledges that this fact is true,
Plaintiff is also correct in asserting that it is irrelevant. Pre-suit notice is not required under Title III
of the ADA. See Assoc. of Disabled Am. v. Neptune Designs, Inc .. See 469 F.3d 1357, 1360 (11th
Cir. 2006) ("We stress that pre-suit notice is not required to commence suit under the ADA and that
lack of pre-suit notice does not compel a reduction of the requested fee award.").
Plaintiffs "Tester" Status Does Not Affect Standing
Defendant's final contention is that Plaintiffs status as a "tester" destroys standing. It is not
entirely clear whether Defendant believes that Plaintiffs "tester" status affects his standing because
it undermines his intent to return to the Defendant's place of business, or because Defendant believes
that the Plaintiff must be a bona fide patron in order to bring suit under Title III of the ADA. The
former argument has already been rejected in Section B, supra.
The provisions of Title III on which Plaintiff relies do not require that he be a bona fide
patron. Houston states that the bona fide patron or "client and customer" limitation only applies to
"three specific prohibited activities: (i) denial of participation, (ii) participation in unequal benefit,
and (iii) separate benefit." 733 F.3d at 1333. This limitation does not apply to 42 U.S.C. §§ 12182(a),
12182(b)(2)(A)(iv), or 12188(a), on which Plaintiffs case relies. Id. In reaching this conclusion, the
Eleventh Circuit noted that "[t]he substantive right conferred by the statute is to be free from
disability discrimination in the enjoyment of the facility, regardless of [the plaintiffs] motive for
visiting the facility." Id. The Eleventh Circuit further held that" [n] othing in [the] statutory language
precludes standing for tester plaintiffs; if anything, 'no individual' and 'any person' are broad terms
that necessarily encompass testers." Id. at 1332. As such, Plaintiffs "tester" status is not fatal to his
ability to bring a claim under 42 U.S.C. §§ 12182(a), 12182(b)(2)(A)(iv), and 12188(a).
Accordingly, Defendant's Motion to Dismiss (Dkt. 11) is DENIED. Defendant shall answer
to the complaint within 14 days.
DONE AND ORDERED this
day of July, 2015.
Counsel of Record
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