Kennedy v. Grova et al

Filing 45

ORDER denying 42 Motion to Dismiss for Failure to State a Claim. Defendant Arlene Grova shall file her Answer to 41 Amended Complaint by no later than 3/13/2012. Signed by Judge James I. Cohn on 2/28/2012. (awe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-61354-CIV-COHN/SELTZER
PATRICIA L. KENNEDY,
Plaintiff,
v.
STEVE M. GROVA and
ARLENE C. GROVA,
Defendants.
_____________________________/
ORDER DENYING DEFENDANT ARLENE GROVA’S
MOTION TO DISMISS AMENDED COMPLAINT
THIS CAUSE is before the Court upon Defendant Arlene C. Grova’s Motion to
Dismiss Amended Complaint [DE 42] (“Motion”). The Court has considered the Motion
and accompanying Memorandum of Law [DE 42-1] (“Memorandum”), Plaintiff Patricia
L. Kennedy’s Response [DE 43], the record in this case, and is otherwise fully advised
in the premises.1
I. BACKGROUND
According to the Amended Complaint [DE 41], Plaintiff Patricia L. Kennedy is a
wheelchair-bound individual with disabilities. Am. Compl. ¶ 10. Plaintiff alleges that
she has encountered architectural barriers at a strip mall property that Defendants
Steve M. Grova and Arlene C. Grova operated, owned, or leased. Id. ¶¶ 7-8, 10.
Plaintiff claims that the barriers have denied or diminished her ability to visit the
property, endangered her safety, and posed a risk of injury, embarrassment, and
discomfort to her. Id. ¶ 11. She states that she wishes to continue patronizing and

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Ms. Grova did not file a Reply, and the time for doing so has passed.

using the premises in the future. Id. ¶ 10.
Based on a preliminary inspection of the property, Plaintiff identified various
violations under the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”),
including violations at the entrance, path of travel, and parking area. Id. ¶ 15.
Accordingly, on June 15, 2011, Plaintiff filed this action for violation of the ADA. Id.
Plaintiff seeks declaratory judgment, injunctive relief, attorneys fees, and costs.
Id. at 6-7.2
On January 19, 2012, the Court granted in part Ms. Grova’s Motion to Dismiss
Complaint [DE 34], dismissing the Complaint without prejudice and with leave to
amend. See Order Granting in Part Defendant Arlene Grova’s Motion to Dismiss
Complaint [DE 40] (“January 19th Order”). Thereafter, on January 20, 2012, Plaintiff
filed her Amended Complaint. Finally, on February 3, 2012, Ms. Grova filed the instant
Motion, seeking to dismiss the Amended Complaint.
II. DISCUSSION
Ms. Grova argues that Plaintiff’s Amended Complaint fails to eliminate all internal
inconsistencies, per the Court’s express directive in the January 19th Order. Plaintiff
also argues that the Amended Complaint fails to plead an indispensable element for an
ADA claim. Plaintiff objects to both bases for dismissal. As described blow, the Court
finds that Plaintiff’s pleading is sufficient to survive dismissal.

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Though Plaintiff filed her initial Complaint against Defendants Steve M.
Grova and Arlene C. Grova, on December 19, 2011, the Court entered an Order
Quashing Service of Process and Vacating Clerk’s Default Against Steve Grova [DE
30]. Therefore, the claims are currently pending only against Ms. Grova. A summons
[DE 44] was issued to Mr. Grova on February 17, 2012, but to date, there is no record
that Mr. Grova has been properly served.
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A. The Complaint is Sufficiently Clear
In evaluating the initial Complaint, the Court previously found as follows:
In sum, the language in the Complaint is confusing. The Court cannot
determine whether Plaintiff brings her claims individually, in some
associational or representative capacity, or as a class action. As such, the
Complaint does not meet Rule 8’s requirement to provide “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Accordingly, the Court will dismiss the Complaint without
prejudice and require that before re-filing, Plaintiff edit her pleading to
eliminate any internal [in]consistencies or typos and clarify the capacity in
which she brings her claims.
January 19th Order at 5 (footnote omitted).
Ms. Grova suggests that Plaintiff has shown “blatant disregard of the Court’s
unambiguous directive,” Mem. at 4, and points to several instances in the Amended
Complaint where Ms. Grova contends that Plaintiff left “some question as to the true
capacity in which she seeks to bring her lawsuit,” id. at 2. Plaintiff responds that the
Amended Complaint leaves no confusion that Plaintiff brings her claims in her individual
capacity. The Court agrees with Plaintiff. Therefore, the Amended Complaint survives
dismissal on this basis.
B. Plaintiff States a Claim for Violation of Title III of the ADA
Title III of the ADA provides, in pertinent part, as follows:
No individual shall be discriminated against on the basis of disability in the
full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by
any person who owns, leases (or leases to), or operates a place of public
accommodation.
42 U.S.C. § 12182(a). The statute provides a list of private entities which “are
considered public accommodations for purposes of this subchapter, if the operations of
such entities affect commerce.” 42 U.S.C. § 12181(7). The list includes a “shopping

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center, or other sales or rental establishment.” See 42 U.S.C. § 12181(7)(E).3
Similarly, the accompanying regulations provide that a “[p]lace of public accommodation
means a facility operated by a private entity whose operations affect commerce and fall
within at least one of the following categories . . . ,” 28 C.F.R. § 36.104. The list of
categories includes “shopping center, or other sales or rental establishment.” Id.
Further, the regulations define “commerce” as “travel, trade, traffic, commerce,
transportation, or communication—(1) Among the several States; (2) Between any
foreign country or any territory or possession and any State; or (3) Between points in
the same State but through another State or foreign country.” Id.
Ms. Grova complains for the first time in the instant Motion that Plaintiff fails to
allege that the operations of the subject entity affect commerce. Mem. at 4. The
Amended Complaint alleges that Defendants “operated, owned or leased a retail strip
mall [the subject property],” Am. Compl. ¶ 7, and Defendants “own, lease, lease to, or

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Ms. Grova suggests that a retail strip mall does not fall within the list of
private entities which are considered “public accommodations” as identified in 42 U.S.C.
§ 12181(7). The Court disagrees.
Courts are required to construe the language of the ADA broadly to accomplish
the goal of the legislation. See PGA Tour, Inc. v. Martin, 532 U.S. 661, 675 (2001).
“The phrase ‘public accommodation’ is defined in terms of 12 extensive categories, §
12181(7), which the legislative history indicates should be construed liberally to afford
people with disabilities equal access to the wide variety of establishments available to
the nondisabled.” Id. at 676. One of the categories listed in the statute includes a
“shopping center, or other sales or rental establishment.” See 42 U.S.C. § 12181(7)(E).
A retail strip mall falls within this category.
Additionally, ADA cases have previously involved retail strip malls. See, e.g.,
Disability Advocates & Counseling Group, Inc. v. Lopez, No. 06-CIV-22650, 2011 WL
1131535 (S.D. Fla. Mar. 25, 2011) (enforcing settlement of ADA lawsuit involving strip
mall property); Vandeusen v. Bordentown Investors, LLC, No. 08-3207 (NLH), 2009 WL
235551 (D.N.J. Jan. 29, 2009) (denying without prejudice motion to dismiss for lack of
standing in this ADA lawsuit involving strip mall property); Access 4 All, Inc. v. G & T
Consulting Co., LLC, No. 06 Civ. 13736(DF), 2008 WL 851918 (S.D.N.Y. Mar. 28,
2008) (granting in part and denying in part motion to dismiss based on lack of standing
in this ADA lawsuit involving strip mall property). Ms. Grova cites no authority for the
proposition that a strip mall cannot be the subject of an ADA lawsuit.
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operate a place of public accommodation as defined by the ADA and the regulations
implementing the ADA, 28 CFR 36.201(a) and 36.104,” id. ¶ 12. Ms. Grova
characterizes these allegations as “bare assertion[s] of legal conclusions.” Mem. at 7.
Plaintiff responds that “[b]y alleging that the retail strip mall owned, operated or leased
by Defendant meets the definition of a ‘public accommodation’ under the provisions of
the ADA and related CFR, Plaintiff has alleged that the subject property is not only a
private entity, but one that affects interstate commerce.” Resp. at 6. Considering the
factual allegations in the Amended Complaint as true and accepting all reasonable
inferences therefrom, as this Court is required to do at the motion to dismiss stage, see
Jackson v. Okaloosa Cnty., Fla., 21 F.3d 1531, 1534 (11th Cir. 1994), the Court finds
that the Amended Complaint states a claim for violation of Title III of the ADA. Of
course, throughout the course of the litigation, Plaintiff will ultimately bear the burden of
proving her allegations, including that the operations of the strip mall affect commerce.
III. CONCLUSION
For the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendant Arlene C. Grova’s Motion to
Dismiss Amended Complaint [DE 42] is DENIED. Ms. Grova shall file her Answer to
the Amended Complaint by no later than March 13, 2012.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 28th day of February, 2012.

Copies provided to:
Counsel of record via CM/ECF

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