Taylor v. Wing It Two, Inc. et al

Filing 23

ORDER denying 20 Motion to Strike. Plaintiff shall have up to and including July 19, 2013, to file a sur-reply addressing the issue of standing raised in 19 Defendants' Reply in Support of Motion to Dismiss. Signed by Judge James I. Cohn on 7/12/2013. (ams)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-61034-CIV-COHN/SELTZER
WILLIAM L. TAYLOR,
Plaintiff,
v.
WING IT TWO, INC., and
COLEMAN POMPANO BEACH, LLC,
Defendants.
__________________________________/
ORDER DENYING MOTION TO STRIKE DEFENDANTS’ REPLY AND DIRECTING
PLAINTIFF TO FILE A SUR-REPLY
THIS CAUSE is before the Court upon Plaintiff’s Motion to Strike Defendants’
Reply in Support of Motion to Dismiss [DE 20]. The Court has considered the motion,
Defendants’ response [DE 21], the record in this case, and is otherwise fully advised in
the premises.
Plaintiff William L. Taylor is a disabled individual as defined by the Americans
with Disabilities Act (“ADA”), 42 U.S.C. § 12181, et seq. DE 1 ¶ 2. Plaintiff alleges that,
in April 2013, Plaintiff visited the business premises of Defendants Wing It Two, Inc.,
and Coleman Pompano Beach, LLC (together, “Defendants”) as a customer. Id. ¶ 3.
While there, Plaintiff purchased goods and attempted to use the restroom facilities. Id.
Plaintiff claims that, during his visit, he encountered several “unlawful physical barriers,
dangerous conditions, and ADA violations” which limited his ability to access the
property and experience equal enjoyment of the goods, services, and accommodations
therein. Id. ¶ 18. Plaintiff further avers that he lives in the vicinity of the business, and

intends to visit there again within the next six months. Id. ¶ 4.
On May 3, 2013, Plaintiff brought this action against Defendants for violations of
the ADA and the ADA’s Accessibility Guidelines, 28 C.F.R. Part 36. On May 24, 2013,
Defendants filed their respective Motions to Dismiss [DE’s 9, 10], both seeking
dismissal of the Complaint on res judicata grounds. Defendants asserted that they
have previously been sued for ADA violations, albeit by a different plaintiff, and that the
plaintiffs in that action had interests identical to those of Plaintiff in this case. On June
13, 2013, Plaintiff responded to the Motion to Dismiss, arguing that the application of
res judicata would be inappropriate in this action. See DE 18. On June 24, 2013,
Defendants filed their Reply in Support of Motion to Dismiss [DE 19] (“Reply”), in which
they reasserted their res judicata argument, but also contended that the Complaint
should be dismissed for lack of standing.
In the instant motion, Plaintiff moves to strike the Reply for two reasons. First,
Plaintiff asserts that the Reply was not timely filed. This argument is unavailing. Local
Rule 7.1(c) allows a movant to serve a reply memorandum within seven days after
service of a response. Local Rule 7.1(c)(1)(A) then provides the method for computing
time, as follows:
(A) If the motion or memorandum was served by mail or filed via CM/ECF,
count fourteen (14) days (seven (7) days for a reply) beginning the day
after the motion, response, or memorandum was certified as having been
mailed or filed via CM/ECF. If the last day falls on a Saturday, Sunday, or
legal holiday, the period continues to run until the next business day.
Beginning on the next calendar day, including Saturday, Sunday, or a
legal holiday, count three (3) days. The third day is the due date for the
opposing memorandum or reply. If the third day falls on a Saturday,
Sunday, or legal holiday, the due date is the next business day.
Here, Plaintiff filed via CM/ECF his Memorandum of Law Opposing Defendants’
2

Motions to Dismiss [DE 18] (“Response”) on June 13, 2013. The seventh day after the
filing was June 20, 2013. Counting three more days after that brings us to June 23,
2013, which was a Sunday. Thus, the due date for the Reply was the next business
day, June 24, 2013, and it was therefore timely filed.
Second, Plaintiff argues that the Reply should be stricken because it raises
arguments outside the scope of the Motion to Dismiss and Plaintiff’s Response thereto.
Indeed, Local Rule 7.1(c) provides that “[a] reply memorandum shall be strictly limited
to rebuttal of matters raised in the memorandum in opposition without reargument of
matters covered in the movant’s initial memorandum of law.” Plaintiff argues that the
Reply should be stricken because it raises a new argument with regard to standing.
Defendants respond that standing goes to the Court’s subject-matter jurisdiction, and
therefore a standing challenge can be raised at any point in the case. DE 21 at 2 (citing
Worth v. Seldin, 422 U.S. 490, 498 (1975)). Defendants represent that, if Plaintiff had
moved to file a sur-reply to respond to the issue of standing, Defendants would not
have objected to such a request.
The Court agrees with Plaintiff that Defendants’ Reply clearly violates the
requirements of Local Rule 7.1(c). However, “[s]tanding is a threshold jurisdictional
question which must be addressed prior to and independent of the merits of a party’s
claims.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005) (quoting
Dillard v. Baldwin Cnty. Comm’rs, 225 F.3d 1271, 1275 (11th Cir. 2000). Therefore, the
Court concludes that it is appropriate to give Plaintiff leave to file a sur-reply to address
the issue of standing, should it choose to do so. See ABCO Premium Fin. LLC v. Am.
Int’l Grp., Inc. No. 11-23020-CIV-SCOLA/BANDSTRA, 2012 U.S. Dist. LEXIS 111833,
3

at *11 (S.D. Fla. Aug. 9, 2012) (“While the raising of new issues . . . in reply brief is
improper, a court has the discretion to consider the additional exhibits despite this
procedural shortcoming.”) (internal quotations omitted). Accordingly, it is hereby
ORDERED AND ADJUDGED as follows:
1.

Plaintiff’s Motion to Strike Defendants’ Reply in Support of Motion to
Dismiss [DE 20] is DENIED;

2.

Plaintiff shall have up to and including July 19, 2013, to file a sur-reply
addressing the issue of standing raised in Reply in Support of Motion to
Dismiss [DE 19].

DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 12th day of July, 2013.

Copies provided to:
Counsel of record via CM/ECF.

4