Taylor v. Wing It Two, Inc. et al
Filing
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ORDER denying 9 Motion to Dismiss for Failure to State a Claim; denying 10 Motion to Dismiss for Failure to State a Claim. Please see Order for details. Signed by Judge James I. Cohn on 7/19/2013. (sry)
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 MOTIONS TO DISMISS
THIS CAUSE is before the Court upon Defendant Wing It Two, Inc.’s Motion to
Dismiss [DE 9] and Defendant Coleman Pompano Beach, LLC’s Motion to Dismiss
[DE 10]. The Court has considered the motions, Plaintiff’s response [DE 18],
Defendants’ reply [DE 19], Plaintiff’s sur-reply [DE 24] the record in this case, and is
otherwise fully advised in the premises.
I. BACKGROUND
According to the Complaint [DE 1], 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, he 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. In the instant
motions, Defendants assert that Plaintiff does not have standing to bring this action and
that, even if he does, his claims are barred by res judicata. The Court will address each
of these arguments in turn. Plaintiff opposes the motions.
II. STANDING
A. Legal Standards
First, Defendants argue that this case should be dismissed for lack of standing.
A claim cannot proceed in federal court if the plaintiff does not have standing. Valley
Forge Christian Coll. v. Am. United for Separation of Church & State, 454 U.S. 464, 471
(1982). A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1)
encompasses both challenges based on the court’s lack of federal subject matter
jurisdiction and challenges based on lack of standing. Stalley v. Orlando Reg’l
Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (“Because standing is
jurisdictional, a dismissal for lack of standing has the same effect as a dismissal for lack
of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).”); see also Holy Cross
Hosp., Inc. v. Baskot, No. 10-62133-CIV, 2010 WL 5418999, at *2 (S.D. Fla. Dec. 23,
2010) (“Standing is jurisdictional in nature; therefore, Defendants proceeded under Rule
12(b)(1) to dismiss Count I for lack of standing.”).
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A Rule 12(b)(1) standing challenge can be either “facial” or “factual.” Lawrence
v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial challenges attack standing
based solely on the allegations in the complaint and any exhibits attached to the
complaint, see Stalley, 524 F.3d at 1233, and the district court takes the allegations in
the complaint as true when deciding the motion, Lawrence, 919 F.2d at 1529. Factual
attacks challenge standing in fact, encompassing matters outside of the pleadings, and
therefore allow the district court to consider extrinsic evidence such as testimony and
affidavits. Id. When the attack is facial, the trial court must afford the plaintiff the
benefit of “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. at
1529 (citations omitted). But when the attack is factual:
the trial court may proceed as it never could under 12(b)(6) or [Rule] 56.
Because at issue in a factual 12(b)(1) motion is the trial court's
jurisdiction—its very power to hear the case—there is substantial authority
that the trial court is free to weigh the evidence and satisfy itself as to the
existence of its power to hear the case. In short, no presumptive truthfulness
attaches to 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. (citations omitted).
B. Analysis
Here, Defendants have not submitted any affidavits or exhibits in support of their
motions; rather, they assert that Plaintiff’s “conclusory allegations” are insufficient to
support a finding of standing, and that Plaintiff’s allegations are “simply implausible.”
DE 19 at 4-5. The Court therefore finds that Defendants have made a facial challenge
to standing. Accordingly, the Court will accept Plaintiff’s factual allegations as true for
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the purpose of the present motions. See Hoewischer v. Cedar Bend Club, Inc., 877 F.
Supp. 2d 1212, 1221 (M.D. Fla. 2012).
The constitutional standing analysis requires the plaintiff to demonstrate that: (1)
the plaintiff suffered an injury in fact; (2) the injury was causally connected to the
defendant’s action; and (3) the injury will be redressed by a judgment in the plaintiff’s
favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “Additionally, when
a plaintiff seeks prospective injunctive relief, he must show a ‘real and immediate – as
opposed to a merely conjectural or hypothetical – threat of future injury.’” Rosenkrantz
v. Markopoulos, 254 F. Supp. 2d 1250, 1252 (M.D. Fla. 2003) (quoting Shotz v. Cates,
256 F.3d 1077, 1081 (11th Cir. 2001)) (emphasis in original). In ADA cases, the
Eleventh Circuit has held that a plaintiff must “[allege] facts giving rise to an inference
that he will suffer future discrimination by the defendant.” Shotz, 256 F.3d at 1081-82
(finding no standing because “the plaintiffs have not attempted to return, nor have they
alleged that they intend to do so in the future.”). In conducting this analysis, courts
consider the following factors: “(1) the proximity of the place of public accommodation
to plaintiff’s residence, (2) past patronage of defendant’s business, (3) the
definitiveness of plaintiff’s plan to return, and (4) the plaintiff’s frequency of travel near
the defendant.” Hoewischer, 877 F. Supp. 2d at 1222-23 (quoting Fox v. Morris Jupiter
Assocs., No. 05-80689-CIV-MARRA, 2007 U.S. Dist. LEXIS 70884, at *9 (S.D. Fla.
Sept. 25, 2007)). Here, Defendants assert that Plaintiff has failed to plead sufficient
facts to show a likelihood of future discrimination. This argument is unavailing. In the
Complaint, Plaintiff alleges that:
4.
Plaintiff intends to visit the Facility and Property within six months,
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or sooner, to purchase goods. Plaintiff lives in the vicinity of the
Facility. Plaintiff has visited the Facility and Property at least once
before and intends on visiting the Facility and Property within the
next six months, or sooner, as soon as the Facility and Property are
accessible again.
DE 1 ¶ 4. The court in Hoewischer considered a similar set of allegations. In that case,
the plaintiff alleged that he lived 13.4 miles from the defendant’s property, and that he
“plans to return to the subject property within one (1) month of [sic] the barriers
addressed herein are removed and Plaintiff has access to the property as required by
the ADA.” 877 F. Supp. 2d at 1223. The defendant claimed that, based on such
allegations, the threat of future harm was not sufficiently definite to support standing.
The court determined that the plaintiff had sufficiently alleged facts to support the
existence of a definite plan to return to the defendant’s property by stating his intent to
return at a specific time in the near future. See id.; see also Ault v. Walt Disney World
Co., No. 6:07-cv-1785-Orl-31KRS, 2008 U.S. Dist. LEXIS 38775, at *5-6 (M.D. Fla. May
13, 2008) (finding plaintiff’s allegation of an intent to visit the defendant’s property “at a
specific point in time in the near future” to be sufficient to establish standing). Likewise,
in this matter, Plaintiff has alleged that he lives “in the vicinity” of the subject property,
has visited it before, and intends to do so again in the next six months. Accordingly, the
Court concludes that Plaintiff has sufficiently alleged a likelihood of future harm.
Defendants further contend that Plaintiff’s claim that he plans to return to
Defendant’s property is “simply implausible.” Defendants claim that “a review of this
District’s records reveals that Plaintiff, William Taylor, has brought a staggering 143
cases as Plaintiff.” DE 19 at 5. This argument is unpersuasive. As noted above, at
this stage of the proceedings, “the court limits its consideration to the pleadings and
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exhibits attached thereto.” GSW, Inc. v. Long Cnty., Ga., 999 F.2d 1508 , 1510 (11th
Cir. 1993). Thus, assertions related to other lawsuits brought by Plaintiff are not
properly considered at this time. See Hoewischer, 877 F. Supp. 2d at 1223-24 (finding
that defendant’s evidence that plaintiff had filed 100 other ADA lawsuits was irrelevant
to a motion to dismiss). Moreover, even if Plaintiff’s other ADA actions were
considered, “it is plausible that Plaintiff visited a number of business in his locale,
wished to frequent each business, but encountered disability discrimination.” Id.
(quoting Campbell v. Grady’s Bar, Inc., No. 0:10-CV-60648-LSC, 2010 U.S. Dist. LEXIS
69051, at *9 (S.D. Fla. July 12, 2010)). Thus, because Plaintiff has plausibly alleged
standing to bring this action, Defendants’ Rule 12(b)(1) motions will be denied.
III. RES JUDICATA
Defendants also move to dismiss this action as barred by res judicata.
Generally, a party seeking to invoke res judicata based on a prior decision must
establish the following four elements: (1) the prior decision was rendered by a court of
competent jurisdiction; (2) the prior decision was a final judgment on the merits; (3) both
cases involve the same parties or those in privity with them; and (4) both cases concern
the same cause of action. In re Piper Aircraft Corp., 244, F.3d 1289, 1296 (11th Cir.
2001). Here, Defendants assert 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. Defendants attach several docket entries from
the case Advocating Disability Rights, Inc., et al v. Wing It, Inc. d/b/a Wings N’ Things,
No. 00-7486-CIV-MORENO (S.D. Fla. closed Mar. 28, 2001) (“the first case”), showing
that the parties to that action reached a settlement agreement, and that the Court
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approved the agreement and retained jurisdiction to enforce it. See DE 9-1 at 23.
Plaintiff responds that it was neither a party to the first case, nor was it in privity with
any of the parties. Plaintiff further asserts that the causes of action in the two cases are
not identical. The Court agrees with Plaintiff on both counts.
Generally, a nonparty to an action is not bound by a judgment therein.
See Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (noting that “[t]he application of
claim and issue preclusion to nonparties . . . runs up against the deep-rooted historic
tradition that everyone should have his own day in court.”). However, there are six
recognized exceptions to the rule against nonparty preclusion:
A court may apply nonparty preclusion if: (1) the nonparty agreed to be
bound by the litigation of others; (2) a substantive legal relationship
existed between the person to be bound and a party to the judgment; (3)
the nonparty was adequately represented by someone who was a party to
the suit; (4) the nonparty assumed control over the litigation in which the
judgment was issued; (5) a party attempted to relitigate issues through a
proxy; or (6) a statutory scheme foreclosed successive litigation by
nonlitigants.
Griswold v. Cnty of Hillsborough, 598 F.3d 1289, 1292 (11th Cir. 1210) (citing Sturgell,
553 U.S. at 893-895). Here, Defendants acknowledge that Plaintiff was not a party to
the previous suit, but contend that Plaintiff’s interests were adequately represented by
the plaintiffs in that case. In support, Defendants rely on Harty v. Ehden, No. 12-cv14087-KMM, 2012 U.S. Dist. LEXIS 83821 (S.D. Fla. June 18, 2012). In Harty, the
plaintiff brought an action as a “tester” on behalf of himself and other persons with
disabilities. 2012 U.S. Dist. LEXIS 83821, at * 7. In a prior action, a plaintifforganization brought an ADA action against the same defendant. In that action, the
organization asserted that it “represent[s] the interest of its members by assuring places
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of public accommodation are accessible to and usable by the disabled . . . . “ Id. The
Court determined that the plaintiffs in the two actions had identical interests, as both
sought to enforce the ADA for the benefit of themselves and others. Id. On that basis,
the Court held that the Harty plaintiff’s interests had been adequately represented, and
the doctrine of res judicata barred the claim.
The holding of Harty is inapposite to the present case. Unlike in Harty, Plaintiff in
this action is neither a tester nor a member of the plaintiff-organization that brought the
first case. To the contrary, Plaintiff brought this suit on his own behalf to enjoin
personal discrimination, and does not claim to represent the interests of others.
Therefore, the Court finds that Plaintiff was not in privity with the plaintiffs in the first
case and that his interests were not adequately represented. Moreover, a comparison
of the settlement agreement in the first case with Plaintiff’s Complaint in the instant
matter shows that Plaintiff’s specific claims have not previously been settled.1 In this
case, Plaintiff seeks repairs to the parking spaces, ramps, service counters, tables, and
restrooms. DE 1 ¶ 18. In the first case, the settlement agreement makes no mention of
repairs to service counters or tables at the Pompano Beach location. See DE 9-1 at
15-17. Thus, because the first case did not involve either the same parties or identical
claims, the Court finds that Plaintiff’s claims are not barred by res judicata.
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The Court looks at the terms of the settlement agreement in the first case,
rather than the complaint in the first case, because the complaint makes general
allegations against two of the defendant’s facilities – one in Wilton Manors, Florida, and
one in Pompano Beach, Florida – without specifying which allegations applied to which
facility. See DE 9-1 at 6. The settlement agreement breaks down which repairs must
be made to each property. Id. at 13-17. The instant action only contains allegations
pertaining to the Pompano Beach facility. See DE 1 ¶ 2.
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IV. CONCLUSION
Therefore, for the foregoing reasons, it is hereby
ORDERED AND ADJUDGED that Defendant Wing It Two, Inc.’s Motion to
Dismiss [DE 9] and Defendant Coleman Pompano Beach, LLC’s Motion to Dismiss
[DE 10] are DENIED. It is further
ORDERED AND ADJUDGED that Defendants Wing It Two, Inc., and Coleman
Pompano Beach, LLC shall file their Answer and Affirmative Defenses by no later than
July 26, 2013.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 19th day of July, 2013.
Copies provided to:
Counsel of record via CM/ECF.
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