Caplan v. Baurley et al

Filing 15

ORDER granting 8 Motion to Dismiss. Signed by Judge Robert N. Scola, Jr on 10/27/2017. (ail)

United States District Court
for the
Southern District of Florida
Howard Michael Caplan, Plaintiff,
v.
Alfred Joseph Baurley and Kenneth
Mathias Baurley, as trustees of the
Alfred Joseph Baurley, Jr. trust
agreement, Defendants.

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Civil Action No. 17-61590-Civ-Scola
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Order on Defendant’s Motion to Dismiss
The Plaintiff brings this lawsuit pursuant to the Americans with
Disabilities Act, 42 U.S.C. §§ 12101-12103, 12181-12205a (“ADA”). This matter
is before the Court on the Defendant trust’s, through co-trustee Kenneth
Mathias Baurley, motion to dismiss (ECF No. 8). The Complaint alleges that the
Alfred Joseph Baurley, Jr. trust owns the property on which Mattress
Warehouse is located. (Compl. ¶¶ 3, 5.) Although the Complaint specifically
identifies numerous architectural barriers that the Plaintiff encountered at
Mattress Warehouse, the Complaint states that “[u]pon information and belief
there are other current violations of the ADA at Mattress Warehouse.” (Id. ¶
16.) The Defendant seeks to dismiss any claims that seek redress for
unidentified architectural barriers. (Mot. at 5.)
Courts within this district have held that a plaintiff must have actual
knowledge of purported violations of the ADA at the time a complaint is filed.
Access Now, Inc. v. South Florida Stadium Corp., 161 F.Supp.2d 1357, 1366
(S.D. Fla. 2001) (Moore, J.); Fox v. Morris Jupiter Assoc.’s, No. 05-80689, 2007
WL 2819522, at *6 (S.D. Fla. Sept. 25, 2007) (Marra, J.) (citing Access Now,
Inc., 161 F.Supp.2d at 1365); Barberi v. Tara Chand, et. al., Case No. 1721393, D.E. 14 (June 28, 2017) (Gayles, J.) (noting that the plaintiff “may not
base his claims on unknown or undiscovered violations.”). The Plaintiff
acknowledges this case law, but cites to a case from the Northern District of
Georgia holding that a plaintiff has standing to challenge all of the
architectural barriers that may render a property inaccessible to him, even
barriers of which he did not have knowledge at the time the complaint was
filed. Gaylor v. DDR Southeast Abernathy, LLC, No. 12-cv-4343-TWT, 2013 WL
6051029, at *3 (Nov. 15, 2013). However, that court acknowledged that even
other courts within the Northern District of Georgia follow the rule that a
plaintiff must have actual knowledge of alleged violations of the ADA at the
time a complaint is filed. Id. (citations omitted).

The Court finds persuasive the cases from within this district holding
that a plaintiff may only pursue relief for those architectural barriers of which
he has actual knowledge at the time the complaint is filed. Accordingly, the
Court grants the Defendant’s motion to dismiss those portions of the
Complaint that seek redress for violations of the ADA that were unknown or
undiscovered at the time the Complaint was filed (ECF No. 8). However, this
ruling does not preclude the Plaintiff from later amending his complaint, as
permitted by the Federal Rules of Civil Procedure, to include violations
discovered since the filing of the Complaint.
Done and ordered in chambers, at Miami, Florida, on October 27, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge