Barberi v. Tax Connek USA Inc. et al

Filing 36

ORDER denying 10 Defendants' Motion to Dismiss. Signed by Judge Darrin P. Gayles See attached document for full details. (lfn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case Number: 19-cv-61696-GAYLES
RENZO BARBERI,
Plaintiff,
v.
TAX CONNECK USA INC., a Florida Profit
Corporation, HOWARD DORFMAN and
LINDA KING DORMAN, as Trustees of the
HOWARD DORMAN AND LINDA KING
DORFMAN LIVING TRUST,
Defendants.
____________________________________/
ORDER
THIS CAUSE comes before the Court on Defendants’, Howard and Linda King Dorfman,
as Trustees of the Howard Dorfman and Linda King Dorfman Living Trust, Motion to Dismiss
(the “Motion”) [ECF No. 10]. The Court has reviewed the Motion and the record and is otherwise
fully advised. For the reasons that follow, the Motion is denied.
Because the Motion challenges Plaintiff’s standing to bring this action, the Court construes
it as requesting dismissal for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction brought under
Federal Rule of Civil Procedure 12(b)(1) may present either a facial or a factual challenge to the
complaint. See McElmurray v. Consol. Gov’t, 501 F.3d 1244, 1251 (11th Cir. 2007). In a facial
challenge, a court is required only to determine if the plaintiff has “sufficiently alleged a basis
for subject matter jurisdiction.” Id. at 1251. Furthermore, “the court must consider the allegations

in the plaintiff’s complaint as true.” Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981). 1 By
contrast, a factual attack “challenge[s] ‘the existence of subject matter jurisdiction in fact,
irrespective of the pleadings, and matters outside the pleadings . . . are considered.’” McElmurray,
501 F.3d at 1251 (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). Where the
attack is factual, “no presumptive truthfulness attaches to [a] 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.” Williamson, 645 F.2d at 412–13 (quoting Mortensen v. First Fed.
Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Notwithstanding whether the challenge is
facial or factual, “[t]he burden for establishing federal subject matter jurisdiction rests with the
party bringing the claim.” Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th
Cir. 2005).
Article III of the U.S. Constitution “restricts the jurisdiction of the federal courts to litigants
who have standing to sue.” Nicklaw v. CitiMortgage, Inc., 839 F.3d 998, 1001 (11th Cir. 2016),
reh’g en banc denied, 855 F.3d 1265 (11th Cir. 2017). “[T]he doctrine of standing serves to
identify those disputes which are appropriately resolved through the judicial process.” Whitmore
v. Arkansas, 495 U.S. 149, 155 (1990). As the party invoking federal jurisdiction, Plaintiff bears
the burden of demonstrating that he has standing to sue. FW/PBS, Inc. v. Dallas, 493 U.S. 215,
231 (1990). “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements.
The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged
conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.”
Spokeo, Inc. v. Robins, –––– U.S. ––––, 136 S. Ct. 1540, 1547 (2016) (citation omitted) (quoting

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The Eleventh Circuit has adopted as binding precedent all decisions of the former Fifth Circuit
rendered before October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc).
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Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)). As standing is a threshold determinant, the
plaintiff must “clearly . . . allege facts demonstrating” standing. Warth v. Seldin, 422 U.S. 490,
518 (1975).
The Motion launches a factual attack on the Court’s subject matter jurisdiction because
Defendants assert that Plaintiff has not suffered an injury in fact. Specifically, Defendants argue
that Plaintiff has no standing because he did not physically visit the subject property. Defendants
also assert that the alleged Americans with Disabilities Act (“ADA”) violations are being
remedied. Plaintiff objects to Defendants’ characterization of the facts and argues that remediation
efforts are insufficient to render Plaintiff’s claim moot.
In their Motion, Defendants assert that they do not “believe” that Plaintiff visited their
property, or that he intends to return, and that if he did return, “he would not, in any event, suffer
future injury if he truly wanted to avail himself” of the services provided there. [ECF No. 10 at 2,
11]. But two problems exist with Defendants’ arguments. First, the arguments raise factual
questions that strike at the heart of both Plaintiff’s standing and the merits of his ADA claims. See
Wein v. St. Lucie Cnty., Fla., 461 F. Supp. 2d 1261, 1262 (S.D. Fla. 2006) (noting that the Eleventh
Circuit has “cautioned that a district court should only rely on Rule 12(b)(1) ‘[i]f the facts
necessary to sustain jurisdiction do not implicate the merits of plaintiff’s cause of action’” (quoting
Morrison v. Amway Corp., 323 F.3d 920, 925 (11th Cir. 2003))). To succeed on his ADA claim,
Plaintiff must in part prove that he is disabled and that he visited the subject property that failed to
meet the federal standard of accessibility. To rule on the factual issues raised by Defendants’
Motion, the Court must therefore necessarily address the merits of Plaintiff’s claims, namely,
whether he physically visited the property. This the Court cannot do. Id. Second, making factual
findings about Plaintiff’s injury at this stage would require the Court to look beyond the Complaint

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and weigh Plaintiff’s and Defendants’ credibility. Id. The Court declines to do so now because
such findings are more appropriately considered at summary judgment or trial. Id. (“This Court
declines to weigh the sincerity of Mr. Wein’s intentions or the credibility of his testimony at this
juncture. This Court finds that such factual determinations are better forged in the crucible of
trial.”).
Defendants also claim that they are currently remediating the property, which will moot
out Plaintiff’s ADA claims. But, pending repairs cannot render this action moot. Id. at 1264–65
(holding that where repairs had not been completed, the court retained power to decide the merits
of an ADA suit). Without more, Defendants’ Motion cannot succeed.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss [ECF No. 10] is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida, this 10th day of October, 2019.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE

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