Gil v. SMG Holdings I, LLC et al

Filing 27

ORDER denying 12 Motion to Dismiss Signed by Judge Robert N. Scola, Jr on 5/29/2018. (vmz)

United States District Court
for the
Southern District of Florida
Juan Carlos Gil, Plaintiff,
v.
SMG Holdings I, LLC and SMG
Holdings II, LLC, Defendants.

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Civil Action No. 18-20107-Civ-Scola
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Order on Motion to Dismiss
The Defendants SMG Holdings I, LLC and SMG Holdings II, LLC have
filed a motion to dismiss (ECF No. 12). Asserting claims for violation of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq. and
trespass, the Plaintiff Juan Carlos Gil alleges that he was unable to
meaningfully access the Defendants’ website. The Defendants seek dismissal of
the Plaintiff’s complaint on the basis that his claims have become moot, and for
failure to state a claim. (Mot., ECF No. 12.) For the reasons set forth below, the
Court denies the motion (ECF No. 12).
1. Background
The Plaintiff is a legally blind individual, who attempted to use the
Defendants’ website, www.jlkc.com, to obtain information regarding events and
performances at the James L. Knight Center. He uses screen reading software
that allows him to communicate with enabled websites, but the Defendants’
website does not have the capability to allow blind or otherwise visually
impaired individuals to use their keyboards and screen reading software. In
addition, the Plaintiff alleges that because he was unable to interact with the
Defendants’ website, he was not able to read and understand the Defendants’
user personal information collection policy and practices, or that the
Defendants’ website places software on a user’s computer to collect browsing
history and analytics. As a result, the Plaintiff asserts two claims against the
Defendants for violation of the ADA (Count 1), and trespass (Count 2).1
2. Legal Standard
Article III of the Constitution grants federal courts judicial power to
decide only actual “Cases” and “Controversies.” U.S. Const. Art. III § 2. “There
are three strands of justiciability doctrine—standing, ripeness, and mootness—
that go to the heart of the Article III case or controversy requirement.” Zinni v.
The Plaintiff filed a notice of voluntary dismissal with prejudice of Count 2. (See ECF
No. 18.)
1

ER Sols., Inc., 692 F.3d 1162, 1166 (11th Cir. 2012) (quoting Christian Coal. of
Fla., Inc. v. United States, 662 F.3d 1182, 1189 (11th Cir. 2011)). With respect
to mootness, the Supreme Court “has explained ‘a federal court has no
authority to give opinions upon moot questions . . . .’” Id. (quoting Church of
Scientology of Cal. V. United States, 506 U.S. 9, 12 (1992)). A case is moot
“when it no longer presents a live controversy with respect to which the court
can give meaningful relief.” Friends of Everglades v. S. Fla. Water Mgmt. Dist.,
570 F.3d 1210, 1216 (11th Cir. 2009) (internal quotations and citations
omitted); see also Christian Coal., 662 F.3d at 1189 (citations omitted); Zinni,
692 F.3d at 1166 (citations omitted). “If events that occur subsequent to the
filing of a lawsuit . . . deprive the court of the ability to give the plaintiff . . .
meaningful relief, then the case is moot and must be dismissed. Indeed,
dismissal is required because mootness is jurisdictional. Any decision on the
merits of a moot case or issue would be an impermissible advisory opinion.” Id.
(citation omitted). When considering a defendant’s argument that facts now
exist that deprive the court of subject matter jurisdiction, a court may consider
extrinsic evidence such as testimony and affidavits. See Morrison v. Amway
Corp., 323 F.3d 920, 924 n.5 (11th Cir.2003).
The standard for dismissing a case on the basis of mootness is
“stringent.” United States v. Concentrated Phosphate Export Ass’n, 393 U.S.
199, 203 (1968). “A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” Id.; see also Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1183 (holding that the defendant had not “met its heavy burden of
showing under controlling law that it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.’” (quoting Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)).
“[A] defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice. If it did, the
courts would be compelled to leave the defendant free to return to his old
ways.” Id.
3. Analysis
In their motion, the Defendants represent to the Court that the virtual
barriers enumerated in the Plaintiff’s complaint are in the process of being
corrected—referring the Court to the Declaration of Rodrigo Carvalho (ECF No.
11) detailing the scope of work to be performed in addition to an audit report
from Miami Lighthouse for the Blind. In the Declaration, Mr. Carvalho also
represents that the necessary changes to the website will be completed by May
1, 2018. (See ECF No. 11 at ¶ 6.) In addition, the Defendants recently filed a

Second Declaration by Mr. Carvalho, asserting that the scope of work described
in his first Declaration has been completed, and attaching a report of the work
completed. Mr. Carvalho also asserts that the Defendants’ website is now ADA
compliant. (See ECF No. 25-1.) Therefore, the Defendants argue that the
Plaintiff’s ADA claim is moot.
Notwithstanding Mr. Carvalho’s Declarations and the Defendants’ notice
of supplemental authority (ECF No. 26), the Defendants do not establish that it
is absolutely clear that the violations alleged in the complaint cannot
reasonably be expected to recur. Indeed, upon review of the report attached to
Mr. Carvahlo’s Second Declaration, numerous further changes are
recommended. For example, in the section entitled “Indication of the existence
of a submenu in the main menu items,” Mr. Carvahlo notes that “[t]he analysis
recommendation indicates the change in the behavior of the submenu items so
that when the user clicks on the main menu, the submenu options are
displayed.” (ECF No. 25-2 at § 3.5.) However, the report goes on to note that
“[t]his change is not possible due to the structuring of the theme with the
menu.” (Id.) Thus, the Court cannot conclude that the necessary modifications
have indeed occurred as required.
While the Court acknowledges that it has previously found ADA claims to
be moot based upon voluntary cessation by defendants, Houston v. 7-Eleven,
Inc., No. 13-60004-Civ, 2014 WL 351970, at *4 (S.D. Fla. Jan. 31, 2014) (Scola,
J.), the Houston case involved structural barriers that the defendant modified,
not virtual barriers as in this case. Moreover, this is not a case in which there
is a pre-existing remediation plan with which the Defendants are complying, or
a previous essentially identical lawsuit against the Defendants based on alleged
website inaccessibility. See, e.g. Haynes v. Hooters of Am., LLC, No. 17-60663Civ-Scola, 2017 WL 2579044, at *2 (S.D. Fla. June 14, 2017) (Scola, J.) (finding
ADA claims moot, where proposed remediation plan was in accordance with a
previous binding settlement agreement involving nearly identical claim);
Haynes v. Brinker Int’l, Inc., No. 17-cv-61265-BLOOM/Valle, 2017 WL
4347204, at *2 (S.D. Fla. Sept. 29, 2017) (Bloom, J.) (same); Haynes v. Panda
Express, Inc., No. 17-cv-61567-BLOOM/Valle, 2018 WL 538698, at *3 (S.D.
Fla. Jan. 24, 2018) (Bloom, J.) (same).
As a result, whether or not the Plaintiff is entitled to the injunctive relief
he seeks—further modification of the Defendants’ website accessibility policy
and website—is a question unsuitable for disposition at this stage in this case.
Therefore, the Defendants have not met their heavy burden to show that the
claimed ADA violations are moot. See Sheely, 505 F.3d at 1183.

4. Conclusion
Accordingly, the Defendants’ motion to dismiss (ECF No. 12) is denied.
Furthermore, pursuant to the Plaintiff’s notice of voluntary dismissal (ECF No.
18), the Court dismisses with prejudice Count 2 of the complaint.
Done and ordered at Miami, Florida, on May 29, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge