Gil v. Lavi Apartments, LLC et al

Filing 27

ORDER: Denying 19 Defendant's MOTION to Dismiss 1 Complaint filed by Adam Trading Group LLC, Lavi Apartments, LLC., Adam Trading Group LLC response/answer due 12/1/2021; Lavi Apartments, LLC response/answer due 12/1/2021. Signed by Judge Beth Bloom on 11/17/2021. See attached document for full details. (scn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 21-cv-23156-BLOOM/Otazo-Reyes
JUAN CARLOS GIL,
Plaintiff,
v.
LAVI APARTMENTS, LLC, et al.,
Defendants.
________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Lavi Apartments, LLC’s and Adam
Trading Group LLC’s (collectively, “Defendants”) Motion to Dismiss Plaintiff’s Complaint, ECF
No. [19] (“Motion”), filed on October 19, 2021. Plaintiff Juan Carlos Gil (“Plaintiff”) filed a
Response to the Motion, ECF No. [20] (“Response”), to which Defendants did not file a reply. The
Court has carefully reviewed the Motion, the record in this case, the applicable law, and is
otherwise fully advised. For the reasons set forth below, the Motion is denied.
On September 1, 2021, Plaintiff initiated this action alleging violations by Defendants of
Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq. See ECF No.
[1] (“Complaint”). According to the Complaint, Defendants own and/or operate a place of public
accommodation located at 3280 Palm Avenue, Hialeah, Florida (“the Commercial Property”). Id.
¶ 20. Plaintiff visited Defendants’ property on or about July 20, 2021 and, during that visit,
“encountered multiple violations of the ADA that directly affected his ability to use and enjoy the
Commercial Property and businesses located therein.” Id. ¶ 16. The Complaint then identifies
numerous barriers Plaintiff encountered at the Commercial Property. Id. ¶¶ 18-19, 26, 28.

Case No. 21-cv-23156-BLOOM/Otazo-Reyes
In the Motion, Defendants argues that dismissal of the Complaint is warranted to the extent
it seeks relief for unidentified barriers. See generally ECF No. [19]. Specifically, Defendants argue
that “[i]n paragraphs 26 and 28 of the Complaint, Plaintiff describes the subject barriers under the
ADA that Plaintiff allegedly encountered at the Property. However, Plaintiff references barriers
which have yet to be identified, and seeks redress for the same, which is impermissible.” Id. at 1
(citing ECF No. [1] ¶ 29). Additionally, Defendants maintain that Plaintiff impermissibly “asserts
that aside from the list of alleged ADA violations found in paragraphs 26 and 28, there are
additional barriers at the Property that have not yet been identified” and he “requires inspection of
the subject property to develop a complete list of ADA violations at the property. Id. at 1-2 (citing
ECF No. [1] ¶ 29). In his Response, Plaintiff argues that he has sufficiently stated a cause of action
under the ADA, which Defendants do not seem to dispute, and explains that he “is seeking redress
only for those barriers identified in the Complaint[.]” ECF No. [20] at 2-3, n.1.
Upon review of the Complaint and the parties’ submissions, the Court agrees with Plaintiff
that the allegations in the Complaint are sufficient to withstand dismissal under the Fed. R. Civ. P.
12(b)(6). Indeed, Plaintiff has alleged several barriers he encountered at the subject Commercial
Property, and further alleges how these violations caused him harm. ECF No. [1] ¶¶ 26, 28. While
the Court agrees with Defendants that Plaintiff cannot seek relief for barriers not identified in the
Complaint, Plaintiff has made clear that he seeks relief only for those barriers alleged. See ECF
No. [20] at 3, n.1; see also Access for the Disabled, Inc. v. First Resort, Inc., No. 8:11-CV-2342T-30EAJ, 2012 WL 4479005, at *6 (M.D. Fla. Sept. 28, 2012) (An ADA plaintiff “does not have
standing to complain about alleged barriers for which [he] was unaware at the time of filing [his]
complaint.” (citing Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp. 2d 1357, 136566 (S.D. Fla. 2001); Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d 1298, 1302 (M.D. Fla.

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Case No. 21-cv-23156-BLOOM/Otazo-Reyes
2001))); see also Royal Palm Com. Plaza Condo. Ass’n. Inc., 21-cv-21572 (S.D. Fla. July 28,
2021), ECF No. [26].
Accordingly, it is ORDERED AND ADJUDGED that the Motion, ECF No. [19], is
DENIED. Defendants shall file an Answer to the Complaint no later than December 1, 2021.
DONE AND ORDERED in Chambers at Miami, Florida, on November 17, 2021.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
Copies to:
Counsel of Record

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