Rogers v. 5101 Corporation et al
OPINION AND ORDER denying without prejudice 10 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Kenneth A. Marra on 9/16/2016. (ir)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-81294-CIV-MARRA
JAY PREEFER and RICHARD PREEFER,
OPINION AND ORDER
This cause is before the Court upon Defendants’ Motion to Dismiss (DE 10). The
Motion is fully briefed and ripe for review. The Court has carefully considered the Motion and is
otherwise fully advised in the premises.
On July 18, 2016, Plaintiff filed a Complaint for injunctive relief to remove physical
barriers at Defendants’ property pursuant to the Americans with Disabilities Act, 42 U.S.C. §
12181, et seq. (“ADA”). (DE 1.) Defendants move to dismiss the Complaint pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure, claiming that the case is moot. Specifically,
Defendants claim that the “physical barriers have been removed and the defendants have no plan
to re-establish any physical barriers to persons with disabilities.” (Mot. at 6.) In support,
Defendants attach affidavits from an architect and Defendant Richard Preffer. (DE 10-1, 10-2.)
In response, Plaintiff states that the evidence submitted by Defendants show that barriers
to access alleged in the Complaint still remain, that not all of the alleged violations are structural
modifications that can be permanently remedied but relate to policies such as placement of table
and chairs, and there are remaining issues of fact that require time to conduct discovery.
Attacks on subject matter jurisdiction under Rule 12(b)(1) come in two forms:
‘Facial attacks’ on the complaint require the court merely to look and see if the plaintiff
has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in his
complaint are taken as true for the purposes of the motion. . . . ‘Factual attacks,’ on the
other hand, challenge the existence of subject matter jurisdiction in fact, irrespective of
the pleadings, and matters outside the pleadings, such as testimony and affidavits, are
Lawrence v. Dunbar, 919 F.2d 1525, 1528–29 (11th Cir.1990) (citations, quotation marks and
brackets omitted). This case presents a factual attack such that examination of matters outside of
the pleadings is appropriate.
In Sheely v. MRI Radiology Network, P.A., the Eleventh Circuit addressed mootness in
the ADA context. 505 F.3d 1173 (11th Cir. 2007). There, the district court granted summary
judgment to the defendant on the basis that defendant voluntarily ceased activities alleged to be
in violation of the ADA. Id. at 1183. The Eleventh Circuit reversed and explained the burden
defendants bear in making such a mootness argument. “The ‘formidable,’ ‘heavy burden of
persuading the court that the challenged conduct cannot reasonably be expected to start up again
lies with the party asserting mootness.” Id. at 1184 (quoting Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). “A defendant's assertion that it has no
intention of reinstating the challenged practice does not suffice to make a case moot and is but
one of the factors to be considered in determining the appropriateness of granting an injunction
against the now-discontinued acts.” Id. (internal quotation marks omitted).
Based on this record, the Court cannot determine whether Defendants have removed all
the barriers in an effort to provide Plaintiff with the relief sought or whether the challenged
conduct will repeat itself. The case is in the early stages of litigation and Plaintiff has not been
afforded the opportunity to take discovery or visit the premises to make an independent
assessment of the condition of the property. As such, the Court denies Defendant’s motion
without prejudice to allow Plaintiff the opportunity to pursue discovery and visit the property.
Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion to
Dismiss (DE 10) is DENIED WITHOUT PREJUDICE.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 16th day of September, 2016.
KENNETH A. MARRA
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?