Thomas v. Ameris Bank
Filing
20
OPINION AND ORDER that Defendant Ameris Bank's 6 Motion to Dismiss Plaintiff Empish Thomas's Class Action Complaint is DENIED. Signed by Judge William S. Duffey, Jr on 6/23/2014. (anc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
EMPISH THOMAS, individually
and on behalf of all others similarly
situated,
Plaintiff,
v.
1:13-cv-2841-WSD
AMERIS BANK,
Defendant.
OPINION AND ORDER
This matter is before the Court on Defendant’s Motion to Dismiss the Class
Action Complaint [6] (“Motion to Dismiss”).
I.
BACKGROUND
Plaintiff Empish Thomas (“Plaintiff”) suffers from Vogt-Koyanagi-Harada
syndrome and has been legally blind since 1991. (Compl. [1] ¶ 1). On an
unspecified date, after March 15, 2012, Plaintiff visited an ATM (the “Subject
ATM”) owned and operated by Defendant Ameris Bank (“Defendant”). (Id. ¶ 10).
Plaintiff alleges that, at the time of her visit, the Subject ATM lacked an
operational voice-guidance feature and lacked Braille instructions for Plaintiff to
initiate the speech mode. (Id. ¶ 12). Plaintiff asserts that it was impossible for a
person without vision to perform transactions on the Subject ATM because the
input modalities relied on visual cues. (Id. ¶ 10). Plaintiff asserts that the Subject
ATM does not have an operational voice-guidance feature and that it does not
provide Braille instructions to initiate the speech mode. (Id. ¶ 13).
The Subject ATM is located nineteen (19) miles from Plaintiff’s home, and
it is located near her office. (Id. ¶ 11). Plaintiff asserts that she will continue to
attempt to use the Subject ATM because she wants to have convenient ATM
options within her routine activities. (Id.).
On August 26, 2013, Plaintiff filed this action alleging that the Subject ATM
was “inaccessible” to her as a legally blind individual, and thus the Subject ATM
fails to comply with the design standards required under Title III of the Americans
with Disabilities Act (the “ADA”). Plaintiff requests (1) declaratory and injunctive
relief for alleged violations of the ADA; (2) a permanent injunction directing
Defendant to bring the Subject ATM into compliance with the ADA; (3) class
certification; (4) payment of the costs of suit; and (5) reasonable attorneys’ fees.
On October 1, 2013, Defendant filed its Motion to Dismiss under Rule
12(b)(1) of the Federal Rules of Civil Procedure on the grounds that Plaintiff lacks
standing to assert her claim.
2
II.
DISCUSSION
A.
Legal Standard
Standing is a component of subject matter jurisdiction challenged under
Rule 12(b)(1). A motion to dismiss for lack of subject matter jurisdiction under
Rule 12(b)(1) of the Federal Rules of Civil Procedure may be either a “facial” or
“factual” attack. Morrison v. Amway Corp., 323 F.3d 920, 924-25 n.5 (11th Cir.
2003). A facial attack challenges subject matter jurisdiction on the basis of the
allegations in the complaint, which the Court accepts as true in deciding whether to
grant the motion. Id. Factual attacks challenge subject matter jurisdiction in fact,
irrespective of the pleadings. Id. When resolving a factual attack, the Court may
consider extrinsic evidence such as testimony and affidavits. Id. In a factual
attack, the plaintiff has the burden to prove that jurisdiction does, in fact, exist.
Brown v. Cranford Transp. Serv., Inc., 244 F. Supp. 2d 1314, 1317 (N.D. Ga.
2002).
Defendant’s Motion is a facial challenge to Plaintiff’s standing based on the
allegations in the Complaint. In reviewing a complaint in a facial attack on subject
matter jurisdiction, the allegations are deemed presumptively truthful, and the
“court is required ‘merely to look and see if the plaintiff has sufficiently alleged a
basis of subject matter jurisdiction.” Stalley ex rel. United States v. Orlando Reg’l
3
Healthcare Sys., Inc., 524 F.3d 1229, 1233 (11th Cir. 2008). “At the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct
may suffice, for on a motion to dismiss [courts] ‘presume that general allegations
embrace those specific facts that are necessary to support the claim.’” Mulhall v.
Unite Here, Local 355, 618 F.3d 1279, 1286 (11th Cir. 2010) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555 (1988)). “It is extremely difficult to dismiss a
claim for lack of subject matter jurisdiction. ‘[T]he test is whether the cause of
action alleged is so patently without merit as to justify . . . the court’s dismissal for
want of jurisdiction.’” Simanonok v. Simanonok, 787 F.2d 1517, 1519 (11th Cir.
1986) (quoting Duke Power Co. v. Carolina Envtl. Study Grp., 438 U.S. 59, 70
(1978)).
B.
Analysis
To satisfy the standing requirements of Article III, a plaintiff must
demonstrate that they have “alleged such a personal stake in the outcome of the
controversy as to warrant [the plaintiff’s] invocation of federal-court jurisdiction
and to justify exercise of the court’s remedial powers on [the plaintiff’s] behalf.”
Watts v. Boyd Props., 758 F.2d 1482, 1484 (11th Cir. 1985) (quoting Warth v.
Seldin, 422 U.S. 490, 499-500 (1975)). A plaintiff must allege, and ultimately
prove, three elements to establish standing under Article III: “First, [the plaintiff]
4
must show that they suffered an injury-in-fact. Second, the plaintiff must
demonstrate a causal connection between the asserted injury-in-fact and the
challenged action of the defendant. Third, the plaintiff must show that the injury
will be redressed by a favorable decision.” Shotz v. Cates, 256 F.3d 1077, 1081
(11th Cir. 2001) (quoting Lujan, 504 U.S. at 560-61) (internal citations and
quotations omitted). “These requirements are the ‘irreducible minimum’ required
by the Constitution for a plaintiff to proceed in federal court.” Shotz, 256 F.3d at
1081 (quoting Ne. Fla. Chapter, Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 664 (1993)) (internal quotation marks omitted).
In this action, Defendant does not dispute that the causation requirement of
standing is satisfied because Plaintiff’s alleged ADA1 injury is traceable to
Defendant’s Subject ATM and its alleged failure to comply with Section 707 of the
2010 Americans with Disabilities Act Accessibility Guidelines (“ADAAG”).2
1
Title III of the ADA prohibits discrimination in the activities of places of public
accommodation and requires places of public accommodation to comply with
ADA standards and to be readily accessible to, and independently useable by,
individuals with disabilities. 42 U.S.C. §§ 12181, 12182.
2
Section 707 of the ADAAG imposes the following requirements to ensure that
ATMs are fully accessible to, and independently useable, by blind individuals: (1)
ATMs shall be speech enabled; (2) input controls shall be tactilely discernible; (3)
function keys shall have specific tactile symbols; (4) Braille instruction shall be
provided for initiating the speech mode. See 36 C.F.R. § 312.1 (2013); see also 36
5
Defendant’s argument focuses on whether Plaintiff has sufficiently alleged that she
suffered a cognizable injury-in-fact or that any injury she may have suffered will
be redressed by a favorable decision in this action.
1.
Injury-in-Fact
Plaintiff seeks only injunctive and declaratory relief under Title III of the
ADA, and therefore she must show an injury-in-fact by alleging facts that give rise
to an inference that she will suffer future discrimination. See Shotz, 256 F.3d at
1081 (holding a party has standing to seek injunctive relief “only if the party
alleges . . . a real and immediate—as opposed to a merely conjectural or
hypothetical—threat of future injury”) (quoting Wooden v. Bd. of Regents of the
Univ. Sys., 247 F.3d 1262, 1284 (11th Cir. 2001). As the Supreme Court has
stated, “[p]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects.” Lujan, 504 U.S. at 561, 564.
Plaintiff thus must plead, at a minimum, that she is likely to return to the
Subject ATM. See Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1238 (11th
Cir. 2000) (holding that a plaintiff’s intent to use the defendant’s services “in the
C.F.R. §§ 1154.150, 119.1 (2010 standards for ATM accessibility guidelines for
buildings and facilities covered by the ADA are found in Appendix D at 549-552).
6
near future” was sufficient to demonstrate a genuine threat of imminent injury and
confer standing); see also Sawczyn v. BMO Harris Bank Nat. Ass’n, No. 13-2309,
2014 WL 1089790, at *3 (D. Minn. Mar. 19, 2014) (holding that a plaintiff need
only establish that the ATMs visited are near enough and convenient enough to be
reasonably expected to be visited again). A complaint that only alleges past
incidents of discrimination is not enough. Shotz, 256 F.3d at 1082. Where the
future plan for use is speculative or conjectural, dismissal is appropriate. Houston
v. Marod Supermarkets, Inc., 733 F.3d 1323, 1331 (11th Cir. 2013).
In Stevens, the plaintiff sought injunctive relief for alleged ADA
accessibility violations aboard Defendant’s cruise ship. Stevens, 215 F.3d at 1238.
The plaintiff did not allege in her original complaint a threat of future injury. Id. at
1238-39. The district court dismissed the action, and plaintiff, in response,
submitted a proposed amended complaint in which she “alleged that, in the near
future, she would take another cruise aboard Defendant’s ship.” Id. at 1239. The
district court denied plaintiff leave to amend the complaint. Id. The Eleventh
Circuit reversed, stating, “we are satisfied that Plaintiff’s proffered amended
complaint would have cured the defect about standing in the original complaint”
because Plaintiff’s allegation to visit the Defendant’s cruise ship in the “near
future” was enough to demonstrate a threat of imminent injury. Id.
7
Here, the Complaint adequately alleges a likelihood of future harm sufficient
for Plaintiff to have standing to bring her claims for declaratory and injunctive
relief.3 The threat of future injury to Plaintiff is “real and immediate.” The
Complaint asserts that Plaintiff attempted to use the Subject ATM in the past, and
she intends to visit the Subject ATM in the future because she wants to have
convenient ATM options within her routine activities. She lives nineteen (19)
miles from the Subject ATM and works near the Subject ATM location. See
Houston, 733 F.3d at 1340 (holding that plaintiff living 30.5 miles from
accommodation and frequently visiting his attorney’s office nearby alleged a
concrete and realistic plan of when he would visit the accommodation in the
3
Defendant initially challenged Plaintiff’s standing because she is a “tester” who
visits businesses covered by the ADA solely for the purpose of finding violations,
initiating lawsuits, and generating fees for her attorney. The Eleventh Circuit has
previously held that a plaintiff’s status as a tester “does not deprive him of standing
to maintain his civil action for injunctive relief under 42 U.S.C. §§ 12182(a),
12182(b)(2)(A)(iv), and 12188(a)(1) of the ADA’s Title III.” Houston, 733 F.3d at
1332. The language of § 12182(a) confers on plaintiffs a legal right to be free from
discrimination on the basis of disability with respect to “the full and equal
enjoyment of the . . . facilities,” regardless of motive. Id. at 1334. Even if Plaintiff
here is a “tester” as Defendant claims, that status does not deprive her of standing.
See id.
8
future). Plaintiff has asserted a concrete and immediate threat of future injury
based on Defendant’s alleged ADA violations.4
2.
Redressabilty
The redressability requirement for Article III standing requires that
Plaintiff’s “injury will be redressed by a favorable decision.” See Shotz v. Cates,
256 F.3d at 1081 (quoting Lujan, 504 U.S. at 560-61). As previously established,
Plaintiff demonstrates that the threat of future injury is real and immediate, and
Plaintiff satisfies the standing requirement of injury-in-fact. The redressability
prong is satisfied because Plaintiff’s injuries arise from Defendant’s failure to
comply with the ADA. Plaintiff’s alleged injury—that she is not able to use the
4
To show future harm, Defendant encourages the Court to apply a four-factor test
requiring a plaintiff to assert a specific intent to return to defendant’s business:
“[T]he Court must determine whether the plaintiff is likely to return to the
defendant’s business by examining several factors: including: (1) the proximity of
the defendant’s business to the plaintiff’s residence, (2) the plaintiff’s past
patronage of the defendant’s business, (3) the definitiveness of the plaintiff’s plans
to return, and (4) the plaintiff’s frequency of travel near the defendant.” (Def’s Br.
[6-1] at 7 (citing Segal v. Rickey’s Rest. & Lounge, Inc., No. 11-61766-CIV, 2012
WL 2393769, at *5 (S.D. Fla. June 25, 2012))). The Eleventh Circuit has not
adopted this specific four-factor test. Our Circuit requires the Court to analyze a
plaintiff’s future intent to return based on her demonstration of a concrete and
immediate threat of future injury. Even if the test urged by Defendant was applied,
the Court finds that Plaintiff satisfies it because she works near the Subject ATM,
has attempted to use it in the past, and will continue to attempt to use it so she can
have convenient ATM options within her routine activities.
9
non-compliant Subject ATM—is traceable to Defendant and would be redressed by
an injunction requiring Defendant to bring the Subject ATM into compliance with
the ADAAG. See Ash Creek Mining Co. v. Lujan, 969 F.2d 868, 875 (10th Cir.
1992) (holding that redressability prong requires a plaintiff “to demonstrate . . .
that the relief requested will redress the injury claimed.”).5
The Court concludes Plaintiff’s alleged past use of the Subject ATM and her
intent to use it again are sufficient to claim a concrete and immediate threat of
future injury. Plaintiff also demonstrates that the future injury will be redressed by
5
Defendant asserts that Plaintiff does not satisfy the “redressability” test set forth
in Elend v. Basham, 471 F.3d 1199 (11th Cir. 2006). In Elend, the plaintiffs
alleged that the Secret Service interfered with their First Amendment rights when
they protested the President’s visit, but they could not establish a likelihood of
future injury due to lack of specifications concerning how or when they would
protest another presidential appearance. Id. at 1210. The district court was unable
to fashion any injunction other than “the Secret Service shall ensure there’s no
violation of the First Amendment.” Id. The Eleventh Circuit held such an
injunction would “merely command the Secret Service to obey the law.” Id. The
Eleventh Circuit explained an “obey the law” injunction was insufficient because it
would not accomplish anything “beyond abstractly commanding the Secret Service
to obey the First Amendment.” Id. at 1209. The “entirely speculative nature” of
the plaintiffs’ alleged future protests “would render wholly advisory any
prospective relief.” Id. Defendant argues that Plaintiff’s request is simply an
“obey-the-law-injunction” requiring Defendant to bring the Subject ATM in full
compliance with the requirements set forth in the ADA. Plaintiff is not merely
seeking an order for Defendant to “obey the law” by complying with the ADAAG.
Instead, Plaintiff is seeking an order to ensure that she can use the Subject ATM in
the future.
10
a favorable decision by prohibiting discrimination under the ADA. Plaintiff thus
has standing to pursue her claim, and Defendant’s Motion to Dismiss for lack of
standing is denied.
III.
CONCLUSION
Accordingly, and for the foregoing reasons,
IT IS HEREBY ORDERED that Defendant Ameris Bank’s Motion to
Dismiss Plaintiff Empish Thomas’s Class Action Complaint [6] is DENIED.
SO ORDERED this 23rd day of June, 2014.
11
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?