Shyvers v. WH Virginia Station Shopping Center, LLC
Filing
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OPINION AND ORDER granting Defendant's Motion to Dismiss for Failure to State a Claim, or, in the Alternative, Motion for a More Definite Statement 12 . Plaintiff is required to file, on or before January 12, 2018, his second amended complaint in this action. This requirement for a second amended complaint is without prejudice to Defendant's right to file a further motion in response to the amended pleading. Signed by Judge William S. Duffey, Jr on 1/5/18. (ddm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VERNON SHYVERS,
Plaintiff,
v.
1:17-cv-1133-WSD
WH VIRGINIA STATION
SHOPPING CENTER, LLC, a
Georgia Limited Liability Company,
and EXCALIBUR INVESTMENTS,
LLC, a Georgia Limited Liability
Company,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Excalibur Investments, LLC’s
(“Defendant”) Motion to Dismiss for Failure to State a Claim, or, in the
Alternative, Motion for a More Definite Statement [12] (the “Motion to Dismiss”).
I.
BACKGROUND
Plaintiff Vernon Shyvers is an individual residing in Lauderhill, Florida. He
is a paraplegic and uses a wheelchair to ambulate. ([7] ¶ 5). Defendants own the
Virginia Station Shopping Center located at 1640 Virginia Ave., College Park,
Georgia (the “Shopping Center”). ([7] ¶ 2, 8). Plaintiff alleges that he frequently
visits East Point, Georgia with family and friends, including his sister, and “has
visited the Defendant’s shopping center numerous times in the past, and intends to
visit the subject facility in the near future.” ([7] ¶ 6). Plaintiff does not describe
any of his alleged visits to the Shopping Center. Plaintiff states that he “desires to
visit [the] shopping center not only to avail himself of the goods and services
available at the property but to assure himself that this property is compliant with
the [Americans with Disabilities Act].” ([7] ¶ 9).
Plaintiff alleges that the Shopping Center is a place of public
accommodation as defined by the Americans with Disabilities Act, 42 U.S.C.
§ 12181 et seq. (the “ADA”). He outlines twenty-one alleged violations which he
“personally encountered or observed” regarding “general sites and building
elements,” accessible routs, and the Bole Ethiopian Restaurant. ([7] ¶ 11).
On March 29, 2017, Plaintiff filed his complaint for injunctive relief [1]. On
May 22, 2017, Plaintiff filed his fourteen-page Amended Complaint [7] seeking
injunctive relief, attorney’s fees, litigation expenses, and costs, for purported
violations of the ADA.
On July 6, 2017, Defendant filed its Motion to Dismiss [12]. Defendant
moves to dismiss on the grounds that Plaintiff lacks standing because there is no
likelihood of future injury to Plaintiff. Defendant alternatively moves to dismiss
the Amended Complaint for lack of specificity under Rule 12(b)(6), and under
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Rule 12(e) for Plaintiff to provide a more definite statement because, Defendant
argues, the allegations in the Amended Complaint are so vague and ambiguous that
Defendant cannot frame a responsive pleading.
II.
DISCUSSION
A.
Article III Standing Under the ADA
“Standing is a doctrine that stems directly from Article III’s ‘case or
controversy’ requirement, and thus it implicates [a court’s] subject matter
jurisdiction.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974 (11th Cir. 2005)
(internal quotations omitted). “In the absence of standing, a court is not free to
opine in an advisory capacity about the merits of a plaintiff’s claims.” Id.
“In Lujan, the Supreme Court held that a party seeking to invoke the subject
matter jurisdiction of a federal court must satisfy three constitutional prerequisites
of standing.” DiMaio v. Democratic Nat. Comm., 520 F.3d 1299, 1301-02 (11th
Cir. 2008) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).
First, a plaintiff must show that he has suffered an “injury-in-fact.” Lujan, 504
U.S. at 560. Second, the plaintiff must demonstrate a causal connection between
the asserted injury-in-fact and the challenged action of the defendant. Id. Third,
the plaintiff must show that “the injury will be redressed by a favorable decision.”
Id. at 561 (citations and internal quotations omitted). “These requirements are the
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irreducible minimum required by the Constitution for a plaintiff to proceed in
federal court.” Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (quotations
omitted).
A litigant seeking injunctive relive faces an additional inquiry. “Because
injunctions regulate future conduct, 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.” Shotz, 256 F.3d at 1081
(citing Wooden v. Board of Regents of University System of Georgia, 247 F.3d
1262, 1284 (11th Cir. 2001)).
“In ADA cases, courts have held that a plaintiff lacks standing to seek
injunctive relief unless he alleges facts giving rise to an inference that he will
suffer future discrimination by the defendant.” Shotz, 256 F.3d at 1081. “In the
ADA context, our standing inquiry has focused on the frequency of the plaintiff’s
visits to the defendant’s business and the definitiveness of the plaintiff’s plan to
return.” Silva v. Baptist Health S. Florida, Inc., 856 F.3d 824, 832 (11th Cir.
2017). “Absent an allegation that he intends to return to the public
accommodation, an ADA plaintiff fails to demonstrate this ‘irreducible minimum’
and thus lacks standing to sue for injunctive relief.” Access Now, Inc. v. S. Florida
Stadium Corp., 161 F. Supp. 2d 1357, 1364 (S.D. Fla. 2001). On a defendant’s
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motion to dismiss a court must evaluate standing based on the facts alleged in the
complaint, and “may not speculate concerning the existence of standing or piece
together support for the plaintiff.” Shotz, 256 F.3d at 1081 (citing Cone Corp. v.
Florida Dept. of Transp., 921 F.2d 1190, 1210 (11th Cir. 1991)).
B.
Analysis
Defendant challenges the Amended Complaint for both lack of specificity
under Rule 12(b)(6) and for lack of standing under Article III. The Court first
addresses the question of standing because it is a jurisdictional question, and
jurisdiction must be established before the Court may consider the merits of a case.
See Stalley ex rel. United States v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d
1229, 1232 (11th Cir. 2008) (“Because standing is jurisdictional, a dismissal for
lack of standing has the same effect as a dismissal for lack of subject matter
jurisdiction under Fed. R. Civ. P. 12(b)(1).”) (internal quotations omitted).
Defendant argues that Plaintiff lacks standing to bring suit under the ADA
because the threat of future injury is not “real and imminent” because Plaintiff has
not adequately alleged an intent to return to the Shopping Center.1 Plaintiff alleges
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Defendant argues that Plaintiff’s litigation history undermines the credibility
of his claim that he intends to return to the shopping center. Defendant cites
evidence that within the past two years Plaintiff has filed nine ADA lawsuits.
Defendant argues that the frequency of Plaintiff’s suits, along with purported
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that he has been to the Bole Ethiopian Restaurant at Defendant’s property once.
([7] ¶ 6). Plaintiff does not specifically allege that he visited any other business in
the Shopping Center. Instead, he states only that he “has visited the subject
shopping center numerous times in the past, and intends to visit the subject facility
in the near future,” ([7] ¶ 7). Plaintiff admits to living over 1,000 miles from the
Shopping Center ([14] at 8), but states in his opposition brief that “[he] has
expressed a preference for the types of goods and services offered at the
Defendant’s property, and desires to return to the property to eat and shop there
again.” ([7] ¶ 44). The Amended Complaint does not specify any goods or
services for which Defendant intends to return to the Shopping Center.
In determining whether a plaintiff’s likelihood of returning to a particular
establishment is sufficient to confer standing, courts have generally focused on
four factors: “(1) the proximity of the place of public accommodation to plaintiff’s
residence, (2) plaintiff’s past patronage of defendant’s business, (3) the
disciplinary actions against his counsel, should discredit Plaintiff’s allegations in
the Amended Complaint. The Court “must be particularly cautious about [making]
credibility determinations that rely on a plaintiff’s past ADA litigation.” Gaylor v.
Greenbriar of Dahlonega Shopping Ctr., Inc., 975 F. Supp. 2d 1374, 1386-87 (N.D.
Ga. 2013). Even assuming that Plaintiff’s history of bringing ADA suits is
relevant, the Court finds nothing in that history that undermines Plaintiff’s
credibility.
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definitiveness of plaintiff’s plan to return, and (4) the plaintiff’s frequency of travel
near defendant.” Gaylor v. Greenbriar of Dahlonega Shopping Ctr., Inc., 975 F.
Supp. 2d 1374, 1385-86 (N.D. Ga. 2013) (quoting Norkunas v. Seahorse NB, LLC,
720 F. Supp. 2d 1313, 1316 (M.D. Fla.2010), aff’d, 444 F. App’x. 412 (11th Cir.
2011)). The Eleventh Circuit has noted that “these factors are not exclusive and
that no single factor is dispositive. District courts must consider the totality of all
relevant facts to determine whether a plaintiff faces a real and immediate threat of
future injury.” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1337 n.6
(11th Cir. 2013).
Here, Plaintiff generally alleges that he has visited the Shopping Center
“numerous times in the past.” He alleges ADA violations at a specific restaurant in
the shopping center and states that he “intends to visit the subject facility in the
near future.” This intention to visit in the future when coupled with allegations
that he has visited in the past, and the mention of a specific restaurant where
claimed violations exist is insufficient to support that Plaintiff has standing in this
action. Shotz, 256 F.3d at 1081. The Court, however, elects to allow Plaintiff to
file an amended complaint to assert facts sufficient to show the specific locations
visited in the past, the specific violations at the specific locations visited, the
specific plans Plaintiff has to return to those facilities at which violations are
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claimed, and any other facts to support that Plaintiff has standing in this action.
See Houston, 733 F.3d at 1336; Gaylor, 975 F. Supp. 2d at 1385-86.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss for
Failure to State a Claim, or, in the Alternative, Motion for a More Definite
Statement [12] is GRANTED and Plaintiff is required to file, on or before
January 12, 2018, his second amended complaint in this action. This requirement
for a second amended complaint is without prejudice to Defendant’s right to file a
further motion in response to the amended pleading.
SO ORDERED this 5th day of January, 2018.
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