Mayes v. PTP Investments, L.L.C.
Filing
48
ORDER AND REASONS denying 17 Motion to Dismiss for Failure to State a Claim. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MELVA MAYES
CIVIL ACTION
VERSUS
NO. 13-5474
PTP INVESTMENTS, LLC
SECTION "B"(1)
ORDER AND REASONS
Plaintiff Melva Mayes has paraplegia and is confined to a
wheelchair. She brought the instant suit for declaratory and
injunctive relief against PTP Investment, L.L.C. (PTP) under the
Americans With Disabilities Act (ADA). 42 U.S.C. § 12181 et seq.
She claims that she has visited the Rally's Hamburgers located
on property owned by PTP numerous times and intends to again in
the future. Complaint, (Rec. Doc. No. 1 at ¶ 12). She alleges
that she experienced serious difficulties in accessing the
location because of architectural barriers, namely a lack of
parking for persons with disabilities; lack of an accessible
route from the parking lot to the restaurant; lack of proper
signage in the parking lot; lack of a curb cut; lack of signage
on restroom doors; a narrow restroom door; noncompliant ramp
access; and lack of disability seating. (Id. at ¶ 16).
PTP subsequently filed a third-party complaint against Ronald
Stevens, JCS Drive-Thru Restaurants, Inc., and Checkers Drive-In
Restaurants, Inc. (collectively "Third-Party Defendants"),
claiming they are responsible for responding to Mayes'
1
allegations. Third-Party Defendants now seek dismissal, claiming
Mayes lacks standing and, separately, that Mayes has failed to
state claim.1
Accordingly, and for the reasons articulated below, IT IS
ORDERED that Third-Party Defendants’ Motion to Dismiss (Rec.
Doc. No. 17) is DENIED.
I. Standing
Standing is an absolute requirement for federal
jurisdiction, and without standing a plaintiff’s claim may not
proceed. N.A.A.C.P. v. City of Kyle, Tex., 626 F.3d 233, 237
(5th Cir. 2010); Ass'n of Cmty. Organizations for Reform Now v.
Fowler, 178 F.3d 350, 356 (5th Cir. 1999). For a plaintiff to
establish standing, three elements must be met:
First, the plaintiff must have suffered an injury in fact—
an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent,
not conjectural or hypothetical. Second, there must be a
causal connection between the injury and the conduct
complained of—the injury has to be fairly traceable to the
challenged action of the defendant, and not the result of
the independent action of some third party not before the
court. Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)
(internal citations and quotations omitted).
A plaintiff seeking injunctive relief bears the additional
burden of establishing a “real or immediate threat that the
1
PTP has made no filings on the issue of dismissal.
2
plaintiff will be wronged” in the future. City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983).
Where standing is challenged as a means of attacking the
court’s subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1), as is the case here, the party asserting
jurisdiction bears the burden of establishing a basis for
jurisdiction. Randall D. Wolcott, M.D., P.A. v. Sebelius, 635
F.3d 757, 762 (5th Cir. 2011). But all jurisdictionally pled
facts are to be accepted as true until challenged and dismissal
“should be granted only if it appears certain that the plaintiff
cannot prove any set of facts in support of his [or her] claim
that would entitle plaintiff to relief.” Choice Inc. of Texas v.
Greenstein, 691 F.3d 710, 714 (5th Cir. 2012) (quoting Ramming
v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).
When jurisdictional facts are challenged the court may
resolve the challenge by looking to (1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts. Ramming at 161.
However, the burden to establish jurisdiction at the 12(b)(1)
stage is not demanding. In cases where “issues of fact are
central both to subject matter jurisdiction and the claims on
the merits . . . the trial court must assume jurisdiction and
proceed to the merits.” Montez v. Dep't of Navy, 392 F.3d 147
3
(5th Cir. 2004); see also Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 89 (1998) (stating "[i]t is firmly
established in our cases that the absence of a valid (as opposed
to arguable) cause of action does not implicate subject-matter
jurisdiction . . .”).
Challenges to subject matter jurisdiction brought under
12(b)(1) are to be distinguished from challenges under 12(b)(6)
for failure to state a claim. Under 12(b)(6), the Court must
determine “whether a cognizable legal claim has been stated.” 5B
Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1350 (3d ed.)
A motion under 12(b)(1), by contrast,
only requires a determination as to “whether the plaintiff has a
right to be in the particular court.” Id. Thus, when a
“challenge to the court's jurisdiction is also a challenge to
the existence of a federal cause of action, the proper course of
action . . . is to find that jurisdiction exists and deal with
the objections as a direct attack on the merits” under either a
Rule 12(b)(6) motion or Rule 56 summary judgment motion. Montez,
392 F.3d at 150 (quoting Williamson v. Tucker , 645 F.2d 404,
415 (5th Cir. 1981)). To proceed otherwise would allow a party to
“indirectly” challenge the merits of a case, and fail to provide
“protection[s] to the plaintiff who in truth is facing a
challenge to the validity of his claim.”
Williamson, 645 at
415; see also Oneida Indian Nation of N. Y. State v. Oneida
4
Cnty., New York, 414 U.S. 661, 666-67 (1974) (dismissal for lack
of subject matter jurisdiction improper when plaintiff's
“assertion that they had a federal right . . . cannot be said to
be so insubstantial, implausible, [or] foreclosed by prior
decisions . . .”).
Third-Party Defendants argue that Mayes lacks standing to
pursue injunctive relief because she has not alleged a threat of
imminent future injury. Specifically, Third-Party Defendants
contend that Mayes has failed to establish her intent to return
to the Rally’s Hamburgers in the future. They dismiss her as a
mere “tester”, who seeks to sue businesses to force compliance
with the ADA. This contention is unavailing, and ignores the
actual jurisdictional facts pled.
Mayes stated specifically in her Complaint that she lives
near Third-Party Defendants’ business2; that she has visited the
business numerous times in the past and has experienced the
architectural barriers firsthand; and she would like to visit
the business again but is deterred by the architectural
barriers. Complaint, (Rec. Doc. No. 1 at ¶¶ 12-15). These
2
Third-Party Defendants dispute this contention, pointing to previous
lawsuits filed by Mayes where she stated she lived in St. Tammany Parish
rather than Jefferson Parish, where the business is located. The Court does
not find this fact to bare heavily on the standing analysis, since a resident
of St. Tammany Parish might choose to visit restaurants in Jefferson Parish
on a regular basis such that they are injured by Jefferson Parish businesses
failing to comply with the ADA. But regardless, Mayes clarified in her
Opposition to the instant motion that she has since moved to Jefferson
Parish. Affidavit of Melva Mayes, (Rec. Doc. No. 18-1 at ¶ 4).
5
jurisdictionally pled facts are accepted as true, and provide a
viable basis for standing.
Third-Party Defendants have provided no evidence beyond the
Complaint that the Court finds persuasive to challenge Mayes’
sincerity that she intends to revisit the location. Third-Party
Defendants rely on resolutions of fact not proper on a Motion to
Dismiss under Rule 12(b)(1) given the existing record. These
arguments are discussed further below.
First, Third-Party Defendants claim Mayes is a tester and
therefore lacks standing. “Testers are qualified individuals
with disabilities who visit places of public accommodation to
determine their compliance with Title III” of the ADA. Kelly
Johnson, Testers Standing Up for Title III of the ADA, 59 Case
W. Res. L. Rev. 683, 685 (2009). The Court does not find Mayes
to be merely a tester. She has visited the location numerous
times in the past and intends to again in the future for the
purpose of patronizing Third-Party Defendants’ business.
Although Mayes claims she plans to visit the location as a
tester in the future, she states specifically that service as a
tester is independent from her wanting to visit again as a
customer. Complaint, (Rec. Doc. No. 1 at ¶¶ 20).
Even accepting Third-Party Defendants argument that Mayes
seeks to proceed as a tester to monitor ADA compliance, such
testers may still satisfy the standing requirement. See
6
Gilkerson v. Chasewood Bank, 2014 WL 805996 (S.D. Tex. Feb. 27,
2014) (finding where plaintiff alleged she went to ATM location
as both a tester and a patron and would continue to do so
standing requirement was satisfied); Cf. Havens Realty Corp. v.
Coleman, 455 U.S. 363, 374 (1982) (holding that testers may
qualify for standing under the Fair Housing Act). The Fifth
Circuit has not yet addressed the question of testers directly
in the context of the ADA public accommodation provision.
However, the Tenth and Eleventh Circuits have held that a tester
can satisfy the standing requirement under the ADA for
injunctive relief. Tandy v. City of Wichita, 380 F.3d 1277, 1287
(10th Cir. 2004); Houston v. Marod Supermarkets, Inc., 733 F.3d
1323, 1332 (11th Cir. 2013).
Third-Party Defendants’ corollary argument that Mayes’
claim to return to the restaurant lacks specificity is also
rejected. ADA plaintiffs need not state a specific time or
reason for wanting to visit an establishment in the future to
have standing. See Tatum v. Bd. of Supe'rs for Univ. of
Louisiana Sys., 2014 WL 1250102 (E.D. La. Mar. 26, 2014)
(holding plaintiff established standing where alleged barriers
hampered plaintiff's ability to access and enjoy ADA covered
accommodations). They additionally “need not engage in futile
gestures before seeking an injunction,” such as repeatedly going
to an inaccessible location. Frame v. City of Arlington, 657
7
F.3d 215, 236 (5th Cir. 2011); 42 U.S.C. § 12188(a)(1) (“[A]
person with a disability [need not] engage in a futile gesture
if such person has actual notice that a person or organization
covered by [the ADA] does not intend to comply with its
provisions”). Rather, at most all that is required to confer
standing is a specific intention to visit the business in the
future and take advantage of the changes sought. See Plumley v.
Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir. 1997) (ADA
plaintiff seeking injunction must “show that there is reason to
believe that he would directly benefit [from] the equitable
relief sought. In other words, a plaintiff must face a threat of
present or future harm.”); Betancourt v. Federated Dep't Stores,
732 F. Supp. 2d 693, 709 (W.D. Tex. 2010) (holding “in an ADA
Title III case, the risk of injury in fact is not speculative so
long as the alleged discriminatory barriers remain in place, the
plaintiff remains disabled, and the plaintiff is ‘able and
ready’ to visit the facility once it is made compliant”)3; Cf.
3
The Betancourt court additionally recognized numerous injunction affirmances
under the ADA by both the Fifth Circuit and the Supreme Court where no record
evidence was presented on when, if ever, the plaintiff intended to revisit
the defendant business. Betancourt at 706-708. This suggests the future
intent to return requirement is flexible and minimally demanding. See also
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1042 n.5 (9th Cir. 2008) (“Once a
disabled individual has encountered or become aware of alleged ADA violations
that deter his patronage of or otherwise interfere with his access to a place
of public accommodation, he has already suffered an injury in fact traceable
to the defendant's conduct and capable of being redressed by the courts, and
so he possesses standing under Article III to bring his claim for injunctive
relief forward.”)
8
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528
U.S. 167, 183 (2000) (finding plaintiffs adequately established
standing to sue under the Clean Water Act where they lived near
river and visited it in the past but were deterred from doing so
in the future because of defendants’ alleged conduct). This
standing requirement is more than met by Mayes, given her close
proximity to the restaurant and her intention to visit the
restaurant in the future.
Third-Party Defendants also argue that Mayes’ assertion
that she intends to visit the location in the future is suspect
because she has filed ten other ADA lawsuits against different
defendants since 2012 with nearly identical factual allegations.
While very suspecious, the fact that a plaintiff has filed
suits in the past alleging similar disparate treatment is not a
basis for declining jurisdiction. See D'Lil v. Best W. Encina
Lodge & Suites, 538 F.3d 1031, 1040 (9th Cir. 2008) (overruling
district court’s dismissal of plaintiff’s suit where plaintiff
had been involved in 60 past ADA suits). At this early pleadings
stage, these rebuttable factual allegations are presumed true –
for now.
In reviewing ADA standing challenges, the Court is
cognizant of the fact that Congress has found that
discrimination against persons with disabilities “persists in
such critical areas as . . .
public accommodations” and
9
“individuals with disabilities continually encounter various
forms of discrimination, including outright intentional
exclusion, the discriminatory effects of architectural . . .
barriers [and] failure to make modifications to existing
facilities and practices . . .” 42 U.S.C. § 12101 (3), (5).
Those finding were reaffirmed with the ADA Amendments Act Of
2008. PL 110–325, September 25, 2008, 122 Stat 3553. Given this
pervasive level of nationwide discrimination, the Court cannot
accept Third-Party Defendants’ argument that ten suits over two
years by one plaintiff suggests the lack of a particularized
injury.
As other courts have recognized, a high number of suits by
an individual plaintiff is a result of the ADA’s private
enforcement scheme. The Ninth Circuit has found:
[T]he ADA does not permit private plaintiffs to seek
damages, and limits the relief they may seek to injunctions
and attorneys' fees. [The] the unavailability of damages
reduces or removes the incentive for most disabled persons
who are injured by inaccessible places of public
accommodation to bring suit under the ADA. As a result,
most ADA suits are brought by a small number of private
plaintiffs who view themselves as champions of the
disabled. District courts should not condemn such serial
litigation as vexatious as a matter of course. For the ADA
to yield its promise of equal access for the disabled, it
may indeed be necessary and desirable for committed
individuals to bring serial litigation advancing the time
when public accommodations will be compliant with the ADA.
10
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1061-62 (9th
Cir. 2007) (internal citations omitted)4; see also Houston v.
Marod Supermarkets, Inc., 733 F.3d 1323, 1326 (11th Cir. 2013)
(“It is not unprecedented in this country for advocacy groups
and individual members of advocacy groups to find it necessary
to file a long trail of lawsuits in federal courts to enforce
legal and civil rights.”). Thus, the Court finds no evidence
that Mayes has filed ADA suits in a frivolous manner, and no
justification for denying her standing here based on past
litigation.
Third-Party Defendants point to two cases that warrant
further discussion. First, Third-Party Defendants rely heavily
in their Motion on Payne v. Sears, Roebuck & Co., 2012 WL
1965389 (E.D.N.C. May 31, 2012). There, the United States
District Court for the Eastern District of North Carolina
dismissed an ADA plaintiff’s claim for lack of standing because
her intent to return to the business was speculative if not
doubtful. Id. at *6. The facts in Payne are distinguishable from
the instant case. There, the plaintiff was a resident of
Florida, while the defendant business was located in North
Carolina. Id. at *1. The court found plaintiff did not suffer
the level of injury required to establish standing for
4
The Molski court ultimately upheld a determination that Molski was a
vexatious litigant, but he had filed over 400 suits under the ADA and was
found to routinely exaggerate facts in his favor. Molski at 1050, 1062.
11
injunctive relief because her distant proximity to the location
failed to establish an imminent threat that she would be harmed
again. Id. at *7. Mayes is not several states removed from
Third-Party Defendants’ business, but instead lives relatively
speaking in a nearby locality. She arguably appears to suffer
imminent harm from an inability to patronize the restaurant
without encountering structural barriers. Thus, Payne has little
application to the instant case at this stage.
The Payne court additionally applied a four factor test to
determine if the plaintiff had standing: (1) the proximity of
the plaintiff's residence to the alleged offending
establishment; (2) the plaintiff's past patronage of the
establishment; (3) the definitiveness of the plaintiff's plan to
return to the establishment; and (4) whether the plaintiff
frequently travels nearby. Payne at *3. Third-Party Defendants
urge the Court to adopt the same test here.
While several district courts have looked to this test, the
Fifth Circuit has not adopted it. See Tatum, 2014 WL 1250102 at
*3. Judge Affick recently declined to accept the factors as
governing. Id. At least one court, the United States District
Court for the District of Maine, has rejected use of the test
prior to trial – concluding the factors rely too heavily on fact
finding not appropriate at the motions practice stage. Fiedler
v. Ocean Properties, Ltd., 683 F. Supp. 2d 57, 72 (D. Me. 2010).
12
The liberal pleading standard at the 12(b)(1) stage, Choice
Inc, 691 F.3d at 714, coupled with the broad standing provisions
of the ADA, see McCoy v. Texas Dep't of Criminal Justice, 2006
WL 2331055 at *6 (S.D. Tex. Aug. 9, 2006), suggest that such a
rigorous fact dependent test at the motion to dismiss phase is
not appropriate. See also 42 U.S.C. § 12188(a)(1)(ADA remedies
are available to “any person who is being subjected to
discrimination on the basis of disability in violation of [the
ADA] or who has reasonable grounds for believing that such
person is about to be subjected to discrimination . . .”)
(emphasis added). While the factors may be useful at trial, they
rely too heavily on fact determinations and credibility findings
that are improper at this juncture.
Lastly, Third-Party Defendants point the Court to Mayes v.
Jason Associates, Civil Action No. 12-2773 (E.D.L.A.) — one of
the prior suits brought by Mayes referenced above. Third-Party
Defendants assert that “[t]here, Judge Kurt Engelhardt dismissed
the boilerplate Complaint filed by Mayes, which is virtually
identical to the Complaint filed against PTP here, for lack of
jurisdiction.” (Rec. Doc. No. 17-1 at 7). Counsel for ThirdParty Defendants has either not carefully read Judge
Engelhardt’s order, or misconstrues the holding. Judge
Engelhardt in fact dismissed Mayes’ claims because her attorney
failed to timely respond to defendant’s motion to dismiss. Jason
13
Associates, Civil Action No. 12-2773 (E.D.L.A.) (Rec. Doc. No.
15). The order contains no jurisdictional analysis. Thus,
without more, it has no precedential value.5
II. Failure to State a Claim – FRCP 12(b)(6)
When reviewing a motion to dismiss for failure to state a
claim, courts must accept all well-pleaded facts as true and
view them in the light most favorable to the non-moving party.
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
However,
“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007).
“To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Gonzales v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (internal
quotations omitted).
Third-Party Defendants seek dismissal of Mayes’
accommodation claim at paragraph 17 of her Complaint, alleging
that she has failed to identify particularly what auxiliary aid
or services were required but not provided. The Court disagrees.
Mayes has properly stated a claim for discrimination under the
ADA and the need for some type of accommodation to remedy the
5
Counsel’s claim that Mayes’ Complaint contains boilerplate language is also
not accepted. Third-Party Defendants’ counsel, for their part, have copied,
word for word, almost the entirety of the Motion to Dismiss filed in Jason
Associates – which was submitted by different attorneys who are not members
of Third-Party Defendants counsels’ firm. Compare (Rec. Doc. No. 17) with
Jason Associates, Civil Action No. 12-2773 (E.D.L.A.) (Rec. Doc. No. 9).
14
barriers at the location.6 The exact aid required to comply with
the ADA, if any beyond the removal of architectural barriers,
likely requires discovery. Therefore the claim is not subject to
dismissal at the 12(b)(6) stage.
Accordingly, and for the reasons articulated above, IT IS
ORDERED that Third-Party Defendants’ Motion to Dismiss (Rec.
Doc. No. 17) is DENIED.
New Orleans, Louisiana, this 21st day of May, 2014.
____________________________
UNITED STATES DISTRICT JUDGE
6
Other than their jurisdictional challenge, Third-Party Defendants do not
challenge this fact on the merits.
15
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?