Herbert v. CHR Holding Corp et al

Filing 20

ORDER and REASONS - IT IS ORDERED that Doctor's Associates Inc.'s "Motion to Dismiss for Failure to State a Claim" (Rec. Doc. 13) is GRANTED, and Plaintiff, Tasha Herbert's claims against DAI are hereby DISMISSED WITHOUT PREJ UDICE. IT IS FURTHER ORDERED that, if Herbert wishes to proceed in the action against DAI, she shall have twenty (20) days from the entry of this Order within which to amend her pleading, as stated within document. Signed by Judge Kurt D. Engelhardt on 1/28/2015. (cbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TASHA HERBERT

CIVIL ACTION

VERSUS

NO. 14-2505

CHR HOLDING CORP. AND
DOCTOR'S ASSOCIATES, INC.

SECTION “N” (2)

ORDER AND REASONS
Presently before the Court is Defendant Doctor's Associates Inc.'s ("DAI") "Motion to
Dismiss for Failure to State a Claim" (Rec. Doc.13). For the reasons stated herein, IT IS
ORDERED that the motion is hereby GRANTED, and Plaintiff Tasha Herbert's claims against DAI
are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Herbert shall
have twenty (20) days from the date of this order to amend her pleading (Rec. Doc. 1) as stated
herein.

A. Background
In her Complaint (Rec. Doc. 1), Plaintiff Tasha Herbert alleges that she suffers from spina
bifida and requires a wheelchair for mobility. (Rec. Doc. 1 at p.1). Herbert's claims include
violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., referring to
numerous barriers at the Crown Plaza Shopping Center, specifically a Subway restaurant, in New
Orleans East. (Id. at 1-2). Herbert requests injunctive and declaratory relief against the alleged
owner of the property, CHR Holding Corp., and the alleged lessee, DAI. (Id. at 2, 7). DAI now
moves for dismissal of the claims against it on the grounds that it is not the owner, lessee, lessor, or
operator of the property as required for liability under the ADA. (Rec. Doc. 13).
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B. Legal Principles
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." Ashcroft v. Iqbal, 556 U.S. at 662,
678 (2009) (internal citation omitted). Under Federal Rule of Civil Procedure 12(b)(6), the Court
"must accept all well-pleaded facts as true, and . . . view them in the light most favorable to the
plaintiff." Campbell v. Wells Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir.), cert. denied, 476 U.S.
1159 (1986). Further, "[a]ll questions of fact and any ambiguities in the controlling substantive law
must be resolved in the plaintiff's favor." Lewis v. Fresne, 252 F.3d 352, 357 (5th Cir. 2001).
Nevertheless, "where the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it has not 'show[n]' – 'that the pleader is
entitled to relief.'" Iqbal, 556 U.S. at 678 (quoting Fed. Rule Civ. Proc. 8(a)(2)). When ruling on a
12(b)(6) motion, courts may consider the complaint and a limited number of extrinsic materials,
including any attached exhibits and documents that the petition incorporates by reference. Stevens
v. Lake Charles Coca-Cola Bottling Co., No. 2:11-CV-344, 2011 WL 2173649, at *2 (W.D.La. June
1, 2011).
B. Application of the Legal Principles
Under the ADA, it is unlawful to discriminate against persons with disabilities in the
provisions of goods, services, and facilities, among others, in "places of public accommodation."
42 U.S.C. § 12182. A "place of public accommodation" can be a restaurant, bar, or other
establishment serving food or drink. 28 C.F.R. § 36.104. A "public accommodation" means a
private entity that "owns, leases (or leases to), or operates a place of public accommodation." Id.

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In its motion to dismiss, DAI claims it is not the owner, lessor/lessee, or operator of the
property that Herbert alleges to be in violation of the ADA. To support its motion, DAI presents to
the Court a copy of the lease agreement covering the restaurant. (Rec. Doc. 13-4). The lease
specifically states that the lessor is CHR Holding, Inc.1 and the lessee is Subway Real Estate Corp.
(Id.). In response, Herbert contends that the evidence is extrinsic to the Complaint and, therefore,
is improperly considered at the Rule 12(b)(6) stage of this proceeding. (Rec. Doc. 15 at p.3).
Additionally, Herbert avers that she has presented sufficient evidence to the Court to suggest that
DAI "operates," by way of "control," the property at issue and any question of control shall be
decided after discovery has taken place. (Id. at 5).
As previously stated, the Court is permitted to rely on documents that are attached to the
complaint or are incorporated by reference. Stevens, 2011 WL 2173649, at *2. The Court finds that
Herbert's argument that the lease is improperly cited extrinsic evidence to be unsupported by law
because the complaint clearly refers to an alleged lessor/lessee relationship between CHR and DAI
and, additionally, the lease document is central to her claims against DAI. See Collins, v. Morgan
Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000). Therefore, the Court will consider the lease
agreement as evidence that was properly submitted by DAI in support of its motion.
Herbert, in addition to her incorrect evidentiary assertion, specifically alleges that she has
sufficiently established a claim against DAI as operator, by way of "control," of the property at issue
in this case. Herbert bases this argument on the holding in Neff v. American Dairy Queen Corp, 58
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The Court has been presented with documents, including pleadings and exhibits, that contain at least three
different aliases for the Defedant CHR Holding Corp. Compare Rec. Doc. 1 (CHR Holding Corp.); Rec. Doc. 13-1
at p. 1 (CHR Holdings Corp.); Rec. Doc. 13-4 (CHR Holding, Inc.). Because neither party addresses the obvious
and apparent discrepancy, the Court assumes for purposes of this motion that the CHR Holding, Inc., CHR Holding
Corp., and CHR Holdings Corp. are the same entity.

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F.3d 1063 (5th Cir. 1995), which states that, for purposes establishing a claim that an entity
"operates" a given "place of public accommodation" under the ADA, sufficient control can be
demonstrated by showing that alleged operating entity specifically controls the modifications that
improve a property's accessibility to the disabled. Id. at 1066.
Herbert seemingly attempts to hang her hat on the following allegation: "Upon information
and belief, [DAI] is a leasee (sic) at Crystal plaza and operates the restaurant 'Subway #46704'
thereon." (Rec. Doc. 1 at ¶ 11 (emphasis added)). However, the lease agreement attached to DAI's
motion explicitly states that Subway Real Estate Corp. is the lessee. (Rec. Doc. 13-4). Therefore,
to survive DAI's motion, Herbert must present sufficient evidence of a claim against DAI, in a nonlessee capacity, that is "plausible on its face." Iqbal, 556 U.S. at 678. However, nowhere in the
complaint does Herbert put forth any evidence of DAI's relationship, other than as a lessee, which
has been proven incorrect, to the restaurant and/or property at issue. Herbert has failed to allege any
facts that suggest to this Court that DAI exercises authority over modifications that may affect
accessibility to the disabled at this particular location. Nor has she alleged that DAI has any interest
in, connection to, or control over the restaurant as owner, franchisor, or otherwise. Thus, even
accepting all facts as true and viewing all inferences in her favor, Herbert has failed to state a claim
against DAI that is plausible. If Herbert wishes to pursue her claims against DAI, she must amend
her complaint to include specific allegations of DAI's relationship to, and authority over, the Subway
restaurant in this case. A presumptuous allegation of DAI's status as an operator, without more, is
insufficient to survive the 12(b)(6) motion.
C. Conclusion

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Accordingly,
IT IS ORDERED that DAI's "Motion to Dismiss for Failure to State a Claim" (Rec. Doc.
13) is GRANTED, and Herbert's claims against DAI are hereby DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that, if Herbert wishes to proceed in the action against DAI,
she shall have twenty (20) days from the entry of this Order within which to amend her pleading
as set forth above.
New Orleans, Louisiana, this 27th day of January 2015.

_________________________________
KURT D. ENGELHARDT
United States District Judge

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