Magee v. Winn-Dixie Stores, Inc.

Filing 38

ORDER denying 8 Motion to Certify Class; granting 32 Motion to Dismiss for Failure to State a Claim. Signed by Judge Sarah S. Vance on 1/30/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SCOTT MAGEE, INDIVIDUALLY
AND ON BEHALF OF ALL OTHERS
SIMILARLY SITUATED
VERSUS

CIVIL ACTION

NO. 16-4364

GLACIER WATER SERVICES, INC.
AND WINN-DIXIE STORES, INC.

SECTION “R” (4)

ORDER AND REASONS
Defendants GW Services, LLC (GWS) 1 and Winn-Dixie Stores, Inc.
move the Court to dismiss plaintiff Scott Magee’s second amended complaint
pursuant to Rules 12(b)(1) and (b)(6) of the Federal Rules of Civil
Procedure.2 For the following reasons defendants’ motion is GRANTED.

I.

BACKGROUND
Defendant GWS is a California corporation that owns and operates

water refill stations, and GWS contracts with companies like Winn-Dixie to
install and operate the refill stations in those companies’ locations. 3 The

GW Services, LLC was improperly named in the complaint as
Glacier Water Services, Inc.
2
R. Doc. 32.
3
R. Doc. 28 at 4 ¶ 12.
1

stations are connected to a municipal water source and allow customers to
bring their own water bottles and purchase water refills. 4 Plaintiff alleges
that to use the machine, a consumer places an empty water bottle into the
machine and inserts payment, and then follows the written instructions on
the machine by pressing buttons on the machine. 5 According to plaintiff, the
refill stations offer filtered water at prices significantly less expensive than
comparable water products, and they also offer consumers the choice of
obtaining filtered water in an environmentally friendly way. 6
Plaintiff Scott Magee suffers from Macular Degeneration, and as a
result, is legally blind. 7 Plaintiff lives near the Winn-Dixie located at 211
Veterans Memorial Boulevard in Metairie, Louisiana.8

According to

plaintiff, he has shopped at this Winn-Dixie multiple times and reasonably
expects to visit again in the future. This Winn-Dixie location has a GWS
water refill station located right outside the main entrance and the machine
is open to the public 24 hours a day. 9 Thus, consumers need not actually
enter the Winn-Dixie to use the refill station.

4
5
6
7
8
9

R. Doc. 32-1 at 3.
R. Doc. 28 at 2 ¶ 3.
Id. at 5 ¶¶ 17-18.
Id. at 3-4 ¶ 11.
Id. at 7 ¶¶ 35-36.
Id. at 5-6 ¶¶ 20-22.
2

Plaintiff’s second amended complaint alleges that on May 1, 2016,
Magee went to the Winn-Dixie after the interior had closed for the night. 10
According to plaintiff, he approached the water refill station to purchase
water, but “quickly determined that [plaintiff] was unable to use it because it
did not offer a non-visual means of operation.”11 Magee alleges that the
machine did not utilize any braille markings or other non-visual means for
Magee or others similarly situated to interact with the machine. Thus, Magee
argues that he and other blind customers cannot use the machines without
the assistance of others. According to Magee, the stations could easily be
retrofitted with braille instructions and other non-visual technologies to
allow blind consumers to use the machines. 12 Magee further alleges that his
May 2016 visit was not Magee’s only experience with the machine and that
he has attempted to use the machine in the past with no success.13 Magee
does not, however, mention any dates or times of his alleged previous visits,
nor does he allege that these previous visits occurred when the store was
closed.

Id. at 7 ¶ 37. Notably, Magee did not allege that he visited WinnDixie at night when its interior was closed in his initial lawsuit or his first
amended complaint.
11
Id. at 8 ¶ 38.
12
Id. at 7 ¶ 33.
13
Id. at 8 ¶ 40.
3
10

On May 6, 2016, Magee filed this class action lawsuit against WinnDixie, asserting that Winn-Dixie’s refill stations unlawfully discriminate
against the blind in violation of Title III of the Americans with Disabilities
Act (ADA), 42 U.S.C. §§ 12101, et seq.14 Plaintiff amended his complaint on
May 18, 2016 to add GWS as a defendant. 15 On May 25, 2016, plaintiff filed
a motion for class certification, 16 and on September 19, 2016, plaintiff
amended his complaint for a second time. 17 Plaintiff seeks declaratory and
injunctive relief, as well as reasonable attorneys’ fees, expenses, and costs. 18
Plaintiff brings his ADA claim on behalf of himself and a proposed class
consisting of all legally blind individuals who have been or are being “denied
access to Glacier Water Refill Stations” located in the United States and
owned and/or operated by GWS, as well as a subclass of legally blind
individuals who have been denied access to the stations at locations owned
and/or operated by Winn-Dixie.19 Defendants filed this motion to dismiss,
arguing that plaintiff lacks standing to bring this suit, and that even if

14
15
16
17
18
19

R. Doc. 1 at 10 ¶ 44.
R. Doc. 5 at 4 ¶ 11.
R. Doc. 8.
R. Doc. 28.
Id. at 12-13.
Id. at 8 ¶¶ 41-42.
4

plaintiff has standing, he has failed to state a claim upon which relief can be
granted.20 Magee filed a response in opposition, 21 and defendants replied.22

II.

DISCUSSION
A.

Rule 12(b)(1)

A standing motion challenges the Court’s subject matter jurisdiction,
and it is governed by Federal Rule of Civil Procedure 12(b)(1). “A case is
properly dismissed for lack of subject matter jurisdiction when the court
lacks the statutory or constitutional power to adjudicate the case.” Home
Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182,
1187 (2d Cir. 1996)). A district court may dismiss for lack of subject matter
jurisdiction on any one of three bases: “(1) the complaint alone; (2) the
complaint supplemented by undisputed facts in the record; or (3) the
complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986)
(citation omitted).

20
21
22

R. Doc. 32.
R. Doc. 34.
R. Doc. 37.
5

If a defendant makes a “facial attack” on the complaint and the court’s
jurisdiction to hear the case, the trial court merely looks to the sufficiency of
the allegations in the complaint because they are presumed to be true.
Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). Here, defendants
make a “factual attack” on the court’s subject matter jurisdiction where they
submit affidavits, testimony, or other evidentiary materials. See id. When a
defendant makes a factual attack, the plaintiff is required to submit facts
through some evidentiary method and “has the burden of proving by a
preponderance of the evidence that the trial court does have subject matter
jurisdiction.” Id.; see also Peaker Energy Grp., L.L.C. v. Cargill, Inc. &
Louisiana Sugar Ref., L.L.C., No. 14-2106, 2016 WL 7385622, at *2 (E.D. La.
Dec. 21, 2016) (citing Paterson, 644 F.2d at 523).

III. DISCUSSION
A.

Standing

Defendants argue in their motion to dismiss that plaintiff lacks
standing because plaintiff has not suffered an injury-in-fact.

The

requirement that a party have standing to bring suit flows from Article III of
the Constitution, which limits the scope of the federal judicial power to the
adjudication of “cases” or “controversies.” U.S. Const. art. III, § 2. Standing
6

consists of three elements: (1) the plaintiff must have suffered an “injury-infact,” which is an “actual or imminent” invasion of a legally protected interest
that is “concrete and particularized;” (2) the injury must be “fairly traceable”
to the challenged conduct of the defendant; and (3) it must be likely that
plaintiff’s injury will be redressed by a favorable judicial decision. Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992). As the party invoking federal
jurisdiction, the plaintiff bears the burden of establishing each element.
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Because a standing
challenge attacks the Court’s jurisdiction to hear the case, the Court must
resolve the standing issue as a threshold matter of jurisdiction. See, e.g., Cole
v. Gen. Motors Corp., 484 F.3d 717, 721 (5th Cir. 2007).
The gravamen of plaintiff’s second amended complaint is that WinnDixie’s policy of allowing customers to use the refill station when Winn-Dixie
is closed is discriminatory because blind customers cannot use the machines
without assistance and there are no store employees to assist blind customers
when the store is closed.23 Defendants argue that, despite the allegations in
plaintiff’s complaint, Magee did not attempt to use the refill station while the

See, e.g., R. Doc. 34 at 4, challenging “policy of providing a
visual-only interface for using [Winn-Dixie’s] Refill Stations during
“afterhours” operating times when no Winn-Dixie personnel are available
onsite to assist;” id. at 5 challenging “policy of offering the Refill Stations
afterhours to some patrons—and not others;” id. at 8.
7
23

Winn-Dixie was closed on May 1, 2016. In support, defendants attach to
their motion a video 24 of the security camera footage from the Winn-Dixie
on the night plaintiff allegedly visited the refill station and the declaration of
Magan Breaux. 25 Breaux is the Customer Service Manager for the Veterans
Boulevard Winn-Dixie, and attests that the video constitutes true and
accurate reproductions of Winn-Dixie’s surveillance footage from the night
in question. 26 A review of the video reveals footage from two cameras
pointed at the parking lot in front of the Winn-Dixie entrance from the hours
of 12:00 midnight to 6:00 a.m. on May 1, 2016. 27
Defendants’ attachment of the video and the declaration of Breaux
indicate that they are making a “factual,” as opposed to a “facial,” challenge
to the Court’s jurisdiction. As described above, when a defendant makes a
factual attack, the plaintiff is required to submit facts through some
evidentiary method and “has the burden of proving by a preponderance of
the evidence that the trial court does have subject matter jurisdiction.” Case
law is clear that motions to dismiss for lack of standing can be brought

The video was submitted by hand as a manual attachment and is
attached as Exhibit 1.
25
R. Doc. 32-3.
26
Id.
27
The Winn-Dixie in question is open from 6:00 a.m. to 12:00 a.m.
See
Winn-Dixie
#1329
Store
Information,
available
at
https://www.winndixie.com/StoreDetails?search=1329.
8
24

through factual challenges. See, e.g., Superior MRI Servs., Inc. v. All.
Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015) (“A motion to
dismiss for lack of standing may be either ‘facial’ or ‘factual.’”) (citation
omitted); Pratt v. Mut. Of Omaha Ins. Co., No. 15-09, 2016 WL 1248885, at
*8 (N.D. Miss. Mar. 28, 2016) (accepting factual attack as to plaintiff’s
standing); Norkunas v. Wynn Resorts Holdings, LLC, No. 07-96, 2007 WL
2949569, at *2-5 (D. Nev. Oct. 10, 2007) (granting defendant’s factual
challenge to plaintiff’s Title III ADA standing based on plaintiff’s failure to
submit evidence indicating that he suffered injury-in-fact), aff’d sub nom.
Norkunas v. Wynn Las Vegas, LLC, 343 F. App’x 269 (9th Cir. 2009).
In response to defendants’ factual attack, plaintiff failed to submit any
evidence establishing that he did in fact attempt to use the refill station on
May 1, 2016 while Winn-Dixie was closed. Nor does plaintiff submit any
evidence at all regarding his alleged previous attempts to use the refill
station. Nor does he allege that those previous visits occurred at night when
Winn-Dixie was closed. Instead, plaintiff merely points out that the security
footage does not show the face of the refill station, and incorrectly asserts
that at this stage the Court must accept his factual allegations as true.28
While that would be true if defendants made a “facial” attack, with factual

28

R. Doc. 34 at 1.
9

attacks “no presumptive truthfulness attaches to plaintiff’s allegations.”
Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981). Further, the Court
can weigh the evidence and make determinations as to disputed factual
issues related to the Court’s jurisdiction. See, e.g., Crane v. Johnson, 783
F.3d 244, 251 (5th Cir. 2015).
Although the video does not show the face of the refill station, it shows
all plausible routes of approach to the machine. In the video, nearly the
entire parking lot can be seen, as well as the two front entrances to the store.
The refill station is located between the two front entrances. 29 Throughout
the video, no pedestrian appears to leave the field of view of the cameras in
the direction of the refill station machine or enter the field of view of the
cameras coming from the direction of the machine. 30 Further, no one is seen
carrying an empty water bottle, which appears to be a prerequisite to using
the water refill station. Given the location of the cameras, it is implausible

See R. Doc. 37-1 at 1-2 (Exhibit 1). Exhibit 1 is a screen shot of a
picture of the refill station from Google Street View. The Court takes judicial
notice of the Google Street View photograph showing the location of the refill
station, available at https://perma.cc/TVA8-A8YH (last visited Jan. 12,
2017). See U.S. v. Perea-Rey, 680 F.3d 1179, 1182 n.1 (9th Cir. 2012) (taking
judicial notice of a Google map and satellite image).
30
Multiple vehicles drove through the parking lot that night
without stopping. There were two instances where someone drove to the
parking lot, and exited his or her vehicle. Both approached the store and
tried to enter, but as soon as they learned the entrance was locked, they both
immediately returned to their vehicles and left.
10
29

that Magee got close enough to the machine to determine that he could not
use the machine without being seen by any of the cameras. Accordingly,
defendants’ unrebutted evidence negates plaintiff’s unsupported allegation
that he attempted to use the refill station on May 1, 2016.
Despite plaintiff’s obligation to respond to defendants’ factual attack
with evidence indicating that the Court has jurisdiction, plaintiff failed to do
so. See Weinberger, 644 F.2d at 523 (noting that when factual attack is made
plaintiff is “required to submit facts through some evidentiary method”);
Superior MRI, 778 F.3d at 504 (noting that when factual attack is made
plaintiff is “‘obliged to submit facts through some evidentiary method to
sustain his burden of proof’”) (quoting Irwin v. Veterans Admin., 874 F.2d
1092, 1096 (5th Cir. 1989). Plaintiff’s failure to respond with any evidence
at all to defendants’ argument is suggestive of the argument’s truth. Further,
it is telling that Magee did not allege at all that he went to Winn-Dixie at night
when it was closed until the third version of his complaint. 31 Therefore, in
light of the video evidence and the total lack of evidence from Magee
indicating that the Court does have jurisdiction, as well as Magee’s omission
from his first two versions of his complaint that he visited Winn-Dixie after

Compare R. Doc. 1 at 6-7 ¶¶ 26-27 and R. Doc. 5 at 7 ¶¶ 30-31
with R. Doc. 28 at 7 ¶ 37. Plaintiff’s first two versions of his complaint do not
mention that the refill station is accessible after hours at all.
11
31

hours, the Court resolves the disputed fact of whether Magee visited WinnDixie on May 1, 2016 in defendants’ favor.
It is axiomatic that a plaintiff must have suffered an injury-in-fact in
order to have standing, and hypothetical injuries are insufficient. Lujan, 504
U.S. at 560. Further, a statutory violation of the ADA, not connected to an
injury-in-fact, is insufficient to establish standing. See Spokeo, 136 S. Ct. at
1549 (“Article III standing requires a concrete injury even in the context of a
statutory violation.”). Therefore, one does not have standing to bring a claim
under Title III of the ADA without actually encountering the alleged
discrimination. See Bynum v. Am. Airlines, Inc., 166 F. App’x 730, 734 (5th
Cir. 2006) (per curiam) (noting in Title III ADA suit that the Court “agree[s]
with the district court that Appellant’s lawsuit against the airlines for which
he had not flown lacked any basis in fact and that he lacked standing to sue”);
Steger v. Franco, Inc., 228 F.3d 889, 892-93 (8th Cir. 2000) (finding that
Title III ADA plaintiffs lacked standing to bring claim because there was no
evidence plaintiffs had ever been in building and therefore had no evidence
building was inaccessible to them); Moyer v. Walt Disney World Co., 146 F.
Supp. 2d 1249, 1253-54 (M.D. Fla. 2000) (plaintiff lacked standing to bring
Title III ADA claim against amusement parks plaintiff had not yet visited at
time of complaint); Resnick v. Magical Cruise Co., Ltd., 148 F. Supp. 2d
12

1298, 1301 (M.D. Fla. 2001) (plaintiff lacked standing to bring Title III ADA
claim against cruise ship company because it was undisputed that plaintiff
“has not been on board or attempted to board” any ship and thus plaintiff
“ha[s] not been subjected to discrimination”).
Additionally, plaintiff failed to submit any evidence whatsoever
regarding his alleged previous visits to Winn-Dixie, including the time and
date of the visits. Without any information as to the time of the day of these
previous visits, the Court cannot determine what conduct or policy plaintiff
is challenging, information necessary to determine if he has standing. 32
Therefore, plaintiff’s non-specific, undated allegations of previous visits, as
well as his failure to submit evidence relating to these previous visits in

If plaintiff’s visits occurred during the day time when Winn-Dixie
was open, plaintiff would have to allege that Winn-Dixie denied him
assistance in using the Refill Station to have standing. See 42 U.S.C. § 12103
(defining “auxiliary aids and services”); 28 C.F.R. § 36.303(c)(1)(ii) (“[T]he
ultimate decision as to what measures to take [to provide appropriate
auxiliary aids and services] rests with the public accommodation, provided
that the method chosen results in effective communication.”); West v. Moe’s
Franchisor, LLC, No. 15-2846, 2015 WL 8484567, at *2-3 (S.D.N.Y. Dec. 9,
2015) (holding that Title III does not require beverage dispensers at public
accommodations to “allow[] blind individuals to retrieve beverages without
assistance”) (emphasis added); Dicarlo v. Walgreens Boot Alliance, Inc.,
No. 15-2919, 2016 WL 482982, at *2 (S.D.N.Y. Feb. 5, 2016) (same); Id., at
*1 n.1 (noting that plaintiff had standing because he pleaded that he sought
and was denied assistance). Plaintiff makes no such allegation.
13
32

response to defendant’s factual challenge, are insufficient to meet plaintiff’s
burden to establish that the Court has jurisdiction.
Because the Court finds that Magee has not met his burden to show
that he encountered the water refill station and thus could determine that he
could not use it, he has not suffered an injury-in-fact, and the Court does not
have jurisdiction to hear his claim. Therefore, his suit must be dismissed.
Defendants ask the Court to dismiss plaintiff’s complaint with
prejudice. Plaintiff did not respond to this in his response to defendants’
motion, and plaintiff did not request leave to file an amended complaint.
Still, as the Court is dismissing plaintiff’s suit on jurisdictional grounds, the
dismissal is without prejudice. See Hitt v. City of Pasadena, 561 F.2d 606,
608 (5th Cir. 1977); Cox, Cox, Filo, Camel & Wilson, L.L.C. v. Sasol N. Am.,
Inc., 544 F. App’x 455, 456-57 (5th Cir. 2013) (per curiam).
Finally, because plaintiff has not met his burden to show an injury-infact, he is not a member of his proposed class. Plaintiffs cannot lead a class
to which he or she does not belong, see, e.g., Gen. Tel. Co. of Sw. v. Falcon,
457 U.S. 147, 156 (1982), and therefore plaintiff’s motion for class
certification must be denied.

14

IV.

CONCLUSION
For the foregoing reasons, defendants’ motion to dismiss is

GRANTED. Plaintiff’s complaint is DISMISSED. Plaintiff’s motion for class
certification is DENIED.

30th
New Orleans, Louisiana, this _____ day of January, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

15