Thomas v. Lewis et al

Filing 12

RULING denying 3 Motion to Dismiss for Failure to State a Claim with the proviso that plaintiff shall file an amended complaint within 14 days that describes with reasonable specificity as stated herein. Defendants' 3 motion to dismiss for failure to join necessary parties is DENIED at this time. Signed by Judge John W. deGravelles on 10/28/2014. (NLT)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
DEBORAH THOMAS
CIVIL ACTION
VERSUS
NO. 14-463-JWD-RLB
GARRY LINUEL LEWIS, ET AL.
RULING ON MOTION
This matter is before the court on a motion by defendants, Garry and Brenda Lewis, to
dismiss for failure to state a claim and for failure to join all necessary parties. Plaintiff, Deborah
Thomas, has filed an opposition. Defendants have filed a reply. There is no need for oral argument.
Deborah Thomas brings this action under the Americans with Disabilities Act, 42 USC

§12181, et seq., seeking declaratory and injunctive relief. Plaintiff claims that she requires
a wheelchair for mobility due to being disabled with paraplegia. She claims that Garry and
Brenda Lewis “are the owners, lessors, lessees and/or operators” of “Government Village
generally located at 5223 Government Street, Baton Rouge, Louisiana” which she refers to
as “the Facility.” Plaintiff claims that the Facility is a place of public accommodation that
has several “architectural barriers” preventing her from accessing the businesses there. She
further claims to have encountered the following “barriers” when she visited the Facility on
“numerous times” on unspecified occasions in the past: insufficient disabled parking; curb
ramps that have excessive slopes or improper side flares; portions of parking area that do not
lead to a curb cut onto the Facility’s sidewalk; insufficient disabled seating at the Facility;
non compliant door knobs in the restroom that require tight grasping and twisting; restroom

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pipes lacking insulation to prevent sharp contact or abrasion; a restroom mirror that is too
high off the finished floor, and insufficient clear floor space in the restroom.
Defendants move to dismiss on the basis that plaintiff has failed to state a claim
against them because: (1) the Facility is a “strip shopping mall consisting of at least eight
different businesses;” (2) plaintiff fails to specifically identify the businesses that she visited
or attempted to visit; and/or (3) there is no indication of dates or precise location of the
alleged architectural barriers.
Under Fed. Rule Civil P. 12(b)(6), a court must accept all well-pleaded factual
allegations as true. Facts must be viewed in the light most favorable to the non-movant. See
Bass v. Stryker Corp., 669 F.3d 501, 506 (5th Cir. 2012). In order to survive a motion to
dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A court need not
determine at this preliminary stage whether the plaintiff’s claims will ultimately succeed on
the merits. Id. at 556. Instead, a court must identify the factual allegations entitled to the
presumption of truth and determine whether they state a plausible claim for relief. Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009).
In her opposition, plaintiff argues that defendants raise matters outside (or contrary)
to the allegations made in the complaint. The court agrees with this assessment. However,
the court agrees with defendants that the complaint fails to provide any indication as to where
the restroom, parking and seating areas at issue are located within the Facility. The Court
recognizes that plaintiff has cited similar ADA cases decided in the Eastern District of

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Louisiana1 for the proposition that she need not allege which businesses she visited or the
specific time or reason for wanting to visit an establishment in the future. Those cases were
decided in the context of “standing” and are not particularly germane to the instant motion.
Accordingly, defendants’ motion (doc. 3) to dismiss for failure to state a claim is
hereby DENIED with the proviso that plaintiff shall file an amended complaint within 14
days that describes with reasonable specificity: (1) the claims and allegations that she is
asserting against the named defendants, including what portion of the Facility that she clams
they own or lease; (2) when she claims to have encountered and/or observed the alleged
ADA violations listed in her complaint; and (3) the location on the premises where she
encountered and/or observed the alleged ADA violations. Defendants’ motion to dismiss
(doc. 3) for failure to join necessary parties is DENIED at this time.

Signed in Baton Rouge, Louisiana, on October 28, 2014.

S
JUDGE JOHN W. deGRAVELLES
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

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Mayes v. PTP Investments, LLC, 2014 WL 2155209 (E.D. La. 5/22/14) and Tatum v. Bd. of
Supe’rs for Univ. of Lousiana Sys., 2014 WL 1250102 (E.D. La. Mar. 26, 2014). Compare, Deborah
Thomas v. Little Caesar Enterprises, Inc., et al., Civil Action No. 14-171-SDD-SCR.

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