National Alliance for Accessibility, Inc. et al v. Millbank Partners - Riva Lmited Partnership

Filing 22

MEMORANDUM. Signed by Judge Richard D Bennett on 2/20/13. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., and
DENISE PAYNE

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Plaintiffs,

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v.

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MILLBANK HOTEL PARTNERS
and MILLBANK PARTNERS

Civil Action No. RDB 12-3223

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Defendants.
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MEMORANDUM
Plaintiffs National Alliance for Accessibility, Inc., and Denise Payne have brought an action
seeking a declaratory judgment and injunctive relief against Defendants Millbank Hotel Partners and
Millbank Partners. Plaintiffs allege that a Best Western Hotel owned by Defendants is not in compliance
with the accessibility requirements of the Americans with Disabilities Act (“ADA”) for public
accommodations, 42 U.S.C. § 12181, et seq. (ECF No. 13). Defendants have filed a motion to dismiss
Plaintiffs’ Complaint on the grounds that they lack standing and have failed to state a claim upon which
relief can be granted. (ECF No. 15).
The Court has reviewed the submissions by both parties and finds that no hearing is necessary.
See Local Rule 105.6 (D. Md. 2011). For the reasons that follow, Defendants’ Motion to Dismiss is
GRANTED and Plaintiffs’ Complaint is DISMISSED WITHOUT PREJUDICE.
BACKGROUND
Plaintiff National Alliance for Accessibility, Inc., (“NAA”) is a non-profit entity incorporated in
Florida. Pls.’ Am. Compl. ¶ 2, ECF No. 13. Its members include persons with disabilities as defined by

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the Americans with Disabilities Act (“ADA”),1 and its stated purpose is to ensure ADA compliance in
places of public accommodation. Id. ¶ 9. Plaintiff Denise Payne (“Payne”) is a resident of Florida and a
member of NAA. Id. ¶ 6, 8. Payne has cerebral palsy, which the ADA recognizes as a disability, and
must use a wheelchair. Id. ¶ 6. Millbank Hotel Partners and Millbank Partners (“Defendants”) own and
operate a Best Western Hotel (“Best Western”), located on Riva Road in Annapolis, Maryland. Id. ¶ 3.
Plaintiffs claim that the Best Western operated by Defendants violates numerous provisions of the
ADA. See id. ¶ 13. Payne stayed overnight at the Best Western on April 24, 2012. Id. ¶ 6. During her
stay, Payne alleges that she “encountered architectural barriers” that “endangered her safety.” Id. ¶ 8.
Payne identifies thirty-four alleged violations of the ADA at the Best Western. See id. ¶ 13. Plaintiffs
note, among other things, a lack of ADA compliance in the parking lot, in restrooms, and in inaccessible
services throughout the facility. See id.
On November 2, 2012, Plaintiffs submitted the subject Complaint, which seeks a declaratory
judgment that Defendants are in violation of Title III of the ADA, 42 U.S.C. § 12181, et seq. See Pls.’
Compl., ECF No. 1. Plaintiffs also seek injunctive relief requiring ADA-compliant modifications to the
Best Western. Id. On December 3, 2012, Plaintiffs submitted an amended complaint that added Millbank
Partners as a defendant. See Pls.’ Am. Compl., ECF No. 13. On December 21, 2012, Defendants filed
their Motion to Dismiss Plaintiffs’ Complaint (“Motion”). See Defs.’ Mot. to Dismiss, ECF No. 15. In
their Motion, Defendants argue that Plaintiffs have failed to state a claim, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, and lack standing under Article III of the United States Constitution.
On January 11, 2013, Plaintiffs filed a response to Defendants’ Motion. See Pls.’ Resp., ECF No. 18. On
January 28, 2013, Defendants filed a reply. See Defs.’ Reply, ECF No. 21.
In ruling on a motion to dismiss, the factual allegations in a plaintiff’s complaint must be
accepted as true, and those facts must be construed in the light most favorable to the plaintiff. Edwards v.

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Congress, finding that “physical or mental disabilities in no way diminish a person’s right to fully participate in all
aspects of society,” passed the Americans with Disabilities Act in 1990. 42 U.S.C. § 12101(a)(1). The general
purpose of the ADA is to eliminate discrimination against people with disabilities as defined by the Act. See 42
U.S.C. § 12101(b). Title III of the ADA prohibits discrimination in places of public accommodation. See 42 U.S.C.
§ 12182.

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City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). After review, this Court determines that Plaintiffs
have failed to establish standing and that their Complaint does not state a claim upon which relief can be
granted.

Therefore, Defendants’ Motion to Dismiss is GRANTED and Plaintiffs’ Complaint is

DISMISSED WITHOUT PREJUDICE.
STANDARD OF REVIEW
I.

Motion to Dismiss Pursuant to Rule 12(b)(1)
Under Rule 12(b)(1) of the Federal Rules of Civil Procedure, a court may dismiss a suit because it

lacks subject matter jurisdiction over the case. CGM, LLC v. BellSouth Telecomms., Inc., 664 F.3d 46, 52
(4th Cir. 2011). A motion to dismiss under Rule 12(b)(1) may be framed in either of two ways. First, a
defendant may assert that the facts alleged in the complaint are insufficient to determine whether the court
has subject matter jurisdiction. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). When
considering a motion made pursuant to Rule 12(b)(1) under this reason, the court must assume that the
facts alleged in the complaint are true, and the motion must be denied if the facts in the complaint justify
the invocation of the court’s subject matter jurisdiction. Id.
Alternatively, a defendant may attack the veracity of the jurisdictional allegations in the
complaint.

Id.

In this situation, the court “may go beyond the complaint, conduct evidentiary

proceedings, and resolve the disputed jurisdictional facts.” Id. at 193. When attacking a complaint for
this reason, “the presumption of truthfulness normally accorded a complaint’s allegations does not apply,
and the district court is entitled to decide disputed issues of fact with respect to subject matter
jurisdiction.” Id. at 192. When the jurisdictional allegations are inextricably intertwined with the facts
central to the merits of the claim, however, the usual presumption of truthfulness should attach to the
factual allegations of the complaint, and the court “should then afford the plaintiff the procedural
safeguards—such as discovery— that would apply were the plaintiff facing a direct attack on the merits.”
Id. at 193.

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II. Motion to Dismiss Pursuant to Rule 12(b)(6)
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain a “short
and plain statement of the claim showing that the pleader is entitled to relief.” Rule 12(b)(6) of the
Federal Rules of Civil Procedure authorizes the dismissal of a complaint if it fails to state a claim upon
which relief can be granted. “[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and
not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.”
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006).
The Supreme Court provides guidance on how to rule on such motions in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which “require that
complaints in civil actions be alleged with greater specificity than previously was required.” Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citation omitted). The Supreme Court’s decision in
Twombly articulated “[t]wo working principles” that courts must employ when ruling on Rule 12(b)(6)
motions to dismiss. Iqbal, 556 U.S. at 678. First, while a court must accept as true all the factual
allegations contained in the complaint, legal conclusions drawn from those facts are not afforded such
deference. Id. (stating that “[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice” to plead a claim).
Second, a complaint must be dismissed if it does not allege “a plausible claim for relief.” Id. at
679. Under the plausibility standard, a complaint must contain “more than labels and conclusions” or a
“formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. Although the
plausibility requirement does not impose a “probability requirement,” id. at 556, “[a] claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663; see also Robertson v. Sea
Pines Real Estate Cos., 679 F.3d 278, 291 (4th Cir. 2012) (“A complaint need not make a case against a
defendant or forecast evidence sufficient to prove an element of the claim. It need only allege facts
sufficient to state elements of the claim.” (emphasis in original) (internal quotation marks and citation

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omitted)). In short, a court must “draw on its judicial experience and common sense” to determine
whether the pleader has stated a plausible claim for relief. Iqbal, 556 U.S. at 664.
ANALYSIS
I.

Defendants’ Motion to Dismiss Pursuant to Rule 12(b)(1) for Lack of Standing
Defendants argue that Payne and NAA lack standing to seek a declaratory judgment and

injunctive relief for the alleged ADA violations. See Defs.’ Mot. to Dismiss at 8-27. Article III of the
United States Constitution limits federal courts to adjudicating only “actual cases and controversies.”
Allen v. Wright, 468 U.S. 737, 750 (1984). To establish standing before a federal court, a plaintiff must
demonstrate a “‘personal stake in the outcome’ in order to ‘assure that concrete adverseness which
sharpens the presentation of issues’ necessary for the proper resolution” of a case. City of Los Angeles v.
Lyons, 461 U.S. 95, 101 (1983) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
The doctrine of standing consists of three elements: (1) the plaintiff must have suffered an “injury
in fact,” (2) the injury must be “fairly traceable” to the defendant’s challenged conduct, and (3) it must be
likely that the plaintiff’s injury would be redressed by the requested relief. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992). When assessing standing before a federal court, “[t]he party invoking
federal jurisdiction bears the burden of establishing these elements.” Id. at 561. In this case, Plaintiffs
bear the burden of proof in demonstrating that they have standing before this Court. Id. Defendants’
contention is based on the first element of Lujan, which states that a plaintiff must suffer an “injury in
fact” in order to have standing to bring a case. 504 U.S. at 560.
Specifically, Defendants argue that Plaintiffs lack standing to seek injunctive relief, because they
fail to make a sufficient showing that Payne will suffer a future injury at the Best Western. See Defs.’
Mot. to Dismiss at 12. When seeking injunctive relief, a plaintiff must establish a “real and immediate
threat” that she will sustain some future, direct injury as a result of the conduct challenged in the
complaint. City of Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983). A court may consider a prior
injury as probative “evidence bearing on whether there is a real and immediate threat of repeated injury.”
Id. at 102 (internal quotation marks omitted); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200,
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210-11 (1995); Suhre v. Haywood Cnty., 131 F.3d 1083, 1091 (4th Cir. 1997). The complaint, however,
must satisfy two elements. First, it must describe concrete, specific plans to return to the locus of the
injury. See Lujan, 504 U.S. at 564. Second, it must indicate that the plaintiff is likely to suffer the same
type of injuries upon her return. See id. Defendants challenge Plaintiffs’ request for injunctive relief on
the grounds that Payne has not sufficiently manifested intent to revisit the Best Western. See Defs.’ Mot.
to Dismiss at 12-25. Moreover, Defendants argue that Payne has not shown that she is likely to suffer the
same injuries if she returns. See id. at 10. This Court finds that Payne has sufficiently alleged an intent to
return to the Best Western, but has not demonstrated a threat of future injury.
A. Intent to Return
Defendants claim that the facts of this case indicate that Payne is unlikely to return to the Best
Western; thus Plaintiffs have failed to show the necessity for injunctive relief. See id. at 12. Defendants
ask this Court to apply a four-factor standing analysis for ADA cases first set out in D’Lil v. Stardust
Vacation Club, No. 00-1496, 2001 WL 1825832 (E.D. Cal. Dec. 21, 2001). Under this test, a court looks
to (1) the proximity of the plaintiff’s residence to the place of the business; (2) the plaintiff’s past
patronage of the business; (3) the definitiveness of the plaintiff’s plan to return to the business; and (4) the
plaintiff’s frequency of nearby travel. Id. at *3. Defendants request that this Court use this test, because
other districts courts in the Fourth Circuit have done so. See, e.g., Nat’l Alliance for Accessibility, Inc., v.
Macy’s Retail Holdings, Inc., No. 11-877, 2012 WL 5381490 (M.D.N.C. Oct. 30, 2012); Norkunas v.
Park Rd. Shopping Ctr., 777 F. Supp. 2d 998, 1002 (W.D.N.C. 2011); Harty v. Luihn Four, Inc., 757 F.
Supp. 2d 547, 554 (E.D.N.C. 2010).
This Court declines to apply the D’Lil test. The United States Court of Appeals for the Fourth
Circuit did not endorse this test in an unpublished decision, Daniels v. Arcade, L.P., 477 F. App’x 125,
129 (4th Cir. 2012), stating that “the use of this type of analysis in some cases . . . overly and
unnecessarily complicates the issue at hand.” While the Court noted that the D’Lil test may apply to other
cases, it found that the use of this test would be inappropriate in Daniels. Id. In the present case, Payne is
a Florida resident who frequently visits Washington, D.C., and the surrounding area. See Pls.’ Compl. ¶
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7. The D’Lil four-factor test does not address instances of occasional, long-distance travel—the sort of
activity at issue in this case.

Therefore, this Court declines to adopt the D’Lil test endorsed by

Defendants.
Payne has alleged that she will return to the Best Western on April 22, 2013, as “an overnight
guest of the hotel to avail herself of the goods and services . . . at the property.” Pls.’ Am. Compl. ¶ 6.
Payne has clearly stated her intent to return, and this Court has no reason to doubt the veracity of her
claim at this stage in the proceedings. See Daniels, 477 F. App’x 125 at 129. As in Daniels, this Court
“must accept [Payne’s] allegation as true for purposes of the motion to dismiss.” Id. at 130. Therefore,
Plaintiffs have sufficiently alleged Payne’s intent to return to the locus of the injury, satisfying the first
requirement when seeking injunctive relief. See Lujan, 504 at 564.
B. Possibility of Future Harm
While Payne sufficiently shows an intent to return, she fails to demonstrate that she faces the
threat of similar injuries as those she allegedly suffered during her last visit to the Best Western. The
second element Plaintiffs must show for injunctive relief is the likelihood of suffering future harm at the
hotel. See Lujan, 504 U.S. at 564. In this case, Plaintiffs’ Complaint merely lists Payne’s observations of
potential ADA violations. See Pls.’ Am. Compl. ¶ 8. Payne fails to allege the specific facts surrounding
her encounters with noncompliant facilities that caused her injury. See id. ¶ 13. She also fails to allege a
specific future intent to use any of the allegedly noncompliant facilities.

See Nat’l Alliance for

Accessibility, Inc., v. CMG Bethesda Owner LLC, No. 12-1864, 2012 WL 6108244, at *4 (D. Md. Dec.
07, 2012). Without these facts, and armed only with boilerplate statements that certain violations of the
ADA exist, Plaintiffs fail to demonstrate more than a “mere possibility” of future harm. Id. (citing
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).
Furthermore, Payne, as she does in her other cases in this Court, uses a form template for her
Complaint. As this Court has recently pointed out, “use of a form template used in hundreds of prior
lawsuits, while not itself improper, calls into question the plausibility of her specific allegations.” Id.
Reviewing the plausibility of Plaintiffs’ complaint, this Court in CMG Bethesda observed that Payne’s
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allegations of “architectural barriers” were too broad, and that the complaint did not sufficiently describe
which violations would cause harm to Payne during her second visit to the hotel. Id. Plaintiffs’
allegations suffer from similar flaws in this case. For example, Plaintiffs allege that “some of the
restrooms do not provide the required amenities for public use” and that “the dispensers provided in the
restroom are in violation of . . . the ADAAG.” Pls.’ Am. Compl. ¶ 13. Without any factual support for
these observations, this Court can only speculate as to the type of harm Payne is likely to face upon her
return to the Best Western. Thus Plaintiffs have not established a plausible basis of future injury.
In summary, this Court finds that Plaintiffs do not have standing to pursue injunctive relief, and
dismisses their case pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for absence of
subject matter jurisdiction. First, Plaintiffs’ allegations fail to confer standing on Payne. While Payne
has demonstrated a sufficient intent to return to the locus of her alleged injuries, she has not identified the
future, imminent harm that she will personally suffer during her second visit. Consequently, NAA has
failed to demonstrate that one of its members has standing to sue. In order to establish organizational
standing, NAA must show that one of its members “would otherwise have standing to sue in their own
right.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
Because this Court finds that Payne lacks standing, and NAA has not alleged that any of its other
members has standing to bring its ADA claims against Defendants, NAA also lacks standing before this
Court.
In addition to Plaintiffs’ lack of standing to seek injunctive relief, this Court also finds that
Plaintiffs do not have standing to seek a declaratory judgment. This Court has stated that “the standing
requirements for declaratory relief and injunctive relief are essentially the same.”

Gardner v.

Montgomery Cnty. Teachers Fed. Credit Union, 864 F. Supp 2d 410, 421 (D. Md. 2012) (citation
omitted). In order to have standing to seek a declaratory judgment, Plaintiffs must allege a harm that is
“real and imminent.” Id. (citing City of Los Angeles v. Lyons, 461 U.S. 95 (1983)). As discussed above,
Plaintiffs have failed to show anything more than a mere possibility of future harm. Therefore, they have
failed to demonstrate standing for both injunctive relief and a declaratory judgment. Notwithstanding this
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case’s lack of subject matter jurisdiction, this Court will also address whether Plaintiffs have adequately
stated a claim.
II. Motion to Dismiss Pursuant to Rule 12(b)(6)
Defendants argue that Plaintiffs have failed to make specific allegations that establish a claim for
relief. See Defs.’ Mot to Dismiss at 28. Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes
the dismissal of a complaint if it does not allege “a plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In this case, the only actual harm alleged by Payne is that she “encountered architectural
barriers” that “endangered her safety.”

Pls.’ Am. Compl. ¶ 8.

Furthermore, nearly every alleged

violation observed by Payne simply states that some general area or feature of the hotel violates a specific
provision of the ADA Accessibility Guidelines, without specifying what the guidelines say or how the
Best Western does not comply with them. See id. ¶ 13. These “mere conclusory statements” couched as
factual allegations cannot serve as facts sufficiently alleging discrimination prohibited by the ADA.
Iqbal, 556 U.S. at 679. This Court has previously dismissed a similarly deficient complaint by Plaintiffs
because it lacked the necessary facts to state a claim. See Nat’l Alliance for Accessibility, Inc. v.
Annapolis Plaza, LLC, No. 12-1866, 2013 WL 245771 (D. Md. Jan. 18, 2013). As in Annapolis Plaza,
Plaintiffs have failed to state specific factual details to support their threadbare conclusions that the hotel
has violated the ADA. Therefore, Plaintiffs have failed to state a claim under the ADA and their
Complaint seeking a declaratory judgment and injunctive relief is dismissed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure.
CONCLUSION
For the reasons stated above, Defendants Millbank Hotel Partners and Millbank Partners’ Motion
to Dismiss (ECF No. 15) is GRANTED and this case is DISMISSED WITHOUT PREJUDICE.
A separate Order follows.

Dated: February 20, 2013

_________/s/________________________
Richard D. Bennett
United States District Judge
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