Marradi v. K&W Realty Investment LLC

Filing 11

District Judge Leo T. Sorokin: ORDER entered For the foregoing reasons, 7 Defendant's Motion to Dismiss is DENIED. TheClerk shall schedule a Rule 16 Conference with the parties. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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Raoul Marradi,
)
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Plaintiff,
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)
v.
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Civil Action No. 16-10038-LTS
)
K&W Realty Investment LLC,
)
)
Defendant.
)
)

ORDER ON MOTION TO DISMISS (DOC. 7)
September 15, 2016
SOROKIN, J.
For the reasons that follow, Defendant K&W Realty Investment LLC’s Motion to
Dismiss Plaintiff Raoul Marradi’s Complaint is DENIED.

I.

BACKGROUND
On January 11, 2016, Plaintiff filed a Complaint against Defendant. Doc. 1. Plaintiff,

who is disabled and refers to himself as a “tester,” claims that Defendant has discriminated
against him by owning property that is inaccessible to him, in violation of Title III of the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. 1 Doc. 1. Plaintiff seeks
injunctive relief. Id. at 1. Defendant’s property is located at 684 Washington Street (“the

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Title III “authorizes the award of injunctive relief to any person who is being subjected to discrimination on the
basis of disability.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 11 n.1 (1st Cir. 2004) (citation and internal
quotation marks omitted).

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Premises”), and presently houses a business called My Thai Vegan Café/Bubble Tea Bistro (“My
Thai Café”). Id. at 2-3.
On March 22, 2016, Defendant filed a Motion to Dismiss. Doc. 7. Defendant argues the
Complaint should be dismissed for three reasons: (1) Plaintiff lacks standing to sue; (2) the
Complaint fails to state a claim; and (3) Plaintiff has failed to name My Thai Café, an
“indispensable party,” as a defendant. Doc. 8.
On March 30, 2016, Plaintiff filed a Response to the Motion to Dismiss. Doc. 9. On July
27, 2016, Plaintiff also filed a Notice of Supplemental Authorities, alerting the Court that another
Judge in this District had recently denied Defendant’s motion to dismiss a different case of
Plaintiff’s, alleging ADA violations at 682 Washington Street. Doc. 10 (discussing Marradi v.
K&W Realty Inv. LLC, __ F.3d __, 2016 WL 3976580 (D. Mass. July 22, 2016) (Gorton, J.)).

II.

DISCUSSION
A.

Motion to Dismiss for Lack of Standing

Defendant argues that Plaintiff lacks standing to sue. Doc. 8 at 4. To invoke federal
jurisdiction, a plaintiff bears the “burden of establishing standing,” by showing “(1) an injury-infact; (2) causation; and (3) redressability.” Steir, 383 F.3d at 15 (citations omitted). Recently,
the First Circuit held that the same pleading standard necessary to state a claim to relief,
following the Supreme Court’s ruling in Ashcroft v. Iqbal, 556 U.S. 662 (2009), is also required
to establish standing. Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016).
Consequently, just as a complaint must, after Iqbal, contain “sufficient factual matter, accepted
as true, to state a claim to relief that is plausible on its face,” 556 U.S. at 678, it must contain
“sufficient factual matter to plausibly demonstrate . . . standing to bring the action.”

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Hochendoner, 823 F.3d at 731. “Neither conclusory assertions nor unfounded speculation can
supply the necessary heft.” Id. (citations omitted).
More specifically, to establish standing in a Title III case, “a plaintiff generally must
show a real and immediate threat that a particular (illegal) barrier will cause future harm.”
Disabled Americans for Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 64 (1st Cir.
2005) (citation and internal quotation marks omitted). A “disabled individual who is currently
deterred from patronizing a public accommodation due to a defendant’s failure to comply with
the ADA and who is threatened with harm in the future because of existing or imminently
threatened noncompliance with the ADA suffers actual or imminent harm sufficient to confer
standing.” Id. (citation and internal quotation marks omitted). A person with a disability need
not “engage in a futile gesture if such person has actual notice that [an entity] covered by [Title
III] does not intend to comply with its provisions.” Id. at 65 n.7 (citation and internal quotation
marks omitted).
According to the Complaint, Plaintiff visited the Premises “for personal reasons[] and
also as a ‘tester,’” and encountered “illegal barriers to access[ing]” the Premises. Doc. 1 at 2.
Plaintiff states he “intends to visit the [Premises] again in the near future in order to utilize all of
the goods” and services offered there, but that he “will be unable to do so” due to the barriers.
Id. at 4-5. Defendant argues that these pleadings are insufficient, and Plaintiff has not
“demonstrate[d] a real intent to return” to the Premises. Doc. 8 at 8. More specifically,
Defendant argues that Plaintiff’s allegations of intent to return are “generalized and formulaic,”
and are undermined by Plaintiff’s status as a “tester” as well as by the fact that “Plaintiff has
filed eighteen (18) substantially identical ADA Complaints in the past year.” 2 Id. at 6, 8. If

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Per Defendant’s request, the Court takes judicial notice that Plaintiff has filed multiple other ADA cases, as that
fact is not disputed by Plaintiff and is “‘capable of accurate and ready determination by resort to sources whose

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Defendant is correct that Plaintiff has not demonstrated an actual intent to return to the Premises,
then Plaintiff has not shown “a real and immediate threat that” Defendant’s non-compliance with
the ADA “will cause future harm” to him, and thus has not shown standing to sue under Title III.
Disabled Americans, 405 F.3d at 64.
The Court finds Plaintiff has sufficiently pleaded that he intends to return to the Premises
and, thus, that he has standing. In deciding the instant Motion, the Court must accept the
Complaint’s “factual allegations as true and draw all reasonable inferences from those facts in
favor of” Plaintiff. Saldivar v. Racine, 818 F.3d 14, 16 (1st Cir. 2016) (citation omitted). In
Disabled Americans, the First Circuit found allegations by an ADA plaintiff that were nearly
identical to the allegations in this case sufficient to show an intent to return to the defendant’s
place of business. Compare 405 F.3d at 64-65 (finding sufficient plaintiff’s statement that he
“intends to return to the [cruise company] Defendant’s place of public accommodation and
cruise vessel to avail himself of the goods and services offered therein”) with Doc. 1 at 4-5
(stating that Plaintiff “intends to visit the [Premises] again in the near future in order to utilize all
of the goods” and services offered there, but that he “will be unable to do so” due to access
barriers). Thus, under Disabled Americans, the pleadings in the instant Complaint are sufficient
to confer standing. 3

accuracy cannot reasonably be questioned,’” in this instance the Court’s own ECF system. Invest Almaz v. TempleInland Forest Products Corp., 243 F.3d 57, 69 (1st Cir. 2001) (quoting Fed. R. Evid. 201(b)).
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The Court notes that Disabled Americans was decided in 2005, before the Supreme Court, in Iqbal, heightened the
pleading standard to state a claim to relief, and before the First Circuit, in Hochendoner, held that Iqbal’s heightened
pleading standard applies to claims of standing. It is possible that, post-Hochendoner, the First Circuit would
require more details than it required in Disabled Americans to establish a plaintiff’s intent to return to a defendant’s
public accommodation. However, at least in this instance, the Court does not find additional details are necessary to
find it plausible that Plaintiff intends to visit Defendant’s property again, given Plaintiff’s status as a “tester” and his
professed desire, which the Court must accept as true, to return to the business at Defendant’s property to avail
himself of its goods and services. Doc. 1 at 2-5; see also infra (addressing Defendant’s counterarguments).

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Defendant suggests that Plaintiff should have to specify when in the “near future” he
intends to visit the Premises again. Doc. 8 at 6. Defendant notes, according to the Supreme
Court, a plaintiff’s mere profession of an intent to return “some day” to a place that will
allegedly be damaged, without “any specification of when the some day will be,” does not
“support a finding of the ‘actual or imminent’ injury” necessary to confer standing under the
Constitution. Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 565 (1992) (internal
quotation marks omitted)). However, the Supreme Court has distinguished that statement in
Lujan, finding that a “conditional statement[]” that a plaintiff “would visit a place but for
ongoing violations . . . cannot be equated with the speculative ‘some day’ intentions that were
insufficient” to show standing in Lujan. Scherr v. Marriott Intern., Inc., 703 F.3d 1069, 1074
(7th Cir. 2013) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167,
184 (2000)) (emphases added; internal quotation marks omitted). Here, Plaintiff effectively
offers such a conditional statement: he would visit the Premises but for ongoing ADA violations
that bar him from access. Thus, Plaintiff’s failure to specify the date he intends to return to the
Premises is not fatal to standing. Indeed, specifying the date would constitute a “futile gesture,”
which Plaintiff need not “engage in,” if Plaintiff has no reason to think that the allegedly illegal
barriers to access will be removed by then. Disabled Americans, 405 F.3d at 65 n.7.
The Court also rejects Defendant’s argument that Plaintiff’s status as a tester and his
other recent ADA lawsuits militate against a finding that he intends to return to the Premises. As
Judge Gorton recently stated, “[a] plaintiff’s self-identified status as a ‘tester’ may even make
him more likely to return to a place of public accommodation, if only to ensure compliance with
the ADA.” Marradi, 2016 WL 3976580, at *4 (citing Norkunas v. HPT Cambridge, LLC, 969 F.
Supp. 2d 184, 193 (D. Mass. 2013) (Young, J.)). In addition, Plaintiff has recently filed about 18

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ADA complaints, which is not “such an unreasonably large number of lawsuits that it is
implausible that he intends in the future to return to the establishment at issue in this case.” Id.
In the alternative, even assuming Plaintiff’s status as a “tester” undermines the allegation that he
intends to return to the Premises, Plaintiff asserts that he visited the Premises “for personal
reasons” as well, and that he intends to visit again. Doc. 1 at 2. Those assertions, which the
Court must accept as true, are sufficient to show Plaintiff intends to return to the Premises and,
thus, has standing to sue.

B.

Motion to Dismiss for Failure to State a Claim

Defendant argues that Plaintiff has failed to state a claim to relief under Title III of the
ADA. Doc. 8 at 8. To survive a motion to dismiss, a complaint “must provide fair notice to the
defendants” and “contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Bruns v. Mayhew, 750 F.3d 61, 71 (1st Cir. 2014) (citation and internal
quotation marks omitted); Iqbal, 556 U.S. at 678 (citation and internal quotation marks omitted).
“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (citation
omitted); see also id. at 679 (noting that a complaint must “permit the court to infer more than
the mere possibility of misconduct”) (citation omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citation
omitted). “Although for purposes of a motion to dismiss [a court] must take all of the factual
allegations as true, [it is] not bound to accept as true a legal conclusion couched as a factual
allegation.” Id. (citation and internal quotation marks omitted). A plaintiff “armed with nothing
more than conclusions” may “not unlock the doors of discovery.” Id. at 678-79. “Determining

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whether a complaint states a plausible claim for relief will . . . be a context-specific task that
requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679
(citation omitted).
The elements of a claim under Title III are: (1) the plaintiff is disabled within the
meaning of the ADA; (2) the defendant owns, leases, or operates a place of public
accommodation; and (3) the defendant discriminated against the plaintiff within the meaning of
the ADA. Marradi, 2016 WL 3976580, at *4-5. The third element requires showing that the
removal of any allegedly illegal barriers on Defendant’s property is “readily achievable,” i.e., is
“easily accomplishable and able to be carried out without much difficulty or expense.” Id. at *5
(citations and internal quotation marks omitted).
The Complaint alleges that there are at least 16 illegal barriers to access on Defendant’s
property and states, without any supporting factual allegations, that their removal is “readily
achievable and can be accomplished and carried out without much difficulty or expense.” Doc. 1
at 5-6. Defendant argues that Plaintiff has insufficiently alleged that the removal of barriers on
Defendant’s property is readily achievable – i.e., is easily accomplishable and able to be carried
out without much difficulty or expense – and, thus, that Defendant has discriminated against
Plaintiff. Doc. 8 at 10-11.
Courts have disagreed about the amount of detail that should be required in an ADA
complaint with respect to whether the removal of allegedly illegal barriers on a defendant’s
property is readily achievable. Compare Hoewischer v. Park Shopping, Ltd., 2011 WL 4837259,
at *4 (M.D. Fla. 2011) (holding that, under Iqbal, “[m]ere recitation of the statutory definition of
‘readily achievable’ is not sufficient to plead that the removal of the challenged barriers is, in
fact, ‘readily achievable’”), with Lugo v. 141 NW 20th Street Holdings, LLC, 878 F. Supp. 2d

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1291, 1294-95 & n.4 (S.D. Fla. 2012) (“choos[ing] not to follow Hoewischer,” because a
plaintiff “could not have pre-suit data of the cost of renovating” property or of “Defendant’s
financial means to renovate”). This Court has held sufficient complaints which claim, without
supporting factual allegations, that removal of an allegedly illegal barrier is “readily achievable,”
so long as that claim “is at least plausible” given “the nature of” the alleged barrier. Marradi,
2016 WL 3976580, at *5; Melo v. S. Broadway Law Realty Trust, 2016 WL 393258, at *2 (D.
Mass. 2016) (Saylor, J.). Thus, in Marradi, Judge Gorton found a claim of ready achievability
was plausible, even without supporting factual allegations, “[g]iven the nature of the alleged
ADA violations, which range from an inaccessibly steep ramp to improper signage.” 2016 WL
3976580, at *5. Similarly, in Melo, Judge Saylor found a bare claim of ready achievability was
plausible “[g]iven the nature of the violations alleged,” which included lack of signage for and
“faded paint” demarcating accessible parking spaces. 2016 WL 393258, at *2 & n.1.
In this case, unlike in Marradi and Melo, the Court is not able to conclude, without
supporting factual allegations, that it is “at least plausible” that removal of all 16 alleged barriers
on Defendant’s property is readily achievable, i.e., is easily accomplishable without much
difficulty or expense. For one thing, certain violations Plaintiff alleges are far larger than the
violations discussed in Marradi and Melo. For example, Plaintiff alleges Defendant’s property
violates the ADA because, among other things, there “is no elevator” and the “restrooms lack
accessible clear floor space, maneuvering clearance and turning space.” Doc. 1 at 5. The Court,
“draw[ing] on its . . . common sense,” Iqbal, 556 U.S. at 679, finds that installing an elevator and
renovating a bathroom to create more space seem far less readily achievable than remedying
insufficient signage, faded paint, or an overly steep ramp. 4 The Court requires more than the

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The Court presumes the lack of accessible space in the bathroom is because the bathroom is too small or because
fixtures are in the way, not because a poorly placed trashcan or some other easily fixable problem.

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Complaint’s threadbare recital of the definition of ready achievability before it can conclude that
it is actually plausible that such an installation or renovation is readily achievable.
In addition, certain violations that Plaintiff alleges are so vague that the Court does not
know what the remedy might be, and thus cannot evaluate, without some supporting factual
allegations, whether it is plausible that the remedies are readily achievable. The violations
discussed in Marradi and Melo were easy to understand – paint was faded, a ramp was too steep,
signage was either wrong or non-existent – such that the defendants had fair notice of what the
violations were and the Court was able to decide whether it was plausible that remedying the
violations was readily achievable. Here, by contrast, Plaintiff vaguely alleges that: there “is not
an accessible route throughout the site and facility”; “[a]t least 5% of the tables (dining/work
surfaces) are not compliant”; there “are not accessible stairs”; there “are doors that are
inaccessible”; the “front counter is inaccessible”; and the “water closets are inaccessible.” Doc.
1 at 5-6. Plaintiff neglects to state how these aspects of the restaurant are noncompliant or
inaccessible. Without at least some explanation, the Court is “not bound to accept as true” such
“legal conclusion[s] couched as . . . factual allegation[s].” Iqbal, 556 U.S. at 678.
Nevertheless, the Complaint does allege some specific ADA violations whose remedy is
plausibly readily achievable. These violations include: the steps “do not have accessible
handrails”; the restroom doors have insufficient “maneuvering clearances”; the “water closets are
not located at the appropriate height”; there “are no grab bars at the water closet”; there is a
“cabinet beneath the lavatory blocking the knee clearance” 5; and the “dispensers in the restroom
are [out] of reach.” Doc. 1 at 5-6. Thus, on the basis of these violations alone, Plaintiff has
stated a claim to relief under Title III.

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The Court assumes, but is not certain, that Plaintiff is referring to a cabinet in, not beneath, the lavatory.

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C.

Motion to Dismiss for Failure to Join an Indispensable Party

Defendant argues that this action must be dismissed because Plaintiff has not named My
Thai Café, the current tenant of the Premises, as a defendant. Doc. 8 at 11. Defendant states that
Plaintiff demands modifications “to tenant property out of control of the landlord K&W,” thus
requiring Plaintiff to name My Thai Café. Id. at 12.
Defendant is effectively arguing that it is not liable under the ADA because it has leased
and does not presently operate the Premises. However, under the plain text of Title III,
Defendant is liable for any ADA violations on the Premises because it “owns” and is “leas[ing]”
them. 42 U.S.C. § 12182(a). The Ninth Circuit, which is the only federal court of appeals to
discuss this issue in depth, has noted that the legislative history behind section 12182(a)
“confirms that a landlord has an independent obligation to comply with the ADA that may not be
eliminated by contract” with a tenant. Botosan v. Paul McNally Realty, 216 F.3d 827, 833 (9th
Cir. 2000) (citations omitted). Indeed, regulations promulgated by the Department of Justice
state that although a landlord may allocate to a tenant the responsibility to comply with the ADA,
such allocation “is effective only ‘[a]s between the parties’” and has “no effect on the rights of
third parties,” such as Plaintiff. Id. (quoting 28 C.F.R. § 36.201(b)). Accordingly, Plaintiff is
entitled to sue Defendant under Title III and need not name My Thai Café as a defendant as well.

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III.

CONCLUSION
For the foregoing reasons, Defendant’s Motion to Dismiss (Doc. 7) is DENIED. The

Clerk shall schedule a Rule 16 Conference with the parties.

SO ORDERED.
/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

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