LaBonte et al v. Riverside Park Enterprises, Inc,

Filing 63

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER re Defendant's Motion 50 to Dismiss ISSUED: "Six Flags' motion to dismiss Dkt. No. 50 is DENIED. It is so ordered." See attached Memorandum and Order for complete details.(MPZ)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
STACEY LABONTE, KELLY VEILLEUX,
each individually, and A.V., by his parents
and next friends,

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Plaintiffs,
v.
RIVERSIDE PARK ENTERPRISES, INC.,
d/b/a SIX FLAGS NEW ENGLAND,
Defendant.

Civil No. 3:22-cv-30046-KAR

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS
(Dkt. No. 50)
ROBERTSON, U.S.M.J.
Stacey LaBonte (“LaBonte”) and Kelly Veilleux (“Veilleux”), parents of minor child
A.V., (collectively with LaBonte and Veilleux, “Plaintiffs”) have sued Riverside Park
Enterprises, Inc., d/b/a Six Flags New England (“Six Flags”) arising from the amusement park’s
alleged refusal to allow A.V. to use its water attractions while secured in a physician-prescribed
medical stroller. Plaintiffs assert five causes of action, including: violation of A.V.’s rights
under Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182 et seq.
(Count I); violation of LaBonte’s and Veilleux’s rights by association under Title III of the ADA
(Count II); violation of the Massachusetts Public Accommodations Law, Mass. Gen. Laws ch.
272, § 98 (Count III); violation of the Massachusetts Equal Rights Act, Mass. Gen. Laws ch. 93,

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§ 103(a) (Count V); and retaliation in violation of the ADA, 42 U.S.C. § 12203 (Count VI).1
Plaintiffs seek declaratory and injunctive relief on all counts, as well as compensatory damages
on Counts III, V, and VI. The court denied Six Flags’ motion to dismiss pursuant to Fed. R. Civ.
P. 12(b)(6) (Dkt. No. 27). Thereafter, the parties undertook discovery, including, on Six Flags’
part, depositions of LaBonte, Veilleux, and A.V. Based on testimony Six Flags elicited during
those depositions, Six Flags now moves to dismiss Plaintiffs’ complaint pursuant to Fed. R. Civ.
P. 12(b)(1) for lack of subject-matter jurisdiction on standing and mootness grounds (Dkt. No.
50). The parties have consented to this court’s jurisdiction (Dkt. No. 14). See 28 U.S.C. §
636(c); Fed. R. Civ. P. 73. For the following reasons, Six Flags’ Rule 12(b)(1) motion to dismiss
is DENIED.
I.

BACKGROUND
A.

Allegations in the Complaint

In the summer of 2019, LaBonte and Veilleux purchased season passes to the Six Flags
amusement park in Agawam, Massachusetts, for themselves, A.V., A.V.’s younger brother, and
Veilleux’s adult daughter. They had been assured by Six Flags’ staff that A.V., who has Spinal
Muscular Atrophy Type II (SMA2) and cannot stand, walk, or hold his torso upright unaided,
could use the aquatic attractions in the “Hurricane Harbor” area of the park while in his medical
stroller; specifically, A.V. would utilize a Convaid Cruiser, an attendant-propelled medical
stroller with a positioning belt and shoulder straps (id. at ¶¶ 1, 3, 4, 11, 12, 15, 17, 19). LaBonte
and Veilleux had provided Six Flags with medical documentation from A.V.’s primary care

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Plaintiffs also asserted a claim for violation of Article 114 of the Amendments to the
Massachusetts Constitution (Count IV), but they have agreed to dismiss it.
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physician stating that A.V. was medically able to take part in Six Flags attractions with
accommodations, including assistance from his parents (id. at ¶¶ 16-17).
On May 27, 2019, the family enjoyed a full day at Hurricane Harbor with A.V. safely
secured in his Convaid Cruiser under his parents’ control (id. at ¶¶ 21, 23). However, when the
family returned to Six Flags on June 2, 2019, they were told by a Six Flags representative that
A.V. was not allowed in any of the water attractions, including the sprinkler attraction, which
had no standing water, in his Convaid Cruiser (id. at ¶¶ 26, 29). The only options they were
given were to take A.V. out of the Convaid Cruiser and sit him on the ground or to rent an inner
tube for A.V. to sit in; both alternatives are impossible because A.V. is unable to sit upright
without support (id. at ¶ 30). LaBonte and Veilleux tried to resolve the situation with Six Flags
supervisory personnel, but they were ultimately told the following day by Six Flags’ Director of
Operations Frank Doninger that the medical stroller could not be used in the water attractions.
Doninger further told them that Six Flags had already made the decision to deactivate and refund
the family’s season passes (id. at ¶¶ 34, 36). Doninger did not provide any further explanation,
nor did he discuss any alternatives to attempt to resolve the conflict between A.V.’s need for
accommodations and Six Flags’ asserted policy (id. at ¶ 37).
B.

Deposition Testimony and Affidavits

Six Flags deposed LaBonte, Veilleux, and A.V. in the fall of 2023. Two topics Six
Flags’ counsel covered included A.V.’s ongoing use of the Convaid Cruiser and Plaintiffs’
intentions to return to Six Flags. LaBonte and A.V. both testified that A.V. had not used his
Convaid Cruiser since June 2, 2019, the day Six Flags told him he could not use it in the water
attractions, and that it was likely he had outgrown it (Dkt. No. 50-2 at 7, 10-11; Dkt. No. 50-3 at
7). LaBonte testified that she would “never go back [to Six Flags] in [her] life,” in response to a

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question about what Six Flags could do to make things right by her (Dkt. No. 50-2 at 22).
Veilleux was asked a more pointed question, that being whether he ever intended to go back to
Six Flags if the court ruled in his favor and ordered Six Flags to allow the Convaid Cruiser to be
used in the water attractions. He responded, “[t]hat would solely be on my son A.V.,” but
“[p]ersonally, no” (Dkt. No. 50-4 at 10). Finally, A.V. answered “no,” in response to being
asked if he “[w]ould … like to go back to Six Flags today,” and responded “yeah,” when asked if
he was “kind of over it” (Dkt. No. 50-3 at 8).
A.V. and his mother have submitted affidavits in response to Six Flags’ 12(b)(1) motion.
A.V. states in his affidavit that if Six Flags changes its policy to allow him to take part in the
water attractions using a mobility aid, he would like to go back and that he could get a new
manual mobility aid that would allow him to do so (Dkt. No. 55-1 at ¶¶ 11, 14). LaBonte
similarly states that if Six Flags changes its policy, she would “absolutely go back” to support
A.V. and that they could get him a new mobility aid that can be used in water. LaBonte explains
that her “responsibilities as a mother and desire for A.V. to be happy outweigh [her] personal
feelings” about Six Flags (Dkt. No. 55-2 at par. 5, 7).
II.

LEGAL STANDARD
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) is based on a “lack of subject

matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). To survive a 12(b)(1) motion to dismiss, the party
invoking federal jurisdiction bears the burden of proving its existence. Viqueira v. First Bank,
140 F.3d 12, 16 (1st Cir. 1998). Standing under Article III, which restricts the authority of
federal courts to those disputes involving “cases” or “controversies,” U.S. Const. III, § 2, may be
challenged through a Rule 12(b)(1) motion to dismiss. Van Wagner Boston, LLC v. Davey, 770
F.3d 33, 36 (1st Cir. 2014). “To ‘assure[ ] respect’ for this limitation, ‘plaintiffs must’ establish

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that they have standing to sue.’” Dantzler, Inc. v. Empresas Berrios Inventory & Operations,
Inc., 958 F.3d 38, 46 (1st Cir. 2020) (quoting Massachusetts v. U.S. Dep’t of Health & Human
Servs., 923 F.3d 209, 211 (1st Cir. 2019)). A showing of standing requires plausible allegations
of “(1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, and (3)
likely to be redressed by a favorable judicial decision.” Amrhein v. eClinical Works, LLC, 954
F.3d 328, 330 (1st Cir. 2020) (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). See also
Spokeo, 578 U.S. at 338 (“[T]he plaintiff must ‘clearly … allege facts demonstrating’ each
element [of standing]”) (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). “[C]onclusory
assertions” and “unfounded speculation” do not “supply the necessary heft” to successfully make
this showing. Hochendoner v. Genzyme Corp., 823 F.3d 724, 731 (1st Cir. 2016) (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); Blum v. Holder, 744 F.3d 790, 795 (1st Cir.),
cert. denied, 574 U.S. 991 (2014)).
When a defendant seeks dismissal at the pleading stage, the court “take[s] as true all wellpleaded facts in the plaintiffs’ complaint[ ], scrutinize[s] them in the light most hospitable to the
plaintiffs’ theory of liability, and draw[s] all reasonable inferences therefrom in the plaintiffs’
favor.” Van Wagner Boston, LLC, 770 F.3d at 36 (quoting Fothergill v. United States, 566 F.3d
248, 251 (1st Cir. 2009)). That said, the court’s jurisdictional inquiry is not confined to the
pleadings; “[w]here … those facts are illuminated, supplemented, or even contradicted by other
materials in the district court record, … [the court] may consider those other materials.” Id.
(quoting Aguilar v. U.S. ICE, 510 F.3d 1, 8 (1st Cir. 2007)). In order to reach its ultimate legal
conclusion, the court may engage in preliminary factfinding. Skwira v. United States, 344 F.3d
64, 71-72 (1st Cir. 2003). “Because at issue in a factual 12(b)(1) motion is the trial court’s
jurisdiction [-] its very power to hear the case [-] there is substantial authority that [where the

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jurisdictional challenge is based on facts that are not intertwined with the merits of the plaintiff's
claim,] the trial court is free to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.” Torres–Negron v. J & N Records, LLC, 504 F.3d 151, 162–63 (1st
Cir.2007) (first alteration in original) (quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir.1990)).
III.

DISCUSSION
Defendant’s motion to dismiss on jurisdictional grounds is based on both a lack of

standing and mootness. “Standing in the jurisdictional sense is based on the facts as they existed
at the time the complaint was filed.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 15 (1st Cir.
2004) (citing Mangual v. Rotger-Sabat, 317 F.3d 45, 58 (1st Cir. 2003)). To have standing, “a
plaintiff must demonstrate that [ ]he ‘“‘has sustained or is immediately in danger of sustaining
some direct injury’ ... [that] must be both ‘real and immediate,’ not ‘conjectural’ or
‘hypothetical.’”’” Id. (second and third alterations in original) (quoting City of Los Angeles v.
Lyons, 461 U.S. 95, 102 (1983)). “An inquiry into standing must be based on the facts as they
existed when the action was commenced.” Roe v. Healey, 78 F.4th 11, 20 (1st Cir. 2023)
(quoting Ramírez v. Sánchez Ramos, 438 F.3d 92, 97 (1st Cir. 2006)). “[P]ast harm does not
confer standing to seek forward-looking declaratory or injunctive relief unless there is ongoing
injury or a sufficient threat that the injury will recur.” Id. at 21 (citing Efreom v. McKee, 46
F.4th 9, 21-22 (1st Cir. 2022); Lyons, 461 U.S. at 111).
In addition to meeting the standing requirement, the plaintiff “must maintain a personal
interest in the outcome throughout the litigation or the controversy becomes moot and
unjusticiable despite the court’s retention of subject matter jurisdiction.” Steir, 383 F.3d at 15
(citing Matos v. Clinton Sch. Dist., 367 F.3d 68, 71 (1st Cir. 2004)). In other words, “‘[t]he

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requisite personal interest that must exist at the commencement of the litigation (standing) must
continue throughout the litigation (mootness).’” Becker v. Fed. Election Comm’n, 230 F.3d 381,
387 n.3 (1st Cir. 2000) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000)). “The burden of establishing mootness rests squarely on the party
raising it, and ‘[t]he burden is a heavy one.’” Mangual, 317 F.3d at 60 (quoting United States v.
W.T. Grant Co., 345 U.S. 629, 633 (1953)). To establish mootness, “[i]t must be ‘absolutely
clear that the allegedly wrongful behavior could not reasonably be expected to recur.’” Id.
(quoting United States v. Concentrated Phosphate Export, Ass’n, 393 U.S. 199, 203 (1968)).
Here, Defendant argues that Plaintiffs lacked standing to bring their forward-looking
claims when they commenced this litigation in April 2022, because A.V. had not used his
Convaid Cruiser for nearly three years by that point, nor could he have at the time because he
had outgrown it. Defendant additionally argues that Plaintiffs’ claims are moot because, based
on their deposition testimony, they never intend to return to Six Flags, and, thus, there is no
possibility that they will again face the alleged unlawful discrimination. The court addresses
each argument in turn.
A. Standing
Defendant’s leading argument is that Plaintiffs “obviously” cannot establish standing
because their “entire case is built around a central premise: that A.V. should be allowed the use
of his Convaid Cruiser in an aquatic attraction at Six Flags,” but that by the time they filed the
lawsuit, A.V. had not used the Convaid Cruiser for nearly three years and had outgrown it (Dkt.
No. 51 at 13). The record does not support or compel Defendant’s limited view of Plaintiffs’

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case. Plaintiffs have adequately alleged standing to pursue A.V.’s direct and LaBonte’s and
Veilleux’s associational discrimination claims.
“In the context of Title III of the ADA, 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) (quoting
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st Cir.2003)). “‘[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. (quoting Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133, 1138
(9th Cir. 2002)). The Supreme Court has instructed courts to take a broad view of standing in
cases brought under the ADA, “where … private enforcement suits ‘are the primary method of
obtaining compliance with the Act.’” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039-40 (9th Cir.
2008) (quoting Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
Plaintiffs allege that Six Flags failed to make a reasonable modification to its policies,
practices, and procedures in June of 2019 to allow A.V. to safely take part in any of the water
attractions in its Agawam amusement park when it refused to allow him to use a medical stroller
or to offer any alternative means of accommodating his access (Dkt. No. 1 at 13). While A.V.
was using a Convaid Cruiser at the time, there is no indication in the complaint that Six Flags’
refusal to allow A.V. to use a medical stroller was because it was a Convaid Cruiser or that Six
Flags would allow A.V. to use any other type of medical stroller or mobility device or aid in its
aquatic attractions. Deposition testimony from Six Flags’ employees suggests the opposite. Six
Flags’ Operations Manager testified that Six Flags does not allow any wheelchairs, strollers, or

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equipment of any kind in its water attractions (Dkt. 55-3 at 7). Six Flags’ Director of Operations
further testified that Defendant’s Safety & Accessibility Guide, on which it relied to disallow
A.V.’s use of his Convaid Cruiser, was amended following the June 2, 2019, incident with
Plaintiffs to state that the water attractions require “[g]uests [to] transfer from their
wheelchair/ECV;” he explained that this had always been Six Flags’ policy, but that the change
was made to the written policy to make sure it was “spelled out” for guests (Dkt. 55-4 at 4-5).
Thus, the use of the Convaid Cruiser per se is not central to Plaintiff’s discrimination claim any
more than the use of a particular model of wheelchair would be crucial to a discriminatory access
claim premised on a failure to provide a wheelchair ramp. Plaintiffs allege not just that Six Flags
refused to allow A.V. to use his Convaid Cruiser, the particular model of mobility aid he was
utilizing at the time, in its water attractions, but also that Six Flags refused to allow him to use
any medical stroller and, further, refused to offer any other reasonable accommodation. Thus,
Plaintiffs are threatened with the same harm in the future based on Six Flags’ alleged
discriminatory policy and practice notwithstanding the fact that A.V. can no longer use the
Convaid Cruiser he used in 2019.
Six Flags indirectly acknowledges that Plaintiffs’ case is not specific to the Convaid
Cruiser in its reply brief. Responding to Plaintiffs’ argument that Six Flags is premising A.V.’s
loss of standing on the changes to his body and his needs between the ages of 11 and 16 (which it
denies), Six Flags states that it would not have challenged Plaintiffs’ standing if they had
acquired an updated medical stroller for A.V. to use after he outgrew the Convaid Cruiser (Dkt.
No. 58 at 4-5). Six Flags’ reasoning appears to be that if Plaintiffs owned an updated medical
stroller that was – unlike A.V.’s motorized wheelchair – able to get wet, Plaintiffs might be able
to establish that they are sufficiently likely to be subjected to Six Flags alleged discriminatory

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policy of not allowing manual mobility devices in its water attractions. However, the argument
continues, given that A.V. does not own such a device, it is too speculative for standing purposes
to suggest that A.V. might be subjected to Six Flags’ discriminatory policy if he obtains one in
the future. The court disagrees. “The enforcement provision of Title III states that ‘[n]othing in
this section shall require a person with a disability to engage in a futile gesture if such person has
actual notice that a person or organization covered by [Title III] does not intend to comply with
its provisions.’” Disabled Americans for Equal Access, Inc., 405 F.3d at 65 n.7 (quoting 42
U.S.C. § 12188(a)(1)). “Section 12188(a)(1) thus ‘negates any requirement that a disabled
person engage in a futile gesture to establish the existence of a discriminatory policy or practice’
for purposes of bringing suit under Title III.” Id. (quoting Dudley, 333 F.3d at 306). Plaintiffs
have not alleged, and there is no evidence before the court, to suggest that A.V. would have any
use for a manual mobility aid that can get wet for any reason other than to participate in Six
Flags’ water attractions. Indeed, the evidence before the court suggests otherwise, insofar as
A.V. did not use the Convaid Cruiser at any time after the June 2019 incident at Six Flags.
Plaintiffs were not required to engage in the futile gesture of purchasing a probably expensive
manual mobility aid that A.V. had no other use for and that Six Flags had no intention of
allowing him to use in its water attractions to establish standing. So much of Defendants’
motion to dismiss as is based on Plaintiffs’ claimed lack of standing is denied.
B. Mootness
To support dismissal on mootness grounds, Six Flags relies primarily on the Steir
decision, in which the First Circuit affirmed the dismissal of the plaintiff’s ADA claims arising
from the Girl Scouts’ alleged discrimination against her on the basis of her disability for want of
standing where the record was “devoid of any evidence suggesting that [the minor plaintiff]

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plans to return to the Girl Scouts.” Id., 383 F.3d at 15. Thus, the minor plaintiff faced “no threat
of future harm or discrimination from the defendants and therefore lack[ed] standing to obtain
injunctive relief.” Id. While Steir is instructive on the issue of mootness, it is readily
distinguishable and does not support dismissal, at least at this time.
In a footnote to the Steir decision, the First Circuit indicated that the only record evidence
suggesting that the minor plaintiff might be interested in resuming her scouting career was in an
affidavit submitted after the district court had signaled how it would rule on the standing
issue. The court explained that “[w]hatever the import of the affidavit, it was submitted seven
days after the deadline set by the district court for submissions on its proposed ruling on the
standing issue – too late to be considered by the district court or this court on appeal.” Id. at 16
n.12. Similar to Steir, A.V. and his mother have submitted affidavits in response to Six Flags
raising the mootness issue. Unlike Steir, however, they did so in a timely fashion and the
affidavits can be considered. A.V. states in his affidavit that if Six Flags changes its policy to
allow him to take part in its water attractions using a mobility aid, he would like to go back, and
he could get a new manual mobility aid to use there (Dkt. No. 55-1 at ¶¶ 11, 14). LaBonte
similarly states that if Six Flags changes its policy, she would “absolutely go back” to support
A.V. and that they could get him a new mobility aid; her “responsibilities as a mother and desire
for A.V. to be happy outweigh [her] personal feelings” (Dkt. No. 55-2 at ¶¶ 5, 7).2
Six Flags nevertheless asks this court not to consider the affidavits because they
contradict earlier sworn deposition testimony. While the question is somewhat close, the court is

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The other case on which Defendants rely, G. v. The Fay School (By and Through its Bd. of Trs.,
No. 15-CV-40116-TSH, 2018 WL 11190703 (D. Mass. June 8, 2018), is similarly
distinguishable where the minor plaintiff was not in a position to re-enroll in the defendant ninthgrade school because he had completed the ninth grade. Id. at *1.
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not persuaded. A.V.’s testimony and affidavit easily can be read as not contradictory. A.V.’s
statement agreeing that he was “over it” is so vague as to be meaningless from an evidentiary
standpoint, and A.V.’s testimony that he would not want to go back to Six Flags at the time of
his deposition can be understood as indicating that he did not want to go back to Six Flags
without a policy change that would enable him to use the water park facilities. It is not too
speculative to posit that A.V. might change his mind if Six Flags’ policy changed, allowing him
to engage in an activity that his family enjoyed when his opportunities for such activities are
limited by his disabilities. Moreover, it was not A.V.’s responsibility to clarify at his deposition
that he meant only that he did not want to go back to Six Flags if the policy remained the same,
but that if the policy changed, he would be interested in returning. That responsibility lay with
Six Flags’ lawyer, not the minor witness. Nor were A.V.’s lawyers under a duty to ask a followup question that Six Flags’ lawyer did not ask. In sum, it is not “absolutely clear” that A.V.
would never go back to Six Flags and thus never face a repeat of alleged discriminatory
behavior, as would be necessary to establish that his claims are moot. Mangual, 317 F.3d at 60.
Veilleux, for his part, testified that he would be guided by A.V. Thus, if A.V. might go back, so,
too, might Veilleux. This leaves only A.V.’s mother. Her testimony is more difficult to
reconcile because she testified apparently without equivocation that she would never go back to
Six Flags. However, while the analysis is close, her affidavit is sufficient to prevent Six Flags
from demonstrating with absolute clarity that she would never go back to the amusement park
with A.V. under any circumstances. Six Flags’ counsel did not follow up and ask her if she
would go back to Six Flags if the policy changed or if A.V. wanted to go back. As a result,
while her deposition testimony is in some tension with her affidavit, it is not directly
contradictory. Nor did she have a burden to answer questions that were not put to her. Finally,

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the court finds it credible that A.V.’s mother would put her own feelings aside to support her
disabled minor child’s wish to do something with other family members that he found fun and is
physically able to do with available accommodations. Thus, Defendants have not met the
“heavy” burden of showing that Plaintiffs’ claims are moot. Id.
IV.

CONCLUSION
For the above-stated reasons, Six Flags’ motion to dismiss (Dkt. No. 50) is DENIED.
It is so ordered.

Dated: January 7, 2025

/s/ Katherine A. Robertson_____
KATHERINE A. ROBERTSON
United States Magistrate Judge

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