Wong v. Muddy Pig, Inc. et al
Filing
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ORDER denying 14 Motion to Dismiss. (Written Opinion). Signed by Judge Richard H. Kyle on 01/16/15. (KLL)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Eric Wong,
Plaintiff,
Civ. No. 14-3334 (RHK/TNL)
MEMORANDUM OPINION
AND ORDER
v.
Muddy Pig, Inc., and St. Paul
Development Corporation,
Defendants.
Paul R. Hansmeier, Class Justice PLLC, Minneapolis, Minnesota, for Plaintiff.
James M. Njus, Stephen M. Harris, Thomas E. Meyer, Meyer & Njus, P.A., Minneapolis,
Minnesota, for Defendant St. Paul Development Corporation.
INTRODUCTION
Plaintiff Eric Wong suffers from Ehlers-Danlos Syndrome, a condition affecting
his joints and musculoskeletal system; he cannot stand or walk for significant periods of
time and uses a wheelchair for mobility. In this action, he alleges Defendant Muddy Pig,
Inc. (“Muddy Pig”), a pub located in St. Paul, Minnesota, and Defendant St. Paul
Development Corporation (“SPDC”), the corporation owning the building in which
Muddy Pig is located, have violated the Americans with Disabilities Act (“ADA”) and
the Minnesota Human Rights Act (“MHRA”) by failing to remove architectural barriers
in Muddy Pig’s entryway. Presently before the Court is SPDC’s Motion to Dismiss
(Doc. No. 14). For the reasons that follow, the Motion will be denied.
BACKGROUND
In June 2014, Wong attempted to enter Muddy Pig but was unable to do so due to
a six-inch step at the entrance. (Compl. ¶ 12.) Muddy Pig lacks an alternative entrance,
such as a ramp, that would have allowed him to enter using his wheelchair. (Id. ¶ 13.) It
is unclear from the Complaint whether Wong immediately notified Muddy Pig of his
difficulty entering the building, but he alleges the pub has “been on notice of the fact that
[it] contain[s] accessibility barriers since at least June 9, 2014.” (Id. ¶ 39.) The pub is
approximately 8.5 miles from Wong’s home and he intends to visit again in the future,
“both to ascertain whether [it] remains in violation of the ADA and/or MHRA, and to
attempt to patronize the restaurant on a full, equal, and independent basis.” (Id. ¶¶ 11,
33.) The six-inch step and lack of a ramp, however, prevent him from doing so.
Wong commenced this action in September 2014, seeking injunctive relief and
damages for violation of the “public accommodation” provisions of the ADA and the
MHRA. SPDC now moves to dismiss under Federal Rules of Civil Procedure 12(b)(1)
and 12(b)(6), arguing (respectively) that Wong (1) lacks standing and (2) has failed to
state a claim upon which relief may be granted. The Motion has been fully briefed, the
Court heard oral argument on December 3, 2014, and the Motion is ripe for disposition.
ANALYSIS
The ADA and MHRA each prohibit discrimination “on the basis of disability in
the full and equal enjoyment of . . . any place of public accommodation.” 42 U.S.C.
§ 12182(a); accord Minn. Stat. § 363A.11, subd. 1(a)(2) (“It is an unfair discriminatory
practice . . . for a place of public accommodation not to make reasonable accommodation
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to the known physical, sensory, or mental disability of a disabled person.”). The parties
agree that claims under the two statutes are analyzed in the same fashion, see also, e.g.,
McAdams v. United Parcel Serv., Inc., 30 F.3d 1027, 1029 n.3 (8th Cir. 1994), and that
Muddy Pig is a place of “public accommodation,” see 42 U.S.C. § 12181(7)(B)
(including “a restaurant, bar, or other establishment serving food or drink” within the
definition); Minn. Stat. 363A.03, subd. 34 (“‘Place of public accommodation’ means a
business, accommodation, refreshment, entertainment, recreation, or transportation
facility of any kind, whether licensed or not, whose goods, services, facilities, privileges,
advantages or accommodations are extended, offered, sold, or otherwise made available
to the public.”). Nevertheless, SPDC challenges whether Wong has standing to allege
claims for violating these statutes and, even if he does, whether he has adequately
pleaded such claims. The Court addresses these contentions in turn below.
I.
Standing (Rule 12(b)(1))
A standing challenge under Federal Rule of Civil Procedure 12(b)(1) implicates
the Court’s subject-matter jurisdiction and, accordingly, must be addressed before
reaching the merits. E.g., Turkish Coalition of Am., Inc. v. Bruininks, 678 F.3d 617, 621
(8th Cir. 2012) (“[S]tanding is a jurisdictional prerequisite that must be resolved before
reaching the merits of a suit.”) (internal quotation marks and citation omitted). Two
types of standing challenges exist: a facial attack, which (as the name suggests)
challenges the plaintiff’s standing allegations on their face, and a factual attack, which
looks behind the allegations to the underlying facts. See, e.g., Stalley v. Catholic Health
Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007); Osborn v. United States, 918 F.2d 724,
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729 n.6 (8th Cir. 1990). On a facial challenge the Court determines only whether the
plaintiff has plausibly alleged facts suggesting standing exists, mirroring the standard
under Federal Rule of Civil Procedure 12(b)(6), Stalley, 509 F.3d at 521, while on a
factual challenge the Court may consider matters beyond the pleadings and resolve facts
to determine standing, Osborn, 918 F.2d at 729 n.6.
Here, SPDC mounts a facial challenge, 1 arguing Plaintiff has failed to adequately
allege injury-in-fact because he “fails to allege anything more than a vague intent to
return to [Muddy Pig] someday.” (Def. Mem. at 10 (internal quotation marks omitted).)
But the Court recently considered and rejected a strikingly similar argument in another
ADA case, Sawczyn v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108 (D. Minn.
2014) (Kyle, J.). There, the blind plaintiff alleged the defendant’s ATM machine
violated the ADA because it lacked Braille lettering, and the defendant challenged the
plaintiff’s standing to sue based on his unspecific allegation that he had used the machine
in the past and would do so in the future. Id. at 1111-13. The Court rejected this
argument and concluded the plaintiff enjoyed standing for reasons equally applicable
here. Those reasons need not be repeated; for all the reasons articulated in Sawczyn, the
Court concludes Wong has demonstrated facial standing to sue. See id. (noting matters
such as proximity to location, definiteness of plans to return, past patronage, and similar
factors impact the standing analysis).
1
SPDC also invites the Court to undertake a factual analysis, but the Court declines to do so at
this early juncture, as no discovery has taken place. SPDC may explore the basis for standing
during discovery and mount a factual challenge at a later stage of the proceedings. See Sawczyn
v. BMO Harris Bank Nat’l Ass’n, 8 F. Supp. 3d 1108, 1111 (D. Minn. 2014) (Kyle, J.) (“[T]he
parties may challenge jurisdiction more than once through the course of litigation.”).
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II.
Failure to state a claim (Rule 12(b)(6))
a.
Standard of review
The standard for evaluating a motion to dismiss under Rule 12(b)(6) was set forth
by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and
Ashcroft v. Iqbal, 556 U.S. 662 (2009). To avoid dismissal, a complaint must include
“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 547. A “formulaic recitation of the elements of a cause of action” will not suffice. Id.
at 555. “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 (quoting Twombly, 550 U.S. at 556).
When reviewing a motion to dismiss, the Court “must accept [the] plaintiff’s
specific factual allegations as true but [need] not . . . accept a plaintiff’s legal
conclusions.” Brown v. Medtronic, Inc., 628 F.3d 451, 459 (8th Cir. 2010) (citing
Twombly, 550 U.S. at 556). The complaint must be construed liberally, and any
allegations or reasonable inferences arising therefrom must be interpreted in the light
most favorable to the plaintiff. Twombly, 550 U.S. at 554-56. A complaint should not
be dismissed simply because the Court is doubtful the plaintiff will be able to prove all of
the necessary factual allegations. Id. at 556. Accordingly, a well-pleaded complaint will
survive a motion to dismiss even if it appears that recovery is very remote and unlikely.
Id. “Finally, the complaint should be read as a whole, not parsed piece by piece to
determine whether each allegation, in isolation, is plausible.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
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b.
The ADA and SPDC’s arguments
SPDC’s arguments concern the requirements for access to public buildings found
in the ADA Accessibility Guidelines, 42 U.S.C. § 12183(a). Under those Guidelines,
public accommodations must remove architectural barriers to accessibility when doing so
would be “readily achievable.” § 12182(b)(2)(A)(iv). 2 Similarly, the MHRA looks at the
cost, nature of needed alteration, available resources, and other analogous factors to
determine whether a place of public accommodation can readily make “reasonable
accommodation” for disabled persons. See Minn. Stat. § 363A.11, subd. 1(2).
Here, SPDC argues that Wong has not adequately alleged removal of the six-inch
step at Muddy Pig’s entrance would be “readily achievable.” Although he alleges
remediation could be easily accomplished “due to the lack of difficulty and low cost”
(Compl. ¶ 30), SPDC contends he offers only vague generalities about how such a
change might be accomplished. (See Def. Mem. at 6-8.) It argues, for example, that the
Complaint “contains no allegation regarding the material from which the six-inch step is
constructed, the size of the step, the location of the step vis-a-vis the sidewalk and street
or building cutout, the zoning or historical status of the building, and no allegation as to
the difficulty in acquiring the permits and variances required to take remedial action.”
(Id. at 7.) Accordingly, it asserts Wong has not adequately alleged a violation of either
2
This portion of the Guidelines applies only to places of public accommodation that have not
been constructed or modified since January 26, 1993. See, e.g., Strong v. Valdez Fine Foods,
724 F.3d 1042, 1047 (9th Cir. 2013); United States v. Hoyts Cinemas Corp., 380 F.3d 558, 561
n.2 (1st Cir. 2004). Here, the parties have assumed Muddy Pig’s building was not constructed or
altered since January 26, 1993, and no allegation to the contrary is found in the Complaint.
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the ADA or the MHRA. In the Court’s view, this argument is flawed for two key
reasons.
First, SPDC is attempting to foist onto Wong too stringent a pleading standard.
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead only a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Here, Wong has
alleged that Muddy Pig, a place of public accommodation, includes an entrance that is not
accessible to him as a disabled person because of the six-inch step and the lack of a ramp.
(See Compl. ¶¶ 1, 7-9, 12-13.) 3 This is sufficient to adequately plead his claims. See,
e.g., Wilson v. Haria & Gogri Corp., 479 F. Supp. 2d 1127, 1133 (E.D. Cal. 2007)
(elements of claim are “(1) [the plaintiff] is disabled, (2) the facility in question is a place
of public accommodation, (3) the facility contains an architectural barrier, [and] (4) the
plaintiff had actual knowledge of the architectural barrier precluding his full and equal
access to the facility”); Access Now, Inc. v. S. Fla. Stadium Corp., 161 F. Supp. 2d 1357,
1363 (S.D. Fla. 2001) (plaintiff must show “1) that he is disabled; 2) that the [defendant]
is a place of public accommodation; and 3) that he was denied full and equal treatment
because of his disability”). SPDC’s argument about whether modifications are “readily
achievable” misses the mark because achievability is an affirmative defense. See, e.g.,
Colo. Cross Disab. Coalition v. Hermanson Family Ltd. P’ship I, 264 F.3d 999, 1002
(10th Cir. 2001) (ADA provision about ready achievability of removing architectural
3
Although these allegations are specific to Muddy Pig and not SPDC, “[b]oth the landlord who
owns the building that houses a place of public accommodation and the tenant who owns or
operates [it] are public accommodations subject to the requirements of” the ADA. 28 C.F.R.
§ 36.201(b).
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barrier is “an affirmative defense for an entity”); Hernandez v. Polanco Enters., Inc., 19
F. Supp. 3d 918, 931 (N.D. Cal. 2013) (“District courts are generally in agreement that
whether barrier removal is readily achievable is an affirmative defense.”) (internal
quotation marks and citation omitted). And it is well-settled that a plaintiff need not
plead around an affirmative defense in his complaint. See, e.g., Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 601 n.10 (8th Cir. 2009) (“[A] plaintiff need not plead facts
responsive to an affirmative defense before it is raised.”); FDIC V. Deloitte & Touche,
834 F. Supp. 1129, 1148 (E.D. Ark. 1992) (“As a general rule, plaintiffs have no duty to
anticipate affirmative defenses; thus, they are not ordinarily required to plead avoidance
of [them].”).
Second, the ADA defines “readily achievable” to mean “easily accomplishable
and able to be carried out without much difficulty or expense,” considering factors such
as cost, financial resources available, and the type of public accommodation involved. 42
U.S.C. § 12182(9). The Complaint alleges that compliance with the ADA and MHRA is
readily achievable through the installation of a ramp and that financial assistance is
available to reduce the burden of such modifications. (Compl. ¶¶ 30-31.) Federal law
suggests that installing a ramp may be a readily achievable modification. See 28 C.F.R.
§ 36.304(b)(1). In the Court’s view, therefore, even if Wong bore the burden of pleading
facts suggesting ready achievability in his Complaint, his allegations are sufficient to do
so. See, e.g., Stringham v. 2921 Orlando Drive LLC, No. 6:13-cv-1587, 2014 WL
4060034, at *2 (M.D. Fla. Aug. 14, 2014) (“Removability need not be pleaded with
specificity.”); Flaum v. Colonial Williamsburg Found., Civ. A. No. 4:12cv111, 2012 WL
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5879128, at *6 (E.D. Va. Nov. 21, 2012) (sufficient for plaintiff to plead “it is readily
achievable for Defendant to correct the ADA violations . . . without threatening or
destroying the historical significance of any facility in Merchants Square”).
CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that SPDC’s Motion to Dismiss (Doc. No 14) is DENIED.
Dated: January 16, 2015
s/Richard H. Kyle
RICHARD H. KYLE
United States District Judge
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