Miller v. Ataractic Investment Company, L.L.C.

Filing 29

ORDER denying 18 Defendant's motion to dismiss case. Signed on 7/11/12 by District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
MITCHELL MILLER,
Plaintiff,
v.
ATARACTIC INVESTMENT
COMPANY, LLC,
Defendant.

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Civil No. 11-03509-CV-DGK

ORDER DENYING MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED
COMPLAINT
This case concerns alleged violations of the Americans with Disabilities Act (“ADA”) by
Defendant resulting in past and future injury to Plaintiff, who seeks equitable relief via an
injunctive order by the Court to bring Defendant’s property into compliance with the ADA.
Defendant has filed a Motion to Dismiss Plaintiff’s First Amended Complaint for lack of subject
matter jurisdiction, pursuant to Fed. R. Civ. P. 12(h)(3). Defendant also moves to dismiss the
amended complaint for failure to state a claim upon which relief can be granted, pursuant to Fed.
R. Civ. P. 12(c). The Court has reviewed this motion to dismiss (Doc. 18) in conjunction with
Plaintiff’s Amended Complaint (Doc. 15), Defendant’s Suggestions in Support (Doc. 19),
Plaintiff’s Response in Opposition (Doc. 22), and Defendant’s Suggestions in Further Support
(Doc. 26). For the reasons discussed below, Defendant’s motion is DENIED.
Background
Defendant Ataractic Investment Company, LLC, is a Missouri Limited Liability
Company registered to do business in the state of Missouri. Defendant is the owner, lessee,

and/or operator of real property known as the Fremont Center (“Property”), a shopping center
located at 1300 E. Battlefield Road, Springfield, Missouri 65804.1
Plaintiff Mitchell Miller is a resident of the state of Oklahoma. Plaintiff is a qualified
individual with a disability under the ADA; he suffers from cerebral palsy, which causes him to
be confined to a wheelchair and also creates a spasticity in his arms and hands which makes it
difficult for him to grip and manipulate objects. Although Plaintiff resides in the Oklahoma City
area, he enjoys travelling to Springfield and Branson, where he has vacationed with his family
approximately once or twice per year for many years. During these vacations, Plaintiff has
visited Defendant’s property. The last of these visits occurred November 25, 2011, when
Plaintiff browsed through several stores on the Property and made a purchase at a Quiznos Sub
Store located on the Property. During this visit, Plaintiff allegedly encountered several barriers
to access which limited his ability to utilize and enjoy the goods and services offered at the
Property in violation of Title III of the ADA. Plaintiff’s amended complaint further alleges that
he intends to visit the Property again this summer.
Plaintiff subsequently brought this ADA action. Defendant argues in its motion to
dismiss that Plaintiff lacks standing to sue and that this Court accordingly lacks subject matter
jurisdiction to hear this case. Defendant also argues that Plaintiff’s amended complaint should
be dismissed because it does not state a claim which is plausible on its face.

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Defendant’s Answer (Doc. 7) admits that Defendant is the owner, lessee, or operator of a “portion” of the Fremont
Center, but states that it “may not” own all of the establishments on the Property or all of the Property itself, and
may not own all of the real property and improvements that are the subject of the complaint. This information,
however, is not considered by the Court in evaluating a 12(b)(6) motion to dismiss, which concerns only the
sufficiency of the Plaintiff’s complaint.

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Standard
A. Subject Matter Jurisdiction
A motion to dismiss for lack of subject matter jurisdiction may be brought at any time
pursuant to Fed. R. Civ. P. 12(h)(3). A 12(h)(3) motion to dismiss is evaluated under the same
standards as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1). A 12(b)(1) motion may
challenge either the factual truthfulness or the facial sufficiency of the plaintiff's jurisdictional
allegations. Stalley v. Catholic Health Initiatives, 509 F.3d 517, 520-21 (8th Cir. 2007). In a
facial attack, the Court must “accept as true all factual allegations in the complaint, giving no
effect to conclusory allegations of law,” and must determine whether the plaintiff has asserted
“facts that affirmatively and plausibly suggest that the pleader has the right he claims (here, the
right to jurisdiction), rather than facts that are merely consistent with such a right.” Id., at 521.
The Eighth Circuit has held that “[w]hen a party seeks to dismiss a suit for lack of
standing, [the court] ‘must accept as true all material allegations of the complaint, and must
construe the complaint in favor of the complaining party.’” United States v. Metro. St. Louis
Sewer Dist., 569 F.3d 829, 834 (quoting Warth v. Seldin, 422 U.S. 490, 501(1975)).
B. Failure to State a Claim Upon Which Relief can be Granted
A complaint “must contain . . . a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To avoid dismissal, a complaint must include
“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 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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A complaint that fails to satisfy the above requirements may be dismissed for failure to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). “While a complaint
attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Benton v. Merrill Lynch & Co., Inc., 524 F.3d 866, 870 (8th Cir. 2008).
A party may move for judgment on the pleadings after pleadings are closed, so long as
the motion is made early enough not to delay trial. Fed. R. Civ. P. 12(c). Although technically a
12(b)(6) motion cannot be filed after an answer has been submitted, Fed. R. Civ. P. 12(h)(2)
permits a party to bring a motion to dismiss for failure to state a claim under 12(c), after an
answer has been submitted. A motion to dismiss brought under 12(c) is reviewed under the same
standard as a 12(b)(6) motion. See Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir.
1990). The court assumes the facts alleged in the complaint are true and draws all reasonable
inferences from those facts in the plaintiff’s favor. Monson v. Drug Enforcement Admin., 589
F.3d 952, 961 (8th Cir. 2009).
Discussion
The Court is asked to decide whether Plaintiff has standing to sue and whether Plaintiff’s
amended complaint states a claim upon which relief may be granted. The Court will address
each of these questions in turn.
A. Plaintiff has met the Eighth Circuit’s standing requirements and has standing to sue.
The question of standing concerns “whether the litigant is entitled to have the court
decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422 U.S. 490, 498
(1975).   The Supreme Court has identified three constitutional requirements a litigant must meet

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in order to have standing to sue in federal court. Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (citations omitted). First, the litigant must show that he has suffered an “injury in
fact.” Id. Second, the litigant must show a causal relationship between the injury and the
challenged action of a defendant. Id. Third, it must be “likely” that the litigant’s injury will be
redressed by a favorable decision of the court. Id.
Defendant does not challenge the sufficiency of Plaintiff’s complaint with regard to the
second or third standing requirements. The Court has been asked only to determine whether
Plaintiff’s amended complaint has made the required showing of an injury in fact.
An injury in fact is “an invasion of a legally protected interest” which is “concrete and
particularized” and “actual or imminent, not ‘conjectural or hypothetical.’” Id. Litigants seeking
equitable relief from future harm are required to show an imminent, concrete, and particularized
injury to meet the first constitutional standing requirement.

Lujan, 504 U.S. at 560, 564

(citations omitted). In other words, litigants seeking an injunction must show that they are
“immediately in danger of sustaining some direct injury as the result of the challenged…conduct
and [that] the …threat of injury [is] both real and immediate.” Steger v. Franco, Inc., 228 F.3d
889, 892 (8th Cir. 2000) (citations omitted). “Past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief…if unaccompanied by any
continuing, present adverse effects.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)
(citations omitted).
Defendant challenges Plaintiff’s assertion that he will return to the Property this summer.
Defendant argues that Plaintiff is unlikely to return to the Property, despite his alleged plans to
do so, and has therefore not shown an imminent, concrete, and particularized injury. Defendant
asks that the Court apply a four factor test, used by the District Court for the District of Nebraska

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in Brown v. Grandmother’s, Inc., to assess the likelihood that Plaintiff will actually return to the
Property and suffer injury thereon. The four factors are as follows:
(1) the proximity of the place of public accommodation to plaintiff’s residence,
(2) plaintiff’s past patronage of defendant’s business, (3) the definitiveness of
plaintiff’s plans to return, and (4) plaintiff’s frequency of travel near defendant.
Brown v. Grandmother’s, Inc., No. 4:09-CV-3088, 2010 WL 611002, at *6 (D. Neb. Feb. 17,
2010). Notwithstanding Defendant’s assertion that the four factor Brown test has been adopted
by courts “throughout the Eighth Circuit,” however, only the District of Nebraska has explicitly
adopted the test. Other courts in the Eighth Circuit have declined to apply it. See, e.g., Gaylor v.
GS Brentwood LLC, No. 4:11-CV-506 CAS, 2011 WL 5079588, at *3 (E.D. Mo. 2011)
(declining to use the four factor test and concluding that plaintiff’s “concrete intention” to return
to the place of injury was adequate to show a likelihood of future harm).
Defendant contends that the four factor Brown test has been “endorsed” in “at least 16”
recent cases in this Court. See Betancourt v. 2 Combs Enter., Inc., No. 10-3364-CV-S-MJW,
2011 WL 846849, at *2 (W.D. Mo. Mar. 8, 2011); see, e.g., Steelman v. Bat-Kim, 6:11-CV03439-RED, Doc. 19 (W.D. Mo. Mar. 3, 2012). This is not entirely accurate. In Betancourt, the
court considered the four Brown factors only after concluding that that plaintiff had met the
Eighth Circuit’s requirements for standing to sue. See Betancourt, 2011 WL 846849, at *2 (“In
applying the law of the Eighth Circuit…plaintiff’s allegations are sufficient”). The court did not
adopt or “endorse” the Brown test; it simply noted that “even the [four factor Brown test] cited
by defendant, and used by some courts…support[s] sufficiency of plaintiff’s claims.” Id. The
Steelman cases cited by Defendant as endorsing the four factor Brown test are currently pending.
Judge Dorr has issued a global order to all parties requesting concise briefs on the likelihood of
future injury to the plaintiff; in a footnote to the order, Judge Dorr noted that Brown contained

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“factors relating to [the likelihood of injury] issue.” See, e.g., Steelman, 6:11-CV-03439-RED,
Doc. 19. Judge Dorr’s order does not indicate, as Defendant has asserted, that the plaintiff’s
standing will necessarily be determined using the Brown factors. Even if the Court applied the
four factor test, as Defendant requests, it would not be obliged to grant Defendant’s motion to
dismiss.2
The Court is bound by the Eighth Circuit’s decision in Steger v. Franco, which
establishes the minimum showing of an injury in fact required for a plaintiff to have standing to
sue for equitable relief: “Although plaintiffs need not engage in the ‘futile gesture’ of visiting a
building containing known barriers that the owner has no intention of remedying…they must at
least prove knowledge of the barriers and that they would visit the building in the imminent
future but for those barriers.” Steger, 228 F.3d at 892 (citations omitted, emphasis added).
Plaintiff has exceeded the minimum showing of injury in fact required by Steger.
Plaintiff has alleged in his amended complaint that during his last visit to the Property, he
personally encountered several barriers to access. Given that in a 12(b)(1) (or, in this case, a
12(h)(3)) facial attack the Court must presume that all factual allegations in the amended
complaint are true, the Court finds that Plaintiff has shown knowledge of the barriers on the
Property.

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The first factor, proximity, weighs against Plaintiff, but is not dispositive. The Western District upheld the
plaintiff’s standing to sue in Betancourt despite the plaintiff’s residence being located in Winfield, KS, over 220
miles from the defendant’s property in Springfield, MO. Betancourt, 2011 WL 846849, at *2. The second factor,
past patronage, weighs in favor of Plaintiff, who alleges that he “last visited” and patronized the Property on
November 25, 2011; although the November 25th date is the only date alleged, a reasonable inference from the
language used in the complaint is that Plaintiff has visited and/or patronized the Property on more than one occasion
in the past. The third factor, definitiveness of the plaintiff’s plans, is at worst neutral for Plaintiff, who has not
provided specific dates for his return but has alleged that he will return this summer, which is more than a “general
desire to return” or a “some day” intention. The fourth factor, frequency of the plaintiff’s travel near the defendant,
weighs in favor of Plaintiff. Plaintiff has alleged that he travels in the vicinity of the Property once or twice a year
on vacation; this is sufficient to support Plaintiff’s likelihood to return. See Betancourt, 2011 WL 846849, at *2
(holding that plaintiff’s travelling twice yearly to Springfield, MO, where defendant’s business was located,
supported likelihood of return under the fourth Brown factor).

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Plaintiff’s amended complaint also alleges that he will visit the Property again this
summer. This exceeds the minimum showing required by Steger. Plaintiff has not merely
shown that he would visit the Property in the imminent future but for the barriers, he has shown
that he will visit the Property in the imminent future whether the barriers are removed or not.
Because Plaintiff alleges that he will visit the Property this summer, and that the Property
contains barriers to access in violation of Title III of the ADA, he has shown an imminent,
concrete, and particularized injury and has standing to sue for equitable relief.
Defendant argues that the Steger test addresses only whether a plaintiff has standing if the
plaintiff has not actually experienced the architectural barrier. There is nothing in the language
of the Steger opinion to suggest that the Eighth Circuit intended this narrow application of the
rule.

Defendant’s interpretation of Steger would impose stricter standing requirements on

plaintiffs that have actually visited a defendant’s property and encountered barriers to access
firsthand than on plaintiffs that have never visited the defendant’s property at all. This Court’s
interpretation of Steger is consistent with several other courts in the Eighth Circuit, which have
applied the Steger test even in cases where the plaintiff has actually experienced the architectural
barrier. See, e.g., Betancourt, 2011 WL 846849, at *2 (citing the Steger rule where plaintiff had
visited defendant’s property and encountered architectural barriers prior to filing suit); Gaylor,
2011 WL 5079588, at *2 (same); Brown, 2010 WL 611002, at *6 (same).
B. Plaintiff has stated a claim upon which relief can be granted under Title III of the ADA.
Plaintiff seeks recovery under Title III of the ADA, which prohibits discrimination
against disabled persons by places of public accommodation. See 42 U.S.C. § 12182(a). To
state a valid Title III claim, Plaintiff must allege:
(1) that he is disabled within the meaning of the ADA, (2) that the defendant is a
private entity that owns, leases, or operates a place of public accommodation, (3)
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that the defendant took adverse action against the plaintiff that was based upon
the plaintiff's disability, and (4) that the defendant failed to make reasonable
modifications that would accommodate the plaintiff's disability without
fundamentally altering the nature of the public accommodation.
Amir v. St. Louis Univ., 184 F.3d 1017, 1027 (8th Cir. 1999) (citing 42 U.S.C. § 12182(a); 42
U.S.C. § 12182(b)(2)(A)(ii)). Defendant challenges the sufficiency of Plaintiff’s pleadings only
on the third requirement.
Defendant asserts that the allegations of architectural barriers in Plaintiff’s amended
complaint are not sufficient, even if true, to establish that Defendant took adverse action against
Plaintiff that was based on Plaintiff’s disability. Defendant notes that Plaintiff has failed to tie
the alleged barriers he encountered to specific violations of the ADA Accessibility Guidelines
(“ADAAG”).

Defendant contends that because Plaintiff has failed to specify which alleged

barriers on the Property do not meet ADAAG requirements, Defendant “can only speculate” as
to which specific barriers are the subject of Plaintiff’s complaint.
Defendant first argues that the “vague list of violations” alleged in the complaint fails to
meet the pleading requirements of Fed. R. Civ. P. 8. However, the Rule 8 pleading standard
does not require “detailed factual allegations,” only more than “an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Defendant has cited no case law in
support of its assertion that a valid Title III claim requires plaintiffs to tie specific barriers to
violations of ADAAG requirements. Because of the “impracticality of specifically identifying a
parking space, curb cut, or sidewalk in a complaint, this level of specificity is not required” to
allege a valid claim under Title III. Gaylor, 2011 WL 5079588, at *4 (citing Steger, 228 F.3d at
894). Instead, Defendant’s “concerns about specifically identifying the alleged violations can be
addressed during discovery.” Id.

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Defendant further argues that because it does not own, lease, or operate all of the
establishments located on the Property, Plaintiff’s allegations are not specific enough to establish
that Defendant took adverse action against him. The Court does not agree. In reviewing a
motion to dismiss for failure to state a claim, the Court assumes the facts alleged in the complaint
are true. Monson, 589 F.3d at 961. Plaintiff has alleged that Defendant is the owner, lessee,
and/or operator of the Property, and that he encountered barriers throughout the Property.
Plaintiff has specifically alleged that he encountered curb cuts with excessive slopes and very
steep side flares near the Heritage Cafeteria, and that he had difficulty navigating the sidewalks
near Play It Again Sports due to excessive slopes and lack of proper handrails. Plaintiff alleges
that these barriers presented hazards to him because of his use of a wheelchair.
Plaintiff’s complaint is more than just “a wholesale audit of…the premises,” as
Defendant claims. It is more than just a “formulaic recitation” of the elements of the claim.
Plaintiff’s case is also distinguishable from Chapman v. Pier 1 Imports, the Ninth Circuit case
Defendant cites in support of its 12(c) motion. In Chapman, the plaintiff alleged that he was
disabled, visited the defendant’s property, and encountered architectural barriers denying him
full and equal access, but “never allege[d] what those barriers were and how his disability was
affected by them so as to deny him...access.” Chapman v. Pier 1 Imports, Inc., 631 F.3d 939,
954 (9th Cir. 2011). The plaintiff in Chapman did “not even attempt to relate the alleged
violations to his disability.” Chapman, 631 F.3d at 955. Plaintiff, in contrast, has alleged what
the barriers he encountered were and how his disability was affected by them.
Conclusion
The Court holds that Plaintiff has standing to sue Defendant, having shown an injury in
fact under the requirements articulated by the Eighth Circuit in Steger. The Court further holds

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that Plaintiff has plead factual allegations sufficient to state a claim upon which relief can be
granted under Title III of the ADA. Therefore, Defendant’s motion to dismiss for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(h)(3) and for failure to state a claim under Fed. R.
Civ. P. 12(c) is DENIED.
IT IS SO ORDERED.
Date: July 11, 2012

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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