Payne et al v. Boston Market Corporation

Filing 16

ORDER denying 11 Motion to Dismiss for Failure to State a Claim. Signed by Senior Judge Malcolm J. Howard on 3/12/2013. (Lee, L.)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION NO. 5:12-CV-354-H DENISE PAYNE, Individually and NATIONAL ALLIANCE FOR ACCESSABILITY, INC., a Flordia not-for-profit corporation, Plaintiffs, ORDER v. BOSTON MARKET CORPORATION, a Foreign Corporation, Defendant. This matter is before the court on defendant's motion to dismiss pursuant to Federal Rule of Civil Procedure 12 (b) ( 1) lack of standing. replied. ยงยง of and defendant has This matter is ripe for adjudication. On June 19, III Plaintiffs have responded, for the 2012, Americans 12181-12189. plaintiffs filed this action under Title with Disabilities Act ("ADA") , 42 U.S. C. Defendant argues that plaintiffs have failed to sufficiently demonstrate an "injury in fact" as required to establish standing. "[T]he constitutional irreducible Lujan v. contains three elements." u.s. 555, 560 (1992). fact that is imminent; (a) ( 2) a minimum Defenders of Wildlife, These three elements are (1) concrete and particularized and causal conduct complained of; connection between and ( 3) standing of the 504 an injury in (b) actual or injury and the the likelihood that a favorable decision will redress the injury. Id. at 560-61. The court has carefully reviewed this matter and finds that plaintiff has demonstrated enough at this stage of the litigation to establish standing. The court notes that although plaintiff Payne plaintiff Payne informed the lives in Florida, court in the complaint that she had concrete plans to return to defendant's August 24, plaintiff with business 2012, Payne those on June u.s. informed plans likelihood 111 95, of a By 2012. affidavit filed in response to defendant's motion to dismiss, and the did establishment a second time. 461 23, ( 1983) "real or court in that fact she followed visit the through defendant See City of Los Angeles v. Lyons, (plaintiff immediate wronged again.") 2 must show threat that substantial he will be Therefore, defendant's motion to dismiss [DE #11] DENIED. This ]!!, ~ day of March 2013. Senior United States District Judge At Greenville, NC #26 3 is

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