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.)

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.

§§

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