Blue et al v. United Way of Cumberland County
ORDER denying 15 Motion to Dismiss. Signed by Senior Judge James C. Fox on 8/19/2014. (Grady, B.)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
JACKIE BLUE, individually and
NATIONAL ALLIANCE FOR
ACCESSIBILITY, INC., a Florida not
for profit corporation ,
UNITED WAY OF CUMBERLAND
COUNTY, a domestic corporation,
This matter is before the court on United Way's motion to dismiss [DE-15]. For the
reasons that follow, the motion is DENIED.
Plaintiff Jackie Blue ("Blue") 1 alleges that she is a qualified individual with a disability
within the meaning of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. Blue
suffers from multiple sclerosis and she is confined to a wheelchair. She resides within four miles
ofthe United Way of Cumberland County ("United Way"), which is located in Fayetteville, N.C.
The United Way offers a variety of public community meetings. Blue alleges that she has
visited these meetings in the past and intends to return for future meetings with approximately
the same frequency. Blue further alleges that she has encountered a number of ADA violations at
the property that prevent her from fully accessing and enjoying the property. The ADA
Plaintiff National Alliance for Accessability has entered a stipulation of dismissal [DE-20].
violations Blue alleges that she personally encountered include: an inability to access certain
portions of the restroom using her wheelchair, dangerous exposed pipes in the restroom, the
inability to reach certain dispensers and transfer bars, and her inability to reach certain counters.
Blue also states that she does not have an accessible path from the parking lot to the building.
United Way moves to dismiss Blue's claims for lack of subject matter jurisdiction. Fed.
R. Civ. P. 12(b)(l). Rule 12 states that "[i]fthe court determines at any time that it lacks subject
matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). Rule 12(b)(1)
challenges to the court's subject matter jurisdiction can take one oftwo forms: (1) an argument
that the complaint's allegations, taken as true, do not support subject matter jurisdiction (a "facial
challenge" to jurisdiction); or (2) an argument that the jurisdictional allegations in the complaint
are not true. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). Although United Way
does not specify the form of its Rule 12(b)(1) argument, it is clear from its briefing that it
launches a facial challenge to the court's jurisdiction. In such a case, the plaintiff is afforded "the
same procedural protection as [s]he would receive under a Rule 12(b)(6) consideration." !d. at
192; Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). That is, "the facts alleged in the
complaint are taken as true, and the motion must be denied if the complaint alleges sufficient
facts to invoke subject matter jurisdiction." Kerns, 585 F.3d at 192.
United Way argues Blue lacks standing to bring this lawsuit under Article III of the
United States Constitution, thus depriving the court of subject matter jurisdiction. Article III
standing doctrine tests whether a plaintiff has '"such a personal stake in the outcome of the
controversy as to warrant [her] invocation of federal court jurisdiction and to justify exercise of
the court's remedial powers on her behalf."' White Tail Park, Inc. v. Straube, 413 F.3d 451,458
(4th Cir. 2005) (quoting Planned Parenthood ofS.C. v. Rose, 361 F.3d 786, 789 (4th Cir. 2004)).
The plaintiff has the burden of demonstrating three elements to satisfy standing: ( 1) an injury in
fact that is "concrete and particularized" and "actual or imminent"; (2) the injury must be fairly
traceable to the challenged conduct; and (3) a favorable decision must be likely to redress the
injury. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Friends of the Earth Inc. v.
Gaston Copper Recycling Corp., 629 F.3d 387, 396 (4th Cir. 2011). General allegations
regarding injury are typically sufficient at the pleading stage because courts "presume that
general allegations embrace those specific facts that are necessary to support the claim." Lujan,
504 U.S. at 361.
United Way's arguments for dismissal based on lack of standing are foreclosed by the
Fourth Circuit's decision in Daniels v. Arcade, L.P., 477 F. App'x 125 (4th Cir. 2012). The facts
of Daniels are virtually indistinguishable from the facts of this case. Finding the plaintiff had
sufficiently alleged the injury in fact component of standing, the Fourth Circuit stated:
Assuming that his allegations are true and construing all inferences in Daniels' favor,
as we are required to do in this context, we observe that Daniels lives near the
Market, had visited the Market before the filing of the amended complaint, and in
fact "regularly visits" the Market. During these visits, Daniels alleges, he was subject
to discrimination within the meaning of the ADA by the following purported
structural deficiencies of the Market: inaccessible entry routes, inaccessible ramps,
inaccessible restrooms, and other inaccessible amenities. These alleged structural
deficiencies excluded Daniels from, or denied him the benefits of, the goods and
services offered by the Market's vendors.
Because he visited the Market and encountered these difficulties himself, Daniels'
injury is "actual" and "concrete," rather than theoretical. Moreover, the injury is
"particularized" because the injury affected Daniels "in a personal and individual
way." Lujan, 504 U.S. at 561 n. 1, 112 S.Ct. 2130.
!d. at 129. This is precisely what Blue alleges in this case: that she has visited the United Way
with some frequency in the past, that she lives near the United Way, and that she was subject to
discrimination within the meaning of the ADA by inaccessible entry routes and inaccessible
restrooms. No more is required to demonstrate injury in face at the pleading stage. !d. Of
course, as explained above, if discovery reveals that some of these allegations are not true,
United Way is free to renew their standing arguments. See Kerns, 585 F.3d at 192.
As United Way stresses, because Blue seeks injunctive relief, it is not sufficient for her to
demonstrate only past injury. She must allege (and ultimately prove) a "real and immediate"
threat that she will be injured again. Bryant v. Cheney, 924 F.2d 525, 529 (4th Cir. 1991);
Daniels, 477 F. App'x at 129. In Daniels, the Fourth Circuit held that Daniels' allegation that he
"intends to continue to visit the [Market] in the future for his shopping needs" was sufficient to
establish a real and immediate threat of future harm. Daniels, 477 F. App'x at 130.
In this case, Blue alleges she has "visited the [United Way] and plans to return to attend
meetings offered to the public .... " Compl. [DE-l]
6. The court does not perceive any
difference between this allegation and the allegation in Daniels regarding his intent to return to
the property "in the future for his shopping needs." Thus, the court concludes that the future
harm component of standing is also satisfied in this case.
Finally, United Way argues that the court should not consider Daniels because it is
unpublished. It is true that Daniels is not binding precedent in this circuit and that the Fourth
United Way does not present any argument regarding the other two elements of standing:
causation and redressability. The court's independent review of Blue's complaint did not uncover any
defects in the causation or redressability components of the standing analysis.
Circuit "disfavors" citation to unpublished opinions. However, the court considers Daniels
persuasive authority given the similarity of the facts alleged in Daniels and this case and the
strength of the Daniels reasoning. See Collins v. Pond Creek Mining Co., 468 F.3d 213,219 (4th
Cir. 2006) (explaining unpublished opinions are "entitled only to the weight they generate by the
persuasiveness of their reasoning" (internal quotation marks omitted)).
B. Motion to Dismiss
United Way also moves to dismiss this case under Federal Rule of Civil Procedure
12(b)( 6). The purpose of a motion to dismiss under Rule 12(b)( 6) is to test the legal sufficiency
ofthe complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v.
City ofGoldsboro, 178 F.3d 231,243-44 (4th Cir. 1999). While the court accepts the well-
pleaded factual allegations as true, the '" [£]actual allegations must be enough to raise a right to
relief above the speculative level' and the plaintiff must allege 'enough facts to state a claim to
relief that is plausible on its face."' Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615
n.26 (4th Cir. 2009) (quoting Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (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). The court does not accept as true the complaint's "legal conclusions,
elements of a cause of action, and bare assertions devoid of further factual development." Nemet
Chevrolet, Ltd. v. Consumeraffairs. com, Inc., 591 F.3d 250, 255 (4th cir. 2009).
United Way argues Blue's claims should be dismissed because the complaint contains a
relatively lengthy list of purported ADA violations at the United Way without tying the alleged
violations to Blue's visits to the property. The court agrees with United Way that those
allegations standing alone would not be sufficient to state a claim for relief because the
allegations must be tied to the plaintiff in this case to state a claim for relief. However, as
explained above, Blue has included allegations in the complaint specifically describing the
barriers she encountered at the property, including inaccessible portions of the restroom, exposed
pipes, an inaccessible path from the parking area to the building, inability to reach dispenses and
transfer bars, and inability reach certain counters. Com pl. [DE-l]
United Way states that these allegations are a "veiled attempt to show injury to Plaintiff
Blue that can easily be pierced by comparing the identified ADA violations to the alleged injury
to Plaintiff Blue" and "when doing so, it is clear that several of the allegations [of ADA
violations] cannot be attributed to Plaintiff Blue." United Way Reply Br. [DE-17] at 2-3.
While this may be true of some of the alleged ADA violations, it is not true of all ofthem. For
example, the ADA violations section of the complaint alleges "there are no accessible routes
from the ... parking areas[,]" Compl. [DE-l]
10(2), and Blue specifically alleges that there is
no accessible path from the parking lot to the building. !d.
6. This is also true of the exposed
pipes, transfer bars, and the inability to access portions of the restrooms. Compare Compl. [DE1]
6 with id.
10. Accepting these allegations as true, as the court must, most of the alleged
violations of the ADA appear to be sufficiently tied to Blue to survive a motion to dismiss. 3
In sum, the court concludes that Blue has alleged sufficient facts to demonstrate standing
and to survive a Rule 12(b)(6) motion to dismiss. Accordingly, United Way's motion to dismiss
The court notes in this context that United Way does not request that the court dismiss certain
alleged violations that appear to be implausible (e.g. the allegation that the urinals are not sufficiently
accessible when Blue is presumably a woman). The court is denying the motion to dismiss with respect
to the entire complaint and the parties can address this issue at a later stage in the proceedings or
(preferably) work out a solution among themselves.
[DE-15] is DENIED. However, United Way is free to renew its standing arguments in a later
motion if discovery reveals that Blue's allegations regarding her injury are untrue. See Kerns,
585 F.3d at 192.
For the foregoing reasons, United Way's motion to dismiss [DE-15] is DENIED. The
Clerk of Court is DIRECTED to continue management of this case.
This the __j.!_ day of August, 2014.
JlJfo.ES C. FOX
Senior United States District Judge
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