Santiago-Ortiz et al v. Caparra Center Associates, LLC et al

Filing 45

OPINION and ORDER granting in part and denying in part 27 Motion to Dismiss. Signed by US Magistrate Judge Bruce J. McGiverin on March 21, 2016. (McGiverin, Bruce)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MARGARITA SANTIAGO ORTIZ, et al.,
Plaintiffs,
v.

Civil No. 14-1914 (BJM)

CAPARRA CENTER ASSOCIATES, LLC,
et al.,
Defendants.
OPINION AND ORDER
Margarita Santiago Ortiz (“Santiago”) and Jan M. Derieux Lebrón (“Derieux”),
personally and on behalf of their minor daughter, J.D.S. (collectively, “plaintiffs”), sued
Caparra Center Associates, LLC (“Caparra”) and Capitol Security Police, Inc. (“Capitol”)
(collectively, “defendants”), 1 alleging a violation of Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12181–12189, and Article 1802 of the Puerto
Rico Civil Code (“Article 1802”), P.R. Laws Ann. tit. 31, § 5141. Docket No. 1. Plaintiffs
seek money damages, injunctive relief, and attorneys’ fees. Defendants moved to dismiss
the complaint for lack of subject matter jurisdiction, as well as for failure to state a claim,
Docket Nos. 27, 33, and plaintiffs opposed, Docket No. 30. The case is before me on
consent of the parties. Docket No. 20.
For the following reasons, the motion to dismiss is GRANTED IN PART AND
DENIED IN PART.
MOTION TO DISMISS STANDARD
Rule 12(b)(1) governs motions to dismiss for lack of subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The “party invoking the jurisdiction of a federal court carries the
burden of proving its existence.” P.R. Tel. Co. v. Telecomm’s Reg. Bd. of P.R., 189 F.3d 1,
1

Also included in the complaint are fictitious defendants John Doe, ABC Insurance Co.,
and Richard Roe Insurance Co. Compl. ¶¶ 7, 8, 10.

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7 (1st Cir. 1999). When deciding whether subject matter jurisdiction exists, the court
follows two general rubrics: (1) when a defendant challenges the legal sufficiency of the
facts alleged, the court credits plaintiffs’ factual allegations and draws reasonable
inferences in his or her favor; and (2) when the defendant challenges the truth of the
plaintiffs’ facts and offers contrary evidence, the court weighs the evidence. Valentín v.
Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001).
To survive a Rule 12(b)(6) motion, on the other hand, “an adequate complaint
must provide fair notice to the defendants and state a facially plausible legal claim.”
Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). The plaintiff must
set forth “factual allegations, either direct or inferential, regarding each material element
necessary” for the action. Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir. 1988).
In evaluating a motion to dismiss, the court first discards any “‘legal conclusions couched
as fact’ or ‘threadbare recitals of the elements of a cause of action.’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The remaining “[n]on-conclusory factual
allegations” are fully credited, “even if seemingly incredible.” Id.
In resolving a Rule 12(b)(6) motion, the court engages in no fact-finding and does
not “forecast a plaintiff’s likelihood of success on the merits.” Ocasio-Hernández, 640
F.3d 13. Rather, it presumes that the facts are as properly alleged by the plaintiff, and
draws all reasonable inferences in the plaintiff’s favor. Schatz v. Republican State
Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012). Taken together, the facts pleaded
must “state a plausible, not a merely conceivable, case for relief.” Ocasio-Hernández,
640 F.3d at 12.
BACKGROUND2
Eight-year-old J.D.S. suffers from epilepsy, and must always be accompanied by
her service dog, a two-year-old Shitzu that is trained to serve J.D.S.’s medical needs,
2

These facts are drawn from the well-pleaded allegations in the complaint, and are
assumed true for the purposes of this motion. Docket No. 1.

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warn her of an epilepsy attack before it occurs, assist her during an attack, and summon
help. Compl. ¶¶ 11–12. The service dog accompanies J.D.S. everywhere she goes,
including school; has done so for the past years; is registered as a service dog with the
U.S. Service Dog Registry; and always wears a service-dog identification and vest. Id. ¶¶
12–13.
J.D.S. and her parents are residents of Bayamon, Puerto Rico, and visited the
nearby San Patricio Shopping Center (“Center”) in Guaynabo, Puerto Rico, on February
10, 2014. Id. ¶ 21. Caparra owns and operates the Center, and Capitol provides security
services for the Center. Id. ¶¶ 6, 9. During this visit, plaintiffs were “detained,” though it
is unclear for how long, by a Capitol security guard because they were accompanied by
J.D.S.’s service dog. Id. ¶¶ 20–21. Following this incident, plaintiffs drafted a letter to
Caparra and Capitol, which they delivered to the security guards’ office at the Center,
advising them that the security guards were “violating the law by discriminating against
people with an impairment.” Id. Neither Caparra nor Capitol responded to the letter. Id.
J.D.S., again accompanied by her parents and service dog, returned to the Center
on March 11, 2014. Id. ¶ 14. While walking through one of the Center’s hallways,
plaintiffs were “intercepted” by a Capitol security guard, who was identified only as
“Hernandez.” Id. ¶ 15. Hernandez told them that animals were not permitted in the
Center, and requested that they carry J.D.S.’s service dog and leave. Id. Explaining that
the service dog was identified as J.D.S.’s service animal, her parents refused to do so and
told Hernandez to call his supervisor. Id. ¶ 16. Notwithstanding the explanation,
Hernandez reiterated the request, this time “in a harsh manner.” Id. Plaintiffs ignored that
request, and entered one of the Center’s department stores. Id. ¶ 17.
Later, near a different store, they again encountered Hernandez, who “stared
intensively at plaintiffs.” Id. Because of his intensive staring, Derieux approached
Hernandez and asked him whether he had been given guidance on how to deal with
service dogs. Id. ¶ 18. In a “rather hostile tone” and “threatening manner,” Hernandez

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screamed at plaintiffs, “you don’t know who I am.” Id. Hernandez repeated this phrase
and attempted to physically assault them, prompting another security guard, identified
only as “Lopez,” to restrain him. Id.
Plaintiffs told the security guards that they were going to call the police, and
could sue them for their actions, to which Hernandez responded, “like the other time that
you said that you were going to sue and did not do anything.” Id. ¶¶ 19–20. The Puerto
Rico Police arrived, took a report, and admonished Capitol’s security guards that they
could not interfere with plaintiffs. Id. ¶¶ 18–19. After this incident, plaintiffs suffered
various symptoms of emotional distress, including depression, fear, and anxiety, and
“became nervous for not being able to enjoy the premises of the [Center].” Id. ¶ 31. In
light of these symptoms, and to avoid incidents like the one at the Center, J.D.S. has
become house-ridden. Id. ¶ 32. As a result of these incidents, plaintiffs seek monetary
damages and injunctive relief. Id. ¶¶ 30–36.
DISCUSSION
Defendants contend that plaintiffs are not entitled to money damages, and that
injunctive relief is unwarranted because the complaint fails to state an ADA violation and
because there is an insufficient likelihood that the alleged injury will recur. Plaintiffs
respond that they have standing to request injunctive relief, and that they are entitled to
money damages.
I.

The ADA
Congress enacted the ADA “to provide a clear and comprehensive national

mandate for the elimination of discrimination against individuals with disabilities.” 42
U.S.C. § 12101(b)(1). Title III of the ADA targets discrimination in privately operated
places of public accommodation, stating that “[n]o individual shall be discriminated
against on the basis of disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation by any person who owns, leases (or leases to), or operates a place of

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public accommodation.” 42 U.S.C. § 12182(a); Dudley v. Hannaford Bros. Co., 333 F.3d
299, 303 (1st Cir. 2003) (Dudley).
The statute defines “discrimination” to include “a failure to make reasonable
modifications in policies, practices, or procedures, when such modifications are
necessary to afford such goods, services, facilities, privileges, advantages, or
accommodations to individuals with disabilities, unless the entity can demonstrate that
making such modifications would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations.” 42 U.S.C. § 12182(b)(2)(A)(ii).
This statutory framework thus requires a plaintiff to make a six-part showing: (1)
that she “comes within the protections of the ADA as a person with a disability”; (2) that
“the defendant’s establishment is subject to the mandates of Title III as a place of public
accommodation”; (3) that “the defendant has a discriminatory policy or practice in
effect”; (4) that she “requested a reasonable modification in that policy or practice which,
if granted, would have afforded him access to the desired goods”; (5) “that the requested
modification—or a modification like it—was necessary to afford that access”; and (6)
“that the defendant nonetheless refused to modify the policy or practice.” Dudley, 333
F.3d at 307 (citations omitted).
A.

Persons Protected Under the ADA

Defendants first argue that the complaint fails to state sufficient facts alleging that
each plaintiff (J.D.S., Santiago, and Derieux) comes within the ADA’s protections. A
“disability” is defined as “a physical or mental impairment that substantially limits one or
more major life activities” 3 of an individual. 42 U.S.C. § 12102(1)(A). Congress has
instructed that this definition should be construed “in favor of broad coverage of
“Major life activities are basic activities of daily life that an average person in the
general population can perform with little or no difficulty—‘functions such as caring for oneself,
performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.’”
Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir. 2011) (Ramos-Echevarria)
(quoting 29 C.F.R. § 1630.2(i)).
3

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individuals . . . to the maximum extent permitted . . . .” Id. § 12102(4)(A); see also
Arnold v. United Parcel Serv., Inc., 136 F.3d 854, 861 (1st Cir. 1998) (“It is a ‘familiar
canon of statutory construction that remedial legislation,’ such as the ADA, ‘should be
construed broadly to effectuate its purposes.’) (quoting Tcherepnin v. Knight, 389 U.S.
332, 336 (1967)).
Beginning with J.D.S., defendants acknowledge that the complaint alleges she
suffers from epilepsy. Yet, they contend that the complaint fails to allege additional facts
to reasonably infer that her impairment substantially limits a major life activity. Not so.
As an initial matter, a “person with epilepsy can certainly be disabled under the ADA.”
EEOC v. Sara Lee Corp., 237 F.3d 349, 352 (4th Cir. 2001) (citing Otting v. J.C. Penney
Co., 223 F.3d 704, 709–10 (8th Cir. 2000)). After all, Congress contemplated such a
condition when it enacted the ADA. See Sara Lee Corp., 237 F.3d at 352 (citing H.R.
Rep. No. 485(II), 101st Cong., 2d Sess. 52, reprinted in 1990 U.S.C.C.A.N. 303, 334
(“epilepsy” can be an impairment that substantially limits a major life activity)).
At the outset, the complaint alleges that the ADA action is premised on
discrimination against an individual with a physical or mental impairment that
substantially limits one or more of the major life activities. Compl. ¶ 11. It then alleges
various facts that permit the inference defendants contend is lacking. Specifically, the
complaint alleges that J.D.S. has had the service dog for the past years, and that it
accompanies her everywhere she goes, including school, because it warns her of an
epilepsy attack before it occurs, provides assistance during an attack, and summons help.
Id. ¶¶ 12–14. These allegations state a plausible allegation that J.D.S. is disabled within
the meaning of the ADA because it is reasonable to infer that she is unable to care for
herself––a major life activity––when she is suffering from an epilepsy attack. See 29
C.F.R. § 1630.2(i) (caring for one’s self is a major life activity). Additionally, that she has
had the service dog for the “past years,” and that the service dog must accompany her

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everywhere she goes, permits the inference that her condition is not a transitory one, nor
limited to specific locations.
What is more, some courts have held that a plaintiff “is not required, at th[e] early
pleading stage, to go into particulars about the life activity affected by her alleged
disability or detail the nature of her substantial limitations.” Fowler v. UPMC Shadyside,
578 F.3d 203, 213 (3d Cir. 2009) (holding that is the rule even after the Twombly and
Iqbal plausibility standard); accord EEOC v. J.H. Routh Packing Co., 246 F.3d 850, 854
(6th Cir. 2001) (“[S]o long as the complaint notifies the defendant of the claimed
impairment, the substantially limited major life activity need not be specifically identified
in the pleading.”). These cases were decided before the amendments to the ADA, and
nonetheless evince the “low standard for surviving motions to dismiss.” Garcia-Hicks v.
Vocational Rehab. Admin., No. CV 13-1491(FAB), 2015 WL 7720343, at *6 (D.P.R. Nov.
30, 2015).
The ADA amendments fortified the rationale underlying these cases, as the
amendments were intended to shift “the primary object of attention” from “whether an
individual’s impairment is a disability under the ADA” to “whether entities covered under
the ADA have complied with their obligations.” Pub. L. No. 110–325, § (2)(b)(5), 122
Stat. 3553. Accordingly, after the amendments, courts are generally more reluctant to
dismiss disability discrimination claims at the motion-to-dismiss stage. See Garcia-Hicks,
2015 WL 7720343, at *8 (collecting cases); see also Coffman v. Taqueria Los Gallos, No.
3:15-CV-00191-RCJ, 2015 WL 3935180, at *4 (D. Nev. June 26, 2015) (complaint
sufficiently stated a Title III claim where it alleged that plaintiff “was denied goods and
services in the Defendant restaurant because of his disability, i.e., because he needed his
seeing-eye dog to aid him due to his disability, and Defendant failed to reasonably
modify its policy against dogs as necessary for Plaintiff to be afforded Defendant's goods
and services.”). Thus, the complaint sufficiently alleges that J.D.S. is disabled within the
meaning of the ADA.

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To be sure, defendants cite ADA cases like Ramos-Echevarria for support. 659
F.3d 182. In that case, for example, the court held that “[e]vidence of a medical diagnosis
of impairment, standing alone, is insufficient to prove a disability.” Id. at 187 (emphasis
added). However, Ramos-Echevarria involved an ADA claim that was adjudicated at the
summary judgment stage, not the pleadings stage. See id. at 191. At this early stage in the
proceedings, J.D.S. is not required to establish the elements of her claim with evidence.
Rather, she is only required to allege sufficient facts from which it can be inferred that
she is disabled. See, e.g., Ocasio-Hernández, 640 F.3d at 12. She has done so.
Turning to J.D.S.’s parents, Santiago and Derieux, defendants press that the
complaint is silent on “the existence of any kind of physical or mental impairment” that
they have. True enough. Yet, defendants’ contention that they therefore lack standing to
sue under the ADA does not necessarily follow because “it is widely accepted that under
both the [Rehabilitation Act] and the ADA, non-disabled individuals have standing to
bring claims when they are injured because of their association with a disabled person.”
McCullum v. Orlando Reg’l Healthcare Sys., Inc., 768 F.3d 1135, 1142 (11th Cir. 2014)
(collecting five circuit court cases); see also Weber v. Cranston Sch. Comm., 212 F.3d 41,
47–49 (1st Cir. 2000) (parent had standing to sue under the Rehabilitation Act). Indeed,
the ADA provides that “[i]t shall be discriminatory to exclude or otherwise deny equal
goods, services, facilities, privileges, advantages, accommodations, or other opportunities
to an individual or entity because of the known disability of an individual with whom the
individual or entity is known to have a relationship or association.” 42 U.S.C.A. §
12182(1)(E). The complaint alleges that J.D.S.’s parents were asked to leave the Center
on March 11 when accompanying J.D.S. and her service dog, even after they told the
security guard that the dog was a disabled person’s service animal. The complaint thus
alleges sufficient facts to state an ADA claim for Santiago and Derieux.

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B.

9

Discriminatory Practice or Policy

Defendants next contend that the complaint fails to plead sufficient facts alleging
that plaintiffs were denied access to the Center or a reasonable accommodation, arguing
that the “ADA regulations do not create a blanket right of universal and automatic access
to public accommodations for all service animals.” Defs.’ Mot. Dismiss J. 14.
Following Congress’s directive, 42 U.S.C. § 12186(b), the Department of Justice
promulgated a regulation, which provides that “[g]enerally, a public accommodation shall
modify policies, practices, or procedures to permit the use of a service animal by an
individual with a disability.” 28 C.F.R. § 36.302(c)(1). Consistent with this regulation,
“modifying a no animals policy to allow a service animal full access with its owner in a
place of public accommodation is generally reasonable.” Johnson v. Gambrinus
Co./Spoetzl Brewery, 116 F.3d 1052, 1060 (5th Cir. 1997). It is true that a public
accommodation may ask a disabled individual to remove a service animal when (1) “the
animal is out of control and the animal’s handler does not take effective action to control
it” or (2) “the animal is not housebroken.” 28 C.F.R. § 36.302(c)(2)(i)–(ii). But even
when it may do so, the public accommodation must still “give the individual with a
disability the opportunity to obtain goods, services, and accommodations without having
the service animal on the premises.” Id. § 36.302(c)(3).
In addition, a public accommodation may not “ask about the nature or extent of a
person’s disability.” 28 C.F.R. § 36.302(c)(6). Indeed, the First Circuit has explained that
that “the obviousness vel non of an individual's disability has no relevance to the
mandates of Title III.” Dudley, 333 F.3d at 309. It is generally permissible, however, for
the public accommodation to “make two inquiries” to determine whether the animal
qualifies as a service animal: whether (1) “the animal is required because of a disability,”
and (2) “what work or task the animal has been trained to perform.” 28 C.F.R. §
36.302(c)(6).

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With this framework underfoot, the defendants’ suggestion that the complaint
limns a nondiscriminatory scenario is unavailing. The complaint does not allege, for
example, that the security guards asked either of the two permissible inquiries under the
ADA regulations, and that the plaintiffs were asked to leave only after refusing to answer
the inquiries. See 28 C.F.R. § 36.302(c)(6). Neither does the complaint disclose any facts
which suggest that plaintiffs were asked to remove the dog because it was unruly or not
housebroken. See 28 C.F.R. § 36.302(c)(2)(i)–(ii).
Instead, the complaint states a plausible ADA claim. It does so by first alleging
that J.D.S. is disabled and that the Center is a public accommodation owned or operated
by the defendants, the latter of which is not disputed by defendants. Having alleged these
first two abecedarian elements of a Title III claim, the complaint goes on to allege the
remaining four elements. It alleges (1) that the Center’s security guards told plaintiffs that
the Center does not allow animals, suggesting a hard-and-fast discriminatory policy or
practice; (2) that plaintiffs twice informed defendants of their need for a reasonable
accommodation, once via the February 10 letter and again on March 11; (3) that it was
necessary for J.D.S.’s service animal to accompany them to access the Center; and (4)
that the security guard on March 11 refused to allow plaintiffs to remain in the Center
even after they explained that the dog was a service animal. Nothing more is required to
state a plausible Title III claim and survive the motion to dismiss.
C.

Threat of Future Harm

Suggesting the harm plaintiffs allege will not recur, defendants contend plaintiffs
lack standing to request injunctive relief. To determine whether a plaintiff has a private
right of action under Title III, the court must determine whether plaintiffs have shown “a
real and immediate threat that a particular (illegal) barrier will cause future harm.”
Dudley, 333 F.3d at 305–06. “This standard has been adapted from generic Supreme
Court precedents discussing whether a plaintiff has standing to protest a particular
injury.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“the

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irreducible constitutional minimum of standing” includes suffering an “injury in fact” that
is “actual or imminent”) (citations omitted); City of L.A. v. Lyons, 461 U.S. 95, 105, 103
(1983) (plaintiff requesting injunctive relief must “establish a real and immediate threat”
that illegal conduct will occur); O’Shea v. Littleton, 414 U.S. 488, 494 (1974) (“Abstract
injury is not enough. . . . The injury or threat of injury must be both real and immediate,
not conjectural or hypothetical.”) (citations omitted)).
Dudley presents an apt example of the standing requirement in a Title III case
where the plaintiff alleges discrimination because of a non-physical barrier to the public
accommodation. 333 F.3d at 305–06. In that case, Dudley suffered from a disability
which caused him to exhibit symptoms that mimicked the side effects of intoxication. Id.
at 306. He attempted to purchase alcohol at the Gardiner Shop ‘n Save, but was unable to
do so because the store clerk thought he was inebriated and refused to make the sale. Id.
Despite Dudley’s attempts to explain his disability to a store manager, he ultimately left
the store empty-handed because the store had a hard-and-fast policy precluding the store
manager from overriding the store clerk’s refusal to make the sale. Id. The First Circuit
held these circumstances presented “a real and immediate threat of ongoing harm,”
reasoning that the store’s offending policy remained in place, Dudley was likely to
patronize the store, three of the store’s employees had mistaken Dudley’s disability for
intoxication, and Dudley had previously experienced similar discrimination at other
locations. Id.
As in Dudley, the allegations in the plaintiffs’ complaint limn “a real and
immediate threat of ongoing harm.” Id. It alleges that the Center’s security guards told
J.D.S. and her parents that animals are prohibited in the Center. It can be reasonably
inferred that this rule is a hard-and-fast one that does not permit exceptions because
Capitol’s security guard, Hernandez, reiterated his request that plaintiffs leave the Center
even after J.D.S.’s parents explained that the dog was a service animal. What is more, the
complaint suggests the March 11 incident was not a remote, isolated occurrence because

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plaintiffs allege that they visited the Center on February 10 and were similarly detained
by a Capitol security guard for having a service dog with them. Because the incidents on
March 11 occurred despite plaintiffs’ February 10 letter advising Caparra and Capitol of
the alleged discriminatory conduct, the complaint permits the inference that defendants
may have brushed aside the plaintiffs’ experience at the Center and that the alleged
discriminatory behavior will recur. And to the extent defendants suggest plaintiffs were
required to allege more instances of discriminatory conduct, that contention is belied by
another provision of the ADA, which “negates any requirement that a disabled person
engage in a futile gesture to establish the existence of a discriminatory policy or
practice.” Dudley, 333 F.3d at 306 (citing 42 U.S.C. § 12188(a)(1)).
The complaint also permits the inference that more than one security guard has
enforced the alleged policy or practice. It states that “a security guard” detained plaintiffs
on February 10, but does not state that this security guard was either Hernandez or Lopez,
both of whom were identified as being involved in the March 11 incident. And contrary
to defendants’ suggestion, the complaint does suggest that plaintiffs would like to return
to the Center; yet, they imply that the actions by the Center’s security guards have
deterred them from returning. And Puerto Rico is an island after all, with only so many
shopping centers available to the public. Injunctive relief, plaintiffs suggest, would
prevent the alleged discriminatory incidents from recurring at this particular shopping
center. In sum, plaintiffs have alleged sufficient facts to nudge their ADA claims beyond
the plausibility threshold, and to allege that they have standing to request injunctive
relief.
II.

Claims for Damages
Defendants contend plaintiffs are not entitled to damages under Title III of the

ADA, and that they improperly attempt to shoehorn the same facts alleged in their ADA
claim into the Article 1802 claims. In response, plaintiffs do not argue that the complaint
alleges tortious conduct distinct from that which forms their ADA claim. See Pls.’ Opp’n

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12–14. Instead, they make only two arguments: (1) that damages are available under Title
III, “just as with Title II”;4 and (2) that “an action for damages under a state tort statute . .
. is not incompatible with an action for injunctive relief under Title III of the ADA.” Id.
Plaintiffs’ first argument lacks merit, as “money damages are not an option for
private parties suing under Title III of the ADA.” Goodwin v. C.N.J., Inc., 436 F.3d 44, 50
(1st Cir. 2006); see also Dudley, 333 F.3d at 304 (the “compendium of remedies”
afforded by section 12188(a)(1) includes injunctive relief, but not money damages). And
the case plaintiffs rely on for support, Parker v. Universidad de P.R., 225 F.3d 1 (1st Cir.
2000), is not to the contrary. In that case, the First Circuit remanded a Title II case to the
district court, noted that “[n]either the Supreme Court nor this circuit ha[d] decided
whether compensatory damages (other than backpay) are available under § 504 of the
Rehabilitation Act or Title II,” and “express[ed] no opinion on the merits.” Id. at 8
(emphasis added). But Parker is inapposite authority in this case because plaintiffs’
claims are governed by Title III––not Title II––of the ADA.
Turning to plaintiffs’ second argument, it is true that a victim of disability
discrimination may recover damages under a state-law provision even though Title III of
the ADA permits only injunctive relief. See, e.g., Dudley, 333 F.3d at 312 (“Unlike Title
III of the ADA, the enforcement provisions of the [Maine Human Rights Act] allow the
court . . . to assess monetary penalties (up to $10,000 against a first-time offender)”).
Plaintiffs attempt to ground their claim for money damages under Article 1802, which
provides that a person who “causes damages to another through fault or negligence” shall
be liable. P.R. Laws Ann. tit. 31, § 5141. This claim requires “(1) the presence of a
physical or emotional damage; (2) that the damage arose as a consequence of a negligent
or intentional act or omission of the defendant; and (3) that there is a causal nexus
4

I note that plaintiffs make this argument despite stating in another portion of their
opposition that “[t]he only remedy available to a private litigant such as [J.D.S.] is that of
injunctive relief and attorneys’ fees.” Pls.’ Opp’n 11.

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between the damage suffered and said act or omission.” Torres v. KMart Corp., 233 F.
Supp.2d. 273, 275–76 (D.P.R. 2002).
However, an “Article 1802 claim is not cognizable” where it “arises from the
same facts as plaintiff’s claims under the ADA.” Aguirre v. Mayaguez Resort & Casino,
Inc., 59 F. Supp. 3d 340, 357 (D.P.R. 2014). This is so because “the tort provision of the
Civil Code is supplementary to special legislation.” Id. Indeed, as the Puerto Rico
Supreme Court recently explained, “Article 1802 constitutes a general source of law” that
can serve as a vehicle for “emotional distress damages . . . as long as there is no
applicable special law––such as a labor law––that may prohibit or limit such a claim.”
Pagan-Renta v. Walgreens of San Patricio, Inc., 190 D.P.R. 251 (P.R. 2014). For
example, Pagan-Renta held that neither an employee nor his spouse could recover
emotional distress damages under Article 1802 where “a federal statute” (the Family
Medical Leave Act, which has no “local equivalent” in Puerto Rico) barred the employee
from recovering such damages and did “not recognize” that his spouse was entitled to
such damages. Id. at 262, 264.
The complaint in this case re-alleges for the Article 1802 claim the same facts
which formed the basis of plaintiffs’ ADA claim, see Aguirre, 59 F. Supp. 3d at 357, and
claims that defendants are liable “for the damages caused as a result of their
discriminatory conduct towards” plaintiffs. Compl. ¶ 29. But as in Pagan-Renta,
plaintiffs may not claim emotional distress damages under Article 1802 because the
federal statute which governs their claim––Title III––limits their remedy to injunctive
relief. 190 D.P.R. at 262, 264. Thus, plaintiffs’ Article 1802 claims are dismissed.
CONCLUSION
For the foregoing reasons, the motion to dismiss is GRANTED IN PART AND
DENIED IN PART. The following claims are DISMISSED: damages claims premised
on a violation of Title III of the ADA, and plaintiffs’ Puerto Rico Civil Code Article 1802
claims.

Santiago Ortiz, et al. v. Caparra Center Associates, et al., Civil No. 14-1914 (BJM)

IT IS SO ORDERED.
In San Juan, Puerto Rico, this 21st day of March 2016.
S/Bruce J. McGiverin
BRUCE J. MCGIVERIN
United States Magistrate Judge

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