Medina-Rodriguez v. Holsum de Puerto Rico, Inc.

Filing 55

MEMORANDUM AND ORDER: Denying 45 "Motion to Dismiss." See attached. Noting 54 "Informative Motion." By September 28, 2017, plaintiff shall show cause as to why the claims pertaining to the Tiendita Holsum in Carolina should not be dismissed in light of Holsums representation. Signed by Judge Pedro A. Delgado-Hernandez on 9/18/2017.(LMR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MEDINA-RODRIGUEZ,
Plaintiffs,
v.

CIVIL NO. 15-3190 (PAD)

HOLSUM DE PUERTO RICO, INC.,
Defendant.

MEMORANDUM AND ORDER
Delgado-Hernández, District Judge.
Plaintiffs Norberto Medina-Rodríguez and María Suarez-Torres sued Holsum de Puerto
Rico, Inc. for declaratory and injunctive relief under Title III of the Americans with Disabilities
Act (ADA), 42 U.S.C. §12101 et seq. (Docket No. 15). Defendant moved to dismiss (Docket No.
45). Plaintiffs opposed dismissal (Docket No. 46). Defendant replied (Docket No. 49) and
plaintiffs surreplied (Docket No. 50). For the reasons explained below, the defendant’s motion is
DENIED.
A. Standing
Defendant challenges the court’s jurisdiction, claiming plaintiffs lack standing to sue for
injunctive relief under the ADA (Docket No. 45 at p. 1). For a plaintiff to have standing, she must
establish three elements: (1) an injury in fact; (2) causation between the injury and the allegedly
wrongful conduct; and (3) that the injury is likely to be redressed by a favorable decision from the
court. See, Lujan v. Defenders. of Wildlife, 504 U.S. 555, 560, 561 (1992)(discussing standing).
Allegedly disabled individuals suffer a concrete and particularized injury for standing purposes
when they visit an establishment that, as described in the pleadings, does not comply with ADA.

Medina-Rodríguez, v. Holsum de Puerto Rico, Inc.
Civil No. 15-3190 (PAD)
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See, Medina-Rodriguez v. Fernández Bakery, Inc., ---F.Supp.3d----, 2017 WL 2571283, * 2, 3
(D.P.R. June 14, 2017)(explaining and applying standing principles in ADA context).
Plaintiff essentially allege that during their visits to defendant’s locations they experienced
unnecessary difficulty and risk due to several barriers, and state those barriers will continue to
cause them harm if not removed. While the allegations are not a model of clarity, they are
sufficient to confer standing at this stage. 1 Causation is present, as both plaintiffs complain of
disability discrimination on account of what they refer to as defendant’s failure to remove allegedly
illegal barriers in violation of Title III of the ADA. And they satisfy the element of redressability,
for a favorable decision ordering defendant to remove those barriers would eliminate the
discrimination plaintiffs allege to have experienced. 2
B. Motives
Defendant attacks plaintiffs’ motives in filing this and other cases they and their record
attorney have initiated in this District (Docket No. 45-1, at pp. 12-15, 18-9). In its view, plaintiffs’
“tester” allegations are nothing but an attempt to “cultivate” “carbon-copy” legal actions pending
in the District, when the real party in interest here is the attorney. Id. at pp. 18-19. To that end, it
questions the plausibility of the pleadings by way of comparing their nonapplicability to the factual

1

As noted by the court in Medina-Rodriguez, however, some district courts follow a minority view, holding that a
mere assertion to return to an establishment to verify ADA – compliance is insufficient to establish standing.
2

Even though plaintiffs are self-described “testers” (Docket No. 46 at p. 4 n.2) “tester” motive does not defeat
standing. See Medina-Rodriguez, 2017 WL 2571283 at *2 n.5 (collecting cases); Houston v. Marod Supermarkets,
Inc., 733 F.3d 1323, 1332 (11th Cir. 2013) (concluding that plaintiff's status as tester does not void his standing to
bring a Title III ADA claim because motive is irrelevant); Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir.
2004) (holding testers have standing to sue under Title II of the ADA); Kyles v. J.K. Guardian Sec. Servs., Inc., 222
F.3d 289, 298 (7th Cir. 2000) (determining that employment discrimination testers have standing to sue and noting
the public benefit in uncovering and eliminating discriminatory practices); cf. Harty v. Simon Prop. Grp., L.P., 428
Fed.Appx. 69, 70 (2nd Cir. 2011) (affirming standing when plaintiff plans to return to facility both as patron and
tester).

Medina-Rodríguez, v. Holsum de Puerto Rico, Inc.
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context at hand, pointing to similar allegations in every lawsuit that the same attorney has filed.
Id. at p. 16.
The court already referred this and 26 other cases the same attorney filed to U.S. Magistrate
Judge Bruce McGiverin to receive evidence, hold hearings, perform legal analysis and issue a
report and recommendation to determine whether the actions are frivolous or malicious (Docket
No. 53). In consequence, the court will grant defendant leave to renew its request to dismiss on
plausibility grounds should the Magistrate Judge’s findings warrant doing so, albeit the factual
basis for, and accuracy of the pleadings may be explored during discovery.
C. Damages/Compliance
Defendant requests that a damages claim predicated on disability under the Puerto Rico Civil Rights
Act, Law 131 of May 13, 1943, as amended, which plaintiff included in the complaint but dropped from
the amended complaint be dismissed with prejudice (Docket No. 45 at p. 2). The operative claims are those
set in the amended complaint. Thus, there is no need to address the merits – if any – of any Law 131 claim
in this context.
Finally, defendant contends that it has already complied with ADA by removing all barriers at the
Tiendita in Carolina in accordance with the standard applicable to a facility designed and constructed before
January 26, 1993. Plaintiffs seem to concede this matter, but no formal position was advanced in their
opposing papers. Even though the court understands that the allegations are not limited to the Carolina
location, plaintiffs shall show cause, by September 28, 2017, as to why the claims pertaining to the Tiendita
Holsum in Carolina should not be dismissed in light of Holsum’s representation.
D.

Conclusion

In view of the foregoing, the motion to dismiss at Docket No. 45 must be denied. An Order
for the parties to file a Joint Pretrial Conference Report will follow.

Medina-Rodríguez, v. Holsum de Puerto Rico, Inc.
Civil No. 15-3190 (PAD)
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SO ORDERED.
In San Juan, Puerto Rico, this 18th day of September, 2017.
s/Pedro A. Delgado-Hernández
PEDRO A. DELGADO HERNANDEZ
U.S. DISTRICT JUDGE