Medina-Rodriguez v. Fernandez Bakery, Inc. et al
Filing
18
OPINION AND ORDER re 11 Motion to Dismiss. The Court DENIES defendants' motion to dismiss for lack of standing, DENIES defendants' 12(b)(1) motion, and DENIES defendants' 12(b)(6) motion with respect to plaintiff's Title III ADA discrimination claim. Defendants' 12(b)(6) motion with respect to plaintiff's Law 131 claim is GRANTED. That claim is DISMISSED WITH PREJUDICE. Signed by Judge Francisco A. Besosa on 06/14/2017. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NORBERTO MEDINA-RODRIGUEZ,
Plaintiff,
v.
Civil No. 16-2578 (FAB)
FERNANDEZ BAKERY, INC. and
JUAN FERNANDEZ-RAMIREZ,
Defendants.
OPINION AND ORDER 1
BESOSA, District Judge.
Before
the
Court
is
defendants
Fernandez
Bakery,
Inc.
(“Bakery”) and Juan Fernandez-Ramirez’s (“Fernandez”) motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Rule
12(b)(6)”).
Plaintiff
Norberto
Medina-Rodriguez
(“Medina”)
brought this action against defendants alleging violations of
Title
III
of
the
Americans
with
Disabilities
Act
(“ADA”).
Additionally, Medina invokes the supplemental jurisdiction of the
Court to adjudicate his claims pursuant to the Puerto Rico Civil
Rights Act under Puerto Rico Law 131 (“Law 131”), P.R. Laws Ann.
tit. 1, §§ 13, 14.
Bakery and Fernandez move to dismiss all claims
for lack of standing, and pursuant to Federal Rule of Civil
Procedure 12(b)(1) (“Rule 12(b)(1)”), arguing that Medina failed
to exhaust administrative remedies and to provide notice to state
1
Audrey Mulholland, a second-year student at American University Washington
College of Law, assisted in the preparation of this Opinion and Order.
Civil No. 16-2578 (FAB)
authorities.
(Docket No. 11 at pp. 4-6.)
(Docket No. 12.)
defendants’
2
Plaintiff opposes.
For the reasons set forth below, the Court DENIES
motion
to
dismiss
for
lack
of
standing,
DENIES
defendants’ Rule 12(b)(1) motion, and GRANTS IN PART and DENIES IN
PART defendants’ Rule 12(b)(6) motion.
I.
FACTUAL BACKGROUND
The Court accepts the following facts as true.
resident of Carolina, Puerto Rico.
Medina is a
(Docket No. 1 at p. 2.)
He is
limited in his ability to sit, stand, and walk as a result of a
permanent
walking
abnormality.
Id.
Medina
has
abnormal,
uncontrollable walking patterns due to a leg injury and bone
damage.
issued
Id.
The Puerto Rico Department of Motor Vehicles has
Medina
permanent
accessible parking spaces.
handicap
permit
number
2015982
for
Id.
On approximately June 24, 2016, Medina visited defendants’
business.
Id.
During this visit, Medina experienced unnecessary
difficulty because no parking space was designated as “accessible”
or “van-accessible.”
Id.
As a result, Medina struggled exiting
his vehicle safely, observing there was “no protection from moving
cars.”
Id. at pp. 8-9.
Medina frequently travels to the area to
conduct a number of activities, including shopping.
Id. at p. 2.
He plans to return to the bakery at some point in the future on
the
contingency
that
modifications
are
made
to
accommodate
Civil No. 16-2578 (FAB)
wheelchair users. 2
December 15, 2016.
3
Id.
He made tentative plans to return on
Id.
Medina is a self-identified “tester” for ADA compliance.
Id.
at p. 2.
As a tester, Medina visits public accommodations to test
barriers
to
access,
proceeds
with
litigation
if
there
are
violations, and then returns to the location to verify compliance. 3
Id. at p. 3.
Medina asserts that he plans to visit the bakery
annually to verify ADA compliance.
Medina
further
asserts
that
Id.
Bakery
and
Fernandez
must
eliminate physical barriers where removal is readily achievable,
and to construct facilities accessible to disabled individuals
whenever alterations to the building are made.
See 42 U.S.C.
§ 12182; 42 U.S.C. § 12183; (Docket No. 1 at p. 6.)
Moreover,
Medina alleges twelve 4 separate violations of the 1991 and 2010
ADA
Accessibility
implementing the ADA.
app. D.
Guidelines
(ADAAG),
federal
regulations
See 28 C.F.R. § 36 app. D; 36 C.F.R. § 1191
These violations include:
(1) lack of accessible route
to the building entrance; (2) lack of accessible route from the
parking lot into the building; (3) parking spaces narrower than 12
2
Medina does not allege that he is a wheelchair user in the complaint.
3
Medina has pursued 35 ADA compliance cases before the District Court of Puerto
Rico as a tester.
4
Plaintiff enumerates thirteen ADA violations in his complaint; violation (k),
however, is a duplicate of violation (h). See Docket No. 1 at p. 11.
Civil No. 16-2578 (FAB)
feet;
(4)
lack
of
4
access
aisles
adjacent
to
parking
spaces;
(5) lack of accessible ramp that meets the slope criteria; (6) lack
of
seating
space
in
the
bakery
accessible
to
persons
with
disabilities; (7) sales and service counters exceeding 36 inches
in height; (8) grab bars in the restroom of improper length or
spacing; (9) failure to provide signs for an accessible restroom;
(10) inadequate turning space in the restroom stall; (11) failure
to provide restroom grab bars at 33 inches minimum and 36 inches
maximum above the floor; and (12) failure to provide restroom
mirrors at the required height above the floor.
pp. 8-11.)
(Docket No. 1 at
Additionally, Medina contends these ADA violations are
evidence of intentional disability discrimination by Bakery and
Fernandez in violation of the Puerto Rico Civil Rights Act pursuant
to Law 131.
II.
Id. at p. 24.
DISCUSSION
A.
Motion to Dismiss for Lack of Standing
Defendants argue that Medina’s claims pursuant to the
ADA and the Puerto Rico Civil Rights Act should be dismissed for
lack of standing.
plaintiff’s
They contend there was no specific injury, the
admitted
status
as
an
ADA
tester
nullifies
the
likelihood of future harm, and the removal of requested barriers
would not redress the injury suffered.
5.)
(Docket No. 11 at pp. 4-
Civil No. 16-2578 (FAB)
5
The doctrine of standing is rooted in Article III of the
Constitution, which confines federal courts to the adjudication of
actual cases and controversies.
See U.S. Const. Art. III, § 2,
cl. 1; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
The
Supreme
Court
articulated
a
three-part
test
in
Lujan
to
determine whether courts have jurisdiction over a plaintiff’s
claim.
Id.
First, the plaintiff must have suffered an “injury in
fact” which is (a) concrete and particularized, and (b) actual and
imminent.
Id.
Second, the injury must have been caused by the
defendant’s conduct.
Id.
Third, it must be likely that the injury
will be redressed by a favorable judicial decision.
1.
Id.
Injury in Fact
Disabled
individuals
suffer
a
concrete
and
particularized injury when they visit an establishment that does
not comply with ADA standards.
Fridas,
Inc.,
Civil
(citation omitted).
No.
See Suarez-Torres v. Restaurantes
16-1912,
Docket
No.
13
(Besosa,
J.)
Additionally, the First Circuit Court of
Appeals has held that a plaintiff bringing a Title III ADA claim
must also “show a real and immediate threat that a particular
barrier will cause future harm.”
Disabled Ams. for Equal Access,
Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005)
(quoting Dudley v. Hannaford Bros. Co., 333 F.3d 299, 305 (1st
Cir. 2003)).
In demonstrating a likelihood of future harm, a
Civil No. 16-2578 (FAB)
6
plaintiff need not “engage in a futile gesture” of continuously
confronting discriminatory barriers, rather, knowledge that those
barriers
remain
in
place
is
sufficient.
12188(a)(1); Dudley, 333 F.3d at 305.
See
42
U.S.C.
§
Furthermore, a disabled
individual deterred from visiting a public accommodation because
of architectural barriers in violation of the ADA has suffered an
actual and imminent harm.
See Disabled Ams. For Equal Access,
Inc., 405 F.3d at 64 (quoting Pickern v. Holiday Quality Foods,
Inc., 293 F.3d 1133, 1138 (9th Cir. 2002)); see also Suarez-Torres,
No. 16-1912, Docket No. 13. (Besosa, J.).
Bakery and Fernandez argue that Medina has failed
to articulate a specific injury.
Court disagrees.
See Docket No. 11 at p. 4.
The
Plaintiff Medina alleges that he encountered
twelve separate ADA violations at the defendants’ bakery that
presented barriers of access to the goods and services provided.
(Docket No. 1 at pp. 8-10.)
The violations outside the facility
and in the parking lot made it difficult for Medina to exit his
vehicle and required him to maneuver unsafely through traffic.
See id.
Medina further states that he is deterred from visiting
the bakery in the future because he is aware that physical barriers
continue to exist.
Id. at p. 16.
Accordingly, the Court finds
that Medina’s assertions are sufficient to establish a concrete
and particularized injury.
Civil No. 16-2578 (FAB)
7
Defendants next challenge whether the injury is
actual and imminent, arguing that ADA “testers” lack standing
because there is very little likelihood of future harm.
No. 11 at p. 5.)
Courts of appeals, however, have concluded that
a “tester” motive does not defeat standing. 5
Supermarkets,
(Docket
Inc.,
733
F.3d
1323,
1332
See Houston v. Marod
(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).
The Supreme Court briefly addressed
the issue within the scope of the Fair Housing Act, summarizing
that if a tester has “suffered injury in precisely the form the
5
Some district courts adopt a minority view, holding that a mere assertion to
return to an establishment to verify ADA-compliance is insufficient to establish
standing. See Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 998,
1003 (W.D.N.C. 2011); see also Nanni v. Aberdeen Marketplace, Inc., No. WMN15-2570, 2016 WL 2347932, at *3 (D. Md. May 4, 2016) (holding that the number
of cases brought by plaintiff “call into question the plausibility” of
plaintiff’s future harm).
Civil No. 16-2578 (FAB)
8
statute was intended to guard against,” then regardless of the
motivation behind bringing the suit, an injury has occurred.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373-74 (1982).
Medina admitted in his complaint that he is a
“tester” whose objective is to discover ADA violations within
public accommodations, after which he frequently proceeds with
litigation.
See Docket No. 1 at p. 3.
In this capacity he intends
to “visit the premises annually to verify its compliance or noncompliance with the ADA.”
Id.
Additionally, Medina alleges
repeatedly that he intends to return to the bakery to “avail
himself of the goods and services” as a customer.
at pp. 2, 7, 13, 19.
See Docket No. 1
Consequently, Medina’s plans to return to
the defendants’ bakery as both a patron and tester establish a
likelihood of future harm as long as the bakery remains ADA noncompliant.
The
Court
is
satisfied
that
Medina
has
alleged
sufficient facts in the complaint to demonstrate that he has
suffered
an
injury
in
fact,
satisfying
the
first
element
of
standing.
2.
Causation
No party disputes that Medina failed to allege the
causation element of standing.
In order to establish causation,
the injury claimed by the plaintiff must have been caused by the
conduct of which the plaintiff complained.
Lujan, 504 U.S. at
Civil No. 16-2578 (FAB)
560-61.
9
This requirement is fulfilled because Medina claims
disability discrimination because of defendants’ failure to remove
architectural barriers in violation of Title III of the ADA.
3.
Redressability
Bakery and Fernandez also claim that any required
modification would not redress Medina’s alleged injury because the
same goods and services will be available “even if the facility
makes a major renovation.”
(Docket No. 11 at pp. 4-5.)
The
alleged injury, however, is not complete lack of access to those
goods and services.
Rather, Medina contends that barriers to
access are the cause of his injuries.
Accordingly, a favorable
decision requiring defendants to remove the architectural barriers
would
eliminate
the
discrimination
experienced
satisfying the third requirement of standing.
by
Medina,
For the reasons
stated above, the Court DENIES defendants’ motion to dismiss for
lack of standing.
B.
Rule 12(b)(1) Motion to Dismiss
1.
Standard of Review
Rule 12(b)(1) allows a court to dismiss a complaint
when
the
alleged.
Court’s
subject-matter
jurisdiction
Fed. R. Civ. P. 12(b)(1).
is
not
properly
The standard applied to a
Rule 12(b)(1) motion is similar to that of a Rule 12(b)(6) motion
because the Court accepts the complaint’s well-pled facts as true
Civil No. 16-2578 (FAB)
10
and views them - and the inferences drawn from them - in a light
most favorable to the pleader.
See Viqueira v. First Bank, 140
F.3d 12, 16 (1st Cir. 1998); see also Soto v. McHugh, 158 F. Supp.
3d 34, 46 (D.P.R. 2016) (Gelpi, J.).
Thus, “[a] district court
must construe the complaint liberally.”
Aversa v. United States,
99 F.3d 1200, 1210 (1st Cir. 1996).
2.
Analysis
Bakery
12(b)(1)
motion
jurisdiction.
to
and
Fernandez
dismiss
for
assert
lack
indirectly
of
a
Rule
subject-matter
They claim “Congress bars Plaintiff from filing in
Federal District Court without first notifying in writing or
applying for relief from the state.”
District
courts
are
divided
on
(Docket No. 11 at p. 6.)
whether
the
notice
and
administrative remedy requirement pursuant to 42 U.S.C. Section
2000a-3(c) 6 is applicable to Title III ADA claims through Section
12188(a)(1). 7 See Daigle v. Friendly Ice Cream Corp., 957 F. Supp.
8, 10 (D.N.H. 1997) (stating the plaintiff must have complied with
6
42 U.S.C. § 2000a-3(c) states that: “In the case of an alleged act or practice
prohibited by this subchapter which occurs in a State . . . which has a State
or local law prohibiting such act or practice and establishing or authorizing
a State or local authority to grant or seek relief from such practice . . . no
civil action may be brought under subsection (a) of this section before the
expiration of thirty days after written notice of such alleged act or practice
has been given to the appropriate State or local authority.”
7 42 U.S.C. § 12188(a)(1) states that:
“The remedies and procedures set forth
in section 2000a-3(a) of this title are the remedies and procedures this
subchapter provides to any person who is being subjected to discrimination on
the basis of disability in violation of this subchapter.
Civil No. 16-2578 (FAB)
11
the notice requirement in order for the court to have jurisdiction
over the ADA claim); but see Bercovitch v. Baldwin School, 964 F.
Supp. 597, 605 (D.P.R. 1997) (“Title III imposes no requirement of
exhaustion of administrative remedies or right to sue letters upon
plaintiffs wishing to bring an ADA claim”), rev’d on other grounds,
133 F.3d 141 (1st Cir. 1998).
The weight of recent authority,
however, allows the Court to conclude that Title III of the ADA
imposes
no
requirement
to
provide
notice
to
state
or
local
authority or to exhaust administrative remedies prior to filing
suit.
See Iverson v. Comsage, Inc., 132 F. Supp. 2d 52, 56 (D.
Mass. 2001); Tanner v. Wal-Mart Stores, Inc., No. 99-44-JD, 2000
WL 620425, at *5 (D.N.H. Feb. 8, 2000).
The Ninth Circuit Court
of Appeals is the only appeals court to address the issue and has
affirmed this position, concluding that under a plain language
interpretation,
section
section
2000a-3(a),
12188(a)(1)
omitting
the
refers
notice
explicitly
provision
of
only
to
section
2000a-3(c). See Botosan v. Paul McNally Realty, 216 F.3d 827, 832
(9th Cir. 2000). 8
Pursuant to expressio unius, “the incorporation
of one statutory provision to the exclusion of another must be
presumed intentional.”
Id.
In sum, the Court holds that Medina
was under no obligation to provide notice or exhaust administrative
8
A case relied upon by the defendants, Mayes v. Allison, 983 F. Supp. 923, 925
(D. Nev. 1997), has been abrogated by the Ninth Circuit Court of Appeals decision
and is no longer compelling law.
Civil No. 16-2578 (FAB)
12
remedies prior to bringing a Title III ADA claim in federal
district court.
The Rule 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction is DENIED.
C.
Rule 12(b)(6) Motion to Dismiss
1.
Standard of Review
Pursuant to Rule 12(b)(6), a defendant may move to
dismiss an action for failure to state a claim upon which relief
can be granted.
12(b)(6)
motion,
See Fed. R. Civ. P. 12(b)(6).
a
complaint
must
contain
To survive a Rule
sufficient
factual
matter “to state a claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
A court
must decide whether the complaint alleges sufficient facts to
“raise a right to relief above the speculative level.” Id. at 555.
In so doing, a court accepts as true all well-pleaded facts and
draws all reasonable inferences in the plaintiff’s favor.
v. Hurley, 514 F.3d 87, 90 (1st. Cir. 2008).
Parker
Although “the
elements of a prima facie case may be used as a prism to shed light
upon the plausibility of the claim,” it is “not necessary to plead
facts sufficient to establish a prima facie case” in order to
survive a motion to dismiss.
Rodriguez-Reyes v. Molina-Rodriguez,
711 F.3d 49, 54 (1st Cir. 2013).
Civil No. 16-2578 (FAB)
2.
13
Analysis: ADA Title III Claim
Medina’s first claim is discrimination on the basis
of his disability in violation of Title III of the ADA.
No. 1 at p. 12.)
(Docket
He argues that various physical barriers have
denied him “the benefits of services, programs, and activities of
the [f]acility.”
Id.
Bakery and Fernandez argue that the ADA
Title III claim should be dismissed pursuant to Rule 12(b)(6) for
“lack
of
specificity”
allegations.”
and
for
including
only
(Docket No. 11 at pp. 1-2.)
“speculative
Defendants’ assert
that Medina has not “provided substantial evidence” to allege an
ADA Title III claim.
Id. at 3.
Congress enacted the ADA to “address the major
areas
of
discrimination
disabilities.”
Dudley,
faced
333
day-to-day
F.3d
at
303
by
people
(quoting
42
with
U.S.C.
§ 12101(b)(4)).
Title III of the ADA specifically addresses
“discrimination
by
accommodation.”
privately
operated
places
Id.; see also 42 U.S.C. § 12182.
of
public
Title III states
generally that:
No 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 public accommodation.
42 U.S.C. § 12182(a).
Civil No. 16-2578 (FAB)
14
In order to establish a prima facie case pursuant
to Title III of the ADA, the plaintiff must demonstrate that (1) he
or she has a qualified disability under the ADA, (2) that the
defendant operates a place of public accommodation, and (3) that
the plaintiff was discriminated against as a result of his or her
disability.
See Powell v. Nat’l. Bd. of Med. Exam’rs, 364 F.3d
79, 85 (2d Cir. 2004); Marradi v. K&W Realty Inv. LLC, 212 F. Supp.
3d 239, 245 (D. Mass. 2016); Disabled Ams. for Equal Access, Inc.
v. Compra Hosp. Pavia Inc., Civil No. 02-1639, 2004 WL 5568603, at
*6 (D.P.R. Aug. 27, 2004) (Dominguez, J.).
The Court will examine
each of these elements to determine whether plaintiff Medina has
pled sufficient facts to withstand a Rule 12(b)(6) motion.
a.
Element One:
When
impairment,
the
Supreme
a
ADA Qualified Disability
plaintiff
Court
has
alleges
articulated
a
the
physical
three-step
Bragdon test to determine whether that impairment is a qualified
disability under the ADA.
See Bragdon v. Abbott, 524 U.S. 624,
631 (1998); see also Ramos-Echevarria v. Pichis, Inc., 659 F.3d
182, 187 (1st Cir. 2011).
First, a plaintiff must establish that
he or she suffers from a physical or mental impairment.
Echevarria, 659 F.3d at 187.
Ramos-
Second, a plaintiff must demonstrate
that his or her impairment affects major life activities of central
importance.
Id.
Major
life
activities
include
“caring
for
Civil No. 16-2578 (FAB)
oneself,
performing
15
manual
tasks,
seeing,
sleeping, walking, standing, [and] sitting.”
hearing,
eating,
29 C.F.R. § 1630.2.
Third, a plaintiff must demonstrate that his or her impairment
“substantially
limits”
that
major
life
activity.
Ramos-
Echevarria, 659 F.3d at 187.
In his complaint, Medina claims a physical
impairment in the form of a permanent walking abnormality as a
result of a leg injury and bone damage.
(Docket No. 1 at p. 2.)
Medina has stated that as a result of his walking abnormality he
is unable to engage in the activities of sitting, standing, and
walking,
providing
evidence
limits major life activities.
that
his
impairment
substantially
(Docket No. 1 at p. 2.)
Defendants
do not dispute that Medina is impaired within the meaning of the
ADA.
The Court is satisfied that Medina has alleged sufficiently
that he is an individual with a qualified disability pursuant to
the ADA.
b.
Element Two:
Place of Public Accommodation
The second requirement to bring a claim under
Title III of the ADA is that a defendant “owns, leases (or leases
to), or operates a place of public accommodation.”
§ 12182(a).
Pursuant
to
the
statute,
public
42 U.S.C.
accommodation
includes “a bakery, grocery store, clothing store, hardware store,
shopping
center,
or
other
sales
or
rental
establishment.”
Civil No. 16-2578 (FAB)
16
42 U.S.C. § 12181(7)(e).
Defendants own and operate Fernandez
Bakery, a bakery encompassed within the statutory definition of
public accommodation. (Docket No. 1 at p. 4.) Accordingly, Medina
has fulfilled the second requirement.
c.
Element Three: Discriminated Against
Lastly, a plaintiff must establish that he or
she
was
discriminated
disability.
different
against
on
42 U.S.C. § 12182(a).
types
discrimination.
of
prohibited
the
basis
of
his
or
her
Title III of the ADA outlines
activities
that
constitute
Disability discrimination includes “a failure to
remove architectural barriers, and communication barriers that are
structural in nature, in existing facilities . . . where such
removal is readily achievable.”
42 U.S.C. § 12182(b)(2)(A)(iv).
This also requires the plaintiff to show that the removal of
architectural
barriers
on
defendant’s
property
is
“readily
achievable, i.e., is easily accomplishable and able to be carried
out
without
much
difficulty
or
expense.”
42
U.S.C.
§
12182(b)(2)(A)(iv); Marradi v. K&W Realty Inv. LLC, Civil Action
No. 16-10038-LTS, 2016 WL 5024198, at *3 (D. Mass. Sep. 15, 2016).
Courts may consider the nature of the ADA violations in determining
Civil No. 16-2578 (FAB)
17
whether it is plausible that their removal is readily achievable.
See Marradi, 212 F. Supp. 3d at 246. 9
Plaintiff Medina asserts discrimination as a
result of defendants’ failure to remove architectural barriers.
See Docket No. 1 at p. 12.
He alleges in the complaint twelve
different ADA violations that present physical barriers of access
to the facility.
Id. at pp. 8-11.
He also claims that these
barriers render the building unsafe, deterring him from returning,
and depriving him “of the meaningful choice of freely visiting the
same accommodations readily available to the general public.”
(Docket No. 1.)
Defendants aver there is no substantial evidence
establishing that Medina was denied access to goods and services
as a result of these barriers.
architectural
barriers
to
(Docket No. 11 at p. 3.)
access
need
not
completely
But,
bar
a
plaintiff from accessing goods and services to be discriminatory.
9
The complaint briefly sets forth additional grounds of discrimination.
Discrimination within Title III of the ADA also includes altering a building
and failing to ensure that the “altered portions of the facility are readily
accessible to and usable by individuals with disabilities.” 42 U.S.C. §
12183(a)(2).
Medina states that the building has been altered since 2010.
(Docket No. 1 at p. 12.) He does not, however, support this statement with any
additional information. Although Medina details twelve violations of the ADAAG,
it is unclear whether the areas where the violations occurred pertain to the
new construction. For purposes of addressing a Rule 12(b)(6) motion, however,
the plaintiff’s assertion regarding a failure to remove architectural barriers
in existing facilities is sufficient. Medina should be aware that to assert
discrimination pursuant to 42 U.S.C. § 12183(a)(2), more evidence will be
required. See Disabled Ams. for Equal Access, Inc., 2004 WL 5568603, at *11
(Dominguez, J.) (denying summary judgment where plaintiff failed to provide
evidence of whether a facility was an existing facility or a new construction
because of differing ADA compliance standards).
Civil No. 16-2578 (FAB)
18
See Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1041 n.4 (9th Cir.
2008).
The Court also rejects the defendants’ assertion that
plaintiff “failed to attach the necessary exhibits required to
prove the conditions precedent to the bringing of this action”
because “evidence proving the allegations in the complaint is not
required” to survive a Rule 12(b)(6) motion.
(Docket No. 11 at
p. 10.); Rodriguez-Vazquez v. Consejo de Titulares del Condominio
el Canton Mall, No. 15-2633, 2017 WL 908267, at *4 (D.P.R. Jan. 1,
2017) (McGiverin, J.) (citing Foley v. Wells Fargo Bank, N.A., 772
F.3d 63, 72 (1st Cir. 2014)).
Consequently, the complaint set
forth sufficient facts demonstrating defendants’ alleged failure
to remove architectural barriers in violation of Title III of the
ADA.
Additionally, Medina states that all of the
barriers are “readily achievable to modify” to bring the building
into compliance, and “can be easily accomplished and are able to
be carried out without much difficulty or expense.”
at p. 12.)
(Docket No. 1
Although Medina fails to specify exactly how each of
the barriers would be easily removed, in order to survive a Rule
12(b)(6) motion he need only allege a plausible claim that their
removal is readily achievable.
See Melo v. S. Broadway Law Realty
Tr., Civil Action No. 1:15-cv-13475-FDS, 2016 WL 393258, at *2 (D.
Mass. Feb. 1, 2016) (denying motion to dismiss even where plaintiff
Civil No. 16-2578 (FAB)
19
only stated that the removal of twenty-three barriers was readily
achievable
because
violations).
Medina.
that
claim
was
plausible
considering
the
Granted, the burden of providing evidence rests with
The
Court
acknowledges,
however,
that
“whether
the
plaintiff can ultimately carry that burden is not material to the
question of whether the complaint has adequately alleged a prima
facie claim.”
Id.
After reviewing the alleged architectural
barriers, the Court draws on “its judicial experience and common
sense” to determine the plausibility of their removal.
Junta de Gobierno de Servicio de Emergencia.
Torres v.
91 F. Supp. 3d 243,
249 (D.P.R. 2015) (Gelpi, J.) (quoting Iqbal, 556 U.S. at 678-79).
This Court finds it plausible that removing the alleged barriers
is readily achievable, including modifying parking lot spaces,
adding
seating
in
the
food
court
accessible
to
persons
with
disabilities, and adding grab bars and accessible restroom signs.
Because
the
complaint
sets
forth
twelve
architectural barriers in violation of the ADA, each of which may
be removed, Medina has pled sufficient facts to bring a Title III
ADA claim.
Accordingly, the Rule 12(b)(6) motion is DENIED.
3.
Analysis: Puerto Rico Civil Rights Act Claim
Medina’s second claim is intentional disability
discrimination in violation of Law 131.
Law 131 provides:
(Docket No. 1 at p. 22.)
Civil No. 16-2578 (FAB)
20
No person shall be denied in Puerto Rico any access,
service, and equal treatment in public places and
businesses and in the means of transportation because of
political, religious, race, color or sex issues, or for
of any other reason not applicable to all person in
general.
P.R. Laws Ann. tit. 1, § 13. Disability is not a protected category
enumerated under Law 131.
Puerto
Rico
Bill
of
Medina attempts to demonstrate that the
Rights
for
Persons
with
Disabilities
is
evidence that the courts should interpret Law 131 as encompassing
disability as a protected category.
(Docket No. 1 at p. 23.)
Puerto
and
Rico
law,
however,
addresses
prohibits
disability
discrimination under a separate statute with separate remedies,
Law 44, the state equivalent of the ADA, which is not addressed in
the complaint.
P.R. Laws Ann. tit. 1, §§ 501-511b.
“Disability
does not fall within the purview of Law 131” and so plaintiff has
not stated a claim upon which relief can be granted.
Suarez-
Torres v. Sandia, LLC., Civil No. 16-1882, 2017 WL 590307, at *3
(D.P.R. Feb. 2, 2017) (P. Delgado, J.).
The Court GRANTS the Rule
12(b)(6) motion regarding the Puerto Rico Civil Rights claim and
dismisses that claim with prejudice.
IV.
CONCLUSION
For the reasons discussed above, the Court DENIES defendants’
motion to dismiss for lack of standing, DENIES defendants’ 12(b)(1)
motion, and DENIES defendants’ 12(b)(6) motion with respect to
plaintiff’s Title III ADA discrimination claim.
(Docket No. 11.)
Civil No. 16-2578 (FAB)
21
Defendants’ 12(b)(6) motion with respect to plaintiff’s Law 131
claim is GRANTED.
That claim is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
San Juan, Puerto Rico, June 14, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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