Ingram v. Maryland Fried Chicken Inc
Filing
17
ORDER AND OPINION: It is hereby ORDERED that Defendant's motion to dismiss (ECF No. 8 ) is DENIED. Signed by Honorable Bruce Howe Hendricks on 6/30/2016.(prou, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
)
Civil Action No.: 4:15-cv-3755-BHH
)
Plaintiff, )
)
)
vs.
ORDER AND OPINION
)
)
Maryland Fried Chicken, Inc., a South )
)
Carolina Corporation,
)
Defendant. )
______________________________ )
Marcus Ingram, individually,
This matter is before the Court on Defendant’s motion to dismiss Plaintiff’s
Complaint. (ECF No. 8.) For the reasons set forth below, the motion is DENIED.
BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Marcus Ingram (“Plaintiff”) filed this action on September 20, 2015
pursuant to the American with Disabilities Act (“ADA”). (ECF No. 1.) Plaintiff alleges that
Defendant Maryland Fried Chicken, Inc. (“Defendant” or “Defendant’s restaurant”) has
discriminated and continues to discriminate against him by denying him full and equal
enjoyment of its facility. (Id. at 3.) Specifically, Plaintiff alleges that Defendant’s
restaurant in Myrtle Beach, South Carolina contains architectural barriers that
discriminate against him on the basis of his disability. (Id. at 1–3.) Plaintiff is a paraplegic
and requires the use of a wheelchair for mobility. (Id. at 2.) Although Plaintiff resides in
Atlanta, Georgia, he was raised in High Point, North Carolina, and has close friends and
family members who reside in Lumberton, North Carolina. (Id. at 1–2.) According to
1
Plaintiff, he “has been going to Myrtle Beach and the surrounding area for approximately
ten to fifteen years, approximately once a quarter, with his family and friends.” (Id. at 2.)
Plaintiff alleges that he has been to Defendant’s restaurant “on numerous occasions
prior to filing the subject lawsuit and plans to return to the property in the near future to
avail him of the goods and services and the food and beverages offered to the public at
the property.” (Id.)
On February 5, 2016, Defendant moved to dismiss Plaintiff’s Complaint pursuant
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Specifically, Defendant asserts
that Plaintiff’s allegations have failed to establish Article III standing. Plaintiff filed a
response on March 7, 2016, and attached an affidavit providing further details
concerning his patronage of Defendant’s restaurant.1 The Court has reviewed the
briefing and the applicable law, and now issues the following ruling.
STANDARD OF REVIEW
A Rule 12(b)(1) motion tests subject-matter jurisdiction, which is the court’s
“statutory or constitutional power to adjudicate the case.” Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 89 (1998) (emphasis omitted). A federal court “must determine
that it has subject-matter jurisdiction over [a claim] before it can pass on the merits of
that [claim].” Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474,
479–80 (4th Cir. 2005). When considering a Rule 12(b)(1) motion, the court “may
consider evidence outside the pleadings without converting the proceeding into one for
summary judgment.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459 (4th Cir. 2005)
(quotation omitted); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999)
1
The Court does not reach the issue of whether the affidavit can be considered because it has resolved
the motion based on the allegations within the Complaint.
2
(quotation omitted). Plaintiff bears the burden of establishing that this court has subjectmatter jurisdiction over his claims. See, e.g., Steel Co., 523 U.S. at 104; Evans, 166 F.3d
at 647; Richmond, Fredericksburg & Potomac R.R. v. United States, 945 F.2d 765, 768
(4th Cir. 1991). However, “when a defendant asserts that the complaint fails to allege
sufficient facts to support subject[-]matter jurisdiction, the . . . court must apply a
standard patterned on Rule 12(b)(6) and assume the truthfulness of the facts alleged [in
the complaint and any additional materials].” Kerns v. United States, 585 F.3d 187, 193
(4th Cir. 2009).
A Rule 12(b)(6) motion “tests the legal sufficiency of [a] complaint.” Randall v.
United States, 30 F.3d 518, 522 (4th Cir. 1994). To survive such a motion, a complaint
must state “a plausible claim for relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at
557). Stated differently, “where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting Fed. R. Civ. P. 8(a)). Still,
Rule 12(b)(6) “does not countenance . . . dismissals based on a judge’s disbelief of a
complaint’s factual allegations.” Colon Health Centers of Am., LLC v. Hazel, 733 F.3d
535, 545 (4th Cir. 2013) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). “A
plausible but inconclusive inference from pleaded facts will survive a motion to
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dismiss . . . .” Sepulveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25, 30 (1st
Cir. 2010) (Souter, J.).
A plaintiff’s complaint should set forth “a short and plain statement . . . showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at
555). To show that the plaintiff is “entitled to relief,” the complaint must provide “more
than labels and conclusions,” and “a formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555. In considering a motion to dismiss under
Rule 12(b)(6), the Court “accepts all well-pled facts as true and construes these facts in
the
light
most
favorable
to
the
plaintiff
. . . .”
Nemet
Chevrolet,
Ltd.
v.
Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009).
DISCUSSION
A.
Article III Standing
Article III of the Constitution restricts the subject matter jurisdiction of the federal
courts to “cases” and “controversies.” The doctrine of standing is “an essential and
unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff establishes Article III standing by
showing: (1) that the plaintiff has “‘suffered an injury in fact—an invasion of a legally—
protected interest which is (a) concrete and particularized and (b) actual or imminent, not
conjectural or hypothetical;’” (2) “‘a causal connection between the injury and the
conduct complained of—the injury has to be fairly traceable to the challenged action of
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the defendant, and not the result of the independent action of some third party not before
the court;’” and (3) that it is “‘likely, as opposed to merely speculative, that the injury will
be redressed by a favorable decision’” from the court. Chambers Med. Techs. of S.C.,
Inc. v. Bryant, 52 F.3d 1252, 1265 (4th Cir. 1995) (alterations omitted) (quoting Lujan,
504 U.S. at 560–61). “The party invoking federal jurisdiction bears the burden of
establishing these elements.” Lujan, 504 U.S. at 561. Because standing is “an
indispensable part of the plaintiff's case, each element must be supported in the same
way as any other matter on which the plaintiff bears the burden of proof.” Id.
The first element requires a plaintiff to “demonstrate an ‘injury in fact’ that is
concrete and particularized, and actual or imminent, as opposed to conjectural or
hypothetical.” Long Term Care Partners, LLC v. United States, 516 F.3d 225, 231 (4th
Cir. 2008). When a plaintiff seeks injunctive relief, the alleged injury in fact must be more
than past exposure to illegal conduct. See, e.g., Lujan, 504 U.S. at 564; City of Los
Angeles v. Lyons, 461 U.S. 95, 102–06 (1983); Suhre v. Haywood Cnty., 131 F.3d 1083,
1090–91 (4th Cir. 1997). Instead, the plaintiff must show a “real or immediate threat that
[she] will be wronged again.” Lyons, 461 U.S. at 111; see O’Shea v. Littleton, 414 U.S.
488, 502 (1974) (“likelihood of substantial and immediate irreparable injury”). This
requirement applies to plaintiffs seeking injunctive relief under the ADA. See, e.g.,
Chapman v. Pier 1 Imports (U.S.), Inc., 631 F.3d 939, 948–49 (9th Cir. 2011) (en banc);
Shotz v. Gates, 256 F.3d 1077, 1081–82 (11th Cir. 2001); Harty v. Luihn Four, Inc., 747
F. Supp. 2d 547, 551–52 (E.D.N.C. 2010), aff’d, 453 F. App’x 347 (4th Cir. 2011) (per
curiam) (unpublished); Tyler v. Kan. Lottery, 14 F. Supp. 2d 1220, 1224–25 (D. Kan.
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1998); Aikins v. St. Helena Hosp., 843 F. Supp. 1329, 1333–34 (N.D. Cal. 1994). A
plaintiff’s mere intent to return to the place where the alleged injury first occurred “‘some
day[,]’ . . . without any description of concrete plans, . . . do[es] not support a finding of
the ‘actual or imminent’ injury that [Article III] require[s].” Lujan, 504 U.S. at 564; see
Lyons, 461 U.S. at 101–07.
B.
Analysis
Here, Defendant argues that Plaintiff cannot establish the requisite standing
because he has failed to allege facts demonstrating that he suffered an injury in fact.
(ECF No. 8-1 at 1.) Citing a factor-based test followed by many federal courts, Defendant
argues that Plaintiff cannot demonstrate more than a speculative intent to return to
Defendant’s restaurant. (Id. at 6–7.) Plaintiff asserts that he can establish standing and
need only do so in accordance with the elements outlined in Lujan. (ECF No. 14 at 4–5.)
In support, Plaintiff cites an unpublished decision from the Fourth Circuit, Daniels v.
Arcade, L.P., 477 F. App’x 125, 129 (4th Cir. 2012) in which the court declined to use the
factor-based test to assess whether the plaintiff suffered an injury in fact. The court found
that “the use of this type of analysis in some cases . . . overly and unnecessarily
complicates the issue at hand.” Daniels, 477 F. App’x at 129. The court instead looked to
the Lujan elements and found that the plaintiff had plausibly alleged that there was a
likelihood that he would suffer future harm. Id. at 129–130. Plaintiff notes that courts in
other jurisdictions have also declined to use to the factor-based test to determine
whether a plaintiff suffered injury in fact and argues that this Court should take a “broad
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view” in its analysis. (ECF No. 14 at 9.) However, Plaintiff contends that he can also
demonstrate injury in fact under the factor-based test if so used by this Court. (Id. at 14.)
Courts have used the factor-based test espoused by Defendant to assess the
credibility of a plaintiff’s intention to return to the defendant’s place of public
accommodation. See, e.g., Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d
998, 1002 (W.D.N.C. 2011), aff’d, 474 F. App’x 369 (4th Cir. 2012); Equal Rights Ctr. v.
Abercrombie & Fitch Co., No. 767 F. Supp. 2d 510, 515–16 (D. Md. 2010); Small v. Gen.
Nutrition Cos., Inc., 388 F. Supp. 2d 83, 89–90 (E.D.N.Y. 2005). This assessment is
helpful to a court’s ultimate determination of whether a plaintiff has indeed suffered an
injury-in-fact. The factors to be considered include: “(1) the plaintiff’s proximity to the
defendant’s place of public accommodation; (2) the plaintiff’s past patronage; (3) the
definiteness of the plaintiff’s plan to return; and (4) the plaintiff’s frequency of nearby
travel.” See, e.g., Norkunas, 777 F. Supp. 2d at 1002.
As Plaintiff notes, the Fourth Circuit expressly refused to endorse this factorbased test in Daniels and instead looked to the plaintiff’s allegations to determine
whether plaintiff sufficiently alleged that he had suffered an injury that was “concrete and
particularized” as well as “actual or imminent.” 477 Fed. App’x at 129. Notably, the
allegations set forth in Daniels differ from those in the instant matter. In Daniels, the
plaintiff brought an ADA action against the defendant’s market, alleging that: (1) he lives
only 20 miles from the market; (2) he “regularly visits” there; and (3) he “intends to
continue to visit the [market] in the future for his shopping needs.” Id. at 127–130. Here,
Plaintiff’s connection to Defendant’s restaurant is less obvious and, therefore, the Court
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finds the factors highlighted above are helpful to determine whether plaintiff’s assertions
that he intends to return to Defendant’s restaurant are credible. See Nat’l All. for
Accessibility, Inc. v. Mehta, LLC, No. CIV.A. 3:12-1963-MBS, 2012 WL 6186334, at *2
(D.S.C. Dec. 12, 2012) (using factor-based test to analyze standing in ADA action postDaniels).
Here, Plaintiff resides in Georgia, about 362 miles away from Defendant’s
restaurant in Myrtle Beach, South Carolina. However, Plaintiff alleges that he has close
friends and family who live in Lumberton, North Carolina, which is about 80 miles away
from Myrtle Beach. According to Plaintiff, he “has been going to Myrtle Beach and the
surrounding area for approximately ten to fifteen years, approximately once a quarter,
with his family and friends.” (ECF No. 1 at 2.) Thus, while Plaintiff does not reside in
close proximity to Defendant’s restaurant, it appears that Plaintiff regularly visits Myrtle
Beach with his family and friends, who live much closer to the area.
Defendant argues that Plaintiff’s allegations of proximity are similar to those made
in another case in this district, in which the court dismissed the plaintiff’s ADA claims for
lack of standing. In Harty v. Burlington Coat Factory of S.C., LLC, No. CIV.A. 3:11-1138MBS, 2012 WL 264688, at *4 (D.S.C. Jan. 30, 2012), the plaintiff, a Florida resident,
brought an ADA action against the defendant’s store located “hundreds of miles away” in
Columbia, South Carolina. Noting this distance, the court found that plaintiff’s allegation
that he “visits South Carolina often on business and plans to continue to visit South
Carolina in the future” did not establish a plausible reason to infer that he is likely to
return to the store in the near future. The Court noted that the plaintiff did not state that
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he frequently visits Columbia, indicating that the court would have altered its finding if the
plaintiff had alleged that he frequently visits the specific town where the store is located.
Here, Plaintiff has alleged that he regularly visits Myrtle Beach, the town in South
Carolina where Defendant’s restaurant is located. Thus, Plaintiff has made a key
allegation expressly found wanting in Harty, rendering the case inapplicable here. The
Court finds that Plaintiff’s distance from Defendant’s restaurant does not preclude the
presence of standing given the allegations in his Complaint.
For example, Plaintiff also alleges he has visited Defendant’s restaurant “on
numerous occasions” prior to bringing this action. In addition, Plaintiff alleges that he
“plans to return to the property in the near future to avail him of the goods and services
and the food and beverages offered to the public at the property.” While Plaintiff fails to
allege a specific date, event, business interest, or other occasion that would bring him to
Defendant’s restaurant, his allegations, when construed in a light most favorable to
Plaintiff, indicate a reasonable likelihood that Plaintiff will return. See Norkunas v.
Seahorse NB, LLC, 720 F. Supp. 2d 1313, 1318 (M.D. Fla. 2010) (finding that “standing
should not be denied to a plaintiff seeking relief under the ADA merely because he
cannot produce evidence of a specific date and time to return”). Plaintiff’s stated intent to
visit Defendant’s restaurant in the near future is plausible given that he has visited Myrtle
Beach regularly for the past ten to fifteen years. Accordingly, the Court finds that the
above factors weigh in favor of finding Plaintiff has credibly alleged his intent to return to
Defendant’s restaurant.
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Defendant also argues that Plaintiff’s status as a “tester” and his extensive
litigation history weighs against finding standing here.2 Plaintiff alleges that he is “both a
bona fide purchaser and a tester.” (ECF No. 14 at 5.) Plaintiff has indeed filed over one
hundred ADA discrimination cases across the United States. However, Defendant has
not submitted any evidence that these prior suits were frivolous. See Daniels, 477 F.
App’x at 130 (declining to consider plaintiff’s prior ADA litigation history where “there is
no indication in the record that either of these two lawsuits was held to have been
frivolous”). While it is somewhat incredulous that Plaintiff intends or intended to visit all of
the places involved in his prior lawsuits, the Court does not find that such an extensive
litigation history precludes finding standing here.3 Indeed, “numerous courts have
rejected the notion that test plaintiffs, or other serial litigants, forfeit their own standing to
sue for discrimination in Title III accessibility cases.” Klaus v. Jonestown Bank & Trust
Co. of Jonestown, PA, 2013 WL 4079946, at *7 (M.D. Pa. Aug. 13, 2013) (citing Access
For The Disabled, Inc. v. First Resort, Inc., 2012 WL 2917915, at *3 (M.D. Fla. July 17,
2012) (“[W]hether [the plaintiff] is an ADA ‘tester’ does not preclude her standing in this
case.”); Harty v. Burlington Coat Factory of Pa., L.L.C., 2011 WL 2415169, at *8 (E.D.
Pa. June 16, 2011) (finding that for purposes of standing, the plaintiff’s allegations
regarding his business connections to the area and his plan to return were more
significant than the fact that the plaintiff had filed more than 200 ADA lawsuits); Access 4
All, Inc. v. Absecon Hosp. Corp., 2006 WL 3109966, at *7 (D.N.J. Oct. 30, 2006)
2
In ADA litigation, “a tester is a qualified individual with a disability who is testing an entity’s compliance
with federal disability statutes.” Judy v. Pingue, 2009 WL 4261389, at *5 (S.D. Ohio Nov. 25, 2009).
3
In a case Plaintiff filed along with the Disabled Patriots of America, Inc. in another jurisdiction, the court
appreciated “Defendant’s concerns about Plaintiffs’ litigation history[,]” but found that “the fact that Plaintiffs
have litigated other ADA claims does not bar them from the Court.” Disabled Patriots of Am., Inc. v.
Gwinnett Point SC, LLC, 2007 WL 4289686, at *1 (N.D. Ga. Dec. 3, 2007).
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(“Indeed, because Plaintiff Esposito is a frequent litigant with the stated goal of ensuring
ADA compliance, his claim of intent to return to the Hampton Inn to do additional
examinations is made more, not less, credible.”)).
In sum, assuming that Plaintiff’s allegations are true and construing all inferences
in his favor, the Court finds that Plaintiff has sufficiently alleged facts establishing an
injury in fact. Accordingly, the Court finds that Plaintiff has standing to pursue, and this
Court has jurisdiction to adjudicate, the claims alleged in the Complaint.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendant’s motion to
dismiss (ECF No. 8) is DENIED.
IT IS SO ORDERED.
/s/Bruce Howe Hendricks
United States District Judge
Greenville, South Carolina
June 30, 2016
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