Gilkerson v. The Chasewood Bank
Filing
38
ORDER denying 7 Motion to Dismiss, 9 Motion to Dismiss, and 17 Amended Motion. BAG has 10 days to file evidence that it has a corporate charter allowing it to sue in Texas. United States Magistrate Judge Frances Stacy to establish new docket control order. Deadlines and hearings from current docket control order are terminated. (Signed by Judge Melinda Harmon) Parties notified.(rvazquez)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
VICTORIA GILKERSON, individually§
and on behalf of all others
§
similarly situated, and BLIND
§
AMBITIONS GROUPS, on behalf of §
its members and all others
§
similarly situated,
§
§
Plaintiffs,
§
§
VS.
§
§
THE CHASEWOOD BANK,
§
§
Defendant.
§
CIVIL ACTION H-13-0132
OPINION AND ORDER
The above referenced putative class action under Federal Rules
of Civil Procedure 23(a) and 23(b)(3) alleges that Defendant The
Chasewood Bank (“Chasewood”) failed to make its automated teller
machine (“ATM”), located at 8500 Cypresswood Drive, Spring, Texas
77379, accessible to blind and visually impaired individuals by
adding required voice guidance and universal tactile key pads,
inter alia, in violation of Title III of the Americans with
Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq., its
implementing regulations (28 C.F.R. §§ 36.101, et seq.), the Texas
Human Resource Code (the “THRC”), Tex. Hum. Res. Code Ann. §
121.001, et seq., the Texas Architectural Barrier Act (the “TABA”),
-1-
Tex. Gov’t Code Ch. 469,1 and its Texas Accessibility Standards
(“TAS”).
Pending before the Court are the following motions:
Chasewood’s
motion
(“Gilkerson’s”)
to
dismiss
original
Plaintiff
Class
Action
Victoria
Complaint2
(1)
Gilkerson’s
pursuant
to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6)(instrument
#7); (2) Chasewood’s second motion to dismiss (#9) Gilkerson’s
First Amended Class Action Complaint3; and (3) Chasewood’s second
amended motion to dismiss (#17) Plaintiff’s First Amended Class
Action Complaint.
Title III of the ADA provides, “No individual shall be
discriminated against on the basis of disability in the full and
equal enjoyment of the goods and services, facilities, privileges,
advantages, or accommodations of any place of public accommodation4
by any person who owns, leases (or leases to), or operates a place
of public accommodation.” 42 U.S.C. § 12182(a). Discrimination in
violation of the Act includes “a failure to take such steps as may
be necessary to ensure that no individual with a disability is
excluded,
denied
services,
segregated
or
otherwise
treated
1
Previously Article 9102 of the Texas Revised Civil Statute,
which was repealed by Acts 2003, 78th Leg., ch. 1276, § 9005(b),
eff. Sept. 1, 2003.
2
Instrument #1.
3
Instrument #8.
4
42 U.S.C. § 121811(7), lists the types of private entities
that are consider public accommodations. Banks are included in §
121811(7)(F).
-2-
differently than other individuals because of the absence of
auxiliary aids and services, unless the entity can demonstrate that
taking such steps would fundamentally alter the nature of the good,
service, facility, privilege, advantage, or accommodation being
offered or would result in an undue burden.”
12182(b)(2)(A)(iii).
42 U.S.C. §
The House Report on the ADA stated, “The
purpose of the ADA is to provide a clear and comprehensive national
mandate to end discrimination against individuals with disabilities
and to bring persons with disabilities into the economic and social
mainstream of American life; to provide enforceable standards
addressing discrimination against individuals with disabilities;
and to ensure that the Federal government plays a central role in
enforcing
these
disabilities.”
standards
on
behalf
of
individuals
H. Rep. No. 101-485, pt. 2, at 22-23 (1990).
with
In a
very broad grant of standing, 42 U.S.C. § 12188(a)(1) provides
injunctive relief
to any person who is being subjected to discrimination on
the basis of disability in violation of this subchapter
or who has reasonable grounds for believing that such
person is about to be subjected to discrimination in
violation of section 12183 of this title. Nothing in
this section shall require a person with disability to
engage in a futile gesture if such person has actual
notice that a person or organization covered by this
subchapter does not intend to comply with its provision.
The THRC § 121.003(a) provides, “Persons with disabilities
have the same right as the able-bodied to the full use and
enjoyment of any public facilities in the state.”
-3-
A failure to
“provide auxiliary aids and services necessary to allow the full
use and enjoyment of the public facility” violates § 121.003(d)(3).
Section 121.002(5) defines “public facilities” as including “any
other place of public accommodation, amusement, convenience, or
resort to which the general public or any classification of persons
from the general public is regularly, normally, or customarily
invited.”
Failure to comply with the TABA and the 2012 TAS
requirements is a violation of the THRC § 121.003(d)91).
Standing
requirements under the THRC are the same as those under federal
law. Hunter v. First National Bank Texas, No. 04:12-CV-00355, 2012
WL 7801699, at *7 (E.D. Pa. Dec. 11, 2012), citing Tex. Workers
Cop. Comm’n v. Garcia, 893 S.W. 2d 504, 517-18 (Tex. 1995), and
Daimler Chrysler Corp. v. Inman, 252 S.W. 3d 299, 304-05 (Tex.
2008)(for injury “plaintiff must be personally aggrieved; his
alleged injury must be “concrete and particularized, actual or
imminent, not hypothetical”).
Unlike the ADA, under which private
plaintiffs may only obtain injunctive relief, monetary damages are
recoverable under the THRC § 121.104(b)(a “person with a disability
deprived of his or her civil liberties may maintain a cause of
action for damages in a court of competent jurisdiction, and there
is a conclusive presumption of damages in the amount of at least
$100 to the person with a disability.”).
Greer v. Mockingbird
Station Partners, L.P., No. Civ. A. 302CV2342K, 2004 WL 2544967,
at *1 (N.D. Tex. Nov. 9, 2004).
-4-
Gilkerson, alone, seek damages
under the THRC § 121.004(b).
This case is one of many controversial putative class actions
proliferating around the country brought often without notice by
disabled individuals,5 who, frequently along with an organization
dedicated to the rights of the disabled, are “serial plaintiffs” or
“testers”6 acting as private attorneys general7 challenging various
5
A number of commentators have opined that the reason why
typically no notice is provided to the defendant is the result of
the ADA’s remedial limitations, which allow only for injunctive
relief and attorney’s fees for prevailing plaintiff’s counsel if
the plaintiff wins a judgment: if plaintiff’s attorneys provide
notice to the defendant, the business could easily make their
premises accessible at minimal cost before or during the litigation
and deprive the attorneys of the recovery of fees.
See, e.g.,
Leslie Lee, Giving Disabled Testers Access to Federal Courts: Why
Standing Doctrine Is Not the Right Solution to Abusive ADA
Litigation Note, 19 Va. J. Soc. Pol’y & L. 319, 354 (Winter 2011)’
Samuel R. Bagenstos, The Perversity of Limited Civil Rights
Remedies: The Case of “Abusive” ADA Litigation, 54 UCLA L. Rev. 1,
6, 14 (Oct. 2006).
6
One court has defined an “ADA ‘tester’” as “an individual
with a disability who repeatedly visits places of public
accommodation with the dual motivation of verifying ADA compliance
along with availing himself or herself with the goods and/or
services available.” McConnell v. Canadian Hills Plaza, 2014 WL
201102, at *1 n.1 (M.D. Pa. Jan. 16, 2014).
Kelly Johnson, in Testers Standing Up For Title III of the
ADA, 29 Case W. Res. L. Rev. 683, 703 (Spring 2009), argues,
Tester standing is imperative to ensure that the
rights guaranteed by the ADA do not become meaningless
abstractions. May people are reluctant to bring lawsuits
against businesses for violations of the ADA or are
unaware of what constitutes a violation under a very
cumbersome and technically detailed statute.
Other
victims of ADA violations may not have the incentive or
the resources to bring ADA lawsuits. Thus testers, as
private attorneys general, serve a vital role in
redressing the injuries suffered due to violations of
Title III of the ADA. Overall, denying injunctive relief
-5-
entities’ noncompliance in their places of public accommodation
with Title III of the ADA, leading to a wide and varied spectrum of
judicial decisions addressing complex issues of, and policies
regarding, standing.
Because the statute does not authorize an
award of damages to a prevailing plaintiff, but only equitable
relief and an award of attorneys’ fees,8 concerns about abusive
litigation
by
plaintiffs’
lawyers
must
be
balanced
against
widespread noncompliance with the ADA and inadequate enforcement of
the civil rights of individuals with disabilities.
See, e.g.,
to individuals who prove they were victims of
discrimination, even as testers, weakens and undercuts
congressional intent to deter and remedy discrimination
through utilization of private individuals to enforce the
statute. The Supreme Court supported the idea of private
attorneys general in the employment context, stating:
“We have rejected the unclean hands defense ‘where a
private suit serves important public purposes.’”
[citations omitted]
Others complain about the burden and congestion of large
numbers of lawsuits filed by serial litigants cluttering up the
courts, especially judges in Florida, or argue that serial
plaintiffs are the professional pawns of a continuing scheme by
lawyers to swindle attorney’s fees. See, e.g., Walter K. Olson,
The ADA Shakedown Racket, The City Journal (Winter 2004), available
at http://www.city-journal.org/html/14_1_the_ada_shakedown.html;
Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1375 (M.D.
Fla. 2004); Footman v. Cheung, 341 F. Supp. 2d 1218 (M.D. Fla.
2004); Molski v. Mandarin Tough Restaurant, 347 F. Supp. 2d 860
(C.D. Cal. 2004), aff’d in part and dismissed in part, 500 F.3d
1047 (9th Cir. 2007), cert. denied, 555 U.S. 1031 (2008), to be
discussed later in this Opinion and Order.
7
See 42 U.S.C. § 12188(a)(1).
The Act also provides for
suits to be brought by the United States Attorney General.
42
U.S.C. § 12188(b).
8
42 U.S.C. § 12188(a)(1).
-6-
Leslie Lee, Giving Disabled Testers Access to Federal Courts:
Why
Standing
ADA
Doctrine
Is
Not
the
Right
Solution
to
Abusive
Litigation Note, 19 Va. J. Soc. Pol’y & L. 319 (Winter 2011); Kelly
Johnson, Testers Standing Up For Title III of the ADA, 29 Case W.
Res. L. Rev. 683 (Spring 2009); Wayne C. Arnold and Lisa Herzog,
How
Many
Vexatious?
Lawsuits
Does
It
Take
to
Declare
an
ADA
Plaintiff
Apparently More Than Judge Rafeedie Thought,” 48-JUL
Orange County Law. 50 (July 2006)9; Samuel R. Bagenstos, The
9
This article criticizes Judge Rafeedie’s ruling in Molski v.
Mandarin Tough Restaurant, 347 F. Supp. 2d 860 (C.D. Cal. 2004),
aff’d in part and dismissed in part, 500 F.3d 1047 (9th Cir. 2007),
cert. denied, 555 U.S. 1031 (2008), which declared serial ADA
plaintiff Jarek Molski a vexatious litigant and ordered his law
firm to obtain leave of court before filing any other claims under
the ADA. The article maintains that federal district courts even
in California have failed to follow Judge Rafeedie’s decision. On
appeal, 500 F.3d at 1061-62, the Ninth Circuit evidenced a more
balanced view on serial ADA litigants and distinguished Molski’s
“trumped up claims of injury”:
[T]he ADA does not permit private plaintiffs to seek
damages, and limits the relief they may seek to
injunctions and attorneys’ fees. We recognize that the
unavailability of damages reduces or removes the
incentive for most disabled persons who are injured by
inaccessible places of public accommodation to bring suit
under the ADA. . . . As a result, most ADA suits are
brought by a small number of private plaintiffs who view
themselves as champions of the disabled. District courts
should not condemn serial litigation as vexatious as a
matter of course. . . . . For the ADA to yield its
promise of equal access for the disabled, it may indeed
be necessary and desirable for committed individuals to
bring serial litigation advancing the time when public
accommodations will be compliant with the ADA. But as
important as this goal is to disabled individuals and to
the public, serial litigation can become vexatious when,
as here, a large number of nearly-identical complaints
contain
factual
allegations
that
are
contrived,
-7-
Perversity of Limited Civil Rights Remedies: The Case of “Abusive”
ADA Litigation, 54 UCLA L. Rev. 1 (Oct. 2006); and Carrie Becker,
Private Enforcement of the Americans With Disabilities Act Via
Serial Litigation:
Abusive or Commendable?, 17 Hastings Women’s
L.J. 93 (2006).
On behalf of a class of similarly situated individuals,
Gilkerson and Blind Ambitions seek a declaration that Chasewood’s
ATMs violate federal and state law and an injunction requiring
Chasewood to update or replace its ATMs so that they are fully
accessible to and independently usable by blind people.
The First Amended Class Action Complaint asserts that this
Court has federal question jurisdiction over Plaintiffs’ claims
under Title III of the ADA pursuant to 28 U.S.C. § 1331 and Title
42 U.S.C. § 12188 (providing for only injunctive relief and no
compensatory damages), and supplemental jurisdiction over the state
law claims under 28 U.S.C. § 1367.
Procedural History
Gilkerson originally filed this action on January 17, 2013.
On March 6, 2013, Chasewood filed its first motion to dismiss (#7),
contending that Gilkerson lacked standing under Rule 12(b)1) to
exaggerated, and defy common sense. False or grossly
exaggerated claims of injury, especially when made with
the intent to coerce a settlement, are at odds with our
system of justice, and Molski’s history of litigation
warrants the need for a pre-filing review of his claims
[citations omitted].
-8-
assert all her federal and state law claims and that her complaint
(#1) failed to state a claim under Rule 12(b)(6).
deficiencies
of
her
initial
pleading,
To cure the
Gilkerson,
instead
of
responding to the motion, filed her First Amended Class Action
Complaint (#8) on March 27, 2013.
This complaint added Plaintiff
Blind Ambitions Groups (“BAG”).
Chasewood then filed a second
motion to dismiss (#9) under Rules 12(b)(1) and 12(b)(6), directed
to the new complaint, incorporating #7, and asserting that both
Gilkerson and BAG lack standing to assert the federal and state law
claims for relief and therefore the Court lacks subject matter
jurisdiction under rule 12(b)(1), and that the amended complaint
fails to state a claim for relief under Rule 12(b)(6).
On June 14, 2013 Chasewood filed its second amended motion to
dismiss (#17) under Rules 12(b)(1) and 12(b)6).
In it Chasewood
asserts that since June 14, 2012, Gilkerson has filed twenty-four
virtually identical class action lawsuits against various financial
institutions under Title III of the ADA and under the THRC (Ex. 1,
listing Gilkerson’s 24 suits and their status) and asks the Court
to take judicial notice of them.
BAG has joined in thirty-three
essentially identical suits involving Gilkerson or a few other
plaintiffs, including six in the Southern District of Texas.
at p.1.
Allegations of
the First Amended Class Action Complaint (#8)
-9-
#17
Gilkerson, who is legally blind and has been totally blind
since birth, is therefore a member of a protected class under the
ADA, 42 U.S.C. § 12102(2), the TCHRA, and the TABA.
She states
that she is an active member of BAG, a Delaware-based, 501(c)(3)
non-profit corporation, registered in the state of Texas, with an
active Texas chapter.
BAG has been working in Texas for more than
a decade providing educational support and advocating accessibility
of goods and services to the blind community.
BAG allegedly “has
had to redirect resources to support its efforts related to the
enforcement of the laws at issue in this case,” i.e., accessibility
of the blind to ATMs.
#8 at ¶ 22.
Chasewood is a Texas state
bank, a public accommodation under 42 U.S.C. § 12181(7)(F), and a
public facility under Tex. Hum. Res. Code Ann. § 121.002(5); it
offers banking services through its ATMs.
Title III of the ADA proscribes disability discrimination in
the activities of places of public accommodation and requires
places of public accommodation to comply with ADA standards and be
easily accessible to, and independently usable by, individuals with
disabilities.
42 U.S.C. § 12181-89.
Financial institutions that
own, operate, control, and or lease ATMs are required under the ADA
and The 2010 Standards for Accessible Design (“2010 Standards”) to
provide ATMs that are fully accessible and independently usable by
blind people.
Section 7 of the 2010 Standards, which became fully
effective on March 15, 2012 and are enforceable through civil
-10-
actions by private plaintiffs, requires ATMs inter alia to be
speech
enabled,
to
have
input
controls
that
are
tactilely
discernable and function keys with specific tactile symbols, and to
provide Braille instructions for initiating the speech mode. These
mandatory accessibility features are intended to allow blind and
visually impaired people to use ATMS independently, without having
to disclose private information to a third party.
According to a
March 7, 2012 Wall Street Journal article, at least 50% of this
country’s ATMs are not in compliance with these laws.
Gilkerson
asserts that a significant number of ATMs in Texas do not comply
with the 2010 Standards and violate the requirements of federal and
state law, many in the geographic zone in which Gilkerson, herself,
usually travels each day.
Gilkerson, who claims that she regularly uses banking services
available through ATMS if they are accessible to blind people,
asserts that after March 15, 2012 she went to Chasewood’s ATM at
8500 Cypresswood Drive and found there was no functional voiceguidance feature.
is
reasonably
accessible
to
She asserts that Chasewood lacks a policy that
calculated
and
to
ensure
independently
that
usable
its
by
ATMs
visually
are
fully
impaired
individuals as required under Section 7 of the 2010 Standards. The
complaint asserts, “Consistent with her fiduciary obligations to
the class, and consistent with her desire to locate accessible ATMS
for her own use, Plaintiff Gilkerson will continue to regularly
-11-
visit the ATM in the future.”
#8, ¶ 14.
She further states that
she will continue to attempt to use that ATM “because she wants to
identify convenient accessible ATM options within the geographic
zone that she typically travels as part of [her] everyday and
weekly activities, and she wants to increase ATM accessibility for
the blind community generally, and in accordance with her fiduciary
obligations as a class representative.”
#8 at ¶ 54.
She also
alleges that “[a] significant percentage of the ATMs that are
located within the geographic zone that Gilkerson typically travels
as part of her everyday and weekly activities do not comply with
the
2010
Standards
and
are
individuals like Plaintiff.”
therefore
Id. at ¶ 58.
inaccessible
to
blind
She also asserts in ¶
56, “An investigation conducted on behalf of Plaintiffs revealed
other accessibility violations within Defendant’s ATM network,” but
she fails to identify a single one.
The First Amended Complaint further points out that the TABA
was passed “to further the policy of this state to encourage and
promote the rehabilitation of persons with disabilities and to
eliminate, to the extent possible, unnecessary barriers encountered
by persons with disabilities whose ability to . . . achieve maximum
personal independence is needlessly restricted.”
§ 469.001.
Regulation
Tex. Gov’t Code
The TABA charges the Texas Commission of Licensing and
(the
“Commission”)
with
adopting
“standards,
specification, and other rules . . . that are consistent with
-12-
standards, specifications, and other rules adopted under federal
law.”
Tex. Gov’t Code § 469.052.
In November 2011 the Commission
approved the Texas Accessibility Standards (the “TAS”), which apply
inter alia to “a privately funded building or facility that is
defined
as
a
‘public
accommodation’
by
the
Americans
with
Disabilities Act of 1990 (42 U.S.C. § 12181), and its subsequent
amendments . . . ,” to become effective also on March 15, 2012.
Tex. Gov’t Code §468.003(4). Chapter 7 (Communication Elements and
Features of the 2012) is nearly a replica of the accessibility
guidelines for ATMs in the federal 2010 Standards.
References in
the First Amended Complaint to the 2010 Standards incorporate the
parallel measures in the 2012 TAS. Plaintiff points out that while
remediation of an architectural barrier at a public accommodation
brings it into compliance with the ADA and provides a permanent or
long-term response, an addition of, or repair to, a speech enabling
function and other related accessibility requirements provided at
an ATM of a public accommodation requires periodic monitoring to
demonstrate that the public accommodation is not only in compliance
in the first place, but also that it remains in compliance.
Without injunctive relief, Gilkerson contends that she will be
unable to continue to use Chasewood’s ATM independently, in
violation of her rights under the ADA.
The
Court
currently
does
not
address
the
class
action
allegations as the issue of certification is not yet before it.
-13-
Standards of Review
“When a motion to dismiss for lack of jurisdiction ‘is filed
in conjunction with other Rule 12 motions, the court should
consider the Rule 12(b)(1) jurisdictional attack before addressing
any attack on the merits.”
Crenshaw-Logal v. City of Abilene,
Texas, No. 11-10264, 2011 WL 3363872, *1 (5th Cir. Aug. 4, 2011),
quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001);
see also Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d
(5th Cir. Mar. 15, 2011); Fed. R. Civ. P. 12(h)(3).
757, 762
If a complaint
could be dismissed for both lack of jurisdiction and for failure to
state a claim, “the court should dismiss only on the jurisdictional
ground under [Rule] 12(b)(1), without reaching the question of
failure to state a claim under [Rule] 12(b)(6).”
Crenshaw-Logal,
2011 WL 3363872, *1, quoting Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977).
The reasons behind this practice are to
preclude courts from issuing advisory opinions and barring courts
without jurisdiction “‘from prematurely dismissing a case with
prejudice.’”.
Id., citing Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 101 (1998), and Ramming v. United States, 281
F.3d 158, 161 (5th Cir. 2001).
Rule 12(b)(1) allows a party to move for dismissal of an
action
for
lack
of
subject
matter
jurisdiction.
The
party
asserting that subject matter exists, here the plaintiff, must bear
the burden of proof for a 12(b)(1) motion.
-14-
Ramming v. United
States, 281 F.3d 158, 161 (5th Cir. 2001).
In reviewing a motion
under 12(b)(1) the court may consider (1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus
the court’s resolution of disputed facts.
Williamson v. Tucker,
645 F.2d 404, 413 (5th Cir. 1981).
A motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(1) is characterized as either a “facial” attack,
i.e., the allegations in the complaint are insufficient to invoke
federal jurisdiction, or as a “factual” attack, i.e., the facts in
the
complaint
questioned.
supporting
subject
matter
jurisdiction
are
In re Blue Water Endeavors, LLC, Bankr. No. 08-10466,
Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011),
citing Rodriguez v. Texas Comm’n of Arts, 992 F. Supp. 876, 878-79
(N.D. Tex. 1998), aff’d, 199 F.3d 279 (5th Cir. 2000).
A facial
attack happens when a defendant files a Rule 12(b)(1) motion
without accompanying evidence.
521, 523 (5th Cir. 1981).
Paterson v. Weinberger, 644 F.2d
In a facial attack, allegations in the
complaint are taken as true.
Blue Water, 2011 WL 52525 at *3,
citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th
Cir. 1995).
If it is a factual attack, the Court may consider any evidence
(affidavits, testimony, documents, etc.) submitted by the parties
that is relevant to the issue of jurisdiction.
-15-
Id., citing Irwin
v. Veterans Admin., 874 F.2d 1092, 1096 (5th Cir. 1989).
A
defendant making a factual attack on a complaint may provide
supporting affidavits, testimony or other admissible evidence.
Patterson v. Weinberger, 644 F.3d 521, 523 (5th Cir. 1981).
The
plaintiff, to satisfy its burden of proof, may also submit evidence
to show by a preponderance of the evidence that subject matter
jurisdiction exists.
Id.
The court’s consideration of such
matters outside the pleadings does not convert the motion to one
for summary judgment under Rule 56(c).
Robinson v. Paulson, H-06-
4083, 2008 WL 4692392 at *10 (S.D. Tex. Oct. 28, 2008), citing
Garcia, 104 F.3d at 1261.
“Unlike in a facial attack where
jurisdiction is determined upon the basis of allegations of the
complaint, accepted as true[,] when a factual attack is made upon
federal jurisdiction, no presumption of truthfulness attaches to
the plaintiffs’ jurisdictional allegations, and the court is free
to weigh the evidence and satisfy itself as to the existence of its
power to hear the case.
In a factual attack, the plaintiffs have
the burden of proving that federal jurisdiction does in fact
exist.”
Evans v. Tubbe, 657 F.2d 661, 663 (5th Cir. 1981).
In
resolving a factual attack on subject matter jurisdiction under
Rule 12(b)(1), the district court, which does not address the
merits of the suit,10 has significant authority “‘to weigh the
10
As the court explained in Taylor v. Dam, 244 F. Supp. 2d
747, 753 (S.D. Tex. 2003),
-16-
evidence and satisfy itself as to the existence of its power to
hear the case.’”
4692392,
*10
Robinson v. Paulson, No. H-06-4083, 2008 WL
(S.D.
Tex.
Oct.
22,
2008),
quoting
Garcia
v.
Copenhaver, Bell & Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997),
and citing Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir.
1986).
Here Plaintiffs and Defendant have filed extrinsic evidence
attached
to
Defendant’s
motion
to
dismiss
and
Plaintiffs’
Opposition, so the Court reviews the dispute as a factual attack.
Federal Rule of Civil Procedure 8(a)(2) provides, “A pleading
that states a claim for relief must contain . . . a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
pursuant
When a district court reviews a motion to dismiss
to
Fed.
R.
Civ.
P.
12(b)(6),
it
must
construe
It is well settled that “a district court has broader
power to decide its own right to hear the case than it
has when the merits of the case are reached.”
[Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.).
cert. denied, 454 U.S. 897 (1981).]
“Jurisdictional
issues are for the court--not the jury--to decide,
whether they hinge on legal or factual determinations.
Id. To determine whether jurisdiction exists, the court
will generally resolve any factual disputes from the
pleadings and the affidavits submitted by the parties.
See Espinoza v. Missouri Pac. R.R. Co., 754 F.2d 1247,
1248 n.1 (5th Cir. 1985). The court may also conduct an
evidentiary hearing and “may hear conflicting written and
oral evidence and decide for itself the factual issues
which determine jurisdiction.” Williamson, 645 F.2d at
413; see Menchaca v. Chrysler Credit Corp.,613 F.2d 507,
511-12 (5th Cir.), cert. denied, 449 U.S. 953 . . .
(1980).
-17-
the
complaint in favor of the plaintiff and take all well-pleaded facts
as true. Randall D. Wolcott, MD, PA v. Sebelius, 635 F.3d 757, 763
(5th Cir. 2011), citing Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir.
2009).
“While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, . . . a
plaintiff’s
obligation
‘entitle[ment]
to
to
relief’
provide
the
‘grounds’
requires
more
than
of
his
labels
and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do . . . .”
S.
Ct.
1955,
1964-65
Bell Atlantic Corp. v. Twombly, 127
(2007)(citations
omitted).
“Factual
allegations must be enough to raise a right to relief above the
speculative level.”
Federal
Practice
Id. at 1965, citing 5 C. Wright & A. Miller,
and
Procedure
§
1216,
pp.
235-236
(3d
ed.
2004)(“[T]he pleading must contain something more . . . than . . .
a statement of facts that merely creates a suspicion [of] a legally
cognizable right of action”). “Twombly jettisoned the minimum
notice pleading requirement of Conley v. Gibson, 355 U.S. 41 . . .
(1957)[“a complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief”], and instead required that a complaint allege enough facts
to state a claim that is plausible on its face.”
St. Germain v.
Howard,556 F.3d 261, 263 n.2 (5th Cir. 2009), citing In re Katrina
-18-
Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007)(“To survive
a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough
facts to state a claim to relief that is plausible on its face.’”),
citing Twombly, 127 S. Ct. at 1974).
“‘A claim has facial
plausibility when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable for the
misconduct alleged.’”
Montoya v. FedEx Ground Package System,
Inc., 614 F.3d 145, 148 (5th Cir. 2010), quoting Ashcroft v. Iqbal,
129 S. Ct. 1937, 1940 (2009).
The plausibility standard is not
akin to a “probability requirement,” but asks for more than a
“possibility that a defendant has acted unlawfully.”
U.S. at 556.
Twombly, 550
Dismissal is appropriate when the plaintiff fails to
allege “‘enough facts to state a claim to relief that is plausible
on its face’” and therefore fails to “‘raise a right to relief
above the speculative level.’”
Montoya, 614 F.3d at 148, quoting
Twombly, 550 U.S. at 555, 570.
In Ashcroft v. Iqbal, 129 S. Ct. at 1940, the Supreme Court
state that “only a complaint that states a plausible claim for
relief survives a motion to dismiss,” a determination involving “a
context-specific task that requires the reviewing court to draw on
its judicial experience and common sense.”
“[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements do not suffice” under Rule 12(b).
1949.
The
plaintiff
must
plead
-19-
specific
Iqbal, 129 S. Ct. at
facts,
not
merely
conclusory allegations, to avoid dismissal.
Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000). “Dismissal
is proper if the complaint lacks an allegation regarding a required
element necessary to obtain relief . . . .“
Rios v. City of Del
Rio, Texas, 444 F.3d 417, 421 (5th Cir. 2006), cert. denied, 549
U.S. 825 (2006).
“Rule 12(b) is not a procedure for resolving contests about
the facts or the merits of a case.”
Authority of City of Port Arthur, Tex.,
Gallentine v. Housing
F. Supp. 2d
, Civ.
A. No. 1:12-CV-417, 2013 WL 244651, *3 (E.D. Tex. Jan. 22, 2012),
citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure:
Civil 2d § 1356, at 294 (1990).
As noted, on a Rule 12(b)(6) review, although generally the
court may not look beyond the pleadings, the Court may examine the
complaint, documents attached to the complaint, and documents
attached to the motion to dismiss to which the complaint refers and
which are central to the plaintiff’s claim(s), as well as matters
of public record.
Lone Star Fund V (U.S.), L.P. v. Barclays Bank
PLC, 594 F.3d 383, 387 (5th Cir. 2010), citing Collins, 224 F.3d at
498-99; Cinel v. Connick, 15 F.3d 1338, 1341, 1343 n.6 (5th Cir.
1994).
See also United States ex rel. Willard v. Humana Health
Plan of Tex., Inc., 336 F.3d 375, 379 (5th Cir. 2003)(“the court may
consider . . . matters of which judicial notice may be taken”).
Taking judicial notice of public records directly relevant to the
-20-
issue in dispute is proper on a Rule 12(b)(6) review and does not
transform the motion into one for summary judgment.
Stryker Corp., 631 F.3d 777, 780 (5th Cir. 2011).
Funk v.
“A judicially
noticed fact must be one not subject to reasonable dispute in that
it
is
either
(1)
generally
known
within
the
territorial
jurisdiction of the trial court or (2) capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned.”
Fed. R. Evid. 201(b).
Standing
Standing is an issue of subject matter jurisdiction that
must be found before the merits of a case can be addressed by a
court.
Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 93-102 (1998); Cox v. City of Dallas, Tex., 256 F.3d 281, 303
(5th Cir. 2001). Federal subject matter jurisdiction is limited to
“cases” and “controversies,” thus giving rise to the requirement of
standing.
U.S. Const. art. III, § 2.
The party seeking the
exercise of jurisdiction over his claims bears the burden of
pleading sufficient facts showing he is the proper party to invoke
judicial resolution of his suit.
FW/PBS, Inc. v. City of Dallas,
493 U.S. 215, 231 (1990), overruled on other grounds, City of
Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774 (2004); Rohm & Haas
Texas, Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 208 (5th
Cir. 1994).
Standing
encompasses
“both
-21-
constitutional
limitations
on
federal-court
exercise.”
For
jurisdiction
and
prudential
limitations
on
its
Warth v. Seldin, 422 U.S. 422 U.S. 490, 498 (1975).
each
claim,
a
plaintiff
must
demonstrate,
as
the
“irreducible minimum of standing,” that he satisfies the three
constitutional (Article III) requirements: (1) injury in fact; (2)
causation; and (3) redressibility. Bennett v. Spear, 520 U.S. 154,
167 (1997); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992); Cox, 256 F.3d a 303; Cibolo Waste, Inc. v. City of San
Antonio, 718 F.3d 469, 473 (5th Cir. 2013).
The injury-in-fact
requirement is qualitative, not quantitative.
Cramer v. Skinner,
931 F.2d 1020, 1027 (5th Cir. 1991).
Therefore an "injury in fact"
must be "an invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical." Lujan, 504 U.S. at 560. A plaintiff
demonstrates causation by showing that the injury is "'fairly . .
.
trace[able] to the challenged action of the defendant, and not
. . . th[e] result [of] the independent action of some third party
not before the court.'"
Cox, 256 F.3d at 304, quoting Simon v.
Easter Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976).
To
demonstrate redressibility, the plaintiff must show that it is
"likely, as opposed to merely speculative, that the injury will be
redressed by a favorable [judicial] decision."
Id.
Even if the plaintiff establishes constitutional standing, the
court may consider if he demonstrates prudential standings. Cibolo
-22-
Waste, 718 F.3d at 474 & n.4 (“[P]rudential standing, while not
jurisdictional, nonetheless affects justiciability.”). Prudential
standing requirements are judicially created limits that “encompass
‘the general prohibition on a litigant’s raising another person’s
legal
rights,
the
rule
barring
adjudication
of
generalized
grievances more appropriately addressed in the representative
branches, and a requirement that a plaintiff’s complaint fall
within the zone of interests protected by the law invoked.’”
Servicios Azucareros de Venezuela, C.A. v. John Deere Thibideaux,
Inc., 702 F.3d 794, 801 (5th Cir. 2012),quoting Elk Grove Unified
Sch. Dist. v. Newdow, 542 U.S. 1, 12 (2004); Nat’l Solid Waste
Management Ass’n v. Pine Belt Regional Solid Waste Management
Authority,
389
F.3d
491,
498-99
(5th
Cir.
2004).
Unlike
constitutional standing requirements, Congress can modify or waive
prudential standing requirements. Procter & Gamble v. Amway Corp.,
242 F.3d 539,
560 (5th Cir. 2001), cert. denied, 534 U.S. 945
(2001).
Some courts have required that a plaintiff seeking injunctive
relief under Title III must establish standing by alleging a
concrete, particularized, and plausible plan to return to the outof-compliance public accommodation that discriminated against her.
In Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir.
1997), the Fifth Circuit opined, “To obtain standing for injunctive
relief, a plaintiff must show that there is a reason to believe
-23-
that he would directly benefit from the equitable relief sought.
In other words, a plaintiff must face a threat of present or future
harm [citation omitted].”
Therefore Gilkerson must plead facts
demonstrating that she intends, and is likely, to return to
Chasewood’s ATM by pointing to such factors as its proximity to her
home, her past patronage, the frequency of her travel near that
ATM, and her concrete plans to do so and when.
Davis v. First
Nat’l Bank of Trenton, No. 4:12-CV-396, 2012 WL 7801707, at *8
(E.D. Tex. Dec. 2012, citing Access 4 All, Inc. v. Wintergreen
Commercial Partnership, Ltd., No. Civ. A. 3:05-CV-1307-G, 2005 WL
2989307, at *3 (N.D. Tex. Nov. 7, 2005)(“‘’[S]omeday intentions’-without any description of concrete plans, or indeed even any
specification of when the some day will be--do not support a
finding
of
the
‘actual
or
imminent’
injury
that
our
cases
require.’”)(quoting Lujan, 504 U.S. at 564); Hunter v. Branch
Banking and Trust Co. (“Hunter II”), Civ. A. No. 12-CV-2437-D, 2013
WL 4052411, at *2, 4 (N.D. Tex. Aug. 12, 2013)(“[W]hat constitutes
a sufficiently concrete plan to return must be evaluated in
context.
For example, where the allegedly infringing site is many
miles away or requires reservations, it is reasonable to require
more than a statement that the plaintiff intends to return in the
future.
But where the allegedly infringing site is an ATM in an
area the plaintiff frequently visits, it is unreasonable to impose
similar requirements.”).
-24-
The district court in Norkunas v. Park Rd. Shopping Center,
Inc., 777 F. Supp. 2d 998, 1005 (W.D.N.C. 2011), aff’d, 474 Fed.
Appx. 369 (4th Cir. July 6, 2012), held
that “the law makes clear
that a Title III plaintiff cannot use her status as a tester to
satisfy the standing requirements where she would not have standing
otherwise.”
It further opined that “the naked assertion of a
desire to return to a defendant establishment for the sole purpose
of confirming ADA-compliance, without more, is insufficient to
establish standing.”
Id.
At issue here is whether Gilkerson’s
standing to sue for discrimination under Title III of the ADA is
undermined because she has filed multiple similar suits, many with
BAG as co-plaintiff, and may have only the status of a “tester,”
whose motive is to return to the Defendants’s public accommodation
to verify its compliance with the ADA, rather than as a customer.
Recently in Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
1334 (11th Cir. 2013),11 the Eleventh Circuit ruled that the tester
status of the plaintiff, who had twice visited the Presidente
Supermarket and found it noncompliant with the ADA and who traveled
to the locality “on a regular basis” because his lawyer’s offices
were nearby and he “definitely” expected to visit the lawyer “in
the near future” even though he lived 30.5 miles away, did not
preclude his having standing for his claim under 42 U.S.C. §§
11
Both sides bring this case to the Court’s attention in their
supplemental pleadings (#35 and 37).
-25-
12182(a),12 12182(b)(2)(a)(iv),13 and 12188(a)(1)14 of Title III.
Several courts have found that where a plaintiff is a frequent or
serial litigant challenging various defendants’ ADA compliance and
has mixed motives, i.e., seeking to avail himself personally of
services provided by an ATM machine and verifying ADA compliance,
his standing to sue is not affected if it otherwise existed.
See,
e.g., Garner v. VIST Bank, 2013 WL 6731903, at *7 (E.D. Pa. Dec.
20, 2013), citing Clark v. McDonald’s Corp., 213 F.R.D. 198, 227-28
(D.N.J. 2003); Marod Supermarkets, 733 F.3d at 1332-34; Klaus v.
Jonestown Bank and Trust Co., Civ. A. No. 1:12-CV-2488, 2012 WL
4079946, at *7 (M.D. Pa. Aug. 13, 2013); Harty v. Burlington Coat
Factory of Pennsylvania, LLC, Civ. A. No. 11-01923, 2011 WL
2415169, at *8 (E.D. Pa. June 16, 2011); and Access 4 All, Inc. v.
Absecon Hospitality Corp., Civ. A. No. 04-6060 (JEI), 2006 WL
3109966, at *7 (D.N.J. Oct. 30, 2006).
In accord, Access for The
12
Section 12182(a) provides, “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 lease to) or operates a place of
public accommodation.”
13
Section 12182(b)(2)(A)(iv) defines “discrimination” as to
public facilities inter alia as “a failure to remove architectural
barriers, and communications barriers that are structural in
nature, in existing facilities . . . where such removal is readily
achievable.”
14
Section 12188(a)(1) states, “Nothing in this section shall
require a person with a disability to engage in a futile gesture if
such person has actual notice that a person or organization covered
by this subchapter does not intend to comply with its provisions.”
-26-
Disabled, Inc. v. First Resort, Inc., No. 8:11-cv-2342-T-30EAJ,
2012 WL 2917915, at *2 (M.D. Fla. July 17, 2012).
in the Fifth Circuit have agreed.
District courts
Hunter II, 2013 WL 4052411, at
*5 n.8; Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693,
704, 709 (W.D. Tex. 2010)(“The fact that a disabled plaintiff in a
Title III case is a tester does not change the analysis or
outcome)(citing Havens Realty Corp., 455 U.S. at 374)(regarding a
tester in a Fair Housing Act case).
A number of courts have rejected the “intent to return” or
“likely to return” theory as the only way to demonstrate standing
for injunctive relief on the grounds that “the odds of the injury
recurring are certain where a building is not in compliance with
the ADA” and any person “with the same disability” will face the
same
barrier
on
any
visit.
Instead,
some
courts
apply
the
“deterrent effect doctrine,” which holds that an individual suffers
an injury-in-fact sufficient to confer standing if he is deterred
from
visiting
a
public
accommodation
because
it
is
not
in
compliance with the law; plaintiffs need not engage in the “futile
gesture” of returning to a building with known barriers that the
owner does not intend to remedy.15
Imports
(U.S.),
Inc.,
631
See, e.g., Chapman v. Pier 1
F.3d
15
939,
949-50
(9th
Cir.
The deterrence effect theory is grounded in language of the
ADA stating that a plaintiff does not have to “engage in a futile
gesture if such person has actual notice that a person or
organization does not intend to comply” with the statute. Hunter
II, 2013 WL 4052411, t *3, quoting 42 U.S.C. § 12188(a)(1).
-27-
2011)(“Demonstrating
an
intent
to
return
to
a
noncompliant
accommodation is but one way for an injured plaintiff to establish
Article III standing to pursue injunctive relief.
A disabled
individual also suffers a cognizable injury if he is deterred from
visiting
a
noncompliant
public
accommodation
because
he
has
encountered barriers related to his disability there.”); Disabled
Ams. for Equal Access, Inc. v. Ferries Del Caribe, Inc., 405 F.3d
60, 64 (1st Cir. 2005)(“‘[A] disabled individual who is currently
deterred
from
patronizing
a
public
accommodation
due
to
a
defendant’s failure to comply with the ADA’ and ‘who is threatened
with
harm
in
the
future
because
of
existing
or
imminently
threatened noncompliance with the ADA’ suffers actual or imminent
harm sufficient to confer standing.’”); Steger v. Franco, 228 F.3d
889, 892 (8th Cir. 2000)(“Although plaintiffs need not engage in the
‘futile gesture’ of visiting a building containing known barriers
that the owner has no intention of remedying . . . they must at
least prove knowledge of the barriers and that they would visit the
building in the imminent future but for those barriers.”); Hunter
II, 2013 WL 4052411, at *3 (“The second recognized way to establish
injury-in-fact is for the plaintiff to show that she is continually
injured
by
being
deterred
from
making
use
of
the
allegedly
noncompliant public accommodation. . . . ‘[A] plaintiff who is
deterred from patronizing a store suffers the ongoing actual injury
of lack of access to the store.”); Betancourt v. Federated Dep’t
-28-
Stores, 732 F. Supp. 3d 693, 709 (W.D. Tex. 2010)(“[T]he Supreme
Court recognized deterrence as an injury in fact sufficient to
confer standing for prospective relief in Friends of the Earth,
Inc. v. Laidlaw Envt’l Services, 528 U.S. 167 (2000)”; “[T]he risk
of injury in fact is not speculative so long as the alleged
discriminatory barriers remain in place, the plaintiff remains
disabled, and the plaintiff is ‘able and ready’ to visit the
facility once it is made compliant.
If the disabled plaintiff
returns to the location, the same discrimination will occur until
the facility is made compliant.”).
See also Fiedler v. Ocean
Props., Ltd., 683 F. Supp. 2d 57, 69 (D. Me. 2010); Scherr v.
Marriot Intern., Inc., 833 F. Supp.2d 945, 952-53 (N.D. Ill.
2011)(Noting that the “‘deterrent effect doctrine’--supported by
the reasoning of the Ninth, Eighth and First Circuits--is gaining
support” and applying it)(citing Betancourt).
Just recently, in
Kramer v. Lakehills South, LP, No. A-13-CA-591 LY, 2014 WL 51153,
at *4 (W.D. Tex. Jan. 7, 2014), the district court applied the
deterrent effect doctrine and observed,
The Fifth Circuit appears to have endorsed this theory in
Frame v. City of Arlington, 657 F.3d 215, 236 (5th Cir,
2011)(a Title II ADA case), cert. denied,
U.S.
,
132 S. Ct. 1561 . . . (2012), when it stated that “a
disabled individual need not engage in futile gestures
before seeking an injunction; the individual must show
only that [the inaccessible object or place] affects his
activities in some concrete way.”).
An organization like BAG may demonstrate that it has standing
in two ways:
(1) representational standing or (2) standing on its
-29-
own behalf (a/k/a “organizational standing”).
Hunt v. Washington
State Apple Advertising Comm’n, 432 U.S. 333, 341-42 (1977).
It
can assert representational standing on behalf of its members by
showing that (1) at least one of its members has standing to sue in
her own right, (2) it seeks to protect interests that are relevant
to its purpose, and (3) the participation of its injured individual
members is not required to either bring the cause of action or
obtain the relief requested. Assoc. of Community Organizations for
Reform Now v. Fowler (“ACORN”), 178 F.3d 350, 356 (5th Cir. 1999),
citing Hunt v. Washington State Apple, 432 U.S. at 342-43.16
third
element
is
a
prudential
requirement,
a
matter
The
of
administrative convenience and efficiency; “in those cases where
the
claims
and
relief
sought
‘appear
to
support
efficient management,’ standing will be found.
judicially
If the relief is
injunctive or declaratory and only a small number of individual
16
This three-factor test is known as the Hunt test. The third
prong is a prudential limitation. Hunter , 2013 WL 4052411 at *6,
citing United Food and Commercial Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 557 (1996)(regarding the third prong of
the Hunt test, “the general prohibition on a litigant’s raising
another person’s legal rights is a judicially self-imposed limi[t]
on the exercise of federal jurisdiction, not a constitutional
mandate” and focuses on “matters of administrative convenience and
efficiency.”). The third prong does not completely bar individual
members from asserting claims for injuries; rather ”’an association
may assert a claim that requires participation by some members’” as
the issue is whether the individual participation is inconvenient
and inefficient. Id., citing Hosp. Council of Pittsburgh, 949 F.
2d 83, 89 )(3d Cir. 1991), cited with approval in Assoc. of Am.
Physicians & Surgeons, Inc. v. Texas Medial Bd., 627 F.3d 547, 551
(5th Cir. 2010)
-30-
members’ participation would be necessary, the third prong will be
met.”
Davis v. First Nat’l Bank of Trenton, No. 4:12-CV-396, 2012
WL 7801707, at *8 (E.D. Tex. Dec. 2012, citing Assoc. of Am.
Physicians & Surgeons, Inc. v. Texas Medical Bd., 627 F.3d 547,
551, 553 (5th Cir. 2010); Hunter II, 2013 WL 4052411, at *7
(“[R]equests for declaratory or injunctive relief rarely require
individual determinations”), citing Retired Chicago Police Ass’n v.
City of Chicago, 7 F.3d 584, 603 (7th Cir. 1993)(stating that
declaratory and injunctive relief “will usually inure to the
benefit of the members actually injured and thus individualized
proof of damages is often unnecessary” and thus will not prevent
associational standing).
In contrast, damages relief usually
prevents associational standing because individualized proof of
damages is often necessary.
Hunter II, 2013 WL 4052411, at *7.
An organization has standing to sue on its own behalf if it
first satisfies the same constitutional standards as apply to
individuals, i.e., concrete and actual or imminent injury-in-fact
that is fairly traceable to the actions of the defendant and that
will likely be redressed by a favorable court decision. ACORN, 178
F.3d at 356, citing Havens Realty Corp. v. Coleman, 455 U.S. 363,
378-79 (1982); Texas United for a Safe Economy Educ. Fund v. Crown
Cent. Petroleum Corp., 207 F.3d 789, 792 (5th Cir. 2000), citing
Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333,
342 (1977), and Friends of the Earth, Inc. v. Chevron Chemical Co.,
-31-
129 F.3d 826, 827-28 (5th Cir. 1997).
The injury need not be
significant and can be an “‘identifiable trifle’”
ACORN, 178 F.3d
at 358, citing Save Our Community v. U.S. Environmental Protection
Agency, 981 F.2d 1155, 1161 (5th Cir. 1992).
The Fifth Circuit has
held that the costs of bringing the litigation are not an injuryin-fact that will support standing.
ACORN, 178 F.3d at 358-59.
Nor are monitoring costs unless they can be shown to have been
traceable
to
Defendant’s
conduct
or
that
it
would
not
have
undertaken the same efforts had the Defendant not committed the
alleged illegal act.
“it
devotes
Id. at 359.
resources
to
An organization has standing if
counteract
a
defendant’s
unlawful
practices,” but not if the “drain on its resources” is not shown to
have resulted from the defendant’s action.
Id. at 360.
See also
Hunter v. Branch Banking and Trust Co. (“Hunter I”), Civ. A. No.
12-CV-2437-D, 2013 WL 607151, at *3 (N.D. Tex. Feb. 19, 2013)(“[A]n
organization can show that it has suffered injury-in-fact when it
has diverted resources to counteract the defendant’s conduct and
this diversion has concretely and ‘perceptibly impaired its ability
to carry out its purpose.”), citing Havens Realty, 455 U.S. at 379,
and AHF Cmty. Dev., LLC v. City of Dallas, 633 F. Supp. 2d 287, 294
(N.D.
Tex. 2009).
A statement that “the organization’s abstract
social interests” were set back is insufficient.
Havens
Realty
at
379.
“The
mere
fact
that
an
Id., citing
organization
redirects some of its resources to litigation and legal counseling
-32-
in
response
to
actions
or
inactions
of
another
party
is
insufficient to impart standing upon the organization.” Id. at *4,
quoting L.A. ACORN Fair Hous. v. LeBlanc, 211 F.3 298, 305 (5th Cir.
2000)(“holding that organization failed to establish standing where
there was no evidence at trial that it was required to put any
‘special projects’ on hold or ‘re-double efforts’ in response to
defendant’s conduct”).
Even if a plaintiff has standing at the commencement of a
suit, if intervening circumstances result in the court’s no longer
being able to grant meaningful relief to the plaintiff, the case is
deemed moot and the federal district court has no constitutional
authority to resolve disputes.
, No. 13-20094,
Calhoun v. FBI.,
Fed. Appx.
2013 WL 5935003, at *2 (5th Cir. 2013), citing
Center for Biological Diversity, Inc. v. BP Am. Prod. Co., 704 F.3d
413, 425 (5th Cir. 2013), and Envt’l Conservation Org. v. City of
F.3d 519, 525 (5th Cir. 2008).
Dallas, 529
For declaratory relief, a plaintiff must demonstrate “that an
actual case or controversy under the ADA exists.”
Id.
Standing requirements under the federal ADA and the Texas THRC
are the same.
Comm’n
v.
Davis, 2012 WL 7801707, at *9, citing Workers Comp.
Garcia,
893
S.W.
2d
505,
517-18
(Tex.
1995),
and
DaimlerChrysler Corp. v. Inman, 252 S.W. 3d 299, 304-05 (Tex.
2008).
Supplemental Jurisdiction
-33-
Under 28 U.S.C. § 1367(a),
Except as provided in subsections (b) and (c) or as
expressly provided otherwise by Federal statute, in any
civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental
jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction
that they form part of the same case or controversy under
Article III of the United States Constitution.
Such
supplemental jurisdiction shall include claims that
involve the joinder or intervention of additional
parties.
Title 28 U.S.C. § 1367(c) provides,
The district courts may decline to exercise supplemental
jurisdiction over a claim under subsection (a) if—
(1) the claim raises a novel or complex issue of State
law,
(2) the claim substantially predominates over the claim
or claims over which the district court has original
jurisdiction,
(3) the district court has dismissed all claims over
which it has original jurisdiction, or
(4) in exceptional circumstances, there are
compelling reasons for declining jurisdiction.
other
Chasewood’s Motions to Dismiss
The Court addresses the arguments in all three motions to
dismiss concurrently.
In the first, Chasewood charges that Gilkerson, with her
single visit to Chasewood’s ATM and her numerous other virtually
identical cases against other financial institutions filed in this
district, is a “mere tester” who lacks standing and cannot obtain
injunctive
relief
because
she
pleads
-34-
that
future
visits
to
Chasewood’s
likelihood
ATM
of
would
not
suffering
be
a
as
a
future
bona
fide
injury,
patron
but
would
with
be
a
to
investigate it in order to instigate multiple lawsuits.17
Chasewood also maintains that Gilkerson cannot prevail on her
prayer for a permanent injunction because she cannot establish
redressability or the need for a permanent injunction.
Thus,
it
concludes,
the
Court
lacks
subject
matter
jurisdiction because Gilkerson lacks standing.
In addition Chasewood maintains that Gilkerson fails to show
that
she
ever
requested
any
services
or
accommodation
from
Chasewood and was denied other than on her single visit to one ATM.
The bank argues that the Court must decline supplemental
jurisdiction over Gilkerson’s state law claims and dismiss them
because the Court lacks subject matter jurisdiction over the
federal question claims.
Shelby v. Enlers, 429 Fed. Appx. 392,
393-94 (5th Cir. June 20, 2011), cert. denied, 132 S. Ct. 1904
(2012).
In its second motion to dismiss, Chasewood represents that
17
Chasewood makes a meritless argument that Gilkerson has
failed to prove a causal connection between her disability and
Chasewood’s alleged violation of Title III, i.e., that her
disability was a substantial motivating factor in Chasewood’s
purported violation. Chasewood violates the statute because its
ATM violates the requirements for independent accessibility by
visually impaired individuals. Gilkerson needs merely to establish
her disability, Chasewood’s noncompliance with the statute and its
regulations, and that she was accordingly unable to access
Chaswewood’s services through its ATM.
-35-
according to public records obtained from the Texas Secretary of
State, BAG, whose location is not mentioned, registered to do
business in Texas on March 16, 2005 and forfeited its corporate
privileges and corporate charter for tax deficiencies18 on May 21,
2010.
#9, Ex. A, Articles of Incorporation of Blind Ambitions
Groups; Ex. B, Forfeiture Notice.19
Chasewood charges that BAG lacks organizational standing. Its
alleged diversion of resources to litigation cannot, by itself,
establish an injury in fact.
La. ACORN Fair Hous. v. LeBlanc, 211
F.3d 298, 304 (5th Cir, 2000); Assoc. for Retarded Citizens of
18
Under Tex. Bus. Corp. Act art. 7.12(F)(1)(e), expired and
replaced by Tex. Bus. Corp. Act art. 11.02(B) on January 1, 2010,
the secretary of state may forfeit a charter upon receiving
certification from the comptroller that 120 days have passed since
the corporation failed to pay franchise taxes and forfeited its
corporate privileges and the corporation has not revived its
privileges).
“A corporation that has forfeited its charter
pursuant to the Tax Code [§ 171.309] is [a] ‘dissolved corporation’
unless and until forfeiture has been set aside.” Anderson PetroEquipment, Inc. v. State, No. 03-13-00176-CV, 2013 WL 5858010, at
*1 (Tex. App.--Austin Oct. 22, 2013), citing Hunter v. Fort Worth
Capital Corp., 620 S.W. 2d 547, 549-51 (Tex. 1981).
When a
corporation forfeits its privileges it no longer has a legal right
to assert its causes of action in court. Mossler v. Nouri, No. 0308-00476-CV, 2010 WL 2133940, at *4 (Tex. App.--Austin, May 27,
2010).
19
Chasewood contends that it did an internet search on April
4, 2012 that revealed the website for BAG is no longer working or
accessible and that the domain name “blindambitionsgroup.org” is no
longer owned by BAG.
Ex. C. Plaintiff disagrees with the website
allegations and attaches to her memorandum in opposition (#16-1,
Ex.1) evidence that the website was accessible as recently as May
31, 2013. When the Court tried, it received the message, “Internet
Explorer cannot display the web page,” and was also unable to get
a diagnosis of “Connection Problems.”
-36-
Dallas v. Dallas County Mental Health & Mental Retardation Center
Board of Trustees, 19 F.3d 241, 244 (5th Cir. 1994)(“The mere fact
that an organization redirects some of its resources to litigation
and legal counseling in response to actions or inactions of another
party is insufficient to impart standing upon an organization.”);
Assoc. of Community Organizations for Reform Now v. Fowler, 178
F.3d 350, 358-59 (5th Cir. 1999)(expanding Article III injury to
include an organization’s litigation-related expenses “‘implies
that any sincere plaintiff could bootstrap standing by expending
its resources in response to actions of another,” in other words
“any litigant could create injury in fact by bringing a case”).
See also Hunter I, 2013 WL 607151 at *4 (granting motion to
dismiss, agreeing that redirecting some resources to litigation and
legal counseling is insufficient to impart standing upon Blind
Ambitions, but noting, “to the extent that diverting funds to Blind
Ambitions’
efforts
to
locate
and
identify
noncompliant
ATMS
constitutes an injury, causation is lacking because there is no
allegation that Blind Ambitions ‘would not have undertaken the same
efforts
in
the
defendant[].’”).20
absence
of
the
alleged
illegal
act
by
the
BAG does not allege that it has been harmed by
20
This Court would point out that in Hunter I the Honorable
Sidney A. Fitzwater allowed the Plaintiff to replead and in Hunter
II, 2023 WL 4052411, he denied the bank’s subsequent motion to
dismiss on the same grounds.
He found that Hunter’s sworn
declaration that she intended to visit the ATMs in dispute because
she was often in the vicinity of them was uncontradicted and
sufficient to create “intent to return” standing for injunctive
-37-
Chasewood’s actions, only that it generally expends resources for
enforcement of the ADA.
The amended complaint fails to show
injury-in-fact sufficient to confer organizational standing on BAG.
Nor,
standing,
Chasewood
which
argues,
requires
a
does
BAG
showing
have
that
representational
(1)
its
members
independently meet Article III standing requirements, (2) the
interests the association seeks to protect are germane to the
purpose of the organization, and (3) neither the claim asserted nor
the relief requested requires participation of individual members.
Retarded Citizens of Dallas, 19 F.3d at 244. BAG fails to identify
any specific employees, officers, or members (other than Gilkerson)
who tried to use any Chasewood ATM nor any members who have
suffered any concrete harm.
Chasewood maintains that because
Gilkerson lacks standing, BAG cannot establish representational
standing.
Chasewood furthermore asserts that because Texas law applies
the same standing principles as federal law, BAG’s state-law claims
should be dismissed on the same grounds as its ADA claim.
Heckman
v. Williamson County, 369 S.W. 3d 137, 154-55 (Tex. 2012)(Texas
standing doctrine parallels the federal test for Article III
relief. Because Hunter proved she had standing, and because she
was a member of Blind Ambitions, the judge found that Blind
Ambitions had associational standing.
2013 WL 4052411, at *6,
quoting Nat’l Rifle Assoc. of Am., Inc. v. Bureau of ATF&E, 700
F.3d 185, 191 (5th Cir. 2012)(Hunt v. Washington State, 432 U.S. at
343, “only requires that ‘at least one member of the association
have standing to sue in his or her own right.’”).
-38-
standing).
Gilkerson’s amended complaint at ¶ 54, states that she will
visit
the
ATM
in
the
future
because
“she
wants
to
identify
convenient accessible ATM options within the geographic zone that
she typically travels as part of her everyday and weekly activities
and
she
wants
community,
to
increase
generally,
and
ATM
in
accessibility
accordance
obligations as a class representative.”
with
for
the
her
blind
fiduciary
Chasewood argues that
neither Gilkerson nor BAG has any fiduciary duties to a class that
does not exist, not to mention relating to claims that neither has
standing to pursue.
Chasewood insists that the assertion does not
change her status as a tester, and as such, her lack of an injuryin-fact.
The allegation strongly suggests that she does not seek
to use any ATM as a bona fide patron, but instead only as a tester
for the purpose of filing more lawsuits.
She lacks standing in
that she has alleged only one incident at one ATM with no apparent
changes and an uncertain intention to return for any purpose other
than investigation of compliance; in sum, she did not suffer an
injury-in fact.
Because Gilkerson has already amended her complaint, Chasewood
claims that the dismissal should be with prejudice.
Gonzales v.
Bank Of America Ins. Servs., 454 Fed. Appx. 295, 302 (5th Cir.
2011)(the Fifth Circuit upholds “the denial of leave to amend where
the party seeking leave to amend has not clearly established that
-39-
he could not reasonably have raised the new matter prior to the
trial court’s merits”).
In its second amended motion to dismiss (#17), Chasewood
notes that in Gilkerson’s Responses to Defendant’s First Request of
Production and Interrogatories (Ex. 3), Plaintiff claims that she
visited the ATM in dispute twice, once “on or about June 25, 2012,”
and again “on July 20, 2012, at approximately 12:20 p.m.” and that
the ATM did not have functional voice guidance features required by
the ADA and THRC.
In response Chasewood claims that its ATM was in
full compliance with the ADA over one month before the visits
Gilkerson identifies and that it continues to be in compliance
through the filing of #17, and that any problem she had in
operating
the
machine
would
have
been
due
to
her,
not
to
noncompliance by Chasewood.
It also argues that regulation 28
C.F.R.
makes
§
36.211
not
only
it
unlawful
for
a
public
accommodation to discriminate on the basis of disability, but also
expressly provides, “This section does not prohibit isolated or
temporary interruptions in service or access due to maintenance or
repairs.”21
In its appendix to the Regulations, the Department of
21
In their response (#30 at pp. 5-6), Plaintiffs submit the
next two lines of the DOJ comment to § 36.211: “However, allowing
obstructions or ‘out of service’ equipment to persist beyond a
reasonable period of time would violate this part, as would
repeated mechanical failures due to improper or inadequate
maintenance. Failure of the public accommodation to ensure that
accessible routes are properly maintained and free of obstructions,
or failure to arrange prompt repair of inoperable elevators or
other equipment intended to provide access, would also violate this
-40-
Justice states that 28 C.F.R. § 36.211(b) is “intended to clarify
that temporary obstructions or isolated instances of mechanical
failure would not be considered violations of the [ADA] or this
part” because “[i]t is, of course, impossible to guarantee that
mechanical devices will never fail to operate.”
Guidance on ADA
Regulation on Nondiscrimination on the Basis of Disability by
Public Accommodations and in Commercial Facilities, originally
published on July 26, 1991, 28 C.F.R. Pt. 26, App. C (Mar. 15,
2011).
Courts accordingly have held that an isolated or temporary
hindrance to access does not give rise to a claim under the ADA or
the state equivalent. See, e.g., Foley v. City of Lafayette, Inc.,
359 F.3d 925, 929 (7th Cir. 2004); Sharp v. Capitol City Brewing
Co., LLC, 680 F. Supp. 2d 51, 59 (D.D.C. 2010); Thill v. Olmstead
County, No. 08-CV-4612 (PSJ/JSM), 2010 WL 3385234, at *6 (D. Minn.
Aug. 14, 2010)(holding “[o]n this record, even if the door was not
in compliance with the ADA when [plaintiff] was injured, given
Olmstead County’s maintenance practices and its prompt response to
[plaintiff’s] complaint about the door, a reasonable jury would not
find defendants liable under the ADA for the door’s mechanical
failure on” a single occasion.).22
part.”
Nondiscrimination on the Basis of Disability by Public
Accommodations and in Commercial Facilities, 56 Fed. Reg. 35544-01
(July 26, 1991).
22
Plaintiffs respond that Thill and Foley addressed whether
a single isolated incident of noncompliance violated the ADA in the
context of a summary judgment, not a motion to dismiss, and that
-41-
Chasewood again maintains that neither Gilkerson nor BAG has
alleged a plausible intention or desire to return to the ATM as
required under the ADA, and that her pleading and the facts in
evidence from her other lawsuits reflect that a return visit is
highly unlikely. Moreover, the potential for abuse is reflected in
Gilkerson’s
numerous
attorneys,
filed
lawsuits,
across
not
the
to
mention
country.
BAG
those
has
of
her
neither
organizational nor representational standing to pursue its ADA
claim.
Because Gilkerson lacks standing to prosecute her ADA
claim, she also lacks standing for her THRC claims. Thus the Court
should also decline to exercise supplemental jurisdiction over
Gilkerson’s state law claims and her complaint should be dismissed
for lack of standing because neither she nor BAG can establish an
injury-in-fact.
#17-4,
Ex.
4
(Affidavit
of
Valentin
Berea
attesting that his company replaced the ATM in dispute with a brand
new ATM on May 23, 2012 to insure full compliance with the ADA
standards, and that there had been no other complaints about the
machine’s compliance).
Gilkerson visited the subject ATM twice, the visits being one month
apart, and found the same inaccessibility violation, i.e., no
functional voice guidance function, and on the second visit there
was also no functional audio guidance system.
Moreover an
investigation revealed that other ATMs on Chasewood’s network were
also in violation of Chapter 707 of the 2010 Standards, and that
Chasewood lacked a policy for keeping its ATMs in timely
compliance. #30 at p. 6; Ex. 4, Decl. of investigator Ross Monsen
(find both the subject ATM and another Chasewood ATM in violation
of ADA).
-42-
Given the thirty-eight miles between Gilkerson’s residence23
and the ATM at issue, Chasewood observes that Gilkerson, who does
not have an account with Chasewood, has not explained why that ATM
is more desirable than any other facility run by any of the other
financial institutions that she has sued.
It states that she has
sued at least seventeen other banks with ATMs closer to her home
and provides a chart in support. Gilkerson has not patronized the
ATM other than the two visits she admits she made.
Nor does she
provide a rational reason why she would go past hundreds of ATMs on
the way to the Chasewood ATM in dispute, including at least
seventeen that she claims are in the geographic zone or her regular
travels and the fact that she appears from her numerous lawsuits to
regularly use a number of other ATMS.
She cannot manufacture
standing by her indefinite statement that she plans to return to
the ATM.
She fails to provide any specific facts showing the
frequency of her travel near the ATM.
23
Her numerous lawsuits also
Chasewood states that on the average “courts have determined
that a distance of more than 50 to 100 miles clearly fails to
satisfy the proximity element.” Reviello v. Phila. Fed. Credit
Union, Civ. A. No. 12-5-8, 2012 WL 2196320, at *4 5(E.D. Pal June
14, 2012)(“It has been held that a distance pf more than 100 miles
clearly fails to satisfy the proximity element. . . . The proximity
standard is not clear-cut and courts consider the type of
accommodation and whether it caters to travelers. . . . In this
case, the plaintiff lives over fifty miles from the defendant’s ATM
while his own bank is located within three miles of his house. . .
. Without more, plaintiff’s proximity to the ATM in question does
not clearly establish a likely intent to return.”).
Plaintiff responds by pointing out that her residence is only
thirty-eight miles form the ATM in question.
-43-
undermine a finding that she is likely to return to Chasewood’s ATM
and to incur any future injury .
BAG
fails
to
allege
any
facts
to
show
that
it
has
organizational standing, i.e., that it used the Chasewood ATM or
that it has been harmed in any way by its alleged noncompliance on
its own behalf.
BAG merely asserts that “it has had to redirect
resources to support its efforts related to the enforcement of the
laws at issue in this case.”
Nor has it shown that it has
associational standing to bring suit on behalf of its members
because it
has not identified any of its member that has standing
nor can it assert its claims or receive the relief requested
without participation of its members.
Hunt v. Washington State
Apple, 432 U.S. at 343; Association for Retarded Citizens, 19 F.3d
at 244.
Organizations do not visit ATMs.
Generally when federal claims are dismissed before trial, a
court that had supplemental jurisdiction under 28 U.S.C. § 1367(c)
over state-law claims as a general rule, which is not always
mandatory depending on balancing factors, should dismiss them
without prejudice.
McClelland v. Gronwaldt, 155 F.3d 507, 519 (5th
Cir. 1998)(citing Newport Ltd. v. Sears Roebuck and Co., 941 F.2d
302, 307 (5th Cir. 1991), and Parker & Parsley Petroleum Co. v.
Dresser Industries, 971 F.2d 580, 587 (5th Cir. 1992), overruled on
other grounds, Arana v. Ochsner Health Plan, 338 F.3d 433, 440 n.11
(5th Cir. 2003).
When only state-law claims remain in a federal
-44-
question case, the Supreme Court has opined that “a federal court
should hesitate to exercise jurisdiction over state claims” because
“[n]eedless decisions of state law should be avoided both as a
matter of comity and to promote justice between the parties.”
United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966).
Moreover, Plaintiffs lack standing to pursue the state law claims
as well as the ADA claim.
Under 28 U.S.C. § 1367(c), a district court may decline to
exercise supplemental jurisdiction if (1) the claim raises a novel
or
complex
issue
of
state
law;
(3)
the
claim
substantially
predominates over the claim or claims over which the district court
has original jurisdiction; (3) the district court has dismissed all
claims
over
which
it
has
original
jurisdiction;
or
(4)
in
exceptional circumstances, there are other compelling reasons for
declining jurisdiction.
weight
in
favor
of
Chasewood argues that all these factors
this
Court’s
declining
to
exercise
its
jurisdiction: Gilkerson raises novel issues of state law under the
THRC since its provisions have only been in effect since March 15,
2012 and there is no Texas decision on the questions raised yet;
state law under the THRC is the only claim left; and limited
discovery has taken place and novel issues of state law should be
decided in state court.
Plaintiffs’ Opposition to
the Second Amended Motion to Dismiss (#30)
-45-
Plaintiffs contend that Chasewood’s argument that the ATM was
inaccessible only for a short time is “a question of fact not
properly adjudicated on a motion to dismiss.”
#30 at p. 3.,citing
Klaus v. Sovereign Bank, National Assoc.. No. 1:12-cv-2421, 2013 WL
2040334, at *6 (M.D. Pa. Apr. 11, 2012)(“courts have found that
whether interruptions in access are ‘isolated or temporary, and
thus come with the protections of 28 C.F.R. § 36.211(b) [ADA “does
not prohibit isolated or temporary interruptions in service or
access due to maintenance or repairs”] present questions of fact
that are not properly subject to disposition through a motion under
Rule 12(b)(6).”)24, adopted, 2013 WL 2039657 (M.D. Pa. May 14,
2013).
Insisting
she
has
stated
claims
for
ADA
discrimination,
Gilkerson emphasizes that she visited the ATM in dispute twice, a
month apart, and that it had no functional voice-guidance feature
either time and no functional audio guidance feature in December
2012 (declarations of Gilkerson, Ex. 2, witness Don Harvey, Ex. 3,
and
investigator
Ross
Monsen,
Ex.
4);
that
an
investigation
established that other ATMs in Defendant’s network violate the ADA
accessibility
declaration);
laws
and
(Am.
(3)
Complaint
that
Chasewood
24
at
¶
has
56;
no
Ross
plan
or
Monsen
policy
Citing Chapman v. Pier 1 Imports (U.S.), Inc., 870 F. Supp.
2d 995, 1009 (E.D. Cal. 2012); Sparks v. City of Peoria, No. 091159, 2009 WL 3764032, at *4 (C.D. Ill. Nov. 10, 2009); Eiden v.
Home Depot USA, Inc., No. CIV504-977 LKK/CMK, 2006 WL 1490418, at
*13 (E.D. Cal. May 26, 2006).
-46-
reasonably calculated to cause its ATMs to be in timely compliance
with Chapter 7 of the 2010 Standards or for periodic monitoring.
Plaintiffs have not alleged that the noncompliance was temporary or
isolated, the facts are in dispute, and the issue should not be
decided without a full factual record.
They also object that
Chasewood has refused to respond to any fact discovery propounded
by Plaintiffs until the Court rules on the motions to dismiss.
(The
Court
has
previously
discovery (#23, 29).)
denied
Chasewood’s
motion
to
stay
Plaintiffs point out that Chasewood has not
submitted any evidence that the ATM’s accessibility problems have
been isolated and temporary or that the malfunction was due to
maintenance or repairs.
Gilkerson claims that from the evidence she has put in the
record she can satisfy both tests for injury-in-fact:
to-return
to
the
noncompliant
deterrent effect doctrine.
from the subject ATM.
against
her,
she
public
the intent-
accommodation
and
the
Her residence is less than fifty miles
While her lack of past patronage works
argues
it
should
not
be
given
significant
influence considering that the ATM is inaccessible to her. She has
claimed that she has future plans to use it and that she frequently
travels in the area and is often in its geographic zone.
While she
cannot make a concrete plan to use an ATM that is not accessible to
her, she has stated that she intends to return in her effort to
increase
ATM
accessibility
for
-47-
the
blind
generally
and
in
accordance with her fiduciary obligations to the putative class.
Hunter II, 2013 WL 4052411 at *3 (“The court’s determination that
Hunter has proved that she will return to the ATMs at issue is
based primarily on her [uncontroverted] sworn declaration that she
‘intend[s] to continue to visit the specific BB&T ATMS identified
. . . because [she is] often in the vicinity of those ATMs and
[she] desire[s] to have access to the banking services that are
offered at those ATMs.”).
Chasewood’s argument that she had not
shown why its ATM is more desirable than one close to her home is
illogical and if accepted, would
nullify ADA’s accessibility
requirements because there would be no incentive for an ATM
operator to comply if there were an accessible ATM nearby.
Furthermore courts have routinely found that “testers” or serial
plaintiffs have standing in Title III accessibility cases.
Access
for the Disabled, 2012 WL 2917915, at *2-3; Segal v. Rickey’s
Restaurant and Lounge, Inc., No. 11-61766-CIV, 2012 WL 2393769, at
*7 (S.D. Fla. June 25, 2012)(“Plaintiff is not stripped of standing
by virtue of the number of lawsuits he has filed.”); Access 4 All,
Inc. v. Absecon Hospitality Corp., 2006 WL 3109966, at *7 (“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.”); Betancourt, 732 F. Supp. 2d at 710 (“A disabled
tester who experiences the discrimination prohibited by the ADA has
-48-
standing to seek relief.”).
As for Blind Ambitions, Plaintiffs
argue that because its
member Gilkerson has standing, the Court should find that Blind
Ambitions
has
representational
standing.
Under
the
test
for
representational standing established in Hunt v. Washington State
Apple Advertising Comm’n, 432 U.S. at 343, Gilkerson has standing
to sue and has sued in her own right; the interests sought to be
protected are germane to Blind Ambitions’ purpose of advocating for
the civil rights of visually impaired individuals to have the same
access to goods and services that are generally available to the
American consuming public.
As for the third prong, a prudential
limitation, neither the claims asserted nor the relief requested by
Blind Ambitions requires participation of individual members of
this suit because it prays solely for injunctive relief under the
ADA
and
Texas
state
statutes,
which
does
not
require
the
participation of all of Blind Ambitions’ individual members.
Building and Const. Trades Council of Buffalo, New York and
Vicinity
v.
Downtown
2006)(“‘[W]here
the
Dev.
Inc.,
organization
448
seeks
F.3d
138,
a
purely
150
(2d
legal
Cir.
ruling
without requesting that the federal court award individualized
relief to its members, the Hunt test may be satisfied.”), citing
Bano v. Union Carbide Corp., 361 F.3d 696, 714 (2d Cir. 2004);
cited for that proposition in Access 4 All, Inc. v. G&T Consulting
Co., LLC, No. 06 CIV 13736 (DF), 2008 WL 851918, at *5 (S.D.N.Y.
-49-
Mar. 28, 2008).
Chasewood’s Reply (#32)
Chasewood asserts that Gilkerson has filed seven more class
action suits against financial institutions since June 14, 2013,
when Chasewood filed its seconded amended motion to dismiss.
Chasewood also tries to distinguish this case from Hunter II
to favor its defense.
It points out that the Chasewood ATM is
three times farther from Gilkerson’s residence that the ATM in
Hunter II was from the plaintiff’s home in that suit.
Second,
Gilkerson does not have an account with Chasewood, while the Hunter
II plaintiff did with the financial institution defendant, BB&T.
Third, Chasewood has shown that it brought its ATM into compliance
with the ADA before Gilkerson’s claimed visits, where there was no
such evidence in Hunter II.
Last, Gilkerson has already filed 31
nearly identical lawsuits to date, while the plaintiff in Hunter
filed only 15 by the time the standing issue was decided in that
case.
Chasewood argues that this case is more analogous to Molski v.
Mandarin
Touch
Restaurant,
385
F.
Supp.
2d
1042
(C.D.
Cal.
2005)(dismissing case because plaintiff was a serial litigator and
his multiple ADA suits undermined the sincerity of his intention to
return to each out-of-compliance business and the likelihood of
future harm).
116-mile
The California district court also found that the
distance
between
the
plaintiff’s
-50-
residence
and
the
defendant’s restaurant made injury unlikely and the plaintiff’s
claim that he had driven up the California coast 15-20 time in the
last two years “insubstantial.”
Id. at 1046.
Court’s Decision
Plaintiff and BAG have not responded to Chasewood’s charge
that BAG forfeited its company charter for tax deficiencies on May
21, 2010, supported by the copy of the Forfeiture Notice.
Court
The
will therefore require BAG to file within ten days evidence
that it has a charter in effect allowing it to sue in Texas.
A second issue, about which there is an ongoing factual
dispute that will have to be decided later in this litigation, is
whether Chasewood’s ATM at 8500 Cypresswood Drive, Spring, Texas
77379 was at the time of Plaintiff’s visit and is now in compliance
with the ADA’s requirements for ATMs or whether there is a live
case or controversy.
To obtain injunctive relief, the plaintiff’s
claims cannot be moot; her personal interest in the litigation must
be live not only when she commenced the suit, but throughout the
litigation.
“‘Past exposure to illegal conduct does not in itself
show a present case or controversy regarding injunctive relief. .
. if unaccompanied by any continuing, present adverse effects.’”
Lujan, 504 U.S. at 564, quoting City of Lost Angeles v. Lyons, 461
U.S. 95, 102 (1983); Plumley v. Landmark Chevrolet, Inc., 122 F.3d
308, 312 (5th Cir. 1997)(noting that a Title III “plaintiff seeking
injunctive relief based on an alleged past wrong must show that
-51-
there is a real or immediate threat that he will be wronged again”
and finding that plaintiff’s death made any continuing or future
injury impossible).
The class action allegations in the First Amended Complaint
assert claims against Chasewood’s network of ATMs, while Gilkerson
has only alleged facts supporting an injury-in-fact from the single
ATM located at 8500 Cypresswood Drive, Spring, Texas 77379.
Because no class has been certified yet and Rule 23 has not been
satisfied, the Court restricts its current standing review to the
single ATM.
Plaintiff has alleged and/or presented evidence that Chasewood
failed to comply with the ADA and the 2010 standards because its
ATM lacked voice guidance function on both her visits and an
functional audio guidance on her second.
Thus she has adequately
pleaded a concrete, particularized injury-in-fact to a legally
protected interest fairly traceable to, and thus causally connected
to, the challenged action of the defendant in the past.
At issue
is whether she will continue to be harmed in the future to warrant
injunctive relief and thereby meet the third factor, a likelihood
that the injury will be redressed by a favorable decision.
A number of courts, including district courts in the Fifth
Circuit, have applied a four-factor proximity test to determine if
a
plaintiff
has
accommodation:
intent
to
return
to
a
noncompliant
public
(1) the proximity of plaintiff’s residence to the
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public accommodation; (2) the plaintiff’s past patronage of the
public accommodation; (3) the definitiveness of the plaintiff’s
plan to return; and (4) the frequency of plaintiff’s nearby travel.
See, e.g., Access 4 All, 2005 WL 2989307, at *3; Davis, 2012 WL
7801700, at *6; Hunter, 2012 WL 7004154, at *5; Raviello, 2012 WL
2196320, at *4; Harty, 2011 WL 2415169, at *5.
Applying the test
to the subject ATM and at this stage taking the First Amended
Complaint’s allegations as true, the Court notes that Gilkerson
lives 38 miles from it, and thus falls within the 50-mile limit
some
courts
challenged
have
place
applied
of
as
the
noncompliant
plaintiff’s residency.
requisite
public
proximity
of
the
accommodation
to
the
See, e.g., Access 4 All, 2005 WL 2989307,
at *3; Davis, 2012 WL 7801700, at *6; Raviello, 2012 WL 2196320, at
*5.
In her straight-forward submissions, Gilkerson concedes that
she was not a patron of the bank in the past and does not have an
account at Chasewood.
Moreover her “plan to return” is not very
definite (i.e., no specific date or time).
against a finding of standing.
These facts weigh
Nevertheless, with a supporting
sworn declaration, she does assert that she daily and weekly
travels
to
that
zone
where
the
ATM
is
located.
Her
sworn
declaration further states, “I will continue to use the Subject
ATM.
I want to identify convenient accessible ATM options within
the geographic zone that I typically travel as part of my regular
activities and I want to increase ATM accessibility for the blind
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community, generally.”
#30, Ex. 2.
The Court finds no evidence
that the suit is frivolous or of “trumped up claims of injury,” as
in
the
multiple
litigation.
suits
filed
by
the
plaintiff
in
the
Molski
In sum, it finds Gilkerson pleading of standing here
is a “close call” under the proximity test.
See, e.g., Hunter v.
First United Bank & Trust Co., No. 4:12-CV-374, 2012 WL 7004154, at
*6 (E.D. Tex. Dec. 11, 2012)(“Hunter’s proximity to and statements
in the Amended Complaint that she regularly travels in the vicinity
of the Subject ATM,” plus her claim that she visited the ATM
“multiple times since March 15, 2012" are “sufficient to evidence
a plan to return”), adopted, 2013 WL 419227 (E.D. Tex. Feb. 1,
2013);
Betancourt, 732 F. Supp. 2d at 704 (“allegation that
plaintiff would return to the public accommodation ‘soon’ was
sufficient”), citing Sevens v. Premier Cruises, 215 F.3d 1237 (11th
Cir. 2000).
While
questions
have
justifiably
been
raised
about
how
specific Gilkerson’s allegations about her intent to return are, as
noted several courts in Texas in the Fifth Circuit have relied on
the deterrent effect doctrine in ruling that a disabled individual
suffers an ongoing, cognizable injury if he is deterred from
visiting a noncompliant accommodation because it violates that ADA.
See, e.g., Betancourt, 732 F. Supp. 2d at 709; Kramer v. Lakehills
South, LP, 2014 WL 51153 at *4-5; Hunter II, 2013 WL 4052411, at
*3.
Gilkerson has alleged that she has visited the subject ATM
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twice, that she knows the ATM is noncompliant, that she would be
visiting it again, and that she does not need to “engage in a
futile gesture” before seeking an injunction.
Gilkerson has
submitted declarations of her own, of witness Don Harvey, and of
investigator Ross Monsen to show that she twice attempted to use
the subject ATM, that an investigation established that other ATMs
in Defendant’s network violate the ADA accessibility laws (see also
Am. Complaint at ¶ 56), and that Chasewood has no plan or policy
reasonably calculated to cause its ATMs to be in timely compliance
with Chapter 7 of the 2010 Standards or for periodic monitoring.
In Betancourt, 732 F. Supp. 2d at 707, a frequently cited
case,
the
Texas
federal
district
court
focused
on
the
word
“opportunity” in 42 U.S.C. § 12101(a)(7) and (8), stating the ADA’s
goals:
The Congress finds that . . .
(7) the Nation’s proper goals regarding individuals with
disabilities are to assure equality of opportunity, full
participation, independent living and economic selfsufficiency for such individuals; and
(8) the continuing existence of unfair and unnecessary
discrimination
and
prejudice
denies
people
with
disabilities the opportunity to compete on an equal basis
and to pursue those opportunities for which our free
society is justifiably famous, and costs the United
States billions of dollars in unnecessary expense
resulting from dependency and nonproductivity.
The court emphasized that “[t]he ADA provides a private cause of
action to‘any individual who is being subjected to discrimination”
and expressly provides that “it shall be discriminatory to subject
-55-
an individual . . . on the basis of disability . . . to a denial of
the opportunity of the individual or class to participate in or
benefit
from
the
goods,
services,
facilities,
advantages, or accommodations of an entity.’”
707, quoting
privileges,
732 F. Supp. 2d at
42 U.S.C. § 12182(a) and (b).
Where a public
accommodation’s noncompliance is ongoing, the disabled plaintiff
“suffers an ongoing injury so long as she is effectively denied the
opportunity” to participate in or benefit from the services and
facilities of the entity.
Id.
Observing that some courts have
appropriately applied the deterrent effect doctrine to such a Title
III injury and found that “a plaintiff need not engage in the
futile gesture of visiting an accommodation she knows to be
discriminating against her in order to establish standing,” the
court examined several decisions by the United States Supreme Court
that “support a broader view of injury under Title III.”
707-08.
Id. at
For example in Friends of the Earth, Inc. v. Laidlaw
Environmental Services, 528 U.S. 167 (2000), the high court found
that plaintiffs’ allegations that they “would like to fish, camp,
swim and picnic in and near a river downstream from the defendant’s
facility,” but would not because it was undisputed that the
waterway was polluted from that facility’s discharge, “could not be
equated
with
endangered
the
species
speculative
halfway
insufficient in Lujan.”
‘some
around
day’
the
intentions
world
that
to
visit
was
Betancourt, 732 F. Supp. 2d at 709.
-56-
held
The
Supreme Court found that it was “entirely reasonable” that the
illegal discharge of pollutants would cause nearby residents to
limit their use of the river and subject them to economic and
aesthetic harm, and if proven true, was sufficient to constitute an
injury-in-fact.
Id., quoting id. at 184-85.
The Betancourt court
analogized that it was “entirely reasonable” that a disabled
plaintiff “would be deterred from visiting a public accommodation
that is violating Title III,” and it concluded that such a claim
“alleges
sufficient
equitable relief.”
present
injury
Id. at 709-10.
in
fact
for
prospective
Moreover, the court proclaimed
that “the fact that a disabled plaintiff in a Title III case is a
tester does not change the analysis or outcome.”
Id. at 710,
citing Havens Realty Corp. 455 U.S. 363, and Evers v. Dwyer, 358
U.S.
202
(1958)(finding
that
there
was
still
a
“case
or
controversy” in the civil rights context where a black plaintiff,
who was ordered to move to the rear of a public bus or face arrest,
refused and left the bus because “‘[a] resident of a municipality
who cannot use transportation facilities therein without being
subjected by statute to special disabilities necessarily has, we
think, a substantial, immediate and real interest in the validity
of the statute which imposes the disability.
That the appellant
may have boarded this particular bus for the purpose of instituting
this litigation is not significant.’”. Betancourt, 732 F. Supp. 2d
at 710, quoting Evers, 358 U.S. at 204.).
-57-
The Betancourt judge
concluded,
“Thus,
a
disabled
tester
who
experiences
the
discrimination prohibited by the ADA has standing to seek relief.”
Id., citing Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir.
2004)(“recognizing tester standing to seek injunctive relief under
Title II [of the ADA] related to City’s bus system.”).
Thus the Court finds that the First Amended Complaint of
Gilkerson, whose allegations indicate that she went to Chasewood’s
ATM as both a tester and a patron and would continue to do so, has
established standing under the deterrent effect doctrine in this
action.
See also Kramer, 2014 WL 51153, at *5 (finding sufficient
the plaintiff’s pleading that she visited the shopping center at
issue, found a number of ADA violations that deprived her of use
and enjoyment of the goods and services of the stores, claimed that
she would like to visit the shopping center again during a planned
trip to Austin in December 13, and she noted that “it would be a
futile gesture to visit Defendant’s mall unless and until it is
brought into compliance”); Disabled Americans for Equal Access,
Inc. v. Ferries Del Caribe, Inc., 405 F.3d 60, 64-65 (1st Cir.
2005)(finding sufficient for standing plaintiff’s allegations that
he visited defendant’s cruise ship, had been subjected to barrier
discrimination that denied or limited his ability to visit or use
the property and endangered his and other disabled persons’ safety,
and that he intended to return; court found he did not have to
engage in the futile gesture of traveling aboard the ship again to
-58-
establish standing).
Testers
have
been
an
accepted
and
successful
means
of
enforcing civil rights statutes under the Fair Housing Act and
Title VII of the Civil Rights Act of 1964, although a number of
courts addressing Title III cases have been skeptical, and even
hostile.
See Lee, Giving Disabled Testers Access to Federal
Courts, 19 Va. J. Soc. Pol’y & L. at 321-23; Johnson, Testers
Standing up for Title III of the ADA, 59 Case W. Res. L. Rev. at
689-702.
“As a result of both the Attorney General’s limited
resources
and
the
limited
remedies
available
to
Title
III
plaintiffs, ‘most ADA suits are brought by a small number of
private
plaintiffs
disabled.’”
who
view
themselves
as
champions
of
the
Betancourt, 732 F. Supp. 2d at 701, quoting Molski,
500 F.3d at 1062.
Blind Ambitions seeks only associational (representational)
standing, not organizational standing on its own behalf.
Complaint at p. 12 n.8.
Am.
Because the Court finds at this stage that
Plaintiff has adequately pleaded Gilkerson’s standing as to the one
ATM,
Blind
Ambitions
satisfies
the
first
factor
for
representational standing under Hunt, based on Gilkerson’s active
membership in the organization.
Regarding the second prong, the
interest at stake in this suit, accessibility of the visually
impaired to the ATM, is germane to Blind Ambitions’ stated purpose,
“advocacy regarding the accessibility of goods and services to the
-59-
blind community” (#8 at ¶ 2).
“[T]he germaneness requirement is
‘undemanding’ and requires ‘mere pertinence’ between the litigation
at issue and the organization’s purpose.” Assoc. of Am. Physicians
& Surgeons, 677 F.3d at 550 n.2, citing Bldg. & Constr. Trades
Council of Buffalo v. Downtown Dev., Inc., 448 F.3d 138, 148 (2d
Cir. 2006).
The prudential third prong, which focuses on matters
of administrative convenience and efficiency,” is also satisfied
because Blind Ambitions seeks injunctive and declaratory relief,
which will not require each member’s proving his or her specific
damages, but only a few members’ participation.
Davis v. American
National Bank of Texas, No. 4:12-CV-382, 2012 WL 7801700, at *8
(E.D. Tex. Dec. 11, 2012), adopted, 2013 WL 1195695 (E.D. Tex. Mar.
22, 2013); Assoc. of American Physicians and Surgeons, 627 F.3d at
552
(“as
long
as
resolution
of
the
claims
benefits
the
association’s members and the claims can be proven by evidence from
representative injured members, without a fact-intensive inquiry,
the participation of those individual members will not thwart
associational standing.”); Nat’l Solid Wastes Mgmt. Assoc. v. City
of Dallas, Civ. A. No. 3:11-CV-3200, 2012 WL 4893016, at *5-6 (N.D.
Tex. Oct. 16, 2012).25
Thus the Court finds that Blind Ambitions
25
The Court finds that Blind Ambitions has not adequately
pleaded organizational standing, i.e., standing on its own behalf.
As noted, the statement that it had to divert its resources to this
litigation is not sufficient to establish standing. ACORN, 178
F.3d at 358; Assoc. for Retarded Citizens, 19 F.3d at 244. It
fails to show that these costs were due to Chasewood’s conduct.
N.A.A.P.C. v. City of Kyle, Texas, 626 F.3d 233, 238-39 (5th Cir.
-60-
has representational standing to sue here.
Accordingly, for the reasons stated above, the Court
ORDERS that Chasewood’s three motions to dismiss (#7, 9, and
17) are DENIED.
The Court further
ORDERS BAG to file within ten days evidence that it has a
corporate charter in effect allowing it to sue in Texas.
Finally,
the Court
ORDERS that this case is REFERRED to United States Magistrate
Judge Frances Stacy to establish a new docket control schedule.
SIGNED at Houston, Texas, this
27th
day of
February , 2014.
___________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
2010), cited for that proposition, Davis v. First National Bank of
Trenton, No. 4:12-CV-396, 2012 WL 7801707, at *7 (E.D. Tex. Dec.
11, 2012), adopted, 2013 WL 1195710 (E.D. Tex. Mar. 22, 2013).
For organizational standing, Blind Ambitions must allege facts
showing in addition that the diversion of its resources “has
concretely and ‘perceptible impaired’ its ability to carry out its
purpose.” Hunter v. Branch Banking and Trust Co., 2013 WL 607151
at *3, citing Havens Realty, 455 U.S. at 379.
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