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Patricia L. Kennedy v. Steve M. Grova and Arlene C. Grova

February 28, 2012

PATRICIA L. KENNEDY, PLAINTIFF,
v.
STEVE M. GROVA AND ARLENE C. GROVA, DEFENDANTS.



ORDER DENYING DEFENDANT ARLENE GROVA'S MOTION TO DISMISS AMENDED COMPLAINT

THIS CAUSE is before the Court upon Defendant Arlene C. Grova's Motion to Dismiss Amended Complaint [DE 42] ("Motion"). The Court has considered the Motion and accompanying Memorandum of Law [DE 42-1] ("Memorandum"), Plaintiff Patricia L. Kennedy's Response [DE 43], the record in this case, and is otherwise fully advised in the premises.*fn1

I. BACKGROUND

According to the Amended Complaint [DE 41], Plaintiff Patricia L. Kennedy is a wheelchair-bound individual with disabilities. Am. Compl. ¶ 10. Plaintiff alleges that she has encountered architectural barriers at a strip mall property that Defendants Steve M. Grova and Arlene C. Grova operated, owned, or leased. Id. ¶¶ 7-8, 10. Plaintiff claims that the barriers have denied or diminished her ability to visit the property, endangered her safety, and posed a risk of injury, embarrassment, and discomfort to her. Id. ¶ 11. She states that she wishes to continue patronizing and using the premises in the future. Id. ¶ 10.

Based on a preliminary inspection of the property, Plaintiff identified various violations under the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. ("ADA"), including violations at the entrance, path of travel, and parking area. Id. ¶ 15. Accordingly, on June 15, 2011, Plaintiff filed this action for violation of the ADA. Id. Plaintiff seeks declaratory judgment, injunctive relief, attorneys fees, and costs.

Id. at 6-7.*fn2

On January 19, 2012, the Court granted in part Ms. Grova's Motion to Dismiss Complaint [DE 34], dismissing the Complaint without prejudice and with leave to amend. See Order Granting in Part Defendant Arlene Grova's Motion to Dismiss Complaint [DE 40] ("January 19th Order"). Thereafter, on January 20, 2012, Plaintiff filed her Amended Complaint. Finally, on February 3, 2012, Ms. Grova filed the instant Motion, seeking to dismiss the Amended Complaint.

II. DISCUSSION

Ms. Grova argues that Plaintiff's Amended Complaint fails to eliminate all internal inconsistencies, per the Court's express directive in the January 19th Order. Plaintiff also argues that the Amended Complaint fails to plead an indispensable element for an ADA claim. Plaintiff objects to both bases for dismissal. As described blow, the Court finds that Plaintiff's pleading is sufficient to survive dismissal.

A. The Complaint is Sufficiently Clear

In evaluating the initial Complaint, the Court previously found as follows: In sum, the language in the Complaint is confusing. The Court cannot determine whether Plaintiff brings her claims individually, in some associational or representative capacity, or as a class action. As such, the Complaint does not meet Rule 8's requirement to provide "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Accordingly, the Court will dismiss the Complaint without prejudice and require that before re-filing, Plaintiff edit her pleading to eliminate any internal [in]consistencies or typos and clarify the capacity in which she brings her claims.

January 19th Order at 5 (footnote omitted).

Ms. Grova suggests that Plaintiff has shown "blatant disregard of the Court's unambiguous directive," Mem. at 4, and points to several instances in the Amended Complaint where Ms. Grova contends that Plaintiff left "some question as to the true capacity in which she seeks to bring her lawsuit," id. at 2. Plaintiff responds that the Amended Complaint leaves no confusion that Plaintiff brings her claims in her individual capacity. The Court agrees with Plaintiff. Therefore, the Amended Complaint survives dismissal on this basis.

B. Plaintiff States a Claim for Violation of Title III of the ADA

Title III of the ADA provides, in pertinent part, as follows: 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 ...


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