United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER
E. STEELE SENIOR UNITED STATES DISTRICT JUDGE
matter comes before the Court on review of Defendant's
Motion to Dismiss (Doc. #13) filed on December 13, 2016.
Plaintiff filed a Response in Opposition to Defendant's
Motion to Dismiss (Doc. #16) on January 16, 2017. For the
reasons set forth below, the Motion is granted in part and
denied in part.
October 13, 2016, plaintiff Patricia Kennedy (Plaintiff)
filed a Complaint against Gulf Gate Plaza, LLC (Defendant)
alleging violations of Title III of the Americans with
Disabilities Act (ADA), 42 U.S.C. § 12181 et
seq. (Doc. #1.) Plaintiff, a resident of Broward County,
Florida, alleges that she qualifies as a disabled individual
under the ADA because she is wheel-chair bound with limited
use of her hands. (Id. ¶ 1.) Defendant owns,
operates, or leases out property open to the public located
in Collier County, Florida (Gulf Gate Plaza). (Id.)
Plaintiff alleges she encountered barriers which limited or
denied her access to goods and services offered by the
businesses located at Gulf Gate Plaza, and that her access
will continue to be limited or denied until Gulf Gate Plaza
becomes ADA compliant. (Id. ¶ 8.) Plaintiff
alleges that she has visited the Property and plans to return
to Gulf Gate Plaza in the near future, both to avail herself
of the goods and services provided and to assess ADA
compliance. (Id.) Plaintiff alleges that
Defendant's failure to maintain Gulf Gate Plaza in
compliance with the ADA is discriminatory and deprives her of
“the full and equal enjoyment of the goods, services,
facilities, privileges and/or accommodations available to the
general public.” (Id. ¶ 12.) Paragraph 7
of Plaintiff's Complaint describes the existing
violations at Gulf Gate Plaza. (See id. ¶ 7.)
moves to dismiss Plaintiff's complaint for (1) lack of
subject-matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1) because plaintiff lacks standing and (2)
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6). The
Court agrees in part.
It is a
fundamental principal that federal subject-matter
jurisdiction is limited to actual cases or controversies.
Spokeo, Inc. v. Robins, 136 S.Ct. 1540,
1547 (2016) (citing Raines v. Byrd, 521 U.S. 811,
818 (1997)). The minimum requirement for standing consists of
three elements: (1) the plaintiff suffered an injury-in-fact,
(2) that is fairly traceable to the defendant's
challenged conduct, and (3) that is likely redressable by a
favorable judicial decision. Id. (citation omitted).
“[A] plaintiff must demonstrate standing separately for
each form of relief sought.” DaimlerChrysler Corp.
v. Cuno, 547 U.S. 332, 352 (2006). When an injunction is
sought, the moving party must also show a continuing threat
of injury. Friends of Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). To
merit injunctive relief, a plaintiff must demonstrate that
she suffers the threat of an “‘injury in
fact' that is concrete and particularized; the threat
must be actual and imminent, not conjectural or hypothetical;
it must be fairly traceable to the challenged action of the
defendant; and it must be likely that a favorable judicial
decision will prevent or redress the injury.”
Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009) (citation omitted). The party invoking federal
jurisdiction bears the burden of establishing these three
elements. Spokeo, 136 S.Ct. at 1547. Where a case is
at the pleading stage, the plaintiff must “clearly . .
. allege facts demonstrating” each element.
Id. (omission in original) (citation omitted).
considering all the material submitted by the parties as to
the factual challenge to the Plaintiff's standing, the
Court concludes that the Plaintiff has clearly demonstrated
her standing as a “tester”. Havens Realty
Corp. v. Coleman, 455 U.S. 363, 363 (1982). See also
Kennedy v. Publix Super Markets, Inc., No.
2:16-cv-377-FtM-99CM, 2016 WL 7210885 at *1 (M.D. Fla. Dec.
13, 2016). Court files establish that disabled Plaintiff has
filed at least 177 federal lawsuits in the Middle District of
Florida alleging discrimination under the ADA, as well as at
least 108 federal lawsuits in the Fort Myers Division alone.
Therefore, the defendant's Motion to Dismiss for lack of
standing is denied.
Rule 8(a)(2), a Complaint must contain a “short and
plain statement of the claim showing that the pleader is
entitled to relief.” Fed.R.Civ.P. 8(a)(2). This
obligation “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of
action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (citation omitted). To
survive dismissal, the factual allegations must be
“plausible” and “must be enough to raise a
right to relief above the speculative level.” Id.
See also Edwards v. Prime Inc., 602 F.3d 1276, 1291
(11th Cir. 2010). This requires “more than an
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citations omitted).
deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and
take them in the light most favorable to plaintiff,
Erickson v. Pardus, 551 U.S. 89 (2007), but
“[l]egal conclusions without adequate factual support
are entitled to no assumption of truth, ” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations
omitted). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Iqbal, 556 U.S. at 678.
“Factual allegations that are merely consistent with a
defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (citations omitted). Thus,
the Court engages in a two-step approach: “When there
are well-pleaded factual allegations, a court should assume
their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Iqbal, 556
U.S. at 679.
Defendant argues that paragraph 7 of Plaintiff's
Complaint is deficient because it does not sufficiently
identify where in the shopping center the discriminatory
barriers and ADA violations were located, and fails to
identify the nature of the alleged ADA violations. (Doc. #13,
pp. 5-9.) The Court finds that the ADA violations in
paragraph 7 of the Plaintiff's Complaint fail to
adequately describe the “what” and
“where” necessary for the defendant to frame a
responsive pleading. As such, the Plaintiff's Complaint
(Doc. #1) will be dismissed without prejudice with leave to