United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge.
THE COURT is Atithi Hospitality's ("Atithi")
Motion to Dismiss Judy's First Amended Complaint for Lack
of Subject Matter Jurisdiction, (Dkt. 14), which Judy
opposes. (Dkt. 17). Upon consideration, this Motion is
ALLEGATIONS OF ADA COMPLAINT AND BACKGROUND
is the owner of the Days Inn Hotel ("Hotel")
located in New Port Richey, Florida. (Dkt. 12 ¶ 6). Judy
is a paraplegic who uses a wheelchair as his primary means of
mobility. (Dkt. 12 ¶ 4). Judy filed this action against
Atithi for damages, declaratory, and injunctive relief
pursuant to Title III and Title IV of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12181,
et seq. (Dkt. 12 ¶ 1). Judy contends that
certain architectural barriers at the hotel made it difficult
for him to use the goods and services offered on the
property. (Dkt. 12 ¶ 13). Judy alleges that these
physical barriers are in violation of the ADA. (Dkt. 12
filed a Motion to Dismiss the First Amended Complaint for
Lack of Subject Matter Jurisdicition due to lack of standing
to seek injunctive relief. (Dkt, 14). Atithi argues that the
allegations in the First Amended Complaint fail to establish
Judy's standing at the time the lawsuit was
filed. As a result, Atithi contends that it is
entitled to dismissal pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. Specifically, it contends
that Judy failed to establish "a real and immediate
threat of future injury existed at the time [Judy] filed this
lawsuit" and that the "making of a reservation at
the Days Inn after the Defendant filed the Motion to Dismiss
challenging [Judy's] standing does not establish that he
had standing at the time the initial complaint was
filed." (Dkt. 14).
12(b)(1) motion to dismiss for lack of subject matter
jurisdiction comes in the form of either a facial or factual
attack. Morrison v. Amway Corp., 323 F.3d 920,
924-25, n.5 (11th Cir. 2003) (citing Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)).
"Facial attacks challenge subject matter jurisdiction
based on the allegations in the complaint, and the district
court takes the allegations as true in deciding whether to
grant the motion." Dunbar, 919 F.2d at 1529.
"[A] facial attack on the complaint requires the court
merely to look and see if the plaintiff has sufficiently
alleged a basis of subject matter jurisdiction."
Stalley ex rel. U.S. v. Orlando Reg'l Healthcare
Sys., Inc., 524 F.3d 1229, 1232-33 (11th Cir. 2008).
Whereas, "[f]actual attacks challenge subject matter
jurisdiction in fact, irrespective of the pleadings."
Dunbar, 919 F.2d at 1529.''In resolving a
factual attack, the district court may consider extrinsic
evidence such as testimony and affidavits." Id.
pleading stage, however, "general factual allegations of
injury resulting from the defendant's conduct may
suffice, for on a motion to dismiss [courts] 'presume
that general allegations embrace those specific facts that
are necessary to support the claim.'" Mulhall v.
Unite Here, Local355, 618 F.3d 1279, 1286 (11th Cir.
2010) (quoting Lujan v. Defenders of Wildlife, 5M
U.S. 555 (1988). Consequently, '"it is extremely
difficult to dismiss a claim for lack of subject matter
jurisdiction. Simanonok v. Simanonok, 1519 (11th
Cir. 1986) (quoting Duke Power Co. v. Carolina Envtl
Study Grp., 438 U.S. 59, 70 (1978). '"[T]he
test is whether the cause of action alleged is so patently
without merit as to justify ... the court's dismissal for
want of jurisdiction.'" Id.
12(b)(1) Motion to Dismiss, Atithi makes a facial attack
because it only challenges the sufficiency of the allegations
in the complaint. When reviewing a motion to dismiss for lack
of subject matter jurisdiction through the facial attack
lens, the complaint's allegations are accepted as true
for the purposes of the motion. McElmurray v. Consol.
Gov't of Augusta-Richmond County, 501 F.3d 1244,
1250 (11th Cir. 2007).
order to establish standing under Article III, Judy must
allege the following three elements. "First, he must
show that he has suffered an injury-in-fact. Second, [he]
must demonstrate a causal connection between the asserted
injury-in-fact and the challenged action of the defendant.
Third, [he] must show that the injury will be redressed by a
favorable decision." Shotz v. Gates, 256 F.3 d
1077, 1081 (11th Cir. 2001) (quoting Lujan, 504 U.S.
at 560-61). Additionally, when seeking injunctive relief a
plaintiff "must show a sufficient likelihood that [they]
will be affected by the allegedly unlawful conduct in the
future." Houston v. Marod Supermarkets, Inc.,
733 F.3d 1323, 1328 (11th Cir. 2013) (quoting Wooden v.
Bd. of Regents of Univ. Sys. Of Ga., 247 F.3d 1262, 1284
(11th Cir. 2001)). "Because injunctions regulate future
conduct, a party has standing to seek injunctive relief only
if the party shows a 'real and immediate'-as opposed
to a merely conjectural or hypothetical-threat of
future injury, " Shotz, 256 F.3d at 1081
(citing City of Los Angeles v. Lyons, 461 U.S. 95,
102 (1983)), And, "a plaintiff seeking an injunction
under Title III either must 'have attempted to
return' to the non-compliant building or at least
'intend to do so in the future.'"
Houston, 733 F.3d at 1336 (quoting Shotz,
256 F.3d at 1081).
this element for injunctive relief, a plaintiff must allege
"facts giving rise to an inference that he will suffer
future disability discrimination by the defendant."
Shotz, 256 F.3d at 1081. Therefore, a plaintiff who
pursues injunctive relief must "plead a genuine threat
of imminent injury." Stevens v. Premier Cruises,
Inc., 215 F.3d 1237, 1239 (11th Cir.
2000). However, even if Judy's "original
complaint failed to allege a genuine threat of future
injury", the Eleventh Circuit is satisfied when a
plaintiffs amended complaint "cure[s] the defect about
standing in the original complaint." Id.
the allegations as true, Judy's Amended Complaint meets
the requirements for a plaintiff seeking injunctive relief.
Specifically, Judy alleges that he "intends to return to
the area and stay at the Defendant's hotel during his
next planned visit to the Port Richey area ... in late March
2017." (Dkt. 12 ¶ 15). Judy's First Amended
Complaint satisfies this threshold by providing details about
his future plans to return to the property which are neither
conjectural nor hypothetical. See Shotz, 256 F.3d at
1081. Because Judy "alleges facts giving rise to an
inference that he will suffer future disability
discrimination by the defendant", he has met his burden.
Id. at 1081.
Atithi's motion to dismiss (Dkt. 14) is DENIED. Atithi
shall answer the First Amended ...