United States District Court, S.D. Florida, Miami Division
ORDER DENYING DEFENDANTS' MOTIONS TO
FEDERICO A. MORENO, UNITED STATES DISTRICT JUDGE
case is a one-count Americans with Disabilities Act claim by
Renzo Barberi against Luisi Dollar Discount Mini Market d/b/a
Castillo Market and the lessor/owner of Castillo Market,
Dimar and Brothers, LLC. Barberi is a paraplegic who visited
the Market to purchase groceries, but was unable to
successfully shop because of certain architectural boundaries
allegedly violating various ADA provisions involving:
accessible routes, disabled-person parking spaces, passenger
loading zones, signage, self-serve merchandise aisles, steps,
broken tiles and uneven surfaces, service counters, and
service areas. Barberi alleges that removal of these
discriminatory barriers is readily achievable and technically
feasible. He lives in close proximity to the Market, is
frequently in the area, and intends to return within the next
six months to shop or to further investigate ADA compliance.
alleges 12 total violations of the ADA  and seeks declaratory
and injunctive relief. Defendants move to dismiss the
complaint or, alternatively, move for a more definite
statement.  Specifically, Defendants maintain
that: (1) Barberi lacks standing; (2) the complaint is a form
complaint that fails to plead any disability or architectural
barriers encountered by Barberi; and (3) the Market is not
governed by the ADA because it is not a place of public
accommodation. This Court concludes that Barberi's
complaint is sufficient, but grants leave to Defendants to
reargue standing at summary judgment with the benefit of a
more complete record.
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" Fed.R.Civ.P. 8(a)(2).
"To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). While detailed factual allegations are
not required, the allegations must include "enough to
raise a right to relief above the speculafive level."
Twombly, 550 U.S. at 555. A pleading must offer more
than "labels and conclusions" or "a formulaic
recitation of the elements of the cause of action."
argue that Barberi does not have standing to bring his claim.
At the motion to dismiss stage, the courts evaluate standing
based on the facts alleged in the complaint. Shotz V.
Gates, 256 F.3d 1077, 1081 (11th Cir. 2001). To
establish standing, a plaintiff must satisfy three
requirements: (1) injury-in-fact; (2) a causal connection
between the injury and the challenged conduct; and (3) that
the injury will be redressed by a favorable decisioa
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
of past discrimination in violation of the ADA satisfies the
injury-in-fact requirement. Access Now, Inc. v. S. Fla.
Stadium Corp., 161 F.Supp.2d 1357, 1364 (S.D. Fla.
2001). But, a plaintiff seeking injunctive relief in relation
to future conduct also "must show a sufficient
likelihood that he will be affected by the allegedly unlawful
conduct in the future." Houston V.
MarodSupermarkets, Inc., 733 F.3d 1323, 1328 (11th
Cir. 2013). Said differently, in ADA cases, a plaintiff must
establish pas/ discrimination ond future
discrimination to satisfy injury-in-fact. See Id. at
1329. The threat of future discrimination has to be
"real and immediate-as opposed to merely conjectural or
hypothetical." Id. (citing Shotz, 256
F.3d at 1081). Here, Defendants argue that Barberi does not
adequately allege past discrimination or the threat of future
Barberi Sufficiently Alleges Past
argue that Barberi did not suffer an injury-in-fact because
his purpose for entering the Market was to obtain evidence
for one of his more than 300 ADA lawsuits filed as a
"tester." Barberi responds that his motive for
visiting the Market is irrelevant. The Eleventh Circuit has
clearly held that a tester's motive for visiting a store
does not negate injury-in-fact. Houston, 733 F.3d at
1334. Thus, Barberi's 300 lawsuits have no relation to
his standing to bring this individual claim. Here, accepting
all facts in the complaint as true, Barberi alleges that he
is disabled and was denied full and equal treatment at the
Market because he encountered discriminatory barriers. This
is sufficient to show past discrimination.
Barberi Sufficiently Alleges Threat of Future
Discrimination at the Motion to
argue that Barberi does not sufficiently allege that he will
suffer future discrimination because his potential to return
to the Market is speculative, and an injunction based on
Barberi's spontaneous desire to visit the Market would be
improper. In response, Barberi stands on his ...