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Seiger v. M&M Financial Investors International, Inc.

United States District Court, M.D. Florida, Tampa Division

September 8, 2017

MARSHA SEIGER, Plaintiff,
v.
M&M FINANCIAL INVESTORS INTERNATIONAL, INC., THE BEST OFFICES OF LATIN AMERICA, INC. and KELLY'S COMPLETE PET GROOMING, LLC, Defendants.

          ORDER

          CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE

         This matter comes before the Court upon the Defendants' Rule 12(b)(1) and Rule 12(b)(6) Motion to Dismiss and Memorandum of Legal Authority in Support Thereof (Doc. 9), and Plaintiff's response in opposition (Doc. 23). Defendants move to dismiss the Complaint, which seeks injunctive relief against them for violations of the Americans with Disabilities Act (“ADA”) and Florida Accessibility Code For Building Construction (“FADAI”), on the basis that Plaintiff Alvin Seiger, by and through his Attorney-In-Fact and Next Friend Marsha Seiger, did not state an injury-in-fact as required for Article III standing. Doc. 9. In response, Plaintiff argues that he sufficiently alleged an injury based on his actual knowledge of Defendants' violations of the ADA and FADAI, and his intent to visit the Defendants' property and stores in the future. Doc. 23. The Court, having considered the motion and being fully advised in the premises, will grant Defendants' motion to dismiss and give Plaintiff leave to amend the Complaint within 14 days to correct the deficiencies noted herein.

         I. STATEMENT OF FACTS [1]

         Alvin Seiger is confined to a wheelchair and suffers from a mental impairment that requires all decisions to be undertaken by his attorney-in-fact and next of friend, Marsha Seiger.[2] Doc. 1 ¶¶ 5-6, 8-9. Seiger's impairments substantially limit one or more of his major life activities, rendering him a qualified individual under the ADA and FADAI. Id. ¶ 5. Seiger is a “tester” who asserts his civil rights by monitoring, ensuring, and determining whether places of public accommodation are in compliance with the ADA. Id. ¶ 27.

         Defendant M&M Financial Investors International, Inc. (“M&M”) owns and leases real property in Sarasota, Florida that contains a restaurant (the “property” or “facility”). Id. ¶¶ 12, 17. Defendant Kelly's Complete Pet Grooming, LLC (“Kelly's”) leases space within M&M's property, where it operates a pet grooming store. Id. ¶ 14. Defendant The Best Offices of Latin America, Inc. d/b/a Boost Mobile (“Boost Mobile”) leased space within M&M's property, where it operated a store.[3] Id. ¶ 16. However, according to an affidavit submitted by the President of M&M, Boost Mobile permanently vacated the property prior to service of the summons and Complaint in this action. Doc. 9 p. 12.

         Seiger has never attempted to access the property, but has knowledge of its deficiencies and alleges that he will visit the property “in the near future” once the violations of the ADA, Americans with Disabilities Act Accessibility Guidelines 28 C.F.R. § 36 (“ADAAG”), and FADAI are cured. Doc. 1 ¶¶ 24, 29, 34. Seiger has been deterred from visiting the property because of the violations, which prevent him from safely accessing the property and its amenities, and believed that visiting the property would be futile unless he were willing to endure discrimination. Id. ¶¶ 22-23, 34. Specifically, the violations include that the property does not have an accessible parking space, does not have an accessible route from the parking area to the entrance of the facility, the entrance doors to Kelly's and Boost Mobile do not provide a level landing, and neither Kelly's nor Boost Mobile have a fully accessible restroom. Id. ¶ 32. Nonetheless, Seiger seeks to partake in the stated premises and access the services offered by Defendants at the property. Id. ¶ 21-22.

         Based on these alleged facts, Seiger filed the Complaint alleging one count for injunctive relief under the ADA and one count for injunctive relief under the FADAI. Id. ¶¶38-51. In both counts, Seiger requests this Court to order Defendants to alter their premises to comply with the ADA and FADAI by maintaining accessible features at the premises. Id. ¶¶ 44, 51. Seiger also claims entitlement to attorneys' fees in accordance with 42 U.S.C. § 12205. Id. ¶ 37.

         In the instant motion to dismiss the Complaint, Defendants argue that because Seiger has never visited the premises and no allegations in the complaint support Seiger's contention that barriers prevented his access to the property, he has not stated any injury in fact. Id. ¶¶ 4-5. Additionally, Defendants contend that the Complaint does not contain any allegations that Seiger had plans or was likely to visit the property in the near future, but contained only “someday” intentions that are insufficient to support standing on the basis of a likelihood of future injury. Id. ¶ 6. Further, because the Complaint alleges that Seiger suffered from a mental impairment such that he was incompetent to pursue his own case, and all decisions were made by Marsha Seiger, Defendants argue that Seiger could not make a decision to visit the property, is not reasonably likely to ever be a patron of Kelly's, and has no injury in fact. Id. ¶ 7. Defendants also assert that Boost Mobile closed and vacated the property prior to Seiger filing the Complaint, which they support by the affidavit of M&M's President. Id. ¶ 9.

         II. LEGAL STANDARD

         A. Federal Rule of Civil Procedure 12(b)(1)

         A defendant may attack subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) in two manners: facially and factually. McMaster v. United States, 177 F.3d 936, 940 (11th Cir. 1999) (citing Lawrence v. Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990)). A facial attack to subject matter jurisdiction requires the Court to assess if the complaint sufficiently alleges a basis for jurisdiction. See id.; see also Houston v. Marod Supermarkets, Inc.¸733 F.3d 1323, 1335 (11th Cir. 2013). When considering a facial attack to subject matter, the Court is confined to the four corners of the complaint and will consider all allegations of the complaint to be true. Carmichael v. Kellogg, Brown & Root Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009) (citing Morrison v. Amway Corp., 323 F.3d 920, 925 n.5 (11th Cir. 2003)).

         By contrast, in assessing a factual challenge to subject matter jurisdiction, the court may consider matters outside of the complaint. McMaster, 177 F.3d at 940. (“ ‘Factual attacks' . . . challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered.' ”) (quoting Lawrence, 919 F.2d at 1529). If a Court finds at any point in the litigation that it lacks subject matter jurisdiction over an action, it must dismiss the complaint. See Fed. R. Civ. P. 12(h)(3); see also Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006).

         B. Federal Rule of Civil Procedure 12(b)(6)

         To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the ...


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