United States District Court, M.D. Florida, Tampa Division
CHARLENE EDWARDS HONEYWELL UNITED STATES DISTRICT JUDGE
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.
STATEMENT OF FACTS 
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. 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.
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. 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.
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.
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.
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. ¶
Federal Rule of Civil Procedure 12(b)(1)
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)).
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
Federal Rule of Civil Procedure 12(b)(6)
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 ...