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Kennedy v. Paniccia-Indialantic, LLC

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

November 8, 2017

PATRICIA KENNEDY, Plaintiff,
v.
PANICCIA-INDIALANTIC, LLC, Defendant.

          ORDER

          GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court on the Motion to Dismiss (Doc. 30) filed by the Defendant, Paniccia-Indialantic, LLC (henceforth, “Paniccia”), and the response in opposition (Doc. 35) filed by the Plaintiff, Patricia Kennedy.

         I. Background

         According to the allegations of the Complaint, which are accepted in pertinent part as true for purposes of resolving the instant motion, Kennedy has limited use of her hands and is bound to a wheelchair. (Doc. 1 at 1). Kennedy visited the Indialantic Center in Brevard County, a “place of public accommodation” as that term is defined by the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12183, 12181-12205a (“ADA”). (Doc. 1 at 2, 4). She encountered architectural barriers that discriminated against her on the basis of her disability; and she plans to return to the property “in the near future” to “avail herself of the goods and services” offered there. (Doc. 1 at 4-5). “In the alternative, ” Kennedy asserts, she is a “tester” who monitors whether places of public accommodation are in compliance with the ADA.[1] (Doc. 1 at 5).

         Kennedy filed her single-count ADA complaint against Paniccia on December 23, 2016. (Doc. 1). On September 7, 2107, Paniccia filed the instant motion, seeking dismissal on the grounds that Kennedy had failed to state a claim and lacked standing to pursue her ADA claim. (Doc. 30).

         II. Standards

         A. The Americans with Disabilities Act

         Title III of the Americans With Disabilities Act, 42 U.S.C. §§ 12181-12189 (“Title III”), which addresses “Public Accommodations and Services Operated by Private Entities, ” provides that “[n]o individual shall be discriminated against on the basis of disability in any place of public accommodation.” 42 U.S.C. § 12182(a). Any person subjected to discrimination on the basis of disability in violation of Title III may bring a private action. 42 U.S.C. § 12188(a). Title III defines “discrimination” as, among other things, “a failure to remove architectural barriers … in existing facilities … where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). To prevail on a Title III ADA claim, a plaintiff generally has the burden of proving (1) that he or she is an individual with a disability; (2) that the defendant is a place of public accommodation; and (3) that defendant denied him or her full and equal enjoyment of goods, services, facilities or privileges offered by the defendant (4) on the basis of his or her disability. Schiavo ex rel Schindler v. Schiavo, 358 F.Supp.2d 1161, 1165 (M.D. Fla. 2005). The only relief available to plaintiffs suing under Title III of the ADA is injunctive relief. Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013).

         B. Standing to pursue an ADA Title III claim

         To have standing under Article III of the Constitution, a plaintiff must satisfy three elements: First, the plaintiff must have suffered an “injury in fact” - an invasion of a legally protected interest that is (a) concrete and particularized and (b) actual or imminent, rather than conjectural or hypothetical. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Second, there must be a causal connection between the injury and the conduct complained of; that is, the injury must be fairly traceable to the challenged action of the defendant rather than the result of independent action of a third party. Id. And it must be likely, rather than merely speculative, that the injury will be redressed by a favorable decision. Id. at 561. The party invoking the jurisdiction of the federal courts has the burden of establishing each element. Id.

         To establish standing when injunctive relief is sought, the “injury in fact” element requires an additional showing: In addition to past injury, the plaintiff must demonstrate a “sufficient likelihood” of being affected by the unlawful conduct in the future. Wooden v. Bd. of Regents of Univ. Sys. Of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001). Generally speaking, in the context of an ADA Title III claim, this is accomplished by showing that the plaintiff intends to return to the property at issue. The United States Court of Appeals for the Eleventh Circuit has rejected arguments that a tester's motive for a past (or future) visit to a place of public accommodation precludes him or her from having standing to seek injunctive relief under Title III of the ADA. See Houston v. Marod Supermarkets, Inc., 733 F.3d 1323 (11th Cir. 2013). On a defendant's motion to dismiss, the Court must evaluate standing based on the facts alleged in the complaint. See, e.g., Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001).

         C. Stating an ADA claim

         Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief” so as to give the defendant fair notice of what the claim is and the grounds upon which it rests, Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A Rule 12(b)(6) motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milbum v. United States, 734 F.2d 762, 765 (11th Cir.1984). In ruling on a motion to dismiss, the Court must accept the factual allegations as true and construe the complaint in the light most favorable to the plaintiff. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.1988). The Court must also limit its consideration to the pleadings and any exhibits attached thereto. Fed.R.Civ.P. 10(c); see also GSW, Inc. v. Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).

         The plaintiff must provide enough factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, 127 S.Ct. at 1966, and to indicate the presence of the required elements, Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302 (11th Cir. 2007). Conclusory allegations, unwarranted factual deductions or legal conclusions masquerading as ...


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