United States District Court, M.D. Florida
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion to Dismiss or, in
the Alternative, for Summary Judgment (Doc. 20) filed by the
Defendants and the response in opposition (Doc. 22) filed by
the Plaintiff, Patricia Kennedy.
to the allegations of the Complaint (Doc. 1) 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 ambulate in a wheelchair or with a cane or
other support”. (Doc. 1 at 1). Defendant SCF RC Funding
I LLC (henceforth, “SCF”) is alleged to be the
owner, lessor, lessee or operator of a Captain D's
restaurant in Seminole County, Florida. (Doc. 1 at 1).
Kennedy does not explain the presence of Captain D's LLC
as a defendant in this matter.
visited the Captain D's restaurant at issue, which she
contends is 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 1). She encountered
architectural barriers that discriminated against her on the
basis of her disability, and she plans to return to the
restaurant to “avail herself of the goods and
services” offered there and to “determine whether
the property has been made ADA compliant”. (Doc. 1 at
3). “In the alternative, ” Kennedy asserts, she
is a “tester” who monitors whether places of
public accommodation are in compliance with the
(Doc. 1 at 3).
filed her single-count ADA complaint against the Defendants
on July 26, 2017. (Doc. 1). On September 8, 2017, the
Defendants filed the instant motion, arguing that Kennedy
lacks standing to pursue her ADA claim. (Doc. 30).
The Americans with Disabilities Act
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).
Standing to pursue an ADA Title III claim
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
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
Stating an ADA claim
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 ...