United States District Court, M.D. Florida, Orlando Division
G. BYRON UNITED STATES DISTRICT JUDGE.
cause comes before the Court without oral argument on
Defendant, New Smyrna ACD, LLC.'s Motion to Dismiss the
Second Amended Complaint with Prejudice (Doc. 40), filed
September 25, 2017; and Plaintiff's Response (Doc. 45),
filed October 17, 2017. The parties have completed their
briefing and the Court is otherwise fully advised on the
premises. For the following reasons, the Court finds that
Defendant's motion to dismiss for lack of standing is due
to be granted.
Patricia Kennedy, sues Defendant, New Smyrna ACD LLC, seeking
a declaratory judgment and injunctive relief under Title III
of the Americans with Disabilities Act (“ADA”),
42 U.S.C. §§ 12181-12189. Plaintiff is unable to
walk, has limited use of her hands, and relies on a
wheelchair to move. (Doc. 36, ¶ 1). Plaintiff alleges
that she suffered discrimination based on access barriers at
the New Smyrna Beach Shopping Center (the
“Property”), a property owned by Defendant.
(Id. ¶¶ 1, 7). She also claims to be a
“tester” for ADA compliance in places of public
accommodation and often travels to such facilities for this
purpose. (Id. ¶ 9). As both a patron and a
tester, therefore, Plaintiff allegedly visited
Defendants' location once-on December 13, 2016-before
initiating this action on January 19, 2017. (Id.
Property is located in New Smyrna Beach, Volusia County,
Florida. (Id. ¶ 7). Plaintiff lives in Broward
County, Florida. (Id. ¶ 1). Plaintiff alleges
that she observed violations in the Property's parking
lot and in three businesses occupying retail space located on
the Property. (Id.). Specifically, she alleges (1)
there is no accessible route between disabled parking spaces
and the essential elements of the Property; and (2) that the
restrooms in Curley's Barber Shop, Sherwin Williams, and
Top Nails fail to meet ADA requirements. (Id.).
Plaintiff claims she has visited “Volusia County
frequently since late 2016, ” and that “she has
been there as often as twice a month.” (Id.
¶ 8). She “plan[ned] to return to the [P]roperty
in the near future, specifically, in September of , to
avail herself of the goods and services offered to the public
at the [P]roperty, and to determine whether the [P]roperty
has been made ADA compliant.” (Id.)
STANDARDS OF REVIEW
12(b)(1) attacks on subject matter jurisdiction may be facial
or factual. Carmichael v. Kellogg, Brown & Root
Servs., Inc., 572 F.3d 1271, 1279 (11th Cir. 2009). For
facial attacks, the Court accepts the complaint's
allegations as true. Stalley ex rel. U.S. v. Orlando
Reg'l Healthcare Sys. Inc., 524 F.3d 1229, 1232
(11th Cir. 2008). Factual attacks, in contrast, allow a court
“to consider extrinsic evidence such as deposition
testimony and affidavits.” Carmichael, 572
F.3d at 1279. Factual attacks place the burden on the
plaintiff to show that jurisdiction exists. OSI, Inc. v.
United States, 285 F.3d 947, 951 (11th Cir. 2002).
III, Section 2 of the United States Constitution limits
federal courts' jurisdiction to actual cases and
controversies. Standing is part of this limitation, as a
“threshold jurisdictional question” that must be
resolved before a court can turn to a claim's merits.
Bochese v. Town of Ponce Inlet, 405 F.3d 964, 974
(11th Cir. 2005). Courts determine standing at the time of
filing. Id. at 976.
moves to dismiss on three bases: (1) failure to state a claim
pursuant to Fed.R.Civ.P. 12(b)(6); (2) lack of standing; and
(3) failure to include indispensable parties. A favorable
ruling for Defendant on its Rule 12(b)(1) motion to dismiss
for lack of standing is, however, dispositive because it
attacks the Court's subject matter jurisdiction over
challenges Plaintiff's standing based on the allegations
of the Second Amended Complaint and Plaintiff's history
of filing ADA suits. (Doc. 40). In response, Plaintiff
submitted an affidavit describing her intention to return to
the Property, and reciting the many times she has visited
Volusia County between November 2016 and October 2017. (Doc.
45-1). Because such evidence is extrinsic to the pleadings,
the Court construes Defendant's challenge as a factual
attack; therefore, the Court can “consider extrinsic
evidence such as deposition testimony and affidavits.”
See Houston v. Marod Supermarkets, Inc., 733 F.3d
1323, 1335-36 (11th Cir. 2013) (construing a 12(b)(1)
challenge as factual because the parties submitted evidence
outside of the complaint). Moreover, the Court can weigh
facts, and is not required to view those facts in the light
most favorable to Plaintiff. Id. at 1336.
establish standing, a plaintiff must allege: (1)
injury-in-fact; (2) a causal connection between the injury
and the conduct complained of; and (3) that it is likely the
injury will be redressed by a favorable ruling. See Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992); see
also Houston, 733 F.3d at 1328. In the ADA context, when
seeking prospective, injunctive relief, a plaintiff must also
plausibly show that she will suffer disability discrimination
by the defendant in the future. Houston, 733 F.3d at
1328. This means that the threat of future injury must be
“real and immediate-as opposed to merely conjectural or
Plaintiff meets the first two elements of standing. First,
Plaintiff has sufficiently shown an injury-in-fact based on
the barriers she faced at Defendant's Property.
(See Doc. 45-1, ¶ 5). Being deterred from
returning to Defendant's property in the future due to
discriminatory barriers establishes a “cognizable
interest for purposes of standing.” See Hoewischer
v. Cedar Bend Club, Inc., 877 F.Supp.2d 1212, 1222 (M.D.
Fla. 2012) (citation and quotation marks omitted). Second,
Plaintiff satisfies causation because her alleged
injury-in-fact occurred at the Property where she encountered
those barriers. See De Palo v. Walker Ford Co., No.
8:15-cv-169-T-27AEP, 2015 WL 4506890, at *3 (M.D. Fla. July
Plaintiff must demonstrate that her injury “will be
redressed by a favorable decision.” See
Houston, 733 F.3d at 1328. To do so where, as here, the
plaintiff seeks prospective injunctive relief, she must show
that she will plausibly suffer future disability
discrimination from the defendant. See Hoewischer,
877 F.Supp.2d at 1222. To establish the requisite “real
and immediate threat of future injury, ” a plaintiff
pursuing injunctive relief “under Title III either must
‘have attempted to return' to the non-compliant
building or at least ‘intend to do so in the