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Kennedy v. New Smyrna ACD LLC

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

December 22, 2017




         This 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.

         I. BACKGROUND

         Plaintiff, 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. ¶ 8).

         The 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 [2017], 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.)


         Rule 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).

         Article 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.


         Defendant 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 Plaintiff's claim.

         Defendant 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.

         To 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 hypothetical.” Id.

         Here, 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 23, 2015).

         Finally, 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 ...

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