United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
N. SCOLA, JR. UNITED STATES DISTRICT JUDGE.
Defendants SMG Holdings I, LLC and SMG Holdings II, LLC have
filed a motion to dismiss (ECF No. 12). Asserting claims for
violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101 et
seq. and trespass, the Plaintiff Juan Carlos Gil alleges
that he was unable to meaningfully access the Defendants'
website. The Defendants seek dismissal of the Plaintiff's
complaint on the basis that his claims have become moot, and
for failure to state a claim. (Mot., ECF No. 12.) For the
reasons set forth below, the Court denies
the motion (ECF No. 12).
Plaintiff is a legally blind individual, who attempted to use
the Defendants' website, www.jlkc.com, to obtain
information regarding events and performances at the James L.
Knight Center. He uses screen reading software that allows
him to communicate with enabled websites, but the
Defendants' website does not have the capability to allow
blind or otherwise visually impaired individuals to use their
keyboards and screen reading software. In addition, the
Plaintiff alleges that because he was unable to interact with
the Defendants' website, he was not able to read and
understand the Defendants' user personal information
collection policy and practices, or that the Defendants'
website places software on a user's computer to collect
browsing history and analytics. As a result, the Plaintiff
asserts two claims against the Defendants for violation of
the ADA (Count 1), and trespass (Count 2).
III of the Constitution grants federal courts judicial power
to decide only actual “Cases” and
“Controversies.” U.S. Const. Art. III § 2.
“There are three strands of justiciability
doctrine-standing, ripeness, and mootness- that go to the
heart of the Article III case or controversy
requirement.” Zinni v. ER Sols., Inc., 692
F.3d 1162, 1166 (11th Cir. 2012) (quoting Christian Coal.
of Fla., Inc. v. United States, 662 F.3d 1182, 1189
(11th Cir. 2011)). With respect to mootness, the Supreme
Court “has explained ‘a federal court has no
authority to give opinions upon moot questions . . .
.'” Id. (quoting Church of Scientology
of Cal. V. United States, 506 U.S. 9, 12 (1992)). A case
is moot “when it no longer presents a live controversy
with respect to which the court can give meaningful
relief.” Friends of Everglades v. S. Fla. Water
Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir. 2009)
(internal quotations and citations omitted); see also
Christian Coal., 662 F.3d at 1189 (citations omitted);
Zinni, 692 F.3d at 1166 (citations omitted).
“If events that occur subsequent to the filing of a
lawsuit . . . deprive the court of the ability to give the
plaintiff . . . meaningful relief, then the case is moot and
must be dismissed. Indeed, dismissal is required because
mootness is jurisdictional. Any decision on the merits of a
moot case or issue would be an impermissible advisory
opinion.” Id. (citation omitted). When
considering a defendant's argument that facts now exist
that deprive the court of subject matter jurisdiction, a
court may consider extrinsic evidence such as testimony and
affidavits. See Morrison v. Amway Corp., 323 F.3d
920, 924 n.5 (11th Cir.2003).
standard for dismissing a case on the basis of mootness is
“stringent.” United States v. Concentrated
Phosphate Export Ass'n, 393 U.S. 199, 203 (1968).
“A case might become moot if subsequent events made it
absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to recur.” Id.;
see also Sheely v. MRI Radiology Network, P.A., 505
F.3d 1173, 1183 (holding that the defendant had not
“met its heavy burden of showing under controlling law
that it is ‘absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to
recur.'” (quoting Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000)). “[A] defendant's voluntary cessation of a
challenged practice does not deprive a federal court of its
power to determine the legality of the practice. If it did,
the courts would be compelled to leave the defendant free to
return to his old ways.” Id.
their motion, the Defendants represent to the Court that the
virtual barriers enumerated in the Plaintiff's complaint
are in the process of being corrected-referring the Court to
the Declaration of Rodrigo Carvalho (ECF No. 11) detailing
the scope of work to be performed in addition to an audit
report from Miami Lighthouse for the Blind. In the
Declaration, Mr. Carvalho also represents that the necessary
changes to the website will be completed by May 1, 2018.
(See ECF No. 11 at ¶ 6.) In addition, the
Defendants recently filed a Second Declaration by Mr.
Carvalho, asserting that the scope of work described in his
first Declaration has been completed, and attaching a report
of the work completed. Mr. Carvalho also asserts that the
Defendants' website is now ADA compliant. (See
ECF No. 25-1.) Therefore, the Defendants argue that the
Plaintiff's ADA claim is moot.
Mr. Carvalho's Declarations and the Defendants'
notice of supplemental authority (ECF No. 26), the Defendants
do not establish that it is absolutely clear that the
violations alleged in the complaint cannot reasonably be
expected to recur. Indeed, upon review of the report attached
to Mr. Carvahlo's Second Declaration, numerous further
changes are recommended. For example, in the section entitled
“Indication of the existence of a submenu in the main
menu items, ” Mr. Carvahlo notes that “[t]he
analysis recommendation indicates the change in the behavior
of the submenu items so that when the user clicks on the main
menu, the submenu options are displayed.” (ECF No. 25-2
at § 3.5.) However, the report goes on to note that
“[t]his change is not possible due to the structuring
of the theme with the menu.” (Id.) Thus, the
Court cannot conclude that the necessary modifications have
indeed occurred as required.
the Court acknowledges that it has previously found ADA
claims to be moot based upon voluntary cessation by
defendants, Houston v. 7-Eleven, Inc., No.
13-60004-Civ, 2014 WL 351970, at *4 (S.D. Fla. Jan. 31, 2014)
(Scola, J.), the Houston case involved structural
barriers that the defendant modified, not virtual barriers as
in this case. Moreover, this is not a case in which there is
a pre-existing remediation plan with which the Defendants are
complying, or a previous essentially identical lawsuit
against the Defendants based on alleged website
inaccessibility. See, e.g. Haynes v. Hooters of Am.,
LLC, No. 17-60663-Civ-Scola, 2017 WL 2579044, at *2
(S.D. Fla. June 14, 2017) (Scola, J.) (finding ADA claims
moot, where proposed remediation plan was in accordance with
a previous binding settlement agreement involving nearly
identical claim); Haynes v. Brinker Int'l, Inc.,
No. 17-cv-61265-BLOOM/Valle, 2017 WL 4347204, at *2 (S.D.
Fla. Sept. 29, 2017) (Bloom, J.) (same); Haynes v. Panda
Express, Inc., No. 17-cv-61567-BLOOM/Valle, 2018 WL
538698, at *3 (S.D. Fla. Jan. 24, 2018) (Bloom, J.) (same).
result, whether or not the Plaintiff is entitled to the
injunctive relief he seeks-further modification of the
Defendants' website accessibility policy and website-is a
question unsuitable for disposition at this stage in this
case. Therefore, the Defendants have not met their heavy
burden to show that the claimed ADA violations are moot.
See Sheely, 505 F.3d at 1183.
the Defendants' motion to dismiss (ECF No.
12) is denied. Furthermore,
pursuant to the Plaintiffs notice of voluntary dismissal (ECF
No. 18), the ...