United States District Court, S.D. Florida
Carlos Alonso, as guardian of Angie Alonso, Plaintiff.
Dr. Gladys Y. Alonso, M.D., Defendant.
OPINION ORDER ON MOTION TO DISMISS
Alonso (“Carlos”), as guardian of his son Angie
Alonso (“Angie”), sues Defendant Dr. Gladys
Alonso. M.D. (“Gladys”), Angie's former
physician, for injunctive relief under Title III of the
Americans with Disabilities Act (the “ADA, ” 42
U.S.C. § 12182), and other claims under Florida law.
before the Court is a motion to dismiss filed by the Gladys.
(the “Motion, ” ECF No. 41.) Having considered
the parties' submissions and the applicable law, the
Court denies the Motion (ECF No.
41) as set forth below.
is the legal guardian for his permanently disabled adult son,
Angie, with whom he lives in Hialeah, Florida. Angie suffers
from, among other things, cognitive impairments, severe
cerebral palsy and spasticity resulting from hypoxia during a
complex childbirth. (ECF No. 40 at ¶ 2.) These
conditions have rendered Angie unable to walk without the
assistance of others. As such, he must use a wheelchair when
traveling outside his home. (Id.) Angie cannot
meaningfully speak or communicate with others and requires
twenty-four-hour assistance to complete tasks of daily
living, such as bathing, eating and using the bathroom.
(Id.) This assistance is provided almost exclusively
by Carlos and Angie's mother.
received Home Health Aid Services (“HHAS”)
through an assigned Personal Care Assistant
(“PCA”) through Florida's Medicaid program.
(Id. at ¶¶ 7, 8, 19-21.) “This PCA
worker would typically visit Angie's home for three (3)
hours to assist Angie with everyday living activities that he
could not perform on his own.” (Id. at ¶
20.) To receive this service, Angie was required to obtain a
medical assessment every sixty-days with a physician who
certified to the State of Florida that Angie still required a
PCA. (Id.) From September 2012 through December
2016, Gladys was that physician for Angie. (Id. at
¶¶ 3, 15, 22.)
beginning of their relationship, Angie would visit
Gladys' medical office in Hialeah (the
“Office”). (Id. at ¶ 5.) But
“Angie's wheelchair could not easily fit through
the elevator doors and office door” and the
Office's “waiting room was too small for a
handicapped person like Angie.” (Id. at ¶
16.) So, to complete the assessments required for PCA
services, the parties sought alternative arrangements.
Ultimately, Angie agreed to forgo “receiving medical
care at the Office, ” and instead Gladys “would
visit Angie in his apartment.” (Id. at ¶
visits occurred sporadically. “From 2012 to the end of
the physician-patient relationship in 2016, [Gladys]
continually missed scheduled meetings with Angie.”
(Id. at ¶ 18.) Her medical staff also
“did not respond to Angie's case worker when
[Gladys] failed to visit every month.” (Id.)
By “ignoring her obligation to do a medical assessment
of Angie and submit every (60) days the paperwork to the
State of Florida, ” Angie “lost hundreds of hours
of service from the PCA.” (Id. at ¶¶
19-21.) “The only replacement for this worker was
through [Carlos] and Angie's mother.” (Id.
at ¶ 21.)
2016, Angie received emergency treatment for medical ailments
that Carlos claims “could have been ameliorated if
[Gladys] had been providing medical care to Angie.”
(Id. at ¶ 24.) At that point, Carlos began
looking for a new physician for Angie and eventually settled
on a doctor at the Lennar Center in Coral Gables, Florida.
(Id. at ¶¶ 9, 26.) But traveling from
Hialeah to Coral Gables can take over an hour and making this
trip “is an arduous task for Angie and his
parents.” (Id. at ¶¶ 9, 42.) Indeed,
Angie's “actual spasticity” causes “him
a lot of pain when sitting in the wheelchair or traveling in
the car for more than thirty (30) minutes.”
(Id. at ¶¶ 9, 42.) Because of this,
“Angie would reasonably intend to stay a medical
patient of Gladys' Hialeah medical practice “but
for [Gladys'] failure to reasonably accommodate
[Angie's] disability.” (Id. at ¶ 41.)
September 7, 2018, Carlos filed this lawsuit pro se.
(ECF No. 1.) He served Gladys on November 6, 2018. (ECF No.
20.) Gladys failed to timely respond to the complaint and the
clerk entered default against her on December 6, 2018. (ECF
No. 25.) Before Carlos moved for default judgment, on January
10, 2019, Gladys appeared through counsel and moved to vacate
clerk's default. (ECF No. 31.) She attributed her failure
to timely respond to this case to her practice of
“review[ing] her incoming mail on a monthly
basis.” (Id. at p. 2.) Over Carlos'
objection, the Court granted that motion and vacated
clerk's default on January 15, 2019. (ECF No. 33.)
Thereafter, counsel appeared on behalf of Carlos and the
Court ordered the complaint replead. (ECF Nos. 36, 37.)
February 28, 2019, Carlos, through counsel, filed the
operative amended complaint asserting three causes of action:
(1) Count I under Title III of the ADA for declaratory and
injunctive relief, seeking an order “requiring [Gladys]
to alter the Office and/or its facilities to make them
accessible to an usable by individuals with disabilities,
” like Angie, (ECF No. 40 at pp. 5-8); (2) Count II for
breach of oral contract under Florida law, (id. at
pp. 8-9); and (3) Count III for promissory estoppel under
Florida law, (id. at p. 9). Carlos asserts federal
question jurisdiction for Count I and supplemental
jurisdiction for Counts II and III. (Id. at ¶
moves to dismiss under Rule 12(b)(6) and 12(b)(1) on two
grounds: (1) that Count I for prospective injunctive relief
under Title III of the ADA is time-barred, (ECF No. 41 at pp.
4-6); and should the Court dismiss the ADA claim, (2) that
the Court lacks supplemental jurisdiction over Counts II and
III, brought under Florida law, (id. at pp. 6-8).
Carlos opposes the Motion. (ECF No. 42.) Gladys filed a reply
brief. (ECF No. 43.)
considering a motion to dismiss, filed under Federal Rule of
Civil Procedure 12(b)(6), must accept the complaint's
allegations as true, construing them in the light most
favorable to the plaintiff. Pielage v. McConnell,
516 F.3d 1282, 1284 (11th Cir. 2008). Although a pleading
need only contain a short and plain statement of the claim
showing that the pleader is entitled to relief, a plaintiff
must nevertheless articulate “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not
shown-that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting
Fed.R.Civ.P. 8(a)(2)) (internal punctuation omitted). A court
must dismiss a plaintiff's claims if she fails to nudge
her “claims across the line from conceivable to
plausible.” Twombly, 550 U.S. at 570.
Count I for Injunctive Relief Under Title III of the ...