United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE
CAUSE comes before the Court on Defendants',
Howard and Linda King Dorfman, as Trustees of the Howard
Dorfman and Linda King Dorfman Living Trust, Motion to
Dismiss (the “Motion”) [ECF No. 10]. The Court
has reviewed the Motion and the record and is otherwise fully
advised. For the reasons that follow, the Motion is denied.
the Motion challenges Plaintiff's standing to bring this
action, the Court construes it as requesting dismissal for
lack of subject matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1). A motion to dismiss for lack of
subject matter jurisdiction brought under Federal Rule of
Civil Procedure 12(b)(1) may present either a facial or a
factual challenge to the complaint. See McElmurray v.
Consol. Gov't, 501 F.3d 1244, 1251 (11th Cir. 2007).
In a facial challenge, a court is required only to determine
if the plaintiff has “sufficiently alleged a basis for
subject matter jurisdiction.” Id. at 1251.
Furthermore, “the court must consider the allegations
in the plaintiff's complaint as true.”
Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.
1981). By contrast, a factual attack
“challenge[s] ‘the existence of subject matter
jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings . . . are
considered.'” McElmurray, 501 F.3d at 1251
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). Where the attack is factual, “no
presumptive truthfulness attaches to [a] plaintiff's
allegations, and the existence of disputed material facts
will not preclude the trial court from evaluating for itself
the merits of jurisdictional claims.”
Williamson, 645 F.2d at 412-13 (quoting
Mortensen v. First Fed. Sav. & Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977)). Notwithstanding whether
the challenge is facial or factual, “[t]he burden for
establishing federal subject matter jurisdiction rests with
the party bringing the claim.” Sweet Pea Marine,
Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1247 (11th Cir.
III of the U.S. Constitution “restricts the
jurisdiction of the federal courts to litigants who have
standing to sue.” Nicklaw v. CitiMortgage,
Inc., 839 F.3d 998, 1001 (11th Cir. 2016), reh'g
en banc denied, 855 F.3d 1265 (11th Cir. 2017).
“[T]he doctrine of standing serves to identify those
disputes which are appropriately resolved through the
judicial process.” Whitmore v. Arkansas, 495
U.S. 149, 155 (1990). As the party invoking federal
jurisdiction, Plaintiff bears the burden of demonstrating
that he has standing to sue. FW/PBS, Inc. v. Dallas,
493 U.S. 215, 231 (1990). “[T]he ‘irreducible
constitutional minimum' of standing consists of three
elements. The plaintiff must have (1) suffered an injury in
fact, (2) that is fairly traceable to the challenged conduct
of the defendant, and (3) that is likely to be redressed by a
favorable judicial decision.” Spokeo, Inc. v.
Robins, __ U.S. __, 136 S.Ct. 1540, 1547 (2016)
(citation omitted) (quoting Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560 (1992)). As standing is a
threshold determinant, the plaintiff must “clearly . .
. allege facts demonstrating” standing. Warth v.
Seldin, 422 U.S. 490, 518 (1975).
Motion launches a factual attack on the Court's subject
matter jurisdiction because Defendants assert that Plaintiff
has not suffered an injury in fact. Specifically, Defendants
argue that Plaintiff has no standing because he did not
physically visit the subject property. Defendants also assert
that the alleged Americans with Disabilities Act
(“ADA”) violations are being remedied. Plaintiff
objects to Defendants' characterization of the facts and
argues that remediation efforts are insufficient to render
Plaintiff's claim moot.
their Motion, Defendants assert that they do not
“believe” that Plaintiff visited their property,
or that he intends to return, and that if he did return,
“he would not, in any event, suffer future injury if he
truly wanted to avail himself” of the services provided
there. [ECF No. 10 at 2, 11]. But two problems exist with
Defendants' arguments. First, the arguments raise factual
questions that strike at the heart of both
Plaintiff's standing and the merits of his ADA claims.
See Wein v. St. Lucie Cnty., Fla., 461 F.Supp.2d
1261, 1262 (S.D. Fla. 2006) (noting that the Eleventh Circuit
has “cautioned that a district court should only rely
on Rule 12(b)(1) ‘[i]f the facts necessary to sustain
jurisdiction do not implicate the merits of
plaintiff's cause of action'” (quoting
Morrison v. Amway Corp., 323 F.3d 920, 925 (11th
Cir. 2003))). To succeed on his ADA claim, Plaintiff must in
part prove that he is disabled and that he visited the
subject property that failed to meet the federal standard of
accessibility. To rule on the factual issues raised by
Defendants' Motion, the Court must therefore necessarily
address the merits of Plaintiff's claims, namely, whether
he physically visited the property. This the Court cannot do.
Id. Second, making factual findings about
Plaintiff's injury at this stage would require the Court
to look beyond the Complaint and weigh Plaintiffs and
Defendants' credibility. Id. The Court declines
to do so now because such findings are more appropriately
considered at summary judgment or trial. Id.
(“This Court declines to weigh the sincerity of Mr.
Wein's intentions or the credibility of his testimony at
this juncture. This Court finds that such factual
determinations are better forged in the crucible of
also claim that they are currently remediating the property,
which will moot out Plaintiffs ADA claims. But, pending
repairs cannot render this action moot. Id. at
1264-65 (holding that where repairs had not been completed,
the court retained power to decide the merits of an ADA
suit). Without more, Defendants' Motion cannot succeed.
it is hereby ORDERED AND ADJUDGED that
Defendants' Motion to Dismiss [ECF No. 10] is
 The Eleventh Circuit has adopted as
binding precedent all decisions of the former Fifth Circuit
rendered before October 1, 1981. Bonner v. City of
Prichard, 661 F.2d 1206, ...