Opinion
No. 03 Civ. 5027 (RLC).
July 12, 2005
FULLER, FULLER ASSOC., P.A., Miami, FL, John P. Fuller, Esq., Of Counsel, Attorneys for Plaintiffs.
LAW OFFICES OF NELSON STERN, New York, N.Y., Nelson Stern, Esq., Of Counsel, Co-Counsel for Plaintiffs.
KANE SESSLER, P.C., New York, N.Y., Lois M. Traub, Esq., Of Counsel, Attorneys for the Defendant.
OPINION
On July 7, 2003, plaintiffs, Access 4 All, Inc., ("Access 4 All"), a Florida not-for-profit corporation, and Nelson Stern, an Access 4 All member who has multiple sclerosis, filed suit against Wellington Hotel Co., Inc. ("Wellington"), a New York corporation, for injunctive relief pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12181, et seq. ("ADA").
Prior to the filing of the lawsuit, Stern, who uses a scooter for his disability, went to the Wellington Hotel for lodging and to inquire about group patron services. Stern was denied access because stairs provided the sole entrance to the hotel property. He claims that he wishes to return to the Wellington Hotel to avail himself of the goods and services offered to the public but is unable to do so given the property's architectural barriers.
Access 4 All, who joins Stern as co-plaintiff in the complaint, is a non-profit corporation whose members include individuals with disabilities as defined by the ADA. The organization's purpose is to represent the interests of its members by assuring that places of public accommodation are accessible to and usable by the disabled and that its members are not discriminated against because of their disability. Access 4 All contends that it and its members have suffered and will continue to suffer direct and indirect injury as a result of Wellington's alleged failures to comply with the ADA. Access 4 All claims that it has standing to bring this action in its own right, as well as "associational standing" to bring this action on behalf of its disabled members.
Currently before the court is Wellington's motion to dismiss, which contests Access 4 All's associational standing. In addition, Wellington seeks to dismiss those portions of the complaint that allege it violated the ADA during the alteration, design and construction of the hotel.
DISCUSSION
Motion to Dismiss Standard
On a motion to dismiss, a district court must "accept all material allegations of the complaint, and must construe the complaint in favor of the complaining party." Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). Standing, however, "cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear on the record." FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (internal quotation marks and citations omitted). "It is the burden of the party who seeks the exercise of jurisdiction in his favor clearly to allege facts demonstrating he is a proper party to invoke judicial resolution of the dispute." Id. (internal quotation marks and citations omitted). When considering whether a plaintiff has established standing, however, district courts may permit a plaintiff to amend its complaint or consider affidavits containing particularized facts supporting standing. Thompson, 15 F.3d at 249 (quoting Warth, 422 U.S. at 501). Access 4 All's Associational Standing
Wellington claims that Access 4 All lacks associational standing — i.e. the ability to sue on behalf of all its members. By doing so, Wellington seeks to limit its alleged ADA violations — and any consequent injunctive relief measures ordered — to those arising from Stern's inability to access the hotel rather than to those which might affect Access 4 All's other members (e.g. disabilities related to sight as well as mobility).
Federal jurisdiction is limited by Article III, § 2, of the U.S. Constitution to actual cases and controversies. As a result, plaintiff's standing to sue "is the threshold question in every federal case, determining the power of the court to entertain the suit." Warth v. Seldin, 422 U.S. 490, 498 (1975). Courts must assess whether standing exists based on the facts as they existed at the time the lawsuit was filed. See, e.g., Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91 (2000). To show Article III standing, a plaintiff has the burden of proving: (1) that he or she suffered an "injury in fact," (2) a causal relationship between the injury and the challenged conduct, and (3) that the injury likely will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Wellington does not dispute that Stern has standing to sue in his individual capacity but does contest Access 4 All's ability to do so on behalf of its members.
An association has standing to sue in a representational capacity if (a) its members would otherwise have standing to sue in their own right; (b) the interest it seeks to enforce are germane to the organization's purpose; and (c) that neither the claim asserted nor the relief requested requires the participation of the individual members in the lawsuit. Hunt v. Washington State Apple Advers. Comm'n, 432 U.S. 333, 343 (1977); Bano v. Union Carbide Corp., 361 F.3d 696, 713 (2d Cir. 2004). The Supreme Court has indicated that only the first two prongs of this test are constitutionally mandated and that the third requirement that neither the claim asserted nor relief requested requires the participation of the individual members of an association in the lawsuit is prudential as a matter of "administrative convenience and efficiency." United Food Commercial Workers' Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996).
As is the case here, the crux of an associational standing claim often focuses on the third prudential prong. Courts look to the type of remedy requested as one of the key factors in determining whether this requirement has been met. As the Second Circuit recently noted, "whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought. . . . [I]f in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured. Indeed, in all cases in which we have expressly recognized standing in associations to represent their members, the relief sought has been of this kind." Bano, 361 F.3d at 714 (quoting Warth, 422 U.S. at 515). A request for injunctive relief in lieu of damages does not however, automatically confer associational standing. Rather, an "organization lacks standing to assert claims of injunctive relief on behalf of its members where "the fact and extent" of the injury that gives rise to the claims for injunctive relief "would require individualized proof." Id. at 714 quoting Warth, 422 U.S. at 515-516 and Hunt, 432 U.S. at 343.
Wellington does not seriously contest that Access 4 All's members have standing to sue in their own right (Stern is an Access 4 All member) nor that the interests Access 4 All seeks to enforce are germane to the organization's purpose (which includes making sure that public facilities are compliant with the ADA).
We believe that neither the claim asserted nor the relief requested will require participation by individual members significant enough to negate Access 4 All's associational standing. While associational standing is inappropriate where fact intensive individual inquiries are needed, Access 4 All may be able to establish its claims without considerable individual participation by its members. Specifically, the core of Access 4 All's claim is that Wellington has failed to abide by provisions of the ADA that necessitate a minimum level of accessibility for its disabled patrons. This court will make a legal determination assessing Wellington's compliance with the ADA by comparing the hotel's facilities to the requirements of the ADA. Few direct references to Access 4 All's individual members will be required to make such a determination and little, if any, testimony will be needed from Access 4 All's members. Presumably, evidence regarding Wellington's failure to satisfy the "readily achievable" standard for existing facilities could be established with non-member witnesses with knowledge of the ADA's standards, as well as by reference to the ADA guidelines. Moreover, the pursuit of injunctive relief distances the case at bar from damages suits which revolve on fact-intensive individual determinations that render associational standing inappropriate. See e.g. Bano v. Union Carbide Corp., 361 F.3d 696 (2d Cir. 2004) (denying organizations standing to pursue damages claims belonging to their respective members for bodily harm and damage to real property); see also Presbyterian Church of Sudean v. Talisman Energy, Inc., 2005 WL 1060353 (S.D.N.Y. 2005) (Cote, J.) (denying organization standing to sue for damages where only way to prove proximate causation was through individualized proof).
Although, as described below, plaintiff will likely be required to involve at least a few of its members to establish the scope of its associational standing claims, individual participation of each injured party does not appear indispensable to the proper resolution of the claims. See Warth, 422 U.S. at 511 ("so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction.") Thus, given the early stage of the proceedings we are wary of dismissing Access 4 All as plaintiff without first allowing it the opportunity to show that it can go forward without undue reliance on member participation.
More problematic for Access 4 All is that it does little but repeat Stern's claims and requests for injunctive relief. This contravenes prudential limitations on standing, which hold that there exists a "general prohibition on a litigant's raising another person's legal rights." Allen v. Wright 468 U.S. 737, 751 (1984), and that courts should "limit access to the federal courts to those litigants best suited to assert a particular claim." Gladstone Realtors v. Village of Bellood, 441 U.S. 91, 100 (1979). See also Disabled in Action v. Trump International Hotel Tower, 2003 WL 1751785 (S.D.N.Y. 2003) (Mukasey, J.) (holding that an organization advocating on behalf of the disabled lacked standing given that it merely repeated the claims and relief requested of the individual plaintiffs). Access 4 All has failed to submit affidavits from any of its members which would allow the court to determine whether it can do more than just assert Stern's rights on his behalf. As such, Access 4 All will be given the opportunity to submit affidavits from its members to reveal that it has distinct and palpable grievances against Wellington. In addition to demonstrating its status as a proper party in the instant suit, these affidavits will also establish the scope of Access 4 All's associational standing and the types of ADA violations it may raise. We recognize that this puts Access 4 All in the delicate position of submitting enough information from individual members to establish the scope of its standing without involving the members so much so that it would contravene the third prong of the associational standing test. Ultimately, whether Access 4 All is granted associational standing will depend on how well it can strike the proper balance between the two. Cf. Clark v. McDonald's Corp., 213 F.R.D. 198 (D.N.J.,2003).
Scope of Complaint
Title III of the ADA applies to existing, newly constructed and altered public accommodations. 42 U.S.C. §§ 12182 et seq. (citations omitted) and 12183 (2000). Wellington concedes that it is subject to the ADA but seeks to dismiss those portions of the complaint that allege it violated the ADA during the alteration, design and construction of the hotel. It does so in an effort to escape the more exacting standards that govern facilities built or altered after January, 1992. In support of its motion, Wellington submitted an affidavit from Robert F. Cardillo, general manger of the Wellington Hotel, which states that the hotel was constructed prior to January, 1992 and that it has not been altered at any time since then.
Existing pre-1992 facilities that have not been altered since 1992 are governed by a "readily achievableness" standard.
Cardillo Aff. ¶ 3.
Access 4 All does not contest the information provided by Cardillo nor does it suggest any reason for the court to doubt its validity. Thus, in as much as the Wellington Hotel is a facility built prior to January, 1992, and has not been altered at any time since then, those portions of the complaint that allege violations during the alteration, design and construction of the facility are hereby dismissed. The ADA's "readily achievableness" standard will govern the complaint's remaining claims.
CONCLUSION
Access 4 All is hereby given the opportunity to submit affidavits in support of its claim for associational standing. Those portions of the complaint which allege violations of the ADA during the alteration, design and construction of the facility are hereby dismissed.