Opinion
Case No. 2:22-cv-14132-KMM
2022-10-13
Howard COHAN, Plaintiff, v. TEXAS ROADHOUSE HOLDINGS LLC, d/b/a Texas Roadhouse, Defendant.
Samantha Lyn Simpson, Gregory Steven Sconzo, Sconzo Law Office, P.A., Palm Beach Gardens, FL, for Plaintiff. Miguel Angel Morel, Littler Mendelson PC, Miami, FL, Daniel B. Boatright, Pro Hac Vice, Littler Mendelson, P.C., Kansas City, MO, for Defendant.
Samantha Lyn Simpson, Gregory Steven Sconzo, Sconzo Law Office, P.A., Palm Beach Gardens, FL, for Plaintiff. Miguel Angel Morel, Littler Mendelson PC, Miami, FL, Daniel B. Boatright, Pro Hac Vice, Littler Mendelson, P.C., Kansas City, MO, for Defendant. ORDER ON MOTION TO DISMISS K. MICHAEL MOORE, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court upon Defendant Texas Roadhouse Holdings LLC's ("Defendant" or "Texas Roadhouse") Motion to Dismiss Plaintiff's Amended Complaint and Incorporated Memorandum of Law. ("Motion" or "Mot.") (ECF No. 14). Plaintiff Howard Cohan ("Plaintiff") filed a Response ("Resp.") (ECF No. 15), and Defendant timely filed its Reply ("Reply") (ECF No. 17). The Motion is now ripe for review. I. BACKGROUND
The underlying facts are taken from the Amended Complaint. ("Complaint" or "Compl.") (ECF No. 12).
Plaintiff is a resident of Palm Beach County, Florida. Compl. ¶ 3. Plaintiff has "numerous permanent disabilities" that cause him to suffer body weakness, mobility limitations, abnormal gait, and abnormal balance. Id. ¶ 6. Plaintiff is also a self-proclaimed "tester" for the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (codified as amended in scattered sections of 42 and 47 U.S.C.) ("ADA"). Id. ¶ 12. This means that Plaintiff "visits [a] public accommodation; engages all of the barriers to access . . . tests all of those barriers to access to determine whether and the extent to which they are illegal barriers to access; proceeds with legal action to enjoin such discrimination; and subsequently returns to Premises to verify its compliance or non-compliance with the ADA." Id. ¶ 12.
Defendant Texas Roadhouse is a chain of restaurants which exists both within and outside the state of Florida. See id. ¶ 16. On November 11, 2021, Plaintiff visited the Texas Roadhouse location at 210 NW Peacock Boulevard, Port St. Lucie, Florida (the "Property"). Id. ¶¶ 4, 7. Plaintiff alleges that he faced several barriers to his enjoyment of the facilities as a result of his disabilities. Id. ¶ 7; see also id. ¶¶ 26-55. Plaintiff alleges that he would "absolutely return to the [Property]," but is "currently precluded from doing so as a result of Defendant's discriminatory conduct." Id. ¶¶ 8, 11. Plaintiff asserts that he "frequently visits the Port St. Lucie area" where the Property is situated, and to this end he provides a non-exhaustive list of eight dates on which he has visited Port St. Lucie in the past decade. The only one of those dates on which Plaintiff claims to have visited the specific Texas Roadhouse in question is November 11, 2021. Id. ¶¶ 4, 7. When in Port St. Lucie, Plaintiff "eats exclusively at restaurants." Id. ¶ 15. Plaintiff also claims that he has a history of dining at other Texas Roadhouse locations elsewhere. Id. ¶ 16.
December 9, 2013, February 24, 2015, December 7, 2016, May 17, 2017, November 10, 2021, November 11, 2021, November 12, 2021, and April 26, 2022. Compl. ¶ 14.
On May 27, 2022, Plaintiff filed his Complaint, asserting one count of ADA discrimination for alleged violations which he discovered at the Property. Id. ¶¶ 26-55. Now, Defendant moves to dismiss Plaintiff's claims on two grounds: first, for failure to state a claim under Rule 12(b)(6); and second, for lack of standing under Rule 12(b)(1). See generally Mot.
For the following reasons, the Court grants Defendant's Motion on Rule 12(b)(1) grounds, namely that Plaintiff does not adequately allege a "threat of future injury" to demonstrate standing in a claim for injunctive relief.
As a result, the Court does not reach Defendant's 12(b)(6) arguments. See Hitt v. City of Pasadena, 561 F.2d 606 (5th Cir. 1977) ("Ordinarily, where both these grounds for dismissal apply, the court should dismiss only on the jurisdictional ground under Fed.R.Civ.P. 12(b)(1), without reaching the question of failure to state a claim under Fed.R.Civ.P. 12(b)(6).").
II. LEGAL STANDARD
Article III grants federal courts the power to decide only actual cases and controversies. Lujan v. Defs. of Wildlife, 504 U.S. 555, 559-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). One component of Article III's limited grant is "standing," or the question of whether a "litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("[S]tanding imports justiciability: whether the plaintiff has made out a 'case or controversy' between himself and the defendant within the meaning of Art. III."). Just as with subject-matter jurisdiction, standing is a threshold inquiry in every federal case. Id. A plaintiff seeking to adjudicate a lawsuit in federal court must therefore demonstrate standing by showing three elements: (1) that he has suffered an injury in fact; (2) that the injury is "fairly traceable to the challenged conduct of the defendant"; and (3) that the injury is likely to be redressed by a favorable judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016).
Where a plaintiff seeks injunctive relief, he must also show a "sufficient likelihood that he will be affected by the allegedly unlawful conduct in the future," often referred to as a "threat of future injury." See Koziara v. City of Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004); see also Houston v. Marod Supermarkets, Inc., 733 F.3d 1323, 1329 (11th Cir. 2013) (plaintiff seeking injunctive relief must demonstrate "a real and immediate—as opposed to a merely conjectural or hypothetical - threat of future injury" (citing Shotz v. Cates, 256 F.3d 1077, 1081 (11th Cir. 2001))). Because the ADA only provides for injunctive relief, ADA plaintiffs must demonstrate that they "have attempted to return to the non-compliant building or at least intend to do so in the future." Houston, 733 F.3d at 1336.
A defendant may challenge standing either facially or factually. Scarfo v. Ginsberg, 175 F.3d 957, 960 (11th Cir. 1999). "Facial attacks on a complaint 'require the court merely to look and see if the plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and the allegations in [plaintiff's] complaint are taken as true for the purposes of the motion.' " Id. (citing Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)).
Because standing stems directly from Article III's case or controversy requirement, challenges to standing are assessed under the same standards as challenges to subject-matter jurisdiction. Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1229-30 (11th Cir. 2021).
Factual attacks, on the other hand, challenge the existence of jurisdiction "irrespective of the pleadings . . . [I]n a factual attack, the presumption of truthfulness afforded a plaintiff under Federal Rule of Civil Procedure 12(b)(6) does not attach, and the court is free to weigh the evidence." Id. (citing Lawrence, 919 F.2d at 1529); see also Floridian Hotel, 998 F.3d at 1230 (opining that, when assessing a factual attack to standing under 12(b)(1), a district court "is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case") (internal quotations omitted). Yet in either case, during the pleadings stage, a plaintiff must "clearly allege facts demonstrating each element" of standing. See Spokeo, 578 U.S. at 338, 136 S.Ct. 1540 (internal quotations and annotations omitted).
A district court only may apply Rule 12(b)(1)'s factual attack standard where "the facts necessary to sustain jurisdiction do not implicate the merits of plaintiff's cause of action." Kennedy v. Floridian Hotel, Inc., No. 0:18-CV-62486-UU, 2020 WL 9762992, at *7 (S.D. Fla. Jan. 28, 2020) (internal citations omitted), aff'd & remanded, 998 F.3d 1221 (11th Cir. 2021). To that end, the Eleventh Circuit has specifically found that a district court may apply the 12(b)(1) factual attack standard where an ADA defendant challenges the threat of future injury prong, because the facts necessary to prove future injury are not "inextricably intertwined" with the merits of a plaintiff's ADA claim. See Floridian Hotel, 998 F.3d at 1231-1232. This permits a district court to "make credibility determinations and weigh the evidence" in the factual attack posture. Id. at 1232 (citing Lawrence, 919 F.2d at 1529).
III. DISCUSSION
Here, Defendant lodges a factual attack under Rule 12(b)(1) by challenging Plaintiff's standing to assert an ADA claim against it. To wit, Defendant argues that Plaintiff "does not adequately allege threat of future injury," see Mot. at 11, because Plaintiff's "plan to return" allegations are vague and rendered implausible by his status as a "tester" for ADA claims, see id. at 13-15. The Court first addresses whether a factual attack under Rule 12(b)(1) is appropriate without supplemental evidence, and then whether Plaintiff has standing to bring its ADA claim.
A. FACTUAL ATTACK UNDER 12(b)(1).
Defendant avers Plaintiff has not demonstrated a "threat of future injury," which is a necessary component of standing where a plaintiff seeks injunctive relief. See Mot. at 11-15; Koziara, 392 F.3d at 1305. To support this argument, Defendant sets forth (to the Court's knowledge) only one fact outside of the pleadings which renders its attack "factual"—the fact that Plaintiff has filed at least 2,800 similar actions in federal court. See Mot. at 1 & n.1, 13 (asserting that Plaintiff has filed "nearly 3,000 ADA lawsuits . . . in Florida courts"). Defendant did not, however, file any supplemental affidavits or exhibits in support of its Motion. From there, Defendant argues that because it asserts a single piece of extrinsic evidence to challenge the "threat of future injury prong," the Court may apply a 12(b)(1) factual attack standard. See Mot. at 12-15; Reply at 5-6. Despite having the opportunity to respond, Plaintiff did not dispute either the characterization of the 12(b)(1) attack as factual, or the extrinsic fact itself (i.e., that Plaintiff had filed well over 2,000 ADA cases). See Resp. at 11-16.
The Court chooses to render a decision under the factual attack standard without an evidentiary hearing or jurisdictional affidavits here. First, while many cases hold that a factual attack permits a district court to consider extrinsic evidence, the Court is not aware of any case (and neither party cites to any) which specifies the form that extrinsic evidence must take. To the contrary, in Morrison v. Amway Corp., 323 F.3d 920 (11th Cir. 2003), the Eleventh Circuit explained that a 12(b)(1) motion to dismiss "was a factual attack because it relied on extrinsic evidence and did not assert lack of subject matter jurisdiction solely on the basis of the pleadings," just as Defendant's attack does here. Id. at 924 n.5.
And second, based on Plaintiff's Response to the Motion, neither an evidentiary hearing nor additional testimony would alter the Court's analysis. In its Motion, Defendant asserts only one fact outside of the pleadings: that Plaintiff has filed more than 2,000 ADA lawsuits. Defendant provided Plaintiff with notice of this argument and articulated a theory of how that extrinsic fact alone might defeat standing. See Mot. at 11-15; Reply at 5-7. Plaintiff therefore had opportunity to challenge the argument or to request some form of additional briefing to develop the jurisdictional record. See Majd-Pour v. Georgiana Cmty. Hosp., Inc., 724 F.2d 901, 903 (11th Cir. 1984) (requiring that the Plaintiff have "the opportunity to discover facts that would support his allegations of jurisdiction). Yet Plaintiff did not dispute Texas Roadhouse's characterization of its attack as a factual one, nor did he dispute the extrinsic fact alleged. In fact, Plaintiff has requested no hearings nor filed any supplemental affidavits in support of jurisdiction in the several months since Defendant's Motion was filed.
Plaintiff does not even acknowledge the distinction between the standards of Rules 12(b)(1) and 12(b)(6) in his Response. See Resp. at 12 ("At the motion to dismiss stage, the court must accept each of Plaintiff's allegations as if they were supported by the evidence. As such, an argument that Plaintiff is a serial litigant and his return to the property would be implausible is invalid because this would require the court to weight [sic] the credibility of Plaintiff's complaint.") (internal citations omitted).
To the contrary, Plaintiff's Response cites at least nine cases in which he was a plaintiff in an ADA action. See generally Resp.
Because Plaintiff had notice and opportunity to respond to Defendant's 12(b)(1) factual attack, yet declined to do so, the Court proceeds in its analysis of the "threat of future injury" prong under a factual attack standard, with the understanding that it may "weigh the evidence" and make credibility determinations based on the asserted extrinsic fact. See Floridian Hotel, 998 F.3d at 1232 ("In the specific context of this case, the district court did not abuse its discretion in declining to hold an evidentiary hearing. The record was well developed, and Kennedy had ample opportunity to present facts and evidence to support her standing."); id. at 1233 n.5; Houston, 733 F.3d at 1335-36.
As the Court explains below, however, its conclusion would not change even if presented with a facial challenge to standing. See Section III.B, infra.
B. "THREAT OF FUTURE INJURY"
As explained above, an ADA plaintiff must demonstrate they "have attempted to return to the non-compliant building or at least intend to do so in the future." Houston, 733 F.3d at 1336. Following the analysis set forth in Houston v. Marod Supermarkets, Inc., courts in the Eleventh Circuit typically address this question by examining four non-dispositive factors: "(1) the proximity of the defendant's business to the plaintiff's residence; (2) the plaintiff's past patronage of the defendant's business; (3) the definiteness of the plaintiff's plan to return; and (4) the frequency of the plaintiff's travel near the defendant's business." Id. at 1337 n.6; see also Bowman v. G.F.C.H. Enters., Inc., No. 14-22651-CIV, 2014 WL 5341883 (S.D. Fla. Oct. 20, 2014); Kennedy, 2020 WL 9762992, at *9; Kennedy v. Schling LLC, No. 6:17-CV-74-ORL-22TBS, 2017 WL 6597119, at *3 (M.D. Fla. Nov. 14, 2017). Yet these factors are merely guidelines, and the court must consider the totality of the circumstances in determining whether Plaintiff has adequately alleged a real and immediate threat of future injury. Floridian Hotel, 998 F.3d at 1229.
i. Proximity of Defendant's Business to Plaintiff's Residence.
The first Houston factor examines "the proximity of the defendant's business to the plaintiff's residence." 733 F.3d at 1337 n.6. Plaintiff lives in Palm Beach, see Compl. ¶ 2, and Defendant's Property is located in Port St. Lucie, id. ¶ 4. Although Plaintiff's exact address is not found in the pleadings, Defendant avers that Palm Beach County is about sixty miles from Port St. Lucie. See Mot. at 14. The counties of Palm Beach and St. Lucie are separated by one county between them. Admittedly, a distance of sixty miles alone does not "significantly lessen[ ]" the likelihood of Plaintiff's future injury. See, e.g., Schling LLC, 2017 WL 6597119, at *3 (distance of 230 miles, for instance, weighed strongly in defendant's favor). Yet sixty miles is not a "quick jaunt" either, and as Defendant points out, it is not a distance that would warrant an everyday trip. See Mot. at 14; see also Alvey v. Gualtieri, No. 8:15-CV-1861-T-33AEP, 2016 WL 6087874, at *1 (M.D. Fla. Oct. 18, 2016) (seventy-five miles reduces the likelihood of a real and immediate threat of future injury); Houston, 733 F.3d at 1336 (thirty-mile distance "not the closest [ ] to Houston's home."). The Court views this factor as favoring neither party.
ii. Plaintiff's Past Patronage of Defendant's Business.
The second Houston factor assesses "plaintiff's past patronage of defendant's business." Courts examine how many times a plaintiff has visited the defendant's location, with more frequent visits weighing more strongly for plaintiff. See, e.g., Kennedy v. Beachside Com. Props., LLC, 732 F. App'x 817 (11th Cir. 2018) ("Plaintiff's singular documented visit to [Defendant's property] does not weigh in her favor . . . . Plaintiff only visited the allegedly non-complaint premises once before filing her complaint (and even her amended complaint) and thus cannot claim that her singular past injury presents evidence suggesting future injury."). Here, Plaintiff's Complaint acknowledges only one visit to the Property, namely the visit on November 11, 2021, which is the basis of his ADA claims. Compl. ¶ 7. Plaintiff does not claim to have been to the Property any more than once. See generally id. This factor does not favor the Plaintiff.
iii. Definiteness of Plaintiff's Plans to Return.
The third Houston factor examines "the definiteness of the plaintiff's plan to return" to the property in question. On this factor, vague or conclusory allegations of plans to return will not suffice; instead, a plaintiff must generally allege tangible reasons for returning to defendant's business. Compare Houston, 733 F.3d at 1336 (although distance from plaintiff's residence was far, defendant's business was close to plaintiff's attorney and plaintiff therefore had reason to return), with Lujan, 504 U.S. at 564, 112 S.Ct. 2130 (requiring a "description of concrete plans" as opposed to mere " 'some day' intentions") and Floridian Hotel, 998 F.3d at 1235 (plaintiff's "generalized intent to return sometime in the future" insufficient where she "had no credible or concrete plan to return"). Moreover, a "tester" plaintiff cannot simply allege that they will return to ensure the violation has been redressed; "each plaintiff must establish standing on the facts of the case before the court. That is equally as true about a regular customer of a public accommodation as it is for a tester." Houston, 733 F.3d at 1340.
In his Complaint, Plaintiff provides no "concrete plans" or reasons for return. Plaintiff asserts that he "will absolutely return to the Premises," see Compl. ¶ 8, and lists eight dates on which he has been to Port St. Lucie over the past decade. Id. ¶ 14. Yet Plaintiff does not assert that his visits are habitual or routine, nor does he assert any specific reason why he was in Port St. Lucie on any of those dates. See id. The remaining bases for Plaintiff's hypothetical return to the Property are that he (a) eats only at restaurants when he is in the Port St. Lucie area, (b) enjoys eating at other Texas Roadhouse locations and has done so in the past, and (c) will return to ensure compliance with the ADA. Id. ¶¶ 13, 15-16. Plaintiff does not allege that he has friends nearby whom he frequently visits, Cohan v. Lakhani Hosp., Inc., No. 21 CV 5812, 2022 WL 797037, at *1 (N.D. Ill. Mar. 16, 2022), or that he plans to return on a specific date, Cohan v. Aurora Hosp., LLC, No. 19-CV-00784, 2020 WL 1322866 (D. Colo. Mar. 20, 2020). In fact, Plaintiff provides no particularized basis whatsoever for why he would go back to this Texas Roadhouse location. Even if the Court were to construe Defendant's attack as a facial one, Plaintiff's "some day" intentions, as currently framed in his Complaint, do not "clearly allege" standing. See Spokeo, 578 U.S. at 338, 136 S.Ct. 1540; Lujan, 504 U.S. at 564, 112 S.Ct. 2130.
The Court becomes even more suspicious of Plaintiff's vague plans to return to Defendant's Property when they are viewed in tandem with Defendant's assertion that Plaintiff has filed over 2,800 ADA cases. In each of his cases, Plaintiff has necessarily alleged an intent to return to the premises for some other reason. See Lujan, 504 U.S. at 560, 112 S.Ct. 2130 (standing "is an essential and unchanging part of the case-or-controversy requirement of Article III"). Yet as Plaintiff repeatedly professes his intent to return, the likelihood of his actually returning to any of the hundreds of businesses he has sued dwindles. The Court has found no other situation in which an ADA tester plaintiff has filed more than a few hundred cases, let alone several thousand. See Cohan v. TMBC, LLC, No. CV 18-1072, 2019 WL 2169185, at *1 n.1 (M.D. La. May 17, 2019) (providing a geographic breakdown of the approximately 1,600 cases Cohan had filed by 2019). In short, while the only fact that Defendant raises outside of the pleadings is the number of analogous cases which Plaintiff has filed, that fact alone gives the Court serious misgivings about Plaintiff's professed intent to return. The third Houston factor therefore weighs strongly in favor of Defendant.
See, e.g., Kennedy, 2020 WL 9762992, at *7 (S.D. Fla. Jan. 28, 2020) ("Plaintiff has brought at least 250 ADA suits . . . indicating that Plaintiff does not actually intend to revisit all of the subject properties."); Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368, 1374-75 (M.D. Fla. 2004) ("[I]n view of his extensive litigation history, [Plaintiff]'s professed intent to return to the property is insufficient. Indeed, to satisfy Article III's standing requirements, [Plaintiff] has professed an intent to return to all fifty-four of the properties he has sued. This is simply implausible."); Brother v. Rossmore Tampa Ltd. P'ship, No. 8:03CV1253T-24MAP, 2004 WL 3609350, at *4 n.6 (M.D. Fla. Aug. 19, 2004) ("The Court is curious as to how Plaintiff will find the time to return to all of the [over seventy] places of public accommodation that he has sued, since that is a requirement in order for him to have standing to sue in those cases.").
iv. Frequency of Plaintiff's Travel Near Defendant's Business.
The fourth Houston factor examines "the frequency of the plaintiff's travel near the defendant's business." The parties agree that Plaintiff visits the Port St. Lucie area approximately once every 18 months. See Mot. at 14; Resp. at 13. Yet as explained above, Plaintiff offers no basis for why he visited Port St. Lucie on those occasions, or any specific reason why he might visit the area in the future. See Kennedy, 2020 WL 9762992, at *7 ("Though Plaintiff does offer some self-serving conclusory evidence that she has 'been to Homestead approximately 100 times,' there is no evidence of why or when those visits occurred . . . let alone that those visits would lead her to the Hotel or otherwise prompt her to visit the Hotel.") (internal citations omitted) (emphasis in original); Rosenkrantz v. Markopoulos, 254 F. Supp. 2d 1250, 1253 (M.D. Fla. 2003) (plaintiff lacked standing where he could not provide "concrete plans . . . more definite than that he will travel to the Tampa Bay area in the next year or two"). As such, this factor weighs against Plaintiff.
v. Conclusion as to Threat of Future Injury
In sum, Plaintiff fails to "clearly allege" a threat of future injury necessary to establish standing in an ADA claim. See Houston, 733 F.3d at 1329; Spokeo, 578 U.S. at 338, 136 S.Ct. 1540. Even if the Court were to construe Defendant's challenge as facial, Plaintiff's "some day" assertions are insufficient to support a plausible inference that he "intend[s] to [return] in the future," particularly when Plaintiff has only visited the Property on a single occasion and alleges no concrete reason to return to Port St. Lucie. Houston, 733 F.3d at 1336. Especially when paired with the extrinsic fact that Plaintiff has filed more than 2,000 ADA claims, the credibility of Plaintiff's asserted intent to return falls immeasurably. Here, the Court finds particularly relevant a quotation from our sister court's decision to dismiss a similar case in a 12(b)(1) factual attack on standing:
To hold otherwise would be to rubber-stamp standing for injunctive relief in every case against a non-compliant property where the plaintiff self-servingly swears to a vague intention to return to the property, thereby eviscerating the Constitutional limits placed on the Court's power to decide cases and controversies. See Tiger Partner, LLC, 331 F. Supp. 2d at 1375 (explaining that the current ADA system "cries out for a legislative solution" because the current system "encourages massive litigation," which is "particularly the case in the Middle District of Florida where the same plaintiffs file hundreds of lawsuits against establishments they purportedly visit regularly. This type of shotgun litigation undermines both the spirit and purpose of the ADA.").Kennedy, 2020 WL 9762992, at *7. In light of Plaintiff's barebones allegations, the Court declines to provide such a rubber stamp here.
For the foregoing reasons, the Court finds that Plaintiff has not sufficiently alleged a "threat of future injury" to support standing as required by Houston, and the Court need not reach Defendant's 12(b)(6) arguments.
IV. CONCLUSION
UPON CONSIDERATION of the Motion, the pertinent portions of the record, and being otherwise fully advised in the premises, it is hereby ORDERED AND ADJUDGED that the Motion to Dismiss (ECF No. 14) is GRANTED. The above-captioned action is DISMISSED WITHOUT PREJUDICE. The Clerk of Court is instructed CLOSE this case. All pending motions, if any, are DENIED AS MOOT.
DONE AND ORDERED in Chambers at Miami, Florida, this 13th day of October, 2022.