Opinion
6:22-CV-00782-ADA-JCM
03-15-2023
RYAN LAMBERT, Plaintiff, v. AMERICAN PIZZA PARTNERS LP, et al, Defendants.
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE, UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(f) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Defendants Motion to Dismiss Plaintiff's First Amended Complaint (ECF No. 11). For the reasons described below, the Court RECOMMENDS that Defendant's Motion be DENIED.
I. BACKGROUND
Ryan Lambert sued Defendants American Pizza Partnership LP and Restaurant Mgt Co. for violations under the Americans with Disabilities Act (“ADA”). Pl.'s Am. Compl. (ECF No. 10) at 1. Plaintiff alleges that he is an individual with disabilities under the ADA. Id. at ¶ 4. He further alleges that he uses a wheelchair for mobility and is substantially limited in performing the major life activities of walking and standing. Id. at ¶¶ 5, 6. Plaintiff alleges he was a customer of a Pizza Hut in Bellmead Texas in January and August of 2022. Id. at ¶ 9. Defendants allegedly own, operate, or lease the subject property. Id. at ¶ 10.
Plaintiff alleges that he lives within thirty miles of the Pizza Hut. Id. at ¶ 11. He also asserts that he is routinely in the area where the Pizza Hut is located. Id. Specifically, Plaintiff states that, “While traveling in the area, Plaintiff routinely stops to patronize various gas stations, convenience stores, and retail stores along his routine route of travel around his home to purchase gasoline, use the bathroom, purchase convenience items, and also purchase general goods and services of the type that would be purchased by any other person in their daily life.” Id. at ¶ 12. Further, “Plaintiff intends to continue patronizing places of public accommodation in the general vicinity of his home.” Id. at ¶ 14.
Plaintiff sued Defendants for injunctive relief. Id. at 16. In addition to seeking injunctive relief, Plaintiff requests attorney's fees and costs of litigation under 42 U.S.C. § 12205. Id. at 17.
Defendants filed a Motion to Dismiss Plaintiff's Original Complaint under Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff lacked standing. Defs.' Mot. to Dismiss (ECF No. 9). Plaintiff responded by filing an Amended Complaint. Pl.'s Am. Compl. (ECF No. 10). Defendants filed a Motion to Dismiss Plaintiff's Amended Complaint which is currently before the Court. The Court then mooted Defendants' first Motion to Dismiss. Text Order MOOTING ECF No. 9. Plaintiff has not responded to Defendants' Motion to Dismiss.
II. LEGAL STANDARD
Rule 12(b)(1) allows a party to move for dismissal of an action for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1). The party asserting that subject matter exists bears the burden on a 12(b)(1) motion. Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001). In deciding a motion to dismiss pursuant to Rule 12(b)(1), the Court may consider: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts, plus the Court's resolution of disputed facts. Freeman v. United States, 556 F.3d 326, 334 (5th Cir. 2009). When a defendant seeks to dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis that the Court lacks subject matter jurisdiction, it can make either a “facial attack” or a “factual attack.” See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). The standard of review for a 12(b)(1) motion varies based on whether a defendant facially or factually attacks a complaint. In a “facial attack,” the movant asserts that the allegations in the complaint are insufficient to invoke federal jurisdiction. See Jackson v. Tex. S. Univ., 997 F.Supp.2d 613, 620 (S.D. Tex. 2014). In a facial attack, allegations in the complaint are taken as true. Blue Water Endeavors, LLC, Bankr. No. 08-10466, Adv. No. 10-1015, 2011 WL 52525, *3 (E.D. Tex. Jan. 6, 2011) (citing Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir. 1995)).
“Standing is a required element of subject matter jurisdiction and is therefore properly challenged on a 12(b)(1) motion to dismiss.” SR Partners Hulen, LLC v. JP Morgan Chase Bank, Nat. Ass'n, No. 3:10-CV-437-B, 2011 WL 2923971, at *3 (N.D. Tex. July 21, 2011) (citing Xerox Corp v. Genmoora Corp., 888 F.2d 345, 350 (5th Cir. 1989)). To establish standing, the plaintiff must allege (1) that he has suffered an injury in fact, which is both (a) concrete and particularized and (b) actual or imminent, as opposed to conjectural or hypothetical; (2) the existence of a causal connection between the asserted injury-in-fact and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court; (3) it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted). Particularized means “that the injury must affect the plaintiff in a personal and individual way.” Id. at 560 n. 1.
III. ANALYSIS
Defendants argue that the face of Plaintiff's complaint demonstrates that Plaintiff lacks standing to bring this action under the ADA. Def.'s Mot. at 1-2. Plaintiff did not respond. Nonetheless, the Court should find that Plaintiff has standing to bring his claims.
Defendants rely primarily on the Fifth Circuit's recent decision in Laufer v. Mann Hosp., L.L.C., 996 F.3d 269 (5th Cir. 2021), in which the Fifth Circuit held that a tester plaintiff lacked standing to bring claims under the ADA. Defendants argue broadly that “standing based on a tester's interest in enforcing the ADA for the public good is a thing of the past.” Def.'s Mot. at 5. Defendants also rely on a case from the Northern District of Texas which also held that a tester plaintiff lacked standing to sue under the ADA. Id. at 6, citing Segovia v. Admiral Realty, Inc., No. 3:21-cv-2478-L, 2022 WL 3104849, at *1 (N.D. Tex. Aug. 4, 2022).
Deborah Laufer sued Mann Hospitality, LLC, owner of the Sunset Inn in Caldwell, Texas under the ADA. Laufer, 996 F.3d at 271. Laufer alleged that Mann violated the ADA because Sunset Inn's online reservation systems did not properly state whether it had rooms that could accommodate Laufer's disabilities. Id. at 272. Laufer admitted that she visits websites “for the purpose of reviewing and assessing the accessible features of the hotel” and to ascertain “whether the website contain the information required by [ADA regulations].” Id. Laufer is a Florida resident. Id. at 271. She has never travelled to Texas and expressed no definite plans to travel to Texas to stay at the Sunset Inn or any hotel in Texas. Id. Instead, she expressed a general intent to visit the area sometime in the future. Id. at 272.
The Court held that held that Laufer failed “to show how the alleged violation affects her in a concrete way.” Id. The Court emphasized that Laufer demonstrated no intent to book a room at the Sunset Inn, no past attempt to book a room at the Sunset Inn, and no particular intent to visit the hotel in the future. Id. Thus, Laufer did not suffer an injury in fact that was concrete and particularized, and she lacked standing. Id. at 273.
In Segovia, Rafael Segovia sued Admiral Realty, Inc., for violations of the ADA for failing to make its property accessible to him as a wheelchair user. Segovia, 2022 WL 3104849, at *1. The District Court found that Segovia did not allege facts showing why he visited the property or how visiting the property is central to his day-to-day life. Id. at *3. Instead, he alleged that his “motivation to return to a location, in part, stems from a desire to utilize ADA litigation to make his home community more accessible for Plaintiff and others.” Id. The District Court held that Segovia lacked standing, applying the Laufer decision to the facts of that case.
The Western District of Texas has also addressed this question. In Castillo v. Sanchez, Magistrate Judge Chestney recommended that the Court find that Plaintiff has standing to sue under the ADA. Castillo v. Sanchez, No. SA-22-CV-00301-FB, 2022 WL 17491313, at *1 (W.D. Tex. Dec. 6, 2022). Castillo, a Texas resident, sued the owners of a shopping mall for violations of the ADA which prevented him from accessing the property. Id. at *1, *2. Castillo alleged that he had visited the shopping center twice and was unable to shop there because of the violations. Id. at *2. Importantly, Castillo claimed that he “lives within thirty miles of the Shopping Center, that it is located on a ‘thoroughfare that he frequents routinely,' and that ‘he is routinely where the Subject Property is located and travels in and about the immediate area of the Subject Property numerous times every month, if not every week.'” Id.
The Court distinguished Laufer from the facts of that case. Laufer involved a tester who had never been to Texas, let alone to the property with alleged violations. Castillo involved a tester plaintiff who had attempted to patronize the subject property twice. Id. at *3. The Court relied heavily on the fact that the plaintiff lived within thirty miles of the shopping center, had visited the property twice, and intended to return as a patron. Id. Those facts clearly distinguish Castillo from Laufer.
The facts before this Court are nearly identical to those of Castillo. Here, Plaintiff lives within thirty miles of the subject property. Pl.'s Am. Compl. at ¶ 11. Plaintiff alleges that he is routinely in the area where the subject property is located. Id. Plaintiff has attempted to visit the property twice. Id. at ¶ 9. Plaintiff also alleges that he routinely stops to patronize “gas stations, convenience stores, and retail stores along his routine route of travel around his home to purchase gasoline, use the bathroom, purchase convenience items, and also purchase general goods and services of the type that would be purchased by any other person in their daily life.” Id. at ¶ 12. Finally, “Plaintiff intends to continue patronizing places of public accommodation in the general vicinity of his home.” Id. at ¶ 14. While these allegations are not identical to the Castillo allegations, they are much more similar to those facts than to Laufer's or Segovia's. Thus, the face of Plaintiff's Complaint demonstrates that he has suffered an injury in fact that is concrete and particularized.
Defendants argue that the claim that Plaintiff visited the restaurant as a patron is not plausible on its face. Defs.' Mot. at 7. The Court notes that Plaintiff alleged specifically that, “On or about January of 2022 and August of 2022, Plaintiff was a customer at the Pizza Hut located at 601 N Loop 340, Bellmead, TX 76705.” Pl.'s Am. Compl. at ¶ 9. This allegation clearly rises above a speculative level.
Defendants further argue that “it is scarcely plausible that [Plaintiff] would drive 30 [sic] miles to visit a franchised restaurant without some explanation of why.” Defs.' Mot. at 8. They go on to ask, “What did he intend to purchase or consume?” Id. The answer is, obviously, that Plaintiff intended to consume the food sold at the establishment. After all, why else does one go to a restaurant? While it may be odd that Plaintiff would drive up to thirty miles to eat at a franchised restaurant, it is not “scarcely plausible.” Plaintiff is not required to shed his motivations as a tester and concerned citizen to establish Article III standing under the ADA. Instead, he is required to demonstrate a particular and concrete injury he has suffered. Plaintiff has met his burden.
Finally, Defendants argue that Plaintiff has not alleged an imminent future injury that would support injunctive relief. Plaintiff alleged that he “intends on revisiting the Subject Property within six months of the filing of this Complaint or sooner, as soon as the barriers to access detailed in this Complaint are removed.” Pl.'s Compl. at | 16. Plaintiff has clearly and unequivocally pled an intent to revisit the property and to “purchase general goods and services of the type that would be purchased by any other person in their daily life.” Id. Thus, Plaintiff has pled an imminent future injury supporting Article III standing to seek injunctive relief.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that Defendants' Motion to Dismiss (ECF No. 11) be DENIED.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.