Opinion
6:22-CV-00400-ADA-JCM
03-29-2023
RYAN LAMBERT, Plaintiff, v. OASIS VENTURES, LLC, Defendant.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
JEFFREY C. MANSKE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT 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 Defendant Oasis Ventures, LLC's Motion to Dismiss Plaintiff's Amended Complaint (ECF No. 14), Plaintiff Ryan Lambert's Opposed Motion to Strike Defendant's Motion to Dismiss (ECF No. 15), and the attendant responses, replies, and advisories to the Court thereto. For the reasons described below, the Court RECOMMENDS that Defendant's Motion be GRANTED, and that Plaintiff's Motion be DENIED.
I. BACKGROUND
Ryan Lambert sued Oasis Ventures LLC for violations under the Americans with Disabilities Act (“ADA”). Pl.'s Am. Compl. (ECF No. 7) 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 the Dairy Queen located at 3501 Bellmead Drive, Waco, Texas 76705, in February and September 2022. Id. at ¶ 8. Defendant allegedly owns, operates, or leases the subject property. Id. at ¶ 9.
Plaintiff alleges that he lives within thirty miles of the Dairy Queen. Id. at ¶ 10. He also asserts that he is routinely in the area where it 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 ¶ 11. Further, “Plaintiff intends to continue patronizing places of public accommodation in the general vicinity of his home.” Id. at ¶ 13.
Plaintiff sued Defendant 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.
Defendant filed a Motion to Dismiss Plaintiff's Amended Complaint under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6). Def.'s Mot. to Dismiss. Plaintiff filed a Motion to Strike Defendant's Motion to Dismiss and a Response to Defendant's Motion to Dismiss (ECF No. 18).
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.
To avoid dismissal for failure to state a claim pursuant to Rule 12(b)(6), a plaintiff must plead 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). The court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff. In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
The court determines whether the plaintiff has stated both a legally cognizable and plausible claim; the court should not evaluate the plaintiff's likelihood of success. Lone Star Fund V. (U.S.), LP v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). Based upon the assumption that all the allegations in the complaint are true, the factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. A court, however, need not blindly accept each and every allegation of fact; properly pleaded allegations of fact amount to more than just conclusory allegations or legal conclusions masquerading as factual conclusions. Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); see Twombly, 550 U.S. at 555; Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
When the plaintiff pleads factual content that allows the court to reasonably infer that the defendant is liable for the alleged misconduct, then the claim is plausible on its face. Iqbal, 556 at 678. The plausibility standard, unlike the “probability requirement,” requires more than a sheer possibility that a defendant acted unlawfully. Id. A pleading offering “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” will not suffice. Twombly, 550 U.S. at 555.
III. ANALYSIS
A. Plaintiff has standing under Article III of the Constitution.
Defendant argues that the face of Plaintiff's complaint demonstrates that Plaintiff lacks standing to bring this action under the ADA. Def.'s Mot. at 4. As the undersigned reasoned in a similar case brought by Plaintiff, the Court should find that Plaintiff has standing.
Defendant relies 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. Defendant argues that Plaintiff's Complaint does not show how any of the “alleged technical violations resulted in a concrete personal harm.” Def.'s Mot. at 5.
In Laufer, 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 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.
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 ¶ 10. 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 ¶ 8. 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 ¶ 11. Finally, “Plaintiff intends to continue patronizing places of public accommodation in the general vicinity of his home.” Id. at ¶ 13. While these allegations are not identical to the Castillo allegations, they are closer to those facts than to Laufer's. Thus, the face of Plaintiff's Complaint demonstrates that he has suffered an injury in fact that is concrete and particularized.
Defendant argues that because Plaintiff is suing over “technical violations” of the ADA, Plaintiff lacks standing. Def.'s Mot. at 8. Plaintiff responds that the violations create a “risk of toppling over in a wheelchair or losing traction” and otherwise make it “dangerous for Plaintiff to utilize the parking.” Pl.'s Resp. (ECF No. 6) at 6; Pl.'s Am. Compl. at ¶ 31(e), (g), (h). Plaintiff has clearly pled sufficient facts showing that these violations are more than mere technical violations.
Defendants also 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 ¶ 15. 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.
Defendants ask the Court to consider Plaintiff's litigation history as well as Plaintiff's counsel's litigation history. Def.'s Mot. at 8-9. Defendants argue that “It is impossible to believe that of the over 60 cookie-cutter lawsuits filed by these three attorneys ... that Mr. Lambert has a particularized interest in this Dairy Queen.” Id. at 8. Defendant argues that seventeen lawsuits “belie any plausible intent to ‘be a patron.'” Id. at 9. Plaintiff specifically alleges that he intends to return to the Dairy Queen when it is safe to return. Pl.'s Compl. at ¶ 15. Further, the mere fact that Plaintiff would like to visit seventeen businesses in McLennan County does not undercut the plausibility of his intent to return. Had Plaintiff sued seventeen businesses outside of the community he lives in, Defendant's arguments would be more persuasive. Further, the lawsuits Plaintiff's counsel file for other clients have no bearing on the Court's determination of Plaintiff's standing.
Defendant also argues that Plaintiff's prior allegation that he was at the Dairy Queen to look for violations indicates that Plaintiff does not have standing. Def.'s Mot. at 10. Defendant effectively argues that testers cannot have standing. None of the recent cases regarding standing in the ADA context supports this position. See Laufer, 996 F.3d at 271.
B. Plaintiff did not adequately allege that the barrier removal is readily achievable.
Defendants argue that Plaintiff has failed to adequately allege that the removal of the alleged barriers is readily achievable. Def.'s Mot. at 15. Under the ADA, removal of a barrier is readily achievable when is it “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9).
Plaintiff alleged that the removal of the physical barriers “is readily achievable and can be accomplished and carried out without significant difficulty or expense.” Pl.'s Am. Compl. at ¶ 36. Plaintiff alleged that removal of the barriers “is readily achievable because of the site conditions at the Subject Property, the structural design of the subject facility, and the straightforward nature of the necessary modifications.” Id. at ¶ 38. Plaintiff finally alleges that removal “is readily achievable because of the relative low cost of the necessary modifications and the Defendant has the financial resources to make the modifications, including the financial assistance made available to Defendant by the government.” Id. at ¶ 40.
Plaintiffs bear the initial burden of plausibly pleading that the removal of a barrier is readily achievable. Persyn v. Torres, No. SA-11-CV-0141 FB NN, 2011 WL 1549203, at *2, n. 12 (W.D. Tex. Apr. 22, 2011) (collecting citations). Circuits are currently split on the standard to apply in motions to dismiss on the grounds that a plaintiff has failed to plausibly plead that the removal of a barrier is readily achievable. See Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1038 (9th Cir. 2020). Some Circuits require plaintiffs to provide precise cost estimates and a specific design, while others require plaintiffs to articulate a plausible proposal for barrier removal that does not clearly exceed its benefits. Id. citing Colo. Cross Disability Coalition v. Hermanson Fam. Ltd. P'ship, 264 F.3d 999, 1009 (10th Cir. 2001), Roberts v. Royal Atl. Corp., 542 F.3d 363, 373 (2d Cir. 2008). Under both standards, a plaintiff is required to articulate a proposal for barrier removal.
Here, Plaintiff cannot meet his burden under either standard because he has failed to articulate any proposal for barrier removal in his Complaint. See generally Pl.'s Am. Compl. Thus, Defendant's Motion should be granted.
C. Plaintiff's Motion to Strike
Plaintiff filed a motion to strike Defendant's Motion to Dismiss because it references details of a settlement offer in a pre-suit letter. Pl.'s Mot. to Strike at 1. Plaintiff argues that Federal Rule of Evidence 408 precludes the use of the letter in determining whether Plaintiff has standing to bring his claim. Id. Defendants argue that the pre-suit demands are evidence that Plaintiff lacks standing. Def.'s Resp. to Pl.'s Mot. to Strike (ECF No. 17) at 2.
Defendant also argues that courts routinely consider pre-suit demands in determining jurisdictional issues. Id. at 3. After reviewing the cases cited by Defendant, the Court notes that all six involve determining the amount in controversy, not whether the Plaintiff lacks standing. An amount offered to settle the case is unquestionably relevant to determining the amount in controversy. It is not, however, relevant to determining whether a plaintiff has standing under Article III of the Constitution. Thus, the Court did not consider these pre-suit demands in its analysis of Plaintiff's standing under Article III of the Constitution. Plaintiff's Complaint clearly demonstrates that he has Article III standing, and consideration of a pre-suit demand letter would not alter that conclusion. Since the Court did not consider the pre-suit demand in its standing analysis and the pre-suit demand would have no effect on Plaintiff's standing, Plaintiff's Motion should be denied.
IV. CONCLUSION
For the reasons outlined above, the undersigned RECOMMENDS that Defendant's Motion to Dismiss (ECF No. 14) be GRANTED, and Plaintiff's Motion to Strike (ECF No. 15) 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.