Patricia Kennedy v. Beachside Commercial Properties, LLC ( 2018 )


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  •            Case: 17-14356   Date Filed: 05/01/2018   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 17-14356
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 6:17-cv-01047-RBD-GJK
    PATRICIA KENNEDY, Individually,
    Plaintiff - Appellant,
    versus
    BEACHSIDE COMMERCIAL PROPERTIES, LLC,
    a Florida Limited Liability Company,
    COCOA BEACH SURF COMPANY,
    a Florida Corporation,
    Defendants - Appellees.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (May 1, 2018)
    Before WILSON, JORDAN, and DUBINA, Circuit Judges.
    PER CURIAM:
    Case: 17-14356     Date Filed: 05/01/2018   Page: 2 of 11
    Plaintiff-Appellant Patricia Kennedy (“Plaintiff”), who is disabled, sued
    Defendants-Appellees Beachside Commercial Properties, LLC and Cocoa Beach
    Surf Company (collectively “Defendants”) to compel them to bring their premises
    at a Port of Call at Beach (“Port of Call”) store into compliance with Title III of the
    Americans with Disabilities Act, 
    42 U.S.C. §§ 12181
    –12189 (“ADA”). The
    district court determined Plaintiff lacked standing and dismissed her complaint for
    lack of subject matter jurisdiction. After reviewing the record and the parties’
    briefs, we affirm.
    I.    BACKGROUND
    Plaintiff Kennedy is mobility impaired and ambulates by wheelchair. She
    filed her amended complaint against Defendants, alleging they failed to provide
    adequate facilities in the Port of Call shop in Cocoa Beach when she visited the
    property on February 15, 2017. She sued for declaratory judgment and injunctive
    relief, seeking Defendants’ compliance with ADA provisions.
    A. Plaintiff’s Title III Claim
    Title III provides that “[n]o individual shall be discriminated against on the
    basis of disability” in “any place of public accommodation.” 
    42 U.S.C. § 12182
    (a).
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    In her amended complaint, 1 Plaintiff indicated she was both a bona fide patron of
    Port of Call as well as a “tester” for ADA accommodations, by which she
    advocates for herself and other disabled persons. Plaintiff alleges she encountered
    architectural and other barriers that caused her to be barred from accessing all of
    the premises and otherwise caused her humiliation, including: missing
    handicapped parking signs, lack of accessible routes to different store levels,
    merchandise obstructing wheelchair access in aisles, inaccessible and otherwise
    non-ADA compliant restrooms, and unsecured floor mats.
    B. Defendants’ Motion to Dismiss
    Defendants moved to dismiss Plaintiff’s amended complaint for failure to
    state a claim and for lack of standing or, in the alternative, moved for summary
    judgment. In this challenge to the amended complaint, Defendants raised a factual
    challenge to subject matter jurisdiction. Defendants challenged Plaintiff’s ability
    to show a real and immediate threat of future injury on the basis that she most
    likely would not return to Port of Call and face future discrimination. Defendants
    1
    Plaintiff initially filed her complaint on June 8, 2017. The district court, however,
    dismissed the complaint without prejudice on the basis that the complaint “constitute[d] an
    impermissible form of shotgun pleading,” which appears to be a reoccurring problem with
    Plaintiff’s filings. [See R. 7 at 1–2]. The district court allowed Plaintiff to refile an amended
    complaint correcting the many errors of the original, but Plaintiff missed the filing deadline. [R.
    8]. The district court then dismissed the complaint with prejudice. 
    Id.
     Plaintiff sought relief
    under Fed. R. Civ. P. 60(b) on the basis of excusable neglect, and the district court allowed her to
    file her amended complaint and reopened the case on June 29, 2017. [R. 10, 11].
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    stressed Plaintiff lives approximately 175 miles away from the premises, that she
    had only visited the premises once before, that she provided only “generalized
    allegations” of her plan(s) to return to the store, and that she failed to detail how
    frequently she travels in the area where the store is located. In essence, Defendants
    argued Plaintiff failed to meet the factors of the “proximity test” employed by
    district courts throughout this circuit. See Silva v. Baptist Health S. Fla., Inc., 
    856 F.3d 824
    , 832 (11th Cir. 2017); Houston v. Marod Supermarkets, Inc., 
    733 F.3d 1323
    , 1336–37 (11th Cir. 2013); Nanni v. Aberdeen Marketplace, Inc., 
    878 F.3d 447
    , 455–56 (4th Cir. 2017) (citing favorably to Houston and other circuit court
    decisions for application of the proximity or similar tests).
    In response to Defendants’ motion, Plaintiff filed an affidavit providing
    details about her visit to Port of Call and her future plans to revisit the store and the
    general Cocoa Beach area. In that document, Plaintiff stated she first visited the
    Port of Call premises on February 15, 2017 and then returned on July 19, 2017.
    [R. 22-1 at ¶ 4]. Plaintiff stated she “travel[s] along the Florida East Coast
    frequently,” including at least ten visits to the Cocoa Beach area “in the past
    several months” and “at least 50 times over the course of my lifetime.” [Id. at ¶ 2].
    Further, she indicated she “will continue to visit the area on a frequent basis[.]” 
    Id.
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    She indicated she “plan[s] to return to the property in the future” so that she can
    “shop, dine, and . . . monitor its ADA conditions.” [Id. at ¶ 6].
    C. Procedural History
    The district court granted Defendants’ motion to dismiss for lack of subject
    matter jurisdiction and dismissed the complaint with prejudice on September 25,
    2017. In its order, the district court found Plaintiff lacked standing because she
    could not demonstrate redressability. [R. 25 at 4]. In addressing this final element
    of standing, the district court determined Plaintiff could not satisfy the four-factor
    proximity test. In doing so, the district court found Plaintiff’s residence
    approximately 175 miles away from Cocoa Beach, in combination with her one
    visit to the store before she filed her suit, did not weigh in her favor. Further, the
    district court characterized Plaintiff’s generalized plans to revisit “someday” to be
    insufficient to shift the totality of the circumstances in her favor. After finding
    Plaintiff most likely did not face a continuing threat of discrimination at Port of
    Call, the district court dismissed her complaint for her lack of standing. Plaintiff
    thereafter perfected this appeal.
    II.     STANDARD OF REVIEW
    “In reviewing a district court’s dismissal of a complaint under Rule 12(b)(1)
    for lack of subject matter jurisdiction, we review the district court’s legal
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    conclusions de novo, including the court’s conclusion concerning standing.”
    Houston v. Marod Supermarkets, Inc., 
    733 F.3d 1323
    , 1328 (11th Cir. 2013). “We
    review the district court’s ‘findings of jurisdictional facts for clear error.’” 
    Id.
    (quoting City of Vestavia Hills v. Gen. Fidelity Ins. Co., 
    676 F.3d 1310
    , 1313 (11th
    Cir. 2012)).
    III.    DISCUSSION
    A. Article III Standing Requirements
    In order to satisfy the requirements for Article III standing under the
    Constitution, Plaintiff must satisfy three requirements: (1) injury-in-fact, (2) “a
    causal connection between the asserted injury-in-fact and the challenged action of”
    Defendants, and (3) “that the injury will be redressed by a favorable decision.”
    Houston, 733 F.3d at 1328 (internal marks and citations omitted); see also Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560, 
    112 S. Ct. 2130
     (1992). The second and
    third elements of standing are easily met and are not challenged on appeal. We
    conclude Plaintiff has adequately shown both causation and redressability. 2
    2
    In its order, the district court found Plaintiff had established the first two prongs of standing—
    that of an injury-in-fact and causation. [See R. 25 at p. 4]. The district court’s analysis of the
    redressability element follows our case law as set forth in Houston and other decisions. The
    Houston court is clear, however, that the analysis of the threat of future harm speaks to the
    question of an injury-in-fact and not redressability. See Houston, 733 F.3d at 1328; Silva, 856
    F.3d at 832. This minor error in nomenclature, however, is hardly a reason to overturn the
    district court’s well-reasoned analysis.
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    The hurdle Plaintiff faces, thus, is the question of whether Plaintiff suffered
    an injury-in-fact. See Houston, 733 F.3d at 1328. In order to meet the
    constitutional requirements for standing in a suit seeking injunctive relief, Plaintiff
    must do more than show that she was injured in the past; rather, she must also
    demonstrate “a sufficient likelihood that [s]he will be affected by the allegedly
    unlawful conduct in the future.” Id. (internal marks and citation omitted). To do
    so, Plaintiff must “show[ ] ‘a real and immediate—as opposed to a merely
    conjectural or hypothetical—threat of future injury.’” Id. at 1329 (quoting Shotz v.
    Cates, 
    256 F.3d 1077
    , 1081 (11th Cir. 2001) (emphasis in the original)). Thus, “to
    have standing, Plaintiff [Kennedy] must show past injury and a real and immediate
    threat of future injury.” 
    Id.
     As this court recently noted, “[i]n the ADA context,
    our standing inquiry has focused on the frequency of the plaintiff’s visits to the
    defendant’s business and the definitiveness of the plaintiff’s plan to return.” Silva,
    856 F.3d at 832 (citing Houston, 733 F.3d at 1337 n. 6) (“While we consider each
    of the four factors [of the proximity test] in reaching our decision today, we note
    that these factors are not exclusive and that no single factor is dispositive. District
    courts must consider the totality of all relevant facts to determine whether a
    plaintiff faces a real and immediate threat of future injury.”).
    B. Article III Standing Analysis
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    “A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack
    of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S.
    v. Orlando Reg’l Healthcare Sys., Inc., 
    524 F.3d 1229
    , 1232 (11th Cir. 2008). In
    this case, Defendants challenged Plaintiff’s standing on the basis of extrinsic
    material found outside of the amended complaint, namely in Plaintiff’s affidavit
    and response to the district court’s interrogatories. See 
    id.
     (“By contrast, a factual
    attack on a complaint challenges the existence of subject matter jurisdiction using
    material extrinsic from the pleadings, such as affidavits or testimony.”); see also
    Houston, 733 F.3d at 1336. On this basis, we consider not only what Plaintiff has
    alleged in her amended complaint but also the factual information she provided in
    her court filings. Plaintiff, who lives approximately 175 miles away from the
    Cocoa Beach area, visited Defendants’ store only once, in February 2017, before
    filing her complaint in June 2017.3 Plaintiff further stated she had visited the
    general area about ten times in recent months and about fifty times over the course
    of her lifetime. She further claimed she “will continue to visit the area on a
    3
    It is true that Plaintiff revisited the premises at Port of Call in July 2017 after the filing of her
    suit and has, thus, visited at least twice. Like the district court, however, we cannot consider her
    second, post-filing visit to determine standing. See Bochese v. Town of Ponce Inlet, 
    405 F.3d 964
    , 976 (11th Cir. 2005) (“However, in making the necessary preliminary determination of
    what claims the plaintiff has actually raised (and therefore, what claims he must have standing to
    raise), we are bound by the contents of the plaintiff’s pleadings . . . .”) (emphasis in the original).
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    frequent basis” and indicated she “plan[s] to return to the property in the future” so
    that she can “shop, dine, and . . . monitor its ADA conditions.” We also take note
    that Port of Call has closed since Plaintiff’s filing of her initial suit, although
    Defendant Beachside Commercial Properties, LLC still owns the premises.
    In taking all of the factual allegations and the totality of the circumstances
    into consideration, we conclude that Plaintiff has failed to demonstrate a “real and
    immediate threat of future injury” and thus cannot meet the requirements for
    standing. Plaintiff’s singular documented visit to Port of Call does not weigh in
    her favor. As we noted in Shotz, a plaintiff seeking injunctive relief under Title III
    must “have attempted to return” or at the minimum “intend to do so in the future.”
    256 F.3d at 1081. Like in Shotz, 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. Compare Shotz, 256 F.3d at 1082 (concluding that a single visit to a non-
    complaint building with no expressed intent to return amounted to “conjectural,
    hypothetical, or contingent” rather than “real and immediate” future
    discrimination”), with Houston, 733 F.3d at 1336 (determining plaintiff’s multiple
    visits to the discriminating premises before he filed suit evidenced a future threat
    of continued discrimination).
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    Further, Plaintiff’s generalized intent to return to the Cocoa Beach area
    sometime in the future does not bolster her case. Plaintiff lives about three hours
    away from the area and has no definitive plans to return to Port of Call (which, we
    note, is now impossible, as the store has closed). Her vague intent to return to shop
    and monitor the premises cannot pass constitutional muster. Unlike the plaintiff in
    Houston who lived only thirty miles away and had both definitive plans and sound
    reason to revisit the area, Plaintiff uses overly-broad and vague language as a
    “catch-all” to hope that her claim will stick. While neither our court nor the
    Supreme Court require detailed or concrete travel plans to revisit a place to meet
    standing requirements, case law requires more immediacy than a “someday” plan.
    See Houston, 733 F.3d at 1338–40. For example, in its factually-specific inquiry
    into standing, this court determined Houston did have standing in part because
    “Houston visits his lawyer’s offices near the [non-compliant premises] on a
    frequent basis and, thus, drives by the store frequently. During these trips to his
    lawyer’s office in the near future, he wants to visit the store. Unlike the plaintiffs
    in Lujan, Houston has averred a concrete and realistic plan of when he would visit
    the store again.” Id. at 1340. Unlike the plaintiff in Houston, Plaintiff cannot point
    to anything in the record that supports a “concrete and realistic plan” to revisit
    Defendants’ premises. See id.; see also Silva, 856 F.3d at 832 (concluding
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    plaintiffs did have standing to seek injunctive relief for alleged ADA violations on
    the basis that they visited the hospital frequently for appointments and had strong
    evidence supporting the likelihood of future visits).
    In this fact-sensitive inquiry—as that of standing must be4—we conclude
    Plaintiff does not have standing to seek injunctive relief against Defendants. The
    totality of the circumstances surrounding her past visit to Port of Call, the store’s
    subsequent closing, and the formulaic assertion of a generalized intent to return to
    the premises and/or the area do not amount to a “real and immediate” threat of
    future injury.
    IV.     CONCLUSION
    Having concluded Plaintiff lacks standing, we do not reach Plaintiff’s
    remaining pettifogging arguments. For the reasons set forth above, we affirm the
    district court’s judgment of dismissal for lack of subject matter jurisdiction.
    AFFIRMED.
    4
    We have previously noted, “determining standing for injunctive relief is often a fact-sensitive
    inquiry” and that “each plaintiff must establish standing on the facts of the case before the
    court.” Houston, 733 F.3d at 1340.
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