You're viewing Docket Item 23 from the case Betancourt v. Ingram Park Mall, L.P.. View the full docket and case details.

Download this document:

Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 1 of 30

In the United States District Court

for the

Western District of Texas







Civil Action No. SA-10-CV-029-XR

On this date, the Court considered Defendant’s Motion to Dismiss (docket no. 7), and the


Response (and Supplement) and Reply thereto.

I. Background

Plaintiff Guadalupe Betancourt, a Kansas resident, filed her original complaint against

Defendant Ingram Park Mall on January 15, 2010, seeking declaratory and injunctive relief,

attorney’s fees, litigation expenses, and costs under Title III of the Americans with Disabilities Act

(“ADA”). In her Complaint, Plaintiff alleges that she is mobility impaired and uses a wheelchair.

She alleges that she visited Ingram Park Mall (“the property”), located in Bexar County, Texas, and

plans to return there to avail herself of the goods and services offered to the public and to determine

whether the property has been made ADA compliant. Plaintiff further alleges that, when visiting

the property, she encountered architectural barriers that discriminate against her on the basis of her

disability and have endangered her safety, and that these barriers prevent her from returning to the

property to enjoy the available goods and services. Plaintiff contends that she has suffered and will


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 2 of 30

continue to suffer injury until Defendant is compelled to make its property ADA compliant.

On March 29, Defendant moved to dismiss Plaintiff’s action under Rule 12(b)(1) for lack

of jurisdiction and under Rule 12(b)(6) for failure to state a claim. In the motion, Defendant

contends that this Court lacks jurisdiction over Plaintiff’s Title III claim because Plaintiff lacks

standing. Specifically, because Plaintiff resides in Kansas and seeks only declaratory and injunctive

relief (the only type of relief available for Title III violations), Defendant asserts that she cannot

demonstrate a real threat of future harm from Defendant’s alleged ADA violations and thus lacks

standing. In the alternative, Defendant moves for dismissal on the basis that Plaintiff has failed to

state a claim. Defendant contends that Plaintiff’s Complaint contains only conclusory allegations

and formulaic recitations “not entitled to the assumption of truth.”

Plaintiff filed her Response on April 26, as well as an Amended Complaint. Because

Plaintiff filed an Amended Complaint, it is the operative pleading for purposes of the motion to


dismiss. Plaintiff also filed an Affidavit to supplement her Response on May 1. Defendant filed its

Reply on May 7.

In her Amended Complaint, Plaintiff seeks declaratory and injunctive relief, attorney’s fees,


Rule 15 allows a plaintiff to file an amended complaint as of right within 21 days after
service of a motion under Rule 12(b); otherwise, leave of court or written consent of the defendant
is required. Though Plaintiff’s Amended Complaint was filed more than 21 days after service of the
motion, Plaintiff sought and was granted an extension of time to respond to the motion to dismiss,
and Plaintiff apparently construed that as also being an extension of the Rule 15 deadline. In any
event, if leave of Court was required, it is now granted, as the Rule 15 factors are met and Defendant
has not objected to the filing of the Amended Complaint. In fact, in its Reply, Defendant asserts that
the motion to dismiss must be applied to the Amended Complaint rather than dismissed as moot.
However, Defendant also contends that the filing of the Amended Complaint mooted Plaintiff’s
Response to the motion to dismiss and the affidavit, and that these “are no longer germane to the
issue of whether Plaintiff has standing because Plaintiff filed the First Amended Complaint.”
However, Defendant cannot have it both ways. Either both the motion and response are moot, or
both may be considered. The Court will do the latter.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 3 of 30

litigation expenses, and costs under Title III of the ADA “on her behalf and on behalf of all other

individuals similarly situated.” She alleges that Ingram Park Mall is a place of public

accommodation, that she has visited the property, and that she “plans to return to avail herself of the

goods and services offered to the public at the property, and to determine whether the property has

been made ADA compliant.” Am. Compl. ¶¶ 5, 7. Plaintiff alleges that she encountered

architectural barriers that discriminate against her on the basis of her disability and endangered her

safety. Id. Plaintiff alleges that she “has suffered and will continue to suffer direct and indirect

injury as a result of Defendant’s discrimination until the Defendant is compelled to comply with the

requirements of the ADA.” Id. ¶ 6. Plaintiff further alleges that she has “a realistic, credible,

existing and continuing threat of discrimination from the Defendant’s non-compliance with the ADA

with respect to this property as described but not necessarily limited to the allegations contained in

paragraph 10.” Id. ¶ 8. She asserts that she has “reasonable grounds to believe that she will

continue to be subjected to discrimination in violation of the ADA by the Defendant.” Id. She

alleges that she “desires to visit Ingram Park Mall not only to avail herself of the goods and services

available at the property but [also] to assure herself that this property is in compliance with the ADA

so that she and others similarly situated will have full and equal enjoyment of the property without

fear of discrimination.” Id.

Plaintiff alleges that Defendant is in violation of the ADA by failing to have accessible

facilities, and lists various deficiencies in parking, entrance access and path of travel, access to

goods and services, and restrooms. Id. ¶ 10. Plaintiff asserts that these violations are non-

exhaustive, and that she requires an inspection to measure “all of the discriminatory acts violating

the ADA.” Id. ¶ 11. Plaintiff alleges that she “and all others similarly situated have been denied


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 4 of 30

access to and have been denied the benefits and services, programs and activities of the Defendant’s

buildings and facilities, and have otherwise been discriminated against and damaged by the

Defendant because of the Defendant’s ADA violations, as set forth above.” Id. ¶ 11. Plaintiff

further contends that Defendant has “discriminated against the Plaintiff by denying her access to full

and equal enjoyment of the goods, services, facilities, privileges, advantages and/or accommodations

of its place of public accommodation or commercial facility in violation of 42 U.S.C. § 12181 et seq.

and 28 C.F.R. 36.302 et seq.” and “continues to discriminate against the Plaintiff and all those

similarly situated by failing to make reasonable accommodations in policies, practices, or

procedures, when such modifications are necessary to afford all offered goods, services, facilities,

privileges, advantages or accommodations to individuals with disabilities; and by failing to take such

efforts that may be necessary to ensure that no individual with a disability is excluded, denied

services, segregated or otherwise treated differently than other individuals because of the absence

of auxiliary aids and services.” Id. ¶ 12.

Plaintiff prays for a declaratory judgment that Defendant is in violation of Title III, injunctive

relief “including an order to make all readily achievable alterations to the facility or to make such

facility readily accessible to and usable by individuals with disabilities to the extent required by the

ADA and to require the Defendant to make reasonable modifications in policies, practices or

procedures, when such modifications are necessary to afford all offered goods, services, facilities,

privileges, advantages or accommodations to individuals with disabilities,” and attorneys’ fees.



As part of this sentence, Plaintiff also includes language regarding auxiliary aids and
services that appears to have been cut and pasted from the body of the Complaint, as it re-alleges
that Defendant has failed to provide auxiliary aids and services rather than seeking declaratory relief
regarding that failure. However, as will be discussed later, Plaintiff’s Complaint and Amended
Complaint fail to state a claim with regard to any allegedly discriminatory policies, practices, or


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 5 of 30

In her Affidavit, submitted as a supplement to her response to Defendant’s motion to dismiss,

Plaintiff states that she frequently travels to San Antonio to visit family, and that she is also a

disability rights advocate and a “tester.” Plaintiff states that she visited the Mall in June 2009 and

encountered a number of “barriers and violations,” which are listed and accompanied by

photographs. She further states that she intends to return to the San Antonio area in the Summer


of 2011 to visit her family and survey places of public accommodation and assert her civil rights.

With regard to the Mall, she states:

I am aware that it would be a futile gesture to visit Defendant’s facility unless and
until it is brought into compliance with the Americans Disability Act [sic]. I intend
to return to Defendant’s property next summer for a planned family visit, but I have
no desire to suffer further discrimination. Presently, I am aware that I am being
denied the opportunity to visit Defendant’s property and enjoy the same goods,
advantages, benefits and services available to the non-disabled public. I am aware
that I presently lack the civil right to visit Defendant’s property free of
discrimination. I do not know when the Defendant will fix its ADA violations, and
therefore am prevented by Defendant from making plans to visit its premises and
shop again at its facility. As soon as I learn that Defendant is compliant with the
ADA, and that I have the opportunity to visit the premises free of discrimination, I
will visit the property.

II. Standard of Review

Defendant moves to dismiss pursuant to Rule 12(b)(1) based on Plaintiff’s asserted lack of

standing. The Court must dismiss a cause for lack of subject matter jurisdiction “when the court

lacks the statutory or constitutional power to adjudicate the case.” See Home Builders Ass'n of

Mississippi, Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998). In deciding a motion to

procedures and any alleged failure to provide auxiliary aids and services. Thus, this Order will focus
primarily on Plaintiff’s allegations regarding architectural barriers.


The Court also takes judicial notice of Plaintiff’s Affidavit filed in another case pending
before this Court. In Betancourt v. Federated Department Stores, SA:09-cv-856, Plaintiff filed an
affidavit stating that she visited the Macy’s in Ingram Park Mall on March 29, 2009.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 6 of 30

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 motion to dismiss is based on the lack of

jurisdiction on the face of the complaint, the plaintiff is left with safeguards similar to those retained

when a Rule 12(b)(6) motion to dismiss for failure to state a claim is raised – the court will consider

the allegations in the plaintiff’s complaint as true. Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.


“[T]he irreducible constitutional minimum of standing contains three elements.” Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992). These elements are “(1) an ‘injury in fact’ that is

(a) concrete and particularized and (b) actual or imminent; (2) a causal connection between the

injury and the conduct complained of; and (3) the likelihood that a favorable decision will redress

the injury.” Croft v. Governor of Texas, 562 F.3d 735, 745 (5th Cir. 2009) (citing Lujan, 504 U.S.

at 560-61). Particularized means “that the injury must affect the plaintiff in a personal and

individual way.” Lujan, 504 U.S. at 560 n.1. “The party invoking federal jurisdiction bears the

burden of establishing these elements.” Lujan, 504 U.S. at 561. Since they are not mere pleading

requirements but rather an indispensable part of the plaintiff’s case, each element must be supported

in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the

manner and degree of evidence required at the successive stages of the litigation. Id. At the

pleading stage, general factual allegations of injury resulting from the defendant’s conduct may

suffice, for on a motion to dismiss we “presum[e] that general allegations embrace those specific

facts that are necessary to support the claim.” Lujan, 504 U.S. at 561; Public Citizen, Inc. v. Bomer,


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 7 of 30

274 F.3d 212, 218 (5th Cir. 2001).

Defendant also moves to dismiss under Rule 12(b)(6) for failure to state a claim. In

considering a motion to dismiss under 12(b)(6), all factual allegations from the complaint should

be taken as true. Fernandez-Montez v. Allied Pilots Assoc., 987 F.2d 278, 284 (5th Cir. 1993).

Courts may look only to the pleadings in determining whether a plaintiff has adequately stated a

claim; consideration of information outside the pleadings converts the motion to one for summary

judgment. FED. R. CIV. P. 12(d). To survive a 12(b)(6) motion, a complaint must contain “more

than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not

do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations must be

sufficient to “raise a right to relief above the speculative level.” Id. A well-pleaded complaint can

survive a motion to dismiss even if actual proof of the facts alleged is “improbable.” Id. at 556.

III. Analysis

A. The ADA and Title III – overview, requirements, and remedies

The ADA was passed in 1990 with the declared purposes of providing “a clear and

comprehensive national mandate for the elimination of discrimination against individuals with

disabilities” and providing “clear, strong, consistent, enforceable standards addressing

discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b). Recognizing that people

with disabilities historically faced discrimination in a number of areas, Congress included its in its

findings the following: (1) “many people with physical or mental disabilities have been precluded

[from fully participating in society] because of discrimination,”(2) “historically, society has tended

to isolate and segregate individuals with disabilities,” and (3) “discrimination against individuals

with disabilities persists in such critical areas as employment, housing, public accommodations,


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 8 of 30

education, transportation, communication, recreation, institutionalization, health services, voting,

and access to public services.” 42 U.S.C. § 12101(a). Congress found that “individuals with

disabilities continually encounter various forms of discrimination, including . . . the discriminatory

effects of architectural, transportation, and communication barriers . . . and relegation to lesser

services, programs, activities, benefits, jobs, or other opportunities,” and asserted that “the Nation’s

proper goals regarding individuals with disabilities are to assure the equality of opportunity, full

participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C.

§ 12101(a).

Title III of the ADA prohibits discrimination against persons with disabilities by places of

public accommodation and services operated by private entities, including retail establishments.

Section 12181 broadly pronounces the “general rule” that “[n]o individual shall be discriminated

against on the basis of disability in the full and equal enjoyment of the goods, services, facilities,

privileges, advantages, or accommodations of any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. §

12182(a). It then includes both “general” and “specific” prohibitions. The “general prohibition”

against discrimination in activities provides that it shall be discriminatory to (1) subject disabled

persons, on the basis of disability, “to a denial of the opportunity . . . to participate in or benefit from

the goods, services, facilities, privileges, advantages, or accommodations of an entity,” (2) afford

disabled persons, on the basis of disability, an unequal benefit to that afforded others, or (3) provide

a good, service, facility, privilege, advantage, or accommodation that is different or separate from

that provided to other individuals, unless such action is necessary to provide the disabled individuals

with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 9 of 30

as effective as that provided to others. 42 U.S.C. § 12182(b)(1).

The “specific prohibitions” provide that, “[f]or purposes of subsection (a), discrimination

includes (i) the imposition or application of eligibility criteria that screen out or tend to screen out

an individual with a disability . . . unless such criteria can be shown to be necessary . . . (ii) a failure

to make reasonable modifications in policies, practices, or procedures, when such modifications are

necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to

individuals with disabilities, unless the entity can demonstrate that making such modifications would

fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or

accommodations; (iii) a failure to take such steps as may be necessary to ensure that no individual

with a disability is excluded, denied services, segregated or otherwise treated differently than other

individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate

that taking such steps would fundamentally alter the nature of the good, service, facility, privilege,

advantage, or accommodation being offered or would result in an undue burden; (iv) a failure to

remove architectural barriers, and communication barriers that are structural in nature, in existing

facilities; and (v) where an entity can demonstrate that the removal of a barrier under clause (iv) is

not readily achievable, a failure to make such goods, services, facilities, privileges, advantages, or

accommodations available through alternative methods if such methods are readily achievable.” 42

U.S.C. § 12182(b)(2)(A).

Though the application of Title III is broad, the remedies available to injured parties are

limited. See Ruth Colker, ADA Title III: A Fragile Compromise, 21 BERKELEY J. EMP. & LAB. L.

377 (2000) (noting that “[i]n return for a broad list of covered entities, civil rights advocates agreed

to a limited set of remedies under ADA Title III.”). “Remedies available under Title III of the ADA


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 10 of 30

are the same as those under Title II of the Civil Rights Acts of 1964, 42 U.S.C. § 2000, for which

there is only injunctive relief.” Frame v. City of Arlington, 575 F.3d 432, 438 n.5 (5th Cir. 2009).4

The Supreme Court has stated that suits under 204(a) of the Civil Rights Act of 1964, 42 U.S.C. §

2000a-3(a), the provision creating a private right of action to enforce Title II of the Act, and which

deals with discrimination in public accommodations, are “private in form only.” Guardians Ass’n

v. Civil Service Comm’n, 463 U.S. 582 (1983). “When a plaintiff brings an action under that Title,

he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also

as a ‘private attorney general,’ vindicating a policy that Congress considered of the highest priority.”

Id. (citing Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-02 (1968)). “It is fair to assume

that Congress had the same understanding when it enacted Title III of the ADA.” Dudley v.

Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003).

Under the terms of the ADA, injunctive relief is available “to any person who is being

subjected to discrimination on the basis of disability in violation of [Title III].” 42 U.S.C. §

12188(a)(1). “In the case of violations of sections 12182(b)(2)(A)(iv) [architectural barriers] . . .,

injunctive relief shall include an order to alter facilities to make such facilities readily accessible to

and usable by individuals with disabilities to the extent required by [Title III].” Id. § 12188(a)(2).

Section 12188 expressly states that “[n]othing in this section shall require a person with a disability

to engage in a futile gesture if such person has actual notice that a person or organization covered

by this subchapter does not intend to comply with its provisions.” Id.

The ADA also permits enforcement by the Attorney General if there is reasonable cause to


“The remedies and procedures set forth in section 2000a-3(a) of [Title 42 U.S.C.] are the
remedies and procedures [Title III] provides to any person who is being subjected to discrimination
. . . .” 42 U.S.C. § 12188.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 11 of 30

believe that there is a “pattern or practice of discrimination” or a person or group of persons has

been discriminated against “and such discrimination raises an issue of general public importance.”

42 U.S.C. § 12188(b)(1)(B). However, the Attorney General has limited resources, and thus

“private suits by necessity represent the main tool for ensuring compliance with Congress’s intent

in passing the ADA.” Kelly Johnson, Note, Testers Standing Up for Title III of the ADA, 59 CASE

W. RES. L. REV. 683, 710 (2009). As a result of both the Attorney General’s limited resources and

the limited remedies available to Title III plaintiffs, “most ADA suits are brought by a small number

of private plaintiffs who view themselves as champions of the disabled.” Molski v. Evergreen

Dynasty Corp., 500 F.3d 1047, 1062 (9th Cir. 2007).

B. Lyons and Lujan

“Any person who is being subjected to discrimination based on disability in violation of”

Title III has a cause of action, but whether a plaintiff has a cause of action is a distinct issue from

whether she has standing under Article III. See Davis v. Passman, 442 U.S. 228, 239 n.18 (1979)

(noting the difference between having a cause of action and standing). Thus, because a federal

plaintiff must demonstrate standing for each type of relief sought, and the relief available to a Title

III ADA plaintiff is injunctive relief, a plaintiff must satisfy the Article III standing requirements

for injunctive relief. The Supreme Court has never addressed Article III standing requirements for

Title III suits. Many federal courts deciding standing issues under the ADA Title III rely primarily

on City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983) and Lujan v. Defenders of Wildlife, 504

U.S. 555 (1992), which involved very different factual scenarios.

In Lyons, the Supreme Court found that the plaintiff lacked standing to seek declaratory and

injunctive relief prohibiting the City’s police department from using chokeholds because of “the


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 12 of 30

speculative nature of Lyons’ claim of future injury.” Lyons, 461 U.S. at 111. The Court held that

a “plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct

injury’ as the result of the challenged official conduct and the injury or threat of injury must be both

‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Lyons, 461 U.S. at 102. The Court stated

that “[p]ast exposure to illegal conduct does not in itself show a present case or controversy

regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects,” though

“[p]ast wrongs [are] evidence bearing on ‘whether there is a real and immediate threat of repeated

injury.’” Id. (quoting O’Shea v. Littleton, 414 U.S. 488 (1974)). Though it stated these broad

principles, the finding of no standing in Lyons rested on specific conclusions, including that (1)

Lyons had done nothing to establish a real and immediate threat that he would again be stopped for

a traffic violation or for any other offense by an officer or officers who would illegally choke him

into unconsciousness without any provocation or resistance on his part (in fact, the Court noted its

holding in a prior case that it would presume that the plaintiff would behave lawfully); (2) the need

for a proper balance between state and federal authority counsels restraint in the issuance of

injunctions against state officers engaged in the administration of the states’ criminal laws in the

absence of irreparable injury which is both great and immediate; and (3) withholding injunctive

relief did not mean that the federal law would exercise no deterrent effect in the circumstances

because Lyons had a damages remedy for his injury.

Lujan involved a challenge by environmental group plaintiffs to a regulation issued by the

Secretary of the Interior that interpreted § 7 of the Endangered Species Act “in such fashion as to

render it applicable only to actions within the United States or on the high seas.” Lujan, 504 U.S.

at 558. The plaintiff wildlife conservation and environmental groups sought a declaratory judgment


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 13 of 30

that the regulation was erroneous and an injunction requiring the Secretary to promulgate a new

regulation. Id. at 559. The Court emphasized at the outset of the opinion that “[w]hen the suit is

one challenging the legality of government action or inaction, the nature and extent of facts that must

be . . . proved in order to establish standing depends considerably upon whether the plaintiff is

himself an object of the action (or foregone action) at issue” and when “a plaintiff’s asserted injury

arises from the government’s allegedly unlawful regulation (or lack of regulation) of someone else,

much more is needed.” Id. at 561-62. The Court held that, to survive summary judgment, the

plaintiffs had to submit evidence showing through specific facts, “not only that the listed species

were in fact being threatened by funded activities abroad, but also that one or more of respondents’

members would thereby be ‘directly’ affected apart from their ‘special interest’ in the subject.” Id.

at 563. The Court noted that the plaintiffs had no specific future plans to go abroad and observe the

endangered species, “[a]nd the affiants’ profession of an ‘intent[t]’ to return to the places they had

visited before – where they will presumably, this time, be deprived of the opportunity to observe

animals of the endangered species – is simply not enough.” Id. at 564. It held that “[s]uch ‘some

day’ intentions – without any description of concrete plans, or indeed even any specification of when

the some day will be – do not support a finding of the ‘actual or imminent’ injury that our cases

require.” Id. Thus, it was “beyond the limit” and “into pure speculation” to say “that anyone who

observes or works with an endangered species, anywhere in the world, is appreciably harmed by a

single project affecting some portion of that species with which he has no more specific connection.”


C. Courts applying Lyons and Lujan to find no standing

A number of courts have applied Lyons and Lujan to hold that a plaintiff lacks standing to


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 14 of 30

seek injunctive relief under Title III unless she alleges a concrete, particularized, and credible plan

to return to the public accommodation that is currently discriminating against her on a specific future

date. These courts hold that the likelihood of future injury is measured by “whether the plaintiff is

likely to return to the defendant’s business.” Access4All, Inc. v. Wintergreen Commercial, Civ. A.

No. 3:05-CV-1307, 2005 WL 2989307 at *3 (N.D. Tex. Nov. 7, 2005). And, whether these courts

find that a plaintiff is likely to return to the allegedly discriminatory business is determined by

considering “such factors as: (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 definitiveness of the

plaintiff’s plans to return, and (4) the plaintiff’s frequency of travel near the defendant.” Id.

D. Commentary

The “concrete plan to return” approach, which is espoused by Defendant in this case, has

been repeatedly criticized by commentators. In 2000, Ruth Colker wrote that “[c]ourts that have

applied Lyons to ADA Title III cases have applied the [standing] doctrine too stringently and have

arguably misconstrued the nature of these Title III actions.” Colker, supra at 397. Distinguishing

Lyons, Colker noted that ADA Title III “cases do not involve extreme situations in which only a

plaintiff’s criminal conduct could cause future discrimination to occur,” but instead “these are cases

in which plaintiffs represent a class of litigants who repeatedly face instances of discrimination as

a result of their own voluntary and lawful conduct.” Id.

In 2002, Elizabeth Keadle Markey noted that “[m]any courts have relied on tenuous

analogies to, and narrow interpretations of, judicially-created standing doctrine in deciding whether

a plaintiff has standing under the ADA” and advocated “greater vigilance on the part of the courts

to ensure that persons who suffer disability discrimination do have standing to bring their claims.”


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 15 of 30

Elizabeth Keadle Markey, The ADA’s Last Stand?: Standing and the Americans With Disabilities

Act, 71 FORDHAM L. REV. 185, 186 (October 2002).

In 2004, Professor Adam Milani surveyed the case law, noting that “[t]he generating force

for ADA compliance of private suits will be blunted . . . if courts persist in holding that plaintiffs

do not have standing to remedy violations such as inaccessible buildings or the refusal to change

policies regarding the provisions of services or auxiliary aids to people with disabilities.” He

recognized that “[b]y their very nature, such violations are ongoing and not isolated occurrences.”

Adam A. Milani, Wheelchair Users Who Lack “Standing”: Another Procedural Threshold Blocking

Enforcement of Titles II and III of the ADA, 39 WAKE FOREST L. REV. 69, 113 (Spring 2004).

Professor Milani argued that allowing standing in most Title II and III cases is actually consistent

with the holdings in Lyons and Lujan. He notes that “the ‘odds’ of the injury recurring are certain

where a building is not in compliance with the ADA,” and that the plaintiff and “every other person

with the same disability” will confront the same barrier on every future visit. Id. He further argued

that disabled plaintiffs need not establish imminent future injuries because “they have an actual and

present injury – they are currently deterred from visiting a building.” Id. at 117-18.

And recently, Kelly Johnson wrote that “[c]ourts are mistaken in applying Lyons and Lujan

to prevent standing to ADA testers” because “the [Supreme] Court’s rationale for denying standing

in the cases is inapplicable to ADA testers.” Johnson, supra at 712. Discussing standing

specifically in the context of ADA testers, Johnson notes that the “suit is in court because the

defendant refuses to make the necessary changes, so there is little doubt a plaintiff would be

subjected to the harm if he or she were to return” and “testers can plausibly claim that they will

return to the place of violation, which is different from claiming that police will choke you or that


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 16 of 30

you plan on traveling to a faraway country to see exotic animals.” Id. She asserts that “a tester’s

assertions that he or she plans to return to a public accommodation are quite likely true, because the

tester would probably be the first person to make sure the changes were made for compliance” and

“no precedent says that a plaintiff’s intent to return cannot be motivated in some way to advance

his/her lawsuit.” Id. at 712-13. Johnson contends that “[c]ourts that use Lyons and Lujan as grounds

to deny standing are interpreting the cases to stand for principles those decisions do not endorse and

are applying the cases far too stringently.” Id. at 714.

E. Broader Views of Title III Injury and Standing

Other courts and judges have taken a broader approach to Article III standing for injunctive

relief in Title III cases. Criticizing the majority’s finding of no standing based on the plaintiff’s

failure to allege a specific date in the future on which he would return to defendant’s facility, Judge

Barkett wrote:

Especially in the disability context, a “specific-date/set-plans” standard would
produce patently absurd results, and would almost certainly place plaintiffs in a
Catch-22 so far as their credibility is concerned. To have standing under the ADA,
is a wheelchair-bound individual who consistently but unpredictably frequents a
particular Burger King required to predict the very day on which he will next crave
a Whopper?

Access v. America v. Associated Out-Door, 188 Fed. App’x 818 at *2 (11th Cir. 2006) (Barkett, J.,

dissenting). He also noted that the Eleventh Circuit had previously held that an allegation that the

plaintiff would return to the public accommodation “soon” was sufficient. See Stevens v. Premier

Cruises, 215 F.3d 1237 (11th Cir. 2000).

Some courts have also recognized that the Title III ADA plaintiff’s injury may be broader

than the injury suffered by the direct interaction with architectural barriers. Consistent with the

express language of the ADA, these courts recognize that plaintiffs need not engage in the “futile


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 17 of 30

gesture” of alleging an intent to return to a place before it is made ADA-compliant.

The Eighth Circuit in Steger v. Franco, 228 F.3d 889 (8th Cir. 2000), though applying Lyons

and Lujan, nevertheless found that a plaintiff who had suffered past injury had standing to sue a

building owner to compel compliance with the ADA. The building provided office and retail space

for health care providers and other retail and service establishments. The Eighth Circuit held that

the plaintiffs had to satisfy the general requirements set forth in Lyons and Lujan, including injury-

in-fact and redressability. Regarding injury-in-fact, the Court held that “[a]lthough plaintiffs need

not engage in the ‘futile gesture’ of visiting a building containing known barriers that the owner has

no intention of remedying, see 42 U.S.C. § 12188(a)(1), they must at least prove knowledge of the

barriers and that they would visit the building in the imminent future but for those barriers.” Steger,

228 F.3d at 892. The Court did not require the plaintiff to allege a specific and concrete plan to

return to the building before it was made ADA-compliant.

In Pickern v. Holiday Quality Foods, Inc., 293 F.3d 1133 (9th Cir. 2002), the Ninth Circuit

also recognized that the deterrent effect of discriminatory conditions is an ongoing injury sufficient

to confer standing. The court held that, “under the ADA, once a plaintiff has actually become aware

of discriminatory conditions existing at a public accommodation, and is thereby deterred from

visiting or patronizing that accommodation, the plaintiff has suffered an injury,” and “[s]o long as

the discriminatory conditions continue, and so long as a plaintiff is aware of them and remains

deterred, the injury under the ADA continues.” Id. at 1136-37. Accordingly, allegations that “[the

plaintiff] has visited [defendant’s] store in the past and states that he has actual knowledge of the

barriers to access at that store” and that plaintiff “prefers to shop at Holiday markets and that he

would shop at the Paradise market if it were accessible” were sufficient to establish actual or


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 18 of 30

imminent injury for purposes of standing. Id. at 1138.

The Ninth Circuit reaffirmed this position in subsequent cases, noting that “[t]he Supreme

Court has instructed us to take a broad view of constitutional standing in civil rights cases, especially

where, as under the ADA, private enforcement suits ‘are the primary method of obtaining

compliance with the Act.’” Doran v. 7-Eleven, 524 F.3d 1034, 1039 (9th Cir. 2008).

The First Circuit found a plaintiff’s allegations similar to the allegations in this case to be

sufficient to confer standing at the pleading stage in Disabled Americans for Equal Access, Inc. v.

Ferries Del Caribe, Inc., 405 F.3d 60, 64 (1st Cir. 2005). The plaintiff alleged that he had visited

defendant’s cruise ship and been subjected to discrimination, that he intended to return to the cruise

vessel to avail himself of the goods and services thereon, and that the barriers had denied and

diminished his ability to visit and/or use the property and had endangered his safety and the safety

of other disabled persons. Id. at 65. The court expressly held that the plaintiff did not have to

engage in the futile gesture of actually traveling aboard the vessel again to establish standing. Id.

at 65 n.7.

F. Fifth Circuit decisions

The Fifth Circuit has not expressly considered the proper approach to determining standing

in the typical Title III case. In fact, this Court has located only one published Fifth Circuit case

discussing standing in a Title III case – Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308 (5th Cir.

1997). In Plumley, the standing issue was not a difficult one given that the plaintiff had died,

rendering any continuing or future injury impossible. In that case, Plumley’s son arranged to buy

a used truck from the defendant, Landmark Chevrolet, and Plumley was to act as guarantor. When

the sales person/manager learned that Plumley was HIV+, he refused to sell the car to Plumley’s son.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 19 of 30

Plumley thereafter died and his wife was substituted as the plaintiff, and Plumley’s son bought a

truck elsewhere. The Fifth Circuit dismissed the ADA claim, reasoning:

[A] plaintiff seeking injunctive relief based on an alleged past wrong must show that
there is a real or immediate threat that he will be wronged again. Appellant cannot
meet this threshold. Plumley has died and his son bought another truck. It is unlikely
that Landmark will wrong Plumley again.

Plumley, 122 F.3d at 312.

However, in the more typical situation in which the plaintiff remained alive and a

discriminatory policy remained in place, the Fifth Circuit affirmed the district court’s order for

injunctive relief concerning a brewery’s policy on service animals. Johnson v. Gambrinus

Company/Spoetzl Brewery, 116 F.3d 1052 (5th Cir. 1997). Recognizing that the policy against

allowing service dogs on the brewery tour affected more than just the plaintiff in that case, the

district court issued an injunction requiring the brewery to ensure that “disabled persons with guide

dogs or other service animals have the broadest feasible access to the public tour.” The Fifth Circuit

affirmed without raising the issue of standing or requiring the plaintiff in that case to allege an intent

to return.5

The Fifth Circuit has also issued two unpublished cases discussing standing in Title III cases.

In Bynum v. American Airlines, 166 Fed. App’x 730 (5th Cir. 2006), the Court indicated that a

disabled plaintiff had standing to sue airlines on which he had flown, without requiring proof that

he would be wronged by these airlines again on a specific date. In Jolly v. Pappas Restaurant, Inc.,

189 F.3d 467 (5th Cir. 1999), the plaintiff was allegedly denied service at the defendant’s restaurant.


The Court notes that, requiring a plaintiff to allege an intent to return to such a tour, which
persons generally visit only once, would likely render the ADA wholly ineffective with regard to
such types of destinations. As the courts recognized in Johnson, injunctive relief was appropriate
to remedy the discrimination for all similarly situated individuals.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 20 of 30

The Fifth Circuit stated that the fact that the defendant restaurant had denied the plaintiff service in

the past was an insufficient basis for injunctive relief, and that the plaintiff must show a real or

immediate threat that he would be wronged again. The Court found that he could not do so,

however, because the defendant restaurant had indicated that the plaintiff was welcome at his

restaurant. The case did not involve any ongoing architectural barriers.6

G. Synthesis – Defining Injury Under Title III of the ADA

Modern Supreme Court jurisprudence on standing requires an “injury in fact.” It is settled

law that “[w]here federal statutory rights are at issue . . . Congress has considerable authority to

shape the assessment of standing.” Kyles v. J.K. Guardian Security Servs., 222 F.3d 289, 294 (7th

Cir. 2000). “[A]lthough it may not lower the threshold for standing below the minimum

requirements imposed by the Constitution, Congress can extend standing to the outermost limits of

Article III.” Id. (citation omitted). Further, Congress has the power to “enact statutes creating legal

rights, the invasion of which creates standing, even though no injury would exist without the

statute.” Id. (citing Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3 (1973)). Thus, “whether a

person has Article III standing to sue under [a particular statute] depends in great measure on the


Though the Fifth Circuit has applied Lyons in the Title I context to require an employment
plaintiff to allege a likelihood that he would be subjected to a similar violation in the future, its facts
are distinguishable. In Armstrong v. Turner Industries, Inc., 141 F.3d 554 (5th Cir. 1998), the
plaintiff, who was not disabled, sought to challenge a violation of section 12112(d)(2)(A), which
provides that a covered entity shall not conduct a medical examination or make inquiries of a job
applicant concerning their disability until a conditional offer of employment has been extended. The
Court held that, because the plaintiff did not indicate that he planned to seek employment with the
company again, nor did he “purport to represent a specific class of individuals that is in danger of
discrimination from [defendant],” he lacked standing. Id. at 563. Persons who are disabled,
however, do represent a specific class of individuals in danger of discrimination by the defendant
when the defendant violates Title III. Further, in Title III cases, so long as the plaintiff remains
disabled and the barrier remains in place, the discrimination is ongoing.


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 21 of 30

particular rights conferred by th[at] statute[].” Id. It follows that whether a plaintiff has suffered

an injury in fact sufficient to confer standing under Title III is determined largely by the rights

conferred by the ADA.

In the case of architectural barriers, courts finding a lack of standing unless the plaintiff

alleges or proves a concrete plan to return to an establishment to suffer discrimination view the Title

III injury as being limited to the plaintiff’s actual interactions with the discriminatory barriers at the

establishment. While this is undoubtedly an injury under Title III, it is not the only type of injury,

and therefore not the only type of discrimination, prohibited by Title III. Rather, the ADA expressly

contemplates loss of opportunity as an actionable injury. Congress included within the Act the

stated goal of assuring “equality of opportunity” to disabled persons 42 U.S.C. § 12101(a). The

ADA provides a cause of action to “any person who is being subjected to discrimination” and

expressly states that “it shall be discriminatory to subject an individual . . . on the basis of disability

. . . to a denial of the opportunity of the individual or class to participate in or benefit from the

goods, services, facilities, privileges, advantages, or accommodations of an entity.” 42 U.S.C. §

12182(a), (b) (emphasis added). A disabled plaintiff may be denied the opportunity to participate

in or benefit from the goods and services, which is among the ADA’s general prohibitions, in a

number of ways, including a defendant’s “failure to remove architectural barriers,” which is among

the specific prohibitions listed in § 12182(b). Thus, the disabled plaintiff suffers an ongoing injury

so long as she is effectively denied the opportunity to participate in or benefit from the goods,

services, facilities, privileges, advantages, or accommodations of the entity. That Congress meant

to restore disabled plaintiffs’ choice and opportunity to visit an establishment on equal footing with

the able bodied is further evident in the title of Chapter 126 – “Equal Opportunity for Individuals


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 22 of 30

with Disabilities.”

Recognizing this, some courts (as noted previously) have appropriately held that the Title

III injury includes the deterrent effect that architectural barriers or other Title III violations have on

the plaintiff. While a flight of stairs at a store’s entrance is an obvious deterrent to a person in a

wheelchair, less-obvious barriers also deter disabled patrons from vising an establishment. For

example, a wheelchair user may reasonably avoid going to a restaurant or bar she would otherwise

visit because it lacks an accessible bathroom, or may avoid shopping at a store if the aisles are too

narrow to navigate. The fact that the disabled person is being deterred from visiting an

establishment they would otherwise visit, even if infrequently, is an ongoing, present injury. Thus,

a plaintiff need not engage in the futile gesture of visiting an accommodation she knows to be

discriminating against her in order to establish standing.

Viewing the injury as the denial of opportunity to participate in or benefit from the goods,

services, facilities, privileges, advantages, or accommodations of an entity, whether caused by direct

interaction with physical barriers or their resulting deterrent effect, is not only consistent with the

plain language of the ADA, it is consistent with Supreme Court precedent. Thus, the Supreme Court

in Bragdon v. Abbott, 524 U.S. 624 (1998), never suggested that the plaintiff, who had been denied

dental treatment due to her HIV status, had to allege an intent to return to Dr. Abbott on a specific

date to obtain relief under Title III. If it believed standing to be a problem, it had an obligation to

raise the issue sua sponte to assure itself of the litigant’s Article III standing. DaimlerChrysler v.

Cuno, 547 U.S. 332, 340 (2006); United States v. Hays, 515 U.S. 737, 742 (1995). One

commentator has pointed out that, following some courts’ narrow approach to standing, the plaintiff

in Bragdon would have had to wait until the litigation was resolved to get her cavity filled and refuse


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 23 of 30

to see another dentist to ensure that she maintained standing. Markey, supra, at 185. This is surely

not what Congress intended in passing the ADA. Moreover, whether Bragdon had her cavity filled

or not, Dr. Abbott would have been continuing to discriminate against her through his policy of

refusing certain treatments to HIV+ patients, including plaintiff, and this ongoing discrimination

would be sufficient for injunctive relief.

Other Supreme Court cases also support a broader view of injury under Title III. In

Northeastern Florida Chapter of the Associated General Contractors of America v. City of

Jacksonville, Florida, 508 U.S. 656 (1993), the Supreme Court held that the injury in fact in an

equal protection case “is the denial of equal treatment resulting from the imposition of the barrier”

or “the inability to compete on an equal footing.” Id. at 666. Thus, a party challenging a set-aside

program in government contracting “need only demonstrate that it is able and ready to bid on

contracts and that a discriminatory policy prevents it from doing so on an equal basis.” Id.

More recently, in Gratz v. Bollinger, 539 U.S. 244 (2003), the Supreme Court expressly

reaffirmed this holding. Id. at 263. The Court then applied that holding to the equal protection

challenge against the University’s use of race in undergraduate admissions, noting that the plaintiff’s

allegations “that the University had denied him the opportunity to compete for admission on an

equal basis” and that “[a]fter being denied admission, [the plaintiff] demonstrated that he was ‘able

and ready’ to apply as a transfer student should the University cease to use race in undergraduate

admissions” were sufficient to confer standing to seek prospective relief with respect to the

University’s continued use of race in undergraduate admissions. Id.

Further, the Supreme Court recognized deterrence as an injury in fact sufficient to confer

standing for prospective relief in Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 24 of 30

U.S. 167 (2000). The Court held that allegations that plaintiffs would like to fish, camp, swim, and

picnic in and near a river downstream from the defendant’s facility alleged to be polluting, but that

they would not do so because they were concerned that the water was polluted by the facility’s

discharge adequately documented injury in fact sufficient to obtain injunctive relief. The Court

found that such conditional statements – that plaintiffs would use the river if the defendant were not

discharging pollutants into it – could not be equated with the speculative “some day” intentions to

visit endangered species halfway around the world that was held insufficient in Lujan. Id. at 184.

Further, the Court dismissed the dissent’s reliance on Lyons, noting that in Lyons it was speculation

whether the recurrence of the chokehold “would even take place,” while it was “undisputed that

Laidlaw’s unlawful conduct - discharging pollutants in excess of permit limits - was occurring at

the time the complaint was filed.” Id. (emphasis in original). It continued, “Under Lyons, then, the

only ‘subjective’ issue here is ‘[t]he reasonableness of [the] fear’ that led the affiants to respond to

that concededly ongoing conduct by refraining from use of the North Tyger River and surrounding

areas.” Id. The Court found “nothing ‘improbable’ about the proposition that a company’s

continuous and pervasive illegal discharges of pollutants into a river would cause nearby residents

to curtail their recreational use of that water-way and would subject them to other economic and

aesthetic harms”; instead, that proposition was “entirely reasonable” and, found to be true by the

district court, was “enough for injury in fact.” Id. at 184-85.7


In Lujan, the Court emphasized that the plaintiffs had not suffered any harm, that the party
seeking review must himself have suffered an injury, and that “it is clear that in suits against the
Government, at least, the concrete injury requirement must remain.” Lujan, 504 U.S. at 578. ADA
Title III suits are not suits against the Government, rendering those concerns inapplicable. Further,
in his concurring opinion, Justice Kennedy noted that, in exercising its power to define injuries that
will give rise to a cause of action where none previously existed, “Congress must at the very least
identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring


Case 5:10-cv-00029-XR Document 23 Filed 08/10/10 Page 25 of 30

Thus, following the reasoning of these precedents, in an ADA Title III case, the risk of injury

in fact is not speculative so long as the alleged discriminatory barriers remain in place, the plaintiff

remains disabled, and the plaintiff is “able and ready” to visit the facility once it is made compliant.

If the disabled plaintiff returns to the location, the same discrimination will occur until the facility

is made compliant. Thus, any disabled plaintiff who alleges an intent to return can demonstrate a

non-speculative injury sufficient for injunctive relief under the ADA. Further, just as the Laidlaw

plaintiffs were reasonably deterred from visiting the river due to the pollution, it is not improbable,

but “entirely reasonable” that a plaintiff would be deterred from visiting a public accommodation

that is currently discriminating against her. Thus, any disabled plaintiff who alleges that she is being

denied the opportunity to visit or is currently being deterred from visiting a public accommodation

that is violating Title III alleges sufficient present injury in fact for prospective equitable relief. See

Dean v. Ashing, 409 F.2d 754, 756 (5th Cir. 1969) (in suit under Title II of the Civil Rights Act by

black trailer owners against trailer park operators who refused to rent spaces on account of race,

holding that district court “should determine whether the defendants had a policy or practice of not

renting space to Negroes” and “[i]f so, and it also appears that any plaintiff was aggrieved by this

policy or practice, then the injunction contemplated by the statute, 42 U.S.C.A. § 2000a-3(a), should


Last, the fact that a disabled plaintiff in a Title III case is a tester doe