United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on the separate motions of
defendants H.V. Real Estate Corporation (“H.V.”)
and Norma Yelton and William Yelton (collectively, “the
Yeltons”) to dismiss for lack of standing, pursuant to
Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. Plaintiff Fred
Nekouee filed responses in opposition to the motions. All
matters are pending before the undersigned United States
Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
lives in Marietta, Georgia. Plaintiff has progressive
multiple sclerosis and requires the use of a wheelchair for
mobility. Defendant H.V. owns, operates or leases a Taco Bell
restaurant located in Bridgeton, Missouri; the Yelton
defendants own, operate or lease a Taco Bell restaurant in
Maryland Heights, Missouri. Plaintiff states in his first
amended complaint and affidavit that he travels to Bridgeton
and Maryland Heights with his brother to attend heavy
equipment auctions. He further states that when he and his
brother travel for these auctions, they prefer to eat at
quick and inexpensive restaurants conveniently located close
to major roads. As such, plaintiff states that he and his
brother have patronized both of defendants' Taco Bell
restaurants when traveling in the area. He further states
that in the near future when he accompanies his brother on
upcoming equipment auctions, he intends to return to the
properties and to avail himself of the goods and services
offered to the public at the restaurants.
alleges that defendants' restaurants violate Title III of
the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12181 et seq. In particular, he claims
that he encountered conditions or barriers that endangered
his safety, and impaired his abilities to park a vehicle,
access the properties, and use the restrooms. Plaintiff
claims that he and all other individuals similarly situated
continue to suffer from the defendants' failure to make
modifications to their discriminatory policies, practices and
procedures. He seeks declaratory and injunctive relief, along
with attorney's fees and expenses. Defendants argue that
plaintiff does not have standing to bring suit under the ADA.
defendants invoke both Rules 12(b)(1) and 12(b)(6) as the
appropriate standards under which the Court should rule on
their motions, the Court determines that Rule 12(b)(1)
applies. “[I]f a plaintiff lacks standing, [a court]
has no subject matter jurisdiction. Therefore, a standing
argument implicates Rule 12(b)(1).” Faibisch v.
Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002);
see also Disability Support All. v. Geller Family Ltd.
P'ship III, 160 F.Supp.3d 1133, 1135-6 (D. Minn.
2016) (same); Norkunas v. Wynn Las Vegas, LLC, 343
F. App'x 269, 270 (9th Cir. 2009) (“Standing under
Article III of the Constitution is a constitutional
limitation on a court's subject matter jurisdiction and
cannot be granted by statute . . . . Because Article III is a
true jurisdictional question, rather than a question about
the sufficiency of the claim, it is properly addressed in a
court deciding a motion under Rule 12(b)(1) must distinguish
between a ‘facial attack' and a ‘factual
attack.'” Disability Support, 160
F.Supp.3d at 1136 (citing Osborn v. United States,
918 F.2d 724, 729 n. 6 (8th Cir. 1990)). In a facial attack,
the court can only consider the “face of the pleadings,
and the non-moving party receives the same protections as it
would defending against a motion brought under Rule
12(b)(6).” Id. By contrast, “in a
factual attack, the court considers matters outside the
pleadings, and the non-moving party does not have the benefit
of 12(b)(6) safeguards.” Id. Defendants'
motion is a factual attack on the amended complaint. As such,
the Court has considered the affidavit plaintiff submits in
opposition to defendants' motions.
satisfy Article III standing requirements, plaintiff must
demonstrate: (1) that he suffered an injury in fact; (2) a
causal connection between the injury and the defendants'
conduct; and (3) that the injury will likely be redressed by
a favorable ruling. Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992); Steger v. Franco, Inc.,
228 F.3d 889, 892 (8th Cir. 2000). Defendants contend that
plaintiff has failed to allege sufficient facts to establish
the first requirement - injury in fact. And, because
plaintiff seeks injunctive relief, he must allege facts
giving rise to an inference that he will suffer future
discrimination by the defendants. See Shotz v.
Cates, 256 F.3d 1077, 1081 (11th Cir. 2001) (“In
ADA cases, courts have held that a plaintiff lacks standing
to seek injunctive relief unless he alleges facts giving rise
to an inference that he will suffer future discrimination by
the defendant.”). Therefore, to have standing,
plaintiff must show past injury and a real and immediate
threat of future injury. Houston v. Marod Supermarkets,
Inc., 733 F.3d 1323, 1329 (11th Cir. 2013).
injury-in-fact is a harm that is “concrete and
particularized” and “actual or imminent, not
conjectural or hypothetical.” Franco, Inc.,
228 F.3d at 892 (citation omitted). Defendants argue that
plaintiff fails to establish that he “has in fact
suffered concrete and particularized harm.” [Doc. # 25
at 5]. In particular, defendants argue that plaintiff's
first amended complaint fails to specify “(1) the date
and time when he was allegedly denied ‘access' to
the restaurant or (2) what ‘concrete and particularized
injury' plaintiff allegedly suffered.” Id.
Western District of Missouri addressed a similar case in
Adams v. Capko, Capko & Griffith, LLC, No.
6:15-CV-3346-MDH, 2015 WL 7738374 (W.D. Mo. Nov. 30, 2015).
As in the present case, the plaintiff in Adams was
confined to a wheelchair. She claimed that she was denied
access to “the full and equal enjoyment of” the
defendant's hotel facilities due to certain
“architectural barriers for persons in
wheelchairs.” Id. She stated in an affidavit
that she traveled to the area often to visit her family and
friends, and that she planned to return to defendant's
hotel on these trips “but for the barriers in existence
that deter her from doing so.” Id. The court
held that Adams “sufficiently established injury in
fact to bring suit” because “Plaintiff's
allegations, supported by Plaintiff's affidavit,
sufficiently establish that Plaintiff had knowledge of the
alleged barriers at Defendant's hotel and that Plaintiff
would visit the hotel in the immediate future but for those
barriers.” Id. at *2.
case, contrary to defendants' arguments, plaintiff sets
forth in his affidavit the specific dates on which he visited
each restaurant. [Doc. # 16-1 at ¶¶ 2, 3]. He
also identifies specific features of each restaurant that
interfered with his ability to safely exit his vehicle, cross
the parking lot, open the restaurant door, operate the soda
machine, and access and use the restrooms.Id.