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Nekouee v. H.V. Real Estate Corp.

United States District Court, E.D. Missouri, Eastern Division

November 2, 2017

FRED NEKOUEE, Plaintiff,
v.
H.V. REAL ESTATE CORPORATION, and NORMA J. YELTON and WILLIAM E. YELTON, successor co-trustees of the Leonard E. Yelton Revocable Living Trust Dated March 8, 2000, Defendants.

          MEMORANDUM AND ORDER

          JOHN M. BODENHAUSEN, UNITED STATES MAGISTRATE JUDGE

         This 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).

         I. Factual Background

         Plaintiff 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.

         Plaintiff 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.

         II. Legal Standard

         Although 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 12(b)(1) motion.”).

         “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.

         III. Discussion

         To 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).

         A. Injury-in-Fact

         An 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.

         The 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.

         In this case, contrary to defendants' arguments, plaintiff sets forth in his affidavit the specific dates on which he visited each restaurant.[1] [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.[2]Id. ...


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