United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
RICHARD WEBBER, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant Dierbergs Four
Seasons' Rule 12(b)(1) Motion to Dismiss Plaintiffs'
Amended Complaint .
November 27, 2017, Plaintiffs The Independence Project,
Incorporated and John Meggs (“Plaintiffs”) filed
a complaint in this Court alleging Defendant Dierberg's
Four Seasons, Incorporated (“Defendant”),
violated the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12181 et seq.,
by failing to have accessible facilities. Plaintiffs filed an
amended complaint on January 8, 2018. Defendant filed this
Motion to Dismiss asserting Plaintiffs do not have standing
to bring suit because they cannot establish an
Rule of Civil Procedure 12(b)(1) requires the district court
dismiss an action when there is no subject matter
jurisdiction. Cook v. ACS State & Local Sols.,
Inc., 756 F.Supp.2d 1104, 1106 (W.D. Mo. 2010),
aff'd, 663 F.3d 989 (8th Cir. 2011).
“Federal jurisdiction is limited by Article III of the
Constitution to cases or controversies; if a plaintiff lacks
standing to sue, the district court has no subject-matter
jurisdiction.” ABF Freight Sys., Inc. v. Int'l
Bhd. of Teamsters, 645 F.3d 954, 958 (8th Cir. 2011).
Dismissal for lack of subject matter jurisdiction requires
the complaint be successfully challenged on the factual
truthfulness of its averments or on its face. Titus v.
Sullivan, 4 F.3d 590, 593 (8th Cir. 1993). In the case
of a facial challenge, “all of the factual allegations
concerning jurisdiction are presumed to be true and the
motion is successful if the plaintiff fails to allege an
element necessary for subject matter jurisdiction.”
Id. (citation omitted). Conversely, in a 12(b)(1)
motion challenging facts, the trial court is “free to
weigh the evidence and satisfy itself as to the existence of
its power to hear the case.” Osborn v. United
States, 918 F.2d 724, 730 (8th Cir. 1990). On factual
challenges to subject matter jurisdiction, the plaintiffs are
not afforded the protections of Rule 12(b)(6). Id.
establish Article III standing, a plaintiff must show (1) an
injury in fact, (2) a sufficient causal connection between
the injury and the conduct complained of, and (3) a
likelihood that the injury will be redressed by a favorable
decision.” Susan B. Anthony List v. Driehaus,
134 S.Ct. 2334, 2341 (2014) (quotation marks and citation
omitted). When determining whether to dismiss “a
complaint for lack of standing, ” a court is to
“constru[e] the allegations of the complaint, and the
reasonable inferences drawn therefrom, most favorably to the
plaintiff.” Glickert v. Loop Trolley Transp.
Dev. Dist., 792 F.3d 876, 880 (8th Cir.
2015)(quotation marks and citations omitted).
Motion, Defendant asserts Plaintiffs lack standing to bring
their claims under the ADA because they have not shown the
likelihood of a future injury. Defendant argues Plaintiffs
are located 1800 miles and 950 miles from Defendant's
property, Meggs incorporated his business in Missouri only
one month before filing this suit, and Meggs lacks
definitiveness in his intent to return to Defendant's
shopping center. In response, Plaintiffs claim they have the
requisite standing, because, in his complaint, Meggs stated
he visited the property and he included dates he intends to
specifically return. Further, Plaintiffs argue Meggs status
as a tester for the Independence Project does not preclude
him from establishing standing. Defendant is only challenging
standing in regards to the injury-in-fact component; thus,
the Court will focus only on this requirement and not the two
remaining standing requirements.
prohibits discrimination on the basis of disability in places
of public accommodation. 42 U.S.C. § 12182(a).
Discrimination includes “a failure to remove
architectural barriers, and communication barriers that are
structural in nature, in existing facilities . . . where such
removal is readily achievable.” 42 U.S.C. §
12182(b)(2)(A)(iv). “Any person who is being subjected
to discrimination on the basis of disability” may bring
a private right of action for injunctive relief. 42 U.S.C.
ADA case, the injury-in-fact requirement of standing focuses
on the plaintiff's “knowledge of the barriers and
that they would visit the building in the imminent future but
for those barriers.” Steger v. Franco, Inc.,
228 F.3d 889, 892 (8th Cir. 2000). “An injury-in-fact
is a harm that is ‘concrete and particularized' and
‘actual or imminent, not conjectural or
hypothetical.'” Id. (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
When determining if a plaintiff has established a likelihood
of future injury, district courts in the Eighth Circuit have
focused on “(1) the proximity of the place of public
accommodation to plaintiff's residence, (2)
plaintiff's past patronage of defendant's business,
(3) the definitiveness of plaintiff's plans to return,
and (4) plaintiff's frequency of travel near
defendant.” Steelman v. Rib Crib No. 18, 2012
WL 4026686 at *2 (W.D. Mo. Sep. 12, 2012) (quoting Brown
v. Grandmother's Inc., No. 4:09CV3088, 2010 WL
611002 at *6 (D. Neb. Feb. 17, 2010)).
states Plaintiffs cannot establish a likelihood of future
injury, because (1) Meggs lives approximately 1, 800 miles
away and the Independence Project is located approximately
950 miles away; (2) Meggs' reason for visiting St. Louis
is his business, J-Loop Entertainment, LLC, which was formed
approximately one-month before filing the complaint; (3)
there is no contact information listed to book his company
for an event or a description of the business of J-Loop
Entertainment; (4) Plaintiffs' have extensive litigation
histories across the country and in this district; (5) Meggs
has not stated definitive plans to return to St. Louis; and
(6) Meggs does not indicate how often he travels to St. Louis
to conduct business. Defendant asserts Plaintiffs are
“serial Plaintiffs without concrete intentions to
return to Defendant's property in the future.”
support of its argument, Defendant relies primarily on
Steelman, 2012 WL 4026686. In Steelman, the
plaintiff lived in Florida part of the year and Salem,
Missouri part of the year. Id. at 3. The
defendants' properties were located in Springfield,
Missouri, and Branson, Missouri. Id. The
plaintiff's complaint stated she visited each of the
defendants' businesses but did not indicate when she
visited, why she visited, or how many times she visited.
Id. Additionally, the only evidence indicating she
had been to any of the businesses was a single receipt for a
single business. Id. The plaintiff also included
allegations that were false, such as stating a certain
location was a hotel with a pool when, in fact, it was
neither. Id. Finally, the plaintiff alleged she
planned to return to the properties but did not include any
specific information. Id. at 4. Based on these
facts, the Western District of Missouri concluded
“Plaintiff has filed 67 ADA lawsuits in Florida and
Missouri, has been inconsistent in her allegations regarding
residence, and has not set forth sufficient arguments to
persuade the Court that she does have standing to pursue
contrast, Plaintiff Meggs has alleged he intends to visit St.
Louis again the first weeks of June and July 2018, he visited
the property, most recently in October 2017, and his business
partner lives four miles from the property (he has included
his partner's exact address). Further, in the affidavit
he submitted to the Court, he explained why he visited
Defendant's property (to get dinner and to purchase some
items at Dierberg's Market). These statements supply
specific facts, distinguishing the issues that concerned the
Western District ...