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Marradi v. K&W Realty Investment LLC

United States District Court, D. Massachusetts

July 22, 2016

RAOUL MARRADI, Plaintiff
v.
K&W REALTY INVESTMENT LLC and PHO PASTEUR, INC., Defendants.

          MEMORANDUM & ORDER

          Nathaniel M. Gorton, United States District Judge

         This case involves a claim of disability discrimination brought by plaintiff Raoul Marradi (“Marradi” or “plaintiff”) against defendants K&W Realty Investments LLC and Pho Pasteur, Inc. (collectively, “defendants”). Pending before the Court is defendants’ motion to dismiss the case for lack of subject matter jurisdiction and for failure to state a claim. For the reasons that follow, the motion will be denied.

         I. Background

         Plaintiff Raoul Marradi is a Massachusetts resident who, according to the complaint, is disabled and uses a wheelchair for mobility purposes. Marradi alleges that he is disabled within the meaning of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq, because he is substantially limited in performing one or more major life activities, including walking, standing, grabbing, grasping and pinching. Defendant Pho Pasteur, Inc. operates a restaurant known as Pho Pasteur Restaurant at property it leases at 682 Washington Street in Boston, Massachusetts. Defendant K&W Realty Investment LLC is the owner of the same property.

         Plaintiff avers that he attempted to patronize Pho Pasteur Restaurant but could not do so because physical barriers prevented him from obtaining access in his wheelchair. In his complaint he alleges 25 violations of standards promulgated pursuant to the ADA which he found to be present at defendants’ facility. Marradi purports to have visited the restaurant both for personal reasons and while acting as a “tester” for the purpose of discovering and documenting public accommodations which are physically inaccessible to disabled persons and which, consequently, are noncompliant with the ADA. He claims that he intends to visit Pho Pasteur Restaurant again “in the near future.” In October, 2015, Marradi filed a complaint alleging violations of Title III of the ADA. In December, 2015, defendants filed a joint motion to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim.

         II. Motion to Dismiss

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Defendants first move the Court to dismiss plaintiff’s complaint on the ground that plaintiff has failed to establish standing to bring his ADA claim by showing that he has suffered an “injury in fact.”

         1. Legal Standard

         In opposing a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the plaintiff bears the burden of establishing that the Court has jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). If the defendant mounts a “sufficiency challenge”, the court will assess the sufficiency of the plaintiff’s jurisdictional allegations by construing the complaint liberally, treating all well-pled facts as true and drawing all reasonable inferences in the plaintiff’s favor. Valentin v. Hospital Bella Vista, 254 F.3d 358, 363 (1st Cir. 2001). If, however, the defendant advances a “factual challenge” by controverting the accuracy, rather than the sufficiency, of the alleged jurisdictional facts, then “the plaintiff’s jurisdictional averments are entitled to no presumptive weight” and the court will consider the allegations by both parties and resolve the factual disputes. Id.

         The judicial power of Article III courts extends only to actual cases and controversies involving the legal rights of litigants who have a “personal stake in the outcome of the controversy.” Baker v. Carr, 369 U.S. 186, 204 (1962); U.S. Const. art. III, § 2, cl. 1. To show such a personal stake, otherwise known as standing, a plaintiff must establish 1) an injury in fact, 2) a causal connection between the injury and the conduct complained of and 3) a likelihood that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560.

         An “injury in fact” involves the invasion of a legally protected interest. Id. The United States Supreme Court has enumerated two different characteristics which define such an injury. First, it must be “concrete and particularized, ” that is, plaintiff must allege some harm that he personally suffered. Id. Consequently,

an allegation that someone has failed to meet some legal requirement, without more, is insufficient to confer Article III standing.

Katz v. Pershing, LLC, 672 F.3d 64, 78 (1st Cir. 2012). Second, the alleged injury must be “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. The harm must either have already happened or be sufficiently likely to happen in the future; “it is not enough that the harm might occur at some future time.” Katz, 672 F.3d at 71.[1]

         2. Analysis

         Defendants challenge Marradi’s standing on the ground that he has failed to show an “injury in fact” because he has not made a sufficient showing of future harm. Defendants correctly note that, because plaintiff seeks only injunctive relief as permitted by the ADA, he must show that he is “likely to suffer future injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983); see also Blake v. Southcoast Health System, Inc., 145 F.Supp.2d 126, ...


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